Quesnel v Quesnel

• Jurisdiction: Trinidad & Tobago
• Court: High Court (Trinidad and Tobago)
• Judge: Brathwaite, J.
• Judgment Date: 26 July 1979
• Neutral Citation: TT 1979 HC 84
• Docket Number: No. M-179 of 1977
• Date: 26 July 1979

Quesnel

and

Quesnel

Braithwaite, J.

No. M-179 of 1977

High Court

Family Law - Custody.

Appearances:

Mr. Razack for the petitioner.

Mr. Alexander for the respondent.

Brathwaite, J.

1 By a summons dated the 9th day of November, 1978, Christian Scott Quesnel (in this judgment referred to as “the applicant”) applied for the following orders:

• (A) for a further order varying the order of Roopnarine J. made on the 13th day of June, 1977 upon the pronouncement of a decree nisi between the parties whereby the respondent was granted custody of the child LEE SCOTT QUESNEL born on the 23rd day of October, 1974 and now granting custody of the said child to the petitioner;

• (B) AND ALSO for the following orders:

  • (1) that the said child shall continue in the care and control of the petitioner until determination of this application;

  • (2) that the said child may be made of this Honourable Court: or alternatively

  • (3) A declaration that the said child is and always has been a ward of this Honourable Court since the inception of the proceedings herein;

  • (4) Any further or other consequential orders.

2 Paragraph 20 of the affidavit of Jennifer Elizabeth Quesnel (now Yendrys) the former wife of the applicant (in this judgment referred to as “the respondent”) sworn to on the 16th day of November, 1978 reads as follows: “20. In the circumstances, I crave leave that the custody of LEE be granted me and that the court also grants leave to take LEE out of jurisdiction on the undertaking that LEE will spend the summer vacation in Trinidad with the petitioner.”

3 The record shows that the applicant and the respondent were married on the 5th of January, 1974, at the St. Patrick's Roman Catholic Church, New Town, Trinidad and Tobago. They lived and cohabited together at No. 47 Westpark Villas, Westmoorings until December, 1974, a period of approximately eleven months, when the respondent left the matrimonial home as a result of differences the nature of which has not been disclosed at the hearing of the summons. Perhaps this may be irrelevant to the issue of custody but there, for what it is worth, it is. In the meantime on the 23rd day of October, 1974, a child subsequently named LEE SCOTT (in this judgment referred to as “LEE”) was born to the family.

4 On the 13th day of June, 1977 Roopnarine J. granted a decree nisi of divorce to the applicant on the grounds of two years separation. In the acknowledgement of service (Form 7) the respondent indicated that she did not intend to defend the case and consented in writing by a document dated the 14th March 1977 to the petition being filed by the applicant. Roopnarine J. in his order included these two paragraphs:

“AND THIS COURT FURTHER ORDERS that the child do remain in the custody of the respondent, until further order of the court:

THIS COURT DECLARES that the court is satisfied that the only child who is a child of the family to whom section 4 of the Matrimonial Proceedings and Property Act 1971 applies is LEE and that arrangements for the welfare of the said child have been made and are satisfactory.”

5 The following were the relevant portions of the “Statement as to Arrangements for Children.”

“1. LEE SCOTT, age 2 years

• (a) Residing with the respondent at 1A Bergerac Road, Apartment 4, Maraval, who looks after him and is at present responsible for his care and upbringing;

• (b) The said child attends nursery school;

• (c) The petitioner is responsible for his maintenance and support, to writ: The petitioner pays the term fee at the nursery school in the sum of $120.00 and gives the respondent the sum of $250.00 presumably per month (my own words), for the said support.

• (d) No arrangement has been made with regard to access.

6 The arrangements proposed for the child in the event of a decree being granted are as follows:

• (a) Residing with the respondent at 1A Bergerac Road, Apartment 4, Maraval, who looks after him and is at present responsible for his care and upbringing;

• (b) The said child attends nursery school;

• (c) The petitioner would continue to support the said child;

• (d) Arrangements would he made for the child to visit the petitioner and to spend part of the school holidays with the said petitioner.”

7 The decree nisi of divorce was made absolute on the 15th day of August, 1977 on which date I was satisfied that the unconditional custody of the child of the family LEE was with the respondent and that the arrangement for his maintenance and support stood as it was when the learned judge granted the decree nisi. In so far as issue of custody was concerned at this stage, I was in little doubt that the applicant had intentionally agreed that the custody of LEE should be with the respondent. Indeed, in the petition for divorce, the applicant specifically deleted any claim for the custody of LEE. What is more is that in answer to counsel for the respondent the applicant admitted that, at least up to the date of the decree nisi “I thought that she was a fit and proper person to have custody of LEE.” In fact not until the 12th of July, 1978 did he show any opposition to his earlier wishes. (q.v. summons and supporting affidavit dated the 12th July, 1978 later withdrawn).

8 I must therefore, I think, take it that at least up to the 12th July, 1978, the applicant was of the opinion that the respondent was, notwithstanding the cause of the breakdown of the marriage, or, to put it another way, in spite of whatever the cause of the breakdown of the marriage may have been, a fit and proper person to have the custody of LEE. Perhaps it may be apposite at this point to state that the applicant was remarried on the 1st of October, 1977 to the former Gillian Yearwood and the respondent was remarried on the 12th October, 1978 in Canada to Wayne Yendrys, a Canadian national. The respondent is since her marriage ordinarily resident in Canada and it is her clear intention to take LEE to Canada to live with her new husband and herself. As I have stated above, at para. 20 of her affidavit sworn to on 16th day of November, 1978, she undertook to see to it that LEE would spend the summer vacation with the applicant. This undertaking is obviously one which the court can neither enforce nor supervise. Accordingly the court would be hesitant to include in any order it might wish to make any such undertaking. Be that as it may what, I think my prime and paramount consideration ought to be is the best interests of the welfare of the child LEE in all the circumstances and facts as I have found them.

9 The secondary consideration is to decide whether at to what extent (if any) the competing claims, wishes and desires of the chief protagonists in this case should influence the fundamental consideration of the interests of the welfare of the child LEE. No less than seven affidavits were filed in support of the applicant's claims:

• (1) the affidavit of the applicant sworn to on the 10th November, 1978;

• (2) the affidavit of Gary Anthony Fitzwilliam sworn to on the 21st of November, 1978;

• (3) the affidavit of Ian Rostant also sworn to on the 21st of November, 1978;

• (4) the affidavit of Johanna Grace Ada Nothnagel sworn to on 21st of November, 1978;

• (5) the affidavit of Gillian Quesnel (the applicant's present wife) sworn to on the 10th of November, 1978;

• (6) the supplemental affidavit of the applicant sworn to on 22nd of November, 1978; and

• (7) the supplemental affidavit of Gillian Quesnel sworn to on the 12th of December, 1978.

10 The clear and combine intention of these affidavits was to show the respondent who had immediately prior to the filing of the summons dated the 12th July 1978, been regarded by the applicant as a fit and proper person to have the custody of the child LEE had now degenerated into a loose, dissolute and totally unworthy mother. Counsel for the respondent was able to show counsel for the applicant had to admit that most of the facts deposed to which tended to denigrate the moral character were based on hearsay and these allegations were accordingly expunged from the affidavits wherein they were made. (With this done the hearing proceeded). Four affidavits were filed in answer to those filed by the applicant:

• (a) the affidavit of the respondent sworn to on the 16th of November, 1978;

• (b) the affidavit of Helen da Silva (the respondent's mother) also sworn to on the 16th of November, 1978;

• (c) supplemental affidavit of the respondent sworn to on the 10th of April, 1979; and

• (d) affidavit of Michael Torry dated 30th of April, 1979.

11 In addition to these affidavits and the cross-examinations thereon the evidence was augmented by the cross-examination of Dr. Michael Camps on a medical opinion which he gave in a document (exhibited as G.Q.1) attached to the supplemental affidavit of Gillian Quensel (the applicant's present wife) dated the 12th of December, 1978. The evidence of the applicant on affidavit and in cross-examination seems to indicate that what was uppermost in the applicant's mind was the probable removal of LEE from Trinidad and Tobago to Canada where his mother had expressed an intention to reside with her present husband.

12 At paragraph 15 of his affidavit dated the 10th of November, 1978 the applicant deposed inter alia, as follows:

“I believe that she intends to take LEE to Canada without any regard to his welfare and best interests ………….……….. For the first time in his life he has settled down as part of a family and I believe that it would be unsettling and have an adverse effect upon him to be removed from my home to go to Canada where he would have to adjust to a strange environment and a new step-father who has never met.”

13 (These facts were deposed to at a time when LEE was for the time being residing with the applicant.). To a large extent the views of the applicant in this respect were supported by the medical opinion of...