Hys v. Sw

FCMC 11478/ 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11478 OF 2003

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BETWEEN

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JUDGMENT
Discharge of Maintenance Order

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The Application

1.This is an application by the petitioner husband to extricate himself from a maintenance order made by consent when the parties divorced on 4 August 2005.   By that order, the petitioner is required to pay the respondent periodical payments in the sum of $10,500  per month.   He now asks for an absolute discharge from it.

2.In this judgment, I will refer the petitioner as “H” and the respondent as “S”.

Background

3.The parties married in 1981.  At that time, H was 26 years old and S was 24.  

4.S was from the Mainland.  She and the elder son, born in June, 1982 (now aged 31), immigrated to Hong Kong in 1986. The second son was born the next year, in 1987.  He is now 26 years old.  Both are now independent.

5.H petitioned for divorce in September, 2003 on the ground of 2 years separation.  At that time, the parties owned a matrimonial home in Shatin (“the Shatin Property”) and a flat in Guangzhou (“the Guangzhou Property”).    

The Consent Order

6.Upon divorce, by a consent order dated 4 August, 2005, the parties agreed on the following terms to dispose of ancillary relief matters: 

(1)   The Shatin Property be sold with vacant possession on a date to be agreed by the parties but not later than 1 June, 2006, and the proceeds of sale less outstanding mortgage loan, legal costs and estate agency’s commission be shared equally between the parties;

(2)   H was to pay S the sum of $489,054;

(3)   H was to pay $3,000 per month to the younger son as maintenance;

(4)   H was to pay $10,500 per month to S as her maintenance; and

(5)   H was to transfer all his interest in the Guangzhou Property to S.

7.In the same consent order, H also undertook to pay for all the education expenses of the younger son until he completed full time education in Australia.  I was told that at that time the younger son was already in Australia.

8.As for S, she undertook and agreed to relinquish all her interest in H’s pension fund.

9.The parties however did not carry out the terms in full.  Instead of selling the Shatin Property, what the parties subsequently agreed and did was to have the property transferred from H and S as vendors to S and the elder son as purchasers at the consideration of $2,100,000.    H’s part of the sale price was therefore $1,050,000.

10.In order to finance the purchase, H acted as a guarantor so that S and the elder son could obtain a mortgage loan for the sum of $800,000.   At the conclusion of the transaction, after repayment of the then existing mortgage and payment of $489,054 to S pursuant to the consent order, H received about $226,500.

11.I was told (and this was not challenged) that the mortgage instalments were paid by the elder son.  The Shatin Property is now held by S and the elder son as tenants in common and is mortgage free.

12.Things went well until H stopped payment in May, 2012 and took out the present application on 26 July, 2012, asking for an absolute discharge from paragraph 4 of the consent order.

13.Parties agree to adopt an exchange rate of RMB 1: HK$1.2385. 

H’s Present Situation

14.H is going to be 57 years old this September. He has always been working as a senior technician in a tertiary educational institution, earning a salary of $41,277.50, net of contribution to superannuation. His retirement age is 65.

15.He has remarried in February, 2007 and is now living with his wife XA (also a mainlander) and his step-daughter HQ, born by XA from her former marriage, in a self-owned flat in Shenzhen (“the Shenzhen Property”) which was purchased in the sole name of XA.  The step-daughter is now 14 years old and is studying in a secondary school in Yuen Long.  

16.The Shenzhen Property was purchased in about February, 2009, financed by a mortgage of RMB750,000 with H as the guarantor.  It is not in dispute that he has all along been responsible for the monthly mortgage payments.  Indeed, H is the sole breadwinner of his new family.

17.H’s mother-in-law (XA’s mother) would come to stay with the family in Shenzhen once for a while for the purpose of taking care of HQ.

S’s Present Situation

18.As for S, she is now 55 years old.  She ceased working and became a full-time housewife since coming to Hong Kong in 1986.  She is now living with the elder son in the Shatin Property.  

19.In January, 2013, S sold the Guangzhou Property for RMB 360,000.  She explained that she was in need of money caused by H’s failure to pay her maintenance.    It is not in dispute that after deduction of agency commission, legal and other necessary expenses and having spent several ten thousand dollars, she still has about RMB300,000 or $371,550.

The Legal Principles

20.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 (the “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.”

21.Therefore, the court, in considering such an application for discharge, 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.

22.In the case of AEM v. VFM[2008] HKFLR 106, Cheung JA 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.”

23.As to the weight to be attached to the original order, Tang VP (as he then was) said in 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.”

24.I am guided by the above principles when I consider H’s application.

H’s Case

25.H’s case is that his circumstances have substantially changed since divorce.  He now has a new family to maintain, his step-daughter HQ is now only 14 years old, XA is not working for taking care of HQ and he is responsible for the monthly mortgage repayments of the Shenzhen Property and indeed, for all the expenses of the new family.   H said, on the other hand, S owns the Shatin Property which is mortgage free and she has a monthly contribution in the sum of $6,000 from the elder son.   Ms Wong, for H, also argued that S has earning capacity and should be able to support herself.   At this juncture, I need to mention that in her oral opening, Ms Wong also submitted that since the Shatin Property is a 3-bedroom flat, S could have rented one of the rooms out for some income.  When I pointed out this was not mentioned in H’s affirmations or in her written opening submissions, Ms. Wong withdrew this point.  I have no doubt that this is an improvised submission and should not be encouraged.

26.Ms. Lee, for S, contended that H should have made careful consideration on the impacts on his financial situation before he made the decisions to remarry, to take up the step-daughter and to purchase the Shenzhen Property.   All along, S has been relying on H’s maintenance and she has not been in gainful employment for over 30 years.

27.Ms. Lee relied on N v. C, FCMC 7245/2001 (date of judgment:  27 January, 2006) and Cockburn v. Cockburn [1957] 3 All ER 260.  I think I only need to refer to the following paragraphs in N v. C, supra,  (paras 39-40)

39. It is well established in law that remarriage by a person against whom an order for periodical payments has been made does not terminate the order or of itself entitle that parties to a reduction in the amount ordered, and as regard the position of the after-taken wife, she must, on general principle, be presumed to take the other spouse subject to all existing encumbrances, whether known or not, including an obligation to support the wife or child of a former dissolved marriage, as per Hodson LJ in Cockburn v Cockburn [1957] 1 WLR 1020, CA when he said : -
“The law being as it is, it is quite impossible for the courts to ignor the just claims of the first wife because the man has taken on himself other obligations, although the courts have to take into account these obligations, as involving a reduction in the capacity of the man to pay for the upkeep of his first wife and child”.

40. So in the case of Cowie v Cowie (1983) 13 Fam Law 250 where the husband had remarried, had a child and obtained increased mortgage, but his former wife was still able to obtain increase in periodical payments.  On appeal by the husband it was held that he had increased his obligations with his eyes open; and in Moon v Moon (1980) 1 FLR 115 where the husband has remarried and his second wife was pregnant, it was held that he must cut his coat according to his responsibilities to his first family.

28.Apart from the above opinions which are pertinent to the present case, I find the following commentary in Jackson’s Matrimonial Finance, (9^th Edn), useful,

“3.113 Remarriage means that the payer spouse has assumed new financial burdens and responsibilities, and pro tanto his means decrease; prima facie there is a decrease in the available resources out of which he can made provision for his former spouse and family; but, bearing in mind this consideration the court will try to give the former spouse and children such orders as will protect their standard of living: it is ‘bearing in mind this consideration’, not ‘subject to it’”

29.Hence, while I need to take into consideration the fact that H may now has less available resources, I will try to give S such orders as will protect her standard of living. 

30.H said that because of his new financial obligations, he cannot afford any ‘extra money’ to maintain S. I read what he means is that his obligations towards S are contingent upon whether he has any extra money. This is certainly a wrong approach or attitude; he puts his obligations towards S at the lowest end of the scale.  He is not allowed to do so.   I accept that there is ‘life’ after divorce.  His wishes and intention to fulfil his obligations towards his new family members should be respected, but this should not be done at the expenses of S.  In a case where resources are limited as they are now, in my view, if H wants to fulfil his obligations towards his new family members, what he should have done is to sacrifice his own needs but not those of S.   

31.Further, Ms Lee also argued that if H’s finance is in such a dire situation, XA, who is only 33 or 34 years old, could return to work and make contribution.   After all, according to H’s evidence, his wife was working as a saleslady in Shenzhen at the time of marriage, earning about RMB4,000 per month and had made contributions to household expenses.   She only ceased working in about July, 2008 when HQ joined the family. 

32.In reply, H testified that XA has to take care of the step-daughter.  When being asked by Ms Lee whether or not XA could work part-time so as to alleviate his difficulties, his answer was merely that Shenzhen has no shortage of labour and it is unknown whether XA could find jobs of this sort; however, at the same time, he admitted that XA has not even attempted to look for jobs.     As regards the need to take care of the step-daughter, I agree with Ms Lee that even on H’s evidence the step-daughter would be away from home for school for about 11 hours every day and the grandmother is with the family for taking care of the step-daughter, XA should have the time to engage in gainful employment, whether full-time or otherwise.

33.On this issue, again, I find Jackson’s Matrimonial Finance, (9^th Edn)’s commentary in the same paragraph useful,

“In some cases the payer’s income may increase after his remarriage, and he may attribute this increase to the domestic, social or business gifts of his new spouse: that might well be a matter to be taken into account.  It may be that the new spouse has an income of her own, and this likewise must to some extent be taken into account.  The second spouse’s (or cohabitant’s) income cannot be taken into account as part of the payer’s income available for distribution to the former spouse and children.  It can and should be taken into account when undertaking the ‘net-effect’ calculation so as to determine the residual incomes of the respective households after payment of a hypothetical order by the payer.  The court will assume that the second spouse will make a proper contribution from his income to the outgoings of the payer’s household.”

34.I have specifically asked Ms Lee whether it is S’s case that H has failed to make full disclosure that XA is in fact in gainful employment.  Ms. Lee confirmed that S accepts XA is not working.   I accept that given her relatively young age and the time available, XA may have some earning capacity but the important fact is that she is not making any contribution to H’s household expenses, thus there is no income as such for me to take into account when undertaking the ‘net-effect’ calculation as discussed above in Jackson’s Matrimonial Finance (9^th Edn). This, however, does not mean that I may not need to pay any regard to this matter.  As ‘the court shall have regard to all the circumstances of the case’ pursuant to section 11(7) of the MPPO, this matter may well be one of the circumstances that I need to consider.

35.Both parties are taking a polarised position.  H wants an absolute discharge and S wants the status quo; both are not prepared to concede.  It is, in my view, unfortunate, as it appears that both parties are not facing the reality nor have they or their legal representatives properly and objectively considered the predicament that the other side is in.

36.There are two issues in dispute that I need to deal with before I go to parties’ financial resources and needs.   They are

(1)  the basis of the original maintenance order of $10,500; and

(2)  the earning capacity of S.

Basis of the Original Maintenance Order

37.H said that an agreement was made with S before the divorce that he would pay her $7,500 and the younger son $6,000 as maintenance.  The younger son’s $6,000 was to be split into 2, hence a separate order of $3,000 in favour of the younger son and the remaining $3,000 was subsumed in the maintenance order in favour of S, making a total of $10,500.

38.S denied there was such as agreement. She said that H requested her to pay $3,000 out of the $10,500 to the younger son for his living expenses in Australia.  H promised that when the younger son finished education, this $3,000 would be hers.  S testified that at that time she did not give a definite answer.  She only indicated that if she could, she would.  What she meant was that she would try to accommodate.  She would give the money if she could make it.  For this reason, she had asked the son to work part-time to support himself, and he did find a job in an internet cafe.   S testified that she managed to pay the younger son in some of the months but not in full.

39.The basis of how $10,500 was arrived at is of course relevant, but given that there is a lapse of more than 7 years and there definitely have been changes in the circumstances, in my view, what is more relevant or perhaps more important is for me to assess the present needs of S.

40.That said, after having heard parties’ evidence on this issue, I find S’s evidence more credible and I prefer her version of facts to that of H.  My reasons are as follows,

(1)   The younger son had finished education in December, 2008 and after that, he stayed behind in Australia for work but H kept on paying S the full amount of $10,500 until April, 2012.   His explanation that he did not raise the issue of reduction with S because he knew she would not agree to is incredible.  On the other hand, S’s version explains why H continued to pay in full. 

(2)   At the material time of the divorce proceedings, H was represented by solicitors.  He said he had told his solicitors of the agreement but he did not know why the final order did not spell out the agreement.  I do not think he has any plausible explanation on this.

(3)   His evidence on when he found out the discrepancy is prevaricating.  At one time, he said he did not pay attention to the terms of the order after it was granted and so he did not realize the discrepancy.   He said in about 2008 when the younger son finished education, by then he had already known the order did not reflect the situation, but he took no action because he did not know how to rectify it and he admitted he did not raise this with S.  But then at another time, he said he did not notice the discrepancy (“冇為意”) before taking out this application.

41.I have no doubt that S’s version is closer to the truth.

S’s Earning Capacity

42.H’s case is that S still has earning capacity.  She could work to support herself.  Ms Wong initially submitted that S should be able to earn as much as $8,000 per month.  Later on, she even submitted that S could work as a ‘after pregnancy care-taker’ (陪月員) or ‘domestic carer’, earning as much as $12,200 to $13,600.

43.S said she has health issues.  She is suffering from helicobacter pylori and diffuse increased liver hyper-reflective parenchymal echotextures and needs to attend regular check-ups.   She is not fit to work.

44.In evidence, she admitted that she manages the household chores well and she also actively involves in community/church activities.   However, she insisted that she could not work. Apart from the health issues and her advancing age, she said she would feel tired easily and she also lacks work experience.  Further, she repeatedly emphasised that she has already retired and so does not want to work.  She also claimed that she was psychologically harmed because of the divorce (心靈創傷). However, of all these reasons, she said the main reason is she has retired.

45.There are virtually no particulars or evidence as to how S could earn as much as Ms Wong suggested.  As S has correctly pointed out, she has no work experience.  The undisputed fact is that S has never worked in Hong Kong.  She got married at the age of 23 and ceased working as a factory worker in the Mainland after giving birth to the elder son.   At that time she was only 24 years old.  She has not been working since then.  Now she is 55 years old and has no acceptable qualification or experience.  In my view, at best she has very minimal earning capacity by working, say, as a part-time cleaning lady.   However, in my judgment, it is far too harsh to demand her to engage in job of this sort after a lapse of 31 years.  Further, on the evidence before me, it seems to me clear that the intention of the parties as reflected in the consent order is that S is not required to work after the divorce.  This is a relevant factor that I should pay regard to.

The Guangzhou Property

46.At this juncture, I think it is pertinent for me to make a small digression to deal with the Guangzhou Property.  As said above, the property was sold in January, 2013 this year.  Before then, it had been left vacant.   H complained that S could have rented it out throughout all these years for income.  S, in response, explained that renting the property out would at best get a few hundred renminbis per month but she would not take up the trouble of dealing with tenants.  I do not think S should be blamed for not having rented the property out.  Clearly, during the period when H was making the monthly maintenance, she simply did not find it necessary to do so. As I said, on the evidence before me, the intention of the parties was clearly that H was to provide full maintenance for S upon divorce.  In the absence of maintenance from H since May, 2012, it is reasonable for S to have sold the property to ease her financial burdens.   Further, I do not think any issue can be taken on the fact that S has sold the property at a price a bit lower than the market price.  After all, there is no suggestion that the transaction was not an arm’s length one.

S’s Needs

47.S’s needs, as set out in her Form E, are as follows,

Item	Amount (HK$)
Utilities (electricity, gas, rates, telephone & water, all without concession)	1,600
Management fees	899
Food	3,000
Household expenses	1,500
Meals out of home	1,000
Transport	600
Clothing/Shoes	600
Personal grooming (including haircut and cosmetics)	800
Entertainment / presents	100
Holiday	1,250
Medical / Dental	2,500
Contribution to parents	200
Total:	14,049

48.I will deal with those items which are questionable or warrant discussions.

49.Management Fees: The management fees include the fee paid for the Guangzhou Property.  With the sale of the property, the management fee is now $787 only.

50.Food Expenses: For food expenses which cover both S and the elder son in the sum of $3,000 per month, which means roughly about $100 per day.  I find it reasonable.

51.Household Expenses: S states a sum of $1,500.   She testified that these expenses include the maintenance or renovation contributions for the external walls of the Shatin Property that the management office may levy against her.    On the evidence before me, notwithstanding that she had not been able to receive any money from H for about 6 months totalling about $63,000, she had in October, 2012 spent about $7,100 on the purchase of a water purifying device and its accessories.   I consider this purchase is just a one-off transaction and is not recurring on a yearly basis.  In any event, I consider that $1,500 for a household of 2 persons is on the high side.   I am of the view that $1,000 per month should be reasonable.

52.Holiday: S states a figure of $1,250, which means a total sum of $15,000 per year.  She testified that this represents $10,000 for a long trip and $5,000 for a short trip.   She however admitted that during the marriage she and H had only been to overseas twice: (i) to South East Asian and (ii) to Guilin (桂林) only.  There were also about 2 short trips to Guangdong.

53.After the divorce, she had been to Australia in 2008, Taiwan in 2010, Korea in 2011 and Japan in 2012. There were also 2 short trips in the Guangdong Province which she had spent about $1,000 each time.  She however has no plan of going overseas this year. 

54.I have no doubt that $1,250 per month or $15,000 per year is excessive.  This figure is not supported by the previous spending pattern whether during the marriage or thereafter.   Doing the best I can, I would assess it at $5,000 per year, ie $416.67.  I would round it up to $420.

55.Medical / Dental: H admitted that after divorce S lost the medical benefits provided by his employer.  S has to shoulder her own medical expenses.  

56.S states she needs $2,500 per month. This include the following:

Nutritional tablets	$1,000
Chinese medicine	$300
Doctor consultation fee	$420
Self-purchase medicine	$100
Massage fee	$160
Dental	$400
Health Check per annum	$50 per month  ($600 per year)
Detailed health check every 3 years	$70 per month (($2,520 every 3 years)
Total:	$2,500

57.S admitted that Chinese medicine include herbal food such as American ginseng for meals. 

58.I have no doubt that the amounts for nutritional tablets and Chinese medicines are very much on the high side.   I also wonder whether massage should belong to personal grooming or entertainment.   However, when S is advancing in her age, she may need to spend more on medical and dental consultation.  I do not think Ms Wong has seriously challenged on S’s needs for medical and dental consultation and for medical check-ups.   Doing the best I can, I would deduct $600 from nutritional tablets and $150 from Chinese medicines.  As for massage, I would keep it under this heading.  It makes no difference to the final figure even if I move this item to somewhere else.   Hence, a total sum of $750 is to be deducted, giving a figure of $1,750.

59.As for the remaining items, they are of modest amounts.   I find them reasonable.

60.Hence, I assess S’s monthly needs as follows,

Item	Amount (HK$)
Utilities (electricity, gas, rates, telephone & water, all without concession)	1,600
Management fees	787
Food	3,000
Household expenses	1,000
Meals out of home	1,000
Transport	600
Clothing/Shoes	600
Personal grooming (including haircut and cosmetics)	800
Entertainment / presents	100
Holiday	420
Medical / Dental	1,750
Contribution to parents	200
Total:	11,857

61.S agrees that prior to the cessation of maintenance, her monthly total income was $16,500 ($10,500 from H + $6,000 from elder son).   Hence, it is not surprising that she was able to save up to about $100,000 which allowed her to make small investments in Australian currency and even when H had ceased paying her maintenance, she was still able to buy the water purifying device and go to Japan with the elder son in October, 2012.

62.She also agrees that the above general expenses already cover the elder son’s share of consumption.   She testified that she has no idea whether his elder son is dating someone.  On that basis, I think it is safe to assume that she will continue to receive $6,000 monthly contribution from the elder son.  As a matter of fact, there is nothing to suggest the otherwise.  With this $6,000, her monthly shortage would be about $5,857.    I would round it up to $5,900.

H’s Needs

63.I now turn to the needs of H.  

64.H’s alleged expenses are as follows. For convenience, I would just set out the figures in Hong Kong dollars.

Items	Amount (HK$)
Mortgage Instalments	5,917
Utilities (electricity, gas, rates, telephone & water)	1,190
Management fees	491
Food (meals and fruits)	8,432
Household expenses (Maintenance and Consumable Stuffs)	806
XA’s expenses	4,500
Meals out of home	1,890
Transport	2,340
Clothing / Shoes	800
Personal grooming (including haircut and cosmetics)	2,232
Entertainment / presents	250
Holidays	983
Medical Dental ($4,000 / 12 months)	334
Tax (2011/2012 and 2012/20013) ($10,672 / 12 months)	889.30
Loan	1,221.50
Contribution to parents (AUD 200 to H’s parents in Australia and RMB 300 to XA’s mother)	5,370
Others (magazine)	180
Total:	37,825.80

65.As for the expenses for HQ, they are as follows,

Items	Amount (HK$)
School books and stationery	682
Transport to school (including school bus) (cross border bus $24 round trip)	528
Medical / Dental	30
Entertainment / presents	200
Holidays	500
Clothing / Shoes	500
Insurance premia	350
Lunches and pocket money	1,590
Uniform	100
Others (Miscellaneous fees in school)	50
Total:	4,530

66.Hence, H’s total monthly expenses as claimed are $42,355.80 ($37,825.80 + $4,530).

67.Again, in order not to make this judgment unduly long, I will only deal with those items which are questionable or warrant discussions.

68.Food (meals and fruits): H states that these expenses amount to RMB 6,800, or $8,432 for a household of 4 persons, including XA’s mother.   This also includes fruits in the sum of RMB 800, which means $991.

69.I do not think H is entirely truthful regarding the mother-in-law’s share of these expenses.  At one time, when he was being cross-examined on another subject, he testified that the mother-in-law only comes to stay with the family once for a while.  But when it was on this subject, he said that the mother-in-law is staying with them most of the time.   I do not believe she is staying with the family all the time.

70.Further, I think that the figures have generally been exaggerated or inflated.  For instance, RMB 800 (or $991) for fruits is, in my view, excessive.   Also, given that there are already separate items in his breakdown for breakfast, lunch and dinner, RMB 800 (or $991)  for eggs, rice, flour and condiments are likewise on the high side.  H said that his family (4 persons) dines out twice every month.  I think he has room to economise by dining out less frequently.  This is something that he should do given the limited resources he has.

71.Considering all the above, doing the best I can, I would deduct RMB 1,000 (or $1,239) from this item.  This gives a sum of $7,193.

72.Clothing / Shoes: H states a figure of $800 per month (or $9,600 per year).  I consider this is very much on the high side.  I would assess it at $600.

73.Personal Grooming: H states a figure of $2,232 per month which means $26,748 per year.   This includes haircut at RMB 55 each every month and 15 bottles of what H calls “Seefree’s Youth Original Essence (青春定格原液) which he uses it to spray on his face every morning.  He said this would keep him young.    This essence costs RMB 1,400 (or $1,734) per bottle.  It seems to me that it should be rather expensive for persons with a modest income like H. Obviously, the use of this material is not upon medical advice or prescription, nor will it prolong his working life.  With respect, for one to feel young at heart does not need any of these materials.  There is also no evidence before me that this essence would physically rejuvenate him.    I do not think this item is necessary.  Of course, H is free to buy and use product of this sort if his resources allow him to do so.   As I said, what he should not do is to buy it at the expenses of S.   Accordingly, I would deduct RMB 1,750 (or $2,167) (RMB 21,000 / 12 months X 1.2385 (exchange rate)).  This gives a sum of $65.

74.Holidays: H states a figure of $983 which means $11,796 per years.

75.He testified that he had been to Shaanxi Province (陜西) for obtaining the One-way Permit for XA last year.  For this year, he plans to go to Australia and to Guangxi (廣西) for his brother-in-law’s wedding banquet.   H accepts that the trip to Australia is not a yearly recurring expense.    

76.I consider that H’s figure is on the high side and the trip to Australia is not a yearly expense.  The expenditure on this trip can be compensated by not utilizing some future trips.  Doing the best I can, I would assess it at an overall figure of $5,000, ie $417.  I would round it up to $420.

77.Contribution to parents: There are 2 sums.  The first is AUD 200 for H’s parents who are settling in Australia.  He said his parents are supported by his sisters.  

78.The second sum is RMB 3,000 (or $3,716) which H claimed to have given his mother-in-law every month.  He said his mother-in-law has heart disease and this money is for her medication and living.  There are however no particulars or medical evidence in support of this assertion.  

79.I do respect H’s filial piety towards his parents and towards the mother-in-law on XA’s behalf and I consider this should be encouraged whenever possible.   However, I have to say this duty is a moral duty in the eyes of the law and H’s duty towards S is a legal one.    Given that his parents are well supported by his siblings and there are no concrete evidence on the needs of his mother-in-law, I think half of this figure, ie $2,685 should be reasonable.  I would round it up to $2,700.

80.Magazine: Notwithstanding that this is a rather insignificant item I think half of it, at $90 per month, should be a reasonable amount.

HQ’s Needs

81.Holiday: H states a figure of $500, which means a yearly sum of $6,000.  I have no doubt this is excessive.  With H’s own figure of $420 as allowed by me as a reference, doing the best I can, I would assess it at $4,500 on a yearly basis, ie $375 per month.

82.Lunches and pocket money: H testified that the step-daughter is now attending a secondary school in Yuen Long.  Her lunches and pocket money amount to $1,590 per month.  If 30 days are taken for the calculation, it means a daily sum of $53 and if only school days, ie 22 days, are taken, it means $72.30 per day.   I consider this is a reasonable sum.  

83.Therefore, based on the above assessments, H’s monthly expenses would be as follows,

84.HQ’s monthly expenses will be as follows,

Items	Amount (HK$)
Mortgage Instalments	5,917
Utilities (electricity, gas, rates, telephone & water)	1,190
Management fees	491
Food (meals and fruits)	7,193
Household expenses (Maintenance and Consumable Stuffs)	806
XA’s expenses	4,500
Meals out of home	1,890
Transport	2,340
Clothing / Shoes	600
Personal grooming (including haircut and cosmetics)	65
Entertainment / presents	250
Holidays	420
Medical Dental ($4,000 / 12 months)	334
Tax (2011/2012 and 2012/20013) ($10,672 / 12 months)	889.30
Loan	1,221.50
Contribution to parents (AUD200 to H’s parents in Australia and RMB 300 to XA’s mother)	2,700
Others (magazine)	90
Total:	30,869.80

Items	Amount (HK$)
School books and stationery	682
Transport to school (including school bus) (cross border bus $24 round trip)	528
Medical / Dental	30
Entertainment / presents	200
Holidays	375
Clothing / Shoes	500
Insurance premia	350
Lunches and pocket money	1,590
Uniform	100
Others (Miscellaneous fees in school)	50
Total:	4,405

85.Hence, the total monthly expenses of H should be $35,301.80.   I would round it down to $35,300.

86.I wish to point out that I have not made any adjustment on the money given to XA.  First, this amount has not been subject to serious challenge and appears to be reasonable.  Secondly, H’s wishes and dedication to maintain his wife should be respected, but it should only have been done at his own expenses and not at S’s.

H’s Financial Resources

87.I have no doubt that H has a secure and stable job.  His salary is now $41,277.50, net of contribution to superannuation. His salary is somewhat linked to the pay scale of the civil service.  Same as civil servants, he normally gets pay adjustment every year.  Though H said that he is suffering from a couple of health conditions such as high blood pressure, caecal polyps and haemorrhoids, reinal holes right eyes and arthritis on left knee, there is however no suggestion that these conditions affect his work or would shorten his working life.  H has about 8 more years to go before retiring from his present job at the age of 65.  Though he may still be able to secure some other kind of job, it should be within everyone’s expectation that his salary will be greatly diminished.   Of course, I have not lost sight of the fact that XA is relatively young.  She will only be about 41 years old by the time of H’s retirement. 

88.According to the records, as at October, 2012, H has bank deposits in the sum of about $38,000.  

89.The value of the Shenzhen Property has been agreed at RMB 1,500,000.  The outstanding mortgage loan stands at about RMB 655,000,  hence, a net equity of about RMB 845,000 (or $1,046,500). Though the property is purchased in the sole name of XA, the undisputed fact is that H made contribution to the down payment and other expenses in the sum of RMB 116,400 and he has been shouldering all the monthly mortgage payments, it is hard to believe that he does not have an interest in the property.

90.As at June, 2012, his pension fund accumulated up to about $1,470,000.  I have no doubt that by the time he retires in August, 2021, this sum should be much larger than what it is now.

91.Finally, I do take note of H’s aspiration to have his family moving to live in Hong Kong.   As I said, this is his aspiration; he does not have any concrete plan.  Nor are there any particulars or concrete evidence before me.  I do not think it is pertinent for me to take this into consideration. 

S’s Financial Resources

92.As I said, S admitted that over the years she had been able to save up to about $100,000 for her rainy days.  As at October, 2012, the amount reduced to about $87,000.   In addition to these savings, she is holding about $371,550 proceeds of sale from the Guangzhou Property.  S said she needs about $300,000 for renovation of the Shatin Property.  The property has not been renovated since 1996 or 1997 and it is in desolate state.  In my judgment, apart from the rather vague description from S as to what repairs or renovations are required, there is virtually no concrete evidence adduced to prove the need, the nature and extent of the renovations and the sums involved.  For instance, there are no photographs showing the alleged dilapidated state of the premises nor is there any quotation from a contractor.  In any event, I fail to see why the elder son, as one of the co-owners, should not be responsible for half share of the renovation.   For this reason, I do not accept that S needs this money for renovation.

93.The Shatin Property’s value is agreed at $4,825,000.   Her half share of it would mean $2,412,500.    However, there is no suggestion that S could in any way liquidate this asset.  Likewise there is also no suggestion that H could liquidate the Shenzhen Property.   Both need a roof above their heads.

94.I consider that S’s medical needs may increase as she becomes older and as I said, she has very limited earning capacity. I also bear in mind that S has already relinquished her interest in H’s pension fund and it is very likely that she would not be able to obtain any maintenance or maintenance of meaningful amount after H’s retirement.  I consider it is fair that S keeps the money, at least a greater portion of it, for her future use. 

Conclusion

95.I have already assessed that S’s monthly shortfall is about $5,900 and H’s total expenses are about $35,300.   Considering all the matters in a round, I am of the view that a sum of $5,700 per month should be the appropriate amount for S’s monthly maintenance.  This sum should be within H’s ability, in particular when he gets pay rise in the years to come. I appreciate that S may need to resort to her savings to make up the shortfall of about $200 per month or $2,400 per year.  This is not a significant amount and should not have serious impact on her financial situation.

96.H has failed to pay any maintenance since May, 2012.  Since S had some reserves in her savings, it appears that her life had not been seriously affected during this period.   She could still afford to purchase a water purifying device in October, 2012, some supplements in the sum of about $2,000 in November, 2012 when apparently the same was not on medical advice and a trip to Japan.

97.Therefore, I consider that in all fairness what I should do is to suspend the maintenance order for a period of 12 months, from May, 2012 to April, 2013. 

Orders

98.For the above reasons, I order that the maintenance order under paragraph (4) of the Order dated 4 August, 2005

(1)   be suspended from 1May, 2012 to 30 April, 2013; and

(2)   be varied to $5,700 per month as from 1 May, 2013.  

99.H therefore is to pay S the sum of $5,700 per month being her maintenance, commencing from 1 July, 2013 and thereafter on the 1^st day of each and every calendar month.

100.As for the arrears from May, 2013 to June, 2013 in the total sum of 11,400 ($5,700 X 2 months), H is to pay by way of instalments in the sum of $1,000 per month, commencing on 1 July, 2013 and thereafter on the 1^st day of each and every calendar month until full payment.

Costs

101.I have heard parties’ submissions on costs.  Both parties agree that if I refuse H’ application for discharge, the appropriate costs order is an order nisi that H is to pay S’s costs of this application, to be taxed if not agreed.  

102.I consider this is the appropriate order and I so order.

Ms Wong of Messrs. Joseph C.T. Lee & Co., Solicitors for the Petitioner

Ms Lee of Huen & Partners, Solicitors for the Respondent