Jn v. Tlc

FCMP 283/2011

[2019] HKFC 134

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NUMBER 283 OF 2011

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Coram:  Deputy District Judge D. Cheung in Chambers (Not open to public)

Date of Hearing : 8^th November 2018 and 9^th November 2018

Date of Judgment : 28^th May 2019

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J U D G M E N T

(Enforcement of Undertakings)

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Introduction

1.By an inter-parte summons dated 21^st February 2018 (hereinafter called “the summons”), the Respondent mother (hereinafter called “the mother”) made the following application, namely:

(I)  leave be granted to the mother to enforce any arrears due pursuant to (i) the Applicant’s (hereinafter called “the father”) undertaking provided under the Order dated 3^rd July 2014 by Deputy District Judge A. Yim; (ii) paragraph 7 of the Order dated 23^rd July 2014 by Deputy District Judge A. Yim; and (iii) paragraph 4 of the Order dated 30^th July 2013 by Deputy District Judge Pang for more than twelve months before the date of this Summons.

(II)  The father to pay the mother the education costs in arrears for the child of the family (hereinafter called “the child”) in the sum of AUD41,033.17 (equivalent to HK$254,358.93 as of 21^st February 2018).

(III)  The father to pay the mother the child psychologist fees in arrears for the child in the sum of AUD570.13 (equivalent to HK$3,534.70 as of 21^st February 2018).

(IV) The father to reimburse the mother for his half share of the FDR Bundles for the hearing fixed on 28^th October 2013 at 10:30a.m. in the sum of HK$980.00.

(V)  For the purpose of paragraph 2 to 4 above, there shall be a payment out to the mother in the sum of HK$258,874.53 from the sum of HK$240,000 held by the Court as security for the payment of the periodical payments for the benefit of the child under the Consent Order dated 27 August 2015, such payment shall be made to the mother within 7 days from the date of this Order.

(VI)  Any other directions as the Court sees fit.

2.In support of the summons, the mother relied on her 46^th and 47^th Affidavit. The father opposed to the mother’s application, and the father relied on his 13^th and 14^th Affidavit. Both parties also filed their respective written submissions in due course.

Background of this case

3.The background and history of this case had been illustrated in the judgment dated 23^rd July 2014 given by Deputy District Judge Yim, and I had also given a brief summary of the history of this case in my judgment dated 2^nd September 2016, so I am not going to repeat the same again.

The father’s undertaking in the Order dated 3^rd July 2014

4.The Order dated 3^rd July 2014 had been amended on 23^rd November 2017, and the father’s undertaking in the amended order related to the present case is as follows:

“Upon the Applicant (father) undertaking that he will honour his undertaking as per Order dated 17^th January 2014 upon receipt of un-redacted invoice and payment proof for the minor’s expenses related to education and minor’s care.”

5.The father’s undertaking in the order dated 17^th January 2014 related to the present case is as follows:

“Applicant (father) undertakes to pay half of the minor’s nursery/schooling fees on condition that he pays the fees directly to the institution.”

“Applicant (father) undertakes to pay the above mentioned minor’s nursery/schooling fees within 7 days upon receipt of the payment notice either for the institution or for the Respondent (mother).”

Paragraph 7 of the Order dated 23^rd July 2014   

6.Paragraph 7 of the Order dated 23^rd July 2014 stated that the father is to reimburse the mother child psychologist fees in the sum of AUD$450 within 3 months from the date hereof or upon his first appointment with the minor’s psychologist, whichever the latest.

7.As to paragraph 4 of the Order dated 30^th July 2013, it stated that the mother do submits the FDR bundles 14 days before the FDR Hearing, costs of the bundles be shared between the parties, and that is why in the summons, the mother asked the father to reimburse her half share of the FDR Bundles in the sum of HK$980.00.

8.During the hearing, both parties confirmed that they had resolved the dispute of the costs of the FDR Bundles, and there was no need to deal with this issue any more.

Discussion

9.The main grounds of objection to the summons stated by the father in his written submission are as follows :

(i)  there are no arrears for school fees;

(ii)  paragraph 7 of the Order had not been complied to by the mother;

(iii)  the claims are not arrears and not periodic as ordered by the Family Court of Hong Kong and the Maintenance Authority of Australia;

(iv)  the arrears claims are not enforceable in Australia or Hong Kong;

(v)  lump sum payment cannot be made due to financial circumstances;

(vi)  the existing maintenance liability/periodic payment is more than what has been assessed for the child in Australia;

(vii)  the mother continued challenge the Hong Kong Family courts final orders in different jurisdiction and the mother relied on an undertaking in an interim order during the maintenance trial to claim arrears which was not covered by the final judgment of 23^rd July 2014;

(viii)  Hong Kong Family Court needed to move the maintenance updated evaluation to Australia by ending the existing maintenance final order.

10.The father argued that since the undertakings he gave was not covered by the final judgment of 23^rd July 2014, and the undertakings was in the interim order, therefore the mother was not able to enforce these undertakings after the final judgment was given on 23^rd July 2014 by Deputy District Judge Yim.

11.It is true that the undertakings in the orders dated 17^th January 2014 and 3^rd July 2014 (collectively called “the undertakings”) that the mother relied on was given by the father prior to the judgment dated 23^rd July 2014. However, the wordings of the undertakings did not appear in the form of interim nature.

12.The judgment dated 23^rd July 2014 was a final judgment of the child maintenance, however, nothing in the judgment was said to discharge the undertakings given by the father. On the contrary, paragraphs 104 and 105 of the judgment dated 23^rd July 2014 stated the following, which recognized the validity and the effectiveness of the undertakings :

“104. During the pre-trial review hearing, the father gave an undertaking that upon receipt of the payment notice of the minor’s nursery/school, he would pay half of the fees directly to the service provider within 7 days. There has been argument on this payment arrangement, the father complained that the identity of the service provider had been redacted from the invoices and he was unable to carry out the undertaking, the mother on the other said the service providers would not accept such payment.

105. As mentioned above the parties had agreed to have joint custody of the minor.  Further, by paragraph D of the consent order, the mother has undertaken that she will not enroll the minor in nursery, school or other educational establishment without the prior consent of the father, thus the mother should have let the father know the identity of the service provider instead of providing him with redacted invoices.  The father has entered into an agreement with his parents that they would pay half of the minor’s nursery/education fees should he not able to do so.  It is the father’s concern that he should be allowed to know the minor’s nursery/ school and ensure his child is receiving proper education, where the service provider does not accept half payment from him, he is prepared to reimburse the mother provided the mother provided him with the payment proof.”

13.The relevant legal principles concerning the discharge of an undertaking has been succinctly summarized in L v C, FCMC 5952/2012 at paragraph 22:

“(1) An undertaking can be discharged, but not varied. This is because the litigant is not ordered to give these undertakings; he chooses to give them;

(2) The court has jurisdiction to discharge an undertaking given to the court at any stage, even if it was given in an order made by consent;

(3) In general, a party who has given undertaking to the court may seek to uplift or release himself from an undertaking in any of the following situations:

(a) when there has been a material change of circumstances since the undertakings were given which are not foreseeable at the time and which make compliance not feasible;

(b) when the subject matter to which the undertakings relate no longer exists which renders compliance impossible;

(c) the party to whom the undertaking was given releases the undertaker from complying with the undertaking;

(d) when the undertaking was obtained through fraud, misrepresentation or mistake;

(4) Whether an undertaking given to the court should be discharged is a matter of judicial discretion to be exercised if it is “just” to do so;

(5) However, in case where an undertaking to the court is given in lieu of a final injunction, that it is “just” to discharge the undertaking is not sufficient, “material change of circumstances” must be shown.”

14.The undertakings given by the father in the orders dated 17^th January 2014 and 3^rd July 2014 had not been discharged by any order. The undertakings are valid and effective, and there is no reason why the mother cannot ask for the enforcement of the undertakings.

15.The father argued that the undertakings given by him was not periodic payment ordered by the Family Court of Hong Kong, and the undertakings could not be enforced in Australia or Hong Kong.

16.The mother relied on PD v KWW FCMC 11277/2009 and at paragraph 29, it stated that:

“It could be argued that H’s undertaking to pay the L’s school fees and homework tutor is not a “maintenance order” which falls within the definition of this term in Cap.192. However, in the English case of Gandolfo v Gandolfo and Another [1981] 1 Q.B. 359, it was held that in an appropriate case an undertaking given to the court could be treated as being equivalent to an order of the courts, and in that case, it was held that the husband’s breach of his undertaking to pay school fees was enforceable by garnishee proceedings. This was also followed in the English case of Symmons v Symmons [1993] 1 FLR 317 where it was held that the husband’s breach of his undertaking to pay school fees and school clothes was enforceable by way of judgment summons. In both these cases, a financial undertaking was held to be an “order” for the purpose of enforcement proceedings.”

17.I agree with the mother’s submission. It is well settled that the breach of the undertaking can be enforced against the defaulting party.

18.In the present case, the mother is able to provide the figure that the father is required to pay under the undertakings and this court, if satisfied with the mother’s evidence, is able to quantify the sum that the father is required to pay, and this is also what the mother asked this court to do.

19.The mother is not able to enforce the undertakings in Australia and it is no surprise that the mother resorted to this court for enforcement.

20.The father gave the undertakings to the mother and to this court after the child had been relocated to Australia. I cannot see any reason why the mother cannot enforce the undertakings against the father in Hong Kong. I find that the Hong Kong court is the most appropriate forum for the mother to enforce against the father for the breach of the undertakings.

21.In my previous judgment, the mother submitted that in engaging the father in the discussion over the child’s education, she had encountered enormous difficulties. She claimed that the father ignored her correspondence for 18 months and the father did not make any substantive proposals to her in relation to the child’s school arrangement, therefore she would like to set a time frame for the father to respond, failing which she would enroll the child in schools or education establishment/institutes without the father’s prior consent.

22.The father also stated that in the previous hearing that the mother had secretly enrolled the child in three schools without prior consent from him, and that the mother had failed to mirror the consent Order according to Australian law when presented to her and challenged the order in the court in Australia.

23.In the 46^th Affidavit of the mother, from paragraphs 13 to 14, she gave a brief history of what school the child had attended so far. She further stated that the father had so far been acting in breach of the undertakings and failed to reimburse her for any of his half share of the child’s education expenses.

24.The mother also gave a brief history of how the child’s schooling arrangement was made and the involvement of the father in the child’s schooling arrangement.

25.The mother also gave a brief history of the payment arrangement and how the father had failed to honour the undertakings.

26.The mother stated that she had provided copies of the un-redacted receipts to the father, and I am satisfied that the mother did provide the same to the father.

27.The mother had provided full copy of un-redacted proof of payment for the child’s school fees from 2014 to date (see exhibit TLC-46-6) and details of the child’s education expenses from 2014 to 2018 (see exhibit TLC-46-8).

28.The total expenses incurred at the kinder-garden level I and level II was AUD 5,300 and 12,151.68 respectively, and the mother said that the half share that the father should be responsible for was AUD 2,650 and 6,075.84 respectively.

29.The total expenses incurred at the primary school was AUD 58,265.57, and the mother stated that the total education fee paid by her as of 21^st February 2018 was AUD 75,717.25, therefore, the father’s share of responsibility should be AUD37,858.63.

30.The mother said that including interest, the father should pay her AUD 41,033.17 (equivalent to HK$254,358.93 as of 21^st February 2018).

31.I do not find that the father should be responsible for the interests claimed by the mother. Nevertheless, I am satisfied that the father should pay his half share of the child education fees for the sum of AUD37,858.63 (equivalent to HK$234,680.40 as of 21^st February 2018).

32.The father argued that the existing maintenance order of a periodic payment of HK$7,000 is more than what has been assessed for the child in Australia. I do not find any merit in this argument based on my aforesaid observation.

33.The mother also asked the father to reimburse her the child psychologist fees in the sum of AUD450 pursuant to paragraph 7 of the Order dated 23^rd July 2014.

34.The mother had exhibited the receipts for the child psychologist fees incurred from May 2014 to June 2014, totaling a sum of AUD450 in TLC-30-7 of her 30^th Affidavit dated 23^rd March 2015.

35.In the father’s written submission, he argued that he had not been allowed to access to the psychologist and he had not had an appointment to see the psychologist. There was no such condition or requirement made in the judgment dated 23^rd July 2014 that the reimbursement was to be made upon those conditions being fulfilled as suggested by the father.

36.I therefore do not find any merit in the father’s case in resisting the payment of AUD450. Nevertheless, I will only allow the mother to claim the father AUD450 (equivalent to HK$2,789.49 as of 21^st February 2018) only.

37.The father also argued that leave should not be given to the mother to enforce the payment requested by the mother because there is a lapse of almost 4 and a half years.

38.The mother had to show that she did not cause any undue delay in pursuing the claims against the father. Given the history and background of the claims now the mother is pursuing against the father. I do not find that she had caused any undue delay in pursuing the claims against the father.

39.The mother had all along been chasing after the father for his share of the payment of the education fee of the child but in vain.

40.In her written submission, she stated that she previously applied to the Australian Family Court to enforce the arrears of the father’s share of the child’s school fees from 2014 onwards. She was told to make her application in Hong Kong where the father lives and has provided undertakings to the Court to pay half of the child’s education fee.

41.She exhibited a letter dated 8^th December 2017 from her lawyer in Australia (see exhibit TLC-46-19). Upon the advice of her lawyer, she subsequently took out the summons.

42.After taking into account of all the circumstances, I will give leave to the mother to enforce any arrears due pursuant to (i) the father’s undertaking provided under the Order dated 3^rd July 2014 by Deputy District Judge A. Yim including the undertaking provided under the Order dated 17^th January 2014 and (ii) paragraph 7 of the Order dated 23^rd July 2014 by Deputy District Judge A. Yim.

43.I am satisfied that the father should pay the mother the education costs in arrears for the child in the sum of HK$234,680.40 and the child psychologist fees in arrears for the child in the sum of HK$2,789.49.

44.As to whether the aforesaid arrears shall be paid out to the mother from the sum of HK$300,000 currently held by the Court as security for the payment of the periodical payments for the benefit of the child under the Consent Order dated 27^th August 2015 (hereinafter called “the Consent Order”), my view is that I agree with the mother’s proposal that it is a practical alternative to taking out committal proceedings or judgment summons against the father.

45.Paragraph 2 of the Consent Order stated as follows:

“the periodical payments of HK$7,000 per month payable by the father as per paragraph 3 of the Order dated 23^rd July 2014 to be secured against the lump sum HK$300,000 as referred to in paragraph 1 above until the Minor reaches the age of 18 years or ceases full time education, whichever is the later.”

46.Taking into account of the difficulties encountered by the mother in dealing with the father related to the sharing of the child’s education fee, I am of the view that to protect the best interest of the child and to save further time and costs for the mother in enforcing the arrears of the payment against the father, I shall vary paragraph 2 of the Consent Order to the effect that the lump sum payment of HK$300,000 held by the court as security for the child’s maintenance shall be extended to cover the arrears due pursuant to (i) the father undertaking provided under the Order dated 3^rd July 2014 by Deputy District Judge A. Yim for the sum of HK$234,680.40 and (ii) paragraph 7 of the Order dated 23^rd July 2014 by Deputy District Judge A. Yim for the sum of HK$2,789.49.

47.The aforesaid sum of HK$234,680.40 and HK$2,789.49 respectively shall be paid out from the lump sum payment of HK$300,000 held by the court pursuant to the Consent Order within 30 days from the date of this order.

Order

48.It is order that:

(1)  Leave be granted to the mother to enforce any arrears due pursuant to (i) the father undertaking provided under the Order dated 17^th January 2014 and 3^rd July 2014 by Deputy District Judge A. Yim and paragraph 7 of the Order dated 23^rd July 2014 by Deputy District Judge A. Yim for more than twelve months before the date of this Summons;

(2)  the father do pay the mother the education costs in arrears for the child in the sum of HK$234,680.40;

(3)  the father do pay the mother the child psychologist fees in arrears for the child in the sum of HK$2,789.49;

(4)  paragraph 2 of the Consent Order be varied to the effect that the periodical payments of HK$7,000 per month payable by the father as per paragraph 3 of the Order dated 23^rd July 2014 and the father undertaking provided under the Order dated 3^rd July 2014 by Deputy District Judge A. Yim for the sum of HK$234,680.40 and paragraph 7 of the Order dated 23^rd July 2014 by Deputy District Judge A. Yim for the sum of HK$2,789.49 to be secured against the lump sum of HK$300,000 as referred to in Paragraph 1 of the Consent Order dated 27^th August 2015 until the Minor reaches the age of 18 years or ceases full time education, whichever is the later; and

(5)  the aforesaid sum of HK$234,680.40 and HK$2,789.49 shall be paid out from the lump sum payment of HK$300,000 held by the court within 30 days from the date of this order.

Costs

49.I see no reason why the costs should not follow the event. I will make a decree nisi that costs of this summons (including all reserved costs) shall be to the mother to be taxed if not agreed, such order to be made absolute upon the expiration of 14 days if no costs application made by either party.

Representation:

The Applicant appeared in person

The Respondent appeared in person