By Sanette Viljoen
The amendment of an existing maintenance order is extremely problematic. This article discusses the factors that the court took into account in a particular case in order to decide whether a maintenance order should be adjusted up or down.
Reported case: MS v KS 2012 (6) SA 482 (KZP)
The facts of the case are briefly as follows: The father applied for the amendment of an existing maintenance order as he claimed that his salary had decreased considerably. He was therefore no longer in a financial position to comply with the existing maintenance order of the magistrate’s court. The magistrate’s court ruled that the amount should be decreased.
Both the father and the mother noted an appeal. The father wanted it decreased even further, while the mother did not want it decreased at all. At the same time the mother applied that certain evidence not revealed in the magistrate’s court be accepted by the appeal court for the purposes of the order. This additional evidence dealt with certain aspects of the man’s financial position that was not properly considered by the court of first instance.
The high court closely examined the man’s circumstances and found that the father could bring about certain savings that would enable him to make up for the loss of income he was experiencing. The important objective is always the child’s best interests and that the mother and father should always do everything in their power to support the child. A parent should always look at what is the best and the most that he or she can do for the child, and not at how little he or she can give the child. In other words, the court looked at what the father could go without for the good of his children and not to the detriment of his children.
The court found, inter alia, that the father could suspend the monthly payments on his retirement annuity until such time as he managed to get back on his legs financially and could afford decent maintenance. The court further found that the monthly repayments on a loan the father made with the children’s grandfather should also be suspended until such time as he had recovered financially. The court further determined what he spent on clothes and recreation every month. This was money spent on unnecessary luxuries and was not taken into consideration in calculating his expenses. The question is always: what part of the expenditure went to essentials and what to luxuries?
The court found that should the father save the aforesaid amounts every month, he would have enough left to maintain and afford the existing maintenance order. The court therefore found that the best interests of the child played a much more cardinal role in such an application than the interests of the father himself. The needs of a child are always a priority. The court held that when a party applied for a decrease in maintenance it was unnecessary for a parent to single out the change in circumstances, as is commonly accepted in our law, but that it was only one of the factors taken into consideration.
Regarding the mother’s application to submit information to the court of appeal that did not serve before the magistrate’s court, the court deviated from the norm. Normally this type of information is not admissible and should have served before the court of first instance. In this application the court found that the information would be admitted and that the court wished to be informed of any additional revenue as it would be in the interest of the child.
The court is the supreme authority over children and will go out its way to protect the interests of the child.