Bwbp v. T Kp Nee Dp
Read the full judgment text of FCMC 2128/2009 on BabelCite. This Family Court judgment was delivered on 8 August 2017 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Variation of maintenance – Recital K interpretation – Side agreement enforceability – Boarding school fees – Tertiary education funding – Costs – Side agreement not upheld due to duress – Recital K amended to exclude clothes and shoes reimbursement – Maintenance order upheld at HK$10,500 per month per child – Father to pay HK$134,111 reimbursement – Father to pay 75% of Mother's costs
Legal issues: Enforceability of side agreement · Interpretation of Recital K · Variation of maintenance order · Tertiary education funding · Singapore property · Costs
Outcome: Side agreement not upheld; Recital K amended; Maintenance order upheld; Reimbursement ordered; Costs awarded.
Cited by 1 case · Cites 3 cases
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FCMC 2128 / 2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 2128 OF 2009 ----------------------------
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----------------------- J U D G M E N T ----------------------- Introduction 1.This is an application by a Petitioner father originally dated the 8 March 2016 and amended on the 9 September 2016 as follows:
2.In summary the father seeks to discharge the original order for maintenance for the two children of the family in the sum of HK$21,000 per month or HK$10,500 per month per child and to amend other undertakings under Recital K as set out above. In part this is because he is now responsible for higher school fees than before as the boys are at boarding school, although on his case he is in effect also seeking reimbursement from the mother for this expense in any event. There are also other issues from the father’s perspective including that of the mother’s earning capacity. The father is of the view that the mother should be earning more than she does and this is also something that he asks the court to take into account. The mother for her part asks that the original order of HK$21,000 per month remain in place. She has not issued any summons of her own, but makes the point that Recital K in the original court order does not work and has not done so for some time. She says that she is willing to pay for 50% of the boys’ general expenses. She also says that she is now responsible for the vast majority of their incidental expenses as she is living close to the school and is in her words “the hands on parent”. There are also other issues concerning a so called “side agreement” entered into by the parties in August 2014. This was not endorsed by the court. The father asks that this agreement be upheld. The mother for her part says that it should not be. Background 3.The background to the marriage is set out in my judgment of the 1 February 2012 on Relocation – see in particular paragraphs 3 – 22. Reference can be made to those paragraphs as necessary. In summary this is a highly conflicted situation which started off with all of the best intentions in that originally the parties were able to come to terms with respect to both their finances and the arrangements for the two children of the family. Both parties were assisted by lawyers at the time and the children’s order was granted by consent on the 26 May 2009 followed by the financial order on the 26 February 2010. Subsequently, the mother sought to relocate to South Africa, which was resisted by the father and led to a full contested hearing on the issue. Ultimately that application was denied. The mother did not then seek to further vary the arrangements for the two children, although that was an option that had been open to her, and for a while their care continued to be shared by the parents as before. In essence, as I understand it, the father would care for the boys when he was not flying and the mother would care for them otherwise. The father is a pilot with a well-known airline in Hong Kong and therefore has a significant amount of free time. The mother for her part is a qualified speech therapist with a niche area. She worked part time in Hong Kong and also took up a position as an Educational Assistant at the school that the boys both then attended in Discovery Bay. 4.In 2014 the eldest child T expressed an interest in attending boarding school. It seems that there was a lot of discussion and negotiation surrounding this and that the mother eventually agreed to pay the father HK$10,500 per month because at the time the father had said that he could not afford to pay the boarding school fees. It is the mother’s case that the father would not agree to T attending boarding school otherwise. Reference is subsequently made to this agreement in a number of e-mails after August 2014. It then followed that the mother would seek to offset monies that she said were owed to her by the father under Recital K from the HK$10,500 per month. Confusion ensued with the father agreeing to pay for some items but not for others. The mother later reneged on this agreement, as she says that the father had not been honest about his claim that he could not afford to pay the fees. She also points out, inter alia, that there had not been any updated disclosure, she had not been legally advised and that she had felt coerced into making the said agreement. (i.e. the “side agreement”) 5.T went to boarding school in Australia in October 2014. He is said to be a good student and wishes at present to study medicine. T will be 18 years old on the XX September 2017 and he will complete school at the end of this academic year in Australia. University is likely to start in February/March 2018. Consequently, there is also an issue concerning the funding of T’s tertiary education and how that should be structured. The father wishes to fund T directly whereas the mother asks that the father continue to make a financial contribution to her for T. 6.C is 14 years old. After T left Hong Kong, C remained and continued initially to split his time between two households. The mother for her part spent a lot of time in both Hong Kong and Australia as she tried to support both children. She also remarried on the XX April 2015. Her husband is originally from New Zealand but the parties reside in Australia. It is the mother’s case that C became very unhappy with this arrangement and that he also expressed a wish to go to boarding school in Australia. This was resisted by the father. There were also other issues and the relationship between father and son became strained. It is the mother’s case that C does not like the father’s new partner. She also alleged during the trial that this application was ill meant and that there is a plan by the father and his partner to, in her words, “break her”. In any event since August 2015 C has been resistant to staying at the father’s home and access has generally only taken place when T was also present. Consequently, C began to spend the majority of his time with the mother. 7.On the 29 February 2016 the matter returned to court again for a Children’s Dispute Resolution hearing. The mother sought leave for C to join his brother at boarding school in Australia. Agreement was eventually reached and the father consented to both children being removed from Hong Kong on a temporary basis in order to go to Australia for study purposes. Agreement was also reached with respect to the school holidays with the father having the care of the children for the school holidays in April and October and the mother for June/July. It was further agreed that the long school holiday over the Christmas/New Year period would be split between the parties. Notwithstanding that it seems that C still refused to come to Hong Kong in 2016 for the father’s share of the long summer break (i.e. Christmas/New Year). At the time of the hearing the father relied on a report prepared by the psychologist Dr B dated the 18 February 2016. In that report Dr B recommended inter alia that:
8.Unfortunately, the relationship between C and his father has not improved. It is also not clear if the recommendations made by Dr B were acted upon. It is the mother’s case that C is unhappy boarding and that he would like to be a day pupil. Given the recommendations made by Dr B this is vigorously resisted by the father. In any event, as I pointed out to the parties during the hearing, there is currently no application before me in that respect. I accept that if the mother were to make such an application, that there would need to be updated reports. For the purposes of this application I accept that the mother is living near to the school with her new husband and that C comes to her home most weekends from Friday evening until Monday morning. In addition, he sometimes comes out mid-week. It seems that C is a very bright but sensitive child and that there have been issues inter alia with bullying. T also comes back to the mother’s home most weekends and in addition he will sometime choose to base himself at the mother’s home during study leave. This can sometimes be for up to blocks of two weeks at a time. The father for his part has only been able to go down to Australia three times since T started school. Consequently, he is not as involved in the day to day parenting of the boys as the mother is. The father says that this is because his work commitments have precluded him from making frequent trips down. He hopes that this will not be the situation going forward and that he will be able to go down to Australia more frequently to see the boys. He has allowed for five trips per annum in his financial statement. The litigation 9.The original consent order on finances dated the 26 February 2010 stated inter alia as follows:
10.It is of note that there has been no variation to this order, notwithstanding the fact that it was made over 7 years ago. The mother’s maintenance for herself came to an end upon her remarriage. Currently then the father is bound by order 2 and Recital K. Issues to be determined Should the “side agreement” of August 2014 be upheld? If not what weight should be attached to it, if anything at all? What financial ramifications arise out of that determination? How should Recital K be interpreted? In terms of the historical items claimed by the mother under recital K, what should be allowed and what should be disallowed? Should Recital K be discharged, amended or upheld? In the event that it is discharged in part, how will that impact on the financial arrangements for the boys going forward? Is it accepted in principle that the father should no longer be obliged to contribute towards the children’s maintenance because he pays more for the boarding school fees? Should the maintenance order of HK$10,500 per month be upheld, reduced or discharged? Should this arrangement change once T starts university? How much maintenance should the father pay to the mother as maintenance for the two children of the family and over what period of time? How should the Singapore property be regarded? The law Variation of maintenance 11. The father’s application is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap 192, which provides that:
12.As I explained to the parties during the hearing it is accepted that in considering a change of circumstances, I may look at the case de novo. In other words, the court is not necessarily bound by the existence of the previous consent order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (See Jackson’s Matrimonial Finance and Taxation, 8th edition Chapter 3.147 - 3.157):
13.It is also true that there would normally be a reason for the application to vary or what some might call a “trigger”. In this case the father says that the trigger is the children going to boarding school in Australia. He does not dispute that he can afford to pay and indeed says that this is not the reason for the application. 14.The court has a very wide power, including a power to terminate payments and to backdate the variation ordered. The overall objective is to achieve a fair outcome (see M v M, FCMC 4070 of 1990, dated 12 May 2006, unreported). The enforceability of agreements 15.There is also another issue here concerning the enforceability of the so called side agreement. The issue of the weight to be attached to agreements reached between parties has been looked at recently in the context of ancillary relief as whole, with an emphasis on pre-nuptial and post nuptial settlements. However, in this instance we are concerned with an agreement allegedly reached between the parties after the issue of final ancillary relief had been resolved. Arguably, what is said about the enforceability of agreements in that scenario will also have some bearing on the situation here. 16.In determining whether there is a valid agreement and the weight to be attached to it, paragraphs 34 and 35 of SPH v SA are relevant and bear some repetition. These also cite with approval paragraphs 68 – 73 of England’s landmark decision Radmacher v Granatino:
17.The Court of Final Appeal added at paragraphs 39 and 40:
Discussion Should the “side agreement” of August 2014 be upheld? If not what weight should be attached to it, if anything at all? What financial ramifications arise out of that determination? 18.The father argues that the “side agreement” should be upheld. He says that this was an agreement entered into by two consenting adults who, had by that stage, had a lot of experience in litigation, notwithstanding the fact that they were not legally represented at the time. In any event he says that it was acted upon by both sides and he refers to a number of e-mails after August 2014 where reference is made to it. 19.The mother for her part says this of the side agreement in her 7th affirmation dated the 2 August 2016:
She reiterated this in her oral evidence in the third day of trial as follows:
20.For the avoidance of doubt I accept what the mother says in this respect. It also seems to me that the agreement was inherently unfair given the financial circumstances of the parties at the time. As I pointed out during the hearing it is also of note that the parties never filed a consent summons giving legal effect to the “side agreement” in any event. In such circumstances the side agreement shall not be upheld and no weight shall be attached to it. It follows that the focus must then turn in the first instance to Recital K and which expenses should be reimbursed and which expenses should not be. How should Recital K be interpreted? 21.At the time of the order the father was working as a pilot in Hong Kong and the mother was a part time speech therapist. The mother was to receive maintenance of HK$21,000 per month for the boys and in addition she received HK$14,000 per month for her own maintenance i.e. HK$35,000 per month in total. Recital K was meant to cover additional and specific items. It seems to me that in accordance with normal interpretation guidelines this clause should be given its natural and normal meaning. I repeat therefore that under Recital K the father agreed to pay for the children’s school fees, their tertiary education fees, school uniform, additional educational extra-curricular expenses and any other major expenses for the children and such expenses were to be paid to the relevant educational establishment or institution direct. In addition, he agreed to pay upon the production of receipts and on a reimbursement basis only, for all of the children’s medical and dental expenses and for all reasonable clothes and shoes purchased by the mother for the children. Some of the dispute lies with the fact that the mother has paid for some out of pocket expenses herself – because she was the parent on hand and the father has consequently refused to pay for them because they were not payable directly to an institution. He has since softened his position on this and he has agreed to pay for some items that according to the mother he had simply refused to pay for previously. 22.The other difficulty is that the document produced with respect to the reimbursement claimed seems to have had several different versions. In any event and for the avoidance of doubt, in so far as this trial is concerned I will be making reference to the final document produced in court namely R-4 and the most updated document attached to an e-mail dated the 20 February 2017 in Correspondence 2 (page 315 onwards). It is the mother’s case that the father is only conceding certain points now, at trial, when infact he has refused to pay for some items going back to 2010. In any event she says that Recital K simply does not work, especially given the fact that the current arrangements for the boys are now significantly different from before. For example, she says that when the care of the boys was genuinely shared, the boys would each ask both parents for certain things and each parent would agree – or not, on a more or less ad hoc basis. That is not the case now and the whole burden financially for the boy’s day to day living costs rest on her shoulders save for the boarding school fees and related expenses. Reimbursable expenses under Recital K In terms of the historical items claimed by the mother under recital K, what should be allowed and what should be disallowed? 2010 23.The outstanding expenses claimed by the mother and the father’s comments at trial are reproduced below:
I accept what is said by the mother here with respect to the HK$585 for medical and thus HK$4,302 is reimbursable to the mother. 2011 24.The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:
25.I accept what the father says with respect to the refunding of medical expenses to the mother and note that he has now agreed to pay for a number of clothes and shoes. The mother asks for reimbursement of HK$21,000 for a school deposit for D. During the trial it was said that this was the school that T eventually attended, although I note from the Social Welfare Report that he actually went to X School for High School. In any event this seems like a reasonable major expense for T and one that should and could have been paid to the institution direct had the father agreed. In such circumstances the sum of HK$21,000 shall be reimbursed to the mother plus the other items agreed to by the father. I accept that the others are not reimbursable expenses. Thus HK$26,066 shall be reimbursed to the mother for 2011. 2012 26.The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:
27.I accept that under the terms of recital K the school lunch is not a refundable expense. However, it seems to me that arguably the homeopathic medicine should have been reimbursed to the mother. Thus HK$3,435 is reimbursable to the mother for 2012. 2013 28.No claim is made by the mother for 2013 as she says that all receipts have been lost. Notwithstanding that I accept that she must have had expenses that year which would, in the normal course of events, have been reimbursable to her. I will allow an additional HK$5,000 in that respect, which is roughly the maximum allowed for incidental expenses in years 2010 – 2012, once the school deposit is taken out of the equation. During this period all parties were still based in Hong Kong. 2014 29.The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:
30.There is no dispute and the father now agrees to reimburse the mother the HK$12,790 claimed (rounded down). T started boarding school in 2014. 2015 31.The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:
32.There were a number of disputes this year. The first related to a Melbourne Chinese school trip. The mother wished C to go. The father disagreed and refused to pay. The mother arranged for C to go and paid the requisite fee. Again I tend to agree with the mother that this is a trip that C would have benefited from, not so much because it was a trip to China Town, but because it was an out of town trip with his peers. Again this is an expense that could and should have been paid by the father to the institution direct. I will allow it. I accept that the other items i.e. toiletries for T and a visa for C are not reimbursable expenses under Recital K. Consequently, HK$12,988 (rounded up) shall be reimbursed to the mother for 2015. 2016 33.The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:
34.It would be fair to say that by this time, relations between the parties were at a very low ebb. I accept that discussion on any topic is likely to have been difficult. The father is willing to pay for orthodontic treatment for C but he queries other medical expenses and suggests that the mother should be reimbursed by the medical insurer in any event. It is not clear, even if her claim is successful, whether she is likely to get all of these expenses back. However, I also accept that these are genuine expenses for the boys. I accept therefore that they should be reimbursable to the mother under the second half of Recital K either in whole, or in part, once the amount allowed by the insurers is known. I will allow the cost for cranio sacral therapist and for the full cost of the optometrist and glasses. I will also allow the request for supplements. Where the parties are waiting for confirmation of payment from the insurer I will put that payment to one side. The balance should be reimbursable to the mother by the father in the normal course of events. I will not allow the miscellaneous expense. 35.The father refused to pay for a number of expenses under the school related column including some that could properly be classed as extra-curricular activities, as he is of the view that all such activities should be covered by the school. I tend to agree with the mother on this and accept that there are likely to be some expenses which the parents will be required to cover on top of the boarding school fees, for example see the reference to the Speed and Football camp. Again these are expenses that could and perhaps should have been paid to the provider direct, had the father agreed. I will allow all of these expenses, including those for the Chinese tutor. (i.e. club soccer, strength camp, speed camp, football camp, Pride Physic training, Football fitness tests). The amount for stationery does seem to be a bit on the high side and I accept that the mother may have made a genuine mistake in this respect. The sum of HK$1,680 offered by the father is accepted. I also accept the father’s proposal to pay for half of the cost of clothing. There was also a dispute concerning the provision of IPhones and laptops, with the father insisting that these should be gifted. In today’s world these items tend to be regarded as essential, although I tend to agree with the father that if possible it might be preferable for them to be gifted. In any event I will allow them on this occasion. Going forward this issue will not arise. The pocket money that the mother provides is also not a reimbursable expense, nor are the monthly subscriptions. I will accept the partial payment for alterations dry cleaning etc. Thus HK$69,530 is reimbursable (rounded up). 36.In total then the sum of HK$134,111 is reimbursable to the mother. It is therefore directed that this sum be paid by the father to the mother within the next 28 days. Should Recital K be discharged, amended or upheld? In the event that it is discharged in part, how will that impact on the financial arrangements for the boys going forward? 37.It is possible for the court to discharge an undertaking or to amend it with the consent of the party giving the undertaking. In this instance the mother maintains that Recital K should be discharged and that in truth it has never really worked – but in any event it works less well now than it did in 2010 when the parties entered into the original consent summons. The father for his part wants Recital K amended as set out in paragraph 1 above. 38.The difficulty, it seems to me, is that Recital K was an entirely appropriate undertaking when the parties were living in close proximity to each other and sharing the care of the children. This undertaking ensured that the father would continue to be responsible for the children’s major expenses such as their school fees and other extra-curricular costs, over and above the cost of maintaining them on a day to day basis. The mother was responsible for maintaining the children during the time that they were with her – for approximately 50% of the time from the maintenance that she received from the father of HK$21,000 per month. In addition, she received HK$14,000 as maintenance for herself. She also received a small income from working as a part time speech therapist and from working, for a time, as an Educational Assistant. Further she received a passive income from renting out the property that she had received in Discovery Bay as part of her settlement. In total she probably had an income of approximately HK$50,000 per month at that time. In contrast the father was earning in the region of HK$200,000 per month inclusive of benefits. It was therefore entirely appropriate that the father should also be responsible for these additional expenses under Recital K. The father says, and this is accepted by the mother, that it was always understood that his contribution would not cover all of the children’s costs. It is the father’s case that the mother should have maximized her earning capacity by now in order to pay for any shortfall. Whereas the mother is of the view that it is a matter for her how she pays for any deficit. As indicated during the trial I agree with the mother on this. She says, and I accept this to be the case, that she has always put the welfare of the boys first. 39.It seems to me that Recital K works in so far as the school fees are concerned. It should also work going forward with respect to tertiary education fees. As I indicated to the father during the hearing I will expect him to pay for T’s university costs from the start of the next academic year, plus the cost of accommodation – whether T is living in halls or in separate accommodation plus provision for a separate living allowance. This would constitute “other major expenses”. I also have no difficulty in extending Recital K as suggested by the father, in that once T starts university any medical/dental costs should also be payable by the father direct to T on a reimbursable basis. But it seems to me that asking the child to seek reimbursement from him direct for clothes and shoes is likely to impose an unreasonable burden on both sides and could lead to further and unnecessary conflict. Provision for this should be included in his living allowance. 40.In so far as C is concerned and for T’s final two terms at school, the father has suggested that he provide for incidental expenses by retaining a balance in their bank accounts. He has not indicated what that balance might be – or how that might work in practice. Again it seems to me that this is likely to lead to further conflict. However, I accept that the arrangement for school uniforms and other related items is now working well in that such items can be purchased from the school shop direct and the shop has the father’s credit card details. The mother also confirmed that this was now working reasonably well. There is though continued difficulty with respect to extra-curricular activities and the reimbursement of clothes and shoes. I will therefore release the father from this part of the undertaking. Other than for school uniform I will also release the father from his undertaking to reimburse the mother on production of receipts for all reasonable clothes and shoes purchased by her for the children. 41.I will therefore amend Recital K so it reads as follows: AND UPON the Petitioner agreeing and undertaking to the Respondent and the court that he will continue to make or cause to be made the following payments as and when they arise:
42.Going forward therefore the cost of the extra-curricular activities whilst both children are at school (which in reality will effect C more than T) and the cost of clothes and shoes, apart from school uniform will be included as part of the mother’s ongoing expenses for the boys and will therefore be included as part of her maintenance claim. Is it accepted in principle that the father should no longer be obliged to contribute towards the children’s maintenance because he is paying more for their school fees? 43.This is not accepted in principle. The father does not dispute that he can afford to pay a reasonable amount for the children’s maintenance. He is currently earning over HK$300,000 per month inclusive of benefits, which is a significant increase from his original salary in 2010. His case is that as he now has to pay more for the children’s school fees (there was some dispute during the trial about the actual figure, but for arguments sake I will accept that he now has to pay HK$21,752 per month on top of his educational allowance as opposed to a top up of HK921 per month when both children were studying in Hong Kong – a difference of slightly less than HK$21,000 per month). He says that given that the children are at a full time boarding school that he should not be required to pay anything to the mother in addition. He is further of the view that any excess should be paid either from the mother’s contribution under the “side agreement” or from her own income. He also maintains that the mother’s expenses are excessive and that she has not substantiated many of them with receipts. He also argues that each parent should be responsible for the children’s general expenses whilst they are in each party’s respective care, although he acknowledged that in reality the children are not currently in his care for very much of the time. 44.The mother for her part now agrees to pay for 50% of the children’s actual expenses whilst they are in her care. Although not expressly stated I understand that to mean that she will cover half of the boys general living costs outside the costs of their education etc. It seems to me that this is quite generous given the disparity in the party’s actual income. This in turn undermines any argument advanced by the father with respect to her earning capacity etc. It matters not, if she is prepared to pay for 50% of their costs in any event. 45.Further I do not accept the suggestion made by the father that given that he is paying for the boarding school fees, that each parent should simply be responsible for the boy’s expenses when they are in each sides respective care. That only works if infact the children are roughly splitting their holiday time between both parents and they are in boarding school otherwise. Rightly or wrongly that is not the reality here and the maintenance order should reflect that. Should the maintenance order of HK$10,500 per month be upheld, reduced or discharged? 46.I should say at the outset that I intend to uphold the order. The mother said that she was not asking for more but that she did not expect to receive less. Although I am upholding the order, she will be expected nevertheless to pay for all clothes and shoes and for extracurricular activities from that sum. 47.Originally the mother asked for 43% of the total claim for general expenses. This seemed incorrect mathematically and I gave an indication to that effect during the hearing. However, given the practical reality here it is quite difficult to do justice to the situation simply by relying on the math. 48.As a starting point I accept that the parties should each be responsible for 50% of the children’s general living costs. Given that the children are with the mother for 3 or 4 nights per week, this calculation is necessarily difficult. But as a starting point I accept that when the children are with the mother and her husband and there are four people in the house that approximately ¼ of the consumption for general household expenses shall in the first instance apply to each person more or less equally. Given that the children are not there all of the time, it then seems reasonable to suppose that of their ¼ each, say 70% of that is attributable to them whilst they are at home. (I accept that they probably eat a great deal, use a lot of electricity etc etc). 49.In exhibit R-4, which is based on the mother’s Form E figures, she set out her general living expenses for a nine-month period from April – December 2016 as follows:
50.I accept that these figures provide a good indication of the general living expenses for the household during this period. In so far as the mortgage is concerned and as indicated during the hearing, this expense will be taken out of the equation, as it does not seem reasonable to expect the father to contribute to the acquisition of an asset by the mother and her new husband. This leaves a figure of HK$45,360 per month. The father complains bitterly about this figure. He says that there is no documentary evidence in support and that it is far in excess of the mother’s previous list of expenses whilst she was living in Hong Kong. He also points out that his own general expenses are quite low. He believes that the figure is inflated, something that is vehemently denied by the mother. 51.It is of note that when the mother lived in Hong Kong that her expenses were of necessity quite low. She lived in small units and the overhead would not have been high. It is reasonable to suppose that those overheads will now be significantly higher given that she is living in a house. Children also generally get more expensive as they get older. Thus food and other household expenses would normally be expected to increase. Further the mother has included the provision of a car for T in her list of general expenses. In such circumstances I will accept the estimates provided by the mother. 52.Thus the HK$43,360 shall be divided by 4 = HK$11,340 per month each. Given that the boys are not there all of the time and as suggested by the mother, I will attribute 70% of that figure as their expenses or HK$8,000 per month each. (i.e. 70% x 11,340 = 7,938 rounded up to HK$8,000). Of that sum each parent shall notionally be responsible for 50% of the cost or HK$4,000 per month per child. 53.In addition, the parents shall each be notionally responsible for 50% of the children’s actual costs, other than for those costs under the amended Recital K. This is a more difficult calculation, especially given the fact that there is some overlap between the figures provided by the mother in the schedule and the figures that she sought to reclaim by way of reimbursement in paragraph 33 – 35 above. I accept though that the figure amounts to approximately HK$6,500 per month each. In the mother’s schedule she said that the expenses for the boys including medical and dental and the IPhones and Laptop, (which are not recurrent expenses) amounted to just over HK$24,000 per month or HK$12,000 per month per child. I accept however that there will be other adhoc expenses not allowed for in the schedule going forward. Thus an allowance of HK$6,500 per month per child seems reasonable in the circumstances. As such the maintenance order for the boys of HK$10,500 per month each shall not be discharged (HK$4,000 per month as a contribution towards the general expenses and HK$6,500 per month for their actual expenses). Should this arrangement change once T starts university? 54.In the normal course of events, and if T is at university away from home, then one would expect the father not to pay the HK$10,500 per month to the mother direct once he starts his tertiary education, but for this sum to be utilized as a contribution towards T’s costs. Given that this is an unknown at present I will direct that in the event that T goes away for university, then the father’s contribution of HK$10,500 per month shall cease from that time onwards. Further it is directed that a living allowance shall be paid directly to T until such time as he ceases his full time tertiary education. 55.The father indicated during the hearing that he would expect T to work in some capacity whilst he was studying at university. The mother for her part pointed out that the course that he was likely to study would most probably be very demanding, in which case it may not be possible for him to work as well. As an indication it seems to me that it is more likely that T will be able to work, either in a paid or unpaid capacity during the university vacations. To what extent he is able to work in a paid capacity might be dictated to by his study visa in any event. It is also very common for students to take unpaid or lowly paid internships during the holidays in order to gain some much needed work experience. Consequently, it is likely that T will need to rely on his parents for significant financial support going forward. How should the Singapore property be regarded? 56.There is a difference of opinion with respect to a Singaporean property retained by the father as part of the financial settlement. Recital F states as follows:
57.The father said during the trial that his interpretation of this was that in the event that he was unable to meet his obligations to the boys under Recital K for their tertiary education that the Singaporean property could be relied upon. The mother for her part was of the view that these were funds that can and should be made available in any event to meet the children’s tertiary education needs going forward. It is of note that if T decides to pursue a career in medicine that he will need to do two degrees. This is not a matter that was before the court for adjudication at this time, but again as an indication the court will expect the father to fully support both children during their tertiary education and if need be to rely on the net equity in the Singaporean property in order to ensure that that is done appropriately. I accept that given the circumstances this may mean that T is supported during two degrees. Costs 58.Both parties are representing themselves, although I understand that they may also have had the benefit of legal advice from time to time. In this case the mother has been more successful than the father, in that I have not accepted the father’s request that his undertaking be extended to cover sundry expenses, I have not accepted his argument on the “side agreement” and the maintenance order for the boys has not been discharged. I did though accept some of his arguments with respect to the second part of Recital K and the funding of the boy’s tertiary education costs. In such circumstances the father shall pay 75% of the mother’s costs on a party and party basis to be taxed if not agreed. Conclusion 59.Consequently an order shall be made as follows: 1. Recital K shall be amended as follows:
2. The father shall pay the mother the sum of HK$134,111 within the next 28 days. 3. The father do pay 75% of the mother’s costs on a party and party basis to be taxed if not agreed.
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Further hearings and rulings under FCMC 2128/2009