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FCMC 8831/2012
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES NO. 8831 OF 2012
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BETWEEN
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WSR |
Petitioner |
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and
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CSL |
Respondent |
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| Coram: Deputy District Judge David Cheung in Chambers (Not open to public) |
| Date of Hearing: 9th – 10th March 2017 |
| Date of written submission: 24th March 2017 |
| Date of Judgment: 10th July 2017 |
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JUDGMENT
(Variation of Maintenance Order)
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1. This is the Petitioner Husband’s (hereinafter called “H”) application under the summons dated 26th July 2016 (hereinafter called “H’s application”) for variation of orders for periodical payments made on 15th July 2013 and 30th August 2013 respectively with the Respondent Wife (hereinafter called “W”), for downward adjustment of the monthly maintenance for both W and the children of the family, namely the elder son and the younger son (hereinafter collectively called “the children”) from the original monthly sum of HK$4,000 to Nil for W and HK$10,000 for each child to HK$5,000 for each child.
2. The elder son is now almost 14 years old and the younger son is now 9 years old whose custody care and control has been granted to W pursuant to the order dated 2nd May 2013.
Background
3. The parties were married in 2003, and in June 2012, H filed for divorce in these proceedings against W based on two years’ separation. Eventually they were able to reach overall settlement through their lawyers on all matters including joint custody with care and control of the 2 sons to W and certain defined access to H, and various terms on financial relief, namely the periodical payment to W and the children.
4. H later took out H’s application on 26th July 2016 and subsequently, W also issued a judgment summons dated 23rd November 2016 (hereinafter called “Judgment Summons”) seeking to enforce the outstanding maintenance payments for her and the children of the family in the total sum of HK$26,000.00 for the period of September 2016 to November 2016 and the hearing of the Judgment Summons was returnable on 13th March 2017.
5. The general rule of thumb is that where a judgment summons has been issued together with an application to vary, then the application to vary should be dealt with first, regardless of which application came first in time. It is often the case that the two applications will be dealt with in two separate hearings.
6. In the event that they are to be dealt with one after the other in the same hearing, then it is incumbent on the court to ensure that it is clear that the application to vary is dealt with first and in chambers and that the judgment summons is dealt with second and in open court.
7. Since the returned date of the hearing of the Judgment Summons was on 13th March 2017, I therefore adjourned the said hearing sine die to be restored after the conclusion of H’s application.
Applicable Principles
8. The powers to vary a periodical payment order are expressly provided for by section 11 of Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”):
“(1) Where the court has made an order to which this section applies, 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 any provision so suspended.”
9. How those powers are to be exercised is stated in section 11(7):
“(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.”
10. The proper approach to such an application has been succinctly summarized in Raydan and Jackson on Divorce and Family Matters, 18th Edition, Chap.18.21:
“ … The court considers the application to vary on the basis of the means of the parties as they stand at the time when the case is before it, and approaches the matter as if it were assessing the payments de novo. It follows that the principles governing the assessment of periodical payments will in broad measure apply to applications to vary: the overriding objective is fairness. Discrimination between the sexes must be avoided. The court should consider not only the descending income of one party but also any ascending income of the other, and take into account of any increase or decrease in responsibilities or liabilities on the part of each party, including obligations to a new family. Whilst the court deprecated the notion that a husband and father could evade his financial responsibilities it would have regard to reality; there was life after divorce and a payer was entitled to order his affairs in such a way as to balance his responsibilities to his existing family with his proper aspirations for a new future, in particular, that he should have accommodation suitable for proper staying contact. In considering the application the court might have regard to the availability of social security benefits to the wife and children if there was no practical alternative. Financial mismanagement by the payer or the payee may be one of the relevant circumstances to which the court is required to have regard under s 31(7), and conduct on the part of a wife post the substantive ancillary relief order can be weighed in the balance in an application for a variation of periodical payments.
11. This approach was examined and endorsed by the Court of Appeal in AFM v VFM (Variation of Maintenance) [2008] HKFLR 106 at 111:
“3. The traditional approach to variation was not to re-fix afresh the amount of maintenance but to consider the amount of change in the actual means of the parties so that the new order should merely be increased or decreased roughly in proportion to the change in the means: Foster v Foster [1964] 3 All ER 541, Jackson’s Matrimonial Finance and Taxation 7th Ed. Ch.3.131.
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: Premavera v Premavera [1991] 1 FLR 16 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.”
12. The parties also have a duty to make full and frank disclosure of their means and a failure in that duty can lead the court to draw an adverse inference. (See Baker v Baker [1995] 2FLR 829).
13. 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).
Recent case law
14. In a recent Court of Appeal decision on variation – WNWG v PBF – [2012] HKCU 675, these basic principles were reiterated. The Hon Lam J said that:
[12] As regards the approach that the court should adopt in considering an application for variation and the weight to be attached to the original order, Tang V-P said in HCTT v TYYC [2008] 5 HKC 86 at paras 15 to 16:
“15. But as Garner v Garner [1992] 1 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 payments 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 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 some changes in the circumstances, and in particular in the financial 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 [i.e. s.7 MPPO] . 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. Like-wise, 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 old order as may be thought appropriate.”
16. Thus, although the jurisdiction to vary is untrammeled, normally the earlier order would not be varied unless there has been a material change in circumstances.”
[13] And further at para 37, His Lordship said,
“Justice requires that proper weight should be given to the consent order.”
[14] Though the emphasis may be slightly different, Cheung JA was of the same view in AEM v VFM [2008] 3 HKLRD 36, at para 14, in particular at sub-paras 6 and 8,
“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.
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] 1 FLR 282.”
15. It is therefore with these principles in mind that I now come to consider the matters relevant to H’s application.
The Mattes to be determined
16. In my view, the following matters need to be determined :
(a) The financial resources and needs of H;
(b) The financial resources and needs of W and the children.
H’s case
17. In gist, H’s case is that there had been a material change in his financial position since the last order made for maintenance for W and the children, and he was no longer able to pay the total sum of HK$24,000 per month, because his income had been reduced and his expenditure had been increased. He also stated that W is able to work and earn more.
18. In addition, he also stated that W was able to save a considerable amount of money every month, therefore W should take greater financial responsibility for the children.
W’s case
19. In gist, W’s case is that while she accepted H’s salary had been reduced comparing to his previous income, the requested variation by H was out of proportion of the amount of H’s salary reduction, because H‘s salary was reduced by approximately HK$7,300.00 only but H asked for a variation of a total sum of HK$14,000.00.
20. W also said that the current expenses of H was self-induced and at the expenses of the welfare of the children, and that the current expenses of H should be shared more evenly among H, H’s girlfriend and his girlfriend’s sister.
H’s financial resources and needs
21. H is now 47 years old, and is now employed as a business account manager since April 2016. The current income of H on average per month is HK$42,666, which included a fixed commission of HK$3,500 per month if H could meet the sale target of that month. The commission will be paid quarterly.
22. Before H joined the current company, he was self-employed and ran his own company. When H was self-employed, his previous income was HK$50,000 per month. In H’s Form E dated 22nd November 2012, H stated that his average income per month was HK$50,000 while his girlfriend average income was HK$21,000.
23. H said that because his income had been reduced, therefore he could not afford to pay the maintenance for the total sum of HK$24,000 per month.
24. The income and the total monthly expenses of H stated in his Form E dated 13th June 2016 and his Form E dated 23rd February 2017 were the same. H’s total monthly expenses also included the maintenance for the children and W for the total sum of HK$24,000.
25. During the trial, W made concession and agreed that her monthly maintenance of HK$4,000 could be replaced by nominal maintenance of HK$1 for the time being, but she could not accept that the children monthly maintenance for the total sum of HK$20,000 be reduced.
26. By reason of W’s concession and on the basis that the monthly income and also the total monthly expenses of H currently stated is correct and reasonable, during the trial, H admitted that he could afford to pay HK$13,000 to HK$14,000 a month as maintenance for the children.
27. However, this was not accepted by W, as W said that the current total monthly expenses of H is unreasonable and excessive.
28. H had revealed in his evidence in court that he had moved to another place of residence. In 2013, his rental expenses was HK5,000 per month and his flat was about 600 square feet. Now he had moved to a bigger flat with his girlfriend and her family members. The current flat is about 900 square feet and the rental receipt he produced showed that the monthly rental payment was HK$17,800. The rental receipt was made to his own company.
29. H said that his contribution of the rental payment per month was HK$10,800, and her girlfriend paid HK$4,000 for the rent and her sister paid HK$3,000 for the rent. Her girlfriend also paid for their daughter’s expenses and food for their family.
30. Her girlfriend after giving birth to their daughter was back to work now. In court, although H said that her girlfriend earned HK$24,000 per month, H later confirmed that her girlfriend in fact was earning HK$27,000. Therefore, while H’s income had been reduced by approximately HK$7,300, his girlfriend’s income had been increased by HK$6,000.
31. H also explained that her girlfriend paid a sum of money to her mother (hereinafter called “the grandmother”) for housekeeping and taking care of their daughter. H said that he also gave the grandmother HK$4,000 per month, and this sum was also for taking care of the daughter and the food. H explained that he paid grandmother HK$4,000 and he believed that her girlfriend also gave more or less the same amount to the grandmother.
32. H also said that the expenses of domestic helper of HK$1,000 was referring to his payment to the grandmother.
33. What happened now is that H rented a bigger flat for his new family. Whilst H is of course entitled to proper aspirations for a new family, his evidence also confirmed that his girlfriend was also gainfully employed and earning about HK$27,000 per month, and hence would be expected to share some of the living expenses of their new family thereby enabling him to better balance his income between his previous family with W and the children as well as his new one.
34. In any event as noted above he does not dispute his current ability to pay HK$14,000 per month. His main argument is firstly whether W can earn more so that he can pay less. Secondly, the expenses for the children are indeed as much as W claims, and if so whether they are reasonable or necessary in the circumstances.
35. To deal with the issues raised by H, it would be useful to first set out here a list of the H’s alleged expenses, based on his Form E and his subsequent evidence in court, for comparison purpose:
| 4.1 General Household: |
HK$ |
| Rent |
$10,800 |
| Utilities |
$ 1,000 |
| Food |
$ 3,000 |
| Domestic Helper (Part-Time) |
$ 1,000 |
| Sub-total: |
$15,800 |
| 4.2 Personal: |
|
| Meals out of home |
$ 3,000 |
| Transport |
$ 1,000 |
| Clothing/Shoes |
$ 500 |
| Personal grooming |
$ 500 |
| Entertainment/presents |
$ 1,000 |
| Holiday |
$ 1,500 |
| Tax |
$ 2,000 |
| Maintenance for W and Children |
$24,000 |
| Others (MPF) |
$ 1,500 |
| Sub-total: |
$34,700 |
| 4.3 Children: |
|
| Medical/Dental |
$ 300 |
| Holidays |
$ 800 |
| Clothing/Shoes |
$ 500 |
| Milk, nappies etc |
$ 1,200 |
| Sub-total: |
$2,800 |
| Total Monthly Expenses: |
$53,300 |
36. According to H’s evidence, he said that he gave the grandmother HK$4,000 per month, and this sum was also for taking care of the daughter and the food. His girlfriend also paid for their daughter’s expenses and food for their family. H also said that the expenses of domestic helper of HK$1,000 was referring to his payment to the grandmother.
37. By reason of what H had said, food for the sum of HK$3,000, domestic helper for the sum of HK$1,000 and expenses for her daughter for the sum of HK$2,800 should be replaced by a total sum of HK$4,000 instead of a total sum of HK$6,800, as H had said that he paid HK$4,000 to the grandmother for the purpose stated above.
38. With the aforesaid adjustment and deducting the maintenance for the sum of HK$24,000 for the time being, H’s total monthly expenditure will be HK$26,500. His current income is HK$42,666, so it is obvious as to why H does not dispute his ability to pay monthly maintenance to the extent of HK$14,000.
39. H’s expenses on holiday for the sum of HK$1,500 is on the high side, I would consider that HK$1,000 per month should be reasonable. H also said that meals out of home consisted of lunch outside for the sum of HK$70 per day and 4 times per month of dining out, each time for the sum of HK$400.
40. My view is that the expenses for meals out of home is flexible. He should consider packing his own lunch box or reduce the frequency of dining out. I am of the view that this item should be HK$2,500 instead of HK$3,000.
41. While H is now living with his girlfriend and his girlfriend’s sister and the grandmother, three of them were gainfully employed. I do not accept H’s explanation that merely because he had made a bad decision to shoulder more responsibility for the rent and household expenses, then H could be excused to pay the original sum of maintenance for the children, and shift his share of financial responsibility of the children to W.
42. If H had made a bad decision, he himself should be responsible for the consequence, and he should discuss with his girlfriend and his girlfriend’s sister to adjust their current contribution to the rent and household expenses so that the maintenance previously paid by H to W for the children would be least affected. Particularly, his girlfriend and his girlfriend’s sister had the ability to pay more money than the one now paying.
43. I am of the view that as to the contribution of the rent, the current arrangement of H paying HK$10,800 and his girlfriend and his girlfriend’s sister paying HK$7,000 in total was self-induced and artificial, there was no reason why it should not be vice versa when his girlfriend and his girlfriend’s sister had the ability to pay.
44. In the premises and for the reasons articulated above, I have found and would allow as reasonable and/or necessary the following monthly expenses of H:
| 4.1 General Household: |
HK$12,000 |
| 4.2 Personal: |
HK$10,000 |
| Total: |
HK$22,000 |
45. My view is that based on the aforesaid adjustment, H could pay at least HK$20,000 instead of HK$14,000 per month for the children maintenance.
W’s financial resources and needs of W and the children
46. The Wife, now aged 45, is working part time and earning her salary on hourly basis, and she had been working in this company for about 3 years already. She said that her average monthly income is HK$3,500, and her hourly rate is HK$100 and she worked 35 hours per month, and she usually worked 3 to 4 mornings per week because she has to accommodate the daily schedule of the children.
47. W also said that as a single mother without any help of domestic helper, she needed to set aside 1 morning for housework. In addition to that, she had taken up parent volunteer work in her children’s school, so on average she could only work 3 to 4 mornings per week.
48. She further said that her boss agreed to pay her HK$3,500 being her minimum salary per month even if she was not able to work for 35 hours per month.
49. H, however, said that W could earn more. In H’s submission, he said that as the children now spend 35 hours a week in school, W has the ability to work over twenty hours per week. H was saying that W could earn around HK8,000 per month instead of HK$3,500 per month.
50. In W’s Form E, she stated that her total monthly expenses was HK$33,900. Details are as follows:
| 4.1 General Household: |
HK$ |
| Utilities |
$ 1,500 |
| Food |
$ 6,000 |
| Household |
$ 1,000 |
| Shelter expenses |
$ 1,500 |
| Sub-total: |
$10,000 |
| 4.2 Personal: |
|
| Meals out of home |
$ 1,500 |
| Transport |
$ 2,500 |
| Clothing/Shoes |
$ 300 |
| Personal grooming |
$ 200 |
| Entertainment/presents |
$ 1,000 |
| Holiday |
$ 800 |
| Medical/Dental |
$ 400 |
| Insurance premium |
$ 900 |
| Sub-total: |
$7,600 |
| 4.3 Children: |
|
| Extra tuition fees |
$ 3,500 |
| School books and stationery |
$ 1,000 |
| Transport to school (including school bus) |
$ 1,800 |
| Medical/Dental |
$ 1,000 |
| Extra-Curricular activities |
$ 1,600 |
| Entertainment/presents |
$ 1,000 |
| Holidays |
$ 1,000 |
| Clothing/shoes |
$ 1,200 |
| Insurance premia |
$ 1,700 |
| Lunches and pocket money |
$ 2,000 |
| Other Transport |
$ 300 |
| Uniform |
$ 200 |
| Sub-total: |
$16,300 |
| Total Monthly Expenses: |
$33,900 |
51. Of this total sum of HK$33,900, H said that household expenses should be HK$500 instead of HK$1,000, and the shelter maintenance should be HK$500 instead of HK$1,500. Therefore, H said that the total monthly household expenses should be HK$8,500.
52. H further said that the total monthly personal expenses should be HK$6,100 instead of HK$7,600, because he disputed the expenses for transport and said that it should be HK$1,000 instead of HK$2,500. He did not dispute the remaining items of W’s personal expenses.
53. H also said that the total monthly expenses for the children should be HK$11,050 instead of HK$16,300. His view is that extra tuition fees should be HK$2,000, school book and stationery should be HK$500, transport to school should be HK$800.
54. H further said that extra curricular activities should be HK$800, entertainment/present should be HK$300, clothing/shoes should be HK$600, and other transport should be HK$150. Therefore, based on H’s evidence in court, he said that the total monthly expenses for W should be HK$25,650, and he considered that this is a reasonable figure.
55. On the basis that HK$25,650 as suggested by H is correct, this total sum must first be properly apportioned by allotting 2/3 of the household expenses to the children, thus bringing the children’s total expenses to HK$16,716 (i.e. HK$5,666 + HK$11,050), while W’s would become HK$8,933 (i.e. HK$2,833 + HK$6,100).
56. Therefore, putting H’s case to the highest, he should at least pay HK$16,000 per month. However, I shall discuss further whether the total monthly expenses for W should be HK$25,650 as suggested by H.
57. W already made a concession that she would agree to accept a nominal maintenance for her for the time being. While H’s case is that she could earn approximately HK$8,000, my view is that even if W could earn as high as HK$8,000 per month as suggested by H, her income would only be sufficient to cover her own expenses but not the children’s.
58. Nevertheless, I accept W’s evidence that she could only earn HK$3,500 per month. Being a single mother without the help of domestic helper, W needed to take care of the housework by herself. In addition to that both children needed her extra care and attention, as both children were suffering from attention deficit hyperactivity disorder (hereinafter called “ADHD”), and the elder son was also suffering from autism spectrum disorder. Therefore, W had every reason to continue with her existing job at least for the time being, as the work schedule is more flexible so that she could be able to take good care of the children.
59. H also said that W saved a considerable amount of money and so she has the ability to take greater financial responsibility for the children.
60. The reason why W would not accept H’s offer to pay only HK$14,000, because she said that a maintenance of HK$14,000 per month is not sufficient for the expenses for the children.
61. W said that she lives in remote area, and the children travel long distance to school. She said that her transportation fee is HK$60 per day at least, therefore her transportation fee cannot be HK$1,000 per month as suggested by H. I accept her evidence, and adjust her transportation fee to HK$1,800 per month.
62. W also explained that the elder son and the younger son require Putonghua lesson 1 hour per week for each child, and the fee is HK$200 per hour so she needs to spend HK$1,600 to HK$2,000 per month for the children. My view is that the average expenses for this item should be HK$1,800 based on what W said.
63. Her elder son also needs to attend a Chinese language lesson, and the fee is HK$720 per month. She also said that her elder son requires private tuition lesson and she pays HK$400 per month. I therefore adjust the extra tuition fee to HK$3,000 instead of HK$3,500.
64. I accept that HK$1,000 for the expenses of school books and stationery is reasonable. W said that the books she needed to buy for the elder son in 2016 was HK$4,260 and for the younger son was HK$3,500 to HK$3,800 for two terms and she also needed to buy some other books and supplementary exercise after the term break and some stationery, therefore she estimated that the expenses under this item should be HK$1,000 per month for the children.
65. W also said that the expenses for transportation to school for elder son is HK$30 per day and for the younger son, it is HK$14 per day. Therefore, it should be around HK$1,000 per month for the children for the school day. W also said that for non-school day, it is HK$20 per day per child, therefore, it should be HK$320. I will adjust the transport to school to HK$1,000 instead of HK$1,800 while the expenses for other transport shall remain unchanged.
66. W further said that the children attend Chinese Martial lesson, and each child per month needs to spend HK$500 for this extra curricular activities. The reason why she chose this activity for her children is that the doctor suggested to her to let her children take behaviour treatment.
67. W said that it happened that her friend’s child had ADHD and after taking the Chinese Martial lesson, there was improvement to ADHD, so she wanted to try as the fee is not too expensive. My view is that even if it is not effective to ADHD, as the children had taken the course of Chinese Martial lesson since April last year and enjoyed the activities, I see no reason why it should be stopped.
68. Nevertheless, despite the aforesaid, the expenses for the extra curricular activities should be adjusted to HK$1,000 instead of HK$1,600.
69. Regarding the expenses for entertainment/presents, H said that it should be HK$300 and W said that it was not sufficient. H’s own expenses for entertainment/presents is HK$1,000 per month, if that is the case, I do not find that HK$1,000 is unreasonable for two children.
70. Likewise, the expenses for holidays for two children for the sum of HK$1,000 is more than reasonable, as H’s estimated that her daughter’s expenses should be HK$800 per month.
71. I also find that the expenses for clothing/shoes for the sum of HK$1,200 for two children is reasonable as H estimated that her daughter should spend HK$500 per month under this item.
72. As to the remaining items, it was not challenged by H, and I also do not find them being excessive. The expenses for other transport had already been dealt with earlier, and I shall not repeat here again.
73. In the premises and for the reasons articulated above, I have found and would allow as reasonable and/or necessary the following monthly expenses of W and the children.
| 4.1 General Household: |
HK$ |
| Utilities |
$ 1,500 |
| Food |
$ 6,000 |
| Household |
$ 500 |
| Shelter expenses |
$ 500 |
| Sub-total: |
$8,500 |
| 4.2 Personal: |
|
| Meals out of home |
$ 1,500 |
| Transport |
$ 1,800 |
| Clothing/Shoes |
$ 300 |
| Personal grooming |
$ 200 |
| Entertainment/presents |
$ 1,000 |
| Holiday |
$ 800 |
| Medical/Dental |
$ 400 |
| Insurance premium |
$ 900 |
| Sub-total: |
$6,900 |
| 4.3 Children: |
|
| Extra tuition fees |
$ 3,000 |
| School books and stationery |
$ 1,000 |
| Transport to school (including school bus) |
$ 1,000 |
| Medical/Dental |
$ 1,000 |
| Extra-Curricular activities |
$ 1,000 |
| Entertainment/presents |
$ 1,000 |
| Holidays |
$ 1,000 |
| Clothing/shoes |
$ 1,200 |
| Insurance premia |
$ 1,700 |
| Lunches and pocket money |
$ 2,000 |
| Other Transport |
$ 300 |
| Uniform |
$ 200 |
| Sub-total: |
$14,400 |
| Total Monthly Expenses: |
$29,800 |
74. Previously, H had been paying a total sum of HK$24,000 to W for the maintenance of W and the children, and W had been earning at least HK$3,500 per month, and sometimes HK$6,000, and she was able to make both ends meet. I am of the view that W’s total monthly expenses should be HK$29,800.
75. This total sum of HK$29,800 must first be properly apportioned by allotting 2/3 of the household expenses to the children, thus bringing the children total expenses to HK$20,066 (i.e. HK$5,666 + HK$14,400), while W’s would become HK$9,733 (i.e. HK$2,833 + HK$6,900).
76. Since I accept that currently W could only earn HK$3,500 per month and the children’s total expenses should be HK$20,066, W will need to use her savings to support herself if H will not pay her any monthly maintenance thereafter.
77. I am of the view that the savings of W would only be sufficient to serve the purpose of supporting herself for the time being. I see no reason why H should choose to pay a larger portion of the rent when he should ask his girlfriend and his girlfriend’s sister to contribute more to the rent.
Whether the Maintenance Orders should be varied
Change of Circumstance
78. It is part of H’s case that there has been a significant change of circumstance since the maintenance orders, namely reduction of income, moving to a bigger flat and the increase of his expenses.
79. However, by reasons of the aforesaid, I am not prepared to accept that the change of circumstances of H can be a good reason to vary the previous maintenance of the children.
Conclusion
80. In the premise, I will not allow H to vary the maintenance to the children. Both parties had confirmed to me during the trial that they will not claim any costs against the other side.
81. In conclusion, my order is therefore as follows:
(1) Starting from 26th July 2016, the order made by His Honour Judge K.W. Wong dated 30th August 2013 requiring H to pay periodical payments in the sum of HK$4,000 to W per month be varied to nominal maintenance of HK$1 to be paid by H to W per annum, during the joint lives of both parties or until the date of the remarriage of W, whichever is the earlier;
(2) Summons taken out by H dated 26th July 2016 regarding H’s application to vary the maintenance of the children be dismissed; and
(3) No order as to costs which is an order nisi to be
made absolute at the expiration of 14 days.
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David C. W. Cheung
Deputy District Judge
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Both parties appeared in person.
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