Mediation Practices and the Recovery of Maintenance in Hong Kong Dennis C. Ho Tuesday, 10 November 2015 1.

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Mediation Practices and the Recovery of Maintenance in Hong Kong

Dennis C. HoTuesday, 10 November 2015

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Mediation

In response to the underlying objective of the

Civil Justice Reform in 2009, the Hong Kong Judiciary promulgated a Practice Direction on Mediation (PD 31) which was made effective from the 1 January 2010.

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The main feature of PD 31 includes the filing of a Mediation Certificate, a Mediation Notice and Response.

There are various kinds of mediation in HK,

(1) Building Management Mediation

(2) Commercial Mediation (3) Community Mediation (4) Construction Mediation

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(5) Family Mediation

(6) Mediation for Parents

(7) Peer Mediation in Schools

(8) Victim-offender Mediation

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By PD 15.10 on Family Mediation, the Chief Justice introduced a three-year pilot scheme in Family Court in May 2000.

A Mediation Coordinator’s Office was set up in Family Court. The Mediation Coordinator held information sessions to assist couples to consider mediation to resolve their matrimonial disputes.

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In a report “Family Dispute Resolution Process” published in March 2003 by the Hong Kong Law Reform Commission (“LRC”), it recommended providing access to mediation services and it should be an integral part of the Family Court system.

But it did not consider mediation should be made compulsory in Family Court system.

Financial Dispute Resolution (“FDR”) With effect from 29 December 2003, all

applications for financial relief will go under the FDR except for application for nominal maintenance or where there is an agreement on financial relief has been reached between the parties.

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(1) There will be First Appointment hearing which is to be heard no less than 14 weeks after the date of the filing of the pleadings or Notice.

(2) File and exchange of Financial Statement (Form E) - Not less than 28 days before the date of the First Appointment

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(3) Questionnaire - Not later than 14 days before the hearing of the First Appointment each party shall deliver to court and serve by simultaneous exchanged.

(4) FDR Hearing – Judge to assist the parties to reach a settlement.

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Children Dispute Resolution (“CDR”) A Practice Direction PD 15.13 issued on 23 July 2012 by

the Chief Justice introduced the pilot scheme on CDR for three years commenced on 3 October 2012 and expired on 2 October 2015.

By another PD 15.13 issued on 27 September 2015, the CJ extended the pilot scheme for another six months up to 31 March 2016 with a view to completing the review of the pilot scheme.

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The objective of the CDR To assist parents on separation or divorce to

obtain a lasting agreements concerning children quickly and in a less adversarial atmosphere.

Focus Best interests of children as well as the duties

and responsibility of their parents.

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(1) Parties to file and exchange a Children Form (“Form J”)

(2) Children’s Appointment – Judges to make directions for hearing of the CDR

(3) CDR Hearing – Judges will assist the parties to focus on children’s interest to achieve a settlement.

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Recovery of Maintenance in Hong Kong

The Hong Kong court is given various powers to enforce its judgment or orders made in the matrimonial or family proceedings.

Section 12 of the MPPO provides that if the enforcement for maintenance payment which is in arrears for over 12 months, the applicant requires leave of the court to make the application.

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There are several methods of enforcement available and they are: -

(1) Attachment of Income Orders (2) Garnishee Order (3) Charging Order (4) Writ of Fieri Facias (Writ of Fi Fa) (5) Committal Proceedings (6) Interest and Surcharge on Arrears of

Maintenance Ordinance

(7 ) Judgment Summonses Judgment Summons (“JS”) is the most

common device to enforce payment of arrears of maintenance. The payer is required to appear in court to explain why he or she did not pay for the maintenance.

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The court’s power to deal with these summonses comes from a number of provisions, in particular Rules 87 and 88 of the Matrimonial Causes Rules (Cap 179A) (“MCR”), and the Rules of the District Court, Order 90A and section 28A of the Matrimonial Proceedings and Property Ordinance (MPPO) (Cap 192).

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There are various difficulties to enforce

payment of arrears by JS and one of these is the requirement under the rules to effect personal service of the relevant documents on the judgment debtor.

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In December 2009, the Hong Kong Government was working on the ways to streamline the court procedures in relation to JS to combat the problem of maintenance payers evading service of the JS. In 2012, there are proposed amendments to the Rules on JS and it is still yet to see whether these amendments will get through.

(8) Maintenance Orders (reciprocal Enforcement) Ordinance Cap. 188 (“MO(RE)O”)

The MO(RE)O applies to maintenance orders granted in Commonwealth jurisdictions, provided that they reciprocate by according similar benefits to maintenance orders from the HKSAR.

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The Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance

The text contains the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, and the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.

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There are seventy states signed the Convention

Hong Kong is not a signatory to this 2007 Convention

There is no reciprocal enforcement of maintenance orders between Mainland China and Hong Kong SAR

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Thank You!