The High Court refused an application to commit a man to prison over alleged breaches of family court orders, finding that it had not been established he was deliberately refusing to comply rather than being unable to pay. His attendance at the hearing made the separate application for his attachment moot.
In a judgment delivered on 14 July 2023, Mr Justice Max Barrett said the respondent had been declared bankrupt in Country A. The court therefore had to give credence, at that stage, to his claims that he could not meet some obligations. The judge said imprisonment would not coerce payment of maintenance or the vehicle tax required before two vehicles could be transferred.
The applicant complained that maintenance had not been paid in full or on time; that certain dental and occupational therapy expenses for the children were unpaid; and that a lump sum, a car and a motorhome had not been transferred or paid as ordered. The respondent said his financial circumstances prevented payment of maintenance and vehicle tax, and that the lump sum would be paid through the bankruptcy process. The judge noted there was no evidence about whether assets in the bankruptcy would cover that sum.
The applicant also alleged that the respondent had attended significant religious ceremonies involving one of the children without notice, rented a nearby property despite claiming impecuniosity, and continued to leave the children alone at night. The respondent denied the allegations concerning the ceremonies and leaving the children alone, and said his parents paid the rent. The judge made no finding on those disputed matters. He said the children’s welfare was paramount and urged both parents not to leave them at risk. The access variation application had been postponed for a later date.
Justice Barrett said unilaterally reducing maintenance breached the existing order; the proper course was to apply for a variation. A variation application had been postponed to allow the applicant’s counsel to file a replying affidavit. The judge also rejected the submission that beginning a variation application cured the breach.
The court said committal is coercive in purpose and punishment by committal should be a last resort. Although it described the respondent’s failure to transfer the vehicles and pay the lump sum, and his unilateral reduction of maintenance, as serious misconduct, it said the bankruptcy and lack of evidence of other enforcement attempts meant this was not shown to be a last resort. The attachment application was moot because the respondent attended; the judge refused committal. The judgment also said the endorsement on the order complied with the rule requiring wording to that effect, and reminded the parties that the in-camera proceedings should not be discussed with the children.