Chatoo v Chatoo

• Jurisdiction: Trinidad & Tobago
• Judge: Ramkerrysingh, J.
• Judgment Date: 08 February 2010
• Neutral Citation: TT 2010 HC 42
• Docket Number: FH No. 942 of 2006
• Court: High Court (Trinidad and Tobago)
• Date: 08 February 2010

High Court

Ramkerrysingh, J.

FH No. 942 of 2006

Chatoo

and

Chatoo

Appearances:

Ms. Sushma Gopeesinpjh for the petitioner.

Mrs. Marvo Harper for the respondent.

Family law - Matrimonial property division — Custody and care child — Respondent mother conceding child better off with petitioner father who lived in the U.S. — Matrimonial home, inherited properties — Bank accounts — MPPA, s.27 — Statutory guidelines — Whether departure from equality necessary — Respondent wife not credible — Distribution ordered in proportion of 60 :40 in favour of petitioner husband.

Ramkerrysingh, J.

1 Mr. and Mrs. Chatoo, (“the Husband” and “the Wife” respectively), married on the 30th March 1986 and have one child, a girl named Sheena who was born in 1994. The marriage was not a happy one and the parties quarrelled often, resulting in the Wife leaving home on a number of occasions, until she finally left in March 2006, under disputed circumstances which I shall go into later. At the time of her departure she left Sheena with the Husband, who has since been caring for her. The Husband has migrated to the United States with Sheena and they are now both settled there with the Husband's new partner and the two children they have together. The Husband obtained a job with the New York Police Department as a Traffic Enforcement agent and Sheena attends the Hillcrest High School where she is a tenth-grade pupil and doing well academically.

BACKGROUND AND FACTUAL MATRIX

2 These proceedings began with the Wife's Child and Financial Applications by which she sought custody, care and control of Sheena and financial relief for herself and the child. In support of these applications the Wife filed an affidavit in which she claimed that the Husband was abusive to her throughout the marriage, that he failed to give her financial support and that during the marriage he insisted that she find employment to make her own way financially. The Wife also claimed that in the early years of the marriage she and the Husband lived at her mother-in-law's house, where she prepared meals for the Husband with the groceries he provided and when he stopped purchasing foodstuff, she had to depend on her mother-in-law for meals, until this too eventually stopped.

3 The Wife said that thereafter, she tuned to her parents for assistance. They loaned her money until she began to work, earning $800.00 per month, whereupon, presumably, she returned to the Husband. Her affidavit does not disclose when these material events took place, but she deposed that upon her return, the Husband's physical and emotional ill-treatment of her continued unabatedly, and indeed worsened as the years wore on. Additionally, the Wife accused the Husband of being “an avid womaniser” and stated that he was very critical of the way she cleaned the home and prepared their meals. She claimed further to have been “consumed with fear” of the Husband and that his behaviour continued relentlessly. With Sheena's birth, the Wife stated that the Husband made it a habit of staying away from the matrimonial home and withholding funds from her to properly maintain the child.

4 The Wife then goes on to recount that on 21st June 2005 she suffered a heart attack for which she was hospitalised for six weeks, during and after which time she asked her brother Rodney, to stay with her at the matrimonial home to help her with caring for Sheena. By this time the Wife said that the Husband was not at the home and I take this to mean no longer resident there, and in any case she said, he would not have helped her if he had still been living there. When he did visit the matrimonial home after she was discharged from the hospital, the Wife said that the Husband became upset and told her – to “…get [her] lazy self off the bed and start working and looking after [her]self.” According to her, he then left the house only to return a short time later with a cutlass, which he brandished about threatening to kill her and forced her to get up and do the house chores. She said the Husband remained at the house for two days following this incident and left, returning two days later. On the second return visit the Wife said that she was served with a Domestic Violence Application filed by the Husband in which he claimed that the Wife had cursed and threatened him with a cutlass. Neither party had provided any further information regarding these proceedings except to say that the complaint was laid in the Chaguanas Magistrates' Court.

5 About one year later, that is February 2006, the Wife said that she suffered another heart attack and Rodney was again called to take care of Sheena. After she was discharged from the hospital on this occasion she returned home where she met the Husband, who prevented her from entering and threatened to kill her if she attempted to do so. She said she was “…petrified and feared for [her] safety…” and felt that she had no choice but to leave right away. Her evidence is that she called out to Sheena so that the child could leave with her, but the Husband told her that she would not be allowed to take the child. At this juncture, I must say that I find the Wife's version of the facts a little difficult to believe, because my observations of her demeanour in court show her to be a rather quarrelsome and self-opinionated woman, not given to being easily pushed around or intimidated. She did not present as the pitiful, helpless, or indeed hapless victim that she attempted to portray in her affidavit. I have some reservation about her account of the events leading to the breakdown of the marriage.

6 The Wife did not return to the matrimonial home and has since been living with Rodney in their family home in Barataria. Although she made no mention of the accommodation she now shares with her brother, the Probation Officer's report (which was submitted pursuant to the Form 10 Application, the issues thereon which were still outstanding at the time) proved quite insightful and corroborates my suspicions regarding the personality of the Wife. As I mentioned above, in her evidence the Wife paints a picture of an abused, subservient and fragile woman being taken advantage of by the Husband. But upon reading the Probation Officer's report, observing the Wife's posture in court and listening to her responses under cross-examination, an entirely different picture emerges; that of a feisty, stubborn and easily agitated woman who was not at all timid and who could and would, stand up and capably defend herself if provoked. One example of the Wife's contradictory behaviour which I find curiously odd, pertains to the state of untidiness of the Barataria home. In her report the Probation Officer mentioned that she observed mounds of dust in several corners of the house which were noticeable enough that she felt it worthy of mention. When asked under cross-examination why the house was so dusty and unkempt, the Wife said that she did not put the dust there, so she did not feel that it was her duty to clean it up. Another example of the Wife's obstinate behaviour is shown in a report from the Social Worker who was also assigned to this case to counsel the family. The report revealed that, at the time of the interview, Sheena expressed that she loved both parents and did not want to have to choose between them. During the counselling sessions the Wife kept giving excuses as to why she could not accommodate Sheena at her present location in Barataria, but, according to the Social Worker, was unwilling to entertain any alternative suggestion for a workable access arrangement and remained resolute only to the idea of having Sheena on her terms.

7 Returning to the Wife's departure from the matrimonial home in 2006 she deposed that she had left without Sheena for fear of the Husband and so was forced to steal chances to visit the child at school, or at home when she thought the Husband would not be there.

8 The Wife's second affidavit filed on 29th May 2007, with leave of the court, introduced the sale of the matrimonial home for the first time. In this affidavit too, the Wife stated, again for the first time, that it was her less than adequate living condition, that prevented her from taking Sheena to live with her, although, apart from the un-swept floors and the disarray, her accommodation at Barataria seems reasonably comfortable. She continued to complain about the Husband's absence from the matrimonial home, even though she was no longer residing there and that Sheena had to be cared for by her grandmother and aunt.

9 More than a year after she instituted her Financial Application, that is, on the 19th October, 2007, the Wife filed an amended application, to include a relief for property settlement of the matrimonial home at Orchard Gardens.

10 Before moving on to the Husband's evidence, I note with disappointment the Wife's non-disclosure of any supporting documents regarding her health. She claims to have suffered not one, but two heart attacks for which she had to be hospitalised, and in her May 29th 2007 affidavit says “I have coronary disease and three clogged arteries, and I also have fibroid tumours, which are benign tumours.”, all of which are quite serious medical complaints, but none of which the Wife has felt necessary to substantiate. The only documents exhibited to the Wife's affidavit that are medical in nature were (1) an illegible prescription from Health Net, which seems to be for, among other things (i) a topical ointment of some sort and (ii) pantogar capsules, which I understand is not prescriptive and is used to promote hair growth ; (2) a bill for a doctor's visit in the amount of $100.00 and (3) a receipt from Ross Budget Drugs for the items mentioned at (i) and (ii) above. The Wife's evidence in this regard is sorely lacking.

11 Turning now to the Husband, his response to the Wife's allegations was simply that...