S, Pf v. L,Sy
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FCMC 14673/2017 [2025] HKFC 149 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 14673 OF 2017 ---------------------------- BETWEEN
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------------------------------------------------------------ J U D G M E N T ------------------------------------------------------------ This Application 1.This is the Petitioner husband’s (“H”) application for a downward variation of lump sum payment to the Respondent wife (“W”) and maintenance for the child of the family J, born in February 2014, now age 11. 2.In his application dated 22 March 2023 (“Variation Summons”), H asks for:
3.H appears in person, W is legally represented. They both gave oral evidence at the hearing, and were cross examined. 4.I have considered submissions from both parties, and do not intend to deal with every single point raised. I shall only be making reference to salient points of submission herein for the purpose of my decision. Parties background 5.H was age 51 at the time of the hearing, he works as a general manager of a medical devices company (“HMD-L”). W was 39 at the time of the hearing, she is a full-time housewife and mother of two children in addition to J. 6.Parties married in the mainland in February 2009, J is the only child of the family. 7.Parties separated in around July 2016. 8.W remarried to A at the end of July 2021, H also remarried in December 2021. Proceeding History 9.H filed the Petition for divorce on 10 November 2017. Parties were able to negotiate terms of settlement. 10.By an Order dated 30 May 2018, parties were granted joint custody of J, and joint care and control. 11.Parties were also able to reach agreement on ancillary relief, and a Consent Summons dated 28 May 2018 (“CS”) was made an Order of Court on 30 April 2019. The relevant parts of this Ancillary Relief Order (“AR Order”) are as follows:
12.Recorded in the Recital K is also the following provision with regard to clean break:
Recital M is the clause dealing with the Lump Sum payments. 13.Decree Nisi was pronounced on 30 April 2019, and was made absolute on 18 June 2019. 14.Due to the default in payment by H, the parties eventually agreed by consent to a variation of the Lump Sum payments. The W’s case on this default will be further elaborated below. Pursuant to the Variation Order dated 4 March 2021 (the “Variation Order”), H undertakes to:
15.In this Variation Order, the parties agreed that the first part of the lump sum payment still had $500,000 outstanding. H’s obligation on the Lump Sum payment was decreased from $30,000 to $20,000 per month until the lump sum of $1,560,000 has been paid in full. The parties also agreed that J’s maintenance at $30,000 per month remains unchanged. 16.In January 2023, H defaults again and unilaterally cut down payment to $25,000 in February 2023, and then further to $15,000 from May 2023. During this time, H filed this Variation Summons in March 2023, which was eventually set down for the current hearing on 4 September 2024. H’s case 17.The basis of H’s application are as follows:
18.H also presents his various employment and related income in his closing submission:
19.In his opening submission, H brings up information from 2017, which was the backdrop of their negotiation leading to the CS, he also speaks of how much W received in their settlement. 20.Other historical events he mentions include:
21.H argues that he maintains full child maintenance payment even during periods of his unemployment. 22.H says that due to immense financial burden in January 2023, he asked W to consider a reduction in payment, and when she refused, he says he had no choice but to seek the current variation application. 23.From his Affidavit dated 7 July 2023, he says that his total salary package from HMD-L up to February 2023 was $1,300,000, he later says that this is for monthly salary of $100,000 per the contract with HMD-L he produces, plus a 13th month “double pay”. He also says he is paying $12,575 for tuition and education related expense and $3,765 for additional monthly expense of J as follows:
24.He declares his living expenses in his Affidavit as $45,500, but expenses in his Form E is $66,930, this will be further analyzed below. H’s Open Proposal 25.He proposes that the Lump Sum payment instalments should be reduced to $5,000 per month. 26.He also proposes that J’s actual needs now are only $7,000 per month and proposes to reduce Child Maintenance to $10,000. 27.He asks for backdating of the monthly payments to the date of his Variation Summon; this only appears in his opening submission, but not in the Variation Summons. 28.He asks that each party pays for their own costs. W’s Case 29.W objects to H’s application; she says there has been a prolonged period of breach of both Orders. 30.W argues that there has not been a material change of circumstances. 31.W says that by H’s Variation Summons, H is asking to extend the payment of the Lump Sum payments by 49 months to 196 months, notwithstanding that the original Lump Sum payment has already been once varied in March 2021. 32.W argues that even with the decrease in his income, it does not justify the drastic decrease that H is now seeking. 33.She also argues that the income and earning capacity of the H’s wife can be taken into account. 34.W therefore says that H has exaggerated his financial situation to evade payment responsibilities. 35.With regard to J’s expenses, W says that it has increased from the AR Order when J was then 5 years old to now a pre-teen at an international school, and that his expenses are reasonable. Furthermore, H cannot argue that J’s change of school constitutes a change of circumstances as H has agreed to the change and W is paying for the difference. 36.Furthermore, H’s reliance on W’s remarriage as a change of circumstances is untenable as turning to the original AR Order, remarriage of the parties was within contemplation and H has undertaken not to seek variation base on either parties’ remarriage. 37.W says that she has depleted her savings in the previous two years to pay for J to manage the shortfall due to H’s default, and has been assisted by her husband A in this regard. W’s Open Proposal 38.W’s Open Proposal is that there shall be no variation to the Lump Sum payment nor the child maintenance, and that costs be awarded to her. W’s case on H’s default of the Lump Sum Payment 39.In W’s affirmation dated 23 June 2023, she set out the history of H’s default of the Lump Sum payments. In brief as follows:
Legal Principles 40.The empowering legislation for variation of maintenance is in Section 11(1) and (7) of the Matrimonial Proceedings and Property Ordinance (Cap 192):
41.The modern approach in dealing with an application for variation of maintenance is summarised by Cheung JA in AEM v VFM [2008] 3 HKLRD 36 at §14, in particular the following sub-paragraphs:
42.This theme was reiterated in a later Court of Appeal decision on variation, WNWG v PBF [2012] HKCU 675, where the Hon Lam J quoting in part from another important judgment on this issue, HCTT v TYYC [2008] 5 HKC 86, added that:
43.The principles are trite in that there should be some change of circumstances since the previous order was made and I am entitled to look at the case de novo. 44.In the context where the previous Order made was by consent, Rogers, V-P in the Court of Appeal case in G v G [2001] 1 HKLRD 580, confirmed the jurisdiction to vary a consent order for payment of lump sum by instalments; but however in confirming the decision, stated that:
45.And in the Court of Appeal decision of CH v MEH [2012] 1 HKLRD 751, Cheung JA (as he then was) stated that the jurisdiction to vary under these circumstances must be exercised with caution. Further, quoting from paragraph 24:
46.The legal principles, therefore, enable me to look at this matter afresh; I need to find not just a change of circumstance, but one which has changed significantly; furthermore, the sanctity of an Order which came about by consent and meant to achieve a clean break, should be upheld and be slow to change except for very good reasons. Discussion Allegation of Non-disclosure 47.Further to W’s depiction of the events during the time from November 2018 to this Variation Summons on the difficulties to elicit financial disclosure from the H, she further avers that:
48.In the W’s closing submission, there continues to be allegations of failure in full and frank disclosure. This includes H’s HSBC Advance account which he claims to be “no longer in use”, but no statements were produced despite records could be obtained from the bank up to 7 years; and his failure to produce credit card statements claiming that he has not maintained any credit cards for over three years yet failed to adduce any evidence that his previously declared credit cards had been cancelled as he alleged. It is W’s submission that these failures warrant the Court to draw the necessary inference that H has more financial resources than he claims. Issues to consider 49.The issues to be considered are:
Has there been a change of circumstances? 50.First to look at what time frame is to be considered when looking at whether there has been a material change of circumstances. It would appear that H is looking at the time of the original AR Order (remembering here that the CS was signed in May 2018, and the AR Order was made in April 2019), whereas W is looking at the situation from the time of the Variation Order in March 2021. 51.I take the view that the change of circumstances should be from the time of the Variation Order in March 2021. Common sense dictates that should H feel that he was so tight in his finance to negotiate a new arrangement in 2021, then he should also seek to change the child maintenance, but he did not do so. At that time, he had only sought to vary the Lump Sum payment downward by only $10,000. Looking back at his employment history, when he entered into the Consent Summons for the Variation Order, he must have already taken into consideration any changes in his personal circumstances prior to March 2021, and should have some fore-thoughts on managing his finances to pay the AR Order and the Variation Order to be made. Yet in the Variation Order, H did specifically confirm he will continue to pay J’s maintenance of $30,000. 52.W says that for almost two years after the Variation Order up to January 2023, H has complied with the Order; this is despite the following events:
53.The only relevant factor I will consider is that at the time of the Variation Order, he was in C’s employment making $129,667 per month, and then from December 2021, HMD-L pays him $100,000, which was subsequently increased to $105,000. This latter monthly amount is not challenged, except W did say he is entitled to discretionary bonus which he denied. The difference shows a 19% decrease (not 24% as stated in his closing submission). 54.While it is clear from the chronology and the unchallenged evidence of H’s current monthly salary that there has been a change; I adopt a point from W’s argument, that on monthly salary alone, there has been a 19% decrease; but measuring this against his application under the Variation Summons: a decrease in his payment from $50,000 ($30,000 + $20,000) to $15,000 ($10,000 + $5,000), of 65%; is clearly a disproportionate ask. H’s Ability to Pay 55.H’s declared expenses appear in two places: In his Affidavit, he cites his expenses as $45,500:
56.But in his Form E, his expenses total $66,930, excluding the $20,000 of Lump Sum payment under the Variation Order:
57.In the light of H’s long outstanding Lump Sum payment due to W, (originally scheduled for 5 years, and now proposed on the H’s part to likely extend from now to more than 16 years, per the W’s submission), which is clearly prejudicial to W, and also H’s duty to provide for his son; H is expected to economize on his spending until such time as he has fully discharged his obligations. 58.Regarding H’s General expenses, he declares a lesser amount on utilities and household of $2,500 instead of the $3,500 in his Affidavit, I take the view that for a two persons household (H and his current wife), the lesser amount makes more sense. The food expense is excessive for a household of two, and I shall reduce this amount to $3,500. 59.This makes his general expenses a total of $22,000 + $2,500 + $3,500 + $2,930 = $30,930. 60.I also take the view that his personal expense looks excessive. His obligation for the Lump Sum payment and maintenance payment to his son should take priority over the spending on meals out of home, entertainment and holidays. For the assessment of his reasonable expenses, I shall allocate a total of $9,000 for the first 6 items of his personal expenses instead of his declared $18,500. This makes his personal expenses, excluding the Outstanding Arrears, $9,000 + Tax payment = $24,500. 61.As for his own spending on J, the numbers in his Affidavit differs slightly from those in his Form E again, see comparison table below. In the spirit of economy, I will adopt the figure $15,875.
62.I will also add here that the monthly amount of H’s payment of J’s annual travel expense is $10,000 / 12 = $833. J’s reasonable expenses according to W 63.J’s needs appear in both W’s Affidavit and her Form E, as follows:
64.W therefore says that J’s portion of General Expense should be ¼ of $105,200, being $26,300 (W has only counted 4 persons living in the apartment, and has not taken into account a new born child) and J’s own expenses at $26,355, therefore a total of $52,655. 65.In considering afresh what should be the expenses that H has to pay to W for J, I must have regard to the undertaking given by W to H in the AR Order, which reads:
In this context, I acknowledge that even with this undertaking, the parties did agree back in 2018 for H to pay $30,000 for J. I do not have in evidence what this $30,000 is meant for; at the same time, H has also undertaken to pay for school fees, school related expenses, medical expenses, insurance, and travel under the same Order. There is no submission in the current case as to how the above undertaking affects the present application. But W has submitted that I should take into regard H’s undertaking not to seek variation based on parties’ cohabitation, remarriage or additional children, it is only fair that I should also take into regard her undertaking in the same Order. 66.I must also consider the time that J spent with the respective parties. Pursuant to the Order relating to the child dated 30 May 2018, the parties have joint care and control of J, and J is with H on one weekday staying access starting from after school to the start of school the following morning; and on Saturday from 6pm to start of school on Monday morning. When H cross examined W at trial, he put to her that he has J 47% of the time, and she has 53%, and says that he is basing his case on the hours J spent with them respectively; when he was cross examined, he also said he has J half the time. W does not dispute this. 67.The following are my comments on J’s portion of General Expenses:
68.As for W’s version of J’s expenses. H argues that he pays for a lot of the items on W’s list already. This includes school fees, extra tuition, school books, transport to school, ECA, and holidays. Looking at the numbers provided by W, these are my comments:
69.Based on the above analysis, the items I will take into account from W’s estimation of J’s expenses are as below:
70.I have assessed J’s portion of General expense as $10,000 and his own expenses to be $10,000, making a total of $20,000. In calculating the proportion to be borne by the parties, I have taken into regard H’s own case that the time J spent with him is 47% to 50% of the time; but I also have to look at the payment capability of the parents. W is now a housewife and according to her, her savings have been depleted and is largely reliant on A. Be that as it may, I am of the view that she needs to bear a proportionate amount of J’s expenses; I will therefore allocate 75% to H and 25% to W, making H’s maintenance for J payable to her to be $15,000. 71.Based on this analysis, technically, W is bearing $5,000 of the above expenses, $4,400 for the utilities, food and household expenses as abovementioned (based on her undertaking), the difference in the school fees of G School and S School which is around $6,650 according to H. I expect her to find her own means to pay for the above amounts, which she will have when H pays her the outstanding lump sum arrears; for the purpose this application, I am only focus on H’s obligation. 72.To summarize H’s payment for J’s expenses, his own portion should be $16,708 (being $15,875 + $833) based on the calculation above; and he shall pay to W at $15,000 going forward, instead of the previous amount of $30,000. 73.Looking at the H’s financial position, my analysis is as follows:
Lump Sum Payment 74.The Lump Sum payment commenced from January 2018, and full payment was expected to be completed by December 2022. This was intended as a clean break settlement between the parties; yet they had consented to change the payment instalment amount under the Variation Order, and more than two years since, W is now incurring costs needing to fight for the outstanding arrears. 75.Referring to the case law above, it is clear that except for very good reasons, the court should not allow a lump sum payment by consent to be varied. Repeating a point made by W, the percentage decrease in his income from the time of the Variation Order to now is only 19%, this hardly justifies an application to bring his instalment payment down from $20,000 to $5,000. 76.Given that the re-assessed child maintenance above has decreased from $30,000 to $15,000, this should free up some of his resources to pay for the $20,000 monthly Lump Sum payment. §73 above shows that H has the net balance to pay for this sum, with around $2,138 shortfall. I am of the view that this could be made good from assets in his bank accounts and also from the amounts he has placed with his sister for emergency purpose. 77.With regard to the latter point, it comes out in H’s cross-examination that he has transferred money to his sister in the UK. He has sent a letter to the W’s solicitors in July 2020, and declared the following:
And then in another letter dated 2 September 2020, says the following about these sums:
In cross examination, the placing of the money with his sister was confirmed, and he says that “it was there in case I’d completely run out of money and it would give me some survival money at the time.” 78.Further, if I take into account that his current employer HMD-L has paid a 13th month double pay in the past, making his annual salary $1,300,000 as above mentioned, his monthly salary would be averaged at $108,333. I also refer to one of W’s argument that with reference to the the H’s Employer’s Return for Remuneration for year-end 2023, the salary received by H was $1,051,000 + $264,000 = $1,315,000 which monthly average is at $109,583. Either way, these numbers should give H some buffer for his expenses and his obligations under the two Orders. 79.Therefore, I conclude that that H has the resources to pay for the Lump Sum payment in full; and the $20,000 under the Variation Order made by consent shall stand. Dealing with H’s other arguments Parties’ remarriage 80.W remarried in July 2021. H argues that as W’s husband A has financial means, therefore W has no financial worries; which is one of the basis that he is seeking variation. 81.W says that she had co-habited with A since end of 2017, a fact that is well known to H. At the time of signing of the CS in May 2018, when H was legally represented, and under legal advice, he has provided his undertaking as stated in paragraph 12 above; in the absence of a discharge of this undertaking by the Court, he is bound. It is not on him to seek a variation based on W’s remarriage or use that factor to support his application. 82.H tries to introduce evidence of A’s means, including resorting to “publicly available data” to search for the salary of someone with A’s title in his employment; and to investigate A’s assets outside the jurisdiction. This is an unacceptable approach to take. The principle is trite that a payor of child maintenance cannot look to an ex-spouse new partner to provide for his own child; it remains his duty as father to pay for J’s expenses, and he should not be relying on A to (indirectly) supplement him in this regard. Nor can he say that as W has a beneficial interest in her husband’s wealth (an argument not elaborated at trial), she is therefore financially comfortable and hence H can pay her less. 83.H also says in his Affidavits and answers to questionnaire of his need to financially support his current wife. While he does not rely on this point in his contention for variation, it bears reminder that the law does not allow this to be done in priority to his obligations towards W and J. H’s closing submission 84.I now turn to the issue with H’s closing submission. At the end of the trial, I made an Order that closing submission is to be limited to 15 pages. Looking back at the transcript, I did spend time explaining to H, in particular as to what should go into the submission, and what can appear after the 15 pages, namely annexures or endnotes. H has indicated that he understood. 85.When H submits his closing submission on 30 October 2025, it contains 21 pages; and then on 4 November 2024, H wrote again to re-submit an Appendix 5 and made highlighted changes on some “typos”. 86.Not surprisingly, W’s legal representation complained. In the letter of complaint from W dated 13 November 2024, it was submitted that H is not playing fair, that he has done it before, in his attempt to adduce additional evidence at the day of trial and also when the Attachment of Income hearing was heard on 23 September 2024; and was dismissed on both occasions. She also said that H’s closing submission contains further factual submission in his Appendix 5 by “sneaking in” additional analysis by way of “Explanatory Tables” and annotations. She further says that H has actually made more changes that those he highlighted and proceeded to cite in full all the changes that H had actually made. 87.I sent a memo on 21 November 2024 to the parties to say that I may exercise my discretion to ignore H’s submission which goes beyond the designated pages, but I gave leave for W to reply to Appendix 5 (only) in a reply submission of not more than 4 pages. These four pages were submitted subsequent, but W’s Reply is not limited to responding to Appendix 5, as it contains other responses to H’s submission. 88.The correspondence continued when H wrote to the Court on 19 December 2024, acknowledging that the excessive length of his submission was an “accidental blunder on his part”. He requested that the Court reviews only pages 6 to 20. Additionally, H sought to provide further response to W’s letter dated 13 November 2025 and the Reply which I authorised, and once again including his Appendix 5 as an exhibit. 89.Unfortunately, this has the expected result of inviting yet another correspondence from W’s solicitors on 27 January 2025, who complained, inter alia, that H letter of 19 December 2025 was an unsolicited reply to the W’s Reply and submitted without leave of Court. 90.Considering the explanation I have given to H at the end of the hearing, and in fairness to W, I have decided that I shall not be considering H’s closing submission from page 16 onwards and any reference after to any annexures, nor will I be considering any comments thereafter from either side inclusive of all of W’s solicitors’ and H’s correspondences and W’s Reply Submission. I take the view that I have enough information at hand to make this decision and have considered the parties’ respective cases and arguments; and I have conducted the analysis and assessment as in a normal course of a variation of maintenance application. Historical Information 91.H has cited information from the time of the parties’ 2017 negotiation, and using it as a basis of saying that W has assets. H has taken a wrong approach. In his application for his payments owed to W and for J’s maintenance, it is of course incumbent on me to look at W’s personal circumstances. But it is not about whether W has assets to her name or access to her husband’s wealth, it is about the above analysis of H’s allegation of his change of circumstances, and his ability to pay what the Court considers to be a reasonable sum and continue with his Lump Sum payment to W. W’s bank statements 92.H also attempts to put forward an argument that by looking at W’s bank statements, and comparing them against her expenses, he can ascertain how much W is spending on J. 93.This is an imperfect approach. It is clearly not a simple mathematical calculation. It is not in dispute that H has defaulted in his payment since February 2023, and what has not been successfully challenged is W’s position that her savings have depleted to support J and she is financially reliant on A, but there is no evidence to say since when, how frequent, and for what amounts. I therefore do not agree with H’s submission in this regard. Outstanding Amounts 94.During the trial I have asked for a table showing the amount due and how much has been paid to enable me to assess how much longer will the full payment of the Lump Sum is going to take. While there is a table annexed to W’s closing submission, the parties are in dispute as to how an amount, when paid by H, is to be allocated between payment of child maintenance and the lump sum arrears. Looking at the parties’ stances, it is also apparent there has been no clear agreement in this regard. As the allocation of the amounts are not in issue before me, I shall not attempt to resolve this in the absence of proper evidence or argument. Parties are urged to resolve this by mediation instead of spending more costs on this issue. Costs 95.H has not been wholly successful in his application. He has succeeded only in decreasing the child’s maintenance, and even then, not on the entire basis of his arguments. I am also taking into consideration his conduct over the course of the years since the two Orders were made, his defaulting payment to W, and the grievances that may have ensued, this is despite being told that the Orders made do stand until a decision is made on his variation application. Therefore, save for the costs in §96 below, I make no Order as to costs. 96.Taking into account the circumstances and evolution of the event around the excessive pages of H’s submission, I do award the costs of (i) preparation of the W’s solicitors’ correspondences regarding this issue and (ii) W’s Reply submission, be to the W; as these costs were incurred due to the non-compliance of a Court Order on H’s part. Conclusion 97.In conclusion, the Orders I shall make for the H’s Summons are as follows:
Petitioner: Acting in person Respondent: Ms Samantha Lau instructed by Messrs Long An & Lam LLP | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment