DEAR MRS MACAULAY,
I was with my son's father for the period 2008-2015. We were in a common-law union. He got married in 2018, and that same year he took me to court for custody of our son. The court however granted joint custody with care and control to me. We then went to court again to settle the issue of maintenance for the child. Before proceeding to court, I was contacted by a probation officer and I had to take in my payslips and details of other expenses and was interviewed. The father, however, did not submit to the process by the probation officer, and upon going to court, the officer did not submit a report with a recommendation. The judge instead asked the father what he wanted to pay per month, and he gave a figure, and the judge allowed that figure to carry. The judge then stated that he should contribute to school and other expenses. He has been contributing to school but nothing else — clothing and other expenses are not covered by him. He earns significantly more than I do — his salary is six times mine; however, the bulk of the expenses relating to the child falls on me. What do you recommend I do?
I read your letter with a good deal of upset about what happened during your application for maintenance of your child. This is contrary to the provisions of the Maintenance Act. You say that you had met with and provided the necessary and relevant information to the probation officer about your financial situation, but when you went to court on the appointed day you found out that your child's father had not done so too. You stated that he did not submit to the process, which implies that he refused or intentionally neglected to do so. It was very concerning to read that as a result, the probation officer did not submit a report with a recommendation to the court.
I hope that you mean that the officer reported to the court the failure of the respondent father to submit to his or her questions, and provision of proof of his income and general financial situation, even while you had done so.
Even more shocking is that you state that the judge then asked the respondent father what he wanted to pay per month. This is in direct breach of the provisions on the court's duty when dealing with maintenance applications.
The Maintenance Act provides that “every parent has an obligation, to the extent that the parent is capable of doing so, to maintain the parent's unmarried child who is a minor”. It further provides that a maintenance order must apportion the obligation to maintain according to the parents' capacities to provide the support for the child. The Act then goes further and directs the circumstances which the court must consider when deciding what order it should make, that is to say the judge presiding in the hearing. It also provides that the court in making a monetary order must determine the amount to be paid, and that the court “shall” enquire into a list of circumstances related to the parties, the first of which is about the assets and means of the parties, in order to determine the amount to be made in its order. The Act requires that the court shall enquire into matters it specifies must be enquired into, and when it is satisfied that the respondent is able to maintain or contribute to the maintenance of the child, it shall then make a maintenance order of what and how and when the respondent must pay the sum determined.
In order to arrive at such a determination, the Act enables the court to order an employer of a party to a maintenance application to send a written return to the court showing that party's emoluments for the preceding 12 months. This ought to have been the order made by the judge on the day of the hearing of your maintenance application, because your child's father, who you state earns six times more than you do, had been recalcitrant by failing to provide answers to the probation officer, an officer acting on the court's behalf, in order to obtain the facts about his assets and means, which the Act provides the court must consider in order to decide on his capacity to provide support and what sum should be ordered to be paid by him.
Nowhere in the Act is it provided that the court/judge may ask the respondent how much he wants to pay. This father was there in court because he had failed to fulfil his obligation to maintain his child AND he had failed to meet with and provide answers to the probation officer of the relevant matters which had to be considered in order for the maintenance sum to be determined and ordered. The whole process was contrary to the provisions of the Act and was therefore detrimental to you child's interest, and to the level of the burden you would have to bear.
I see no excuse for how the judge acted because even during the hearing he or she could have adjourned the matter for a short time for the probation officer to interview the respondent and on their return, if the results were unsatisfactory, the respondent could have been ordered to go and get his salary slips for as many months, even only the previous month. Failing this, the judge could have made the order for the respondent's employers to provide his payslips for the last 12 months and thereafter do a just and legal maintenance order.
It is my view that the order made in the circumstances you have related is null and void, or at the very least irregular. I however lean towards the former.
Since you did not say when the order was made, and I assume that you were unrepresented, I am sure that you did not give notice of your intention to appeal against the order made. I do not know whether the respondent was also ordered to pay one-half at least of your child's education, medical, dental and optical expenses, or whether this was merely casually mentioned.
I recommend that you retain the services of a lawyer experienced in doing maintenance applications to act for you and your child, to apply for the order to be quashed and a full legal proceeding to be done thereafter to determine all the matters relating to you both, as required by the Act, and a just order to be made, which would be in the best interests of the child. The lawyer you retain could also consider whether it would be possible to successfully appeal out of time by obtaining an extension of the time to appeal.
I hope you will do this and give your child and yourself all that the law provides for your provision and protection in the circumstances of a father reluctant to provide sufficient maintenance for his child.
Please get a lawyer as soon as you can. If this is impossible, then you could, say after six months or more have passed since the 'order' was made, apply for a variation of it and at least have a lawyer appear for you and your child. I am certain that what happened would not have occurred if you had been represented by a lawyer, who would have objected and requested that the respondent's capability to provide be properly ascertained as the law requires.
I hope I have clarified the position for you, and you can refer to the provisions in the Maintenance Act to assist you to clearly state what ought to be done. I wish you and your child success in obtaining a legal and equitable maintenance order to which you are both entitled to in law.
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 firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
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.