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Cca v Npca

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date20 July 2012
Year2012
Judgement NumberFCMC1447/2007
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC1447/2007 CCA v. NPCA

FCMC 1447 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1447 OF 2007

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

BETWEEN

CCA Petitioner
and
NPCA Respondent

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

Coram: Deputy District Judge G. Own in Chambers (Not Open to Public)

Dates of Hearing: 6th & 7th February, 22nd & 23rd May 2012

Date of Written Final Submission: 11th June 2012

Date of Exchange of Written Reply: 20th June 2012

Date of Judgment: 20th July 2012

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J U D G M E N T
(Variation of Maintenance)

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Introduction

1. The Petitioner is the Wife (“W”). The Respondent is the Husband (“H”). Both H and W are French nationals. This is an application by H seeking downward variation of maintenance for the 2 children of the family, namely, P who is now aged 12 and T, who is now aged 8.

Background

2. The parties married in 1997. The marriage lasted for 9 years when the parties separated in 2006. Divorce proceedings were commenced upon the fact of Unreasonable Behaviour which went uncontested. The Decree Nisi was granted on 4 April 2007. The Decree Absolute was granted on 5 July 2007.

3. Both parties were legally represented at the time of the divorce. Parties through their respective legal representatives agreed on matters of custody and ancillary reliefs. A Consent Order dated 14 June 2007 (“June 2007 Order”) was granted whereby H and W are to have joint custody of the 2 children of the family with W having the care and control. In anticipation of W moving to Brussels, Belgium, leave was granted for both children to remain outside jurisdiction of Hong Kong. The June 2007 Order also provides for detailed defined access for H.

4. In so far as the June 2007 Order concerning ancillary reliefs, the parties entered into a “clean break” agreement whereby W received a lump sum of €820,000 which is approximately HK$10.08 million (by adopting the then exchange rate of around €1 to HK$12.3).

5. As for the 2 children of the family, H undertook to maintain them at a reasonable level including provisions for payment of school fees, school bus and school lunches. Details of H’s Undertaking are set out in Clause K of the June 2007 Order as follows :

“K. AND UPON the Respondent undertaking to the Court and to the Petitioner that he will continue to be responsible for maintaining the children of the family, namely, P, a boy, born on xxxxx 2000 and T, a girl, born on xxxxx 2004 at a reasonable level which will include the children’s school fees, school bus, and school lunches, so long as they continue to study in the French Lycee or an international school with French as the teaching medium and thereafter at such educational establishments as may be appropriate for each of the children until they complete their respective tertiary education;”

6. Paragraph 7 of the June 2007 Order also provides :

“For the period from 1st September 2007 to 28th February 2008, the Respondent shall pay €5,000 per month into a separate account in Belgium to be nominated by the Petitioner solely as a temporary measure for paying the children’s expenses (“temporary children maintenance”) until the review on 1st March 2008. The Petitioner and the Respondent’s agreement is not to constitute their acceptance that the sum of €5,000 a month represents the appropriate level of maintenance for the children and is entirely without prejudice to the Petitioner and the Respondent’s respective rights to seek the Court’s determination of the appropriate children’s maintenance after the review on 1st March 2008 whereupon the Petitioner and the children will have settled in Brussels for some time. The Petitioner in return will undertake to keep a monthly breakdown of all the children’s expense items, together with supporting receipts to be provided to the Respondent on the 7th day of the following month. The Petitioner will also give credit to any over payment arising from the temporary children’s maintenance in the ongoing children’s maintenance after 1st March 2008 if it is found to be in excess of the appropriate maintenance in the review on 1st March 2008 or as determined by the Court and the Respondent will also offset any under payment arising from the temporary children’s maintenance in the ongoing children’s maintenance after 1st March 2008 if it is found to be less than the appropriate amount in the review on 1st March 2008 or as determined by the Court.”

7. Pursuant to paragraph 7 of the June 2007 Order, W issued a Summons on 6 March 2008 seeking review of the children’s maintenance. Such application was adjourned with directions given under a Consent Order dated 28 March 2008 (“March 2008 Order”). As for the children’s maintenance, it provides :

“1. The Respondent do continue to pay to the Petitioner for the benefit of the children a total sum of €5,000 per month commencing on 1st March 2008 and thereafter on the 1st of each succeeding month until the determination of the Petitioner’s review application by the Court by way of Summons dated 6th March 2008, or pursuant to the agreement of the parties, such payments to be made by way of direct credit into the children’s bank account in Brussels, with the Respondent responsible for all bank charges incurred, if any;”

8. The parties eventually reached agreement on the children’s maintenance in respect of W’s review Summons. A Consent Order dated 2 February 2009 (“February 2009 Order”) was granted which provides, inter alia :

“1. There be a variation of the voluntarily maintenance contained in

the Custody Order dated 14th June 2007 for the children of the family, namely, P, a boy born on xxxxx2000 and T, a girl, born on xxxxx2004 (“the Children”) until they shall respectively attain the age of 18 years old or cease full time tertiary education, whichever is the later or further order, at the rate of €2,200 per month per child, thereby making a total of €4,400 per month from 1st February 2009 onwards, such payment to be payable quarterly in advance, index-linked and adjusted in accordance with any movement in the ‘indice de sante’ of Belgium every year with the first review date on 1st February 2010.”

9. It is common ground that the elder child P suffered from anxiety and behavioural issues since 2002. Whilst in Brussels for a few years, P’s problems ensued and escalated to a stage where both parties agreed that it would be in P’s interest to move P back to Hong Kong on a temporary basis. A Consent Order dated 26 August 2010 (“August 2010 Order”) was granted which provides, in so far as P is concerned, inter alia :

“(C) AND UPON the Petitioner and the Respondent further agreeing and accepting that upon P returning to live with the Respondent in Hong Kong on or before 1st September 2010 :-

(i) there will be a variation of the Original Children’s Maintenance Order to the effect that the Petitioner will be receiving for the maintenance of P only €1,502 representing half of P’s share of general expenses which is based on the Petitioner’s current monthly expenses declaration un Part 4.1 of her Form E dated 10th April 2008 for P each month until end of December 2010 whereupon the parties have agreed to further review the children’s maintenance for 2011 onwards on or about 1st January 2011;

(ii) in the event that P returns to live with the Petitioner in Brussels before the aforesaid review date, the Respondent will resume paying the full maintenance of €2,240 for P.

(D) AND UPON the Petitioner and the Respondent agreeing and acknowledging that :-

(i) on or before end of December 2010, the Respondent will discuss with the Petitioner on the progress of P’s settlement in Hong Kong and the Respondent will be willing to seek independent third party to assess P’s situation if it is the parties’ conclusion that P is encountering adjustment difficulty in Hong Kong;

(ii) there will be an annual review of the Children’s schooling in respect of the geographical location when the requirement of enrolment or re-registration for the new academic year has to be made which is customarily occurred in March or April 2011 and at the same time P’s situation in Hong Kong will be reviewed as well.

(E)…………..

IT IS HEREBY BY CONSENT ORDERED that :-

(1) Paragraph (1) of the Original Joint Custody Order dated 14th June 2007 be varied so that the care and control of the eldest child of the family, namely, P, a boy, born on xxxxx2000 to be vested in the Respondent with undefined access to the Petitioner until further order;

(2) Paragraph (1) of the Original Children’s Maintenance Order dated 2nd February 2009 in relation to the Respondent’s obligation to pay to the Petitioner a monthly maintenance of €4,400 for the benefit of the children of the family which has since been increased to €4,480 as from February 2010 which is currently at the rate of €2,240 per child be varied with effect from 1st September 2010 such that the Respondent’s obligation to pay to the Petitioner periodical payment for the eldest child P be varied to €1,502 as from September 2010 until end of December 2010 whereupon the monthly maintenance will be reviewed and varied accordingly as provided for in paragraph (C) as well as the annual index-linked adjustment based on the ‘indice de sante’ of Belgium.”

10. On 6 January 2011, H sent to W an email proposing the amount of children’s maintenance. No consensus was reached. In March 2011, H reduced P’s maintenance from €1,502 to €231; maintenance for T was also reduced from €2,240 to €1,880.

11. On 6 April 2011, H issued the present Summons for variation of the children’s maintenance to €231 for P and €1,880 for T to take effect from April 2011; such Summons was later...

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