Amc v. Lht

FCMC 3761/2009

[2020] HKFC 226

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 3761 OF 2009

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BETWEEN

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Coram:  HH Judge C.K. Chan in Chambers (Not Open to Public)

Date of Hearing:  30 September 2020

Date of Respondent’s Final Submissions:  14 October 2020

Date of Petitioner’s Final Submissions:  20 October 2020

Date of Judgment:  5 November 2020

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J U D G M E N T

(VARIATION OF MAINTENANCE)

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1.This is a hearing of the Petitioner’s summons for the discharge of the maintenance order dated 17 October 2012 (“the maintenance order”) in which he was ordered (by consent) to pay the Respondent’s maintenance at the rate of $5,250 per month.

2.Despite the fact that the parties’ marriage had ended long time ago (decree absolute was granted on 24 July 2009), I shall continue to refer to the Petitioner as “the husband” and the Respondent as “the wife” just for the sake of convenience.

Background

3.The parties were married in January 2005 but started to separate in July 2007.  In other words, their marriage lasted for about 2 years.

4.The parties had no children.

5.In 2009, the husband issued a petition for divorce based on 1-year separation, which was not defended.  A decree nisi was granted on 8 June 2009, which was made absolute on 24 July 2009.

6.As far as ancillary relief was concerned, the parties came to agreement and first consent order was granted on 8 June 2009 in which the husband agreed to pay a monthly sum of $6,000 for the wife’s maintenance.

7.The husband remarried on 11 August 2010 and from his new family, he has raised 2 children now aged 8 and 2 respectively.

8.The wife remains single.

9.When the husband’s present wife was conceived with the first child (who was born on 25 March 2012), the husband issued his first application for variation of the maintenance order.  At trial on 17 October 2012, the parties came to an agreement with the maintenance order being varied to a monthly sum of $5,250.

10.On 18 September 2018, the second child of the husband was born.  Facing with additional financial burden, the husband approached the wife for a discharge of the maintenance order but had received no positive response.  In August 2019, the husband stopped payment of the maintenance and on 3 October 2019, he issued his present summons for a formal discharge of the maintenance order.

11.The wife disputed the husband’s application.  The trial was fixed on 30 September 2020 and after hearing the parties’ evidence, judgment was reserved which I now give.

The Legal Principles

12.The Court’s power to grant an order for variation is governed by s11 (1) and (7) of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) which provides as follows:

“11.  Variation, discharge, etc. of orders for financial provisions

(1)  Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.

….

(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 and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death.”

According to the said provision, the court, in considering such an application for variation, has to consider all the circumstances of the case and in particular, any changes in the matters to which regard has been made in reaching the original order.

13.In the case of AEM v. VFM[1], Cheung JA has explained the modern approach in dealing with such an application at paras 14.4-8 of the Judgment:

“4. The modern approach, as required by section 11(7), is for the Court to consider all the circumstances of the cases. The Court is not required to proceed from the starting point of the original order but look at the matter afresh: Flavell v. Flavell [1997] 1 FLR 353 at 357B following Lewis v. Lewis [1977] 1 WLR 409 and Garner v. Garner [1992] 1 FLR 573.

5. Any change in any of the matters to which the Court was required to consider when making the original order was one of the circumstances to be considered.

6. Almost invariably, an application to vary an earlier periodical payment order will be brought on the basis that there has been some changes in the circumstances since the original order was made, for example, continuing inflation; the increased costs in supporting a growing child and that one party may be more adversely affected than another by the increase in the costs of living: Garner v. Garner.

7. An increase in the wealth of the husband was a relevant factor to be taken into account: Primavera v. Primavera [1991] 1 FLR and Cornick v. Cornick (No. 2) [1995] 2 FLR 490.

8. At the same time the basis and intended effect of the original order are relevant factors to which the Court on variation should pay regard and there should not be a radical departure from the approach taken by the parties themselves when they had entered into an agreement embodied in a consent order: Boylan v. Boylan [1988] FLR 282.”

14.As to the weight to be attached to the original order, Tang VP (as he then was) said in the case of HCTT v. TYYC [2008] 5 HKC 86 at paras 15-16:

“15. But as Garner v. Garner [1992] FLR 573 shows that does not mean that the earlier order, whether made by consent or not, carries no weight. How much weight should be given to the earlier order must depend on the circumstances. Cazalet J said in the English Court of Appeal:

“Almost invariably, an application to vary an earlier periodical payment order will be brought on the basis that there has been some change in the circumstances since the original order was made; otherwise, except in exceptional circumstances, the application will, in effect, be an appeal. If an order is not appealed against, or is made by consent, then the presumption must be that the order was correct when made. If it was correct when made, then there will usually be no justification for varying it unless there has been a material change in the circumstances. However, because of the impact of continuing inflation, because children grow older and cost more to support and because, for example, the cost of living in its increase may hit one party harder than another, it will usually follow that, if time has passed, there will inevitably have been changes in the circumstances, of the parties concerned.

Following  Lewis v. Lewis, by which decision this court is bound, a court on the hearing of an application to vary is fully entitled to look at all the relevant matters set out in s.25 of the Matrimonial Causes Act 1973.  On occasions, the court may be slow to accede to an application to vary a consent order; not least because the parties’ solicitors might otherwise be deterred from either seeking to negotiate such a provision or to achieve finality.  Another factor which may influence a court will be the time that has passed since the original order was made.  If an application consequent on an order is brought very soon after that order has been made, the court, in normal circumstances, is likely to attach more weight to the earlier order than if it had been made some years previously.  Likewise, the court would expect to pay full regard to any special terms agreed between the parties at the time the original order was made- as, for example, when endorsements on briefs or contemporaneous correspondence show that an agreed order has, for some particular reason, been set at an artificially low figure.  Shortly stated, the court must decide what weight it should attach to the original order and all the surrounding circumstances.  However, once an application to vary is before it, the court is fully entitled to make an order considering all the circumstances afresh, paying such regard to the older order as may be appropriate.”

16.  Thus, although the jurisdiction to vary is untrammelled, normally the earlier order would not be varied unless there has been a material change in the circumstances.”

15.I shall bear the above principles in mind when I come to consider the facts of this case.

The Case of the Husband

16.The husband is now 46 years of age.   He has all along been working as a police constable with an average monthly income of about $39,000.  He is currently working as a driver in the police force and according to him, due to the wife’s complaint to the police administration accusing him of non-payment of maintenance in 2012, the husband had to face disciplinary enquiry which had killed all his chances for career promotion.   He said that the wife had again made complaints to the police after his present application and it is quite likely that he has to face another disciplinary enquiry in the coming 18 months.

17.According to the husband, he has remarried in 2010 and is now living in police staff quarters with his present wife and 2 young children, aged 8 and 2 respectively.  His present wife is a full time housewife and therefore, the whole family’s financial burden rests on his shoulders alone.

18.In his Form E, the husband has listed out all his monthly outgoing at pp. 135-136 of the trial bundle as follows:

General Expenses

Rent	$1,584
Public Utilities	$1,156
Food	$8,000
Household expenses	$1,500
Telephone & internet	$150	$12,390

Personal Expenses

Meals out of home	$4,000
Transportation	$500
Clothing/shoes	$300
Personal grooming	$300
Entertainment/presents	$1,000
Medical/dental	$300
Insurance	$836
Maintenance to the wife	$5,250
Mobile phone	$118
Provisions for present wife	$8,000	$20,604

Child- elder son

Extra tuition	$2,000
School books and stationery	$700
Transportation to school	$100
Medical/dental	$2,000
Entertainment/presents	$500
Clothing/shoes	$1,000
Insurance	$755
Lunch	$600
School uniform	$100
Hobby classes (football)	$1,000	$8,755

Child- younger daughter

Medical	$1,000
Clothing/shoes	$1,000
Insurance	$855
Milk powder	$1,500
Diapers	$1,000
Skin care lotion	$300	$5,655
	Total:	$47,404

19.It has to be noted that the husband has already stopped paying the monthly maintenance of $5,250.  If one should deduct that amount from his total monthly outgoings, that will give us a monthly sum of $42,154.  As he only has income of $39,000 per month, that would leave him a monthly deficit of about $3,154, even if his liability towards the wife’s maintenance is to be discounted.

The Case of the Wife

20.The wife is aged 42. She used to work as a hospital assistant at the Union Hospital earning a monthly income of about $13,000.  In her evidence, she said she was suggested by the hospital to resign as she was not suitable to work in the operating theatre.  Therefore, she resigned on 14 July 2019 and remained unemployed since then.  She said she had attended the Hong Kong Institute of Gerontology and obtained a Certificate in Health Worker Training in December 2019 but that did not help her in finding another employment.  As to her financial support, the wife testified that since the husband had stopped the payment of the monthly maintenance, she had to rely on the financial support from her sister.   

21.In the wife’s Form E, she stated her monthly expenses as follows:

General Expenses

Rent	$5,000
Food	$6,000
Household expenses	$1,500	$12,500

Personal Expenses   

Meals out of home	$500
Transportation	$600
Clothing/shoes	$300
Personal grooming	$800
Entertainment/presents	$300
Medical/dental	$500
Insurance	$2,587	$5,587
	Total:	$18,087

22.In her Form E (B/262), the wife also asked for the husband’s application to be dismissed, or alternatively, to be reduced to $3,000 per month, and that the husband to be ordered to pay back the arrears of maintenance since his non-payment in August 2019.

My Views

23.After hearing both parties in court and perusing their documentary evidence and counsel submissions, I have come to the conclusion that the husband’s application for a discharge of the maintenance order should be allowed.  My conclusion is based on the following reasons.

Change of Circumstances

24.It is indisputable that after the divorce of the parties in 2009, the husband has remarried in the following year, and out of this marital union, 2 children were born and they are now aged 8 and 2 respectively.  Since the husband’s present wife has to look after the 2 children, this has prevented her from seeking open employment.  Therefore, I accept that the family’s whole financial burden is now rested on the shoulders of the husband alone.

25.At one stage, counsel for the wife did suggest that the husband could have engaged a domestic helper so that his present wife could go out to work.  I do not think it is a realistic option.  As testified by the husband, and which I accept, that his present wife only earned a small income (about ten odd thousand per month) before their marriage.  Taking into account the costs of hiring a domestic helper (both in terms of paying the helper’s salary and other related costs, including the provision of free accommodation), this does not justify her giving up the role of a hand on mother in caring for her 2 children. 

26.During cross examination, counsel for the wife also challenged the husband’s financial circumstances, for example, suggesting some of his monthly expenses were exaggerated.  I do not intend to go into a very detailed discussion and instead, I would take a more broad-brush approach.  We are now talking about a police constable in his mid-40s.  He drives police vehicles and I accept his prospect of promotion, for various reasons, is rather slim until his retirement in about 9 years’ time.  His present income is about $39,000 per month, which is not expected to increase substantially over the coming years.  He has to support a new family of 4, including 2 very young children, single-handedly. He testified, and I accept, that he will not be able to make his ends meet, unless the maintenance order in favour of the wife is discharged.

27.It was not disputed that the husband did hold a BOC account and also a deposit with the Police Credit Union.  The husband said the money in the BOC account belonged to his mother and the majority of the deposit in the Police Credit Union belonged to his present wife.  First of all, they were not very big sums of money.  The BOC account had about $58,000 and the Police Credit Union had about $95,000.  In view of the fact that the husband was the sole breadwinner of the new family with a modest income only, his ability to accumulate wealth would be rather weak.  In the circumstances, I tend to accept his explanation that the BOC account did belong to his mother and the majority of the deposit in the Police Credit Union did belong to his present wife.

28.I understand that counsel for the wife did also raise an argument that the husband has knowingly taken up new financial responsibilities (towards his new family) despite his consent to provide maintenance to the wife upon divorce.  It would now be unfair for him to argue that his new financial responsibilities have prevented him from fulfilling his existing financial responsibility towards the wife.

29.I think whether the wife’s argument is sustainable really has to depend on the circumstances.  In the particular circumstances of this case, one has to bear in mind that the marriage between the husband and the wife only lasted for about 2 years (they married in 2005 and separated in 2007).  They finalised their divorce in 2009 and the husband has already provided maintenance to the wife for at least 10 years (from 2009 to 2019).  At the time of divorce, the husband was aged 35 and the wife aged 31.  I do not think the husband should be criticised in deciding to form a new family under such circumstances. 

30.I am satisfied that the husband’s new family and his new financial responsibilities can be regarded as a change of circumstances that should be properly taken into account by this court.

The Wife’s Employment and Earning Capacity

31.The wife is now aged 42.  According to her, she started to work in the health industry after divorce but later changed to work in the retail sector.  She resumed working in various hospitals (including the Hong Kong Sanatorium and Hospital and Union Hospital) starting from 2016, mainly as a cleaner.  The last job that she worked was with the Union Hospital as a health assistant in the operating theatre.  After working for about 9 to 10 months, she said she was advised by the hospital to resign in June 2019.  However, this does not accord with the certificate of service issued by the hospital on 15 July 2019 (B/307).  In the said certificate, it was stated that the wife worked as a second grade hospital worker with a monthly income of $12,873 (basic salary of $11,447 and allowance of $1,426) from 24 September 2018 to 13 July 2019.  But under the section of “Reason for leaving service”, it was stated that the wife left the service for private reasons (因私人理由辭職).

32.I agree with counsel’s suggestion that the circumstances surrounding the wife’s so called “involuntary resignation” and the subsequent unemployment were rather suspicious.  We all know that Hong Kong’s ageing population has been increasing rapidly and there is a great demand for health care or related workers.  Taken into account of the wife’s age (42 only) and her years of experience in the health industry, together with the fact that she has completed formal training and obtained a Certificate in Health Worker Training (B/308), I find the long period of the wife’s unemployment (from July 2019 to October 2020) totally inexplicable. 

33.Moreover, the timing of the wife’s resignation and subsequent unemployment was also suspicious.  It is noted that the husband tried to discuss the variation of the maintenance order with the wife by WhatsApp in January 2019 but for several months, there were no responses.  Then the wife “resigned” in June 2019, which took effect in July 2019.  Faced with continuous financial hardship, the husband had to stop payment in August 2019, and only then the wife started to surface to chase for payment.  On balance, I am not satisfied that the so called unemployment of the wife was a genuine one.  Or at least, I am not satisfied that she has utilised her earning capacity in a reasonable manner by finding a suitable employment in the health sector.  

Conclusion and Order

34.Based on the above discussion, I am satisfied that in view of the short period of marriage and after over 10 years’ financial support provided by the husband, it is time for the parties to go their separate ways and there should be a clean break between them.  I order that the maintenance order dated 17 October 2012 to be discharged as from 1 August 2019.

Costs

35.Costs to follow event.   The husband should have the costs of the application, including all costs reserved, with certificate for counsel, with such costs to be taxed if not agreed.

Representation:

Ms. Thelma Kwan, Barrister-at-law, instructed by Messrs. Cheung, Wong & Associates, solicitors for the Petitioner

Mr. Leung Fu Hang of Messrs. Wong & Co., solicitors for the Respondent