Victoria Marie Meeks v Jeffrey William Meeks

• Jurisdiction: Jamaica
• Judge: Jackson-Haisley, J.
• Judgment Date: 05 December 2016
• Neutral Citation: [2016] JMSC Civ 217
• Docket Number: CLAIM NO. 2016 HCV 02428
• Court: Supreme Court (Jamaica)
• Date: 05 December 2016

[2016] JMSC Civ 217

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Coram: Jackson-Haisley, J. (AG.)

CLAIM NO. 2016 HCV 02428

Between

Victoria Marie Meeks

Claimant

and

Jeffrey William Meeks

Defendant

Robert Collie instructed by Hussey Collie Attorneys-at-Law for the Claimant

Gordon Steer, Mrs. Judith Cooper-Bachelor and Mrs. Kaye-Anne Parke instructed by Chambers, Bunny & Steer Attorneys-at-Law for the Defendant

Preliminary Point — Sections 20, 22 of the Matrimonial Causes Act — Section 3 of the Maintenance Act — Jurisdiction — Application commenced by Fixed Date Claim Form — Whether an Application under the Matrimonial Causes Act can be brought by way of a Fixed Date Claim For — Application for Interim Maintenance Order — Power of the Court to make an Order for Child Maintenance under the Matrimonial Causes Act and under the Property (Rights of Spouses) Act.

IN CHAMBERS

PRELIMINARY POINT

1 Counsel for the Respondent has made a preliminary objection on a point of law. This matter concerns an Application brought by way of a Fixed Date Claim Form (FDCF) filed June 13, 2016 pursuant to which the Claimant, Victoria Marie Meeks, seeks orders against the Defendant, Jeffrey William Meeks, for division of property, spousal maintenance, child maintenance and custody of a relevant child. According to the FDCF these orders are sought pursuant to the Property (Rights of Spouses) Act (hereinafter PROSA) and the Matrimonial Causes Act (hereinafter MCA). The hearing of the FDCF is set for April 26 and 27 ^th 2017. In the Affidavit in Support of the FDCF, the Claimant exhibits a copy of a Petition for Dissolution of Marriage filed by her in this Court on October 6, 2011. No decree nisi has yet been granted in respect of the Petition.

2 On July 19, 2016 the Claimant now Applicant filed a Notice of Application for Court Orders pursuant to which she seeks interim orders for child maintenance, spousal maintenance, retro-active maintenance and cost against the Defendant now Respondent. It is that application that came before me for hearing on November 16, 2016. On that date Counsel for the Respondent argued a preliminary point that concerns the jurisdiction of this Court and so that has to be resolved before the Notice of Application for Court Orders can be heard. For the purposes of this ruling on the preliminary point it is not necessary to delve into the facts of the matter.

3 Counsel for the Respondent has submitted that the Court has no jurisdiction to hear the application for an interim order for child maintenance because the substantive matter is not properly before the Court, it having been filed under the MCA under which proceedings are to be brought by way of Petition and not FDCF. Therefore, he submitted that there is no proper Claim before this Court under the MCA. Further, that although under section 23 of the MCA the Court has certain powers including the making of an Order as it thinks just in any proceedings under section 10 of the MCA or any proceedings for dissolution of marriage before, by or after the dissolution of marriage, the Order being sought for child maintenance cannot be considered on this Application because it is not properly grounded under the MCA.

4 Counsel argued further that neither can the matter be properly brought under the Maintenance Act because jurisdiction under the Maintenance Act, in respect of a child, would only lie in the Parish Court or the Family Court. He relies on section 3(1) of the Maintenance Act which stipulates that a person may apply to the Parish Court or to the Family Court for a maintenance order. Further that the Court would have to consider whether or not the Claimant would be entitled to an order for child maintenance under section 3(2) of the Maintenance Act which empowers a Court hearing proceedings under PROSA to make a maintenance order, but only with respect to a spouse.

5 He submitted further that Rule 8 of the Civil Procedure Rules (CPR) provides that an application of this nature must state under which Act or Legislation it is being brought. Further, that since the matter is not properly brought under the MCA, and since it cannot be brought in this Court under the Maintenance Act, the court has no jurisdiction to consider this application for interim orders for maintenance with respect to the child.

6 The Applicant on the other hand argued that pursuant to Rule 8.1(4)(f) of the CPR any proceedings which before the CPR came into effect could have been brought by petition or originating summons, can now be brought by way of FDCF and so this is a non-issue. He submitted further that pursuant to section 3(2) of the Maintenance Act, there are no words that limit maintenance orders to only those for spousal maintenance. Further, that a parent has an obligation to maintain his/her minor child and based on the fact that the child is a minor, it would be unfair to exclude an order for her maintenance.

ISSUES

7 This preliminary objection gives rise to three issues for my consideration. Firstly, whether the use of a FDCF is the appropriate way to bring the substantive application. Secondly, whether under the MCA this Court has jurisdiction to hear this application for child maintenance. Thirdly, whether under PROSA an order for child maintenance can be granted.

WHETHER THE USE OF THE FDCF IS APPROPRIATE

8 Based on the arguments made, I have to consider what is the proper method of commencing a matter under the MCA. Under this Act the term “matrimonial causes” is defined to include proceedings between the parties in respect of maintenance of one of the parties and also maintenance of a relevant child. Under the CPR, pursuant to amendments made in 2006, there is a whole section entitled “Matrimonial Proceedings”. Under Rule 76.4(1) there is a mandatory provision for proceedings for dissolution of marriage to be commenced by way of Petition. There is no such provision in respect of other proceedings under the MCA. In fact by way of Rule 76.4(15) the following is said:

“ Nothing in these rules precludes the commencement of any matrimonial proceedings, other than proceedings for the dissolution of the marriage, nullity of marriage and presumption of death and dissolution of marriage, by fixed date claim form. (Rule 8.1(4) (f) indicates, the procedure where an enactment specifies the originating process)”

9 Counsel for the Applicant indicated that the FDCF was filed in reliance on Rule 8.1(4)f which provides that a FDCF must be used where by any enactment proceedings are required to be commenced by petition, originating summons or motion.

10 The provisions of Rule 76.6 specifically mention applications for custody, maintenance, education or access to children or division of property, and set out how such an application can be made and are worthy of being quoted in full:

“ Where in any petition or fixed date claim form a part of the relief...