Dad doesn't want to pay $3,000 p/w maintenance
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Dear Mrs Macaulay,

This is my second time writing to you. My child's father has been ordered to pay $3,000 every week since 2019, plus half health and education. My baby will soon be four and is in school. It costs me for lunch and aftercare fees weekly. I was told by the court that I have to upfront whatever costs and provide him with a receipt for him to refund his half. I do this, but he still doesn't pay because my neighbour who does the aftercare cannot stamp the receipt or he says he only has X amount and can't afford anymore. This is from a man who does not pay rent and has a stable job and side hustle. I took the receipts to court to file for disobedience, and what was I told? That I cannot claim for anything that isn't older than six weeks because I must give him time. When we do get to court, he comes with half the balance and I again have to take time from work another day for court. At no point does the judge ask to see our earnings, at no point does she ask about my responsibilites — nothing. At this point I just want to tell the court that he should take the child and I will pay the $3,000 weekly. A police officer told me that if a lawyer is to assist me the court will say I have lawyer money so I don't need his help. I am begging, what else must I do?

I do recall your earlier letter. Please believe me that the law is clear and the judges must apply the law to ensure that the relevant child is provided with her/his necessities to live in such a manner which is in their best interests and adequate for their wholesome development.

The sum of $3,000 per week is woefully inadequate to provide even the basic minimum of the wholesome food your child needs to live a healthy life. It should also be remembered by the court that maintenance includes not only food; clothing; education (which includes transportation and lunch and pocket money); and medical expenses, but also includes the child's or children's proportional share of accommodation costs. The clerks of court are supposed to assist those plaintiffs (and defendants) who do not have legal representation and the judge's obligation is to ensure that not only the letter of the law is applied, but that justice is done between the parties and, above all, that the decision is in the best interest of the child.

When a respondent father who has had a maintenance order keeps going into arrears and, therefore, keeps being brought back to the court and only pays a part of his legal debt, then it behoves the judge to take a very strict view of his failures and, in fact, his breaches of the court order. If the judge does not act as the law permits, making all necessary enquiries and ascertaining his true attitude towards his obligations, this is not justice and it is certainly not in the best interests of the child if the mother is always overburdened by such failures and so lives with worry and stress, endangering her health.

You are clearly doing what you should in law and, yes, I know about the six weeks condition for which I do not know the legal basis and conclude that this condition is administrative. The court has wide powers to deal with such breaches, including giving time to the respondent to pay up the arrears, but making clear to him that he must, as well, pay the sums for the current weeks and his arrears. However, the court ought not to use this facility for an unreasonable period of time and, of course, it has the legal power to order the imprisonment of the disobeying father for what could be contemptuous breaches of the order — always bearing in mind the best interest of the child and respect for orders of the court. These are necessary for the proper administration of the law.

The police officer's information is incorrect. Every citizen has the fundamental right to be legally represented by a lawyer of their choice and a judge cannot and would not arrive at any such conclusion, especially as you say that there has never been any enquiry about the financial situations of both of you. In addition, your lawyer could be acting pro bono for you and your child.

You should ask if there is a list of lawyers in the court who would assist parties pro bono. I know there used to be such a list at the Kingston and St Andrew court.

Anyway, I suggest that when you go back to the court, that you ask the judge that an order is made for a social enquiry report about the respective financial positions and your child's needs and the full costs. In addition, you should make your records of all that you have to spend for your child's support, including the proportional cost of your child's share of your rental or mortgage and utility costs.

Another thing, the father of your child is completely out of order refusing to take the receipts from your neighbour who is the carer of your child while you are at work. The lack of a stamp does not invalidate a receipt. Such receipts are accepted by the court all the time and he is just using this to delay or avoid paying towards his child's maintenance.

His contribution must be real and not just a token. The 2019 sum of $3,000 per week is, as I said, woefully inadequate then, and more so now. You say he has a stable job and does side hustles and that he pays no rent. You should openly talk of this during your hearings. Do not be afraid. Just ask the judge if you could please say something and state what you know of his financial situation and yours and the burdens which you have. After you do the list of all your expenditures for your child's support, inclusive of what I said above, you should consider making an application for your existing order to be varied by an increase to be made which is one-half of your total expenditure for better equity between you and the father as $3,000 is too low for your child's general maintenance. This will also reopen the whole issue wherein you can insist on the making of a social enquiry report of the father's and your financial position. Try this please and try to find a lawyer who would assist you pro bono.

All the very best.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.

Margarette MACAULAY

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