Tuesday, October 7, 2008
In a recent Supreme Court decision (PEC v DRC) which was delivered on April 4, the judge was asked to consider an application by a mother for increased contribution towards maintenance by the father of the couple's eight-year-old child. Three issues were considered by the judge:
1. What amounts to reasonable expense in respect of an eight- year-old child?
Whenever the court considers a maintenance application on behalf of a child, there is an attempt to identify what sums are incurred exclusively for the child's benefit. Therefore, expenses such as rent, mortgage, cost of hiring a helper and utilities are usually apportioned between the child and the other person or persons who share that home with him or her.
In the case of DRC's application, the judge was of the view that an allocation of half of the mortgage and the utilities to an eight-year- old was unreasonable. Instead, the judge concluded that a third or a quarter of those expenses was exclusively incurred for the child's benefit.
2. If an application for maintenance is made pursuant to the Children (Guardianship and Custody) Act, does the court have to consider the applicant's means?
There are alternative statutes under which applications for maintenance may be made. One such statute is the Children (Guardianship and Custody) Act, which speaks only to the examination of the father's means by the court. In some other statutes, such as the Maintenance Act, the court is directed to consider the means of both parents.
In the case of PEC v DRC, the application was made by the mother and her attorney-at-law argued that she did not need to provide information regarding her income, because the court only needed to consider the father's means. However, the court did not find favour with that argument and ruled that both the means of the father and the mother should be considered.
3. If an application for maintenance is made pursuant to the Children (Guardianship and Custody) Act, can the court have regard to the provisions of the Maintenance Act?
The judge was of the view that because the court was concerned to ensure the best interests of the child, he was not constrained to confine his considerations to the statute under which the application was made. He stated that, "the court should not be hampered by procedural trappings, but should approach its task with practicality". Therefore, the judge ruled that the principles outlined in the Maintenance Act, which indicate that there is equal obligation for parents to maintain a child, remained applicable.