Family Court judge’s order frustrates mom

DEAR MRS MACAULAY,

I wrote to you last year seeking advice on getting child support. I did take my child’s father to the Duke Street Family Court and it literally went like this: The judge asked him, “How much can you pay?” No payslips were requested, no other financial obligations were questioned. That was all she asked, along with how he wanted to make the payments. A few months later I picked up the official court order, which states he must pay $3,000 weekly plus half health and education. Our child has been going to daycare/preschool and he blatantly told me that he is only paying the $3,000 weekly. I went back to court seeking further assistance, and was told to ensure he gets all receipts and that I must file for disobedience and sue for his half. My question is, this man is gainfully employed and I know this. Why doesn’t the court review his employment status? I pay rent and he doesn’t.

Our daughter’s daycare closes at 5:00 pm and that’s the time I finish working which means I have to pay overtime every day. Am I going to have to continuously be suing him? Why can’t they order him to pay what I had initially asked and deduct it from his salary automatically? I can at no point ask him for assistance to even pick her up from school because he is not the least bit interested. And even if he misses a payment, he won’t pay it forward the next time. Why can’t the court be more thorough?

You have asked why the court could not be more thorough and the only answer I can give to this question is that judges are human and can and do sometimes fail to do the right thing. In your matter, the judge certainly did not conduct the hearing of your application properly. Despite the fact that the Family Court jurisdiction was established primarily so that women could have proper access to justice in a sensitive and dignified manner, and without the need for them to have legal representation, such mistakes have been occurring in matters where the applicant mother has no legal representation. I believe that some judges, being overburdened with the great number of cases they need to deal with each day, have become so overwhelmed over time that they take shortcuts in order to complete matters as quickly as is possible and these shortcuts are contrary to law and end up not being in the best interests of the child. They are in fact against the best interests of the child, relegating that child’s life to one of always being in need, and the mother’s to one of continuous financial struggle and worry.

The judge who dealt with your matter did not follow the law as provided in the Maintenance Act, and in addition, abdicated her position as the decision-maker to the respondent father by merely asking him how much he could pay. The Act provides that every parent has a legal obligation to the extent as the parent is capable of doing so, to maintain their unmarried minor children, and for their children who need to be maintained because they are physically or mentally infirmed or disabled. The Act further provides that a maintenance order for the support of a child must divide the obligation of the parents based on their respective capacities to provide support, and that the order should also include an award for the payment of a sum of money regarding the prenatal care and birth of the child. The provisions go further, providing what matters the court must take into account in the course of a maintenance application when deciding what order should be made. All the provisions are clear on the point that the decision of what sum should be paid by a parent is for the court, and not for the party to decide what they would and should pay.

In fact, in my view, such orders are legally void because the enquiries which must be done about the financial capacities were not done and the court accepted a decision of the respondent party about the central issue in the case and on a decision which must always be in compliance with the weighty issue of the best interest of the child. This clearly did not happen in your application for your child’s maintenance.

I feel your frustration and disgust about the decision made in your application and the manner in which it was made. This should not have happened at all, and especially in a court established to ensure access to justice for the most vulnerable and where reasonable provision, as was enacted clearly in the Act should be made, and how the court can satisfy itself as to the facts of the financial situation of the parties.

It is unfortunate that you did not have legal representation, who would have insisted that the proper enquiries and production of proof of the financial situation was ordered, and a report would be done and produced to the court. You would have the right to read and comment on the contents of the report to the court critically or otherwise.

I know that the expense of having your lawyer is a real consideration. I know that some years ago the judge in Court 1 of the Kingston court, after I had acted pro bono for an applicant, got commitments from lawyers to do pro bono representations for applicants to ensure that, as she said then, at the end of the day, that the orders made are always in the best interests of the children. I do not know whether this facility is still in operation..

I am afraid that with the father refusing to pay his one-half of educational and health expenses (yes, you must send him copies of each receipt) you have to make the necessary applications for his disobediences so that you can be repaid. I assure you that I am in no way in agreement about this process, which only places mothers like you in situations of greater financial burden of paying upfront and sometimes waiting for months or years for the respondents’ legal debt to be repaid. You mothers are forced to meet the legal burden which the fathers should meet and this is in addition to the fact that the maintenance sum in no way covers even 20 per cent of the one-half of the child’s expenses which a respondent father should be providing, or whatever percentage the court finds on evidence.

Remember that the court has, and had power, as the Act provides, to order that the employer of the respondent father make a written return to the court showing his earnings for the last 12 months. This could have been done in your application but you did not know to object to the judge asking him what he could pay and requesting this order to have his employer submit his 12 months’ pay records in writing.

I am really sorry that this happened to you as such legal experiences result in citizens losing confidence in our judicial processes and this is not a good thing for any country.

I suggest that when you are next forced to go in to make an application regarding his disobedience, that you also make an application to vary the order for the $3,000 (all Family Court orders can be varied), and make sure that you have receipts for all your purchases and expenditures for your child. Make copies and keep the originals safe for production for the hearing for variation of the order, and you must include your rental receipts (the proportional cost of shelter for a child is allowable), and other household expenses, as your child shares the home with you. You know all the others — food, clothing and footwear of all kinds, transportation, cost of snacks and for amusement, etcetera.

In years gone by when the judges used their powers to commit defaulting fathers to jail, those like yours, who believe (or were made to believe) that they were the ones who could decide what to pay or not pay, realised that the law did in fact have teeth.

I wish you and your child all the very best and if there is any way I can assist you further, please let me know.

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.