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Laws of Eve | How the Family Court works

Published:Monday | December 19, 2016 | 12:13 AMSherry-Ann McGregor

The Judicature (Family Court) Act, 1975, established the Family Courts to deal specifically with matters related to certain statutes, including The Children (Guardianship and Custody) Act, The Children (Adoption of) Act and The Maintenance Act. 

Most parties who appear before the Family Court, do so without the benefit of legal representation and the majority of cases concern the custody and maintenance of children, or issues affecting children who have come in conflict with the law.

A recent decision from the Court of Appeal in the case of G. Morgan v N. Williamson-Morgan[2016] JMCA Civ 53, which involved an appeal against a decision by the Family Court Judge who dismissed an application for variation of a maintenance order without hearing it, served to clarify some issues as to how some matters should proceed before the Family Court.

The Court of Appeal set aside the order that was made by the Family Court Judge, remitted the matter to the Family Court for the application for variation of the maintenance order to be heard by another judge.  However, other aspects of the Court of Appeal’s ruling are of general importance to parties who might be involved in proceedings before the Family Court.

1. At any time after a maintenance order has been made in the Family Court, the parties have the legal right to seek to vary it pursuant to section 18 of the Maintenance Act.  There is no limit to the number of times that they may choose to do so.

2. A judge who is considering an application for variation of a maintenance order must enquire as to whether the application is warranted by first looking at the surrounding circumstances.

3. The procedure to be adopted when such an enquiry is being conducted is not clearly outlined in the Family Court Act.  Reference must also be made to the Parish Court (formerly Resident Magistrate’s Court) Act and Rules, where necessary.

4. In the absence of special rules in the Maintenance Act as to how evidence is to be taken, reliance is to be placed on Order XVI Rule 3 of the Parish Court Rules - “ ... the evidence of witnesses on the trial of any action or hearing of any matter shall be taken orally on oath; and where by these rules evidence is required or permitted to be taken by affidavit such evidence shall nevertheless be taken orally on oath if the Court . . . so directs”.

5. An application for variation of a maintenance order must be formally heard by the Court, even though the Maintenance Act does not expressly say so.

6. A party has a right to a fair hearing under section 16 (2) of the Charter of Rights and Fundamental Freedoms.

- Sherry Ann McGregor is a Partner and Mediator in the firm of Nunes Scholefield DeLeon & co.  Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.