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Yeung Wong Yuen Wah v Yeung Ying Wing

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date31 December 1977
Year1977
Judgement NumberFCMC477/1972
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC000477/1972 YEUNG WONG YUEN WAH v. YEUNG YING WING

FCMC000477/1972

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

DIVORCE JURISDICTION

ACTION NO. 477 OF 1972

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BETWEEN
YEUNG WONG YUEN WAH also known as WINNIE YEUNG Petitioner
and
YEUNG YING WING Respondent

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Coram: Mr. Registrar Barnett in Chambers.

Date of Judgment: 31st December 1977

Petitioner in person.

Patrick Woo (P.C. Woo & Co.) for Respondent.

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DECISION

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1. The Petitioner applies to vary the terms of a maintenance order (which I shall call the Order) made by Mr. Registrar Silke dated 20th September 1974.

2. It is important to note that the Order was made after there had been several adjournments for the Respondent to file detailed evidence of his financial position by way of affirmations; that there was full argument, and that the Petitioner was then represented by leading counsel. The terms of the order were:-

(a) To allow for the existing needs of Timothy, Tessa and Andrew in relation to education and general living expenses a sum of $6,000.00 per month, to be secured to the satisfaction of the Court and until further order.
(b) To allow for the existing personal needs of the Petitioner and for the general household expenses - bearing in mind that the family lives rent free at the moment - the sum of $5,500.00 per month. This sum will be payable during the joint lives of the Petitioner and the Respondent or until further order.
(c) Payments of the total sum of $11,500.00 per month to be made to the Petitioner who shall give good receipt therefor.
(d) Payments to commence on the 9th March, 1973, and to continue on the 9th day of each month thereafter until further order.
(e) The sum of the arrears now due to be paid with the instalment of the 9th October, 1974, due allowance to be given for the payments made under the interim order and for any payments made by the Respondent's mother in respect of Timothy's school and medical fees.
(f) There will be liberty to both parties to apply under this order.
(g) The Respondent to pay the Petitioner the costs of this application to be taxed. Certify for Counsel.
(h) That the Petitioner be entitled to reside in the premises at 109, Robinson Road rent free, together with the children of the marriage during the joint lives of the Petitioner and Respondent or until further order.

3. As I understand her, the Petitioner advances 2 grounds for variation of the Order. First, she relies on para. (f) of the Order, the liberty to apply provision, and the wording of paras. (a) and (b). The Petitioner says that the Order only allowed for the then existing needs of herself and the children, that these needs have changed and that consequently she may apply for variation. As to this the Respondent relies heavily on the following sentence in the Order:

"I think the proper order here, to allow for the unforeseeable as well as the existing circumstances and to allow for the difficulties of realizing the assets of the Respondent, would be a periodical payment order secured to the satisfaction of the Court".

The Petitioner says that this was in relation to the type of payment rather than the amount. With this I agree.

4. Then Mr. Woo places reliance on S.7 of the Matrimonial Proceedings and Property Ordinance wherein a duty is placed on the court to have regard (inter alia) to the financial resources and needs the parties are likely to have in the foreseeable future. He says Mr. Registrar Silke must be deemed to have considered these matters and, further, that it is now but 1977 which must be surely the foreseeable future. To accept the Petitioner's contention would be to allow her more bites at the cherry than is normally the case with maintenance orders. Nonetheless, to agree with Mr. Woo would be to fly in the face of the unusual but plain words of the Order, particularly as the amounts awarded were exactly those stated by the Petitioner to be required. I am of the opinion that, upon the terms of paras. (a) and (b) of the Order, the Petitioner is entitled to apply for variation of the Order if her and the children's needs have changed, notwithstanding that such changes could have been foreseen and allowed for. Para. (f) of the Order is, of course, irrelevant.

5. Secondly, the Petitioner generally argues that there has been a considerable change in the circumstances of all parties, that while she and the children are worse off, the Respondent is disposed of assets now revealed to be worth substantially more than was stated in the Order.

6. I have to deal with Mr. Woo's submissions on this ground because much of what he said goes to quantum. Besides relying again on S.7 of the Matrimonial Proceedings and Property Ordinance, Mr. Woo goes on to say that in effect the Petitioner is seeking a reassessment of maintenance rather than variation and that the...

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