A L P v E K L
| Jurisdiction | Barbados |
| Judge | Reifer JA |
| Judgment Date | 16 July 2019 |
| Neutral Citation | BB 2019 CA 12 |
| Date | 16 July 2019 |
| Docket Number | Magisterial Appeal No.2 of 2018 |
| Court | Court of Appeal (Barbados) |
Court of Appeal
Gibson, C.J.; Goodridge, J.A.; Reifer, J.A. (acting).
Magisterial Appeal No.2 of 2018
Mr. Hal Gollop QC for the Appellant
Ms. Diana Doughlin for the Respondent
Civil practice and procedure - Subsubject: Proper process to be followed by Magistrate's Courts on the hearing of applications filed under the Maintenance Act, Cap. 216.
Reifer JA (ACTING):
This is a magisterial appeal filed 16 April 2018 challenging a decision of the Magistrate's Court District “B” Oistins Civil Jurisdiction, delivered on 6 April 2018.
It raises for this Court's attention the consideration of the proper process to be followed by the Magistrate's Courts on the hearing of applications filed under the regime of the Maintenance Act Cap. 216 (the Maintenance Act) when issues arise with respect to the custody and guardianship of a child and arrangements for access and visitation by the parent who does not have custody and guardianship.
The facts can be stated shortly. The appellant is the single mother of the minor JDL, born to her on 22 August 2006 at the Queen Elizabeth Hospital. On 6 April 2018, JDL, a male child, was 11 years of age. Pursuant to the requirements of the Maintenance Act and the Maintenance Rules, 1984 (the Rules), the appellant filed a section 8 (Procedure where application made after birth) Form 1 application in accordance with Rule 4 (1) of the Rules on 23 November 2017. This is an application for maintenance simpliciter by a single woman having the custody of her child.
As prescribed by the said Form 1, the application applied for a summons to be served on the respondent whom the appellant alleged is the father of her already born child. She swore before the clerk of the Magistrate's Court for District “B” Oistins that the “allegation as to the paternity of my child is true” and that all other matters stated in the application are true.
It was as a result of this application that the magistrate granted custody of the minor child to the respondent and the appellant filed her notice of appeal.
This notice of appeal was filed 16 April 2018, ten days after the decision of the magistrate. Prior to the CCJ judgment delivered 26 March 2018 in the case of Sandy Lane Hotel Co. Limited v. Juliana Cato, Wayne Johnson and Charmaine Poyer, CCJ Appeal No. BBCV2017/004 ( Sandy Lane v. Cato) this appeal would have been deemed to have been filed out of time, as the relevant statute, the Magistrate's Courts Act Cap 116A (Magistrate's Courts Act), mandates at section 240 that such appeal must be brought within 7 days of the court's decision. This was affirmed by the CCJ in the decision of Deane v. Allamby [2016] CCJ 21 (AJ).
However, the CCJ in the Sandy Lane v. Cato case held that the scope of CPR 62 encompassed appeals from a magistrate's court, when at paragraph [19] their Honours stated:
“It is, therefore, beyond doubt that Part 62 provides for an appeal to be brought from the magistrate's court by filing a notice of appeal at the Supreme Court Registry and it further provides for sundry other matters, including a 28-day time limit and for service on respondents.”
In seeming response to the argument that subsidiary legislation cannot repeal the provisions of a primary statute, their Honours addressed this issue as follows:
“[20] … what exists as the reality is a situation where, under section 240, one method for appealing is provided and, under Part 62, another method for appealing is provided. We are satisfied this is the correct view of the situation that exists; however unsatisfactory such a situation may be.”
And at paragraph [22], in an interpretation of section 59 of the Supreme Court of Judicature Act:
“[22] The expression “rules of court” is stated in the definition section of the Supreme Court Act to include then existing rules as well as rules to be made under the authority of that Act. It is the fact, therefore, that the Supreme Court Act, [sic] the primary legislation, made the regulating provisions (such as time for appealing) contained in the Magistrate's Courts Act subject, or subordinate, to the rules of court which would be made in the future.
[23] That future came to pass in the form of the rules of court, the CPR, which included Part 62. As ordained by the Supreme Courts Act, [sic] those rules (and that Part) have overriding effect.”
In consequence, the notice of appeal filed 16 April 2018 was filed within time in accordance with CPR 62.
The Grounds of Appeal contained therein are as follows:
“(i) The Learned Magistrate erred in failing to thoroughly consider the fitness of the parties to determine which of them would be more suitable to be granted custody of the minor child.
(ii) No means report was submitted to the court either by the Child Care Board or any other appropriate body in order to assess the welfare of the minor child which ought to have been of paramount consideration in matters concerning guardianship and/or custody of the said minor child.
(iii) The Learned Magistrate erred in failing to consider that an application for maintenance was brought against the Respondent by the appellant.”
At the hearing of this matter on Thursday 12 April 2019, counsel sought and received the permission of this Court to add a fourth ground of appeal as follows:
“(iv) That the order made by the Learned Trial Magistrate discharging the maintenance order be re-instated including all matters relating to arrears.”
It is of more than passing concern to this Court, that while the appellant's application as long ago as April 2018 sought a stay until the resolution of this matter by the Court of Appeal, there is no evidence that a hearing was sought on this issue with the magistrate or this Court. This was in effect an application for urgent interlocutory relief concerning a minor child and it is imperative that as part of our ongoing streamlining of the system and strengthening of our case flow management that such matters be given early dates of hearing. Indeed, it is imperative that all appeals involving minor children be placed on a “fast track” to facilitate early hearing and resolution. Regrettably, there was no follow-up request by counsel for the appellant.
The magistrate's Reasons for Decision with his notes of proceedings attached clearly set out the chronology of events before him as follows:
-
1. The parties appeared before him twice on the application for maintenance: 23 February and 6 April 2018 respectively.
-
2. On the first occasion an interim order was made for maintenance after the respondent accepted that he was the father of the child and stated his earnings. This order was with effect from 2 March to 6 April 2018.
-
3. The magistrate stated in his reasons that the matter was then adjourned “for the child for whom maintenance was being sought, to have a say in which parent he would reside with”. This, as stated in the said document was after the respondent indicated that the child could reside with him, to which the appellant had no objection. It is noteworthy, that a Family Services Division of the Welfare Department report or a Child Care Board report were not requested to investigate the living circumstances of the parties and their suitability to the needs of the child. Nor was the advice or recommendation sought of these two professional agencies.
-
4. On 6 April 2018 the magistrate addressed the issues of maintenance and custody. On the issue of maintenance, no payments of maintenance having been made for the period 2 March 2018 to 6 April 2018 he first ordered all arrears to be paid by 13 April 2018. However, later in the proceedings “the Order as to Maintenance was Discharged and all arrears remitted w.e.f. 6 April 2018”. This was in accordance with the magistrate's power to so do under section 123 of the Magistrate's Courts Act.
-
5. On the issue of custody, the minor was brought to the court and “when asked indicated he wished to live with his father even though he had no difficulty living with either parent”. The magistrate stated further: “On this election, the subject child would live with his father.”
These additional facts did not form part of the magistrate's notes, but were found in the parties' written submissions. Their accuracy was not disputed by either side. It is apparent that the relationship between the appellant and the respondent ended when JDL was 3 years of age. The appellant at that time left the respondent's home, but JDL remained there under the care and control of the respondent. On or around JDL's eleventh year, the appellant with the consent of the respondent brought JDL to reside with her. It was subsequent to this event that she filed the Form 1 application for maintenance mentioned at para [4] above.
This circumstance was clearly of particular relevance and significance to the parties and, we surmise, may have been at the heart of this conflict.
The appeal raises two issues which are linked. First, did the magistrate fall into error by failing to conduct an inquiry as to whether the appellant was a fit and proper person to have custody of the minor child. Second, did the magistrate in the conduct of this matter pay regard to or give due consideration to what is in the best interests of this minor child. In our opinion, these two issues address the grounds of appeal articulated.
We start by briefly reminding ourselves of the appellate function and approach in the hearing of appeals generally and specifically, this magisterial appeal.
As a general rule, an appeal court will accord a large measure of respect to the lower court's decision, but is primarily concerned with a review of that decision. It will...
To continue reading
Request your trial