Bx v. Bmpe
Read the full judgment text of FCMC 14697/2011 on BabelCite. This Family Court judgment was delivered on 19 March 2019 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Variation of Maintenance – District Court – Petitioner father applied to reduce maintenance for two children from HK$10,000 to HK$5,000 per month per child – Mother conceded reduction of her own maintenance to zero due to de facto relationship in New Zealand – Court assessed father's income drop and earning capacity – Mother's expense schedule partially rejected due to breach of implied undertaking and inclusion of capital items – Court calculated reasonable expenses at approximately HK$16,012 total for children – Maintenance varied to HK$8,000 per month per child backdated to 1 May 2018 – No order as to costs – Judgment summons adjourned.
Legal issues: Variation of maintenance
Outcome: Maintenance varied to HK$8,000 per month per child; Mother's maintenance order discharged.
Cited by 2 cases · Cites 1 case
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FCMC 14697 / 2011 [2019] HKFC 72 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 14697 OF 2011 ----------------------------
------------------------ Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Dates of Hearing: 6 and 7 November 2018 Dates of closing submissions: 16 November and 3 December 2018 Dates of closing replies: 19 and 28 December 2018 Date of Judgment: 19 March 2019 ----------------------- J U D G M E N T (Variation of maintenance) ----------------------- Introduction 1.This is an application by the Petitioner father for a variation of maintenance as follows:
2.During the hearing the mother eventually conceded the second point, given that she is now in a legally recognised de facto relationship in New Zealand and she has had a further child with her new partner. In such circumstances she agreed that it was no longer appropriate for there to be a nominal maintenance order in place. Two things flow from this, firstly order 2 contained in the court order dated the 18 July 2014 shall be discharged and this will be dealt with formally at the end of the judgment; secondly it follows that this judgment is only concerned with the appropriate level of maintenance to be paid by the father for the two children of the family. In addition, the mother has issued an application for a judgment summons (now an examination summons). Further directions in this respect will also be given at the end of the judgment. 3.This application is also being brought when neither party currently resides in Hong Kong. The mother relocated to New Zealand with her new partner in 2014 and the father subsequently relocated to Taiwan. He had also initially re partnered but unfortunately that relationship has since broken down. This makes applications of this nature particularly difficult given that the court has no general sense of the cost of living in either of the two other jurisdictions. Background 4.The parties issued divorce proceedings in Hong Kong, which is where they were then residing, in October 2011. The father is French and I believe that the mother is also of European descent. She is a Spanish speaker. On the 14 August 2012 the parties initially agreed that there should be joint custody of the two children of the family with care and control to the Respondent mother and reasonable access to the Petitioner father. The decree nisi was granted on the 23 January 2013 and the decree absolute followed on the 14 March 2013. The parties also reached a comprehensive agreement with respect to their finances at a Financial Dispute Resolution hearing on the 19 November 2012. On that occasion it was agreed that the father would pay maintenance to the mother of HK$15,000 per month per child and an additional HK$2,000 per month for the mother, which was later to be reduced to HK$1,000 per month. In addition, a mortgage free property in France was transferred to the mother in full and final settlement of her capital claims. The maintenance levels were agreed on the premise that the mother and the two children would continue to reside in Hong Kong in the immediate to short term. 5.At that stage the father was running his own small product design company and the mother earned a nominal amount as a school monitor. The father has continued to run his own small company, although the nature of his client base has changed over the years. The mother has continued in her role primarily as a full time mother. The children of the family are now aged 13 and nearly 10 years of age. 6.The parties returned to court in early 2014 on the mother’s application to vary the custody order and to relocate permanently to New Zealand. On the 24 March 2014 it was agreed that the mother should have sole custody and care and control of the children with reasonable access to the father. On the 18 July 2014 it was ordered that the maintenance for the children be reduced to HK$10,000 per month per child, partly on an expected reduction in the cost of living in New Zealand and also because of the father’s reduction in income. The father was also and understandably very concerned that he should be able to afford to see the children frequently and that the cost of travel needed to be accounted for. At that stage it was also the mother’s case that she intended to work in New Zealand. 7.In the judgment of the 18 July 2014 I also stated inter alia as follows:
8.In reality and despite the mother’s assertions on the last occasion, it seems that the mother has never worked in New Zealand. According to her Form E she continues to be a full time mother and housewife. It is also acknowledged that a third child of the mother and her new partner, was born on the XX September 2016 and is still very young. She says that she expects to return to work at some point but again reiterates that the cost of child care is expensive. During the trial she also said that she would like to look for a part time job and she thought she might be able to return to work in about a year or so. However, it seems that this is by no means a definite proposal. The law 9.As before the father’s application is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap 192, which provides that:
10.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 bound 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 3.147 – 3.157 Jackson’s Matrimonial Finance and Taxation, 8th edition where it stated as follows:
It is also true that there would normally be a reason for the application to vary or what some might call a “trigger”. 11.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). The issue 12.There is then only one issue to be determined, namely how much maintenance should the father now pay to the mother for the two children of the family? The mother’s analysis of the father’s evidence 13.At the trial the mother produced a document entitled Annexures 1 – 10. There were several difficulties with this document, some of which were explained to her during the hearing. Firstly, there is an implied undertaking in family proceedings in Hong Kong. The proceedings are private and confidential and neither party can show any of the court documents to a third party without first seeking the courts express approval. This was not done in this instance. It seems that the mother shared the Court documents with a Mr M (her partner’s father) and Ms H (her partner’s sister) and that they then produced their own analysis of the father’s finances based on the Court documents that he had produced. It is not clear what instructions they were given. If they are to be regarded as expert witnesses, they have clearly not complied with any of the provisions in Order 38 Part IV on Expert Evidence. On that basis alone it is clear that the court cannot place any weight on this document. Other points include the fact that the father was not shown this document ahead of time and was to a certain extent “high jacked” as a result. 14.In such circumstances, it does not seem to me that it is appropriate for the court to attach any weight to this document, or to any submissions made with respect to it. Each party’s case The father’s case 15.In summary it is the father’s case that his income has fallen again and that this can be seen from the documents produced. He says that it is imperative that some funds are kept within the company so that he is able to run it. He does not accept the mother’s allegations, which simply put include the suggestion that his documentary evidence does not come up to proof and that it is contradictory. He reiterates that the monies used for access are a priority and that the parties must cut their clothe according to what is available. The mother’s case 16.In contrast it is the mother’s case that the parties have an ongoing obligation to support the two children, which includes financial support. She maintains that the father must do everything within his power to meet his financial obligations towards the children. She does not accept that he makes his financial obligations towards the children his number one priority. Put simply she does not accept that he cannot afford to pay. In addition, she says that he has an earning capacity and that he must now realize such earning capacity. Variation of maintenance The expenses 17.As indicated above it is the father’s case that his income has dropped by about a further HK$100,000 per annum and that consequently he can no longer afford to pay maintenance of HK$10,000 per month per child. He puts it as follows in his supporting affirmation:
18.This is not accepted by the wife who says that the children’s costs amount to HK$21,000 per month. She has estimated that figure by dividing the essential general expenses by 5 – i.e. all of the members of the household, including the toddler. She does not acknowledge that she should be responsible for any share of the children’s expenses. She sets out the basis for her position in section 4.1 of her updated Form E dated the 5 July 2018. In her summary she states as follows:
19.She substantiates these figures by reference to the general household expenses and the children’s actual expenses. She says that the general household expenses break down as follows:
20.In so far as the children’s actual expenses are concerned she further states as follows:
21.A couple of points arise from these schedules. Firstly, as before, I do not accept that it would be appropriate to attribute the cost of maintaining the house, which I was told previously is held by a family trust (see paragraph 12 of the judgment dated the 18 July 2014 and paragraph 7 above) to the cost of maintaining the children. This is a capital item, the upkeep of which should not be rolled into the children’s maintenance. Thus it seems to me that the household maintenance figure of 6,857 should be removed from the calculation. I have a similar difficulty with the reference to rates and household insurance. 22.Conversely it is accepted that although the mother does not offer to make any direct financial contribution towards the children’s expenses, that it is clear that she is providing a home for the children and that this should therefore be regarded as her financial contribution towards their upkeep. In addition, it seems to me that both parties should be responsible for their own holiday costs with the children. The father has also confirmed that he always pays for the cost of the children’s access to him, including the cost of all of their flights. 23.I accept the figures for the utilities, food, household expenses, the remainder of the insurances and the general cash expenses. I also do not intend to interfere with the estimates for car expenses. In so far as the children’s direct expenses are concerned the father has confirmed that he is separately paying half of S’s orthodontic treatment. It is not clear if this adjustment has already been allowed for. 24.The father did not challenge the wife’s expenses during the trial. However, in his final reply submission he made the following comments:
25.As indicated above, given that the mother is providing a home for the children and she has no income of her own save for a very small rental income from the property in France, it is not accepted that it would be appropriate for the father to halve the cost of the utilities and food as set out above. 26.Having considered all of the above, it seems to me that a more realistic schedule of the general expenses for the children, in Hong Kong dollars, is as follows:
27.Of this 40% should be attributable to the children i.e. HK$8,092 (i.e. 40% x HK$20,230 = HK$8,092). The rationale for the calculation for the car expenses is a little difficult to follow, but in any event I will then add the 75% share rounded up to an additional HK$1,600. In total then the children’s share of the general and car expenses adds up to HK$9,692.00 per month (i.e. HK$8,092 + HK$1,600 = HK$9,692). 28.In so far as the children’s actual expenses are concerned it seems to me that the following are reasonable
29.I have not included in this schedule entertainment and presents or holidays as it seems to me that each parent should be responsible for those costs when the children are with them. I have also not included monthly savings for the children as it does not seem to me to be appropriate for the father to pay for this, especially given that his finances are so tight. Similarly, other items have been removed from the schedule including a parenting class fees for Tough love! In total then it seems to me that the relevant expenses for the children amounts to approximately HK$6,320 per month. 30.In total then the expenses for the children amount to approximately HK$16,012 (i.e. HK$9,692 + HK$6,320 = HK$16,012) or just over HK$8,000 per child per month. Can the father afford to pay this sum? 31.It seems to me that the father should be able to afford this sum. Although I accept that his present financial situation is somewhat precarious I nevertheless have some sympathy with the wife on this. The father has an earning capacity and if his business and freelance activities are not going well, then he may have to look at other alternatives including other paid employment. Conclusion 32.In conclusion then Order 1 contained in the court order dated the 18 July 2014 shall be varied to the extent that the Petitioner father shall pay periodical payments for the two children of the family, in the sum of HK$8,000 per month per child, until each child reaches the age of 18 years or ceases full time education, whichever is the later. Further Order 2 contained in the court order dated the 18 July 2014 shall be discharged. Should this new figure be backdated? 33.The order shall be backdated to the 1 May 2018 – i.e. the month after the father issued his application to vary. Costs 34.Given that neither party has been wholly successful, I shall make an order nisi to be made absolute in 14 days’ time that there shall be no order as to costs. Further directions 35.The mother’s judgment summons dated the 1 June 2018 shall be adjourned to the 24 July 2019 at 9:30 a.m. Both parties do personally attend that hearing.
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