Haskell v Haskell

An interim maintenance order made pending suit may be varied only where a serious and material change of circumstances is clearly proved by full and compelling evidence. A suspension of sums due is distinct from variation because it preserves the liability and merely defers enforcement. The court may therefore require a lesser change and lesser evidential proof where there is a real risk that resources previously available to meet the order have stopped. A suspension may be made subject to conditions, including payment towards arrears and litigation costs. Variation applications should ordinarily be heard before judgment summons proceedings, unless the variation application is merely a strategic filibuster.

The wife applied for a judgment summons alleging substantial arrears under maintenance pending suit and interim periodical payment orders made by Lieven J and subsequently quantified by Roberts J. The husband had begun seeking variation, alleging genuine cashflow difficulties arising from the cessation of substantial payments from companies in which he held interests.

The court considered whether to hear the variation application before the judgment summons, whether the evidence justified permanent variation, and whether the court could instead suspend sums due pending an agreed private FDR. The central issue was the appropriate threshold and form of relief where the payer’s resources had materially changed but the duration and scale of the difficulty remained uncertain.

1. Procedure. The court followed the view expressed in YBL v LWC [2016] HKCA 629 that a variation application should ordinarily be heard before, and not together with, a judgment summons. The qualification was that this approach would not apply where the variation application was merely a strategic filibuster. The husband’s application was not treated as such because its substance had been foreshadowed months earlier.
2. Permanent variation. Under section 31 of the Matrimonial Causes Act, permanent variation of an interim order made pending suit requires a clearly and distinctly proved serious change of circumstances. The change must be material and established by full and compelling evidential disclosure. Applying Morris v Morris [2017] 1 WLR 573 and G v G [2003] 2 FLR 72, the evidence did not meet that threshold.
3. Suspension. The court held that suspension is materially different from variation. It does not eliminate the liability but defers it. A lesser change of circumstances and lesser degree of proof may therefore suffice where there is a real risk that resources previously judged available to meet the order have halted.
4. The evidence established sufficient change and proof for suspension, but not permanent variation. Pursuant to rule 4.1(4)(a) of the Family Procedure Rules, the suspension was made conditional on specified payments, including the private FDR fee, sums towards legal costs and arrears, maintenance, care costs and utilities. Breach would lift the suspension and make the outstanding sums due. The matter was restored after the private FDR, and the judgment summons was adjourned.

First-instance decision. The judgment records earlier maintenance orders made by Lieven J and quantified by Roberts J, but no appellate history is stated.