Ccmj v. Ssm Formerly Known As Skl

FCMP 67 / 2010

[2025] HKFC 89

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
(Variation of Maintenance/Discharge of Undertakings/
Remission of Outstanding Arrears

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Introduction

1.This is a piece of protracted litigation for the past 15 years where 20 full written Judgments/Decisions had been handed down by the Family Court and 5 Decisions by the Court of Appeal, let alone the wardship proceedings in the Court of First Instance under HCMP No.929 of 2017 taken out by the Applicant father where 12 full Judgment(s)/Decision(s) were handed down by Madam Justice B Chu and 2 Decisions by the Court of Appeal. Counting this Judgment, there would be 40 full written Judgment(s)/Decision(s) handed down by different levels of court.

2.Further, there was another full Judgment by the Court of Appeal in CACV No.84 of 2021 (Re: Hadkinson Order) granted against F in his appeal against the decision of Madam Justice B Chu dated 3 February 2021 in the wardship proceedings dismissing his application for custody, care and control of the child.[1]

3.In granting the “Hadkinson Order”, Hon Cheung JA at paragraph 43 of the Judgment said :-

“(3)

Impediment to justice

43.

In our view, the Father’s breach to pay under the two orders impedes the course of justice. The history of this case shows the difficulty in enforcing the two orders which the Father has chosen to ignore. Although the Mother is legally aided, she requires the maintenance and allowance for N and herself. The Father has no defence to the payment of these sums. We agree with Mr Surman that the Father’s non-payment has a very considerable and detrimental impact on N – her educational and her general well-being and it obstructs the exercise of the Court’s quasi-parental powers over N who is a ward of the Court. The Father has a moral and legal obligation to discharge his obligations. Further, the costs incurred in these proceedings are totally out of proportion to the money at stake. The historical context of this case is pertinent. As B Chu J observed :     ‘As of todate, there have been no less than 16 published judgments/decisions handed down by Judge Own in the Family Court (“Judge”), 7 judgments/decisions in the Court of Appeal on leave to appeal applications/interlocutory appeals and 9 judgments/decisions in these wardship proceedings. Further there have been no less than 18 social welfare reports (referred to individually as “SWR”), 3 reports from the Official Solicitor as guardian ad litem for N (referred to individually as “OS Report”).”

4.Background of this case had been repeatedly set out in those earlier Judgments/Decisions and I do not intend to repeat here anymore. I will be brief and concise in my Judgment this time on the parties’ cross applications which was bitterly fought again for 3 days before me.

5.According to the document index in the Court file, the latest state of play was that there are altogether 458 documents (Folio Nos.1 to 458) consists of thousands of pages and large number of affidavits from both parties. For the sake of convenience and clarify, I confirmed with the parties before the trial commenced as to which affidavit evidence they intended to use for this trial. The parties confirmed to me as follows :-

(a)  Applicant father’s affidavit(s) - 46^th, 47^th 48^th, 50^th, 51^st, 52^nd and 53^rd;

(b)  Respondent mother’s affidavit(s) - 31^st, 32^nd, 34^th, 35^th and 36^th.

Parties’ Summonses

6.F’s Summons dated 5 October 2021 was amended (just less than 2 years later) in August 2023 seeking, inter alia, the following :-

“1.	Paragraphs 1, 3 to 8 of the Order dated 5 June 2015 and Paragraphs 1 and 2 of the Order dated 10 February 2023, be varied and superseded by the following :-
	(a)  The maintenance for the minor shall be varied down to HK$10,000 per month until the minor reaches the age of 18 or completes the first undergraduate degree, whichever is the later;
	(b)  The Respondent’s carer’s allowance shall be varied down from HK$10,000 per month to nil; and
2.	Leave to be granted to the Applicant to withdraw his undertakings dated 12 June 2014.
3.	Remission of all arrears for the Minor’s maintenance, expenses and/or carer’s maintenance under the Order dated 5 June 2015, the Order dated 10 February 2023, and the Applicant’s undertakings dated 12 June 2014 up to the date of the Order to be made.”

7.M’s Summons dated 18 May 2023 seeking, inter alia, the following :-

“1.	A lump sum with a reasonable amount to be assessed by the Court, including but not limited to a variation of the Orders dated 5 June 2015 and 10 February 2023 to reflect, amongst others, the increase in the Child’s spending and living costs, and/or to replace the Undertakings given by the Applicant on 12 June 2014 to cover the Child’s extra-curricular activities and school-related expenses, to be settled on trust for use of the Child and the Respondent, by way of payment into Court in an interest bearing account from the sale proceeds (“the Sale Proceeds”) of the Applicant’s property　known as Flat x on xx Floor including the Balcony and utility platform thereof of Tower 2, xxxx, 18 xxxx Road, Kowloon, Hong Kong (“the One xx Property”) or otherwise, and with leave to the Respondent to apply to the Court for payment of an amount to be so assessed every 6 months out of Court for the maintenance of the Child.
2.	A lump sum for the purpose of enabling liabilities or expenses incurred by the Respondent in maintaining the Child to be met (i) since April 2016 when the Applicant’s access to the Child decreased from about 46% of the Child’s time to about a few hours a week; and/or (ii) for the Child’s set-up and moving costs (of HK$67,100) for moving from the One xx property to the current rented residence, be repaid by the Applicant to the Respondent, via the Director of Legal Aid Department, forthwith with interests from the Sale Proceeds or otherwise.
3.	All the arrears of carer’s allowance and child maintenance of not less than HK$933,506 in total (as of May 2023, excluding interests) be repaid by the Applicant to the Respondent via the Director of Legal Aid Department, forthwith with interests from the Sale Proceeds or otherwise; and
4.	Such other Orders and directions as this Court deems fit and appropriate.”

Decision dated 5 June 2015 (“2015 Order”)

8.After a bitterly fought 7-day trial back in 2015, I handed down my 78 pages (189 paragraphs) Judgment (Financial Provisions) in respect of the child “N” whereby F’s property at “One xx Property” was settled on trust for the use and benefit of the child “N” until she reaches 18 or ceases full time education (whichever is the later); F do pay to M periodical maintenance of HK$13,726 a month for the child “N”; F do pay to M carer’s allowance of HK$10,000 a month, and F’s undertakings given on 12 June 2014 do stand (the “2015 Order”). The F’s undertakings relate to his agreement to pay the child N’s school related expenses and ECA expenses.

9.F sought leave to appeal the “2015 Order” which I dismissed on 12 August 2015 with costs to M.

10.F then went further to seek leave to appeal the “2015 Order” at the Court of Appeal under HCMP No.2059 of 2015 which was dismissed on 2 December 2015 (Reasons dated 7 December 2015) with indemnity costs summarily assessed at HK$100,000 be paid by F to M[2].

Decision dated 10 February 2023 (“2023 Order”)

11.The “2023 Order” was granted upon M’s variation application taken out in 2022 (some 7 years after the “2015 Order”) and F’s variation application (which was taken out in 2021 earlier than M’s application) but it was adjourned sine die with liberty to restore pending Official Solicitor’s Report on F’s mental condition. Reason was that at the time F repeatedly claimed that he was suffering from mental conditions.

12.Upon the Official Solicitor producing their Report which confirmed F’s mental condition was suitable for him to handle the case, F however did not restore his variation summons nor did he file his Form E despite having been directed by me to do so and even with an “unless order” in place[3]. The time for F to do so was extended to 30/9/2022. From case management perspective, F’s and M’s applications for variation should be dealt with in “one-go” and not one after the other.

13.Instead of filing his Form E and affidavit evidence, F sent in a letter (on 21/9/2022) and his 48^th Affidavit (on 30/9/2022) which was a 31-page document of 133 paragraphs with 19 exhibits setting out matters which are not supportive of his “unrestored” variation summons.

14.To avoid any delay caused to M by F, whose position on his own variation summons was unknown, I decided that M’s variation application be proceeded (without F’s variation application) and, with reasons provided in the reasons for decision in the “2023 Order”, that it would be dealt with by way of paper disposal[4] on an urgent basis.

15.It was after the time provided by the “unless order” had long expired that on 30/1/2023, F sought to restore his pending variation summons and then amended the contents of his summons to also include varying the “2023 Order” for the purpose of this trial. Those words shown in italics in F’s Amended Summons which I recited above are the amendments made to also vary the “2023 Order”. This was the reason for the time gap between F’s Summons issued in 2021 compared with M’s Summons issued in 2023, but the trial of the 2 Summonses only started in March 2024.

16.Under the “2023 Order”, the periodical maintenance of the child was adjusted upwards from HK$13,726 (granted under the “2015 Order”) to HK$35,726 a month; M’s carer’s allowance of HK$10,000 to remain unchanged and to continue. It was highlighted in my reasons for decision that the original amount of the child’s maintenance to continue “for the time being” when I only topped it up with the rental expenses of HK$22,000 to arrive at adjusted figure of HK$35,726 a month as the child’s maintenance.[5]

17.On the undisputed facts prevailing at the time, M and the child was forced to move out from the “One xx Property” where they were living due to F’s default in meeting the monthly mortgage instalments of the property. This ended up with proceedings for recovery of possession commenced by the mortgagee bank. With F’s non-payment of the child’s maintenance and carer’s allowance since July 2020 (which was already some 20 odd months ago) and that M had to pay HK$22,000 for renting other accommodation, there was the immediate need and urgency to adjust the monthly sum that need to be paid by F. It ended up with topping up the child’s monthly maintenance payment without any further variation.

Non-compliance of both the “2015 Order” and “2023 Order”

18.There could hardly be any dispute that compliance with the “2015 Order” by F, despite his application for leave to appeal the same was turned down twice; first by me and later by the Court of Appeal, was not forthcoming for the past 10 years since 2015.

19.To assist the Court, there was produced a 3-page chronology of events by M’s legal team as “Annex 2” under the Skeleton Submissions dated 27 December 2023 going back to the time when the child was born in 2008 until this trial in 2024.

20.Briefly stated, F’s non-compliance insofar as the “2015 Order” was concerned, was narrated below –

-  F failed to handover possession of the “One xx Property” for the use and benefit of the child. This had ended up with a fully contested trial with another Judgment handed down on 13 March 2017 against F;

-  From January 2017 to September 2018, F only settled a portion of the child’s school related expenses and ECA expenses (which F undertook to pay in June 2014) and often late in payment;

-  In October 2018, F ceased all payments for the child’s school related expenses and ECA expenses;

-  In July 2020, F ceased paying M’s carer’s allowance of HK$10,000 a month;

-  In October 2020, F ceased payment of the child’s maintenance of HK$13,726 a month;

-  In January 2021, F defaulted in paying mortgage instalments for the “One xx Property”. This ended up with proceedings commenced by the mortgagee bank for recovery of possession;

-  In August 2022, M and the child was forced to move out from the “One xx Property” to a rented place in Kai Tak, Kowloon, at the rent of HK$22,000 a month solely paid by M

21.There were also protracted disputes raised by F as to the definition and scope of what items are to be covered under the term “school related expense” and the type of activities to be regarded as “ECA” despite both of which F had provided his Undertakings on 12 June 2014 to pay and that such Undertakings were embodied in the “2015 Order”.

22.Non-compliance with the “2023 Order” was that F continuously failed to pay the child’s maintenance which was adjusted to HK$35,726 a month and M’s carer’s allowance of HK$10,000 a month.

F’s position in this trial

23.F’s contention on M’s variation application can be summarised as follows :-

-  There was no material change of circumstances for M to seek variation 3 months after the “2023 Order” was granted (F referred to the case of HCTT v TYYC [2008] HKFLR 286);

-  M’s variation application was an appeal of the “2023 Order” through the backdoor (F referred to the case of RMH v GY [2021] HKFC 215);

-  M was seeking backdated and advanced lump sum payment which would not normally be granted (F referred to the case of AEM v VFM [2008] HKFLR 106);

-  M was seeking to recover arrears past due for over 12 months and such recovery would require leave of the court;

M’s position in this trial

24.M’s claim was simple and straightforward. She was seeking :-

-  An upward variation of the child’s maintenance to meet the increase in the child’s spending and costs of living;

-  Financial orders under Section 10(2) of the Guardianship of Minors Ordinance, Cap.13 (“GMO”) for :-

(a)  secured lump sum for the increasing living costs and expenses of the child and, if the court sees fit to include the school-related expenses and ECA expenses in the varied sum, to replace F’s Undertakings;

(b)  lump sum for past expenses; and

(c)  recovery of all arrears of child’s maintenance and carer’s allowance.

25.As to F’s application to vary the child’s maintenance down to HK$10,000 a month, M’s carer allowance down to HK$0 and remission of all outstanding and unpaid arrears, they are all rejected by M.

Provisions under the GMO

26.Section 10 of the GMO provides :-

“10.	Orders for custody and maintenance on application of either parent
	(1)	The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding—
		(a)	the custody of the minor; and
		(b)	the right of access to the minor of either of his or her parents,
		as the court thinks fit having regard to the best interests of the minor and to the conduct and wishes of the parents.
	(2)	The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders—
		(a)	an order requiring payment to the applicant by the parent or either of the parents of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that parent;
		(b)	an order requiring payment to the applicant by such parent or either of such parents of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;
		(c)	an order requiring the securing to the applicant by such parent or either of such parents, to the satisfaction of the court, of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;
		(d)	an order requiring the transfer to the applicant for the benefit of the minor, or to the minor, by such parent or either of such parents, of such property, being property to which the parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of that parent;
		(e)	an order requiring the settlement for the benefit of the minor, to the satisfaction of the court, of such property, being property to which such parent or either of such parents is so entitled, as the court thinks reasonable having regard to the means of that parent.
	(3)	An order may be made under subsection (1) or (2) notwithstanding that the parents of the minor are then residing together, but—
		(a)	no such order shall be enforceable, and no liability thereunder shall accrue, while they are residing together; and
		(b)	any such order shall cease to have effect if for a period of 3 months after it is made they continue to reside together:
		Provided that, unless the court in making the order directs otherwise, paragraphs (a) and (b) shall not apply to any provision of the order giving the custody of the minor to a person other than one of the parents or made with respect to a minor of whom custody is so given.
	(4)	An order under subsection (1) or an order under subsection (2) (other than an order for a lump sum payment in one amount, for a lump sum to be paid in instalments where all such instalments have been paid or for the transfer of property) may be varied, discharged, suspended or revived after being so suspended, by a subsequent order made on the application of either parent or after the death of either parent on the application of any guardian under this Ordinance, or (before or after the death of either parent) on the application of any other person having the custody of the minor by virtue of an order under subsection (1).”

Discussion

27.Parties’ respective variations of the child’s maintenance are plainly “2 sides of the same coin”. The answer turns upon my finding of M's credentials over the living costs, financial needs and expenses of herself (of which contained a portion for the child) and the child’s own expenses. At this trial, F had vehemently challenged and, leaving no stone unturned in his cross examination on W’s credentials and tried to explore inconsistencies and inaccuracies on the child’s expenses which M claimed had been spent or need to be spent on the child.

28.Without any disrespect or discourteousness to any party, including the child, I am minded to say that even petty sums of spending on sanitary products had been included in F’s line of cross examination questions on W. This is completely unnecessary and outrageous.

29.On the topic of variation of financial orders made under the GMO, I am in agreement with my learned brother Judge I Wong in his Judgment in the case of RMH v GY [2021] HKFC 215 where he said :-

“19. The guidance given by the Court of Appal in AEM v VFM, supra, is in respect of an application for variation under the Matrimonial Proceedings and Property Ordinance (Cap.192). Though the present case is one commenced under a different statutory regime, namely, the Guardianship of Minors Ordinance (Cap 13), I am of the view that the same guidance that the court may consider all the circumstances afresh should also apply.”

Any material change of circumstances ?

30.F’s submission was that there could hardly be any material change of circumstances within the 3-month period between the “2023 Order” dated 10 February 2023 and M’s Summons for the present variation dated 18 May 2023. Material change of circumstances was required for bringing variation applications.

31.My reasons for decision of the “2023 Order” must first be read and understood in its context; in particular, the underlying facts and surrounding circumstances at the time leading to the need to grant the “2023 Order” is important. The following paragraph of my reasons outlining the background facts at the time is illustrative and important :-

“7. M’s Variation Summons was first heard on 8/7/2022 and was adjourned for a 2^nd hearing on 12/7/2022. Such short adjournment came about as there was an urgent need (my emphasis) for M to try and explore some sort of financial arrangement/settlement with F given the fact that the One xx 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 could be reached. M and the Child N was then under the fate of having to move out from One xx 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.”

32.As I said in paragraphs 16 and 17 of this Judgment, the “2023 Order” was granted by me on an urgent basis (my emphasis) only to cater for the sudden and unexpected need of rental expenses arising from F’s default of paying mortgage instalments. It was not and should not be seized upon by F as a complete variation application per se when all the circumstances, including M’s financial means and resources and the child’s needs and expenses, had not been fully investigated and considered in the full course of a trial on viva voce evidence. This could be demonstrated by the fact that M’s variation application was actually dealt with by way of paper disposal without receiving any viva voce evidence within a substantive trial proper as is in the present case. In any event, F had not lodged any complaint on such course nor had he appealed the “2023 Order”. F simply continued with his default in paying the child’s maintenance.

33.Given that the “2023 Order” was specifically granted to cover the HK$22,000 rental expenses and not determinated as a complete variation application per se, F’s contention of no material change of circumstances since the “2023 Order” was granted could not stand. There was no substantive trial on M’s variation for me to find and determine the circumstances of the case at the time, save and except only the fact of F’s default (on meeting mortgage instalments thus causing the “unpaid and unemployed” M and the child to raise HK$22,000 rental expenses for a roof under their heads) on an urgent need basis having been proved to this Court on her affidavit evidence.

Was it an appeal through the backdoor ?

34.Given my decision above that the “2023 Order” was not determined upon a complete variation application per se, and was a decision arrived at out of an urgent situation caused by F, M could not be said to be bringing an appeal through the backdoor by filing her present Summons for variation in May 2023. I do not accept F’s such contention.

Was M seeking backdated and advanced lump sum payment ?

35.The scope of financial reliefs that could be sought under Sections 10(2) of the GMO are wide. It could be lump sum or periodical payments towards maintaining the minor as the court thinks reasonable; it could include financial reliefs for meeting the immediate and recurring needs of the minor; or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor to be met before the order was made, but all such scenarios must have regard to the means of the parent against whom payment was sought.

36.On the terms of M’s Summons, she was simply seeking lump sum from F to meet the liabilities and expenses that she had already incurred in maintaining the child. At the same time, she also seeks variation of the amount of maintenance to cater for the increasing living costs for the child, it is misconceived for F to argue and say the reliefs sought are “backdated and advanced lump sum” given that his so-called “backdated” lump sum was accrued and accumulated by his years of non-compliance with court orders for maintaining his daughter “N”. There is no room for F to walk away from his legal liability for persistent breaches of court orders on the child’s maintenance, let alone his moral obligations to maintain his daughter, and then come forward to raise such “backdated” contention and the next contention of arrears due over 12 months require leave to enforce (which I will deal with below).

37.I do not accept F’s such contention.

Does W require leave to recover arrears over 12 months ?

38.This contention is wholly misconceived. The requirement of leave to recover arrears over 12 months was confined to enforcement process in respect of money orders granted under the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”)[6].

39.Under the GMO, there is no time line for seeking present or future financial reliefs or to recover liabilities and expenses already incurred or spent in maintaining the minor, subject only to reasonableness of the sums and having regard to the means to the parent making the payment.

40.For all these reasons, I find against F on all his contentions over those procedural aspects of M’s variation application fails.

Any need for lump sum capitalisation and variation of existing maintenance ?

41.On financial reliefs granted by the courts within the matrimonial context or under the GMO, whether it should or need to take the form of lump sum or periodical payments, and whether it should or need to be secured or unsecured, varies from case to case and is highly fact-sensitive. It is always a matter of discretion for the courts to be exercised fairly and proportionately to ensure justice and fairness in the case. For financial reliefs affecting children, the courts must ensure the best interests of the children are preserved or maintained.

42.As outlined at the beginning of this Judgment, there could hardly be any dispute that financial orders granted in the past years had not been complied with by F. Fairly put, orders had been ignored or flouted and ended up with further litigation even over enforcement process. My property settlement order under the “2015 Order” called for a fully contested trial before possession of the “One xx Property” was delivered up by F some 2 years later in 2017[7]; Garnishee orders nisi could only be made absolute after a full judgment by way of paper disposal was handed down by me in 2022.[8] This is highly unsatisfactory given that these proceedings are brought under the GMO and any breaches or non-compliance of court orders would affect the children most. Their best interests would not be served on time and would inevitably be prejudiced, if not compromised.

43.Actually things in this case had progressed from bad to worse over these years. At present, it was indeed exacerbating. I noticed that F and M are now competing with each other in the Court of First Instance in an interpleader proceedings under HCMP No.2099 of 2023. There are actually 6 other interpleaders including the Official Solicitors and the Director of Legal Aid (presumably both of them on their costs incurred) and 4 other interpleaders including F’s mother and his friends to whom F had executed Legal Charges for loans allegedly to have received from them.

44.M who was on legal aid throughout these years had once saw the need to seek assistance from the Court of Appeal for a Hadkinson Order to be granted against F which she succeeded[9].

45.From the perspective of costs, M was and still is on legal aid. F in the past years engaged different reputable law firms specialised in matrimonial practice and engaged different eminent Counsel, including Senior Counsel, to represent him. F revealed before me that he had so far spent around or over 20 million dollars in legal costs and now he chose to represent himself in these proceedings. This undoubtedly contravenes the underlying aim and objectives of costs effectiveness under Order 1A rule 1 of the Hong Kong Civil Procedure (“HKCP”) 2025.

46.From the perspective of time, it is now the 15^th anniversary of this case and the child who was born in 2008 would be turning majority (that is, 18 years old) in November 2026 (that is, 18 months later). Worst still, the child does not seem to have enjoyed, or had ever continuously enjoyed, the fruits of litigation for having the full benefit of maintenance orders granted by the Court. This undoubtedly also contravenes the underlying aim and objectives of procedural economy and case efficacy under Order 1A rule 1 of the HKCP.

47.From the perspective of practicality, I have no hesitation to say these proceedings serve no benefit for the child who had been caught in between her parents’ 15 years of battle in litigation since she was only 2 years old in 2010 when these proceedings first started.

48.As the docket judge for 15 years and with all the above matters fully and carefully considered, I accept M’s application for lump sum in respect of past dues and future maintenance for the child, with variation of the maintenance amount to cater for the child’s increasing living costs, and to recover liabilities and expenses incurred in maintaining the child to be met.

Living costs and expenses of the child “N”

49.At the outset, I wish to say that children expenses are easy to spend but difficult to quantify with any precision. From time to time the Court has to scrutinize ledgers of children’s expenses pragmatically given the parents’ conflicting views or lack of trust with each other. In some other cases, there may be a need to adjudicate children’s expenses with laxity to ensure the best interests of the children are not affected by their parents’ conflicting positions and disputes. The prevailing and dominant approach of the courts is to provide the children with quality life within parameters of reasonableness subject to the means and resources of the paying parent[10].

50.F has vehemently criticised M’s declared items of spending for the child in terms of the need, value, purpose or usage; in particular, on the item of Melaleuca supplements given to the child. Besides, the costs of the Melaleuca supplements at HK$2,300 was also hotly disputed by F when he cross examined W.

51.In the absence of nutrient expert evidence, I am in no position to decide the suitability or unsuitability or even the need to give Melaleuca supplements to the child. It was purely one’s words against the other. That said, I am inclined to accept M’s evidence on the need of such supplement since F has to, but had not, adduce expert evidence to support his personal views on such supplements. This item of expenses will be allowed and the costs also accepted by me.

52.As for the other items of monthly expenses, both for M and the child, M’s legal team has helpfully produced a summarised table[11] setting out 3 scenarios, namely :-

(a)  child’s maintenance as per the “2015 Order”;

(b)  M’s monthly expenses as per her Form E dated 21 March 2023; and

(c)  M’s anticipated monthly expenses in normal circumstances.

53.Within the items of expenses and where appropriate, there were apportioned sums which M worked out as the child’s share of that particular item of her general expenses and with brief markings on such apportionment. I have taken time and effort to review and carefully consider each and every items of expenses within the table. Given the fact that M is now seeking variation of the amount of the child’s maintenance, those columns with breakdown of expenses for child’s expenses as per the “2015 Order” comparing with the same item of expenses contained within M’s Form E (as at 31/3/2023) is useful.

54.Having gone through the figures under M’s Form E[12], the evidence I received from M at this trial and her answers to F’s questions during cross examination, I find and decided the amount(s) of all the items under M’s general expenses are fair and reasonable. However, given the “2023 Order” handed down on 10/2/2023 was in place at the time of this Form E, I saw the need to include the rental sum of HK$22,000 as the child’s maintenance in line with my decision, which neither party had objected or appealed for adding the rental expenses into child’s original maintenance to arrived at the sum of HK$27,500 a month (HK$22,000 + HK$5,500).

55.On the items of expenses under the heading of “Child Expenses” in M’s Form E, I decided that only the following adjustments would have to be made. All the other expenses are fair and reasonable estimate.

(a)  the extra-curricular activities of HK$2,994, the extra tuition fees of HK$2,500, school-related expenses (school books and stationery HK$600, transport HK$200, uniform HK$300) totalling HK$6,594 be deducted as all of them would continue to fall within F’s Undertakings given on 12 June 2014; and

(b)  the entertainment/presents of HK$2,000 be adjusted to HK$1,000 a month.

56.With these 2 adjustments, I decided the amount of the child’s expenses to be HK$8,472 instead of HK$9,472 a month.

57.Hence, the total sum for N’s monthly maintenance would be HK$35,972 (that is HK$27,500 + HK$8,472).

58.In the column of M’s anticipated monthly expenses which she arrived at the figure of HK$57,172 a month, I have also read and consider carefully the “Remarks” column made against those items where the reasons for and amount of increase was provided by M.

59.Given overall consideration and a broad assessment of those increase of costs, I agree and accept the estimate of HK$57,172 would be fair and reasonable, also giving consideration to the factor of inflation in the coming years before the child finishes her tertiary education at the university, which M worked out to be in the year 2031 when the child reaches the age of 22.[13]

M's carer’s allowance

60.With the child’s age in mind, I tended to accept F’s queries on the need of this item if one comes to consider those day to day routines, such as, buying food and groceries, taking meals, transport, personal hygiene, clothing so on and so forth, which the child clearly capable of handling without any need of a carer.

61.However, I am minded to take into account the need for care, advice and guidance over questions and issues arising from puberty and adolescence for the child “N” who is a girl at the age of 16. There is also the inherent factor of mother-child bonding (particularly for same sex child) for the past 16 years for the child to turn to M for advice and guidance when she needs help.

62.Thus, on this item of carer’s allowance, I am minded to keep it but at a lower rate of HK$2,000 a month to last until the month of November 2026 when the child reaches 18 years old.

63.For those past due under this item, I am minded to adjust it downward from HK$10,000 a month to HK$2,000 a month commencing from the month of November 2023 (that is, when the child reached 15 years old).

Arrears unpaid under the “2015 Order” and “2023 Order”

64.M in her Counsel’s Submissions dated 27 December 2023 attached with the following Annexures.

Annex 1 :	Table of outstanding child maintenance and carer’s allowance (not including ECA and school related expenses) as of December 2023.
Annex 3 :	Lump sum sought by M for the purpose of enabling liabilities or expenses incurred in maintaining the child

65.In my decision, the child’s maintenance at the rate of HK$13,726 per month as per the “2015 Order” counting from cessation of payment in November 2020 up to and including August 2022 (total 22 months) was HK$301,972 (that is HK$13,726 x 22).

66.Further, in my decision, the child’s maintenance at the adjusted rate of HK$35,726 per month as per the “2023 Order” counting from September 2022 up to and including April 2023 (total 8 months) was HK$285,808 (that is HK$35,726 x 8).

67.Hence, the total amount of arrears unpaid was HK$587,780 (that is HK$301,972 + HK$285,808), which I decided F should repay to M. I noted that it was F’s application to remit all these arrears which I find there was no basis for F to avoid his legal liabilities under the 2 Orders.

M’s claim for reimbursement of “additional” expenses after April 2016

68.At paragraph 2 of M’s Summons, she sought to recover additional expenses incurred by her since April 2016 when F’s access time with the child was greatly reduced from 46% of time in a week to only a few hours a week. Such reduction of time was undisputed to be a fact.

69.M worked out a table at Annex 3 and come up with a figure of HK$943,362.40 which she claimed against F as additional expenses incurred by her since April 2026 when the access time spent by F with the child greatly reduced from 46 % of time in a week down to only 1.20 % of time in a week.

70.I have read and considered the table and the calculation. The calculation was up to 18 May 2023, which was the date of M’s Summons for variation.

71.I agree with M’s evidence that whenever the child spent access time with F, she would be financially relieved from supporting the child. The converse would definitely happen when the child spent more time with her and, accordingly, she would have to bear additional financial burden(s) over the child in terms of living costs and maintenance. In my view, these are liabilities and expenses which would have to be met under Section 10 of the GMO provided the sums are reasonable and within the means of the parent from whom payment was sought.

72.On the amount, I decided to adopt a broad brush assessment rather than pin-pointing to every single dollar and cents or counting hours and minutes as M did in the calculation. That said, I would assess this claim at HK$600,000 to be fair and reasonable.

73.I decided not to allow the moving costs of HK$23,100 (that is HK$67,100 – HK$44,000) to M’s claim.

F’s means and ability to pay

74.As required by the law, I need to consider F’s ability to pay those sums found by me in this Judgment.

Secured Lump Sum/Payment into Court

75.M in her Summons sought a secured lump sum order over the net proceeds of sale of F’s “One xx Property” which I understand is now the subject matter of the interpleader proceedings in the Court of First Instance. I also noted that the sums involved in the interpleader proceedings are in the region around HK$ 8 million and are kept in the Court of First Instance for further disposal.

76.All these information and hard facts lend to my observation that F would have the liability to pay my award in this Judgment given that he is also one of the 8 interpleaders along with, amongst others, his mother and friends.

77.With the net proceeds of sale forming the subject matter of the interpleader proceedings, and presently under the direction of the Court of First Instance, I have no jurisdiction to order lump sums to be secured over the net proceeds of sale or further directing the sale proceeds be paid into the Family Court.

Calculation of sums to be paid by F

78.I will first deal with the past dues and sums currently due and unpaid.

(a)  The past dues of HK$587,780[14];

(b)  The reimbursement to be made to M of HK$600,000[15];

(c)  Carer’s allowance due and unpaid since July 2020 at the rate of HK$10,000 a month up to and including the month of October 2023 (totalling 40 months) capitalised at HK$400,000[16];

(d)  Carer’s allowance due and unpaid since the month of November 2023 at the rate of HK$2,000 a month to the month of May 2025 (totalling 19 months) capitalised at HK$38,000[17];

(e)  Monthly maintenance for the child at the rate of HK$35,972 a month[18] commencing 1 June 2023 until the month of May 2025 (totalling 24 months) capitalised at HK$863,328.

79.The total capitalised lump sum is therefore HK$2,489,108 (that is HK$587,780 + HK$600,000 + HK$400,000 + HK$38,000 + HK$863,328).

80.I will now deal with capitalisation of anticipated living costs and expenses for the child until she finishes full time tertiary education in August 2031 (that is, 75 months from the date of this Judgment), using the estimated rate of HK$57,172 a month. The total capitalised maintenance is therefore HK$4,287,900 (that is HK$57,172 x 75 months).

81.The capitalised anticipated living costs and expenses of HK$4,287,900 had not included any university course fees which would have to be further resolved in due course of time.

Decision

82.For all the above reasons, I decided as follows :-

(a)  Paragraphs 1(a), 2 and 3 of F’s Summons be dismissed;

(b)  Paragraph 1(b) of F’s Summons be allowed and varied to HK$2,000;

(c)  All Undertakings of F given on 12 June 2014 do stand and continue.

(d)  Order be granted as per paragraphs 78, 79 and 80 above in terms of M’s Summons;

(e)  All payment(s) payable to M are subject to the Director of Legal Aid’s First Charge.

83.There be liberty to apply for directions on implementation of this Judgment.

Costs

84.Given my decision on the parties’ applications, although F managed to vary M’s carer’s allowance but was unable to succeed to the full extent. Overall speaking, M is the “winner” of both Summonses.

85.I decided that F should pay to W all costs of and occasioned by both F’s and M’s Summonses, including all costs reserved, to be taxed if not agreed.

86.M’s own costs be taxed in accordance with Legal Aid Regulations.

87.I also grant Certificate for Counsel.

88.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.

The Applicant unrepresented, acting in person

Miss Allison Choy instructed by Messrs. Stevenson, Wong & Co, Solicitors for the Respondent on the instructions of the Director of Legal Aid