TWK v. WKH

FCMC 9452 / 2016

[2022] HKFC 30

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 9452 OF 2016

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J U D G M E N T
(Variation of Order)

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Introduction

1.  This is the trial of the Respondent husband (“H”) application for “amending the periodical maintenance for children” as stated in his notice of application (Form 8) dated 17 June 2020. H’s application and all

his affirmations were written in English although this trial was conducted in Chinese. The Petitioner wife (“W”) opposed H’s application to the fullest extent. W’s affirmations were partly in English and partly in Chinese.

2.  Both parties confirmed that they are conversant in both English and Chinese. Although the trial was conducted in Chinese, I decided that this Judgment be handed down in English. Both parties could, if they so wish, apply to this Court for a certified Chinese translation of this Judgment upon payment of the prescribed charges.

3.  Both parties acted in person for this trial.

Background

4.  The parties married in May 2003. There are 2 children of the family born in 2005 and 2009.

5.  On 28 July 2016, W filed a Petition for divorce relying on the fact of “Unreasonable Behaviour”. H contested the divorce and filed his Answer and Cross Petition. At that time, both parties were legally represented. W’s Petition and H’s Cross Petition were subsequently amended.

6.  By a Consent Order dated 16 February 2017, parties agreed that the divorce suit be proceeded unopposed for the granting of Cross Decrees on the parties’ respective Amended Petition and Amended Cross Petition.

7.  Decree Nisi was somehow granted only upon H’s Cross Petition on 29 June 2017. Apparently this was due to the fact that W’s then solicitors had not filed any application to set down the divorce suit for a Cross Decree to be granted.

8.  On 29 June 2017, the Court granted an order in terms of the Consent Summons dated 13 January 2017 for global settlement of the parties’ respective ancillary reliefs and also including maintenance for the 2 children of the family (“Consent Order”).

The Consent Order

9.  For the purpose of H’s present application, the following paragraphs of the Consent Order are of relevance :-

“1. Subject to the Respondent having complied with paragraphs J and K hereinabove and paragraph 2 hereinbelow and Subject to the First Charge of the Director of Legal Aid the Petitioner do pay to the Director of Legal Aid on behalf of the Respondent and by way of Cashier Order(s) issued by a license bank in Hong Kong a lump sum payment of HK$850,000.00 (“the Lump Sum”) within 21 days after the Petitioner’s receipt of the Decree Absolute of these proceedings from the Court;

2. The Respondent do simultaneously upon receipt of the said Cashier Order(s) for payment of the said sum of HK$850,000 deliver the originals of the Notice of Severance and his Will respectively executed pursuant to paragraphs J and K hereinabove to the Petitioner for her safe keeping custody and use whenever necessary;

3. The Respondent do pay the Petitioner periodical maintenance for the Children of the family until they reach the age of 18 years or cease full-time education respectively, whichever is later, and which be paid to the Petitioner in the following manner :-

(i) The Respondent do pay the Petitioner periodical maintenance at the rate of HK$2,500 per month for each of the Children, totalling, HK$5,000, the first of such payment to take effect and commencing on the 1^st day of the 3^rd month after the Respondent having received the said sum of HK$850,000 from the Petitioner and thereafter on the 1^st day of each and every succeeding month for a period of 12 months;

(ii) Commencing on the 1^st day of the 13^th month after the first 12 months’ payment referred to in Clause 3 (i) hereinabove and thereafter on the 1^st day of each and every succeeding month, the Respondent do pay the Petitioner periodical maintenance at the rate of HK$5,000 per month for each of the Children, totalling, HK$10,000;

(iii) In addition to the periodical payment in Clause 3 (ii) hereinabove, the Respondent do pay the Petitioner additional periodical maintenance being 10% of his income for each of the Children, totalling 20% of his income, PROVIDED that the aggregate amount of the periodical maintenance payable by the Respondent to the Children under Clause 3 (ii) hereinabove and including the said 20% income of the Respondent shall not exceed HK$15,000 and provided further that the periodical maintenance payable under Clause 3 (ii) shall cease upon the Respondent having paid a total sum of HK$500,000 under this Clause; and

(iv) The periodical maintenance for the Children payable by the Respondent to the Petitioner under Clause 3 (i), (ii) and (iii) hereinabove shall be paid by way of direct credit into bank account No.024-296-x-xxxxxx maintained with Hand Seng Bank Limited in the name of the Petitioner re xxxxxxxx.”

H’s application

10.  H in his supporting affirmation of his notice of application (Form 8) dated 17/6/2020 at paragraph 9 said :-

“9. Propose to amend the maintenance for Children

The manufacture direct business have turned from loss to profit in pass few months, and with incomes from working as part time taxi driver in Hong Kong, I propose to pay the maintenance for Children as below.

(a) HK$3,000 or 20% of my total net income each month, which higher, until September 2023. And then 20% of my income or HK$15,000 each month, which lower.

(b) Fulfill the maintenance order for the first 56 months from January 2019, the total maintenance for children should be paid up to HK$500,000 in September 2023, and then 20% of my income or HK$15,000 each month, which lower.”

11.  From reading the above, it is unclear what H was actually seeking. Accordingly, the Court directed H to state clearly and precisely in writing on or before 17 March 2021 his terms of application for “amendment” of the maintenance for the Children as stated in the Consent Order.

12.  On 26 April 2021, H produced a 2-page note in purported compliance with the Court’s direction on his terms of application. It reads, as follows :-

“1. The Respondent do pay the Petitioner or Children at the rate of 10% my total income or HK$7,500 per month for each of children totalling 20% of my income or HK$15,000 for the children, whichever is lower.

2. The first payment took effect and commenced on the 1^st day of 3^rd month after I had received the said sum of HK$850,000 from Petitioner. The last payment (about HK$150,000) received from Petitioner via Legal Aid Department in September 2018, and thus the first payment of the periodical maintenance for the Children took effect and commenced in December 2018.

3. The periodical maintenance for the Children directly credit into the bank account No.024-296-x-xxxxxx maintained with Hang Seng Bank Limited in the name of the Petitioner re xxxxxxx or directly pay to the Children.”

13.  Given the fact that throughout the past years, H had paid only part of the agreed maintenance under Clauses 3 (i) and (ii) of the Consent Order and that W had issued Judgment Summons on all the arrears, it seems that H was now seeking a “wrap-up” variation of the Children’s maintenance (i) to a flat rate of HK$7,500 or 10% of his total income for each Child (whichever is lower); or (ii) HK$15,000 or 20% of his total income for both Children (whichever is lower); (iii) to limit the additional periodical payment under Clause 3 (iii) of the Consent Order not to exceed HK$15,000 for the 2 children; and (iv) all payment ceases upon him having paid a total sum of HK$500,000; and (v) the revised periodical payment to date back to December 2018.

14.  On the other hand, under the Consent Order, W was to pay to H a lump sum of HK$850,000 through the Director of Legal Aid for H whereas H would have to deliver to W the originals of (i) Notice of Severance of the property in Kennedy Town, Hong Kong where he was one of the joint owners with his sister; and (ii) an executed Will in respect of his interest benefit and title in the said property.[1] More importantly and for the present application, the receipt of the HK$850,000 by H would “trigger” H’s liability to pay the periodical payments under paragraphs 3 (i), (ii) and (iii) of the Consent Order.

15.  At this trial, H said he received the sum of HK$850,000 at different stages. He first received a sum of HK$550,000 in January 2018. He then received another sum of HK$150,000 in September 2018 acknowledging that the remaining sum of HK$150,000 had gone towards his liability under the Director of Legal Aid’s First Charge. He then started to pay periodical payments for the 2 children commencing December 2018 (which is 3 months afterwards) in compliance with the Consent Order.

16.  H said out of the lump sum he received, he spent around HK$150,000 to pay off the factory workers in W’s PRC factory and also the outstanding rent. He said W had walked away without paying her factory workers and the rent. Since the licence for the factory belonged to his cousin (“堂細佬”), he had to settle them for W to avoid his cousin getting into trouble.

H’s financial situation

17.  H filed his Form E dated 28 July 2020.

18.  H was the sole proprietor of a company set up in March 2017 in Hong Kong. His company engaged in manufacturing products for on-

line sale. H rented a factory in Huizhou, Mainland China, under his personal name for the use by his company for manufacturing products for sale. The value of machineries and stock in the factory was said to worth

around HK$100,000 in his Form E.

19.  H is now living in a private residential unit in Kennedy Town, Hong Kong, in respect of which he is one of the co-owners with his younger sister. This unit was said to be an inheritance from his late father with no mortgage outstanding. That said, H does not have to pay for his accommodation save and except utilities, management fees and some related expenses. H and his younger sister and his mother lived in this property.

20.  Besides, H is also one of the co-owners together with his mother and younger sister of a property in Zhongshan city, Kwangtung Province, Mainland China, which he estimated to worth HK$1,500,000. In

his Form E, H did not provide further information as to whether the Mainland property was free from mortgage or yielding any rental income.

21.  Apart from being the sole proprietor of his company doing manufacturing business, H is also a part time taxi driver. In his Form E[2], he deposed that there was no income derived from his own company and he was only earning around HK$15,000 a month as a part time taxi driver. There was no proof of his income from being a taxi driver since he received cash for providing taxi service in return.

22.  In his Form E, H deposed to having the following bank accounts :-

-  Hang Seng Bank (296-xxxxxx-668 with balance of HK$3,050;

-  Bank of China (HKD savings) (012-778-x-xxxxxx-4) with balance of HK$320.10;

-  Bank of China (HKD current) (012-788-x-xxxxx-7) with balance HK$3.10;

-  Bank of China (Multi-currency) (012-788-x-xxxxxx-1) with balance worth of HK$49.96;

-  Bank of China (RMB) (012-788-x-xxxxxx-5) with balance worth of HK$4.15;

-  Bank of China (jointly with mother) (012-560-x-xxxxxx-0) with HK$0 for himself (HK$12,816.55 for his mother).

23.  H and his mother jointly held a securities account with the Bank of China. The total value of stocks in this account was HK$544,489.50 as at the date of the Form E. H deposed that he had no interest in those stocks and was merely holding them on trust for his mother[3].

24.  H had outstanding liabilities of HK$74,246, which consists of HK$30,000 of loan from a friend and HK$44,246 of credit card liabilities.

25.  H’s total monthly expenses[4] are as follows :-

“4.1 General

Item	Amount
Rent	N/A
Mortgage instalments	N/A
Utilities (electricity, gas, rates, telephone & water) in HK	HK$ 1,200
Management fees of HK property	HK$    600
Food	HK$ 4,000
Household expenses	HK$ 2,000
Car expenses in HK	N/A
Insurance premia	N/A
Domestic helper(s)	N/A
Other (specify)	HK$ 2,000
Total monthly household expenses	HK$10,000 (HK$5,000, my portion estimated)

4.2 Personal

Item	Amount
Meals out of home	HK$ 3,000
Transport	HK$    200
Clothing / Shoes	HK$    100
Personal grooming (including haircut and cosmetics)	HK$    100
Entertainment / presents	HK$    100
Holiday	HK$        0
Medical / Dental	HK$      50
Tax	HK$        0
Insurance premia	HK$        0
Interim maintenance	HK$        0
Contribution to parents	HK$ 2,000
Dependent family members
Others (specify), credit card	HK$ 2,000
Total monthly personal expenses	HK$ 7,450

4.3 Children

Item	Amount
School fees
Extra tuition fees
School books and stationery
Transport to school (including school bus)
Medical/Dental
Extra Curricular Activities
Entertainment/presents
Holidays
Clothing/Shoes
Insurance premia
Lunches and pocket money
Other Transport
Child-minding fees
Uniform
Others (specify) children’s maintenance	HK$ 3,000
Total monthly expenses for children

Total Monthly Expenses   (4.1 + 4.2 + 4.3)”

HK$15,450

W’s financial situation

26.  W filed her Form E dated 4 August 2020.

27.  W had once been running her business of packaging and had a factory in Zhongshan city, Kwangtung Province, Mainland China. It was W’s case that in 2017, H had sold all the machineries and equipment in the factory without her consent which forced upon the closure of the factory. H had kept all the proceeds of sale to himself.

28.  In April 2020, W turned all her assets into investment of oil futures (ETF) of which she had lost HK$2.3 million within a month.[5]

29.  In her Form E, W deposed that she was still a sole proprietor of a trading company (“L Ind Co”) but had derived no income since 2017.[6]

30.  At part 2.3 of her Form E, W attached a separate sheet and deposed to having the following bank accounts and credit balance :-

	Bank of China	HK$	3,792.73
	Dah Sing Bank	HK$	1,254,595.09
	Hang Seng Bank	HK$	28,020.06
	ICBC	HK$	1,012,623.49
	Chief Securities Ltd	HK$	2,232,870.52
	L Ind Co (HKD in BOC)	HK$	0
	L Ind Co (USD in BOC)	HK$	56,973.52
	Total :	HK$	4,588,875.41

31.  W’s total monthly expenses[7] are as follows :-

“4.1 General

Item	Amount
Rent	HK$ 25,500
Mortgage instalments
Utilities (electricity, gas, rates, telephone & water)	HK$ 5,000
Management fees
Food ($500/day x 4 persons)	HK$ 15,000
Household expenses	HK$ 3,000
Car expenses in HK	HK$ 4,000
Insurance premia
Domestic helper	HK$ 4,630
Other (specify)
Total monthly household expenses	HK$ 57,130

4.2 Personal

Item	Amount
Meals out of home	HK$ 2,000
Transport
Clothing / Shoes	HK$ 300
Personal grooming (including haircut and cosmetics)	HK$ 300
Entertainment / presents/ tuition	HK$ 2,500
Holiday
Medical / Dental
Tax
Insurance premia
Interim maintenance
Contribution to parents
Dependent family members
Others (specify) Monthly donations to church	HK$ 3,000
Total monthly personal expenses	HK$ 8,100

4.3 Children

Item	Amount
School fees ($160 x 2)	HK$ 320
Extra tuition fees	HK$ 7,000
School books and stationery ($3,500 x 2 /12)	HK$ 580
Transport to school (including school bus)	HK$ 800
Medical/Dental	HK$ 200
Extra Curricular Activities ($3,000 x 2)	HK$ 6,000
Entertainment/presents	HK$ 1,000
Holidays (2 trips per year)	HK$ 8,500
Clothing/Shoes	HK$ 500
Insurance premia
Lunches and pocket money	HK$ 7,000
Other Transport
Child-minding fees
Uniform
Others (specify) children’s maintenance
Total monthly expenses for children	HK$ 31,900

Total Monthly Expenses           (4.1 + 4.2 + 4.3)”

HK$  97,130

32.  It was W’s case that with the monthly expenses of around HK$100,000 a month, even with her present assets of around HK$10 million odd dollars, it would drain out before the children reaches the age of 21.[8]

The Law

33.  The jurisdiction of the Court in applications for variation of maintenance order is under section 11 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) which provides :

“(1) Where the court has made an order to which this section applies, then, 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.

(2) ………

(3) ..……..

(4) ……….

(5) ……….

(6) ……….

(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……..”

34.  The approach of the Court has been summarised in the leading case of AEM v. VFM (Variation of Maintenance) [2008] HKFLR 106 :

“The power to vary a periodical payment order was expressly provided for by s.11(1) of the MPPO. The modern approach as required by s.11(7) was for the Court to have regard to all of the circumstances of the case. It was not required to proceed from the starting point of the original order but to look at the matter afresh. An increase in the wealth of the Husband was a relevant factor to be taken into account. At the same time the basis and effect of the original order were 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”

35.  In considering whether there is a change of circumstances, the court may look at the case de novo. In other words, the court is not fettered by the existence of a previous order. Thus, the court may look at the overall situation afresh and make an order based on the parties’ existing financial circumstances and needs. The court has a broad discretion in applications relating to variation.[9] In so doing, the court should also bear in mind that an application to vary the terms of a settlement embodied in a consent order are not to be lightly entertained unless the party seeking to disturb the same can show good and substantial cause.[10] In the case of L v. C[11]where Stock JA said :

“The courts must be astute in this field to guard against the manipulative litigant who seeks to undo an agreement…… and to bear in mind the factors, quite clear now as a result of developed authority, which might go to vitiate such agreement……”

36.  In the case of HCTT v. TYYC[12], Mr. Justice Lam (as he then was) agreed with the judgment Hon Tang VP (as he then was) in the case, citing L v. C and said :

“43. I hasten to add that the courts in the family jurisdiction must be equally astute to guard against unmeritorious applications for variation by litigants who have second thoughts about settlements they have knowingly reached on their own volition.

…………

45. Further, in many instances, one or both parties are acting in person. Lack of legal representation should not be regarded as a vitiating factor in an ordinary sense.

46. Therefore it would go against the modern ethos of family dispute management if the court were to entertain lightly an application to vary the terms of a settlement embodied in a consent order.

47. I think the following approach suggested by Stock JA at para 42 of L v. C [2007] 3HKLRD 819 at p.841, with slight modifications, can equally serve as a good guidance for deciding whether an application for variation of periodical payments in a consent order should be entertained,

“an agreement [on periodical payments] is ‘presumptively [not to be varied without material change of circumstances]’, the burden being on the party seeking to achieve a different [terms] to show good and substantial cause why the compact should not be respected, and ….. the scope for so doing is one directed at an injustice in the circumstances in which the agreement came to be concluded or in clear injustice occasioned to one of the parties by reason of event unforeseen at the time of the agreement were the agreement to be enforced to its letter."

37.  Guided by the above authorities, I now consider H’s application for “amendment/variation” of the Consent Order which, as per his proposed amendments set out in writing on 26/4/2021, relates mainly to the periodical payments for the children.

Discussion

38.  At this trial, H made reference to the time when the ancillary reliefs were settled, and said W had obtained around HK$10 million worth of family assets whilst his share was only around HK$850,000 out of the matrimonial pot as recorded in the Consent Order. There was also allegations that W had, without his acknowledgement, transferred a sum of HK$500,000 from his Bank of China account to herself whilst he was in Queen Mary Hospital in June 2012 and further transferred a sum of HK$3,000,000 from his DBS Bank account to herself in November 2016.[13]

39.  On the other hand, W in her submissions attached to her Form E said H had never supported the family before and after the marriage. It was she who had all along been maintaining the family expenses of around HK$100,000 a month. Knowing the actual situation, H then proposed to her lending him HK$850,000 and that he would repay her in the form of monthly maintenance for the 2 children. W also complained H for selling all the machineries and equipment in her PRC factory and then kept to himself all the net proceeds of sale, forcing upon the closure of the factory and causing her business loss and damages.

40.  Leaving aside the parties’ cross allegations against each other on the factual background leading up to the Consent Order, I would only confine myself to the legal principles and procedural requirement for the present application, which is not the ancillary reliefs trial, but is H’s intended “variation/amendment” of the Consent Order.

41.  At the time of signing the Consent Summons, both H and W were legally represented. It was then that the parties’ ancillary reliefs, including children’s maintenance, were globally resolved in the absence of a trial. For H now to go back to the underlying background and reasons behind as to why he would agree to the terms of Consent Summons, and to suggest any “inequality” or “unfair distribution” of family assets, as grounds or reasons for seeking “variation/amendment” of the Consent Order is bound to fail. Such course is akin to “re-open” their ancillary reliefs which was settled with the benefit of legal advice. This is in complete defiance of the established rule on finality of litigation or the common law principle of res judicata. Likewise, it is also not the opportune time for W to ventilate or express her grievances against H on his lack of responsibilities towards family expenses and other liabilities during the course of their marriage. W’s complaint against H for selling her machineries and equipment in her PRC factory and keeping to himself all the net proceeds of sale plays no part in the Court’s consideration of H’s application. All those complaints would only be of relevance and importance at the ancillary reliefs trial proper which had not taken place in this case. The ancillary reliefs trial was avoided by the parties’ who, with the benefit of legal advice, chose to enter into a compromise for a global settlement.

42.  A consent order might be overturned on appeal, but only upon those well established and restricted grounds, such as fraud, duress and/or misrepresentation. This was the more difficult if the appeal was lodged out of time. A consent order or any part(s) thereof might be varied upon successful proof of a material change of circumstances having taken place after the order was granted. Such change of circumstances should not be reasonably foreseeable or manipulated by the parties covered by the terms of the order. A consent order could be amended provided the amendments do not affect the materiality or the substance of the terms in the order in respect of which consent was given; or vitiates such consent; or that the amendments were necessary to rectify some plain and obvious typographical errors or mistakes caused by inadvertence or oversight.

Variation or Amendment ?

43.  It is worth repeating that H had chosen the phrase “amending” in his Summons dated 171/6/2020 and “proposed amendments” in his latest statement dated 26/4/2021.

44.  As said above[14], I decided that H’s application was a “wrap-up” variation of paragraphs 3(i), (ii) and (iii) of the Consent Order. The rest of the application related to when the revised order was to commence. Thus, this is not an application for “amendment” in whatever sense.

45.  It is trite that in applications for variation of maintenance orders, the Court is entitled to consider the matter de novo and to make an award which is fair and reasonable (see Flavell v. Flavell [1997] 1 FLR 353)). The party seeking variation bears the burden of proof that there was a material change of circumstances which warranted the Court’s assistance to re-consider the terms that parties had agreed.

46.  H in his testimonies said at the time of the Consent Order, he virtually did not have any income. It was only when he started to work as a part time taxi driver, he made a monthly income of around HK$15,000 to HK$18,000. He agreed that he had not supported the children since early 2019.

47.  I am not convinced that H was able to prove his case, on balance of probabilities, that there was a material change in circumstances after the Consent Order affecting his ability to pay periodical maintenance to the children. On his own evidence, he was able to secure income by working as a part time taxi driver after the Consent Order. Any material change in circumstances, in my view, was rather in the opposite since he deposed that he virtually had no income when the Consent Order was granted.

48.  Whilst his lack of documentary proof on his income as a part time taxi driver was noted, there was not a single strand of evidence to support his case of holding 50% of HK$544,489.50 worth of shares on trust for his mother in the jointly held securities account with Bank of China. The same applies to the joint name account at the Bank of China with credit balance of HK$12,816.55. There was not even an Affirmation from his mother to support such a case.[15]

49.  Taking into account his declared monthly expenses of HK$15,450 and his irregular monthly cash income between HK$15,000 and HK$18,000, it remains unexplained as to how he was able to provide periodical maintenance to the children assuming his “wrap-up” variation was successful. Since H’s case was not premised upon his inability to pay maintenance for the children, the only inference that could reasonably be drawn was that he had undisclosed source of income or hidden assets which he could deploy if he so required.

50.  It is W’s case that H owned landed property in Zhongshan, Mainland China, worth around RMB 2.5 to RMB 2.8 million.[16] W also asserted that H should sell the property for paying maintenance to the children until they reach the age of 21.[17] H admitted this in his Form E but to the extent that he owns only 33.3% beneficial interest jointly with his elder and younger sisters.[18] H had not elaborated further as to whether he derived any pecuniary advantage or suffered any loss from his beneficial interest in this landed property.

51.  For W’s asserted claim for the sale of this property, this is not the trial of her ancillary reliefs and no such Order would be granted.

Conclusion

52.  Given careful consideration to H’s case and his evidence for the application, I find he was unable to show there was a material change of circumstances which justify “re-visiting” the terms of the Consent Order.

53.  I decided that H’s application fails. H’s Summons dated 17/6/2020 must be dismissed.

Costs

54.  On the question of costs, I decided that H should bear W’s costs of defending his application which, for the reasons set forth in this Judgment, was devoid of any merits.

55.  Since both parties are unrepresented throughout H’s application and the trial, I decided to proceed with summary assessment of W’s costs.

56.  I decided that the reasonable amount should be HK$1,000.

Order

57.  I now grant the Order as follows :-

(a)  Respondent’s (H’s) Summons dated 17/6/2020 be dismissed; and

(b)  Respondent (H) to pay Petitioner (W) costs of this application, including all costs reserved, summarily assessed at HK$1,000 to be paid forthwith.

58.  This is a costs order nisi, which would become absolute if no application to vary the same was made within 14 days from the date of this Judgment.