S, PJ v. S, CE nee D, CE

FCMC 664 / 2012

[2022] HKFC 152

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 664 OF 2012

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

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Introduction

1.  This is an application by a petitioner husband dated the 12 October 2018, seeking to vary an order entered into by consent with respect to maintenance for the only child of the family, M, who has just turned 16 years of age. The husband, filed a Notice of Application in the following terms:

To set aside/downward vary the maintenance order of the 1 February 2013, backdated to April 2013, from HK$6,500 decreased down to HK$0.00  

2.  Thus the husband is seeking that the decrease be effective from three months after the original court order was entered into. Subsequently, the wife issued a judgment summons and a summons seeking leave to enforce arrears that were over 12 months old, both dated the 20 March 2019. At that stage she sought HK$154,193 and said that the husband had been in default (in part) for 62 months. On the 23 April 2021, after several directions hearings, the court adjourned the wife’s judgment summons and the application to enforce the arrears until after the handing down of this judgment.

Background

3.  By way of background the parties reached an agreement at a Financial Dispute Resolution hearing before this court on the 1 February 2013. M was then approximately 6 ½ years of age. As I have said, she is now 16 years of age. The parties were both legally represented at the time by specialist family law firms. The consent order stated inter alia as follows a) there would be a dismissal of all of the husband’s claims for ancillary relief and the wife’s capital claims, b) both parties acknowledged that they had entered into the agreement without any undue influence or duress being exercised by either party against the other, c) the husband undertook to pay for M’s school fees, which then stood at HK$66,100 per annum (or HK$5,508 per month over 12 months) and for the school bus fee, which then stood at HK$8,000 per annum (or HK$665 per month over 12 months). It was agreed that the undertaking with respect to the school fees and school bus fees only would be reviewed

… whenever there is a material change in the Child’s school fees and school bus fees, and [the parties shall] use their best endeavours to reach an agreement on the same. 

4.  In addition, it was ordered that the husband do pay maintenance for M, in the sum of HK$6,500 per month and nominal maintenance only for the wife. There was no order as to costs and a s.18 was granted. The decree absolute was subsequently granted on the 25 March 2013. It seems that the husband stopped paying the wife full maintenance for M shortly thereafter, alleging that the parties had entered into a verbal agreement. This is denied by the wife. The husband subsequently and unilaterally reduced the maintenance for M, first to HK$3,000 per month and then from August 2017 he ceased paying any maintenance at all. He continued to pay for the school fees and for the other related educational expenses.

5.  It is of note that on the 8 May 2017 the husband also issued a summons seeking an order for sole custody of M with either shared care or sole care and control. It was clear that there was a financial aspect to this application and in the judgment dated the 4 October 2018, following a two-day trial, the court said inter alia as follows:

5.   It is also of note that the father is not paying the maintenance for M as ordered by the court (see the court order dated the 1 February 2013). This issue needs to be resolved separately and it is for each party to decide how they might wish to proceed in that respect. The father may issue a Notice of Application to vary the maintenance and the mother may issue a judgment summons to enforce the payment. Neither matter is before the court at present. The father has made it clear that if the court grants him an order for joint care and control that he is of the view that the maintenance order should be varied to reflect this.     

6.  At the end of the day, the husband’s application was dismissed and the original order for joint custody with care and control to the mother and reasonable access to him, including staying access, remained in place. M currently sees her father on alternate weekends and for half of the school holidays.

Background to the marriage and since

7.  In the judgment on the husband’s application for a variation of custody and care and control, I set out the background to the parties’ marriage as follows:

11. The parties married on the XX September 2002 and separated on the 2 November 2010. M was approximately 4 ½ years old at the date of separation. There was a dispute over the original grounds of divorce and the parties eventually proceeded on the basis of one-year separation with consent. As indicated above agreement was eventually reached with respect to both the parties’ finances and the arrangements for M. Both parties were legally represented at the time. Unfortunately, however, there have been ongoing disagreements with respect to a number of issues and the parties have been in and out of court on a regular basis since then. Neither party currently has the benefit of legal representation.

12. The father works as a technical writer for one of the universities in Hong Kong and the mother is a kindergarten teacher. The mother explained in court that the kindergarten that she was working for closed down at the end of the academic year in 2017. It was too late to find another job in a kindergarten for the academic year 2017/18 and she undertook some private tuition work and did some waitressing whilst she looked for a new teaching job. At trial she said that she was hoping that she would secure a new teaching position for the current academic year.

8.  Following the judgment the protests then ensued, followed by the Covid-19 pandemic.  The wife explained in court, during the current trial, that she worked mainly as a waitress on Lamma island during this intervening period, receiving cash payments and not earning enough to pay tax.  She appears to have lived a hand to mouth existence, often being late with the payment of her rent.  She says that her parents in particular and at times her boyfriend and other friends have lent her money to help her get by.  Her boyfriend, who, she says, has a separate flat on Lamma, would contribute towards her rent and also pay for their holidays together.  Thankfully she secured a job with another kindergarten to commence in August/September 2021 and has been receiving an income of HK$28,000 per month gross since then.  It was the wife’s evidence that she earnt approximately HK$12,000 per month as a waitress at the restaurant on Lamma.  She also admitted to receiving occasional and spasmodic amounts for private tutorial work.    

9.  The husband for his part continued to work at the same university, receiving regular increases in salary until he was made redundant in April/May 2019.  There then followed a short four-month period of unemployment, until he obtained a job in the private sector at a lower income.  When the parties entered into the consent summons he was earning approximately HK$47,050 per month, which rose to HK$62,120 per month by the beginning of 2019.  In September 2019 he obtained a job in the private sector as a Production Editor and his salary reduced to HK$40,000 per month.  This job came to an end in September 2020 and there then followed a further short period of unemployment.  The husband began a new job in the field of corporate and financial communications in or about December 2020/January 2021.  He currently earns the same amount but his salary is divided into HK$13,000 as a rental allowance and the remainder as salary.  It is of note that during this period there is some evidence that he worked freelance and reference is made in his Answers to the Respondent’s Questionnaire dated the 24 May 2021 inter alia, to a cheque deposit of HK$40,000 dated the 15 December 2020 for freelance work.

10.  In the wife’s opening submission dated the 21 September 2021 she states as follows:

Petitioner's Earning Capacity and Expenses

14.  The Petitioner has had the benefit of continual employment and an increase in his earning capacity.

15.  He says he currently earns HK$40,000 per month [83/736] working in Corporate and Financial Communications. He has previously claimed he has suffered pay cut after pay cut since August 2019 due to the fact that he was re-joining the private sector and then yet again in February 2020 due to the Covid-19 pandemic. He has also worked free-lance in December 2020 earning HK$40,000 and HK$20,645 [83/768].

16.  Specifically: -

a. As per the Petitioner's Form E of 14 November 2018 [B1/85], he sets his income at HK$67,143.  His tax return shows his 2017/18 income to be HK$862,365, i.e. HK$71,863 per month [B1/158], higher that his 2016/7 income of HK$674,040, i.e. HK$56,170 per month [B1/160].

b. In his Form E of 20 September 2019 [B2/339], the Petitioner says he earned HK$45,000 per month but his 2016/17 tax return shows an income of HK$674,040, i.e. HK$56,170 per month.

c. His Form E of 22 May 2020 shows his 2018/19 tax return, with his salary as HK$830,293, i.e. HK$69,191 per month.

d.& In his Form E dated 8 February 2021, the Petitioner now says he earns HK$40,000 per month.

For the avoidance of doubt and having heard the evidence in court, I accept what is said in these paragraphs.  

The issues

The current issues then are these:

Should any maintenance payments be remitted with effect from April 2013?

How much should the husband currently pay for M’s maintenance?

Should this be backdated at all?

What order should be made for costs?  

The law

Maintenance orders

11.  The husband’s application for a variation of maintenance is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap. 192, (MPPO) which provides that:

“(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 ……”

12.  It is accepted that when looking at a variation of maintenance and in considering a change of circumstances in that context, I may look at the case de novo. In other words, the court is not necessarily fettered by the existence of a previous order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (See Ch 3.131 Jackson’s Matrimonial Finance and Taxation, 7th edition). It is also true that there would normally be a reason for the application to vary or what some might call a “trigger”.

13.  The court has a very wide power, including a power to terminate maintenance payments and to backdate the variation ordered. The overall objective is to achieve a fair outcome (see M v M, FCMC 4070 of 1990, dated 12 May 2006, unreported).

Other case law

14.  The correct approach to an application to vary maintenance was summarized by the Court of Appeal in AEM v VFM [2008] HKFLR 106. In that case the Hon Cheung JA made the following points when setting out the law. Referring in particular to agreements reached by consent as here, he said as follows:

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.

15.  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 untrammeled, normally the earlier order would not be varied unless there has been a material change in circumstances.”

Open offers

The husband’s offer

16.  There are two without prejudice save as to cost letters from the husband, the first dated the 14 August 2019 and the second dated the 19 October 2020. In the husband’s last Form E dated the 8 February 2021, he asked that the last without prejudice letter be made open. This letter states as follows:

We are instructed to put forward our client’s without prejudice offer to settle the variation of maintenance application.

1.  Our client will pay the following from 1 November 2020:

(a)  2/3 of the educational fees of the Child as and when they are due, until the Child attains the age of 18 years or completes full-time education, whichever is the latter.  The said fees are at present $133,800 per annum.

(b)  school transportation fees of the Child, that is ferry and bus fees, and school lunch until the Child attains the age of 18 years or completes full-time education, whichever is the latter. The said costs are at present $22,000 per annum ($550/week on Child's Octopus card × 40 weeks).

(c)  X School mandatory PTA fees, CAS activity fees, software license fees, until the Child attains the age of 18 years. The said costs are at present $1,550 per annum.

(d)  2/3 of the X School overseas school camp fees of the Child, until the Child attains the age of 18 years.  The said costs are at present $12,000 per annum.

(e)  2/3 of the educational technological equipment fees of the Child, that is laptop and scientific calculator, until the Child attains the age of 18 years or completes full-time education, whichever is the latter.  The said costs are at present $3,000 per annum (3-year hardware cycle - computer to be replaced in summer 2021, scientific calculator in summer 2023).

(f)  periodical payment of $2,000 per month for the sole benefit of the Child, until the Child attains the age of 18 years or completes full-time education, whichever is the latter.

2.  The Respondent is to pay the following from 1 November 2020:

(a)  1/3 of the educational fees of the Child as and when they are due, until the Child attains the age of 18 years or completes full-time education, whichever is the latter. The said fees are at present $133,800 per annum.]

(b)  1/3 of the X School overseas school camp fees of the Child, until the Child attains the age of 18 years.  The said costs are at present $12,000 per annum.

(c)  1/3 of the educational technological equipment fees of the Child, that is laptop and scientific calculator, until the Child attains the age of 18 years or completes full-time education, whichever is the latter.  The said costs are at present $3,000 per annum (3-year hardware cycle - computer to be replaced in summer 2021, scientific calculator in summer 2023).

(d) school uniform / books / stationary / equipment, extra-curricular activities of the Child, until the Child attains the age of 18 years or completes full-time education, whichever is the latter.

3.  The $6,500 per month maintenance, backdated to March 2013, is vacated.

4.  The Respondent is to withdraw the committal application.

5.  No further back claims by either party.

6.  No order as to costs.

The wife’s offer

17.  As far as I am aware the wife has made no proposals open or otherwise, save that in her opening submission dated the 21 September 2021 she stated as follows:

CONCLUSION

28.  The Respondent submits that the Petitioner should continue to pay all of the Child's education related expenses, including inter alia school fees, school bus and other transport fees and extra-curricular activity expenses. The previously ordered period payments of HK$6,500 per month is not a large sum, and the Petitioner should also make contribution towards the Respondent's rental expenses.

Discussion

Should any maintenance payments be remitted with effect from April 2013?

18.  In short, save for during the relative limited periods of the husband’s unemployment, I can see little basis for remitting the maintenance payments in full and certainly not all the way back to April 2013.

Was there a verbal agreement?

19.  One of the main thrusts of the husband’s case is that the parties verbally agreed on the 1 February 2013 (i.e. the day of the FDR hearing) that the maintenance for M would be varied down to reflect any increase in school fees, school bus fees, or any additional educational fees borne by the husband. (See paragraph 1 of his affirmation dated the 12 October 2018). Later his evidence shifted so that he maintained that the parties came to this agreement in a chance meeting a few months later. It seems that from that time onwards the husband would deduct from the maintenance any additional educational payments made by him on or on behalf of M.

20.  The wife for her part said that there was no such agreement, either at the FDR or since. She said that she and the husband had not spoken since their separation in 2010, that she finds him aggressive and intimidating and that she is frightened of him. I accept what she says in this respect. Having seen the parties in court over a long period of time, (although it is accepted that the husband can be well behaved in court) his written work can also be extremely aggressive. He can also be dogmatic and will refuse to see reason and will stick unreasonably to his view regardless of the evidence – or indeed lack of it.

21.  In this instance I do not accept that the parties entered into any such agreement, other than that which is stated on the face of the consent summons. It was not open to the husband to unilaterally change the terms of that agreement which subsequently became a court order. Had there been such an agreement one would have expected it to be properly evidence in writing preferably with the assistance of lawyers. At the very least one would have expected an e-mail or a WhatsApp exchange between the parties. There was none.

22.  There also seems to be a basic misunderstanding, on the part of the husband, with respect to what the maintenance is meant to be for. The husband was earning significantly more than the wife at the time of separation, who had stopped work after having M. Although the focus of the consent summons was with respect to education, in such circumstances one would expect the husband to contribute towards M’s share of the general expenses. It is also not open for the husband to unilaterally reduce the maintenance because he has also contributed to some of her other ad hoc expenses. One would expect a father to meet such expenses, just as one would expect a mother to do likewise. 

23.  Thus I do not accept that there is any basis for reducing the maintenance of HK$6,500 per month for M in the period from February 2013, when the husband’s salary stood at HK$45,240 per month until his first period of unemployment from May – August 2019, when his salary had increased by just over HK$17,000 per month to HK$62,120 per month. This is also notwithstanding the fact that there had been an increase in school fees during this period.

School fees and related expenses     

24.  M attended primary school in the English Schools Foundation system from August 2011, following the separation but prior to the divorce, until June 2017. According to the husband’s evidence (which is not the same as the schedule attached to his closing submission) the school fees rose during this period from HK$66,100 per month (or just over HK$5,500 per month over 12 months), as set out above, to HK$83,800 per month or HK$6,983 per month over 12 months. This is an increase of less than HK$1,500 per month over a 5-year period. This is really very modest. Similarly, the rise in the school bus fees was about HK$2,500 per annum or just over HK$200 per month for the same period. Given the husband’s salary increases over the same period I can really see no case here at all for a variation. I accept that there were other ad hoc expenses for school trips and the like, but again, even on the husband’s evidence, these were not excessive.      

The change in school fees in August 2017

25.  This is arguably the first triggering event, when according to the husband, M’s school fees rose significantly because she went up to senior school. His evidence is that her fees rose initially to HK$122,900 per annum (or HK$10,240 per month) and that by the time of the trial they stood at HK$133,800 per annum (or HK$11,150 per month). Although there was some remission of fees and on other occasions fees were frozen because of the pandemic, nevertheless there had prima facie been a significant increase. It is of note that this coincided with the husband paying the wife no maintenance at all for M’s other expenses and for his subsequent application to vary her living arrangements. At the same time the wife’s own teaching job came to an end and she was in real need of proper financial support for M. It is of note that the husband’s own salary remained stable and indeed increased until May 2019.

Other arguments advanced by the husband

26.  In support of his case the husband also put forward other arguments, which he has stuck to rigidly, despite, as I have said, little or no evidence to support them. For example, and for the avoidance of doubt, despite a Facebook post, I do not accept that the wife has remarried. She has been clear about this throughout. But even if she had, her new husband would have no obligation to pay for M’s expenses. The only effect might be that he should contribute towards the general household expenses, which in turn might reduce M’s share. In any event the wife has been clear that her boyfriend does help her out financially including contributing towards her rent, because she has not been able to manage otherwise. However, she has also been equally clear that she does not live with him and that these are debts that she will need ultimately to repay. It is of note that there is a similar argument with respect to the husband’s household, with a suggestion, which was not really pursued at trial, that he may be cohabiting with his partner and that she should likewise be contributing towards his general household expenses. He vehemently denies any suggestion that this might be the case.

27.  In conclusion then I am approaching this case on the premise that the wife has not remarried and that although both parties are in new relationships neither are in full time cohabiting type relationships.

28.  The husband also claimed that M was spending increased periods of time with him. Again and for the avoidance of doubt this is not accepted. Generally, M sees her father on alternate weekends and she sometimes pops by his house on Monday after school, following her weekend with him, to pick up her stuff. Otherwise she sees him for half of the school holidays.

29.  There have also been arguments about tax allowances. These are of relatively little import and in any event should have been in the contemplation of both parties at the time of the FDR hearing.

30.  Both parties allege that the other has undisclosed assets or other sources of income. There is no evidence of undisclosed assets on either side. In so far as income is concerned, it seems to me that both parties have a duty to maximize their earning capacity. In so far as the wife is concerned she has done this by returning to her previous role as a kindergarten teacher. The husband’s income has however, significantly reduced. He may need to rethink his options in this respect and/or consider further freelance work. For the avoidance of doubt I am not of the view that the husband’s earning capacity is only HK$40,000 per month (inclusive of the rental allowance). (See also paragraph 10 above). 

How much should the husband currently pay for M’s maintenance?

31.  I am then approaching this case on the premise that the wife is currently earning HK$28,000 per month gross and that the husband is earning HK$40,000 per month gross, although in my view his earning capacity is higher than that. Thus, the husband is earning approximately 60% of the available pot and the wife 40%.

The wife’s general expenses

32.  During the trial it became clear that the wife would not be able to stay in her rental property and that she would need to find a new place to live. She anticipated an increase of rent from HK$10,000 per month to HK$15,000 per month. I do not know what the up to date position is, but the husband was paying HK$13,000 per month as at the time of trial. I will allow the wife the same sum for rental. Her other expenses are minimal and are as follows:

General

Item	Amount
Rent	$13,000
Mortgage instalments	N/A
Utilities (electricity, gas, rates, telephone, & water)	$2,000
Management fees	N/A
Food	$4,500
Household expenses + pet expenses	$1,500
Car expenses	N/A
Insurance premia	N/A
Domestic helper(s)	N/A
Other	N/A
Total monthly household expenses	HK$21,000

33.  Of these general expenses half shall notionally be attributable to the wife and half to M – i.e. HK$10,500 each. Of M’s share the husband shall prima facie be responsible for 60% of these costs or say HK$6,300 per month.

M’s expenses 

34.  M’s stated expenses are extraordinarily low and not what one would expect of a normal teenage girl living in Hong Kong and attending an X school. The mother says that this is of necessity and I accept what she says in this respect. She puts M’s expenses as follows:

Children

Item	Amount (HK$)
School fees	Paid by husband
Extra tuition fees	N/A
School books and stationery	$100
Extra-Curricular Activities	N/A
Transport to school	$748
Medical and dental	$50
Entertainment and presents	$500
Holidays	$1,000
Clothing and shoes	$500
Insurance premia	N/A
Lunches and pocket money	$1,500
Other transport	$50
Uniform	$200
Total monthly expenses	$4,648

35.  Of these I accept that the husband pays for M’s transport to school and for her lunches whilst at school and that both parties should be responsible for their own entertainment/ presents for M and for their own holidays with her (although I appreciate that historically this has been a contentious issue). Of the remaining expenses I will allow HK$1,000 per month for Extra Curricular Activities and HK$500 for additional pocket money. Thus the schedule should read as follows:

Children

Item	Amount (HK$)
School fees	Paid by husband
Extra tuition fees	N/A
School books and stationery	$100
Extra-Curricular Activities	$1,000
Transport to school	Paid by husband
Medical and dental	$50
Entertainment and presents	$500 *
Holidays	$1,000 *
Clothing and shoes	$500
Insurance premia	N/A
Lunches and pocket money	$500
Other transport	$50
Uniform	$200
Total monthly expenses	$3,900

36.  Of these expenses the husband shall prima facie be responsible for 60% or say HK$2,350 per month (rounded up). Thus the husband’s contribution towards the mother’s costs in her household should currently be in the region of HK$8,650 per month (i.e. HK$6,300 + HK$2,350 = HK$8,650).  

School fees

37.  I am told that M’s school fees for the year 2020/21 were HK$133,800 per annum or HK$11,150 per month over 12 months. 40% of this sum equates to HK$4,460 per month or say HK$4,450 rounded down. This should be the sort of figure that one would expect as the mother’s notional contribution. The father’s other costs for the ferry and other transport, plus school lunches etc. shall stand as his own contribution.

38.  Thus, if one takes the view that the father should continue to pay for the educational costs, the maintenance figure for M should be in the region of HK$4,000 per month i.e. the reviewed maintenance figure of HK$8,650 per month less the notional figure for the mother’s contribution towards the school fees of HK$4,450 = HK$4,200 or say rounded down to HK$4,000 per month (i.e. HK$8,650 – HK$4,450 = HK$4,200).   

Should this (sum) be backdated at all?

39.  The difficulty always is that this is not an exact science. Although the school fees for 2017/18 and 2018/19 were lower than the figure for the year 2020/21, they were higher than when M was at primary school. Further the husband’s income did not reduce until September 2019. Thus as indicated in paragraph 23 above, the maintenance figure of HK$6,500 per month shall remain in place until 30 April 2019. The new figure of HK$4,000 per month shall be back dated to the 1 September 2019. The maintenance shall be remitted for four months from May – August 2019 and for a further two-month period at the end of 2020.

Conclusion and orders  

40.  In conclusion then:

a)  The husband’s undertaking with respect to the school fees, in the court order dated the 1 February 2013, shall remain in place;

b)  Order 1, in the court order dated the 1 February 2013 with respect to the maintenance for the child of the family, M, in the sum of HK$6,500 per month shall remain unaltered until the 1 September 2019 when it shall be varied down to HK$4,000 per month, until M reaches the age of 18 years or ceases full time education, whichever is the later;

c)  Four months’ maintenance at HK$6,500 per month (i.e. HK$6,500 multiplied by 4 = HK$26,000) + (HK$4,000 multiplied by 2 = HK$8,000) = HK$34,000 shall be remitted.

41.  The husband argued during the trial that he could no longer afford to pay any back payments in maintenance and that if he was so ordered then it would put M’s schooling in jeopardy. With respect this is unacceptable. The husband chose not to pay for M’s maintenance in full almost from the commencement of the original order and at a time when he could clearly afford to pay. This was completely unacceptable and placed the mother under huge financial pressure. However, I do accept that the husband may not be able to pay the outstanding amount in one go. I would suggest in the circumstances that the parties try to reach an agreement whereby the outstanding amount is paid by instalments. For the avoidance of doubt, and as stated above, I do not accept that the husband has fully maximized his earning capacity in any event. 

What should be the order for costs?

42.  Neither party has been wholly successful here. I am also conscious of the fact that the parties were representing themselves for much of the time in the run up to the trial. In such circumstances I shall make an order nisi to be made absolute in 28 days’ time that the husband do pay 50% of the wife’s costs of and arising out of his summons dated the 12 October 2018. There shall be legal Aid taxation of the wife’s own costs.

Further orders

43.  Further it is ordered that:

a)  The wife’s judgment summons and summons seeking leave to enforce the arrears that are over 12 months old shall be adjourned to the 30 September 2022 at 9:30 a.m. for a callover.

b)  Both parties do personally attend that hearing.