Re M.M. (A Minor); W v M

• Jurisdiction: Bermuda
• Court: Supreme Court (Bermuda)
• Judgment Date: 17 March 2009
• Docket Number: Civil Jurisdiction 2008 No. 195
• Date: 17 March 2009

In the matter of s. 12 of the Minors Act 1950

And in the matter of s. 36 of the Children Act 1998

And in the matter of M. M. (a minor)

BETWEEN:

W

Applicant

and

M

Respondent

Civil Jurisdiction 2008 No. 195

In The Supreme Court of Bermuda

Application by mother for joint custody of child with care and control to the mother - Financial relief - Father seeks joint care and control - Whether court has jurisdication to grant financial relief under the Children Act

Mrs J MacLellan for the Applicant

Mrs G Marshall for the Respondent

RULING of KAWALEY, J

Introductory

1. The Applicant mother applied by Originating Summons dated September 2, 2008 for joint custody of M.M (born on May 10, 2004), care and control to the mother and related financial relief. Because the parents are not married to each other, the application was made under section 12 of the Minors Act 1950 and section 36 of the Children Act 1998 (as amended in 2002).

2. The Respondent father did not oppose the application for joint custody; however he sought joint care and control as well. He did not oppose the principle of paying reasonable child support. However, he challenged the amounts actually sought by the Applicant (a) on the grounds that this Court had no jurisdiction to grant certain heads of relief because the Children Act did not apply; and (b) on the grounds that the amounts sought by the Applicant were excessive.

3. Neither party gave oral evidence, the father's ability to pay not being in dispute. Both parties were clearly well-paid professionals who appeared to have little difficulty in communicating as regards the important matter of the father's access to the child. The controversy, perhaps understandably, turned on the proper scope of the father's child maintenance obligations in circumstances where both parties had apparently acquired1 new and similarly well-paid romantic partners.

Legal findings: jurisdiction

4. I accept Mrs. Marshall's submission that Part IVB of the Children Act 1998 ("SUPPORT OBLIGATIONS") only applies to applications before the Family Court. Section 2(1) of the 1998 Act provides as follows:

"'court' means the Family Court and, where the context so requires, includes the Magistrates' Court and the Supreme Court;"

5. The normal rule is that the "jurisdiction conferred upon the court by or under this Act shall be exercised by a Special Court established under section 12 of the Magistrates' Act 1948known as the Family Court": section 13 Children Act 1998. As the Respondent's counsel pointed out, where the draftsman intends a provision to apply to the Supreme Court, the reference is explicit (e.g. applications for a declaration of

parentage, section 18E). In any event, the Applicant seeks relief from this Court under section 36.1D of the 1998 Act, which section is found in Part IV. Section 36.1C(1) provides that a "court may, on application, order a person to provide support for his or her dependants and determine the amount of the support". And section 36.1A crucially provides:

"in this Part-

'court' means the Family Court"

6. The present application therefore falls to be determined under the following provisions of the Minors Act 1950

"12 (1) In this section "the court" means the Supreme Court or, subject to section 5, a Special Court.

(2) The court upon the application of

(a) either of the parents of a minor; or

(b) any guardian of a minor; or

(c) any person related to a minor in a degree nearer than the degree of first cousin; or

(d) any person for the time being having actual charge of a minor; or

(e) any children's officer appointed under the Protection of Children Act 1943 [title 13 item 6],

may make such orders as it may think fit in relation to the guardianship, custody or maintenance of the minor and the right of access thereto and the control and management of any property of the minor, having regard to the welfare of the minor and to the conduct and to the wishes or representations of either parent or of any guardian or of any person having the actual charge of the minor."

7. Accordingly, this Court clearly possesses the jurisdictional competence under section 12 of the Minors Act 1950 to make the orders sought in relation to custody (including access, care and control) and maintenance (Amended Summons, paragraphs 1-4).

8. Does this Court further possess the power to make orders relating to (a) the maintenance of a life insurance policy for the benefit of the child (this head of relief was abandoned at the hearing), (b) the establishment of an educational trust fund for the child's university education, and/or (c) the making of lump sum payments in respect of family costs? No authorities were placed before the Court in the present case in support of the proposition that section 12 confers, by necessary implication, a power broad enough to encompass the sort of relief which is expressly provided for under section 36.1D of the Children Act. On the other hand, it was not contended that the Children Act 1998 had, by necessary implication, repealed any aspect of this Court's jurisdiction under the 1950 Act.

9. The position appears to me to be that a litigant has an unfettered right to choose whether to seek...