LTW v. CCF

FCMP 133/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 133 OF 2009

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JUDGMENT
(Variation of maintenance)

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Introduction

1. This is an application by a respondent father to decrease the periodical payments paid to the mother for the minor child. The mother for her part has issued a judgment summons for arrears going back to 2014. 

2. As will be seen, in accordance with his undertaking given in the court order dated the 3 August 2012, the father agreed to pay the mother 60% of the child’s expenses on a monthly basis. The parties reached terms during mediation with the Hong Kong Catholic Marriage Advisory Council.

Background

3. According to the mediated agreement the parties cohabited from about August 2007 until February 2010, which is when their relationship came to an end. It clear that their relationship began prior to August 2007 as their child was born in October 2007. He will be 8 years of age next month. Unfortunately the parties have been in and out of court since July 2009 which is when the mother first issued an application for custody and financial support for the child. On the 7 October 2009 an order for interim maintenance was made in the sum of HK$6,000 per month. On the 30 March 2010 the parties reached an agreement by consent with the assistance of lawyers. The parties undertook to be jointly responsible for the child’s school fees/educational fees and the cost of his extracurricular activities. It was further agreed that this would be generally represented by the sum of HK$1,500 per month. In addition the father agreed to pay maintenance in the sum of HK$7,500 per month. In total then the father was to pay the sum of approximately HK$9,000 per month. Further difficulties ensued with respect to access, which is when the parties first entered into mediation. This led eventually in part to the order of the 20 July 2012 referred to above. 

The law 

4. The father’s application to vary the maintenance is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap. 192, which provides that:

“(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 ……”

5. It is accepted that in considering a change of circumstances, I may look at the case de novo. In other words the court is not necessarily bound by the existence of a previous order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (See Ch 3.131 Jackson’s Matrimonial Finance and Taxation, 7^th edition). It is also true that there would normally be a reason for the application to vary or what some might call a “trigger”.

6. The court has a very wide power, including a power to terminate payments and to backdate the variation ordered. The overall objective is to achieve a fair outcome (see M v M, FCMC 4070 of 1990, dated 12 May 2006, unreported).

The issue

7. There is really only one issue to be determined in this judgment namely how much maintenance should the father now pay to the mother to support his son?

The mother’s case

8. The mother’s case is simple – she says that on average it costs about HK$23,000 per month to maintain the son. The father earns on average just over HK$42,000 per month after MPF, whereas she earns HK$30,775 per month. In such circumstances she says that it is fair and reasonable that the father should continue to contribute 60% towards the child’s expenses. Following the mediated agreement the mother has kept a note of the child’s expenses each month, which she has then forwarded to the father with documentary evidence in support. According to the mother, since March 2014 the father has failed to reimburse her 60% of the child’s expenses as agreed. It seems that he has failed to pay anything at all since February 2015. 

9. During the 17 month period from March 2014 – July 2015 the mother has recorded three overseas trips – two to Taiwan and one to Phuket. She has asked the father to reimburse her 60% of the child’s costs associated with those trips. This is something that the father appears to take exception to. The mother says that it was agreed that she should be able to take the child away twice per annum. The father confirmed that he does not take the child away on holiday.

The father’s case    

10. The father says that he agreed in good faith to contribute towards 60% of the child’s expenses, which on his calculation amounts to HK$15,000 – HK$17,000 per month. However he says that this proved to be beyond his ability to pay. He says that he can afford to pay between HK$13,000–HK$14,000 per month. This equates, on his case, to approximately a 50% contribution towards the child’s expenses. He did not explain why all payments had stopped since February.

Discussion

11. The mother produced a schedule setting out the expenses for the child since March 2014 on a month by month basis. She also referred separately to the costs associated to the three trips referred to above. The parties confirmed that the actual expenses were not in dispute.

12. If one puts to one side the cost of the trips, the mother has spent just under HK$385,000 on the child’s expenses over a 17 month period or approximately HK$22,648 per month. 60% of that sum amounts to HK$13,589 per month – or say HK$13,590 per month rounded up – which the husband has said is within his ability to pay.

13. I accept that it is reasonable given the differential in each party’s earnings that the father should continue to pay 60% of the child’s costs.

14. In so far as the cost of the trips are concerned it seems to me that given that the father does not take the child away on holiday himself that it is reasonable for the mother to take the child away twice per annum herself and for the father to contribute towards the costs of those trips. Therefore I will allow an additional HK$1,000 per month for that purpose. In total then the father shall pay the sum of HK$14,600 per month towards the cost of the child’s expenses as maintenance. This sum shall be backdated to March 2014, credit to be given for any payments already made by the father.

15. I am satisfied that the father should be able to pay that sum. He said that he could in any event pay up to HK$14,000 per month and this figure is only slightly in excess of that figure. The father’s evidence in the witness box concerning his updated financial circumstances was somewhat confused. Notwithstanding that it seems to me that he can make whatever adjustments are necessary in order to make this payment.

16. In conclusion I will make an order in the following terms:

1) Both parties shall be released from the undertakings given by each of them in the court order dated the 3 August 2012.

2) The Respondent do pay to the Applicant the sum of HK$14,600 per month for the minor child with effect from the 1 October 2015, such sum to be back dated to the 1 March 2014, credit to be given for all payments made by the Respondent from March 2014 to date.

3) There shall be an order nisi to be made absolute in 14 days time that the Respondent do pay the Applicant’s costs of this application on a party and party basis to be taxed if not agreed to include all costs reserved.

4) The Applicant’s judgment summons dated the 19 June 2014 shall be adjourned to the 19 November 2015 at 9:30 am.

5) Both parties do personally attend that hearing.