D, M v. D, R (also known as R, R)

FCMC 1968/2009

[2021] HKFC 171

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 1968 OF 2009

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

Dates of Written submissions: 15 and 23 July 2021

Date of Ruling: 24 August 2021

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RULING

(Undertakings)

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Introduction

1.This Ruling follows the substantive judgment made by this court on the 4 March 2021. It almost goes without saying that these two documents should be read together.

2.In essence the Petitioner husband issued an application, in which he sought 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. In the judgment of the 4 March 2021 I gave a number of indications with respect to the remaining issues in dispute and at the end of the judgment I further stated as follows:

Further directions

38.  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.   

3.Unfortunately, at the hearing on the 6 July 2021, it soon became clear that there had only been limited progress with respect to the undertakings, with the wife attempting to reargue matters when indications had already been firmly given and the husband offering some alternative undertakings, which in turn fell outside of the scope of those indications. Consequently, the court further directed that the parties should file additional short submissions with respect to the undertakings proposed with a view to hopefully reaching some consensus. The court also stated that it would then deal with this matter in short form and that it would either accept the husband’s proposals/new undertakings or it would not, in which case the original undertakings would remain in place.

4.As a general point, the husband has stated repeatedly in his new proposed undertakings, that they should only be in place until the wife’s remarriage or permanent cohabitation. This principle is generally accepted in that in the event that the wife remarries then, in line with normal Family Court principles, the undertakings for the wife (as opposed to the children) would be expected to fall away in a similar way as a maintenance order. A similar approach is generally taken when a party permanently cohabits, although it is acknowledged that this can, on occasions, be harder to determine. In any event, although this is accepted as a general principle, it is not accepted that this should be stated throughout as a general pre condition to the new set of proposed undertakings. To that end it is of note that this issue has already been dealt with in the parties’ joint acknowledgement at paragraph E (vi) of the original court order. For the avoidance of doubt this acknowledgement shall not be discharged and shall remain in place.

The car and driver

5.As indicated in the judgment of the 4 March 2021, the husband’s proposal in this respect had already been accepted, as there had seemingly been broad consensus on this issue at the trial as follows:

UPON the Petitioner undertaking to the Respondent and the court to pay the Respondent a lump sum of HK$500,000 within the next 14 days in order to enable her to purchase her own replacement vehicle and for its associated costs, and for the Respondent to use this sum without restriction;

AND UPON the Petitioner undertaking to the Respondent and the court to pay for the wages for the driver up to HK$15,000 per month and any associated costs excluding agency fees; 

6.The wife now seeks to reopen this matter in her submission. As has already been stated now on several occasions this is not acceptable and will not be permitted. Had this been an issue previously then it should have been raised at the trial. It was not and I was told that there was broad agreement on the issue. For the avoidance of doubt therefore the Petitioner’s undertaking at recital E (vii) shall be discharged and the new undertaking as set out above shall be accepted in its place.  

Accommodation

7.In my judgment I stated, inter alia as follows, with respect to the issue of accommodation:

25.  … 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).

8.Consequently, the husband now further proposed as follows:

Petitioner's proposed undertakings

(a)   allow R to continue to reside at the FMH until 31^st August 2025.

(b)   provide R with a three or four bedroomed property (not necessarily a house, maybe an apartment) ("the Replacement Residence"), for a period of 4 years from 1^st September 2025 to 31^st August 2029 for her exclusive occupation. "Reputable area" means not necessarily in Shouson Hill. In the event of R's remarriage or permanent cohabitation (defined as 6 months or more) P is to be released from to be is undertaking.

9.The wife opposes the new undertaking on the premise inter alia that it is ambiguous and likely to cause more disputes between the parties. Although this may be the case, nonetheless the husband has attempted to broadly follow the indication given by the court. In such circumstances the husband’s new undertaking shall be accepted as follows:

AND UPON the Petitioner undertaking to the Respondent and the court to allow the Respondent to continue to reside at the former matrimonial home until the 31 August 2025;

AND UPON the Petitioner undertaking to provide the Respondent with a three or four bedroomed property (i.e. a house or an apartment), (‘the replacement residence”) for a period of 4 years from the 1 September 2025 to the 31 August 2029 for her exclusive occupation. Reputable area means not necessarily in Shouson Hill.

Therefore, the Petitioner’s undertaking at Recital D (i), (ii) (the body only not (a) – (g)) and (iii) shall be discharged.

The outgoings on the former matrimonial home

10.For the avoidance of doubt the indications made by the court at paragraphs 28 – 35 of the judgment dated the 4 March 2021 do continue to stand, but will not be repeated again here. In summary and as a general comment it was accepted that it was

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.   

11.To that end the Petitioner proposes as follows:

Petitioner's proposed undertakings

P undertakes to continue to pay until 31^st August 2025 for the FMH and thereafter until 31^st August 2029 for the replacement residence:

A.  The following items directly:

(a)  Government rent, Government rates and management fees

(b)  PCCW landline to include the cost of one IDD call to India for up to 60 minutes once every 2 weeks.

(c)  The current Netvigator broadband and NOW TV packages.

(d) Water, gas and electricity charges

and

B. The following items on a re-imbursement basis:

(a)  The cost of vacuum filters, cleaning liquid, dehumidifier refill packs, cleaning supplies for the home as incurred up to a maximum sum of HK$5,000 per annum.

(b)  Soap and medicine for the children as incurred.

C.  Additionally, P undertakes to continue to make direct payments until 31^st August 2025 for the FMH and, if the Replacement Residence is a house, for the Replacement Residence until 31^st August 2029 for the following:

(a)  The provision of a gardener as needed and associated costs.

(b)  If necessary, deep cleaning every 2 years and bi-annual fumigation.

(c)  The security system.

12.With particular reference to the IDD calls to India the judgment stated 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.   

13.Thus the husband’s proposed undertaking is accepted in so far as it relates to sub paragraph A. As indicated at paragraph 34 of the judgment although I accepted that under the terms of the original undertakings the husband was most probably liable to pay for some of the items related to general household cleaning etc, I also accepted that going forward the husband should only be obliged to pay for the actual overhead expenses and outgoings as specifically itemized, for the wife’s accommodation. This did not include those items referred to in new sub paragraph B above. For the avoidance of doubt, therefore, the husband shall not be obliged to pay for these items going forward and his proposed undertaking in this respect is not required. The proposed undertaking at C is broadly accepted as set out below in paragraph 16.

14.The new undertaking at A shall read as follows:

AND UPON the Petitioner undertaking to the Respondent and the court to pay until the 31 August 2025 for the former matrimonial home and thereafter until the 31 August 2029 for the replacement residence:

The following items directly:

(a)Government rent, Government rates and management fees

(b)PCCW landline to include the cost of one IDD call to India for up to 60 minutes every two weeks.

(c)  The current Netvigator broadband and NOW TV packages.

(d)Water, gas and electricity charges.

The wages and associated costs of the domestic helper/s and gardener     

15.In addition, the husband proposes to continue to pay for a gardener and associated costs, deep cleaning and bi annual fumigation and for the security system for the wife’s current residence and for the replacement residence in the event that it is a house. This is accepted.

16.Thus the new undertaking should read as follows:

AND UPON the Petitioner undertaking to the Respondent and the court to pay until the 31 August 2025 for the former matrimonial home and thereafter until the 31 August 2029 for the replacement residence, if it is a house:

The following items directly:

d) The provision of a gardener as needed and associated costs.

e) If necessary, deep cleaning every two years and bi-annual fumigation

f) The security system

17.Under the terms of the original undertaking the husband had also agreed to pay for the wages of two domestic helpers and their associated costs. In my judgment I indicted that this could be replaced by an undertaking to provide for one domestic helper only. In his proposed new undertaking the husband suggested as follows:      

Petitioner's proposed undertakings

to pay the wages of 1 domestic helper and any associated contractual cost (such as levy and return flights home but excluding agency fees) with effect from 1^st August 2021 until 31^st August 2025. Upon R's remarriage or permanent cohabitation as defined above P is released from this undertaking.

R is to nominate which of the 2 current domestic helpers she employs is to be covered by this undertaking and, in the event that there is a change, to inform P of the identity of the new domestic helper.

18.The difficulty with this is that the husband’s proposal is that he should stop making any provision in this respect after August 2025. This is not accepted. It is of note that there is no indication to this effect in the court’s judgment. Thus, and for the avoidance of doubt, the husband shall not be released from his undertaking at paragraph D (ii) (b) of the original court order. The remainder, i.e. recital D (i), (ii) (a), (c) – (g) and (iii) in the court order dated the 26 July 2010 shall be discharged and the undertakings referred to above at paragraphs 9, 14 and 16 shall be accepted in their place.  

The Aberdeen Marina Club

19.In my judgment I stated inter alia as follows:

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.

20.Unfortunately, however the husband proposed as follows:

Petitioner's proposed undertakings

to continue providing R with membership of the AMC until 31^st August 2029 and cover the costs of 2 personal training packages per annum.  R is to cover her own food and beverage costs incurred when she is not at the club with the children as well as her tennis and tennis tournament costs.  In the alternative he offers R up to HK$40,000 per annum for fitness activities. Upon R's remarriage or permanent cohabitation as defined above P is released from this undertaking.

21.The wife complains, and with some justification it seems to me, that this is a radical departure from the spirit and the intention of the original undertaking. It is also not fully in keeping with the indication given by the court. In particular, it is noted that the husband’s financial offer equates to approximately HK$3,333 per month. In such circumstances the husband’s proposed undertaking cannot be accepted. Consequently, the original undertaking at recital E (iv) do stand. For the avoidance of doubt the proposed replacement undertaking as set out above is not accepted in its stead.

Holidays

22.In my judgement I said inter alia as follows:

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.    

…

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.   

23.In light of this the husband proposed as follows:

Petitioner's proposed undertakings

(a)   pay for up to 3 overseas holidays per annum as set out in the order of 16^th September 2020 for R and the children until each child completes secondary education to cover 1 long haul and 2 short haul flights with business class air travel for R and economy class air travel for the children.

(b)   pay reasonable accommodation including hotel accommodation costs.

(c)   provide R with a credit card during the holidays to cover reasonable travel costs plus other reasonable incidental holidays costs such as tours and children's activities but excluding clothes, general shopping and not connected with the trip and food costs (which are covered by the monthly child periodical payments) and costs associated with any third parties (such as for example R's boyfriend). Accompanying third parties are to be wholly responsible for their own share of the cost of travel, any hotel room and other related costs.

The emphasis is on reasonable spending.

This is acceptable to R.

24.The wife seemingly accepts (a) and (b) but not (c). This causes some difficulty in that the original undertaking at recital E (v) is rather comprehensive and it is not easy to divide it up. Notwithstanding that the court shall accept the husband’s undertaking as follows:

AND UPON the Petitioner undertaking to the Respondent and the court to pay for up to 3 overseas holidays per annum as set out in the order of the 16 September 2020 for the Respondent and the children until each child completes secondary education to cover 1 long haul and 2 short haul flights with business class air travel for the Respondent and economy class air travel for the children and to pay for reasonable accommodation including hotel accommodation.

25.Further the husband’s undertaking at recital E (v) shall be discharged save that the Petitioner shall continue to provide the Respondent with an American Express Platinum card to cover incidental costs of such holidays.

Conclusion

26.The parties have been before the court before a different judge on a Financial Dispute Resolution hearing and ultimately the issue of the undertakings proceeded to a trial, which has then necessitated two determinations, this Ruling and the judgment dated the 4 March 2021. Although some progress has been made the outcome is still far from perfect. However, as far as the court is concerned this should really be the end of the matter, save for determining how much money either side may now owe the other. To that end the court indicated at the end of the last hearing that at this stage further directions may need to be given for the appointment of an arbiter, not to determine what has already been decided, but in order to go through the payments made to date, by reference to both the original court order, the judgment dated the 4 March 2021 and this Ruling, in order to determine whether or not the husband does infact owe the wife money, or indeed, if it is in truth the other way round. Thus the court anticipates that a Single Joint Expert may need to be appointed for that purpose – most probably from an accounting firm and in order to undertake a full audit most likely going back to the date of the original court order in 2010. Thus the court does not agree that the arbiter’s proposed by the wife would be appropriate in the circumstances. With that in mind it is further directed that both sides shall write to the court with their proposed arbiters within the next 14 days, whereupon further directions shall be given in relation to this issue.      

Costs

27.Neither party has been wholly successful with respect to the husband’s summons dated the 21 December 2018. Consequently, I shall exercise my discretion and make an order nisi to be made absolute in 14 days’ time that there be no order as to costs both with respect to this ruling and the judgment dated the 4 March 2021.      

Mr. Neal Clough instructed by Boase Cohen & Collins for the Petitioner

Mr. Azan Marwah instructed by Withers for the Respondent