L v L
| Jurisdiction | Bermuda |
| Judgment Date | 19 August 2015 |
| Date | 19 August 2015 |
| Docket Number | Divorce Jurisdiction 2011 No 24 |
| Court | Supreme Court (Bermuda) |
[2015] Bda LR 80
In The Supreme Court of Bermuda
Divorce Jurisdiction 2011 No 24
Mr A Richards for the Applicants
Ms J MacLellan for the Respondents
The following cases were referred to in the judgment:
Re J (A Minor) (Abduction: Custody Rights)ELR [1990] 2 AC 562
KS v GSBDLR [2010] Bda LR 63
Spiliada Maritime Corp v CansulexUNK [1986] 3 All ER 843
S v S (Access to Child Abroad: Jurisdiction)BDLR [2011] Bda LR 44
A (Children) (AP) [2013] UKSC 60
M v M (Stay of Proceedings: Return of Children) [2006] EWHC 1159
Re LC (Children) [2014] UKSC 1
Divorce — Care and control of child with autism — Appropriate forum — Transfer of proceedings — Habitual residence
RULING of WADE-MILLER J
1. The parties in this matter are the mother (Petitioner) who is United States citizen, and the father (Respondent) who is a Bermudian.
2. The parties married in September 1995. They have two sons: G (born October 1997) and A [‘child A’, the subject of these proceedings] (born February 1999 in Bermuda).
3. In 2011 the mother filed her petition for the dissolution of the marriage. Decree Nisi was granted in March 2011 and made absolute in June 2011.
4. In these proceedings this Court is concerned with the welfare of a 16-year-old boy (‘child A') who has been diagnosed with autism. Child A's autism has been characterized as a severe disability that affects his day-to-day functioning. This is a developmental disorder that affects the brain's normal development of social and communications skills. Consequently, he requires a significant level of care.
5. The issue before this Court is whether the proceedings regarding the care and control of child A should be stayed in Bermuda and transferred to the jurisdiction of Texas, USA. This is on the basis that Texas is a competent jurisdiction and the most appropriate forum to determine the dispute relating to child A's custody. Central to this matter the Court must make a determination as to child A's habitual residence.
6. In a summons dated 9 June 2015 the mother sought the following relief:
“That all current and future proceedings in relation to the welfare of [child A], to include his custody, and care and control shall be transferred to be heard and determined by the Courts of Harris County, Texas which is the appropriate and most convenient forum.
That the Respondent shall pay the costs of this application.”
7. The matter came before the Court on 22 July 2015.
8. Although there are outstanding applications — such as the mother's 11 May 2015 application, and the father's subsequent applications, to vary the original 30 July 2012 consent order regarding child A — the Court will not dispose of these or any further applications regarding this matter until the question of jurisdiction has been resolved and this decision is completed and circulated. All outstanding issues will be dealt with in Chambers on 20 August 2015.
9. On 30 July 2012 the parties entered a consent order which inter alia granted: both parties joint custody of their two children; the mother permission to remove child A from Bermuda for the sole purpose of enrolment in a special school ‘School A’ in Houston, Texas in time for the start of the 2012/2013 school year; that the mother have care and control of child A when he was in Texas.
10. The Order envisioned that child A would attend school in Texas: he would live with his mother but return to his father during holiday periods.
11. The mother notes in her written submission that under the 30 July 2012 order the father was to have care and control of child A at all times when the child was in Bermuda for holidays. The Order provided that child A would be with his father:
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i. for two weeks over the Christmas and New Year
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ii. during the March and Easter School break
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iii. during the summer holidays from 5 July until the last week of August.
12. From this, Mr Richards (Counsel for the mother) maintains:
“Accordingly it can be seen that [child A] has primarily resided with the [mother] in Texas for approaching 3 years and the [mother] continues to be his primary carer. [Child A] resides with his father in Bermuda for approximately 3 months of the year (25% of the time).”
13. The mother states that since the 30 July 2012 consent order there have been a significant number of proceedings and that these are largely due to the father's failure to comply with court orders; his refusal to communicate with the mother; and his reluctance to act in a manner which is in the child's best interest. She gave examples of some of these events in her written submission.
14. Mr Richards submits:
“The [mother] has formed the view that the [father] will continue to take steps to make it impossible for [child A] to thrive in Texas, especially whilst the court proceedings remain in Bermuda. The [father] knows fully well that he can refuse to engage with the [mother] and refuse to agree over even minor issues regarding schooling/therapeutic needs of [child A] as the [mother] will be required to bring matters back before the Supreme Court of Bermuda for a decision. When the [mother] took active steps to manage the [father's] ability to control the proceedings in this manner, the [father] simply renewed his application for care and control. The [father's] position is reactionary and the application is made to spite the [mother]. If the [father] was really concerned for [child A's] care he would have pursued the application in the summer of 2014. The [mother] states that this is little more than the [father's] continued controlling behaviour which stymies [child A's] development. The court is referred to the extensive history in this matter and will be familiar with the conduct of the [father].”
15. Mr Richards submits that in order for the proceeding to be transferred, the Court will need to order that the proceedings in Bermuda, in so far as they relate to the issue of custody, care and control of child A, be stayed.
16. He then refers the Court to Schedule 1 section 8(2) of the Matrimonial Causes Act (MCA) 1974:
“(2) In considering the balance of fairness and convenience for the purposes of paragraph (1)(b), the court shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed.”
17. Mr Richards continues:
“In the case of KS v GSBDLR[2010] Bda LR 63 Simmons J held that in an application for a stay of proceedings and transfer of divorce proceedings, the applicable principles were to be derived from the House of Lords case of Spiliada Maritime Corp v CansulexUNK[1986] 3 All ER 843.”
18. Mr Richards stressed inter alia that in Spiliada Maritime Corp v Cansulex [supra] the House of Lords held that where proceedings were continuing in one jurisdiction, a party could apply to the court to exercise its discretion to stay proceedings on the ground of forum non conveniens.He asserts that under Spiliada:
“The burden is on the applicant to satisfy the court that there was another forum having jurisdiction which was the “appropriate forum” for the action. What constitutes an appropriate forum is determined by consideration of where the case could be tried more suitably for the interests of all the parties and for the ends of justice. In this context, the court had to look for connecting factors pointing to another forum. The Court is looking for the most natural forum …
If the court concluded that there was no forum more appropriate for trial of the action, it would normally refuse a stay. If it concluded that there was, it would normally grant a stay, unless the plaintiff showed that there were special circumstances by reason of which justice required that a stay should nevertheless not be granted.”
19. Applying Spiliada to the facts Mr Richards submits that Texas is a forum with competent jurisdiction for this matter because child A resides in Texas:
“In light of the fact that [child A] has been resident in Texas for almost 3 years, the Texas Courts have jurisdiction over [child A]. The Bermuda Order has already been registered in Texas for the purposes of enforcement and recognition.
The Court is referred to the short letter provided by Counsel in Texas which confirms that given the length of time [child A] has resided in Texas, the fact that he attends school in Texas and that the evidence regarding his care, the services available and his personal relationships is located in Texas that he has ‘significant connections’ with Texas and therefore that Texas ‘would be able to exercise jurisdiction’”.
20. Mr Richards argues that Texas is an appropriate forum because:
“(a) [child A] has resided primarily in Texas for almost 3 years pursuant to the court order. [child A] is habitually resident in Texas … and ordinarily the court where the child is habitually resident will be the most suitable to hear the case.
(b) The success of [child A's] schooling is a central factor in this case. The most appropriate forum to determine what schooling is available to [child A] and whether he is thriving in that environment is the local court where he attends school.
(c) The Texas court is in a far better position to hear evidence from those experts involved in [child A's] care. It would be impractical and almost impossible for a social worker in Bermuda to interview all of the people involved in [child A's] life for the social inquiry report. Moreover, the court could not practically hear evidence from all of the important people in [child A's] lives. The Texas court could far more readily gather information and hear testimony...
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