CONTEMPT IN THE FAMILY COURT
Divorce proceedings are unarguably one of the most difficult and stressful time for couples that are ending their marriage. All too often, the animosity between divorced spouses would lead to one party breaching the terms of the order for divorce. In a situation like this, the other party may initiate committal proceedings to hold his or her ex-spouse in contempt for refusing to obey the Court order.
What is contempt of Court?
In general, a person being in contempt of Court has committed a serious offence since the person is found to be disobedient or disrespectful towards the Court. He or she is also considered to be interfering with the due administration or the course of justice. In family law, contempt of Court often occurs when a party wilfully and/or deliberately ignores or breaches a Court order. Some examples of contempt in the family law context include: –
- Where one party refuses to allow the other party access to the children;
- Where one party fails to return the children to the other party at the end of the period of access as stipulated in the Court order;
- Where one party fails to pay spousal and/or children maintenance;
- Where one party does not deliver or transfer the property according to the Court order.
The initiation of committal proceedings is thus a common way to declare the person to be in contempt of court. It assists the enforcement of Court orders relating to child and spousal maintenance, as well as custody and visitation orders. Any ex-spouse, who is found guilty of contempt of court, could be fined, imprisoned or both.
Prerequisites to Enforcement
If the Court order is injunctive in nature i.e. requiring a person to do or to abstain from doing an act within a specified time, Order 45 rule 5 of the Rules of Court 2012 would apply. Under this provision, the rules require there to be a penal endorsement on the Court order. The penal endorsement is usually located at the end of the Court order giving notice to the person on whom the order is served that if he neglects to obey the order within the time specified therein, he would be liable to the process of execution to compel him to obey it.
An example of an injunctive Court order would be where a party is obliged to dispose of the matrimonial home and to pay the other party the entitled share of the sale proceeds within a certain time frame, but had failed to do so.
It is pertinent to note that a failure to include a penal endorsement is usually fatal to an application for committal proceedings under this provision. However, there are other methods* available to enforce the Court order in the event that such penal endorsement is missing.
Lastly, the Court order bearing the appropriate penal endorsement must also have been served personally on the person against whom the order of committal is sought or via his/her solicitors.
Filing for committal proceedings
The procedure in applying for committal proceedings is set out in Order 52 of the Rules of Court 2012. It is a two-step process, which begins with the filing of an ex-parte** application for leave to initiate committal proceedings at Court together with a statement setting out the reasons for the committal proceedings. An affidavit verifying the facts relied on must also be filed with the leave application.
In the event the Court finds that there is a prima facie case against the person committing the contempt (also known as “the contemnor”), the Court will grant leave to continue with the next step of the committal proceedings; the application for a committal order against the proposed contemnor. The application must then be personally served on the proposed contemnor, where there must be at least 8 days between the service and the hearing. In a situation where the proposed contemnor is evading service, the Court may dispense with personal service or allow substituted service.
As the contemnor might face harsh punishment for breaching the Court order, strict compliance with the Rules of Court 2012 is necessary.
Criminal standard of proof
As committal proceedings are quasi-criminal in nature, the criminal standard of proving beyond reasonable doubt is applied to demonstrate that the proposed contemnor has breached the Court order.
Consequences of being held in contempt
If the Court decides to grant an order for committal against the contemnor, the contemnor may either be imprisoned or fined. The Court has the discretion when ordering punishment for contempt and the term of imprisonment or the amount of the fine would largely depend on the seriousness of the contempt.
An example of how the Court may exercise its discretion when ordering punishments can be seen in the case of Low Swee Siong v. Tan Siew Siew  9 CLJ 536. In this case, the High Court held the husband to be in contempt of Court for taking and keeping the child away from the wife. The High Court imposed a fine of RM20,000, and in default of the fine, to be committed to two months of imprisonment. Furthermore, the High Court held that the husband would also be fined an additional RM400 for every day he continued not to hand over the child until he complies with the same.
Further, a person committed may be sentenced to remain in prison indefinitely until he purges his contempt i.e. complies with the Court order. The recent case of Sharmila M Helan Govan v. Gunalan Govindasamy  1 LNS 125 is an illustration of how serious the Court may treat contempt in family proceedings. In this case, the husband was held to be in contempt of the Decree Nisi which had ordered him to pay maintenance for his child. In finding that the husband had shown a total disregard and defiance to the rules of Court and the proceedings therein, the High Court sentenced the husband to be imprisoned until he purges his contempt.
It suffices to say that being found in contempt of a Court order is extremely serious, and the sanctions imposed can be severe. Many divorced spouses are under the misconception that a Court order for divorce is merely an A4 document with written words on it, but it is imperative to note that divorce orders, as with all Court orders, are legally binding with serious legal consequences if disregarded.
*Will be discussed in the next article
**No appearance or attendance of the person accused to be in contempt or his/her solicitors
By: Jaclyn Chang
DISCLAIMER: This article is for general information only and should not be relied upon as legal advice and/or legal opinion. Messrs Yeoh & Joanne accepts no liability for any loss which may arise from reliance on the information contained in this article.
法院在下令处罚时如何行使其酌处权的一个例子可以在Low Swee Siong v. Tan Siew Siew  9 CLJ 536一案中看到。在这一案件中，高等法院认为丈夫因将孩子带离妻子而藐视法庭。高等法院判处2万令吉的罚款，如果没有支付罚款，将被判处两个月的监禁。此外，高等法院认为，丈夫如果继续不交出孩子，每天还会被罚款400令吉，直到他遵守法庭令为止。
此外，触犯藐视法庭罪的人可能被判处无限期监禁，直到他解除其藐视法庭罪，即遵守法院命令。最近的Sharmila M Helan Govan v. Gunalan Govindasamy  1 LNS 125案件说明了法院在家庭诉讼中法法庭如何严肃对待藐视法庭。在这种情况下，丈夫被认为藐视命令支付子女抚养费法院命令。高等法院认定丈夫完全无视和蔑视法庭条例和其中的诉讼程序，因此判处丈夫监禁，直到他解除该蔑视行为为止（支付法庭令中规定的赡养费）。
文章来自于：张美琪律师 (Jaclyn Chang Mei Qi)
文章翻译：李淑婷律师 (Lee Su Ting)
免责声明:本文仅供参考，不应作为法律建议和/或法律意见。Yeoh & Joanne律师事务所不会承担因依赖本文所含信息而产生的任何损失的责任。