A High Court judge has refused a woman’s request for her ex-partner, who has been declared bankrupt, to be jailed for failing to pay her full maintenance in compliance with court orders.
In a judgment, Mr Justice Max Barrett said he did not see that imprisoning the man would coerce him into meeting the maintenance payments, given he has obtained a bankruptcy order from a court in his birth country.
The woman complained the man has not paid her full maintenance or a lump sum ordered by the judge last January.
Mr Justice Barrett said the woman has also claimed her ex-partner failed to pay certain dental and occupational therapy expenses incurred by his children and failed to transfer a car and motorhome to her, as ordered by the court.
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She alleged he attended, without prior notice, certain religious ceremonies involving his children and that he has continued to occasionally leave the children on their own.
The man denied he attended the services or left the children alone since the court made the orders. He claimed the woman has left the children alone at night, which she denied.
He maintained he is financially unable to pay the required road tax due before the vehicles can be transferred. He told the court he is unable to make the payments ordered. His rent is being paid by his parents, he claimed.
Mr Justice Barrett said the man should have applied to court for a variation of the maintenance ordered rather than “take the law into his own hands and unilaterally vary downwards the amount”.
The judge did not accept a submission by the man’s lawyers that a breach of a maintenance order is rectified by belatedly commencing an application for a variation.
The order “has been and presumably continues to be breached”, the judge said, adding that he has seen cases where people have borrowed money from family or financial institutions to comply with a court order until a variation hearing can occur.
The judge said he “must, at this time, give credence to [the man’s] claims as to impecuniosity”. Imprisonment for civil contempt of court orders should occur only as a last resort, the judge added.
It has not been established at this time that the man is refusing to pay in the way described by the woman as opposed to being unable to pay, he held.
Mr Justice Barrett noted the man claims his ex-partner has upset their children by discussing with them his potential imprisonment for alleged breach of the orders.
While the judge did not know if this allegation was true, he reminded the parties that the proceedings are held otherwise than in public and that it is inappropriate for anyone to discuss any aspect of them with the children.
An application to vary access to the children and another to vary the maintenance order has been postponed, the judge noted.
