Bl v. Sjy
Read the full judgment text of FCMC 7831/2008 on BabelCite. This Family Court judgment was delivered on 5 October 2016 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Maintenance Enforcement – Judgment Summons – Contempt of Court – Committal to Prison – Ability to Pay – Child Maintenance – BL v SJY – Respondent husband repeatedly failed to pay maintenance for daughter S despite court orders and previous committals in 2012 and 2013 – Four outstanding judgment summonses issued by wife claiming total arrears of HK$190,605.50 – Husband claimed inability to pay but court found he had ability and chose not to pay – Court dismissed claim for additional HK$7,840 due to uncertainty in calculation – Interest calculation adjourned sine die – Judgment Debtor committed to prison for two months for contempt – Release directed upon payment of judgment debt and costs.
Legal issues: Ability to pay and wilful failure · Calculation of outstanding sum · Interest calculation
Outcome: Judgment Debtor committed to prison for two months for contempt
Cites 1 case
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FCMC 7831 / 2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 7831 OF 2008 ----------------------------
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--------------------------------- J U D G M E N T (Judgment Summonses) --------------------------------- Introduction 1.The applications presently before me bring into sharp focus the need to have an alternative approach to dealing with maintenance payments for children and the enforcement of those maintenance payments. 2.In this case the Respondent husband has repeatedly failed to pay maintenance for his daughter either on time or indeed at all. The parties have been in and out of court on a regular basis and have litigated on every possible aspect of the divorce process. There was a defended suit, a maintenance pending suit/interim maintenance application by the Petitioner mother and a variation of the same, applications for interim orders in relation to the child of the family S, a bitterly fought custody battle followed by an equally fierce ancillary relief trial. On occasions, the parties who are representing themselves, have sought to re litigate matters that have already been determined. It would be fair to state that generally speaking neither party appears to fully accept previous determinations made by the court and indications however firmly made tend likewise to be ignored. 3.Ongoing themes that have never been fully resolved include allegations made by the mother that the father has not and does not make full and frank disclosure of his means. The father has on occasions made the same allegation against the mother and so it goes on. Repeated attempts to seek to appeal matters have been unsuccessful. 4.With this in mind I do not intend in this judgment to refer to the background of the case in any detail. Reference can be made as necessary to the previous judgments and Rulings made, with perhaps particular reference to the judgment dated the 19 May 2011 which dealt inter alia with the issue of final ancillary relief. It was also the first time that the mother took out a judgment summons application with respect to arrears of interim maintenance for S. On the 13 September 2012 the matter returned to court and on that occasion I committed the father to prison for two weeks. He paid the outstanding sums then due to the mother immediately thereafter. Similarly the matter returned to court on the 26 April 2013 in relation to a judgment summons issued by the wife on the 9 October 2012. On that occasion I committed the husband to prison for four weeks and once again the husband paid immediately thereafter. On each occasion he maintains that he has borrowed the sums outstanding in order to pay. Since then there have been two applications to vary the maintenance payments for the daughter – one by the wife which led to the judgment dated the 12 February 2015 and one made by the husband, which was made at the 11th hour following the wife’s further attempts to enforce the outstanding payments. That judgment was handed down on the 19 January 2016. Both applications were unsuccessful and the maintenance for S remains set at HK$6,500 per month. S has just turned 9 years of age and the parties have been involved in this litigation for all of her young life. I have no doubt at all that she must have been affected by this in some way. 5.There are four outstanding judgment summonses that have been issued by the wife that now require determination. In addition it is the wife’s case that there was a miscalculation in relation to the 2nd judgment summons, dealt with previously, and that the sum of HK$7,840 remains outstanding in that respect. This will be discussed in more detail below. In general the husband does not dispute that he owes the sums claimed by the wife. Rather it is his case that he does not currently have the means to pay. In addition the wife seeks interest on the sums owed – although at the time of the trial she was unable to provide me with any calculation in that respect. (I appreciate that this is not easy given that she is acting in person). She has since provided me with a calculation of sorts. She also asked for the pre payment of the maintenance ordered and for damages. I explained that it was not possible for me to make either order. Further this is not a case where it is possible to order any form of security for payment; neither is it possible for me to order damages per se. Thus the matters to be determined relate to the monies due and owing and the appropriate penalty given the circumstances of the case. The outstanding judgment summonses
6.This judgment summons follows my judgment dated the 26 April 2013 also for arrears of maintenance. It covers the period from October 2012 – September 2013. The wife claims arrears of HK$84,000 (plus costs of HK$630 and travelling expenses of HK$30) as follows:
This figure is not disputed by the husband.
7.The wife claimed an additional HK$27,935.50 for the period from October 2013 to May 2014 (plus costs of HK$630 and travelling expenses of HK$40) as follows:
Again this figure is not disputed by the husband.
8.The wife claimed a further sum of HK$33,000 for the period from June 2014 – June 2015 (plus costs of HK$630 and travelling expenses of HK$40) as follows:
Once again the husband does not dispute this figure. 6th judgment summons dated the 8 June 2016 9.The wife claimed an additional sum of HK$43,000 (plus costs of HK$630 and travelling costs of HK$40) for the period from July 2015 to June 2016 as follows:
The husband does not dispute this figure. 10.Thus as at June 2016 the husband owed the wife the sum of HK$190,605.50 made up as follows:
11.There is no dispute about these sums. In addition the wife seeks a further sum of HK$7,840. Judgment Summons The law 12.To reiterate and as stated previously in the other judgments and Rulings the Judgment Debtor is required to show cause. He has to explain to the court why he should not be committed to prison for contempt. The court needs to ascertain whether he had the ability to make the payments ordered and whether he has wilfully failed to do so. The Judgment creditor needs to prove this “beyond reasonable doubt”. The court has the power to commit a Judgment debtor to prison for up to three months or to commit suspended upon payment of the outstanding debt either in its entirety or by installments or to adjourn sine die with liberty to restore. Discussion 13.This is the fourth time that the issue of the husband’s non payment has come before me and the third time that I am being invited to imprison him for contempt of court. It also follows a very late application made by the husband last year on the eve of the wife’s original hearing for enforcement. I made the point at the time and I make it again now, that it seemed to me that the husband probably made this application for strategic reasons. In the judgment dated the 19 January 2016 I concluded as follows:
14.For the avoidance of doubt I repeat my findings namely that I am of the view that the husband did have the ability to pay, but that he has simply chosen not to do so. I am particularly cognizant of the fact that on the last occasion the husband said that he could pay HK$5,000 per month and he proposed incremental increases of HK$500 over time with a view to eventually paying the HK$6,500 per month ordered. Despite that the husband paid the wife nothing at all for four months from March – June 2016. The rather unfortunate impression is that the husband is both playing with the court and the wife. The result is nothing short of catastrophic for S. 15.I do not accept the husband’s case that he is presently short of funds and thus he is not in a position to pay now. The husband has chosen not to pay maintenance for S since the beginning of these proceedings. I have found previously that he had not made full and frank disclosure of his means, that he did have the ability to pay and that he could organise his financial affairs in such a way as to make S a financial priority. He has simply chosen not to do so. He is also a bright and resourceful man and I have no doubt at all that he has the ability to make money other than as declared. In other words he has a reasonably high earning capacity but one that he does not seek to exploit for his daughters benefit. 16.Having heard from the wife I am satisfied that she has clearly shown that the sum of HK$190,605.50 is due and owing to her as set out in paragraph 10 above. I do not however accept that the sum of HK$7,840 is due and owing in addition. I know that the wife feels strongly about this notwithstanding the fact that the sum involved is relatively small. I have looked at the papers again as requested and although I can see that there may have been an oversight of one month’s worth of maintenance I cannot even now see how she comes to the figure of HK$7,840. Reference is made to her affirmation of the 8 June 2016 in that respect. In such circumstances and given that on a judgment summons application I must be very certain of the sums outstanding I have decided on balance to remit that sum. 17.I do not accept the husband’s case that he does not have the means to pay. At this stage of the proceedings I simply do not find the husband at all credible. It seems to me that he will do almost anything to avoid payment, notwithstanding the fact that this is money for his daughter and not his former wife and S cannot live on air alone. Interest 18.In so far as the interest element is concerned although I accept in theory that the wife is entitled to interest on the sum due I am concerned about the way in which this has been calculated. I have therefore decided to adjourn this aspect of the case sine die with liberty to restore. It will be necessary for the interest element to be calculated on a daily basis and for it to be rolled over on a day by day basis. I am not confident as things stand that the calculation prepared by the wife is correct. The order 19.Consequently it is ordered that:
The Petitioner and Respondent both appeared in person |
Cases cited in this judgment
Further hearings and rulings under FCMC 7831/2008