A v B

JurisdictionBahamas
CourtSupreme Court
JudgeBain, J.
Judgment Date20 Mar 2015
Docket NumberFAM/DIV 214 of 2012

Supreme Court

Bain, J.

FAM/DIV 214 of 2012

A
and
B
Appearances:

Mrs. Lillith Mackey for the petitioner

Mr. Lennox Coleby for the respondent

Family Law - Husband and wife — Children — Application to vary an order — whether the court should order specified access for respondent — Whether offer should be varied allowing petitioner to purchase respondent's interest in matrimonial home.

Bain, J.
1

(1) By Summons filed 23 October 2014 the petitioner made application — “for an order that the Order filed herein on December 13th, 2013 be varied and in particular that the petitioner purchase the respondent's interest in the matrimonial home for the amount based on the purchase price of $400,000.00 less the mortgage and what is owed to the petitioner and the respondent has specified access to the children of the marriage.”

2

(2) In support of this application the petitioner filed an Affidavit on 23 October 2014; a further Affidavit on 14 November 2014; an Affidavit in response to the respondent's Affidavit filed on the 19 November 2014 and on February 2015.

3

(3) The respondent filed an Answer on 12 November 2014 and a Supplemental Answer on 19 November 2014.

4

(4) By a Consent Order filed 13 December 2013 it was ordered —

  • “(a) CUSTODY: That the petitioner and the respondent shall be granted joint custody of the minor children of the marriage namely, BM (m) born on the 7th day of March, 2001, AM (m) born on the 20th day of January, 2006 and AM (m) born on the 18th day of December, 2007 (“the children”) with day to day care and control to the petitioner and reasonable access to the respondent.

  • (b) MAINTENACE: That the petitioner shall collect the rental income from one of the duplex units which is the matrimonial home situate at No. 74 Mount Vernon Subdivision in the Eastern District of the Island of New Providence until such time as the matrimonial home is sold and thereafter the respondent shall pay the sum of $1,000.00 per month by way of maintenance on or before the 28th day of each calendar month until the children attain the age of 18 years.

  • (c) SCHOOL FEES: shall be shared equally between the petitioner and the respondent following the sale of the matrimonial home until such time the petitioner shall be responsible for the school fees.

  • (d) EDUCATIONAL EXPENSES: that the respondent shall pay to the petitioner the sum of $600.00 every August to assist with back to school expenses of the children on or before the 10th day of August commencing the 10th day of August 2014 and continue each August thereon until the children attain the age of 18 years.

  • (e) HEALTH EXPENSES: that the medical, optical and dental shall be shared equally between the petitioner and the respondent until the children complete secondary education.

  • (f) MATRIMONIAL HOME. that the matrimonial home shall be sold and the net proceeds be shared equally between the respondent and the petitioner; and that $5,000.00 from the respondent's share of the net proceeds from the sale of the matrimonial home shall be paid to the petitioner as monies due and owing. That the respondent shall pay the mortgage until such time as the matrimonial home is sold.

  • (g) TIME SHARE: that the Time Share shall be sold and the petitioner and the respondent shall equally share the expenses associated with the Time Share situate at Westgate Lakes Orlando, Florida.

  • (h) CREDIT CARD: that the respondent shall pay Scotiabank the sum of $8,420.00 as half payment for the amount owed on the Credit Card after the house is sold until such time the petitioner shall continue to make the monthly payments for the Credit Card.

  • (i) COST: that each party shall bear their own cost.

  • (j) That each party shall have liberty to apply.

  • AND THE COURT DECLARES that there are three children of the marriage to whom Section 73(1)(b)(i) of the Matrimonial Causes Act, Chapter 125 applies namely, BM (m) born 7th March, 2001 and AM (m) born on the 18th day of December, 2007 and that the arrangements made herein are satisfactory.”

5

(5) There are two issues to be determined.

  • (i) Specified access to the children of the marriage

  • (ii) petitioner's offer to purchase the matrimonial home

(1) SPECIFIED ACCESS
6

(6) In her Affidavit filed 23 October 2014 the petitioner stated —

  • “19. … Since the incident when the respondent removed the door the respondent been unreasonable when he has access to the children of the marriage. I have been informed from the oldest child that the respondent drinks and drives reckless while the children are in his care.

  • 20. On another occasion the respondent had the children of the marriage, after drinking all day when the respondent and the children returned to the respondent's resident to sleep, the respondent urinated on the bed.

  • 21. The respondent has displayed that he is not responsible to have the children in his care for overnight visits.

  • 22. The respondent constantly calls me cussing me and calling me the most nasty names regarding our current situation.

  • 23. On one occasion the respondent called me at my office and told me to “keep my fucking children” I took that to mean that he would no longer collect the children from school or have his regular visits with them.

  • 24. Due to the respondent's excessive drinking some days he is lucid and other days he is very aggressive. I do not wish to have our children exposed to this behavior.”

7

(7) The respondent denied the allegation with respect to the children.

8

(8) At the hearing in December 2014 the court made an order for the respondent to have access to the children over the Christmas holiday. The petitioner and the respondent were encouraged to communicate with each other so that the respondent would have access to the children of the marriage on his days off.

9

(9) At the hearing on 25 February 2015 the court indicated that it was not minded to order specified access as the respondent worked on shifts and was unable to commit himself to any specified schedule for access. At present the respondent has one fixed day off per week and has access to the children on that day. The petitioner and respondent were encouraged to communicate with each other in order to ensure that the respondent had access to the children when he was not working.

10

(10) The court also ordered the petitioner and the respondent to attend parenting classes conducted by the Department of...

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