S, PF v. L,SY

FCMC 14673/2017

[2025] HKFC 149

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 14673 OF 2017

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BETWEEN

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J U D G M E N T
( Variation of Maintenance )

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This Application

1.  This is the Petitioner husband’s (“H”) application for a downward variation of lump sum payment to the Respondent wife (“W”) and maintenance for the child of the family J, born in February 2014, now age 11.

2.  In his application dated 22 March 2023 (“Variation Summons”), H asks for:

a. Downward variation of the monthly Lump Sum Arrears from an Order made on 4 March 2021 from $20,000 to $5,000 until the balance is settled.

b. Downward variation of the Child Maintenance pursuant to an Order made on 30 April 2019 of monthly payment from $30,000 to $10,000 until J attains the age of 18 years or ceases full time education.

c. Costs.

3.  H appears in person, W is legally represented. They both gave oral evidence at the hearing, and were cross examined.

4.  I have considered submissions from both parties, and do not intend to deal with every single point raised. I shall only be making reference to salient points of submission herein for the purpose of my decision.

Parties background

5.  H was age 51 at the time of the hearing, he works as a general manager of a medical devices company (“HMD-L”). W was 39 at the time of the hearing, she is a full-time housewife and mother of two children in addition to J.

6.  Parties married in the mainland in February 2009, J is the only child of the family.

7.  Parties separated in around July 2016.

8.  W remarried to A at the end of July 2021, H also remarried in December 2021.

Proceeding History

9.  H filed the Petition for divorce on 10 November 2017. Parties were able to negotiate terms of settlement.

10.  By an Order dated 30 May 2018, parties were granted joint custody of J, and joint care and control.

11.  Parties were also able to reach agreement on ancillary relief, and a Consent Summons dated 28 May 2018 (“CS”) was made an Order of Court on 30 April 2019. The relevant parts of this Ancillary Relief Order (“AR Order”) are as follows:

a. H to pay W the lump sum of $1,560,000 in the following manner:

i. The sum of $1,080,000 by way of 36 equal monthly instalments of $30,000 starting from January 2018 (“first part” of lump sum payment)

ii. Remaining $480,000 by way of 24 equal monthly instalments of $20,000 starting from January 2021.

(“Lump Sum payments”)

b. H shall reimburse W’s holiday expenses up to a maximum of $20,000 per annum from 1 January 2018 to 31 December 2019, and a maximum of $10,000 from 1 January 2020 to 31 December 2022.

c. H to pay child maintenance of $30,000 per month until J attains the age of 18 years or ceases tertiary education.

d. H to pay J’s holiday expenses in the maximum sum of $10,000 per annum from 1 January 2018.

e. H to pay for J’s school fees, school travelling expenses, school uniform and all other compulsory education costs until J completes full time secondary school education.

f. H to pay for J’s medical expenses until J attains the age of 18 years or ceases tertiary education.

g. H undertakes to maintain a life insurance policy of no less than $500,000 in J’s favour until J attains the age of 18 years or ceases tertiary education.

h. W undertakes to be fully responsible for “meeting all of J’s day to day living expenses when J is under her care” and until J attains the age of 18 years or ceases tertiary education.

12.  Recorded in the Recital K is also the following provision with regard to clean break:

“… the Petitioner intends not to make any application to vary the timing or quantum of the payment schedule in Recital M below in the event of a change of circumstances and undertakes not to vary the timing and quantum of such payment in the event of cohabitation, remarriage or the birth of additional children of either party. The Petitioner further acknowledges that a clean break will not be achieved until the lump sum payment in Order 1 has been paid in full.” (my emphasis)

Recital M is the clause dealing with the Lump Sum payments.

13.  Decree Nisi was pronounced on 30 April 2019, and was made absolute on 18 June 2019.

14.  Due to the default in payment by H, the parties eventually agreed by consent to a variation of the Lump Sum payments. The W’s case on this default will be further elaborated below. Pursuant to the Variation Order dated 4 March 2021 (the “Variation Order”), H undertakes to:

“… use his best endeavours to settle the Outstanding Arrears as soon as possible and he will:

(1) Make ad hoc payments to the Respondent towards the settlement of the Outstanding Arrears whenever he can do so, including when he receives any bonus payments: and

(2) Consider paying additional money each month towards settlement of the Outstanding Arrears after he has security of full employment after probation and after his tax bill for 2019/2020 has been paid; and

(3) Pay the Respondent $20,000 per month until the Outstanding Arrears are paid in full.”

15.  In this Variation Order, the parties agreed that the first part of the lump sum payment still had $500,000 outstanding. H’s obligation on the Lump Sum payment was decreased from $30,000 to $20,000 per month until the lump sum of $1,560,000 has been paid in full. The parties also agreed that J’s maintenance at $30,000 per month remains unchanged.

16.  In January 2023, H defaults again and unilaterally cut down payment to $25,000 in February 2023, and then further to $15,000 from May 2023. During this time, H filed this Variation Summons in March 2023, which was eventually set down for the current hearing on 4 September 2024.

H’s case

17.  The basis of H’s application are as follows:

(a) His income has decreased over the years with his change of employment. He quotes that in 2017, he was earning $137,500 with an annual bonus, totalling an annual package of $3,150,000, then his monthly salary in 2023 is $105,000 which translates into an annual remuneration of $1,260,000 with no bonus. This is a 60% decrease in his income.

(b) He says his disposable income after his expenses is $14,570 and therefore unable to pay.

(c) He argues that W’s husband A has substantial income and wealth and that W has a “beneficial interest in her husband’s wealth”; and that as she is financially supported by him, she has no financial worries.

(d) He says W has assets in China.

(e) He says that W has inflated J’s expenses, and that J’s expenses could not have increased over the years.

(f) He also says that W is not spending the amount on J as she states.

18.  H also presents his various employment and related income in his closing submission:

Employer	Employment dates	Monthly salary ($)	Annual salary/ Bonus ($)	Total annual remuneration ($)	Average monthly remuneration ($)
PTS-C	Aug 2013 – Jan 2018	137,500	1,650,000 / 1,500,000	3,150,000	262,500
UOL	Jan 2019 – Mar 2020	125,000	1,500,000 / 750,000	2,250,000	187,500
C	Sep 2020 – Jun 2021	129,667	1,556,000 / 389,000	1,945,000	162,083
HMD-L	Dec 2021 – time of hearing	105,000	1,260,000 / 0.00	1,260,000	105,000

19.  In his opening submission, H brings up information from 2017, which was the backdrop of their negotiation leading to the CS, he also speaks of how much W received in their settlement.

20.  Other historical events he mentions include:

a. His unlawful termination by PTS-C in January 2018, and how he took his case to the Labour tribunal, won the claim for $800,000 and then PTS-C liquidated the company and he lost his award.

b. That he was only unemployed for 17 months out of 32 months between January 2018 to September 2020.

21.  H argues that he maintains full child maintenance payment even during periods of his unemployment.

22.  H says that due to immense financial burden in January 2023, he asked W to consider a reduction in payment, and when she refused, he says he had no choice but to seek the current variation application.

23.  From his Affidavit dated 7 July 2023, he says that his total salary package from HMD-L up to February 2023 was $1,300,000, he later says that this is for monthly salary of $100,000 per the contract with HMD-L he produces, plus a 13^th month “double pay”. He also says he is paying $12,575 for tuition and education related expense and $3,765 for additional monthly expense of J as follows:

Education and related expenses	$
Tuition	9,925
Transport to School (including school bus)	1,745
ECA	565
School Uniform	240
Other school expenses	100
TOTAL	12,575
J’s additional expenses
Sports Activities	600
Entertainment / Presents	500
Holidays (UK family trip)	1,000
Food and Clothing	800
Life Insurance Premia	1,465
TOTAL	3,765*

*should be $4,365

24.  He declares his living expenses in his Affidavit as $45,500, but expenses in his Form E is $66,930, this will be further analyzed below.

H’s Open Proposal

25.  He proposes that the Lump Sum payment instalments should be reduced to $5,000 per month.

26.  He also proposes that J’s actual needs now are only $7,000 per month and proposes to reduce Child Maintenance to $10,000.

27.  He asks for backdating of the monthly payments to the date of his Variation Summon; this only appears in his opening submission, but not in the Variation Summons.

28.  He asks that each party pays for their own costs.

W’s Case

29.  W objects to H’s application; she says there has been a prolonged period of breach of both Orders.

30.  W argues that there has not been a material change of circumstances.

31.  W says that by H’s Variation Summons, H is asking to extend the payment of the Lump Sum payments by 49 months to 196 months, notwithstanding that the original Lump Sum payment has already been once varied in March 2021.

32.  W argues that even with the decrease in his income, it does not justify the drastic decrease that H is now seeking.

33.  She also argues that the income and earning capacity of the H’s wife can be taken into account.

34.  W therefore says that H has exaggerated his financial situation to evade payment responsibilities.

35.  With regard to J’s expenses, W says that it has increased from the AR Order when J was then 5 years old to now a pre-teen at an international school, and that his expenses are reasonable. Furthermore, H cannot argue that J’s change of school constitutes a change of circumstances as H has agreed to the change and W is paying for the difference.

36.  Furthermore, H’s reliance on W’s remarriage as a change of circumstances is untenable as turning to the original AR Order, remarriage of the parties was within contemplation and H has undertaken not to seek variation base on either parties’ remarriage.

37.  W says that she has depleted her savings in the previous two years to pay for J to manage the shortfall due to H’s default, and has been assisted by her husband A in this regard.

W’s Open Proposal

38.  W’s Open Proposal is that there shall be no variation to the Lump Sum payment nor the child maintenance, and that costs be awarded to her.

W’s case on H’s default of the Lump Sum Payment

39.  In W’s affirmation dated 23 June 2023, she set out the history of H’s default of the Lump Sum payments. In brief as follows:

a. H complied with his obligations under the AR Order until November 2018. According to him, he started paying per the CS from January 2018 despite the CS was not yet made an Order of Court.

b. H defaulted between November 2018 to January 2019. W agreed that these payments could be suspended for the 3 months.

c. But H did not resume payment in February 2019, W says this is despite he has found new employment in January 2019 earning $125,000 per month. H continues his default thereafter.

d. In August 2019, W received a single incomplete bank statement stating H’s total relationship balance with the bank from 1 May 2019 to 31 July 2019 was $791,635. There follows questions on the bank account and negotiation on repayments.

e. Finally in October 2019, parties agreed for H to pay $180,000 for the outstanding between November 2018 to April 2019, and thereafter $20,000 per month from November 2019 to April 2020; with agreement to review repayment plan in April 2020.

f. At the end of March 2020, H indicated that he would only pay for J’s maintenance. Thereafter follows a long period of chasers and questions, with the parties finally signing a consent summons in February 2021 which led to the Variation Order, covering H’s arrears from October 2018 to be paid at $20,000 per month until full payment is made.

g. Throughout the period, there were many correspondences between the parties’ legal representatives; there were requests for financial disclosure which were mostly ignored by H, or when produced were incomplete.

h. From the limited disclosure, W found out that H’s sister was holding on to $183,981 and GBP20,000 on behalf of H, she says these could have been used to pay for his outstanding payment and he chose not to do so.

i. W also found out H’s various new employment during this period after UOL, then C and then his current employer HMD-L.

j. The parties’ negotiation ended up with a Consent Summons signed and resulting in the Variation Order made in March 2021.

k. For about two years after the Variation Order, H had honoured his payment obligations under the Order.

l. Just two months before this Variation Summons, H told W that the payments under the AR Order and Variation Order were unfair, he unilaterally cut his payment from $50,000 ($30,000 for J and $20,000 under the Variation Order) to $25,000 and from May 2023, started to pay only $15,000.

Legal Principles

40.  The empowering legislation for variation of maintenance is in Section 11(1) and (7) of the Matrimonial Proceedings and Property Ordinance (Cap 192):

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

….

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

41.  The modern approach in dealing with an application for variation of maintenance is summarised by Cheung JA in AEM v VFM [2008] 3 HKLRD 36 at §14, in particular the following sub-paragraphs:

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

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

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

7. …

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

(emphasis added)

42.  This theme was reiterated in a later Court of Appeal decision on variation, WNWG v PBF [2012] HKCU 675, where the Hon Lam J quoting in part from another important judgment on this issue, HCTT v TYYC [2008] 5 HKC 86, added that:

[12] As regards the approach that the court should adopt in considering an application for variation and the weight to be attached to the original order, Tang V-P said in HCTT v TYYC [2008] 5 HKC 86 at paras 15 to 16,

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

Almost invariably, an application to vary an earlier periodical payments order will be brought on the basis that there has been some change in the circumstances since the original order was made, otherwise, except in exceptional circumstances, the application will, in effect, be an appeal. If it was correct when made, then there will usually be no justification for varying it unless there has been a material change in the circumstances. However, because of the impact of continuing inflation, because children grow older and cost more to support and because, for example, the cost of living in its increase may hit one party harder than another, it will usually follow that, if time has passed, there will inevitably have been some changes in the circumstances, and in particular in the financial circumstances, of the parties concerned.

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

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

43.  The principles are trite in that there should be some change of circumstances since the previous order was made and I am entitled to look at the case de novo.

44.  In the context where the previous Order made was by consent, Rogers, V-P in the Court of Appeal case in G v G [2001] 1 HKLRD 580, confirmed the jurisdiction to vary a consent order for payment of lump sum by instalments; but however in confirming the decision, stated that:

“But in the absence of circumstances which makes the agreement voidable due to duress, a mistake, fraud or the like, it seems to me that this should only be done where there has been a material change of circumstances so drastic and unforeseen as to make it only fair to vary.” (at p584 F-H) (emphasis added)

45.  And in the Court of Appeal decision of CH v MEH [2012] 1 HKLRD 751, Cheung JA (as he then was) stated that the jurisdiction to vary under these circumstances must be exercised with caution. Further, quoting from paragraph 24:

“This strict approach was affirmed 32 years later in Westbury v. Sampson [2002] 1 FLR 166 which was a negligence claim against a solicitor who had not advised the husband that a consent order for lump sum payable by instalments was liable to be varied. The wife had successfully varied the consent order. The judgment of Bodey J in the Court of Appeal is instructive:

[56] So far as counsel have been able to find, there are no decided cases stating any principles on which the court should act when applying s 31(1) and (7) to orders for a lump sum payable by instalments.

[57] Nevertheless, given the constant emphasis in the authorities generally on the need to uphold the finality of orders intended to be final, including orders as to capital, it seems to me that very similar considerations ought in practice to be applied under s 31 as those laid down in Barder v Caluori [1988] AC 20, sub nom Barder v Barder (Caluori Intervening) [1987] 2 FLR 480, at any rate as regards varying the overall quantum of a lump sum order by instalments (as distinct from re-timing or ‘re-calibrating’ the instalments).

[58] The re-opening under s 31 of the overall quantum of lump sum orders by instalments, especially when made as part of a package intended to be final (and all the more so when ordered by consent following an agreement) should only be countenanced when the anticipated circumstances have changed very significantly, and/or for cogent reasons rendering it quite unjust or impracticable to hold the payer to the overall quantum of the order originally made.” (emphasis added)

46.  The legal principles, therefore, enable me to look at this matter afresh; I need to find not just a change of circumstance, but one which has changed significantly; furthermore, the sanctity of an Order which came about by consent and meant to achieve a clean break, should be upheld and be slow to change except for very good reasons.

Discussion

Allegation of Non-disclosure

47.  Further to W’s depiction of the events during the time from November 2018 to this Variation Summons on the difficulties to elicit financial disclosure from the H, she further avers that:

a. H has claimed that HMD-L does not provide annual performance bonus, but his contract says he is eligible for discretionary bonus.

b. H’s Form E disclosure presented only the first page of bank statement despite having been already told by W’s solicitors in 2020 that this is an incorrect way of producing bank statements.

c. After further requests, H then produced more documents including a UK bank account not disclosed before.

d. There was no details of HSBC accounts in his Form E dated 23 June 2023 despite a letter written by him on 2 September 2020 to the W’s solicitors declaring he has HSBC Advance, Premier and Business account, and also bank account in the UK. Although further information on these accounts was provided in due course.

48.  In the W’s closing submission, there continues to be allegations of failure in full and frank disclosure. This includes H’s HSBC Advance account which he claims to be “no longer in use”, but no statements were produced despite records could be obtained from the bank up to 7 years; and his failure to produce credit card statements claiming that he has not maintained any credit cards for over three years yet failed to adduce any evidence that his previously declared credit cards had been cancelled as he alleged. It is W’s submission that these failures warrant the Court to draw the necessary inference that H has more financial resources than he claims.

Issues to consider

49.  The issues to be considered are:

i. Has there been a material change of circumstances so drastic and unforeseen which warrants H changing his Lump Sum payment and maintenance payment for J?

ii. Does H have the ability to pay?

iii. Is the level of maintenance reasonable?

Has there been a change of circumstances?

50.  First to look at what time frame is to be considered when looking at whether there has been a material change of circumstances. It would appear that H is looking at the time of the original AR Order (remembering here that the CS was signed in May 2018, and the AR Order was made in April 2019), whereas W is looking at the situation from the time of the Variation Order in March 2021.

51.  I take the view that the change of circumstances should be from the time of the Variation Order in March 2021. Common sense dictates that should H feel that he was so tight in his finance to negotiate a new arrangement in 2021, then he should also seek to change the child maintenance, but he did not do so. At that time, he had only sought to vary the Lump Sum payment downward by only $10,000. Looking back at his employment history, when he entered into the Consent Summons for the Variation Order, he must have already taken into consideration any changes in his personal circumstances prior to March 2021, and should have some fore-thoughts on managing his finances to pay the AR Order and the Variation Order to be made. Yet in the Variation Order, H did specifically confirm he will continue to pay J’s maintenance of $30,000.

52.  W says that for almost two years after the Variation Order up to January 2023, H has complied with the Order; this is despite the following events:

a. H’s employment with C was terminated in June 2021

b. W remarried at the end of July 2021

c. H took up employment at HMD-L in around December 2021 (which pays a lesser salary than C)

d. H remarried in December 2021

e. J changed school from G School to K School upon the parties’ consent in January 2022.

Yet H did not file his Variation Summons until March 2023 after unilaterally decreasing the payment the month before.

53.  The only relevant factor I will consider is that at the time of the Variation Order, he was in C’s employment making $129,667 per month, and then from December 2021, HMD-L pays him $100,000, which was subsequently increased to $105,000. This latter monthly amount is not challenged, except W did say he is entitled to discretionary bonus which he denied. The difference shows a 19% decrease (not 24% as stated in his closing submission).

54.  While it is clear from the chronology and the unchallenged evidence of H’s current monthly salary that there has been a change; I adopt a point from W’s argument, that on monthly salary alone, there has been a 19% decrease; but measuring this against his application under the Variation Summons: a decrease in his payment from $50,000 ($30,000 + $20,000) to $15,000 ($10,000 + $5,000), of 65%; is clearly a disproportionate ask.

H’s Ability to Pay

55.  H’s declared expenses appear in two places: In his Affidavit, he cites his expenses as $45,500:

Rent	$22,000
Household goods and utilities	$3,500
Household Food	$6,000
Income tax	$15,000
	$45,500*

*should be $46,500

56.  But in his Form E, his expenses total $66,930, excluding the $20,000 of Lump Sum payment under the Variation Order:

Item	$
General Expenses
Rent	22,000
Utilities	1,500
Food	6,000
Household expenses	1,000
Insurance premia	2,930
TOTAL	33,430
Personal
Meals out of Home	5,000
Transport	2,000
Clothing / shoe	1,000
Personal grooming	500
Entertainment / present	5,000
Holiday	5,000
Tax	15,000
	33,500
Outstanding arrears	20,000

57.  In the light of H’s long outstanding Lump Sum payment due to W, (originally scheduled for 5 years, and now proposed on the H’s part to likely extend from now to more than 16 years, per the W’s submission), which is clearly prejudicial to W, and also H’s duty to provide for his son; H is expected to economize on his spending until such time as he has fully discharged his obligations.

58.  Regarding H’s General expenses, he declares a lesser amount on utilities and household of $2,500 instead of the $3,500 in his Affidavit, I take the view that for a two persons household (H and his current wife), the lesser amount makes more sense. The food expense is excessive for a household of two, and I shall reduce this amount to $3,500.

59.  This makes his general expenses a total of $22,000 + $2,500 + $3,500 + $2,930 = $30,930.

60.  I also take the view that his personal expense looks excessive. His obligation for the Lump Sum payment and maintenance payment to his son should take priority over the spending on meals out of home, entertainment and holidays. For the assessment of his reasonable expenses, I shall allocate a total of $9,000 for the first 6 items of his personal expenses instead of his declared $18,500. This makes his personal expenses, excluding the Outstanding Arrears, $9,000 + Tax payment = $24,500.

61.  As for his own spending on J, the numbers in his Affidavit differs slightly from those in his Form E again, see comparison table below. In the spirit of economy, I will adopt the figure $15,875.

Child
	Affidavit ($) 22 March 2023	Form E ($) 6 April 2023
Tuition	9,925	9,925
ECA (School)	565	565
School books	0	100
Other School expenses	100	0
Transport to school (school bus)	1,745	1,745
ECA (rugby)	0	200
Sports activities	600	0
Entertainment / presents	500	500
Holidays	1,000	1,000
Clothing / Shoes	0	1,000
Food and Clothing	800	0
Lunch and pocket money	0	200
Other Transport	0	400
Uniform	240	240
Life Insurance Premia	1,465	0
TOTAL	16,940	15,875
Child Maintenance	30,000	30,000

62.  I will also add here that the monthly amount of H’s payment of J’s annual travel expense is $10,000 / 12 = $833.

J’s reasonable expenses according to W

63.  J’s needs appear in both W’s Affidavit and her Form E, as follows:

Items	Amount ($)
General Expenses
Rent	63,000
Utilities	5,000
Food	15,000
Household expenses	2,000
Car expenses	10,000
Domestic Helper	10,200
Total	105,200
Child Expenses
School Fees	5,000
Tuition	4,855
School books and stationery	500
Transport to school	500
ECA	2,000
Entertainment	4,000
Holidays	4,000
Clothings / Shoes	2,000
Lunches and pocket money	2,000
Other transport	500
Others Vitamins supplements	1,000
	26,355

64.  W therefore says that J’s portion of General Expense should be ¼ of $105,200, being $26,300 (W has only counted 4 persons living in the apartment, and has not taken into account a new born child) and J’s own expenses at $26,355, therefore a total of $52,655.

65.  In considering afresh what should be the expenses that H has to pay to W for J, I must have regard to the undertaking given by W to H in the AR Order, which reads:

“P. AND UPON the Respondent agreeing, confirming and undertaking to the Court and to the Petitioner that she shall be fully responsible for meeting all J’s day to day living expenses when J is under her care and until J reaches the age of 18 years or ceases tertiary education (first bachelor’s degree). (my emphasis)

In this context, I acknowledge that even with this undertaking, the parties did agree back in 2018 for H to pay $30,000 for J. I do not have in evidence what this $30,000 is meant for; at the same time, H has also undertaken to pay for school fees, school related expenses, medical expenses, insurance, and travel under the same Order. There is no submission in the current case as to how the above undertaking affects the present application. But W has submitted that I should take into regard H’s undertaking not to seek variation based on parties’ cohabitation, remarriage or additional children, it is only fair that I should also take into regard her undertaking in the same Order.

66.  I must also consider the time that J spent with the respective parties. Pursuant to the Order relating to the child dated 30 May 2018, the parties have joint care and control of J, and J is with H on one weekday staying access starting from after school to the start of school the following morning; and on Saturday from 6pm to start of school on Monday morning. When H cross examined W at trial, he put to her that he has J 47% of the time, and she has 53%, and says that he is basing his case on the hours J spent with them respectively; when he was cross examined, he also said he has J half the time. W does not dispute this.

67.  The following are my comments on J’s portion of General Expenses:

a. H contends that J should not be charged rent, since W and A need a marital home regardless of J's presence, and J does not even have his own room or bed (the latter point was established at W’s cross examination). I do not agree with H’s argument; as long as J is occupying W and A’s residence, the rental amount should be taken into account.

b. I construe Utilities, Food and Household expenses as “day to day living expenses” and should fall under the W’s undertaking above mentioned; on my calculation of the total of $22,000, which I will divide by 5 (being 5 persons in the household, 2 adults and 3 children), J’s share would be $4,400, this amount should be borne by W per her undertaking.

c. H argues that the A’s car expenses should not be taken into consideration as J is hardly using the car. W says that other than going out as a family in the car, J is driven in the car to his activities. While H tries to challenge how many times J is in the car and the duration (in terms of minutes) for the trips, this is not the Court’s approach in considering this expense. I will accept W’s argument.

d. Under General Expenses, the amount I will take into account are therefore, rental, car and domestic helpers. ($63,000 + $10,000 + $10,200) totalling $83,200. On a broad brush basis, and taking into account that J spends half his time with each of his parent, I will allocate J’s portion of the General Expense to be $10,000.

68.  As for W’s version of J’s expenses. H argues that he pays for a lot of the items on W’s list already. This includes school fees, extra tuition, school books, transport to school, ECA, and holidays. Looking at the numbers provided by W, these are my comments:

a. Regarding school fees. In around September 2021, W proposed for J to switch school from G School to K School, H was reluctant and only agreed in the end when W offered to pay for registration fees and the difference in school fees and other additional fees. J started at K School in January 2022. It came out in W’s cross examination that W has not been paying for the difference, and she does not appear to be disputing that. In his closing submission, H now says that instead of the $12,575 he declares in his first Affidavit, he now pays all of school fees, which includes an additional amount of $6,650, and total school expenditure now exceeds $20,000 per month. There does not appear to be supporting evidence for H’s statements; but neither were these challenged by W. However, I take the view that W should abide by her commitment to pay the difference in school fees between K School and G School. H’s expense in this regard should remain $12,575 as he declares. And the item of $5,000 shall be removed from the table as this should be borne by W.

b. There were disputes between the parties for W’s numbers for tuition ($4,855) and ECA ($2,000). It appears that these cover at least mandarin, piano, and drum. In H’s cross examination of W, he argues that these are “non-critical expenses”. I acknowledge that for joint custodial parents, there should be discussions as to what lessons a child is attending, in particular where it involves payment of fees which may be a bone of contention, as in this case. I do not think that a child should be deprived of tuition and even more so, ECA of interest. H’s declaration on this item is only $565, this is a very small amount. On a broad-brush basis, I will allocate $4,000 to these 2 items.

c. I accept H’s position that he is paying for schoolbooks and transport to school.

d. For entertainment, H criticizes that $4,000 per month is excessive, he argues that it should only be $500. Again, I find the latter amount on the low side. I accept that parents will organise different entertainment for when a child is with them. I will allocate $1,500 for this item.

e. H does not accept J’s holiday expense of $4,000, he says he is already paying W $10,000 a year for J, and if W wants to take J on other holidays and incur beyond this amount, she should pay herself. I accept his argument and will ignore W’s number on this item of expense.

f. W claims $2,000 for J’s Clothes / Shoes; H says this is high fashion, and only claims $800 for food and clothing for J per month himself, and counter this with $1,000. I take into consideration that as J is now 11 and a growing child, and accordingly award $1,500 for this item.

g. W claims $2,000 for lunches and pocket money. This item does not appear in the itemized spending on H’s list in his Affidavit but he did add this back in his Form E, which reads only $200. I find H’s proposal unrealistic and accept that W’s proposal is a reasonable one.

h. H accepts “other transport” of $500.

i. H challenges vitamins supplements as unnecessary for J, taking his interest into regard, I will allow $500 for this item.

69.  Based on the above analysis, the items I will take into account from W’s estimation of J’s expenses are as below:

Item	$
Extra Tuition and ECA	4,000
Entertainment	1,500
Clothings / Shoes	1,500
Lunches / pocket money	2,000
Other Transport	500
Vitamins	500
	10,000

70.  I have assessed J’s portion of General expense as $10,000 and his own expenses to be $10,000, making a total of $20,000. In calculating the proportion to be borne by the parties, I have taken into regard H’s own case that the time J spent with him is 47% to 50% of the time; but I also have to look at the payment capability of the parents. W is now a housewife and according to her, her savings have been depleted and is largely reliant on A. Be that as it may, I am of the view that she needs to bear a proportionate amount of J’s expenses; I will therefore allocate 75% to H and 25% to W, making H’s maintenance for J payable to her to be $15,000.

71.  Based on this analysis, technically, W is bearing $5,000 of the above expenses, $4,400 for the utilities, food and household expenses as abovementioned (based on her undertaking), the difference in the school fees of G School and S School which is around $6,650 according to H. I expect her to find her own means to pay for the above amounts, which she will have when H pays her the outstanding lump sum arrears; for the purpose this application, I am only focus on H’s obligation.

72.  To summarize H’s payment for J’s expenses, his own portion should be $16,708 (being $15,875 + $833) based on the calculation above; and he shall pay to W at $15,000 going forward, instead of the previous amount of $30,000.

73.  Looking at the H’s financial position, my analysis is as follows:

		Paragraph reference herein
H’s income	105,000
Less:	Base on my assessment
H’s general expenses	30,930	59
H’s personal expenses	24,500	60
H’s own payment for J	16,708	61, 62 and 72
H’s payment to W for J	15,000	70
BALANCE	17,862

Lump Sum Payment

74.  The Lump Sum payment commenced from January 2018, and full payment was expected to be completed by December 2022. This was intended as a clean break settlement between the parties; yet they had consented to change the payment instalment amount under the Variation Order, and more than two years since, W is now incurring costs needing to fight for the outstanding arrears.

75.  Referring to the case law above, it is clear that except for very good reasons, the court should not allow a lump sum payment by consent to be varied. Repeating a point made by W, the percentage decrease in his income from the time of the Variation Order to now is only 19%, this hardly justifies an application to bring his instalment payment down from $20,000 to $5,000.

76.  Given that the re-assessed child maintenance above has decreased from $30,000 to $15,000, this should free up some of his resources to pay for the $20,000 monthly Lump Sum payment. §73 above shows that H has the net balance to pay for this sum, with around $2,138 shortfall. I am of the view that this could be made good from assets in his bank accounts and also from the amounts he has placed with his sister for emergency purpose.

77.  With regard to the latter point, it comes out in H’s cross-examination that he has transferred money to his sister in the UK. He has sent a letter to the W’s solicitors in July 2020, and declared the following:

“Additional funds

By way of full disclosure, my sister has HK$160,000 of my money and GB£2,000 in her UK account which I transferred to her as emergency money last month.

• In March, I was informed my employer was failing and could not continue to pay my salary, I knew I would get in serious financial difficult quickly, so I transferred money from my HSBC account to my Hang Seng account and then $80,000 to my sister (see Hang Seng statement for April).

• In May, I unexpectedly received a settlement payment from my old company (PTS-C) of $95,000 which I also put into her account.”

And then in another letter dated 2 September 2020, says the following about these sums:

• “The funds were transferred for safekeeping. I lost my job in early March and still had debts to pay which I could not afford to continue paying. So I transferred the money to my sister as an emergency to try to manage my finances better”

In cross examination, the placing of the money with his sister was confirmed, and he says that “it was there in case I’d completely run out of money and it would give me some survival money at the time.”

78.  Further, if I take into account that his current employer HMD-L has paid a 13^th month double pay in the past, making his annual salary $1,300,000 as above mentioned, his monthly salary would be averaged at $108,333. I also refer to one of W’s argument that with reference to the the H’s Employer’s Return for Remuneration for year-end 2023, the salary received by H was $1,051,000 + $264,000 = $1,315,000 which monthly average is at $109,583. Either way, these numbers should give H some buffer for his expenses and his obligations under the two Orders.

79.  Therefore, I conclude that that H has the resources to pay for the Lump Sum payment in full; and the $20,000 under the Variation Order made by consent shall stand.

Dealing with H’s other arguments

Parties’ remarriage

80.  W remarried in July 2021. H argues that as W’s husband A has financial means, therefore W has no financial worries; which is one of the basis that he is seeking variation.

81.  W says that she had co-habited with A since end of 2017, a fact that is well known to H. At the time of signing of the CS in May 2018, when H was legally represented, and under legal advice, he has provided his undertaking as stated in paragraph 12 above; in the absence of a discharge of this undertaking by the Court, he is bound. It is not on him to seek a variation based on W’s remarriage or use that factor to support his application.

82.  H tries to introduce evidence of A’s means, including resorting to “publicly available data” to search for the salary of someone with A’s title in his employment; and to investigate A’s assets outside the jurisdiction. This is an unacceptable approach to take. The principle is trite that a payor of child maintenance cannot look to an ex-spouse new partner to provide for his own child; it remains his duty as father to pay for J’s expenses, and he should not be relying on A to (indirectly) supplement him in this regard. Nor can he say that as W has a beneficial interest in her husband’s wealth (an argument not elaborated at trial), she is therefore financially comfortable and hence H can pay her less.

83.  H also says in his Affidavits and answers to questionnaire of his need to financially support his current wife. While he does not rely on this point in his contention for variation, it bears reminder that the law does not allow this to be done in priority to his obligations towards W and J.

H’s closing submission

84.  I now turn to the issue with H’s closing submission. At the end of the trial, I made an Order that closing submission is to be limited to 15 pages. Looking back at the transcript, I did spend time explaining to H, in particular as to what should go into the submission, and what can appear after the 15 pages, namely annexures or endnotes. H has indicated that he understood.

85.  When H submits his closing submission on 30 October 2025, it contains 21 pages; and then on 4 November 2024, H wrote again to re-submit an Appendix 5 and made highlighted changes on some “typos”.

86.  Not surprisingly, W’s legal representation complained. In the letter of complaint from W dated 13 November 2024, it was submitted that H is not playing fair, that he has done it before, in his attempt to adduce additional evidence at the day of trial and also when the Attachment of Income hearing was heard on 23 September 2024; and was dismissed on both occasions. She also said that H’s closing submission contains further factual submission in his Appendix 5 by “sneaking in” additional analysis by way of “Explanatory Tables” and annotations. She further says that H has actually made more changes that those he highlighted and proceeded to cite in full all the changes that H had actually made.

87.  I sent a memo on 21 November 2024 to the parties to say that I may exercise my discretion to ignore H’s submission which goes beyond the designated pages, but I gave leave for W to reply to Appendix 5 (only) in a reply submission of not more than 4 pages. These four pages were submitted subsequent, but W’s Reply is not limited to responding to Appendix 5, as it contains other responses to H’s submission.

88.  The correspondence continued when H wrote to the Court on 19 December 2024, acknowledging that the excessive length of his submission was an “accidental blunder on his part”. He requested that the Court reviews only pages 6 to 20. Additionally, H sought to provide further response to W’s letter dated 13 November 2025 and the Reply which I authorised, and once again including his Appendix 5 as an exhibit.

89.  Unfortunately, this has the expected result of inviting yet another correspondence from W’s solicitors on 27 January 2025, who complained, inter alia, that H letter of 19 December 2025 was an unsolicited reply to the W’s Reply and submitted without leave of Court.

90.  Considering the explanation I have given to H at the end of the hearing, and in fairness to W, I have decided that I shall not be considering H’s closing submission from page 16 onwards and any reference after to any annexures, nor will I be considering any comments thereafter from either side inclusive of all of W’s solicitors’ and H’s correspondences and W’s Reply Submission. I take the view that I have enough information at hand to make this decision and have considered the parties’ respective cases and arguments; and I have conducted the analysis and assessment as in a normal course of a variation of maintenance application.

Historical Information

91.  H has cited information from the time of the parties’ 2017 negotiation, and using it as a basis of saying that W has assets. H has taken a wrong approach. In his application for his payments owed to W and for J’s maintenance, it is of course incumbent on me to look at W’s personal circumstances. But it is not about whether W has assets to her name or access to her husband’s wealth, it is about the above analysis of H’s allegation of his change of circumstances, and his ability to pay what the Court considers to be a reasonable sum and continue with his Lump Sum payment to W.

W’s bank statements

92.  H also attempts to put forward an argument that by looking at W’s bank statements, and comparing them against her expenses, he can ascertain how much W is spending on J.

93.  This is an imperfect approach. It is clearly not a simple mathematical calculation. It is not in dispute that H has defaulted in his payment since February 2023, and what has not been successfully challenged is W’s position that her savings have depleted to support J and she is financially reliant on A, but there is no evidence to say since when, how frequent, and for what amounts. I therefore do not agree with H’s submission in this regard.

Outstanding Amounts

94.  During the trial I have asked for a table showing the amount due and how much has been paid to enable me to assess how much longer will the full payment of the Lump Sum is going to take. While there is a table annexed to W’s closing submission, the parties are in dispute as to how an amount, when paid by H, is to be allocated between payment of child maintenance and the lump sum arrears. Looking at the parties’ stances, it is also apparent there has been no clear agreement in this regard. As the allocation of the amounts are not in issue before me, I shall not attempt to resolve this in the absence of proper evidence or argument. Parties are urged to resolve this by mediation instead of spending more costs on this issue.

Costs

95.  H has not been wholly successful in his application. He has succeeded only in decreasing the child’s maintenance, and even then, not on the entire basis of his arguments. I am also taking into consideration his conduct over the course of the years since the two Orders were made, his defaulting payment to W, and the grievances that may have ensued, this is despite being told that the Orders made do stand until a decision is made on his variation application. Therefore, save for the costs in §96 below, I make no Order as to costs.

96.  Taking into account the circumstances and evolution of the event around the excessive pages of H’s submission, I do award the costs of (i) preparation of the W’s solicitors’ correspondences regarding this issue and (ii) W’s Reply submission, be to the W; as these costs were incurred due to the non-compliance of a Court Order on H’s part.

Conclusion

97.  In conclusion, the Orders I shall make for the H’s Summons are as follows:

(1) H do pay $15,000 to W for maintenance of J, this varied amount to commence from 1 October 2024, and thereafter on the 1^st of each month until J attains the age of 18 or completes full time education (1^st degree), whichever is the later. For the avoidance of doubt, H is to pay $30,000 per month for J up until and including the month of September 2024.

(2) Order 1 of the Variation Order do stand, H to continue to pay $20,000 per month to W in satisfaction of a lump sum order made under the AR Order until full payment is made.

(3) (a) Save for (b) below, I make no Order as to Costs for these proceedings, including all costs reserved.

(b) With regard to H’s excessive pages of his closing submission, the costs of the (i) preparation of the W’s solicitors’ correspondences regarding this issue and (ii) W’s Reply submission, be to the W.

The costs orders above to be taxed if not agreed, including certificate for counsel. This to be a Costs Order nisi to be made absolute from 14 days hereof.