Wjt v. Yatm
Read the full judgment text of FCMP 79/2017 on BabelCite. This FCMP judgment was delivered on 28 September 2020.
1. This is the trial of the application of the Applicant mother (“Mother”) for financial provision for the benefit of her son, V, who was born out of her relationship with the Respondent father (“Father”) on 16 January 2013 and is now 7 years old. This application is made under s.10 of the Guardianship of Minors Ordinance (“GMO”).
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FCMP 79/2017 [2020] HKFC 203 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL PROCEEDINGS NO. 79 of 2017 ________________________
BETWEEN
________________________ Coram: Deputy District Judge M. Lam in Chambers (Not Open to Public) Date of Hearing: 19, 24 – 27 September, 6, 7 November 2019 and 3 January 2020 Date of Judgment: 28 September 2020 ________________________ J U D G M E N T ( Financial Provision for a Child of Unmarried Parents ) ________________________ The Present Applications 1.This is the trial of the application of the Applicant mother (“Mother”) for financial provision for the benefit of her son, V, who was born out of her relationship with the Respondent father (“Father”) on 16 January 2013 and is now 7 years old. This application is made under s.10 of the Guardianship of Minors Ordinance (“GMO”). 2.The present proceedings were commenced by the Mother by way of an Originating Summons filed on 28 April 2017 (as amended on 1 June 2017). The issues of paternity, custody and relocation of V from Hong Kong to the US were resolved by the Consent Order dated 7 March 2018 (“2018 Order”), and the only matter which this Court has to decide now is the reasonable financial provision for V under the Amended Originating Summons. 3.The trial of the present application was originally scheduled to be heard before the learned Deputy Judge D. Cheung on 8 January 2019 with 4 days reserved (“Original Trial”). On the first day of the Original Trial, Mr. Surman, Counsel for the Father, raised a preliminary point that “the element of the Mother/ carer’s allowance included in the Mother’s claim is not pleaded in the Originating Summons and the court should altogether disregard this part of the Mother’s claim”. He insisted that such issue must be determined by way of preliminary issue first. As a result, such issue was heard by the learned Judge as preliminary issue at the Original Trial and the trial for the substantive claim was adjourned to 19 September 2019 with 5 days reserved. On 21 January 2019, the preliminary issue was ruled against the Father with costs of the preliminary issue be awarded to the Mother. 4.On 28 January 2019, the Father took out an inter-parte Summons (“Father’s Summons”) seeking an order that:
5.Both parties now agree to have the Father’s Summons dealt with at this trial. The Two Orders 6.It is convenient to set out the two relevant court orders as follows. 7.The first one is the Order made by the learned Deputy Judge on 26 May 2017 (“2017 Order”) which embodied the Father’s undertakings (“2017 Undertakings”). The 2017 Undertakings, being the subject matter of the Father’s Summons, are set out as follows:
8.The second one is the 2018 Order. It was made by the learned Deputy Judge for joint custody of V be granted to the Parties with care and control to the Mother and access to the Father. Leave was also granted to the Mother to permanently remove V from the jurisdiction of Hong Kong to live in the US. 9.The 2018 Order was made upon a number of undertakings (“2018 Undertaking”) given by the Father to pay for V’s air fares to and from Hong Kong for access and to cover all V’s expenses while he enjoys access with the Father in Hong Kong. 10.For the purpose of this judgment, I will apply the exchange rate of US$1:HK$7.8 for calculation and illustration as adopted by the Parties in the Agreed Schedule of Agreed/ Disputed Assets and Liabilities jointly prepared and signed by the respective legal representatives of the Parties dated 16 August 2019 (“Schedule I”). Background 11.The Mother is now aged 51. She was born in the Mainland. She immigrated to the US with her family in 1993. Having obtained an Associate Degree in Accounting, she worked as an accounting co-ordinator in a fashion company between 2001-2003. 12.She was married twice in the US. She got married with her first husband (“First Husband”) in 2000. They have 2 daughters, A and J (“Two Daughters”), who are now aged 19 and 17 respectively. In 2006, she divorced the First Husband and obtained the custody of the Two Daughters. 13.In 2007, she married her second husband (“Second Husband”), who was a medical doctor running a clinic in Wisconsin. She set up and operated a spa business at his clinic providing dermatological laser treatments between 2008 and 2011. 14.The Father is now 71 years old. He was born in the Mainland but moved to Hong Kong at the age of 4. Subsequently, he immigrated to Canada but then returned to live in Hong Kong. He practices in chiropractic, naturopathy, homeopathy and traditional Chinese medicine. He owns and operates a number of businesses in Hong Kong, including a clinic (“Clinic”). Through his practices, businesses and inheritance, he has accumulated substantial wealth. At the hearing on 25 July 2019 and at this trial, he confirmed that his ability to pay is not in issue and he is able to pay any sum which the Court may order. 15.He has previously married twice. He issued divorce proceedings against his second wife in December 2010 but was slow to progress those proceedings. His second wife eventually commenced her own divorce suit (“Divorce Action”) in July 2011. On 14 June 2013, the Court found that the Father’s transfer of a number of company shares to a company in January and February 2011 (“Problematic Transfers”) were designed to undermine the second wife’s claim for ancillary relief and accordingly had them set aside under the Divorce Action. The Divorce Action finally resolved in April 2015. They have a son, K, who completed his university education in 2019 and is now self-supported. 16.The Parties have never married. They started courtship shortly after meeting each other in November 2010 when the Mother was on holiday in Hong Kong. Their relationship continued after her return to the US in the same month. In or around October 2011, she closed down her spa business and left the Second Husband by moving from Wisconsin to Los Angeles with the Two Daughters. 17.In May 2012, the Mother found herself pregnant by the Father and gave birth to V in Los Angeles in January 2013. In February, she divorced the Second Husband. The Father went to the US to see V in the same month. 18.The Father also arranged for an employment contract (“Employment Contract”) and working visa for the Mother to stay in Hong Kong through his business. From the arrival of the Mother, V and the Two Daughters (collectively, the “Family”) in Hong Kong in August 2013 until they returned to the US at different times, the Family lived together with the Father at his beneficially owned apartment in Happy Valley (“Property”) and were dependent upon the Father for financial support. The Mother has never worked for the Father’s business. 19.The relationship between the Parties turned sour just a few months after the Mother’s arrival in Hong Kong. In May 2014, they ceased to sleep in the same room. Disputes persisted. In April 2017, the Mother commenced the present proceedings. J moved to live with the Mother’s sister (“Sister Y”) in New York in around September 2016 until lately. 20.Under the 2017 Order, the Father undertook to pay the Mother the Monthly Sum of HK$35,000 and to pay the Direct Payments, which capped at a total of HK$62,300, adding up to a total of not more than HK$97,300. The payment was exclusive of accommodation costs. The Mother, A and V continued to reside at the Property with the Father until July 2018. From June 2017 to the relocation of the Mother and V to the US in July 2018, the Father paid roughly HK$88,000 per month to the Mother under the 2017 Order, exclusive of accommodation costs. 21.From August 2018, the Father has only been paying the Mother the Monthly Sum and refused to pay for the Direct Payments. A returned to the US to start her university education in May 2019.
22.At this trial, the Mother asks for financial provisions for V as follows:-
23.As per the Father’s 5th Affirmation dated 11 May 2018, the Father was prepared to pay a monthly sum of HK$20,000 and the private school fees in the US for V. In his 7th Affirmation, he was willing to pay private school fees and reasonable contribution to V’s other reasonable expenses. In his open offer dated 12 September 2019, he offered to pay a monthly sum of HK$20,000 and V’s school fees. 24.At the outset of this trial, he reduced his offer to a monthly sum of HK$20,000, insisting V to attend public school instead. On the 7th day of this trial, he further revised his open offer by proposing to pay 50% of the reasonable expenses of V and 50% of the private school fees. 25.According to the Agreed Schedule of Agreed/ Disputed Incomes and Expenses dated 16 August 2019 prepared by the Parties’ legal representatives (“Schedule II”), the Father alleges that V’s reasonable expenses are US$1,445 per month. The school fee of the private school that the Mother targets is US$1,585 per month. In other words, the Father is prepared to pay US$1,515 (HK$11,817) per month. 26.The Father criticizes the Mother to have grossly inflated her claim and artificially deflated the value of her assets so as to get monies from him under the guise of the claim for V. The Legal Principles 27.As the Parties have never married, the Court’s power to make financial provisions for the upbringing and benefit of their child is governed by section 10(2) of GMO. Section 10(2) provides:
28.The court’s power under section 10(2) is discretionary. No factor having been set out in the legislation, the only criteria is that the court may exercise the power as it thinks reasonable having regard to the means of the parent to whom the application is directed. 29.It is well-settled that the leading English Court of Appeal judgment of Re P (Child: Financial Provision) [2003] 2 FLR 865 provides helpful guidance to the courts in Hong Kong. §§76-77 of the judgment gave a succinct summary of the factors to be considered by the court as follows:
30.In WGL v ASB (Child Maintenance under the GMO) [2013] HKFLR 391, Deputy High Court Judge Chu (as she then was) followed the principles in Re P. She analyzed the differences between the Hong Kong and UK legislation and concluded that, the Hong Kong Court, in exercising its discretion under section 10(2) GMO will have regard to all the circumstances of the case, including those matters as provided in §4(1) of Schedule 1 of the English Children Act 1989 as follows:
31.The relevance of the standard of living enjoyed by the child during pre-separation cohabitation is highlighted in F v G [2005] 1 FLR 261:
32.With these principles in mind, I now turn to consider the Mother’s claim. Living Standard in Hong Kong 33.I will first consider their living standards in Hong Kong. It is undisputed fact that the Mother and V were supported by the Father financially while living in Hong Kong. He housed them and covered their living expenses. He provided a vehicle as well as the service of two domestic helpers for the use of the Family. 34.The financial support provided by the Father in the past is summarized as follows:
35.In court, the Father indicated that the financial arrangement under the 2017 Undertakings was forced upon him as “ordered” by the Court. Such allegation does not stand as the court does not have power to force an undertaking upon a reluctant litigant. 36.The Father described the Property in his affirmation as follows:
37.The Property locates at a decent residential area in Hong Kong. From the photos depicting the Property, it was comfortable and spacious. On the other hand, the Mother commented it as old (over 50 years) and under repair in her affirmation. She does not dispute that it was simply furnished with basic equipment and furniture mainly from the Ikea. She gave evidence in court that the furniture was very old and not worth-shipping to the US. 38.It is not disputed that the vehicle the Father has been using for years was a second-handed Mazda. 39.When the Family was living in HK, they were taken care of by 2 domestic helpers. The Father, in his affirmations, blamed the Mother for her lack of proper skill to take care of V necessitating the full-time service of a domestic helper, B, for V while living in Hong Kong. When he visited V in the US in early 2019, he brought along with B to take care of V. He stressed that it was necessary to bring B for V’s benefit and emotional well-being. 40.V studied in a costly international kindergarten at the monthly fee of approximately HK$19,000 before leaving for the US. When V was in Hong Kong, the Father took him to amusement parks a few times a month. V also enjoyed various extra-curricular activities, summer camp, jumping gym, various indoor and outdoor activities. 41.V visited several private clubs in Hong Kong. The Father clarifies that other than a cricket club and a yacht club to which he is a member, V only got invited to other clubs as a guest by his friends or relatives. 42.When asked about the various overseas trips that V enjoyed when living in Hong Kong, the Father accused the Mother of deliberately arranging those trips to inflate the cost of living. However, it is his own evidence earlier in these proceedings that “[t]he [Mother] and [V] have enjoyed a number of overseas trips a year with me, flying to different places around the world for holidays at my expenses for [V] to experience different cultures in a variety of different aspects of life and to broaden his horizon with ample opportunity for his childhood”. 43.The Father emphasizes that he is a generous man with the spending habit of:
V’s financial needs 44.The Father put forward a number of arguments in order to justify his criticism of the Mother’s exaggeration of V’s financial needs as well as her claim for lump sum payment. Cross-reference 45.The Father seeks to challenge the Mother’s claim by cross-referencing to some data, statistics and articles relating to the costs of living and education in California on website (figures from National Center for Education Statistics, United States Bureau of Labour Statistics, etc.) as the reasonable costs of living in California. 46.His challenges are also mounted by drawing a comparison between her claim and some other peoples’ maintenance payments: the Mother’s monthly payment of US$2,000 to Sister Y for J’s expenses in New York (“J’s Payments”), the First Husband’s monthly maintenance of US$1,500 for each of the Two Daughters (“Daughters’ Payments”), the monthly social security payment of US$1,000 given by the US Government for each of them as well as the spending of some of his friends and relatives in the US. 47.On such basis, he argues that the reasonable child-maintenance in the US should cost only US$1,000 to US$2,000 per month. 48.In my view, the figures quoted from the website, the data and information relating to the living costs in the US serve as a reference but not a dominating factor for evaluating the Mother’s claim, nor a straight formula for the present assessment. They are neither official figures which reflect the living costs peculiar to the circumstances of V, nor his actual living costs. Common sense dictates that rents vary according to a number of variables: location, view, size, layout, years of the building, etc. Living costs depend on the quality of life. The Mother’s comparison between fresh food and frozen food, tap water and bottled water, more hygienic restaurants and concession food stands are good illustrations. 49.The J’s Payments and the Daughters’ Payments were personal arrangements between the persons involved which fitted their own purposes and were peculiar to their financial resources and needs. The same logic applies to the spending of the Father’s relatives and friends. Each family makes their own arrangements according to their financial situation and needs. I fail to see how the personal arrangement of individual family can serve as useful pointer to the reasonable needs of V. 50.Besides, the social security payment scheme of the US Government, being a national social welfare program, gives no meaningful indication of V’s reasonable needs. After all, the Father declared in court that he would not require V to apply for social security assistance. The Mother also said that V is not entitled to such payments because his father is not a US citizen and is wealthy. 51.It is beyond dispute that the reasonable financial needs of a child vary from case to case and the assessment is governed by the legal principles as mentioned above, making reference to all the circumstances of this particular child born to these particular parents, including, commensurate with the living standards enjoyed by V and the financial resources and social status of his own parents but not the other people’s parents. The Receipts 52.The Father criticizes the Mother for exaggerating her claim for V’s expenses, removal and set up cost by commenting on some receipts produced by her. In reply, the Mother offers explanations as: some receipts were included by mistake; the high-priced furniture were bought at a discount or at the second-handed shops; the Father had told her that he was very rich and would pay for all expenses actually incurred; she had to treat her friends to meals because they treated the Mother and V to meals, etc. Complaint was also made for her that she was cross-examined on some of those receipts only, and, accordingly, the Father’s criticism is unfair. 53.When evaluating the Parties’ evidence, I bear in mind the basic rule of evidence as elaborated in §§12-12 of Phipson on the Evidence 19th Ed. which reads: -
54.It is well-established legal principle that, before attacking a witness’s evidence, notice should be given to the witness in cross-examination of the nature of the attack if such is not otherwise obvious. The rule is nevertheless not an inflexible one. There is no breach of the rule if the witness knew or ought to have known that her version of events was being challenged or that adverse inferences might be drawn against her. Even if the rule is transgressed, it does not inexorably follow that the matters which have not been put to a witness in cross-examination cannot be relied on. It may be a question of the weight to be given to a witness’s evidence taking into account all the available evidence. 55.The Court is not bound to accept her evidence which is so incredible as to be incapable of belief or her evidence may be unsupported or contradicted by known facts and contemporaneous documents. There can be no hard-and-fast rule. The paramount consideration is fairness to the witness. 56.In this case, the Mother can fairly and objectively be said to be on notice of the Father’s challenge on her claim of expenses, said to be grossly inflated, having regard to the affirmations, opening submissions and line of cross-examination of the Father. The rule does not inflexibly require every point which might be used against her to be put to her. Nor does it require the Father to challenge each and every receipt in cross-examination, especially the receipts are hundreds. It is indeed time-consuming and costs-wasting to cross-examine her on every single receipt to state the obvious. 57.As dictated by the rule of evidence, I scrutinize the receipts with caution. I form the view that some of the receipts plainly do not come up to proof for illegibility or insufficient information; some are plainly not related to a boy of tender age (cosmetics, jewellery, stuffs and clothing for women, 4 mattresses, twin mattress, alcohol); some are not paid by the Mother (I do not accept the explanation that some expenses were paid by others and the Mother had reimbursed the payers due to lack of corroborating evidence other than her bare assertions in Court). 58.Further, the Mother has adopted an overly relaxed approach in formulating her claim for expenses. I just give a few examples as illustrations: deluxe two queen bed hotel room for 2 nights for 2 adults, high-priced furniture as US$8,000 for a table; US$3,805 for dining chair; 2 chairs at US$3,436 each; US$3,996 for a desk; US$3,996 for a sting bar cabinet; US$3,135 for pendant, US$6,500 for a grand piano; US$4,899 for a bed mattress. Such expenses are clearly excessive as compared to the far less expensive IKEA furniture used by the Father and enjoyed by the Family in Hong Kong. 59.Moreover, freight bill from moving company for retrieving the Mother’s stuffs which were kept in the storage in the US and for moving the belongings of the Family from Hong Kong to the US should be reduced to reflect V’s share. Further, claims for meals, parties, entertainments, trips to Las Vegas, expenses for other families or for 11 guests should also be adjusted downwards to be compatible with the social life for a boy of tender age, not to mention the Father’s refusal to hold any birthday party for V in Hong Kong V’s Monthly Expenses 60.The Mother’s alleged monthly expenditures for V are recited in Schedule II : personal expenses at US$10,476 plus general expenses at US$1,990 (US$5,969/ 3), a total of US$12,466 (HK$97,235). In reply, the Father disputes in Schedule II that the reasonable expenses of V should be personal expenses at US$1,062 plus general expenses at US$383 (US$1,150/3), a total of US$1,445 (HK$11,271). 61.Having regard to V’s living standard as well as the lifestyle and financial resources of the Father (which will be elaborated further below) and by adopting a broad common sense approach in considering all the evidence before me, I form the view that the claim for V for personal expenses and general expenses is relatively on the high side which should be adjusted downwards as follows. Personal Expenses of V 62.Of the alleged personal expenses for V, I form the view that some of them are not reasonably necessary for V. 63.I accept the Mother’s claim for private school fees and extra tuition fees of US$1,525 and US$60 respectively reasonable. Despite the Father disputes that V should continue his education in public primary school as many of the children in the US do, I am convinced by the Mother that it is reasonable for V to receive education from the private primary school she intends to enroll for V (“Intended School”) for the following reasons:
64.After all, the Father’s declaration in court that he is willing to be responsible for V’s private school fees (even though he later changed to say that he would only be responsible for half of those fees) illustrates that private school education is suitable and appropriate for V. 65.I am satisfied that the Mother’s plan to move V from public school to private school is supported with good reasons and documents. Education is very important to a child. He is entitled to receive education in better school environment so long as his parents’ finance permits. I accept the amount claimed is reasonable need of V. 66.As V is entering into the period of rapid growth, his education and social development begins to reach new level. I find the following expenses to be reasonable:
67.Of the claim for child-minding fees for US$3,000, the Father disputes such claim by referring to the Mother’s 5th affirmation in that she stated that a full-time nanny for V was unnecessary as she could raise him the same way as she had raised the Two Daughters without the assistance of a nanny in the past. I accept Mr Yim’s submission that her statements should not be taken out of context. They were referring to the period of time when she was living with the Father in Hong Kong and the Father’s nanny, B, had been on vacation leave out of her control. By contrast, the mother is now aged 51, looking after V as a single mother in the US. It is for V’s benefit to be fully taken care of by his natural mother with the assistance of a nanny as he enjoyed in the past. 68.The argument that it is uncommon for families to have full-time nannies in the US is unconvincing, bearing in mind that V was used to enjoy the services of 2 domestic helpers while living with both of his parents in Hong Kong. I find no reason why he should be deprived of such service after being relocated to the US. The fact that the Father arranged B to take care of V during his access is a good indicator of the need. Sharp disparity between the Father and the Mother should be avoided. 69.Probably the Mother may derive benefit from the nanny’s contribution to household chores. I am however persuaded that she would not need to employ a nanny but for V and she could even more focus on taking care of V which will benefit V the most at the end. It is not fair to burden the Mother’s extended family members or friends with V’s daily care or household chores as suggested by the Father. 70.It is logical that service fee of a nanny is fixed according to experience and expertise. I do not think a highly professional nanny is necessary for a child who is no longer an infant. I would allow US$1,750 instead of US$3,000. 71.Provided with the service of the nanny, the meal out of home should be allowed at US$250 (instead of US$477 as claimed). I reject the claim for club membership fee of US$50 which I would elaborate further below. General Expenses for V 72.Of the general expenses propounded by the Mother, she explains that at the start, the general expenses were mainly shared by V and her because the Two Daughters were not residing with them. A was admitted to university living in the dormitory which was far away from Los Angeles while J was living with Sister Y in New York. Lately, J has stayed with her and accordingly, the general expenses are divided by 3 to reflect the actual expenses of V. 73.On the evidence before me, I accept the amounts claimed are reasonable save and except for the club membership fee. I assess the general expenses for V should be US$1,940 (HK$15,132), being the general expenses of US$5,819 be divided by 3 persons [(US$5,969-US$150)/3]. 74.Of the claim for rent: the Mother claims for one-third of US$3,600. The Father criticizes the Mother to have unreasonably chosen Irvine, the most expensive city in the US, to live in. Such criticism is unwarranted. There is no valid reason to deprive V of living in a city which the Mother finds to be safe, stable and suitable for him: within 20-minute driving to the Intended School for V, a green city with good facilities and development, being regarded as one of the best cities for living. It is also reasonable for them to live close to the Mother’s father, brother and friends who live in the same city. 75.Further, in view of the Father and V’s living environment in Hong Kong, the Property is located in a highly desirable residential area, in the size of 2000 ft.² with high ceiling, good view and a backyard, I take the view that a 3-bedroom apartment in Irvine is reasonable to house V, so that he can have his own bedroom and more space for study and activities as he enjoyed in Hong Kong. I assess the amount claimed as reasonable. 76.Of the claim for utilities: one-third of US$515. A breakdown of this item is given by the Mother which includes electricity, water, television, internet, drinking water, mobile phone, solar, waste and gas. The Mother’s evidence on this item is not challenged with solid evidence. Nor can it be seriously disputed. 77.Of the claim for food: one-third of US$817. The Mother was cross-examined on why the food expenses for October to December 2018 was almost 3 times of that for March to June 2019. I find her explanation convincing: the reduction was the result of her minimizing their spending by frequently dining at her brother’s home because of the Father’s cessation of Direct Payments. At any rate, I fail to see how US$9 for food each day can be regarded as unreasonable. 78.Of the claim for household expenses: one-third of US$196, this modest sum is disputed in Schedule II. I find no reason not to allow US$2.2 for daily household expenses. 79.Of the claim for car expenses: one-third of US$592. The Mother clarifies that the car/ petroleum expenses do not include any holiday trips and the increase in car expenses was caused by V’s increasing activities. I find the claim for US$6.6 for car expenses each day comes no-where near the definition of unreasonableness. 80.Of the claim for car insurance: one-third of US$99. This item is not disputed by the Father. 81.I would however reject the claim for club membership fee of one-third of US$150 which I would elaborate further below. 82.In summary, V’s monthly expenses can thus be calculated at general expenses at US$1,940 (HK$15,132) plus personal expenses at US$6,049 (HK$47,182), rounding up at US$8,000 in total (HK$62,400). In my view, V’s reasonable needs are slightly less than the Mother’s projected figures but much more than the Father’s suggested figure. The Father’s Financial Position 83.The Father confirms that he has the ability to pay the sums claimed by the Mother. He continues operating his business as a chiropractor, homeopathic and naturopathic professional and health product supplier with no retirement plan. 84.According to Schedule I, he confesses that his assets as at 4 April 2018 amounted to HK$68,194,768 which include : -
85.The above declaration has yet included the value of his businesses. He is the sole owner of the following companies and according to their financial statements as of March 2017, these companies are worth HK$16,056,603 :
86.The Father’s liabilities as at 4 April 2018 were mortgage liability for the Clinic and the Warehouse Premises at around HK$12,480,845. 87.He states that he receives a monthly income of HK$180,000 from his business plus some tuition fees from his homeopathy-teaching. During cross-examination, he agreed that his disclosed monthly income of HK$180,000 solely represents the ‘directors’ remuneration’ from the Three Companies and he did not actually know how much money he had withdrawn from his companies for his own use and benefit. 88.I accept Mr. Yim’s submission that the Father has received far more than a monthly sum of HK$180,000 from his business. This is evidenced by the financial statements of his companies which recorded “Amounts due by a director” as follows: -
89.His monthly expenses are said to be approximately HK$116,152 (inclusive of the Monthly Sum of HK$35,000). In court, he admitted that due to the cessation of the monthly maintenance payment of HK$42,000 to K as well as the monthly remuneration of a resigned domestic helper of approximately HK$5,000, his monthly expenses have been reduced lately by HK$47,000. The Mother’s Financial Position 90.In contrast, the Mother has been out of gainful employment for more than 7 years. It is common ground that the money she received under the Employment Contract was for household expenses, living expenses, education expenses and child-rearing. 91.According to Schedule I, the Mother’s assets as at 3 April 2018 were worth HK$6,351,560 which contain: -
92.In court, the Mother testified that she owns a burial land which costed US$50,000 in or around 2018. The value of her assets is therefore declared to be HK$6,741,560. 93.The Mother alleges that her liabilities as at 3 April 2018 were US$247,074 (HK$1,927,177) which included : -
94.It is noteworthy that the Mother has a mortgage liability of HK$2,912,851 which has already been taken into account when assessing the net value of the 1033 Property above. 95.The Mother currently receives the following incomes each month : -
96.The Mother emphasizes that she has not received any spousal maintenance from her ex-husbands and V is not entitled to any government social security payment. The Hidden Assets 97.Although the Father took no issue on the Mother’s assets in Schedule I, he accuses the Mother of fabricating the Husband’s Loan and Sister Y’s Loan as well as concealing the following assets at trial: -
98.The Father’s accusations must be considered together with the Decision of the learned Deputy Judge D. Cheung dated 7 December 2018 (“Discovery Decision”) in that the Father’s numerous requests for further information and documents relating to her divorce arrangements with her ex-husbands and the existence of the Husband’s Loans., etc. were disallowed and the Mother was found to have sufficiently replied to the Father’s related enquires. Coupled with the fact that the Mother was not required to account for the disposal of the properties which took place long time ago in her Form E filed on 3 April 2018, some of the criticisms of the Father are untenable. 99.Regarding the Former Matrimonial Home, the Father says that the Mother had told him that she owned a landed property which he believed to be the former matrimonial home she owned jointly with her ex-husband. The Mother admits that she had owned a mortgaged matrimonial home with her ex-husband in Maryland. When she divorced, she stayed there temporarily until it was sold at a loss in 2006. It was bought at a high price with the aid of a substantial loan and was sold at the declining market, resulting in the mortgage liabilities exhausting the sale proceeds. There is no slightest evidence to show that she has been in possession of the said property for the last decade or to contradict her evidence. 100.The allegations about the Greendale Property and the Joan Property shall be dealt with together. Mr Surman submits that as these two properties were used as the Mother’s mailing address (the deed of grant of the Duarte Property was sent to the former and the Mother’s bank statements and V’s school record were sent to the latter), the Mother must have owned these two properties. 101.The Mother explains that the former is her ex-husband’s home which was owned by him and the latter is her friend’s home, and, the use of such addresses for mailing address was just for convenience purpose. She emphasizes that the ownership of such properties is open for search as a public record and accordingly, the Father should not have mounted such baseless attack against her. 102.In response, Mr Surman accuses the Mother of failing to produce any documentary evidence to disprove the allegation. He invites this Court to find her to have an interest in such properties and to further draw an inference that she has other undisclosed assets. 103.I decline the invitation for mailing address is far from sufficient to establish prima facie evidence of ownership. Such argument shall also be tested with reference to the well-settled legal principle that factual foundation is to be ascertained on the basis that is normal in the civil proceedings that he who asserts must prove. Person asserts affirmatively as part of his case that a certain state of facts is present, that is an averment which he is bound to prove positively. Undoubtedly the accusation is devoid of any solid evidence to prove the Mother’s ownership in those two properties. It also ignores the documents produced by the Mother particularizing the owner of the Joan Property (who is not the Mother) which disprove the Father’s allegation. 104.By the same token, absent any solid evidence for proof of the Mother’s ownership in the Orange Property, mere speculation does not constitute valid basis for a finding of ownership. The Mother’s explanation that it is the current residence of her father and brother remained unshaken under cross-examination. 105.Of the Guangxi Property, the Mother is criticized to have concealed her ownership of it and only disclosed it at trial. The Mother clarifies that she had once owned a property in Guangxi. As it was sold in November 2016, long before the compiling of her Form E and affirmation, she accordingly had not mentioned it in her documents before trial. She nevertheless has disclosed the bank statements showing the deposit of the sale proceeds of RMB388,000 which was attached to her Form E. Absent any valid challenge, I accept her explanation which is consistent with the documents disclosed by her. 106.Of the Father’s allegation that the Mother had told him that she jointly owned a property with her sister, she admitted that she had once jointly owned a landed property with her sister which was sold in around 2015. The property was purchased at a high price but sold at a loss. The sale proceeds were used to repay the bank loan. Her account of the sale was not challenged with any concrete evidence and remained unshaken during cross-examination. 107.As to the arguments relating to the Duarte Property, I will deal with it separately below. Other Properties 108.Mr Surman refers to the Mother’s evidence in Court that she had once helped her eldest sister to deal with 2 landed properties in the mainland which were owned by her mother (said to be worth approximately RMB500,000 and RMB320,000) and seeks to argue that those properties should in fact be owned by the Mother. He submits that the Mother’s allegation contradicts to her another allegation that her mother was lack of financial means, who had counted on her for financial assistance and bequeathed no fortune to her. 109.In reply, the Mother clarifies that her mother was not in financial difficulty throughout her life. Her mother’s financial condition only worsened alongside her serious illness which lasted for years. Her mother purchased those properties at low cost many years ago and bequeathed them to her husband. He then entrusted the Mother’s eldest sister to manage them for him. Given both of them lived in the US, the Mother therefore assisted them to manage those properties when living in Hong Kong. 110.Absent any solid evidence for proof of the Mother’s ownership in such properties, there is no valid basis for finding any form of ownership held by the Mother in such properties or challenge the Mother’s explanation. The Mother’s Business 111.The Father alleges that the Mother worked at a multi-level selling company selling skin care and nutritional products while living in Hong Kong. He seeks support from the Mother’s extensive travel as a strong pointer to her active business activities. He alleges in his affirmation that he himself, his relatives and friends have signed up under the Mother in that company, and, his health shop also bought thousands of dollars’ worth of products from her. 112.The Mother firmly denies such allegations. She asserts that she has never been employed by the said company or received income from it. She was only a user of its products which was introduced by the Father, who had thought of enriching his product line at his health shop. She had once explored money-making possibilities from such products but met with no success. Her overseas trips were for various non-business-related purposes as visiting her relatives and friends, taking care of her aged father, her dying mother and J, buying stuffs and helping orphans. 113.On this argument, the Father fails to provide any solid evidence to support his allegation. He did neither outline the basic scope of the alleged Mother’s business, nor did he sketch the extent of her income generated therefrom. The question of how the Mother’s overseas trips related to his alleged business has not been addressed to. 114.Not only that he was unable to provide any solid proof of his allegations, notwithstanding his statements in his affirmation that he himself, his business, friends and relatives were customers or downliners of the Mother in that company, and, therefore, should have no difficulty in providing actual proof, worse still, he, in court, denied he and his business had ever purchased any products from the Mother. His evidence in this aspect is self-contradictory and unbelievable. I am not convinced that the Mother has received any solid income from any business as alleged. The Alleged Gifts 115.The Father alleges that over the early course of the parties’ relationship between 2011 and 2013, he gifted the Mother around US$1,104,000 which made her a woman of affluent financial means. His allegations are summarized in a table exhibited to his 2nd Affirmation: -
116.During cross-examination, the Father said that most of the forms and documents effecting the Disputed Payments were prepared by his business manager on his behalf. Even though he disputed that it was not a usual practice for he or his manager to put in all the details of each payment in those documents, the documents demonstrated that they had adopted a practice of recording the purposes of the 7th to 12th payments therein, including, the following: -
117.The Mother denies the Father’s allegations. Regarding the 1st Payment and the 2nd Payment, the Mother says that those payments were paid by the Father to her sister for exchanging Hong Kong currency to the US currency for his own use and purposes, alongside with an intention to dissipating his assets to defeat his second wife’s claim for ancillary relief. 118.In consideration of the fact that the relevant cheques were made payable to Sister Y not the Mother, that those two payments were made in the course of the divorce proceedings between the Father and his second wife, that they were made immediately after the Problematic Transfer (which were subsequently set aside by a court order under the Divorce Action), that the Father has provided no sensible explanation as to why those two payments were paid to Sister Y instead of directly to the Mother and in the absence of any solid evidence to suggest that those payments were actually received by the Mother, I have no solid basis to find that they were gifted to the Mother. 119.As to the 6th to 11th Payments which were recorded as payments for purchasing and/or renting the beauty devices, the Father, under cross-examination, agreed that, even though the beauty devices (i.e. laser machines) were purchased at the request of the Mother with the original intention for her use, they have in fact been purchased and possessed by one of his companies since the purchase, and, the Mother has never owned or used them. The bill of sale for the purchase of them at a total sum of US$116,000 was signed by the Father for and on behalf of one of his companies as buyer. 120.Further, it is obvious to me that the 10th Payment and the 11th Payment were solely for settlement of the balance payment of the beauty devices and not for the personal use of the Mother. The said two payments together with the alleged instalment payments of US$4,000 of the 6th , 7th , 8th and 9th Payments made up a total of US$116,000 for the purchase price. They were also recorded in the contemporaneous record of the Manager as the ‘Balance of the beauty device’. I accordingly fail to see how those machines can be considered as the Mother’s assets or those payments were gifts for her. 121.As to the alleged payments for living allowance under the 7th, 8th, 9th, 12th and 13th Payments (collectively, “Allowance Payments”), I accept them as consecutive monthly payments to the Mother for living allowances as recorded in the relevant payment documents. Given the amount of each payment was not substantial (monthly sum of US$3,000 from September to November 2012, monthly sum of US$7,000 from December 2012 to January 2013, close to the birth of V), they would have highly likely been used up for daily living expenses as intended by then. 122.Of the 14th Payment, the Mother denies receipt of it. She says that such fund should have been withdrawn by the Father for his own use and benefit for his trip for the US in February 2013. In court, he said that he had brought some money for himself for his US trip, along with some extra money for the Mother to spend, and, that was the last payment for the Mother in the US. 123.In the absence of any corroborating evidence to back up his allegation, of any detailed explanation for the arrangement of such payment and of any reason for not adopting his usual practice of making payment to the Mother directly through bank remittance even for lesser sums, I do not believe that he has gifted such substantial sum in cash to the Mother. 124.In further consideration of his own evidence and of the close proximity of the dates between the withdrawal of the fund and his trip to the US, it is more likely that the cash was for his own use and purposes in his US trip in early February 2013 instead of a lump sum payment to the Mother as alleged. The Three Payments and the Duarte Property 125.Of the argument over the purposes of the 3rd Payment, the 4th Payment and the 5th Payment (“Three Payments”), I find neither of the Parties is telling the whole truth. The Duarte Property was purchased in the Mother’s name for US$392,000 on 16 August 2011 and sold at US$528,136 in May 2017 as evidenced by the title documents. 126.The Father alleges that the Three Payments, in the total sum of US$830,000, were transferred to the Mother for the purchase of the Duarte Property and for assisting her in making mortgage repayments for her 2 problematic properties. He therefore argues that he has already provided a home for her and V. 127.The Mother denies. She says that part of the funds was used for a number of overseas pleasure trips with the Father (inclusive of purchase of luxurious jewellery, watches and stuffs) and part of them were spent on closing her spa business, relocating from Wisconsin to Los Angeles, set-up costs, living expenses and subsequently, on pre-natal check up, medical fees and expenses for the birth of V and wages for a nanny. 128.She claims that the Duarte Property was funded by her parents who subsequently gave it to her. They told her that it was a gift for her as she had financially supported her mother the most when the latter was ill and that by then they realized her miserable situation in Hong Kong, they therefore decided to give the property to her as a gift to meet her urgent needs. They resided there until the death of the mother and the father could no longer live there alone. It was then sold in May 2017. 129.She says that the close proximity in time between the transfer of the 4th Payment on 9 August 2011 and her execution of the deed of grant of the Duarte Property on 16 August 2011 was due to the fact that she had used her parents’ funds (for purchasing the Duarte Property) for her relocation costs from Wisconsin to Los Angeles in 2011 in advance and therefore, she had pressed for reimbursement from the Father so as to meet the deadline for payment of the Duarte property. 130.In my view, the Parties’ arguments have to be considered against the background facts and their conducts at the material time. The Three Payments were made shortly after the start of their romance and the commencement of the divorce proceedings between the Father and his second wife, who had an ancillary claim against him. Their relationship rapidly developed leading to the Mother leaving the Second Husband and finally divorced him in a short time span. The Mother’s breakup with the Second Husband, closure of her spa business and her removal with the Two Daughters from Wisconsin to Los Angeles to start a new life was a drastic and costly move. Such move took place just a few months after the start of her intimate relationship with the Father. 131.It is highly likely that the Mother would not have taken such drastic move but for the encouragement of the Father with his full financial support. It is most unlikely that she would have uprooted her own career and the life of the Two Daughters and put them at risk without full financial support from the Father. She actually removed from Wisconsin to Los Angeles in or around October 2011, shortly after the 3rd and 4th Payments. Her allegation in this aspect fits in the background facts and the Parties’ conducts. I believe her evidence that the Father had funded for such drastic move and their living expenses. 132.However, I do not believe her allegation that the Duarte Property was funded by her parents. Not only because of the lack of documentary proof of her parents’ funds, the circumstances under which it was purchased in her sole name and was gifted to her after her removal to Hong Kong was not accounted for in details or logically. The details of the trust arrangement and the exact timing of the gift are not provided for. 133.Her explanation that the purpose of the gift was to meet her urgent needs as intended by her parents runs counter to the fact that her parents continued to live in the Duarte Property until they could no longer live there (her mother passed away in April 2016) and the property was only sold in May 2017. It is also highly unlikely that she would have risked losing her parents’ property simply for removal costs, especially when there was no guarantee that the Father would repay her relocation costs prior to the completion of the property. 134.Similarly, the Father’s allegations about the purchase of the Duarte Property and the mortgage repayments for the Mother’s two other properties are not wholly true. The timing of the 3rd and 5th Payments did not fit in the timing of the purchase of the Duarte Property. The allegation of assisting the Mother in mortgage repayment is bare assertion without corroborating evidence. He could not particularize the two properties concerned or the mortgage involved. His allegation in this aspect is unjustified. 135.On the evidence before me and on a balance of probabilities, I believe that both of them only account for part of the truth. I believe that the Father provided the Mother with the Three Payments for multi-purposes: their joint use and enjoyment (as pleasure trips and luxurious items) as well as funding her to leave the Second Husband, to start a new life with her family so as to continue their romantic relationship. 136.The truth is the Parties enjoyed several overseas trips in the period concerned and the Mother has, shortly after those payments, closed down her business, moved away from Wisconsin, set up and started a new life with the Two Daughters in Los Angeles and lived there many months before removing to Hong Kong. 137.I believe that the 3rd Payment and the 5th Payment were exhausted for the multi-purposes aforesaid for the Mother had not been substantially and gainfully employed since the closure of her business, and, the Father found it necessary to make subsequent monthly payment of HK$3,000 or HK$7,000 for her living allowances between September 2012 and January 2013 (being the 7th , 8th , 9th , 12th , 13th Payments). 138.Apparently the Mother had used part of the removal and set up costs, the 4th Payment, for the purchase of the Duarte Property and the Father retained no interest in it. That explained why she purchased the Property in her sole name without the involvement of the Father. He was not named an owner of it and did not involve himself in the purchase or management of it. He has been ignorant of the sale of it until after the Mother’s account for this in her affirmation and her bank statements. 139.I am not persuaded that just because the Duarte Property was funded with the 4th Payment, the Father has already provided V with a home which frees him from further financial obligation to house them. Those funds had been given to the Mother more than 8 years ago, long before their unplanned pregnancy and undoubtedly without regard to V. She was free to purchase the property in her sole name, manage it at her discretion, use it for her own purpose and in the way she found fit, i.e. to house her parents for years, and sell it without his prior consent, involvement, or even knowledge. It was in any event sold in May 2017. In the premises, it is just and fair to consider the net sale proceeds forming part and parcel of the Mother’s assets instead of a complete discharge of the Father’s financial obligation to house them. The Loans 140.The Duarte Property had not been rented out. As to the net sale proceeds of it, the Mother says that they have been used up to repay the following 2 loans at the end of March 2018 and the purchase of a vehicle shortly after the relocation:
141.The existence of the Two Loans is challenged. I am however not convinced by those arguments. First, it is complained that the emails produced by the Mother in support of the Two Loans are self-serving. In my view, those messages, being her emails to Sister Y and the Second Husband respectively, her eldest sister’s email to her, sit comfortably with the background facts and are logical under the circumstances: as a result of the death of the Mother’s mother in April 2016, of J’s living with Sister Y no later than September 2016 and of the accumulation of the Mother’s aged father’s living expenses, it is natural and logical that the Mother would have to contribute to those expenses. 142.Further, given the rapid deterioration of her relationship with the Father shortly after her arrival in Hong Kong, her engagement of legal team to resolve their conflicts as early as in 2015, her unemployment since arrival in Hong Kong, her extensive travel and the burden of raising the Two Daughters, it is believable that she would have obtained loans from her sisters and ex-husband, that she would have delayed repayments and tried to repay part of them as much as she could upon the settlement of the dispute over the issue of custody and relocation by the 2018 Order when her legal costs for these proceedings were more predictable. 143.Second, I do not think the lack of a written reply from the recipients of the Mother’s email messages is sufficient to disprove the genuineness of those email messages. It is understandable that the Mother would have followed up with her sisters or ex-husband by various modes of communication including telephone and WhatsApps messages as explained by the Mother. 144.Third, the lack of a written loan agreement between the Mother and her sisters or the Second Husband is not sufficient to disprove the existence of loan and repayment obligation. It is not uncommon that money-lending between family members or former spouses are made informally, unwritten and without detailed terms as to repayment schedule. 145.Fourth, other than the email messages, the relevant bank transaction records were disclosed for proof of the Husband’s Loan and the repayments of the Two Loans. The Mother was found to have satisfactorily answered the Father’s request for information and documents in this connection, and the Father’s requests for further documents were disallowed in the Discovery Decision. 146.Fifth, in light of the Mother’s strong attachment to her parents and siblings as demonstrated in her affirmations and testimony at trial, I believe that she has purchased her own cemetery place together with her siblings and the father which is next to that of her mother. At any rates, the Mother will take no advantage of her explanation about her purchase of her own cemetery place for the value of it will be added back to the value of her assets. 147.Sixth, it is argued for the Father that the Husband’s loan was at the very odd figure of US$5,709 per month which should not be a loan for the Mother. However, the suggestions that those payments should be maintenance payments from the Second Husband pursuant to a divorce settlement agreement or real estate mortgage payments via the Second Husband for the Mother’s investments in the US are mere speculation without any evidence in support. 148.Further, such suggestions are inherently problematic. Not only because the payment period between December 2013 and March 2018 does not fit in the date of divorce between the Mother and the Second Husband in February 2012, but fundamentally because the logic for those suggestions defies comprehension. The suggestion of the monthly payment via the Second Husband for the Mother’s investment is difficult to follow. Moreover, those suggestions cannot reconcile the Second Husband’s monthly payments to the Mother for several years with the Mother’s subsequent lump sum repayment to him. 149.On balance, I find the Mother’s allegation about the Two Loans sit comfortably with the background facts and is logical in those circumstances. In light of the Mother’s limited income when living in Hong Kong, it is believable that she would have to turn to her sisters and the Second Husband for loans to supplement her deficits arose from the living costs for the Family, the extra tuition classes and activities of the Two Daughters, her extensive travel and legal costs. 150.I accept her explanation that the odd figure of the Husband’s Loans was the result of converting US currency to HK currency by that time plus handling charges. It is true that the amounts she said to have received from bank remittance varied between the figures of HK$40,000 and HK$45,000. However, given those transfers were made many months ago, a mix-up in the exact figure because of lapse of time, without sight of the relevant documents or assistance of a calculator (as she explained) is understandable. 151.It is also challenged that it seems very odd that the Mother would have repaid the Two Loans at the end of March 2018 when these Court proceedings have yet concluded and she was living in financial difficulty as she alleged. In my view, the Mother’s explanation adequately meets the challenge: it is upon the settlement of the issues of custody and relocation when her legal costs were more predictable, she then settled the long-outstanding payments without further delay, not knowing that the Father would not pay for the Direct Payments under the 2017 Undertakings five months later. 152.For reasons aforesaid, I accept the existence of the Two Loans and the Mother’s settlement of the Two Sisters’ Loan and part of the Husband’s Loan in late March 2018 as evidenced in her bank documents. 153.Having fully considered the Parties’ evidence against all the circumstances of the relevant events, I accept that, on balance, other than the source of fund for the purchase of the Duarte Property, the Mother’s evidence relating to the Disputed Payments is to be preferred. There is no sufficient evidence to prove that the Mother has received the 1st Payment and 2nd Payment. The payments for the purchase of the beauty devices could not be regarded as her assets. Further, the balance of the Disputed Payments should have been exhausted to defray the expenses of the family over the years. 154.I am also persuaded by Mr Yim that even on the assumption that the Disputed Payments were wholly gifted to the Mother as alleged (which I do not so find as elaborated above), such payments were made over 7 years ago and mostly in the beginning of 2011 when the Father was in the heat of the divorce action against his second wife, it is highly likely that such payments would have been spent for the enjoyment of the Parties and all sorts of payments for raising the family, removing from Wisconsin to Los Angeles and subsequently to Hong Kong, the birth of V, extensive travel to take care of the aged parents and visit family members etc. throughout the years bearing in mind that there is no solid evidence to suggest that she had any solid incomes other than the payments from the Father as alleged above or that she has retained any assets of substantial value other than those set out above in the past few years. 155.The above analysis is in line with the fact that the Father, in his 2nd affirmation dated 28 of July 2017, said that as his relationship with the mother developed further, he realized that the Mother was not that financially strong as she had represented herself to be in the beginning and she had two landed properties in negative equity (“Father’s Affirmation Statement”). 156.When cross-examined on when did he discover the Mother’s hidden assets of substantial value, he answered that it was after the commencement of this litigation. When pressed for an explanation for the Father’s Affirmation Statement and his willingness to give the 2017 Undertakings, he resorted to an illogical answer that he acted under duress and the 2017 Undertakings were “ordered” by the Court, even though the Court had no power to force an undertaking or consent order upon a reluctant litigant. In all, the fact is that the Father’s Affirmation Statement was given after the 2017 Undertakings. His explanation is unbelievable. He apparently knows that the Mothers’ financial position is not as strong as he now seeks to portray. 157.For completeness sake, it is worth-mentioned that the Father has once alleged that he had paid HK$10,670,846 to the Mother since January 2011. As Mr Yim correctly points out, such amount included the Father’s payments given to the Mother under the Employment Contract from August 2013 to May 2017 as well as the interim maintenance from June 2017 to March 2018. The evidence shows that such payments were made and actually spent for the living expenses and maintenance in Hong Kong. 158.Much reliance is placed on the Mother’s purchase of the Vehicle as a strong indicator to her affluences. The Mother is also criticized to have elected to buy it at US$60,000 instead of sending V to the Intended School. Such argument ignores the fact that the Vehicle was bought shortly after their relocation to the US when she enrolled V in a private kindergarten, apparently in the expectation that the Father would continue to honour the 2017 Undertakings. She only arranged V to receive education from public primary school in September 2019, long after the Father’s cessation of settling the Direct Payments under the 2017 Undertakings. 159.Consistent with the background facts, I am convinced by the Mother that the Vehicle was purchased under the circumstances that the issue of custody was resolved, that the legal costs were more predictable, and under the belief that the Father would continue to pay the Direct Payments and subsequently reimburse her relocation cost in full. She accordingly bought the Vehicle ending up with the need to cut down on her living expenses in the subsequent years. The Mother’s Liabilities 160.As to the Mother’s liabilities, I believe that the Mother still owes the Second Husband the Loan Balance of US$96,874 as set out above. Of the Sister Y’s Loan of US$100,000, the existence of such loan is challenged in similar manner as the Two Loans: self-serving email to Sister Y, lack of written loan agreement or detailed repayment schedules. For the same consideration and reasons set out above, I am not of the view that these are valid challenges. 161.It is further argued that the Mother should not have unilaterally decided to pay Sister Y interest at a rate of 6% p.a. on the said loan for it is higher than the current mortgage interest rate. In response, the Mother explains that her decision taken had been premised on the information gathered that the banks in the US applied higher rate to unemployed borrowers, some even as high as 8%. She was grateful for the assistance of her sister and therefore thought she should offer a better rate of 6% p.a. for her. Her explanation accords with the commercial reality and is not contradicted with any solid evidence. It is also sensible for her not to turn to the Second Husband for interest-free loans (as suggested by the Father) so as to avoid any embarrassment of asking too many loans from an ex-husband. I accept her explanations. The Mother’s financial obligations 162.Apparently the Mother’s wealth has diminished sharply after her relocation to the US in July 2018 because of the following reasons : -
163.In light of the matters as aforesaid, I accept Mr Yim’s submissions that the Mother’s financial position is far less than the Father has suggested. Truly the Mother was able to fund this litigation with substantial legal costs and to purchase expensive furniture and vehicle, I nevertheless accept her explanation that those purchase mainly took place before or immediately after her return to the US in 2018 when the Father’s determination of ceasing all payments for the Direct Payments have yet been proved to be permanent. Her recent bank statements evidenced the substantial depletion of her savings in the past few months. 164.Coupled with the fact of the Mother’s sharp spending cut since early 2019 (with supporting documents): termination of the insurance policies in the US, her arrangement of V enrolling at a public primary school instead of private school from September 2019 and her minimizing her living expenses, I am not persuaded that she owns considerable assets as the Father suggests. 165.The Father’s suggestion in his 5th Affirmation that the Mother and V should live in the Duarte Property is no longer feasible because of the sale of the said property. His another request that they should live in one of the units of the 1033 Property so as to save on rent is validly declined by the Mother. The Mother explains that the units of the 1033 Property have already been rented out and the location of the property is a “slum area” which is not suitable for V. Her concern is reflected in the relatively low value of the said property and the fact that the rent of US$5,410 is fixed by the local government to accommodate low-income tenants. It is far away from the Intended School. I find no reason not to respect the Mother’s choice of residence for V which is justified with good reasons as set out above, nor should V be deprived of his rights to enjoy the standard of living which he and the Father are accustomed to. I accept the 1033 Property is not comparable with the Property. Employment 166.The Father argues that the Mother should re-enter into the labour market to support herself and to contribute to V’s living expenses as she did when the Two Daughters were still of tender age because she is healthy, well-educated and in possession of working experience and extensive support network from her family and friends in the US. He also refers to a number of figures on the internet to argue that working mother is common in the US and the public policy of the US government encourages single parent to work. 167.Mr Surman also refers to the Mother’s evidence under cross-examination that she chose not to work and not that she could not work to support his argument. I am however impressed by Mr Yim that such evidence should be read in the context of her testimony and in light of all the circumstances. 168.Admittedly the Mother had at some time been a working mother capable of taking care of the Two Daughters without the assistance of a nanny when they were small. She has also once put forward her plan to work after her relocation to the US, including working part-time in a language centre in the first two years and to gradually move into full-time employment in about 8 years’ time, which she now retracts. However, having considered her reasons for the abortion of her plan as follows, I am convinced that it is unrealistic to expect her to be gainfully employed in the foreseeable future. 169.First, I am persuaded that health problem is a live issue for her. When the Mother was a working mother taking care of the Two Daughters, she was in her 30s and with the assistance of either of her ex-husbands. At present, she is in her 50s, being a single mother taking care of 3 children in the US. Naturally, as she testified, her health condition is not as good as she was in her 30s. Her chronic insomnia problem further worsened since she gave birth to V at the age of 44. She always feels dizzy and tired in daytime and cannot sleep at night. Even though the health issue does not totally render her incapable of gainfully employed, the problem persists and the impact on her ability to work naturally aggravates as she is getting old. 170.Her evidence is in parallel with the Father’s evidence that he himself had treated her long-term insomnia problem in the past. He has, in his affirmation, also blamed her for her limited ability to take care of children due to her syndrome of depression and anxiety with a chronic sleeping problem. In reality, he allowed her not to work throughout her stay in Hong Kong and further arranged 2 domestic helpers to assist her in taking care of V and the household chores, not to mention the assistance he had rendered from time to time. 171.It begs the question of when the Father found it appropriate and necessary to engage 2 domestic helpers to assist the Mother to take care of V and the household chores of the Family, and, she was free from work and received constant assistance from the Father for 5 years, why should V now be deprived of the full-time care of his natural mother, particularly in the absence of the assistance of the Father and there will only be one nanny providing service to him. Such change of position is unjustified and the care-deprivation is unfair to V. 172.Second, it is clear that it is not easy for the Mother to be gainfully employed. I accept her explanation that after she had settled in the US, she then found out that the language-teaching market was overly filled with excessive teaching-licence holders with solid teaching experience which made her uncompetitive in the market for obvious reasons that her past working experience was mainly in the beauty industry and she is not a teaching-licence holder. 173.Third, understandably it is not easy for her to catch up with the fast-moving technological advanced beauty technology market and to acquire relevant licences so as to resume her previous beauty business or as a skincare specialist. She has been out of the market for more than 7 years and is lack of the requisite licence, skill, capital, clientele and time. 174.Fourth, her associate degree in Accounting (she is not a licence holder) will not advance her position any further in light of her staying aloof from the accounting field for more than a decade after her last employment as an accounting coordinator in 2003. 175.In the premises, the Father’s suggestion that she can earn a handsome salary as a skincare specialist or in the accounts field is unrealistic without due regard to her actual working experience and present situation. Realistically, she is in her 50s’ and has been out of the workforce for more than 7 years. It is not easy for her to take on a junior post but her experience deters her from obtaining senior positions. Her obligation to take V back to Hong Kong twice a year, for one of the two trips, the Mother and V must stay for a month, poses an obstacle to her employment-searching. 176.V is aged 7. Both parties regard him as a smart, very energetic and out-going child. The Mother has been his primary carer since his birth. It will be of utmost benefit to him if he could continue receiving full-time care from his natural mother. This is particularly so as the Mother has ample experience in nurturing children. Under cross-examination, the Mother put forward her daily child-care plan and nurtured ambition for V to be bright person as A, who was admitted as a medical student in a reputable university and is regarded by the Father as smart and brilliant. 177.Taking into account all the evidence, I am persuaded that it is unfair and unrealistic to expect her to obtain any fruitful employment in the US whilst taking care of V as a single mother in the next few years. The prospect of her obtaining gainful employment in the foreseeable future is flimsy. The combined effect of full-time employment and chronic sleeping problem will certainly weaken her parenting abilities, time and skills which should be avoided for the interest of V in his young age. 178.In my view, it is for V’s best interest to continue to receive full-time care from his natural mother who has been his primary carer since his birth. There is no justification for change. The absence of the immediate care of the Father has rendered her full-time care even more important. The plan for V to study at the Intended School and to be engaged in various extra-curricular activities should not be a reason to depart him from his long-standing living pattern of receiving his natural mother’s full-time care. I accept that she should not be forced to enter into the job market until V becomes a mature teenager and she is well equipped for the job market. Disparity 179.In view of the Mother’s financial burden of taking care of the Two Daughters and her aged father, of her liabilities owing to the mortgage bank, Second Husband and Sister Y, of her insignificant source of income which will be further reduced upon J reaching the age of majority in August 2021, of her limited earning capacity, of her prospect of receiving additional solid income or assets in the foreseeable future is slight, her financial resources which cannot be regarded as substantial will be on the decline. 180.In contrast, the Father is a wealthy man who has been, up to August 2018, solely responsible for the living expenses of the Mother and V. He owns substantial assets with a handsome income. He is now 70 years old but expressly declared in Court that he has neither intention nor plan to retire. He is healthy and energetic in continuing his business and strives to maintain his current life style. His monthly expenses have been further reduced with no dependent other than V. It is clear to me that it will not add any unreasonable or excessive burden on him even if he is to be fully responsible for V’s maintenance. 181.Even if I take the Father’s case in his closing submission (which I do not so find for reasons set out above), the Mother’s net assets are far less than HK$5 million (after making adjustment for double-count of the mortgage payment relating to the 1033 Property). The differences between the Parties will increasingly widen for the Mother is burdened with the responsibility of raising a family of 3 dependents and her aged father while the Father is remunerated and free of any dependent except V. The incomes generated from their respective assets will further enlarge their differences. 182.Sharp disparity between the Father, who has substantial wealth and handsome income to maintain good standard of living for himself, and the Mother, who is relatively powerless in securing reasonably comfortable standard of livings for a family of 4 and an aged father with her insignificant resources, is very obvious in this case. In particular, the Mother’s income will be further reduced in 2021. It is noteworthy that her income was generated mainly from her only mortgaged property which formed the major part of her asset. Her cash flow has been increasingly tightened as demonstrated by her bank statements. The balance of her bank accounts have been substantially reduced since 2019. 183.Having regard to the large discrepancy between the Parents’ financial resources, earning capacity, and financial obligations, this is not a case where an approach of 50-50 share in the V’s expenses would be fair and equitable. Nor do I find the Father’s demand for the Mother’s contribution towards V’s living expenses justified. Looking all the circumstances in the round, I am of the view that it is fair, just and reasonable for the Father to be wholly responsible for the reasonable needs of V. Carer’s Allowance 184.I now turn to consider the claim for the Mother’s allowance. The well-established legal principle that a child’s need for a carer enables account to be taken of the caring parent’s needs is recognized in the leading case of Harountunian v Jennings (1980) 1 FLR 62 and further expounded in Re P (Child: Financial Provision). In order to discharge the responsibility as the primary carer of the child, the mother must have control of a budget that reflects her position and the position of the father, both social and financial and should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the other parent chooses to live lavishly. See Re P at §48 185.In gauging the Mother’s claim, what is required is a broad commonsense assessment and a generous approach to the calculation of the mother’s allowance is not only permissible but also realistic as illustrated in Re P : -
186.The object is however not to meet the mother’s aspirations, which fall outside her reasonable needs as the child’s carer, or to provide her with surplus funds to set aside for her own future as illustrated in H v S FCMP 70/2008, unrep., H.H. Judge B. Chu (as she then was) 29 April 2009. 187.The Mother’s claim for her allowance is set out as follows: -
adding up her 1/3 share of the general expenses and her personal expenses: US$6,275 (US$1,940 + US$4,335). She confines her claim to HK$50,000 and sensibly does not claim for insurance premia (said to be US$1,393) or expenses relating to the Two Daughters (said to be HK$51,000). 188.In assessing the Mother’s claim for carer’s allowance, I bear in mind that this is not a spousal maintenance claim. The amounts to be paid shall be sufficient to allow her to discharge her responsibility as the primary carer of V. It should not be a disguise of what she claims for her own benefits or for security of her future. 189.Having considered all the evidence and applying the relevant legal principles, I adopt a broad brush approach and consider it is reasonable to allow a monthly sum of US$2,500 for her allowance. Despite I accept that the mother will need to be provided for her general expenses and living expenses so as to ensure that she is sufficiently equipped and healthy in order to be able to care for V, I take the view that with her own financial resources, she should be able to pay her own way and to pay for her own holidays, entertainment and presents. 190.Moreover, the Father should not be burdened with the responsibility of contributing to the expenses of her parent or her property which go to her filial piety and personal investment. Further, her claim for her personal expenses are plainly excessive which is not commensurate with the reasonable needs of a full-time mother taking care of a child against the background of the Parties and the living standard of their family in the past, especially given that she has a nanny and a vehicle paid for by the Father. I bear in mind that carer’s allowance should not be awarded in order to improve the lifestyle of the payee. 191.Cross-reference has also been made to the Father’s payments for the Mother in the past. I will allow her a period of 8 years commencing from 1 August 2018 up to the time when V is about to embark on higher school education. By that stage, the dependency of the Two Daughters should have ceased and she is expected to be in a position to work or accumulate sufficient wealth to be self-support. Lump Sum Payment 192.The Mother’s claim for a lump-sum of US$162,865, allegedly to be expenses already incurred at US$137,164 plus the budget to be incurred at US$25,701, is particularized in Schedule II. Her abandonment of the claim for rental deposit for accommodation is a sensible move for rental deposit would be refunded upon termination of tenancy. 193.In WGL v ASB, the mother was awarded a one-off payment for set up and decoration costs incurred. The court’s power to make a lump-sum order was set out at §229 : -
194.I will now deal with the claim for incurred expenses. Of her claim for the purchase of the Vehicle for US$60,000, I accept that it is reasonable for the Mother to purchase a vehicle for the benefit of V. Travelling by private car has been the main method of transportation for V and his father since his birth. The Father’s suggestion that the Mother owned a SUV when she left the US for Hong Kong in 2013 and therefore she could still drive that car after her return to the US is impracticable. 195.In consideration of the Mother’s departure from the US with an intention to stay in Hong Kong with the Father for long in 2013, I believe her explanation that she gifted that car to her brother upon her departure in 2013. It was subsequently scraped for it was out of repair and old (said to be manufactured in 2003). 196.That said, I accept the Father’s challenge that the amount she claimed is on the high side as compared to the Father’s old Mazda. The budget for vehicle should be limited to similar price range. The Mother’s preference for SUV does not warrant a blank cheque for an unreasonable budget. Some buffer for improvement of the car for child-safety should be allowed. I will allow US$40,000 for purchase of vehicle. 197.Of her claim for temporary accommodation which were only enjoyed by the Mother and V upon their return to the US, commercial reality dictates that short-term tenancy for temporary accommodation is ordinarily higher than long-term tenancy. I will allow the rental for temporary accommodation as well as for car for August and September 2018 respectively at US$10,000 and US$2,400 in full. 198.Her claims for the purchase of furniture, electrical appliances and other miscellaneous expenses on setting up accommodation and moving of belongings at US$64,112 and US$652 respectively should be dealt with together. In view of the fact that the Property where the Mother and V lived with the Father in Hong Kong was simply furnished with some basic furniture, that it is the Mother’s case that the furniture were very old, that the receipts produced by the Mother are problematic as elaborated above, I consider the claims under these heads are plainly excessive. I would allow a total of US$40,000 for both items. 199.The claim for the anticipated expenses of US$25,701 are the expenses that the Mother have yet incurred but plans to incur once she has sufficient funds. Her claim for additional furniture and electrical appliances as refrigerator, laundry machine, dish washer and oven at US$11,230 is excessive. I would allow US$8,000. 200.Of her claim for moving costs of belongings and air tickets from Hong Kong to the US at US$9,500 plus US$2,471, I take the view that US$8,000 should be the reasonable amount. It is said that the moving costs are for V’s personal items as toys, clothes, shoes, books and beddings etc. Having regard to the fact that V was only aged 5 when leaving Hong Kong, his belongings in Hong Kong should be limited. Some of them should no longer be worth-shipping because of the rapid-growth of this age and V has already settled in the US for 2 years. 201.Of the claim for joining fee of a country club at US$2,500 (with monthly membership fee of US$150 as claimed under the heads of general expenses and personal expenses as mentioned above), I am not persuaded that it is necessary for the Mother to join a country club for V to dine, to do sports or to make friends. The fact that V was occasionally brought to some private clubs when he was still a toddler in Hong Kong and the Father is a member of two private clubs do not give rise to reasonable needs for club-membership for V or the Mother. 202.The suggestion that private country clubs offer better extra-curricular activities, peer groups, facilities and open areas does not lend support to the Mother’s claim. It is the Mother’s case that Irvine is one of the best places to live in the US, surrounding with green areas, parks and is well-equipped with facilities, and that the Intended School is the best school in the county which offers a wide variety of activities. The Father has to contribute to the higher costs for V to live in this admirable residential area and to study at this reputable school. I do not think it is reasonable or necessary for V, being a full time student, to join a club in order to enjoy the recreational value and social status from having club membership. 203.Taking into account all the circumstances of this case and adopting a broad brush approach, I allow a lump sum payment at a total sum of US$108,400 (US$92,400 + US$16,000) (HK$845,520). The Parties’ Agreements 204.In passing, two incidents are worth-noting. On or around 19 August 2015, the Parties signed a settlement agreement (“2015 Agreement”), in that the Father agreed to pay the Mother a monthly sum of HK$30,000 as “salary” under an employment contract, an education allowance for the Two Daughters and a lump sum of HK$10,000,000 for the Mother to purchase a landed property with a value of not less than HK$13,000,000 to be held on trust for V on condition that the Family will continue to live in Hong Kong. The Father alleges that the said agreement was signed under duress from the Mother, which is denied by her. In any event, she confirms that she does not seek to enforce such agreement. 205.What is not disputed is that on 3 July 2017 the Parties had a discussion through A at the Property, ending up with another “initial” agreement (“2017 Agreement”), the terms of which were recorded in an email sent to the Father on 3 July 2017 at 5:53p.m. (“First Email”). The fact that the 2017 Agreement appears to be even more favourable to the Mother than the 2015 Agreement tends to undermine the Father’s allegation that the latter was signed under duress. 206.According to the Father’s own evidence in his 2nd Affirmation, he, under the 2017 Agreement, agreed to be responsible for basically all the general expenses, daily expenses, V’s personal expenses plus the school fees of the Two Daughters for HK$34,833 and the purchase of a landed property with a value of HK$10,000,000 in the Mother’s name, to be held on trust for V, providing that the Family continue to live in Hong Kong. 207.When asked about the 2017 Agreement, the Father initially resorted to “agreement under duress”. This allegation runs counter to his affirmation evidence that the First Email “briefly include all terms we discussed and have agreed on”. After all, the Father finally agreed in court, and further confirmed in the written submissions prepared for him that he originally reached an agreement with the Mother on 3 July 2017, being the 2017 Agreement as evidenced in the First Email. It was only after the Mother unilaterally requested the transfer of the Father’s Warehouse Premises to her that the 2017 Agreement and the entire negotiation fell apart. 208.On such basis, I see the force of Mr. Yim’s contention that whether under the 2017 Undertakings or the 2017 Agreement, the Father found it necessary to be wholly responsible for V’s expenses and to house V. Even though the Mother is not seeking to enforce any settlement agreement at this trial, the Father’s previous agreements show his strong financial capacity and the needs to finance the Mother and V. 209.Further, his agreements to provide financial support to the Mother under the 2017 Undertakings and the 2017 Agreement do not sit well with his present allegation of the Mother’s considerable affluence. He offered no valid explanation as to why he would have agreed to substantially finance her instead of asking her to share the financial burden notwithstanding his alleged substantial wealth of the Mother (Disputed Payments, business income and possession of a number of landed properties). 210.It has been suggested for the Father that given the Father only agreed to contribute HK$10,000,000 for a property of not less than HK$13,000,000 under the 2017 Agreement, it is an indication that the Mother must have assets of substantial value which affords her to cover the difference. Such suggestion ignores the express term of the agreement that the Father is duty bound to assist the Mother with the mortgage arrangement as recorded in the written agreement and further expounded by the Mother in Court. Such agreed terms tend to support the Mother’s case that her financial resources were limited and contradict to the Father’s allegation that she was very rich. 211.Further to her explanation that the deficit was intentionally to be covered by a loan from the Father or her sisters fit in the background facts. It is noteworthy that when those agreements were negotiated, she had yet accumulated legal costs or loans as substantial as at present and the Father had been continuing shoulder the living and education expenses of the Family. Further, the Duarte Property was sold in May 2017. 212.The undisputed fact is that the Father had been paying the Mother a monthly sum of around HK$88,000 until V’s relocation to the US in July 2018. 213.Thus analyzed and in terms of monetary value, the order I make for US$10,500 (HK$81,900) per month, being US$8,000 for V and US$2,500 for the Mother, is in line with what the Father was paying previously and voluntarily under the 2017 Undertakings when V was in Hong Kong as well as his agreement with the Mother. The Father should no longer be burdened with any payment for the Two Daughters but he has to fund the accommodation costs of the Mother and V. Given the Father’s financial resources, social status and comfortable lifestyle, it is clearly in V’s best interests that his living standard should be maintained at the level commensurate with that he and the Father is accustomed to. 214.I share the view with Mr Yim that the Father’s past conducts in the previous years demonstrate that he actually knew that the Mother’s financial resources were limited to the extent that he would have to be solely responsible for the living expenses and accommodation cost of the Mother and V. His past conducts echo the Father’s Affirmation Statement. Discharge Undertaking and Backdate 215.I will now turn to consider the Father’s Summons seeking to clarify, vary or discharge the 2017 Undertakings. At the call-over hearing, this Court referred the Parties to the relevant authorities and raised the issue on the Court’s power to vary an undertaking. The Parties were also invited to consider whether they could agree on any new terms of undertakings so as to resolve their disputes on an amicable and costs-saving manner. Mr Yim confirmed that the Mother was willing and ready to consider any proposal and was able to give instructions to her legal team for such purpose at that hearing. Mr Surman declined the invitation. 216.The legal principles in relation to undertakings, for the present purpose, can be summarized as follows: -
217.At trial, both parties agreed that the Father’s Summons should be dealt with together with the Mother’s main claim and a maintenance order to be backdated to August 2018 is an appropriate order to be made for resolution of the dispute in this connection. Accordingly, the argument on this issue was not pursued by the Parties before me. In the premises, the issue shall be dealt with briefly. 218.The question of whether to discharge an undertaking ultimately is a matter of judicial discretion, designed to achieve a fair result. In the present case, the 2017 Undertakings were given to provide financial support to the Mother and V pending determination of the present claim. Given these proceedings are at the final stage whereas the primary objective of the Parties must be the final adjudication of the Mother’s claim, it brings no practical benefit to drag further on the 2017 Undertakings to the parties in terms of the final resolution of the disputes in this litigation. 219.In view of the agreement of the Parties that the financial order to be made herein is to be backdated and the events have already moved on since July 2018. The financial order this Court is to make now does not leave the Mother without a remedy. It is fair and appropriate to discharge the 2017 Undertakings and substitute with the order to be made herein. 220.Suffice it to say that the 2017 Undertakings are couched in general terms and admit no ambiguity. The terms of the 2017 Undertakings are clear in context and coverage. The Direct Payments refer to specific items with a strict limit on the amount of the money to be paid. The Monthly Sum of HK$35,000 was fixed in view of the Direct Payments which provided the fund of not more than HK$62,300, making up a total of HK$97,300 per month. The two payments are interrelated. They combined to form the monthly maintenance for V pending the final determination of this suit. 221.While the 2017 Undertakings were given by the Father when the Family was still living with him in Hong Kong, it is beyond dispute that the 2017 Undertakings were given to discharge his obligation to continue to maintain V pending the determination of these proceedings. They were given upon the demand of the Mother for maintenance and after the Mother’s application for relocation to the US with V in April 2017. 222.The built-in flexibility system in the amount of payment was tailored to cover the fluctuation of expenses resulting from changes in circumstances. Given those items of expenses are general and common expenses which are not domestic expenses peculiar to Hong Kong alone, the Direct Payments were reasonably expected to continue, but with the flexibility to adjust the amount whenever the situation warrants. 223.It is unfortunate that after V’s departure from Hong Kong, the Father has chosen not to make any Direct Payments despite the Mother’s repeated requests with the production of the relevant receipts, nor has he made any proposal in place of his undertakings. During the hearing before the learned Deputy Judge D. Cheung on 10 January 2019, the Mother complained about the Father’s default of payment after her relocation to the US. She indicated that she was prepared to accept interim maintenance at the monthly rate of HK$90,000 in lieu of the 2017 Order. Neither did the Father accept such proposal. Nor did he make any counter proposal to discharge or replace the 2017 Undertakings such that the interest of V could be safeguarded. The Father simply seeks an outright release from them. The learned Judge eventually ordered that a penal notice be endorsed on the 2017 Order. 224.It was only thereafter the Father took out the Father’s Summons. Still, no proposal of maintenance arrangement in place of the 2017 Undertakings has ever been put forward, despite this Court’s invitation and the Mother’s request. 225.For the reasons as elaborated above, the Monthly Sum of HK$35,000 the Father has been paying since V’s relocation to the US is plainly insufficient to maintain V. I accept the Mother’s case that she had to use her own savings and loans for relocating to the US, maintaining V and paying the legal expenses in this highly contested suit. 226.In the circumstances, it is only fair and necessary for the Court to backdate the maintenance order to August 2018. In fact, the Father confirmed his acceptance of such arrangement and that any overpayment or underpayments with respect to that amount should be accounted for. Credit will be given to sums received by the Mother under the 2017 Undertakings since 1 August 2018. Application for Time Extension for Cross-examination 227.During the afternoon session of the 4th day of trial, on 26 September 2019, Mr Surman made an application for an extension of time for cross-examining the Mother on each and every single payment receipt produced by her. After hearing the Parties’ submissions, I refused the application and indicated that I would give my reasons in this Judgement which I now do. 228.Mr Surman said that his application was prompted by a statement of Mr Yim in court that if he did not cross-examine the Mother on each payment receipt produced by her, he could not comment on those receipts in closing submissions. He stressed that but for such statement, he would not have made such application for it was his view that he could just cross-examine her on several receipts and then leave the issue for his closing submission. The Court just needs to take a broad-brush approach in assessing the expenses of the Mother. Just that he had heard Mr Yim’s statement and therefore was happy to cross-examine her on all those receipts so as not to take risk. 229.Mr Yim reiterated that his statement that if the Mother is not cross-examined on a receipt, Mr Surman could not comment on that particular receipt in closing submission was just a courtesy which should not have affected Mr Surman’s conduct of cross-examination. 230.When dealing with this application, I guarded myself with the legal principle that a party’s right to cross-examine witnesses should not be lightly taken away. While Order 35 Rule 3A of the Rules of the District Court, Cap. 336H (which mirrors the Rules of the High Court, Cap. 4A) provides express power to the court to limit the time to be taken in cross-examining witness, before and during trial, the court must not detract from the principles, amongst others, that each party is entitled to a fair trial and must be given a reasonable opportunity to cross-examine witnesses. In exercise of its case management powers on time management, the power must be exercised judiciously and in clear cases. 231.Having considered the Parties’ submissions and upon application of the legal principles, I disallowed the application for the following reasons. First, despite this Court’s repeated requests and the original estimated time for cross-examination was up, Mr Surman did not provide this Court with an estimate of the time required for his further cross-examination. This raised serious concern to this Court because there are several hundreds of receipts that the Counsel insisted to cross-examine on, on the 4th day of a 5-day trial. That left this Court with no room for effective case management as required under Order 1A and 1B of the Rules of the District Court. The public’s rights to access to the court would also be affected. 232.Second, that was unfair to the Mother. It deprived the Mother of her rights to properly conduct her case and manage her costs budget. The part-heard hearings could only take place many months later because of the busy diaries of the legal representatives of the parties and the court. It is undesirable to have this case further delayed, especially as the original trial had already collapsed once in January 2019 due to the preliminary issue posed by Mr Surman, and, the Father had ceased payment for the Disputed Payments since August 2018, not to mention the Mother has to fly all the way from the US to attend the adjourned trial. 233.Third, the application was not justified with solid reasons, nor any change of circumstances which warranted a departure from the case management directions given upon the information and confirmation provided by the Parties. At the direction hearing on 25 July 2019, this Court directed the Parties to file into Court a certificate giving time estimates of the trial (“Time Certificates”) in the same manner as that required under §14 of Practice Direction 5.2, specifically, time estimate for cross-examination of each of the other side’s witnesses is required. In this case, only the Parties gave evidence at trial. 234.According to the Time Certificate filed for the Father, the cross-examination on the Mother would take 2 days. Upon this Court’s enquiry at the Pre-trial Review on 23 August 2019, the Counsel for each parties reiterated that their respective Time Certificates do stand. 235.This trial was set down for 5 days. On the 3rd day of the trial, the Mother was cross-examined on a number of payment receipts and the cross-examination was then moved to some other areas. On the 4th day of the trial, the cross-examination on the Mother continued, alongside the reminders of this Court about time management for cross-examination. This Court has referred the Counsel to Order 35 rule 3A. 236.After the Mother had been cross-examined on some matters which the Parties did not take issue in the Agreed List of Issues, at around noon, the time for cross-examination of the Mother was up (as verified by the parties in court). The Mother was then being cross-examined on the payment receipts again. Further indulgence was granted for further questioning which took up almost the whole lunchtime. Indeed, this trial was run without morning breaks and from time to time, beyond the usual hours of sittings in order to avoid unnecessary delay. 237.Mr Surman stressed that he would not have made the application but for Mr Yim’s statement. With due respect to Counsel, I fail to see how such a statement of the other side would have undermined the well-established rule of evidence, affected the Counsel’s interpretation of the relevant rule of evidence and frustrated his conduct of cross-examination. Nor do I find it a justified reason for departing from the Time Certificate. The Time Certificates were given after serious consideration of the legal representatives and are expected to be realistic and adhered to at trial. I am slow to consider Mr Yim’s statement amounts to a justified reason for the present application or a change of circumstances which warrants variation of the time estimate. 238.Fourth, as to Mr Surman’s argument that an estimate is an estimate, the way of the witness giving evidence is always unknown. I agree that cross-examination is not mechanical and there is no hard and fast rule. However, in this particular case, I share Mr Yim’s view that the Father has been provided with ample opportunity to cross-examine the Mother. There were occasions that the Mother was cross-examined on matters, which the Parties did not take issues in the Agreed List of Issues, which attracted this Court’s enquires and Mr Yim’s interruptions. There were also occasions that irrelevant issues or documents were put to the Mother which were subsequently withdrawn when this Court was to make ruling on them. 239.Fifth, on the application of the rule of evidence as elaborated above, the Father would not be prejudiced by not cross-examining the Mother on all the receipts for this Court will not be deterred from rejecting her claims on those receipts which do not satisfy the legal requirements. The well-settled rule of evidence has not and could not be undermined by a statement of Mr Yim. 240.For reasons aforesaid, I disallowed the application. Conclusion 241.In assessing the Mother’s claim, this Court has taken into account all the circumstances of this case and all the arguments put forward for the Parties, bearing in mind that V is entitled to be brought up in circumstances which bare some sort of relationship to the Father’s current resources and his standard of living. The assessment must however be guarded against unreasonable claims made on the child’s behalf but with the disguised element of providing for the mother’s benefit rather than for the child. 242.Having considered all the submissions of the Parties and all the evidence in this case, I conclude that it is fair, just and reasonable to order the Father to pay such maintenance from 1 August 2018. This is subject to the condition that any payments made by the Father to the Mother to provide support under the 2017 Undertakings during this period are to be offset against the backdated payments. For avoidance of doubt, the Father’s undertaking under the 2018 Order do stand. 243.I order that:
Costs 244.Given the outcome of this case and having considered all the relevant circumstances, including the Mother actually had no option but to issue the Originating Summons to pray for the maintenance for V and the fact that she has beaten the Father’s open offer by a significant amount, there is no reason to depart from the general rule for costs to follow the event. 245.I make an order nisi that the Father do pay the Mother’s costs of the present claim, including all costs reserved, on a party and party basis, to be taxed if not agreed, with certificate for counsel. 246.As to the costs of the Father’s Summons, I form the view that for the reasons set out above, the Father shall pay the costs of and occasioned by the Summons to the Mother, including all costs reserved, on a party and party basis, to be taxed if not agreed, with certificate for counsel. 247.These Order Nisi shall be made absolute within 14 days from the date of this Judgment unless either party applies to vary the same by way of summons. 248.I thank Counsel for their assistance.
Mr. Eugene Yim, instructed by Pansy Leung Tang & Chau for the Petitioner Mr. Giles Surman leading Ms. Grace Chau, instructed by Messrs. Cheung & Liu for the Respondent |
Cases cited in this judgment
Further hearings and rulings under FCMP 79/2017