O v O (Ancillary Relief)
| Jurisdiction | Bermuda |
| Judgment Date | 05 April 2019 |
| Date | 05 April 2019 |
| Docket Number | Divorce Jurisdiction 2016 No 33 |
| Court | Supreme Court (Bermuda) |
[2019] Bda LR 27
In The Supreme Court of Bermuda
Divorce Jurisdiction 2016 No 33
Mr A Richard for the Petitioner
No appearance for the Respondent
The following cases were referred to in the judgment:
Miller v Miller; MacFarlane v MacFarlane[2006] UKHL 24
R v R [2019] Bda LR 7
White v White [2001] AC 596
Howe v Howe (unreported 14 March 2016)
Final application for ancillary relief — 20 year marriage, 2 children — Maintenance for children, lump sum and property adjustment order — Lack of financial disclosure
JUDGMENT of Wheatley R
1. The parties were married for approximately 20 years. There are two children of the family aged 11 and 9 years old respectively. Whilst Decree Absolute was granted on 12 June 2017, the Respondent did not vacate the former matrimonial home located in Smith's Parish (“the FML”) until October 2017. This was predicated upon the Petitioner obtaining a Temporary Protection Order requiring the Respondent to vacate. The Petitioner has sole care and control of the children of the family.
2. The Petitioner filed an application for Ancillary Relief on 15 September 2017 (“the Application”) seeking: periodical payments for the children of the family, a lump sum payment, a property adjustment order in relation to the FML and such further relief as may be deemed appropriate.
3. The Respondent was initially represented by Counsel, but they subsequently made an application to be removed as attorneys of record which was granted. Despite numerous orders made by the Court by way of case management directions, the Respondent failed to comply with any terms. I am fully satisfied the Respondent has been served with every order the Court has made subsequent to his Counsel being removed as attorneys of record, as well as being satisfied he was served with the Notice of Hearing for this final hearing. Thus, resulting in the Respondent not filing any affidavit evidence and this hearing proceeding in his absence.
4. The Petitioner's evidence was clear, succinct and supported by documentary evidence. The Petitioner relied on her Affidavit sworn on 15 October 2018, as well as provided viva voce evidence at the hearing updating her financial position since the filing of her Affidavit. I have no reason to doubt the Petitioner has presented an accurate picture of her financial circumstances as well as her understanding of the Respondent's financial position.
5. Since the Respondent vacated the FML in October 2017, he has been residing in his mother's property which the Petitioner understands has been left to him free and clear of any debt. The Respondent has not made any contribution to the expenses of the FML since he vacated.
6. The Petitioner's monthly income is approximately $30,000 per month which she obtains from various roles. In Counsel for the Respondent's letter dated 21 July 2017, the Respondent alleged his monthly income as being $6,747 per month. Mr Richards reiterated the lack of evidence to support the Respondent's income. The Petitioner also gave evidence that during the marriage, the Respondent at times earned between $8,000 and $10,000 per month. Her evidence is the Respondent is simply choosing not to earn the level of income he has previously been able to.
7. Furthermore, the Petitioner gave evidence the Respondent owns a taxi (and taxi permit) which he inherited from his father. Rather than taking advantage of the use of the taxi to earn extra income, the Respondent allows his brother use of it and the income produced is kept solely by his brother. Again, I have no reason to doubt the veracity of the evidence provided by the Petitioner and find the Respondent can be obtaining an additional source of income from the taxi if he chose to do so.
8. In regards to expenses, the Petitioner's evidence (see pages 250 to 252 of the Exhibits to the Petitioner's Affidavit) is that her monthly household expenses amount to $14,012.45. This is inclusive of the mortgage secured against the FML which is approximately $8,200.00 per month. The Petitioner lists her personal expenses as being $5,894.00 per month. This sum includes monthly payments towards credit card payments which are currently maxed out. In terms of the children's expenses, the Petitioner presented them as being $3,975.00 for each child; i.e. $7,950.00 per month for both children. The large expenses for the children include $2,000.00 per month for babysitting and $3,350 for school tuition. Despite the babysitting expense seeming quite high, the Petitioner confirmed the Respondent exercises no access to the children and has not done so since separation. Therefore, the sole burden for their daily care rests with the Petitioner who has a professional employed position on a full-time basis. In these circumstances and given the high cost in Bermuda for child-care, this is a more than reasonable sum. The Petitioner's total monthly expenses are...
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