Enforcement of maintenance orders
In relation to applications for legal aid certificates for enforcement of maintenance orders, if the maintenance is being paid through the District Court Clerk there should be no requirement that a legal aid certificate be granted to the maintenance creditor on the basis that the enforcement would normally be dealt with by the court clerk.
In relation to the defence of proceedings for failure to comply with a maintenance Order, Section 63 of the Civil Law (Miscellaneous Provisions) Act 2011 inserts a new section 8 to the Enforcement of Court Orders Act 1940.
The new section provides for attachment and garnishee type orders for the purpose of enforcing maintenance. Legal aid is available to take or defend such applications. Section 31 of the Act inserts a new section (9A) in the Family Law (Maintenance of Spouses and Children) Act 1976 providing that a failure to comply with a District Court Maintenance Order be treated as a contempt of court. Section 9A(8) specifically obliges a District Judge to inform a maintenance debtor of their entitlement to seek legal advice and legal aid on foot of the Civil Legal Aid Act 1995 for the purpose of the application. This effectively brings the defence of maintenance enforcement proceedings within the realm of civil legal aid.
Because of the possibility of the maintenance debtor being imprisoned, applications to defend proceedings on foot of 9A are prioritised after the maintenance debtor has appeared in court and been advised of their entitlement to seek legal advice and/or aid and every effort should be made to ensure the maintenance debtor is legally represented on the return date.