Lws v. Mhs
Read the full judgment text of FCJA 238/2014 on BabelCite. This FCJA judgment was delivered on 1 February 2018.
1. This trial concerns an application dated 20 January 2017 taken out by the 2nd applicant (for whom I shall still call the “ husband ” for convenience) for effectively a discharge of a child maintenance order which is in the sum of $6,000 per month. Needless to say, the 1st applicant (for convenience, I shall still call her the “ wife ”) opposes this application.
Cited by 1 case · Cites 5 cases
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FCJA 238/2014 [2018] HKFC 14 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION JOINT APPLICATION NUMBER 238 OF 2014 ----------------------------
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--------------------------------- JUDGMENT --------------------------------- 1.This trial concerns an application dated 20 January 2017 taken out by the 2nd applicant (for whom I shall still call the “husband” for convenience) for effectively a discharge of a child maintenance order which is in the sum of $6,000 per month. Needless to say, the 1st applicant (for convenience, I shall still call her the “wife”) opposes this application. Background 2.The wife is now 26 years old, while the husband is now 34. Both of them came from a broken family and had gone through an unsteady youth. 3.The wife’s parents were divorced when she was 16. She then went delinquent. She took drugs for 2 years and stopped schooling at Form 4. After all these years, however, she is able to pick herself up again. She went to night school and completed Form 6. She has also obtained an insurance licence and reached level 9 in guzheng (古箏) playing. She is now a guzheng private tutor. 4.The husband’s parents were divorced when he was very young and he grew up with his maternal grandmother. When he was 11 years old, he went back to live with his father who was a film director. Between the age of 14 and 20, he was sent away to different parts of the world, such as Australia, USA, New Zealand and Canada to study. In 2003 when he was 20 years old, his father committed suicide and died. His mother, on the other hand, has remarried. Over the years, the husband had completed an associate degree course in English at the SPACE, Hong Kong University and a long distance learning degree course of mass media. Since 2013, he has become a full time artist/singer. 5.The marital relationship of the parties is short but yet equally unsteady. They started cohabitation shortly after they met in 2010. According to what the wife tells the social welfare officer, the couple had not infrequent arguments shortly after they started cohabitation. But soon, she got pregnant and so they were married in July 2011. Their only child, a daughter (now 6 years old) was born in November 2011. On month after the daughter was born, they separated. On 24 January 2014, they filed a joint application for divorce. Decree absolute was granted on 2 July 2014. It was a short marriage of about 2.5 years. 6.By a consent order made on 18 June 2014 (“Consent Order”), the parties agree that custody of the daughter should be granted to the wife and reasonable access be given to the husband. Under the Consent Order, he has to pay her a sum of $6,000 per month for the maintenance of the daughter with effect from 12 July 2014. 7.The Consent Order has not put to rest the disputes between them. Since then, they have filed numerous applications and appeared before this court many times, each making accusations not uncommon before the Family Court. On the part of the husband, he accuses the wife of obstructing his access to the daughter. On the part of the wife, she claims that he has failed to pay a single penny for the maintenance of the daughter since August 2014. The accumulated outstanding maintenance up to this trial or October 2017 (39 months in total) is $234,000. 8.Despite her claim that the husband has failed to pay any maintenance for the daughter since August 2014, the wife had not taken out any enforcement proceedings for more than 2 years. On 15 November 2016, she formally filed a judgment summons and an inter-partes summons for leave to enforce maintenance outstanding for more than 12 months. On the other hand, the husband took out an application to vary down the child maintenance to $0 in January 2017. 9.It is trite law that a variation of maintenance shall be heard separately and before the judgment summons (See: C v H [2012] 3 HKLRD 351). As a result, the wife’s judgment summons has been adjourned pending this application for variation of maintenance. Their respective case, open offer & issues 10.The major ground of the husband’s application for variation is that he does not have any financial means to pay child maintenance because:
11.He reiterates that it is not his intention to evade from his responsibility as a father. He thus puts forward his latest offer in the trial, which is a 4-stage proposal like this:
12.The wife, on the other hand, does not accept what the husband claims. She avers that he has a steady income because his social media platform, such as Facebook, shows that he has been taking part in performances, including concerts in various parts of China. She refutes that the husband had given her $100,000 for the benefit of the daughter, but accepts that about $68,000 was given by him to her between 12 October 2013 and 18 July 2014. To show goodwill, she is willing to accept a slight varying down from $6,000 per month to $5,000 per month way forward for the benefit of the daughter. 13.The main issue of this trial is the financial means of the husband and the reasonable expenses of the daughter. Applicable law 14.The husband’s application is made pursuant to section 11(1) and (7) of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) which provides as follows:
15.In the case of AEM v VFM [2008] 3 HKLRD 36,Cheung JA explained the modern approach in dealing with an application for variation of maintenance at para 14 of the Judgment, in particularly the following sub-paragraphs:
Weight on the Consent Order 16.The wife relies heavily on the fact that the parties filed a joint application for divorce (Form 2C), in which the husband agreed and signed to confirm his agreement to pay $6,000 per month for the maintenance of the daughter, which subsequently becomes the Consent Order. She submits that this court should attach a very heavy weight to the Consent Order and refuses the husband’s application outright. 17.In response, the husband explains that he was threatened by the wife at the time when he signed the joint application, in that if he did not sign to consent to a maintenance order of $6,000 per month for the daughter, she would not let him see the daughter. 18.For the purpose of this judgment, I do not see the need to make a finding on whether the husband was threatened to sign the joint application for divorce and to agree the maintenance sum of $6,000 per month as alleged. After all, there is no application by him to set aside the Consent Order. However, I do take note that ever since the Consent Order was made, he has made various applications for access to the daughter and for more involvement into the schooling of the daughter. 19.I take further note that the wife has not, either in her affirmations or her oral evidence, seriously challenged the husband’s case that he relied on bank loan to pay maintenance for the daughter around the time of their divorce (though the actual amount paid by him is not in accord between the parties). 20.Pertinently, section 11 of the MPPO does not say that a consent order on periodical payment cannot be varied. But where the periodical maintenance is embodied in a consent order, the original order would not usually be varied unless there has been a material change of circumstances. Moreover, if the variation application is brought very close to the time when the original order was made, the court is likely to attach greater weight to the original order. 21.In HCTT v. TYYC [2008] 5 HKC 86, Tang VP (as His Lordship then was) explained succinctly the weight to be attached to the original order in this way,
22.The judgment of His Lordship was cited by Lam VP (then Lam J) in WNWG v PBF [2012] HKCU 675 at §12, a more recent Court of Appeal judgment on variation of maintenance. 23.Here, the Consent order was made on 18 June 2014. The application for variation was taken out on 20 January 2017, ie about 2.5 years later. In my view and in the circumstances of the case, the husband’s application cannot be regarded as “brought very soon” after the Consent Order was made. 24.Further, it is obvious to me that the husband is now suffering from mood problem or mental illness. The wife in her oral evidence also agrees that he has emotional problem. But she avers that his emotional problem is not something new to him, and that during the cohabitation and marriage, he was already prone to lose temper or be easily agitated resulting in police intervention from time to time. Yet, she has to accept that the husband, unlike in the past when he did not need to seek medical attention, is now required to receive psychiatric treatment with medication on regularly basis. According to latest medical report prepared by United Christian Hospital dated 27 January 2017, he is now receiving regular psychiatric treatment at Yung Fung Shee Psychiatric Centre since July 2015. He has history of slashing his calves and substance misuse. The diagnosis is “emotional unstable personality disorder”, which is a mental illness which falls within the meaning defined in the Mental Health Ordinance, though he is able to handle the litigation himself. The medical advice is that he should require further management for his psychiatric rehabilitation. [1] This diagnosis is confirmed again in an updated medical report dated 2 November 2017, which is produced and marked as exhibit “R-1” during the trial. 25.I have no reason to doubt the content of such medical reports and will receive them as good evidence. 26.In view of the above matters, I do not agree that heavy weight shall be placed to the original Consent Order to the extent that it should not be varied. I shall proceed to consider the matters de novo by reference to the relevant factors set out in section 7 of the MPPO. The wife’s household expenses 27.According to her Form E dated 25 January 2017, the wife says that she is now living with the daughter and her mother at an undisclosed address. The monthly rental of $15,000 is paid by her mother. She further claims that she works now as a private tutor of guzheng (古箏) and earns about $8,000 per month. Her total monthly expenses (including those of the daughter), however, comes up to $40,807.93. The shortfall, she explains, is paid by her mother who has recently sold her flat in Kwai Fong. 28.During her oral evidence, she concedes that she has made a mistake to the food expenses and now confirms that the total food expenses for her, the daughter and her mother (whether eating at home or dining out) is $5,000 per month. She is not required to pay any salaries tax now. Her revised monthly expenses under her oral evidence would be like these:
29.The husband thinks that it is excessive to rent a flat of $15,000 per month, and takes the stance that the reasonable rental should be $9,000 per month. He also argues that some of the expenses of the daughter are excessive and that the expenses of the extra-curricular activities can be avoided if the wife would allow him to teach the daughter English, dancing and singing. For easy reference, I reduce their respective cases on the daughters’ expenses in the following table:
30.To form a view on the reasonableness of the daughter’s expenses, this court has to consider the living standard during the marriage. According to the wife and putting her case to its highest, she was given merely $100 per day by the husband as household expenses (excluding rental and utilities). This added up to only $3,000 per month for a family of 3, which cannot be regarded as high living standard. Rather, it is merely an average or below average living standard. 31.Adopting the above living standard during the marriage as a benchmark, I am of the view that the amount allegedly spent on “books and stationery” and “extra-curricular activities” are excessive. I think it is also fair for me to point out that the wife is unable to explain or to give a breakdown on the claimed sum of $420 per month for books and stationery for a K3 kid. She has not provided any documentary proof on these 2 items of expenses. I tend to accept that $150 per month on “books and stationery” is a more reasonable amount, and that $800 on “extra-curricular activities” is more in line with the living standard during the marriage. 32.For medical/dental expenses and insurance, the husband actually reveals in his own evidence that he was asked to pay, and he did pay, for the daughter’s insurance during the marriage. Yet, the wife has not produced the policy of the daughter’s insurance. There is thus no evidence before this court as to what kind of insurance it is and whether it has medical coverage, for if it does, the medical expenses of the daughter can be reimbursed subject to the terms of the policy. Doing the best I can and by considering the evidence in its totality, I would take a broad brush approach by allowing $1,500 per month for these 2 items. 33.The daughter’s reasonable expenses are thus revised to $3,059. Her accommodation is provided by the wife’s mother at this stage. There is no suggestion on the part of the wife that she needs to reimburse her mother for that. As such, the daughter’s general expenses are about $2,590 per month [($22,770-$15,000) ÷ 3]. Hence, the daughter’s total reasonable expenses are $5,649 per month. The wife’s income & financial resources 34.According to her Form E dated 25 January 2017, the wife says that she is now living with the daughter and her mother at a rented undisclosed address. The rental of $15,000 is paid by her mother. She further claims that she works now as a private tutor of guzheng (古箏) and earns about $8,000 per month. She gives all her income to her mother for her to handle. Currently, the monthly household expenses come up to $29,759.93. [3] The shortfall, she explains, is paid by her mother who has recently sold her flat in Kwai Fong. There is no suggestion on her side that she needs to reimburse her mother for such shortfall. 35.Notably, the said Form E records that she has bank savings of about $15,000, despite her claim that her current income is unable to meet her expenses. There are no declared liabilities of any outstanding credit card payments or any unpaid debts. 36.When she is taken to her Hang Seng Bank account records and asked about various deposits, some in the amount of $48,500 each time, into that account between January and December 2016, [4] she says that she worked in her boyfriend’s construction company and was paid $48,500 per month. However, they had broken up and thus after October 2016, she ceased working in that company. Since then, she has become a private tutor of guzheng. 37.I see no reason why I should not accept the wife’s explanation mentioned in the preceding paragraph. But on the other hand, it is clear from the matters set out above that she earned more than she needed to spend before October 2016. That perhaps accounts for the reason why she took no legal proceedings to chase the husband for the arrears of daughter’s maintenance albeit he has not paid her anything since August 2014. She issued her judgment summons only in November 2016, ie one month after she broke up with her boy-friend and ceased working in his company. 38.She does not have any income proof of her claimed current income of $8,000. In her oral evidence, she says that she currently charges $200 to $400 per hour and has about 10 students, each takes on average 1 hour of lesson per week. If so, her average income would not be as low as $8,000 per month. She should have earned about $12,000 per month on average [($200+400) ÷2 x 10 x 4 weeks a month]. In fact, I have the benefit of observing her demeanour when she is in the witness box. I have the impression that she is holding back information when she is asked to explain her hourly rate and hours of teaching. Thus, I have to conclude that she is actually earning more than she has claimed. The husband’s income & expenses 39.According to the husband’s Form E dated 12 January 2017, he is an artist/singer (since 2013) but with no income. He suffers from emotional depression and receives disability allowances of $1,915 per month. He lives with his mother in Tsz Wan Shan, but he adds in his oral evidence that he also sometimes lives with his grandmother and other times with his girl-friend. He has only about $30 in his bank accounts, but owns debts of over $1 million, which includes over $300,000 due to the government under a student’s loan way back when he took the degree course in Hong Kong and about $100,000 that he borrowed around the time when the wife divorced with him in order to satisfy her demand for $6,000 per month for the maintenance of the daughter. His monthly expenses, according to his latest clarification given in oral evidence, is about $1,965 which comprises of:
40.More will be said on his expenses later in this judgment. 41.While the wife accepts that the husband is suffering from mental illness, she does not accept that he has no income. In gist, her case is that:
42.In so far as the entertainment company is concerned, the husband says that his relationship with his girl-friend is unsteady in that they have frequent arguments and roes to break up. The wife does not seriously challenge this point. The husband further explains that in the entertainment industry, when an artist is asked to perform, he/she would be asked to which company he/she belongs. Thus it is better for him to have a company so that he can identify himself that he belongs to an entertainment company. But since its establishment, this entertainment company has not received any paid jobs, and thus it does not have any value. I find his explanation plausible. 43.On his performances in China, the husband points out that the news clipping about what the female singer had told the reporter is an old news clipping which was dated back to 2014. Besides, he denies having received an attractive income out of the said performances. The truth is that he had performed together with some famous singers who were received high income for their performances. However, he himself is not famous one. In order to make himself known, he performs mainly to gain experience and publicity, and he is not paid for such performances (「我哋曾經試過與多位出名的藝人演出...但不代表我們有這個收入甚至乎有收入，我哋沒有這麽高的名，好多時爲咗要多啲人識，從而令到未來儘快有收入，大部分工作大部分演出都是爲攞經驗同埋知名度，而這些工作是冇收入的。」). Hence, for the performances that he had taken part in China in last 2 years, he did not receive any monetary payment; he received only free hotel accommodation, food and transport for or during the performances. 44.I think that this court can take judicial notice and without disrespect to the husband that he is not a famous artist/singer. For those other newspaper clippings about him that the wife has produced during the proceedings, they were all negative news reports about his affairs or bold intimate acts with other females. It can safely be assumed by this court that it is more likely than not that the husband does not have a very positive image in his yet-to-take-flight entertainment career. Under such circumstances, it is plausible that he may participate in performances without actual monetary payment in return for chances to perform. I thus believe that he has not received any income or any substantial income in his performances. 45.It is noteworthy that the wife has not suggested that the husband is a well-known or famous artist/singer. On her best case, the husband was paid a mere sum of $500 to $1,500 for each performance that he took part during the time of their marriage. 46.The wife’s WeChat messages with Mr D (ex-agent of the husband) have been considered, but fail to persuade me to the otherwise. 47.Finally, on the deposits into his BOC account, the husband is able to offer a spontaneous and plausible explanation. He says that his mother has cancer and she asks him to purchase nutrition products for her. She would transfer money into his bank account at the end of each month (when she receives money from her husband) so that he can order and purchase the nutrition products for her. I find his explanation match with the deposit entries of his BOC account, since most of the entries since 2016 are in similar sums of $2,500 or $3,000 credited into his account at month end. Thus, I accept his evidence on this point. The husband’s earning capacity & other financial means 48.As said above, the wife does not dispute that the husband has mental illness, but she argues that there is no medical evidence to show that his mental illness has affected his earning capacity. Therefore, there is no reason why he cannot work as a normal person and takes up a normal job, so that he can assume his duty to support the daughter. 49.According to the husband’s own evidence, he had done the following jobs since 2008/2009 (after he returned to Hong Kong from Canada) until he becomes a full time artist/singer:
50.One can see from the above table that the husband’s past working experience related mostly to service industry. However, he did not stay in any particular job for long. The job he worked longest is being a part time English tutor. 51.Ms Chen for the wife does not challenge the above working experience of the husband, nor does she object to the reason(s) provided by him of why he ended up losing the job. As a matter of fact, the wife herself also tells in her oral evidence that during marriage, the husband lost his temper and got agitated very easily, leading to argument or harassment directed to the wife or other people, in the result of which police had to be called as frequent as once or twice a month. 52.When the above evidence is considered in totality, I have grave reservation as to whether the husband can, as suggested by the wife, work as an English tutor. I do not think any parent, given a choice, would prefer his/her child to be taught by a tutor who has emotional or unstable personality disorder. Until his emotional or unstable personality disorder is under control, I am inclined to think that the prospect of him getting a steady job and steady income is rather dim. 53.Having said so, however, the husband should not be encouraged to indefinitely chase his dream (of becoming a superstar singer), leaving the responsibility of raising the daughter to the wife only. And in my view, he has and/or can enjoy some financial assistance from his relatives and/or friends. According to his own evidence, he can stay with his mother or grandmother, both of whom provide free accommodation and food to him. He tells that his close relatives, such as his mother and his auntie, had provided him with financial assistance in the past. He now uses an iPhone 7 which is gifted by his mother. In such circumstances, I do not believe or accept that he needs to pay for the utilities of his accommodation ($900). 54.Besides, he has free hotel accommodation, food and transport whenever he performs. His friends treat him meals from time to time. 55.There is no evidence that the aforesaid financial assistance will not continue if he so demands. 56.His disability allowance now stands at about $1,915. Taking into account the financial assistance available to him as aforesaid and given my finding that he does not need to pay for the utilities of his accommodation, I hold the view that he should have the financial ability to pay $1,000 per month for the maintenance of the daughter, and I will so rule. 57.Looking from another prospective, although the husband has not provided the relevant documents to prove his total alleged debt of over $1 million, I do believe that he has at least the student loan of about $300,000 and a loan of about $100,000 (in relation to the daughter’s maintenance around the time of the divorce proceedings) repaid unsettled. As such, I do not think he has the financial ability to pay more than $1,000 per month for the benefit of the daughter for the time being. Maintenance from the wife 58.In his summons, the husband also seeks to pay $1 nominal maintenance to the wife, in return for the wife to pay him $6,000 per month as his maintenance to solve his current financial problem. However, in this trial, he has not seriously pursued any of the above 2 points in his evidence. 59.More importantly, the Consent Order has provided for a clean break arrangement between the parties (See: §4 therein). As such and for completeness, the said request of the husband has to be dismissed. Conclusion 60.Due to the matters aforesaid, I shall allow partially the husband’s application and shall make the following order:
61.I invite the wife (and her solicitors) to consider if her outstanding judgment summons and application under section 12 of the MPPO should be restored or the otherwise, upon due consideration of the matters set out in this judgment. I also direct that she should write a letter to this court within 21 days from the date of this judgment to report her decision to this court, after which I shall give consequential directions if necessary. Such letter must be copied to the husband.
Ms Carina Chen of K Y Leung & Carina Chen (assigned by the Director of Legal Aid) for the 1st applicant (wife) The 2nd applicant (husband) acting in person and present [1] [285-286] [2] The wife originally states in her Form E that the daughter’s expenses are $5,986.77 per month, which includes food expenses of $2,000. She later clarifies in her oral evidence that the total food expenses (including meals out) for her, the daughter and her mother is $5,000 per month, which is included under the item of “general expenses”. The daughter’s share of food expenses is thus $1,666 to be considered under the item of “general expenses”. [3] See §[28] of this judgment [4] [267-277] [5] [293] [6] [313-327] [7] [222-226] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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