XCHRX MICHELE HELENE TOMLIN v. NORMAN ERIC TOMLIN

D.J. No. 4 of 1993

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

(formerly IN THE DISTRICT COURT OF HONG KONG

D J NO. 7725 OF 1992)

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J U D G M E N T

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1. On 23rd February 1994, upon the Petitioner's application for ancillary relief, I made an order by consent. The order provided, inter alia, for payment by the Respondent to the Petitioner of $7,000 per month for the maintenance of each of two children. The Respondent now applies for variation of that part of the order, seeking a reduction in the amount of the monthly payments on the ground that there has been a change of circumstances.

2. An order making financial provision for a child is made pursuant to section 5(2)(a) of the Matrimonial Proceedings and Property Ordinance, Cap. 192. Section 11(1) of that Ordinance provides that the court shall have power to vary such an order and in exercising that power, sub-section (7) requires the court to 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. When making an order in relation to a child, section 7(2)(a) requires the court to have regard to the financial needs of the child. It is those financial needs which are said to have changed.

3. The consent order as between the parties was in the nature of a clean break. After various cross undertaking by the parties, it was provided that the Respondent should pay the Petitioner the sum of $1 m and also arrears of maintenance pending suit amounting to $240,000 by instalments of $20,000 per month. Subject thereto. the Petitioner's other claims for financial provision were dismissed.

4. At the time when that order was made, the Petitioner was paying rent of $29,500 per month for the flat in which she was living, and in which she apparently intended to go on living, with the two children of whom she had and has custody. The exact time is in dispute but, shortly after the making of that order and in any event within two months, the Petitioner surrendered the tenancy of the flat and moved with the children to live with the party cited. Accordingly, the requirement on the Petitioner to pay rent each month has disappeared. The Respondent contends that the monthly payments for each child should be reduced by an amount to reflect what I have called the accommodation component of those payments.

5. Both parties gave evidence in addition to the affidavits which had been filed. The Respondent said that the amount of $7,000 is a sum derived from his experience of maintaining his two older children by a previous marriage, and expenses incurred in relation to the two children the subject of these payments, together with a notional amount to allow for separate accommodation. He went on to challenge the Petitioner's break-down of the expenses required for each child per month which in fact exceed $7,000. This was a line of evidence which I checked because I was satisfied that it was too late for the Respondent to challenge the legitimacy of the monthly expenses, these one way or another having been agreed upon in February. To have allowed this line of enquiry to be pursued would in effect have been to allow the whole issue in relation to the children to be reopened. The real issue, and a very narrow one, was whether or not the $7,000 included a provision for rent.

6. It is right to note that other lines were pursued during the course of evidence. For an example, the Petitioner's attitude to a request by the Respondent's previous wife for an increase in maintenance for the two older children. I did not regard this or any other matters so pursued as relevant to this application.

7. For her part, the Petitioner said that the monthly payments did not include any provision for rent. Although she did not regard $7,000 per month for each child as sufficient, she accepted this sum rather than continue to fight the Respondent in these proceedings. She agreed that in February 1993 she had through her solicitors sought maintenance pending suit for herself and the children. The break-down of requirements for herself and each child included an apportionment of rent then being paid on the basis 50% for herself and 25% for each child. She said that later on, upon advice from her solicitors, she abandoned that approach to avoid arguments. She would be responsible for housing, and the needs of the children would be considered separately. The question of rent or apportionment thereof was never mentioned again in the course of negotiations.

8. It was pointed out to the Petitioner that after the consent order had been made she would be receiving, apart from the lump sum, $20,000 per month for arrears of maintenance pending suit over the next 12 months and a total of $14,000 per month for the children. That sum was barely sufficient to cover the monthly rent then being paid. The Petitioner denied however that she had ever regarded any part of the children's maintenance as being directed toward rent and said that she had always anticipated having to top up monthly expenditure from her own resources including the lump sum which had been paid. She denied that at the time the consent order was made she had had in mind moving in with the party cited.

9. It is perfectly clear to me that, apart from the suggestion in February 1993 of an apportionment of rent between the Petitioner and the two children, the idea of allocating some notional sum for rent to each child never occurred to anyone thereafter. The divorce proceedings and particularly the negotiations for financial settlement were unpleasant and acrimonious in the extreme. The Petitioner's only concern was to terminate the proceedings as soon as possible. Difficult though it might be, she plainly undertook responsibility for providing accommodation for herself and the children out of the settlement between her and the Respondent. The maintenance for the children was to meet all their other needs over and above school fees which were to be paid by the Respondent as part of the consent order.

10. That this was the approach of the parties is consistent with orders usually made in ancillary relief proceedings. It is not usual to make an order for the maintenance of a child or children which will reflect matters other than school fees, food, clothing and other personal expenses. Any provision for rent or accommodation is taken care of in payments ordered to be made to the wife. If circumstances later change, as in this case, the monthly payment to the wife can be varied to suit the changed circumstances. If the wife's monthly requirement for rent has been reduced or removed all together, the monthly payment by the husband will be reduced accordingly. In the present case, there having been a clean break between the Petitioner and Respondent, the question of change of circumstances as between them does not arise. There being, I am satisfied, no question of the monthly payments for the children containing any element of rent, there is no call for those payments to be varied. Their needs have not changed.

11. Accordingly, I dismiss the Respondent's application.

12. I make an order nisi that the Petitioner shall have her costs.