CCH v. CCL

FCMC 3480 / 2016

[2022] HKFC 282

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 3480 OF 2016

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JUDGMENT
(To enforce arrears of maintenance more than 12 months)

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Introduction

1.  This is an application taken out by the respondent (judgment creditor) (“the wife”) by way of a summons filed on 26 April 2021 for an order pursuant to section 12 of the Matrimonial Proceedings and Properties Ordinance, Cap 192 (“Cap 192”) to enforce arrears of maintenance for more than 12 months. The petitioner (judgment debtor) (“the husband”) opposed and is seeking an order to dismiss the said summons.

Background

2.  The parties are married on 7 December 2010 with two sons now aged 12 and 8 respectively. The husband was a sales representative whereas the wife was a clerical assistant. They have a jointly owned matrimonial home.

3.  On 21 April 2021, by consent, joint custody of both children was granted to both parties, care and control to the wife with reasonable access to the husband.

4.  The ancillary relief between the parties was settled by way of a consent order dated 15 December 2017 (“the consent order”), the husband was ordered to pay children maintenance of HK$10,000 per month (HK$5,000 for each child) commencing from 29 November 2017 until the children respectively reach the age of 18 or finish full time education, whichever is later. The wife was also ordered to pay the husband HK$1.02 million to transfer his share of the matrimonial home to the wife. To my understanding, the payment of HK$1.02 million and the transfer of property have been duly completed.

5.  In 2018, the husband bought another property in Yuen Long (“the Yuen Long Property”) at around HK$4 million for the purpose of cohabiting with his then girlfriend.

6.  Nonetheless, the husband had since January 2018 failed to pay the full amount of children maintenance to the wife. The wife took no action in enforcing the arrears of maintenance since default.

7.  On 8 March 2021, the husband took out an application to vary children maintenance from HK$10,000 to HK$1,000 per month.

8.  Without resort to issuing judgment summons, on 26 April 2021, the wife took out a summons for a charging order against the Yuen Long Property for arrears of children maintenance for the period from April 2020 to March 2021 with an outstanding sum of HK$120,000 (“the 1^st charging order”).

9.  On the same date, the wife took out another summons for leave to enforce the arrears of maintenance for the period from January 2018 to March 2020 totaling 27 months. Prior to this date, the husband has only settled HK$78,500 children maintenance to the wife. The sum the wife intended to enforce is therefore (HK$10,000 x 27 months) – HK$78,500 = HK$191,500.

10.  The husband’s variation of maintenance was heard by HHJ Simon Lo and was subsequently dismissed on 22 November 2021. The husband sought leave to appeal and was also dismissed on 11 March 2022.

11.  Apparently, the husband continued to default in paying children maintenance after dismissal of his variation of maintenance application.

12.  On 17 June 2022, the wife applied for another charging order for the period from April 2021 to March 2022 for arrears of maintenance in sum of HK$120,000 (“the 2^nd charging order”). On 21 June 2022, I ordered both the 1^st and 2^nd charging orders to be made absolute.

The issue

13.  The sole issue here is to determine whether leave should be granted to the wife to enforce arrears of maintenance for more than 12 months, i.e. from January 2018 – March 2020 for a period of 27 months.

The legal principles

14.  Section 12 of Cap 192 provides leave of the court is required to enforce maintenance payments which are due more than 12 months before the date of the commencement of the application for enforcement.

15.  The legal principles on this area is well settled. In a Court of Appeal case, CSL v. WWK (CACV 278 of 2003, 25 February 2004), Hon Cheung J.A. stated in paragraphs 28 – 30 that,

“28. The judge had considered the relevant principles on this topic. The starting point is that arrears are not enforced if they are more than one year old unless there are special circumstances. The original rationale of this rule is that if an applicant could wait for a year before she applied for the enforcement, it means that she did not need the money or at least had managed well enough without it and the husband might lawfully consider that he could disregard the liability.

29. This was the historical basis on which the rule had become established. In modern times more flexibility is shown because the wife might have savings of her own which she might use for a period of time and she would be expected to seek reimbursement by a large single payment from the husband later on.

30. Nonetheless, the court should still pay regard to the extent the applicant has taken to assert her rights. The fact that a person liable to pay the maintenance is an irregular or reluctant payer is not unusual circumstances justifying a departure from the rule : see a discussion of this topic in Russell v. Russell [1986] 1 FLR 465 and Dickens v. Pattison [1985] FLR 610.”

16.  In another case, K v. K (HCMC 2 of 2004, 21 February 2005), Hon Hartmann J further illustrated what to constitute special circumstance:

“10. As to the reason for the practice, in Russell v. Russell [1986] 1 FLR 465, Sir John Donaldson, Master of the Rolls, observed (at 473B) that :

“The philosophy underlying the rule must … have been that if the complainant waited a year to seek enforcement of the order, she did not need the money, or at least had managed well enough without it, and the husband might reasonably regard the liability as something which he could forget about.”

11. An applicant must therefore take reasonably timeous steps; that is, within a year, to assert his or her right to maintenance unless there is good reason otherwise. An applicant cannot simply let the arrears accumulate, making do without them, until, with more than a year elapsed, perhaps an oppressively large capital debt has arisen. Maintenance after all is invariably required for current needs and is an obligation which must be viewed within its social context.

12. Accordingly, in giving effect to s.12, our courts must proceed on the general principle that ‘stale arrears’, as Sir John Donaldson described them, are not to be enforced unless good reason is demonstrated or special circumstances are shown.

13. What will constitute a good reason or give rise to special circumstances will, of course, depend on the facts of each case. No abstract rule can encompass all possibilities.

14. However, of relevance to the present case, there is authority that doing nothing for more than 12 months because the person liable to make payment is an irregular or reluctant payer will not constitute special circumstances : see Dickens v. Pattison [1985] FLR 610.”

17.  This is still good law when the principles have been applied in recent matrimonial cases. (See: LBO v. WWKF, FCMC 11924 of 2005, 30 April 2015; W v. F, FCMC 809 of 2004, 11 February 2015; and 葉 訴 林 FCMC 5851 of 2014, [2020] HKFC 175, 27 August 2020)

The wife’s reasons

18.  The wife said she has demanded the husband for payment of arrears of children maintenance since 5 February 2018. She whatapped the husband to demand payment within 13 months from the consent order:

(i)      5 February 2018

(ii)     6 February 2018

(iii)    7 February 2018

(iv)    21 February 2018

(v)     9 March 2018

(vi)    11 June 2018

(vii)   3 December 2018

(viii)  6 December 2018

(ix)   19 December 2018

19.  It is worth mentioning that the last text sent to the husband on 1 April 2019 (see exhibit “CCL-2” of the wife’s affirmation filed on 1 April 2021) was unrelated to the outstanding maintenance. Therefore, the last reminder sent by the wife to husband in issue should be the one sent on 19 December 2018.

20.  Six months from the last whatsapp message sent on 19 December 2019, the wife issued a demand letter by her legal representative on 11 June 2019 to demand for HK$92,500 outstanding children maintenance.

21.  Nothing has been done by the wife in the following 16 months from 11 June 2019. Not until 28 October 2020, she successfully obtained legal aid and a demand letter was then issued to the husband.

22.  On the other hand, the wife admitted she has received pocket money HK$2,000 per month from the husband’s mother from September 2016 to July 2020.

The husband’s opposition

23.  The husband opposed by saying he was unemployed from 19 January 2022 to 31 March 2022. Notwithstanding his failure to pay children maintenance, he found out the wife has means to sustain a living as she went to 3 vacations, namely one trip to Zhuhai in 2018, another trip to Taiwan and finally a trip to Japan in 2019.

24.  The husband is now remarried with a one-year old daughter, and therefore indicating he has difficulty to pay children maintenance as per the consent order.

My view

Generally

25.  It is clear from the legal principles that the burden is on the wife to demonstrate she has special reason for not enforcing the arrears of maintenance due within 12 months. By no means to encourage a paying party to default paying maintenance of any kind, when the wife complains the husband in default of paying children maintenance, she bears the duty to enforce her right in a timely manner or the Court might see she has means to sustain her living with the children.

26.  From the wife’s affirmation, I failed to see she can substantiate there are special reasons or circumstance as required by section 12. The most I can learn from the wife’s position or response were 9 whatsapp messages to ask the husband for outstanding children maintenance in which those messages were sent from over a period of 10 months, i.e. from 5 February 2018 to 19 December 2018. The wife agreed the husband has paid up some children maintenance but at large, the amount of arrears was accumulating month by month.

27.  Although a demand letter was sent by the wife’s solicitors to the husband on 11 June 2019, the wife had taken the enforcement procedure lightly since then. I am aware she took no positive step to go after the husband for outstanding maintenance. And although the court has a wide discretionary power to depart from the general rule, inaction of a receiving party ought to have explained his or her inaction with special reasons. Authorities cited above have decided a reluctant or irregular payer (the respondent in this case) does not constitute a special reason to the judgement creditor for not having enforced her right in a timely manner.

28.  The wife cited LBO v. WWKF (FCMC 11924 of 2005, HHJ Melloy, 30 April 2015) that HHJ Melloy granted leave to the judgment creditor, LBO (the wife in this authority), to enforce arrears of maintenance 4 years since the default of payment. I do not find this case has relevance here because LBO, who was in the United States, was aware WWKF (the husband in this authority) was unemployed at time of default, and she made suggestions and negotiated with WWKF to settle children maintenance on a number of occassions.

29.  In another case cited by the wife, CX v. FCM (FCMC 6410 of 2007), DDJ Rita So granted leave to the wife (in this authority) who was residing in Shanghai, to enforce arrears of maintenance for delay about one year. The wife (in this authority) has sent emails initially and then retaining a solicitor to go after the judgment debtor for outstanding maintenance.

30.  I find the facts of both LBO & CX are different from the present case: more particularly both the judgment creditors were out of town, their difficulties to enforce arrears of maintenance in time were justified. In the present case, the wife and the children are within the jurisdiction at all times, and apart from texting the husband complaining of partial payment of maintenance, she lacked cogent evidence to establish a special circumstance that leave should be granted upon her delay in enforcing the outstanding maintenance. I would add, even if the wife had received HK$2,000 from the husband’s parent from September 2016 to July 2020, nothing has precluded her from refraining going after the husband for the difference of maintenance in a timeous manner.

31.  The husband’s argument aimed at complaining the general conduct of the wife which are irrelevant to the wife’s application. However, at least, during the 16 months from 11 June 2019 to 28 October 2020, the wife’s inaction might have caused the husband to form an impression that she did not need the money, or at least had managed well enough without it.

32.  For reasons of the foregoing, I find there are no special reasons or circumstances for the wife’s inaction not to have enforced the arrears of maintenance due for more than 12 months. I refuse to grant leave to the wife to do so now.

Costs

33.  Costs shall follow the event. I grant a cost order nisi that the wife do pay the husband’s costs of this summons. I opt for summary assessment here. I take into account the husband’s current salary being HK$20,000. The parties have attended for 2 call over hearings together with filing of affirmations and submissions. I so order the wife to pay HK$1,500 to the husband forthwith. This costs order nisi shall be made absolute within 28 days from the date of this judgment in absence of party to vary by summons.

Orders

34.  With reasons of the foregoing, I make the following orders:

(i)  The wife’s (judgment creditor’s) summons filed on 26 April 2021 be dismissed.

(ii)  There be a costs order nisi that the wife do pay the husband’s costs of the summons filed on 26 April 2021 be summarily assessed at HK$1,500 forthwith.