Best interests of a child: 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, in relation to child maintenance matters, and specifically to the child maintenance court, the moment a parent files an application for child maintenance, the principal should apply. Before we move on, on a side note, it is not only child maintenance that the maintenance court deals with. A spouse may take the other to the maintenance court for personal maintenance.
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.
When a parent approaches the maintenance court for child maintenance, it is the duty of the maintenance clerk to expeditiously process the application. In doing so, the clerk through the 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.
After the maintenance application has been processed, it is the duty of the maintenance court to 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 time, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school traveling 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 advices 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.
The maintenance enquiry 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.
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.
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.
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.
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.
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