P v. R

CACV 3539/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3539 OF 2001

(ON APPEAL FROM FCDJ 10877 OF 1997)

______________

_______________

J U D G M E N T
[edited as to identity by order of Hon Stock VP]

_______________

Hon Mayo VP (giving the judgment of the Court):

1.  This is an appeal from a judgment of Deputy District Judge Levy who was hearing an application by the wife for a variation of the order made by the Court of Appeal on 25 October 2000 in relation to the maintenance of the children of the marriage.

2.  There is an unhappy history to this litigation.  There have been numerous applications to the court.  The parties have been acting in person and there is voluminous documentation.

3.  Put very briefly the Court of Appeal reduced the amount of maintenance payable to the children from $31,476 per month to $20,000 per month.  There were other orders but for the purposes of this appeal it is not necessary to consider these.

4.  The approach which was adopted by the Court of Appeal was a more “global” one than that adopted by H.H. Judge Wong.

5.  Whereas the Judge had to a considerable extent considered the individual items of expenditure separately the Court of Appeal had regard to the overall situation.

6.  The main reason why the amount which was ordered by the Judge was reduced was that when calculating the respective incomes of the husband and wife she based her calculations upon the wife’s salary in relation to her previous employment.  It became apparent that the Judge had not been aware of the fact that the wife had obtained another job at substantially enhanced remuneration.

7.  The wife endeavoured to seek leave to appeal from the judgment of the Court of Appeal to the Court of Final Appeal but this was refused both by the Court of Appeal and the Court of Final Appeal.

8.  It is necessary to have regard to this background as it sheds light upon the way in which this matter has proceeded.

9.  It seems to us that the main issue which has to be determined on this appeal is the way in which the Judge considered the evidence which was before her.

10.  Put another way was the wife attempting, by her variation application, merely to appeal the order made by the Court of Appeal on 25 October 2000 or had there indeed been a material change in the financial circumstances of the parties subsequent to that date.

11.  When considering the wife’s application, the Judge had before her two affidavits which had been sworn by the wife giving particulars of the increases in expenditure which the wife claimed had occurred since the order of the Court of Appeal.

12.  The affidavit of 7 July 2001 is particularly helpful as this mainly gives details of the particulars which the Judge was prepared to accept were relevant for the exercise she was undertaking.

13.  These are contained at p. 14 of her judgment:

“The remaining items are all educational activities which are usual activities normally expected to be provided for the children of a middle-class family like that of [the children X + Y]. To conclude I find the expenses for X and Y have increased and they are as follows:

Child X:

[Activities and expenses listed]

Total $2,597

Increase of (2,597-$2,055) $542

Child Y:

[Activities and expenses listed]

Total $3,547

Increase of ($3,547-$600) $2,947

According to the above calculation, the total amount of the increased expenses for both children is in the sum of $3,489 per month which is rounded up to $3,500.”

14.  The first ground of appeal is that the Judge proceeded upon the basis that his salary had increased substantially. According to the figures referred to she had based her considerations on the basis that the benefits he received were commensurate with a salary of HK$69,000 odd.

15.  When considering whether or not to grant the husband leave to appeal against the order which had been made the Judge accepted that when considering the husband’s analysis of the position there had been a mathematical error.  She had failed to take cognisance of the benefit which was payable in respect of educational expenses.

16.  However at page 2 of her Ruling relating to leave she said:

“7. I have considered very carefully all the grounds being submitted by the respondent. I agree that there was indeed an error as apparent in my Judgment so far as the figure for education allowance is concerned because without including that sum in the education allowance, the sum of $69,077 simply does not add up.

8. However, I do not agree with what the respondent said that that would necessarily lead to a wrong conclusion, because it is clearly stated in my Judgment at page 15 that in an application of this nature, it is essential that the court is provided with evidence showing the impact of any increased expenses on the party’s means and since the husband, the respondent, had chosen not to file any evidence in relation to his expenses, I am therefore entitled to draw an inference that the husband was able to pay and it is on that basis that I had ordered the husband to pay the increased reasonable needs of the children.  There is no evidence submitted before me that the husband had not been able to pay. Despite of the possible miscalculation as to his income, still there is no evidence submitted before this court that the husband was not in a position to comfortably support these expenses of the children.”

17.  It would seem to be clear from this that the Judge was of the opinion that even if the husband’s salary was only $60,000 odd per month, it was still the case that he could well afford to defray the additional expenses which the wife claimed were being incurred in respect of the children’s maintenance.  It should be added that the husband conceded before us that he was able to afford to pay for the additional items of expenditure which had been ordered by the Judge.  The error as to his earnings was, in the event, not material because the material change in respect of which the Judge made her order was not the increase in his income – indeed, that was not the basis of the wife’s application – but the increased needs of the children.  The income factor merely meant that he could afford it.  This ground therefore cannot succeed.

18.  This then leads to the main ground which is advanced by the husband namely that in reality there has been no material change in the circumstances of the parties such as would justify a variation being made to the order made by the Court of Appeal on 25 October 2000.

19.  The main contention advanced by the husband was that the Judge failed to deal with this application on a global basis as had been the approach of the Court of Appeal.  The Court of Appeal had deplored the approach of considering every minute item in detail and attempting to determine how it should be dealt with.

20.  One result of the approach adopted by the Court of Appeal had been that it had not itemised in detail precisely which items of expenditure it had taken into account in ordering that a global sum of $20,000 per month should be payable.

21.  One consequence of this was that when the Judge entertained the application for variation of the order there was no solid basis upon which a comparison could be made to determine whether any particular item of expenditure had been taken cognisance of by the Court of Appeal.

22.  This led to a situation where inevitably the reference to individual items was selective and did not take into account the overall situation.

23.  One point which immediately has to be made is that when the Court of Appeal was considering the overall situation it was placing reliance upon the contents of affidavit evidence which had been sworn in 1998.

24.  Naturally there had been changes in the financial position.  In particular, Y, the younger child, had transferred from kindergarten to primary school in [date].  That move took place in the same month as the appeal.  Whilst the Court of Appeal was aware of that move, it quite evidently did not address the new financial commitments which that move carried.  The bulk of the increase which the Judge effected by her order was one which addressed the increase in expenses attributable to the development of the son.  The wife has explained that upon the boy’s move to primary school she was determined to accord to him the same educational benefits as had been accorded to the daughter, in particular tuition in the Chinese language.  This is a perfectly understandable stance, not merely as a matter of equality between the children, but also because the wife is ethnic Chinese and she quite rightly wishes her children to be proficient in that language.  In these circumstances, we are satisfied that her application for variation was not a back-door appeal; and that whilst undoubtedly it is not in the public interest or in the interest of the parties that they should approach the court each time there is a change in this expense or that, matters of fine detail, the change here can, on balance, properly be said to have been material.

25.  The husband has complained, too, that the Judge should not have made her order without first ascertaining what had happened to the level of his expenditure.  The Judge addressed this.  She had no evidence about his expenditure, for he had not placed that before her, and it is not contended that that expenditure makes any real difference to his ability to pay.

26.  It is evident from reading the judgment as a whole that the Judge did consider the overall situation and in particular the expenses which were being incurred in relation to the children’s extra curricular activities.

27.  She had this to say at page 19 of the appeal bundle:

“It is trite that in considering all the circumstances of the case, the court must give first consideration to the welfare of the children of the family. I find it is in the best interests of the children that the said activities should be supported by the husband whom I find has the means to pay. The husband should therefore be responsible for the reasonable increase of the children’s expenses.”

28.  We have considerable reluctance in interfering with findings of fact which have been made by a Judge who has considered all of the relevant evidence.

29.  For the reasons we have given we do not feel justified in the instant appeal in interfering with the Judge’s order.  The appeal is accordingly dismissed.

30.  The husband is quite understandably much concerned lest the wife keeps returning to court for variations and lest she does so for minor changes in expenditure.  The wife is well aware, as a result of this appeal at least, that such an approach is unlikely to succeed; and we do not anticipate that that will be her attitude.

31.  As the parties were unrepresented we make no order for costs.