Child Maintenance Applications, investigation, preparation and enquiries – What you need to know, and more.

Everything you need to know when making a maintenance application at the maintenance court. This includes the filing of the complaint, up until the formal enquiry before a magistrate.

The internet is well-stocked with information written by Advocate Muhammad Abduroaf regarding child maintenance applications and related issues. As he gains more experience and sees the law develop, so does he publish and spread the invaluable knowledge. However, having all that information on different webpages is not forward-thinking. Therefore, we needed to do something about it. We, therefore, decided to provide this lengthy child maintenance application online post which provides practical information from start to finish. Let us begin.

Child Maintenance and Applications – How does it work?

Parents must pay child maintenance according to their means. So, if a child’s expenses each month is R 90 (obviously this is a fictitious example) and the father earns R 1 000 a month and the mother R 500 a month, then if all else is equal, the father should contribute R 60 towards the minor child’s expenses, and the mother, R 30. Now that is the long and short of the matter.

However, other factors also play a role. They include the necessary expenses of each parent, which determines how much they should contribute, as well as what assets the parents own. For example, if a father earns R 200 a month, and the mother R R600 – 00, the father would pay the majority of the minor child’s expenses if he owns other assets worth R 100 000 – 00 and the mother none.

If a parent is not happy with the maintenance he or she is receiving, an application may then be made to the maintenance court for a maintenance order.

Child maintenance procedure in the maintenance court

The procedures to be followed in instituting a complaint for child maintenance is regulated by the Maintenance Act 99 of 1998. Let us first unpack the basics.

From whom may maintenance be claimed?

Maintenance (personal, spousal or child) may be claimed from persons who have a legal obligation to maintain you. For instance, children can claim maintenance from their parents or a wife from her husband and vice versa. Seeing that children are minors, they are assisted by their parent or guardian through the maintenance process, but in fact, it is the child who is claiming.

The best interests of the minor child’s principle

When it comes to child maintenance, the child’s best interests are of paramount importance. This principle is immortalised in our Constitution and applied in our Courts of Law. Therefore, concerning child maintenance matters, and specifically to the child maintenance court, the moment a parent applies to child maintenance, the principle should apply. Before we move on, on a side note, it is not only child maintenance that the maintenance court deals with. As stated further above, a spouse may take the other to the maintenance court for personal maintenance.

Parental Maintenance Obligations

Both parents have a duty of support towards their minor child’s proper living and upbringing. This should be according to their means, standard of living, station in life, and the needs of the child. This is found in our common law and further applies to divorced parents.

According to section 15(2) of the Maintenance Act, the duty “extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.”

Furthermore, the duty is not discharged where one parent earns substantially more than the other.

According to section 15(3) of the Maintenance Act, in determining the maintenance amount, the maintenance court must take into consideration the following:

“(i) that the duty of supporting a child is an obligation which the parents have incurred jointly;

(ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and

(iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.

(b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.”

Lastly, there is an onus on both the maintenance officer and the maintenance magistrate in placing evidence before the court in determining a fair maintenance amount. This is our starting point going forward.

What is first looked at in a child maintenance matter? Income and Expenses?

Your first step when wanting to claim child maintenance is to get hold of all your proof of income. For example, payslips. If you are not working for an employer, you should get hold of proof that you earn a certain amount of money per month. Bank statements and financial records would suffice for now. If you are unemployed, you need to show proof thereof. For example, a termination letter from your previous employer.

Compile and gather all your proof of expenses for you and your child

This is a crucial step. You must create a list of all monthly expenses incurred for yourself and your children. This would include rent, groceries, clothes, entertainment, etc. This information is required when filling in the maintenance application form that is dealt with in the next step below.

Details of the parent you are claiming child maintenance from

Find out all the details of the person from whom you are requesting maintenance. For example, his/her home and work address and identity number. You would also need to obtain the contact details of that person. This would expedite matters. If you do not have all the information, you can still proceed with your application at court. The maintenance investigator referred to further below would be of assistance.

What do I do at the Maintenance Court?

Go to the Maintenance Court closes to your area and obtain an “Application for Maintenance Order Form” also referred to as “Form A”.

Use the information you have gathered in Step 1 and fill in the form. The form is in the form of an affidavit and you, therefore, have to swear to the correctness of the information under oath and sign. Therefore, do not hide any information for the Court.

Caution: If your information is not 100 % correct, you may be cross-examined on such correctness in Court and if it is found that you were not honest, this would not be in your favour. If you require any assistance in filling in the form, the maintenance officers would be happy to assist you. Once you have filled in the Application for Maintenance Order Form, return it to the maintenance officer who will process it for you. If the maintenance officer can provide you with a reference/case number there and then, request it.

The Maintenance Court will send you and the person you are claiming maintenance from a letter or subpoena to appear at the Maintenance Court for an inquiry with the maintenance officer. Diarise the date immediately and make arrangements with your work and a babysitter as soon as possible. If you miss the date, it can take months to get another.

Processing the Maintenance Application

When a parent approaches the maintenance court for child maintenance, the maintenance clerk must expeditiously process the application. In doing so, the clerk through other resources of the maintenance court, should ascertain the details of the other parent, and ensure that he or she is brought to court as soon as possible for a maintenance enquiry before a maintenance officer.

Therefore, for example, should the maintenance clerk not have the living or work address of the father, then he or she must enlist the assistance of the maintenance investigator to obtain it. For that, he or she can make use of the search and tracking resources the maintenance investigator makes use of and has access to.

What do you do while waiting on the court date?

From the time you left the office of the maintenance officer and even from the time you decided to claim maintenance, keep all receipts you received for any items bought for you and your child. Therefore, if you buy nappies for your child or even a toy, keep that receipt as if it is gold. This is due to you having to prove to the court that you do spend money on the child and you have the receipts to prove it.

Getting the non-paying parent to the maintenance court

After the maintenance application has been processed, the maintenance court must ensure that the non-paying parent makes his or her way to the maintenance court as soon as possible for a maintenance enquiry. This enquiry is held before a maintenance officer. Even if the maintenance court’s diary is quite full, it should still expedite this process, giving both parents adequate time to make arrangements to appear in the maintenance court.

Therefore, if the next available date for a maintenance enquiry is in three (3) months, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school travelling arrangements for the kids. There should therefore not be a delay in notifying the parents of the date of the maintenance enquiry.

Furthermore, when notified of the court date, both parents receive a document stating what information they should bring with to the maintenance enquiry. These include three (3) months bank statements, and salary advice as well as proof of expenses.

Giving the parties adequate time to obtain this information would be vital and, in the child’s best interests. The last thing we want is for the matter to be postponed to another date due to either parent not having been given adequate time to obtain the documents, even though the mother made the application many months ago.

You will soon hear from the Maintenance Court where they will be giving you a date to appear back at the Maintenance Court for an inquiry. They would either inform you by post or by a subpoena. On that date, both you and the person from whom maintenance is claimed would have to appear. If you are planning on making use of a legal representative, inform him/her early about the date so that he/she can be available to assist you at Court.

In the notice to appear for the maintenance enquiry, it is asked that you bring proof of all expenses and income for you and your child. This is why it is so very important for you to keep all proof of expenditure in a safe place.

Hint: If you can afford to, bring original proof of expenditure and income and a photocopy thereof. The original you would then be able to take back home and bring it back when requested and the copy will stay in the Court file.

The maintenance enquiry before a maintenance officer

The maintenance enquiry before the maintenance officer is the next legal step in the process. This is where things get interesting. Sometimes, at this enquiry, it is the first time the parents are in the same room together, since the child was conceived. Quite often, both parents do not know much about the current financial affairs of the other parent. The parent asked to pay child support, furthermore, does not know what the child costs to maintain.

The maintenance officer will speak to each of the parties and look at the documents provided. Each party will get a chance to explain why he/she requires maintenance and also why he/she can’t afford the maintenance requested.

The maintenance officer will as far as possible try to resolve the matter there and then without it having to go to court. If the parties can agree to an amount, this amount can be made an order of the court. If, however, an agreement cannot be reached at this stage, the matter, depending on the Court will either be referred to a prosecutor or for trial.

Remember, if you are a father or a person currently paying maintenance/child support, a reduction is possible. The same goes for an application for an increase in maintenance/child support

Again, the golden standard in which the enquiry should be conducted is that of the child’s best interests. This is of paramount importance.

The maintenance officer should, therefore, ensure that all the financial information about the parties are properly disclosed. This is very important. However, at the same time, the maintenance officer should try to settle the matter, taking into consideration the child’s best interests.

Should the parents not be forthcoming regarding their income and expenses, and the needs of the child, then the maintenance officer must subpoena witnesses if need be and make use of the maintenance investigator which we deal with next.

Denial of paternity – Is it sometimes a delaying tactic?

What sometimes happens, is that the father denies paternity. This he would either do out of spite or due to genuine doubt on his side. This would often be the case if there was a brief encounter between the parents when the child was conceived. Sometimes the father is married to someone else, and for the sake of his current marriage, he needs to deny paternity.

Once the paternity tests are finalised, the parties would need to return to court again for the results. If the results are positive, in that he is the father, then the enquiry proceeds. If he is not the biological father, the application is removed from the court roll.

The maintenance investigator – Who is it?

Section 7(1)(d) of the Maintenance Act empowers the maintenance officer to “require a maintenance investigator of the maintenance court concerned to perform such other functions as may be necessary or expedient to achieve the objects of this Act.”

Section 7(2)(e) of the Maintenance Act empowers the maintenance investigator after so being instructed by the maintenance officer, to:

“gather information concerning-

(i) the identification or whereabouts of any person who is legally liable to maintain the person mentioned in such complaint or who is allegedly so liable;

(ii) the financial position of any person affected by such liability; or

(iii) any other matter which may be relevant concerning the subject of such complaint; or

(f) gather such information as may be relevant concerning a request referred to in subsection (1) (c).

Now that we looked at the importance of the role of the maintenance officer and maintenance investigator, we move on to the role of the maintenance magistrate. This is where the formal enquiry takes place.

The maintenance investigator at the Court

Each maintenance court has a maintenance investigator. What this investigator does is gather evidence in a maintenance court case. However, in practice, no one may tell you that there is a maintenance investigator who could assist you in your case. This could be because of the huge amount of maintenance cases that come through the doors of the court.

Insist that the maintenance court instructs the maintenance investigator to investigate the financial affairs of the other parent. This you should even more so insist on if the father does not even provide the court with a copy of his salary slip and outline of expenses.

Summary of Changes brought by the Maintenance Amendment Act (Act No.9 of 2015)

Not too long ago, amendments were made to the Maintenance Act. Below are some of the amendments:

1. If there was a verbal or written maintenance agreement (which was not made an order of the court), the maintenance court can be approached to substitute or discharge it. [Section 6(c)]
2. You may lodge a complaint at the maintenance court within the area of jurisdiction of where you reside, carry on business or are employed. [Section 6(2)]
3. The maintenance court may issue a direction directing one or more electronic communications service providers to furnish the court with the contact information of the person a complaint has been made against to obtain his or her whereabouts. For example, Vodacom, MTN or Cell C can be approached to provide their client’s contact details. [Section 7(3)]
4. The maintenance court can make an interim maintenance order even if the other party does not agree to it. [Section 10(6)]
5. The maintenance court can provide your details to credit bureaus if you are in default and civil execution of a maintenance order took place. [Section 26(2A)]
6. Non-compliance with maintenance orders could have you imprisoned for up to 3 (three) years. [Section 31]

The Evidence – What else can I do to get the best our of my maintenance enquiry?

The outcome of your child maintenance matter would depend on the evidence presented. If there is no proof that the child cost so much, or the other parent earns that much, then you would have serious challenges convincing the court. Below are things to look into when dealing with your maintenance matter.

The father’s employer – Can he be brought to court?

Ask the maintenance court to issue a subpoena against the father’s employer for the salary advice of the father. Also, request details of the father’s pension interest the father may have.

The father’s banking account – Can the court obtain it?

Obtain the father’s bank statements. Here you should ask the court to subpoena various banking institutions for bank statements of the father. Bank statements hold in them valuable information about the lifestyle of a person. You may find out that the father spends half his money on his cell phone or luxury clothing. You can use this information to show the court that the father can tighten his belt and spend more money on his child. What sometimes happens is, you may find additional income coming into the father’s banking account.

Father’s Credit Profile – Is it possible to obtain it without his consent?

Have the maintenance court obtain a credit profile of the father. From the profile, valuable information can be obtained. For example, where he last applied for credit, employment and residential details. If the father says he does not have money, but he applied for credit to purchase a new car, clearly there is money.

Social media (Facebook, Twitter, Instagram, Pinterest etc.) – Is it of any use?

These days, many people publish their lives on social media. If the father, in this case, keeps loading pictures and posts of how he lives the good life; that information may be used to show the maintenance court that the father lives a life different than what he wants the court and you to believe.

Many people also make use of LinkedIn accounts. On it, they provide updated employment details. This would be useful to show the court should the father say he is an admin clerk. but on LinkedIn tell the world he is a manager.

Property Search in maintenance matters – How would it help?

What may be useful, is to do a property search on the father. Here you would find out what property that person owns. For example, the father may rent a house, but own a house in a different province where he obtains rent. That house he could have inherited.

Other tips and tricks in child maintenance matters – Is there more?

Each case is different. What would work in one maintenance matter, won’t work in another. For example, if someone is self-employed, and only get paid with cash, the dynamics are different. There won’t be any bank statements or payslips. In such a case, you need to be creative. Maybe ask questions to clients of the father and find out what he does and charges. If you can obtain the names of people the father does business with; that would be very useful. You may provide that information to the maintenance court and the investigator could follow up on it. If the father sees that you are getting somewhere, he may decide to pay a fair amount.

The final step – The formal enquiry before a Magistrate

Should the parties not be able to come to an agreement regarding the amount of child maintenance to be paid at the enquiry before the maintenance officer; the matter would have to go before the maintenance magistrate for a formal enquiry.

Here the court has to properly consider the means and needs of the mother, the means and needs of the father, and the needs of the minor child. Thereafter, make a maintenance award.

There is a legal obligation upon the maintenance officer and the magistrate to conduct a thorough enquiry. The court should not play the role of an umpire.

Therefore, a passive attitude should not be taken by a judicial officer in a maintenance enquiry and then give judgment. Should all go well, at the end of the enquiry, a maintenance award would be made.

How does the maintenance court make a decision?

Now, this is where it becomes challenging. The maintenance court can only make an order against a parent if there is evidence that he or she can afford the maintenance claimed, and obviously, the amount claimed is fair. The problem in practice is, the mother alleges that the father can afford the child maintenance, but she has no concrete evidence to back it up. The father is also not forthcoming, and only shows evidence that he cannot afford the amount claimed. The mother knows that he can afford the required amount due to his standard of living and what she experienced while they lived together.

Your maintenance case is largely dependent on you proving that your child needs the requested amount. If you do not have proof, or cannot prove it, even if you show that the father can afford it, the court won’t order him to pay it. The court would only order him to pay what is fair and proved. Therefore, always ensure that you keep proof of your income and expenses up to date and ready to provide it to court.

The parent is unhappy with the maintenance court’s decision – Can I appeal it?

If a parent is not happy with the order the court made, then he or she may appeal the Maintenance Order. What this means, is that a higher court would decide whether the maintenance court made the correct decision. In this case, the higher court would be the High Court. If the maintenance matter was heard in Cape Town, it would then be the Western Cape High Court. As you would see below, the procedure is cumbersome. The entire court record would have to be typed out and read by the High Court Judges.

 

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