Victorian Consolidated Legislation

Maintenance Act 1965 - SECT 43

Court may commit defendant to prison

43. Court may commit defendant to prison



(1) Where the court is satisfied, upon complaint made by or on behalf of any
person for whose maintenance or for whose benefit an order (in this
Subdivision called an original order) has been made under Part II of this Act
for the payment of money whether in one sum, by instalments, by periodical
payments or for costs, that the defendant (being a male person) has disobeyed
or failed to comply with the order and that an amount of money (in this
Subdivision called the arrears of maintenance) is presently due and payable
and has not been paid, the court may order that the defendant be imprisoned in
default of payment of the arrears of maintenance for such term as the court
thinks proper in the circumstances, but not in any case exceeding twelve
months.

(1A) Where it appears to the court making an order of imprisonment under
subsection (1) that the defendant has been served personally with a copy of
the complaint under that subsection or that proceedings have previously been
taken against him under this subdivision or under Part VI of the Maintenance
Act 1958 or that he has otherwise had communicated to him the nature of
proceedings under this Subdivision neither the order nor a copy of the order
need be served on the defendant before the issue of a warrant to imprison.

(1B) For the purposes of making an order under subsection (1) the court may
receive evidence of any and every payment directed by the original order to be
made which, having become payable after the making of the complaint, was in
arrear and not paid at the date of the hearing, as if the complaint had been
duly made in respect both of those payments and of the arrears that were due
at the date of the making of the complaint, and arrears of maintenance in this
section shall be read and construed as including those payments.

(2) A defendant shall not be liable to serve more than one period of
imprisonment in respect of failure to pay an amount of arrears of maintenance
but the liability to pay any such arrears shall not be discharged by
imprisonment in respect thereto and the amount of any such arrears shall until
paid remain a sum which may be recovered under any other provision of this
Act.

(2A) By any order under subsection (1) the court may direct that the defendant
be permitted to serve the term of his imprisonment by way of attendance at an
attendance centre within the meaning of Division 6 of Part IV of the
Community Services Act 1970 and thereupon the provisions of the said Division
6, except paragraph (a) in subsection (1) of section 145A shall extend and
apply, with such modifications as are necessary, with respect to the
defendant.





(3) Notwithstanding anything to the contrary in any Act where an order has
been made under this section imprisoning the defendant in respect of arrears
of maintenance and it appears to a registrar of the Court to whom application
is made for the issue of a warrant to imprison that the amount of the arrears
of maintenance in respect of which the order of imprisonment was made has been
reduced the fact of such reduction shall be stated in the warrant to imprison
and the term of imprisonment for which the defendant may be committed shall be
reduced by the number of days bearing as nearly as possible the same
proportion to the total number of days in such term as the amount paid bears
to the whole arrears of maintenance.

(4) Notwithstanding anything to the contrary in any Act or in any warrant to
imprison where any person is imprisoned for non-payment of arrears of
maintenance he may pay or cause to be paid to the keeper of the gaol in which
he is imprisoned-

   (a)  the whole of the arrears of maintenance or, having regard to
        subsection (3) of this section, the amount of those arrears remaining
        to be paid; or

   (b)  any amount which, having regard to the proportion in subsection (6)
        mentioned, is (as nearly as may be) a fractional part of the whole
        amount adjudged to be paid-

and in either case the keeper shall receive the payment.

(5) Where the amount mentioned in paragraph (a) of subsection (4) of this
section is paid to the keeper the keeper shall thereupon discharge such person
if he is in custody for no other matter.

(6) Where an amount mentioned in paragraph (b) of subsection (4) of this
section is paid to the keeper the term of imprisonment fixed by the commitment
order shall be reduced by the number of days bearing the same proportion to
the total number of days in such term as the amount paid bears to the whole of
the arrears of maintenance and on the expiration of the term so reduced the
person imprisoned shall if in custody for no other matter be discharged.