FULLER v. O’BRIEN TT 2015 HC 7

Citation:           TT 2015 HC 7

Title:                 FULLER v. O’BRIEN

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH 01677/2011; FH 02354/2011

Judge(s):          Ramkerrysingh, J.

Date:                2015 (undated)

Subject:           Family Law

Subsubject:      Children – Maintenance and custody – Whether the respondent should be mandated to enter into a bond where the lack of bond would mean that the Order could not be implemented for some indefinite time – Consideration of the circumstances under which a bond would be required – Performance bond – Mirror Order – Convention of the Civil Aspects of International Abduction – Finding that custody, care and control of the child granted to the respondent – Finding that the respondent should enter into a Bond – Finding that a mirror Order should be entered into in the corresponding jurisdiction.

Appearances:

Ms. Cherise Huggins for the applicant

Mr. Kirk Hogan (Instructed by Mrs. Kathy Ann Hogan) for the respondent

RAMKERRYSINGH, J.:

1. After a fiercely contested battle between the parties for custody and access of their child Joanne (whom I shall hereafter refer to as `J’) this Court made: the following order (`the Order’) on the applicant’s and respondent’s respective applications to wit:

UPON THE MOTHER/RESPONDENT UNDERTAKING that:

1. a) She will promptly and on the due dates return the child, Joanne O’Brien born on the 2’d November 2007 to the Jurisdiction of the Court in time for the start of each holiday access in Trinidad as provided for in this Order and in any event if and when called upon to do so by the Court;

1. b) Prior to the initial removal of Joanne O’Brien, the respondent will enter into a Bond with the Registrar of the Family Court, such Bond to be in terms of the Deed annexed hereto; and

1. c) The respondent will, having received such cooperation from the applicant/father as may be necessary, procure the making by consent of a mirror Order in the appropriate Court in Belgium, which Order shall contain all the relevant provisions both of this Order and of the Custody Order made in this suit, the reasonable costs of both parties incurred in procuring such corresponding order to be paid by the respondent/mother

THIS COURT ORDERS that:

1. Custody care and control of the child Joanne O’Brien born on the 2’d November 2007 is granted to the respondent;

2. JONATHAN FULLER, (applicant), is hereby declared the father of the said child and he shall retain all the parental rights and duties other than actual custody and will be entitled to contact and communicate with the child’s teachers, caregivers, doctors and other medical professionals;

3. The respondent shall consult the applicant in any significant decisions to be made in relation to the child save and except in the case of emergency and she shall keep him updated of all the child’s developmental and other important milestones;

4. The surname of the said child shall be changed from “O’Brien” to “O’Brien-Fuller” and the said Joanne O’Brien shall now be known as “JOANNE O’BRIENFULLER”;

5. The Registrar of the Supreme Court by her designate in the Family Court is directed to serve a copy of this Order on the Registrar General of Trinidad and Tobago who in turn is directed to enter the father’s name and any other particulars in the Register of Births;

6. Subject to compliance by the respondent with her above recited undertakings she does have permission to permanently remove the child from the jurisdiction of the Court;

7. In the event of the respondent retaining the child outside the jurisdiction of the Court in contravention of this Order the applicant shall be at liberty to apply to the Court for Directions as to the Assignment of the said bond entered into by the respondent and Koen Mayers with the Registrar of the Family Court to the applicant;

8. The applicant shall have staying access during the school holidays for five weeks during the summer holidays and one week in each of the two holidays, Christmas Day alternating each year;

9. For avoidance of doubt the Father’s precise access schedule is as follows:-

i..   Five weeks staying access during the school summer holidays and one week staying access during each of the Christmas and Easter holidays, the precise dates to be as agreed between the parties, subject to Christmas alternating between them;

1. Such other access as may be agreed between the parties;

10. The jurisdictional venue for each period of access shall be determined by the applicant;

11. In the event that the applicant chooses to exercise his access in this jurisdiction both parties shall be responsible for making the flight arrangements and they shall both be responsible for the cost of the child’s airfare and other travel arrangements in the proportion of sixty percent (60%) for the respondent and forty percent (40%) for the applicant;

12. Each party shall have communication access to the child when she is in the care of the other via telephone , skype, email, mobile or other internet access;.

13. The child do cease to be a Ward of the Court;

14. The applicant do pay maintenance in the amount of One Thousand Two Hundred Dollars ($1200.00) per month for the maintenance and general upkeep of the child until she attains the age of 18, completes full time education or training for a vocation or profession, or until further order;

15. The respondent do have permission to request financial assistance from the applicant in relation to educational expenses for the child if necessary;

16. The Registrar of the Supreme Court by her designate in the Family Court shall return the passport of the child to the respondent upon her request;

17. There shall be liberty to apply; and

18. Each party to bear his own costs.

The filing of the respondent’s emergency and Form 10 applications in December 2011 had come just after the respondent began a relationship with Mr. Koen Mayers, a Belgium national, whom she married during the course of the proceedings. They now have a son two years old. Mr. Mayers and the respondent had initially planned to settle here, but their plans changed when, after several unsuccessful attempts to secure a job, it became clear that Mr. Mayers could not earn a living if he stayed in Trinidad and Tobago. He returned to Belgium and resumed working there, while the respondent remained in Trinidad with J and her young son, to complete the matter.

2. As can be seen from the Order, it was premised, inter alia, on an undertaking given by the respondent that she and Mr. Mayers would be bound to the Registrar of the Supreme Court in the agreed sum of €25,000.00, if she failed to observe that part of the Order relating to the child’s return to the jurisdiction of Trinidad and Tobago for the applicant’s access.

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3. The Bond was prepared and presented to the respondent and Mr. Mayers for execution, whereupon Ms. Huggins challenged the nature of the bond. She argued that the respondent and Mr. Mayers needed to satisfy the Court of the availability of the €25,000, either by payment into Court, or by proof of the said sums by deposit in a bank in Trinidad and Tobago, since the applicant feared that the respondent will not return the child for his periods of access and therefore wanted to ensure his rights were protected. This formed the basis of her insistence on some kind of surety, on behalf of her client.

4. From the evidence presented Mr. Mayers lives an average lifestyle in Belgium, and, like all Belgian nationals, can access many government facilities to provide a comfortable life for himself and his new family. But he is by no means wealthy and does not have the wherewithal that would allow the sum of €25,000 to become readily available to him. Furthermore, he is not in a financial position to have such a considerable amount remain inaccessible to him for the next ten years or so, even if he were able to put his hands on that amount of money. Both he and the respondent indicated that if it became necessary they could depend on family members to obtain the funds.

5. During the trial they both appeared to me to be sincere and I find that sincerity to extend to the Order and their obligation under the Bond, if it becomes necessary, hence my non-insistence for any surety to be attached to the Bond. Indeed, since raising her objection on behalf of the applicant, I am satisfied that they were making strident efforts to accumulate the funds and were able to amass some portion of it. The respondent and Mr. Mayers had been living apart even before the Order was made in July 2013 and were therefore desperate to accumulate the rest, so that they could finally bring this matter to an end and be reunited as a family in Belgium. I have no doubt that they did all they could to raise the cash, but would need some considerable time to get the balance. In the meantime, the Order remains in abeyance and J’s arrangements continue to be unsettled.

6. Ms. Huggins insists that Mr. Mayers and the respondent prove that they have the funds available to them now, but this approach is not practical and in my view unnecessary. A bond is not intended to be punitive, but rather it is a conditional measure to secure compliance of an order. Essentially, it is a written promise by one person to do something, on either a certain date, or upon the occurrence of a specified event, the purpose of which is to provide assurance that the bonded person will properly do what they have agreed to do. Whereas in some situations it may be necessary to insist that the money be obtained in full, in the circumstances before me it seems entirely unjust, because it would mean that the Order would not be implemented for some indefinite time in the future, which is sure to put unnecessary strain on the respondent’s marriage and weaken the parental bond between Mr. Mayers and his son.

7. I have had the opportunity to observe the parties and Mr. Mayers in court and while I do not possess the gift of prophecy, I am of the view that the chances of the respondent disobeying the Order are unlikely. In his evidence Mr. Mayers acknowledged the role of the applicant in J’s life and was eager to do all he could to encourage the bond between father and daughter. It was also obvious to me that as the proceedings progressed, the applicant and Mr. Mayers developed a healthy respect for one another and recognized each other’s roles in J’s life. The applicant came to accept that there was every possibility that J would move to Belgium with the respondent and Mr. Mayers and during the course of the trial his (the applicant’s) attitude towards this move softened. He eventually voiced in open court that all he desired was the assurance that he would continue to have access to his daughter and that the respondent would not stand in the way of that.

8. Permission to remove a child from a particular jurisdiction may be granted on terms that a person enter into a bond, or security for a sum of money which will be forfeited in the event of non-compliance. Generally, the procedure of procuring a surety, or a bond as I have ordered in this case, especially in family proceedings is appropriate where there is some danger that the child may not be returned to the jurisdiction. An undertaking by the removing parent to enter into a bond with the Registrar of the Court in an appropriate sum (in this case the sum was agreed between the parties) will only be invoked if the condition of the bond is broken. In such a case the Registrar may assign the bond to the injured parent.

9. A bond is but one safeguard adopted by the Court to ensure compliance in cases of removal. Others include procurement of a surety, deposit of money, as Ms. Huggins calls for, or a charge on property. The optimum and most practicable form of security must depend upon the circumstances of the individual case and in this case. The court’s discretion to choose the relative leniency of a bond, over a surety, or monetary payment depends in part on the likelihood of a breach, as far as the court could predict. In this case as I have stated above, I was not so concerned about disobedience on the part of the respondent, as I was about pacifying the applicant’s dread of never seeing J again. In my opinion it is not necessary to secure the Bond.

10. Butler Sloss LJ in Re H (minors) (wardship: surety) 119911 1 FLR 40, CA looked at the circumstances under which a bond may be required and stated thus:

“It is of some significance to look at circumstances in which up to now such bonds have been required. The most common situation where a bond is asked for is where a parent wishes to take children out of the jurisdiction on an access application or where he wishes children to join him when he lives abroad, and the bond is used to encourage the return of the children to the country and if not returned to enable the other parent to go to the country where the children have gone and take proceedings. From time to time such bonds are encashed and the money is used for the parent to go to the country and take proceedings in that country. To my knowledge and to that of counsel, sureties have not been called for in the past although it might well be appropriate in such foreign access applications.”

11. In the proceedings out of which the present issue has arisen the applicant’s main concern was that he may never see the child again, but having heard and seen the respondent and Mr. Mayers, those fears, although they may have been well founded in the past (pre-proceedings), are, as I have stated above, now quite remote.

12. Mr. Hogan submitted that the Bond can be likened to that of a performance bond in a personal capacity, but I disagree with that analogy, because a performance bond (also called performance guarantee) is a bond issued by a bank or other financial institution, whereby the bank assumes the obligation of another’s fulfillment of a contact or performance of a duty. In Trenton Works v. Panalpina Inc., 126 N.S.R (2D) 287 (1993), Justice Nathanson of the Nova Scotia Supreme Court had before him a contact between Trenton and Panalpina to transport railway cars by ship from Halifax to Tanzania. That contract included this term:

“as a guarantee of the full performance of all its obligations under the contract, Trenton shall present to Panalpina a performance bond….”

13. Panalpina secured a performance bond in the amount of $2,927,574 for Halifax Insurance Company. One of the railway cars was damaged during the loading and Trenton looked to Panalpina and the surety (Halifax Insurance Company) for damages. The Court held the surety to the performance bond as regards the damaged railway car and wrote, at 29:

“[T]he general effect of a performance bond is indemnification by the surety the loss suffered by the creditor or obligee.”

14. In this case, both the respondent and Mr. Mayers have assumed the responsibility for the bond. I am satisfied that they have pledged themselves to honouring the Order and the Bond if necessary. The Bond was a precondition to the Order being granted. It was not a requirement of the Bond, nor was it intended to be secured by a surety, or a deposit of money, or otherwise.

15. In any case, I am satisfied that, in the event of default there are measures in place to encourage obedience of the Order and the return of J to the jurisdiction when necessary. In addition to the Bond, I have put other safeguards in place, including the making of a mirror order in Belgium (see details of the Order at para. 1), which has been done. Additionally, the Probation Department of the Family Court here has contact with of the Probation Office in closest proximity to Mr. Mayers’s residence in Belgium. Finally, Trinidad and Tobago has partnered with Belgium under the Convention of the Civil Aspects of International Child Abduction (the Hague Convention) that could facilitate J’s return if necessary. With these combined measures in place there are several practical options available to the applicant in the unlikely event of a breach.

16. The Bond as prepared, executed and annexed to the Order shall stand.

Allyson Ramkerrysingh

Judge