2000/220
4 pages
ROYAL COURT
(Samedi Division)
9th November, 2000
Before: Sir Philip Bailhache, Bailiff, and
Jurats Le Ruez and Le Brocq
Between: B. Plaintiff
And: K. Defendant
Appeal by the Defendant, under Rule 15(2) of the Royal Court Rules 1992, as amended, against the Order of the Greffier Substitute of 6th July, 2000, ordering the Defendant to pay maintenance of £50 per week for the parties' child.
Advocate D.C. Sowden for the Plaintiff.
Advocate A.P. Roscouet for the Defendant.
JUDGMENT
THE BAILIFF:
1. This is an appeal against the interim Order of the Greffier Substitute of 6th July, 2000, whereby he ordered that the defendant should pay maintenance in the sum of £50 per week for his illegitimate son, M, the Order being effective from 2nd May, 2000. The child was born to the plaintiff, B, on 8th October, 1999. Maintenance has been paid intermittently by the defendant until March, 2000, since when nothing has been paid.
2. The plaintiff accordingly issued an Order of Justice on 15th April summoning the defendant to appear before this Court on 28th April. On that day, by consent, a declaration of paternity was made and the issues of maintenance and payment of arrears of maintenance were remitted to the Judicial Greffier.
3. On 2nd May, 2000, the Greffier Substitute convened a directions hearing and ordered that the date fixed for the first appointment should be 6th July, 2000, and he further ordered: 1) that affidavits of means be exchanged and filed by the parties on or before 26th May, 2000: 2) that questionnaires be exchanged and filed by the parties on or before 9th June, 2000; 3) that answers to the questionnaires be exchanged and filed on or before 23rd June, 2000; and, 4) that a welfare report be obtained on the matter of access by the defendant to the child of the parties, M.
4. Neither party complied timeously with those directions. The plaintiff's affidavit of means was filed on 2nd June, but the defendant's affidavit of means was not filed until the afternoon of 6th July, shortly after the making of the Order against which this appeal is brought.
5. Counsel for the defendant explained that the defendant had been ill for three weeks but no explanation was given for the remaining period of delay.
6. There are two principal grounds of complaint made by the defendant against the decision of the Greffier Substitute. The first is that the Greffier acted in breach of the principle of natural justice, audi alteram partem, in that counsel was not expecting to have to argue before him on 6th July the question of interim maintenance. Miss Roscouet cited a passage from Halsbury's Laws of England, Vol 1(1) at paragraph 95:
"Prior Notice: Compliance with the audi alteram partem rule requires that parties liable to be directly affected by the outcome should be given prior notification of the action proposed to be taken, of the time and place of any hearing that is to be conducted, and of the charge or case they will be called upon to meet."
7. What apparently happened at the hearing on 7th July was that the representative of the plaintiff applied for interim maintenance. Counsel for the defendant contended that a summons should have been issued and invited the Greffier Substitute to refuse to hear the application. According to counsel the Greffier refused that application and promptly announced that he was ordering interim maintenance of £50 per week.
8. Counsel complained that she did not have the opportunity to cross-examine the plaintiff on her affidavit of means but she conceded that she had not sought leave from the Greffier Substitute to conduct such a cross-examination. She took the view that because the Greffier, had made his decision, it was not appropriate for her to press the matter before him.
9. We think that counsel erred in that respect and that it was in fact open to her to invite the Greffier to review his decision and to allow her to cross-examine the plaintiff on her affidavit of means. However, that is not what transpired.
10. We do not under-rate the importance of giving proper notice of applications which might result in a decision to the detriment of one of the parties. But this is a case where the claim for maintenance was first made in an Order of Justice which was served upon the defendant as long ago as 15th April. Furthermore, on 30th June, shortly before the hearing, the plaintiff's lawyers sent a fax to the defendant's lawyers stating:
"I believe it would not be inappropriate for the Court, in the light of your client's contempt, to make an interim order for maintenance pending the completion of disclosure. This could possibly be avoided if your client would make a proposal for a weekly payment without prejudice to what might finally be agreed or ordered by the Court."
11. It is true that this communication did not expressly indicate an intention to apply for interim maintenance but in our judgment such an application was not strictly necessary. The prayer of the Order of Justice was referred by the Court to the Judicial Greffier on 28th April and in our judgment that was sufficient to enable the Greffier Substitute to make an order for interim maintenance. We therefore reject the first ground of complaint.
12. The second principal ground of complaint relates to the amount of maintenance ordered to be paid. The Greffier Substitute fixed the amount at £50 per week whereas the plaintiff's affidavit of means indicated that the weekly costs incurred in maintaining the child amounted to £40 by way of food and nappies and £5 for clothing and shoes. These figures take no account, however, of the costs of heat and light and of unforeseen contingencies, including medical costs which are some of the inevitable expenses of maintaining a child. In our judgment the Greffier Substitute was perfectly entitled to exercise his discretion in the way he did.
13. We therefore dismiss the appeal.
14. In conclusion we wish to emphasise two things: first, it is the duty of a father to maintain his child. It is also a criminal offence at customary law for a father wilfully to fail to maintain his child. The defendant has paid nothing for some eight months and has been content for the burden of maintaining his son to fall upon the ratepayers of St. Helier.
15. Like the Greffier Substitute we were not impressed by the notion that a man who is engaged in a restaurant business and who is running a lodging house can afford to pay nothing by way of financial support for his child.
16. Secondly, we endorse the action of the Greffier Substitute in endeavouring to impose some urgency upon the resolution of this dispute. It is no longer acceptable for disputes of this kind, involving the payment of maintenance for a child, to proceed at a leisurely pace dictated by the failure of the parties' lawyers to comply with simple and straightforward directions from the Greffier Substitute. We encourage the Greffier Substitute to bring matters to a conclusion as soon as possible.
17. There will be no order for costs.
Authorities
Circular from Registrar, Family Division: "Notes from Lawyers - Ancillary Relief - New Procedure" (February, 2000).
Matrimonial Causes (General) (Jersey) Rules, 1979, as amended.
Royal Court Rules 1992, as amended: Rule 5/16.
4 Halsbury 1(1): paras 94-102.
De Smith: Constitutional and Administrative Law (5th Ed'n): Natural Justice: pp.582-597.
Hullah -v- Lelliott (27th February, 1991) Jersey Unreported; (1991) JLR N-9.
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