South Australian Consolidated Acts South Australian Consolidated Acts169—Power to commit for failure to pay maintenance
(1) Where the
Magistrates Court is satisfied, upon complaint made by or on behalf of any
person for whose benefit a maintenance order has been made, that arrears of
maintenance under the order are payable by the defendant, the court may order
that the defendant be committed to prison in default of payment of the arrears
for such term, not exceeding six months, as the court thinks proper in the
circumstances.
(1a) Upon the hearing
of a complaint specifying a certain sum of money as arrears of maintenance,
the Magistrates Court must, upon being satisfied by the complainant that a
further sum of money has accrued under the order since the date of the
complaint, amend the sum specified in the complaint as arrears of maintenance
to include that further sum.
(2) The defendant is
not liable to serve a term of imprisonment because of failure to pay an amount
of arrears of maintenance in respect of which the defendant has already served
a term of imprisonment pursuant to an order made under this section, but the
liability to pay any such arrears is not discharged by imprisonment in respect
of those arrears and the amount of any such arrears remains, until paid, a sum
that may be recovered under any other provision of this Act.
(3) Where the court
orders a person to be committed to prison under subsection (1), the court
may, upon the making of the order or at any time thereafter, order that the
issue of the warrant of commitment be suspended upon the condition that the
defendant makes such payments in respect of the arrears of maintenance as are
specified by the court, and duly pays all sums becoming payable under the
maintenance order or the order for costs after the order for commitment.
(4) Where—
(a) the
issue of a warrant of commitment has been suspended under this section; and
(b) the
Magistrates Court, on complaint made by or on behalf of the person for whose
benefit the maintenance order was made, is satisfied that payment by the
defendant of the maintenance is in arrears in breach of the condition of the
suspension,
the court may issue the warrant of commitment or may order that the issue of
the warrant be further suspended upon the condition that the defendant make
such payments in respect of the arrears of maintenance that have accrued up to
the time of the hearing as are specified by the court, and duly pays all sums
becoming payable under the maintenance order or the order for costs after the
order for further suspension.
(5) Notwithstanding
anything to the contrary in any Act, where an order has been made under this
section committing the defendant to prison in respect of arrears of
maintenance and it appears to the Magistrates Court that the amount of the
arrears of maintenance in respect of which the commitment order was made has
been reduced, the fact of that reduction must be stated in the warrant of
commitment, and the term of imprisonment for which the defendant may be
committed will be reduced by the number of days bearing as nearly as possible
the same proportion to the total number of days in the term of imprisonment as
the amount paid bears to the whole arrears of maintenance.
(6) Notwithstanding
anything to the contrary in any Act or in any warrant of commitment, where any
person is in prison for non-payment of arrears of maintenance, the person may
pay or cause to be paid to the manager of the prison—
(a) the
whole of the arrears of maintenance or, having regard to subsection (5),
the amount of those arrears remaining to be paid; or
(b) any
lesser amount.
(7) Where the amount
referred to in subsection (6)(a) is paid to the manager, the manager must
discharge that person if the person is in custody for no other cause.
(8) Where an amount
referred to in subsection (6)(b) is paid to the manager, the term of
imprisonment fixed by the commitment order will be reduced by the number of
days bearing to the total number of days in the term of imprisonment a
proportion that is the same as, or most nearly approximates to, the proportion
that the amount paid bears to the whole of the arrears of maintenance and on
the expiration of the term as so reduced the person imprisoned must, if in
custody for no other cause, be discharged.
(9) A court must not
make an order committing the defendant to prison or issue a warrant of
commitment if it is satisfied—
(a) that
the defendant has not and has not had and could not by reasonable effort have
had the means and ability to pay the amount of the arrears of maintenance; or
(b) that
for any other reason payment of the arrears of maintenance should not be
enforced by imprisonment.
(10) Where the court
is aware that a court has previously refused to make an order committing the
defendant to prison or to issue a warrant of commitment under this section for
non-payment of a sum (in this subsection referred to as
"the original sum") included in the amount of arrears of maintenance in
respect of which the complaint is made, the court must only have regard to the
amount by which the sum still due and unpaid exceeds the original sum unless
it is satisfied that, since that refusal, the means and ability of the
defendant to pay the original sum have so altered as to make it reasonable for
the defendant now to be committed to prison for non-payment of the original
sum.