Mr. Dereck Courtenay S. C. for the Petitioner
Mr. Denys Barrow for the Respondent

Divorce due to adultery and cruelty - Application for custody of children principles to be taken into account by court in determining whom to award custody of children - Division of property jointly acquired during marriage - Applicable factors to be taken by court into account.

DECISION

This is an application by the petitioner for an order that: - (1) she have custody of the two children of her marriage with the respondent; (2) that provision be made for them; and (3) that the respondent pay to her such lump sum or periodical payments as may be just. For the purposes of the hearing of the application both parties filed affidavits and there was no oral testimony.

The parties were married in Canada in August, 1970 and in September of the said year came to live in Belize. Marcella June was born on 6th June, 1971 and Stephanie Nicole on the 10th October, 1974. In February 1974 the respondent went to Barbados to pursue a course of studies and returned to Belize in December of that year. During that period the respondent committed adultery. In September, 1977 the respondent again committed adultery. On 18th May, 1978 the petitioner having determined to leave the respondent took the children with her and was in Chetumal, Mexico when she was detained and returned with the children to Belize. The respondent made it clear to the petitioner that he regarded the marriage as at an end and that she should leave. On 29th May, 1978 the respondent expelled the petitioner from the matrimonial home and thereafter lived separate and apart from her. He kept the children in his custody. About the 22nd June, 1978 the respondent agreed to the petitioner having access to the children from Friday evenings until Monday mornings. At that time he was or ought to have been aware that the petitioner proposed to seek dissolution of the marriage. On 2nd August, 1978 the respondent withdrew his consent to the petitioner having access as mentioned above.

In November 1978 the petitioner filed divorce proceedings alleging adultery and cruelty. She also prayed in her petition for custody of the two children and maintenance for herself and the children. The respondent filed an answer denying the alleged adultery and cruelty and alleging condonation of any adultery or cruelty. He also prayed for custody of the children.

The respondent did not defend the suit and on the 16th day of May, 1980 the petitioner obtained a decree nisi on the ground of adultery. The record shows that evidence was given only in relation to the allegation of adultery. Leave was granted to the petitioner to apply for maintenance and to both parties to apply for an order as to custody.

The petitioner now lives by herself in premises held under a lease and containing four bedrooms, bath, two sitting rooms, dining room and kitchen. She is an Administrative Officer with the Belize City Water and Sewerage project and has a gross taxable income of about $12,000 per annum. The respondent is now married to the woman with whom he committed adultery in 1977 and she has a child. The respondent, his wife and three children occupy premises along with his mother and sister. He holds the premises under a monthly tenancy and they comprise four bedrooms, two bathrooms, living room, sitting rooms, dining room, kitchen, laundry area, library and a study. He is Chief Meteorologist and has a gross taxable income of about $18,288.00 per annum. His wife's is about $6,504.00 per annum.

Whether with the petitioner or respondent the children would attend Grace Primary School and thereafter either St. Catherine's Academy or Pallotti High School. With the petitioner, hired help would be used to attend to the children while she is at work; with the respondent, his mother and sister would take care when he and his wife are at work.

With the respondent the children will attend the Galilee Baptist Church. No clear position as to religious upbringing is shown on the part of the petitioner.

The matters just outlined are clear and undisputed and I act upon them. Some matters bearing on the question of the conduct of the parties other than as indicated above were referred to in the parties respective affidavits and submissions. I now determine to what extent if any these matters affect this factor of conduct.

The respondent alleged that the breakdown of the marriage was due to conduct of the petitioner. He said it began to break down before 1974. There were reports of the petitioner's adulterous associations coupled with her frequent nocturnal excursions. She abandoned any responsibility for domestic chores and habitually neglected the children. He further alleged that he made numerous efforts to save the marriage and that in February, 1978 there was an agreement between them to make every effort to save the marriage.

There was no evidence of any adulterous associations and the nocturnal excursions were shown to be visits to the house of a friend of the petitioner. As I understood the evidence with which I was left, responsibility for certain domestic chores was expected of the petitioner which is normally expected of a wife. This is generally so when a wife is unemployed and there is no hired help. I therefore took into account the evidence that during the period concerned the petitioner had taken up employment to assist with expenses of the household, of the respondent's mother and sister and an eleven year old in care of the sister. The respondent in an answer to the petitioner's affidavit did admit to the petitioner discharging responsibility of feeding, dressing and taking the children to school. I did not accept that the marriage began to break because of behaviour on the part of the petitioner. On the contrary there is clear evidence of the respondent's behaviour from 1974 which were grounds for dissolution of the marriage.

I further did not accept that the respondent was making effort in February 1978 to save the marriage when the evidence shows that he was having an affair with another woman at that time and continued on until expulsion of the petitioner from the matrimonial home and the petition for divorce.

There were allegations by each party that the other party had contracted venereal disease during the marriage but on the evidence I do not find either allegation established to my satisfaction and that matter I do not take into account.

The petitioner alleged that the respondent inflicted blows on her and physically wrested her children from her on 11th May, 1978. The respondent denied he inflicted blows on her but said he did physically wrest the children away on 18th May, 1978 when petitioner was returned from Mexico. The account of the petitioner that they were punches in her chest and arm is more acceptable since it is reasonable to expect assaults in efforts to wrest two children away from a mother who doesn't want to give them up. But I do not find the evidence shows any more than that the blows were for purpose of obtaining the custody of the children which he thought he should have. On the other hand I also accept that the blows and wresting of her children from her would have a distressing effect on her. The evidence however is not such that I could come to any finding of a matrimonial offence on the part of the respondent in this regard.

The petitioner had alleged in her petition for dissolution, cruelty on the part of the respondent, particulars of which were the contraction of venereal disease by him and his infliction of violence or her. As indicated at the hearing of the petition no evidence was given in relation to these matters and I was asked to consider whether this was not an indication that there was no evidence of cruelty to present. Bearing in mind that the petition was not defended I do not accept it as necessary to give evidence of every ground available to the petitioner. If it was defended I imagine she would not leave her chance of success based on evidence of one ground. The fact that she did not give any evidence at the hearing with regard to cruelty did not affect the matter.

Respondent submitted that the delay of four years of the petitioner in applying for an order for custody ought to be taken into account; for it shows (1) petitioner not vigilant about exercising her rights regarding custody, secondly, children would have been more in need of her from her years earlier, and (3) that petitioner not concerned that custody in petitioner was not in interest of the children. I observed that in the petition for dissolution filed in 1978 there was a prayer for custody. The case was set down for hearing in April, 1980 and heard in May, 1980. Petitioner was given leave to apply. The petitioner says in her affidavit that since the decree she made attempts to effect a voluntary agreement with the respondent with regard to the matter of custody and there is no challenge or denial of this. Accepting this then I did not consider that the lapse of two years from the date of decree before application militates against the petitioner.

I turn first to the question of the custody of the two children. In determining this issue I have a duty under the Infants Ordinance Chapter 186 Section 13(2) to "regard the welfare of the infants as the first and paramount consideration" disregarding whether from any other point of view the father's claim is superior to the mother's and vice versa. I have therefore to consider and weigh all the circumstances that are of any relevance. As stated in J and another v. C and others [1970] A.C. 668 and adopted by me in Action No. 55 of 1980 and other subsequent actions "All the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are to be taken into account and weighed and the course to be followed is that which is most in the interests of the infants welfare."

There are certain main factors appearing on the evidence which I have taken into account. Firstly as to character and conduct of parties as indicated by the responsibility for the break-up of the marriage the mother has the advantage since I find the father responsible for the break-up. Secondly as to the home for the children, the mother has another small advantage in view of the comfort to be enjoyed by three to a house than by seven to similar accommodation. The mother has a third advantage which again is substantial due to the practical consideration that it is better for small children and especially girls to be brought up by their mother. See H v. H & C [1969] 1 W.L.R. 208. Fourthly, as to likely disruption to the children, the father has a slight advantage.

With these main considerations in mind I came to the conclusion that it would be most in the interest of the children's welfare that their custody be granted to the petitioner. The respondent is to have access.

I am to determine also what order to make in relation to certain items of property. The petitioner lists 14 items and says that they were purchased jointly or received as gifts jointly or were her own property given to her and that they should be regarded as joint property. The respondent's retort is that of the 14 items concerned, eight were purchased by him out of a resettlement grant from his employer; one from a loan from his employer; one from a loan from his sister; two he admitted concerned them jointly and one he bought from his own salary on account of an increase thereof. Thus on the evidence I was left with a sharp conflict as to the manner of acquisition of twelve items concerned. On the basis of what was left before me there was no evidence as to which items were gifts to the petitioner alone or to the petitioner and respondent jointly. I was left to decide whether the evidence showed joint purchase of the twelve items concerned. I accepted the evidence that the petitioner worked and contributed to the household expenses; the items being considered are all items for the use of a household. The respondent set up that eight of the items were purchased by him from a grant of $1,000. Without any evidence other than the name of the items, I found it difficult to accept that he purchased even in 1970 out of $1,000 .00, one Sofa and 2 parlour chairs, one gas stove, one dining table and 6 chairs, 2 end tables, one coffee table, one washing machine, one chest of drawers and one wooden locker. He did not state when he got the loan from Government to buy the refrigerator, the loan from his sister to buy the double bed and the back-pay to buy a Stereo Set, but the burden of his retort to petitioner's allegation was that the items of furniture and appliances were bought before petitioner started working which was in 1971 and thus defeating her claim to joint purchase.

Along with the evidence that the petitioner worked and contributed to the household expenses I took into account evidence that her income and the respondent's income were put into a joint account. The evidence as a whole tended to show that the parties acted on a joint basis in these matters. I accepted the evidence of the petitioner that the items were purchased out of their joint incomes and I so find. I consequently hold that each has a beneficial interest in the items concerned. The evidence is not such that I can determine any definite share of the respective interest and in these circumstances I think it just to regard them as sharing equally in the items.

With regard to the amount in value of Canadian Savings bonds in the sum of $3,259.50 (Bze) the evidence is that the bonds were the petitioner's. She hypothecated them as security for a loan made to the respondent. The loan was not repaid as required and the holder of the security used the proceeds of the sale of the bonds towards satisfaction of the loan. There is thus now no sum in existence in respect of which I can make an order in these proceedings. But I have taken into account the fact that she was compelled to discharge the respondent's responsibility to that extent.

Turning now to the question of the sums to be ordered to be paid by the respondent as maintenance. I took all the circumstances of the case into account bearing in mind the factors set out in section 169 of the Supreme Court Ordinance CAP 5 when considering what should be the order in respect of the petitioner and those set out in section 13(2) of the Infants Ordinance (ibid). In addition to the nature and source of the respondent's income and expenses which include support for present wife and a third child. I also considered the income and expenses of the petitioner, the duration of the marriage for eight years, and the earnings of the respondent's present wife.

Taking everything into account I think the order should be as follows:- That the respondent do pay or cause to be paid to the petitioner (1) for the maintenance of herself the sum of $50.00 per month during their joint lives until further order; and (ii) for the maintenance and education of each of the two children Marcella and Stephanie, the sum of $80 per month until further order - each of the said sums to be paid on the last day of every calendar month, the first thereof to be on March 31st, 1983. (iii) that the 14 items of furniture be sold and the wife to have half-share in the proceeds. Judgment accordingly. The respondent to pay the petitioner her costs.

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