Wnwg v. Pbf

FAMV 35/2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 130 OF 2011)

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BETWEEN

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DETERMINATION

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Chief Justice Ma:

1.This case is about ancillary relief, specifically in the context of an application by the applicant (whom I shall refer to as “the Husband”) to vary the terms of an order for maintenance of his children.  The respondent is the petitioner in the underlying proceedings (I shall refer to her as “the Wife”).

2.In the present notice of motion, the Husband seeks leave to appeal to this Court under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484, both on the ground that questions of great, general or public importance arise and on the “or otherwise’ ground.

3.The facts are amply stated in the judgments below (of HH Judge C K Chan dated 15 February 2011, and of the Court of Appeal (Cheung JA and Lam J) dated 27 March 2012).  The original application was made by the Husband seeking to vary a maintenance order made by the Family Court on 8 June 2006 in respect of the three children of the marriage.  The order was based on a Mediation Agreement dated 18 April 2006.  This followed the divorce of the Husband and the Wife.

4.The Mediation Agreement contained a number of clauses regarding maintenance. Of particular relevance is clause D.g thereof:-

“D. Child Maintenance:

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g. The Parties acknowledge that the monthly child maintenance amounts are calculated taking into account Mr. F’s [the Husband’s] full time employment and current salary package.  They acknowledge that Mr. F may cease to work at the same level or for the same employer after 1-3 years.  In the event of any significant change to Mr. F’s salary package, the Parties agree to review the monthly child maintenance provisions as contained in Clauses D.a. to D.f. inclusive.”

5.The Husband was at the time the Mediation Agreement was made, a partner in an international law firm.  As envisaged under the clause just set out, he ceased working for the firm in 2009.  This led to his application for variation of the maintenance he had been ordered to pay under the June 2006 order, namely, $27,500 a month for each child (in total, $82,500 a month).

6.Judge C K Chan varied the original order by reducing the maintenance to $40,000 a month.  The Wife appealed that decision successfully to the Court of Appeal, which restored the original order.

7.Essentially, on the facts of the case, the Court of Appeal saw no reason to vary the original order.  The Court was of the view that the Judge had erred by failing to give sufficient weight to the original agreement as to how maintenance should be dealt with.  Further, while it was true that the Husband had ceased working as a solicitor, he nevertheless had a vastly superior earning capacity compared with the Wife, and the original maintenance for the children was an expense he could easily afford.  Nothing in the original Mediation Agreement, in particular clause D.g thereof, indicated that in the event of his ceasing to work for his previous law firm, this would somehow automatically reduce the amount of maintenance payable to his children. Indeed, it is noteworthy that the Husband had at no point sought to reduce the amount of maintenance his three children should have.  His case was simply that the Wife ought to contribute something towards maintenance.

8.In our view, the application for leave should be dismissed.  None of the four grounds set out in the notice of motion contains any question of great, general or public importance:-

(1)   The first ground seeks to extend the equality principle in LKW v DD (2010) 13 HKCFAR 537 to the maintenance of children in a marriage.  Quite apart from this not being a point previously argued by the Husband, it simply does not arise in the present case where the parties had originally entered into an agreement to settle the question of maintenance.  The issues here are fact specific.

(2)   The remaining three questions are an analysis also entirely specific to the facts of the present case.

9.As for the remaining “or otherwise” ground, it has no merit.

10.The notice of motion is accordingly dismissed.

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

Mr Charles Sussex SC & Mr Neal Clough, instructed by Haldanes, for the Respondent