Case Document

100%Judiciary

FCMC 14697 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14697 OF 2011

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BETWEEN
	BX	Petitioner
and
	BMPE	Respondent
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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 3 July 2014

Date of written closing submission: 3 and 9 July 2014

Date of Judgment: 18 July 2014

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J U D G M E N T

(Variation of maintenance)

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Introduction

1.This is an application by the Petitioner husband to vary the court order dated the 19 November 2012. He wishes to vary the maintenance payments down for the wife from HK$1,000 per month to zero and for the children from HK$15,000 per month per child to HK$10,000 per month per child. In the Notice of Application he says that he is able to pay between HK$20,000 – HK$25,000 per month in total for the children. This application is dated the 13 March 2014.

Background to the litigation

2.The parties married in November 1998 in France and on the 21 October 2011 the husband issued a divorce petition based on mild unreasonable behaviour particulars. This was later amended to one year separation with consent. There are two children of the family, a boy who was born in September 2005 and who is now 8 years of age and a girl, who was born in March 2009 and who is now 5 years of age. The decree absolute was pronounced on the 14 March 2013.

3.On the 19 November 2012 the parties entered into a comprehensive agreement at the Financial Dispute Resolution hearing with respect to their finances. The husband agreed to pay HK$15,000 per month per child but on the premise that these maintenance payments be reviewed in 12 months time. It was also agreed that a property in France should be transferred from the parties’ joint names into the name of the wife.

4.The wife subsequently formed a new relationship with someone else and it was subsequently agreed that she should be given leave to permanently remove the two children from Hong Kong in order to reside with them and her new partner in New Zealand. The wife also undertook to pay for one return air ticket per annum for the children to come to Hong Kong in order to visit their father.

5.The husband is a product designer and he is currently working on a free lance basis. The wife for her part previously worked part time as a school monitor with X International School. She intends to work in New Zealand.

The issues

6.The wife maintains that notwithstanding her relocation that the husband should continue to pay the same level of maintenance for the children as before. The husband for his part says that he simply cannot afford to continue to pay a total of HK$30,000 per month. The only issue then is what is the appropriate level of maintenance for the children going forward?

The law

7.The husband’s application to vary is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap. 192, which provides that:

“(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 ……”

8.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, 7^th edition). It is also true that there would normally be a reason for the application to vary or what some might call a “trigger”.

9.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).

10.It is also true that 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. (See Baker v Baker [1995] 2FLR 829).

Discussion

Should the maintenance for the children be reduced to HK$10,000 per month per child?

11.The husband has been able to produce evidence to show that his income has fallen since December 2013. He was in full time employment from September 2012 to November 2013 and at that stage he was earning HK$50,000 per month. Thereafter he began working on a freelance basis and his income consequently become more unstable. He says that the present maintenance level is not sustainable. I accept what he says in that respect. I also accept that he had foretold this in the consent order arising out of the FDR hearing.

12.The wife was given an opportunity to file and serve an affirmation setting out the proposed expenses in New Zealand and her plans generally in that respect. She subsequently filed an affirmation which was filed on the 23 May 2014. In total she estimates that she will need almost HK$42,000 for the children’s basic expenditure plus a further sum for travel. In total she claims HK$52,150 per month. The difficulty is that the wife was not able to provide the court with any information about her own plans other than the fact that she intended to work. She was not able to indicate what kind of income she might hope to achieve. She included a significant fee for after school care – but it was not clear if that would be needed. Further she also included a figure of HK$9,200 for rent and rates for the children, whilst at the same time acknowledging that the children would be living with her and her new partner in a property held by a family trust. In other words the implication was that the there would not be any actual rent to pay. In such circumstances it does not seem to me to be fair or reasonable to attribute such amount to the children. Certainly if the property is mortgaged I would not expect the husband to be contributing towards the new partner’s mortgage repayments in any event. Other expenses were also quite high and unsupported. The wife acknowledged this in part when she said that she would have a clearer idea of actual expenses once she had moved to New Zealand but at present what she had provided to the court were estimates.

13.The husband for his part said in his closing that the wife had not really submitted any evidence to support her case and that he “truly believe we can save a bit in most of the areas”. I would accept that to be the case.

Conclusion

14.In such circumstances I will vary the maintenance down for the two children to HK$10,000 per month per child with effect from the 1 August 2014.

Order

15.Thus an order will be made as follows:

a) Order 2 contained in the court order dated the 19 November 2012 shall be varied to the extent that the monthly maintenance figure shall be reduced from HK$15,000 per month per child to HK$10,000 per month per child with effect from the 1 August 2014, until each child shall attain the age of 18 years or cease full time education whichever is the later.

b) Order 3 contained in the court order dated the 19 November 2012 shall be varied to the extent that the maintenance for the Respondent shall be varied to nominal periodical payments of HK$1 per annum during the joint lives of the parties or until the Respondent’s remarriage, whichever is the shorter.