MODERN APPROACH: Appellate court orders divorced parents to bear their own costs in child custody battle

MODERN APPROACH: Appellate court orders divorced parents to bear their own costs in child custody battle

NASSAU, BAHAMAS — A more than seven-year custody battle between the parents of two young children has ended with both sides bearing their own legal costs, according to a Court of Appeal ruling handed down yesterday.

The appellate court said the modern approach to costs in family proceedings is that there should be no costs ordered in the absence of reprehensible conduct by the parties in the course of the litigation.

It said the proceedings that dated back to 2020 were always about the custody of the children and there was never an allegation on either side that the children were being harmed or not properly taken care of in any way.

Anishka Missick was named as the intended appellant.

She represented herself in the matter.

Her former husband, Larell Hanchell, named as the intended respondent, was represented by attorneys Miles Parker and Roberta Quant.

The pair, whose two children were 12 and nine when proceedings began, divorced sometime in 2014.

They were granted joint custody after the divorce.

Missick had primary care and control while Hanchell was given reasonable access.

At the time of the order, both parents resided on New Providence.

Missick remarried and was in the process of relocating to Grand Bahama.

But the father pursued the matter via an ex parte application through the Supreme Court.

Rather than granting an injunction restraining the mother from removing the children from New Providence, the ex parte order removed the children from the custody of the mother and granted custody to the father.

Missick appealed the order, and the appellate court quashed the ex parte order and remitted the matter to the Supreme Court for an inter partes hearing before a different court.

The mother was successful on appeal, but the appellate court made no order as to costs.

In another ex parte hearing on August 26, 2020, Justice Ruth Bowe-Darville ordered that the mother could not remove the children from New Providence until further order, and removed the children from her custody and granted full custody to the father immediately.

In a September 7, 2020, order, the judge continued the August order until further notice.

The mother appealed.

But by the time the appeal was heard, the August 2020 order had been superseded by a September order procedurally, though the substantive terms of the previous order were continued.

While the court inquired on whether Missick intended to maintain her appeal against the August 2020 order, the court ultimately dismissed the appeal and made a no costs order.

In his ruling, Justice Sir Michael Barnett wrote: “In my view, the conduct of the intended appellant in this intended appeal may be considered as a procedural misstep but does not rise to the level of unreasonableness…such that an order for costs should be made against her.

“The subject of these proceedings is, and has always been, the custody of the minor children of the marriage.

“There has been no allegation on either side that the children are being harmed or not properly taken care of in any way.

“The court is mindful that it has made no order as to cost in the previous hearings of appeals relative to these parties and notwithstanding the procedural misstep of the intended appellant, nothing reprehensible…has occurred in this case.

“In my view, having regard to the modern approach and the court’s duty to impose a costs order that is fair and just in the circumstances, I am of the view that each party should bear their own costs.”

About Royston Jones Jr.

Royston Jones Jr. is a senior digital reporter and occasional TV news anchor at Eyewitness News. Since joining Eyewitness News as a digital reporter in 2018, he has done both digital and broadcast reporting, notably providing the electoral analysis for Eyewitness News’ inaugural election night coverage, “Decision Now 2021”.