MJH v. LSA also known as LAH

FCMC 12005 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12005 OF 2008

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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 Petitioner father to decrease the periodical payments paid to the mother from HK$3,000 per month to nominal maintenance of HK$1 per annum. Although he originally asked that the maintenance payments for the child of the family be paid to the child direct, he later accepted that this was not appropriate. Instead he asks that the structure of the payments be varied to include his undertaking to pay for the school fees directly. He asks that the present arrangement continue.

Background

2. The parties married in June 1997 and separated in June 2008. This was then a marriage of approximately 11 years duration. The child of the family RM was born in March 1999 and is now almost 14 years of age. The divorce petition was issued on the 10 October 2008 and proceedings were initially hotly contested. Consensus was eventually reached with respect to most matters and the decree nisi was pronounced on the 8 September 2009. On the 17 August 2009 the parties agreed by consent to joint custody of RM with care and control to the respondent mother and defined access to the father. The father continues to see RM on a regular basis. Financial issues have also dominated however with the father being unemployed for a period of time, which necessitated the mother relying on CSSA. On the 14 May 2010 the parties agreed by consent that

AND UPON the parties agreeing and acknowledging that the maintenance provisions herein are by necessity an interim and in principle agreement given the Petitioner’s present unemployment and the Respondent’s dependence upon CSSA and that they will review the situation no later than 16^th August 2010 with a view to finalizing the maintenance order before 1^st September 2010;

3. On that basis it was further agreed that the father would pay periodical payments to the mother of HK$3,000 per month for her own maintenance and that he would pay a further HK$12,000 per month for RM. The decree absolute was pronounced on the 16 July 2010.

4. Further problems ensued and on the 2 December 2011 the mother issued a judgment summons for arrears of outstanding maintenance plus an inter partes summons for leave to enforce arrears in maintenance from September – November 2010. In response the father issued a summons to vary, citing in support inter alia the fact that he had remarried and now had a young son to support.

5. On the 23 April 2012 an interim agreement was reached as follows:

AND UPON the Undertaking of the Judgment Debtor to pay the periodical payment of RM to the Judgment Creditor and to pay RM’s school fee and the arrears of her school fee directly to the school.

AND IT IS BY CONSENT ORDERED that the maintenance for the Judgment Creditor and the child of the family as stated in paragraph 1 of the Order dated 14^th May 2010 be varied as follows:

(a)  The Judgment Debtor shall pay $9,875 per month as maintenance for RM, the child of the family, commencing on 1st May 2012 and thereafter on the 1st day of each and every succeeding month until the child attains the age of 18 or ceases full-time education, whichever shall be the later, payment to be made to the Judgment Creditor’s bank account direct.

IT IS FURTHER ORDERED that there shall be no order as to costs for above consent order and the Judgment Creditor’s own costs to be taxed in accordance with the Legal Aid Regulations.

6. Significant disclosure was subsequently requested by Legal Aid counsel representing the mother and the father complied. Both parties are now representing themselves. As is normal in situations like this – the father’s Notice of Application to Vary will be dealt with first. The mother’s application for a judgment summons has been adjourned to be dealt with at some future date. 

The law 

7. 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 ……”

8. 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”. In this case, given its history, it seems to me that it would certainly be appropriate to consider all of the factors afresh.

9. 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).

10. The correct approach was 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.

11. In this case the parties had agreed that the father would contribute HK$12,000 per month for RM’s maintenance and HK$3,000 per month as maintenance for the mother, although this was done on an interim basis and was subject to final confirmation.

The issues

12. There are three issues to be determined. Firstly what is the appropriate level of maintenance to be paid by the father for RM going forward, bearing in mind each party’s respective incomes? Secondly should the mother’s maintenance be reduced to a nominal figure of HK$1 per annum and thirdly whether or not any of these orders should be backdated?  

Background

13. The mother is 49 years old. She now earns HK$8,500 per month as a waitress. In addition she is entitled to a food allowance of HK$520 per month and a travel allowance of HK$780 per month. Thus, in total, she receives an income of HK$9,800 per month. Previously she did not work. According to her letter of employment she commenced work on the 4 September 2012. The father is an engineer by background and he is presently employed as a Project Safety Manager earning a basic salary of HK$57,600 per month. In addition he is entitled to a housing allowance of HK$19,200 per month plus a leave passage allowance of HK$700 per month. Thus in total his salary amounts to HK$77,500 per month. Although the father was unemployed for a period of time this income is in keeping with his salary during the marriage. He is now 50 years of age and was originally from the United Kingdom. He has recently remarried and has a young son.

What then is the appropriate level of maintenance to be paid by the father for RM going forward bearing in mind each party’s respective incomes?

14. There seems to be very little dispute here. The mother is asking that the original order do stand – i.e. that the father do pay her the total amount of HK$12,000 per month directly for RM’s maintenance, whereas the father is asking that the current status quo be maintained. As stated above the father is currently paying HK$9,875 per month to the mother direct and in addition he has undertaken to pay for RM’s school fees. He also covers other expenses such as the payment for RM’s school uniform; he has also taken out an insurance for RM’s benefit.

15. The mother updated her outgoings in court. She puts her general expenses at HK$7,800 per month, her own expenses at HK$5,600 per month and RM’s expenses at an additional HK$5,200 per month. This totals HK$18,600 per month.

16. I accept that a certain percentage of the general household expenses should be attributed to the mother directly. The remainder, being costs associated with RM, should then be split between the mother and father in an equitable manner. Given that the father is earning about 8 times what the mother earns I would expect RM’s share of the General expenses to be split along those lines.

General expenses

17. I accept that the mother’s general expenses are reasonable. Thus I would accept that the mother’s general expenses stand at approximately HK$7,800 per month. Of this half should be apportioned to the mother and half to H – i.e. HK$3,900 each. The mother will be responsible for 1/9 of RM’s half share say HK$430 and the husband will be responsible for the remainder of say HK$3,470.

RM’s direct expenses

18. The father presently pays for many of RM’s direct expenses. He pays for her school fees directly and in addition he also pays for her school uniform. I also accept that he buys her other things as and when required plus pocket money of HK$500 per week. The mother in addition has estimated that she spends a further HK$5,200 per month on RM as follows:

Daily allowance HK$60	1,200
Transport	500
Clothing/shoes	2,500 – 3,000
Mobile phone	500
Subtotal	5,200

19. I accept these figures as being reasonable. Thus on the same basis as above the mother should be contributing in the region of HK$580 per month towards RM’s expenses and the father approximately HK$4,620 per month.

20. On these figures then the husband should be paying in the region of just over HK$8,000 per month for RM’s maintenance. At present he is paying slightly more, plus the school fees etc. Given the disparity in the party’s incomes and the fact that the mother has only recently started work, it seems to me that the original figure of HK$9,875 per month plus payment of the other items as set out above is a reasonable one. I also agree however that it is acceptable, in the circumstances, for RM’s maintenance to be paid in the manner proposed by the father.

Should the father also be contributing towards the mother’s maintenance?

21.   Given that the mother is now in gainful employment it seems to me that she should be responsible for her own expenses. The husband is effectively paying for all of RM’s expenses. The mother should be responsible for her own. Given that RM is still only 13 years old I accept however that it would also be appropriate, as suggested by the father, for there to be a nominal maintenance order.

22. The mother’s ability to work has been a point of some dispute throughout these proceedings. Certainly she has an earning capacity – although I would accept a fairly limited one. 

Should the nominal maintenance order be backdated?

23. Given the circumstances here I will backdate the nominal maintenance order to the 1 September 2012. Thus the father should in principle be responsible for paying the HK$3,000 per month for the mother’s maintenance until that date.

Order 

24. Upon the Petitioner’s undertaking to continue to pay for RM’s school fees, school uniform and insurance premia, until she reaches the age of 18 years or ceases full time education

IT IS ORDERED THAT:

1)  The Petitioner shall continue to pay HK$9,875 per month as maintenance for RM, until the child attains the age of 18 years or ceases full time education, whichever shall be the later, payment to continue to be made to the Respondent’s bank account direct. 

2)  Order 2 contained in the court order dated the 14 May 2010 shall be varied to the effect that the periodical payment to the Respondent shall be varied down from HK$3,000 per month to nominal maintenance of HK$1 per annum, with effect from the 1 September 2012, such payment to be made during the joint lives of the parties or until the Respondent’s remarriage, whichever shall be the shorter. 

3)  There shall be a call over in relation to the Respondent’s judgment summons on the 15 May 2013 at 9:30 am.

4)  Both parties do personally attend that hearing.

5)  There shall be no order as to costs.