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Ac v Mfhj

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date03 August 2018
Neutral Citation[2018] HKFC 127
Judgement NumberFCMC17626/2012
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC17626/2012 AC v. MFHJ

FCMC 17626 / 2012

[2018] HKFC 127

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 17626 OF 2012

----------------------------

BETWEEN
AC Petitioner

and
MFHJ Respondent

---------------------------

Coram: His Honour Judge I Wong in Chambers (Not open to Public)
Date of Hearing: 27 February, 6 and 13 March, 12 and
19 (half-day) June 2018
Date of Judgement: 3 August 2018

__________________

Judgment
(Variation of Maintenance)

__________________

Introduction

1. This trial deals with various money matters, the main issue being whether the maintenance payable by the respondent father for the benefit of their daughter should be varied or not. The parties are poles apart. The petitioner mother is seeking a substantial increase whilst the respondent father is seeking a discharge of his obligation, and at the same time, a monthly sum of $12,500 payable by the petitioner as maintenance for their daughter.

Background

2. The petitioner, now aged 39, is an Indonesian-Chinese and was brought up there. The respondent is French and now 44 years old. The parties met in London when the petitioner was studying for her master’s degree and the respondent was working there. After the petitioner had returned to Indonesia for good in 2005 the parties decided to live together. They chose Hong Kong and so they came in 2006 and have since been living here. They gave birth to their only daughter in September 2006 who, in this judgment, is referred to as “SF”. SF is now 11 years old.

3. On 27 November 2012 the petitioner petitioned for divorce on the ground of the respondent’s unreasonable behaviour. At that time, both parties were legally represented. The petition was initially contested with an Answer. With the assistance of their solicitors, after a few scuffles the parties were able to settle their disputes resulting in turning the petition to an uncontested one and 3 consent summonses embodying the terms of their settlement. The first consent summons was on the arrangement of SF, then followed by the second and the third consent summons dealing with the maintenance of SF and the parties’ financial matters respectively.

The Settlement Reached by the Parties upon their Divorce – the 3 Consent Orders

Consent Order dated 29 November 2013 (“the 1st Consent Order”)

4. By the 1st Consent Order, the joint custody of SF is granted to the parties with care and control to the petitioner. The respondent is to have access to SF from 6:00 pm Friday until 9:00 am the following Monday for 3 consecutive weeks; leaving one weekend for the mother to stay with the daughter. On the top of that, the respondent would also have access from 6:00 pm to 8:30 pm every Wednesday. As for long holidays, without going into the details, the overall arrangement is that each party is to have an equal share of the time if he or she would like to take SF out of Hong Kong.

5. There are also undertakings embodied in the order that they would keep the other party informed of and consult with each other as regards the major decisions in relation to SF including but not limited to medical, educational and religious issues and the selection of extra-curricular activities and that SF will continue to attend her piano class every Saturday and Mandarin class every Tuesday and Thursday and no other extra-curricular activities shall be committed to without the consent of the other party.

6. Turning to the financial aspects, the same were settled during the Financial Dispute Resolution hearing of 7 July 2014, resulting in 2 consent orders.

Consent Order dated 30 July 2014 (“the 2nd Consent Order”)

7. The 2nd Consent Order contains an undertaking by the respondent that he is to pay “the school expenses directly payable to the school including school fees, school trips, school bus fees and the like in full for the child of the family, (SF) until she shall reach the age of 18 years of age or completes full time education whichever is the later”.

8. There is also an order that the respondent is to pay the petitioner a monthly sum of $8,000 per month for the maintenance of SF. This is the very order subject to review at this trial.

Consent Order dated 30 October 2014 (“the 3rd Consent Order”)

9. As for the petitioner’s application for her own ancillary relief, the parties decided to have a clean break on that. In brief, the 3rd Consent Order expressly provided that the settlement terms are for full and final settlement of each’s claim against the other. The respondent had to pay the petitioner a capital sum of $4,420,000 by 2 equal instalments.

10. There are also various undertakings, acknowledgments or agreements given by the parties. I only need to set out those that are relevant to the issues before me:

(1) An agreement and acknowledgement that they will each be responsible for their own tax liabilities, whether in Hong Kong or elsewhere (Recital F).

(2) An agreement that the parties “will both each file separate tax returns, and that they shall both agree (i) in any tax year and/or (ii) upon any material change of circumstances; as to which of them shall claim the tax allowance in respect of (SF), which shall for the time being be the respondent” (Recital K) (emphasis added).

(3) An acknowledgment and agreement that the maintenance for SF will be reviewed by them both on a regular basis no less than annually and during January of every year following the Order (Recital J) (emphasis added).

(4) The undertaking that the respondent has given in the 2nd Consent Order regarding the payment of “school fees, school trips, school bus fees and the like in full” is repeated in Recital M.

11. Decree nisi was granted on 30 October 2014; and it was made absolute on 22 January 2015.

12. While what the parties had at the time of their divorce might only have been a few scuffles, the real battles were in the aftermath. Troubles soon emerged even before the granting of the decree absolute. In no time the parties found themselves in court again on the respondent’s applications in November 2014 for (1) varying the lump sum payment from 2 instalments to 6; and (2) for varying SF’s monthly maintenance from $8,000 to zero. These were caused, according to the respondent, by the downturn of his career resulting in a plunge of his income and his inability to raise funds for the lump sum. Fortunately, before the respondent’s applications came to trial he was able to honour his agreement. According to him, it was not until July 2015 that he was able to liquidate his apartment in London, which allowed him to be able to make the payments in full out of the net proceeds of $6,125,000. The applications were withdrawn by way of a consent summons on 31 August 2015 with an order that the respondent was to bear the petitioner’s costs.

The Applications

13. The applications now before me are the latest ones only. As can be seen below, the parties are now at their loggerheads, up to the point, in my view, of being somewhat irrational and even puerile in maintaining his or her own stance.

14. There are a number of applications from both sides. The first 2 gun-shots were fired by the petitioner.

15. First, on 13 March 2017, with the leave of the court the petitioner took out a judgment summons on which she alleged that the respondent defaulted in paying SF’s monthly maintenance as from April 2016.

16. Secondly, on 27 April, 2017, she applied to have the monthly maintenance for SF to be increased from $8,000 to $60,000. That, she said, is for renting a larger accommodation for her and the daughter.

17. The next day, on 28 April, 2017, probably a reaction to the petitioner’s application, the respondent applied to have the monthly maintenance to be reduced to zero. Then on 10 July, 2017, he took out 3 further applications for:

(1) ‘variation of the child maintenance, school fees and the likes’;

(2) variation of SF’s access and permission for SF to leave Hong Kong for holidays; and

(3) refund of the following monies:

(i) The tuition fees that he spent on SF’s mandarin and piano classes in the last 4 years;

(ii) The damages that he has suffered as a result of the petitioner’s refusal to withdraw the registration of her Notice of Application for Ancillary Relief (“Notice of Application”) against the former matrimonial home at the Land Registry even after the parties had settled the ancillary relief proceedings and he had paid the lump sum in full; and

(iii) The damages that he has suffered as a result of the petitioner’s unreasonable and uncompromising stance regarding who and how the child tax allowance was to be claimed for the parties’ income tax liabilities.

18. In his affirmation of 10 July 2017, the respondent even claimed for monthly maintenance in the sum of $12,500 payable by the petitioner for the benefit of SF.

19. By an order dated 26 June 2017, the petitioner’s judgment summons was adjourned pending the determination of the variation applications. The respondent’s application regarding SF’s access and holidays is being dealt with separately. A social investigation report has already been submitted to the court and the matter is due to be dealt with by way of a Children Dispute Resolution on 21 August 2018. Hence, this Judgment would deal with the financial matters only.

20. There is also a small matter. By an order dated 24 October 2017, upon the application of the respondent, I gave an order that the registration of the petitioner’s Notice of Application against the respondent’s property be vacated with costs reserved. I would also need to dispose of the costs issue here.

21. Lastly, it is necessary to mention that at the time of this trial, there was a taxation proceedings taken out by the...

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