M, B v. S, L

FCMC 3659 / 2016

[2019] HKFC 111

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 3659 OF 2016

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 28 February 2019

Date of Judgment: 29 April 2019

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J U D G M E N T
(Interim Maintenance for an adult child)

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Introduction

1.This is the second time that the issue of interim financial support has come before the court in this case.  On the 20 April 2017 I handed down a judgment with respect to the Respondent wife’s application for maintenance pending suit for herself and interim maintenance for the elder child of the family, J, who was born on the XX May 1997.  Reference can be made to that judgment as necessary.  The wife now seeks a further order for interim maintenance for J, even though he is now nearly 22 years of age and not currently in full time education.  The Respondent’s summons dated the 4 May 2018 asks for the following:

1.  The Petitioner do pay maintenance in respect of JHB in respect of his general living expenses and his medical expenses at such rate and for such period as the Court thinks fit:

2.  Pending determination of the Respondent’s application at paragraph 1 above, the Petitioner do pay interim maintenance in respect of JHB at such rate and for such period as the Court thinks fit;

2.A few months earlier, on the 27 February 2018 I had suspended the maintenance for J in the sum of HK$15,000 per month, with effect from the 1 March 2018.  I explained at the time that it was my belief that my hands were tied in this respect as it seemed to me that J’s situation did not fall within that category of cases, where ongoing maintenance for an adult child is permissible.  As will be seen that remains my view. 

The main issue

3.The main issue in this instance then is whether or not the court should order maintenance for an adult child? I am asked to consider whether or not there are “special circumstances” in this case which would justify such an order.

4.In my judgment dated the 20 April 2017 I refer to the situation with respect to J at that time as follows:  

8.  Unfortunately, there have been significant difficulties with respect to J, who became addicted to ICE (crystal methamphetamine) whilst he was living with the father in Hong Kong. In the affidavits and affirmations filed, there is a sense that both parties blame the other for this. In any event J dropped out of school. He managed to eventually obtain 6 O’levels but he has not completed High School and he does not have an IB diploma or A’levels or their equivalent. Notwithstanding that he is said to be bright with an unusually high IQ.

9.  Upon learning of J’s problem the husband arranged for J to attend a drug rehabilitation unit in Thailand where he stayed for six months. The husband says that this cost in the region of HK$800,000 – money that he can ill afford. He was solely responsible for this. The wife, for her part, says that placing J in this facility was done without her agreement. Unfortunately, on his release, J relapsed and in August 2016 he was admitted to Queen Mary Hospital in Hong Kong, which is where he remained for six weeks. Immediately prior to this there was an incident between the husband and J and both suffered minor injuries as a result. On his release from hospital J began living with the wife, who had by that time returned to Hong Kong. It is her case that she helped J during this period and that she effectively nursed him back to health.  The younger child, S, a girl who has recently turned 14 years of age, continues to live with the husband. She is currently refusing to speak to the mother. It would be fair to say that relations between father and son are also very strained, although I have been shown e-mails and WhatsApp messages between the two. It is not clear to what extent these have been written by both sides for litigation effect.

I added later on in the judgment that

J

14. The situation with J is a little more complex. Notwithstanding his obvious and quite recent difficulties, the wife took the unilateral decision to support J in his desire to return to study and she helped to enrol him on the foundation course in Australia, without first seeking the consent of the husband. She now asks essentially that the husband bear most of the costs associated with that decision. She says rather bizarrely, given his academic achievements to date and his history of drug dependency, that J wishes to study medicine and that if he successfully completes the foundation year that he will study for a Bachelor of Medical Science and Doctor of Medicine. This seems to me to be the most extraordinary statement given the circumstances. I had also warned the wife during the earlier hearing, that she could not expect this to be a fait accompli and that if she continued to support J in this decision that she could not necessarily expect the court to simply make the order that she now seeks. Notwithstanding that, and the fact that it was open to J to defer, the wife left Hong Kong with J on the evening of the 6 February and took him down to Australia in order to settle him into his new life there.

15. Since then, and as indicated, I have had the opportunity to read all of the papers.    From the husband’s perspective it seems that he had originally expected J to emigrate to Israel and to join the Israeli Defence forces there. This seems to me to be an equally unlikely scenario given the prevailing circumstances and one that was similarly fraught with potential risks and difficulties.  

16. As I have said J has enrolled on a foundation course. This is a one-year course. If J does very very well, it is possible that he might be admitted to read medicine at the same university or at another Australian equivalent.  This is by no means guaranteed. On reviewing a document produced by Ms Chin during the hearing however, it seems that the successful completion of the foundation year will also open up many other different possibilities for J, and that medicine is not the only choice. I am also told that J may work part time whilst studying in Australia. It seems to me that he will have to do this – especially if he wishes to take a long course like medicine. Consequently, it seems to me that it would be optimal if J was financially supported in part at least, for the remainder of this academic year, whereupon the situation may be reviewed. The wife has suggested that this should be done in October. I agree that this would be a sensible course, unless agreement is reached otherwise at either the FDR hearing or through mediation or inter solicitor negotiation. 

5.It was then on this premise that I ordered that the Petitioner husband pay the wife maintenance for J of HK$15,000 per month and that the balance of the University fees for the foundation course be met from the net proceeds of sale from a property.

6.Unfortunately things did not go well for J in Australia. Perhaps with the benefit of hindsight this was reasonably foreseeable.   He did not complete the foundation course and he returned to Hong Kong towards the end of 2017.  Piecing all of the bits of evidence together it also seems that he was diagnosed with HIV in March 2017.  He has also continued to struggle with depression and other related mental health issues.

7.Subsequently J enrolled in a full time diploma course in interior design in Hong Kong and the mother enrolled in a part time course at the same school.  J began the course in September 2018, but it seems that shortly thereafter he began skipping classes.  In November 2018 he was admitted to the Queen Mary Hospital.  From the hospital bills exhibited it seems that he was hospitalized from the 9 – 29 November 2018, although the wife says that he remained in hospital until the 19 December 2018.  In any event he then went to a Rehabilitation Centre and he was still there at the time of the hearing.  The wife said that she believed that he would need to remain in the Centre for another 2 – 3 months and that he could then consider going back to school.

8.It is in these circumstances that the wife claims that “special circumstances” exist. She seeks

(i)  Reimbursement of all medical expenses [that she] has paid for J (HK$23,528.45 [A/43/19] and HK$9,478 being costs for his recent hospitalization and rehabilitation [D/49-56]);

(ii)  An Order that the husband be responsible for all of J’s medical expenses including HIV medication [A/43/21];

(iii)  Contribution of HK$15,000 per month towards J’s living expenses (until he is well enough to attend vocational school) [A/43/21]; and

(iv)  HK$192,500 that being the tuition fees for J for the Diploma in Interior Design X School of Interior Design, Hong Kong (out of which the first instalment of HK$47,000 has been paid) [A/52~3/9-10].

9.From a practical perspective it is of note that it is the husband’s case that he should continue to be financially responsible for S, the daughter and that the wife should continue to be financially responsible for J (should she decide to do so). S continues to be estranged from the wife and J continues to be estranged from the husband.  The parties are continuing to negotiate/ mediate and should be encouraged to continue to do so.  The wife said that she did not withdraw her summons because she wanted there to be some form of justice for J.  She does not believe that the current situation is “fair”.

The law

10.I have set out the general principles on maintenance pending suit/interim maintenance in my previous judgment and I will not repeat the same again here. The clause that we are concerned with in this instance can be found in s.10(3) (b) of the Matrimonial Proceedings and Property Ordinance, Cap 192 which states as follows:

10. Provisions as to powers of court to make orders in favour of children and duration of such orders

(1)  Subject to subsection (3)-

(a)  no order under section 5, 6(a) or 8 shall be made in favour of a child who has attained the age of 18; and

(b)  the term for which by virtue of an order under section 5 or 8 any payments are to be made or secured to or for the benefit of a child may begin with the date of the making of an application for the order in question or any later date but shall not extend beyond the date when the child will attain the age of 18. (Amended 69 of 1997 s. 26)

(2)  (Repealed 69 of 1997 s. 26)

(3)  The court may make such an order as is mentioned in subsection (1)(a) in favour of a child who has attained the age of 18 and may include in an order made under section 5 or 8 in relation to a child who has not attained that age a provision extending beyond the date when the child will attain that age the term for which by virtue of the order any payments are to be made or secured to or for the benefit of that child, if it appears to the court that- (Amended 69 of 1997 s. 26)

(a)  that child is, or will be, or if such an order or provision were made would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or

(b)  there are special circumstances which justify the making of the order or provisions.

11.Ms Brown for the husband undertook some research on this point and said as follows in her written submission:

33. In Hong Kong there is one decision on this issue, LHC v KHS (unreported, FCMC 3343/2015, 4 May 2016).  There, the child ‘YY’ was 23 years old.  She had obtained a degree in 2015 and had interrupted her study for a master degree on account of suffering from stress she believed was exacerbated by her parents’ divorce.  Deputy District Judge I. Wong explained that special circumstances in MPPO section 10(3)(b) (paragraph 29):-

(i)  “would include cases of illness or other handicap of a physical or mental nature: see Jackson’s Matrimonial Finance (9^th Edition), §10.19;

i.  The apparent circumstance in which the court would likely to have exercised it power under this paragraph is when it is faced with a child who is so seriously handicapped that he has to be dependent on his parents for the rest of his life;

ii.  ... what constitute special circumstances would necessarily depend upon the facts of each case”

34. In paragraph 31 of LHC v KHS, the court explained that ‘special circumstances’ ground was not applicable to the child ‘YY’ for the following reasons:-

(i)  Although YY has been suffering from mental problems， nothing in the report says to the effect that YY had lost her ability of self-care or earning capacity;

(ii)  YY is a capable person with a good honour degree; and

(iii)  YY has been leading an active social life.

12.In this instance though it seems that J’s earning capacity is somewhat limited and that he does not currently have the ability to fully look after himself.  In other words, his situation is more grave than that described in LHC v KHS. Nevertheless, this is not a case where J is handicapped or is mentally incapacitated in some way. He is a drug addict and sadly many of his problems can be said to be self-imposed and to arise in whole or in part out of his addictive behaviours. Further it is clear that every effort has been made to assist J in the past.

13.If the wife wishes to continue to support J financially then that is really a matter for her. I do not think it appropriate in these circumstances to order the husband to also make a further financial contribution to J, especially given the fact that his own financial situation is somewhat straightened and that he continues to be fully responsible for all of S’s expenses.     

Conclusion

14.Consequently the Respondent’s summons dated the 4 May 2018 shall be dismissed.  The wife was warned of the cost consequences of proceeding with this application but she proceeded nevertheless.  In such circumstances the costs shall follow the event in the normal way and the Respondent shall pay the Petitioner the costs of and arising out of the summons dated the 4 May 2018 on a party and party basis to be taxed if not agreed.

15.There shall be a call over in relation to the Financial Dispute Resolution hearing on the 1 August 2019 at 9:30 am with 15 minutes reserved. Both parties do personally attend that hearing. In the event that agreement has not been reached on ancillary relief by that date, it is the court’s intention to transfer this matter out of the FDR list for trial.

Ms Joanne Brown of Tanner De Witt for the Petitioner

The Respondent appeared in person