LL v. WMFV

FCMC 12799/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 12799 OF 2016

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J U D G M E N T
(VARIATION OF INTERIM MAINTENANCE)

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Introduction

1.  This is a hearing of the Petitioner (“the wife”)’s application for an upward variation of the interim maintenance payable by the Respondent (“the husband”) under the consent order dated 4 May 2017 (“the MPS Order”).

2.  The husband objects by saying that the MPS Order was only made some 6 months ago by consent and there is no reason why it should be varied at such a short period of time.

Background

3.  The parties were married in November 2014 but separated in August 2016.  This is therefore a short marriage of less than 2 years.

4.  Within wedlock, a daughter (“V”) was born in January 2016.  She is now 23 months old and is under the care of the wife.

5.  The wife filed a petition for divorce in October 2016 based on behaviour.  At the date of this hearing, there is still no agreement on the main suit and therefore, a decree nisi is yet to be granted.

6.  As to V, I understand that the parties have some disputes on the husband’s access but that is beyond the scope of today’s argument. 

7.  The MPS Order was entered into by consent on 4 May 2017 in the following terms:

(1) The husband shall pay a monthly sum of $20,000 as interim maintenance for the wife; and

(2) The husband shall pay a monthly sum of $15,000 as interim maintenance for V.

8.  On 1 August 2017, the wife issued the present summons asking for:

(1) An additional maintenance pending suit (“MPS”) to the wife in the monthly sum of $30,000; and

(2) An additional MPS to the daughter in the monthly sum of $5,000.

In other words, the wife is now asking for a total monthly interim maintenance of $70,000 for herself and V.

9.  I note in passing that the wife is asking for additional MPS for both herself and V.  Strictly speaking, the term of “MPS” should only apply to a spouse: s.3 of Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”).  But for the sake of convenience, I would use the terms of “MPS” and “interim maintenance” interchangeably in this Judgment as they are in essence referring to the same thing, namely the interim financial provision to be made for the wife and V pending the final resolution of her application for ancillary relief.

The case for the wife

10.  It is the case of the wife that at the time when the MPS Order was agreed (i.e. on 4 May 2017), she and V were residing with her mother at her maiden home at Garden Road, Hong Kong.  However, as her mother expected her to move out with V, she decided to rent a 3-bedroom flat at Robinson Road with a gross floor area of 1,026 sq ft. The tenancy of the Robinson Road flat was signed on 21 May 2017 which was 17 days after the MPS Order was agreed upon.  The monthly rent for the flat was $30,000.   In view of her additional needs, the wife now asks for an equivalent increase in her MPS and that is why she asks for an additional MPS in the sum of $30,000.

11.  As to the additional MPS for V, the wife’s case is that as V is growing up, there is a need for her to explore more interests and hobbies.  Therefore, she expects that more expenses will be spent on playgroup classes and that is why she asks for an increase of $5,000 in the MPS for V.

12.  In view of the husband’s objections, the wife filed her 3^rd Affirmation explaining that her previous stay at her parents’ residence at Garden Road was meant to be temporary.  After the MPS Order was agreed on 4 May 2017, she was able to spare more time to view properties and it happened that she was able to find the Robinson Road flat.  She also pointed out that the former matrimonial home (at Stubbs Road), though a flat owned by the husband’s parents, was a flat of over 5,000 sq ft.  The family was provided with the services of domestic helpers, a driver and the use of a number of luxurious cars.  In view of this very high standard of living previously enjoyed by the family, she is of the view that the renting of the Robinson Road flat is entirely reasonable and certainly within the means of the husband.

The case for the husband

13.  It is the husband’s case that there was no urgency for renting the Robinson Road flat as no such need was mentioned when the parties agreed on the MPS Order on 4 May 2017.   Even after the MPS Order, there was no consultation with the husband before the wife signed the tenancy of the flat.  Therefore, he viewed this as a self-induced and artificial change of circumstance.  It is not a genuine change which necessitate variation, but artificial and self-created change so as to support an application for variation.

14.  Mr Kwan for the husband submitted that the MPS Order was only made 2 months prior to the variation application.  The wife should not be allowed to reopen the issue within such a short period of time.  Furthermore, according to the wife’s Form E, she was in possession of assets in the sum of $2,360,000, most of which are liquid in nature.  Therefore, she has every means to pay for the tenancy of the Robinson Road flat without varying the MPS Order.  In the circumstances, Mr Kwan submitted that the wife’s application for variation should be refused.

Discussion

An application for variation or not?

15.  During the submissions, there were some debates on how this court should approach the wife’s applications.  Mr Chan for the wife argued that as a MPS application is temporary in nature, it should somehow be treated differently from other ancillary relief applications.  He seemed to be submitting that this court should consider the wife’s application de novo instead of treating this as an ordinary application for variation.

16.  However, as I have pointed out during the hearing, s.11 of MPPO provides:

“(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 nay provision so suspended.

(2) This section applies to the following orders, that is to say-

(a) any order under section 3;

……”

17.  Section 3 of MPPO is the statutory provision for MPS and it is clear that a MPS order is always subject to variation under s.11.  Therefore, I will treat this as the wife’s application for variation of the MPS Order.

The Legal Principles

18.  In considering an application for variation, the test to be applied is set out in section 11 (7) of MPPO:

“(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.”

According to the said provision, the court, in considering such an application for variation, has to consider all the circumstances of the case and in particular, any changes in the matters to which regard has been made in reaching the original order.

19.  In the case of AEM v. VFM[1], Cheung JA has explained the modern approach in dealing with such an application at paras 14.4-8 of the Judgment:

“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 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.”

20.  As to the weight to be attached to the original order, Tang VP (as he then was) said in the case of 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.”

21.  Although the above 2 cases actually concern with an application to vary periodical payment orders, I am satisfied that the same principles should also apply to variation of MPS orders.  Therefore, I shall bear the above principles in mind when I come to consider the facts of this case.

Should the wife be given increased MPS for accommodation?

22.  The wife is now claiming an extra sum of $30,000 per month for the Robinson Road flat which she only rented 2 weeks after the MPS Order dated 4 May 2017. 

23.  The wife is now aged 33.   She has no employment and is looking after the daughter full time with the assistance of a domestic helper.  In her Form E, she stated her monthly expenses (including the expenses of V) amounted to $29,940 per month.  I would round that up to the sum of $30,000 for the ease of calculation.  There is no challenge by the husband to the reasonableness of those expenses, not on 4 May 2017 when the MPS Order was first made, nor at the present hearing.  That was probably why the husband was quite readily agreeable to the MPS Order back in May 2017.  Therefore, I do not intend to go into the details of those expenses in this Judgement.

24.  However, the then monthly budget of the wife obviously did not include her and V’s accommodation needs.  After the wife had left the former matrimonial home in August 2016, she went to live with her parents at Garden Road.  I understand that the Garden Road premises is also spacious indicating that the wife also came from a well off family.  In support of her application, the wife has produced an affidavit from her mother saying that she only agreed to accommodate the wife and V on a short term basis.  That was why after the MPS Order made on 4 May 2017, the wife started to look for temporary accommodation for herself and V. 

25.  I understand that the husband has doubts on the genuineness of the wife’s parents’ reluctance in allowing the wife and V’s lodging at their home, but I think it is also important to have a broad view of the whole matter.  It is true that the wife’s parents had been kind enough to allow the wife and V to stay at their home after separation (for a year from August 2016 to July 2017), but the primary source of financial support towards the wife and V’s needs must be from the husband.  This would of course include the wife and V’s housing needs.

26.  I accept that the better course was for the wife to claim for her interim housing needs much earlier and as a result of her delay, the grievances of the husband, if any, are quite understandable.  But that does not mean that the reasonable housing needs of the wife and V, be it interim or in the long term, should be ignored.   After considering all the evidence in the round, I will treat the wife’s need to move out of her parents’ home as a material change of circumstance.

27.  I understand that the husband also made submissions on the quantum of the wife’s claim ($30,000 per month) for interim housing.  The undeniable facts of this case are that during marriage, the wife and V had been living with the husband and his family at the former matrimonial home, which was a flat at Stubbs Road with a floor area of 5,000 sq ft.  They had the services of a number of domestic helpers and chauffeur.   There is no dispute that the wife and V had been provided with a luxurious way of life by either the husband or his family.  The Robinson Road flat is about 1,026 sq ft in size with 3 bedrooms. Judging from the previous living standard of this family, the wife’s choice of size and location of this flat cannot be regarded in anyway as extravagant or unreasonable.   I am satisfied that the flat’s monthly rent of $30,000 represents the wife and V’s reasonable interim housing needs.

28.  Furthermore, I note that in the husband’s Form E, it was stated that his monthly income amounted to about $47,000 (inclusive of some rental income of about $10,500). However, his ability to pay the MPS whether in the present monthly sum of $35,000 or the requested sum of $70,000 is never an issue.  

29.  I am also aware of the husband’s argument that the wife is currently holding assets in the sum of about $2,300,000, meaning that she could still afford to pay the Robinson Road flat rent even if no additional MPS is paid by the husband. However, I also note that the wife’s current claim does not include any legal costs provisions, meaning that she has to dip into her own resources to pay for her legal fees.  I think it is reasonable for her to keep certain reserve for such purpose.  Therefore, by granting the wife the additional $30,000 MPS to cater for her and V’s interim housing needs, I do not expect the wife to come back for any further interim provisions, be it for legal costs or otherwise, unless there is any unexpected further change of circumstances.

30.  As the $30,000 interim housing needs are for both the wife and V, I am minded to divide it up equally between them.  In other words, I would increase the wife and V’s MPS to the respective sums of $35,000 and $30,000.

31.  As to the wife’s claim of additional $5,000 for V’s play group expenses, I note that V will only attain the age of 2 on 7 January 2018.  There is already a sum of $3,200 to cater for her play group expenses, which I believe is not unreasonable for a child of such tender age.  Therefore, I do not intend to make any further provision in that regard.       

Order

32.  Based on the above reasons, I would grant an upward variation of the mother’s MPS from $20,000 per month to $35,000 per month while the interim maintenance for V would be revised to $30,000 from $15,000.  The revised MPS would be payable on the 20^th day of each month starting from 20 December 2017 until further order of the court.

Costs

33.  I note that the wife does not succeed in all her claims.   More importantly, she has delayed in making her claim for interim housing resulting in the need of this second application within a very period of time.  If she has included or made known of these interim housing needs earlier, I trust that the parties would have come to a sensible resolution without the need for a second hearing.  I am of the view she has to bear the consequences of this delay.  Under such circumstances, a fair order on costs would be for each party to bear his own costs, including all costs reserved.  This will be in the form of an order nisi to be made absolute upon the expiry of 14 days from the handing down of this Judgment.

34.  Lastly, I thank counsel for their assistance in this matter.