Ccmj v. Ssm Formerly Known As Skl
Read the full judgment text of FCMP 67/2010 on BabelCite. This FCMP judgment was delivered on 10 February 2023.
1. The Applicant is the father, whom I will refer to him as “F”. I will refer to the Respondent mother as “M”. The child in question born out of the wedlock is now at the age of 14 years whom I will refer to her as “N”.
Cites 4 cases
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FCMP 67/2010 [2023] HKFC 31 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010 ________________
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____________________ J U D G M E N T ____________________ Foreword 1.The Applicant is the father, whom I will refer to him as “F”. I will refer to the Respondent mother as “M”. The child in question born out of the wedlock is now at the age of 14 years whom I will refer to her as “N”. 2.This is a piece of protracted litigation where there was 23 published Judgment(s) by the Family Court (“FC”), Court of First Instance (“CFI”) and Court of Appeal (“CA”) over the past 12 years. F had also taken out Wardship Proceedings for N to be made a ward of Court under HCMP No. 929 of 2017. In addition to the said 23 published Judgments, there was another round of 12 published Judgments in the Wardship Proceedings. 3.Amongst the numerous decisions at different levels of the courts, this Court handed down a 78-page Judgment on Financial Provisions on 5/6/2015. At the time of the Judgment on Financial Provisions, which I will refer to it as “5/6/2015 Judgment”, N was at the age of 7 and she is now at the age of 14. The bitterly fought trial lasted for 6 days and F was ordered after trial to pay, inter alia :-
4.Since the 5/6/2015 Judgment, F engaged in all other applications which could not be disposed of without a full blown trial and most of which, if not all, are followed by appeals on the court’s decisions. Over the past 12 years of protracted litigation, M was legally represented most of the time on legal aid. F instructed different reputable firms specialised in matrimonial practice and engaged different Senior Counsel, such as Mr Russell Coleman S.C. (as he then was), Mr Richard Todd K.C., Mr Paul Shieh S.C., Miss Anita Yip S.C., leading experienced junior counsel such as Mr Jeremy Chan in most of the substantive and lengthy hearings. 5.However, for those recent applications in this Court, F was acting in person. This Application and Chronology 6.Around 7 years after the 5/6/2015 Judgment, M took out a Summons for upward variation of N’s maintenance and her carer’s allowance to such sum as this Court may deem fit and appropriate. I will refer to M’s Summons as “M’s Variation Summons”. M filed her 31st Affidavit in support of her application. 7.M’s Variation Summons was first heard on 8/7/2022 and was adjourned for a 2nd hearing on 12/7/2022. Such short adjournment came about as there was an urgent need for M to try and explore some sort of financial arrangement/settlement with F given the fact that the One Silversea Property where she and N was residing and solely owned by F had been re-possessed by the mortgagee bank due to F’s failure to pay the mortgage instalments. The adjourned hearing on 12/7/2022 was further put back a few days to 15/7/2022 for the on-going negotiation. However, at the end, no financial settlement/settlement could be reached. M and the Child N was then under the fate of having to move out from One Silversea around the end of the month without the aid of any financial assistance from F, not to mention the arrears of N’s maintenance and M’s carer allowance which had been outstanding and unpaid since November 2020 (around 20 months by that time). M had taken garnishee proceedings which F contested the garnishee order(s) to be made absolute. 8.At the hearing on 15/7/2022 following the unfruitful negotiation, directions were granted there and then for F to file his affidavit in opposition and both parties to file their respective Forms E on 29/7/2022. M could then file her Affidavit in Reply (if any) on or before 5/8/2022, which was 7 days thereafter. It was further directed that M’s Variation Summons would be disposed of on paper. 9.M filed her Form E (in sealed envelope) on 29/7/2022 in compliance with the Order dated 15/7/2022 but F failed to do so. By way of letter dated 18/8/2022 (without a Summons), F sought extension of time for him to file his affidavit evidence and Form E. F repeated his requests by a further letter dated 19/8/2022 attached with some medical certificates. Broadly speaking and quoting from his letter, F said he was suffering from “dizziness, nausea, panic attacks, shortness of breaths resulted by major depression and anxiety and also got rashes as additional symptoms” and needed more time to handle the documents. 10.On 2/9/2022, this Court granted an extension of time on an “unless basis” up until 30/9/2022 (that is to say, another 28 days) for F to file his affidavit evidence and Form E and; in default of compliance, F would be debarred from filing any further documents (“unless order”). 11.On 21/9/2022, F again by way of letter (without a Summons) sought further extension of time until end of October to file his affidavit evidence and Form E. Such further and repeated letter of request was responded to by this Court on 28/9/2022 re-instating that the terms of the “unless order” dated 2/9/2022 stand. 12.On 30/9/2022, F filed his 48th Affidavit (“F’s 48th Affidavit”) which was a 31-page document containing 133 paragraphs together with 19 exhibits from “Exhibit 48-1 to 48-19”. F did not file any Form E nor had he provided any reasons for not doing so. 13.On 7/10/2022, M filed her 32nd Affidavit in reply to F’s 48th Affidavit”, which was 7 days after F’s 48th Affidavit so allowed by this Court as per the Order dated 15/7/2022[3]. 14.On 26/10/2022, F suddenly produced his Form E and managed to “file” it at the Family Court Registry without leave of this Court or consent from M’s lawyers. Other related factual background 15.By way of further background to the above chronology, F defaulted in maintenance payment for N and carer allowance for M since November 2020 (which was about 20 months). M was forced to take out garnishee proceedings on F’s bank accounts with Bank of China and HSBC, both applications were faced with F’s opposition to the respective garnishee order(s) nisi to be made absolute. At the end, Judgment on the garnishee proceedings was handed down on 11/8/2022 whereby the respective garnishee order(s) nisi was made absolute. 16.Faced with the mortgagee action taken by the Bank of China as mortgagee of the One Silversea Property under DCMP No.2538 of 2021 for recovery of possession, M took out injunctive proceedings to restrain F from disposing the net proceeds of sale of the One Silversea Property by the mortgagee bank. It was anticipated that there would be around 8 to 10 million of the net proceeds of sale. On 25/2/2022, M obtained an interim injunction which was still in place at the time of this Judgment and had yet to be further dealt with. 17.It was worth to mention that the Court of Appeal (with Hon Cheung JA giving the Judgment[4]) under CACV No.84 of 2021 had granted a “Hadkinson Order” on 26/1/2022 in the latest appeal lodged by F. The Court of Appeal allowed F to pay up N’s maintenance and M’s carer’s allowance by 28/2/2022. 18.However, prior to the expiry of the time for payment, F took out a Notice of Motion on 23/2/2022 seeking leave to appeal the “Hadkinson Order” to the Court of Final Appeal. This application for leave to appeal was dismissed by the Court of Appeal on 12/7/2022 with costs summarily assessed at HK$104,992. M’s own costs be taxed in accordance with Legal Aid Regulations[5]. Parties’ affidavit evidence 19.F’s Form E was produced for filing on 26/10/2022 in defiance with the “unless order”. In my decision, unless there was further time extension granted by this Court, which would only be granted on exceptional circumstances, F could not take the law to his own hands and chooses to “file” his Form E as and when he so wished or ready to do so. That said, I would not accept or consider F’s Form E dated 26/10/2022 as evidence in respect of his means or ability to pay in his case of opposition to M’s Variation Summons. 20.Having said, F would be left with his 48th Affidavit as evidence for opposition in which he had included other areas of contention but most of which was not related to M’s variation application. There are altogether 29 sub-headings in italics and underlined in F’s 48th Affidavit which I would set out hereunder solely for the sake of completeness since this application was disposed of on paper without any viva voce evidence. The 29 sub-headings in italics and underlined are :-
21.Going through each of the paragraphs in F’s 48th Affidavit and given them careful consideration, F’s grounds of opposition insofar as M’s variation application was concerned (emphasis added), could be summarised as follows :-
22.M in her 32nd Affidavit[6] in reply said F had referred to all sorts of irrelevant matters in his 48th Affidavit. M categorized her reply under the following areas :-
Paper Disposal 23.Before considering each of F’s grounds of opposition, it is important to say a few words on the use of “paper disposal” in this application which was commonly seen nowadays in the Family Courts. Given the need for expediency of court proceedings encompassed by the spirit of the Civil Justice Reform, Practice Direction No.37 was issued on 20/5/2022 to regulate the time frame for judgments reserved after conclusion of a hearing to be handed down. 24.For cases where there was substantial dispute of facts, paper disposal may not be appropriate as the parties’ credentials over their affidavit evidence or witness statements could not be determined without their testimonies fully tested through cross examination at the substantive trial. However, for cases where the issue(s) before the court are simple and straight forward which could be resolved without depending much upon the parties’ credentials, paper disposal of those issue(s) could be adopted in order to achieve expediency and/or for saving costs. The use of “paper disposal” is always within the court’s discretion exercised under its case management powers to regulating proceedings. The only caveat when exercising such discretions is that all parties should be afforded fair and equal chance of submitting their evidence in accordance with established rules of procedure. 25.Paper disposal had been used by this Court for resolving F’s opposition to M’s garnishee order(s) nisi to be made absolute. There was disagreement from F for paper disposal suggested by M’s lawyers[7]. Given the simple nature of the matter to be resolved, namely, the making of garnishee order(s) nisi absolute, and the need for expediency arising from the circumstances, namely, that F had defaulted in paying N’s maintenance and M’s carer allowance since November 2020, paper disposal was considered to be the appropriate mode for determining the issue of whether the garnishee order(s) nisi should be made absolute. The full Judgment was handed down on 11/8/2022[8]. 26.For the present application, the issue(s) before this Court as per M’s Variation Summons was whether N’s maintenance and/or M’s carer allowance, both of which was determined 7 years ago under the 5/6/2015 Judgment, need to be re-visited now, be it upward or downward. As a matter of fact, it was F who first saw the need to re-visit the amount of N’s maintenance and M’s carer allowance by filing his Summons on 5/10/2021 for variation downward of those money orders and also seeking to “withdraw” certain undertakings given by him on 12/6/2014. Undisputedly, M’s Variation Summons was only filed on 6/7/2022 which was some 9 months after F’s Summons for variation. 27.However, F’s Summons for variation was not proceeded further and was adjourned sine die with liberty for F to restore it for hearing pending the Official Solicitor’s Report on F’s mental condition for the fact that F had persistently claimed to have been suffering from mental conditions[9]. The Official Solicitor’s Report was available on 11/1/2022, which was about 6 months before M’s Variation Summons dated 6/7/2022 was issued. The Official Solicitor gave the view that F should be entitled to self-determination and appointment of next friend was considered unnecessary[10]. 28.Despite the availability of the Official Solicitor’s Report and the views therein, F did not restore his Summons for variation before the closing time for submission of evidence to dispose of M’s Variation Summons, the expiry date being 30/9/2022 so directed by this Court’s “unless order”. As at 30/9/2022, F had not even filed his Form E ordered by this Court for the purpose of M’s Variation Summons nor had he applied to restore his own Summons for variation. At that time, it remained a complete mystery as to whether F would be filing his updated Form E; and if so, when would he file it ? Besides, F’s stance in respect of restoration his Summons for variation was also unknown. 29.In such circumstances, paper disposal of M’s Variation Summons was considered reasonable and necessary. F’s grounds of opposition 30.Amongst the 133 paragraphs in F’s 48th Affidavit, there are about 18 paragraphs that had been extracted under (a) to (p)[11] above might bear some relevance to F’s grounds of opposition. The other paragraphs in the 48th Affidavit referred to other matters such as some historic events over the years, F’s personal views, perceptions or grievances[12] of these proceedings, F’s complaints over M’s handling of access, F’s financial situation should not be stereotyped by his place of residence in Kowloon Tong or his possession of club memberships, so on and so forth. F also included his criticisms against the Court of Appeal when conducting the hearing for the “Hadkinson Order” where he alleged that he was being unfairly treated[13]. F’s 18 paragraphs of opposition grouped under (a) to (p) 31.I will now deal with each of those 18 paragraphs by referring to the alphabetical paragraphs (a) to (p) in sequence. 32.On (a), the submission of informing the Court of First Instance or seeking the variation of maintenance via the Official Solicitor as N was being made a ward of the Court was a complete non-starter and unheard of. There was no such requirement, statutory or otherwise, for so doing as submitted by F. 33.On (b), the lack of quantified amount of maintenance for N or the carer allowance for M would not, in my decision, render M’s variation application otiose. Although there was no quantified amount stated in M’s Variation Summons per se, M in her 31st Affidavit in support of the variation application clearly stated 2 major areas of financial needs under :-
34.Without having had to refer F back to the mortgagee proceedings taken out by Bank of China over the One Silversea Property where M and N were residing after the 5/6/2015 Judgment, the loss of accommodation for M and N at the One Silversea Property was something imminent and determined to happen to the knowledge of F. Although once there was some discussions between F and M’s lawyers to “rescue” the dilemma, all efforts made were unsuccessful at the end. In F’s case, he said he had proposed that N could reside with him at the Kowloon Tong property after re-possession of the One Silversea Property and he had no strong objection for M to move in there as well. 35.The 5/6/2015 Judgment provides, inter alia, that the One Silversea Property be settled on trust for the use and benefit of N with M as the carer until N reaches 18 or ceases full time education, whichever is the later, with reversion to F. 36.The 5/6/2015 Judgment does not provide for N, with or without being accompanied by M, to live at F’s place of residence at Kowloon Tong as F had been offering. With the One Silversea Property being re-possessed by Bank of China as a result of F’s default on mortgage payments, it would only be fair and proper for F to arrange and pay for alternative accommodation for N commensurate with the standard of living at One Silversea Property in order to comply with the 5/6/2015 Judgment on N’s accommodation needs. 37.As at the date of M’s Variation Summons which was taken out in July 2022, M and N were still living at the One Silversea Property although vacant possession was required to be delivered to Bank of China in a couple of weeks’ time. M in her 32nd Affidavit in reply filed in October 2022 said she and N had already moved to a new address rented by her commensurate with the One Silver Property and produced some relevant documents as proof of evidence. In my decision, M had quantified the amount of maintenance increase in her 32nd Affidavit in reply although such quantified sum was yet to be known at the time of issuing M’s Variation Summons. 38.F’s other contention that it was unfair to him that M does not have to be responsible for her own costs of living was misconceived. Such contention rests upon an erroneous assumption that the carer’s allowance awarded to M under the 5/6/2015 Judgment had been spent by M on her own expenses. There was no evidence before the Court for such assumption except F’s assertion. 39.On (c), F was repeating his contention about lack of documentary evidence from M to support her variation application. F said M had been fabricating and speculating far-fetchingly in order to make him pay more money than what was actually required by N. 40.F’s contention must be considered within proper context and not in abstract or broad-brushing. It would only be correct for F to say M was fabricating or speculating expenses had M requested for a specific amount (emphasis added) whilst she was unable to provide documentary evidence to support or justify the amount she was claiming. This was not what had happened here. M was simply seeking variation upward to such amount (emphasis added) which the Court may deem fit and proper. The Court in every variation application would have to consider not only parties’ evidence, needs and ability to pay, and in appropriate cases, may even consider the matter afresh[14]. That said, the Court could and would also consider the circumstances which had arisen that lead to the variation application. 41.There was no dispute that F himself also saw the need to re-visit the amount of N’s maintenance and M’s carer allowance which was decided at the time when N was only 7 years ago. At present, which was 7 years later, N is now at the age of 14. 42.Whilst the parties’ stance as to variation are at sharp difference, there was the common view that it was the right time to re-visit what was decided 7 years ago, be it an upward or downward variation, given the time that had elapsed and all possible change of circumstances that had happened including N’s needs after 7 years. Hence, there are cross applications for variation although running in opposite and not in parallel before this Court. 43.On (d), F’s submission on his intended or planned use of the net proceeds of sale of the One Silversea Property could hardly be accepted as ground of opposition to M’s variation application. 44.On (e), F’s submission of the funds that he had borrowed were “frozen” by M’s garnishee proceedings could not be accepted as ground of opposition to M’s variation application. M was actually exercising her legitimate right of enforcement to recover unpaid judgment sum(s). 45.On (f), F was attempting to classify and quantify each item of expenses that was required by N and his payment of them. This would only be a live issue to be considered upon F’s variation application. Given the fact that M was only seeking to vary upward N’s maintenance generally (emphasis added) without specifying what particular item of expenses that need to be varied, it is superfluous to drill into each and every item of N’s expenses to see whether F had paid them or not. Hence, such submission could not be taken as ground of opposition to M’s variation application at this stage. Given that F did not restore his application on time to catch up with M’s variation application, it would be highly unfair and improper to take such contention on board as a ground of opposition at this stage. 46.On (g) and (h), F was only stating his views and wishes for global resolution of N’s maintenance rather than putting forward any ground of opposition. 47.On (i), F was again stating his views on arrangement rather than putting forward any ground of opposition. 48.On (j), F’s submission would only be considered in his variation application rather than taking it as his ground of opposition at this stage. 49.On (k) and (l), there was no evidence to support F’s assertions. 50.On (m), F was again stating his views rather than putting forward any ground of opposition. 51.On (n), M’s past financial means, even if that was the case as F had said, could not be taken as her present financial position for determining her variation application. 52.On (o), F’s submission of his doctors’ opinion could not be accepted as ground of opposition. 53.On (p), F referred to his comments on M’s care and control of N in the past. The medical certificates referred to in paragraph 49 as Exhibit 48-9 are all dated back to 2013 and 2015 which had already been considered in the earlier decision on custody, care and control. None of them could be taken as ground of opposition at this stage (emphasis added). 54.For all the above reasons, I find F was unable to put forward any legitimate grounds of opposition to M’s variation application. 55.Accordingly, I decided that N’s maintenance and M’s carer allowance under the 5/6/2015 Judgment would be re-visited. The Variation 56.M filed her updated Form E on 29/7/2022 in compliance with the Order dated 15/7/2022[15]. Since F did not file his Form E at that time but only chose to do it later, M’s Form E was enclosed in a sealed envelope in accordance with the Practice Direction. As said earlier, F’s updated Form E was only filed on 26/10/2022 in defiance of the “unless order” and without obtaining further time extension from this Court or consent from M’s lawyers. F’s Form E would not be considered. 57.Having said, without mutual exchange of updated Forms E between F and M, it may not be proper for this Court to just rely upon M’s updated Form E to work out the amount for the variation when F did not have the chance of reading M’s updated Form E despite such bizarre situation was wholly created by F. 58.Given such situation, I decided to work upon the amount for the variation by referring to the facts set out in M’s 32nd Affidavit in reply and cross reference to the 2 major areas of financial needs stated in her 31st Affidavit. I understand that both Affidavits had been properly filed and served upon F. 59.On accommodation needs, M and N had now moved to a newly rented apartment of commensurable size to One Silversea at the rental of HK$22,000 a month since 1/9/2022. M had paid 2-months’ rental as deposit, estate agent commission at HK$11,000, moving costs of HK$6,600 and set-up costs of not less than HK$5,500 which M labelled them collectively as “One-Off Expenses”[16] all of which are well documented. The “One-Off Expenses” added up to HK$67,100. The rent paid so far since 1/9/2022 (commencement of tenancy) including the rental payment fall due on 1/2/2023 was 6 months totalling HK$132,000 (HK$22,000 x 6 months). 60.The total sum of the “One-Off Expenses” and the rental paid added up to HK$199,100 (HK$67,100 + HK$132,000). 61.I have reminded myself that F was not legally liable to pay M’s contractual liabilities such as rental under the Tenancy Agreement that she had signed for the newly rented accommodation. However, since M is the custodian parent and carer of N who had been forced to leave the One Silversea Property, and that N is a minor not capable of signing the related Tenancy Agreement, I accept and find that the rental liability for the newly rented apartment was incurred by M for the use and benefit of N although M would also have to live in there to take care of N, which was the same situation when both of them were residing in the One Silversea Property. 62.I do not intend to apportion or crave out M’s share of the rental payment of HK$22,000 for her own use and occupation given the fact that there was no such finding of apportionment in the 5/6/2015 Judgment on M’s share or portion of the accommodation expenses. I accept and find that such rental expenses, being the accommodation needs of N in place of the One Silversea Property, should be taken as part of N’s maintenance in the round and to start from 1/9/2022. 63.For the other items under the One-Off Expenses, namely, rental deposit, estate agent commission, moving costs and set-up costs, in respect of which the rental deposit was a refundable item, they would not be taken as N’s maintenance although they might be categorized as payments for the “immediate and non-recurring” needs of N defined under Section 10(2)(a) of the Guardianship of Minors Ordinance, Cap.13. As there was no such claim for reimbursement in M’s Variation Summons, they would not be considered in this application. 64.On N’s monthly periodical maintenance of $13,726, it was assessed upon M’s evidence and Form E filed back in 2015 by going through those items of expenses in her Form E. M’s carer allowance of HK$10,000 per month was likewise assessed. 65.There was no definitive amount of increase sought by M in her Variation Summons. Although M had filed her updated Form E on 29/7/2022 which must have set out the latest expenses that are incurring for N, it was unfortunate that such updated Form E could not be considered in this application for the reasons aforesaid[17]. In my decision, it would be fair and reasonable for the original amount for N’s maintenance to continue for the time being (emphasis added) and top up with the additional sum of HK$22,000 of rental expenses, thus making the sum of HK$35,726 (HK$13,726 + HK$22,000) a month for N’s expenses. 66.On M’s carer allowance, the situation is the same as in N’s case. I decided that for the time being (emphasis added), the amount of M’s carer allowance of HK$10,000 shall continue. 67.As repeatedly said in this Judgment, the original amount of HK$13,726 and HK$10,000 per month respectively for N’s maintenance and M’s carer allowance was decided 7 years ago. If one is to take into account the time factor that had elapsed and the inflation factor for 7 years since 2015, let alone any other factors stated in M’s latest Form E, it was likely and more probable than not that an increase in both amount would be justified. 68.Maintaining the original amount for the time being (emphasis added) poses no injustice or prejudice to the parties since variation applications could be lodged from time to time during subsistence of the financial order(s) under the 5/6/2015 Judgment whenever there was any change of circumstances, objectively speaking. Conclusion 69.For all the above reasons, I concluded that, for the time being (emphasis added), N’s maintenance be varied to HK$35,726 a month and M’s carer allowance to continue at HK$10,000 a month. 70.The varied sum of N’s maintenance of HK$35,726 to start from 1/9/2022. Costs 71.M had failed in varying her carer’s allowance but only succeeded in varying N’s maintenance. However, judging M’s variation application in the round and in context, it was F who had failed to file and serve his Form E within the original timeframe of 29/7/2022 and further by his defiance with the extended time given to him under the “unless order”. This had led to M’s Form E, which was filed on 29/7/2022 in full compliance with the original court order dated 15/7/2022, could not be considered by this Court on reason of procedural fairness and justice to F. 72.Hence, it would be wholly unjust and unfair that M could not have her costs of this application through no fault of her own. And I will so order accordingly. Orders 73.I now grant the following Orders :-
74.This is a costs order nisi which would become absolute if no application to vary the same was made within 14 days from the date of this Judgment.
Applicant unrepresented and acting in person Miss Chloe Chow of Messrs. Stevenson, Wong & Co, Solicitors for the Respondent on the instructions of the Director of Legal Aid [1] §180 (c) of the 5/6/2015 Judgment [2] §180 (e) of the 5/6/2015 Judgment [3] See paragraph 8 of this Judgment [6] See paragraph 4 of M’s 32nd Affidavit [7] See paragraph 21 of the Judgment dated 11/8/2022 [9] See paragraph 24 of the Judgment dated 11/8/2022 [10] See paragraphs 25 and 26 of the Judgment dated 11/8/2022 [11] See paragraph 20 of this Judgment [12] See paragraph 25 and 112 of F’s 48th Affidavit [13] See paragraphs 21 of F’s 48th Affidavit [14] See AEM v VFM (Variation of Maintenance) [2008] HKFLR 106 [15] See paragraph 8 of this Judgment [16] See paragraph 12 of M’s 32nd Affidavit [17] See paragraph 57 of this Judgment |
Cases cited in this judgment
Further hearings and rulings under FCMP 67/2010