Missing ex hindering court progress

Dear Mrs Macaulay,

A few years have passed since you had given me substantive legal advice which further motivated me to do what was deemed correct as a father. I followed your instructions and have successfully retained a lawyer in my paternity case. The fixed affidavit and declaration was drafted over a year now, and my lawyer made numerous attempts to serve the baby’s mother with the court papers. Each time she promised to show up at an area to pick them up, she does not appear. The papers were even brought to different addresses she provided, but they turned out to be fictitious. The court date was held in January 2016 and was adjourned as the papers were not yet served to the defendant. My lawyer is contemplating going the route of a Substituted Service. Can you shed some light on what this could mean in my case?

For some background, my ex and I lived together from November 2012 until May 2013. She walked out on me when she was six months pregnant, and got together with another guy. The baby was born in September 2013. I want to be involved with this child, as I’m a young professional and I know I could make that child both mentally and socially better off in life. It was my belief that she had given the child the name of the guy she eloped with. She refused a DNA test.

I am very happy that my earlier advice was helpful and that you have acted on it. However, I am sorry that your legal action has not progressed to the actual hearing because the mother of your child has been avoiding service, while giving the impression that she is willing to accept it. In doing this, she has caused the matter to drag on and you must have service effected as soon as you can.

As you refer to your documents as ‘fixed affidavit and declaration’, I understand you to be referring to a Fixed Date Claim Form seeking a declaration of paternity and consequential orders, supported by your Affidavit in Support. This ought to have been served, giving the defendant — your child’s mother — at least 28 days before the date endorsed in the Claim Form for the hearing for her to file her Acknowledgement of Service within 14 days and then file her Affidavit in Answer within 14 days thereafter.

As you said, this did not happen because she kept breaking her promises about where she stated she would be found to be served. As this seems to be the norm, your lawyer is perfectly correct about applying for substituted service by way of a family member of hers and/or by advertisements in a national daily newspaper which you know she used to read. The number of advertisements and their spacing would be as ordered by the court.

This could have been done on the January date of hearing, as several attempts to serve her had failed by then. However, it should be done now as quickly as your lawyer can obtain a date for it to be heard. It being an ex parte application, plus the fact that it has to do with a child, and because a hearing date for the main claim has already been fixed by a judge, would assist the attorney to obtain a date through the Registrar for the application to be heard quickly.

This should enable your substantive application to be heard on the adjourned date fixed by the judge. All efforts must be made for the hearing to proceed on that date because the order for Substituted Service would have been obtained and effected and proved by the filing of an affidavit exhibiting the copies of the pages of the newspaper advertisements and the details of service on a member of her family (if any was ordered).

Your child is getting older as time goes by, and the sooner you complete your application, have the DNA test ordered and done, and on its positive result, obtain the declaration that you are the father, plus consequential orders for your name to be put on the birth records and certificate, the better. Plus, and most importantly, you should have access to your child so that you can build a relationship and a bond and assist with the child’s development.

You must also ensure that the court also makes an order about your contribution for the child’s maintenance. If this is not one of the orders sought in your application and your lawyer had included a claim for “Such further and/or other orders as may be just”, or words to that effect, the request for an order fixing your maintenance contribution can be orally done at the hearing. If similar words were not included in the application, then an application to amend should be done and can be added to the ex parte application for substituted service to save time, then the amended Fixed Date Claim Form would be filed in court, and that would be the subject served in the substituted manner as ordered.

I hope I have again assisted you. I wish you the very best and fulfilling years as a father.

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. All responses are published. Mrs Macaulay cannot provide personal responses.DISCLAIMER:The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.

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. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.