Mediation Practices and the
Recovery of Maintenance in
Hong Kong
Dennis C. Ho
Tuesday, 10 November 2015
1
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.
2
The main feature of PD 31 includes the filing
of a Mediation Certificate, a Mediation Notice
and Response.
3
There are various kinds of mediation in HK,
(1) Building Management Mediation
(2) Commercial Mediation
(3) Community Mediation
(4) Construction Mediation
4
(5) Family Mediation
(6) Mediation for Parents
(7) Peer Mediation in Schools
(8) Victim-offender Mediation
5
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.
6
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.
7
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.
8
(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
9
(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.
10
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.
11
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.
12
(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.
13
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.
14
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
15
(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.
16
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).
17
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.
18
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.
19
(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.
20
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.
21
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
22
Thank You!
23