New South Wales Consolidated Acts

MATRIMONIAL CAUSES ACT 1899 - SECT 90A

90A Summary proceedings to enforce orders for alimony and maintenance

(1) Where the court has made an order for the payment of any monthly, fortnightly or weekly sum by a husband or father in respect of alimony or the maintenance of his wife or child, any justice may, upon complaint on oath being made by the wife or by any reputable person on behalf of the wife or child that any sum due under the order is unpaid:

(a) issue his summons requiring the husband or father to appear before two justices to show cause why he should not pay such sum, or

(b) issue his warrant for the apprehension of the husband or father.

(2) The complaint shall be dealt with in like manner as a complaint under Part 2 of the Maintenance Act 1964 , and the provisions of that Part shall apply accordingly.

(3)

(a) Upon the hearing the justices shall inquire into the complaint, and if they are satisfied that any sum due under the order is unpaid, they may order the defendant to pay to such person as they may think fit the sum unpaid, together with such further sum for costs as they may deem proper and in default of payment may order that the defendant be committed to prison for a period of one day for every pound or part of a pound found to be due, including the costs incidental to the hearing of the complaint, unless the said order be complied with; but no defendant shall be detained for a longer period than twelve months, and the period of detention shall in every case be subject to the provisions of section ninety-four of the Justices Act 1902 , as amended by subsequent Acts.

(b) Subject to the provisions of section twenty-one of the Prisons Act 1952 , the period of imprisonment served by a defendant in accordance with the provisions of this subsection shall not be deemed to discharge the arrears for the non-payment of which he has been committed, but during such period the order for payment of alimony or maintenance shall be deemed to be suspended.

(c) No defendant shall be liable to be imprisoned a second time for, and no writ of attachment may issue in respect of any arrears for which he shall have actually suffered imprisonment as provided in this subsection, but such arrears shall thereafter be a civil debt only, recoverable in any court of competent jurisdiction by the person to whom the arrears are due.

(d) Where it appears that the amount of arrears has been paid since the service of the summons or the issue of a warrant the justices may order the persons summoned or apprehended to pay the costs of and incidental to the proceedings, and such costs may be recovered in a summary way under the provisions of the Justices Act 1902 , as amended by subsequent Acts.

(3A) The justices may direct that the warrant committing the defendant to prison shall lie in the office of the court for such time as they think proper, or may order the amount found to be due, and any costs awarded, to be paid by such instalments and upon such conditions as they think fit, to the person to whom the amount due under the order is payable.
Upon the production of a certificate by such person that any instalment has not been paid, or that any condition of the direction has not been complied with, and of the amount then due on the order, any justice may direct that the warrant committing the defendant to prison be executed.

(3B) Any justice to whom an application is made for a direction that the warrant be executed may postpone the execution of the warrant upon such terms and conditions as he thinks fit, and if the defendant breaks any term or condition upon which such a postponement is made, the justice may then direct the execution of the warrant.

(3C) Where before a justice directs, under subsection (3A) or (3B) of this section, the execution of a warrant committing a person to prison, it appears to the justice that by payment of part of the arrears for the non-payment of which such person has been committed those arrears have been reduced to such an extent that the unsatisfied balance, if it had constituted those arrears would have subjected such person to a maximum term of imprisonment less than the term of imprisonment in which he is liable under such warrant, the justice shall, by his warrant of commitment, revoke the term of imprisonment and may order such person to be imprisoned for a period calculated in accordance with subsection three of this section, having regard to the unsatisfied balance, instead of for the term originally mentioned in the order.

(3D) A justice may refuse to enforce an order or may enforce it to such extent as the justice thinks fit having regard to all the circumstances of the case, particularly with reference to the inability of the offender to obtain employment, or to comply with the order owing to continued ill health.

(4) The justices may in and by and order made under this section do all or any of the things that justices may do under section eighty-three of the Justices Act 1902 , and that section and section eighty-four of that Act shall apply accordingly.

(5) For the purposes of this section a certificate of the registrar or deputy-registrar in divorce that any sum which was to be paid into court had not been so paid shall be prima facie evidence of such fact.

(6) Where any order is made under the provisions of this section the justices making the order shall notify the registrar in the prescribed manner.

(7) The court may on application made in the prescribed manner amend, set aside, or vary any order made by justices under this section.

(8) In this section "husband" includes a male person against whom the court has made an order for payment in respect of alimony and "wife" includes a female person in whose favour the court has made such an order, and "justice" means justice of the peace.