Justin v Justin

• Jurisdiction: St Lucia
• Judge: St. Bernard, J.A.,E. L. St. Bernard,,,Davis, C.J.
• Judgment Date: 20 October 1975
• Neutral Citation: LC 1975 CA 6
• Date: 20 October 1975
• Court: Court of Appeal (Saint Lucia)
• Docket Number: Civil Appeal No. 1 of 1975

Court of Appeal

Davis, C.J., St. Bernard and Peterkin, JJ.

Civil Appeal No. 1 of 1975

Justin

and

Justin

Appearances:

V. Cooper for appellant.

M. Gordon for respondent.

Family law - Husband and wife — Community of property

Family law - Custody — Access by parent who was not grantedcustody

Facts: The respondent alleged cruelty on the part of her husband and sought inter alia; judicial separation from bed and board; that the defendant be declared to forfeit all rights in the community; that she be granted custody of the children of the family and that the defendant be ordered to provide maintenance for herself and the children of the family. When the case was heard at first instance, the trial judge found the allegations of desertion and cruelty proved and granted the respondent's requests. On appeal the appellant/husband sought a declaration that the business, equipment and machinery etc. of the Lithographic Press was not community property, and that he should have daily access to the children.

The trial judge granted the respondent/wife separation from bed and board on the ground of cruelty and granted custody of the children of the family to the respondent. The appellant/husband appealed against the decision on the ground that the right of access once a week was “unreasonable”.

Held: The question whether the Lithographic Press was in community had not been an issue at the trial. Under the provisions of the Civil Code and the Code of Civil procedure relating to the community property an order of separation from bed and board has the effect of dissolving the community and also provides the machinery for disposition of the property. It follows therefore that the learned trial judge, in making the order affecting the company, when beyond what was required under the law when he stated that there should be separation of community in so far as it relates to the Lithographic Press (St. Lucia) Ltd. On the question of access to the children daily access would be allowed to one child and three times a week in respect of the other two.

There was not sufficient evidence on the record to justify the order restricting the appellant's access to once weekly. The order would be varied to allow daily access with respect to one child and access three times weekly in respect of the other two.

St. Bernard, J.A.

1 The respondent in her declaration dated the 8th November, 1974 made allegations of cruelty and desertion against the appellant and sought the following relief:

• “(1) That she may be judicially separated from bed and board from the defendant;

• (2) That the defendant be declared forfeit of all rights in the community and that the defendant be ordered to return to the plaintiff the following items of community property, namely, one refrigerator, one bedroom suite, one dresser, one stereo set and oil paintings which said items the defendant removed from the matrimonial home on his desertion therefrom;

• (3) That the plaintiff be granted custody of the said children of the family;

• (4) That the defendant be ordered to provide a sum to be determined by the court for the maintenance of the plaintiff and the said children of the family;

• (5) That the defendant be ordered to pay for the costs of these proceedings; and

• (6) Such other relief.”

2 At the healing of this appeal counsel for the respondent stated that he had abandoned at the trial paragraph(2) of the prayer. The defence put in issue the questions of desertion and cruelty, and the custody of the children.

3 The trial judge found the allegations of desertion and cruelty proved and made the following order:

• “(a) That she be judicially, separated from bed and board from the defendant;

• (b) That she be awarded the custody of the three children of the marriage, namely, Andre Mark born 3rd October 1963, Darren Augustus born on the 6th March, 1967, and Orrin Jason Paul born on the...