Wu Neh Wah Gloria v. Patrick Brian Fontaine

CACV 130/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 130 OF 2011

(ON APPEAL FROM FCMC NO 809 OF 2004)

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REASONS FOR JUDGMENT

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Hon Lam JA (giving the reasons for judgment of the court):

1.Despite the efforts of Mr Coleman SC, we dismissed the application for leave to appeal to the Court of Final Appeal at the hearing. The following are our reasons.

2.Of the four questions framed in the Notice of Motion of 23 April 2012, the first two questions were not argued before us, and as far as we can see from the materials before us, not argued before the judge in the Family Court. We do not see any basis for allowing these questions to be raised belatedly in an appeal to the Court of Final Appeal.

3.As regards the third and the fourth questions, it should be borne in mind that we are dealing with an application to vary the level of maintenance for the children and as we said at para 30 of our judgment of 27 March 2012, the application was premised upon a particular construction of clause D(g), without which there was simply no justification for variation. The matters raised in these questions have no bearing on the proper construction of that clause. Further, how these matters are to be weighed must depend on the facts and circumstances of the case. Whether the maintenance should be varied is a matter of discretion. As such, these questions do no raise questions of great general or public importance.

4.As regards para 5 of the motion, it only needs to be said that periodic maintenance is not calculated on a reimbursement basis. The fact that the actual expenditure for the period in question may be less is neither here nor there. The point has no merit.

Mr Neal Clough, instructed by Haldanes, for the Petitioner

Mr Russell Coleman SC, instructed by Withers, for the Respondent