Adderley v Adderley et Al
| Jurisdiction | Bahamas |
| Judge | Albury, J. |
| Judgment Date | 20 July 2006 |
| Court | Supreme Court (Bahamas) |
| Docket Number | FAM/DIV/277 of 2005 |
| Date | 20 July 2006 |
Supreme Court
Albury, J. (Ag.)
FAM/DIV/277 of 2005
Ms. Hope Strachan for the petitioner
Mr. Roger Gomez Jr. for the respondent
Mrs. Stephanie Wells for the co-respondent
Family law - Divorce — Adultery — Physical and mental cruelty — Adultery was condoned — Acts of cruelty not condoned — Attempts at reconciliation coupled with counselling did not amount to condonation — Departure from normal standard of conjugal kindness — Petition granted — Cross-petition dismissed.
Albury, J. (AG.):The parties were married on 2 August 1994; after the marriage they cohabited at Cumberbatch Alley, New Providence. There are two minor children of the marriage. It is common ground between the parties that they are both domiciled in The Bahamas, that there were no previous proceedings concerning the marriage and that the petition is not presented or prosecuted by collusion between them.
By a petition filed on 20 May 2005, the petitioner/wife seeks a divorce on the grounds of the respondent/husband's cruelty. In an answer and cross-petition filed on 18 July 2005, the respondent denies treating the petitioner with cruelty and seeks a divorce on the grounds of the petitioner's cruelty and her adultery with the co-respondent Crestwell Gardiner. In her reply filed on 25 July, 2005 the petitioner denies the allegations of cruelty and adultery contained in the answer and cross petition.
The petitioner, who is employed as a financial officer, testified that throughout the marriage the respondent subjected her to both physical and mental cruelty, relating several incidents of her husband's cruelty to her.
One occasion of physical cruelty by the respondent, the petitioner said, was precipitated by a visit to the matrimonial home in Cumberbatch Alley by Ms. Tervaine Hall, with one of the children that she has for the respondent. When the petitioner quarrelled with the respondent about this, she said, he reacted angrily and beat her about the body with his police baton.
Another occasion of the respondent's physical cruelty to the petitioner occurred when there was water damage to the engine of the respondent's car, which occurred while the petitioner was driving it. The petitioner testified that the respondent physically attacked her because of this: he put his hand around her neck, pulled her up off the floor and shook her. During the five days until the new engine, which she purchased, arrived, the respondent would walk around the house at night menacing her with a screwdriver. She testified that she was so fearful because of the respondent's actions that she was very uncomfortable and unable to sleep.
The petitioner testified that another incident of the respondent's physical cruelty to her occurred one night in March, 2001 when the respondent returned home drunk. He pulled her out of the bed, threw her up against the wall and hit her head against the television. As a result, the petitioner's head hit the dresser and she fell to the floor. When the respondent finally fell asleep she packed up her belongings. As a result of this beating, the petitioner said, she left the rented premises at Cumberbatch Alley and moved into the triplex building she was constructing at Cox Way. The petitioner was five months pregnant at the time.
According to the petitioner, after the birth of their second child she and the respondent reconciled. The respondent divided his time between the apartment at Cumberbatch Alley, which he still maintained, and the Cox Way residence. However the respondent at times continued his argumentative behaviour toward her, and whenever this occurred she would tell him to leave, as she was not prepared to suffer the same abuse as she formerly did, in her own place.
The final incident of the respondent's cruelty related by the petitioner occurred on 8 May 2005 in the parking lot of Fidelity Bank, when the respondent attacked her as she attempted to remove his car which was blocking the path of her vehicle. He punched her three or four times causing damage to her ear drum. The petitioner received medical treatment for this injury.
The petitioner testified that the respondent was mentally cruel to her through his extramarital affairs with other women and his continuing relationship with Ms. Hall, with whom he had two children. She learned of the first child's existence six months after their marriage; the second child was born eleven months after their marriage. The petitioner discovered, during the course of an argument between herself and the respondent, that Ms. Hall was having a second child for the respondent.
The respondent would often compare the petitioner unfavourably to Ms. Hall, both in her appearance and sexual attractiveness to him. This verbal abuse, she said, caused her to become withdrawn and she felt trapped in the relationship.
The petitioner testified that she, in an effort to determine whether she could form a relationship with her husband's other children, agreed to have them participate in a family vacation. During that vacation the respondent humiliated her when he made unfavourable comparisons between her children and Ms. Hall's children. This treatment by the respondent caused her great distress.
The petitioner related, as other instances of the respondent's mental cruelty, his failure to assist financially with the family expenses except for paying the rent, his frequent long absences from the matrimonial home and his refusal on two occasions, to continue marital counselling together. Eventually they both separately attended Dr. Timothy Barrett for counselling.
As to the issues raised in the respondent's answer and cross-petition, the petitioner denied treating him cruelly. She characterized the co-respondent as a friend whom she played on a sporting team with. She also denied that she and the co-respondent were having an affair, or admitting extramarital affairs between herself and anyone else to the respondent. She denied belittling the respondent in the presence of their children. However, she allowed that they were sometimes present when she and the respondent argued.
During cross examination the petitioner maintained that she and the co-respondent were only friends and that on the night in question he had assisted her in adjusting the battery cables on her car, and afterwards she gave him a lift to his vehicle which was parked in the bank's parking lot. She denied the suggestion that she had built the triplex behind her husband's back, but admitted that she had started the construction at Cox Way because she and the respondent were not getting along and after her husband declined to attend bank interviews to obtain a mortgage. The petitioner admitted that in 2003 the respondent had agreed to attend counselling and they all went on another family vacation. She also confirmed that she had discontinued divorce proceedings which she commenced in 2000.
Mr. Jarvis Grant, a DJ at the Living Room night club, also gave evidence on behalf of the petitioner, whom he knew for approximately six months and who was a member of his volleyball team. On the morning of 8 May 2005 he was in the Fidelity Bank parking lot with his girlfriend. He observed a car pull into the parking lot and the passenger, whom he recognized as the co-respondent, emerged from the vehicle. He testified that nothing else happened between the driver and passenger because within seconds thereafter, a second car arrived and blocked their vehicles in. The lady, whose identity he did not know at the time, then tried to move the vehicle blocking her path. The driver of the second car then went over, slapped her, said a few words to her, and then slapped her again. Afterwards he heard the driver of the second car tell the lady to go and report the matter to the police, they could do nothing to him. Two other men, whom he assumed to be police officers, arrived there. By then the co respondent had left the scene.
During cross examination, when challenged concerning the accuracy of his recall of the events in the parking lot, Mr. Grant attributed his very clear recollection to the fact that at the time of the incident he and his girlfriend were similarly engaged in discussions about his alleged ‘sleeping around’. He maintained that the occupants of the first car to arrive did nothing more when they pulled up because the other car which blocked them in arrived only seconds later.
Patrice Smith, who had formerly lived in the same apartment complex as the petitioner and the respondent, testified that she and the petitioner were close friends and often went out dancing at the club together. On the night in question she and the petitioner were at the club with other female friends, when Cressie, as she called the co-respondent, joined them. He danced with them individually, but he was not especially attached to any of them. During cross-examination, she said, the petitioner and co-respondent were interacting with each other on a purely social, rather than intimate level. She did not give an exact date when she and the petitioner “bucked up” in a club and they started regularly going out together. She described the co-respondent as a regular at the club who danced with all the females there.
The co-respondent, who is a banker, denied committing adultery with the petitioner. He testified that on the night in question he had spent a few hours at the club, until closing time. He then escorted the petitioner, who was a member of his softball team for the past six years, to her car, where he assisted her with starting her car. She afterwards gave him a ride to the bank's parking lot where he had left his car. There he was accosted by the respondent who accused him of having an affair with his wife. He denied being found in a compromising position with the petitioner in the...
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