NKY v. CTY

FCJA 2208 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION

NUMBER 2208 OF 2009

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J U D G M E N T
(Variation of maintenance)

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Introduction

1. This is an application by the 2^nd Applicant father to decrease the maintenance paid for the only child of the family, a little boy H, who is now aged 7 years.   

Background

2. The parties, who are both police officers, married in July 2005 following the birth of H in April 2005. The marriage was short lived and they separated in July 2008 and filed for divorce the following year. It was then agreed that the father would pay maintenance for the child at the rate of HK$9,000 per month and a consent summons was filed to that effect. The decree absolute was pronounced on the 11 January 2010. Problems then ensued with the father complaining that the mother was making access difficult. The mother in turn issued a judgment summons for outstanding maintenance. Attempts to resolve issues surrounding access took a backward step when, despite the father undertaking to use his best endeavours to ensure that access did not take place in the presence of his new wife, it transpired that infact access had taken place with her at their home. Problems over access continued and it seems that the father does not presently see H. This is a cause for some considerable concern.

3. In so far as the finances are concerned the parties reached an agreement on the 17 October 2011 whereby the father agreed to pay the arrears of maintenance by instalments of HK$2,000 per month. The level of maintenance did not change. According to the repayment schedule attached to the order of the 17 October 2011 it seems likely that some monies are still outstanding. On the 18 January 2012 the father issued a Notice of Application seeking to reduce his contribution to H’s maintenance by half to HK$4,500 per month.

The law 

4. The father’s application to vary 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 fettered 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).

7. The correct approach was recently summarized by the Court of Appeal in AEM v VFM [2008] HKFLR 106. In that case the Hon Cheung JA made the following point when setting out the law. Referring in particular to agreements reached by consent he said:

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.

8. In this case the parties had agreed that the father would contribute HK$9,000 per month for H’s maintenance, although it is not sure on what basis this agreement was reached.

9. Cheung JA added in relation to backdating that:

Principle on backdating of order

15.  1.  The court has an almost unrestricted power to vary its own order retrospectively and to backdate any variation which it makes in a pre-existing order beyond the date of the application for variation.

   2.  In practice, orders are not usually backdated to a date prior to the notice of application to vary unless the justice of the case so requires.

See Rayden & Jackson on Divorce and Family Matters 18^th Ed, Vol. 1, Para. 18.25.

In Rayden it adds as follows:

Backdating

18.25  … Where a variation downwards is being considered, there may be cases where the delay between the event which justifies the variation and the issue of the application to vary makes it just for the variation to be backdated to the date of the triggering event such as a permanent loss of employment or a business going into receivership.

10. In this case there does not appear to have been a “triggering event” as such, although the father does say that he can no longer afford to pay the HK$9,000 per month plus the arrears given that he has remarried and that he now has to also support his aged parents. 

Maintenance for H

11. The only substantive issue to be determined here is the appropriate level of maintenance to be paid for H going forward bearing in mind each party’s respective incomes. The mother asks that the original order do stand, whereas the father offers to pay HK$4,500 per month.

12. The mother is a 39 year old police officer. She earns in the region of HK$28,000 per month. The father is also a police officer. He is 37 years of age and he earns roughly the same amount.

What then is the appropriate level of maintenance to be paid by the father for H going forward?

13. The mother is seeking HK$9,000 per month for H. According to her latest form E she needs approximately HK$11,860 per month for H’s actual expenses. In addition she seeks a contribution towards the general household expenses. These stand at just under HK$12,500 per month. I accept that a certain percentage of the general household expenses should be attributed to the mother directly. The remainder, being costs associated to H, should then be split between the mother and father in an equitable manner. Given that the parties are earning about the same I accept that they should be contributing towards H’s expenses equally.

14. The question then becomes whether or not the expenses listed are reasonable and if the father is in a position to pay.

General expenses

15. I accept that the mother’s general expenses are reasonable. I also accept that she only has a full time domestic helper because of H and that this is an expense that is attributable directly to him. Thus I would accept that the mother’s general expenses stand at approximately HK$8,760 per month (i.e. HK$12,500 less HK$3,740). Of this half should be apportioned to the mother and half to H – i.e. HK$4,380 each. The mother and father will then each be responsible for half of H’s general expenses – i.e. HK$2,190 each.

H’s direct expenses

16. The mother estimates these as follows:

Extra tuition fees	2,190
School books and stationery	700
Transport to school	216
Medical/dental	500
Extracurricular	2,360
Entertainment/presents	500*
Holidays	1,500*
Clothing/shoes	500
Insurance premia	352*
Lunch/pocket money	800
Other transport	300
Uniform	225
Others – travel and education
Savings	1,000*
Domestic helper	3,740
Subtotal	15,603

Please note that I have added in the domestic helper’s salary here.

17. The difficulty with these expenses is that many of them seem excessive for a child of 7 years of age, bearing in mind the relative income levels of the parties. In addition the father has not been asked to agree to H attending the extracurricular or extra tuition classes. These alone amount to something in the region of HK$5,270 per month. When pushed the mother confirmed that H’s extra tuition classes i.e. Kumon for Maths and English and private coaching lessons for swimming plus roller skating and Tri Kids presently comes to something in the region of HK$4,282 per month. I accept that this figure will fluctuate but that it must be within the ability of both parties to pay. I will allow HK$4,000 per month for all extracurricular and/or extra tuition classes. I have also marked with an * those items which will not be included in the calculation. It is for each parent to decide how much each shall spend on entertainment and presents for H and on holidays. (It is hoped that in time H will go away on holiday with his father). Likewise both will need to make such future provision for H as they think appropriate. Thus it seems to me that H’s actual expenses are presently in the region of HK$10,981 per month made up as follows:   

Extra tuition fees	2,000
School books and stationery	700
Transport to school	216
Medical/dental	500
Extracurricular	2,000
Clothing/shoes	500
Lunch/pocket money	800
Other transport	300
Uniform	225
Domestic helper	3,740
Subtotal	10,981

18. I will round this up to HK$11,000 per month. Thus each parent shall contribute HK$5,500 per month towards H’s actual expenses and a further HK$2,190 per month towards his general expenses totalling HK$7,690 per month - or say HK$7,700 per month each. 

Can the husband reasonably afford to pay this amount?

19. The father complains that his expenses are huge and that he is currently living on an overdraft. However when pressed he confirmed that he did not presently have an overdraft and it seems that he stopped paying the maintenance for a couple of months in order to rectify the situation. I accept most of the father’s expenses seem quite reasonable, save for the contribution of HK$5,000 per month for his parents, which in the circumstances seems to be a bit on the high side. It also appears that his present wife has an earning capacity, although she is not working at present. Thus if the father’s contribution towards the maintenance for the child is lowered to HK$7,700 per month and if his contribution towards his parents is likewise reduced a little, it seems to me that he should be able to live within his means. I am therefore confident that the father should be able to pay this sum going forward and that it is a reasonable amount to be paid as a contribution towards H’s expenses given all of the circumstances of the case.

20. The father is also supposed to be paying a further HK$2,000 per month pursuant to the order dated the 17 October 2011, being the arrears of maintenance that had accrued previously. Given the circumstances here it seems to me that this additional sum is beyond the father’s ability to pay. I will therefore excuse him from payment of any future arrears due and owing under that order.

21. I will therefore make an order as follows:  

1)  The 2^nd Applicant father shall pay the 1^st Applicant mother periodical payments for H in the sum of HK$7,700 per month to be backdated with effect from the 1 February 2012. Subsequent payments to be made on the first day of each succeeding month until H reaches the age of 18 years or ceases full time education, whichever is the later, or until further order.

2)  The 2^nd Applicant shall be released from his undertaking as contained in the court order dated the 17 October 2011 to pay any further instalments of arrears in the sum of HK$2,000 per month with effect from the 1 February 2012.

3)  There shall be no order as to costs