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Ccmj v Ssm (Formerly Known As Skl)

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date26 January 2022
Neutral Citation[2022] HKCA 173
Year2021
Judgement NumberCACV84/2021
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV84/2021 CCMJ v. SSM (formerly known as SKL)

CACV 84/2021

[2022] HKCA 173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 84 OF 2021

(ON APPEAL FROM HCMP NO. 929 OF 2017)

________________________

BETWEEN
CCMJ Plaintiff
and
SSM
(formerly known as SKL)		 Defendant
(Re : Hadkinson Order)

________________________

Before : Hon Cheung and Chow JJA in Court

Date of Hearing : 19 January 2022

Date of Judgment : 26 January 2022

____________________

J U D G M E N T

____________________

Hon Cheung JA (giving the Judgment of the Court) :

I. The application

1. This is an application by the defendant mother (‘the Mother’) for an order that the appeal lodged by the plaintiff father (‘the Father’) be stayed until the Father has complied with two court orders made in FCMP 67/2010.

2. The Father now appears in person but he has the benefit of having the written submission prepared by his former counsel lodged in opposition to the present application.

II. Background

3. The parties are not married but had a relationship, during which a child (‘N’) was born in November 2008. N is now 12 years old. She has been a ward of the Court since 20 April 2017. The parties separated in May 2009 when the Mother left home with N who was then six months old.

4. On 5 October 2012, after a lengthy contested hearing, the Family Court granted sole custody, care and control to the Mother with general access to the Father (‘the custody order’). N was then four years old.

5. Since the making of the custody order there had been numerous applications by the parties concerning N’s wardship, custody, care and control and access arrangement.

6. In October 2020, B Chu J was seized with two further applications by the parties, namely, the Father’s application for custody, care and control of N and the Mother’s application for variation of the access arrangement. After a lengthy hearing, B Chu J on 3 February 2021 dismissed the Father’s application. She ordered the parties, with the assistance of the Official Solicitor, to agree to an access arrangement for her approval. Pending this agreement, the existing access arrangement with slight modifications will continue to apply.

7. The Father lodged his notice of appeal against this judgment on 3 March 2021 and issued a summons to adduce fresh evidence for the appeal.

III. The relevant orders

8. The two orders that the Mother now seeks the Court to require the Father to comply with before he is to be allowed to proceed with his appeal are :

1) an order dated 12 June 2014 made by Deputy District Court Judge G.Own (as he then was) (‘Judge Own’) whereby the Father undertook that :

(1) He shall pay for all N’s school fees, school bus, school uniform, school books and stationery so long as they are reasonable and deemed necessary by the school, with school books and stationery to be initially paid by the Mother in respect of which she will be repaid on a reimbursement basis within 14 days from her production of receipts; and

(2) He shall bear all reasonable costs of extra-curricular activities arranged by the Mother provided that the total costs of such activities shall not exceed $4,000 per month, such costs to be initially paid by the Mother in respect of which she will be repaid on a reimbursement basis within 14 days from her production of receipts (‘the Undertaking’).

2) an order dated 5 June 2015 of Judge Own whereby it was ordered, inter alia, that :

(1) The Father do pay N’s maintenance at the rate of $13,726 per month on or before the first day of each month until N reaches the age of 18 or ceases full time education, whichever is the later ([3]);

(2) The Father do pay carer’s allowance to the Mother at the rate of $10,000 a month until further order ([5]); and

(3) Extra-curricular activities expenses for N arranged by the Mother in excess of $4,000 are to be equally shared by the Father and the Mother ([8]) (‘the Maintenance Order’).

9. The Father failed to comply with these two orders. He did not pay the maintenance for N, the carer’s allowance for the Mother and the school and extra-curricular activities (‘ECA’) expenses.

10. In respect of N’s maintenance and the Mother’s carer’s allowance, the Father does not dispute his liability to pay these sums but claimed that he is unable to pay them.

11. The Father started to delay payment of the school-related and ECA expenses in January 2017 and eventually stopped paying them from October 2018 onwards. He has paid nothing since October 2018. From that moment to 18 March 2020, the Father has failed to pay the school-related and ECA expenses in the sum of $181,773.90 (excluding interest).

12. On 19 May 2020, the Mother obtained a garnishee order nisi for that sum (‘the 1st garnishee application’). On 28 September 2020, the Father paid $22,000 out of the $181,773.90 being the amount uncontested by him according to his own calculations. The sum of $22,000 was paid by the Father as a condition to set aside the 1st garnishee order nisi dated 19 May 2020. This reduced the outstanding amount up to 18 March 2020 to $159,773.90. That sum remains outstanding.

13. From 19 March 2020 to 13 October 2020, the Father failed to pay the school-related and ECA expenses in the additional sum of $34,433.10 (excluding interest).

14. Since July 2020, the Father has stopped paying N’s maintenance and the Mother’s carer’s allowance. The Father paid $41,178 on 18 and 19 October 2020. They represented N’s maintenance for July, August and September 2020. These two sums were paid by the Father immediately before the hearing before B Chu J on 20 October 2020.

15. On 17 November 2020, the Mother obtained a garnishee order to show cause against HSBC and the Bank of China (‘BOC’) (‘the 2nd garnishee application’). The application is to attach the money of the Father in the bank accounts to answer the $289,111 then due to be paid by the Father under the two orders. It came before Judge Own in October 2021 and the decision is being reserved.

16. The amount outstanding from the Father in July 2021 when Mr.Surman and Ms Pao for the Mother lodged their written submission in support of the present application was :


Description Amount
1. Sum covered under the 2nd garnishee proceedings (up to 13 October 2020, exclusive of interest) $247,933
2. Further sum for N’s maintenance ($13,726 per month) and the Mother’s carer’s allowance ($10,000 per month) from November 2020 to July 2021 (nine months in total) (exclusive of interest) $213,534
3. Further Expenses incurred for N since 14 October 2020 (exclusive of interest) (to be calculated)

____________________

Total
$461,467+

17. A breakdown of $247,933 in Item 1 of [16] is as follows :

Description Amount
1. School-related and ECA expenses under the 1st garnishee application (up to 18 March 2020, exclusive of interest) $159,773.90
2. School-related and ECA expenses (from 19 March 2020 to 13 October 2020, exclusive of interest) $34,433.10
3. N’s maintenance (for October 2020 [one month], exclusive of interest) $13,726.00
4. Mother’s carer’s allowance (for July, August, September and October 2020 [four months], exclusive of interest) $40,000.00

____________________

Total
$247,933.00

18. Mr. Surman informed the Court that the total amount outstanding at the date of this hearing on 19 January 2022 is $603,823 which includes the sum of $461,467 in [16] and the additional sum of $189,808 which is N’s maintenance and the Mother’s carer’s allowance for eight months from June 2021 to January 2022. It seems there is a miscalculation of the sum of $189,808. According to [16] Item 2, the arrears of N’s maintenance and the Mother’s carer’s allowance are calculated to July 2021 already. Hence, the correct figure should be six months from August 2021 to January 2022 at $142,356. The total outstanding amount of $603,823 is, however, correct.

IV. The Hadkinson order

19. The order now sought by the Mother is known as the Hadkinson order which has its origin from the case of Hadkinson v. Hadkinson [1952] p.285 where Denning LJ at 298 held :


‘ ...It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance. ...... I am of opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience 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, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.’

20. Sir John Balcombe observed in Baker v.Baker (No 2) [1997] 1 FLR 148 at 151 that Denning LJ’s approach now represents the modern practice as appears from the speeches of Lord Bridge of Harwich and Lord Oliver of Aylmerton in X Ltd v. Morgan-Grampian (Publishers) Ltd and Others [1991] 1 at 46-47 and 50-51 respectively.

21. More recently in Anne Orenga de Gafforj v. Henri Orenga de Gafforj [2018] EWCA Civ 2070 (Appeal: Hadkinson Order) ‘de Gafforj’, Peter Jackson LJ of the English Court of Appeal summarised the nature of Hadkinson order as follows :

‘ 9. The nature of the Hadkinson order was described in this way by Sir Ernest Ryder in Assoun v Assoun [No 1] [2017] EWCA Civ 21 at [3]:

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