BL v. SJY

FCMC 7831/2008

[2019] HKFC 271

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 7831 OF 2008

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J U D G M E N T

(Variation of maintenance)

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Introduction

1.  This is the second application by the respondent husband for a decrease of maintenance for the child of the family S, a girl who was born on the XX August 2007, from HK$6,500 per month down to HK$5,000 per month. He does not propose a general decrease down. The summons was drafted by lawyers and he was legally represented at the time. The application is in exactly the same terms as his previous summons in 2015 and reference should be made to the judgment dated the 19 January 2016 in that respect.

2.  I also attach a copy of the last judgment in this extraordinary piece of litigation, dated the 5 October 2016, which was in relation to the wife’s 3rd, 4^th, 5^th and 6^th judgment summonses. In particular reference should be made to paragraphs 2 and 3 where I summarize the situation from the court’s perspective. It is of note that there are further judgment summonses in the wings. It is also of note that although the husband has consistently said that he is willing to pay HK$5,000 per month for S’s maintenance, that historically this has not always been the case.

Updated background

3.  S, the child of the family, who remains the central player in the ongoing war between her parents, is now 12 years old. The wife has just turned 50. She does not work and is a full time housewife. She relies on the maintenance from the husband and presumably the original lump sum that she received on the divorce and her other investments. (reference is made to the buying of stock in her Answers to the Respondent’s Questionnaire dated the 29 January 2019). The husband for his part is now 68 years old. He has remarried and his new wife is a social worker. On his case his previous work as a part time paragliding instructor has come to an end and he has no other sources of income. The wife says that she relies also on a financial contribution from her family.

4.  As indicated previously, at this stage of the process I do not find either party to be wholly credible, although the wife is rather more credible than the husband.      

The issues

5.  There is only one issue to be determined namely should the maintenance payments for S be decreased as requested by the husband?

The Law in Hong Kong

The law 

6.  The law on variation has not changed. As stated previously the husband’s application to vary 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 ……”

7.  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, 7^th edition). However, it is also true that there would normally be a reason for the application to vary or what some might call a “trigger”.   

8.  The court 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).

Discussion

9.  In the husband’s 51^st affirmation dated the 16 April 2018 he says that he has been paying maintenance for S from January 2017 of between HK$5,000 – HK$5,500 per month. He says that he only receives expenses from his paragliding company – the X Paragliding Organization Limited (XPO), presumably in part because this is more tax efficient. In the Answer to the Petitioner’s Questionnaire dated 29 January 2019, which postdates when the husband now says that he stopped working, (see paragraph 12 below) the husband confirms that XPO paid for his rent (HK$5,000), food (HK$2,000), household expenses (HK$1,000), car expenses (HK$3,000), transport expenses (HK$1,000) and medical expenses (HK$100) – i.e. approximately HK$12,000 per month. It is of note that audited financial statements have not been produced in relation to this company. He points out that as he gets older that it may not be possible for him to work in this capacity longer term and that in any event competition is fierce and the business is weather reliant. He offers to pay HK$5,000 per month and HK$500 per month going forward in order to settle any outstanding amounts due and owing to the wife.

10.  Unfortunately this rather more conciliatory and sensible approach had changed by the time that the parties had returned to court for the trial. On that occasion it was the husband’s case that he could no longer work at all as a paragliding instructor and he produced a letter from the Civil Aviation Authority dated the 31 July 2018 to support his case. This states as follows:

Paragliding activities in Hong Kong

The Hong Kong Paragliding Federation has been regarded as one of the main contact points for the paragliding community in Hong Kong. We are writing to seek your assistance in promulgating the information below to your member regarding paragliding activities.  

The Civil Aviation Department (CAD) has recently noted from the internet that certain individuals and organisations seemed to be offering some form of paragliding services for hire or reward in Hong Kong. According to Regulation 22 of the Air Transport (Licensing of Air Services) Regulations (Cap. 448A of the Laws of Hong Kong), a person must not use any aircraft for the provision in Hong Kong of any air service except under, and in accordance with the conditions of, a permit granted by the Director-General of Civil Aviation (DGCA.).

CAD takes these observations seriously and would like to take this opportunity to remind your members of the legal requirements under Cap. 448A, including the provision that no air service may be offered by any aircraft without a permit granted by the DGCA. The provisions of Cap. 448A shall be complied with at all times.  Anyone who contravenes the abovementioned Regulation 22 of Cap. 448A is subject to prosecution with a maximum penalty of 2-year imprisonment and a fine of $5,000,000.

11.  He said that as a result he has not worked since July 2018 and that he is now totally reliant on his new wife who supports all of the household expenses. Put simply the Petitioner does not accept what the husband says. She asks why the husband renewed his paragliding instructor’s licence in 2019 if he is not working? She says that he has been working, either in this capacity or some other and that there have been occasions since July 2018 when he has not taken S for access because of work commitments. I tend to accept what the wife says in this respect, especially given the husband’s answers to her questionnaire referred to in paragraph 9 above, which tend to contradict his position now.     

12.  The Petitioner also believes that the husband has transferred assets to his new wife, such as a company car and the shares in the XPO in order to muddy the waters and to avoid paying her maintenance for S. It is of note that the directorship and shareholding in XPO was transferred to the husband’s new wife on the XX August 2016. Oddly he says that this was because of his potential imprisonment due to the wife’s renewed efforts to enforce the existing maintenance order.

13.  The husband for his part queries once again the financial support that the Petitioner receives from her parents and the monies held for her by her father in China. As before evidence on this was somewhat limited.

14.  It is of note that the husband’s updated Form E attaches many old documents which formed part of the previous ancillary relief proceedings and are no longer relevant to the present application. The same can be said for many questions posed by the parties which simply goes over old ground.    

Conclusion

15.  I do not accept that the husband has stopped working as a part time paragliding instructor. I tend to agree with the Petitioner that it is inconceivable in those circumstances that he would have renewed his paragliding licence, continued to live near to the paragliding sites the Sai Kung and that he answered the wife’s questionnaire as set out in paragraph 11 above. I believe he has deliberately sought to mislead the court in that respect.   Similarly, I do not believe that the wife has been totally honest about the financial relationship with her parents and the basis for the continued financial support that she receives from them. In short I am of the view that they have both been somewhat economical with the truth, when updating the court on their current financial circumstances.   

16.  I do accept as a general point that the husband is unlikely to be able to carry on working as a paragliding instructor into his old age. However, as I have said before he strikes me as a bright and resourceful man and I have no doubt at all that he will that he can continue to have an earning capacity for some time yet. S is 12 years old. The parties will need to support her for at least another 6 years at minimum.  Similarly it seems to me likely that the wife is receiving some form of income from her investments. I accept that it is difficult for her to work in a regular capacity in Hong Kong because of the situation with the Immigration Department. It is not clear to me however, why she continues to remain in Hong Kong. That is though her choice.

17.  Having considered all of the above I will dismiss the husband’s summons seeking a variation dated the 16 April 2018. The husband shall pay the Petitioner the costs of and arising out of this summons on a party and party basis to be taxed if not agreed.

18.  Finally both sides have referred to the issue of outstanding costs from time to time. As indicated previously, in the event that either party wishes to pursue the issue of the non payment of court costs through the courts, then they will in the first instance need to go through the taxation process.

19.  In so far as the examination summons (originally judgment summons) dated the 27 June 2017 is concerned this will be adjourned for a callover on the 21 November 2019 at 9:30 am with 15 minutes reserved. Both parties do personally attend that hearing.