NH v. SH nee C

FCMC 11845/2007

[2018] HKFC 41

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11845 OF 2007

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RULING
(Variation of Maintenance)

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Introduction

1.  This is an application by a Petitioner father for a variation of maintenance for the youngest child of the family A, who is now 18 years of age.

The issue

2.  The application identifies, what has become a more prevalent issue in our society as a whole, as young adults often take longer to get on their feet and enter the workforce. It begs the question - when should a paying parent’s obligations towards an adult child come to an end?

3.  In his Notice of Application dated the 9 June 2017 the father put it thus:

That the monthly maintenance payable to the Respondent [wife] for A, currently, HK$21,000 be immediately suspended pending clarification of A future full time education.  If A does not enter into full time education, then the maintenance payment shall be terminated forthwith.  If any future maintenance payments are due, these shall henceforth be paid directly to A.  Further, the educational costs from this day forth for A shall, be jointly shared and bourne equally by the Respondent and the Petitioner.

Background

4.  This application has its roots in highly conflicted proceedings that eventually settled by agreement in 2008. The parties have been in and out of court on a regular basis in the 10 years since that agreement was reached and I have handed down several judgements in relation to the same. In particular reference should be made to the judgments dated the 16 May 2012, 14 January 2014 and 15 May 2017. I have set out the background to the case in those various judgments and I do not intend to repeat the same here. Reference can be made to them as appropriate.  

5.  In the context of this application however it should be noted that the division of capital was on a clean break basis, with the wife receiving most if not all of the assets from the marriage. The husband made further provision for the boys, with suitable acknowledgment being made for the fact that the husband was then on an ex-patriate package which was likely to come to an end at some point. The agreement was made on the assumption that the wife and the boys would relocate to the United Kingdom in due course and the wife would then live in the property that they had owned there and which had become hers as part of the settlement agreement. There was no time frame set around any possible relocation.     

6.  For a variety of reasons that I will not go into here, although the father’s ex-patriate package did come to an end, the mother did not relocate and she has continued to live in Hong Kong up until now. The elder son, L is currently at university in the UK and he is due to graduate this year. The father has paid his university and accommodation fees direct plus a small living allowance. Although this has been a matter of some dispute with the mother asserting that she has had to supplement L’s living costs, nevertheless L has done well and it is hoped that he will be off the pay roll soon.

7.  Unfortunately A has had a number of difficulties which has held him back. He was born on the XX May 1999, so he is currently 18 years of age. Initially he had depressive issues and at one point he refused to go to school. The mother says that he still struggles with depression and that he is currently “skeletal”. He left school with no qualifications and it has since been discovered that he is also dyslexic. Intellectually however he is said to be capable and there is no reason longer term why, with proper support, he should not also go on to some form of higher education.

8.  Consequently, with the mother’s emotional support he has taken 4 IGCSE’s last year which he passed. He had some private tuition in order to assist him with the necessary preparation which the father paid for. He achieved passes in Math, Double Science and Geography. However, he was unable to progress to a BTEC, or a similar program without a pass in English. Consequently, this year he sought to rectify that and I am told that after the hearing he received his IGCSE result in English and that he achieved a B grade.

9.  Consequently A is not studying at present, nor is he working full time. He does some occasional work in a local restaurant and is paid accordingly. This provides him with some pocket money but it is certainly not enough to support him fully or to contribute in any way to the household expenses.

10.  A’s plan now is to leave Hong Kong with his mother probably in July. He hopes to be able to do a foundation course perhaps at one of the universities or possibly at a College of Further Education as a precursor to taking a degree or diploma course in Media and Communications. It is likely that he will live at home next year before going on to college or university the year after.         

11.  Under the terms of the last court order dated the 15 May 2017 the father pays periodical payments for A in the sum of HK$21,000 per month. The order states as follows:

1. Order 2 contained in the court order dated the 16^th May 2012 shall be varied to the extent that the Petitioner do pay periodical payments for the younger child of the family, in the sum of HK$21,000 per month with effect from the 1^st June 2017 until A ceases full time education or further order.

2. There shall be no order as to costs.

12.  The mother is currently working in a local school and she has a short term contract which comes to an end in the first week of July. She says that she cannot afford to pay for everything without the father’s maintenance contribution. She also remains very concerned about A’s emotional and physical state. The intention is to relocate back to the UK in the summer but she acknowledges that she is likely to struggle financially once she is back in the UK. A wishes to leave then, at the same time as the rest of his friendship group.

The issue

13.  There is only one issue namely should the father be obliged to continue to maintain A in these circumstances, given the terms of the order dated the 15 May 2017?

The law

14.  This application is really an application for a variation and consequently it is made pursuant 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 ……”

15.  I have set out the law on variation applications in previous judgments, however for the avoidance of doubt I repeat that it is accepted that in considering a change of circumstances, I may look at the case de novo. In other words, the court is not necessarily fettered by the existence of a previous order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (See Ch 3.131 Jackson’s Matrimonial Finance and Taxation, 7th edition). It is also true that there would normally be a reason for the application to vary or what some might call a “trigger”. In this instance the so called is the fact that A is not currently working or in full time education.

16.  However the court also 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).

The parties’ proposals

The father’s proposals

17.  The father made the following proposal at the hearing and said that he would be prepared to enter into an undertaking as follows:

Undertaking Regarding A

In the event that A secures a place at a college or university, I do undertake as follows:

1) That I will bear the reasonable costs for A college/university course fees until he completes his first degree.

2) In the event that A is required to live away from home for the attendance of college/university then I will pay his reasonable cost of his student accommodation costs to a maximum of £300 per calendar month from the commencement of his college/university course until such time as the completion of item 1 above.

3) In the event that A attends college/university, I will pay him a monthly allowance, direct to his account in the sum of £500 per calendar month from the commencement of his college/university studies until the completion of item 1 above.

The mother’s proposals

18.  The mother for her part asks that the current maintenance order remain in place given that A does intend to go back to full time study. She says that the father should continue to pay her when A is initially living at home, but she will accept the father’s proposed undertaking once A is at college or university and living away from home. She does not accept that the maintenance payments should be suspended or terminated forthwith. 

Discussion

19.  It seems to me that issues of this nature are very fact specific. In this case it is clear that the intention is that A should continue with his education, which has been interrupted for reasons, which in part lay outside of his control. Consequently, although he is not currently in full time education or working full time, nevertheless he intends to return to full time study in September. In such circumstances it seems to me that it would not be either fair or reasonable to simply terminate the maintenance payments for him at this time. The father says that he has fulfilled all of his obligations and that his commitment to pay maintenance for A “until he reaches the age of 18 years or ceases full time education” has been satisfied. This is especially given the undertaking from him (see paragraph 17 above) to provide for A once he starts at college or university. In addition, the father said that he would provide the same support for A if he lives at home and does a one-year foundation course and that in such circumstances A could give the mother his living allowance of some GBP300 per month. The mother disagrees and argues that as A is still in full time education that the maintenance order should remain in place until he goes to university or college. At that stage she said that she would be willing to accept the husband’s undertaking subject to a couple of caveats.

20.  On the premise that A will live at home for at least the next academic year and attend a college in the United Kingdom, it seems to me that although his education has been interrupted, it has not come to an end. Consequently, the order dated the 15 May 2017 shall remain in place until A starts either a degree or similar course at a tertiary institution that requires him to live away from home. At that point in time the payment of HK$21,000 per month shall come to an end and the father’s undertaking as set out in paragraph 17 above shall come into effect.    

Miscellaneous point

21.  For the avoidance of doubt it is also ordered that undertaking O in the original Court order dated the 5 June 2008, which states that:

AND UPON the Petitioner and the Respondent hereby acknowledging and agreeing to each other that the Petitioner will pay all reasonable costs relating to school trips, regular extra-curricular activities, school equipment and school uniforms of the children of the family.

shall also be discharged.

Costs    

22.  Although both parties are representing themselves, the mother asks for her costs of and occasioned by this application. However, given that there are really no legal costs to speak of, I will make an order nisi to be made absolute in 14 days’ time that there be no order as to costs.