N v. L

FCMC306/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 306 OF 2000

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R U L I N G

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1.  There are two applications before this court.  The first is an application for variation of maintenance by the respondent (“the husband”) asking for the existing maintenance sum to be reduced from $9,000 per month to $3,000 per month.  And the second application is a judgment summons issued by the petitioner, asking for the arrears of maintenance since February 2007 (apart from $3,000 being paid per month since December 2007).

Background

2.  A maintenance order was made by the court on 6 April 2001, ordering the respondent to pay to the petitioner a sum of $9,000 per month, being $3,000 as maintenance for the petitioner herself and another $6,000 for the two children of the family, each having $3,000 per month.  The respondent had on 12 January 2007 taken out a summons applying for a variation of maintenance on the ground that he had been unemployed.  It was not in dispute that since February 2007, he had been in default of paying this maintenance.  On 10 April 2007, the petitioner took out a judgment summons going after the respondent for the arrears of maintenance since February 2007.  And it is also not in dispute at the trial that the respondent had resumed paying the maintenance but in the sum of $3,000 per month since December 2007 until now.

The Respondent’s Case

3.  The respondent said that he had been unemployed since December 2006, so the maintenance had been in arrears since February 2007.  According to him, he could only get a new job in July 2007, earning about $8,500 per month and another job in August 2007 till now, earning $10,000 per month as basic salary and with commission, on average about $6,000 per month.  He had remarried on 4 January 2007 with another son born on 25 December 2006.  Since his wife had to take care of the young child, so she had not been working since the marriage.

4.  He stated in his two Form Es about the monthly expenses for himself and for his new family.  In his Form E filed in January 2007, he has stated a monthly expense of $11,000 per month.  And according to the respondent, his wife and the child had been living in Vietnam and both of them had only joined him in December 2007.  So what is being stated in his Form E filed in July 2007 is his personal expenses which amount to a sum of about $9,000 per month.  On top of his own personal expenses, he is sending $3,000 per month to Vietnam for his new family.  He has been in debt since late November 2007 because of the fact that his mother-in-law had a traffic accident in Vietnam and he had to pay for her medical bills.  As a result, he had borrowed about $25,000 from finance companies and had been repaying $3,000 per month, and such repayment will last until early 2009.  So he can only afford $3,000 per month and in fact had been paying such since December 2007.  He asks for the maintenance order to be varied by a reduction of the total sum to a figure of 3,000 only.

The Petitioner’s Case

5.  The petitioner has been working as a sales assistant, earning $9,300 per month.  She is now living with the two children of the family with a monthly expenses of about $24,000.  And according to her, since the respondent has not been making payment for the maintenance or paying insufficient sum, she has all along been living on her savings.  So she objects to the respondent’s application for a variation of maintenance and she said that the respondent had exaggerated his monthly expenses and she also queried why the respondent should spend money in paying for the medical bills of his mother-in-law whilst he said he cannot support the children of the family.  And the petitioner also argued that the respondent should think twice before he set up his new family and his responsibility towards the children of the family cannot be displaced by the fact that he had remarried.

Variation of Maintenance

6.  According to section 11 of the Matrimonial Proceedings and Property Ordinance, it empowers the court with the jurisdiction to vary an existing maintenance order.  This court is required, under the same section, to consider all the circumstances of the case. 

The reasonable needs of the petitioner and the children of the family

7.  The petitioner has stated in her own Form E about a total expenses of around $24,000 per month for a family of three, consisting of herself and the two children of the family.  I found certain heads of expenses exaggerated. 

8.  Firstly, on the expenses of utilities in the sum of $2,000 per month.  Under cross-examination, it is shown that only a sum of $1,200 was spent on this head.  So such item should be adjusted.

9.  Secondly, about her expenses of $4,000 on food.  Under cross-examination, the petitioner explained that the family of three had to spend about $100 per day on breakfast and 150 per day on dinner.  I found this to be too much for a family of three, given that the petitioner had already accounted for about $1,500 for herself for eating out and another $1,000 for lunch for the two children.  I found for a family of three, a figure of $3,000 should be reasonable to be spent on food as a general family expenses.

10.  The third item is on household expenses in the sum of $2,000.  Again, I found this figure to be too high for a family of three.  I think that this figure should be adjusted down to $1,500 per month which should be a more reasonable figure.

11.  Fourthly, about the personal expenses of the petitioner on personal grooming in the sum of $2,000 per month.  I found this sum to be excessive and $500 should be more reasonable.

12.  The fifth item is her spending of $1,200 per month on school books and stationery.  Under cross-examination, the petitioner confirmed that such figure in fact stands for an expense for a period of six months.  So that equals to $200 per month and the figure should be adjusted accordingly.

13.  The last item which I think requires some adjustment is on the uniform for the two children in the sum of $1,000 per month.  Again, under cross-examination, the petitioner confirmed that this expense is for a period of six months.  So the correct figure should be $167 per month and such should be adjusted in her Form E as well. 

14.  Apart from these items, I accept all the other items are reasonable expenses.  With the above adjustment, I accept the reasonable expenses for the petitioner and the children amount to about $18,000 per month.  And given the income of the petitioner of about $9,300 per month, I found that she still required $9,000 per month as maintenance from the respondent.

The respondent’s ability to pay

15.  The fact that the respondent has remarried and has a newborn child in 2007 cannot be ignored.  Even though the petitioner said that the respondent should think twice before he committed to the new marriage and a new child, this cannot be a valid ground to ignore the respondent’s existing responsibility towards his new family. 

16.  There is no dispute from the petitioner that the respondent had been unemployed between January 2007 to June 2007.  I accept this as a fact and I also accept that the respondent, being unemployed, cannot afford to pay any maintenance during this period of time.

17.  There is also no dispute from the petitioner that the respondent had been earning $8,500 per month only in July 2007.  The respondent’s evidence that the expenses in his Form E dated 26 July 2007 are his personal expenses in Hong Kong whilst he would send $3-4,000 per month to Vietnam for his new family. 

18.  I found the personal expense stated by the respondent is a bit on the high side on two items: firstly, about the expenses on food and, secondly, on household expenses.  According to him, the food and household expenses for himself amount to a sum of $3,000 and 1,500 respectively.  I found this figure to be on the high side for just one single adult.  I think a sum of $3,000 in total would be reasonable for these two items for a single adult, and I accept all the other are reasonable expenses.  So with such an adjustment, I found his personal expenses amount to $6,000 per month.

19.  The expenses for his newborn child stated in the said Form E should be absorbed by the money he sent to his wife in Vietnam.  I found with his family still in Vietnam during that period of time, it would be reasonable for the respondent to spend $3,000 per month for his new family.  So with his income of $8,500 per month in July 2007, I accept that the respondent cannot spare a cent for the maintenance of the petitioner and two children of the family in view of the fact that he had to spend about $9,000 per month on himself as well as for his new family in Vietnam.

20.  Since the respondent got a new job in August 2007, earning an average of $16,000 per month, so on top of his personal expenses and his sending $3,000 to Vietnam for his new family, I found he still had a balance of $7,000 per month for the petitioner and the two children of the family save and except for the repayment of his debt since December 2007.

21.  The petitioner has challenged the reasonableness of the respondent in shouldering the medical bill of his mother-in-law.  This may well be the case but the fact is the respondent has now incurred such a debt, and with the documentary proof submitted by him, the reasons for the debt were substantiated.  This court cannot ignore the fact that the respondent has to repay $3,000 per month till early March 2009 in the repayment of this debt.  With such debt, he has only a balance of $4,000 to pay for the maintenance of the petitioner and the two children of the family since December 2007 after he has taken out his loan.

Conclusion

22.  Having considered all these facts, I allow the respondent’s application for variation of maintenance.  I order for the maintenance order dated 6 April 2001 to be varied as follows.  As far as the petitioner’s maintenance is concerned, that is being varied to $1,000 per month with effect from August 2007.  And as far as the children’s maintenance is concerned, it remains at $3,000 per month for the period from August 2007 to November 2007, and such is varied with effect from December 2007 to $1,500 per child each month (which means between August to November 2007, the respondent has to pay a total of $7,000 per month as maintenance whilst after December 2007, he is to pay $4,000 per month in total).

Judgment Summons

23.  For the judgment summons, this court has to decide whether the respondent has the ability to pay but has been in wilful default which amounts to a contempt of court, or he cannot afford to pay the maintenance. 

24.  According to the findings I have stated in considering the application for variation of maintenance, I do accept that from February 2007 to July 2007, the respondent cannot afford to pay the maintenance.  So I ordered for the arrears of maintenance during this period be remitted.

25.  As far as the period from August 2007 to November 2007 is concerned, I found that the respondent can afford to pay $7,000 per month but he had paid nothing.  So he had been in wilful breach of the order and I am satisfied that he had been in contempt of the court order.  The arrears of maintenance for these four months amount to $28,000 in total.  And for the period from December 2007 to May 2008, I found that he can afford to pay $4,000 per month but he had only paid 3,000.  The arrears of maintenance for these six months amount to $6,000. 

26.  So for the arrears of maintenance between August 2007 to May 2008 in the sum of $34,000, I am satisfied that the respondent had the ability to pay but had been in wilful breach of the court order and such behaviour amounts to a contempt of the court.  So for his contempt, I order for him to be committed to imprisonment for 1 month but suspended on two conditions: firstly, that he has to repay the arrears of maintenance in the sum of $34,000 in total by a monthly instalment of $500 per month with effect from 1 June 2008 and thereafter on the 1st day of each succeeding month till full payment.  The second condition is he has to continue to pay the $4,000 per month as maintenance for the petitioner and the two children.

27.  I have to warn the respondent.  Should he be in breach of the condition for suspension, a warrant of arrest will be issued against him to bring him up to court for further disposal upon an affirmation filed by the petitioner confirming the breach.

Costs

28.  I make no order as to costs, include all costs reserved for both applications.

Access

29.  I order for the existing access order to stand.