LAW Sun v. SHUM Yee-wang

IN THE COURT OF APPEAL

1994, No. 191
(Civil)

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J U D G M E N T

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Liu JA:

1. The parties married in China in 1987. In 1989, a girl, the child of a family was born in China. In 1990, the petitioner came to Hong Kong as an immigrant.

2. Petition for divorce was filed by the appellant in 1991. In February 1992, a Decree Nisi was obtained against the respondent on the ground of behaviour. In April 1992, having made the Decree Judge Rattigan ordered $1,500 per month for the maintenance of the child. The ordered maintenance was allowed to fall into arrear, and the petitioner went before Judge Gill on a judgment summons.

3. In April 1994, Judge Gill made an order pursuant to Rule 87(5) of the Matrimonial Causes Rules. Judge Gill found, inter alia, that the respondent had the means to satisfy the arrears. He allowed the respondent to pay up the arrears by instalments.

4. In July 1994, by a summons the respondent applied to Deputy Judge Eccleton for variation of the maintenance awarded by Judge Rattigan to the child of the family. The Deputy Judge reduced the $1,500 monthly maintenance to $750. From this decision the appellant now appeals. The respondent is not here today and he faces a warrant of arrest which has yet to be successfully executed.

5. Interesting arguments have been advanced to us. I have, myself, noted the term "variation order" in the Interpretation Rule, Rule 2 of the Matrimonial Causes Rules which directs me to section 11 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. I have also read section 5(1), section 5(2)(a) of the same Ordinance as well as its section 11(1) and (2)(c). Finally, I have taken account of section 11(7) together with the matters specified in section 7(2) and the considerations set out in section 7(1)(a) and (b) of the Matrimonial Proceedings and Property Ordinance. It would seem that a judgment summons issued under Rule 87(2) as to, inter alia, a party's means of satisfying a maintenance order is a procedure distinct from that for varying the amount of the very ordered maintenance.

6. Speaking for myself, I would be reluctant to reject Miss Mok's contention that the variation summons was properly entertained by Deputy Judge Eccleton if that issue had to be resolved here today. However, this appeal falls to be decided on Grounds 1 and 6 of the Notice of Appeal. In essence, in these grounds the appellant complains that jurisdiction aside the Deputy Judge was wrong in reducing the maintenance to the child of the family from $1,500 per month to $750 per month.

7. The Deputy Judge came to the conclusion that there was a change of circumstances. Obviously, there must have been since April 1992. From the order made by Judge Rattigan in 1992 to the summons for variation which came before Deputy Judge Eccleton in July 1994, there was a lapse of some two years and three months. But the decision of the Deputy Judge did not elaborate as to how the change of circumstances could justify the variation from $1,500 to $750.

8. The evidence of the respondent suffers from internal inconsistencies, in particular his expenditure was given as being in excess of the combined income of the new family. Yet the range of his debts so far incurred had merely run into some $3,000. The respondent worked in a fast food establishment. He earned, at the time, $7,600 per month. His new wife then earned $2,000 to $3,000 a month. The family income was hovering slightly above or just below $10,000 a month. The appellant was an electronic factory worker. She was then making some $4,000 per month. In the affirmation of the respondent, he set out his family expenditure, out of which $260 was put down as telephone bills for calls to his new mother-in-law in China. The new family comprises two daughters of the new wife and a boy from the union. The respondent also set aside $620 per month for those children's pocket money. There was a further item of $1,760 for their entertainment including toys. From my calculation, the total comes to $2,640. To me, it is inconceivable that with sums totaling $2,640 not earmarked for daily necessaries, what must be the basic needs of the child of the family in the sum of $1,500 per month, could not be spared from this aggregated amount of $2,640. It is not to be forgotten that the respondent's primary responsibility is towards the child of the family. The question of maintenance had evidently not been rationally examined. The change of circumstances leaving the respondent with spare cash of $2,640 could hardly be, in my view, enough justification for making a variation order from $1,500 down to $750 per month.

9. On the material before the Deputy Judge, there was no sufficient evidence for him to conclude that the change of circumstances would warrant a variation. For the reasons I have given, I would allow the appeal.

Bokhary JA:

10. I, too, would allow this appeal.

11. The respondent had been ordered to make monthly payments in a certain amount for the maintenance of his child by his first wife. He then applied for an order decreasing that amount.

12. It was for him to put before the court material which justified such a course. But he failed to do so. For the material which he placed before the court was palpably incomplete and self-contradictory in important respects. And no clear picture emerged from such material.

Nazareth VP:

13. We are told by Miss Mok that Family Court judges have to dispose of judgment summonses and even applications for variation of periodical payments in virtually a matter of minutes. The hearing of the application for this particular variation order was estimated at ten minutes. It is a credit to those judges then that so few judgments go wrong and it is no discredit that on the odd occasion one does go wrong; when it does, it has to be remedied. But Miss Mok submits that here there was no application on behalf of the appellant wife for cross-examination of the husband, or for better particulars, nor indeed for an adjournment. These considerations might be weighty in ordinary cases, but here the husband's affidavit in support of his application for variation on its face reveals a position that in material respects can only be described as most unsatisfactory. I will not detail those respects. They have been touched upon by Liu JA. They reveal on the face of that affidavit an allocation of income by the husband to his new family, in particular the children of that family, that is disproportionately generous to that allowed to the child of the first marriage, and that, as has been explained by Liu JA, was reduced. As I say it reveals a position that is plainly indefensible on the husband's own affidavit. There are items of expenditure that in the circumstances cry out so loudly for an explanation or an investigation that it is not an answer to say that no application of the sort mentioned was made. They are such as to deny the judge any credible basis upon which to vary the original order downwards. I agree entirely that the appeal must be allowed and that the application dismissed.

14. Accordingly, the order below will be set aside and the application dismissed.

15. We order in response to the agreed costs order sought, that there be no order for costs save that the parties' own costs be taxed in accordance with the Legal Aid Regulations.