Juliet Bignall v Bashiru Issaka
| Jurisdiction | Turks and Caicos Islands |
| Judge | Williams, C.M. |
| Judgment Date | 17 March 2008 |
| Date | 17 March 2008 |
| Court | Supreme Court (Turks and Caicos) |
| Docket Number | 98/07 |
Providenciales Magistrates Court
Williams, C.M.
98/07
Mr. Finbar Grant appeared for the applicant.
Mr. Melbourne Wilson appeared for the respondent.
Macey v. Macey [1982] 3 F.L.R. 7
P v. P [1978] 1 W.L.R. 438
Barrett v. Barrett [1988] 2 F.L.R. 516 (CA)
Kyte v. Kyte (1988) Fam 185
K v. K (1990) Fam Law 19
Watchel v. Watchel (1973) Fam 72
Vasey v. Vasey [1985] F.L.R. 596
Sections 3(b); 4(1); 5(2); 5(3); 5(4); 10(1) and 10(2) of the Domestic Proceedings Ordinance of The Turks & Caicos
Child Support Act, 1991 of England and Wales
Domestic Proceedings and Magistrate's Court Act, 1978 of England and Wales
Section 23 of Matrimonial Causes Act 1973 as amended of England and Wales
Family Law - Children — Maintenance — Whether the child was a child of the family — Veracity and credibility of witnesses — Reasonable maintenance for the children of the family — Reduction in career prospects as a result of motherhood — Affiliation order can only be granted to a single woman — Whether the natural father should be required to maintain the child of the family where the mother had married the child's stepfather — Finding that the Respondent had failed to make proper contribution towards the reasonable maintenance of both children — Maintenance ordered.
This matter concerns an application made by the Jamaican applicant Mother, Juliet Bignall, aged 40, for maintenance for the children of the family from the Ghanaian respondent, Mr. Bashiru Issaka. The parties were married in November 2000 in Jamaica and separated in 2005. The family resides in the Turks and Caicos Islands. There are no pending divorce proceedings before the Courts and both parties state that a decree nisi and possibly a decree absolute have been granted. The parties informed the Court that Acting Chief Justice Martyn did not make an order for maintenance, as he recommended that such an application should be made in the Magistrate's Court.
The applicant filed an application for maintenance pursuant to Section 3(b) of the Domestic Proceedings Ordinance in relation to the two children of the family namely, Shakeria Issaka (DOB 27/10/2002) and Inderia Harvey (DOB 4/12/1993). This application was filed on 12th October 2007. The Mother contends that the respondent has failed to provide, or to make a proper contribution towards reasonable maintenance for any of the children. The children reside with their mother. The matter came before the Court on 13th December 2007 when Mr. Grant appeared for the applicant and the respondent appeared in person. The Court made an interim order that the respondent do pay $100 per week along with school fees until 14th February 2008 and the matter was adjourned to 14th February 2008 for hearing. On 14th February, both of the parties concluded their evidence and the interim order was extended and the matter was adjourned for submissions on 29th February 2008. The Court was unable to sit on the 29th February and the matter was adjourned until 4th March 2008, when the submissions were received. The interim order was extended to 12th March 2008.
The applicant works, on a $1,000 work permit, as a nail technician and has an income that varies between $300 to $700 per week. The applicant told the Court that she has no other income. The applicant works between the hours of 9am and 6pm, except on Sundays. When Ms. Bignall is at work the children are looked after by neighbours for no charge. The mother stated that she left school at aged 18 and did some clerical work but then she became a nail technician, a trade that she has plied for the last 14 years. She gave up her own business in Jamaica when she was persuaded by the respondent to move to the Turks and Caicos Islands. She lives in a one bedroom rented flat in Blue Hills with the two children. Shakeria has to attend a private school in the Bight which costs $1,000 per term, as there are no places in the public school system for her. Inderia attends the Clement Howell High School.
The applicant confirmed the respondent is not the natural father of Inderia. Ms. Bignall contends that when they started to co-habit that Inderia was then five to six years old. She stated that the respondent used to treat Inderia “very good” and, “as a child of the family, as a family unit.” The applicant said that he changed when in around 2005 he was encouraged by others to leave her in order to marry someone who could enable him to get immigration status.
The applicant set out her expenditure in her oral evidence. I do not seek to reproduce those figures herein, as they are clearly set out in my typed contemporaneous note of the proceedings. The outgoings appear to be reasonable and really only cover the bare essentials of living. The applicant was not cross examined on these figures and therefore the Court accepts them.
The applicant disclosed that she had managed to save $2000 for emergencies. She said that the money was needed for car parts and because she intended to take the children to Jamaica in the summer when the flight would be between $1,600 – $1,700.
There was no cross-examination of Ms. Bignall. The respondent's Evidence
Mr. Issaka is primarily employed, on a $1,000 work permit, as a painter for ‘Island Plaster.’ At the outset of the respondent's examination in Chief, his Attorney very clearly stated to the Court that there was no issue taken as to the applicant's contention that he had treated Inderia as a child of the family. Rather surprisingly, it was only during Mr. Wilson's closing submissions that he appeared to be submitting something different. On hearing this, although it is the respective party's responsibility to present all relevant evidence from witnesses or documents to the Court before closing their case, I asked Mr. Wilson on a number of occasions during his submissions whether he would be making any application for leave to adduce further evidence on this point. Mr. Wilson said that he did not wish to make any application to adduce any further evidence. Therefore on the evidence before the Court I find that Mr. Issaka treated Inderia as a child of the family.
Mr. Issaka filed his completed questionnaire and also gave oral evidence. In his questionnaire he signed the declaration which read, “I declare that the information that I have given is correct and complete to the best of my knowledge.” During his evidence in Chief, when shown the questionnaire by the Court, Mr. Issaka stated that he recognised it and that, “the contents of the form are to the best of my recollection true. I ask the Court to take notice of that information. That is my signature on the form.” He gave his income as being on $528 and importantly he failed to disclose any other income from any other employment or other sources.
The respondent set out his expenditure in his oral evidence and in his questionnaire form. I do not seek to reproduce those figures herein, as they are clearly set out in my typed contemporaneous note of the proceedings and on the said form.
The respondent contended that he lives alone but said that he did have a lady friend. During cross examination he admitted that he had lived with a Mr. Baba but that came to an end last year. It does appear that he has some capacity to reduce his domestic outgoings by sharing his accommodation. Mr. Issaka said he had children in Ghana and that he sends $300 per month for their maintenance. He has an outgoing of cable television at $50 per month which could go towards maintenance.
It is apparent that he has been able to save at least $4,000 in his bank account. When questioned by the Court as to how this possibly could be having regard to his disclosed income, his demeanour appeared anxious and unsettled. The respondent stated, in an unconvincing manner, that this large capital sum had been sent to him by friends. Although there is a duty to provide full and frank disclosure, Mr. Issaka did not call or seek to call any witnesses or produce any documentary evidence in support of this contention. This along with his demeanour called into question the veracity of his contention. The respondent said that he needed the money as his father was in hospital in Ghana with stomach problems and needed an operation that he would have to pay for. Again, despite the duty for full and frank disclosure, no evidence was given to support this contention
The respondent admitted that he was able to afford to go to the Dominican Republic for vacations at a cost of about $700 per trip. He said that he had been on vacation to Ghana which cost him $2000. Mr. Issaka said that he would on occasion go on vacation and coincide that with his work permit renewal which required him to be out of the jurisdiction.
When reviewing the respondent's initial evidence as to his income, it was difficult to see how he could possibly afford the lifestyle and savings that he had. However, during his evidence, a possible explanation did rise to the surface. It became clear that Mr. Issaka had not been forthright in his questionnaire and in his early oral evidence when he said that his only income came from ‘Island Plasterer.’ When the respondent was telling the Court about his car it became evident that he had only recently purchased it for the sum of $5,500. He then again exhibited an anxious and awkward demeanour as he tried to explain to the Court how he was able to pay for the vehicle. Mr. Issaka again said that a friend had given him the money. The respondent then appeared to get a little ‘muddled’, saying that his friend and then his girlfriend had given him $4,000. Mr. Issaka did appear to the Court to have realised that he had given evidence which on reflection did not corroborate his case that he had very limited...
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