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GITTENS v. TULL

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Citation # BB 1985 HC 74
Country Barbados
Court High Court.
Judge Rocheford, J.
Subject Family law
Date November 22, 1985
Suit No. No. 269 of 1984
Subsubject Defacto spouses - Application under the Family Law Act for custody of infant and
declaration of half share ownership of chattel house and furnishings - Whether the
applicant came within the definition in the Family Law Act, section 39 of a party to a
union other than marriage - Court found that the evidence given by the parties
conflicted - Evidence given by respondent and on his behalf accepted - Parties were
found to have never cohabitated at either parent's home before cohabiting together -
Finding made that the parties cohabited from 1982 to 1984 for a period of two years
and therefore did not come within the definition in section 39.
Full Text Appearances:
Mr. P.D.H. Williams of Messrs. Yearwood & Boyce for the applicant.
Mr. R.O. Kelman for the respondent.

ROCHEFORD, PJ.: This is an application by Milda Gittens under the Family Law Act,
1981 in which she seeks the following orders against Reynold Tull:-

1. That the custody of the infant child of the union, Anderson Ricardo Gittens, born
on the 8th day of December, 1978 be granted to the applicant and the respondent
jointly.

2. That the applicant be granted the care, control and . guardianship of the said
infant child of the union.

3. That the respondent be ordered to pay to the applicant such sum by way of
maintenance for the said infant child of the union as to the Court may deem just.

4. That the respondent be granted reasonable access to the said infant child of the
union.
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5. That it be declared that the chattel house situate at Chapel Gap, in the parish of
Saint James, in this island is owned by the applicant and the respondent in equal
shares or such Order as to the ownership thereof as may be just.

6. That it be declared that the furniture and fittings situate at the said house at
Chapel Gap and as set out in the applicant's affidavit filed herein are owned by the
applicant. (end of page 1)

7. Further or in the alternative, such order as the Court deems just altering the
interest of the parties hereto in the said house so as to vest one-half share of the
said property in the applicant.

8. That the said house be sold at the best price obtained by private treaty or by public
auction and that out of the proceeds of sale there be paid such agent's or
auctioneer's fees and Attorneys'-at-law fees and advertising fees as are reasonably
incidental thereto and that the net proceeds of sale be divided equally between the
applicant and the respondent.

9. That the respondent be ordered to pay the applicant's costs.

10. Such further and other relief as the Court may deem just in relation to the sum of
$5,000.00 paid to the respondent in trust for the purchase of land for the applicant
and respondent.

The applicant alleges in her affidavit of the 24th September, 1984 as follows -

"2. That the respondent and I lived together in a union cohabiting continuously as
man and wife from in or about the month of October 1978 until the 25th day of April,
1984."

The respondent denies this. In his affidavit of the 7th November, 1984 he states -

"2. That it is inaccurate to depose that the Applicant and I lived together in a union
cohabiting continuously as man and wife from in or about the month of October
1978 until the 25th day of April, 1984."

Oral evidence was given by the parties and by the applicant's mother Una Barker
and by the respondent's mother Ursula Tull.

The applicant's story is as follows. While she was pregnant, i.e. during 1978, the
respondent left his sister's home and resided with her at her mother's home at
Palmers, St. John. He lived there for about 3 years, until the child was about 2 years
old. They left her mother's home, together and resided at the home of the
respondent's mother at The Risk, St. Peter. They moved, in late 1981, together, to a
house at Chapel Gap, St. James. In cross-examination she said that for a period of
time 4 persons resided in her mother's home, namely her mother, her brother, the
respondent and herself.

The applicant's mother said - "He (the respondent) was living at my home 1½ years
with my daughter while I was living at Coach Hill, St. John." (end of page 2)

She also said that she left her house at Palmers about 6 to 7 months before the
child was born i.e. in June or July 1978 and returned to her house on the 2nd
October 1979, and that the respondent went back to his mother's home. In cross-
examination she said - "The respondent never lived in my house while I lived at it".

The applicant has said that the respondent lived with her at Palmers for about 3
years (from mid or early 1978 to late 1981) and that during this period of time her
mother resided in the home. The applicant's mother has said that the respondent
lived at her house for about 1½ years (from mid 1978 to October 1979) and that
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during this period of time she was not residing in her house at Palmers. There is a
serious conflict within the evidence for the applicant. In contrast to this the
respondent and his mother have maintained that the respondent never resided in
St. John, also that the applicant never resided in St. Peter and that they lived together
in St. James from February 1982 to 25th April, 1984.

I am compelled to reject the evidence for the applicant. I accept the evidence for the
respondent. I find that the parties cohabited for the period February 1982 to 25th
April, 1984 at a house in St. James. This period of cohabitation for 2 years 2 months
does not bring the relationship established by the parties within the definition of
"union other than marriage" set out in section 39 of the Act. The application is
dismissed. No order as to costs.

Puisne Judge (Acting)

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