AEL v. MRL

FCMC 2902 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2902 OF 2007

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J U D G M E N T

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Introduction

1. This is an application by a petitioner wife for an upward variation of an order for maintenance pending suit dated the 24 July 2007. She seeks a variation upwards from HK$44,000 per month, (plus certain identifiable extra’s), to HK$65,000 per month – i.e. HK$13,000 for herself and HK$13,000 for each of the parties four children.   

Overview

2. This is a highly emotive and deeply contested piece of litigation involving a wife who is a medical Dr by profession and a respondent husband who is a pilot.

3. The main issue centres on the husband’s desire to relocate out of Hong Kong in order to take up a position as a Freighter Commander in Europe. It seems from correspondence that the wife, who has been largely engaged as a homemaker for the last 12 years, was initially agreeable to leaving Hong Kong in the summer of 2008. This was a pivotal date because the eldest daughter was due to take her GCSE’s then. The wife appears to have since reconsidered her position and now intends, it would seem, to remain in Hong Kong on a long-term basis.

4. Thus battle lines have been drawn with the husband insisting on the one hand that the wife relocate out of Hong Kong to the United Kingdom and the wife resisting. The husband maintains that he will not be able to support the wife and the children at the level claimed, if he does indeed take up the new position and the wife does indeed remain in Hong Kong. Each party has made allegations and counter allegations, with the wife accusing the husband of tactically taking measures designed to force her out of the Territory. There is clearly a great deal of ill feeling on both sides.

 5.   It is true, that at the end of the day, there is little that the court can do to help the parties resolve this dilemma. Instead the court will make a decision regarding the division of the party’s assets (such as they are) and periodical payments on a longer-term basis. This will be done after all the issues have been canvassed at a full ancillary relief hearing. The trial has been set down for May. A detailed analysis of the party’s income and outgoings, their present earnings and respective future earning capacities will be made then.

Background to the present application

6.    The background to this case has been set out in Deputy Judge Kot’s judgment of the 24 July 2007. This followed a contested hearing for maintenance pending suit.

7.    In summary the parties married on the 11 April 1987 and had four children, H who is nearly 16 and in her first year of studying for the I.B, C who is 13, M who is 10 and E who is 8.

8.    The parties relocated to Hong Kong in mid 2002, which is where they have resided since. The wife issued divorce proceedings on the 13 March 2007 based on the husband’s adultery. The petition was initially defended. The decree nisi was vacated on the 15 August 2008 pending the wife’s legal aid application and the statutory stay. The issue of the divorce itself remains outstanding and I would ask that the parties clarify this point as quickly as possible. 

9.    The wife at an ex parte hearing, on notice, also initially sought injunctive relief. This hearing took place on the 19 March 2007. The husband did not appear at that hearing and was not represented. The husband was initially restrained from terminating the lease on the party’s home in HLY and from terminating the children’s registrations at their respective schools. At the return hearing on the 4 May 2007 the injunction was discharged based on the husband’s undertakings inter alia i) not to terminate the lease on the parties home or to cancel the registration of the children’s school places ii) to use his best endeavours to renew the families domestic helpers contract iii) to support the renewal of the wife’s dependant’s visa iv) to pay for all family expenditure as set out in the documentation and v) to pay the wife HK$20,000 per month.

10.   Apart from directions hearings, the next substantive hearing was the maintenance pending suit hearing on the 17 July 2007.The parties were ably represented at that hearing – the wife by Mr Russell Coleman SC, instructed by Boase Cohen & Collins and the Ms Shine instructed by Hampton Winter & Glynn for the husband. I will refer to that hearing in more detail below. In summary though, upon the wife vacating the matrimonial home, the husband was ordered to pay HK$44,000 per month. The husband’s undertaking to bear all the educational expenses of the children was to continue. Costs were awarded to the wife.

11.   Subsequent to that the parties attended a Financial Dispute Resolution hearing, which failed. Consequently the matter was referred to my court for trial.

12.   On the 3 July 2008 the husband issued a summons to vary the maintenance pending suit payments downwards. He is no longer proceeding with that application. On the 20 October 2008 the wife issued a summons to vary the maintenance pending suit payments upwards. It is this application that is presently before me.  

Issues

13.   It seems to me that the following issues need to be determined by the court:

1) What weight should be attached to the order of the 24 July 2007?

2) Is there a material change of circumstances here necessitating a variation on a short-term basis?

3) In the circumstances, should the order of the 24 July 2007, that the husband pay the wife HK$44,000 per month as maintenance pending suit/interim maintenance for herself and the parties four children be varied upwards pending a final hearing on ancillary relief?

4) Is this application an appeal through the back door?

The Law 

14.   In so far as the application to vary is concerned, the wife’s application for a variation 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 …… ”

15.   It is generally accepted, that in considering all of the circumstances of the case, including any change relating to any matters brought to the attention of the court previously, I may look at the case de novo.  But, as Mr. Erving rightly points out, it is also correct that there is normally a particular change of circumstance necessitating an application - a trigger date from which the anticipated variation could rightly be said to flow. A variation of maintenance pending suit is therefore usually associated with a material and significant change of circumstance.  

Case law

16.   I asked both sides to address me on any ramifications arising out of the recent Court of Appeal decision, HCTT v TYYC [2008] HKEC 1105, 11 June 2008. Although this case involved an application to vary a maintenance order arrived at by consent, nevertheless it seems to me that some of the findings and comments made are pertinent to the circumstances of the present application.

17.   Referring to the case of Garner v Garner [1992] 1 FLR 573, the Hon Mr Justice Tang VP, pointed out that the extent to which a previous order was material, was really a matter of weight

…whether made by consent or not

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 old order as may be thought appropriate. (Ref Garner v Garner [1992] 1 FLR 573).

The Hon Mr Justice Lam added:

Even though we are only dealing with a consent order, I also agree with the observations of the Vice President regarding the approach of Cazelet in Garner v Garner [1992] 1 FLR 573 on applications for variation generally. Applications for variation should not be pursued when in substance the grounds advanced for variation are tantamount to re-argument of the same issues that have been argued before the court before the making of the original order. If a party is aggrieved by the terms of the original order, the proper course is to appeal against that order.  

Maintenance pending suit/interim maintenance

18.   In so far as maintenance pending suit for the wife is concerned and interim maintenance for the children, applications of this nature are governed by s.3 and 5 Matrimonial Proceedings and Property Ordinance, Cap 192. Section 3 states that the only governing principle is that the court will make such order, as it considers reasonable in all the circumstances of the case.  Consequently maintenance pending suit applications are approached on a broad-brush basis. As Deputy Judge Kot has pointed out in her judgment of the 24 July 2007, the court is obliged to look at the reasonable needs of the wife and the ability of the husband to pay. A detailed examination of the parties’ means may be considered at a later date at a full ancillary relief hearing, if agreement has not been reached in the meantime.  Any over payment or under payment may be dealt with then. Interim maintenance for children is approached in a similar way.

Discussion

19. I must now turn to consider the issues, the law, and the parties’ evidence as set out in their most recent affirmations together with the submissions made by their solicitors during the hearing.

Wife’s case

20. In summary the wife’s case is that in looking at the case de novo I am entitled to look at the circumstances afresh. In particular she pointed to three matters a) the husband’s increase of salary of approximately HK$5,000 per month, 2) the UK income 3) the wife’s income, which has not been as significant as had been hoped, but is likely to rise to HK$25,000 per month from the end of this month i.e. December 2008.

21. The wife also alleges that the husband misrepresented his rental allowance to the court and that he has massively increased his personal expenditure since the making of the July 2007 order.

22. The wife seeks an increase to HK$65,000 per month.

Husband’s case

23. The husband’s position is that the wife has not made out a case for a variation, that

There has been no material downward change of circumstances of the Petitioner nor any upward change in financial circumstances of the Respondent since that date. On the contrary the Petitioner’s income position has improved. (See p.2 of the husband’s skeleton response dated the 13 November 2008).

24. The husband says that the wife’s application is a backdoor appeal and should be dismissed.

25. In any event the husband says that he cannot afford to pay the wife the increase that she seeks.

What weight should be attached to the order of the 24 July 2007?

26. I have had the opportunity of reading the transcript of the hearing on the 17 July 2007. At that hearing the husband initially argued that there should only be an interim interim order designed to simply get the parties through to the 1 September 2007. Deputy Judge Kot heard argument on this point and decided as follows:

By taking a balancing test between the interests of the parties as well as the children in this case, and to avoid further unnecessary legal costs, I think it would only be fair for both parties for an MPS order to be considered today to cover the period after the parties vacate the matrimonial home. So I shall proceed to hear counsel on this issue.

27. It is clear that she heard full argument and that the basis upon which she did so was fully understood by all those who were in court. In particular the issue of variation and the basis for seeking a variation was canvassed. Mr Russell Coleman SC said for the wife

The husband is employed by P, he has income at a particular level and that’s revealed both in his Form E – although that doesn’t identify the education allowance – and the various pay slips – and I’ve been provided with updated pay slips this afternoon. And on the basis that the parties will find appropriate accommodation in Hong Kong to match their employment here and the fact that the children are at school here and that if there is any fundamental change incircumstances at some point in the future, then the parties can either come back to court, or, hopefully, not have to come back to court ifthey can resolve matters consensually without the need for any further court hearing.

And again.

I know the husband is desirous of leaving Hong Kong. I know he is arranging an interview. I am told that an interview might take place early in August but there’s no certainty as to what would happen: there’s no certainty of being offered a job, there’s no certainty of being offered a job on terms which he would find acceptable or affordable, so we’re really in the dark as to what might happen in the future. Without needing to crystal-ball gaze we should be dealing with matters on the facts as we know them knowing that it’s an interim order that can be varied if those facts fundamentally change at any given time.

And further

…if ultimately a trial judge takes the view if a trial is necessary – that those figures need to be changed slightly, then, as with every case where there’s been an interim MPS order and a final order, those figures can be put right if necessary. That is the approach that we commend to this kind of application.

28. I agree.

29. The matter was dealt with on a broad-brush basis. It is true that specific reference was not made to the income in the UK – but that material was nevertheless before the court.

30. In so far as the rental allowance is concerned, I do not accept the suggestion that the husband misrepresented the situation with respect to the housing allowance. Deputy Judge Kot sought clarification of the situation on a number of different occasions. She was told that the wife intended to move out of the matrimonial home in any event. This seems to have been premised on the fact that the wife’s legal position was possibly somewhat precarious if she decided to stay in the matrimonial home and the husband moved out, as the housing allowance is attached to the husband’s employment and his housing needs. Ms Shine said in answer to a query from Deputy Judge Kot

Well, he may not want to move out. I mean it’s not a given that he would want to move out. He may not want to move out. If he’s got the children he may want to stay living in HLY home because that’s where they live and that’s where their friends are and that’s where the C Club isnearby and that’s where it’s close to the schools and it’s a familiar place for the children – you know, the children are all school-age children, having to adjust to different circumstances of their parents but it doesn’t necessarily follow that they themselves have to move from that home just because their mother wishes to move out and live separately. It’s entirely possible that the father will remain living in the matrimonial home and would wish to do so.

31. Infact the husband did move out, but he chose to rent another property on the same terms as before, as opposed to taking the cash allowance of HK$24,000 per month. The wife complains about this. Again this seems to me to be a more appropriate point to be canvassed at a final hearing.

32. In the circumstances I am of the view that significant weight should be attached to the order of the 24 July 2007. The issues were fully canvassed and the Judge made a decision based on full argument. The fact that a different Judge may have come to a different decision on the same facts is not a valid reason for subsequently applying to vary an order. Any underpayment can and should be dealt with at the final ancillary relief hearing.

33. I also accept that given the order, the husband was then entitled to spend what he thought he could afford in the light of the interim order made, although whether he should be permitted to do so going forward is something that will also need to be examined carefully at trial.

Is there a material change of circumstances here necessitating a variation on a short-term basis?

34. It is accepted that the change of circumstances identified by Ms Heathfield are of themselves quite small. However she argued that cumulatively they have had a significant effect. She also attempts to reargue points that have already been canvassed at the original hearing, such as what she describes as a gross under estimation of food and wine for a family of six people at HK$7,000 per month. If this is right and I am not saying that it is or it isn’t, then this is a matter that should more properly be canvassed at the final ancillary relief hearing.

35. Thus I do not accept that there is a change of circumstance here of the magnitude necessary to necessitate a variation of the order, especially given the fact that there will be full argument on all of these points in less than six months time.

In the circumstances, should the order of the 24 July 2007, that the husband pay the wife HK$44,000 per month as maintenance pending suit/interim maintenance for herself and the parties four children be varied upwards pending a final hearing on ancillary relief?

36. In the circumstances I am not minded to vary the order.

Is this application an appeal through the back door?

37. The wife rejects this accusation, but it is clear from the correspondence that she felt very aggrieved by the order made by Deputy Judge Kot. For example I have been referred to the following excerpts from correspondence from the wife’s solicitors.

- 16/8/2007 : We believe that the Deputy Judge has made a serious error in the allocation of funds available as between the expenses of the children and our client and the expenses of yourself. Put quite simply, she has left the entire “shortfall” of funds to be borne by our client and the children, which is not a fair or equitable exercise of her discretion, nor indeed an order which acknowledges the requirements to consider the best interests of the children, such that the order provides for your expenses (excluding your responsibility for excess education costs) the sum of HK$54,000 and provides to our client for the costs of one adult, four children and a domestic helper the sum of HK$44,000 plus the HK$16,000 she is able to earn. Another error in the judgment is her disregard for the additional monthly sums you have derived over the past several years from 13 months salary and profit bonus.

- 28/11/2007 : We note your client’s unwillingness to contribute towards the costs of this removal and deposit for her new home. We cannot see how monthly maintenance of HK$44,000 for our client and 4 children can even start to defray those costs as well as meeting the monthly living costs of the family. We note that your client retains substantially more of his income than has been allocated to our client and 4 children by the “balancing” exercise conducted upon the maintenance pending suit application. If there is no agreement which provides adequately for our client and four children, we will be putting an application before the court in respect of varying this maintenance most especially in view of our client’s change of working hours imposed by her employer. Quite frankly what is fair and reasonable does not appear to have had any bearing on the maintenance pending suit.

38. On the evidence I do not accept the wife’s assertions. The wife clearly felt that the order was wrong and has used this process in order to attempt to rehear the matter when the basis for doing was extremely flimsy.

Conclusion

39. In these circumstances the wife’s summons to vary the maintenance pending suit/interim maintenance dated the 20 October 2008 is dismissed.

Costs

40. Costs shall be reserved for argument following the ancillary relief trial.