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Nlsp v Nnm

Judgment Cited in Precedent Map Related
Vincent
Judgment Date29 April 2005
Subject MatterMatrimonial Causes
Judgement NumberFCMC9187/1997
CourtFamily Court (Hong Kong)
FCMC009187/1997 NLSP v. NNM

FCMC 9187 of 1997

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9187 OF 1997

_________________

BETWEEN

　 NLSP Petitioner
　 and 　
　 NNM Respondent

_________________

Coram : Her Honour Judge Chu in Chambers

Date of Hearing : 6 – 7 January, 10 January and 15 March 2005

Date of Closing Submission of the Respondent : 29 March 2005

Date of Final Submission of the Petitioner : 29 March 2005

Date of Handing Down of Judgment : 29 April 2005

_________________

J U D G M E N T

_________________

1. There are two applications before this Court :

(i) The Respondent’s application issued on 9th February 2004 for variation downward of maintenance payments to the Petitioner and the children. In the same application, the Respondent also sought enforcement of access provision. The matter of access was dealt with on 27th July 2004.
(ii) The Petitioner applied for a charging order nisi on 10th June 2004 for the arrears of maintenance payments since December 2003 against the former matrimonial home at ------------------------------------------------------- (“the Property”), which is now held in the Respondent’s sole name. A Charging Order to Show Cause was issued on 21st July 2004.

2. The Respondent has been granted legal aid to cover his application for variation only, and therefore his solicitor, Mr Wong, only has instructions to appear for him regarding his application for variation, and the Respondent will have to deal with the Charging Order to Show Cause himself. In the circumstances, I decided to hear his application for variation first, and in any event his variation application was issued prior to the Petitioner’s application for the charging order.

3. For convenience sake, and although the parties are now divorced, I will call the Petitioner “the Wife” and the Respondent “the Husband” hereinafter.

BRIEF BACKGROUND

4. The parties were married on 6th March 1986, and there are two children of the family, the elder one, being born on 22nd November 1989, now aged 15, and the younger one, being born on 4th June 1992, now aged 12.

5. The Wife petitioned for divorce on 3rd September 1997, and a Decree Nisi was granted to her on 11th February 1998. The Decree was made Absolute on 29th August 1998.

6. On 8th July 1998, there was a consent order (“Consent Order”) providing for, inter alia, as follows :

(i) Custody of the two children be granted to the Wife with reasonable access to the Husband.
(ii) The Husband do pay HK$4,800 per month for the Wife until she dies or remarries.
(iii) The Husband do pay HK$5,100 per month for each of the children until such child reaches the age of 18 or completes full time education, whichever shall be the later.
(iv) The Husband shall pay a lump sum of HK$600,000 to the Wife, by instalments, and subject to the legal aid first charge, as follows : -
(a) HK$50,000 to be paid on or before 15th August 1998
(b) HK$50,000 to be paid on or before 15th January 1999
(c) HK$50,000 to be paid on or before 15th July 2000
(d) HK$50,000 to be paid on or before 15th January 2000
(e) HK$400,000 to be paid on or before 15th July 2000
(v) Upon full payment of the lump sum, the Wife shall transfer to the Husband all her interest in the Property, subject to the then mortgage and to the consent of the Housing Authority.

7.. The Husband complied with the periodical payments terms of the Consent Order until December 2003, the November payment was, according to the Husband, made by his sister, on his behalf. The Husband now applies for variation downward of the periodical payments terms in the Consent Order, with effect from 15th December 2003.

8. On 27th July 2004, a consent order was made in relation to certain defined access terms. During the same hearing, this Court made an interim order that the Husband shall have to pay to the Wife HK$100 per month, and HK$200 per month per child, totalling HK$500 per month, commencing from 1stt August 2004 and pending the hearing of his variation application (“Interim Order”).

THE HUSBAND’S GROUNDS FOR APPLICATION

9. The Husband alleges that there have been material changes in his circumstances since the Consent Order in July 1998 and the present, namely : -

(i) His psychiatric illness

(ii) His work as an auxiliary police has ceased

(iii) His earning capacity has been affected by his psychiatric illness and his income has reduced

(iv) The Wife’s spending pattern was grossly excessive

(v) The Wife’s income has increased since July 1998

10. In the Husband’s application issued on 9th February 2004, he sought, inter alia, to reduce the periodical payments for the Wife from HK$4,800 per month to HK$200 per month, and periodical payments for each child from HK$5,100 to HK$900 per month, thereby making a total of HK$2,000 per month for the Wife and the two children, instead of HK$15,000 per month.

11. However, in his Closing Submission, Mr Wong submits that the Husband could not pay a sum of more than $1,000 per month for the Children’s maintenance and seeks a reduction to this amount commencing from 15th December 2003.

12. Mr Wong submits that the arrears of maintenance should be :

HK$1,000 x 7.5 month (not 8.5 months
as it appears to have been mistakenly
typed in Mr Wong’s Final Submission)
(from 15.12.03 to 31.7.04)		 HK$7,500 　
HK$1,000 per month x 8 months
(from 1.8.04 (date of commencement of Interim Order)
to 31.3.05)		 HK$8,000
___________
HK$15,500
Less : $500 per month x 8 months paid HK$4,000
___________
HK$11,500

THE WIFE’S PROPOSALS

13. In his Final Submission, on behalf of the Wife, Mr Hout submits that the Wife is prepared to waive the HK$4,800 monthly maintenance for herself, but says that the Husband should be ordered to pay a monthly maintenance of not less than HK$6,000 for the two children, namely $3,000 each, from 1st August 2004, plus a sum of $156,500 being arrears from 15th December 2003 todate, calculated as follows : -

$15,000 x 7.5 months
(from 15.12.03 to 31.7.04)		 HK$112,500 　
HK$6,000 x 8 months
(from 1.8.04, date of Interim Order
to 31.3.05) 		HK$48,000
____________
HK$ 160,500
Less : $500 per month x 8 months paid HK$4,000
____________
HK$156,500

(It is noted that at the opening of the trial on 6th January 2005, the Wife’s position was that although she was willing to accept $1.00 per annum for herself, the Husband should pay $5,000 per month for each child, totalling $10,000 per month, with effect from 1st August 2004).

14. Further or alternatively, Mr Hout submits that this Court should make a lump sum order against the Husband.

THE LAW

15. Where the court has made an order for periodical payments, it 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 under s. 11 of the Matrimonial Proceedings and Property Ordinance (“MPPO”).

16. Further, S. 11(7) of MPPO provides that : -

“In exercising the powers …... 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 ……”.

17. The matters to which this court was required to have regard when making the order are set out in s. 7 of MPPO.

18. I have also been referred to the latest Judgment of the Court of Appeal, CCS and LSM, CACV 126/2004 which sets out the legal principles, and Mr. Justice Tang said in paragraph 18 :

“…… on an application for variation made under section 11 of the Matrimonial Proceedings and Property Ordinance, Cap 192, the success of the application does not depend necessarily on change in circumstances nor indeed on the change in circumstances being unanticipated. What the court should do is to look at the application to vary, on the basis of the means of the parties as they stand at the time when the case is before it and approach the matter as if it were assessing the payment de novo”.

THE ISSUES

19. The main issues here appear to be :

(i) The Husband’s present earning capacity

(ii) The Husband’s alleged loans

(iii) The Wife’s alleged loans

(iv) The Wife’s expenses

THE HUSBAND’S EARNING CAPACITY

20. The Husband has filed several affirmations, including two Form Es and a number of answers to the Wife’s Requests for Further and Better Particulars.

21. The Husband currently continues to reside in the Property together with his mother. Having paid the lump sum of HK$600,000 to the Wife to buy out her interest in the Property, under the terms of the Consent Order, the Property has been transferred into his sole name on 22nd February 2001. According to a memo dated 5th January 2005 from the Commissioner of Rating and Valuation, the valuation of the Property was HK$1.4m on a vacant possession basis. There is a discount rate of about 38% for the premium payable to the Housing Authority. Further, there is still an outstanding mortgage loan, of about $176,835.28, and the Husband has to pay HK$2,993.43 per month towards the repayment.

22. The Husband also holds 50% interest in a property in Dongguan China (“Donggaun Property”). His younger sister (“NHF”) holds the other 50%. This property was purchased in May 1996. He says that this property is now not worth much, as there is no title certificate, and the agents’ asking price is about RMB130,000. The purchase price plus decoration expenses came to about...

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