Bl v. Sjy

FCMC 7831 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 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 an application by the respondent husband for a decrease of maintenance for the child of the family S, a little girl who was born on the XX August 2007, from HK$6,500 per month down to HK$5,000 per month. He further proposes that there be an incremental increase of HK$500 in another six months and so on and so forth until the maintenance presumably reaches the ordered maintenance of HK$6,500. This is on the premise that he has sufficient money to pay.

2.This application was made at the 11^th hour and appears to have been a strategic move by the husband to prevent the wife from proceeding with her enforcement action. The wife has three judgment summonses that are outstanding. The judgment summonses had been set down for trial on the 22 September 2015 with half day reserved. The husband appeared in court on that day and said he was sick. Consequently the matter was adjourned until the following day, as the court diary was free. The husband did not appear in court on the 23 September. He did however send in a sick note from a doctor, However it seems that he had been well enough to issue his application to vary the maintenance down, which is dated the 22 September, returnable in the first instance on the 23 September. When I later queried this with the husband his explanation was that as I was trying to send him to prison again that his application was justified.

3.The background to this matter is long and convoluted and I do not intend to go into it in any detail in this judgment. Suffice it to say that proceedings were issued in 2008 and that the parties have been in and out of court on a regular basis since. The level of conflict remains very high notwithstanding the intervening years. The most recent round of litigation centred on the wife’s application to vary the maintenance for the daughter upwards. I handed down my judgment in that respect on the 12 February 2015. In that judgment I set out the litigation background in some detail. In particular reference should be made to paragraphs 1 – 6 in that respect. I should add that my findings in that judgment continue to hold and that nothing has been said in this hearing which has led me to change my view on any of the main issues.

4.I made the following findings in that judgment: 

17. Thus in the circumstances I remain of the view that the parties should continue to be equally responsible for S’s expenses. Serious attempts now need to be made by the mother to return to the workforce. In any event she has retained most of the lump sum payment, which will continue to provide her with a financial buffer, as had been the original intention. She has also retained her stock and share portfolio – which I note has risen in value in the more recent past. It seems that the wife has made some additional purchases – presumably from the lump sum payment.

18. According to the employment contract produced by the husband he is presently paid HK$20,000 per month. The audited financial statements for G Limited for the year ended March 2014 show that he had a turnover of just under HK1 million (HK$972,248) and a net profit of just under HK$65,000. He also runs some expenses though his company, such as his rent, water and utilities, motor vehicle expenses etc. But even putting this at its highest his operating expenses are just under HK$230,000 per annum or HK$19,166 per month. Thus on the face of it the husband does not appear to have a great deal of money either. I am though of the view, and this has been consistent throughout, that the father is able to pay HK$6,500 per month.  

5.After doing the calculations I found that there was very little difference between the newly calculated amount and the existing order of HK$6,500 per month. Consequently I dismissed the wife’s application.  I concluded as follows: 

21. In such circumstances I will dismiss the wife’s Notice of Application dated the 10 May 2013. On this occasion I will exercise my discretion and make no order as to costs. I should add that it is unfortunate that the war between the parties continues – with each attempting at times to go over old ground and to reargue issues which have already been determined. This must stop.

22. Finally there is still an outstanding matter to be dealt with namely the wife’s judgment summonses dated the 27 September 2013 and the 22 May 2014. These summonses shall be adjourned to the 17 April 2015 at 9:30 am for a call over. I would however urge the husband to now be sensible in this respect and to pay the wife what is due and owing to her, without the necessity of a further committal hearing.   

6.The hearing on the 22 September was the substantive hearing of these judgment summonses. The wife had also issued one further summons in order to bring the arrears up to date. As I understand it there had been no attempt to try to settle the matter prior to that date.

The issues

7.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 

8.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 ……”

9.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”.   

10.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

11.As on previous occasions both parties attempted to bring up matters that had already been adjudicated upon. The wife believes that the husband has hidden funds, that he has other financial resources and that he is playing the system to his advantage. The husband for his part queries the financial support that the wife receives from her parents and the monies held for her by her father in China. Both parties were ordered to produce other documentation after the hearing. The respondent husband was ordered to produce i) evidence in support of his overseas trips and how they were funded and ii) evidence of his loans. The petitioner wife was ordered to produce evidence concerning the monies held for her by her father in China and the withdrawal slips in relation to the same. I received the requisite bank information from the wife. The husband for his part produced information in relation to the loans. I did not receive the additional information in relation to the trips.  

12.Having considered all of the above it seems to me that there is no proper basis for considering a variation of the order. Nothing has changed since my judgment of the 12 February 2015, save for some minor matters such as an increase in rent for both sides. Thus it seems to me that this was simply a tactical move made by the husband to delay the judgment summons hearing. In such circumstances the husband’s Notice of Application dated the 22 September 2015 shall be dismissed with costs to the wife on an indemnity basis. The wife has referred to other costs orders in her latest Form E and non payment of the same. As indicated by the court before, in the event that the wife wishes to pursue the issue of the non payment of court costs then she will in the first instance need to go through the taxation process. In so far as the costs of this summons are concerned it seems to me that in the circumstances an indemnity costs order is warranted – although I accept that in reality given that the parties are acting in person and the wife is not working, this is probably a paper deterrent only.

13.In so far as the judgment summonses are concerned, these will now be set down for hearing on the 27 June 2016 at 2:30 pm with half day reserved. Both parties do personally attend that hearing. Leave is also given to the wife to file a further judgment summons in the event that she needs to bring the arrears up to date.    

The Petitioner and the Respondent both appeared in person