L v. W

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT MISCELLANEOUS PROCEEDINGS

NUMBER 167 OF 1998

_________________

_________________

BETWEEN 

_________________

Coram : H.H. Judge Bruno Chan in Chambers

Date of Judgment :  4 July 2005

_________________

J U D G M E N T

_________________

1.There are 3 applications before me, one by the Respondent Father for reduction of the current maintenance of $6,000 per month payable by him to the Applicant Mother for their 9 years old son under a consent order made on 3^rd January 2000 in these proceedings, on the grounds that his means has since deteriorated and that the Applicant Mother does not actually need as much as $6,000 per month to maintain the said child.  The other 2 applications are by the Applicant for an order requiring the securing of the said maintenance of such sum as the court thinks reasonable against the Respondent, and for a garnishee order against one of his bank accounts for arrears of maintenance accrued during the proceedings.

Background

2.The Respondent is a married man in his late 50s who has been living apart from his wife and 2 grown-up children since about 1993.  In about 1994 he entered into cohabitation with the Applicant, who was a divorcee but some 20 years his junior, in a rented apartment in Shamshuipo, Kowloon.  The Respondent was then a manager employed by Hong Kong Telecom and was studying for a Master degree of Business Administration, while the Applicant was a company clerk.

3.In late 1995 the Applicant became pregnant with the said child but the parties’ relationship started to deteriorate, and despite the birth of the child in March of the following year, their relationship was eventually terminated in December 1996 when the Respondent moved out of their apartment.

4.After their separation the Respondent initially gave the Applicant $10,000 per month as maintenance for her and the said child.  In about September 1997 he reduced the amount to $5,000, and a year later in August 1998 he stopped payment altogether.  As a result the Applicant instituted these proceedings under s. 10 of Guardianship of Minors Ordinance, Cap. 13 on 3^rd November 1998 for custody of the said child and an order for the Respondent to make reasonable financial provision towards his maintenance.

5.What appeared to be a relatively simple and straightforward application was unfortunately and unnecessarily complicated when the Respondent was initially evasive of service, and later when cornered with the proceedings, disputed, and without merits if I may add, the fact that he was the father of the child, resulting in paternity tests being carried out and further directions made.  It also turned out that the Respondent was made redundant of his job at Hong Kong Telecom at about the same time and the Applicant found it necessary to apply and obtained an injunction to freeze part of his severance payment to ensure that there would be funds available from the Respondent to meet her application.

6.At the end common sense prevailed and the parties were able to settle their dispute on 3^rd January 2000 when the Respondent agreed to pay $6,000 per month as maintenance for the said child until he reaches the age of 18 or completes full time education whichever is later, and that such maintenance payment was to be secured against his interest in a property in Tai Tam Road, Chai Wan, Hong Kong, which terms were than made an order of the Court.  This is the maintenance order which the Respondent now seeks to vary by reducing the said monthly sum in accordance with his present means and the actual needs of the child, by way of a summons issued on 24^th October 2002.  The summons was adjourned at the hearing on 25^th November 2002 for the parties to file their respective affidavit of means, and that the Social Welfare Department was directed to supervise the Respondent’s access to the child after his many complaints of having difficulty exercising it which led to continuing quarrels between the parties over the intervening period, as evidenced by the several social welfare reports submitted on the problems.  There were also a few judgment summons and garnishee proceedings taken out by the Applicant to enforce payment of the arrears of maintenance when the Respondent unilaterally stopped or reduced payments for the child after he had applied for the variation, but which were all eventually withdrawn by the Applicant when the Respondent subsequently paid up the arrears on the understanding that it would not prejudice his application, save for the last one taken out in late 2004 which was adjourned pending the outcome of the trial.

7.Unfortunately this did not mean that the issues between the parties would be kept simple or straightforward, as the exchange of affidavit of means was soon followed by extensive requests for further and better particulars and questionnaires from each side, whilst the Applicant also took out an application on 9^th July 2003 for an order for the Respondent to provide a lump sum as security against his maintenance payments due to his frequent defaults and that as his property against which the maintenance was secured under the original order turns out to be the matrimonial home occupied by his wife and children and hence cannot be easily enforced, which application was later subsequently adjourned to be heard together with the Respondent’s variation application.

8.This litigation was further complicated by several new issues arisen during the course of the hearing which protracted the trial and unfortunately also embittered the parties.

9.On 2^nd March 2004 which was supposed to be the day for the parties to make their final submissions upon the close of their evidence, the Respondent suddenly launched an application for variation of the custody order as he believed that the child would be better off under his care and custody in view of his belief that the Applicant had entered into cohabitation with another man.  It was naturally opposed by the Applicant and as a result the hearing was adjourned for investigation by the Social Welfare Department.

10.The Social Investigation Report which was dated 13^th May 2004 revealed that the Applicant was indeed living with her boyfriend together with the child but would not support the Respondent’s application for custody of the child.

11.At the restored hearing on 10^th August 2004, the Respondent decided not to pursue his application for custody which was therefore dismissed, but it did not mean that the parties’ maintenance dispute was any closer to its conclusion as the Social Investigation Report also revealed that the Respondent had earlier purchased a property in Shaukeiwan as his residence but which he had hitherto never disclosed in any of his affidavits or oral evidence.

12.Not surprisingly, this caused the Applicant to immediately launch a full-scale investigation into the purchase of the said property including issuing several subpoena on the Respondent’s bankers for disclosure of any further bank accounts of the Respondent and re-opening of her cross-examination on his means, and when the Respondent explained that he purchased the said property on behalf of his present girlfriend, a Ms Cheng and was merely holding it in trust for her, it was inevitable that she was called to give evidence in respect of the property, which of course further prolonged the hearing.

13.I may also add that despite allowing his application for variation of custody to be dismissed on 10^th August 2004 after confirming that he no longer wished to pursue the matter, the Respondent took out another application for the same towards the closing stage of the hearing on 22^nd April 2005, and then decided not to proceed with his application, preferring to adopt an “wait and see” attitude pending the outcome of the maintenance dispute.

14.Although almost all the affirmations and pleadings filed by the parties were in English, with a view to save time and costs, I acceded to the parties’ request to give their evidence at the hearing in Chinese.

The Law

15.There is no question that the Court can vary the said maintenance order, the power of which comes from s. 10 (4) of the Ordinance which provides that an order made under subsection (2), i.e. the said maintenance order, may be varied, discharged, suspended or revived after being so suspended, by a subsequent order made on the application of either parent.

16.There is however no statutory guidance under this subsection as to how the Court should vary the maintenance order, although in making the original maintenance order under subsection (2), it speaks of a “reasonable” award having regard to the means of the parent against whom the application is made.  This means that the Court has a discretion in the matter, and subject to the result being “reasonable” having considered the means and financial situation of that parent, the discretion is not fettered in any way, as in order to arrive at a reasonable award, it would in fact be necessary to also consider all the relevant circumstances of the case, in particularly as in this case where there are multiple issues beyond not just over the means of the Respondent, but also the means and financial situation of the Applicant and the child’s needs, as well as any change to any of these matters since the making of the original maintenance order.

The Respondent’s Means

17.I shall start with the Respondent’s situation.  As he has been acting in person in these proceedings, the Respondent has filed quite a few very lengthly affirmations containing a considerable amount of allegations and information which are not entirely relevant to the issues before me, but which has inevitably caused the Applicant to file some equally lengthly affirmations in reply, therefore unnecessarily and unwittingly increasing the costs of these proceedings, not to mention the bulk of the court file and the trial bundle.

18.As aforesaid the Respondent was made redundant by Hong Kong Telecom in July 1998 and received a total sum of almost $3.5 million in redundancy payment.  He then found employment as an assistant sales manager at Jardine Office Services Ltd in September 1998 at a salary of $20,000 per month until January 1999 when his employment contract was not renewed.  From March 1999 the Respondent worked as an insurance agent for AIA until June 2002 when his employment was terminated due to his failure to meet the company’s business quota.  Based on his last employee’s tax return, he was then earning slightly more than $5,000 per month on average.

19.The Respondent claims to have since retired and been living on his savings and investments from the redundancy payment he received from Hong Kong Telecom, explaining that due to his age and the poor economic situation in Hong Kong for the past several years, it would be futile for him to try to look for a job anymore.  He initially lived by himself in a rented apartment in North Point, but has since about April 2004 moved to live in a flat in Shaukeiwan allegedly belongs to his present girlfriend, while his wife and 2 children have continued to reside in his Chai Wan property, the household expenses for which he says he has to be responsible at $19,550 per month including $3,000 as maintenance for his wife and $1,500 for each of his 2 children, although according to him, his wife earns $7,000 per month working for a property management company, while his 2 children are already in their 20s and 30s respectively.

20.In his 1^st Affidavit of Means of 9^th December 2002, the Respondent put his own expenses at almost $36,000 per month including $5,500 for renting his original apartment in North Point, $2,110 for household utilities, $4,500 for maintaining his car and parking fees, $7,608 for credit card repayments, and $3,000 for maintaining his widow mother, amongst the more substantial items, bringing his then total financial burden for his 2 households to more than $55,000 per month.

21.The Respondent has, as aforesaid moved to his present premises at Shaukeiwan since April 2004, a property which he says purchased on behalf of his present girlfriend and for which he is not required to pay any rent, and thus a saving of $5,500 per month for rental expenses.  Nevertheless he claims that his total expenses still remain a very heavy burden on him which has since his retirement been met only from his savings and investments.

22.Apart from using his savings to meet his aforesaid obligations the past few years, the Respondent’s evidence is that he had spent part of his redundant payment to pay off the mortgage of the Chai Wan property in the sum of $560,000.  He also at one time claimed to have set up an education fund of US$100,000 for the future education of his 2 children who might have plans for further studies abroad, but which he now seems to have accepted as unlikely or unrealistic.  What is left of his savings now, he says, is all represented by the $400,000 odd in his bank accounts, which would not even be sufficient to last him for another year at the present rate of his monthly liabilities.

23.This is however disputed by that Applicant who believes that the Respondent still has substantial savings as well as investments in the stock market, which he has admittedly dealt with in the past including subscribing for new shares for Tracker Fund, Bank of China, MTR, etc and for which dividends had been seen paid into his bank accounts up to end of 2003, but that the Respondent has failed to disclose the latest portfolio of his shares investments and hence their present value is unknown but which she believes to be still significant as otherwise the Respondent would have provided the particulars as a result of her repeated requests.  Accordingly the Applicant argues that the Court should draw inference that the Respondent’s stocks investments be at least $680,000 based on the original sums that he had spent for their purchase, and possibly more.

24.The Applicant has set out what she believes to be the Respondent’s assets situation in the Schedule B annexed to her written submission, in which she categorised them under stocks and shares at $682,839.24, properties at $1,220,000 and cash including savings in bank and trust funds at over $900,000, thereby putting the total means of the Respondent at more than $2.8 million plus undisclosed stocks and shares.

25.The Respondent does not dispute that he did subscribe for the first 4 type of shares listed therein, but claims that he is unable to confirm their present portfolio as it was his wife who carried out the transactions on his behalf and hence those shares were registered in her name but as she is no longer willing to corporate with him in these proceedings to provide him with the particulars of his interest in these shares, he is therefore unable to give any details.  As to the remaining 4 type of shares listed, which he alleges were also handled by his wife, he is unable to recall whether the subscriptions for them were successful or not, and that which, even if successful, would again be in his wife’s name and for the same reason aforesaid, he is unable to give any information about them either.

26.I find this evidence of the Respondent vague, evasive and unconvincing.  I fail to see why his wife would not want to co-operate with him, in particularly when no reason has been offered by the Respondent who is still the financial backbone of her family.  I do however accept that it would not be proper to just rely on the Applicant’s calculation of such shares based on the total amount the Respondent had subscribed for, as these shares were probably all over subscribed when they were first listed in the stock market and hence it is more likely that the Respondent was allotted only a fractions of the amounts he had paid for.  On the other hand, I agree with the Applicant that the burden of proof is on the Respondent to fully and frankly disclose his investment in stocks and shares, and that his failure to do so should rightly attract inferences to be drawn against him that he may have more stocks and shares than he is prepared to disclose, but for the reason that will be apparent, it would not be necessary for me at this stage to make any definitive assessment of his interest therein.

27.As to his capital situation, there is evidence from his bank statements that in July and August 2004 the Respondent had more than $370,000 in trust funds, and $455,000 in savings in his bank accounts in January 2005.  It is unfortunate that his trust fund accounts have not been up-dated to more recent months, but as he has not produced any evidence to the contrary, there is no reason to expect that his trust funds situation has since become any different.

28.What remains at issue is the Respondent’s interest, if any, in his present residence at Shaukeiwan which was purchased in May 2003 in his name but which he claims was made on behalf of his girlfriend Ms Cheng and with her money.  His evidence is that at that time Ms Cheng learnt about this property which had apparently been re-possessed by a bank and put up for sale by auction, and decided that it would be an excellent opportunity to purchase a property cheaply, but as she was too busy with her job, she therefore let him handled the transaction, which is why the property was purchased in his name but with her money.

29.The Respondent’s evidence was corroborated by Ms Cheng the hearing when she claimed to have all along worked in the sale of cosmetics earning reasonably good income.  She also produced her bank statements going back several years to show that she had accumulated sufficient savings to finance the purchase of the property without any assistance from the Respondent, and that the purchase money indeed came from such bank accounts of hers.

30.Having heard both the Respondent and Ms Cheng on this matter, although the Applicant may have good reasons to be suspicious about the purchase, and that Ms Cheng’s explanation that she did not find it necessary after the purchase to at least obtain a declaration of trust from the Respondent in respect of the property, if not to ask him to transfer it back to her, because she trusted him completely, is not altogether wholly satisfactory, nevertheless I am unable to find any evidence to suggest that the Respondent has either paid for or funded the purchase, nor am I convinced that Ms Cheng has gifted him the property.  In the end I accept her evidence that she is in fact the beneficial owner of this Shaukeiwan property.  I shall next deal with the Respondent’s expenditure.

31.Whilst it is not in dispute that the Respondent may have to maintain 2 households, the Applicant also suspects that he has exaggerated and even fabricated some of his expenses, and that other expenses may be excessive or unnecessary, all with the intention to mislead the Court as to the true extent of his financial burdens and his ability to maintain the said child.  From the evidence before me, I agree that the Applicant has good reasons for her suspicion.

32.Firstly, as the Respondent’s wife is earning $7,000 per month, it may be argued that it is not necessary for him to pay her $3,000 for her maintenance, and that in any event part of her income should go to meet her own household expenses.  More so with his 2 grown-up children who are long past the normal age for continued education, especially his son who is already in his 30s and should be working and earning.  In fact according to an earlier social investigation report made in 2000 when the parties were arguing over the question of access, the Respondent’s son was then already working as a warehouse keeper.  At the hearing the Respondent claimed that his son was no longer working and was only playing around with his computer at home.  The Respondent’s evidence under cross-examination about the present situation with his 2 children and their future plan is again vague and evasive, and I have serious reservation whether he still has to maintain either of them, in particularly his son, or that he has to set aside US$100,000 for their future education.  For these reasons I agree with the Applicant that some of the alleged expenses for his wife’s household such as medical expenses, maintenance for his wife and children are either excessive, unnecessary or fabricated.  Indeed if his son is in fact working, and there is no evidence to suggest why he should not be at his age, he may well be bringing in some financial support to his family, if not at least financially independent of the Respondent.

33.As for the Respondent’s own household and personal expenses, it is also argued that some items such as his meals out of home and medical are excessive, that his car expenses are also excessive if not unnecessary in view of the fact that he is no longer working, and that there is no valid explanation as to why he has run up his credit card bills to such level that requires a monthly repayment of more than $7,600, when he has already made separate provisions for all of his necessary expenses.  In fact, his latest credit cards statements show that he now owes less than $20,000 in total which can be easily paid off soon without any difficulty.

34.In conclusion I am not satisfied that the Respondent has demonstrated that he either has a total monthly expenditure of more than $55,000 as alleged, or that he has a reasonable need for that amount, and that even if he indeed spends as much, given his alleged present unemployment situation and the uncertainty of finding any gainful employment in the near future, he should have reduced or cancelled some of those expenses criticised by the Applicant, which I believe he could easily do so by as much as 1/3 of the total amount, in particularly if he is genuinely concerned that his present savings will not be sufficient to meet his future expenses at their present level.

35.The biggest problem that I have with the Respondent’s case, however, is not how much he actually or reasonably spends on himself or his family, but his allegation that he cannot afford to keep up with the monthly maintenance of $6,000 for the said child given the fact that he has substantial resources at his disposal.

36.As already mentioned earlier in my judgment, I am required to consider the Respondent’s means and that not only includes his income or earning capacity but all his other resources as well, such as his savings and investments, as the ability to pay periodical payments must be judged in the light of all the circumstances of the Respondent, and the absence of any or regular income, though an important circumstance, is not, by itself decisive.  As was said by Scarman J. in W v. W (No. 3) (1962) P 124, [1962] 1 All ER 736 :

“One must look at the man’s mental and physical resources, the money at his disposal, however it may be used, his capital position, and the rate of his current personal expenditure.  I do not pretend that this list is exhaustive, but it serves to emphasise the point that the ability of a husband to make procession for a wife falls to be determined not by a cash evaluation but by an evaluation of all his circumstances and resources”.

37.In that case the husband was described by Scarman J. to have :

“the intelligence to enable him to earn substantial sums.  He is, however, handicapped to some extent by uncertain health and by his age.  I do not think that there is left to him any substantial capital; indeed, I doubt if he has any.  He is heavily in debt to the Inland Revenue and to certain other creditors.  From the source or another he scrapes together enough to provide himself with accommodation in central London and, at times, with a motor car.  He has the facility of week-ends at Epsom.  Upon the evidence that I have heard I have formed the view that one way and another a sum of at least £1,500 per annum is being expended by the husband, or by others at his request, upon his maintenance and support.  This figure will not be found in the evidence; indeed, I am sure that the husband can demonstrate with a wealth of detail that such a sum never now comes into his hands, but he manages to live at about the scale of such an income”.

38.Although it is very much disputed by the Applicant that with his education background and work experiences, the Respondent should have no difficulty finding gainful employment instead of spending his days playing tennis or sitting around with his friends, as readily admitted by him, I do not think it is necessary for me on this occasion to carry out any detailed investigation as to the Respondent’s earnings or earning capacity, suffice to say although he was highly qualified with vast working experience in the past, he is already 59 at which age his earning capacity at best can only be described as uncertain.  He does however still have sufficient resources in savings and investments of at least $1 million, and probably more, readily at his disposal to meet the child’s reasonable needs, which is in fact what he has been using to meet his own expenses as well as those of his family consisting of an earning wife and 2 grown-up children, a resource which the Respondent cannot be allowed to say that he may use to support his 2 grown-up children born to his wife but not his 9 years old son born to the Applicant, an argument that the Respondent did concede at the later stage of the hearing to be invalid and agreed that he has sufficient means for the time being to pay for the child’s reasonable needs, but disputed whether the child really needs $6,000 per month from him, which is in fact the crux of the dispute between the parties.

The Child’s Needs

39.To consider what are the child’s reasonable needs it would of course be necessary to take into account of all his circumstances and that would invariably include those of his primary carer, the Applicant.

40.The child is now 9 years old and attends Primary 2 in Tsung Tsin Primary School, a private school for which the Applicant is said to have to pay $2,150 per month as school fees plus various school expenses including books, lunch and extracurricular activities at an additional sum of about $1,424 on average per month, according to her 7^th Affirmation (A3 : 1067).

41.The child has all along been residing with the Applicant in an apartment in the same Shamshuipo neighbourhood as before provided by the Applicant’s employer at a monthly rental of $1,500.  The Applicant works as a supervisor in the engineering department of Whole Sale Ltd. at a reduced monthly salary of $11,900 from a previous $14,000 due to poor financial situation of the company.  After deduction for MPF, her take home pay is therefore $11,305 per month.  She says she has no other income.  She has produced documents from her employer evidencing her income.  The Respondent however insists that she is still receiving $14,000 per month in salary and believes that she in fact also receives housing allowance of $4,500 plus bonus at $2,333, rental income of $1,800 from letting out her public housing unit, and contribution of $9,000 per month from her boyfriend, bringing her total income to almost $30,000 per month.

42.It is not clear on what basis the Respondent insists that the Applicant’s salary has remained as before at $14,000 per month, as he has not produced any evidence to challenge the Applicant’s which it is well supported by her employer’s certificate exhibited to her Affirmation of 19^th March 2003 (A1 : 292) and the bank statements of her Standard Chartered Bank account into which her salary is usually paid (A1 : 305 – 306).  Nor is it clear why he alleges that the Applicant receives 14 months of salary per annum thereby giving her additional income or bonus at $2,000 odd per month on average, as there is no evidence to that effect, either from the Applicant’s testimony or from any of the documentary evidence before the Court, other than the fact that in one of her earlier affirmations filed at the beginning of these proceedings in 1998 in which she deposed that she received a year’s end bonus at the equivalence of one month salary, and that her later bank statements show the deposit of a sum equivalent to a month’s salary in February 2003 which appears to be a year’s end bonus, there is no evidence to suggest  that the Applicant still receives similar bonus, let alone an amount equivalent to 2 months’ salary as alleged by the Respondent.  Based on the practice of the Applicant’s employer in the past, I am however prepared to accept that the Applicant may still be entitled to a year’ end bonus equivalent to one month of her present salary, thereby putting her average monthly income to about $12,200.

43.As regard the Respondent’s allegation that the Applicant receives a housing allowance of $4,500 per month, which as evidenced by the tenancy agreement dated 1^st April 2002 between the Applicant and her employer and exhibited to her said affirmation (A1 : 309), the Respondent appears to have totally ignored the fact that the employer also charges the Applicant a monthly rental of $6,000, hence she is required to pay the difference of $1,500 per month, which she has correctly set out as part of her expenditure and explained in further details in her evidence at the hearing.  To imply that she has received the benefit by way of housing allowances may be appropriate in ascertaining her income tax liability to the Inland Revenue Department, but for the purpose of ascertaining in these proceedings how much income that she has actually received without taking into account of the difference in rental payment that she will have to pay each month, this argument of the Respondent then becomes untenable.

44.The Respondent has also alleged that the Applicant used to receive rental income of $1,800 per month by letting out her public housing unit at Tuen Mun to one of her relatives until it was discovered by the Housing Authority and as a result the unit was returned to the Authority in late 2003.  This is denied by the Applicant who claims that she had never let out her unit for any rental income, and that the monthly deposit of $1,800 as shown in her bank statements were merely repayments of a debt from a friend.  Again there is no corroborative evidence of the Respondent’s allegation which is based entirely on his suspicion, but even if the Applicant did let out her unit, she would presumably be using the alleged rental income to pay her rent to the Housing Authority for her unit, and any profit which she might have been able to make out of it would be insignificant to have any useful purpose in these proceedings.  In any event this point is no longer relevant after the return of her unit to the Housing Authority some 18 months ago.

45.The same can be said about the Respondent’s allegation that the Applicant has cheated on the Government’s subsidies for the child’s education expenses such as school books which, like many of his allegations, is both petty and trivial, and is purely his own speculation unsupported by any concrete evidence.

46.As for the allegation that the Applicant’s boyfriend has paid her regularly $9,000 per month on average as contribution towards her household, the Respondent’s argument is based on his belief that her boyfriend is cohabiting with her and hence should be contributing to her financially, and that such contribution can be evidenced from the various deposits that he is believed to have made into her said Standard Chartered Bank Account (A1 : 302 – 306).

47.The Applicant denies cohabitating with her boyfriend or receiving any regular contribution from him, but admits that he would come to her home for meals from time to time for which he would always pay his own share.  As for the various deposits shown in her bank account, she admits that some of them may have been loans from her boyfriend to enable her to meet her expenses during the periods when the Respondent defaulted with his child’s maintenance payments.  In any event she argues that these deposits were made more than a year ago the details of which she could not be expected to recall accurately when she was asked about them by the Respondent at the hearing.

48.The Applicant’s bank statements (A1 : 302 – 306) only cover a period of 5 months from November 2002 to March 2003, during which there were about 8 deposits, other than those for her monthly salary, which the Respondent suspects were made by her boyfriend as his contribution payments as follows : -

7th November 2002	2,100
2nd January 2003	6,000
2nd January 2003	3,000
2nd January 2003	4,000
13th February 2003	7,000
13th February 2003	14,000
13th February 2003	5,000
13th February 2003	6,000
	___________
Total :	$47,100

49.This should give an average sum of $9,420 per month which explains the Respondent’s allegation that the Applicant receives on average $9,000 per month from her boyfriend.

50.There is however no corroborative evidence of the Respondent’s allegation that the boyfriend was at that time, i.e. in late 2002 or early 2003, already cohabitating with the Applicant, other than what he claims to be the words of the Applicant’s domestic servant which is hearsay.  Due to the on-going problem as to the Respondent’s access to the child at that time, there were several investigation reports submitted by the Social Welfare Department over that period but none of which was able to confirm that the Applicant was then cohabitating with her boyfriend.

51.It is of course possible that the boyfriend could still be making payments to the Applicant even though he might not be cohabitating with her at that time, but if so, what would such payments be for ?

52.Of these deposits, 3 in the total sum of $13,000 were made on the same day of 2^nd January 2003, while another 4 totalling $32,000 were also made on the same day of 13^th February 2003, which, if all were from the boyfriend, seem to support more of the Applicant’s evidence that some of them were loans to her when she was in needs, instead of regular contributions from the boyfriend which were in fact made on only 2 occasions over a period of 5 months, a rather peculiar way of paying regular household contribution indeed, which one would expect a rather more consistent amount payable at a more regular period instead.  For all these reasons I am not convinced that the Applicant at that time was receiving regular contributions from her boyfriend which form part of her income.  Her present situation with her boyfriend, however, may no longer be the same, which I propose to deal with next under her household expenditure.

53.In addition to the child’s school fees and expenses aforesaid, the Applicant puts the monthly expenditure for herself, the child and the household at more than $18,000, including about $2,750 for rent and household utilities, $4,476 for the salaries and other expenses of the domestic helper whom she says she hired solely to look after the child as she herself has to work, $5,770 for food for the family, $3,711 for her personal expenses, and $1,600 for the child’s (A1: 286).  The Applicant therefore argues that the Respondent should be responsible for 2/3 of her household expenses, the whole of the maid’s expenses and the child’s living and school expenses the total of which at more than $15,000 already far exceeds the current monthly maintenance of $6,000 and hence he has no good reason or basis to ask for its reduction.

54.With the exception of the child’s school fees, which I propose to deal with separately as the Respondent disputes the necessity for sending the child to a private school which charges expensive school fees, the Respondent does not appear to have much major dispute as to the necessity or the quantum of the Applicant’s alleged monthly expenditure, which she has itemised in Para 4 (c) of her affirmation of 20^th March 2003 (A1 : 286), and quite rightly so as I do not find any of them excessive or unnecessary, and that the amount as a whole appears to be normal or reasonable.

55.What the Respondent seriously disputes is the Applicant’s apportioning 2/3 of her household expenses as well as the whole of the maid’s expenses to the child.  The Respondent in fact believes that in addition to the Applicant, the child and the maid, there are 2 more persons residing in the Applicant’s household, namely her teenage son born to her previous marriage, and her present boyfriend as aforesaid, and given the child’s young age, the Respondent also argues that his actual needs and expenses should in fact be counted as only half of those of an adult, and hence only 1/8 of the total expenses of the Applicant’s household of 3 adults and 2 children should be counted as the child’s actual expenses.  On this basis and as calculated per item of expenses in his Affirmation of 24^th July 2003 (A2 : 817 – 822), the Respondent puts the child’s actual expenses at $1,477.83 which he rounds up to $1,500 per month as the amount which the Court should reduce to, with the resultant overpayment of maintenance at $6,000 per month by him for the past 4 years amounting to more than $120,000 should be paid back to him by the Applicant.

56.The Applicant denies that her son born to her previous marriage, who is now 17, is living in her home as he has already emigrated to Australia with his father’s family and would only stay at her place when he visits her in Hong Kong during his school holidays.  She also insists that the maid was hired solely because of the said child and hence all her costs and expenses should form part of the child’s expenses.

57.Apart from his own words, which is largely based on suspicion only, the Respondent has not produced any evidence to substantiate his claim that the Applicant’s elder son is residing in her home, and after hearing her evidence, I accept her explanation that her elder son has only stayed at her place during his visits from Australia and is not a regular member of her household, a fact verified by the Social Investigation Report of 13^th May 2004, I however do not think it is the same case with her boyfriend.  In addition to the Respondent’s claims to have seen the Applicant and her boyfriend in her neighbourhood, which is not surprising given her admitted close relationship with him and that the Applicant’s maid has told him so, which is hearsay and not admissible as evidence, the same Social Investigation Report also revealed that the Applicant was living with her boyfriend, a fact that the Applicant has put down as a mere misunderstanding on the part of the Social Welfare Officer and that her boyfriend has his own home to go to.  Without the
benefit of hearing the Officer, it would be difficult to verify the matter one way on the other, but having heard the Applicant and taking into account of the fact that they intended to marry each other soon this year, and in particularly the details given in the report about the boyfriend’s place in the Applicant’s home and his relationship with the child, I believe it is quite likely that her boyfriend has been staying at her place, if not regularly, at least most of the time to cause the Social Welfare Officer to so report, thereby putting the Applicant’s household to 4 members instead of only 3 as alleged by her.

58.As regard the maid, I accept that she was initially hired because of the said child, but since then she must have carried out other chores common to the Applicant and her household in general in addition to looking after the said child, in particularly in view of the fact that he now goes to whole day school.  I therefore do not accept the Applicant’s argument that the whole of the maid’s expenses should be attributed to the child, as I believe that in reality she works for both the Applicant and the child in her household.

59.On the other hand, I do not agree with the Respondent’s argument that the child’s share of the Applicant’s household expenses should be counted as 1/2 of an adult, as it is virtually impossible to say that a 9 year old child uses less water or electricity or occupies less living space than an adult, let alone only half as much.  The Respondent’s argument is based merely on his own perception, which is flawed and not supported by any evidence, expert or otherwise.

60.Nor is there any proper basis in the Respondent’s calculation of the child’s food expenses, as described in his Affirmation of 24^th July 2003 and based again on his own perception and apportionment of an ordinary family’s total income in Hong Kong.  There is simply no valid evidential basis for the Respondent’s calculation of the child’s food expenses at only $424 per month, which is unreasonably low for a 9 years old child even at first glance, and is totally and soundly repudiated by the numerous documentary evidence such as bills and receipts produced by the Applicant.  In my view the amount of household expenses put forward by the Applicant has been properly calculated on an average monthly sum based on both documentary evidence, experience and estimation.  It is both unnecessary and impractical to carry out any microscopic examination or analysis of each and every item in minute details but it is equally improper and illogical that the Respondent would agree in January 2000, when he was represented by counsel, to pay $6,000 per month to meet the needs of the child who was then only 4 years old, to now say that the child, some 5 years older, has a much smaller needs at only $1,500 per month.  Like many of the arguments raised by the Respondent in these proceedings, it simply smacks of total nonsense and absurdity.

61.When considering an application in relation to the financial relief for a child, although s. 10 of the Ordinance does not specifically require that the child’s welfare be of the first and paramount consideration, as is the case of the child’s upbringing under s. 3, nevertheless the welfare of the child is a relevant consideration even if not paramount or the first consideration, as was held by Hale J in J v. C (Child : Financial Provision) (1999) 1 FLR 152 where the father of an illegitimate child 18 months old won £1.4 million on the National Lottery and the mother subsequently applied for financial relief including a lump sum, transfer and settlement of property for the child.  When making an order requiring the father to purchase a four-bedroomed house for the child to live in with her mother and two sisters who were by a different father with the property to be held on trust for the child’s benefit until the age of 21 with reversion to the father regardless of the cohabitation or remarriage of the mother, Hale J said :

“I also agree with his Honour Judge Collins in H v. P that the child is entitled to be brought up in circumstances which bear some sort of relationship with the father’s current resources and the father’s present standard of living.  Parents are responsible for their children throughout their dependency.  The fact that such riches as they have came after the breakup of the relationship cannot affect that.  This case is not the same as Phillips v. Peace where the parents came from two very different backgrounds, or what in the olden days used to be called “stations in life”.  These two parents are reasonably equivalent.

Anyone in their position who could do so would expect to move into the private sector in due course.  The father himself has done so.  There is no reason why his daughter should not.  This is likely to improve the quality of her life, even if the standard of living will not be greatly different, if a house is acquired of the sort suggested in this case ……The other point made on behalf of the father is that he is not responsible for T’s two half-sisters.  Of course I accept that.  However, T does need to live with them.  In practical terms she needs to live with her mother and her mother has to provide for them and so I have to take that into account.  In human terms she needs to grow up with her sisters.  It would clearly be greatly to her benefit for her to do so.  In taking that view I draw some support from a v. A where there were two other children who were not the responsibility of the father.  Ward J held that this was immaterial because their needs did not greatly affect the cost of keeping a roof over the head of the relevant child and her career”.

62.In the case of Phillips v. Peace (1962) 2 FLR 230 mentioned therein, where the father of an illegitimate child operated very successfully in the financial world, owning and controlling a company through which he carried on a business dealing in shares, and that although he was assessed by the Child Support Agency to have no actual income to provide periodical payment for the child, in the mother’s application to court for an order for a lump sum which could be used in such a way as to provide regular support of the child, Johnson J said :

“C is of course the child of her father and I bear in mind the way of life and the standard of living that I would expect a child of the father to enjoy in the joint home of her father and mother.  Equally C is the child of her mother and I bear in mind the way of life and the standard of living that she might expect to enjoy had she lived with her mother and a husband or partner of the mother of ordinary means”.

63.On the basis that the father had the means and resources to meet the need of the child in respect of a particular item of capital expenditure, he was ordered to pay a lump sum of £90,000 to enable the mother to buy a house, plus £24,307.51 for furniture and other expenses.

64.In the present case the Respondent has put his own personal expenses at more than $30,000 per month, while those of his family of 3 adults with earnings or earning capacity at almost $20,000.  By comparison, his argument that the child needs only $1,500 per month is blatantly double standard, as well as mean, petty and nonsensical.  Having considered the circumstances of both parties, I do not find the Applicant’s household expenses of about $13,000 per month on average in anyway excessive, unreasonable or unnecessary as argued by the Respondent, but for the reasons aforesaid, it would be appropriate to apportion about 1/4 thereof to the child at about $3,300 per month on average.

65.What remains of the Respondent’s major dispute over the child’s needs and expenses is his present school fees.  The Respondent argues that at the time when the original maintenance order of $6,000 was made in January 2000, he agreed to this amount because the Applicant had told him during their negotiation that she would have to pay $3,600 for the child’s Kindergarten fee.  He now believes that the Kindergarten fee was never as much as $3,600, that the Applicant had obtained government subsidies for it, and that in any event after the child has started primary school, no school fee is necessary and hence his maintenance for the child should be reduced accordingly.

66.The Applicant denies ever misleading the Respondent over the child’s Kindergarten fees which she says was close to $3,000 per month in total including various miscellaneous school expenses.  As for the child’s school fees for primary school, she explained in her 7^th Affirmation that it is true that when she first enrolled the child for Primary One into Faith Lutheren School in September 2002, there was no school fees payable as it is a government school, but as she had grown dissatisfied with the quality of that school, she decided after the child had completed the 1^st term of Primary Two in January 2004 to transfer him to Tsung Tsin Primary School, a private school which she believes to be a much better one for the child but more expensive in school fees and other school expenses totalling more than $3,000 per month on average.

67.Most of these expenses are evidenced by invoices and receipts produced by the Applicant.  They appear to be normal and reasonable and beyond challenge.  The Respondent however questions the Applicant’s motive in sending the child to a much more expensive school just when he was challenging the amount of the child’s monthly expenditure in these proceedings.

68.As there is no evidence as to what was being said between the parties or their legal representatives which led to the agreement on maintenance back in January 2000, it is not possible to say whether there is any substance in the Respondent’s allegation over the child’s kindergarten fees.  It is however clear from the Applicant’s 1^st Affirmation filed in October 1998, when the child was only 2 and had not yet started kindergarten, that the Applicant had set out her then expenses for her household and the child at $17,780 per month, which was well above her then income of $13,000 and hence sparked the proceedings.

69.By the time of the parties’ agreement reached in January 2000, the child had of course reached the age for schooling and hence the question of such expenses would have been discussed and considered by the parties during their negotiation for the settlement.  These additional school expenses were set out in the Applicant’s 4^th Affirmation filed on 1^st September 1999 and amounted to more than $2,400 per month, with an estimated increase of a further sum of about $600 to the kindergarten school fees as from March 2000 when the child was expected to switch to whole day school.  These together with the Applicant’s up-dated household and personal expenses, bought her total expenditure to more than $20,000 per month.  For a household of 3 at that time, the child’s share of expenses would have been more than the sum of $6,000 which the Respondent eventually consented to in January 2000 and that the Applicant would have also to contribute towards the child’s needs, a fact no doubt that both the Respondent and his legal representatives were well aware of when the agreement was made.  It would therefore be too simplistic for the Respondent to argue 2 years later when it was no longer necessary to pay any kindergarten fees for the child, his maintenance payment should therefore be automatically reduced accordingly, ignoring the fact that as the child grows older, he would have additional needs including going to a primary school suitable to his needs and circumstances, as well as such other activities necessary and beneficial to his growth and development, and hence new and increased expenses, as I have already found earlier in my judgment.

70.Upon hearing the Applicant’s evidence in Court and reading her detailed explanation given in her 7^th Affirmation, I can only conclude that her only motive for sending the child to Tsung Tsin Primary School was out of her concern for the child to get the best possible education, which is what all concerned and responsible parents would do.  She has demonstrated her parental care and responsibility over the child throughout these proceedings, a fact well supported by the several social investigation reports submitted on the case, which has never been seriously challenged by the Respondent and I find his allegation that the Applicant would go through all the trouble in changing the child’s school to an expensive one so as to justify the child’s needs and to avoid a reduction to his maintenance is simply too far-fetched to believe.  As a custodial parent the Applicant’s obligations and responsibilities are to provide proper care, upbringing and education for the child, and that include sending him to what she thinks to be the best and most appropriate school, which she has done in this case.  I accept that her timing for changing school for the child which occurred during the present proceedings is purely coincidental and that the Respondent’s suspicion over her motive is totally groundless.  In conclusion, I find the child’s share of expenses in the Applicant’s household including the domestic helper’s amounts to about $3,300, this together with his personal expenses of about $1,600, and another sum of $3,500 for his school fees and school related expenses, should put his reasonable needs and expenses at a total sum of about $8,400 per month.

71.Having now established the child’s needs, which is in excess of the amount which the Respondent is required to pay under the maintenance order, the obvious question is : is it fair or reasonable for the Respondent to continue to pay $6,000 per month towards the maintenance of the child, or should this sum be reduced so that the Applicant should shoulder up a bigger share of the child’s expenses ? 

72.I have earlier already dealt with the Applicant’s income.  At $12,200 per month on average, the Applicant is clearly incapable of meeting the child’s expenses by herself without ay contribution from the Respondent.  In fact, even at the present rate of $6,000 per month payable from the Respondent under the order, the Applicant will still have to spare $2,400 per month from her income to meet the remaining balance of the child’s expenses, clearly leaving insufficient funds to meet her personal expenses as well as the household’s and the maid’s without relying on her boyfriend.

73.To deal with her monthly deficits, which has become more serious due to the Respondent’s defaults, the Applicant claims that she has to borrow from time to time from her boyfriend and was at one time in debted to him of more than $50,000.  Whether she is eventually required to repay all her debts to him is irrelevant, the fact remains that she is incapable of maintaining the child by herself without the current payment from the Respondent under the maintenance order.  Whatever financial relationship she may have with her boyfriend, there is no evidence to suggest that the boyfriend has directly or indirectly contributed towards the support of the child, for whom he has no obligation whatsoever, which lies wholly and solely on the Applicant and the Respondent.  There may come a time, and I hope it won’t be any sooner, if and when the Respondent has exhausted his liquid assets and has no other means to continue with the payment and hence the matter should be revisited and his situation be re-assessed, but in the meantime and for all the reasons aforesaid, I am not satisfied that the Respondent has demonstrated any ground for reducing his current maintenance of $6,000 per month for the child, which he should continue until the child reaches the age of 18, or until further order, hence his application for variation of maintenance is therefore dismissed, and as the Respondent has failed to show cause why the Garnishee order of 7^th January 2005 against his account with the Hang Seng Bank should not be made absolute as he still owes the Applicant the amount of arrears of maintenance for the period stated therein, I accordingly allow the Garnishee order nisi to be made absolute.

74.I shall now turn to the Applicant’s application for an order that the Respondent do provide security for payment of the said maintenance by way of depositing a lump sum with the Court as it deems fit so that the said monthly maintenance may be paid out of the deposit in the event of his default with payment.  The Applicant specifically asks for a sum equivalent to 12 months of the maintenance payment, amounting to $72,000.  Her reasons are set out in her 4^th Affirmation (A2 : 677 - 687), in that the Respondent has been in default on so many occasions the past 2 years, and in view of the difficulty in enforcing any payments against his Chaiwan property as aforesaid, there should be a better security by way of a lump sum sufficient to meet the child’s needs pending other enforcement proceedings such as judgment summons against the Respondent in the event of any future defaults on his part.

75.There is no question that the Respondent has persistently been in default with his maintenance payment the past 2 years since his variation application, resulting in the issue of 2 judgment summons and 2 garnishee applications against him over this period.  His explanation that he was entitled to reduce the maintenance unilaterally after the launch of his application is not acceptable, in view of the fact that he was then and still is financially capable of continuing with the payment, and that although his application might have taken unusually long to be heard, he has in fact mostly himself to blame by twice in the middle of the proceedings applying for variation of custody, and for failure to disclose properly the purchase of the Shaukeiwan property until it was revealed by the Social Investigation Report, thereby unnecessarily delaying and prolonging the hearing.

76.The evidence before me shows that the Respondent has all along been reluctant to face up to his responsibilities and obligations towards the child.  As aforesaid, starting almost from the beginning of these proceedings he has demonstrated such reluctancy by trying to be evasive of service, followed by his dispute over paternity without absolutely any merits, and his subsequent attitude and conduct throughout these proceedings which are all apparent in nearly all his affirmations filed herein, including his decision to make yet again another application for variation of custody of the child at the last minute of this hearing when things appeared not going his way, and then decided not to proceed with it until after the Court has made a decision on his application for variation of maintenance, all of which go to justify the Applicant’s concern about any future defaults by the Respondent and that better security should be put in place to protect the child’s interests than the existing one.  I however do not believe that the Applicant needs security for as much as 12 months’ payment as normally there should be no difficulty in bringing enforcement proceedings within 6 – 9 months at the latest.  I therefore order that the Respondent do deposit a sum of $48,000, equivalent to 8 months of the child’s maintenance, a sum well within his means, with the Court within 1 month of this order in an interest bearing account as security from which the Applicant can apply for payment by way of filing an affirmation of the Respondent’s default.

77.Having dealt with all the applications before me, I now invite the parties to fix a hearing before me on question of costs which I understand to be quite substantial.

Messrs Chaine, Chow & Barbara Hung for the Applicant

The Respondent acting in person