L v W

Court:Family Court (Hong Kong)
Judgement Number:FCMP167/1998
Judgment Date:04 Jul 2005
FCMP000167/1998 L v. W

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT MISCELLANEOUS PROCEEDINGS

NUMBER 167 OF 1998

_________________

  IN THE MATTER of , a minor
  and
  IN THE MATTER of GUARDIANSHIP OF MINORS ORDINANCE, CAP. 13

and

IN THE MATTER OF THE PARENT AND CHILD ORDINANCE, CAP. 429

_________________

BETWEEN

  L Petitioner
  and
  W Respondent

_________________

Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing : 16 & 25 July, 2 & 21 October 2003, 15 January,
2 March, 17 May, 10 August, 12, 13 & 15 October,
3 November 2004, 24 January, 15 February,
18 April, 5 May, 9 & 22 June 2005

Date of Judgment : 4 July 2005

_________________

J U D G M E N T

_________________

1. There are 3 applications before me, one by the Respondent Father for reduction of the current maintenance of $6,000 per month payable by him to the Applicant Mother for their 9 years old son under a consent order made on 3rd January 2000 in these proceedings, on the grounds that his means has since deteriorated and that the Applicant Mother does not actually need as much as $6,000 per month to maintain the said child. The other 2 applications are by the Applicant for an order requiring the securing of the said maintenance of such sum as the court thinks reasonable against the Respondent, and for a garnishee order against one of his bank accounts for arrears of maintenance accrued during the proceedings.

Background

2. The Respondent is a married man in his late 50s who has been living apart from his wife and 2 grown-up children since about 1993. In about 1994 he entered into cohabitation with the Applicant, who was a divorcee but some 20 years his junior, in a rented apartment in Shamshuipo, Kowloon. The Respondent was then a manager employed by Hong Kong Telecom and was studying for a Master degree of Business Administration, while the Applicant was a company clerk.

3. In late 1995 the Applicant became pregnant with the said child but the parties’ relationship started to deteriorate, and despite the birth of the child in March of the following year, their relationship was eventually terminated in December 1996 when the Respondent moved out of their apartment.

4. After their separation the Respondent initially gave the Applicant $10,000 per month as maintenance for her and the said child. In about September 1997 he reduced the amount to $5,000, and a year later in August 1998 he stopped payment altogether. As a result the Applicant instituted these proceedings under s. 10 of Guardianship of Minors Ordinance, Cap. 13 on 3rd November 1998 for custody of the said child and an order for the Respondent to make reasonable financial provision towards his maintenance.

5. What appeared to be a relatively simple and straightforward application was unfortunately and unnecessarily complicated when the Respondent was initially evasive of service, and later when cornered with the proceedings, disputed, and without merits if I may add, the fact that he was the father of the child, resulting in paternity tests being carried out and further directions made. It also turned out that the Respondent was made redundant of his job at Hong Kong Telecom at about the same time and the Applicant found it necessary to apply and obtained an injunction to freeze part of his severance payment to ensure that there would be funds available from the Respondent to meet her application.

6. At the end common sense prevailed and the parties were able to settle their dispute on 3rd January 2000 when the Respondent agreed to pay $6,000 per month as maintenance for the said child until he reaches the age of 18 or completes full time education whichever is later, and that such maintenance payment was to be secured against his interest in a property in Tai Tam Road, Chai Wan, Hong Kong, which terms were than made an order of the Court. This is the maintenance order which the Respondent now seeks to vary by reducing the said monthly sum in accordance with his present means and the actual needs of the child, by way of a summons issued on 24th October 2002. The summons was adjourned at the hearing on 25th November 2002 for the parties to file their respective affidavit of means, and that the Social Welfare Department was directed to supervise the Respondent’s access to the child after his many complaints of having difficulty exercising it which led to continuing quarrels between the parties over the intervening period, as evidenced by the several social welfare reports submitted on the problems. There were also a few judgment summons and garnishee proceedings taken out by the Applicant to enforce payment of the arrears of maintenance when the Respondent unilaterally stopped or reduced payments for the child after he had applied for the variation, but which were all eventually withdrawn by the Applicant when the Respondent subsequently paid up the arrears on the understanding that it would not prejudice his application, save for the last one taken out in late 2004 which was adjourned pending the outcome of the trial.

7. Unfortunately this did not mean that the issues between the parties would be kept simple or straightforward, as the exchange of affidavit of means was soon followed by extensive requests for further and better particulars and questionnaires from each side, whilst the Applicant also took out an application on 9th July 2003 for an order for the Respondent to provide a lump sum as security against his maintenance payments due to his frequent defaults and that as his property against which the maintenance was secured under the original order turns out to be the matrimonial home occupied by his wife and children and hence cannot be easily enforced, which application was later subsequently adjourned to be heard together with the Respondent’s variation application.

8. This litigation was further complicated by several new issues arisen during the course of the hearing which protracted the trial and unfortunately also embittered the parties.

9. On 2nd March 2004 which was supposed to be the day for the parties to make their final submissions upon the close of their evidence, the Respondent suddenly launched an application for variation of the custody order as he believed that the child would be better off under his care and custody in view of his belief that the Applicant had entered into cohabitation with another man. It was naturally opposed by the Applicant and as a result the hearing was adjourned for investigation by the Social Welfare Department.

10. The Social Investigation Report which was dated 13th May 2004 revealed that the Applicant was indeed living with her boyfriend together with the child but would not support the Respondent’s application for custody of the child.

11. At the restored hearing on 10th August 2004, the Respondent decided not to pursue his application for custody which was therefore dismissed, but it did not mean that the parties’ maintenance dispute was any closer to its conclusion as the Social Investigation Report also revealed that the Respondent had earlier purchased a property in Shaukeiwan as his residence but which he had hitherto never disclosed in any of his affidavits or oral evidence.

12. Not surprisingly, this caused the Applicant to immediately launch a full-scale investigation into the purchase of the said property including issuing several subpoena on the Respondent’s bankers for disclosure of any further bank accounts of the Respondent and re-opening of her cross-examination on his means, and when the Respondent explained that he purchased the said property on behalf of his present girlfriend, a Ms Cheng and was merely holding it in trust for her, it was inevitable that she was called to give evidence in respect of the property, which of course further prolonged the hearing.

13. I may also add that despite allowing his application for variation of custody to be dismissed on 10th August 2004 after confirming that he no longer wished to pursue the matter, the Respondent took out another application for the same towards the closing stage of the hearing on 22nd April 2005, and then decided not to proceed with his application, preferring to adopt an “wait and see” attitude pending the outcome of the maintenance dispute.

14. Although almost all the affirmations and pleadings filed by the parties were in English, with a view to save time and costs, I acceded to the parties’ request to give their evidence at the hearing in Chinese.

The Law

15. There is no question that the Court can vary the said maintenance order, the power of which comes from s. 10 (4) of the Ordinance which provides that an order made under subsection (2), i.e. the said maintenance order, may be varied, discharged, suspended or revived after being so suspended, by a subsequent order made on the application of either parent.

16. There is however no statutory guidance under this subsection as to how the Court should vary the maintenance order, although in making the original maintenance order under subsection (2), it speaks of a “reasonable” award having regard to the means of the parent against whom the application is made. This means that the Court has a discretion in the matter, and subject to the result being “reasonable” having considered the means and financial situation of that parent, the discretion is not fettered in any way, as in order to arrive at a reasonable award, it would in fact be necessary to also consider all the relevant circumstances of the case, in particularly as in this case where there are multiple issues beyond not just over the means of the Respondent, but also the means and financial situation of the Applicant and the child’s needs, as well as any change to any of these matters since the making of the original maintenance...

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