Y v. Y

FCMC11886/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11886 OF 2004

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J U D G M E N T

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1. There are three applications before me today: an application by a respondent husband for a variation of maintenance; an application by a petitioner wife for an attachment of earnings order; and an application by the wife for a judgment summons.  Both of the wife’s applications relate to arrears of maintenance for the parties’ 5-year-old son.

2. The parties married on 26 January 2001 and separated just over two years later, in March 2003.  This was then a very short marriage.  They had one son, who was born on 11 June 2002.  The son may be suffering from autism. 

3.  The husband works for the KCRC and earns $10,380 per month as his basic income.  He also has a part-time job delivering food, earning an additional $240 per week, or approximately $1,000 per month.  This varies from time to time.  He does on occasion earn more or less.  The wife works as a beauty consultant, earning between $7,000 and $8,000 per month. 

4.  The parties reached an agreement, which was embodied in a court order, on 15 June 2006.  Although it was not expressed as a consent order, it is acknowledged by both parties that it was agreed that the husband would initially pay the wife $3,000 per month for the child, going up to $3,700 per month from 1 February 2006.  This was to be once the husband had paid off an HP agreement for a new bike.  

5.  The wife agreed to a nominal maintenance order for herself, with custody of the son to her.  Access arrangements were also agreed.  It is also acknowledged by both parties that, save for the first month following the agreement, the husband has never paid the wife the full amount of maintenance for their son, although he has normally paid an amount varying between $2,800 and $1,500 per month.  This has led to the wife borrowing from a friend as needs dictate. 

6.  The husband presently owes the wife $65,400.  The husband did not apply for a variation of maintenance until 8 August 2007.  The husband applies to vary the amount downwards to $1,500 per month.  The wife asks that the maintenance figure remain the same.

7.  It seems to me that the following issues need to be determined by the court:

8.  Dealing with the first issue, whether the husband’s financial circumstances are such that the existing order of $3,700 per month should be varied, and if so how much should the husband be ordered to pay.  Applications of this nature are governed by section 11(7) of the Matrimonial Proceedings & Property Ordinance, Cap. 192, which provides that:

“In exercising the powers conferred by this section, the court shall have regard to all the circumstances of the case.”

9.   Assistance is also provided by a legal text called “Jacksons Matrimonial Finance and Taxation”, which states that:

“The modern approach is that the court has to consider all the circumstances of the case, and the court is not hide bound by the existence of a previous order.  The court must look at the matter de novo and make an order that is reasonable in the current circumstances.”

10.  In other words, I look at all of the circumstances afresh.  There is also a duty for both parties to tell the truth about their financial circumstances.  My power is also wide and unrestricted.  The overall objective is to achieve a fair outcome.

11.  The husband’s case, on variation, is that his financial circumstances have changed, because he says he now holds a different post within the KCRC and that he earns less than before.  Also, now that he has remarried, he has to support a new family.  Therefore he says he cannot afford to pay the amount that he originally agreed to.  He also points to his outgoings and says that these show that he cannot afford to pay or to continue to pay $3,700 per month for his son. 

12.  The flaw with the husband’s arguments are that they really do not stand up to scrutiny when one looks at the evidence produced.  Firstly, there is no evidence to show that the husband’s income has decreased significantly since 2005.  More importantly, when one analyses the husband’s bank accounts, it is clear that he was not paying the wife the full amount of maintenance from March 2005 when he had the funds in his bank account to do so.  This was also before he remarried. 

13.  When the husband was asked why, when he had money in his bank account, he did not pay the amount ordered, he had no answer.  He said, when pushed, that he had nothing to say.  Further, when answering questions about his outgoings, the husband acknowledged that he paid rent to his brother of $3,000 per month, because his brother owned the house that he was living in and was no longer working, so he felt obliged to pay him that amount.  He confirmed that that figure included the utilities.  Therefore the figure of $1,500 for utilities fell away. 

14.  He also acknowledged that he no longer paid $500 per month for a car or, in fact, a bike, or $215 per month for one of the insurances.  He also agreed that the figure for transport was inflated.  However, he did confirm that he paid $3,000 per month to his mother.  Consequently, on the husband’s own evidence, his outgoings are significantly less than the original figure of $21,500-odd per month provided. 

15.  I am satisfied that the husband has not made full and frank disclosure in this respect.  Insofar as the contribution to his mother is concerned, it seems to me that his moral obligation to his mother should not take precedence over his legal obligation to support his son.  Notwithstanding that, on the husband’s figures, even if I were to allow rent of $3,000, food at $1,000, meals out of the home at $600, one insurance premium of $215 and a contribution to his parents at the full amount of $3,000, this still only totals $7,815 per month on an income of $11,380 per month.  This still leaves a balance of $3,500-odd per month surplus to provide proper maintenance for the parties’ son. 

16.  Consequently, insofar as the maintenance is concerned, I will order that the husband continue to pay maintenance for the son at the original level of $3,000 per month. 

17.  Now, to consider the second issue, should there be an attachment of earnings order and, if so, how much money should be attached from the husband’s salary each month?  The law on attachment of income can be found in section 28 of the Matrimonial Proceedings & Property Ordinance, Cap. 192.  I have been addressed on this this afternoon by Mr Ho.  The respondent asks that I do not attach his income.  However, I am satisfied, on the evidence before me, that this is a suitable case for an attachment of earnings order.  

18.  I am also satisfied that the husband has, without reasonable excuse, failed to make the payments originally ordered to be paid.  Given the husband’s history, there is reason to believe that he may not do so in the future.  The husband works for the KCRC, and his income is capable of being attached.  In the circumstances, I will order that the new maintenance order of $3,000 per month be attached to the husband’s income. 

19.  Insofar as the arrears are concerned, I will also order that the husband pay an additional $500 per month over the next 130 months, the last instalment, being the 131st instalment, will be for $400.  In that way the outstanding arrears will be paid in full. 

20.  That leaves the issue of the judgment summons, how should the judgment summonses be dealt with?  In the circumstances, I will adjourn the judgment summonses sine die, with liberty to restore.

21.  We then come to the issue of costs. 

22.  Given that neither party has been wholly successful, I will make an order that there be no order as to costs, the petitioner wife’s own costs to be taxed in accordance with legal aid regulations. 

23.  Therefore, having read the bundles of pleadings and having heard both parties give oral evidence, I will make orders in the following terms :