Aan v. Ewt
Read the full judgment text of FCMC 15739/2003 on BabelCite. This Family Court judgment was delivered on 10 December 2009 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Child Maintenance – Variation of Consent Order – Judgment Summons – Willful Refusal – Contempt – District Court – Matrimonial Proceedings and Property Ordinance Cap. 192 s.11(7) – Matrimonial Causes Rules Cap 179. Application by husband for variation of child maintenance and wife for enforcement of arrears under consent order. Court considered case de novo under Matrimonial Proceedings and Property Ordinance Cap. 192 s.11(7). Held maintenance increased to HK$34,350 per month inclusive of Mandarin tuition; husband released from American Club undertakings. Judgment summons dismissed regarding computer cost; husband ordered to reimburse Mandarin tuition arrears HK$13,800; application adjourned sine die. No order as to costs.
Legal issues: Variation of maintenance · Judgment summons and contempt
Outcome: Variation of maintenance granted; Judgment summons application adjourned sine die.
Cites 1 case
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FCMC 15739 / 2003 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER FCMC 15739 OF 2003 ----------------------
---------------------- Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) and in Court Dates of Hearing: 3 and 11 November 2009 Date of Judgment: 10 December 2009 ---------------------- J U D G M E N T ---------------------- Introduction 1.This is an application by a respondent husband for a variation of maintenance for the only child of the family, LL. The wife has also issued a judgment summons to enforce payments, which she says are due and owing under the terms of the original consent order. Background 2.The parties married on the 21 June 1996 and had one son, a boy, LL, who was born in 2000. 3.Unhappy differences arose between the couple and on the 31 March 2003 they separated. On the 17 March 2004 the wife issued a divorce petition based on mild unreasonable behaviour particulars and on the 15 July 2004 the decree nisi was pronounced. This was then a marriage of approximately 7 years duration. 4.Initially the parties were both legally represented and on the 12 May 2005 two comprehensive orders were made by consent in relation to both arrangements for LL and ancillary relief. This followed an extensive mediation process. It seems that to a large extent the agreements reached through the mediation process formed the basis of the consent orders, notwithstanding the fact that the parties did not sign mediated agreements. 5.The consent order in relation to LL was eminently sensible and in an ideal world should have formed a reasonable basis for parenting him going forward. For example the following agreements and undertakings were entered into:
6.An order was made for joint custody with sensible arrangements put in place for access going forward. Unfortunately, notwithstanding this order, there have been ongoing disputes concerning LL since and the parties have returned to court on several occasions on issues largely concerned with access. 7.In so far as the consent order concerning ancillary relief is concerned, the parties entered into a clean break agreement, with the wife receiving assets in the sum of approximately HK$8.25 million. 8.In addition the following agreements were made in relation to LL.
9.On the 10 March 2009 the wife issued a judgment summons. She maintains that there are outstanding arrears in relation to payment of LL’s mandarin tuition fees contrary to the husband’s undertaking under paragraph E (f) above. She also seeks reimbursement for payment of a computer to assist LL with his homework. The school had said that it was necessary for all children in LL’s year to have access to a computer in order to complete their homework. She seeks this under the same paragraph. In total she says that the sum of HK$24,350 is outstanding i.e. HK$13,800 for the mandarin tuition and HK$10,550 for the computer. 10.On the 23 June 2009 the husband issued a Notice of application seeking a downward variation of child maintenance payments and other child support payments under the consent order referred to above. He seeks this on the basis of
Issues 11.It seems to me that the following issues need to be determined:
Discussion 12.I must now turn to consider the issues, the law and the parties evidence as set out in their affirmations, their Form E’s and as given orally by them during the hearing. For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the husband or the wife, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact.
The Law 13.The husband’s application for a variation is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap. 192, which provides that:
14.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, 7th edition). However it is also true that there is normally a “trigger” or what some might call a change of circumstance leading to the application. 15.The parties also have a duty to make full and frank disclosure of their means and a failure in that duty can lead the court to draw an adverse inference. (SeeBaker v Baker [1995] 2FLR 829). 16.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 wife’s present financial position 17.Under the terms of the consent summons the wife received assets in the region of HK$8.25 million on a clean break basis. It was anticipated that she would return to work in some capacity. She is well educated and prior to LL’s birth she worked as a management consultant. She is now 46 years of age and has not worked outside the home for the past 12 years. To a very large extent this is her choice. She wishes to continue to parent LL full time. LL was born in 2000. He is now 9 years of age. He attends XX International School. 18.In order to supplement her income the wife has invested some of her assets in real estate. These investments provide her with some additional income in the sum of c HK$27,500 per month. She says that she has liquidated approximately HK$1.2 million in order to maintain her present lifestyle as a stay at home Mum. The wife is also in a relationship, but she does not permanently cohabit with her new partner. 19.In her schedule of outgoings the wife says that she has general outgoings of approximately HK$32,400 per month, personal outgoings of approximately HK$18,500 per month and outgoings for LL of approximately HK$21,500 per month. These figures do not include those sums that the husband pays directly for school fees, the school bus, the American Club, insurances etc. 20.Both parties have referred me to their negotiation process and in particular to the fact that it was agreed that the husband would pay a proportion of the wife’s and LL’s general expenses. Initially the wife had sought a 35% contribution. In the end a 31% contribution was agreed. 21.The wife puts it thus in her Form E:
22.Therefore it seems to be accepted by the wife that although a certain level of expenditure was agreed for LL under the heading of general expenditure that at the end of the day she reduced this level of expenditure significantly by moving to Sai Kung. I understand why she did this and given that she has since chosen not to return to work, the move seemed to be a sensible one. 23.I should add though that I do not necessarily accept that this would have been the approach had the matter been argued in Court. I accept that the husband should pay a contribution towards LL’s general expenses, but not necessarily at the level of 50% or even 31% of the total. It seems to me that 50% of the total is quite properly attributable to the wife’s own expenses. If one then splits LL’s expenses, each parent would more likely be contributing 25% each to the overall total. 24.The wife has been under the impression that the husband should be responsible for all of LL’s school expenses, down to reimbursement for back packs, snack box, thermos etc. Generally speaking she says that it costs between HK$35,000 – HK$37,000 per month to maintain LL and that she is responsible for any shortfall. She also mentioned the sum of HK$6,887. 25.Given all of the above it seems to me that this is a suitable case to consider de novo. If so how much maintenance should the husband pay to the wife for the support of LL? Should any of the other undertakings be varied? Change in the Wife’s housing, utility and domestic helper costs 26.The wife says that she has no income save for the rentals in the sum of HK$27,500 per month. She receives periodical payment for LL in the present sum of HK$31,000 per month. In addition the husband pays the school fees, the school bus and the school lunch fees direct. He also reimburses the wife for school uniform and other miscellaneous items. He continues to provide health insurance for LL and he also reimburses the wife for other health related items on a needs must basis. He maintains the American club membership and life insurance. 27.On the wife’s schedule of outgoings the present figure of HK$31,000 should cover all of LL’s expenses as listed in the sum of HK$21,500 per month. She also seeks a contribution towards the general household expenses. The husband says that the figure under general expenses should be reduced given that the wife’s rent and utility expenses are now significantly reduced from before. In addition he says that she does not have a full time domestic helper, but a part time local domestic helper. 28.However the wife’s general expenses at c HK$32,000 per month seem reasonable. I will allow a 25% contribution or HK$8,000 odd per month as the husband’s contribution towards LL’s expenses under this head. The wife’s earning capacity 29.The husband also argues that the wife’s earning capacity should be taken into account. I was initially concerned by the assumption made by the parties that the husband should be wholly responsible for LL’s actual expenses. Certainly had the wife been working I would have expected her to be making an ongoing monthly contribution towards those expenses. The wife says that she has done so in part by paying any shortfall of between HK$4,000 – HK$5,000 per month and also by liquidating some of her asset base. I accept that to be the case. 30.That leads onto the next question – what in truth is the wife’s current earning capacity? She has been out of the work place for 12 years. If she were to return in any meaningful capacity she would most probably need to retrain or possibly re-qualify. The wife says that she has made enquiries and that even if she wanted to return to work she would not be able to do so. I certainly accept that unless the wife were to make a concerted effort she is unlikely to be able to return to the workforce easily. Thus her earning capacity in the meantime is likely to be somewhat limited. Consequently any contribution that she is able to make is likely to have to be from capital or from her other investments. I accept that it is appropriate for her to continue to do so. Increased educational costs - school fees and other related expenses 31.In addition she is seeking to increase the amount of mandarin tuition that LL receives. This amount is currently reimbursed to her. The cost is HK$300 per hour i.e. HK$600 per session. She wishes LL to have at least two sessions per week and possibly more, longer term. In her Form E she refers to four hours per week at total cost of HK$4,500 per month (i.e. HK$1,200 per week x 45 weeks (52 weeks per annum less 7 weeks holiday), = HK$54,000 divided 12 = HK$4,500 per month). 32.This is where the real dispute lies. The issues between the parties are actually quite minor – petty even in the overall scheme of things. I recommended that the parties consider mediation and/or the appointment of a parenting co coordinator. For whatever reason this has not happened. 33.I may be wrong in my assessment of the situation, but it seems to me that the real difficulty may lie with the arrangements for LL. As those arrangements have become more problematic that dispute seems to have spilled over into the financial agreement between the parties for LL, with neither parent seemingly finding it possible to compromise. I have also been concerned by references to LL in the pleadings e.g.
34.The husband says that he presently pays education fees in the total sum of HK$14,500 per month, which includes certain payments that he pays direct and others that he reimburses the wife for i.e. mandarin and other tuition expenses. As I have said the wife currently wishes that LL have two sessions of mandarin per week and possibly more longer term. The husband initially agreed to one session of two hours per week. From the e-mail exchange it appears that as the parties relationship deteriorated the negotiations about mandarin tuition became more difficult. Initially the husband refused to pay for an additional session if there was a five week month or if LL was on holiday etc. In October 2008 LL started to have two sessions of mandarin tuition a week i.e. four hours at a cost of HK$1,200 per week. There was some confusion in the e-mail exchange over whether or not the husband actually agreed to this. Initially he seemed to agree to a trial period. In any event I accept that LL needs two sessions of extra mandarin tuition a week in order to maintain his mandarin proficiency at XX International School. In order to lessen the conflict between the parties, instead of that sum being reimbursed to the wife, it will be included in the maintenance figure to be paid by the husband to the wife each month. The computer 35.The wife argued that the husband is bound by his undertaking given at para E (f) above to pay for LL’s school computer. I do not agree. There is nothing specifically in that clause about big expense items such as computers. In fact the clause is quite clear – it relates to school or other educational fees i.e. tuition costs and the like. Therefore the husband is not required to reimburse the wife for the cost of the computer. The husband’s ability to pay- i.e. his employment status 36.It seems that at present that the husband has the ability to pay. He says that there is a possibility that he may lose his current position as a consultant in the electronic power industry. Having reviewed the evidence I accept that that is entirely possible. However the current position is unknown. The husband says that he has made some enquiries internally. Other more general enquires has been somewhat limited. In any event I accept that the husband does have a significant earning capacity and that even if he were to lose his job that certainly in the short term he would be able to pay the wife maintenance for LL out of savings. US tax 37.The husband also argued that an increased US tax liability meant that his maintenance obligations for LL should be reduced. I do not accept this to be the case. Clearly even on his own figures he can afford to pay a reasonable amount of maintenance for LL, even including an anticipated increase in US tax. How much then should the husband pay? How should the other undertakings be varied? 38.Based on last year’s figures the husband pays school tuition fees, (HK$131,695 per annum), school other fees and lunch fees ((HK$11,817 per annum) direct. He has undertaken to make these payments. He should continue to do so. He says that the school bus fee has also on occasion been paid direct or he has reimbursed the wife. (HK$14,380 per annum). Going forward he should undertake to pay the school bus fees direct. This will minimize any potential conflict between the parties. Last year he paid an additional HK$4,279 for other items, which were reimbursed to the wife for – i.e. for the school uniform, other clothing and other miscellaneous items. This amounts to approximately HK$355 per month. This sum will also be incorporated in the monthly maintenance figure. Last year the husband said he paid HK$12,000 for mandarin tutoring. Going forward I will allow HK$4,500 per month as set out above. 39.The wife says that LL’s direct expenses amount to HK$21,500 per month. In addition I will allow a further HK$4,500 per month for mandarin tuition and I will round up any additional miscellaneous items to c HK$350 per month. This totals HK$26,350 per month. In addition I will allow HK$8,000 being LL’s share of the general expenses. This totals HK$34,350 per month. This does not include money that the father further spends on LL direct for holidays and access generally. I accept that the wife makes other contributions towards LL’s maintenance. It seems to me only right and proper that she should continue to do so. The husband shall pay the wife HK$34,350 per month maintenance and I will release him from his undertaking to reimburse the wife for tuition expenses and any other additional items. He is also released from his undertaking to continue to maintain a membership at the American Club. It transpired during the hearing that this facility is rarely now used by the husband or indeed by LL. 40.The wife has not sought an increase in maintenance. The husband has sought a decrease. In looking at the case de novo it seems to me that HK$34,350 properly reflects what the husband should now pay inclusive of mandarin tuition fees and other miscellaneous expenses. Overall this represents a slight increase in the maintenance that the husband was originally paying. Had the husband agreed to pay for the extra mandarin session there would not be any significant difference in the amount paid. The husband is also released from his agreements and undertakings as set out at para’s E ( c), (d), (e) and G (b) and para E (f) in so far as it relates to “other education fees”. Judgment summons The law 41.The Judgment Debtor is required to show cause. He has to show the court why he should not be committed to prison for contempt. The court needs to ascertain whether he had the ability to make the payments ordered and whether he has wilfully failed to do so. The Judgment creditor needs to prove this “beyond reasonable doubt”. The court has the power to commit a Judgment debtor to prison for up to three months or to commit suspended upon payment of the outstanding debt either in its entirety or by installments or to adjourn sine die with liberty to restore. 42.The general rules relating to judgment summonses can be found at rule 87 and 88 Matrimonial Causes Rules, Cap 179. Of particular import is Rule 87(5) (a) (ii) which states as follows:
43.Consequently the court also has wide powers to vary or suspend payments. 3) Has the husband willfully refused to comply with his undertakings as set out in para E (f) of the consent order dated the 12 May 2005. In particular has he willfully refused to pay in full for LL’s mandarin tuition and for a new computer for LL? If so is he in contempt of court? 44.As indicated above it seems to me that the present applications have arisen due to the unfortunate decline in the parties’ relationship, especially is so far as their son, LL is concerned. 45.Given my findings set out above it does not seem to me that the husband willfully refused to comply with his undertakings. There was a lack of a clear agreement in so far as ongoing mandarin tuition is concerned. As indicated I do not accept that under the terms of the consent order that he was obliged to repay to the wife the cost of the computer for LL. However given that it seems to me to be reasonable for LL to have mandarin tuition for 2 sessions per week I will order that the husband reimburses the wife for the mandarin tuition already undertaken in the sum of HK$13,800 for the period from May 2007 to October 2009. Thus the husband shall reimburse to the wife the sum of HK$13,800 within the next 14 days. He is not required to reimburse the wife for LL’s computer. On that basis the wife’s application for a judgment summons is adjourned sine die with liberty to restore. 46.Given that neither party can be said to have entirely won nor entirely lost I will make an order nisi to be made absolute in 14 days that there shall be no order as to costs in relation to both applications.
The Petitioner (Judgment Creditor) and the Respondent (Judgment Debtor) appeared in person |
Cases cited in this judgment