Shokrollah-Babaee v Shokrollah-Babaee

On a judgment summons for breach of a financial remedy order, the applicant must prove to the criminal standard that the respondent had the means to pay and wilfully refused or neglected to do so. Available resources include both income and capital. The court may assess those resources by examining actual receipts, expenditure and financial priorities. A previous civil finding of ability to pay does not remove the need for proof to the criminal standard. Judgment summons proceedings should remain confined to the arrears identified in the relevant statement. An application to vary periodical payments ordinarily requires evidence of a change of circumstances since the original order. Where that evidence is absent, the court may adopt an abbreviated, page-limited procedure.

The parties had previously litigated financial remedy applications following the breakdown of a long marriage. Baker J made orders requiring the husband to pay periodical payments, a lump sum and other sums, and to secure the wife's release from liabilities relating to French properties. Permission to appeal the substantive judgment was refused.

The wife applied for committal for non-payment of periodical payments. The husband admitted substantial arrears but disputed that he had the means to pay. He also applied to vary the periodical payments, sought an extension of time concerning the French properties, and pursued or responded to several ancillary summonses concerning property, assets and sale arrangements.

1. Judgment summons. The wife had to prove to the criminal standard that the husband had the means to pay the sums due and had refused or neglected to pay them. His non-payment was admitted. The issue was therefore whether the court was sure that he had the means to pay.
2. The court considered both the husband's actual receipts and his expenditure. His available resources included capital as well as income. Expenditure on accommodation, children, solicitors, property expenses, travel and luxury items demonstrated that he could have paid the monthly sums, even if doing so would have left relatively little for himself. The husband's argument that only income was relevant was rejected.
3. The husband was accordingly found in contempt of court. The court adjourned consideration of punishment to a further hearing. The judgment summons was confined to the periodical-payment arrears identified in the wife's statement; other alleged breaches were not determined within those proceedings.
4. Variation application. The husband was entitled to have his application heard, but it was unsupported by adequate evidence of any adverse change since the original order. Unless he could demonstrate such a change, the application was unlikely to succeed and might carry costs consequences. The court adopted the abbreviated approach used in Joy-Morancho [2017] EWHC 2086, requiring a short summary, a concise evidence-based statement and a page-limited response.
5. French properties and other summonses. The application for an extension of time was adjourned. Sale of the two French properties was stayed pending a single joint expert valuation of their current and developed values and a proper proposal protecting the wife's entitlement. The passport and sale-control applications were dismissed or abandoned. The matter was listed for a further one-day hearing.

The judgment records that Baker J determined the substantive financial remedy proceedings. Permission to appeal that judgment was refused by Moylan LJ. The present judgment concerned subsequent enforcement, variation and ancillary applications.