HMC v. MSC

FCMP 222 / 2016

[2018] HKFC 86

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 222 OF 2016

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

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Introduction

1.  There are two applications currently before the court namely the originating summons filed by the Applicant mother for confirmation of a Provisional Maintenance Order dated the 18 February 2015 made by the Family Court in Manchester, United Kingdom. This ordered that the father shall pay the sum of GBP750 per month for the benefit of the younger child of the family AIRC, a girl born on the XX June 1999, until she reached the age of 17 years or ceases full time education. The order is backdated to the 3 November 2014. The mother’s originating summons in Hong Kong is dated the 25 October 2016. On the 6 December 2016 the father also filed a summons seeking an order that the provisional maintenance award be reduced to GBP200 or approximately HK$2,000 per month. On the 20 April 2017 the father asked that this be reduced further by one half to GBP100 per month.

2.  The mother is represented by the Department of Justice for her original confirmation application, but not in relation to the father’s application to vary. Consequently, it was decided that the case would be divided into two parts, with the application to vary being dealt with first. Thus the father’s summons to vary was set down for trial with two half days reserved, to be conducted with the assistance of a video link in the Family Court in Hong Kong. Both parties were unrepresented, although the mother did have the assistance of a McKenzie Friend.  

Issues

3.  At this stage then there is only one issue to be determined namely whether or not the provisional maintenance order should be upheld or varied down in some way.

Background to the marriage

4.  According to the papers filed it appears that the parties married on the XX March 1996 and had two daughters, the first of whom was born prior to the marriage on the XX January 1996. She is now aged 22 years and is not part of the present application. The second child, also a daughter, AIRC was born on the XX June 1999. I was told during the hearing that AIRC was no longer in full time education and that she was looking for a job. There was also a possibility that she might return to college or university.   

5.  It seems that the marriage was not a happy one. The mother initiated divorce proceedings based on the father’s unreasonable behaviour and the decree absolute was granted on the 13 March 2003. The parties reached agreement with respect to finances and a consent order dated July 2003 records a clean break between the parties, with the mother paying the father a lump sum of GBP13,000 and the father subsequently transferring his share of the former matrimonial home to her.

6.  The issue of maintenance for the children was dealt with separately and eventually the Child Support Agency became involved. According to the mother the father was originally ordered to pay GBP471 per month for both children and these payments began in 2003. These continued until 2010 when there was an interruption in payments following a change of job for the father. It seems that his contribution was then reassessed at GBP986 per month. It is the father’s case that this was too high. The mother is not sure – but in any event payments stopped in November 2013. It is the husband’s case that he was told that there had been an overpayment and that the case was then closed. He understood that he was no longer required to pay any maintenance because of this. As indicated above the mother applied for a Provisional Maintenance order about a year later in November 2014, once she had ascertained the whereabouts of the father.

7.  The Justice’s set out the reasons for their decision for the Provisional Maintenance order in a document entitled “Justices’ Reasons” dated the 18 February 2015. They concluded as follows:

Decision

We have considered and applied the provisions of paragraph 4 of the schedule 1 of the Children Act 1989.

Taking each point in turn.

a] The income earning capacity property and any other financial circumstances of each party now, or in the foreseeable future

Mrs. C [the mother] has works a Human Resources Case worker.  She has a net monthly income of £1,569 per month, which is unlikely to change significantly in the foreseeable future.  In addition she receives a combined contribution to the household income from her elder daughter and partner of £675 per month.  She also receives £82 in government child benefit.  Her total income is therefore £2,326.

The respondent, Mr. C’s income is not known.  However we are satisfied that it is likely to be significantly more than the applicant’s.  We note that when the Child Support Agency calculated the child maintenance in April 2011 it was £1,127 per week. It appears he was able to afford that amount.

Mrs. C owns her own house, which is valued at £150,000; however it is subject to a mortgage.  She has a relatively small amount in savings of £742, some of which is jointly owned by her partner.

We do not know whether Mr. C owns any property, or has any other financial resources.

b] The financial needs, obligations and responsibilities that each party has or is likely to have in the future.

Mrs. C has total household outgoings of £1,794 per month.  She also owes £1,500 on a credit card.  We believe there are various other payments that are likely to arise which she has not provided for such as holidays, car and house repairs and decoration.  We believe her lifestyle cannot in any way be described as extravagant.

We are not aware of Mr. C’s outgoings

c] The financial needs of the child.

Given A’ age, her financial needs are being met by Mrs. C.  She is entirely dependent on her for her maintenance. The assessment made by The UK Child Support Agency based on Mr. C’s previous income would have been £732 per month.  We accept Mrs. C’s calculations that the CSA would have taken into account for one child, 15% of Mr. C’s income.

d] The income, earning capacity [if any], property and any other financial resources of the child.

Whilst A continues in further education she has a very limited earning capacity.  Any income will only come from part time work and is likely to be at minimum wage levels.  She has no other property or financial resources.

e] Any physical or mental disability of the child

A is a healthy girl with no special needs.

f] The manner in which the child was being, or was expected to be educated or trained.

A attends a state school. We accept Mrs. C’s evidence that she will be continuing in full time education after the school leaving age.  We assume that the father would support her continued education.

Having considered and weighed all the factors above and noting that the likely CSA calculation would have been £732 in 2011, we believe the appropriate provisional order to be £750 per month.

Order

We make a provisional order requiring M S C to pay to H M C £750 per month for the benefit of his daughter, A I R C [date of birth XX.06.99] until she attains the age of 17 or until completion of full time education.  The order is to be backdated to 3^rd November 2014.

8.  In so far as the litigation background is concerned it is also of note that there was a full trial in the UK over contact with each party making a series of very damaging allegations against the other. The mother was totally vindicated in this respect however and a judgment was handed down on the 1 April 2005 which states inter alia as follows:

18) Until such time as the applicant has shown a recognition of his unacceptable behaviour towards the respondent, his contact with the children must be restricted to letters and cards which she passes on to them, censored if necessary, although that in itself is likely to create further problems.  He may apply in the future for direct contact, but only after showing satisfactorily that he has taken the advice given by Mr. L and has undertaken some form of therapy with a positive result.

It seems that the father did not undertake any form of therapy and has had only very limited contact with the girls since.

The father’s case

9.  As a general point it is of note that the father has relied on a number of factors that are not relevant when considering the current application. I do not intend to comment on most of them.

10.  It is the father’s case that he should only be required to contribute towards AIRC’s direct expenses. He objects to contributing towards the general household expenses as he sees this as somehow providing an indirect benefit to the mother. He also objects to contributing towards the mother’s so called “extravagant” lifestyle.

11.  The father also maintains that he originally over paid when the maintenance was reassessed in 2011 and that this should also be taken into account.

The mother’s case

12.  The mother for her part is firmly of the view that the primary responsibility for maintaining the two children of the family lay with both of the parties and that the responsibility for this should not have been hers alone. In her affirmation dated the 13 February 2017 she states as follows:

A C will become 18 years of age and complete full time education in June of this year.  In line with the Provisional Order I would not expect the Respondent to be responsible for maintenance payments beyond this date.

It is now over three years since the Respondent made a contribution towards the upbringing of his children and were it not for information I received from other sources, it is unlikely to this day that I would have been able to establish where he was living and hence I would have been unable to have made this application.  I have seen nothing in the Respondent’s behaviour since he left the UK that demonstrates any desire to support his children.  I am disappointed that he has felt the need to focus his statement to the court on the breakdown of our relationship and his perception of my behaviour, the majority of which has already been aired in court and dismissed.  I would have hoped that he might have taken the opportunity instead to respond to the request to maintain his younger daughter at least and to offer some positive suggestions to the court as to how this could be achieved. 

Whilst the last three years have not been easy, I consider myself fortunate to have had a new partner and close family who have been kind enough to assist me financially. However I am sure that the court would agree that the responsibility to maintain children should fall to both parents, and it is for this is the reason that I have made this application.

13.  The mother maintains that the original figure of GBP750 per month should be upheld and enforced retrospectively until AIRC completed her full time education.

The Law

14.  The mother’s original application that the Provisional Maintenance Order be confirmed is made pursuant to sections 8 of the Maintenance Orders (Reciprocal Enforcement) Ordinance Cap 188. The father’s application to vary is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap. 192. This states as follows:

“(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

15.  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.

What is a reasonable figure for AIRC’s maintenance?

16.  In Hong Kong the Family Court would have expected the father to contribute towards the general household expenses of the mother whilst AIRC was living with her and in full time education. The remainder, being costs associated directly with AIRC should then be split between the husband and wife in an equitable manner. On occasion this may be on a 50:50 basis – or alternatively it can be a percentage based on the relative earnings of each party, or sometimes simply a reasonable amount in the circumstances.

17.  In this case both the mother and the father have re partnered. According to the mother’s Form E dated the 13 February 2017 she was then earning in the region of just under GBP1,600 per month and her partner contributed a further GBP650 to the household expenses. AIRC was living at home and the elder child was staying there during university vacations. She sets out her general outgoings as follows:

Part 4 Current Monthly Expenses

4.1    General

Item	Amount
Rent	-
Mortgage instalments	£267
Utilities (electricity, gas, rates, telephone & water)	£368.83
Management fees	-
Food	£450
Household expenses	£15
Car expenses	£240
Insurance premia	£92
Domestic helper(s)	-
Other (specify)	-
Total monthly household expenses	£1,432.83

18.  In so far as these general expenses are concerned, it seems to me that prima facie both parents should contribute towards AIRC’s share of these expenses, save for the mortgage instalment, which is more of a capital investment. The general expenses minus the mortgage instalment amounts to approximately GBP1,165 per month. If one were to divide that by 3 (i.e. 1/3 for the mother, her partner and AIRC) that would equate to approximately GBP390 each (rounded up). In addition, the mother has set out AIRC’s direct expenses as follows:

4.3    Children

Item	Amount
School fees	-
Extra tuition fees	-
School books and stationery	£10
Transport to school (including school bus)	£43
Medical / Dental	-
Extra Curricular Activities	£10
Entertainment / presents	£20
Holidays	£125
Clothing / Shoes	£40
Insurance premia	£7
Lunches and pocket money	£60
Other Transport	-
Child-minding fees	-
Uniform	-
Other (specify) mobile phone	£10
Total monthly expenses for children	£325

How much should each parent contribute?

19.  There was much discussion about the father’s income during the trial. The father originally stated that his current income in Hong Kong inclusive of a housing allowance of HK$32,300 per month was HK$139,300 per month or GBP13,255 per month. Whereas the wife is earning in the region of GBP1,600 per month. This however did not include a number of significant bonuses that the father had not disclosed previously. For example, the father received two bonuses in 2016 – one for HK$591,995 and another for HK$513,740. These are significant sums that were earned during the period of time when AIRC was still in full time education.  

20.  I accept that in many respects comparing these two incomes is rather like comparing apples with oranges, and that arguably the cost of living is much higher in Hong Kong when compared to that in the North of England. However, it is clear from the father’s list of outgoings that he currently enjoys a high standard of living which includes spending HK$15,000 per month on food for his household of two plus HK$20,000 per month on meals out of the home. In such circumstances I have no doubt that he should have been able to make a proper financial contribution towards his daughter’s expenses during the period that she was still a minor and in full time education. In broad terms the mother earns a fraction of the father’s income and has clearly been struggling to make ends meet. For the record I also do not accept that her lifestyle could be described as being in any way extravagant.  

21.  But, having said that, even if the father was asked to meet all of AIRC’s expenses on this calculation it would still not come up to GBP750 per month originally ordered by the court in Manchester (i.e. GBP390 + GBP325 = 715). All in all, and given the circumstances, it seems to me that it would be appropriate for the father to contribute towards 90% of AIRC’s share of the general expenses – i.e. 90% x GBP390 = GBP350 (rounded down) plus 90% of her actual expenses i.e. 90% x GBP325 = GBP295 rounded up. In total then the father shall contribute GBP645 per month towards AIRC’s expenses to be backdated to the 3 November 2014 until such time as she reached the age of 17 years or ceased full time education. I would ask that the representative from the Department of Justice calculate this sum prior to the return hearing date.

Credibility

22.  Although as I have said many of the issues raised by the father had very little to do with his application for a variation of maintenance, it is now clear that he had failed to make full and frank disclosure of his financial situation prior to the hearing. This was unacceptable and did little to assist the process.

Costs

23.  Consequently, I can see no reason why costs should not follow the event. The father says that the wife made no attempt to arbitrate. By the same token it seems that the father made no attempt to settle this matter in a sensible manner. The mother asks (I think) that the costs be assessed on a summary basis. Again I would suggest that this is a matter that the lawyer from the Department of Justice might properly assist her with. Consequently, the issue of costs shall also be adjourned to the next hearing.

24.  The mother’s originating summons dated the 25 October 2016 shall be adjourned to the 30 August 2018 at 9:30 am. The Respondent shall personally attend that hearing.