EF v LF

JurisdictionBahamas
JudgeMadam Justice G. Diane Stewart
Judgment Date16 September 2022
CourtSupreme Court (Bahamas)
Docket Number2022/FAM/div/00090
Between
EF
Petitioner
and
LF
Respondent
Before:

The Hon. Madam Justice G. Diane Stewart

2022/FAM/div/00090

IN THE SUPREME COURT

FAMILY DIVISION

Family Law — Recusal application — Petitioner's right to a fair hearing by an independent and impartial tribunal

Appearances:

Mrs. Janet Bostwick-Dean and Mr. Tavarrie Smith for the Petitioner

Mrs. Lillith Smith-Mackey and Nicholette Burrows for the Respondent

RULING
1

The Petitioner seeks my recusal from these proceedings. Through his Counsel, he initiated the request for my recusal, by letter dated 18 th April 2022. The said letter in summary requested the Court's recusal on the basis of actual or apparent bias stemming from the granting of an ex parte order made on an urgent ex parte application which granted care and control to the Respondent arising from inter alia the Petitioner's absence from the jurisdiction. The Respondent also had filed a separate summons to vary the Order made in 2018 granting the parties joint custody with care and control to the Petitioner.

2

Thereafter, the Petitioner alleges that the Court made a decision to prohibit him from leaving the jurisdiction or from removing the couple's minor child from the jurisdiction. The Petitioner further continued that on the initial order made in 2018, there was no restriction on movement placed on the Respondent. Accordingly, there was bias in favour of the Respondent, as the mother. The Petitioner further contended that the Court did not have the jurisdiction to appoint an expert to interview the minor child and that the Court was preventing the child from attending school in person in order to be with the Respondent.

3

The letter additionally contended that at the hearing to discharge the ex-parte Order, the Court in one breath stated that it would not change its order but in another breath stated that it would fully consider the application at an inter partes hearing. He also contended that his Counsel was not given an opportunity to be heard during the same.

4

I instructed Counsel to make a formal application which was made by Notice of Case Transfer and supported by the Fourth Affidavit of EM which exhibited the third Affidavit of EF both filed 28 th April 2022 (the “Recusal Application”). The basis of the Recusal Application is that a fair and impartial trial cannot be had or might appear not to be had pursuant to the Constitution, the common law and the rules of natural justice.

5

The Respondent opposes the Recusal Application and relies on her affidavit filed 20 th June 2022 in support (the “Respondent's Affidavit”).

The Recusal Application
6

The Petitioner avers that on 14 th March 2022, after an ex-parte hearing on an application made by the Respondent (the “Ex-Parte Hearing”), an ex-parte order was made against him which was based on meritless claims and resulted in the immediate removal of his son, EF IV (the “Child”), from his care and control to that of the Respondent (the “Ex-Parte Order”). He claims the abrupt removal was not justified as the evidence in support of the Respondent's application was lacking.

7

He was shocked at the Ex-Parte Order as he had only recently filed a complaint against the Respondent a week prior due to her failure to return the Child when she was supposed to which caused the Child to miss several days of school. The Petitioner considers the stripping of his care and control of the Child as beyond bias and reckless without any consideration for what was in the best interest of the Child, only what was in the best interest of the Respondent.

8

The Petitioner avers that at the hearing of his application for a stay of the Ex-Parte Order on the 16 th March 2022 (the “Stay Application”), his Counsel was rushed through the application and that his facts which refuted the Respondent's baseless allegations were ignored. The Court's comments that the Child was with his mother overlooks the fact that a mother could possibly bring harm to her own child.

9

Once he realized that the Ex-Parte Order was not being set aside he sought to arrange to visit the Child. Despite claims that a child progressed better with in person learning as opposed to online learning, the decision was made to allow the Child to remain in Eleuthera with the Respondent where he would be allowed to visit him provided he gave twenty four hours' notice. The Petitioner avers that he has been treated as if he would hurt his Child.

10

He was baffled by it all and found the decision to be very biased against him as a father because the original custody, care and control order made in December 2018 never placed such restrictions on the Respondent who had been given access and visitation of the Child. His reference to a social services report made in 2018 (the “2018 Social Services Report”) was also ignored which seemed to be based on the Court's perception that the Child was with the Respondent, his mother.

11

On the 17 th March 2022, he had filed a Summons for leave to appeal the interim orders made by the Court on the 14 th March 2022 and the 16 th March 2022 (the “Leave to Appeal Application”). Upon writing to the Court for a date for the hearing of the application he was informed by the Court's clerk to seek a date from the judge on duty at the time of the filing. To his mind this meant that the Court had washed its hands of the matter while his Child remained in the care of the Respondent and the interim orders remained in place.

12

The Petitioner finds this to be unfair and prejudicial towards him. Thirty minutes later, he was informed that the Court would hear him on what he assumed was his Leave to Appeal Application. He felt “whiplashed” and confused as to whether the judge was or was not going to hear him.

13

The Petitioner avers that the Respondent illegally kidnapped the Child which the Court continues to ignore. This claim stems from the Respondent requesting to pick up the Child from school on or about the 24 th February 2022 when the Child was not scheduled to visit with her. The Respondent had failed to return the Child by Monday, February 28 th 2022 and he had missed school. He was unable to contact the Respondent until Tuesday, the 29 th February 2022.

The Respondent's Opposition to the Recusal Application
14

The Respondent avers that the Court made its ex parte ruling based on the fact that the Petitioner had left the island without notifying her of the change in the Child's circumstances and had left the child with his mother, access to the Child was continuously restricted and there were concerns about the Child's psychological disposition. To her mind, the Petitioner saw no fault in vacating his parental duties and delegating them to his mother as he stated that he has been treated as if he had done something wrong. She and the Petitioner shared joint custody which was completely disregarded by him.

15

During the Stay Application there was no evidence that the Court worked against the best interest of the Child. Her understanding of joint custody was that if the child was not with one parent then the other parent had a right to raise him. The decision to have the Child raised by the Petitioner's mother for an extended period of time should have been discussed and agreed prior to his making the decision unilaterally. The Respondent avers that the Court simply transferred care and control from one absent parent to the other. She was not sure about how the Court could be perceived as rushed when the Petitioner admitted that he was out of the jurisdiction and had confirmed that the Child was with his mother. The application was premised on the Respondent's belief that the Petitioner was moving to the United States.

16

The Child was able to continue classes as normal despite not being equipped with the tools needed due to the Petitioner's mother's refusal to return his belongings. The Child instead had to share use of her work computer, despite the Court's order and despite being compelled to by the officers of the Western Police Station. The Respondent disagreed with the Petitioner's accusations that his Counsel was unable to raise a number of issues but instead recalls his Counsel arguing her points robustly. Such issues included the concern about the Child being able to attend school, the opinion of the virtual education being a poor quality and the Petitioner's absence from the jurisdiction.

17

The 2018 Social Services Report was referred to many times in the inter partes hearing, in addition to a police report made by the Petitioner's mother who had claimed that she had kidnapped the Child despite his mother's failure to outline the surrounding circumstances in her communication with the Petitioner. The Court did not rush or ignore the Petitioner's Counsel but made it clear what issues would be addressed at the inter partes hearing. The Court stated that its primary concern was the well-being of the Child over the interests of either parent. The Petitioner was given the right to provide the Respondent with 24 hours' notice of his intention to travel to Eleuthera to spend unsupervised time with the Child and return him to her before he left the island.

18

The emails sent to the Court by the Petitioner's Counsel were improper, despite this, the Court responded and entertained the parties during the hearing of the Stay Application. The Petitioner's concerns were addressed expeditiously. She recalled that the Petitioner's Counsel was given the opportunity to make her accusation regarding the kidnapping and in return her Counsel had clarified for the Court that the Child was not kidnapped but taken by her when she found out that the Petitioner had relocated to another country and had delegated his duties to his mother for an indefinite period of time. The Petitioner acknowledged that he was notified by email.

19

The Respondent was of the view that because the Petitioner failed to comprehend the...

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