Sun | May 26, 2019

Laws of Eve | Costs in family proceedings

Published:Monday | May 13, 2019 | 12:27 AM

While I have no statistics to support what I am about to say, my experiences are my best guide to the fact that many parents are unable to afford the cost associated with pursuing legal action in family matters. In many instances, worthwhile court action is not pursued, proceedings are started and abandoned, or special arrangements have to be made between the parties and their lawyers concerning the settlement of legal fees (including contingency fee agreements or reduction in fees).

Family law matters are civil proceedings and, generally, the successful litigant in civil proceedings is awarded costs and the unsuccessful party is ordered to pay those costs. That general rule is not followed in family law proceedings and, although Jamaica does not have a statute that says this, each party in family law proceedings is usually ordered to pay his/her own costs. The obvious advantage to this approach is that, as long as a party can afford to pay his/her own attorney, he/she will feel free to commence proceedings in court. However, the disadvantage is that frivolous, unwarranted claims are also filed from time to time, and family matters are sometimes unduly prolonged by litigants, with no penalties for doing so.

With written rules that confirm the court’s position in relation to costs in family proceedings, to include instances in which costs awards are justified, there could be improvement in the prosecution of family law cases. As legal aid is not available to family-law litigants, it is important for the expenses associated with litigation to be properly managed.

In Australia, for example, the Family Law Act states that each party shall bear his or her own costs. However, if the court is of the opinion that there are circumstances that justify the making of a costs order, it will award costs. The factors that the court considers include:

(a) The financial circumstances of each of the parties to the proceedings.

(b) The conduct of the parties to the proceedings in relation to the proceedings.

(c) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.

(d) Whether any party to the proceedings has been wholly unsuccessful in the proceedings.

(e) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer.

(f) Such other matters as the court considers relevant.

There are many reported cases in Australia which show how these rules have been applied. The following are examples:

1.Trebiano & Trebiano (No. 2) [2019] FamCAFC 72: The Court of Appeal remitted a matter to the Family Court for hearing after confirming that an error had been made by the trial judge. Costs were awarded to the appellant against the respondent because:

(a)The respondent had the financial capacity to pay the costs order.

(b)The appeal was wholly successful.

(c)Although the judge had made the error, the respondent forced the appellant to pursue the entire appeal to get directions in order to correct it.

2. Feiteiro & Feiteiro [2019] FamCAFC 49: The court dismissed an appeal because it was determined that it was doomed to fail and awarded costs to the respondent. The court ordered the appellant to pay costs because:

(a)The respondent was wholly successful.

(b)Although the appellant said that he was unemployed and had no assets, the fact that there were pending property proceedings and the respondent was set to receive a portion of the money that was being held in trust from the proceeds of sale of assets, so he had the means to pay the costs.

While not all family proceedings should be treated alike, there are some cases in which the circumstances warrant costs awards; so I think we should include this as one of the items on the agenda for discussion in reforming Jamaica’s family law system.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.