WKI also known as IWKV v. CKW also known as WCKW

FCMC 11528 / 2019

[2024] HKFC 3

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11528 of 2019

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DECISION
(W’s Application for Hadkinson Order)

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1.  This is the decision on the Petitioner wife’s (“W”) application for a Hadkinson Order by a Summons filed on 6 April 2023 (“W’s Hadkinson Summons”).

2.  W’s case is that by reason of the Respondent husband’s (“H”) failure to pay interim maintenance for the Child pursuant to DDJ M Lam’s order dated 1 April 2021 (“April 2021 Order”), H should not be heard on his Summons filed on 6 January 2022 (“Committal Summons”). The Committal Summons is for an order to commit W to a contempt of court due to her failure to permit or facilitate H’s access to the Child in breach of two court orders.

3.  The parties married in 2007. W petitioned for a divorce on 25 September 2019. Their Child is now aged 13. Both parties are gainfully employed with decent monthly income of about HK$90,000 and HK$155,000 on average respectively[1].

4.  The parties are highly litigious. They have fought and continue to fight on almost every aspect of the case, be it relates to matters concerning the Child or ancillary relief.

5.  By an order of DDJ M Lam made on 16 July 2020, the parties shared the care of the Child with specified care arrangements during 2020 summer holiday and school term time thereafter (“July 2020 Order”).

6.  By the April 2021 Order, DDJ M Lam

(1)  temporarily suspended the shared care of the Child for H and granted him interim defined day access; and

(2)  ordered H to pay W a monthly interim maintenance of HK$12,000 for the Child from 1 May 2021 to 31 August 2021 and HK$14,000 from 1 September 2021 until further order (“Child’s Interim Maintenance”).

7.  For completeness, H’s access to the Child was varied by two subsequent orders as follows:

(1)  Extended access time was granted to H by the order of DDJ J Lee (as she then was) made after an unsuccessful CDR hearing on 12 November 2021.

(2)  The parties were granted joint custody, and shared care and control of the Child with specified care arrangements by an order of DDJ T Chow made on 3 October 2022 after trial.

8.  It turned out that neither H nor W has fully complied with the court orders.

9.  H failed to pay the Child’s Interim Maintenance pursuant to the April 2021 Order. W took out various enforcement proceedings, including filing Judgment Summonses and Attachment of Income applications. H filed applications for variation of interim maintenance, including a Summons filed on 23 November 2022 whereby he sought an order that W do pay him an interim monthly maintenance of the Child in the sum of HK$10,000. This variation application is to be heard together with the trial on ancillary relief dispute.

10.  As to W, despite the July 2020 Order and the April 2021 Order, she refused H’s access to the Child during various periods from 25 August 2020 to 17 September 2020, 24 October 2020 to 1 April 2021 and 27 June 2021 to 9 September 2021. This is the subject matter of the Committal Summons. W did not dispute that access had not taken place during these periods. She said that access was not appropriate due to the then public health condition and the Child’s well-being.

11.  At the hearing of the Committal Summons on 28 March 2023, W advanced a Hadkinson point relying on H’s non-payment of the Child’s Interim Maintenance. I referred the parties to the Court of Appeal decision in CWG v MH and others[2] and refused to deal with W’s argument without a proper application.

12.  In [16.3] of CWG v MH, Yuen JA said that:

“16.3 For my part, I would have thought that bearing in mind the principles of the Civil Justice Reform, an application of such significance as a Hadkinson application should not be made without the other party being duly forewarned by way of summons, with enough time for affidavit evidence to be adduced for and against the making of the order. That has not been done in relation to the appeals in which the Mother is a respondent.”

13.  W’s Hadkinson Summons was thus taken out.

14.  The legal principles for granting a Hadkinson order are set out in the Court of Appeal decisions in CWG v MH and CCMJ v SSM (formerly known as SKL)[3].

15.  In summary, the court shall consider the following questions by applying the civil standard of proof:

(1)  Is the respondent to the application in contempt?

(2)  Is there an impediment to the course of justice?

(3)  Is there any other effective means of securing compliance with the court’s orders?

(4)  Should the court exercise its discretion to impose conditions having regard to the question?

(5)  Is the contempt wilful and continuing?

(6)  If so, what conditions would be proportionate?

Conditions (1) and (5): Is the respondent to the application in contempt; Is the contempt wilful and continuing

16.  In breach of the April 2021 Order, H (the respondent to W’s Hadkinson application) did not pay the Child’s Interim Maintenance. The April 2021 Order was endorsed with penal notice by DDJ M Lam’s order dated 6 September 2021. There is no appeal against the April 2021 Order.

17.  Non-payment of the Child’s Interim Maintenance is in itself a contempt of court. For the present purpose, there is no need to go into the issue of ability to pay, which is a question to be considered when dealing with the sanction for the contempt: Mubarak (No. 2) [65] – [66], cited in CCMJ v SSM [28]. In any event, the parties have not taken issue on the ability to pay.

18.  H is fully aware of the order to pay the Child’s Interim Maintenance. His non-compliance is deliberate.

19.  The answers to conditions (1) and (5) are yes. H is in wilful and continuing contempt.

Condition (2): Is there an impediment to the course of justice?

20.  On this issue, I respectfully follow the principles enunciated in the following decisions cited in CCMJ v SSM:

“30. In respect of impediment to the course of justice, Sir John Balcombe in Baker (No 2) at 154 disagreed with the husband’s submission that his failure to pay the lump sum ordered did not impede the course of justice. He held :

‘In my judgment, it does ... There have been innumerable applications. The position is that the costs have risen out of all proportion to the money at stake. The wife still has not had her lump sum and not had all that is due to her under the periodical payments order.’

31. In Laing v Laing [2007] 2 FLR 204, Sir M Potter J held :

[18] It is clear from the judgment of Ryder J in Mubarak that previous decisions - or, at any rate, such decisions as have been reported - in which the court has by application of the Hadkinson principle imposed conditions as to the continuance of an application for the benefit of the party in contempt, the court has been concerned with very large outstanding sums and particularly blatant examples of contempt by the party applying for relief or variation. However, that does not mean that the jurisdiction is limited to such cases. The touchstone and the power of the court to refuse to hear a party on which the power to impose conditions of continuance is founded, is (as already stated) whether the conduct amounting to a contempt, in this case the failure to pay under the existing order (see Leavis v Leavis), is such that, so long as it continues, it impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make. That was accepted and restated in Baker v Baker (No 2) [1997] 1 FLR 148 and confirmed in Mubarak. It is not a principle that depends on the size of the sums involved but upon the relevant situation of the parties, the circumstances of the non-payment and the effect of such non-payment on the course of justice in the particular case.’

32. Peter Jackson LJ at de Gafforj stated :

[13] As to the third condition, it is not necessary to limit by further definition what it means to impede the course of justice, but it is likely to include what Sir Mark Potter P described in Laing v Laing [2005] EWHC (Fam) at [18] as ‘making it more difficult for the court to ascertain the truth or to enforce the orders it makes.’

21.  Hence, the answer to condition (2) is yes. H’s non-compliance with the April 2021 Order impedes the course of justice by “making it more difficult for the court to ascertain the truth or to enforce the orders it makes”.

Condition (3): Is there any other effective means of securing compliance with the court’s orders

22.  There is other effective means of securing H’s compliance with the court’s orders. W has been actively pursuing various Judgment Summonses and Attachment of Income applications to enforce the payment of the Child’s Interim Maintenance. The enforcement proceedings will be adjudicated after the determination of H’s variation application. H, if found to have been in default of payment, may also be liable to pay judgment interest on the defaulted sum.

Conditions (4) and (6): Should the court exercise its discretion to impose conditions having regard to the question; If so, what conditions would be proportionate

23.  The court has a duty to balance all the relevant circumstances in the exercise of discretion to grant a Hadkinson order. Due to the nature of a Hadkinson order, the application needs to be approached with circumspection.

24.  As I have found, W has other means to secure H’s compliance of the court order. She is still actively pursuing these means.

25.  By the Committal Summons, H is seeking to enforce a court order on access. W accepted that access had not taken place at the periods concerned despite the court orders. The denial of access stopped since 2021. W gave her explanations for not allowing access during the periods concerned. These are matters to be considered in the Committal Summons. Although it is premature to say whether H will prove his case in the Committal Summons, it is not appropriate to deny him from proceeding with the application for the reasons advanced by W.

26.  Balancing all circumstances, discretion will not be exercised in favour of the granting of a Hadkinson order.

Order

27.  W’s Hadkinson Summons is therefore dismissed. On a nisi basis to become absolute within 14 days, I order W to pay H the costs of this application on a party and party basis, at an amount to be taxed if not agreed.