LCC v. JPG

FCMP 4 and 244 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 4 and 244 OF 2012

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J U D G M E N T
(Variation of Maintenance and
Reciprocal Enforcement of Maintenance)

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Introduction

1. There are two applications that require adjudication namely an application by the applicant wife to confirm an order originally obtained in the United Kingdom and an application by the respondent husband to vary that order. The matters were heard together but were dealt with under separate case numbers.  

Background

2. This matter first came before me by virtue of the applicant wife’s Originating Summons to confirm a provisional order varying a periodical payments order dated the 26 May 2010 from Fylde Coast and North Lancashire Family Panel Family Proceedings Court. The wife’s original application was made under the Maintenance Orders (Reciprocal Enforcement) Ordinance Cap 188 and was dated the 6 January 2012. She sought to commence confirmation proceedings and to enforce the order referred to above.

3. The order was in relation to the maintenance payments for the two relevant children of the family, namely AMG, a girl born in February 1992 and DJG, a boy born in March 1994. The daughter is now 21 years of age and in full time employment and the son is 19 and completing his secondary school education this year. He hopes to go to university in October.

4. The order that the wife sought to vary was an original order dated the 10 December 2008 from Lancaster Magistrate’s Court in the United Kingdom. The original order stated that the husband was to pay the wife GBP155.57 per week plus the arrears of maintenance in the sum of GBP500 per month for the benefit of the two children of the family referred to above. At that stage there were arrears in the sum of GBP13, 765.03. The elder daughter would have been nearly 17 years of age at that stage and the son 14.  The wife sought to extend the order for the daughter until August 2010 when she would have been 18 years old and would presumably have just finished her A ‘levels. She asked that the son’s maintenance be increased to GBP100 per week until he ceased full time education. This order is confirmed in the Forum of Findings of Fact and Reasons for adjudication dated the 26 May 2010 from the Fylde Coast and North Lancashire Family Proceedings Court as follows:

Decision: The order of £77.78 weekly for A shall continue until 31/8/2010.  The order for D shall be at the rate of £100 weekly and shall continue until 31/8/2012 or until such date as he finishes full time education, whichever is the later.

5. On the 5 December 2012 the wife issued a judgment summons seeking to enforce payment of the arrears in maintenance in the total sum of GBP33,390.25. The judgment summons was adjourned on the 24 January 2013 pending the outcome of these two applications. On the 30 January 2013 the husband issued a summons seeking the following:

1.          I would like to apply to the courts for a variation to the order for maintenance as proposed by the applicant and I request that the registered order (FCMP 244 of 2012) be dismissed as it is defective.  The sums as stated in the order for arrears are incorrect and my circumstances since the order was issued on the 10 Dec 2008 have changed.  I am no longer employed and therefore I unable to make a financial settlement.

2.          Additionally, I request the Court to deny the Order Varying for Periodical Payments (Exhibit CLHN-3). The applicant has requested an increase in maintenance that equates to 28.55%. The applicant has been in receipt of state benefits and the applicant’s partner has been in receipt of ‘cash in hand’ for employment and therefore this increase is just a means to profit from having a child in their care, whilst I have had nil income during the same period.

6. On the 18 April 2013, the matter was heard in the Technology Court. Both parties appeared in person – the husband in Hong Kong and the wife by video link from the United Kingdom.

Issues

7. The only issue to be determined at this stage is whether or not the maintenance order of the 26 May 2010 should be confirmed or varied? Other issues pertaining to enforcement will need to be dealt with at a later stage.

The wife’s case

8. The wife’s case, in essence, is that the husband has done everything in his power to avoid payment of maintenance and that he will go to extraordinary lengths to ensure that payment is avoided. She asks that the husband’s application be dismissed and that he be ordered to continue to pay the same level of maintenance as had been ordered previously. She questions the husband’s earning capacity and his case that he cannot now afford to pay in any event. In so far as enforcement is concerned, the wife asks that he repay what is owed. This aspect of the case may need to be dealt with at a later date.  

The husband’s case 

9. The husband’s case seems to be that the wife has been obstructive with respect to access. For the avoidance of doubt I would reiterate that the issue of financial support for children is completely separate from the issue of contact and/or the relationship between a parent and his or her children. The husband also takes issue with the alleged arrears outstanding. He claims to have been unemployed since 10 April 2010 and on that basis maintains that he should not be required to pay maintenance for the children from that time. He also appears to take the view that the wife is benefiting directly herself from these payments.   

The Law

10. The husband’s application for a variation is made pursuant to sections 8 and 10 of the Maintenance Orders (Reciprocal Enforcement) Ordinance Cap 188 and section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap. 192.

11. In the case of K v L (Reciprocal enforcement of maintenance) [2008] HKFLR 207 the issue of the appropriate procedure to be adopted in cases like this was discussed.  DJ KW Wong, as he then was, sets this out at paragraphs 24 and 25 of the judgment:

24. The Ordinance provides, inter alia, that before a maintenance order made in a reciprocating country can be enforced in Hong Kong, it has to be registered by the Registrar with the District Court.  Once the order is registered, the order may be enforced in Hong Kong as if it had been made by the District Court and as if this Court had had jurisdiction to make it; and proceedings for or with respect to its enforcement may be taken accordingly: see Section 9 of the Ordinance.

25. The Ordinance also provides for a class of provisional orders.  A provisional order is an order that has no effect and cannot be enforced unless and until it has first been confirmed by a court in a country where the person against whom the order is made resides: see section 2 of the Ordinance.  The District Court is empowered to confirm overseas provisional order for the purpose of their enforcement here: see section 8 of the Ordinance.  The UK Provisional Order is one of such provisional orders requiring confirmation by the District Court before it can be registered and enforced against the Respondent.  The Registrar is the prescribed officer under the Ordinance to apply to the District Court for confirmation of provisional orders.

He adds at paragraph 39 that:

39. In my judgment, the above construction also applies to section 8(4) of the Ordinance.  Accordingly, this Court has a wide discretion in confirming a provisional order.  This court shall apply the same yardstick, with regard to the principles and procedure applicable to maintenance applications made in Hong Kong, to confirmation application as if this Court is hearing an application made in Hong Kong against the Respondent for a maintenance order. I shall bear the above principles in mind whenever they are applicable in the determination this application.

12. In this instance the wife asks me to confirm the order and the husband asks that it be varied. In considering this reference should also be made 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 ……”

Discussion

13. I must now turn to consider the issue, the law and the parties evidence as set out in their affirmations, their Form E’s and as given orally by them during the hearing.  

Should the maintenance order of the 26 May 2010 be confirmed or varied? 

The husband’s ability to pay 

14. According to the husband’s Form E dated the 13 June 2012 and his affidavit of the 30 June 2012 he was previously employed with a well known bank earning in the region of HK$62,500 per month. He says that he has been unemployed since 10 April 2010 and on that basis argues that he should not be required to pay maintenance for the children from that time. The difficulty with that argument is that the husband has admitted to having other financial resources including stock which could also have been utilized for the purpose of the children’s maintenance. If he used these other financial resources in order to maintain himself then he should also have made his children a priority and have paid maintenance for them in addition. For example his bank account as at July 2011 showed a balance of just over HK$570,000. As at May 2012 the balance had dropped to just over HK$360,000. As at the same date his stock port folio stood at just under HK$265,000. It stands to reason that the balance in these accounts would have been higher in April 2010.

15. In so far as the daughter is concerned the wife is only asking for maintenance for her until the 31 August 2010. Up until the 10 April 2010 the husband, even on his own evidence, was in gainful employment. Notwithstanding that he did not make full payment for his daughter. He should have done so. I do not accept that he ceased making payment because he had to borrow money upon his arrival in Hong Kong in April 2008, in order to rent an apartment. Nor do I accept that his outgoings were such that the Child Support Agency (CSA) would have reduced his obligations. The husband was not obliged to rent an apartment for HK$30,000 per month as claimed. There are many other cheaper options which would have enabled him to make a proper financial contribution for his children. From the evidence filed it seems that the husband started making a voluntary payment to the CSA of GBP500 per month following representations being made by the wife to the Human Resources Department of the husband’s employer. Payment began in September 2008 and ceased again the following year.

16. From September 2010 the daughter lived with the husband in Hong Kong, together with his new partner and obtained work experience as an intern. I accept that the husband supported her in part during this period. However that does not detract from the husband’s obligations up until that time. Since the daughter’s return to the United Kingdom she has been in full time employment in the hospitality business. She did not go to university.

17. In conclusion it seems to me that the husband had the means to pay up for the children’s maintenance until April 2010 from his income and for the following four months until August 2010, from his other financial resources. 

18. In contrast to the daughter, the younger son, who is now 19 years of age does wish to go onto university. He wishes to read philosophy. He suffers from ill health namely atopic asthma and as a consequence will not finish his A ‘levels until the end of this academic year. He is presently living with a teacher from school during term time. It appears that his relationship with his father has completely broken down and that he no longer has any contact with him.   

19. On the same premise as the daughter it seems to me that the husband did have the means to pay up until April 2010 from his income and for the following four months until August 2010, from his other financial resources.  

20. In conclusion therefore I will confirm the court order dated the 26 May 2010 in that the husband shall pay maintenance for the daughter in the sum of GBP77.78 per week until the 31 August 2010 whereupon his financial obligations towards his daughter will come to an end. In so far as the son is concerned the husband shall also pay maintenance in the sum of GBP100 per week from the 26 May 2010 until the son finishes his full time education.

21. I have considered whether or not there are grounds here to vary the maintenance payments. I think not. These sums are fairly minimal and are towards the lower end of the spectrum when it comes to maintenance payments for children. In considering this issue I have also taken into account the wife’s Form E dated the 23 April 2012. I accept that she has no assets to speak of and that she is living a hand to mouth existence. She is presently relying on state benefits. Her home has been repossessed. She says, and I believe her, that the husband will need to assist the son through university as she is simply not in a position to do so.   The wife has confirmed that the son will also need to apply for a government loan to cover his tuition fees and living expenses. He may also need to work part time. 

22. Consequently there will be no variation or revocation of the maintenance order under s.10 Maintenance Orders (Reciprocal Enforcement) Ordinance, Cap 188 and s .11 Matrimonial Proceedings and Property Ordinance, Cap. 192. The husband’s Notice of Application to vary dated the 30 January 2013 is dismissed. The order dated the 26 May 2010 from the Fylde Coast and North Lancashire Family proceedings Court is confirmed. The husband shall pay the wife’s costs of and incidental to these applications to be taxed if not agreed on a party and party basis. 

23. One last point – the parties are not in agreement with respect to how much money is now due and owing to the wife by way of outstanding arrears. It seems to me that in order to obtain clarity on this point an update should be obtained from the Child Support Agency. To that end I will give leave for a copy of this judgment to be sent to them. From the records it seems that the reference number for this case with the CSA is XXXXXXXXXXXX.