Z, G v. PZ, N nee P, N

FCMC 3712/2016

[2022] HKFC 234

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3712 OF 2016

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JUDGMENT

( Variation of Maintenance )

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Introduction

1.  The Petitioner (“Father”) and the Respondent (“Mother”) had already settled their claims against each other on a clean break basis in 2011 pursuant to the 2011 Consent Order[1]. In these applications, the Father and the Mother made their respective applications for variation of maintenance payable for their following 3 children:

i.  Elder son (“Elder Son”) born on 5 November 2000 and now aged 22;

ii.  Daughter (“Daughter”) born on 25 November 2002 and now aged 19; and

iii.  Younger Son (“Younger Son”) born on 1 September 2008 and now aged 14 (“collectively “Children”).

2.  By Summons dated 25 August 2021, the Father sought a downward variation of the Children’s maintenance (“Father’s Downward Variation Application”) as follows:

(a)  Discharge of periodical payments under paragraphs 4(i) and 4(ii) the 2019 Consent Order[2], being the Elder Son’s and the Daughter’s Hong Kong accommodation expenses (HK$8,500 and HK$14,000 per month)[3].

(b)  Periodical payments for the Elder Son and the Daughter under paragraphs 2(i) and 2(ii) of the 2019 Consent Order to be varied downward, subject to the Father’s undertaking (to be given) to pay “reasonable allowances” to the Elder Son and the Daughter directly[4].

(c)  Periodical payments for the Younger Son’s Hong Kong accommodation under paragraph 4(iii) of the 2019 Consent Order and periodical payments (excluding accommodation) under paragraph 2(iii) of the 2019 Consent Order be varied downwards[5].

(d)  Paragraph 2 of the 2019 Consent Order to be varied such that, rather than all of the Children’s maintenance being adjusted annually in accordance with the Consumer Price Index (“CPI”) as agreed, only the Younger Son’s maintenance be so linked and this will only increase if the Father’s salary increases more than or equal to the CPI the year prior to the adjustment.

(e)  To discharge his undertaking at Recitals E(ii), E(iii), and F of the 2019 Order subject to the Father’s fresh undertakings (to be given) as follows:

(i)  In effect, the Father is seeking to be released from his obligations to pay for the Children’s examination fees, school fees, tuition fees, school transportation, overnight school trips, accommodation costs in the event that the Children attend school or university overseas, two air tickets (economy class) per academic year for travel to and from Hong Kong for each of the Children while they are studying abroad, and other school related expenses requested by the school/university.

(ii)  In lieu (the precise wording of the Father’s undertakings has not yet been supplied), he suggests paying directly for the Elder Son’s school, tuition and accommodation fees for his current university; the Younger Son’s school fees, tuition fees, and other related expenses at his current Hong Kong school (French International School); the Younger Son’s university tuition fees, accommodation costs and related expenses by utilising the “Best Start Plan 19 education policy no. 0009471259”.

3.  By Summons dated 16 September 2021 (and amended on 4 November 2021), the Mother sought an upward variation of the Children’s maintenance backed payment from August 2021 and reimbursement of certain expenses plus judgment rate interest (“Mother’s Upward Variation Application”).

4.  On 2 November 2021, I ordered the Father to repay the Mother HK$227,738 (which comprised of the deposit and the 1^st term tuition fees for the Daughter at the Royal Veterinary College in London, United Kingdom (“RVC”) as well as her accommodation deposit and other expenses). He paid this sum in 3 instalments from 6 to 8 December 2021, with the final sum received on 8 December 2021

Brief Background

The Parties

5.  The Father is a Chinese national. He was born on 27 February 1962 in China, now 60 years old. He works as a law professor at a famous university in Hong Kong (“the University”), and is due to retire in five years’ time (i.e. February 2027). He is also a visiting scholar with 2 famous universities in the USA.

6.  The Mother is a French national. She was born on 29 September 1973, now 49 years old. She professes to be an interpreter and private tutor, but stopped working as a private tutor after the year 2019/2020.

7.  They married in Martigues, France on 9 July 1994 and subsequently moved to Hong Kong in 1995 for the Father’s employment working in the University. They have three children now aged 22, 19 and 14 respectively as mentioned above.

8.  The Father was all along the breadwinner of the family, while the Mother focused on caring for the Children and had a substantially lower income, and a commensurately lower ability to save.

9.  The parties enjoyed a comfortable standard of living during the marriage. They resided at an apartment of 1,500 sq./ft., employed a domestic helper, would holiday several times a year, including visiting France during the summer and China during the Chinese New Year holiday. They had access to sport facilities, restaurants, and other amenities at the University.

10.  The Younger Son is presently the only minor child of the parties, and it is anticipated that he will start university in 2026.

Decree of Judicial Separation and the 2011 Consent Order

11.  On 16 September 2010 the Mother issued a divorce petition under FCMC 12143/2010. Upon the parties’ realizing that the Decree Absolute would deprive the Mother and Children of the right to reside in the former matrimonial home, the Father and Mother agreed that a second petition for judicial separation be filed. The parties consensually adopted this course to preserve the Mother and the Children’s long-term home, and having subsidized accommodation provided for by the Father’s employer. This was mutually beneficial, as it also avoided the cost of the Father paying for the Mother/Children if they lived in alternative accommodation.

12.  The Mother’s original divorce petition was dismissed and the decree of judicial separation was pronounced on 28 December 2011 under FCMC 17536/2011. Under the terms of the Order dated 28 December 2011 made by consent (“2011 Consent Order”), it was ordered that:

i.  Parties have joint custody of the Children with care and control to the Mother and reasonable access to the Father.

ii.  The Father and the Mother distributed the family assets with 68% thereof to the Mother and 32% thereof to the Father on the basis that there should be a clean break between them as per Recital E. The Mother received/retained over HK$6.2 million of the assets and the Father retained around HK$2.9 million of the assets (around HK$1.9 million of which was the Father’s pension). The 2011 Consent Order provided for no spousal maintenance after the division of assets.

iii.  The Father agreed to pay the Mother HK$8,300 per month per child as per Paragraph 2.

iv.  The Father undertook inter alias to:

(a)  pay directly all of the Children’s school fees, and school’s transportation as per Recital S;

(b)  pay directly the Children’s overnight school trips, accommodation costs in the event the Children attend school or university overseas, and other school related expenses requested by the school/university not already covered in the children’s maintenance, provided they are agreed in advance between the parties as per Recital S;

(c)  provide the accommodation from the University for the children’s and Mother’s use rent free, or, in the event his accommodation benefit from the University is no longer available or the Mother decides to move out with the Children, to provide a housing allowance for the Children’s shares at a sum to be agreed between the parties as per Recitals T and U; and

(d)  make available to the Children the medical and dental insurance provided by the University and pay any medical or dental costs of the Children not covered by the medical/dental insurance as per Recitals X and Y.

v.  The Mother undertook inter alia to make contribution to the Children’s expenses upon her making an income equivalent to 50% of the Father’s income as per Recital V.

The 2016 Order

13.  On 23 November 2015, the Mother took out an application for an upward variation of the Children’s maintenance from HK$25,900 per month to HK$39,737 per month, representing a 53% increase from the 2011 Consent Order.

14.  The 2011 Consent Order was varied on 12 April 2016 to increase the maintenance for the Elder Son to HK$9,300 per month on an interim basis. Thereafter, by Order made by HHJ Melloy dated 16 November 2016[6] (“2016 Order”), HHJ Melloy ordered the maintenance for the Elder Son be varied upward to HK$12,500 per month and the maintenance for the Daughter and the Younger Son be varied upward to HK$11,500 per month per child, totalling HK$35,500. Under the 2016 Order, the Father remained solely responsible for the Children’s expenses.

15.  In the meantime, the Father had issued the petition for divorce based on 2-year separation under the present proceedings on 6 April 2016, and the decree nisi was pronounced on 15 June 2016.

Father’s purchase of the LOHAS Park Property (“LP Property”)

16.  The Father purchased the LP Property in Tseung Kwan O on 3 September 2018. He paid a down payment of HK$984,293 (together with “other expenses” of HK$299,147, totaling HK$1,283,440), and took out 4 loans for his purchase totaling HK$6,388,707 as follows:

(i)  loan from Bank of East Asia (“BEA”) for HK$4,339,747;

(ii)  another a loan from HSBC of HK$1,500,000;

(iii)  loan from a friend (Wang Z) for RMB300,000/HK$348,960; and

(iv)  loan from second friend (Chen L) for HK$200,000.

17.  According to the Father’s Form E dated 22 October 2021, the current value of the LP Property is around HK$10,000,000.

The 2019 Consent Order

18.  On 5 September 2019, a further Order was made (“2019 Consent Order”) upon joint application by the Father and the Mother under the present proceedings, pursuant to which:

i.  The Father shall pay:

(a)  periodical payments for the living expenses (excluding accommodation) of the Children in the sums of HK$12,500 per month for the Elder Son and HK$11,500 per month for each of the Daughter and the Younger Son, to be adjusted annually in accordance with the CPI index as per Paragraph 2.

(b)  periodical payments for the accommodation expenses of the Children in Hong Kong in the sums of HK$8,500 per month for the Elder Son and HK$14,000 per month for each of the Daughter and the Younger Son as per Paragraph 4.

ii.  The Father undertook to, inter alia:

(a)  pay directly all of the Children’s school fees, tuition fees, and school’s transportation as per Recital F;

(b)  pay directly the Children’s overnight school trips, accommodation costs in the event that the Children attend school or university overseas, and other school related expenses requested by the school/university, provided that they are agreed in advance between the parties as per Recital F;

(c)  make available to the Children the medical and dental insurance provided by the University and pay any medical or dental costs of the Children not covered by the insurance provided that the expenses and services are agreed between the parties prior incurring of such expenses as per Recital J.

iii.  The Mother (similar to the 2011 Consent Order), undertook to make a contribution to the Children’s expenses upon her making an income equivalent to 50% of the Father’s income.

iv.  As with the 2011 Consent Order, the 2019 Consent Order also provided for no spousal maintenance, and the parties acknowledged that the provisions of the 2019 Consent Order were made on a clean break basis in respect of claims they may have against each other as to spousal maintenance.

19.  When the 2019 Consent Order was made,

i.  the Elder Son was attending Preparatory School in Paris, France and intended to undertake an engineering degree in France thereafter;

ii.  the Daughter was attending Grade 12 at French International School (“FIS”) in Hong Kong. The tuition fees were at that time HK$20,108; and

iii.  The Younger Son was attending Grade 7 at FIS.

20.  The Father in his Form E stated that he expected the Daughter to attend university which was “commensurate with her interest and ability and within the parties’ financial means”; whereas the Mother in her Form E indicated that she foresaw the Daughter “will attend universities in Hong Kong or abroad (which is expected to be France)”.

21.  Decree absolute was pronounced on 4 November 2019. This was a marriage of almost 17 years as the parties started to separate since 2010.

Events subsequent to the 2019 Consent Order

22.  The following events are not disputed or indisputable based on contemporaneous documents:

i.  the Elder Son is currently attending a specialist engineering school (Grande Ecole) ECAM Strasbourg-Europe, in France and will graduate in June 2024.

ii.  Between September 2020 and June 2021, the Daughter, the Mother and the Father had discussions regarding the Daughter’s university application. The Father had in the course of these discussions suggested the Daughter to apply to universities in France, noting that the level of tuition fee for French universities, as opposed to UK universities, was within financial reach, see for example the university fees of the Elder Son in France costing €650 per month.

iii.  The Daughter made applications for universities both in the UK and in France and she decided to attend RVC in the UK, starting in September 2021.

iv.  The costs of the Daughter attending RVC to study for her 5-year Bachelor of Veterinary Medicine include (but are not limited to):

(a)  tuition fees for 2021-2022 in the sum of £36,760 (HK$393,332,) per annum, with a reported increase to £37,860 for 2022-2023; and

(b)  accommodation expenses in the sum of £8,928 (HK$95,530) per annum.

v.  Leaving aside other school related expenses, the 2020-2021 tuition fees together with the accommodation expenses represent an increase of around HK$20,820 monthly in education expenses for the Daughter (when compared with the tuition fees at FIS). If taking into consideration her school-related expenses, the increase becomes HK$23,310 per month.

vi.  As a full-time student, the Daughter, like the Elder Son, will not be in Hong Kong during term time. Her suggested London accommodation for the coming school year (provided through correspondence) entails a 1 year tenancy at £768 per month (£192 per week).[7]

Father’s case and his open proposal

23.  In short, the grounds for the Father’s Downward Variation Application is a combination of the following:

(a)  the Daughter commenced her undergraduate degree at RVC in London and spent much lesser time in Hong Kong (if at all);

(b)  there is a sharp increase of the RVC tuition fees (almost doubling of the Daughter’s FIS tuition fees);

(c)  the Father has suffered worsening financial deficit since August 2021 (particularly the loss of his fee as Director of the University Press and the ending of the Daughter’s education allowance from the University).

24.  The Father accepted that he shall remain as the sole financial support covering the Children’s needs. However, in respect of the income, earning capacity and financial resources of the Father, he submitted that:

i.  As set out above, his income cannot cover the necessary family expenses at the current level particularly due to his drop in income notwithstanding that he has maximized his approved Outside Practice income on top of his salary to the ceiling level allowed by the University. His future income will decrease significantly as he will retire in February 2027 (after 5 years).

ii.  Currently he is indebted to various banks and personal friends to finance his purchase of the LP Property in 2018 and to keep up with inter alia his payment obligations under the 2019 Consent Order and his tax liability. He is running a significant deficit of $54,109.3 each month.

iii.  As the LP Property is intended to be used as the residence of the Father upon his retirement and moving out of the University’s accommodation, it should not be regarded as part of his “financial resources” for the purpose of this application. Further, as the pension of the Father could only be withdrawn upon his retirement (after 5 years), the pension are not the financial resources which are available as at the date of this trial, and the Father has already liquidated his remaining non-landed assets (besides the car) and taken out multiple loans to shoulder the difference in income/available assets and family expenses.

25.  As to the reasonable needs of the Children, the Father said:

i.  Given that the Elder Son and the Daughter no longer study in Hong Kong and they would only return for a short duration every year (if at all), their reasonable needs would not include accommodation expenses in Hong Kong. The formulation proposed by him for provision of their accommodation in Hong Kong will sufficiently address the Elder Son’s and the Daughter’s reasonable needs.

ii.  Furthermore, consideration must also be given to the Younger Son’s interest and welfare. For fairness and equity between the Children, any order for maintenance should be sustainable and realistic to ensure the Younger Son’s welfare (until he finishes his tertiary education) will not be jeopardised.

iii.  The Father has provided his comments on the Children’s living expenses and said that the Mother has plainly failed to prove with sufficiently cogent evidence (including but not limited to receipts and bank statements) the surge in living expenses for the Children.

iv.  In any event, the Father has expressed his willingness to continue making periodic payment pursuant to paragraph 2 of the 2019 Consent Order subject to minor revisions.

26.  As to the payment structure, since the Elder Son and the Daughter are now adults, they should learn to be responsible for their own finances. They are both studying abroad with no payment of their expenses going through the Mother. The Father proposes to pay the Elder Son and the Daughter the periodical payments for their respective maintenance directly.

Applicable Legal Principles

27.  The Court’s power to grant an order for variation of maintenance is governed by section 11(1) of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (“MPPO”).[8] Section 11(7) states:

“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…”(emphasis added)

28.  Per Cheung JA for the Court of Appeal in AEM v VFM [2008] HKFLR 106:

“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.

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.

7. An increase in the wealth of the Father was a relevant factor to be taken into account.

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” (emphasis added)

29.  The Court has an almost unrestricted power to vary its own order retrospectively and to backdate any variation beyond the date of the application for variation. In practice, orders are not generally backdated to a date prior to the notice of application to vary unless the justice of the case so requires (AEM (supra),§§15.1-15.2).

30.  In assessing the case before it de novo, the Court will have regard to the matters set out in s 7(1) and (2) of the MPPO. Financial mismanagement by the payer or the payee may be one of the relevant circumstances to which the Court is required to have regard under the umbrella of conduct. The parties also have a duty to make full and frank disclosure of their means; a failure in that duty can lead the Court to draw adverse inferences.

31.  With respect to the weight to be attached to the original order, the lapse of time between the order being made and the date of application for variation is relevant. Put simply, if an application is brought very soon after that order has been made, the Court is likely to attach more weight to that order than if it had been made some years previously: HCTT v TYYC, (supra) per Tang VP, §§15-16.

32.  The principle of finality of litigation is to be respected. Orders are not set aside or varied unless there is a new event that invalidated the basis or fundamental assumption on which an order was made, or there was a very significant change in the anticipated circumstances: L v C (supra); Court of Appeal CH v MEH.[9] Formal agreements, properly and fairly arrived at with competent legal advice, should be given effect to unless good and substantial grounds were shown for concluding that injustice would be done by holding the parties to the terms of the agreement: AEM v VFM (supra), §44.

Father’s Downward Variation Application

Parties’ Financial Position

33.  To start with, it is not disputed that the Father’s net assets have grown considerably over the years from about HK$2.9 million in 2011 (when the 2011 Consent Order was made) to about HK$7.74 million in 2019. Since the 2019 Consent Order, the Father’s assets have nearly doubled from a net value of HK$7,774,189.64 to HK$13,733,343.04 as at this date.[10]

34.  In addition to the pension of about HK$7,479,576[11], and the LP Property valued at HK$10,620,000 as of 7 January 2022 (net value of HK$5,860,984[12]), the Father has also the stocks worth about HK$98,026.60[13]and the AXA National Life Insurance Policy with a surrender value of HK$550,831[14]. He said that they have been liquidated to pay for the Daughter’s 2^nd and 3^rd instalments of RVC’s school fess in his Answers to the Mother’s Questionnaire and during the cross-examination.

35.  On the other hand, the Mother has the net assets of about HK$5.5 million which dropped to about HK$4.2 million according to her respective Form Es dated 30 July 2019 and 22 October 2021. Obviously, the Father has much greater financial resources than the Mother.

36.  Secondly, Ms Booth for the Mother submitted that the Father’s financial difficulties would easily be resolved were he to sell the LP Property and repay his outstanding loans. He would walk away with more than HK$5.8 million net in readily available cash and this would reduce his monthly outgoings by HK$72,793 extra each month since he would no longer have to pay at least HK$48,986 pm of debts/payments related to that property (ie mortgage of HK$17,737; management fees and government rates HK$2,888; personal loan of HK$26,650, property tax of HK$1,711). The Father could also discharge his outstanding loans, reducing his payments by another HK$23,807. He would then easily have the liquidity to meet the Children’s maintenance.

37.  The Father retained his pension of only around HK$1.9 million as per the 2011 Consent Order. Thereafter, the Father’s pension has increased from HK$5,628,402[15] since 17 July 2019, to HK$7,479,576 as at October 2021 (realizable on 27 February 2027). He contributes HK$8,239 to this pension per month, and his employer ie the University contributes 15% of the Father’s prevailing salary per month (HK$24,987). This totals HK$33,316 per month.

38.  Ms Tam for the Father argued that the LP Property is his only retirement home which he is in the process of paying off as he was left without any post-employment residence after the clean break. The Father’s pension simply would not sustain the purchase of a property, the post-retirement payment of the Younger Son’s education and living, and the Father’s own living (including medical costs as he will no longer have the coverage of the University’s medical insurance) for the next decade or more.

39.  With respect, I disagree with Ms Tam’s argument. As Ms Tam rightly submitted that the list of factors under section 7(2) of the MPPO remain relevant to the Court’s exercise of power to vary a child maintenance order which include:

i.  the financial needs of the child;

ii.  the income, earning capacity (if any), property and other financial resources of the child;

iii.  any physical or mental disability of the child;

iv.  the standard of living enjoyed by the family before the breakdown of the marriage; and

v.  the manner in which he was being and in which the parties to the marriage expected him to be educated.

40.  The legal principles in relation to financial provisions for a child in WGL v ASB [2013] HKFLR 391, §§55-57 (the summary provided by B Chu J therein being in relation to a child born out of wedlock, but which equally apply analogously to financial provision for children of a marriage after spousal clean break settlement) include the following:

i.  The welfare of the child is a very relevant consideration as one of “...all the circumstances…” of the case.

ii.  The respective incomes, earning capacities, property and other financial resources of each of the parents must be taken into account, together with their respective financial needs, obligations and responsibilities. So “the child is entitled to be brought up in circumstances which bear some sort of relationship with the father’s current resources and the father’s present standard of living”

iii.  One has to guard against unreasonable claims made on the child’s behalf but with the disguised element of providing for the mother’s benefit rather than for the child.

iv.  Such income provision is reviewable from time to time, according to the changing circumstances of the parties and of the child.

v.  The overall result achieved by orders should be fair, just and reasonable taking into account all the circumstances. (emphasis added)

41.  There is no reason why the above principles are not equally applicable to an application for variation of children maintenance order under section 11 of the MPPO especially when minors’ interests are involved.

42.  In the circumstances, I fail to see how the court can disregard the LP Property and the Father’s pension. The current value of his pension is about HK$7.5 million and taking into account of the total contribution by him and his employer at the rate of HK$33,316 pm from October 2021 up to February 2027 (around 5 years and 4 months), the Father is very likely to receive the pension of HK$9.6 million (ie HK$33,316 × 64 + HK$7.5 million). I accept that this figure will have to be subject to the fluctuation of the investments selected by the Father. Nonetheless, I consider that when he gets the pension upon retirement, he shall be able to afford a suitable apartment in Hong Kong free from mortgage. I reject his reason for refusing to realise the LP Property and accept Ms Booth’s submission that after sale, he would receive over HK$5.8 million net in cash and this would reduce his monthly outgoings by HK$72,793.

43.  I also reject his argument for running a deficit of over HK$54,000 per month since these difficulties are all self-inflicted by the Father. They arose from the foreseeable consequences of his choices to purchase the LP Property on 3 September 2018, after the divorce proceedings were commenced by him and he had obtained multiple loans before agreeing to the terms of the 2019 Consent Order.

44.  As a reputed law professor, equipped with a legal team of specialist, experienced matrimonial solicitors and Counsel, the Father was legally advised, and would have been fully aware, of what the terms of the 2019 Consent Order meant and their consequences.

45.  As per Lam J (as he then was) in the Court of Appeal, HCTT v TYYC:[16]

“the courts in the family jurisdiction must be equally astute to guard against unmeritorious applications for variation by litigants who have second thoughts about settlements they have knowingly reached on their own volition….it would go against the modern ethos of family dispute management if the court were to entertain lightly an application to vary the terms of a settlement embodied in a consent order.” (emphasis added)

46.  The Court of Final Appeal made clear in G v S,[17] and said that:

“a Father could not be heard to say that a change in the circumstances which he had unilaterally and voluntarily induced, rendered the agreement so unjust to him that it ought to be altered. Any other view would involve, in effect, construing the relevant statutory provisions as a charter for ‘defaulting Fathers.’" (emphasis added).

47.  Thus, I consider that the Father’s choice for purchase of the LP Property could not be allowed to impinge on the welfare of the Children and he should bear the financial consequence for his own choices. I come to the conclusion that the Father has sufficient financial resources to comply with the 2019 Consent Order.

Parties’ earning capacities and income

48.  The Mother has little income of HK$10,460 per month with personal monthly expenses of HK$11,669 and has to rely on her current assets of about HK$4.2 million.

49.  The Father said that his sources of income has also reduced since 2019, including but not limited to the following reductions: after serving 2 terms of office, he can no longer act as Director of the University Press and the $7,600 per month ceased on 30 June 2021; and after the Daughter turned 18, his employer’s education allowance of HK$4,261 per month also ceased. His payments from examiner’s fees in relation to PCLL and QLQE have decreased in amount, from $186,900 per annum ($15,575 monthly) to $83,450 per annum ($6,955 monthly). His average current earning is about HK$242,226 per month. I still consider that he has very high earning capacity. As discussed above, after sale of the LP Property, he will greatly reduce his monthly outgoings by HK$72,793 extra each month. He will then be able to pay the Children’s maintenance in accordance with the Consent Order 2019.

Whether the Father agreed the Daughter to commence her undergraduate degree at RVC

50.  At the time of the Consent Order 2019, I consider that the Father must have contemplate that the Daughter will start university in around September 2021.

51.  As per Recital F of the Consent Order 2019, the Father undertook to, inter alia:

(a)  pay directly all of the Children’s school fees, tuition fees, and school’s transportation;

(b)  pay directly the Children’s overnight school trips, accommodation costs in the event that the Children attend school or university overseas, and other school related expenses requested by the school/university, provided that they are agreed in advance between the parties. (emphasis added)

52.  The Father seems to say that he never agrees to the Daughter’s commencement of her undergraduate degree at RVC in London. Nonetheless, I consider that there is no good reason why he did not expressly reject RVC as an option in his email exchange with the Daughter. If he was all the time thinking about reserving funds for tertiary education of the Younger Son, he should expressly insist in his email to the Daughter not to apply RVC at the very beginning. Indeed, the Father congratulated the Daughter for being accepted into RVC on 18 February 2021 stating “very glad and proud of you” in a WhatsApp message between them.

53.  In his Opening Submissions and latest open proposal, the Father indicated his preparedness to pay the Daughter’s fees at RVC. I would assume that he now agrees. In any event, since the welfare of the child is a very relevant and important consideration among all the circumstances, I consider that in her best interest and according to her wishes, the Daughter shall continue her undergraduate degree at RVC.

Fairness and equity between the Children

54.  Ms Tam for the Father argued that for fairness and equity between the Children, any order for maintenance should be sustainable and realistic to ensure the Younger Son’s welfare (until he finishes his tertiary education) will not be jeopardised.

55.  It is very likely that the Elder Son and the Daughter will graduate in June 2024 in June 2026 respectively whilst the Younger Son will only start university in September 2026. I consider that the financial burden of the Father will be alleviated a lot by the time respectively after June 2024 and June 2026 despite the fact that the Father might get retired in July 2027.

56.  I also understand that it is still not yet decided as to whether the Younger Son will have his tertiary education aboard (probably France) or in Hong Kong. No one is able to rule out the possibility that he will study in one of the universities in Hong Kong as the Father is working as professor in the University. Bearing in mind that as per Recital F of the Consent Order 2019, the related expenses requested by the university have to be agreed in advance between the parties, it is always possible that they fail to agree which university the Younger Son should go. In that case, they may have to come back to the court for determination of the Younger Son’s university fees and other related expenses, probably in late 2025.

57.  In short, I disagree that the Younger Son’s welfare will be jeopardised if the court refuses the Father’s Downward Variation Application.

58.  The Father also argued that given that the Elder Son and the Daughter no longer study in Hong Kong and they would only return for a short duration every year, their reasonable needs would not include accommodation expenses in Hong Kong. He submitted a very lengthy statement of open proposals. As a whole, he proposed around 25% downwards for the Elder Son’s maintenance, around 21% downwards for the Daughter’s maintenance and unchanged for the Younger Son.

59.  As the Father was well legally advised at the time of the 2019 Consent Order, he must have contemplated the Elder Son and the Daughter will go overseas to study university in the near future and may only return to Hong Kong for short periods of times. I disagree that it is a material change of circumstances.

Payments to be made to the Elder Son and the Daughter Directly

60.  The Father further suggested that since the Elder Son and the Daughter are now adults, he should directly pay them their respective maintenance. In fact, the Elder Son was an adult at the time of the 2019 Consent Order. He fails to explain why he did not propose to pay the Elder Son direct at that time.

61.  Further, I do not consider that the Father has very harmonious relationship with the Children as per various emails and WhatsApp messages from the Father to the Elder Son and the Daughter, such as:

“I (the Father) hate myself, why am I here bearing all the burden! What is the meaning of this life”, “all this will kill me”, “this makes me desperate and miserable…I hate my life. Meaningless”.

62.  I do not think that it is proper for the Father to use these kind of words in the communication with the Children. As he might unintentionally exert undue pressure on them, I thus reject his proposal to make payments direct to them.

Best Start Plan 19 education policy

63.  I also disagree to apply the funds in the Best Start Plan 19 education policy for the Children’s expenses as sought by the Father since he has sufficient financial resources to pay for them, in particular he can sell the LP Property.

64.  I accept that by the time likely in late 2025 when the Younger Son has to decide whether to study overseas or in Hong Kong, it may be more appropriate for the court to deal with this issue of applying the said funds.

Conclusion

65.  To conclude, I think that the Father is simply re-writing almost each and every paragraphs of the 2019 Consent Order and proposing fresh undertakings as he wishes. I have to give very heavy weight to the 2019 Consent Order and do not consider that there are material changes of circumstances to justify his such application for variation. I refuse to accept his fresh undertakings and disagree that it is just to discharge of his present undertakings.

66.  Based on the above reasons, the Father has to comply with the 2019 Consent Order. I now make an order to dismiss the Father’s Downward Variation Application.

Mother’s Upward Variation Application

67.  Originally, the Mother only applied for an order that the Father do comply with his undertaking under Recital F of the 2019 Consent Order by her Summons dated 16 September 2021. Subsequently on 29 October 2021, she sought leave, which was granted by me on 4 November 2019, to amend the said Summons to the effect that the Children’s maintenance be varied upward (“the Mother’s Amended Summons”).

68.  In brief, the Mother sought to increase the Elder Son’s maintenance from HK$12,500 to HK$16,202, the Daughter’s maintenance from HK$11,500 to HK$14,314 and the Younger Son’s maintenance from HK$12,500 to HK$25,622.

69.  Ms Tam for the Father queried as to whether the Mother did transfer the entire maintenance of HK$12,366 or only HK$7,000 every month to the Elder Son. The Mother denied. I see no reason why he cannot ask the Elder Son direct but choose to guess. I reject this challenge.

70.  Ms Tam’s for the Father also submitted that the Mother failed to provide necessary receipts to support the quantum of the vast majority of the items claimed. I agree since the court has to guard against unreasonable claims made on the Children’s behalf but with the disguised element of providing for the Mother’s benefits rather than for the Children (as per WGL v ASB supra para.55(v)). The Mother has the burden of proof of all the alleged expenses.

71.  For the need of a helper, I think that as the Daughter has gone to the UK for study, it is unnecessary though not unreasonable for hiring a helper given that the Younger Son is already 14 years old and the Mother is not a full time worker but just self-employed as interpreter earning several thousand a month on average[18].

72.  As it is no longer necessary to undergo quarantine in Hong Kong, I do not need to deal with the Mother’s claims for this purpose, such as hotel charges etc when the Elder Son and the Daughter return to Hong Kong.

73.  During the cross examination by Ms Tam for the Father, the Mother agreed that the Elder Son had only been in Hong Kong for one week since the 2019 Consent Order and that the Father had paid altogether HK$263,500 (ie HK$8,500 per month X 31 months) for the Elder Son’s accommodation expenses in Hong Kong as per paragraph 4 of the 2019 Consent Order.

74.  The Mother is renting the current apartment of 1,100 sq ft at HK$38,000 per month with 4 bedrooms (including the helper’s room as a bedroom). Ms Tam argued that the Mother’s share for the rental is only HK$1,500 after deducting the Father’s payments for the Children’s accommodation expenses in Hong Kong as per paragraph 4 of the 2019 Consent Order. Whilst it is unlikely that both the Elder Son and the Daughter will be back to Hong Kong at the same time, I consider that the current rent of HK$38,000 is not on high side and even if the Mother moves to a smaller apartment with cheaper rent, she has to incur unnecessary costs, such as estate agent fees, removal and renovation charges, etc. Besides, the Father had already agreed to pay a total of HK$36,5000 for the Children’s accommodation expenses in Hong Kong at the time of the 2019 Consent Order, he should not bother about the Mother’s share for the rental.

75.  On the other hand, as agreed in paragraph 2 of the 2019 Consent Order, all of the Children’s maintenance will be adjusted annually in accordance with the CPI. In my view, the parties have already contemplated the reasonable inflation of the Children’s expenses every year. I refuse to re-visit each and every items of their expenses as minor as new phone, clothing, health supplements, pharmacy, equipment for school trips, contact lens, annual ophthalmologist check-up etc. The fact that all these items of expenses may be inflated every year is foreseeable by the Mother at the time of the 2019 Consent Order.

76.  Similarly, I shall give very heavy weight to the 2019 Consent Order and do not consider that there are material changes of circumstances to justify the Mother’s Upward Variation Application. I consider that even if the Father is going to sell the LP Property, he may still have difficulty to pay the increments as sought by the Mother.

77.  The Mother also asked for reimbursement of the sums of GBP21,194 (or equivalent to HK$204,977) paid by her for the Children’s education costs, which the Father should have paid as per Recital F of the 2019 Consent Order and plus interest thereon at judgment rate. The Father conceded this sum and paid on 17 May 2022 save for the interest. It is trite that the court has very wide discretion as to the issue of interest. In my view, the Father shall be liable to pay interest as he should have made this payment earlier. For the interest rate, the parties’ Counsel did not make any submission as to why judgment rate or what rate shall be fixed. I consider that 4% per annum is reasonable in the circumstances as it is the usual return for investment. Thus, I exercise my discretion to fix at the rate of 4% per annum from the date of her application for amending her Summons ie 29 October 2021 up to 17 May 2022.

78.  For paragraph 2 of the Mother’s Amended Summons, I consider that it is unnecessary for her to seek an order that the Father do pay the Children’s education costs which are required as per his undertakings in the 2019 Consent Order. In case he fails to do so, the Mother may commence committal proceedings against him for contempt of court or make the necessary payments first and then seek reimbursement from him with interest thereon.

Order

79.  To sum up, I make an order as follows:

i.  The Father’s Summons dated 25 August 2021 be dismissed;

ii.  Paragraph 1 of the Mother’s Amended Summons is dismissed;

iii.  No order be made for the remaining paragraphs save for paragraph 3 thereof, the Father do forthwith pay the Mother interest on the sum of HK$204,977 at the rate of 4% per annum from 29 October 2021 up to 17 May 2022.

Question of Costs and parties’ legal costs incurred

80.  The Mother estimated her costs incurred as per her Form H is $970,698.70 whilst the Father estimated his costs incurred as per his Form H is $913,759.70. Briefly, the Mother is seeking upward of about HK$21,500 per month in her application whilst the Father is seeking downward of about HK$32,100 per month in his application. In my view, the respective costs incurred by the parties are entirely not proportional to their respective applications. If they are sensible enough to use these 2 sums of legal costs over HK1.88 million for the welfare and education of the Children, the only persons who are benefitted must be the Children themselves rather than the lawyers.

81.  Turning back to the question of costs, although both applications are dismissed, I consider that they were heard together, and the time and costs spent on the Father’s Upward Variation Application is much greater. I exercise my discretion to order the Father to pay 50% costs of these 2 applications to the Mother including all costs reserved, if any, to be taxed if not agreed, with certificate for counsel. Such costs order be in the form of nisi, which become absolute unless any of the parties apply to vary by way of summons within 14 days.

82.  I thank counsel for their assistance.