Bernstein v O'Neill
| Jurisdiction | England & Wales |
| Judgment Date | 22 October 1987 |
| Year | 1989 |
| Date | 1989 |
| Court | Family Division |
EWBANK, J
Arrears – enforcement – arrears accruing more than 12 months previously – whether payment should be enforced or arrears remitted.
Periodical payments – default in payment – statutory requirement to hold means inquiry and find wilful refusal or culpable neglect before committal to prison in default – culpable neglect – whether there was evidence of culpable neglect.
In 1977 the father was ordered to make periodical payments of £5 a week for each of two children. By 1982 there were arrears of around £1,000 under the order, but during the ensuing three years, although the arrears remained at around £1,000, the current maintenance was being paid. In Sepember 1985 enforcement proceedings were commenced. In November 1985 the father made a payment of £200. The enforcement proceedings came before a stipendiary magistrate in December 1985. The magistrate found that since the payment of £200 in November 1985 no payments had been made. He also found that the father relied, at least in part, on income by way of royalties produced from the marketing of an invention, and that royalties of £1,000 were due to be paid to the father in December 1985. The father contended that he could clear the arrears when he received his royalties of £1,000 within two weeks of the hearing. There was no finding by the magistrate as to how the arrears had accrued in and before 1982.
By s 93(6) of the Magistrates' Courts Act 1980 it is provided:
"A magistrates' court shall not impose imprisonment in respect of a default [in paying a sum under a periodical payments order] unless the court has inquired in the presence of the defendant whether the default was due to the defendant's wilful refusal or culpable neglect, and shall not impose imprisonment as aforesaid if it is of opinion that the default was not so due ..."
The magistrate was of opinion that although he was not satisfied that the father was deliberately refusing to pay, he had been culpably neglectful in that by reason of his default in complying with the terms of the order arrears of over £1,000 had accrued.
By s 95 of the 1980 Act, on the hearing of a complaint to enforce arrears, the court may remit the whole or any part of the arrears. Normally arrears which have accrued more than a year earlier should not be enforced: see Pilcher v Pilcher (No 2) (1956) 120 JP 127; Ross v Pearson (1976) 140 JP 282; Fowler v Fowler (1981) 2 FLR 141; and Russell v Russell [1986] 1 FLR 465.
[1989] FCR 79 at 80
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...exceptional circumstances do arise in this case. As to the question of the arrears, she relies on the decision of Bernstein v O'Neill [1989] 2 FLR 1 where the Court held that the general rule was that arrears of maintenance would not be enforced if they were more than a year old. In the pre......
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