Supreme Court
Action No. 66 of 1982
1st June, 1983.
Rajasingham, J.

Messrs. Staine & Barrow, for Petitioner.
Mr. Hubert E. Elrington Esq., for Respondent.

Family Law - Divorce - Custody of children - Desertion of wife - Wife deserting matrimonial home and children - Interest of children paramount consideration - Custody given to mother upon conditions.

J U D G M E N T

This is an action for divorce brought by Jose Baeza against his wife Norma Baeza. The Respondent has herself countersued for divorce. Both parties are asking for custody of the children.

The facts are rather brief although bitterly contested. The parties were married in 1973 and parted in July, 1976. Initially the marriage seems to have been a reasonably happy one with both parties working hard to make a home. However the arrival of three children in three years and the resulting additional financial strain appears to have been too much for them. The Petitioner husband took to drinking more than before and the wife became a dissatisfied bitter and envious woman. Into this unhappy state arrived the Respondent's sister who was living with a man with money. There is some disagreement as to the length of her stay but whether it was short or long, her obvious affluence acted as a catalyst upon an already unhappy woman. I do not for a moment doubt that she then sought to escape from her unhappiness by imitating her sister as much as her resources permitted; this included visits to bars and dances and the consumption of liquors. This state of affairs was inevitably going to lead to an explosion. The husband drank heavily when he was not working and the wife was more and more determinedly going her own way. I do not believe the husband was the brute he was made out to be nor do I believe the wife as long suffering as she would have me believe. However I do believe that both parties continued each in his or her own way to cause the rift to widen, until on the fateful night it was reduced to a free for all between a drunken husband and an errant wife. The wife then left the matrimonial home, and except for a brief reconciliation, thus ended the relationship. By this time it appears the wife too had become quite accustomed to consuming fair quantities of liquor. That this was so appears to be the implication of questions in cross examination of the Petitioner which suggested that the Respondent's addiction to liquor was a recent habit and that she had not imbibed so freely prior to marriage. The incident spoken to by the Petitioner, in which he found his infant daughter being hugged by a strange man while his wife sat at a bar, with other men, so immersed in conversation as not to notice him removing the child, was not challenged in cross examination. When he said in cross examination that he had seen his wife in bars after she left him, it was not challenged either. The cross examination seemed to suggest that her taking to drinking was his fault; that he drove her to drink. The Respondent herself admitted her husband may have seen her drunk in bars but that that was because she was sad at being parted from her children.

The evidence is that the petitioner gave his wife $30.00 a week in 1973, out of a salary of $50.00 a week. In 1973 a sum about $120.00 a month for household expenses was equivalent to a sum of about $350.00 a month today. I was basing my calculations on the salary then paid to a Crown Counsel in Belize which was $569.00 a month. I do not think that the sum of $120.00 was as difficult to manage with as the Respondent says it was. The Respondent said the Petitioner was not very regular in giving these sums, but the allegation was made almost halfheartedly. I do not believe that within his limited means the Petitioner was a poor provider; and the Respondent was aware of his limited means when she married him. I am convinced that the Respondent, who was only seventeen years old when she married the Petitioner, became impatient with the hard life she led, by comparison with her life as a single girl in a well-to-do household, and decided to end it. I do not think the Petitioner was entirely blameless because he escaped from the same conditions by indulging more and more often in drinking.

The break in the marriage was almost inevitable, given the weakness of both parties. However, the actual termination of the marriage was the desertion of the wife, the Respondent. I do not accept that the continued presence of her in the matrimonial home was likely to seriously affect her health. I do not accept her story of an abortion caused by a beating for the reason that I do not think she would have omitted such a fact from her defence and counter claim if it had been true. She may have had an abortion but I do not believe it was caused by a beating. I therefore, grant the Petitioner's prayer that he be granted a divorce on the grounds of the Respondent's desertion.

The question of the custody of the children is a far more difficult question. In deciding that issue I am faced with considerable difficulty. The most glaring factor in this context is the desertion of the children by the mother when they were three years, two years and one year old respectively. The Respondent's interest in the welfare of her children at that time appeared to have been secondary; her first interest was herself. Her answer to her Counsel shows how easily she was turned away from her children. She said

"When I left the Petitioner, I left the children crying in the house. After he took them to his mother I went about three times to visit them. He would see me and insult me in obscene language and say I had no reason to go there. Since then I stopped going. Since then I next saw them when the Social Services took them."

The Social Services Department gave them to the Respondent in 1982; she left them in 1976. There is evidence that shows that the Respondent actually continued to live in Orange Walk Town for quite a while after she left her matrimonial home. It seems rather incredible that a mother would allow herself to be kept away from her children by mere abuse, unless she found it convenient to leave things as they were for the time being. I cannot blame her for seeking custody of the children at that stage, but I cannot understand her failure to see them and show them her love for them. That neglect appears to me to be rather callous. The other side of the coin has unattractive features too. The father does not intend that they should reside with him. While there is little doubt that the children themselves are well cared for by the grandmother, there is evidence of a certain lack of supervision. The Social Welfare Officer spoke of irregular attendance at school. There is admitted evidence of their selling oranges from house to house. This may be condoned if there were no alternative, but that is not the situation here. The present situation as far as the two alternative homes are concerned is as follows:- They are comfortably housed and cared for in Belize City. They are not so well-housed but are well-loved and happy in their grandmother's house in Orange Walk Town. They are receiving better schooling and better supervision in Belize City. Their father has proved beyond any doubt that he loves and wants them. Their mother, having acquired a comfortable home, now wishes to take on their care, a belated reawakening of her maternal instincts.

However, the interests of the children must be treated as paramount in this aspect of this case. The mother's callous attitude notwithstanding, there is no doubt that they are well-cared for in Belize City and their schooling is better too. I, therefore give custody of the three children Mireya, Alberto and Antonio to their mother Mrs. Norma Baeza, subject to the following condition namely that they shall be permitted to accompany their father to Orange Walk for ten days immediately upon the commencement of their school vacations in December, for three weeks during their Easter vacation and for six weeks during their summer vacation, also at the commencement of those vacation periods. The Petitioner shall bear the cost of their transport and their maintenance during those periods. I am making this provision because I am convinced that the love and care of the father ad grandmother will add greatly to their sense of security and imbue in them qualities which will in turn make them secure caring parents in time to come. The father's fondness for liquor has not, according to the children themselves, resulted in any mistreatment of the children; in all, the evidence suggests he is not rendered violent by liquor but becomes instead a rather pathetic figure. There was ample indication of the affection of the children for this man and I feel that is a bond that, if preserved, will be good for the children. The final question that arises for determination is the Respondent's application for a determination of the interest, if any, she may have in the matrimonial home in Orange Walk. The only evidence is a suggestion made to Petitioner in cross examination and evidence elicited in cross examination of the Respondent. The evidence on this matter is totally unsatisfactory. The Petitioner claims he built the house from monies borrowed from the Bank and from lumber salvaged from an old house his brother gave him. The Respondent says he took no loan from a bank but used monies raised by her from sale of jewellery. There is no evidence at all of the type of structure and its value to enable me to decide which of those versions is true. In the circumstances I do not propose to interfere with the status quo after this lapse of time as the Respondent's claim has not been proved.

There is a matter upon which I propose to comment in the hope that it will deter such irresponsible action in the future. The Social Development Department appears to have arrogated to itself the authority to decide a matter such as the custody of the children of a broken marriage, matters which our judicial system does not even leave to Magistrate's Courts. As if that were not in itself an unwarranted interference in the personal lives of people, the officers of the Department appear to be doing so without even a proper understanding of the law relating to those questions. That was made glaringly apparent in this case by the evidence of the Social Welfare Officer. The directive given by his senior officer, Mr. Augustine, was that he should "get custody for the mother." The officer himself blithely told the court that he told the Petitioner that the mother is normally given the custody of the children unless the father could prove that she could not supply them with the basic necessities - and to do so he, the father, would have to go to court. He blandly admitted that he intended to convey the impression that the law gives custody of the children to the mother. Although I thought fit not to note it, the officer even referred to the Infants Ordinance, Chapter 186, as his authority. I do not propose to dwell on this but merely seek to illustrate the obvious dangers in such interference not the least of which may, in the proper circumstances, be a suit for damages against the Government. The officers of the department should first and foremost seek legal advice from the Attorney General's Ministry in all cases in which the circumstances do not require urgent action on their part. Whether urgent action may be necessary is a matter obviously for their judgment, but such action should be confined to situations in which the health or morals of the child are likely to seriously jeopardised if prompt action is not taken by the officers of the department; in all other cases their task should be confined to advice and mediation based on a proper interpretation of the law relating to the rights of the parties and of the children. When such mediation, does not succeed the parties should be advised to seek their legal remedies, and no change should be made in the status quo pending such remedy.

I enter Decree Nisi for the Petitioner to be made absolute in six weeks. Custody of the three (3) children is granted to the Respondent subject to the right of the Petitioner to have them go with him and reside with him for the periods herein before mentioned.

I hold that the Respondent has no interest in the matrimonial home.

Parties to bear their own costs.

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