Economic hardship due to separation saves the father who does not pay the cheque

Economic hardship in the run-up to the separation, due to the expenses it entails, starting with renting a house, inscribes the father who for a few months does not pay the allowance for the minor child. An obligation always fulfilled regularly before and after the economically complicated period. The Court of Cassation has thus upheld the appeal of a separated father against the conviction for the crime of violation of family assistance obligations decided by the Court of Appeal, which had overturned the acquittal at first instance.

According to the territorial court, in fact, an absolute impossibility to pay the allowance had not been proved. The defendant had indeed incurred certain expenses, such as rent and others necessary to start a professional activity, after leaving the studio he shared with his wife. However, these disbursements had only led the separation judge to reduce the allowance from EUR 1,000 to 700, but not to eliminate maintenance. Among the charges against the plaintiff, the territorial court had also placedthe evasion of the judge's order fornot having exercised the right-duty of visitation to the children for about six months. The defendant - the Court of Appeal had emphasised, 'disregarding the explicit "warning" formulated by the civil judge, who urged him to "follow the children better" - had omitted to attend them, not to ensure the pursuit of the children's interests, but only because he was conditioned by his own character rigidity and because he was perhaps more interested in cultivating the events that saw him opposed to his wife from whom he had separated'. A sentence that the Court of Cassation annulled with reference, finding both accusations unfounded.

Regarding the lack of maintenance in a limited period, the Supreme Court berates the lower court judges for not providing an enhanced reasoning, necessary when overturning an acquittal, to justify their verdict. The fact that the separation judge had not eliminated the allowance, but only reduced it, does not prove that the appellant was able to fulfil it. "Indeed, the Court of Appeal's reasoning is flawed by excessive schematism and neglects to consider what the appellant's contingent economic situation was," reads the judgment, "during the five months in which he did not pay the exact amount set by the judge. The territorial judges did not address and subvert the findings emphasised by the Court in order to acquit. They did not, for example, consider thesignificant sign of economic difficulty demonstrated by the unsuccessful outcome of a number of executive procedures initiated by the separated spouse. Nor was any weight given to the fact that as soon as it was possible for him to do so, the defendant had resumed regular payments. With regard to the contested avoidance of the judicial measure on the discipline of relations with the children, the Court, in an acquittal decision that the Court of Cassation agrees with, had doubted the existence of "the psychological element of the crime, hypothesising thatthe lack of attendance of the minor children could be a consequence not of a choice made by the defendant, but of the scenario of extreme conflict with the other parent". A war of the Rose's that had had repercussions on the minors, so much so that the father perceived a sort of refusal by the children to attend him. In any case, the Court of Cassation specifies, the conceivable offence would not be evasion of court orders, which carries a prison sentence of up to three years, but rather violations of family care obligations with a maximum prison sentence of one year.

That the father's absence produces a wound in the children's lives, perhaps destined never to heal, the Supreme Court is convinced. So much so as to affirm (sentence 6332/2026 ) that the non-pecuniary damage due by the absent father to the child can be proved by "simple" presumptions. Because the injury from the loss of bigenitoriality is in itself a known fact "from which it is possible to infer an alteration in the child's life, which entails choices and opportunities different - the judgment states - from those of a child who can enjoy the presence and material assistance of both parents".

The reference parameter for quantifying the damage is also indicative: the damage is to be liquidated on the basis of the compensation tables for non-asset damage from parental loss.