Vexatious Maintenance Complaint

rolly1

Hi,

I was seeking some opinion on a hypothetical situation wherein the district court clerk issues a maintenance summons and a blank affidavit of means, to a person based on a complaint by the applicant that they have failed to provide such maintenance for the child as is proper in the circumstances.Let's say the complaint was entirely vexatious as the respondent has paid the maintenance on time and in full consistently in a longstanding private agreement with the applicant and no request for a change in the sum has been made either verbally or in writing by the applicant.

Prior to the date of the court hearing the respondent requests the court for the evidence to show the cause of action for issuing the summons but there is no response to the request. If the person does not make an appearance at the hearing, on the grounds that due process has not been carried out to allow for a fair hearing, what are the likely consequences?

runfortheborder

rolly1 wrote: »

Hi,

I was seeking some opinion on a hypothetical situation wherein the district court clerk issues a maintenance summons and a blank affidavit of means, to a person based on a complaint by the applicant that they have failed to provide such maintenance for the child as is proper in the circumstances.Let's say the complaint was entirely vexatious as the respondent has paid the maintenance on time and in full consistently in a longstanding private agreement with the applicant and no request for a change in the sum has been made either verbally or in writing by the applicant.

Prior to the date of the court hearing the respondent requests the court for the evidence to show the cause of action for issuing the summons but there is no response to the request. If the person does not make an appearance at the hearing, on the grounds that due process has not been carried out to allow for a fair hearing, what are the likely consequences?

The District Court merely issues the summons, they will not deal with further correspondence like "requests for evidence", if no solicitors involved a letter should go to applicant. Respondent would do best to appear and answer the claim setting out facts otherwise an interim order may be made and if proper service of summons etc can be vouched a final order may be made, best not to let it go that far I think.

chopser

so this hypothetical person has in fact paid the asked maintenance on time and every time.
And now they want to know if the best way to prove this is not to show up in court?

rolly1

Thanks for the responses.

Why should he have to prove himself to the court, while she doesn't have to prove a basis for her complaint to the court, in order for that same court to issue a summons?

Why should the burden of proof not be upon the applicant to provide clear and convincing evidence that a wrongdoing has occurred if she wants a summons issued? And further to this, shouldn't the respondent be provided with this evidence prior to the hearing, to enable him to establish the specifics of the complaint and formulate a proper response for the hearing day itself? After all how can he defend himself against an unspecified complaint, other than wait to be ambushed with it on the court day itself?

Surely all courts must have procedures which conform with basic tenets of law?

And one final question: If the court makes a final order in his absence can he take the decision for judicial review on the grounds that there has been unfair procedure carried out?

Once again any responses would be much appreciated

MagicSean

rolly1 wrote: »

Thanks for the responses.

Why should he have to prove himself to the court, while she doesn't have to prove a basis for her complaint to the court, in order for that same court to issue a summons?

Why should the burden of proof not be upon the applicant to provide clear and convincing evidence that a wrongdoing has occurred if she wants a summons issued? And further to this, shouldn't the respondent be provided with this evidence prior to the hearing, to enable him to establish the specifics of the complaint and formulate a proper response for the hearing day itself? After all how can he defend himself against an unspecified complaint, other than wait to be ambushed with it on the court day itself?

Surely all courts must have procedures which conform with basic tenets of law?

And one final question: If the court makes a final order in his absence can he take the decision for judicial review on the grounds that there has been unfair procedure carried out?

Once again any responses would be much appreciated

You said it was a private agreement between them. So can we assume this is the first time they have been before court about maintenance? Is it a comaplaint or just an application for maintenance? I don't see where the breach of fair procedure is. I think you to have a proper understanding of court procedure at all so you should really be asking a solicitor these questions. If your partner has received a summons and doesn't go to court he risks having a bench warrant issued for his arrest and a judgement made in his absence for a sum he may not like.

rolly1

You said it was a private agreement between them. So can we assume this is the first time they have been before court about maintenance?

Yes

Is it a comaplaint or just an application for maintenance?

A complaint which results in a summons being issued

I don't see where the breach of fair procedure is.

As far as I am aware the two essential rules of fair procedure are:

1.The person making the decision that affects you should not be biased or appear to be biased.
2.You must be given an adequate opportunity to present your case. You must be informed of the matter and you must be given a chance to comment on the material put forward by the other side.

Making a decision to issue a summons on the say-so of someone who walks in off the street would appear to be bias in favour of this person and a bias against the person to whom the summons is being issued. At the very least the person making the complaint should be required to prove some foundation for the complaint before the court would issue a summons.

If the respondent has not been given the evidence to see the specific details of the complaint then how can it be said he has been informed of the matter? Is a vague unspecified complaint of an alleged wrongdoing sufficient to command a citizen before the court? If so, is this a fair treatment of that citizen?

I think you to have a proper understanding of court procedure at all so you should really be asking a solicitor these questions. If your partner has received a summons and doesn't go to court he risks having a bench warrant issued for his arrest and a judgement made in his absence for a sum he may not like.

As said at the start this is a hypothetical situation so Im just throwing it out for opinions. Thanks for your response.

MagicSean

rolly1 wrote: »

Yes

A complaint which results in a summons being issued

A summons can be issued on the basis of an application. This is how both parties are brought to court. A summons doesn't mean anyone has done anything wrong.

rolly1 wrote: »

As far as I am aware the two essential rules of fair procedure are:

1.The person making the decision that affects you should not be biased or appear to be biased.
2.You must be given an adequate opportunity to present your case. You must be informed of the matter and you must be given a chance to comment on the material put forward by the other side.

1. I don't understand how the judge has been biased at all. i think you've misunderstood the meaning of a summons and of the court appearance.
2. Court is where you present your case. That is where you make your applications to a judge. If someone needs time to examine evidence or obtain evidence the case can be adjourned to a future date.

rolly1 wrote: »

Making a decision to issue a summons on the say-so of someone who walks in off the street would appear to be bias in favour of this person and a bias against the person to whom the summons is being issued. At the very least the person making the complaint should be required to prove some foundation for the complaint before the court would issue a summons.

If the respondent has not been given the evidence to see the specific details of the complaint then how can it be said he has been informed of the matter? Is a vague unspecified complaint of an alleged wrongdoing sufficient to command a citizen before the court? If so, is this a fair treatment of that citizen?



As said at the start this is a hypothetical situation so Im just throwing it out for opinions. Thanks for your response.

Definitely you are completely missing the point of the summons and court. A summons is merely a requirement to attend court on a certain date. The judge will then hear the application and a response and make a decision. This is how all maintenance matters are decided and ratified.

runfortheborder

a bench warrant will not issue if he doesnt appear. an order however may be made in his absence which he will have to apply to the court to vary , very difficult or which he will have to appeal.