Sienarine v Sieunarine

• Jurisdiction: Trinidad & Tobago
• Judge: Ramkerrysingh, J.
• Judgment Date: 15 April 2007
• Neutral Citation: TT 2011 HC 102
• Docket Number: FH No. 1603 of 2007
• Court: High Court (Trinidad and Tobago)
• Date: 15 April 2007

High Court

Ramkerrysingh, J.

FH No. 1603 of 2007

Sienarine

and

Sieunarine

Appearances:

Ms. Veena Badrie-Maharaj, instructed by Mr. Varude Badrie-Maharaj for the petitioner

Mr. Gregory Amourer, instructed by Ms. Dawn Mohan for therespondent

Family Law - Matrimonial property division — Child — Maintenance.

Ramkerrysingh, J.

1 On the face of itthis matter was not a ‘big money case’ nor did it contain any complex or novel points of law, but nonetheless was unduly prolonged by the sheer volume of the evidence. I want from the start to commend the Attorneys for their diligence and to thank them forthe assistance rendered to the court, through their comprehensive submissions and authorities and the level of professionalism both sides displayed, undersomewhattrying circumstances. By the same token however, it ismy view that a lot of time and effort could have been saved and lengthy delays avoided, had the matter been approached in the manner discussed later in the judgment [see paragraphs 52 et al].

FACTS OF THE CASE AND THE APPLICATIONS

2 The parties were married in 1993 and have two children; Nikita now aged 16 and a boy Anjay, six years old. The Husband, a Gynaecologist/Obstetrician had, for many years, worked at the General Hospital inSan Fernando. He also operated a private practice out of the Gulf View Medical Centre. In 2008 he accepted early voluntary retirement from the Ministry of Health - which according to him was mandatory - and since then has been operating hisprivate practice full-time. From his evidence it seems that long before he made this move, the marriage was in turmoil and on September 5, 2007 he filed his petition for divorce relying on the fact of the Wife's intolerable behaviour. On the 31st October 2007, the Wife filed anAnswer and Cross-Petition in which, unsurprisingly, she blamed the breakdown of the marriage on the Husband's behaviour. There was tremendous acrimony between theparties, each using their respective pleadings to hurlthe other with despite, so I was heartened when on thehearing of the divorce on 22nd November 2007, there was compromise on both sides and the parties consented to the expulsion of several paragraphs in their respective pleadings and agreed to mutual decrees.

3 The Husband had applied for injunctive relief on the 3rd day of April 2007, and by the time the Petition and Answer and Cross-Petition came up for hearing, the Wife had, on the 7th of November 2007 filed her Financial Application by which she sought the following:

• a. Maintenance in the amount of $5000 per month for each of the two children;

• b. Maintenance pending suit for herself in the sum of $6000 per month; or alternatively

• c. A lump sum for such period during her course of study of the law until she was admitted to practice as an Attorney at Law in Trinidad and Tobago;

• d. An order under section 53 of the Act for occupation of the former matrimonial home to the exclusion of the Husband until final determination of the property settlement application;

• e. Property settlement in the former matrimonial home in the proportions of ¹/₄: ¹/₄ in her favour; and

• f. A further lump sum.

4 In my judgment much of the contention stemmed from the fact that the Wife complained that the Husband was in the habit of excluding her from his financial affairs and that for several years he customarily hid his assets, by holding several joint accounts with his sister and father claiming that the monies in those accounts were not his, when in fact, they were. She was particularly skeptical about his private practice from which she was certain he generated about $40,000 per month and not the $9000 figure he claimed, and surreptitiously procured receipt books from the Gulf View Medical Complex (GVMC) in support of her assertion. The Husband on the other hand painted a much bleaker picture of his financial status saying that being the sole breadwinner and bearing the responsibility for severalsubstantial loans, he was only just able to make ends meet. He agreed that at one time he held a joint account with his sister and that he was the only contributor to that account, but denied that he was the owner of the other major accountwhich he held jointly with his father. Two witnesses were summoned from the Ministry of Health to give evidence of his salary. The first, Sheryl Pariagsingh a pay-sheet Clerk from the Ministry of Health, and the second, Kathleen Rajnauth., Paymaster at Mount Hope Medical Sciences Complex, both of whom were responsible for preparing different aspects of the Husband's salary when he worked in the public service. The former was responsible for his allowances and special incentive payments, while his basic salary was paid out of the Mt. Hope office, responsibility for which lay with Ms. Rajnauth. Tricia Ali the Executive Administrator and daughter of one of the Directors of GVMC was also questioned on the cost of various medical procedures and produced numerous receipts touching the Husband's private patients. Because of the high level of confidentiality involved and the peculiar arrangement between GVMC and its practicing physicians, she was represented by independent legal advisers at the trial.

5 Let me pause at this juncture to comment on the respective parties' disposition at trial and say that having had the opportunity to observe them carefully, I have come to the conclusion that neither of them set out to deceive or mislead the court and while the Husband, who was not spared some very vigorous and thorough cross-examination by Mr. Amourer was guarded in his responses, he was not swayed and remained unshaken throughout his testimony. The Wife on the other hand seemed a bit confused by some of the questions and was vague in her responses, but I find that she too, like the Husband did not fabricate her evidence. That is not to say, that as is the case with most separating and divorcing couples, that I do not find that they each did not try their best to highlight and in some instances exaggerate their own contribution to the marriage, while simultaneously diminishing that of the opposite side.

6 Returning to the evidence, when the Husband accepted the Voluntary Separation package from the Ministry of Health, his private practice became his sole source of income and at the time of filing his Form 9 he claimed that he earned about $9000 (gross) per month from that venture which, he said, was barely enough to meet the needs of the family and cover his overheads at the office. The Wife on the other hand, believed that the Husband's private practice was a highly profitable concern and was convinced that he was concealing its true worth. It is no surprisetherefore that almost from the start, she spent countless hours, which undoubtedly would have driven up litigation costs, in summoning representatives of the GVMC and copying large numbers of receipts in an effort to support her contention that the Husband's private practice was much more profitable than he claimed.

7 The Husband in turn was cross-examined at length about his practice. He indicated that a routine visit cost $180; and the cost of surgical procedures ranged from between $1000 to $1200 for low-end procedures like dilation and curettage, to about $6000 for a hysterectomy or caesarean delivery. Normal deliveries he said cost about $3000. Tricia Ali referred to above gave evidence on the nature and costs of certain procedures, which in essence corroborated the Husband's evidence. The Husband was also questioned on his work schedule which he said began from about 9 or 10 a.m., Mondays to Fridays, ending by midday on Mondays and Wednesdays to pick up the children from school. He also worked on Saturdays and may drop in on a Sunday to check on a patient, as part of his post-operative care, for which he did not charge an extra fee. Fees were however charged for follow-up visits for patients who had been discharged.

8 Mr. Amourer then enquired as to the number of surgical patients the Husband attended to on average per week and he answered that it was difficult to give a figure on a weekly basis since “[w]eeks may pass without having any surgery.” According to him as much as eight weeks may go by before he performed a surgical procedure. He continued that he may see about 15 regular patients on average a week, that is, patients not requiring any extraordinary medical attention. The Husband stated that there were times when he performed an operation or conducted a complex procedure and in such instances the fee charged would be more than the regular visit and the earnings would reflect those fees, but generally speaking the bulk of the earnings from month to month came from the ordinary medical check-ups and other routine visits. I got the impression that Mr. Amourer was disappointed by the Husband's answers nodoubt because of the contradictory instructions he might have received from the Wife.

9 A close examination of the bundle produced by Ms. Ali as well as her testimony moreor less supported the Husband's evidence that on average he received about $8000 to $9000 per month from his private practice, even on a full-time basis, out of which he pays a monthly fee of $3,000 to cover the use of the office space, receptionist and janitorial services, electricity and telephone facilities.

10 A very interesting issue was raised by Mr. Amourer about the Husband's neglect todeclare the income from his private practice. It is common knowledge that this is an issue that persistently plagues theBoard of Inland Revenue. The Husband admitted that he did not declare the income from his private practice and Mr. Amourer sought to have the court infer from that, that it was indicative of a pattern of behaviour from which one could conclude that the Husband was guilty, or at the very least capable, of hiding his assets, but I hesitate to make such an inference for reasons...