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Trinidad and Tobago High Court |
] [Hide Context] (Family Court Division)
SHEIK A. HAMID
Plaintiff
Defendants
Appearances:
Mr. Yaseen Ahmed for the Plaintiff;
Mr. Kelvin Ramkissoon for the Respondent.
1. This Application was made under the Family Proceedings Rules on 14 th September 2005. The Applicant was Sheik Hamid, father of the subject, Hamaidah Hamid, born on 13 th November 1996.
2. By his Application, Mr. Hamid, referred to herein as “ the father ” sought:
• an injunction against the Respondent/Mother for the return of Hamaidah;
• full custody of Hamaidah.
3. The Application was supported by the affidavit of the father, filed on the 14 th September 2005.
4. The Respondent Mother, Rehana Abdool, filed an affidavit on 3 rd October 2005, in response to the father’s application. In addition to her own affidavit, the Respondent/Mother filed an affidavit which was sworn by Neal Ramsaran. The Ramsaran affidavit was filed on the 26 th October, 2005.
5. On the 7 th October 2005, the Applicant/Father filed his affidavit in Reply.
6. On the 8 th November 2005, a supplemental affidavit, sworn by Neal Ramsarran was filed on behalf of the Respondent/Mother.
7. Shareeza Hamid, the second wife of the Applicant/Father swore to an affidavit on the 27 th October 2005. The Affidavit was filed herein on the same day in support of the Husband’s case.
8. On behalf of the father, Attorneys-at-Law also filed an affidavit sworn by Ms. Nafeeza Muradali-Khan on 9 th November 2005. Ms. Muradali-Khan was Hamaidah’s teacher.
9. All deponents with the exception of the school teacher Mrs. Nafeeza Muradali-Khan were cross-examined.
The Probation Officer’s Report
The Court commissioned a Probation Officer’s Report, which was completed and dated the 29 th September 2005.
The Probation Officer interviewed all relevant stakeholders.
Proved facts:
1. The Petitioner and the Respondent were married in 1991.
2. The parties were separated on the 3 rd March 2000.
3. It has been admitted by the Respondent/Father that during the course of their marriage he would hit the Petitioner/Mother in order to exorcise spirits which he referred to as “jinns”. The Father contended that his lashes were gentle and no more than taps. What remains in dispute is whether the taps were gentle taps or whether they were violent amounting to abuse.
4. Subsequent to the separation of the Petitioner/Father and the Respondent/Mother, Hamaidah remained in the care and control of her father for the ensuing five (5) years.
5. Her academic record is spectacular. Her emotional adjustment is manifest from her drawings and creative writing exhibited to the affidavit of Sheriza Hamid sworn on the 27 th October 2005. The Court was particularly impressed by the creative writing exercise entitled “All about me….” This was prepared in April, 2004 and shows Hamaidah’s attachment to her father.
6. It is equally clear that Hamaidah is attached to and very fond of her mother.
7. The Respondent/Mother has been financially and physically incapable of care and control of Hamaidah for the past five (5) years. I am satisfied that this was not caused by any negligence on her part but was caused by financial hardships and ill health.
8. In the course of the evidence, both parties have exhibited cards and letters to demonstrate Hamaidah’s affection for the new partners of her parents. The father is remarried and the name of his second wife is Shereeza Hamid. The mother is currently in a co-habitational relationship with Neal Ramsaran, who has indicated his intention to marry her. As stated supra, both Mrs. Hamid and Mr. Ramsaran provided sworn testimony in this matter.
9. Hamaidah’s interaction with her step mother has a longer history. In the course of cross-examination, it became clear that the Respondent/Mother’s fiancé Neal, has had very little interaction with Hamiadah. He appears to be a decent law-abiding gentleman, who is anxious to please Hamaidah’s mother. His compatibility with Hamaidah is really a blank page and only time will tell whether he will contribute to or detract from her emotional well-being.
10. In respect of Shareeza, both the Applicant and his current wife were at pains to paint a picture of domestic bliss. They never quarrel, never become angry at Hamaidah, and they have found happiness in each other. The court found this idyllic picture difficult to believe.
11. Religious differences loomed in the background of this case. The Applicant/Father is a devout Muslim and has indicated his desire for Hamaidah to be brought up in the Islamic faith. One of the fears which he expressed is that Hamaidah may be influenced to become Hindu.
12. The Respondent/Mother had been Muslim, but has recently had a conversion experience to Hinduism. The Mother told me that she wishes Hamaidah to find peace with God in whatever religion she chooses.
13. In the course of submissions and indeed cross-examination, there was an attempt to make religious differences the fulcrum on which this case should be decided. In my view both parents are decent principled persons and religious differences can be accommodated.
14. The physical living circumstances of both parents were investigated by the Probation Officer. The Probation Officer reported that the Respondent/Mother is living in a co-habitational relationship with Mr. Ramsaran, who plans to marry her. They live in rented accommodation on the same compound with the Respondent/Mother’s relatives. The Probation Officer found the environment clean with all basic amenities. The Probation Officer noted that it was sparsely furnished and the home not fenced. The Court regards this factor as a corollary from the temporary nature of the Respondent’s living circumstances. The Applicant/Father also lives in rented accommodation, which appears to be better furnished and the child has her own furnished bedroom. The yard is fenced with a concrete fence and steel gates.
15. The last burning issue is the alleged physical abuse of Hamaidah by the Applicant/Father. In fact, the Mother’s discovery of bruises on Hamaidah sparked these proceedings. Having made her discovery, the Mother refused to allow Hamaidah to return to her father’s home. The Respondent/Mother obtained an interim Magisterial Order for custody. This led to the father’s filing an application for an injunction and for full custody of Hamaidah.
Both the father and his current wife have vehemently denied that Hamaidah receives corporal punishment. They are also both unable to suggest who might be responsible for the bruises, the existence of which they have also denied.
However, all other evidence points to the father as the person dealing blows to Hamaidah. The child in her conversation with the Probation Officer as well as in her conversation with the Court indicated that her father uses corporal punishment as a form of discipline.
The existence of the bruises was confirmed by medical examination and by inspections by the police and the teacher.
I therefore hold on a balance of probabilities that the bruises resulted from blows inflicted by the father as a form of punishment and that he so inflicts them as a form of discipline. I also find on a balance of probabilities that the infliction of the blows is not an isolated event but is part of the father’s method of parenting.
In the course of cross-examination the Respondent/Mother denied that her current application for custody was motivated only by her recently approved accommodation. The Respondent/Mother told the Court that her reason was that she did not want her daughter to be abused; that she loved her daughter and promised her that she would take her one day.
Law
1. The paramount consideration is the best interest of the child. These are the words of Lord Simon in Mc Kee v Mc Kee [1951] A.C. 352. All other considerations must yield to the best interests of the child. This rule was given statutory effect at s. 3 of the Family Law (Guardianship of Minors) Act Ch. 46:08:
“Where in any proceedings before any court –
a) the legal custody or up-bringing of a minor…..is in question, the Court in deciding that question shall regard the welfare of the minor as the first and paramount consideration.”
2. The best interest of the child will not always coincide with the best interest of the parent. See Mc Leod Vol. III Child Custody Law and Practice 4-5
3. The child’s best interests are not to be determined only by reference to money and the ability to provide physical comfort.
Cases referred to in the Course of the hearing
1. Charles v Charles - H.C.A. No. M-1051 of 1998. This was a judgment of the Honourable Madame Justice Rajnauth-Lee in respect of the custody of five children. The parties arrived at an agreement in respect of four children and the case in fact concerned the middle child, Neela.
The Learned Judge referred to the paramount consideration principle in the case of J v C [1970] AC 710-11 where Lord Mac Dermott ruled:
“…when all the relevant facts, relationship, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed the course to be followed will be that which is most in the interests of the child’s welfare……That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed….”
At , Justice Rajnauth-Lee alluded to a probation officer’s report but observed that the Court is not bound by the recommendation of the Probation Officer.
2. Juteram v Juteram – H.C.A. No. 828 of 1974. This was a decision of Mr. Justice P.L.U. Cross and concerned an application for the custody of two (2) children Stephen and Gillian following the grant of a decree nisi.
Justice Cross referred to the case of Leong Que v Bramble (1965), 8 W.I.R. 149, in which Wooding CJ alluded to the Infants Ordinance as codifying and establishing the principle of the paramount consideration.
In the case which Justice Cross considered, the two children had been living with their father for two (2) years.
This case was similar to the one before me in that the Mother delayed in applying for custody. The learned Judge was not convinced that any altering of access arrangements would be for the long term benefit of the children
3. Singh v Singh – H.C.A. No. M 149 of 1974. This was also a decision of Justice P.L.U. Cross in respect of the custody of one child of the family, a boy aged ten (10), who at the time lived with the Respondent his mother.
In spite of the submissions, which were made to him, the learned Judge held:
“All indications are that neither the boy’s moral welfare nor his religious upbringing would be imperilled by a grant of custody to either parent.”
As a matter of fact, Justice Cross found that the child’s academic performance improved dramatically when placed with his father.
In making his decision, Justice Cross, referred to and relied on Leong Quen v Bramble where Mc Shine JA said:
“….having the guidance, companionship and affection of a father would perhaps be the greatest single advantage in the welfare of the small boy….”
Justice Cross referred to as well to Parsons v Parsons (1928) N.Z.L.R. 477, where Justice Smith alluded to the desirability that a male child should have the care and guidance of its father.”
In Singh v Singh custody of the child who had lived with his mother was granted to the father. It is clear to me that his academic performance played a significant role in the judge’s mind.
4. Flores v Flores – H.C.A. No. 564 of 1977. This was a decision of Justice Deyalsingh in respect of a boy of about six (6)years old, whose mother had deserted the matrimonial home leaving the child with his father. The child resided with the father and was being cared for by his paternal grand-mother. The case of Flores is distinguishable from the instant case because in Flores, the mother rarely saw the child, having allowed periods of one and a half (1½) years to elapse without seeing him.
In deciding on custody, Justice Deyalsingh recited the paramount consideration principle. Justice Deyalsingh cited W v W&C (1968) 3 All ER in which Lord Denning said:
“I feel it is right to be guided by the general principle that a boy of this age some eight years of age is on the whole other things being equal better to be with his father….”
Justice Deyalsingh referred as well to H v H&C (1969) 1 AER 262, when a young child was left with his father. The Court considered that the mother had left the child behind for an adulterous relationship. Justice Deyalsingh observed that precedent is useful in enunciating general principles but that each case should be dealt with on its peculiar circumstances. Justice Deyalsingh decided against uprooting the child. He considered his impression of the personalities of the respective parents.
5. Ramkissoon v Ramkissoon .
This was a decision of Justice Permanand. The Petitioner Mother applied for custody of three (3) children. Justice Permanand quoted the words of Lord Mc Dermott in J v C as to the meaning of the principle of the paramount consideration:
“These words must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby when all the relevant facts and relationships, claims and wishes of parents, risks and choices and other circumstances are taken into account and weighed the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood.”
Justice Permanand divided the different circumstances into headings. These have been commended for my use:
) Accomodation and Material Advantages
) Stability of Home Life
) Children’s wishes.
) Sex and Age of Children.
) Education
) Retention of existing position.
) Personality and Character of parents.
) Access.
1. H.C.A No. M-00189 of 2002 – Charles v Charles
This was a decision of the Honourable Justice Judith Jones. At page 3, the learned Justice Jones said that the Court is not about punishing parties for past bad behaviour and there is no winner or loser.
At the learned Justice Jones observed that the court is not bound by the recommendations of the Probation Officer of the wishes of the child. Both are factors which the Court will consider.
2. It is the over-riding principle that the welfare of the child is paramount. In the case of J v C , Lord Mc Dermott considered the meaning of the oft-cited principle “the paramount consideration.”
3. On the basis of this statement, Justice Permanand (as she then was) itemises circumstances of relevance. Both Counsel agreed that the Court should be guided by the categories in Ramkissoon while agreeing with Counsel, I would add that the relevant categories are not closed and I will add a few of my own in this case.
4. Before assessing the categories, I wish to borrow some caveats expressed by Justice Jones in Charles v Charles
• there is no winner or loser in a custody battle. A child is neither a weapon nor a prize. The ideal solution always has been and continues to be that a child belongs to both parents and is best placed when in the custody, care and control of both parents. In custody battles the Court undertakes the unsavoury, heart-breaking and onerous exercise of deciding which parent will have custody.
• The Court is not about punishing either party. This statement was made by Justice Jones in Charles v Charles and is particularly apt in this case.
I have found on a balance or probabilities that the Plaintiff/Father in fact battered Hamaidah. The Court takes a dim view of the use of corporal punishment in the case of Hamaidah and the Court deprecates the prevarication by both Hamids in trying to conceal what had been done. Having made this statement, imposing punishment is not the function of a Court in matters of this kind. I will therefore avert my gaze away from the untruthfulness of Mr. and Mrs. Hamid and focus, as I am required to, on Hamaidah’s best interest.
5. L v L (1981) 2 F.L.R. 48.
This case was cited by Mr. Ramkissoon, learned Counsel for the Respondent/Mother.
In L v L , the parties had been married at the age of nineteen (19). A daughter was born to them shortly after. The Wife abandoned the Husband, leaving the young child in his care. Following her desertion of the Husband, the Wife lived with a Mr. B. for a while, became prone to ingesting sleeping pills, attempted suicide and was required to take anti depressants. In the interim the child was cared for by Mrs.W. during the day and her father by night.
The Wife eventually applied for custody of the child. The trial Judge decided that the Wife should have custody and return to the matrimonial home.
Lord Denning referred to the Welfare Officer’s Report. The Welfare Officer’s report referred to over-chastisement by the father.
At p. 50, Lord Denning is reported to have said:
“What tends to turn the scale in this very evenly balanced case are the bruises – the alleged over-chastisement of the child by her father….”
Lord Denning at p. 50,also alluded to the break-down of the relationship between the father and the care-giver, Mrs. W.:
“The other anxiety is how long Mrs. W. would be prepared to play the part of second mother to this little girl when she is so suspicious of the father and tends not to get on with him….”
Lord Denning considered the risks attendant on granting custody to the mother at p. 51:
“…..will the mother continue to be lost and unstable? Will she take up the relationship again with Mr. B? Will she start drinking again or taking sleeping pills?”
At p. 51, Lord Denning expressed his agreement with the trial judge:
“..I must say that one feels a great deal of sympathy for the father who, as far as one can see, has done nothing wrong whatsoever except perhaps in his character: being a little too severe, being a little too forthcoming, and being not quite open and helpful enough with Mrs. W. Nothing else can be said against him. He is evidently a first-rate man in every way. Sad and disappointed as he must be at losing the case, I am afraid that, on balance, we must go by the judge’s decision, and not over-rule it unless we see good reason to do so. Now some things the judge did are very important. The judge made a supervision order: so that the welfare officer could keep continual watch on the position. He made careful provision for access. He retained the matter for himself so that he could make any necessary order about the matrimonial home. So that the position will be kept under continual review by the judge. That is the best that can be done. Having regard to all those arrangements, I do not think we should disturb his decision. I would dismiss the appeal accordingly.”
The Categories
1. Accomodation
The respective arrangements for accommodation are on par. The Petitioner/Father is more settled than the Respondent/Mother, having lived there longer, his apartment is better furnished with more amenities. The lack of fencing at the mother’s place is de minimis . At the age of nine (9), Hamaidah is well-equipped to avoid excursions into the road.
2. Personality and Character of Parents
Both parents impressed me as principled well-meaning citizens. They both have strong religious persuasions which will influence their sense of right and wrong and the diligence with which they will care for Hamaidah.
It is clear that they both love her and that their love for her is the motivating factor in their presence before me.
It is equally clear that Hamaidah loves both parents and notwithstanding the occasional corporal punishment she is strongly bonded to both parents.
3. I will add another category being the Personality and Character of New Partners. It will be naïve to suggest that this is an irrelevant factor. I have seen both new partners. Both have claimed to love Hamaidah and to enjoy her love.
Mr. Ramsaran hardly knows Hamaidah and his commitment to her in my view depends on his commitment to the Respondent/Mother. At the stage in the relationship between the Respondent/Mother and Mr. Ramsaran, his commitment is both strong and hopeful. Whether it will diminish, either on account of a break-up or with the placidity that normally follows marriage, only time can say.
Mrs. Shareeza Hamid in her affidavit and in cross-examination, laboured to convey the impression that she and Hamaidah had a bond which is independent of the Petitoner/Father.
My impression is that Mrs. Hamid’s commitment to Hamaidah, is dependent on her commitment to the Petitioner/Father. In this way Mrs. Hamid is similar to Mr. Ramsaran. The difference is of course is that Mrs. Hamid’s commitment is sealed by marriage which is already one (1) year old. The commitment of Mrs. Hamid to the Petitoner/Father is therefore more predictable than that of Mr. Ramsaran to the Respondent/Mother.
4. Gender/Child’s Wishes/Probation Officer’s Recommendation
Cases suggest that a boy should be placed with his father and it seems that the converse is true for girls and mothers – all things being equal.
The Probation Officer recommended that custody be given to the mother. I am not bound by this recommendation. It is a very weighty factor in my decision.
Having read the Probation Officer’s report, she appears to have been influenced by the child’s wishes and the factor of the alleged abuse.
Stability of Home Life and Education
The Petitioner/Father has provided Hamaidah with a stable home environment and if this factor is considered in isolation there is much to be said for leaving Hamaidah with her father.
As implicitly observed in Singh v Singh , academic performance is an important indication of well-being. Hamaidah has excelled while in the care of her father. This is clear not only from her grades but also from the reports of the teachers.
Abuse
An additional factor is the alleged and proved corporal punishment by the Petitioner/Father. In my view, it amounts to abuse in that marks have been left on the child’s skin. I accept what Hamaidah told me that for this year she was beaten in January, June and September. In the case of Hamid v Hamid I am required to assess the risk of a resurgence of the above.
I am not of the view that Mr. Hamid is temperamental by inclination. The use of physical force may be part of his personal philosophy in domestic leadership.
Risks
I have considered the competing risks of the two different orders:
) With the father there is a risk of continued corporal punishment. In my view this can be addressed by his undertaking and an order referring him to counseling.
) In respect of the Respondent/Mother, it seems to me that many aspects of her life are uncertain. She has recently started a new job. Recently obtained a new accommodation. Her health has been poor. Her marriage plans though hopeful are uncertain. If Hamaidah is placed in her mother’s custody, Hamaidah’s emotional stability and well-being will depend on her mother’s. Any sudden changes in the Respondent/Mother’s health, accommodation, emotional life or employment will reverberate through Hamaidah’s life.
I find the case of L v L [1980] 2 Fam.L.R. 48 distinguishable for the following reasons:
0) the abuse in L v L was more severe;
0) the mother and child were placed in the matrimonial home and that represented stability.
In this case the Respondent/Mother has only just begun to gain control of her life. In my view she needs to consolidate her life before she should be allowed to accommodate Hamaidah.
Orders
1. Joint Custody 2. Care and control to Father, on the condition that he refrains from imposing corporal punishment on Hamaidah and that he attends counseling sessions on parenting skills.
3. Access to the Mother on the First 3 weekends of each month from 5:00 pm. On Fridays to 4:00 p.m. on Sundays and alternate public holidays.
4. A Probation Officer’s report every 3 months.
5. Suspended until 3 rd January 2006.
Holiday access
1. First ½ of Christmas holidays:- 12 th to 21 st with Mother 2. 21 st to 3 rd with Father: morning of 22 nd with Father 3. 17 th and 18 with Father 4. 24 th and 25 th with Mother
Liberty to apply.
Dated this 8 th day of December, 2005.
________________________
Mira Dean-Armorer
Judge
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