Wgl v. Asb

HCMP 489/2013

[2021] HKCFI 1008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 489 OF 2013

(transferred from FCMP No 234 of 2012)

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Before:  Hon B Chu J in Chambers (Not Open to Public)

Date of Hearing: 27 January 2021

Date of Respondent’s Closing Submissions:  28 January 2021

Date of Applicant’s Closing Submissions: 10 March 2021

Date of Judgment:  20 April 2021

_____________________________________

JUDGMENT

(On Extra-Curricular Activities Expenses

and Reimbursement of Airfares)

_____________________________________

Introduction

1.After a 2 day trial in May 2018 (“2018 Trial”), this Court handed down a Judgment on 30 November 2018 (“2018 Judgment”) concerning 5 summonses before this Court in relation to the financial provision for ILB.  There were two outstanding matters adjourned as stated in the 2018 Judgment, which this Court will determine in the present judgment.  The Court will continue to adopt the abbreviations and nomenclature in the 2018 Judgment, unless otherwise stated.

2.As a result of the 2018 Judgment, it was ordered, amongst other things, the non-housing part of ILB’s maintenance payments payable by the Father were reduced to HKD 121,000 per month as from 1 March 2017 onwards until further order, subject to Father’s undertaking to continue to pay ILB’s school fees invoiced by her school directly to her school and subject to the monthly sum being index-linked as from 1 March 2017 (“2018 Order”)[1].

3.The two outstanding matters mentioned earlier are:

(1)  Father’s ECA Summons;

(2)  Paragraph 2 of Father’s Reimbursement Summons, in relation to ILB’s airfares allegedly overpaid by Father.

4.The above two summonses were adjourned for a further hearing and for various reasons including the Covid-19 pandemic, the hearing was only fixed in January this year, over two years after the 2018 Order. 

5.Father has since the 2018 Judgment changed his legal team yet again.  Counsel Mr Eugene Yim now appears for the Father.  Father himself is unable to personally travel to Hong Kong from the United States due to the Covid-19 pandemic.  Mother has continued to act in person.  She was required by Father to attend the further hearing for purpose of cross examination.  Mother was subsequently granted leave to attend the hearing remotely in a room at the premises of her former solicitors Messrs Withers. Mother was granted leave on previous occasions to have a friend to attend the trial to assist her as her “Mackenzie Friend”, but as her friend was not able to be in Hong Kong this time, Mother was granted leave for Mr H to be her Mackenzie Friend for the present hearing.  Mother was cohabiting with Mr H at the time of the 2018 Judgment but according to Mother, they are now married.

Background

6.The background and history of this litigation has been set out in the 2013 Judgment and the 2018 Judgment.  After the 2013 Judgment, the matter of ILB’s access was transferred down by this Court to the Family Court on 27 November 2014, and since then, all matters in relation to ILB’s access have since been dealt with by Judge Melloy under FCMP 234/2012, whereas the matter of ILB’s financial provision has remained in this Court. 

7.After the 2018 Trial, the parties had sought time for lodging their respective closing submissions and it was not until almost end of August 2018 when such were lodged.  In the meantime, Mother was granted leave by Judge Melloy to enrol ILB in a private international school in the New Territories (“NT School”) to repeat her 6^th grade. There was thus a change in ILB’s circumstances after the 2018 Trial and prior to the handing down of the 2018 Judgment. 

8.Recently, there has been a further change. Since 7 September 2020, ILB has started to attend a boarding school in England (“CLC”).  Unfortunately due to the pandemic, after ILB’s mid-term break on 17 October 2020, she was brought back to Hong Kong by Mother and ILB had remained in Hong Kong since and was still here at the time of the hearing in January 2021.

The ECA Summons 

9.What Father was seeking originally in his ECA Summons was to ask the Court to accept his undertaking to pay all ILB’s “tuition and extra-curricular activities expenses (“the said Expenses”) to the said tutors and activities direct upon production of invoices until further order”, and that on that basis, he had sought at the time that the monthly amount of HKD 140,000 be reduced to HKD 125,000, ie reduced by a sum of HKD 15,000, and by a further amendment during the 2018 Trial, Father sought an order to pay the tutors/coaches for the ECA directly[2].

10.In other words, what the Father sought in his ECA Summons at the 2018 Trial was essentially for him to pay for the ECA direct upon production of invoices by Mother.

11.First, as seen in the 2013 Judgement, at that time, Father had also proposed that he should pay for ILB’s ECA expenses direct but this was opposed by Mother.  In the end, this Court found for the Mother, namely that she should be the one to be responsible for payment of ILB’s ECA expenses.

12.Second, I have come to the same view in the 2018 Judgment.  I have said in paragraph 176 thereof that in view of the parties’ constant disputes over ILB’s access and expenses, it is in ILB’s best interest for Mother to continue to be responsible for payment of her ECA expenses out of the budget allowed as after all Mother has been ILB’s primary carer since she was born and from all accounts, they have a very close relationship. 

13.I would also add that in view of their very close relationship, Mother is the one who should know and/or understand what ECA ILB is interested in and/or what she needs are and which ECA would be more appropriate for ILB.  Mother has always been the parent who has arranged and organized the extra tuitions and activities for ILB.  I thus maintain my view that it is in ILB’s best interests for her ECA expenses to be paid by Mother out of the monthly sum provided to her by Father for the maintenance of ILB. 

14.As set out in paragraph 115 of the 2018 Judgment[3], Mother had in her 2017 Form E set out a total amount of a monthly sum of HKD 34,859.15 for ILB’s ECA. 

15.As set out in paragraph 120 of the 2018 Judgment[4], Father’s then Counsel Mrs Remedios had in her submissions referred to Annexure 2 which had set out the total monthly sum for ECA, according to Table 23 prepared by the SJE and also Mother’s own evidence, to be about HKD 20,200, but Mrs Remedios then submitted that as Mother and ILB were always going away for holidays during school breaks, those ECA scheduled during the holidays would be suspended and that costs for those should be excluded, and according to her calculations in Annexure 3, the amount should be reduced by HKD 8,642 per month to HKD 11,558 per month.  

16.As pointed out by this Court in paragraph 124[5], Mother’s evidence was that ECA varied from time to time, and there were amounts which were paid by her in cash.  In the end, I have found that a reasonable monthly budget for the ECA should continue to be HKD 15,000.  

17.However, as set out earlier, there was a change of circumstances after the 2018 Trial, and ILB had just started at the NT School, and according to what this Court was informed by Father’s then solicitors by a letter dated 16 November 2018[6] (“16.11.18 Letter”), Mother was no longer paying for ILB’s ECAs, tutoring, and other day to day expenses, and that the costs of textbooks and handouts, certain essential school supplies, some field trips, “pupil activities” and insurance were being paid by Father as they were included in the tuition fees of the NT School, and that in particular the ECAs were referred to as “pupil activities”, and as Father was then paying for the ECAs under the new tuition fee structure, Father asked the Court to direct that he would continue to pay for all the ECAs direct.  Father had also complained about ILB’s lunch fees being included in the tuition bill.

18.Thus, as a result of the 16.11.18 Letter, in paragraph 177 of the 2018 Judgment, I have indicated that the budget for the ECA may have to be adjusted[7]. As there was no response from the Mother in relation to what was alleged in the 16.11.18 Letter at the time of her closing submissions, the ECA Summons was then adjourned.

19.First of all, the 2013 Order was made subject to Father’s undertaking that:

“Upon [Father] agreeing and undertaking to [the Mother] and to the Court to settle all of [ILB’s] school fees directly to the school within 14 day of receipt of an invoice by email and to provide within the said 14 days a notification to [Mother] of this payment”[8] (“Undertaking”)

20.Insofar as this Court can recall, the Undertaking was not a controversial issue at the time of the trial in May 2013.  As set out in paragraph 166 of the 2013 Judgment, at the time, Father had agreed to pay ILB’s school fees (which was about HKD 5,508 per month) directly to ILB’s school and that the invoices/bills should be sent to him by the school.

21.There was no amount specified by the Father in the Undertaking, nor was there any ceiling specified.  This would make sense as with time, no doubt, the amount of the school fees would vary.  There was no objection by Mother at the time to Father’s direct payment of ILB’s school fees.

22.According to Father, the “school fees” which he had undertaken to pay pursuant to the Undertaking were the school’s tuition fees and not other expenses charged by the school, such as school lunches, school bus, trips and other student activities, save that he agrees to pay the ECA expenses upon receipt of invoices. 

23.However, according to the Mother, the Father should pay all “school related fees” as set out in the school invoices direct to the school[9], in addition to the monthly sum ordered by this Court.

24.In paragraph 186 of the 2018 Judgment, I came to the view that the amount of the non-housing part of the periodical payments of HKD 140,000 (or its adjusted index-linked amount) should be varied downward to HKD 121,000 per month, upon Father’s undertaking to continue to pay upon receipt of school invoices, direct to ILB’s school for any of ILB’s tuition expenses invoiced by the school[10].

25.In the drawn up order, the Undertaking had read somewhat differently, namely “upon the [Father’s] undertaking to continue to pay [ILB’s] school fees invoiced by her school direct to the school.”[11]

26.As said, there was no dispute regarding the Undertaking in the 2013 Order.  Further, the wording and interpretation of the Undertaking was also not an issue before the Court during the 2018 Trial in relation to the ECA Summons or any of the other 5 summonses.

27.In the Mother’s 2017 Form E (of 21 September 2017) she had stated in paragraph 4.4 therein of ILB’s school fees going up in August 2018 to HKD 195,400 for one of the schools she had in mind and HKD 228,200 for another of the schools she had in mind.  Although in the end, ILB was enrolled in the NT School instead, ILB’s school fees were anticipated to go up substantially.  All along, the Court was under the impression, that the Father would continue to pay direct to ILB’s school all her tuition expenses invoiced by the school, as stated in the 2018 Judgment.  Mother was acting in person whereas the Father was legally represented.  Had the Father wanted to be released from the Undertaking, he should have taken out a proper application.

28.As mentioned, in paragraph 115 of the 2018 Judgment[12], Mother had in her 2017 From E claimed ECAs of a total of HKD 34,859.15 per month, being HKD 9,359.15 for “Extra tuition fees” and HKD 25,500 for “Extra-curricular activities”[13]. She had at the time produced ILB’s timetable of her activities for 2017-2018[14] (“ 2017-2018 Timetable”).

29.The Court found that a reasonable monthly budget for the ECA remained at HKD 15,000[15] and in paragraph 176 of the 2018 Judgment this Court had already decided that Mother should continue to be responsible for the payment of ILB’s ECA expenses. 

30.In short, the main issue for this Court to decide at the present hearing in relation to the ECA Summons is whether the monthly budget of HKD 15,000 for the ECAs should be adjusted, in light of the 16.11.18 Letter, namely there being an alleged new fee structure at the NT School.

31.After the 2018 Judgment, Mother had filed an affidavit in response to Father’s then garnishee proceedings, namely her 17^th affidavit.  Subsequently, pursuant to leave given by this Court, Father filed his 33^rd affidavit in connection with the ECA Summons and the Reimbursement Summons in relation to ILB’s airfares, Mother filed her 20^th affidavit in opposition and Father filed his 35^th affidavit in reply.

32.In Father’s 33^rd affidavit, he had included various matters not relevant to the two present outstanding issues. This led to Mother responding in similar fashion.  I shall ignore any matters in parties’ respective affidavits which are not relevant to the present issues.

33.Although Mother’s 17^th affidavit was filed by her in connection with the garnishee proceedings, in paragraph 9(iii) thereof, she had said that ECA meant activities that occurred outside the school and were not billed as part of school costs/invoices and she had provided a ECA list which totalled HKD 21,430 a month excluding the expenses charged by the NT school (“2018/2019 List”)[16].  As explained by the Mother, the tutors and coaches for the ECAs in Hong Kong are individuals and not organisations, and further, ILB’s activities are fluid and vary from year to year and by their nature some are seasonal and some are year round[17]. 

34.I set out the relevant parts of the invoices from the NT School, produced by Father:

Invoice No	Invoice Date	Invoice Description	Amount in HKD
201715024[18]	17/08/2018	Refund	15
		2018/2019 Annual Capital Levy	60,000
		Total Amount Due	60,015
201715865[19]	12/10/2018	2018/19 Autumn Term Lunch Fee	4,450
		Less 2018/2019 Reservation Deposit …	(19,038)
		2018/19 Autumn Term Tuition Fee …	76,152
		Total Amount Due	61,564
201716819[20]	07/12/2018	Balance Brought Forward	(50)
		2018/2019 Autumn Term Music Lessons	9,750
		2018/2019 Spring Term Tuition Fees	57,114
		2018/2019 Spring Term Lunch Fee	3,338
		Total Amount Due	70,152
201717813[21]	21/03/19	Balance Brought Forward	3,288
		2018/2019 Spring Term Music Lessons	9,750
		Year 6 APA Young Leaders Camp (25/02/19-01/03/19)	5,000
		Tennis Trip …	200
		2018/2019 Autumn Term Music Lessons	2,925
		2018/2019 Summer Term Lunch Fee	3,338
		2018/19 Summer Term Tuition Fee	57,114
		Total Amount Due	81,615
201718803[22]	05/06/2019	2018/2019 Summer Term Music Lessons	9,750
		2018/19 Morning Shuttle Bus Charges - Autumn Term	2,450
		2018/19 Morning Shuttle Bus Charges - Spring Term	1,890
		2018/19 Spring Term Music Lessons (Adjustment)	650
		2019/2020 Reservation Deposit - 10% of Annual Tuition Fee	19,038
		Total Amount Due	33,778

35.Mother had said in her skeleton arguments that from 1 September 2020 until 18 November 2020 ILB was attending the UK Boarding School and also in quarantine in Hong Kong, but their travel and hotel expenses went up much more, as well as ILB’s educational expenses which Mother said she had paid in full without any contribution from Father.  Further, due to the pandemic, ILB had been back in Hong Kong since 18 November 2020 and was in Hong Kong at the time of the hearing, and that during the period, ILB had resumed most local ECAs.

36.Mother was cross examined as to ILB’s ECAs after ILB started to attend the NT School.  She had explained that it was mandatory for ILB to join those school curriculum activities, as they were part of the school curriculum, and as seen in the school invoices, these had been tennis and netball lessons and also music lessons (ie singing and guitar) which were taken at school.  She disagreed that because of those activities at school, ILB’s ECAs (namely the activities outside her school) would then be less.

37.The 2018/2019 List produced by Mother of about HKD 21,430 per month had included biweekly sessions (HKD 2,000 per session) with the court appointed therapist for ILB[23]. As this Court recalls, Mother and Father were ordered by Melloy J to share ILB’s therapy expenses, and in my view, this item should not be included in the ECAs. 

38.Mother in her 12^th affidavit[24] had listed some additional items, namely (i) a two week tennis camp in summer 2019 of about HKD 36,000, or HKD 3,000 per month, (ii) weekly Mandarin sessions at HKD 500 per week, or HKD 1,660 per month, and (iii) upgraded tennis lessons with a top coach, of about net increase of HKD 4,160 per month, which made a total of HKD 30,250 per month (including the HKD 21,430 in the 2018/2019 List).

39.Mother had also produced a timetable for ILB’s activities in 2019-2020[25] (“2019-2020 Timetable”).  What can be seen is that ILB had sports training, tennis lessons, football lessons, mandarin lessons also lessons with a tutor Pooja (for mostly mathematics, and also for science and English) and a tutor Donna between 6 pm to 7 pm or afternoons, after school hours, on about 4 out of 5 weekdays and on Saturday mornings.  Mother had explained why ILB needed tennis lessons from two coaches and that ILB played football at the Football Club and also at a place near to her house.

40.It was put to Mother that the ECAs did not add up to HKD 21,430 per month, but Mother said ILB’s ECAs outside school came to more that HKD 15,000 per month.

41.There had been email exchanges between Father and the NT School.  The school had explained that with regard to the selection of SCA (school curriculum activities), these activities were assigned by the school based on the pupil’s preferences, and in forming their preferences pupils were encouraged to consult with their parents, peers, teachers, coaches etc and it was up to the pupil to decide whom they wish to consult with when selecting their preferences[26]. Father had also asked the school about each of those activities for the 2018-2019 term which the school had explained[27]. As seen therein, all parents were charged a fee in advance for a block of 10 lessons for music lessons and that any additional lessons were then added onto the final bill for the term.  Other items were also explained by the school.

42.As previously mentioned during the 2013 Trial and the 2018 Trial, Mother had not provided any sufficient documentary evidence for many of ILB’s expenses, but the Court had taken a broad brush approach and accepted her oral evidence.  It was the Father who issued the ECA Summons and the Variation Summons, and the burden was on him to demonstrate that the ECAs should be less than the budgeted sum of HKD 15,000 per month after ILB started to attend the NT School, and having heard Mother’s evidence, I have come to the conclusion that Father had not been able to discharge the burden on him.  I am not prepared to further reduce the monthly budget for ILB’s ECAs. For avoidance of doubt, the periodical payments for ILB should remain at HKD 121,000 per month as from 1 March 2017 onwards and as ordered in the 2018 Order.

The Reimbursement Summons in relation to airfares 

43.The Reimbursement Summons had been amended twice, the last occasion being after the 2018 Trial to reflect the total amount of the reimbursement sought by Father under paragraph 2(a) of the summons in relation to ILB’s airfares to be HKD 1,303,245.10 (“Main Claim”) and alternatively, under paragraph 2(b) to be HKD 624,197 (“Alternative Claim”).  In Mr Yim’s Closing Submissions, the amount for the Main Claim was said to be an arithmetic error and that the correct amount sought by Father should be HKD 1,153,583, being alleged overpayments of ILB’s airfares for 10 trips between Easter 2012 and Chinese New Year 2017, as set out in Annex 1 – Airfare Table of Mr Yim’s Closing Submissions.

44.Mr Yim had pointed out that in the closing submissions in Father’s former Counsel for the 2018 Trial, Father’s case was argued on the basis of the Alternative Claim only, namely that Father was entitled to reimbursement for half of the amounts paid by Father.  

45.It was submitted by Mr Yim that the underlying basis of Father’s claim as seen in Father’s 23^rd affidavit dated 29 March 2017 filed on 5 April 2017, was that Father had made it clear repeatedly that he was asking for a refund for the airfares paid on the ground that, amongst others, the invoices were fabricated.  It was only his Alternative Claim that he should only be required to pay for one way tickets only (ie half the amount on the invoices)[28].

46.However, when the Reimbursement Summons was first issued on 5 April 2017, the “only” claim in the summons for overpayment of airfares was the so called Alternative Claim in the sum of HKD 543,181 and this amount was based on Father having to pay only 50% or one way air fare.  There was no Main Claim at the time.  Even when the amended Reimbursement Summons was filed on 5 April 2018, slightly under a month before the 2018 Trial, there was no Main Claim, the Alternative Claim being then the only claim.  The re-amended Reimbursement Summons was then re-filed on 4 October 2019, long after the 2018 Trial and it was only then that the Main Claim was included and the original claim then became the Alternative Claim.  

47.The fact is that Father had changed his legal team several times, and the problem is that each time he changed legal representatives, there seemed to be a change in his stance.  There seemed to have also been different interpretations of those relevant provisions in paragraph 3 in the Custody Order in relation to Father’s payment of airfares for ILB’s access travel.  Indeed it had appeared that in a letter from one of Father’s former solicitors Robertsons, dated 17 October 2016, Father’s then interpretation of the relevant provisions and of “return airfare” was that he was only required to pay the one way airfare from Hong Kong to the place of access (ie United States) and had sought reimbursement for overpayment on this basis[29]. As seen in exhibit WGL 23-2 of Father’s 23^rd affidavit which was filed in support of the Reimbursement Summons issued on , although he said he was entitled to a full refund of airfares due to “fake invoices”, the actual amounts he claimed Mother “owed” him appeared to be based on him having to pay only one way airfares[30].

48.During the 2018 Trial, his then Counsel had in fact asked the Father in examination-in-chief to confirm that he had paid 100% of the airfares including ILB’s holidays outside access, and he claimed only the amounts he had set out in relation to what Mother owed him, and Father had confirmed that he was claiming the amounts he said Mother owed him, namely those amounts in the so called Alternative Claim.  As stated in Table 6 of his then Counsel’s Closing Submissions, the amounts Father sought totalled HKD 480,075, which was on the basis that he only ought to pay the airfares for the leg HK to place of access, and his reason was that Mother and ILB went onto somewhere else after access.  It was not his case at the time to seek the full refund of all airfares he had paid.

49.In light of the Father’s then case, this led to this Court’s observation in paragraph 202 of the 2018 Judgement[31], in that the Court was not sure whether the parties’ interpretation of the provisions [on the Father’s payment of the airfares] in the Custody Order was correct.  No doubt this had led to Father re-amending paragraph 2 of the Reimbursement Summons.

50.I accept that this Court did not decide on Father’s application for reimbursement of the overpaid airfares in the 2018 Judgment and paragraph 2 of the Reimbursement Summons was adjourned for a further hearing.  However, what is clear is that the Father did change course by his latest amendments.

51.As transpired during the current trial, the Mother certainly had/has a different interpretation of the airfare provisions in the Custody Order from the Father.  This should be the first issue to address in relation to Father’s present application.

Proper construction of the relevant airfare provisions in the Custody Order

52.The starting point is the order made by Mr Justice Coleridge on 11 July 2012 (“Coleridge Order”)[32], following a 3 day hearing on 14, 15 and 16 May 2012 in proceedings in England taken out by Mother for leave to relocate with ILB to Hong Kong.  The relevant provisions are set out as follows:

“BY CONSENT IT IS ORDERED THAT:

Residence Order

1.   ….

Leave to remove

2.   ….

IT IS FURTHER ORDERED THAT :

3.   The [Mother] shall make [ILB] available for contact with the [Father] in accordance with the schedule 1 attached to this order.

4.   It is a condition of the contact ordered that the [Father] shall, within 21 days of being provided with an invoice by the [Mother] (in relation to air fares) or within 21 days of the end of contact (in relation to other expenses described in para. 4(ii)) meet the following expenses incurred by the [Mother] involved in contact as follows:

i.    Return business class air fares for the [Mother] and [ILB] where [ILB] is travelling for the purposes of contact with the [Father], it being recorded that:-

1.    the [Father] shall not be obliged to meet [ILB’s] and the [Mother’s] airfares in relation to trips which they take for the [Mother’s] own holidays, for instance, for the Christmas holiday in Zurs, or other similar trips to Europe or elsewhere where the [Father] will also be having contact with [ILB], in relation to which the [Mother] shall meet all her own expenses;

2.    the [Mother] may take a holiday at the beginning or end of a contact period between the [Father] and [ILB] . in which case the [Father] must meet only the return air fare between the [Mother’s home] and the place at which contact between [ILB] and the [Father] takes place and the [Mother] is responsible for all hers and [ILB’s] other expenses;

ii.   USD 1,000 per night for each night that the [Mother] stays in a hotel where that hotel expense is incurred in order to facilitate contact tween the [Father] and [ILB]…;

5.   ….

6.  The [Father] shall, by 6 June 2012, pay to the [Mother] the expenses set out in schedule 2 attached to this order representing the expenses incurred by the [Mother] in facilitating contact between [ILB] and [Father] in November 2011 and at Easter 2012….”

53.The above underlined paragraphs in the Coleridge Order will be referred to hereafter as “Underlined Paragraphs”.  It would appear from the wordings of the Coleridge Order that paragraphs 3 to 6 therein, including the Underline Paragraphs were not in fact made by consent. 

54.In Father’s 23^rd affidavit, he had said he believed “what the court intended to do was to give [Mother] the ability to go and book her tickets, use them and then have [Father] reimburse [her] 21 days after access took place”[33].

55.However, there was no evidence produced by the Father as to what his “belief” was based on.  In particular, there was no evidence as to what submissions were made during the hearing in the UK proceedings and the circumstances in which the Underlined Paragraphs were made in the Coleridge Order.

56.On 17 December 2012, after Mother and ILB had relocated to Hong Kong, Father had applied for a mirror order of the terms of the Coleridge Order, and this then resulted in the Custody Order made by Family Judge KW Wong.  It can be seen in the Custody Order that the parties had acknowledged the Coleridge Order having been made (Recital A) and that they had further confirmed that they had each been advised by their respective lawyers in England, of the implications of the Coleridge Order (Recital B).  A copy of the Coleridge Order was attached to the Custody Order and marked “A”. 

57.Although as said earlier the Underlined Paragraphs in the Coleridge Order did not appear to be made by consent, the Custody Order was made by consent of the parties and the Underlined Provisions are now embodied in paragraph 3 of the Custody Order, as part of a consent order. 

58.Further, the Father was legally represented throughout the proceedings whether in England or in Hong Kong, and he must have been fully advised about those Underlined Provisions.  Mother was also legally represented at the time of the Custody Order and she must have also been fully advised about those Underlined Provisions.

59.What is clear is that for 9 out of the 10 trips (ie save the last trip when there was no access), Mother had taken ILB on a holiday after ILB’s access with Father, which would fall within paragraph 4.i.2 of Coleridge Order or paragraph 3(i)(b) of the Custody Order (“Paragraph 3(i)(b)”).

60.Mother’s evidence was that all she was required to do under the relevant provision was to produce an invoice for ILB’s business class airfare from Hong Kong to the point of contact and back to Hong Kong.  She had said under cross examination by Mr Yim that “I took [ILB] to contact and all I was allowed to bill was [ILB’s tickets] to and from point of contact”.  When further asked by Mr Yim that after she asked Father to pay according to the invoice, no one would actually know whether she had used the money for ILB’s access trips, and Mother had agreed.  Her evidence was that she was only to “charge” Father under the Coleridge Order for ILB’s flight from Hong Kong to point of contact and back to Hong Kong.

61.Mother had explained in paragraph 8 (i) of her 17^th affidavit that under the relevant provisions, the Father was required to pay for her and ILB’s business class travel from HK to access location (historically New York, Los Angeles, or Aspen) and for the business class return costs back to Hong Kong except on one occasion Judge Melloy had amended the Custody Order and had the Father split the cost of the Zurs flight[34] (“07.07.15 Melloy Order”).  In paragraph 10 of her 20^th affidavit, Mother had again referred to her earlier 17^th affidavit, and had said that “of course some of the invoices are not actual flown; I was only allowed to bill for access to and from Hong Kong…[35].

62.Hence, Mother had made it very clear that under the relevant provisions, Father was required to pay the return airfare costs for her and ILB HK- place of access- HK, in accordance with an invoice supplied by her.

63.What Mother said was also the stance adopted by her former solicitors, as seen later in this judgment.

64.Mr Yim on the other hand had submitted that the words “incurred by the [Mother]” meant that Father should only pay for such airfares as had been actually paid by Mother.

65.Paragraph 3(i)(b) has made it clear that Mother may take a holiday (1) at the beginning or (2) end of an access period between Father and ILB, in which case Father must meet only the return air fare between Mother’s home and the place at which access between ILB and Father takes place and Mother is responsible for all hers and ILB’s other expenses.

66.Thus, what is anticipated in paragraph 3(i)(b) would be for situation (1), ILB fly with Mother HK to (holiday place with Mother) and then to (place of access with Father) and back to HK (“Situation (1)”), and for (2) Mother and ILB fly with Mother HK to (place of access with Father) and then to (holiday place with Mother) and then back to HK (“Situation (2)”).  Further, whether Situation (1) or Situation (2), what Father is required to pay is the return airfare between Hong Kong and (place of access with Father). 

67.It is my view that on the plain and ordinary meaning and on a purposive construction and interpretation, return airfare in Paragraph 3(i)(b) means the airfare for a round trip ticket from HK/place of access/HK for the following reasons:

(1)  First, paragraph 3 in its opening paragraph makes it clear that it is a condition that Father has to meet the expenses set out thereunder and there are 2 kinds of expenses, namely (i) airfares and (ii) other expenses set out in paragraph 3(ii).  Further there are different specified time for payment for the 2 kinds of expenses, which is for (i) airfares, within 21 days of being provided with an invoice by Mother and for (ii) other expenses, within 21 days of the end of access. This makes sense since one would normally need to have the tickets issued and paid for prior to travel.  Thus, Father’s belief that the intention was for him to reimburse Mother for the airfares 21 days after access took place cannot be right.

(2)  Second, paragraph 3(i) concerns airfares.  The opening paragraph clearly states that the airfares are “return business class air fares” for both Mother and ILB where ILB is travelling for the purpose of access with Father, which means return business class airfares for HK/place of access/HK.  Then there are two situations being recorded in the sub-paragraphs under paragraph 3(i), namely in one situation where he does not have to pay for the airfares for access and in the other one where he must pay.

(3)  Under paragraph 3(i)(a), Father is not obliged to meet ILB’s and Mother’s airfares in relation to trips which they take for Mother’s own holidays, such as Christmas holidays in Zurs or other similar trips to Europe, where Father will also be having access.  It was thus been anticipated that if Mother was to be in Zurs or Europe, or other countries, on her own holiday with ILB, Father could fly such country to have access to ILB and Father did not need to pay for any airfares for Mother and ILB.

(4)  Then, under Paragraph 3(i)(b), Father must meet only the return airfare between [Mother’s home] and [the place of access] whether Situation (1) or Situation (2), and that Mother is responsible for all hers and ILB’s other expenses.  Paragraph 3(i)(b) does not state one way airfares or airfares from [Mother’s home] to [the place of access]”.  Further, as Paragraph 3(i)(b) is a sub-paragraph of paragraph 3(i), which, as said, starts off referring to “return business class air fares”, in my view, the “return airfare” in Paragraph 3(i)(b) refers to the return business class airfares for HK/place of access/HK.

(5)  Third, although in the opening paragraph of paragraph 3, the words “incurred by [Mother]” followed the words “following expenses”, such words should be read subject to those sub-paragraphs thereunder.  As there would not have been actual tickets issued for the last leg from the place of access back to HK for Mother and ILB in Situation (2), the “return airfare” would have to be based on what the travel agent would charge for the price for such return business class tickets for HK/place of access/HK.  What was incurred by Mother would not necessarily be the exact amount of the return airfare in the invoice sent to Father. 

68.In my view, the intention of Paragraph 3(i)(b) was that Father should only pay for the return business class airfare for Mother and ILB for HK/place of access/HK, and if Mother decided to take ILB onto other trips/holidays after access, which was anticipated under the order, the Father would not need to pay for any additional airfare costs.  Paragraph 3(i)(b) provided for the Father’s obligation towards access.

69.If there had been different interpretations by the parties of that paragraph, they should have sought clarification from the English court who made the order in the first place.  In any event, a proper application on the construction/interpretation and the effect of paragraph 3 should have been brought as soon as the issue arose.  

70.In fact, prior to the transfer of the access matter down to the Family Court, the Father was already aware of the fact that the invoices did not bear actual dates of departure/arrival for HK/place of access as his then solicitors Messrs Boase, Cohen and Collins had written to Mother’s then solicitors Messrs Withers in June 2013, to seek details of Mother’s and ILB’s travel schedule for 2013 Summer and also receipts of payment of the tickets for the 2013 Summer access[36]. The request for receipts was refused by Messrs Withers, Mother’s then solicitors.

71.After the access applications had been transferred to the Family Court on 27 November 2014, in so far which has been brought to this Court’s attention, there appeared to have been at least two orders made by Judge Melloy in relation to Paragraph 3(i)(b).

72.One of the two orders was the 07.07.15 Melloy Order in which Judge Melloy had ordered that the parties to continue to be bound by paragraphs 3 and 4 of the Custody Order.  In paragraph 6 of that order, Judge Melloy had directed that for the Christmas 2015 trip, Father to be responsible for the cost of the flight from Hong Kong to Aspen, and Mother to be responsible for the cost of the flight from Zurs to Hong Kong, and that the cost of the flight between Aspen and Zurs to be split between the parties equally. 

73.In so far as I can see, the above direction only applied to the Christmas 2015 trip.

74.The other order made by Judge Melloy was on 12 August 2016 (“12.08.16 Melloy Order”).  It appeared that Father had issued a summons on 4 March 2016 to seek a variation of the Custody Order including the summer access and the provisions for the travel expenses for access.  In fact, there was a hearing which took place on 16 June 2016 and Mr B Barlow SC had represented the Father, the stance then taken was that Father was to reimburse Mother on proof of payment of airfares[37].  Pursuant to the 12.08.16 Melloy Order, Judge Melloy had varied paragraph 3 of the Custody Order that Mother do provide Father with her redacted credit card statement within 3 days of the same as proof of payment of her and ILB’s flights and hers and the Father to reimburse Mother within 7 days thereafter.  There was no provision in this order that the requirement of proof of payment was to take retrospective effect, or this order or this requirement should apply to all previous access trips which had already taken place.

75.Further, in so far as this Court can see, there was no variation or change in the 12.08.16 Melloy Order to Father’s obligation to pay for the return airfare for HK/place of access/HK under Paragraph 3i(b).  It is thus not quite clear why in the letter dated 17 October 2016 mentioned earlier from Father’s then solicitors Robertsons, Father’s interpretation of Paragraph 3i(b) had been that he only had to pay for one way airfare from Hong Kong to place of access. 

76.In any event, Father now appears to re-litigate on the issue and his stance now is essentially the invoices were all fabricated, and that Father should be entitled to a full refund of all airfares he had paid in relation to ILB’s access for 10 trips.  The Father had prepared and produced “Flight Dispute Reports” in his 33^rd affidavit of 20 June 2019 to set out each invoice challenged by him and reasons for his challenge and which summarised his case on the alleged overpayment (“FD Reports”)[38].  

The 1^st claim - 2012 Easter trip[39]

77.Father’s claim for this trip was based on the operation of Paragraph 3(i)(b).  It was accepted by Mr Yim in his Closing Submissions that as the sum of HKD 87,306 claimed by Father for the 2012 Easter trip was prior to the Custody Order, it would be fair that this sum should be excluded from the total amount claimed[40].

78.The 2012 Easter trip was in fact covered in the Coleridge Order where under paragraph 6 thereof, Father was expressly ordered to pay by 6 June 2012 the expenses in connection with this trip.  This was prior to the Custody Order.  The Father’s attempt to include this trip in his present claim is unjustified.

79.Father had claimed that the invoice and confirmations were fabricated.  It is not quite clear as to whether Father meant the invoice and/or confirmations were fabricated by the travel agent or by Mother or by some one else.  This is a serious allegation which involves criminality, and Father’s allegation is extremely vague.  The departure date and flight details were in fact stated in the invoice dated 2 March 2012 issued by Travelus, with a “paid” chop indication payment by visa card on that day. As for the confirmations/statement of accounts, against the date and flight details were stated.  There was no sufficient evidence that the invoice and/or confirmations were fabricated, as alleged by Father.  The only reasons why Father said he overpaid was because Mother went onto another holiday with ILB and that he was only supposed to pay for one way tickets.  In my view, Father was misconceived.

2^nd claim - 2013 Easter trip[41]

80.Father’s complaint was there was no departure or return date and no flight details on the invoice, and no proof of payment although the invoice was chopped “paid”.

81.On the invoice dated 6 February 2013, the flight was stated to be “Hong Kong/Los Angeles/Hong Kong”, the airline was Cathay Pacific and the class was business, and the amount was HKD 110,802.  In the FD Reports, Father originally only claimed that HKD 61,308.

82.This was a Situation (2) trip, as according to Father, after access, ILB went with Mother to another holiday after access[42].

83.Under cross examination, Mother said there was no need for her to provide departure or return date or flight details on the invoice under Paragraph 3(i)(b).  She further said she was not required under Paragraph 3(i)(b) to provide documentary evidence to show actual payment by her at the time.

84.First, as said earlier, there was no sufficient evidence that without the departure or return date and without flight details or ticket numbers, this would mean the invoice was fabricated.  As said earlier, there could not have been a return ticket HK/LA/HK, as Father’s own evidence was that Mother had gone onto another holiday with ILB after that access visit with Father.  Further, there was no dispute that access did take place.  Thus, Father must have known at that time that ILB did not return immediately to Hong Kong after access with him, and in the circumstances, Father must have known at the time that there was no actual return ticket issued for HK/LA/HK.

85.Secondly, Mother had confirmed during the trial that she had paid for the tickets.  Although Mother did not provide documentary evidence for her payment, there was no sufficient evidence to contradict her evidence.  In any event, as said, the 12.08.16 Melloy Order was not retrospective.  Paragraph 3(i)(b) did not require Mother to provide receipt or proof of payment prior to Father’s payment.

3^rd claim - 2013 Summer[43]

86.There were two invoices produced by Mother, one invoice showed a CX flight HK/LA/HK for HKD 102,476 and one showed a United Airline flight Los Angeles/Aspen/Los Angeles for HKD 20,140.  The total sum was thus HKD 122,616.  There were no “paid” chops on the two invoices.

87.Access took place in Aspen and this was a Situation (2) trip. Father’s evidence was that after access Mother went with ILB from Aspen to Page Arizona, London, St Tropez, Ibiza and London.

88.Again, there was no sufficient evidence that without the departure or return date and without flight details or ticket numbers, this would mean the invoices were fabricated.  There could not have been a return ticket HK/LA/Aspen/LA/HK, as Father’s own evidence was that Mother had gone onto a number of trips with ILB after that access in Aspen.  As mentioned earlier, this trip was subject of a number of correspondences between Father’s then solicitors and Mother’s then solicitors.  Father knew at that time that ILB did not return immediately to Hong Kong after access with him, and in the circumstances, Father must have known at the time that there was no actual return ticket issued for HK/LA/Aspen/LA/HK.  As said, his then solicitors had asked for receipts of payment and this was refused by Mother’s then solicitors.  This was clearly because Mother’s obligation under Paragraph 3(i)(b) was only to provide an invoice/s.

89.When Mother was cross examined on this access trip, Mother had said she did use Father’s money for the trip and that she had delivered ILB to access with Father.  She had said there was no requirement in the Custody Order that she had to provide proof of payment, but she confirmed she did pay.  There was no sufficient evidence to contradict Mother’s evidence that she did pay.  As said, the 12.08.16 Order was not retrospective.  It was not necessary at the time for Mother to provide proof of payment prior to Father’s payment.

90.Further, as Father had known that the invoices bore no dates of travel or ticket numbers and his request for receipts was rejected, he could have issued a summons at the time to clarify the order, but he failed to do so.

4^th claim - 2014 Easter[44]

91.There was no dispute that Mother delivered ILB to Father in Los Angeles and it appeared that access in fact took place in Aspen.  This was again a Situation (2) trip.  According to Father, Mother and ILB had gone from Aspen to St Barth’s.  Father was sent an invoice for the amount of HKD 90,868 which he paid.

92.Again, there was no sufficient evidence that without the departure or return date and without flight details or ticket numbers, this would mean the invoice[45] was fabricated.  There could not have been a return ticket HK-Los Angeles- HK, as Father’s own evidence was that Mother had gone onto St Barth’s with ILB after access in Aspen.  Father must have known at that time that ILB did not return immediately to Hong Kong after access with him, and in the circumstances, Father must have known at the time that there was no actual return ticket issued for HK/LA/ HK.

93.The invoice was chopped “paid”.  During the present trial, Mother had said she had paid for all the flights.  There was no sufficient evidence that Mother did not pay for the flights.  Again, as said, there was no requirement at the time for Mother to provide proof of payment prior to Father’s payment.

5^th claim - 2014 Summer[46]

94.The access took place in Aspen.  This was again a Situation (2) trip.  After access, according to Father, Mother and ILB stayed on in Aspen and then flew to Chile and London. 

95.Mother produced an invoice dated 27 May 2014 for a flight HK/LA/HK for HKD 102,480 for both her and ILB, which Father had paid[47].  The invoice had a “paid” chop.

96.According to Father, Mother had also produced in her 2017 Form E an invoice dated 11 June 2014 for HK/LA/by surface/New York (JF Kennedy International Airport)/Santiago/Madrid (Barajas Airport) /London (Heathrow Airport)/Hong Kong for HKD 106,990 for ILB only[48].  This invoice had a “paid” chop over a “receipt” chop.  This invoice had an actual departure date of 27 June 2014 and a return date of 10 August 2014 on CX for a “first class” ticket for ILB.

97.What seemed to have actually happened was that ILB flew first class for HK/LA/by surface/New York/JF Kennedy International Airport/Santiago/Madrid (Barajas Airport)/London (Heathrow Airport)/Hong Kong, but Father was only provided with an invoice for business airfare for Mother and ILB for HK/LA/HK.

98.As the two invoices seemed to bear different “paid” chops, it had been put to Mother that she was the one who applied the “paid” chop on the earlier of the 2 invoices.  This was strongly denied by Mother.  There was no sufficient evidence that the invoices were fabricated.

99.When it was put to Mother that there was no evidence that she had used Father’s money to pay for the invoices, Mother said she disagreed as she had paid even more, as seen in the later of the 2 invoices.  There was no sufficient evidence to contradict what Mother had said, that she did use Father’s money to pay for ILB’s tickets, even though Mother did not produce any documentary evidence of her actual payment.  As said earlier, she was not required to at the time.

6^th claim - 2015 Easter[49]

100.The access took place in Los Angeles.  Mother had produced an invoice for HK/LA/HK for both herself and ILB in the sum of HKD 101,058.  Father had paid this amount.

101.As seen in a letter dated 12 March 2015 from Father’s then solicitors, Robertsons, it was pointed out therein that Mother had only provided an invoice for the price of 2 business class tickets HK/LA/HK, there was nothing on the invoice to link it to the Easter travel and Father had sought the flight confirmation for this invoice showing the arrival and departure dates from Los Angeles of Mother and ILB[50].

102.Mother’s solicitors then replied on 12 March 2015 pointing out the invoice was dated 25 February 2015 and that it was abundantly clear that those tickets were for the Easter access to Los Angeles and that Father did not need any more information than what had already been provided[51].

103.It was not clear whether or how Robertsons had responded to the above.  What is however clear to this Court, again Father and his solicitors were fully aware that the invoices bore no actual departure and return dates, no flight numbers or no ticket numbers.  There was no allegation at the time that the invoices were fabricated.

104.In any event, as said, the fact that there were no actual departure and return dates, no flight numbers or no ticket numbers would not be sufficient evidence that the invoice was fabricated.  The purpose of the invoice was simply to show the cost of return airfare for HK/LA/HK.

105.As to actual payment, again Mother maintained there was no requirement in the Custody Order for her to provide proof of actual payment but again she had said she did pay the tickets.  What Mother said was in fact reflected in her solicitors’ letter of 12 March 2015 mentioned earlier.  There was no sufficient evidence to challenge Mother’s evidence.

7^th claim - Christmas 2015[52]

106.Pursuant to the 07.07.15 Melloy Order, Father was to have access in Aspen between 17 and 21 December 2015[53].  Mother had produced an invoice dated 25 November 2015, which was for flights for Mother and ILB for HK/LA/Aspen/Denver/London/Zurich in the sum of HKD 109,209 and Mother had produced her credit card statement dated 20 December 2015 to show that she had paid HKD 109,209 to CX by two amounts of HKD 83,267 and HKD 25,942 totalling HKD 109, 209 on 4 December 2015[54].

107.Father had in fact failed to pay her the above amount in full within 21 days pursuant to the 07.07.15 Melloy Order and/or paragraph 3 of the Custody Order as seen in a Note of Mother’s submissions to Judge Melloy for a hearing on 27 January 2016[55]. As said by Mother in her Note, the amount of HKD 109,209 was the fare for the flights of Mother and ILB from Hong Kong to Aspen and half of their fare for the flights between Aspen and Zurs.

108.It would appear from a letter from Robertsons dated 30 March 2016, at the time Mother had provided two credit card slips for HKD 49,377 and HKD 59,832 in support of her payment which did not seem to match the credit card statement and Father had raised a query about this.  There was a further letter dated 12 April 2016 on this issue.

109.As mentioned earlier, pursuant to paragraph 6 of the 07.07.15 Melloy Order, Father was to pay for the airfare Hong Kong to Aspen, and Mother was to pay for the airfare from Zurs back to Hong Kong, and the airfare between Aspen and Zurs were to be split equally between the two.

110.There was no mention by Father in relation to the 07.07.15 Melloy Order in his claim concerning this trip in the FD Reports, nor was Mother reminded of this during cross examination.  Mother herself seemed to have forgotten about the order during cross examination.  When Mother was asked why the invoice only showed the flights between Hong Kong and Zurich with no return flights and the last leg was not Father’s responsibility, Mother’s answer was that she did not recall.  She was also asked also as the middle leg was on first class, and not business, that was also not Father’s responsibility, Mother had explained there was no business class on United Airlines.  

111.Mother was then asked about why the credit card statement only showed the payments to CX, and not to the travel agent whereas the invoice was issued by the travel agent and for flights including those not on CX.  Mother said the travel agent had her credit card details, and that it could be that the travel agent had paid CX through her credit card. 

112.In any event, this trip was covered by the 07.07.15 Melloy Order, and Father was legally represented by Robertsons at that time, who had written to raise query on the payments and sought proof of payments.  Father must have been advised on what he should pay and apart from seeking proof of payment from the Mother, it was never the Father’s allegation at that time that the invoice was fabricated nor had Father sought any full reimbursement at the time.

113.In any event, there was no sufficient evidence that the invoice was fabricated.  Further, there was no sufficient evidence that Mother had not actually made the payment of HKD 109,209 for this trip. 

8^th claim – 2016 Easter[56]

114.Access took place in Aspen.  For this trip, Mother had initially sent to Father’s solicitors Robertsons 2 official receipts from the travel agent for her and ILB, one was dated 16 March 2016 for Mother herself of HKD 75,403 for HK.LA/HK and for LA/Aspen/Denver/LA and one was dated 16 March 2016 for ILB of HKD 52,345, for HK/LA/HJK and for Aspen/Denver/LA, totalling HKD 127,748[57].

115.Robertson had on their letter dated 21 March 2016 raised a query as to why ILB’s tickets did not include LA to Aspen, same as the Mother’s.  Mother then apologised as the travel agent had made a mistake and Mother then sent 2 further invoices with the total revised to HKD 136,206 to include an itinerary for ILB’s ticket LA/Aspen/Denver/LA[58] instead of only Aspen/Denver/LA[59]. Mother had also sent to Robertsons her email exchanges with the travel agent[60].

116.Although Mother had initially produced a credit card slip dated 16 March 2016 showing a debit of HKD 127,748, she later produced a credit card slip dated 21 March 2016 for HKD 136,206.  She had further produced a credit card statement dated 20 April 2016 showing a debit to the travel agent of HKD 127,748 on 16 March 2016 and then later a debit of HKD 8,458 on 21 March 2016[61].

117.When Mother was cross examined about this, she said she did not recall.  Mother was also cross examined about an amount in her credit card statement of an amount of HKD 17,754 on 11 April 2016, with her handwritten words “Denver – LA me + IZ credit back – 16,670 HKD”[62].  She was asked whether there had been a refund from the travel agent, her answer was she did not recall what the credit was for.  Bearing in mind Mother was suddenly asked during the trial something she had written almost 5 years ago, it was understandable that she could not have remembered.

118.Anyway, on 30 March 2016, Father’s then solicitors Robertsons had asked Mother to produce proof of payment (ie credit card statements and official receipts from the travel agent and the hotels) for all the travel expenses that Mother had claimed from Father since 2012.  As said, by then, Father had also issued his summons on 4 March 2016 which later led to the 12.08.16 Order.

119.In any event, there was no sufficient evidence that the invoices were fabricated.  There was also no sufficient evidence that Mother had not made actual payment.

9^th claim – 2016 Summer[63]

120.Mother had produced an invoice dated 18 June 2016 for flights HK/LA/HK and LA/Aspen/LA for her and ILB totalling HKD 148,816 with a credit card slip of her payment of the same.  This was sent to Father on 20 June 2016 and according to Father, he paid the invoice on 5 July 2016[64].  However, according to the FD Reports, Father had also said the payment was made on 27 June 2016[65]

121.Father said that after the summer access, he learnt that Mother and ILB actually travelled on a private jet to New York and he therefore sought reimbursement of the New York flights of HKD 63,106 but Mother ignored his requests[66].

122.However, in Mother’s 21^st affidavit, she indicated she would agree to deduct the amount from the arrears of periodical payments and also other unpaid travel invoices Father owed her[67]. 

123.There was no complaint about the invoice being fabricated at that time.  Yet now, Father sought the reimbursement for the entire amount.

124.As set out in the FD Reports, Father’s latest position for this claim for reimbursement seemed to be based on clause 9 of the 12.08.16 Melloy Order.

125.The trip actually commenced prior to that order and the invoice was dated 18 June 2016.  As said earlier, there was no retrospective effect stated in the 12.08.16 Melloy Order.

126.There was no sufficient evidence that the invoice was a “fake invoice” as claimed by Father.  There was no sufficient evidence that Mother had not paid the full sum of HKD 148,816 on 20 June 2016 as reflected in her credit card slip.  Whether she was later able to claim a refund for unused part of the tickets would be another matter.

10^th claim - 2017 CNY[68]

127.Mother had produced an invoice dated 10 January 2017 for her and ILB for HK/LA/HK and for LA/Aspen and Aspen/LA totalling HKD 144,122.  Mother had also produced a credit card statement dated 21 January 2017 indicating her payment of this amount.

128.In the end, no access took place.  Mother agreed no access took place but she disagreed to reimburse Father.  She said she had taken ILB to Aspen in good faith and then Father changed the access location, and Mother did not agree and that it was Father who chose not to see ILB.

129.According to Father, he notified Mother in December 2016 that he would need access to take place in LA and not Aspen, as seen in a letter dated 15 December 2016 sent by Robertsons to Mother, but it was Mother who denied his request on the basis she had made plans for herself whilst in Aspen, and she had also made plans for ILB during her time with Mother in Aspen before and after access.  Father had referred to an email dated 16 December 2016.  These communications did not seem to have been included in the hearing bundles.  In any event, there was no reference to them by Mr Yim.

130.On the other hand, included in the hearing bundles was an email sent by Mother on 19 January 2017 to Father that she would be willing to voluntarily accommodate his last minute request for access variance on the terms stated therein, amongst which was Father to immediately reimburse her for the 2016 Christmas airfares and the 2017 CNY airfares, and that if she did not receive payment in full by Monday 23 January 2017, she would simply follow the 12.08.16 Melloy Order[69].

131.It would appear that in the end the parties were not come to an agreement and no access took place.

132.As pointed out by Mother, it was clearly stated in the 12.08.16 Melloy Order that Father was to have access to ILB in Aspen from Monday 30 January 2017 at 10 am until Friday 3 February 2017 at 8 pm (4 nights/5days).  As also seen in an email from Mother to Father of 21 February 2017 (in which Mother had also informed Father her new relationship with Mr H and of her imminent move to a different house), Mother had mentioned about Easter Access and that she had reminded Father that he had not yet paid for the 2016 Christmas access and the 2017 CNY access.  Thus, by then, Father still had not paid for the airfares for those trips.

133.In so far as this Court is aware, Father did not make any further application to Judge Melloy in relation to his proposed change of access location and Mother was entitled to insist on the 12.08.16 Melloy Order to be adhered to.  Further, it would appear that on 1 June 2017, Father did pay for the 2017 CNY airfares, even though he was fully aware no access had taken place.

134.In my view, it is far too late to now raise this matter again.

135.There was in any event no sufficient evidence that the invoice was fabricated or that Mother did not pay for the tickets, even though the amounts in her credit card statement which totalling HKD 135,782 appeared to be HKD 8,340 less than the invoiced amount, there was no sufficient evidence that Mother had not paid for the trip and she had provided a copy of her credit card statement pursuant to paragraph 9 of the 12.08.16 Melloy Order. 

Conclusion on the reimbursement of airfares

136.In light of all said above, there was no sufficient evidence of any of the invoices was fabricated.  They were merely invoices issued by the travel agent for the purpose of showing the price of the return airfares HK/place of access/HK for Mother and ILB, which Father had to pay under Paragraph 3(i)(b) and the invoices were clearly not for actual tickets issued.  As found earlier, Father should be well aware of this since June 2013.  Even if Father had felt bullied into paying prior to access, there was no reason why he could not have raised this matter after access.  In fact, the evidence showed that he often did not pay within the time specified in paragraph 3 of the Custody Order.  He eventually issued a summons for variation on 4 March 2016 which resulted in the 12.08.16 Melloy Order.  There was no appeal against that order, which had no retrospective effect.

137.In issuing the Reimbursement Summons, Fahter appeared to try and re-litigate and raised all the issues again notwithstanding the 12.08.16 Melloy Order.  There seemed always to have been correspondence between the parties in relation to each access at the time but not all of these had been produced before this Court.  In any event, further, if Father’s application is to be allowed now, he would have had the benefit of access over 9 trips without having to pay for any of ILB’s airfares.  This cannot be right.

138.Having considered all the above, I have come to the conclusion that Father’s application for reimbursement of the airfares for the 10 trips should be dismissed.

Orders 

139.In light of all said, my orders are as follows:

(1)  The ECA Summons shall be dismissed;

(2)  Paragraph 2 of the Reimbursement Summons shall be dismissed.

140.As Father has not succeeded with either of his summonses, he should pay Mother’s costs and disbursements of the ECA Summons and paragraph 2 of the Reimbursement Summons, including Mother’s costs of giving evidence by VCF, such costs to be taxed on party and party basis, if not agreed.

Transfer to Family Court

141.Mother has in the last paragraph of her Opening Submissions asked that at completion of the trial the entire proceedings be transferred to the Family Court so that any future issues can be dealt with by one Judge and in one place holistically.

142.Mr Yim had submitted that in the absence of a formal application and before there is any opportunity for such issue to be fully argued in light of paragraph 21 of PD 15.14, it was not appropriate for this Court to make a determination on this important issue.

143.This submission is misconceived.  PD 15.14 only concerns transfers of matrimonial proceedings under Rules 32 and 80 of the Matrimonial Causes Rules.  The present proceedings are under Guardianship of Minors Ordinance, Cap 13.

144.Section 43 of the District Court Ordinance provides that:

“43. Transfer to the Court from the Court of First Instance of proceedings within the jurisdiction of the Court

(1) The Court of First Instance may, either of its own motion or on the application of any party, order the transfer to the Court of all or part of an action or proceeding, other than a counterclaim, which appears to the Court of First Instance likely to be within the jurisdiction of the Court.

(2) An order may be made under this section at any stage of the proceedings of the motion of the Court of First Instance itself or on the application of any party.

(3) The Court of First Instance is required to make an order under this section unless it is of the opinion that, by reason of the importance or complexity of any issue arising in the action or proceeding, or for any other reason, the action or proceeding ought to remain in the Court of First Instance”

145.Father was aware that Mother had sought an order of transfer down.  No valid grounds of opposition have been put forward.  These proceedings are not wardship proceedings and ILB is not a ward of this Court.  These proceedings were commenced in the Family Court in the first place but were transferred up by Judge KW Wong.  As seen earlier in this judgment, in relation to the matter of reimbursement of airfares, Father had made applications both in the Family Court and before this Court and appeared to be re-litigating on some of the issues.  It has indeed caused confusion particularly when Mother is acting in person, and Father kept changing his legal team, with each team taking different stance without knowing what had taken place previously.  There may be ongoing disputes over ILB’s upbringing which may touch upon her financial provisions.  To maintain consistency, all these matters should be dealt with by the same judge.  The Family Court is the specialist court which can hold CDRs under PD 15.13 which does not apply to the Court of First Instance[70]. 

146.As seen in section 43 above, this Court can transfer down of its own accord.  I am satisfied that there are no reasons such as importance or complexity of any issues for which the present proceedings ought to remain in the Court of First Instance.  Applications under the Guardianship of Minors Ordinance are within the jurisdiction of the Family Court and frequently dealt with by the Family Court.

147.Having considered all the circumstances of this case, I have come to the view that now is the appropriate time for the entire proceedings to be transferred down to the Family Court and to be dealt with under FCMP 234/2012.  

Mr Eugene Yim, instructed by Li & Partners, for the Applicant

Respondent appeared in person