TPF v. W

FCMC 16179 / 2011

[2019] HKFC 19

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16179 OF 2011

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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 Respondent mother for maintenance for the only child of the family, a teenage girl called V, who is now aged 15 years.

2.  The main issue concerns the level of maintenance for V. Originally V had been living with the Petitioner father and the mother had been paying the father HK$5,100 per month for her maintenance. The father had sole custody and care and control of V at the time. These terms are set out in the court order dated the 29 March 2012 which states inter alia as follows:

1.   that custody, care and control of the child of the family, namely V be granted to the Petitioner with reasonable access to the Respondent.

…

2.   the Respondent do pay to the Petitioner the sum of HK$5,100.00 per month as the periodical maintenance for the said Child by depositing the said monthly sum of HK$5,100.00 into the Petitioner’s designated bank account commencing from within 30 days of the Decree Absolute being granted and thereafter the 2nd day of each of the succeeding month until the said Child attains the age of 18 or ceases to receive full time education， whichever is the later; and…

It is of note that this order was based on a mediated agreement (known as the “Chinese Divorce Medication Agreement” or “Mediation Agreement”) entered into between the parties on the 30 January 2012.

3.  On the 2 November 2017 an order was made by consent, varying the original custody order. The mother now has sole custody and care and control of V, with reasonable access to the father. It is therefore on this basis that the mother now asks that the father do contribute towards V’s maintenance. Initially the mother asked for HK$9,000 per month. At trial she increased this figure to HK$10,000 per month.

Background to the marriage

4.  In an earlier judgement dated the 11 May 2016, I summarized the background to the parties’ marriage as follows:

8. The parties married on the XX October 2000 and had one child V, who was born exactly three years later on the XX October 2003. It seems that unhappy differences arose between the couple and the parties separated but continued to live under the same roof from in or about March 2008. According to the mother much of the difficulty within the marriage related to conflicts concerning the appropriate way to parent V. The parties physically separated in August 2011 when the father did not return to the matrimonial home following a trip with V to Canada. From that point on V has resided with the father. On the 18 November 2011 the father issued proceedings for divorce based on two years’ separation.

5.  The decree absolute was pronounced shortly thereafter on the 15 May 2012. Unfortunately, however this did not end the litigation between the parties, with each issuing various summonses from time to time. In particular, it should be noted that on the 15 July 2013 the father issued a judgment summons for outstanding maintenance, which was followed on the 13 September 2103 by an application for accrued interest. The mother also subsequently issued a summons to vary the maintenance down and the father filed a Notice of Application on the 3 September 2014 to vary the maintenance up to HK$6,734 per month. At the end of the day however, the mother paid what was outstanding and she continued to contribute HK$5,100 per month. It is also her case that she also paid for other expenses for her daughter as required and when she was in her care.   Other problems ensued, including arguments with respect to the choice of secondary school and the choice of the school net etc. To date the court has handed down two judgments in relation to these other matters, the first dated the 6 March 2015 in relation to the school issue and the second dated the 11 May 2016 in relation to an application to vary access. Since then it seems that V has “voted with her feet” and on the 24 December 2016 she moved in with her mother and has refused to have any meaningful contact with the father and the paternal side of the family since.

6.  On the 6 June 2017 the mother applied to vary both the custody order and the order for maintenance. The order varying custody was made by consent on the 2 November 2017. On the 13 February 2018 the father’s judgment summons was dismissed (he had been pursuing the mother for non-payment of maintenance since January 2017 even though V was not living with him). What remains is the current application by the mother for an order that the father do pay maintenance for V. In effect it is an application to vary. It is the mother’s case that the father has not contributed to V maintenance since V began to live with her. This is denied by the father who maintains that he has continued to make some payments for ECA’s and other school related matters.

7.  I should add that this continues to be a very high conflict case with each party continuing to make wide ranging and varied allegations against the other.

The issues

8.  There are a number of issues that require determination but in summary they are as follows:

   a)  How much should the father contribute to the mother as monthly maintenance for V?

   b)  Should that sum be backdated and if so to what date?   

Open proposals

Mother’s proposal

9.  The mother’s final proposal is set out in her closing submission dated the 16 November 2018 as follows:

18. After the trial, in consideration of the evidence given, I have updated my proposal from that in the Notice of Application filed herein on 6 June 2018 before custody change to that in my Form E and make the current proposal as follows:

The monthly maintenance fee for V due from the Petitioner to the Respondent be varied from $5,100 to $10,000 with retrospective effect from date of custody change i.e. 2 Nov 2017 and thereafter on 1^st day of each calendar month until V attains the age of 18 or ceases her full-time education whichever is later.

Father’s proposal

10.  The father for his part concluded as follows in his closing submission of the 13 November 2018:

(a)   I humbly request this Honorable Court to take into account all the circumstances of the present case as mentioned above and consider my dedicated efforts in the previous 10 years full time to bring up V, my financial situation, my duty to take care of my parents and also my own health issues.  If the Judgment Date is with effective from 1st December 2018, my proposals to resolve the case are as follows: -

(1)  Clause 2 of the Order dated 29 March 2012 on monthly periodic maintenance fee for V due from the Petitioner to the Respondent is varied from HK$5,100 to HK$2,445 per month with effective from 1^st December 2018.  The amount has been included the ballet and piano/examination fees.

(2)  V’s maintenance fee for the pre-judgment period from 1^st January 2017 to 30 November 2018，i.e. the final Pre-judgment Amount ($27,588) plus one-time payment of Japanese class fee $3,600 shall be HK$31,188 due from the Petitioner to the Respondent as full and final settlement.

(3)  The Respondent is under a duty to inform the Petitioner all V’s extra-curricular activities and school notices and reports by e-mail.

(4)  In the event V stopped attending the piano and ballet lessons, the monthly expenses of V to be adjusted by excluding that item where she quitted accordingly.  The Respondent shall provide V’s payment receipts for piano and ballet lessons by e-mail in soft copies.

(5)  Cost to be awarded to me.

The law

11.  The mother’s application to vary is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap. 192, 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 in considering a change of circumstances, 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, 7^th edition). It is also true that there would normally be a reason for the application to vary or what some might call a “trigger”. Here it is accepted that the “trigger” was V moving to live with her mother.

13.  The court has a very wide power, including a power to terminate 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).

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

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.  Cheung JA added in relation to backdating that:

Principle on backdating of order

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

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

See Rayden & Jackson on Divorce and Family Matters 18^th Ed, Vol. 1, Para. 18.25.

Discussion

Income and other financial resources of the parties

The father

16.  The father is a 51-year-old part time Auxiliary Policeman. He also holds some assets including a property in Thailand, some stocks and shares (valued at just under HK$5.8 million) and other cash assets (approximately HK$600,000). He also receives some dividend income. However, even on his own case, he does not have sufficient income (c HK$8,500 per month) to pay for his outgoings of approximately HK$20,000 per month. He says that he has to rely on his savings to make up the short fall. At present he is living in a property owned by his father and he says that he pays him HK$8,000 per month, although there was seemingly no evidence of a regular payment in this amount (the court was only able to find two cheques in the father’s more recent bank statements both dated the 2 January 2018). It is the father’s case that he intends, longer term, to use his funds to purchase a flat in which to reside.  

The mother

17.  The mother is 49 years old and she works in wealth management on a commission only basis. She also holds some assets including two properties, the first being an investment property and the second being a property in which she and V now reside. She values both of these properties at HK$6.8 million each. She has mortgages on both and with respect to the second property there are also other loans related to it, which are outstanding. It is of note that these property values are challenged by the father who says that the properties should be worth more than the mother’s estimates. In addition, the mother also has some cash assets of just over HK$900,000 and some stocks and shares valued at approximately HK$580,000. Her income is variable and on her case she currently earns approximately HK$16,500 per month and receives a further HK$16,500 per month in rental income. However, she has outgoings of over HK$100,000 per month including two mortgages and other loans to family members referred to above. She says she is able to manage by relying on her cash savings in the short term. She also confirmed in the witness box that she had suspended the payment of an insurance premia for V in the sum of HK$13,000 per month and that there was some flexibility with respect to the loans that she owed to her other family members. She was however able to show the court a regular payment of HK$31,269 being the monthly repayment of one of these loans. 

18.  The father attacked the mother’s credibility in this respect and maintained that she must have been earning far more than declared. There were also issues surrounding the audited accounts from her companies, although I am inclined to accept her case that she has not been required to file audited statements for her main small limited company as it is currently operating at a loss. Similarly, I am also inclined to accept the father’s case that he is unable to produce tax returns as he is not earning enough at present to pay tax.  

Earning capacity

19.  Longer term however, it seems to me that both parents have an earning capacity and one that they will now need to maximize to the full. The mother struck me as a resourceful and intelligent woman and I have no doubt that once this litigation is finally concluded that she will either be able to work more fully in the wealth management field or alternatively look to other forms of employment. Similarly, I am not convinced by the father’s suggestion that he is unable to return to the work force given that he has not worked full time for the last 10 years. He is also a bright man and given that he is no longer looking after V there is no reason at all why he should not return to work in a more full time capacity. If he chooses not to do so then that is really a matter for him. However, that is a choice that will not influence the court’s decision with respect to each party’s financial responsibilities towards V.

Contribution towards V’s expenses

20.  Consequently I accept the mother’s primary position that each party should contribute equally towards V’s expenses. I do not accept the father’s argument that he should only be expected to contribute towards V’s actual expenses. It seems to me that he should also make a contribution to the relevant household expenses, being his contribution towards V share of the same.

What then is the appropriate level of maintenance to be paid by the father for V going forward?

21.  In total the mother is seeking HK$10,000 per month for V. It is not clear how this sum is broken down. However, as stated above, it is the mother’s primary position that the parties should be equally responsible for V’s expenses, which includes a contribution towards the general household expenses.

The General expenses

22.  It was accepted during the trial that the mother’s list of expenses as set out in her Form E dated the 5 December 2017 are the most up to date. In that, the mother lists her general expenses as follows:

4.1 General

Item	Amount
Rent	$0
Mortgage instalments   a)  Citibank b)   HSBC	$9,262 $9,370
Utilities (electricity, gas, rates, telephone, broadband & water)	$2,550
Management fees	$2,513
Food – V and me (at home) –   V and me (out of home)	$4,000 $2,000
Household expenses – fixture repairing	$500
Car expenses	$0
Insurance premia – Home Insurance	$153
Domestic helper(s)	$0
Other – 2 personal loan repayment    a) my sister’s p loan    b) my personal loan	$31,269 $8,533
Total monthly household expenses	HK$70,150

23.  I should say at the outset that I accept that it would not be reasonable for the father to contribute either to the cost of the mortgages or to the other loan repayments. These all relate to the two properties and although V lives with her mother in the K property, this is also a capital investment. It follows that I also accept that of the remaining expenses the father should only be expected to contribute towards the expenses that relate to the K property. In other words, he should contribute towards the utilities, management fees and household expenses being V’s share of the same in the K property. This issue was subject to an extraordinary amount of cross examination given the amounts of money involved. In his closing submission the father summarized the position on utilities, management fees and household expenses as follows:

Utilities

(ii) For utilities: On 2 August 2018 trial, the Respondent agreed in the witness box that, as shown in her China Construction Bank (CCB) 3-month credit card statements from September to November 2017, her averaged payment for electricity was $413 p.m. (although she claimed it was $300), gas was $156 p.m., rates for 2018-2019 year are fully waived by HKSAR concession which is confirmed zero, telephone charge was not found but she agreed it was $50 by using PCCW, no water charge payment was shown but it should be around $20 p.m.(if any), broadband fee payment was not shown, but it should be $79 p.m. (see Exhibit P 2) if using the provider Hutchison Global Communication Ltd (HGC). The Court specifically directed the Respondent could bring along her utilities receipts on 16 October 2018 as evidential proof of her utility payments. However, she ignored the direction or she might unable to produce such receipts for verification and these remain questionable.  Therefore, the Court is entitled to base on her testified statement given in the witness box that the averaged monthly total for utilities is around HK$718 p.m.

I shall round this up to HK$1,000 per month to take into account variables with respect in particular to the cost of broadband, the telephone and for rates in due course.

Management fees   

(iv) For Management Fees: The Respondent has two properties in her own name, one is living with V i.e. K Garden unit; and the other is for her own investment in GW unit, where she is currently receiving rental income of HK$16,500 p.m.  This management fee has to be excluded fully.  The Respondent intentionally did to show the breakdown of the individual management fees for each property (like her other items), but she confusingly shows only one lump sum in total of $2,513.  However, her CCB credit card statements had shown the payment breakdowns:-

(1)  Where the management fee paid for her property in K Garden unit is HK$1,043 p.m. to X Management Ltd; and

(2)  The management fees HK$1,462 p.m. paid to Y Management Ltd is for her property in GW unit.  This amount should have been absorbed into the rental income HK$16,500 paid by her tenant and it is irrelevant to V’s periodic maintenance calculation.

It is accepted that the father should only be contributing towards a share of the management fees for the K property, which I will round up to HK$1,050 per month.

Household expenses

(vi) For Household expenses:  The Respondent has no justification in support of HK$6,000 per year ($500×12) for the household fixture repairing. In particular:-

(1)  Her property in GW, a newly developed estate and she purchased in the 2007, was rented to a tenant for $16,500 p.m., where the tenant should responsible for the household fixture repair expense (if any).

(2)  For her property in K Garden, the Respondent just purchased it on 15 November 2016 in good condition at time of purchase.  There is no significant fixture repairing to justify this HK$6，000 repairing expense per year.

(3)  If the Respondent allege it treated as a provisional or contingence purpose for household expense in fixture repairs, HK$1,200 per year i.e. HK$100 p.m. is more than reasonable.

This is not accepted. The sum of HK$500 per month for household expenses including minor repairs etc does not seem unreasonable and will be allowed.

Food and insurance premia

24.  There was a great deal of debate about the cost of food for V, including what she ate for breakfast, when she ate out etc etc. In general, it seemed to me that the estimates put forward by the father were incredibly low and seemed unsustainable as a result. In contrast the mother’s estimate of HK$4,000 per month for food within the home and further HK$2,000 per month for food outside the home, seemed a lot more realistic. Thus I will allow these figures in full. I will also allow the insurance premium in the sum of HK$153 per month.

Conclusion on General expenses

25.  In total then the mother’s general expenses less the mortgages and other personal loans, amount to approximately HK$8,700 per month as follows:

General

Item	Amount
Rent	$0
Mortgage instalments   a)  Citibank b)  HSBC	N/A
Utilities (electricity, gas, rates, telephone, broadband & water)	$1,000
Management fees	$1,050
Food – V and me (at home) –   V and me (out of home)	$4,000 $2,000
Household expenses – fixture repairing	$500
Car expenses	$0
Insurance premia – Home Insurance	$153
Domestic helper(s)	$0
Other – 2 personal loan repayment    a) my sister’s p loan    b) my personal loan	N/A N/A
Total monthly household expenses	HK$8,703

Of this half shall be apportioned to the mother and half to V – i.e. HK$4,350 each. The mother and father will then each be responsible for half of V’s general expenses rounded up to say HK$2,200 each.

V’s direct expenses

26.  The mother estimates these as follows:

School books and stationery		$300
Transport to school		$154
Medical/Dental		$2,260
- Dermatologist $800/time (4 times a year)	$266
- Nutritionist Supplement for eczema $1,000/mth	$1,000
- Annual Dental $480 / year	$400
- Orthodontics $34,400 since Feb 2017 (amortize for the next 3 yrs until age 17)	$955
Extracurricular activities (ECA’s)
		$2,960
- ballet $130/lesson (8 lessons/mth)	$1,040
- piano $400/lesson (4 lessons/mth)	$1,600
- Exam fee of the above $3,000/ year	$250
- Summer, seasonal and interest course $800/year	$70
Entertainment/presents		500
Holidays		500
Clothing/shoes		200
Insurance premia		(13,000)
Lunch/pocket money		1,480
Other transport		104
Uniform		66
Others –		288
- mobile phone	$88
- School sundries + school picnic + school extra-curricular activities	$200
Subtotal		8,812

27.  There was a great deal of debate during the trial concerning V’s current ECA’s – namely ballet, Japanese and piano. The father was of the view that her attendance was contrived and was unlikely to continue longer term. As a general point it seems to me that provision should be made for both the ECA’s and extra tuition, whilst acknowledging at the same time, that these activities may alter as the child develops and her needs and interests alter. Given the high level of conflict between the parties this is not a case where it would be sensible to direct that the parties split these costs upon the production of receipts. I accept that V is currently taking ballet and learning the piano and Japanese. I also accept that the mother arranged for her to attend various activities over the summer including swimming camp. Perhaps more importantly, and given the continued high level of conflict in this case sadly unsurprisingly, V has also been struggling at school of late and extra tuition has been deemed necessary. Thus the mother has been paying an additional sum for extra tuition which varies, but is in the region of HK$520 – HK$650 per month. Bearing all of the above in mind, I will allow HK$3,000 per month for ECA’s and extra tuition. It will be for the mother to work within this figure.

28.  The father also takes issue with the mother’s use of supplements in order to assist V. It is not disputed that V suffers from eczema. What is disputed is the best way of treating the eczema. The father wishes V to continue to attend the Government hospital and to use the cream prescribed. Whilst not opposing this, the mother has also looked to alternative remedies and private dermatologists to assist. The mother has also arranged for V to have orthodontic treatment and to receive dental care. Whilst the father may not agree with this, I accept that these are genuine expenses borne by the mother and that in the circumstances of this case that they are reasonable. I will allow these and I will round them down to HK$2,200 per month.

29.  In summary the father also challenges the other expenses for V and concludes as follows in his submission:

(h)   Consequently， the adjusted Total child's monthly expense in R(2017) Form E Part 4.3should be HK$4,889 per month (i.e. books/stationery $300， transport $154, dermatology clinic for eczema $53, annual dental $40, ballet (if she persists) $1,280 ($160 x 8), piano (if she persists) $1,600， exam fee (if she persists) $250, summer activities $70, clothing/shoes $80, lunch at school $400, pocket money $400, other transport to ballet center (if she persists) $104, uniform $20, mobile phone $88, school sundries $50).  If splitting into 50%, each party should share HK$2,445 per month: -

4.3 Children

Item	Amount
School fees	N/A
Extra tuition fees	N/A
School books and stationery	300
Transport to school	154
Medical / Dental - $53/$40	93
Extra Curricular Activities - Extra Curricular Activities – Ballet/piano/exams/ summer - $1,280/$1,600/$250/$70 per month	3,200
Entertainment/presents	N/A
Holidays	N/A
Clothing/Shoes	80
Insurance premia	N/A
Lunches and pocket money - $400/$400-	800
Other Transport	104
Child-mining fees	N/A
Uniform	20
Other (specify) – school sundry / telephone: $50/$88	138
Total monthly expenses for children	HK$4,889

30.  In general, I prefer the mother’s estimates to the father’s, which in general seem to be very much on the low side. In so far as entertainment and holiday costs are concerned - whilst I would accept that in a normal case, where both parties are seeing a child or children, that the reference to holiday and entertainment costs may be removed from the schedule, on the premise that each party should then be responsible for those costs when the child is in their respective care, that is not the case here. In this instance all of these costs currently fall on the mother’s shoulders. Consequently, these items shall not be removed from the schedule. I should add that HK$200 per month for clothes and shoes for a teenage girl seems very reasonable and that in my view it is perfectly acceptable for a child to expect to have a new school uniform as required. There was also further debate concerning V’s school lunches. For the record I accept that as a 15-year-old teenager, that V may go out of school for her lunch. There will also be other costs including pocket money etc.   In total then I will allow HK$8,800 per month as V’s direct expenses, which I have rounded up from the following estimated expenses as follows: 

School books and stationery	300
Transport to school	154
Medical/Dental	2,200
Extracurricular activities (ECA’s)	3,000
And extra tuition
Entertainment/presents	500
Holidays	500
Clothing/shoes	200
Insurance premia	(13,000)
Lunch/pocket money	1,480
Other transport	104
Uniform	66
Others –	288
- mobile phone	$88
- School sundries + school picnic + school extra-curricular activities	$200
Subtotal	8,792

Conclusion

31.  In total then the father shall contribute HK$2,200 per month towards V’s general expenses and an additional HK$4,400 per month towards her actual expenses, totalling HK$6,600 per month. It is of note that this only slightly more than the amount that the mother was originally paying to the father for V’s expenses and is very similar to the increased amount originally requested by the father in 2014.     

Can the father reasonably afford to pay this amount?

32.  As indicated above the father has some savings and he has an earning capacity that he will now need to realize more fully. I am satisfied that he has the means to pay this sum, which is similar to the amount that he had expected the mother to contribute towards V’s expenses when V was living with him in any event. I am satisfied in the circumstances that this is a fair and reasonable amount to expect him to pay.       

Should this sum be backdated?

33.  The mother asks that this sum be backdated, not to the date when V first started to live with her on a full time basis, or to the date of her summons, but to the date of the order for the variation of custody - i.e. 2 November 2017. This is accepted. I also acknowledge that the father had made some payments for various ad hoc items including the ballet lessons up until February 2018 and some of the piano lessons etc. However, given that the mother is not seeking back payment to January 2017, I do not intend to make any further orders in relation to those items, given that they are the only things that the father has paid for since V moved to live with her mother.    

Costs

34.  The mother seemingly had no option but to issue this summons, given the father’s rather uncompromising stance. Given that, and notwithstanding the fact that both parties are representing themselves, I shall make an order nisi to be made absolute in 14 days’ time, that the father do pay the mother’s costs of and arising out of her summons on maintenance dated the 6 June 2017, to be taxed if not agreed on a party and party basis.

Final order

35.  I will therefore make an order as follows:   

1)    The Petitioner father shall pay the Respondent mother periodical payments for V in the sum of HK$6,600 per month with effect from the 1 February 2019. Subsequent payments to be made on the first day of each succeeding month until V reaches the age of 18 years or ceases full time education, whichever is the later, or until further order.

2)    Further the Petitioner shall pay the Respondent backdated maintenance for the period from the 1 November 2017 – 1 January 2019 i.e. a period of 15 months, in the sum of HK$99,000, within the next 28 days.

3)    There shall be an order nisi to be made absolute in 14 days’ time, that the Petitioner do pay the Respondent’s costs on a party and party basis to be taxed if not agreed.