TMY v. LCH

FCMC 13687/2016

[2022] HKFC 132

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 13687 OF 2016

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JUDGMENT

(Variation of Maintenance)

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Background

1.  This is an application by the Respondent Husband (“H”) to apply for variation of maintenance payable to the Petitioner Wife (“W”) for her maintenance and the child of the family.

2.  H and W were married in November 2002. They gave birth to their son (“the Child”) in 2004.

3.  W petitioned for divorce in 2016. Decree Nisi was made absolute on 26 October 2018.

4.  Pursuant to W’s Summons filed on 9 January 2017, H was ordered to pay maintenance pending suit for W in the sum of HK$34,000 per month being $31,000 for herself and $3,000 for the Child by HHJ C.K. Chan on 27 March 2017 (“the MPS Order”).

5.  H and W reached an agreement on ancillary relief. By consent, it was ordered on 13 September 2018 that upon H’s undertaking (“H’s Undertaking”) to pay for the expenses of the Child defined therein, H shall pay to W the sum of HK$28,000 per month as her maintenance and HK$3,000 per month as the Child’s maintenance.

6.  By consent, H and W were granted joint custody of the Child with sole care and control granted to W and reasonable access granted to H on 8 September 2017.

7.  By Summons filed on 16 October 2020, H applied for the Maintenance Order be discharged or suspended by reason of his unemployment.

H’s Case

8.  H was born in 1974 and aged 47 at the time of trial.

9.  H was employed as a responsible officer between February 2018 and February 2020 in a securities company.

10.  H became unemployed since March 2020 despite his best efforts to find a new employment.

11.  Due to poor economic environment and high unemployment rate caused by COVID 19 coupled with the fact he was less competitive in the market due to his age, he might not be able to secure employment in the near future.

12.  Further, the financial assistance from his family had stopped. He had no beneficial interest in the business or assets held by his mother and sister and could not draw income.

13.  On the other hand, W should be now capable of earning a reasonable income.

W’s Case

14.  W was born in 1976 and was 45 years old at the time of trial.

15.  H unilaterally reduced his payment of maintenance from $31,000 to $15,000 in April and May 2020, he even stopped making payment ever since June 2020.

16.  H was educated with an overseas university degree in Economics and holds a SFC Type 1 Licence. He had been working as a responsible officer and was able to secure stable employment and income for over 10 years.

17.  There should be no difficulties for H to secure new employment. Alternatively, H could still be able to find a new job at a more junior level. H had failed to make his best efforts to look for new employment.

18.  In any event, assistance from H’s family should be sufficient to pay W under the Maintenance Order.

19.  W could not adapt to the working environment and it was reasonable for her to stop working.

Legal Principles

20.  The legal principles on variation were summarised by Cheung JA in paragraph 14 of AEM v VFM [2008] 3 HKLRD 36 as follows:-

“Principles on variation

14. 1. The power to vary a periodical payment order is expressly provided for by section 11(1) of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (‘MPPO’) :

‘(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.’

2. How this power is to be exercised is stated in section 11(7) :

‘(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death.’

3. The traditional approach to variation was not to re-fix afresh the amount of maintenance but to consider the amount of change in the actual means of the parties so that the new order should merely be increased or decreased roughly in proportion to the change in the means : Foster v. Foster [1964] 3 All ER 541, Jackson’s Matrimonial Finance and Taxation 7^th Ed. Ch. 3. 131.

4. The modern approach, as required by section 11(7), is for the Court to consider all the circumstances of the cases. The Court is not required to proceed from the starting point of the original order but look at the matter afresh : Flavell v. Flavell [1997] 1 FLR 353 at 357B following Lewis v. Lewis [1977] 1 WLR 409 and Garner v. Garner [1992] 1 FLR 573.

5. Any change in any of the matters to which the Court was required to consider when making the original order was one of the circumstances to be considered.

6. Almost invariably, an application to vary an earlier periodical payment order will be brought on the basis that there has been some changes in the circumstances since the original order was made, for example, continuing inflation; the increased costs in supporting a growing child and that one party may be more adversely affected than another by the increase in the costs of living : Garner v. Garner.

7. An increase in the wealth of the husband was a relevant factor to be taken into account : Primavera v. Primavera [1991] 1 FLR 16 and Cornick v. Cornick (No. 2)[1995] 2 FLR 490.

8. At the same time the basis and intended effect of the original order are relevant factors to which the Court on variation should pay regard and there should not be a radical departure from the approach taken by the parties themselves when they had entered into an agreement embodied in a consent order : Boylan v. Boylan [1988] FLR 282.”

21.  For how much weight to be attached to the original order, Tang VP (as he then was) stated in HCTT v. TYYC [2008] 5 HKC 86 at paras 15-16:-

“15. But as Garner v. Garner [1992] FLR 573 shows that does not mean that the earlier order, whether made by consent or not, carries no weight. How much weight should be given to the earlier order must depend on the circumstances. Cazalet J said in the English Court of Appeal:

“Almost invariably, an application to vary an earlier periodical payment order will be brought on the basis that there has been some change in the circumstances since the original order was made; otherwise, except in exceptional circumstances, the application will, in effect, be an appeal. If an order is not appealed against, or is made by consent, then the presumption must be that the order was correct when made. If it was correct when made, then there will usually be no justification for varying it unless there has been a material change in the circumstances. However, because of the impact of continuing inflation, because children grow older and cost more to support and because, for example, the cost of living in its increase may hit one party harder than another, it will usually follow that, if time has passed, there will inevitably have been changes in the circumstances, of the parties concerned.

Following Lewis v. Lewis, by which decision this court is bound, a court on the hearing of an application to vary is fully entitled to look at all the relevant matters set out in s.25 of the Matrimonial Causes Act 1973. On occasions, the court may be slow to accede to an application to vary a consent order; not least because the parties’ solicitors might otherwise be deterred from either seeking to negotiate such a provision or to achieve finality. Another factor which may influence a court will be the time that has passed since the original order was made. If an application consequent on an order is brought very soon after that order has been made, the court, in normal circumstances, is likely to attach more weight to the earlier order than if it had been made some years previously. Likewise, the court would expect to pay full regard to any special terms agreed between the parties at the time the original order was made- as, for example, when endorsements on briefs or contemporaneous correspondence show that an agreed order has, for some particular reason, been set at an artificially low figure. Shortly stated, the court must decide what weight it should attach to the original order and all the surrounding circumstances. However, once an application to vary is before it, the court is fully entitled to make an order considering all the circumstances afresh, paying such regard to the older order as may be appropriate.”

16. Thus, although the jurisdiction to vary is untrammelled, normally the earlier order would not be varied unless there has been a material change in the circumstances.”

Issues

22.  Unemployment in the applicable situation could be considered a change of circumstances as it could affect one’s ability to pay.

23.  W argued that there had been no change of circumstances as H should be able to find a new job with his qualification and experience. H simply did not want to find a new job.

24.  It was in the ruling of HHJ C.K. Chan’s Judgment for the MPS Order that H had his family’s financial support. H claimed the family financial had stopped which W did not agree.

25.  Both H’s efforts to find new job and family support relate to the questions of whether there had been a change of circumstances and H’s ability to pay.

26.  H argued that W should be working to earn a reasonable income but W claimed it was reasonable for her to stop working.

27.  In my view, the issues in this trial are as follows:-

(1)  Should H be able to find new employment?

(2)  Does H have family financial assistance?

(3)  Financial Position and Reasonable Needs of W and the Child?

Should H be Able to Find New Employment?

28.  H was born in 1974 and was 47 years old at the time of trial. He graduated from a university in New Zealand with a bachelor degree in Economics. He holds a SFC Type I licence.

29.  H first started working as a dealing director in 2001 until he changed to work in his family business [WE] Limited (“WEL”) in 2002.

30.  After he obtained his SFC Type I licence in 2005, H left WEL and worked in the finance industry.

31.  H worked as a responsible officer for [APS] Limited for over 10 years before he resigned in February 2018 to work for [YS] Limited (“YSL”) also as a responsible officer. H’s average monthly salary then increased to $41,666,67 from $28,852.

32.  H’s employment was terminated by YSL by the end of February 2020 as the company ceased its business. According to H, he was given only 2 days’ notice.

33.  H had been unemployed since then. He alleged that he foresaw he would not be able to secure a new job in the near future.

34.  H stated in his affirmation filed on 16 October 2020 that he expected the savings in the sum of $55,270.45 remained in his bank account would exhaust in 2 months for spending on his personal expenses.

35.  As deposed in H’s affirmation filed on 22 April 2021, he had made 18 applications through an online job seeking platform “JobDB.com” for the position of responsible officer in the finance industry all with no response.

36.  However, I noticed there were actually 19 emails exhibited for H’s job applications on the following dates between 17 March 2020 and 26 November 2020:-

17 March 2020	6 April 2020
15 April 2020	15 April 2020
28 April 2020	28 April 2020
15 May 2020	15 May 2020
16 June 2020	2 August 2020
7 August 2020	20 August 2020
2 September 2020	16 September 2020
7 October 2020	29 October 2020
7 November 2020	18 November 2020
26 November 2020

37.  H attributed his continuous unemployment to the poor economic environment caused by the pandemic and his age.

38.  While it is true that the pandemic has had great impact over the society in general, it does not follow that every industry and every individual company would necessarily suffer or suffer badly. H did not in his affirmations nor at trial explain how the pandemic affected the job demand of his work industry.

39.  H also gave no explanation or evidence in support of his assertion that he would be considered too old for new employment in his industry.

40.  H made only a blanket statement blaming the pandemic and his age without details or supporting evidence.

41.  There is no evidence as to how many job openings there were during the time H was unemployed in the market. At least it can be seen from H’s evidence there were 19 job offerings that he applied to between 17 March 2020 and 26 November 2020. Apparently he must be qualified for those applications with his age.

42.  Evidently, H’s industry still had demand for responsible officers open to H’s age group despite the pandemic.

43.  H said at trial that he had been out of touch with the market because he had been working for the same employer since 2005.

44.  H held a SFC Type 1 licence, he was professionally qualified to do his work for the former employer covered by the said licence, H should only have become more experienced in his field of work. H’s work for new employers should be covered by the same licence that he had been holding working for the former employer for a long time, I do not see how that would make him out of touch of the market.

45.  H even applied for jobs that required a SFC Type 4 licence which he did not hold. H explained that the licence was not hard to obtain and he could start working before he became so qualified.

46.  H demonstrated his ability to adapt to new work environment and requirement, I do not accept that he was out of touch of the market.

47.  H only supplied emails from JobsDB.com that acknowledged his applications without details of the job openings, there was also no evidence provided as to what information that was supplied in his profile in making these applications, eg. his qualification and experience as well as his expected remuneration.

48.  I do not think it is really clear from H’s evidence whether he had made his best efforts in presenting himself as a candidate suitable for the job offerings.

49.  Even assuming H was unable to find new employment due to the pandemic and H’s age and experience, H could have looked for a more junior or general position with less remuneration but he did not.

50.  By taking up alternative employment, H could at least secure a certain level of income to satisfy the Maintenance Order.

51.  H said that his previous monthly salary of $38,000 (excluding year-end bonus) was towards the lower end of the range of salary someone of his experience and qualification should earn. With a more established employer, the salary could go up to 6 figures per month.

52.  However, H did not have to maintain his previous income to be able to afford the maintenance for W and the Child.

53.  According to H’s Form E filed on 25 January 2021, his expenses costed only $1,920 per month for 3 items only, namely $1,500 for food, $200 for transport and $220 for personal grooming.

54.  The Child’s expenses covered by H’s undertaking had always been paid by H’s mother.

55.  All H needs is $32,920 per month for both himself and the maintenance of $31,000 for W and the Child.

56.  Under cross-examination, H explained he never thought about general or more junior positions because he did not have experience in other working areas. H claimed that he would not be able to compete with other jobseekers, hence he did not even attempt to apply for jobs in other areas.

57.  For job openings that H considered qualified, he had made at least 19 applications. It is strange for H to not even try to apply for jobs that he was over-qualified when he remained unemployed and had allegedly no income.

58.  H waited over half a month before starting to make job applications from 17 March 2020 when his employment with YSL terminated at the end of February 2020. Under cross-examination, H testified he had to settle some matters which he did not further elaborate. Not only did H not explain why he delayed in his job seeking, he did not explain why he did not even have time to send out his applications for job.

59.  Since his unemployment, instead of actively searching for any kind of employment, H instead had been helping his girlfriend in her business by doing cleaning work for free.

60.  H was under an obligation to pay the maintenance for W and the Child, it is difficult to see how he was really worried about being unemployed.

61.  Looking at the dates of the 19 applications made by H, there were much spaced out during the period between 17 March 2020 and 26 November 2020. There was not even one single application in the entire month of July 2020. It is really hard to say that H was diligent enough in his job seeking.

62.  What it is more stunning is that there were no more job applications that could be seen from H’s evidence after 26 November 2020.

63.  Indeed, H was inconsistent in his answers as to when he last sought employment.

64.  During cross-examination, H first agreed he did not make further job applications after 26 November 2020. He later said he had made further job applications after that date. Nevertheless, he was unable to say when he made such applications.

65.  When questioned why he did not mention job applications after 26 November 2020 in his affirmation filed on 22 April 2021, H just said he did not know why. H could not even be sure whether he made further job applications before trial.

66.  However, when H was asked further when were the job applications made and how many jobs did he apply, H was unable to provide an affirmative answer and replied that he had to check. He had no recollection of why the affirmation which was affirmed by him on 21 April 2021 did not include job applications after 26 November 2020.

67.  H did not provide evidence of his attempt to seek jobs in his affirmation in support of this application filed on 16 October 2020, it was only after W challenged H’s case of earning capability in her affirmation filed 15 March 2021 that he exhibited the emails relating to his job applications in his affirmation filed on 22 April 2021.

68.  In my view, there had been no reason why any job application made between 26 November 2020 and date of the affirmation filed on 21 April 2021 would have been omitted.

69.  Further, at the time of trial, it had been made abundantly clear in both the evidence and opening submissions of W that the question of H’s efforts in job hunting would be at issue, there could be no reason why H would still not be prepared to provide details of his further attempt in job seeking at trial. Yet, he was not able to confirm if he had made applications before trial.

70.  In light of the foregoing, I do not believe H had made any further job applications after 26 November 2020.

71.  H had been using one source for job seeking that was JobsDB.com.

72.  There were other online job seeking platforms other than JobsDB.com. There were printed publications that provided job seeking services. There were headhunters that H could approach for job vacancies. H’s target job position was a responsible officer in the finance industry, it should not be uncommon for this line of occupation be using services of headhunters.

73.  Other than the above, H could have contacted his friends or acquaintances that worked in or were related to the finance industry for job opportunities.

74.  For no given reason, H did not attempt any of the above alternative means in seeking employment even though he had had no positive response in his venture for jobs.

75.  If H was really keen on looking for new employment, there would be no reason why he would merely seek employment by using one source.

76.  In my view, it was only lip service that H made in seeking employment.

77.  H blamed the pandemic, the market and his age. Since he stopped his job hunting since 26 November 2020, the active cause of his continuation of unemployment was his inaction and had nothing to do with the market and pandemic. When H stopped looking for jobs, he of course would remain unemployed.

78.  H’s behaviour was in my view inconsistent with someone who is keen to look for jobs.

79.  On the contrary, H’s behaviour was a manifestation of someone who does not want to find a job.

80.  I find that H had never been keen in and had deliberately stopped looking for jobs.

81.  The obvious reason is that H would want to make use of his status of unemployment to shirk his responsibility under the Maintenance Order.

82.  In my view, there were other examples that H demonstrated that he deliberately did not want to pay the maintenance.

83.  H received a sum of $142,389.04 as termination payment from YSL on 28 February 2020. H used the terminal payment to repay his monthly instalment loan with Hang Seng Bank in the sum of $178,079.18.

84.  The terminal payment of $142,389.04 was not enough to repay the entire amount, H had to use his savings to make up the balance of $35,690.14.

85.  According to the bank repayment schedule, H had until July 2023 to repay only $4,716.70 per month, there was no need to repay the whole sum by early repayment.

86.  As someone who just lost his job and allegedly foresaw that he would not be able to secure a job in the near future, H’s behaviour was certainly absurd and jaws-dropping.

87.  On the one hand, in his affirmation filed on 16 October 2020, H said that he expected the savings in his bank account in the sum of $55,270.45 remained in his bank account would exhaust in 2 months for spending on his personal expenses. On the other hand, he purposely exhausted almost all his personal financial resources in the bank account to repay his long-term instalment loan.

88.  When questioned the reason for repaying the entire amount in one go, H explained that this was how he chose to manage his finance which was clearly an evasive answer.

89.  In my ruling, there was absolutely no justification for H to do so. His behaviour was totally inconsistent with a reasonable person under these circumstances.

90.  It then became clear why he would do that when he used this as an excuse to not comply with the Maintenance Order. H paid only $15,000 per month in April and May 2020 before he stopped paying W the maintenance at all.

91.  In his affirmation filed on 16 October 2020, H said “After I was terminated on 29 February 2020, I foresaw that I might not be able to secure another job and I would have to rely on my savings for my personal expenses, I only paid the Petitioner the sum of $15,000 on 7 April 2020 and 7 May 2020. As I had no income after I was terminated and I did not have the financial means to pay any further maintenance to the Petitioner, I stopped paying the Petitioner after the last payment of $15,000 on 7 May 2020 as stated above.”

92.  From H’s Citibank statement for 9 March to 10 April 2020, it can be seen that H first paid W $15,000 and then transferred to Hang Seng Bank $178,079.18 on 7 April 2020 by using online banking service.

93.  H chose to unilaterally reduced the maintenance to $15,000 before repaying Hang Seng Bank. Even after the payment to W and Hang Seng Bank, H’s account still had the balance of $24,042.55, H still had enough money to fully pay W’s maintenance by giving her the balance of $16,000. Again, H chose not to do so.

94.  Therefore, the only reason why H paid only $15,000 on 7 April and 7 May 2020 was because he chose to exhaust most of his personal funds to create a situation where there would be little money left in his account. Everything was his own doing and design.

95.  Once again, the above demonstrated H’s attitude towards compliance of the Maintenance Order. W submitted that the current variation application was taken out not because H no longer had the financial means to comply with the Maintenance Order due to material change of circumstances. H took out the application simply because he did not want to pay maintenance anymore.

96.  I agree with W.

97.  It is my ruling that the H did not make his best efforts in seeking new employment, he was far worse.

98.  It is further my ruling that the reason why H remained unemployed because he chose to not to find a job.

99.  It can be reasonably inferred that the reason why he stopped looking for jobs was because he knew he would be able to find a job whether in line with his experience and qualification or being more junior or general. That job would give him income to continue to pay the maintenance to W.

100.  Accordingly, it is my ruling that H continued to have the earning capability to afford the maintenance under the Maintenance Order.

101.  Under these circumstances, there had been no material change of circumstances caused by H’s unemployment.

102.  Change of circumstances aside, I find that H continue to have the earning capability to pay the maintenance under the Maintenance Order.

Financial Assistance from H’s Family

103.  In respect of third party assistance, Ma CJ said in KEWS v NCHC [2013] 2 HKLRD 314 in paras. 33-39 as follows:-

“E.2 The identification of the parties’ financial resources

33. Section 7(l)(a) is stated in wide terms. Two points are of note:-

(l) The court is not restricted to taking into account only those assets which in law represent the property of either spouse. Section 7(1)(a) is widely drafted to include "other financial resources" of the parties. These resources will therefore include those assets or resources to which the relevant spouse has or is likely to have access but to which he or she may not have a legal entitlement.

(2) Nor is the court constrained to look only at the present position. The court looks into the financial resources which a party actually has (or should have) at present or which that party is likely to have in the foreseeable future.

E.3 Treatment of financial assistance from third parties under s 7(1)(a)

34. The width of the wording of s 7(l)(a) of the MPPO will include financial assistance made by third parties to the parties to a marriage. Accordingly, such assistance made by a third party to the husband or wife may be taken into account in the computation of that party's overall financial resources.

35. As stated in para 2 above, such third party assistance may take various forms. The authorities, to which I shall presently turn, show commonly trust situations or where relatives have provided financial assistance. There are of course other factual situations.

36. In every case where third party assistance is involved, there are two critical evidential questions for the court to consider:-

(1) What is the extent of the financial assistance provided by the third party to the husband or wife?

(2) What is the likelihood of such financial assistance continuing in the foreseeable future?

37. It goes without saying that in the fact finding exercise, the court must look at the reality of the situation and have regard to matters of substance and not just form. In looking at reality, the court can take into account not only what a party actually has, but also what might reasonably be made available to him or her if a request for assistance were to be made. In O'D v O'D [1976] Fam 83, which involved the court taking into account the financial support given to the husband by his father, Ormrod LJ said at 90 D-E "In making this assessment the Court is concerned with the reality of the husband's resources, using that word in a broad sense to include not only what he is shown to have, but also what could reasonably be made available to him if he so wished".

38. In addition, in looking at what may occur in the foreseeable future, past conduct is often a useful guide: see SR v CR (Ancillary Relief: Family Trusts) [2009] 2 FLR 1083, at 1091 (para 27).

39. Having ascertained the extent of the financial assistance provided by the third party and then finding on the evidence on a balance of probabilities that there is a likelihood of the continuation of such financial assistance in the foreseeable future, the court is then in a position in law first to take this into account in the identification of the financial resources of the parties and secondly, in determining the appropriate ancillary relief to be granted. This is an approach that is entirely consistent with the court's duty under s 7(1) of the MPPO. Needless to say, the outcome in any given case is inevitably fact-sensitive.”

104.  WEL owns properties worth no less than $100 million.

105.  H used to hold 10% shareholding in and was a director of WEL, he ceased to be a director on 18 November 2016 and transferred all his shares to his mother on 3 October 2017.

106.  H’s mother and sister are now 100% shareholders of WEL, H’s mother and his 2 brothers are the only directors of the company. H is not the only one that does not hold any interest or office in WEL.

107.  H alleged that the financial assistance from his family had stopped.

108.  At trial, H explained that family stopped providing for him only but not the Child’s expenses covered by his Undertakings being paid by his mother.

109.  H was living rent free in a property owned by WEL in a well-off area in Wanchai and used the vehicle owned by WEL. WEL would be responsible for all outgoings.

110.  The only expenses H had every month were $1,920 for food, transport, personal grooming which is a low amount by any standard.

111.  H holds no office and interest in WEL, the family’s company nevertheless has still provided for H.

112.  Admittedly, H’s mother has been responsible for H’s Undertaking for the Child’s expenses. School fee and boarding fee alone amounted to at least $5,000 and $6,230 per month respectively not counting other sums that varied from month to month.

113.  H stated at trial that his brother provided him with $150,000 in November 2018 when he was required to pay W a lump sum of $380,000 pursuant to the Maintenance Order. H’s brother transferred $50,000 and $30,000 to him on 6 and 7 April 2020 when he asked for help. H admitted that these were not loans but simply his brother helping out financially.

114.  These are all clearly financial assistance from the family’s company and H’s mother and brother.

115.  There is only a bare assertion from H that his family had stopped paying when in fact the family had not stopped providing for him financially.

116.  From the evidence, the Mother has been responsible for the Child’s expenses in compliance of H’s Undertakings in the Maintenance Order, I find it likely that she would give further financial assistance for H to comply with the Maintenance Order when required.

117.  Further, H’s brother had financially assisted H in making payment under the Maintenance Order, I find it likely that he would give further financial assistance for H to comply with the Maintenance Order when required.

118.  It is my ruling that the family had not stopped giving financial assistance to H and there had been no change of circumstances in that regard.

119.  In any event, with or without H’s own salary, I find that family financial assistance constitutes a financial source enough for H to keep paying under the Maintenance Order.

W’s Financial Position and Reasonable Needs

120.  W was born in 1976 and was 45 years of age at the time of trial and was educated up to high school level.

121.  In around 2001, W worked as a ground crew at an airline for around 1 year.

122.  Later, she was invited to jointly operate a local eatery owned by H’s family business in around 2002. During that time, W was given around $10,000 monthly in cash for family expenses.

123.  In around 2002, H’s late father bought a property as matrimonial home for H and W to live free of charge.

124.  The Child was born in 2004 and the eatery was sold in 2005, W became a full-time housewife.

125.  H’s late father in 2010 via WEL bought the property in Wanchai for H, W and the Child as matrimonial home to live rent free. The property was approximately 750 square feet, with 2 bedrooms, 1 toilet and a kitchen. The family could also use the vehicle owned by WEL. The family used to employ a domestic helper until May 2016.

126.  In around 2011, WEL bought a shop in Tsim Sha Tsui for W to run as a fashion boutique.

127.  Prior to Separation, H gave W $15,000 in cash each month for family expenses.

128.  After separation, between 2017 and 2019, W rented a 2-bedroom apartment in Hung Hom at the rent of HK$16,000 per month. The apartment was approximately 430 square feet, with 2 bedrooms, a toilet and a kitchen.

129.  W had only previously worked as an airline ground crew prior to marriage, and as a clerk from October 2018 to December 2018 since after divorce.

130.  W had since been taking care of the Child and living off with H’s monthly maintenance and did not work.

131.  W’s current monthly expenses amounted to $16,660 comprising of general expenses of $10,090, personal expenses of $3,150 and children expenses of $3,420.

132.  H submitted that W’s extra tuition fees, medical/dental, clothing/shoes and lunches and pocket money should have been covered by H’s Undertaking.

133.  Accordingly, these items should have been excluded from the calculation of W’s expenses. After excluding these items, W’s total expenses should be in the region of $13,000 only.

134.  Therefore, W should be able to maintain her living and to pay for her monthly expenses without incurring any other debt even after H stopped paying maintenance to her.

135.  This was a marriage that lasted about 15 years. W did not work after the Child was born.

136.  W stopped working after a short period of time as she could not adapt and she had to take care of the Child. W had barely worked in her life except in H’s family business. It is not unreasonable that she might need more time to adapt.

137.  Due to the non-payment of the maintenance, W had to apply for CSSA. When W was working as a clinic nurse since January 2021 briefly, she earned $13,000 per month. Compared this amount to the CSSA in the sum of $11,000, the difference is not significant.

138.  At the time of the consent order, W was not working. Considering all the circumstances, I find that it is not unreasonable for W to not work and rely upon CSSA for now.

139.  What H is doing is first to stop paying W maintenance, forcing W to exhaust her savings and cut down on her expenses. Then argue W’s expenses were just minimal and therefore she should be entitled to nil or minimal amount of maintenance.

140.  This argument to my mind is appalling. H is just to take advantage of his non-compliance of court order to try to defeat the same when it was granted by consent.

141.  The authorities are clear that the Court would have to have regard to “the basis and intended effect of the original order are relevant factors to which the Court on variation should pay regard and there should not be a radical departure from the approach taken by the parties themselves when they had entered into an agreement embodied in a consent order”. (AEM v VFM, supra)

142.  In my judgment, I should take into account the financial position of W at the time when the consent order was made.

143.  W’s monthly expenses as stated in her Form E filed on 29 December 2016 were general expenses of $13,050, personal expenses of $9,480 and children expenses of $2,850.

144.  HHJ C.K. Chan accepted in his Judgment of the MPS Order that the reasonable needs of W and the Child were $30,530 and $2,850.

145.  During marriage, the parties stayed in a 2 bedroom apartment of approximately 750 square feet located in a well off area in Hong Kong. Since the parties separated, W and the Son had been staying in a 2 bedroom flat of approximately 430 square feet located in Hung Horn. With the monthly maintenance of $31,000, W paid a monthly rent of $18,000 for the Hung Hom flat.

146.  W and the Child had to move to a flat of only approximately 300 square feet in size with 1 bedroom. Due to H’s financial cut-off, W continued to stay in the current accommodation after her distant relative agreed to her pay half the rent of $5,250 since May 2020, the remaining half of the rent would have to be paid when W had the financial means to do so.

147.  While H is currently living in the 750 square feet Former Matrimonial Property alone, W submited that her reasonable rental expenses going forward should at least maintain at the level of $18,000 if not higher taking into account the continuing increase in Hong Kong rental.

148.  I agree.

149.  I have already made the ruling that there had been no change of circumstances and that H had the ability to pay under the Maintenance Order.

150.  The Maintenance Order was made by consent under legal advice in September 2018, that had been only 2 years before H took out the present application.

151.  Because of H’s non-compliance of the Maintenance Order, W and the Child had to suffer and move to a much smaller accommodation.

152.  I see no reason why I should not attach substantial weight to the Consent Order to reflect the basis and intended effect of the original order.

153.  I am not convinced that there should be any variation made after considering W’s financial position and reasonable needs at the time of the Consent Order and at present.

Conclusion

154.  By reason of the foregoing, I find that H has failed in each and every issue and his application for variation of the Maintenance Order ought to be dismissed.

155.  Costs should follow the event.

156.  I hereby make the following order:

(1)  H’s Summons filed on 16 October 2020 be dismissed.

(2)  There be a costs order nisi to be made absolute in 14 days from the date hereof that H do pay costs of his Summons filed on 16 October 2020 to W to be taxed if not agreed and W’s own costs be taxed in accordance with Legal Aid Regulations.

Representation: