WMW v. CYCH

FCMC 3104/2016

[2022] HKFC 185

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 3104 OF 2016

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JUDGMENT

(Preliminary Issue on Judgment Summons)

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Introduction

1.  The petitioner (judgment creditor) (“the wife”) took out a judgment summons and an inter-parte summons on 1 November 2021 for outstanding arrears of child maintenance of the elder daughter of the family (“child CN”) in sum of HK$216,000. The respondent (judgment debtor) (“the husband”) denied his liability to pay. The preliminary issue here is whether the husband is obliged to pay the said child maintenance.

The dispute

2.  The parties settled the ancillary relief issues by way of a consent order dated 18 March 2018 (“the consent order”), the relevant part relating to children maintenance are reproduced as follows:

“3. The Respondent do pay the Petitioner for and on behalf of the children of the family in her care and control namely [child CN, XXX, XXX and XXX] periodic payment at the rate of HK$18,000 per month per child on or before 1^st day of each month in advance commencing on the 1^st April 2018 and payable until such child reach 18 years, finish tertiary education in Hong Kong or enters university overseas, whichever is the later or until further order. For the avoidance of doubt, the said HK$18,000 for each child does not include expenses of major medical issues, arising from illness or accident of the children. With regard to the orthodontics treatment, the Respondent shall pay for the 3^rd child (XXX) and the Petitioner shall pay for the 4^th child (XXX). [emphasis added]

4. Upon each of the said children commencing university overseas, monthly payment under 3) above shall be reduced to HK$6,000 per month on 1^st day of each month in advance commencing on the month of the child starts education overseas, and until such child shall finish his/her first degree of tertiary education overseas or until further order. [emphasis added]”

3.  Parties agreed child CN was enrolled in an overseas university in August 2019, the husband has been paying the wife HK$6,000 per month since this date. The wife accepted the sum accordingly.

4.  After the outbreak of Covid-19 pandemic, there has been changes to child CN, since March 2020 she has to stay within the jurisdiction physically and at the same time attending online classes with the overseas university. During this period, child CN was staying with the wife with access to the husband. The situation had lasted until August 2021, for a substantive period of 18 months (“the online class period”).

5.  The wife says, during the online class period, she was required to pay child CN’s daily expenses including but not limiting to hair treatments in salon and dermatologist charges. The wife is of the view that the husband should pay her child maintenance at $18,000 per month instead of HK$6,000.

6.  The husband sees it differently by maintaining he should pay the wife HK$6,000 once child CN had enrolled in an overseas university. The husband disregarded the wife’s request and has continued to pay the wife HK$6,000 per month.

7.  The wife is unsettled to have received HK$6,000 during the online class period. She took action to go after the husband for the balance of HK$12,000 per month. Premised on paragraph 3 and 4 of the consent order, the wife took out a judgment summons on 1 November 2021 and an inter-parte summons on the same date against the husband for outstanding child maintenance of child CN in sum of HK$216,000. The wife explained the sum of HK$216,000 was the aggregate sum of HK$12,000 x 18 months.

8.  The husband disputes such sum is due and owning because he has paid children maintenance for child CN in accordance with the consent order.

9.  The issue here is whether the husband should pay the wife child maintenance of child CN in sum of HK$18,000 or HK$6,000 per month during the online class period.

Discussion

10.  At time when contemplating the settlement on ancillary relief, child CN was below 18 and was studying in a secondary school. Both parties submitted and I accept the husband agreed to pay the wife HK$18,000 child maintenance for child CN on condition that (i) child CN is still studying in secondary school (below 18); or (ii) when child CN has reached 18 and studying in a tertiary institution in Hong Kong.

11.  Whilst child CN was planning to study abroad around that time, parties then agreed the HK18,000 child maintenance will cease when child CN “enters university overseas”, the husband will pay the wife HK$6,000 thereafter until child CN finishes her 1^st degree of tertiary education overseas.

12.  As expected, child CN was enrolled in an overseas university in August 2019, the husband has been paying HK$6,000 to the wife each month regardless where child CN was physically staying.

13.  Parties also agreed prior to the outbreak of Covid-19 pandemic, when child CN had returned to stay with the wife during school vacation, the wife accepted the children maintenance HK$6,000 all along without protest.

14.  The dispute only arose when online class period came into place. It was unexpectedly longer than any of the school vacation, for reason child CN’s daily expense was on the wife, she came up with an idea that the husband should revert to pay HK$18,000 per month with arguments below.

15.  The wife articulated the precise wordings of paragraph 3 and 4 of the consent order, being “enters university overseas” and “commencing university/college overseas”, shall be interpreted as, on condition that child CN was physically attending classes in a college or university outside the jurisdiction. During Covid-19 days when child CN was staying with her in town, paragraph 4 of the consent order, being HK$6,000, does not apply. The husband shall resume paying child CN’s children maintenance at HK$18,000.

16.  Obviously, the parties agreed it was never envisaged by them that child CN would returned in town during Covid-19 pandemic to attend online classes with an overseas university. The consent order did not cover this situation.

17.  I disagree with the wife the operation clause in paragraph 3 “enters university overseas” means the child is physically attending a university outside the jurisdiction. I find the phrase “enters university overseas” simply means enrolment in an overseas university. When child CN has been enrolled in an overseas university, payment of children HK$18,000 shall cease and HK$6,000 would come into play.

18.  Moreover, paragraph 3 and 4 of the consent order did not explicitly state child CN was required to attend a university or college outside the jurisdiction physically.

19.  I am driven to the conclusion that the wife’s argument is bound to fail.

20.  At the hearing, both parties submitted on how they had come up with the figure of HK$18,000 and HK$6,000 which I find irrelevant.

21.  I accept the husband’s argument. I make a finding that once child CN was enrolled in an overseas university the husband is only liable to pay the wife child maintenance at HK$6,000 to until child CN finishes her 1^st degree of tertiary education overseas. The rate of maintenance remains the same during online class period. I am given to understand the husband had duly paid such sum promptly.

22.  In other words, no outstanding child maintenance of child CN is due and owing to the wife.

23.  Costs shall follow the event, the wife shall pay the husband’s costs. I am aware both parties are acting in person for three call over hearings and one substantive argument hearing, I summarily assessed the costs of the husband at HK$1,000 to be paid by the wife forthwith.

Conclusion

24.  With reason of the foregoing, I make the following orders:

(i)  The Petitioner’s (Judgment Creditor’s) Judgment Summons and Inter-parte summons filed on 1^st November 2021 be dismissed;

(ii)  The Petitioner (Judgment Creditor) do pay the Respondent’s (Judgment Debtor’s) costs of both Judgment Summons and Inter-parte summons filed on 1^st November 2021, be summarily assessed at HK$1,000 forthwith.