D, M v. D, R (also known as R, R)
Read the full judgment text of FCMC 1968/2009 on BabelCite. This Family Court judgment was delivered on 4 March 2021 before Her Honour Judge Sharon D. Melloy.
Matrimonial causes – Undertakings – Variation – Consent order – Former matrimonial home – Household expenses – Domestic helpers – Aberdeen Marina Club – Holidays – Child maintenance – Petitioner seeks discharge of undertakings given in 2010 consent order due to change in circumstances and children's care arrangement shifting to 50:50 – Court holds undertakings cannot be varied of its own motion but may discharge or accept new ones – Original undertakings remain in place pending new proposals from Petitioner – Holiday arrangement limited to three times per school year – Costs reserved.
Legal issues: Accommodation Duration · Household Outgoings Interpretation · PCCW Landline IDD Calls · Domestic Helpers Count · Aberdeen Marina Club Expenses · Holiday Payment · School Fees and Activities
Outcome: Application for variation of undertakings largely refused in immediate terms; original undertakings remain in place pending new proposals from Petitioner. Holiday arrangement set to 3 per annum.
Cited by 5 cases · Cites 4 cases
|
FCMC 1968/2009 [2021] HKFC 48 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 1968 OF 2009 ----------------------------
------------------------ Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Dates of Hearing: 11and 12 August 2020 Dates of Closing Written submissions: 16 and 30 October 2020 Date of Reply Submission: 6 November 2020 Date of Judgment: 4 March 2021 ----------------------------------- J U D G M E N T (Undertakings) ----------------------------------- Introduction 1.This is an application, made by a Petitioner husband, in which he seeks either to be discharged from a number of undertakings given by him in a consent order dated the 26 July 2010 in their entirety, or alternatively for other undertakings to be accepted in their place. The husband’s summons is dated the 21 December 2018. The document is lengthy, but for the avoidance of doubt is repeated in full below. Partly this is in order to ensure that there can be no doubt about the premise upon which he originally sought the court’s intervention:
Overview 2.This is a highly conflicted piece of litigation which centres on the meaning and scope of a court order dated the 26 July 2010. The parties are both ethnically Indian, the husband having been born and brought up in Hong Kong. The husband is involved in the running of a family business and he is one of the shareholders of that business. There is no doubt that the parties have enjoyed a very high standard of living, both during the marriage and since, and that this has almost exclusively been provided for by the husband. He now seeks to be released from some of his undertakings on the premise that the circumstances have now changed. In particular, the children, who were only 2 ½ and 7 months old when the parties separated, are now aged nearly 16 and nearly 14 years old. It is accepted that originally it was the parties’ intention that the husband would continue to provide the children, and the wife, with a secure home base and that he would also continue to provide for them financially, as he had always done. Initially the wife was the primary caretaking parent and the husband had reasonable access to the children. The parties have always had joint custody. However, the situation has now changed in that the children’s care is now shared between the parties on a more or less 50:50 basis. In such circumstances, the husband maintains that it should no longer be necessary or appropriate for him to continue to provide a 5 bedroomed house for the children and the wife, especially once the youngest child, I, goes to university. He also wishes to revisit some of the other undertakings. He does not suggest that he can no longer afford to pay, and indeed on that premise the parties have only provided fairly limited disclosure, but instead it is his case that it is no longer fair or appropriate for him to pay. It is an argument based on principle. In addition, he alleges that the wife has abused the use of two credit cards, which he eventually cancelled in December 2018 and that she has also adopted a “legalistic” approach to the matter, which he says is not in keeping with the spirit of the original court order. Further, he says that he has over paid the wife in that he has ended up for paying for items which were never meant to be covered by the terms of the original undertakings. The husband estimates that the wife has spent in the region of HK$2 million on the supplementary credit cards in the period from 2016 to 2018. 3.There have also been difficulties with the children’s school holidays and for the payment of those holidays. As set out in paragraph 1 subsection 3 above, the husband originally undertook to pay for up to four holidays per annum, for the wife and the children. He says that this was because he could only rarely take time off work and this allowed for the wife to take both short and longer trips with the children, which were then age appropriate. He says that the wife has abused this undertaking and that her holidays with the children have become longer and more expensive and that she has further gone outside its terms by buying clothes for the children and other items, which was never the original intent of the holiday undertaking. This is denied by the wife. In any event it is clear that this is a significant bone of contention between the parties, with the wife estimating that four holidays per annum should cost in the region of HK$900,000. She insists that this should continue. The husband, for his part, originally suggested that the wife should only take two holidays per annum with the children, i.e. one longer holiday and one shorter holiday, and that the cost should be limited at HK$300,000 per annum. 4.In any event, it was finally agreed during the trial (and as suggested by counsel) that the court should deal with the issue of the division of the holidays as a standalone issue prior to the handing down of this judgment on the undertakings. To that end the court handed down the following short Ruling in Memo format on the 16 September 2020.
5.The wife, for her part, interprets the undertakings given by the husband in the 2010 order very widely. She says that it was always understood that the family would be provided for in all respects and that the husband should be wholly responsible for the running of the household and that he would do so at the same standard of living enjoyed by her and the children during the marriage. Indeed, this approach can be seen from the wife’s original Form E dated the 20 April 2009, where she provides a great deal of detail in the schedule of expenses. For example, she says inter alia as follows:
6.During the wife’s cross-examination she reiterated this approach and that in her view, the husband’s undertaking with respect to the household expenses should be interpreted very broadly and that it should include:
7.She said that parts of the order were deliberately drafted widely in order to provide flexibility. She added that
8.When pressed the wife said that the only things that the husband should not pay for related to her own personal expenses, i.e., her own entertainment, her own travel and holidays without the children, her own clothes and shoes, jewellery etc. Under the terms of the court order therefore she expected the husband to pay for everything else including things like additional soil for the garden and other items which are more in the nature of a capital expenses, such as the purchase of a sewing machine for the household. Background to the marriage and the litigation 9.The parties married on the XX February 2000 and separated in November 2007. As I have said the children were very young indeed when the parties separated. The husband issued proceedings for divorce on the 23 February 2009 and the petition was subsequently amended on the 29 December 2009. The decree absolute was pronounced on the 22 September 2010. There are two children of the family, K, a boy born on the XX April 2005 and I, a girl born on the XX April 2007. They are now nearly 16 and 14 years of age respectively. 10.The parties came to an agreement with respect to ancillary relief as set out in the court order dated the 26 July 2010. Reference should be made to that order as appropriate. 11.The husband remarried in 2014 and in or about 2016 the parties came to a further agreement with respect to the children, through mediation, whereby the father took on a greater role, so that the children increased the time that they spent with him on an incremental basis, until by about 2017 the parties began to share the care of the children on a more or less 50:50 basis. This arrangement has not been formally endorsed in a further consent order, but there does not appear to be any dispute that the children now spend time with each of their parents on a week on/week off basis. This is facilitated in part by the fact that the parties live close to each other in Shouson Hill and the children attend a well-known international school also on the south side of the island. It is not clear if the wife is currently in a relationship. She did have a boyfriend who spent time at the former matrimonial home, but she denies that she ever formally cohabited with him. Her boyfriend also accompanied her and the children on some of the holidays paid for by the husband. 12.By both parties’ accounts, the disputes over the interpretation of the undertakings became more and more frequent with each side taking firmer positions as time moved on. Attempts at mediation and inter solicitor negotiation did not assist. This eventually led to the wife issuing a summons dated the 9 November 2018, in which she sought periodical payments in lieu of the undertakings in the sum of HK$122,525 per month, plus HK$893,700 per annum for a holiday fund and an increase to HK$25,000 per month per child as periodical payments for the children. She also floated the possibility of the husband providing a new independent membership of the Aberdeen Marina Club for her in lieu of his current undertaking. At the hearing before my brother judge on the 3 December 2018, the wife withdrew her request for periodical payments in the sum of HK$122,525 and the holiday fund plus her request with respect to the Aberdeen Marina Club. Shortly thereafter, on the 28 December 2018, the husband filed the current summons dated the 21 December 2018. On the 17 January 2019 the remainder of the wife’s summons was adjourned sine die with liberty to restore. Subsequently in August 2019, and arguably somewhat unfortunately, the wife issued committal proceedings against the husband for his alleged failure to comply with the undertakings, notwithstanding the fact that he had already issued the current summons and it was clear that there were significant issues surrounding the interpretation and scope of the undertakings in dispute. That matter remains outstanding. The husband has said that he will comply with any order that the court makes. Each party’s open proposals The wife’s open proposals 13.The wife proposed as follows in her Statement of Open Proposals:
14.As indicated by the court during the hearing, the court is not concerned at this juncture with the enforcement of the undertakings. Consequently, and as acknowledged by counsel, the court is unable to make an order in these precise terms. 15.In her closing submission, the wife refocused and argued, in effect, that the husband’s original undertakings as contained in 2010 court order i.e., - paragraph D (ii) and (iii) (point 1 of his summons) and paragraph E (iv) (point 2 of his summons) and paragraph E (v) (point 3 of his summons) should remain in place. The husband’s open proposals 16.The husband did not produce a stand-alone document setting out his open proposals prior to the trial. Instead, the court was referred to paragraph 338 of the bundle, where the husband summarizes his position at the end of his 4th affirmation dated the 13 July 2020 as follows:
17.During the trial, the husband also produced a document in which he set out his various proposals. I will not reproduce that again here. In the husband’s closing submission however, Mr Clough for the father summarizes his final position as follows:
The issues 18.What then are the remaining issues, given that there is now broad consensus with respect to the provision of a lump sum for a new car for the wife and there is no dispute over the driver? (To that end it should be noted that I shall hold the husband to his proposal as set out above). Further there is also an agreement that the current level of maintenance for the children, namely HK$10,000 per month per child shall remain in place. The remaining issues then appear to be as follows:
The law Undertakings 19.As discussed during the trial and as set out above, it is not disputed that the court cannot impose an undertaking on a party nor can it vary an undertaking of its own motion. The court may accept an undertaking and it may also refuse to accept an undertaking or to discharge an old one. Thus there is sometimes no alternative but for an original undertaking to remain in place, for lack of any other reasonable alternative. In such circumstances it is also open to the court to invite a party to consider making a different undertaking. 20.Counsel for the wife is correct when he says that this issue was recently reviewed by the UK’s Supreme Court in the case of Birch v Birch [2017] WLR 2959. At paragraph 5 of that judgment Lord Wilson said as follows:
With respect I agree. 21.Reference was also made to the to the judgment from this court namely MAR v MM [2020] HKFC 49, FCMC 10439 of 2014, where the issue of undertakings was considered by reference inter alia to a judgment from my sister Judge – Deputy Judge Rita So in HMSE v JJS. On that occasion I said at paragraph 21 as follows:
22.That remains my view now. It seems to me that the court has a very wide discretion when considering whether or not to discharge an undertaking or to accept a different undertaking in its stead. As with an application to vary under s. 11 (7) of the Matrimonial Proceedings and Property Ordinance, Cap 192, the overall intention is to achieve a fair outcome, by reference inter alia to all of the relevant circumstances of the case, including the basis upon which the parties originally entered into the consent order and whether or not there has been any material change of circumstance. Overall, I am charged with considering whether the husband’s request is just and reasonable. To that end, and by analogy, reference may also be made to the often-quoted section from the Hong Kong Court of Appeal decision, AEM v VFM [2008] HKFLR 106, where the Hon Cheung JA made the following point when referring in particular to agreements reached by consent, as here:
23.It seems to me that the reference by counsel for the wife, to A v A (Variation of Consent Order: Replacement Undertakings) [2018] 4 WLR 66, where the judge in that case said inter alia that consideration should be given to “avoiding serious hardship or injustice” when considering the issue of undertakings, may not be relevant given the circumstances in this particular case. On occasion it may be necessary to consider whether discharging an undertaking will cause serious hardship or injustice. I do not accept that that is necessarily the appropriate test to be applied here. This is particularly so, given the fact that the husband is arguing his case primarily premised on points of principle and where there has only been limited disclosure. The husband has reiterated throughout that he can afford to pay. He just does not believe that it is fair or reasonable for him to pay or to continue to pay, as the wife clearly expects him to pay. There is no suggestion that the outcome will cause either side serious hardship or indeed injustice, in the wider sense of that term. It is largely an issue that centres on the wife’s standard of living and the extent to which that can or should be maintained by virtue of the undertakings that were originally entered into by the husband back in 2010. Discussion Should the husband continue to provide the former matrimonial home for the wife and the children to live in until August 2025 or August 2029? 24.The wife maintains that the original undertaking should stand. She argues that the children will still need somewhere to stay when they are visiting her during term breaks, whilst at university or college or even once they graduate. Further she says that this was part of the original agreement and that she would not have entered into a settlement had this not been part of the over all package. It is her position that she agreed not to embark on a request for extensive disclosure, which may have involved the husband’s parents and the family company, because it was agreed inter alia that her standard of living would be maintained until August 2029. This included the provision of the former matrimonial home. 25.The difficulty with this stance however, is that it is accepted that the original intention was to provide both the wife and the children with a home base, given that the children were then living with the mother for the majority of the time. I further accept that that is no longer the case and that in such circumstances it is reasonable of the husband to suggest some changes to the original undertakings. 26.Consequently, it seems to me that it would be reasonable for the wife to move to smaller accommodation in September 2025, maybe to a three or four bedroomed property and not necessarily to a second house, but maybe to an apartment. In this way she would still be able to accommodate the children when they are with her. I do not accept that it would be reasonable for the husband not to provide any accommodation for her at all for the four-year period from August 2025 until August 2029. I further accept that such accommodation should still be in a reputable area, although that need not necessarily be in Shouson Hill. 27.Consequently, the husband’s proposed new undertaking with respect to accommodation is not accepted. However, it is further directed that the husband should consider proposing a second undertaking for the court’s consideration say within the next 28 days, in line with the court’s indication. It is accepted that both parties may wish to make further submissions in this regard. In the meantime, the original undertakings do stand (i.e. the first part of D (ii) and D (iii). Should the husband’s new proposed undertaking with respect to the payment of the outgoings on the former matrimonial home be accepted? 28.In general, it is the wife’s case that the undertaking given by the husband at recital D (ii) should be interpreted very widely and to that end she refers to the fact that the clause states inter alia as follows:
29.Understandably perhaps, given the difficulties that this has caused, the husband now wishes to tighten up his undertaking in D (ii). This is arguably the central point in the case. As indicated above, the wife has historically interpreted this undertaking very widely. For the avoidance of doubt it seems to me that this undertaking should NOT have included payment for items pertaining to the children that should, in my view, have been paid for from the maintenance payment of HK$10,000 per month. In the Form E the children’s expenses are identified as follows:
30.I have marked with an * those items that I would NOT have expected the husband to have paid for under the terms of the original undertakings. In my view, the wife should have paid for school books and stationery, entertainment and presents, clothing and shoes, insurance premia (if any and other than the medical insurance), lunches and pocket money, other transport (including UBER’s, taxi’s and limousines for the children) and school uniforms (if any) out of the maintenance provided by the husband for the children, and from her own financial resources. 31.In addition, had this matter proceeded to trial, it is quite possible that a portion of the general monthly expenses would have been attributed to the children, including a share of the household food. It is clear that the husband did not undertake to pay specifically for food and in my view food stands outside the terms of his original undertaking in any event. 32.There is reference in the papers to the wife using the American Express card, originally provided to her to pay for incidentals whilst on holiday with the children, for things like clothes for the children, (for e.g. whilst in Italy) and for other items such as snorkels, swimming costumes etc. For the avoidance of doubt it seems to me that these items also fall outside of the husband’s original holiday undertaking. 33.Similarly, I do not accept that the husband should have paid for the children’s birthday parties, or for costumes or presents for other children, under the general proviso referred to above, unless he specifically agreed to do so. He undertook to pay for the “overhead expenses” and “outgoings” of the former matrimonial home and the reference to “including but not limited to” has to be considered in that light. 34.To that end there has also been a lot of discussion in the papers about other miscellaneous items. For example, the husband refused historically to pay for a number of items including additional soil for the garden (HK$800), vacuum cleaner filters, cleaning liquid, kids soap, medicine, dehumidifier refill packs, cleaning supplies and deep cleaning (HK$13,700). I accept that under the terms of the original undertaking these items most probably fall within the normal outgoings of the former matrimonial home and should be paid. I do not accept that the husband should also pay for items, such as sewing machines and AV equipment. The wife should be responsible for the payment of these items. 35.Going forward I accept that it is reasonable for the husband to seek to limit his exposure to expenses related to the former matrimonial home and that he should only be obliged to pay for the actual overhead expenses and outgoings as itemized in his proposed undertaking. Should the husband’s undertaking with respect to the PCCW landline exclude the wife’s long distance IDD calls? 36.This was a small matter in the grander scheme of things and the fact that the parties are still arguing about it, is perhaps indicative of the level of conflict that now exists between them. As part and parcel of his proposed undertaking, the husband specified that the provision of the PCCW landline as originally stated in the 2010 consent order and as included in the new proposed undertaking, should not include provision for IDD calls. Although at first sight this seemed incredibly petty, it transpired that this had become a point of considerable dispute between the parties. The original consent order is silent on this point, but the wife considered that it was also covered by the general “including but not limited to” catch all. The husband did not. The husband argued that in any event there was no need for IDD provision as everyone in India uses a mobile phone and it is possible for people to speak to each other internationally at no or minimum cost. The wife for her part says that the internet is notoriously unreliable in India and that she should not be precluded from speaking to her family members over a landline as she has done historically (she used to speak to her mother in this way and she now on occasion speaks to her sister over a landline). I tend to accept that it would be reasonable for the wife to be able to use the landline for overseas calls to India say once every two weeks and that any other international calls should be made by using her mobile. Provision for this should be included in the husband’s proposed undertaking. Should the husband continue to pay for the wages and associated costs, (with the end of contract return flight only to be paid if the domestic helper completes the full term contract), for two domestic helpers or one? 37.I accept that given the change of circumstances and the fact that the wife is living on her own at the matrimonial home for half of the time, that it should be possible for the wife to reduce the number of domestic helpers from one to two, notwithstanding the size of the former matrimonial home. The husband says that the wife now employs her own domestic staff and consequently it is accepted that it would be more appropriate for the husband to reimburse the wife for these items. However, it is not accepted that the husband should only pay for a return flight at the end of a completed contract as there can be many and varied reasons why a domestic helper does not complete a contract and the blame for this cannot simply be placed at the wife’s door. 38.Consequently, the husband’s proposed new undertaking with respect to the remainder of recital D (ii) is only accepted in part. To that end the husband is again invited to consider proposing a further undertaking for the court’s consideration within say the next 28 days. In the meantime, the original undertaking do stand. Should the husband be released from his undertaking to pay for the wife’s monthly expenses at the Aberdeen Marina Club, in addition to her monthly membership? 39.This was also a particularly hot topic. The original undertaking states under Recital E (iv) that the husband undertook to
40.As, with some of the other undertakings, it is of note that it is specifically stated that this was a benefit for the wife AND the children. There is no suggestion on a normal and plain reading of this undertaking, that the original intention was to maintain the children’s lifestyle only. Thus the husband’s arguments in that respect are not accepted. 41.The husband’s summons asks that he be released from this undertaking in its entirety. However, in his closing he proposes a compromised solution, namely that the mother retain her AMC membership until August 2025 and that she reimburse him for her monthly expenses. This is not accepted by the wife. 42.As indicated above and in keeping with my previous comments, I do not accept that this undertaking should continue only until August 2025. However, I also accept that this clause could have been more accurately drafted and that the words “to the extent that they are currently incurred” are rather unfortunate and open to all manner of different interpretations. I also accept that from a practical perspective this may have caused a great deal of friction between the parties, as the wife continues to use the club facilities in her own capacity and without the presence of the children, but the husband’s new wife cannot. 43.However, as a general point I accept that the wife should be able to continue to use the club in accordance with the spirit of the original undertaking, which includes payment for her reasonable chits/monthly expenses. It is almost impossible to determine to what extent the wife was using the club for herself in 2010. She says that she always used the gym and that she has always paid for personal training sessions. I tend to accept what she says in this regard. However, it seems likely that her interest in playing tennis evolved over time. But in any event, it is accepted that the husband should continue to pay for the wife’s normal club usage. He should not be required to pay for things like sports wear for either the wife (which she should be paying for herself) or for the children (which is covered by the monthly maintenance figure). The wife should also be paying for her own food and beverage costs when she is not at the club with the children. 44.As an indication, it seems that the easiest way out of this impasse is for the husband to pay up to a certain limit each month for the wife’s usage of the club and for the wife to be responsible for any expenses over and above this amount. Unfortunately, it is not possible for the court to make an order in these terms, although it could accept a new undertaking which included a clause of this nature. 45.Consequently, the husband’s proposed new undertaking with respect to the remainder of recital E (iv) is also not accepted. To that end the husband is again invited to consider proposing a further undertaking for the court’s consideration within the next 28 days. In the meantime, the original undertaking do stand. How should the court approach the issue of payment for the children’s holidays, whilst they are with the wife, given the Ruling from the court as set out above? 46.In the court’s ruling at paragraph 4 above, it is now directed that both parties may take the children away for up to three times in each school year. In the original undertaking the husband agreed to pay for the wife to take up to four trips per annum. The husband still proposes in its stead that he pay for two trips per annum as follows:
47.It is also of note that the wife has offered the following undertaking in her counsel’s closing submission:
48.It is also of note that both parties accepted during the hearing that the more sensible way forward might be for the husband to provide the wife with a set sum of money each year for holiday purposes and that it is then a matter for the wife whether she takes the children away twice or three times per annum and for what length of time, as long as it is within her share of the school holidays. This seemed a very sensible way out of the present impasse, but it is not an application before the court at present. It is suggested however, that further consideration be given to this. 49.In the meantime, the husband’s proposed new undertaking with respect to recital E (v) is not accepted. To that end the husband is again invited to consider proposing a further undertaking for the court’s consideration within the next 28 days. In the meantime, the original undertaking do stand, save that it will only be possible for the wife to take the children away for up to three holidays per annum in any event given the court’s Ruling on holidays as set out above. 50.In terms of a further indication and for the avoidance of doubt, the court accepts that the husband should only be obliged to pay for the cost of flights, accommodation including hotel costs and reasonable travel costs plus other incidental holiday costs such as the cost of an activity or tours etc. He should not, for example be obliged to pay for children’s clothes or other items purchased by the wife for the children whilst they are away but otherwise not connected in any way with the trip. It also goes without saying that the husband should also not be obliged to pay for the costs associated with any third parties who are also on the wife’s holiday with the children including, for example, the wife’s boyfriend. Any third parties should be wholly responsible for their own share of any costs associated with the trip, including their own flights, their share of the cost of any hotel rooms and their share of any other related costs etc. Should there be any change to the husband’s undertaking with respect to the payment of school fees, extracurricular activities etc 51.This request did not form part of the husband’s original summons and was not fully addressed during the trial. At present the husband undertakes at recital E (ii) to pay for the children’s school fees and associated expenses. I accept that associated expenses includes their agreed extracurricular activities and agreed extra tuition (if any). To that end there is probably no need to discharge the original undertaking or to replace it with the husband’s now proposed new undertaking. Costs 52.Costs shall be reserved pending further clarification of the new undertakings to be entered into by the husband, if any. Further directions 53.There shall be a further callover with respect to this matter on the 6 July 2021 at 9:30am. Both parties shall personally attend that hearing. The husband shall, if so advised, file and serve his new proposed undertakings within the next 28 days, together with a short submission in relation to the same (no longer than 5 pages, 14 font and double spaced). Leave is given to the wife to file a short submission in reply within 28 days thereafter (again to be no longer than 5 pages in length, 14 font and double spaced). Please note that the court is providing the parties with this opportunity in order to hopefully bring some finality to this matter. It is not an opportunity for either side to reargue issues which have already been determined by this judgment. Further the court will not accept undertakings that fall outside the clear indications which have already been given.
Mr. Neal Clough instructed by Boase Cohen & Collins for the Petitioner Mr Azan Marwah instructed by Withers for the Respondent | ||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under FCMC 1968/2009