A.R.M.F. v A.J.F

• Jurisdiction: Bermuda
• Judge: Shade Subair Williams J
• Judgment Date: 23 July 2018
• Neutral Citation: [2018] SC Bda 61 Div
• Docket Number: DIVORCE JURISDICTION 2016 No: 100
• Court: Supreme Court (Bermuda)
• Date: 23 July 2018

[2018] SC (Bda) 61 Div

In The Supreme Court of Bermuda

Williams, J.

DIVORCE JURISDICTION 2016 No: 100

Between:

A.R.M.F

Petitioner (Wife)

and

AJ.F

Respondent (Husband)

Petitioner Adam Richards, Marshall Diel & Meyers Limited

Respondent Jai Pachai, Wakefield Quin Limited

Consolidated Cross-Applications for Ancillary Relief - Financial Provision Orders for Children Legal Principles on Property Adjustment Orders and Avoidance of Disposition Orders (Matrimonial Causes Act 1974 Part IV / Matrimonial Causes Rules 1974 Rules 68 – 84)

JUDGMENT of Shade Subair Williams J

Shade Subair Williams J

Introduction

1 The Petitioner (“the Wife”) and the Respondent (“the Husband”) were married in 1998. They separated in June 2016 and a Decree Absolute was pronounced after more than 18 years of marriage in June 2017. There are two children of the marriage, one born in 1999 now being 18 years of age, (“the Daughter”) and the other born in 2003, now being 15 years of age (“the Son”) (collectively “the children”). Both the Wife and the Husband are professionally qualified and are engaged in full time employment.

2 The litigation in this case has a long history, having first begun over eight years ago in 2010 with divorce proceedings. The Court file is made up of nine separate volumes and there are multiple trial and submission bundles filed with the Court. Numerous applications in respect of the children have been heard previously.

3 This matter is currently before the Court on the consolidated action of the parties' respective ancillary relief applications made pursuant to Rule 68(1) of the Matrimonial Causes Rules 1974.

Background Proceedings

4 By Court Order made on 30 March 2017, the learned Justice Nicole Stoneham ordered the parties to file affidavit evidence with respect to ancillary relief applications which had not yet been filed. The Court's direction for affidavit evidence was perhaps premature in that it pre-dated the parties' Notices of Ancillary Relief Applications by nearly 6 months. It is worth noting that the procedural steps relating to the filing of evidence for ancillary relief applications has been outlined in my earlier ruling in C.I.C v K.L.C [2017] SC (Bda) 104 Div (1 December 2017)).

5 On 22 June 2017 Stoneham J fixed the substantive hearing of the ancillary relief applications for a three day hearing on 14–16 August 2017. At this point, the parties still had not filed any notices of their applications for ancillary relief, nor were they directed to do so by the learned Judge. Notwithstanding, Stoneham J ordered the parties to make their respective disclosure requests pursuant to Rule 77(4) within a 28 day period as the parties had at that point each filed affidavit evidence in April 2017.

6 On 10 August 2017 Stoneham J affirmed the 22 June Order but vacated the fixed August trial by consent between the parties. The Court directed the filing of Notices of Applications for Ancillary Relief and further gave liberty to each party for the filing of one further affidavit addressing section 29(1) of the Matrimonial Causes Act 1974. The Court's minimal management and lenient approach to the issuance of directions for the filing of further evidence is seemingly unfortunate. The Court's order permitting the additional evidence was made in the following broad terms: “… which have not already been dealt with in the parties' prior affidavits.”

7 The Wife filed a Notice of Application for Ancillary Relief dated 19 September 2017. Therein, she provided notice of her application for periodical and or lump sum payments in respect of her and the children in addition to a property adjustment order in relation to the matrimonial property located in Hamilton Parish (“the former matrimonial home”).

8 The next day, the Husband filed a Notice of Application for Ancillary Relief on 20 September 2017 for secured and regular periodical payments and a lump sum provision order. The Husband's notice further stated that ‘ issues of maintenance, educational expenses for the children, property adjustment, lump sum payment and costs in this case to be determined’.

9 On 3 October 2017 the then Acting Registrar, Rachael Barritt, issued directions for the Respondent to file an affidavit of means by way of reply and furtherance of Stoneham J's 10 August Order. The Petitioner was given leave by the learned Acting Registrar to file further affidavit evidence. On this occasion, no directions whatsoever were given to restrict or manage the scope of the additional evidence to be filed. Leave to be heard in resolve of Rule 77(4) disclosure requests was given under the same directions order.

10 On 14 November 2017 the parties appeared before me in my former judicial capacity as Registrar. I heard the parties on their respective disclosure issues and adjourned the matter for mention to Tuesday 19 December 2017.

11 The 19 December 2017 fixture was delisted and a Consent Order dated 22 December 2017 listing this matter for trial before Stoneham J on 5–6 February 2018 was signed by me upon the express written confirmation by the parties that all disclosure requests had been complied with. Directions for the attendance of the parties for cross-examination were provided and further directions were given for the filing of an agreed bundle and skeleton arguments.

12 On 2 February 2018 the Wife filed a summons for an avoidance of disposition order pursuant to section 41 of the Matrimonial Causes Act 1974 so to set aside “ the Respondent's actions in dissipating the matrimonial funds held in the HSBC account number …-51, being a reviewable disposition…” Stoneham J adjourned the trial on 5 February 2018 and directions for the filing of affidavit evidence and a two-day hearing on this summons were made.

13 Correspondence between the Court and the parties followed on 8 and 9 February 2018 in search of an agreed hearing date and in respect of the urgent need for an available Judge to determine this matter which led to the matter being listed before me for trial.

The Evidence

14 Multiple affidavits and exhibits were filed in relation to these proceedings and both parties gave evidence on the stand, tested by several hours of cross-examination.

The Evidence on the Children (Post-Separation Expenses)

15 Much of the evidence was about the expenses each party incurred on the children post-separation. The Wife claimed to have spent an approximate total of $100,000 on the children collectively while the Husband stated in evidence that he spent $23,058 on the Daughter and $27,485 on the Son, totaling $50,543.

The Evidence on the Son

The evidence on the Son's Living Arrangements

16 Under the 30 March 2017 Order made by Stoneham J, the Husband and Wife were assigned joint custody of the Son with shared biweekly access. The Husband's two-week custody periods are spent in the former matrimonial home. For the Wife's custody periods, the Son returns to her care in her 2-bedroom apartment which she rents from her mother.

The evidence on the Son's High School Education in US

17 The Husband's evidence is that he spent $21,000 on the Son's high school education in a US high school (“the US school”). The Wife queried this sum on the strength of a letter she received wherein the fees were stated to be $20,000.

18 The Wife told the Court that the Son attended this school overseas from September 2016 to April 2017. She said he missed the first month of the school year which started in or around August 2016. He further missed the last month of the school year in May, following the Easter holiday. The evidence on how the Son came to leave this high school before the formal close of the school year need not be recited; save to say, the Husband seeks a reimbursement from Wife for these school fees because he holds her responsible for the Son's absence in the final month. This absence, says the Husband, amounts to a breach of Stoneham J's previous direction. The Husband said in his evidence in chief that the non-completion of the final term and surrounding factors ‘ really set our son back to the point where he had to get therapy and go to special educational endeavors’.

19 The Wife opposed the Husband's claim for reimbursement. On her case, the Son was not made to repeat the school year and he only missed the non-academic “Spring Phase” tail end of the school year, having already completed the final exams before he departed for Bermuda. The Wife also reiterated that she encouraged the Son to complete the school year and that she played no part in any attempt to waste school fees expended by the Husband.

The evidence on the Son's High School Education in Bermuda

20 The Son attended two separate high schools in Bermuda. I shall simply refer to the first school as the Academy and the second school as the Institute. The Son attended the Institute having returned to Bermuda from the US high school.

21 The annual tuition fees for the Institute approximated $13,500 and the Wife has expensed this tuition from her Bank of Butterfield account which I address further below.

The Evidence on the Daughter

The evidence on the Daughter's Living Arrangements

22 The parties were at conflict on their respective descriptions of the living arrangements of the Daughter. The Husband stated that the Daughter resides with him in the former matrimonial home where she also grew up. However, the Wife told the Court that the Daughter only overnights at the matrimonial home during the Husband's two week access periods with the Son.

The evidence on the Daughter's High School Tuition

23 The Husband's evidence was that he spent $3661 on high school tuition fees in August 2016.

The evidence on the Daughter's SAT Course

24 Prior to her summer employment, the Daughter engaged in an SAT preparatory course in the US. The Husband asserted that this was a 2 month program and curiously stated in his fourth...