Dad says judge erred on maintenance order

Dear Mrs Macaulay,

I have a five year old son. In November 2020 I went to the Family Court with my child’s father and the judge ordered him to pay $6,000 every fortnight for his child. He is a security officer.

The first payment should have been from November 13, 2020 — that’s when he told the judge that he would get paid. The judge checked the calendar and ensured that the date for his fortnightly pay was correct and he agreed to it and said yes.

However, November 13 came. I didn’t get any call, text or money from him as expected in my account. I then called him to find out what was happening and he said it was not his pay week, and the judge wrote the wrong date on the paper. He said he didn’t have any money and hung up.

This man gave the date, signed to it, and now he is lying. I am not working and he has given the child nothing. Can you advise me what to do please.

Having read your letter I can understand why you are so upset and frustrated by the fact that your babyfather failed to obey the order of the court.

His revelations must have shocked you as you were there in court when the judge asked him when he would be paid next and he gave her the weekend, which she checked on the calendar and asked him again and he agreed that the date was correct and he signed to it. The judge would have repeated it to him before he left the courtroom. I know that this is so; I do not have to have been in the court at the time to know that he gave the wrong time for his next payday to a judge!

You must have been very angry because you knew that he was trying to be smart as he does not want to pay maintenance for his child, which is why you took him to court to obtain an order for him to do so in the first place. This stupid act of his, and then trying to put the blame on the judge for writing the wrong date, has serious consequences.

You must go back to the court and report to the clerk of court what has happened. You must first go and get the proof from your bank by asking them to bring your bank records up to date, so you can prove that he did not pay the money on the 13th of November and not even during the week of the 16th of November 2020. Even if he paid during the week of the 16th or after the 20th of November, you still must go to the court and have his lie sorted out. You cannot let the situation remain as it is, because this will mean that you will have an order with the wrong date from last year and thereafter. If you ever need to apply for a variation to increase the maintenance sum, you may have problems at the hearing for not going in to have the date corrected.

Upon the proof with your bank records of his non-payment and the fact that he misled the judge, a default order would be issued against him. The judge will have to decide whether he misled her intentionally or not. I cannot believe that he did not do so intentionally because one thing he would know with certainty, is his payday! It could not possibly be an innocent mistake.

When the judge concludes considering his action, she would decide what to do with him, and what penalty, if any, she should impose on him. In doing so, she will bear in mind the fact that he must work and receive his pay for him to be able to provide the maintenance and act according to the best interests of the child.

So, there you have it. You must go back to the Family Court where you applied and obtained your order. But remember, because the money was to be paid into your bank account, you must take in your bank records as updated by the bank, as you must prove that he did not pay the money when he should have done so. This will prove that he breached the order of the court and the clerk of court can then have the papers drawn up for a warrant to be issued against him. This is in order to get him back to the court to explain both his failure to pay on the date as ordered and about his assertion that the ordered date was not his payday and that the judge wrote and ordered the wrong date. Your production of your updated bank records will also enable you to prove that he has not paid anything from the date of the order. You must therefore apply for all the sums due and owing from him for your child to the date of your application.

I hope that he has been paying subsequent to that, but as I said, even if he did pay on the 20th of November 2020 and thereafter, you should go into the court and speak with them about it because there would clearly be an irregularity with regard to the order, which should be rectified. It is you who must act to get this entire matter straightened out. It is for your child and his best interests that you ensure his father acts lawfully pursuant to a court order.

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.