BL v. SJY

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)

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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 11^th 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 2^nd 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  

a)  The 3^rd judgment summons dated the 27 September 2013

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:

Child Maintenance Paid	Payment Date	Child Maintenance Shortage Per Month	Arrears By Instalment Shortage Per Month	Grand Total
$3,000.00	October 2012	$3,500.00	$3,000.00
$3,000.00	November 2012	$3,500.00	$3,000.00
$3,000.00	December 2012	$3,500.00	$3,000.00
$3,000.00	January 7th, 2013	$3,500.00	$3,000.00
$3,000.00	February 5th, 2013	$3,500.00	$3,000.00
$3,000.00	March 6th, 2013	$3,500.00	$3,000.00
$3,000.00	April 6th, 2013	$3,500.00	$3,000.00
$0.00	May, 2013	$6,500.00	$3,000.00
$3,000.00	June 10th, 2013	$3,500.00	$3,000.00
$3,000.00	July 15th, 2013	$3,500.00	$3,000.00
$3,000.00	August 8th, 2013	$3,500.00	$3,000.00
$0.00	Sept-13	$6,500.00	$3,000.00
Total shortage Oct. 2012 - Sept. 2013		$48,000.00	$36,000.00	$84,000.00

This figure is not disputed by the husband.

b)  4^th judgment summons dated the 22 May 2014

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:

Child Maintenance Paid	Payment Date	Child Maintenance Shortage Per Month	Arrears By Instalment Shortage Per Month	Grand Total
$3,000.00	10/23/2013	$3,500.00	$1,935.50	$5,435.50
$3,000.00	Nov. 25th issued check	$3,500.00	$0.00	$3,500.00
$3,000.00	12/18/2013	$3,500.00	$0.00	$3,500.00
$3,500.00	1/15/2014	$3,000.00	$0.00	$3,000.00
$3,500.00	2/19/2014	$3,000.00	$0.00	$3,000.00
$3,500.00	3/24/2014	$3,000.00	$0.00	$3,000.00
$3,000.00	4/29/2014 for April	$3,500.00	0	$3,500.00
$3,500.00	4/29/2014 for May	$3,000.00	0	$3,000.00
				$27,935.50

Again this figure is not disputed by the husband.

c)  5^th judgment summons dated the 20 July 2015

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:

Child Maintenance Paid	Payment Date	Child Maintenance Shortage Per Month	Grand Total
$3,500.00	6/18/2014	$3,000.00	$3,000.00
$3,500.00	7/14/2014	$3,000.00	$3,000.00
$1,500.00	9/5/2014(released check) on Sept. 5, 2014 for Aug.)	$5,000.00	$5,000.00
$3,500.00	9/5/2014(released check on Sept. 5,2014 for Sept)	$3,000.00	$3,000.00
$3,500.00	10/22/2014 (10/19/2014 released check for Oct.)	$3,000.00	$3,000.00
$3,500.00	11/26/2014	$3,000.00	$3,000.00
$3,500.00	12/19/2014	$3,000.00	$3,000.00
$4,500.00	1/27/2015	$2,000.00	$2,000.00
$4,500.00	2/24/2015	$2,000.00	$2,000.00
$5,000.00	3/19/2015	$1,500.00	$1,500.00
$5,000.00	4/22/2015	$1,500.00	$1,500.00
$5,000.00	5/22/2015	$1,500.00	$1,500.00
$5,000.00	6/22/2015	$1,500.00	$1,500.00
Total Shortage from June 2014 till June 2015			$33,000.00

Once again the husband does not dispute this figure.

6^th 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:

Child Maintenance Paid	Payment Date	Child Maintenance Shortage Per Month	Grand Total
$0.00	July	$6,500.00	$6,500.00
$5,000.00	8/28/2015	$1,500.00	$1,500.00
$5,000.00	10/2/2015 (for September 2015)	$1,500.00	$1,500.00
$5,000.00	10/26/2015	$1,500.00	$1,500.00
$5,000.00	11/27/2015	$1,500.00	$1,500.00
$5,000.00	12/22/2015	$1,500.00	$1,500.00
$5,000.00	1/29/2016	$1,500.00	$1,500.00
$5,000.00	2/26/2016	$1,500.00	$1,500.00
$0.00	March	$6,500.00	$6,500.00
$0.00	April	$6,500.00	$6,500.00
$0.00	May	$6,500.00	$6,500.00
$0.00	June	$6,500.00	$6,500.00
Total Shortage from July 2015 till June 2016			$43,000.00

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:

HK$84,000 + 630 + 30 = HK$84,660

HK$27,935.50 + 630 + 40 = HK$28,605.50

HK$33,000 + 630 + 40 = HK$33,670

HK$43,000 + 630 + 40 = HK$43,670

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:  

  12.  Having considered all of the above it seems to me that there is no proper basis for considering a variation of the order. Nothing has changed since my judgment of the 12 February 2015, save for some minor matters such as an increase in rent for both sides. Thus it seems to me that this was simply a tactical move made by the husband to delay the judgment summons hearing. In such circumstances the husband’s Notice of Application dated the 22 September 2015 shall be dismissed with costs to the wife on an indemnity basis. The wife has referred to other costs orders in her latest Form E and non payment of the same. As indicated by the court before, in the event that the wife wishes to pursue the issue of the non payment of court costs then she will in the first instance need to go through the taxation process. In so far as the costs of this summons are concerned it seems to me that in the circumstances an indemnity costs order is warranted – although I accept that in reality given that the parties are acting in person and the wife is not working, this is a paper deterrent only.

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:

   Upon examination on oath of the judgment debtor in open court, this court finds that:

•   Pursuant to the original court order dated 19 May 2011 and as reiterated in the subsequent judgments dated the 12 February 2015 and the 19 January 2016 the judgment debtor was ordered to pay the judgment creditor the monthly sum of HK$6,500 per month, payable on the first day of each month, being the periodical payments for the child of the family, plus arrears of HK$85,935.50 by instalments of HK$3,000 per month until payment was made in full.

•   He has failed to make such payment, and there is due and owing under the said order and subsequent judgments the sum of HK$190,605.50 inclusive of costs and travelling expenses as set out in paragraph 10 above. 

The judgment debtor has not shown cause why he should not be committed to prison as he had the ability to make the payments ordered as aforesaid but has wilfully failed to do so and is in contempt of the court order of 19 May 2011. 

•   Thus the judgment debtor shall be committed to prison for the period of two months.  Upon payment of the whole of the judgment debt and the costs in the total sum of HK$190,605.50 the Chief Bailiff or the Commissioner of Correctional Services, as the case may be, is directed to release the judgment debtor forthwith.