Csf v. Hyc

FCMC12661/2014

[2023] HKFC 231

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 12661 OF 2014

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JUDGMENT

(Variation of child maintenance / Backdating)

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Introduction

1.In this Judgment, I shall refer to the Petitioner as “the Father”, the Respondent as “the Mother”, and the only Child of the family, a boy born on 7 August 2006, now aged 17, as “P”. 

2.By a Notice of Application for Ancillary Relief filed by the Respondent on 18 August 2020, the Mother seeks the following ancillary relief against the Father for and on behalf of P:

“- Provide a monthly payment of HK$19,000 (to be adjusted in the future in line with the inflation rate of Hong Kong S.A.R.), starting with a back payment from October 1, 2019 and as long as [P] lives with the Respondent, taking into account the stipulations mentioned in paragraph (6)(a) of the Settlement Agreement (attached); the proposed monthly payment of HK$19,000 is meant to cover standard, recurring daily costs;

- Pays for any medical costs of [P] since October 1, 2019 and in the future, including medication, dental, vision, injuries, behavioural therapy and any other medical consultation and medical procedure, as he is legally obliged to do so;

Pays for any school-related costs since October 1, 2019 and in the future (including school uniform, shoes, books, supplies, and a computer that complies with the school requirements, etc.), as he legally obliged to do so;

Pays for any other costs which are not considered part of the standard, recurring monthly expenses.”

3.The Mother by and large maintains her claims above at Trial. In her Closing Submission, she confirms her positions as follows:

“a) The payment of a lump of HK$601,649 for the expenses of [P]'s upbringing, education, and healthcare for the last 40 months.

b) The payment of a sum of HK$18,278 per month for [P]'s living expenses from February 1, 2023, onwards, to be adjusted according to the CPI index of Hong Kong on a yearly basis.

c) The payment of [P]'s living expenses until he has finished his higher education studies, including the education-related costs, which will increase in the future.

d) Payment of [P]'s healthcare expenses in the future, as stipulated in the Settlement Agreement. [the Father]'s is perfectly capable of covering these costs thanks to his employer.

e) Give access to [P] to his education savings of US$18,656.97 (on Aug 9, 2022) for higher education and to [P]'s Hong Kong bank accounts when he turns 18.

f) Payment of HK$421,200 for the tax savings that [the Father] has made in the last three years at [the Mother] and [P]'s expense - see paragraph 31 below for more details.”

4.The Father opposes all of the Mother’s claims as itemised above. Throughout Trial and in his Closing Submission, he maintains that:

“… the total reasonable monthly maintenance for [P] should be $6,680/month, and that I the Petitioner should continue to pay $5,000/month, or half of the sum deemed by the Court as the total reasonable monthly maintenance expenses for [P], or whichever sum is the lesser of the two.”

5.Both parties gave evidence at Trial. Two witnesses were called by the Mother in support of her case, namely her current husband and a friend of the Mother in wanting to make reference to the standard of living of an expatriate family residing at Discovery Bay area.

Relevant Background

6.At the time of Trial, the Mother was 47 years old and the Father was 46 years old. They married in 2001 and the parties divorced in 2014 by the Petition filed on 24 September 2014. The parties reached a settlement over child and finance matters through the process of mediation. Their agreement was reduced into a Settlement Agreement signed by the parties dated 10 June 2015[1] (“Settlement Agreement”). Decree Absolute was pronounced on 13 October 2015.

7.As to the Settlement Agreement, the following summarises the terms insofar as they are relevant to the present application:

(i)    There was a clean break financial settlement between the Father and the Mother;

(ii)   The parties are to have joint custody of P with sole care and control of P to the Father and reasonable access to the Mother;

(iii)  The Father shall be solely responsible for all the expenses of P until P reaches 18 or complete full-time education, whichever is the later;

(iv)  The Mother shall be responsible for P’s expenses during the time the Mother has access to P;

(v)   The parties agree to discuss from time to time the possibility of voluntary financial contribution by the Mother to P’s education on the basis of P’s needs and the Mother’s ability to contribute; and

(vi)  Both parties acknowledge that they have consulted their respective solicitors before signing the Settlement Agreement and they acknowledge that they understand the contents and the terms of the Settlement Agreement and their respective own rights.

8.The Settlement Agreement has subsequently been submitted to Court and was attached to the Consent Order of HHJ Melloy dated 24 September 2015[2] (“2015 Consent Order”), with, inter alia, all of the above terms being adopted as undertakings and/or terms of the order.

9.Since the making of the 2015 Consent Order, there is no dispute that in around 2016, when P was then 10 years old, he was diagnosed with ADHD and since had been receiving treatment for the same. Notwithstanding some communication issues between the parties in relation to access arrangements from time to time, the parties generally abided by the 2015 Consent Order. P commenced secondary education in September 2018 in HKCC and the care arrangements remained more or less the same.

Change of Circumstances in 2019 -2020

10.By 2019 there had been some change of circumstances and I say so without going into the rights and wrongs of either party. The changes, in my view objective, can be summarised as follows:

(i)     P had just entered secondary education at a new school. Understandably he was adjusting to a new environment, at the same time receiving ongoing treatment for ADHD;

(ii)    In early 2019, the Mother communicated to the Father that she was depressed and in poor health and had been advised by doctors to take six months off work. At the same time the Mother decreased the frequency of her access, and consequently, her contribution to P’s expenses during her usual access times;

(iii)   In around March 2019, the Mother left Hong Kong without notifying the Father and thereby did not exercise access to P for a few months;

(iv)   It was later revealed that the Mother had travelled overseas including to Chile, where she took part in a trail run and claimed third place in around May 2019;

(v)    It was also later revealed that the Mother remarried on 1 June 2019, in Chile to her present husband, who was born and brought up in Europe and at all material times works as a consulate where he would be stationed in various countries including Chile and Hong Kong. He has two teenage children from his previous marriage;

(vi)   At around the same time, on 8 June 2019, the Father also remarried to his present wife who at all material times worked at a college in Discovery Bay Hong Kong (“the college”). Later in 2022 a pair of twins were born by his new family. The wife has a teenage daughter from her previous marriage;

(vii)  The Father at this same time, through his new wife, was in the course of arranging P to change school to the college;

(viii) On around 28 September 2019, P on his own initiative went from the Father’s residence to the Mother’s residence and since then had started living with the Mother until present. The parties each have a different understanding of the reasons why P changed his residence. Be that as it may, it remains a fact that the de facto care arrangement of P was changed since this point of time;

(ix)   Then in around February 2020, the Mother together with P travelled to Chile and it is not disputed that the Mother did not seek the Father’s prior consent on this. The Father subsequently sought the assistance of the Department of Justice for an application under the Hague Convention on the Civil Aspects of International Child Abduction. P and the Mother returned to Hong Kong in July 2020;

(x)    The Mother, shortly after returning to Hong Kong, filed her present application in August 2020;

(xi)   P was changed to the college in September 2020. 

11.At present, P remains a student under the college. The Mother’s current household in Hong Kong includes the Mother and her current husband, P, and the aforesaid two children from the previous marriage of the Mother’s current husband, i.e. a household of five; on the other hand, the Father currently lives in a household of seven including his current wife, his mother-in-law, the aforesaid three children and a domestic helper.

12.As to the employment history of the parties, the Father followed the Mother and came to Hong Kong in 2002 from the US and started working in Hong Kong since 2002 as a teacher. At all material times, he had been and still is working as a lecturer in a university in Hong Kong. By his Form E dated 14 December 2022[3] his reported monthly income was at around HK$124,645 per month and his monthly expenses reported to be at around HK$136,931, inclusive of HK$5,000 interim child maintenance to P under the Order of HHJ C. K. Chan dated 18 November 2022[4].

13.The Mother completed her tertiary education in Business Administration in Hong Kong and subsequently met the Father during an exchange programme in the US. Since P was born, the Mother was a full-time housewife for the initial 6 years or so, before gaining full-time employment in around 2012 up till she resigned in early 2019. She admitted in Court that she was earning HK$80,000 to HK$90,000 per month prior to the resignation of her last job.

14.The Father claims that the Mother’s professional profile remained on a company website only until after these proceedings had begun. After the Father complained to the Court about it, the Mother deleted the profile from the internet some time in 2021 shortly before a court hearing. Whenever the true time of resignation may be, the Mother has not re-entered the employment market since and remained as a housewife till present. As reported in her Form E dated 9 December 2022[5], she has a self-owned landed property at Discovery Bay of which she is able to attract HK$18,000 monthly rental income. Her claimed monthly expenses amounted to HK$57,953.66, which includes HK$15,190.84 as child expenses. It is noted that accommodation costs are covered by a housing allowance of HK$100,000 per month from the Mother’s husband[6].

Applicable Legal Principles

15.The Court has power by virtue of section 11 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) to vary or discharge an order for financial provision:

“(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.”

16.In exercising the powers conferred by section 11 MPPO, section 11(7) MPPO requires the Court to have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates.

“(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death.”

17.It is trite that the modern approach in dealing with an application for variation of maintenance is to look at the case de novo. The Court is not required to proceed from the starting point of the original order but the basis and intended effect of the original order are relevant factors to consider and proper weight should be given to it: see AEM v VFM [2008] 3 HKLRD 36 [14]:

“4. The modern approach, as required by section 11(7), is for the Court to consider all the circumstances of the cases. The Court is not required to proceed from the starting point of the original order but look at the matter afresh : Flavell v. Flavell [1997] 1 FLR 353 at 357B following Lewis v. Lewis [1977] 1 WLR 409 and Garner v. Garner [1992] 1 FLR 573.

5. Any change in any of the matters to which the Court was required to consider when making the original order was one of the circumstances to be considered.

6. Almost invariably, an application to vary an earlier periodical payment order will be brought on the basis that there has been some changes in the circumstances since the original order was made, for example, continuing inflation; the increased costs in supporting a growing child and that one party may be more adversely affected than another by the increase in the costs of living: Garner v. Garner.

7. An increase in the wealth of the husband was a relevant factor to be taken into account : Primavera v. Primavera [1991] 1 FLR 16 and Cornick v. Cornick (No. 2) [1995] 2 FLR 490.

8. At the same time the basis and intended effect of the original order are relevant factors to which the Court on variation should pay regard and there should not be a radical departure from the approach taken by the parties themselves when they had entered into an agreement embodied in a consent order : Boylan v. Boylan [1988] FLR 282.”

18.It was acknowledged that in practice, applications for variation were brought almost invariably on the basis that there has been some change in circumstances since the original order. Normally, the earlier order would not be varied unless it can be proved that there has been a material change in circumstances: see HCTT v TYYC [2008] 5 HKC 863 [15] and [16]:

“15. But as Garner v Garner [1992] 1 FLR 573 shows that does not mean that the earlier order, whether made by consent or not, carries no weight. How much weight should be given to the earlier order must depend on the circumstances. Cazalet J said in the English Court of Appeal:

“Almost invariably, an application to vary an earlier periodical payments order will be brought on the basis that there has been some change in the circumstances since the original order was made; otherwise, except in exceptional circumstances, the application will, in effect, be an appeal. If an order is not appealed against, or is made by consent, then the presumption must be that the order was correct when made. If it was correct when made, then there will usually be no justification for varying it unless there has been a material change in the circumstances. However, because of the impact of continuing inflation, because children grow older and cost more to support and because, for example, the cost of living in its increase may hit one party harder than another, it will usually follow that, if time has passed, there will inevitably have been some changes in the circumstances, and in particular in the financial circumstances, of the parties concerned.

Following Lewis v Lewis, by which decision this court is bound, a court on the hearing of an application to vary is fully entitled to look at all the relevant matters set out in s. 25 of the Matrimonial Causes Act 1973. On occasions, the court may be slow to accede to an application to vary a consent order; not least because the parties’ solicitors might otherwise be deterred from either seeking to negotiate such a provision or to achieve finality. Another factor which may influence a court will be the time that has passed since the original order was made. If an application consequent on an order is brought very soon after that order has been made, the court, in normal circumstances, is likely to attach more weight to the earlier order than if it had been made some years previously. Likewise, the court would expect to pay full regard to any special terms agreed between the parties at the time the original order was made - as, for example, when endorsements on briefs or contemporaneous correspondence show that an agreed order has, for some particular reason, been set at an artificially low figure. Shortly stated, the court must decide what weight it should attach to the original order and all the surrounding circumstances. However, once an application to vary is before it, the court is fully entitled to make an order considering all the circumstances afresh, paying such regard to the old order as may be thought appropriate.”

16. Thus, although the jurisdiction to vary is untrammelled, normally the earlier order would not be varied unless there has been a material change in circumstances.”

19.The Court may exercise its discretion to terminate payments and to backdate the variation ordered: see AEM v VFM (supra) [15]:

“1. The court has an almost unrestricted power to vary its own order retrospectively and to backdate any variation which it makes in a pre-existing order beyond the date of the application for variation.

2. In practice, orders are not usually backdated to a date prior to the notice of application to vary unless the justice of the case so requires.

See Rayden and Jackson on Divorce and Family Matters (18th ed., 2005) Vol. 1 para. 18. 25 and the cases cited.”

Issues

20.Based on the factual background stated above, it is abundantly clear to me that notwithstanding the 2015 Consent Order, there has been clearly material change of circumstances warranting the Court to examine the present needs of P as well as the financial abilities of the parties afresh. P was 9 years old at the time of the Consent Order in 2015, he is now 17. His financial needs are different in every aspect.

21.I note the Father testified that to his understanding, P once informed him he did not wish to go to university. If indeed for whatever reason P did not continue with full-time education, then naturally his maintenance will cease upon reaching 18. This much is clear. The Father was not suggesting P’s maintenance should cease in any event even if he attends university. The Father at all material times has actually maintained an investment portfolio titled ‘Education Savings’ for P with USD18,656.97 credit as at Trial[7], intending for P’s university expenses.

22.On the other hand, the Mother was proposing that P would attend university in Europe, either in Belgium, France, or the Netherlands. There ought to be little dispute, if any at all, that both parties would support the proposition that P would engage in tertiary education insofar as his abilities permit. In other words, neither party is advocating that financial maintenance for P ought to stop when P reaches 18, namely in August 2024. As such, doing the best I can by applying the above guiding legal principles to the available evidence before me, is to work out the reasonable needs of P on the assumption that he would complete secondary education in 2024, then enter and complete a university first degree. P is now studying his final year at the college and is anticipated to start university in September 2024, just after he reaches 18. 

23.Accordingly, the issues identified for this application is therefore as follows:

(i)     What are the reasonable needs of P both at present and in the remaining years of his full-time education?

(ii)   What is the ability to pay of the Father?

(iii)  What is the ability to pay of the Mother?

(iv)  In the event both parties are to contribute to P’s reasonable expenses going forward, what ought to be a fair proportion to be shared between the parties? and;

(v)   Whether backdating child maintenance as claimed by the Mother is justified in the circumstances and if so, what would be a reasonable amount?

Analysis

24.Before I go into each claimed item on P’s expenses, I wish to repeat what I have said to the parties at Trial, namely that they ought to acknowledge the efforts made by the other in raising P at different stages of his minority years, both in the sense of providing care as well as providing financial support. For the Father, he took care of P since the divorce up till 2019; and for the Mother since 2019 till present and ongoing. I have asked parties to acknowledge this fact that both of them, in their own respective ways, love P and only want the best for P.

25.I pay heed to the content of the Social Welfare Report dated 8 February 2021[8] and Updated Social Investigation Report dated 7 January 2022[9] as well as the Government Psychological Report dated 11 January 2021[10] (collectively as “the Reports”) where they provide me with a flavour of the characteristics of the relevant parties, especially P, and in return allowing me to understand his needs better for the purpose of this application.

26.The surrounding dynamics of P is important, including the parties’ respective current family members with half-siblings of P coming from the parties’ respective previous marriages. It was reported therein that P, perhaps contributed by his ADHD condition, has developed an inflexible personality. Notwithstanding the Reports’ focus was on custody related matters including the challenge faced by the Father in relation to a rather difficult father-and-son relationship with P, that somehow the Father did not gain trust and acceptance from P who was fearful and anxious in interacting with the Father in recent years. I find it helpful in understanding the above and I take the view that the personality of P in this matter will have a bearing on how one is to assess the type of activities he engages in and/or the amount of money to be spent on certain items.

27.The information from the Reports also reinforces my belief on the doubly efforts the Father must have made in earlier years (and perhaps also in recent years in relation to access and ongoing on his part) while P was under his care since divorce. It was also clear to me by the 2015 Consent Order that, back then the understanding was for the Father to primarily care for P in going forward. While the Mother may criticise the caring ability of the Father – as she claimed P ran away from the Father’s care in 2019 due to ongoing father-and-son conflicts, implying a lack of caring ability on the part of the Father, I reject such contention. To the contrary, this is a father who was prepared to shoulder both care and financial responsibility of P when exiting from his marriage with the Mother and he had, as a matter of fact, been able to manage persistently for a substantial period of time before P chose to live with the Mother instead.

28.Similarly, the Mother’s efforts since receiving P under her care in 2019 must also be recognised. I accept that when P sought the Mother’s care in 2019, for whatever reasons, the Mother compromised her own planning in order to accommodate her loving son’s wish to live with her going forward. Whether it was the Mother’s marriage with her present husband in Chile, or the Mother’s act in removing P from Hong Kong during high time of COVID-19 was out of prudence, albeit unlawful (the Mother has repeatedly apologised for this), this was a mother who has clearly made sacrifices on her part for the sake of P, in trying to provide the best upbringing for P for his secondary education in Hong Kong, accompanied by regular treatments of his special needs.

Issue 1: Reasonable Expenses of P

29.Both parties have provided the court with table of expenses of P as part of their evidence, in support of their respective claims. In determining the first issue, namely what is the reasonable amount of monthly expenses of P, for ease of reference, I shall repeat them here:

[The Mother]

Statement of [P]’s Actual Monthly Expenses (in HK$)

Full tuition per month: HK$18,713

	Monthly	Trial Bundle(pages)	Remark
SCHOOL COSTS	2,412.50
School Fee (not incl. exam fees)	1,666.67	186	After employer’s contribution
School Clothes and shoes	250.00
School Supplies and books	125.00	156 (Oct 27), 158(Sept 3)	Purchases throughout the year
School activities/PTA/Sports	370.83	155 (Oct 31), 156 (Oct 31), 183-185	(950+700+900+950+950)}/12
ACTIVITIES	2,660.42
Trumpet	1,612.50	126(Oct 13), Nov (LAW HF)	(2334.1+1800)/2
Self-defense class	905.00	187-190	(3060+350+250+250)/3
Bike maintenance & parts	83.33	160 (Oct 8 & 27)	(677.8+613)/12. Bike services 2x/yr. [P] pays the rest from his part-time salary
Bike races	59.58	126 (Oct 17), 159 (Sept 26)	($195+$80)/race × 2 + $165 yearly race & insurance
HEALTHCARE	515.00
Discovery Bay Medical Center	333.33	153 (Sep 22), 156 (Oct 11), 160 (Oct 24)	$4000 (4 times per year)
Dental	115.00		$1380 per visit
Queen Mary Hospital	66.67	566 (65) every 3 months	$200 include transportation ×4 Paid by Octopus
TOTAL	515.00
BASIC EXPENSES	10,225.22
Pocket money	1,800.00	124 (Sep 10/16/24/30)
Vitamin supplements	445.00	153 (Sept 24), 159 (Sep 28), 160 (Oct 14/24)	(473.84+454.54)/2
Clothes and shoes	375.00
Haircuts	66.67	Cash Cut and Shave in DB	$200 per time × 4
Food	4,562.50	211 – daily food items	Special focus on food intake
Dine out	650.00
Transportation (activities & hobbies)	458.33		Ferry, MTR and buses
Mobile	98.00	156 (Oct 11)	$98 × 100%
Wifi	96.50	156 (Oct 15)	$386 × 25%
Netflix	23.48	156 (Oct 17)	$93.9 × 25%
Spotify	24.75	156 (Oct 17)	$98.98 × 25%
Utilities (Gas, Water, Power)	1,125.00	By Cash pay at 7-11 (3000 sq feet)	$4500 × 25%
Miscellaneous (body care …)	500.000	153(Sep 12/14), 155 (Oct 26/27/28), 159 (Sep 7,26 &28)
TUTORING	3,900.00
Math Tutor	3,900.00	21, 23, 180 (9), 197	Future cost, no receipts yet
GRAND TOTAL	19,713.14

[The Father]

Past Actual Expenses, and Current Reasonable Expenses, as Inferred from Expenses from September 2018 to August 2019.

Table 8.3: Monthly and Yearly Child Expenses, September 2018 to August 2019
	Actual Expenses September 2018 to August 2019		Reasonable Current Expenses, based on established standard-of-living in 2018-19, and before
Item	Monthly	Yearly	Monthly	Yearly
1.)  School Fees	$4,100	41,000	0	0
2.)  School books and supplies	250	3000	$42	$500
3.)  School lunch, bus, and pocket money (10×1000)	1000	10000	640	640
4.)  School uniforms	166	2000	166	2000
5.)  Food and Clothing	2500	30000	2500	30000
6.)  ADHD Treatment		8000	0	0
7.)  Non-school transport	200	2400	250	3000
8.)  FT Domestic Help (salary + food + rented boarding house)	5000+1000 +1500=7500	90000	0	0
9.)  Trumpet lessons	1665	19990	1665	19990
10.) School extracurricular activities	83	1,000	83	1000
11.) Scouts	250	3000	250	3000
12.) DB Pirates Rugby	10	125	10	125
13.) ABRSM Grade 5 2019	142.5	1710	142.5	1710
Monthly cost of maintenance for [P]’s reasonable needs:			$5,706.5

30.As I have stated earlier, P will cease secondary education in the summer of 2024. As such, it is my view that it would not be necessary to go into each item above since these figures will no doubt be subject to further material changes depending on the location of his expected tertiary education. I have decided to look at the figures in the round and focus on the more substantial items.

Education related costs

31.I accept the Mother’s figures, especially that the Mother has, through her current husband’s employment benefits, received education allowance to substantially lower the school fees of P. However, I do not accept this equates the Mother’s contribution in the sense that she ought to be compensated, as she claims. This is clearly a benefit and not an actual expense. As to extra tuition, I accept that albeit without receipts, given P will be facing an important year in his academic studies with public exams which would certainly has a bearing on his university choices, the Mother’s claim for mathematics tutoring for P is justified. It is of note that this is not a mother who has spent substantial amount on extra tuition nor one who arranges a child to numerous extra tuition classes. The Mother has identified mathematics being the subject P requires more help, upon the advice of the school, and I accept the figure she claims, namely HK$3,900 per month, is reasonable.

Extra-curricular Activities (“ECA”)

32.A total of HK$2,660.42 is claimed by the Mother and mainly consists of trumpet and self-defence classes. These are not new hobbies and in my view, considering P’s personality, it is certainly congruent with his best interest to have a balanced life with a sport and a music hobby. The ECA claims are reasonable in my view.

Pocket Money

33.By giving P HK$1,800 pocket money per month, i.e. around HK$60 a day, this also tells me that this is not a mother who overly indulge her child financially against the fact that P is prima facie residing at an abode worth around HK$100,000 rental per month. There is evidence that P has been arranged to help at a mountain bike garage and earning some very modest money by himself. P enjoys this since cycling is his hobby too. I view this item as reasonable.

Household Expenses

34.For Food, in gist, the Mother claims that she has devised special diets for herself as well as for P and thereby claims HK$4,562.50 per month for P. These are all meals at home (as there is a separate item on dining out) and I do think this figure is on the high side when compared to P’s overall expenses. P will soon be entering university and I doubt his current diet as arranged by the Mother will continue in any event. Noting that there are other household members I take the view that a reasonable figure for food would be HK$2,500 per month for P’s share.

35.As to utilities, similar to school fees, I am aware that the husband of the Mother has housing allowance of up to some HK$100,000 per month. I am prepared to accept that utilities would be covered and as such, I disallow this item. At the risk of repeating myself, this utilities item, HK$1,125 per month, will also likely cease if P is to leave the household for university as the Mother claims.

Father’s case

36.I have fully considered the Father’s table setting out a sum of HK$5,706.5 representing what he views as the total reasonable monthly expenses of P. I accept that the Father is not to be blamed for putting forward past expenses as he was only acting to the best of his knowledge to infer reasonable expenses since P was no longer under his care. I have in fact considered the other tables the Father has put forward as well, ranging from 2015 to 2020[11]. I also note from the inferred table above that the Father had not taken into account school fees of HK$1,666.67 per month; his reasoning was that the Mother has failed to prove she needed to contribute HK$20,000 annually to school fees when he believes school fees ought to be zero under the employment benefit of the Mother’s husband. I do not accept that. But for the said benefit, P’s monthly school fees ought to have been HK$18,713[12]. Thus, at least the Father’s claimed figures ought to be at HK$7,373.2 (HK$5,706.5 + HK$1,666.7) or rounded down to be HK$7,370.

37.This in fact is relatively more consistent with the Father’s evidence in Court when asked during Trial if his position of around HK$5,000 per month represents the total reasonable expenses of P, or his share, he testified that the reasonable monthly child maintenance ought to be at around HK$8,000 and that he had in mind a 50/50 sharing, namely HK$4,000.

Other considerations

38.The Mother has called a witness in trying to demonstrate the living standard of an expatriate family living in Discovery Bay. I do not find this part of the evidence assistive as each family turns on its own unique circumstances. This witness also runs a bicycle shop where he would pay P HK$90 per hour and on average P works at his shop for 3 to 4 hours a week. In theory this will increase P’s pocket money received, but I do not view it makes any material difference to the matters in issue. P was encouraged to this part-time work in order to gain some early life experience, not because the parties relied upon his own income therefrom.

39.The Mother confirmed in her Closing Submission that notwithstanding her table shows a total monthly figure of HK$19,713.14, she would keep to her claimed amount of HK$18,278 as her case.[13]

40.By the above, I take the view that P’s reasonable monthly expenses, at least up till he completes secondary education whilst residing with the Mother, would be HK$18,278 (the Mother’s case) - HK$2,062.5 (HK$4,562.50 less HK$2,500 on food) - HK$1,125 (disallowed utilities claim) = HK$15,090.5. I shall round that up to HK$15,100.

P’s Expenses at University Stage

41.There is very limited evidence before me to allow me to work out a monthly figure with precision. All I can say in addition to what I have stated earlier is that there is no reason for the Father not to release the reserved fund of US$18,656.97, for the purpose of subsidising P’s university expenses. It is clear to me that by this sum, which is roughly HK$145,530 (at 7.8 exchange rate), will not be sufficient to cover the entirety of P’s tertiary education in any views. 

42.As to the other expenses, I am prepared to accept that items such as ECA and extra tuition will cease, whereas basic expenses would remain more or less the same. Household expenses would be dependent whether P remains in Hong Kong or to be studying overseas. It seems, from the evidence before me, that it is more likely than not that P will be studying university overseas. In this respect, there will generally not be any household expenses as claimed. 

43.Thus, with reference to the Mother’s table, taking away school costs (HK$2,412.50), activities (HK$2,660.42), tutoring (HK$3,900) from the figure I found earlier (HK$15,100), P’s reasonable expenses (except for overseas education and accommodation costs) would be HK$6,127.08, or rounded up at HK$6,130 per month.

44.The Mother has provided her estimate of overseas future costs (inclusive of education accommodation and some living expenses) ranging from around HK$21,000 to around HK$52,000 per month, with different types of institutions proposed ranging from a 2-year to a 6-year course. This is a rather big range. With the Father’s stance that P may not opt to enter university and even if he does so, so much is uncertain, I am inclined to take P’s overseas expenses at HK$21,000 per month, which is consistent with one of the Mother’s proposal for P to study in the Netherlands for an academic degree on Science related subjects for 4 years. In my view this is relatively more realistic than some of the other proposals of the Mother, for instance, some flight academy courses (as she claims P takes an interest to become a pilot) in Europe, which would seem to be more vocational training based instead.  

45.Going forward, P’s reasonable expenses from summer of 2024 onwards, provided that he attends full-time university education overseas, would therefore be HK$21,000 + HK$6,130 = HK$27,130 per month.

46.P attains 18 on 7 August 2024. This means that in the event, and for whatever reason, he does not continue with full-time education by then, his child maintenance will cease.

47.For the sake of clarity, the Mother’s claim for P’s future medical expenses to be borne by the Father has already been included in the above figures. It is noted that the Father at Trial accepts that so long as P remains in Hong Kong, P is entitled to utilise the healthcare benefits provided by the university, which includes general practitioner’s clinic as well as dental clinic services, in addition to up to 60% subsidy on any outside specialist referrals. Accordingly no separate order will be made in this respect.

Issue 2: the Father’s ability to pay

48.The Father’s income is transparent in the sense that he has always been under the same employment with increasing salaries over the years. His current title is Senior Lecturer and he testified that his income and benefits (including allowances, gratuity and awards[14]) are already at the top scale unless he gets a promotion to become a Principal Lecturer, by which it would require a PhD in order to be considered but he does not currently have one. What has changed since the 2015 Consent Order, and 2019 when P chose to reside with the Mother, are his expenses. According to his Form E, he can just make ends meet. His reported expenses (HK$136,931)[15] is slightly over his reported income (HK$124,645), with HK$5000 stated as maintenance for P (as he was then ordered).

49.It is known that the current wife of the Father has been teaching at the college for around 5 years. In other words, to feed the mouths of his current household, which consists of a pair of twin daughters born in 2022, it is reasonably expected that his current wife will financially contribute also, especially when her own mother is now also living together with the Father. The Father was asked about the salary of his wife and he said he did not know. When asked about his wife having a self-owned property, the Father said it was intended that the parents of his wife would move into that property as the current tenant was about to leave.

50.The Father purchased his current residence at Discovery Bay in early 2020[16] and is currently under mortgage repayment of around HK$20,000 per month. Out of his monthly expenses[17], the relatively sizable ones are domestic helpers (HK$17,000) and dependent family members (HK$50,000), with these two items amounting to about half of his total monthly expenses.

51.As to monthly expenses of HK$50,000 of dependent family members, the Father was asked to explain in Court and he testified that, for the first time, this sum represents medical expenses incurred for his mother-in-law who was diagnosed with stage three colon cancer in about March 2022. The Father was able to refer to one bank statement of May 2022, pointing out two sums totalling around HK$160,000 as hospital expenses at the Hong Kong Sanitorium & Hospital. While I accept the predicament of his mother-in-law and the expenses as shown in his document to be true, I take the view that these are not recurring expenses. Further, as pointed out by the Mother at Trial, as his wife was working and has a self-owned property, it ought to be for her to be financially responsible towards her own mother. In my view, if it was the case where the mother-in-law’s medical condition required the Father to shoulder financially in the manner as he claims at HK$50,000 per month, the Father would have at least had full knowledge of his wife’s finances before stepping in to help.  Accordingly it is difficult for me to accept the Father did not know the salary of his wife. For the reasons above, I find that this alleged HK$50,000 monthly expense ought to be taken out of the equation when assessing the monthly expenses of the Father.

52.There was not much explanation about the domestic helper(s) cost of HK$17,000 per month. It is of note that both the Father and his wife are in full-time employment and that they have the twin daughters at home at infant stage. On the other hand, his step-daughter (daughter of his wife from her previous marriage) is in her teenage and would not require much physical care from a domestic helper. Further, I note the Father in the past had always had one domestic helper, as he reported in his Form E as well as stated in the Reports. His mother-in-law, albeit not in good health condition, currently lives with them but it is his case that she would move out soon. Considering the above matters in the round, I find that HK$17,000 under the heading of domestic helper is on the high side. A domestic helper could cost at around HK$5,000 per month as basic salary. I view that a sum of HK$6,500 would be more reflective of the Father’s reasonable financial obligation to his household in hiring one domestic helper.

53.As to the step-daughter, the Father further testified that upon the divorce of his wife and her previous husband, custody of the step-daughter was granted to the wife and apparently the husband was ordered to financially provide for the step-daughter but he refused to do so. Without giving much details, the Father simply said they (namely his wife and himself) decided not to cause stress to the step-daughter notwithstanding no child maintenance was received. In my view, this is a matter for the Father’s current wife to consider whether or not she is to take appropriate recourse but for the purpose of this application, I would not accept the mere assertion by the Father in this respect and thereby accept the step-daughter’s expenses be borne by the Father. It is in the evidence that the step-daughter is currently studying at the college and is not required to pay any school fees under the employment benefit of his wife. On the other hand there is no evidence that the accommodation cost had increased as a result of residing with the step-daughter. In other words, even if as a matter of fact the Father has been subsidising some of the ongoing expenses of the step-daughter, these costs would not be substantial in any event.

54.The Mother claims that notwithstanding the Father has stopped paying for P, he still claimed P as a dependent for his tax allowance purposes. The Mother claims a total sum of HK$421,200 had been saved for the Father as a result of this in 3 years’ time. The Father testified that while it was true he had applied for such tax allowance, the tax saved was in the range of HK$15,000 to HK$20,000 per year. Since the Mother was not in employment for the material period, by using up such ‘quota’ the Father would not cause any detriment to the Mother at all.

55.The Mother put forward similar challenges against the Father regarding his US tax. The Father explained he had practical reasons for using P for US tax allowance, namely that in case P in future wishes to study in the US, this would make P eligible for a student grant and according to the Father’s understanding, P could potentially benefit from the above up till the age of 25.

56.In relation to the education fund the Father has maintained for P, in short the Father accepted in Court that upon P reaching 18, P can withdraw the same.

57.By the above and considering all circumstances in the round, I come to the view that the Father does have the ability to contribute to P’s reasonable expenses, in the sums that I have found earlier, in going forward.

Issue 3: The Mother’s ability to pay

58.The Mother’s financial disclosure was heavily challenged by the Father. The Father believed that the Mother had a high earning capacity but only chosen to hide the same for litigation purposes. The Mother was also said to be very opaque about her current husband’s finances as well as his various employment allowances / benefits.

59.It seems to me that the Mother did not deny she used to work in the business development industry with her last job as a General Manager earning HK$80,000 to HK$90,000 per month until 2019. The Father exhibited an internet profile at LinkedIn which showed the Mother was still being represented online as the said General Manager as at 2021[18].

60.It is the Mother’s case that since she quitted work in 2019 and subsequently got married, together with caring for P, she has sought to learn new skillsets with a view to re-enter the job market. She had recently in 2022 attended courses ranging from pet grooming and doula to mediation and project management. She also states that once P attends tertiary education she would be able to look for jobs in these new fields. I accept that the Mother had as a matter of fact quitted her job in 2019 notwithstanding her internet profile was not taken off from the company website until 2021. Her travel pattern in 2019 and 2020 is not consistent of being in employment, not to mention the non-working spousal benefit she was entitled to under her current marriage since 2019, to be elaborated below. This means that by 2024, the Mother would have been out of the job market for some 5 years and given her age, it is less likely for her to return to the same level of income. I therefore consider her active approach in equipping herself with various new skillsets to be constructive.

61.On the other hand, I do not lose sight of the financial support of her current husband to her, together with benefits she is now entitled to claim as a non-working spouse under her husband’s job as a diplomat for 23 years. To this end, the Mother admitted under cross-examination that she has failed to disclose a bank account in Belgium under the joint names of her husband and her, and relevant is that, there had been an allowance for a non-working spouse depositing into this said account, on average in the sum of EUR€900, or HK$7,650 (at 8.5 exchange rate) per month. The Mother was unable to confirm for how long she had been entitled to this benefit, nor did she provide any explanation for her non-disclosure in her Form E in this respect. It was not until evidence at Trial that this non-working spousal benefit was revealed.

62.Given this sum and specifically aimed at subsidising the Mother, as a non-working spouse to her diplomat husband, I take the view that the Mother ought to have disclosed the same voluntarily. For a recurring monthly entitlement, this is not a small sum in the context of things. Since the Mother was not able to tell the Court since when she had been entitled to and receiving this benefit, I can only assume that it started since they married, i.e. in June 2019.

63.Relevant to the above is that the Mother purported to exhibit her marriage contract dated 1 June 2019 with her current husband to demonstrate that there is a clause which says that ‘the contracting parties agreed to a total separation of property’[19]. Further, the Mother and her husband signed a document titled ‘loan agreement’ dated 31 May 2020[20] which stated, inter alia, that:

‘the marital agreement explicitly includes the clause of full separation of financial matters’ , ‘[P] moved into [the Mother’s] home on October 1, 2019’ , ‘[the Mother] is a homemaker with no salaried income of her own’ and ‘[the Mother’s husband] has been lending money to [the Mother] to help pay for the maintenance costs of [P] since October 1, 2019, and will continue to do so to make sure that [P] is taken care of’ and ‘[the Mother] will pay back the full amount of this loan once she is able to do so’.

64.The husband of the Mother testified at Trial and confirmed that his understanding of this ‘loan agreement’ was merely a homemade document which had no legal effect and that he drafted it and signed privately with the Mother.

65.From the the above and considering all relevant circumstances, my view is that first of all, from the said ‘loan agreement’ it states that the Mother’s husband will continue to make sure P is taken care of. I do have some reservations about the purpose of the existence of this document. I am not prepared to accept that this document shows the intention on the Mother and her husband that the Mother would be held legally liable for any amount spent on P by her husband. There is no dispute that P is now living at an abode under the housing allowance of her husband with monthly rental of just over HK$100,000. The standard of living of P since he lived with the Mother and her husband has increased when compared to the period when P was under the care of the Father. This is not a criticism on either party as they have respectively moved on and formed new families and it was only the natural consequence of the change in the family matrix that the standard of living of P had, in this case, increased under the Mother’s household.

66.For the reasons above I do find that the Mother has been guilty of material non-disclosure in her finance. Her monthly non-working spouse allowance is in my view material. The so-called loans from her husband to her for P’s past and ongoing expenses are at most to be seen as ‘soft loans’ given their marital relationship. The Mother is therefore capable to attract rental income of HK$18,000, together with an allowance of about HK$7,650 per month, namely around HK$26,000 per month if she remains a full-time homemaker. If she is to re-join the workforce as she claims she would, her earning capacity would definitely exceed the allowance she receives by far. While she may not be able to earn as much as her previous job (HK$85,000 per month), even one third of that (be it in business or under her new ventures as claimed), namely at around HK$28,000 per month, together with rent receivable thus totalling HK$46,000 if she works, it would still put the Mother at a very respectable financial position.

67.The Mother therefore does have the ability to pay.

Issue 4: What would be a reasonable proportion of contribution between the parties?

68.The Father had only incurred further substantial expenses after P has moved to live with the Mother, for example the purchase of his current residence and the addition of the twins into his family. P did not wish to live with him and he moved on. I accept the Father’s expenses since P has left his household to be genuine save and except for the items I have rejected earlier.

69.The Father testified that he considered a 50/50 sharing would be fair, only that he was advocating a total figure of HK$8,000 as maintenance for P. Notwithstanding that, I do consider that in this case, where both parties are highly educated and have been successful in their work life, an equal sharing of P’s expenses for the remaining years would be a fair proposition. For the Father, this is a son who has an inflexible personality through no fault of his own. The father-and-son relationship will take time to improve. It is important for the Father to continue to financially provide for P and to show support to maximise his choice for tertiary education. As for the Mother, being P’s primary carer she will no doubt play an important role in P’s choices in universities and as such, she also ought to bear a portion of financial responsibility having set the standard of living for P since 2019.

Issue 5: Backdating

70.As at the time of entering into the Settlement Agreement and subsequently the 2015 Consent Order, both parties have repeatedly confirmed on paper that they have each sought independent legal advice and understood their rights. The Settlement Agreement was drafted as a result of mediation with the help of a mediator, whereas the 2015 Consent Order was drafted by the Father, who had then engaged Messrs. Stevenson, Wong & Co. and as a result, the Mother who acted in person was separately requested to sign an acknowledgement to the effect of acknowledging her rights as well as the legal effect of the said order[21].

71.Relevant to the above is the Mother’s present claim that she agreed to a clean break settlement vis a vis the parties was because the Father had then agreed to be solely responsible for P’s expenses.[22] It is trite that the ancillary relief for a payee spouse is wholly separate from ancillary relief for a child in that while the former can (and is often encouraged to) be achieved by a clean break, the same cannot be said for the latter. The Mother must have been advised that the clean break settlement sum she received from the Father has no bearing on the financial responsibilities of the parties towards a child which is always an ongoing matter subject to changes based on prevailing and justifiable future circumstances. As I understand the Mother’s case she attempts to raise this in support of her backdated child maintenance claim. I do not accept such contention would lend valuable support to the Mother. 

72.Further to the above is fact that the Mother has never seen fit to take out any enforcement applications at all material times based on the Father’s undertaking under Recital H of the 2015 Consent Order. The Father was at all times under stable employment in Hong Kong and that enforcement proceedings - which is not her present application - would have been a viable option if her belief was that notwithstanding the daily care and residence of P has changed from the Father to her since 2019, the Father still ought to remain solely responsible for all of P’s expenses.

73.Yet the same can be said about the Father in that, at all material times he has not taken out any formal applications to discharge Recital H. I have asked the Father at Trial about this and he said he had sought legal advice on his overall situation but this particular point was not touched upon. Further, and in somewhat similar manner, the Father endeavours to allege that as per Recital I of the 2015 Consent Order, since the Mother undertook to be solely responsible for P’s expenses during the period she has access with P and absent any application to discharge, she ought to be financially responsible even for access times which were not utilised.[23] I must say I equally have reservations about this line of logic, especially when the access arrangement under the 2015 Consent Order was one of reasonable access as opposed to any defined access.

74.I note that (a) as at the time of the Settlement Agreement and the 2015 Consent Order, both parties were in full-time employment; (b) it was agreed that the party who spends time with P shall be responsible for any daily child related expenses arising therefrom. This explains the existence of not only Recital H but also Recital I; and (c) it was not stated in any of these documents that the child maintenance arrangement was irrespective of whatever care arrangement of P in future. To this, I note that the Mother in fact had taken out an application to vary the custody arrangement of P on the same date as this application, namely on 18 August 2020. The Father, in response, also filed an application on 23 September 2020 on custody arrangement. This explains why a series of reports were called for in around 2021 and suffice to say that, by the Order of HHJ Melloy dated 13 January 2022, the parties by consent agreed to joint custody with care and control to the Mother and reasonable access to the Father.

75.In my view, considering all the circumstances of this case, I do not accept either party can hold one another solely responsible for P’s expenses and that if anything, they are equally guilty of not having taken out formal applications to either enforce the existing undertakings, or to discharge the same, or at least to seek clarification on the 2015 Consent Order if, and only if, they were not certain of its meaning.

76.It is also noted that the 2015 Consent Order did not specify a monthly figure as reasonable child maintenance. I also take this into account where the Mother now asks for a specific periodical figure and to adopt this figure in deducting her backdating child maintenance claims. 

77.With the findings I have made regarding the ‘loan agreement’ between the Mother and her husband and the nature of these ‘loans’ at best to be soft loans, as well as having considered all the circumstances, I decide to exercise my discretion in refusing any backdating claims of the Mother in her application.

Orders

78.Accordingly, I make the following orders:

(i)    The Father do pay to the Mother a monthly periodical sum of HK$7,550, representing 50% of child maintenance of P commencing on the 1^st December 2023 and thereafter on the first day of each calendar month until P attains 18 or commence full-time tertiary education, whichever is the later;

(ii)   In the event P does commence tertiary education, the Father do pay to the Mother a monthly periodical sum of HK$13,565, representing 50% of the child maintenance of P until P completes full-time tertiary education;

(iii)  The Mother do provide documentary proof to the Father on P’s university offer of acceptance and commencement date (if any);

(iv)  The Father do pay or cause to be paid the entire amount of the education funds (in the sum of US$18,656.97 as at 9 August 2022) to P directly upon P attaining 18 years old on 7 August 2024;

(v)   Backdating claims by the Mother, including any claims for tax payments, be dismissed. 

Costs

79.Given both parties acted in person and that neither party can be considered as a clear winner by the above findings, I hereby make no order as to costs.