Hall J
```markdown # IN THE GRAND COURT OF THE CAYMAN ISLANDS ## FAMILY DIVISION ### CAUSE NO. FAM. 114 OF 2015 #### BETWEEN: - **DANIEL JOHN COWAN** - PETITIONER - **TEEKEL FRANCESC MCINTOSH** - RESPONDENT #### Appearances: - The Petitioner represented by Ms. Vanessa Allard instructed by Brooks & Brooks - The Respondent appearing in person. #### Before: - **Hall J. (Acting)** ## RULING The marriage between the parties was formally dissolved when a Decree of Dissolution of Marriage was issued on 21 st September 2015. There was one child of the marriage; TeeAnn Josephine Cowan ("the child") who was born on April 2, 2007. The parties settled their ancillaries by Consent Order dated 26 th August 2015. The provisions concerning the child were as follows:
The Petitioner and the Respondent will share joint custody of the Child of the marriage, namely TeeAnn Josephine Cowan (DOB. 2 nd April, 2007). The Child of the marriage shall reside with the Respondent or elsewhere if agreed by both parties.
The Petitioner and the Respondent will both have unrestricted access to the Child. ```
The Petitioner and the Respondent shall have the child on an alternating schedule for Christmas and Easter. The Petitioner shall have the Child for Christmas 2015, the Respondent shall have the child for Christmas 2016, the Petitioner shall have the child for Easter 2016, the Respondent shall have the child for Easter 2017 and so on. The summer holidays shall be split equally between the Petitioner and the Respondent. Additional visits are to be agreed upon and arranged between the parties as the need for them arises. The Petitioner agrees to pay for the Child's airfare when she is travelling to spend agreed holidays with him and the Respondent agrees to do the same. The Petitioner agrees to pay for half of any other airfare for the Child only where such travel and payment is expressly agreed in advance between the parties. The Petitioner shall pay directly to the Respondent the sum of CI $500.00 per month as child maintenance until such time as either party applies to vary this sum or the Court vacates this order. All educational and uninsured medical, dental and optical expenses shall be shared equally between the parties. The cost of any extra-curricular activities shall only be shared if expressly agreed between the two parties. The Petitioner/Applicant is unhappy with the current state of affairs. On the date of the hearing of the application the child was staying with him for a portion of the summer holidays; albeit under contentious circumstances. He brought an application by summons dated 21st July 2016 seeking the following orders:
That the Consent Order dated August 2015 be varied as follows: (a) That a sole residence order be granted in his favour in respect of the minor child TEEANN JOSEPHINE COWAN (D.O.B. 2nd April, 2007). (b) That the child shall return to live in the Cayman Islands, and shall not return to Nassau to live. Ruling: Cowan & McIntos 323 all J, (Actg)/ 160f h/114 of 2015/H
```html 1 (c) That during the school term， the Respondent mother shall have liberal contact with the child， and during public and school holidays， the parties shall agree on a schedule of contact between the Respondent and the child. 5 (d) That the minor child shall be enrolled in and shall attend school within the Cayman islands as of September 2016. 8 (e) That the Respondent mother shall pay to the Petitioner father， the sum of CI $500 per month， being as to maintenance for the minor child， until she is 18 years old， or if pursuing tertiary education， up to the age of 21， whichever is earlier. 11 (f) In the alternative， a joint residence order in favour of both parties， with the minor child residing with the Petitioner father during the school week. 14 2. Any further or other order as this Honourable Court deems just." 15 In his supporting affidavits， the Petitioner outlined the basis of his application. In essence， he felt excluded from major decisions concerning his child， who lives in the Bahamas with her maternal grandmother. He also complained that the Respondent was not reverting to him about events in the child's life nor sticking to the agreed terms of the Consent Order in relation to his access to the child. 20 The Petitioner submitted that he now lives in stable accommodation and works a reasonable shift as a police officer， allowing him to spend time with the child. He has already enrolled her in school for the coming school term and has purchased the relevant uniforms and equipment. 24 The application is opposed by the Respondent. The Respondent expressed the view that this Court had no jurisdiction in relation to the child who is a Bahamian national. That assertion is completely inaccurate. 27 The Respondent submitted that it would be disruptive for the child to suddenly change the routine to which she has become accustomed. The child has been enrolled in the Bahamian school system for several years and is scheduled to return to school on August 29， 2016. Additionally， the child swims for the Bahamian national team. 32 The Respondent also challenged the assertion that the Petitioner would be spending a lot of time with the child and submitted that he would leave the child with family friends. She also argued that as they were both police officers， they were both aware that their schedules was subject to change at any time. ```
The Petitioner and the Respondent presented their evidence by way of affidavits, however they each gave different versions of events and neither were subject to cross-examination. An example of a discrepancy, involves an apparent domestic dispute which took place between the parties in April 2016 and which involved police investigation. Counsel for the Petitioner submitted that discrepancies concerning some events were not particularly relevant to the big picture. However, this Court considers that discrepancies in minor details can be indicators of the veracity of the affiant. Here the Court has difficulty in making findings of facts on disputed issues. Further, there is no evidence adduced from any disinterested third party who will assist. It is possible however to extract a few salient facts despite the explanations proffered for their existence. The arrangements put in place by the Respondent and/or her mother for the Petitioner to speak to the child by telephone or social media is a period of 15 minutes between 7:45 PM to 8:00 PM. While the child speaks to the Petitioner, her grandmother has to be present. The arrangement put in place by the Respondent for the child to see the Petitioner during the summer holidays was for a period of less than three weeks. Both sides are entitled to rely on the terms of the Consent Order. The terms of the order require discussion and consensus between the parties to the former marriage. Clearly this has not taken place. The term "joint custody" means that major decisions in relation to the child must be done by consensus between the parties to the former marriage. Each party was also granted "unrestricted access" to the child. This does not translate to a 15 minute conversation supervised by the child's grandmother. The requirement that the summer holidays be "split equally" means that if the holidays last for eight weeks, the child shall spend four of those weeks with one parent and the other four with the remaining parent. Clearly, it was wrong for the Respondent to unilaterally decide to cut down on the time that the Petitioner spends with the child (whatever the seeming good reason). **Ruling: Cowan & McIntos** (all J, (Actg)/ 1608/114 of 2015/H)
This brings us back to the content of the affidavits filed herein. It is inappropriate for the Respondent or her mother to dictate terms to the Petitioner. At the same time, it is inappropriate for the Petitioner to communicate with the Respondent or her mother in terms which are either dismissive or dictatorial. The affidavits and the exhibits presented to the Court do not display either party at their best. The affidavits of the Petitioner reverberate with anger, sarcasm and the sense that some wrong has been done to him. The Respondent's affidavit tends to be rather defensive and full of explanations. Neither party has impressed the court as having behaved in a mature fashion. In his first affidavit, the only complaints raised by the Petitioner against the Respondent's mother had to do with her usurpation of his parental responsibilities. These are valid complaints. However, it was not until his second affidavit that the Petitioner raised the issue of the child's "fear" and dislike of her grandmother. It was inappropriate for the Petitioner to encourage the child to keep secrets from or disobey her grandmother. Not for the fanciful suggestion raised by the Respondent that this would render her liable to becoming a victim of sexual abuse but rather because it creates a situation whereby a child will distrust an adult who is taking care of her and at the same time it encourages a child to play one adult against the other. Communication between the adults about any perceived problem is the best remedy. The Court is tasked with deciding whether the child of the marriage should return to the Bahamas to live with her maternal grandmother as she has been doing since 2011 or remain in the Cayman Islands living with the Petitioner with access to the Respondent. The Court's paramount consideration is the welfare of the child. Unfortunately, the Court is not aided by any Welfare Reports from a neutral third-party to assist in determining the best interests of the child. I am not satisfied based on the quality of the evidence presented that the child would either suffer harm or be at risk of suffering harm if she continued to live with her grandmother in the Bahamas. Further, I am not satisfied that a reliable picture of the child's wishes and feelings has been presented to the Court. There can be no dispute that a child is better off having access to both parents. If these parents however refuse to speak directly to each other, nothing will ever be resolved in relation to the child. I am not satisfied that at this stage of proceedings the parties herein will immediately act with the requisite maturity. Ruling: Cowan & McIntos 323 all J, (Actg)/ 1608 h/114 of 2015/H Page 5
```html 1 Nothing that has been presented convinces me that removing the child at this time 2 from：her place of residence for the last five years；the educational system that 3 she has participated in over that period and her exposure to participation in the 4 Bahamian national swim team will be in her best interests. 5 I have indicated my dissatisfaction with both parties but I am hereby stressing the 6 fact that if the Respondent refuses to act in accordance with the terms of the 7 Consent Order，she will in fact be in contempt of court. I do not expect 8 disobedience of the law from police officers. As Counsel for the Petitioner 9 submitted，both parents must communicate in order to properly meet the needs of 10 the child. 11 While I do not grant the order which was sought by the Petitioner，I do make the 12 following orders： 13 1.The child must remain under the care and control of the Petitioner until 14 August 26，2016 when she is to return to the Bahamas to take up 15 residence with her grandmother and return to school； 16 2.The Consent Order of August 26，2015 is varied to the extent that the 17 Petitioner shall have the child for Christmas 2016. Thereafter as 18 previously ordered，the Respondent shall have the child for Easter 2017 19 and the child shall thereafter alternate holidays as provided for in the said 20 order； 21 3.The Respondent is to ensure that the child，while in the Bahamas，when 22 communicating directly with the Petitioner，shall do so for a minimum of 30 23 minutes per day and this communication is not to be supervised by any 24 adult relative； 25 4.All of the other conditions of the order dated 26 August 2015 remain in 26 place. 27 23 day of August 2016. 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733