A costly court issue

Q: Dear Mrs Macaulay,

A custody order was determined in my favour in the Family Court (on application by me), but an order for access and maintenance was determined in the Supreme Court on application by my child’s father. At the time of the order he had stated that he wasn’t employed, and as such a basic sum for maintenance was ordered with an “upon further order of the court” clause that the judge said was for amendments to be made once he found work.

This was three years ago and I’m still not sure of he has found work, as he lives overseas and we are barely in contact. He refuses to tell me if he is working, but his lifestyle seems to indicate that he is. I want to go back to court to have the maintenance order varied, as well as to apply for him to pay maintenance for some months that he missed. However, the attorney’s costs are exorbitant.

Is there any way to have this order dealt with in the Family Court where I won’t need an attorney? If not, how would you suggest I approach this?

There were no allowances for a yearly increase or for any other help with the child’s expenses, other than this one monthly sum which can barely buy groceries for a week. As our child grows, so do the expenses but the father does not seem to understand this.

A: I understand that you applied for and obtained an order granting you custody, and care and control of your child in a Family Court proceeding. Then I understand that the child’s father applied to the Supreme Court and that orders were made, and as he had stated that he was unemployed at the time, only a “basic sum” for his maintenance contribution was ordered until further order of the court, if and when his circumstances changed.

You wish to apply for a variation of the maintenance order and for the payments of arrears of the ordered monthly maintenance. You say that attorney’s fees are exorbitant and so you ask whether you can do all this in the Family Court where you can act for yourself.

Since he has been in breach of the Supreme Court order, he is in contempt of that court’s order and only that court can deal with this. Additionally, you are seeking a variation of an existing order; but only the court which made the order can vary it and the words “until further order of the court” refer and can only refer to the court which made the order. Though these words are not necessary for you to be able to apply for a variation, they were added to the order you say and so must be given their ordinary meaning.

You see, orders relating to children are all liable to be varied as in law as there is always “liberty to apply” , which means that either party can apply to vary the order by way of an increase, a decrease, or that even that the person obligated to obey the order be discharged from it.

In circumstances like yours, when the father of your child has breached the order, you could apply for him to be committed for his breach (that is sent to prison) or bound over to obey it or otherwise as the court deems fit, and also for an order for him to pay up the arrears with interest. Then you could and should add your application for a variation of the maintenance sum by way of an increase and put in a claim for your costs of the application.

A lawyer acting for you will take your instructions and draft the application and your affidavit in support for you to sign them. He/she will file them and when a date is inserted therein, ensure that the father of your child is served. This can be done while he is in Jamaica, if you can say about when he would be here, perhaps to exercise his access to the child? Service in Jamaica would be cheaper.

This would be an open court hearing and once he was served and attends, the matter can proceed and be dealt with that day. Indeed, once service on him is proved, if he does not attend, you may still on the hearing day obtain your order.

I suggest that you shop around for a less “exorbitant” lawyer. There are many who charge reasonable fees, so do not despair. And, in any event, once you are awarded costs, and this is paid, this will go some way to defray part of your total costs obligation to your lawyer. Do try to do what you must and also check the Legal Aid clinics at the Norman Manley Law School and at Tower Street, Kingston.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver. com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5.