MAR (nee ARM) v. MM

FCMC 10439 / 2014

[2020] HKFC 49

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 10439 OF 2014

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J U D G M E N T
(Variation of Maintenance/release from undertakings)

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Introduction

1.  This is an application by a respondent husband dated the 24 April 2019, inter alia, to vary an order entered into by consent on the 4 May 2015.

2.  On the 15 November 2018, the Petitioner wife issued a summons which was more in the nature of an enforcement application. This concerned the enforcement of an undertaking given by the husband with respect to a pension fund, which according to the wife was due to be paid in or around 2023. On the 4 December 2018 the wife issued two further applications namely a judgment summons and an application to enforce arrears that were over 12 months old. At the call over hearing on the 11 March 2019, the husband was asked if he wished to issue an application to vary and the summons dated the 24 April 2019 was filed as a direct result of that query. On the 29 April 2019 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 4 May 2015. They were both legally represented at the time. The consent order stated inter alia as follows:

AND UPON the Respondent’s [husband’s] undertaking :-

I.  to inform the Petitioner within 14 days if and when his shareholding in C P HK Limited is sold

2.  to inform the Petitioner of the value and payment terms of his pension with PE, his former employer when the same falls due

3.  to pay until 1^st January 2016 the rental of the present property of HK$50,000.00 per calendar month and thereafter until further order do pay a rental of HK$35,000.00 per calendar month

4.  be responsible for the children school and college fees until they cease full time education

5.  be responsible for the salary of the domestic helper so long as the children are in Secondary education in Hong Kong

6.  to pay the Petitioner 50% of the proceeds of sale of his shares in C P HK Limited when sold

7.  to pay the Petitioner 50% of the benefits received from his pension with PE when received

AND UPON the Petitioner and the Respondent acknowledging and agreeing that :-

1. each party keeps its respective real property in Greece and Malaysia

2. the parties will share on maturity the life insurance policy due to mature in 2018 held with NL Insurance.

… 

BY CONSENT, IT IS ORDERED that:-

(1)  The Respondent do pay HK$25,000.00 maintenance from the date hereof as to HK$8,333.00 for the Petitioner and each child and from 1^st January 2016 do pay $39,000.00 being HK$13,000.00 for each of the above until in respect of the Petitioner remarriage and in respect of the children being ceasing full time education or reaching 18 whichever occurs later.

(2) The Respondent do pay the Petitioner a lump sum of HK$1.5 million on or before 4th May 2018.

(3) There be liberty to apply as to the terms of this Order.

…

It is of note that no formal dismissal of claims was included in this order. It is not clear if this was by default or design.

4.  In the husband’s Notice of Application for Ancillary relief dated the 24 April 2019 he sought to vary the original order as follows:

(1)  a variation of the Order dated May 4th, 2015 made before Her Honour Judge Melloy (the “Order”) due to the reasons set forth in the Respondent’s previously filed and served Form E and supporting Affidavit, and as per the following:

i.  The Respondent to pay the Petitioner rent in the sum of HK$20,000 per month until A completes her studies for the International Baccalaureate (the “IB”).

ii.  The Respondent and the Petitioner to be responsible on a fifty-fifty per cent basis for both A’s and N’s undergraduate education fees and living expenses.

iii.  The Respondent and the Petitioner to donate each of their shares, in their entirety, of the life insurance policy that matured in 2018 with NL Insurance to meet the expenses for N’s undergraduate education fees and living expenses.

iv.  The Respondent to not be liable to make any further rent or maintenance payments to the Petitioner.

(2)  an order dismissing the claims set forth in the Petitioner’s Summons dated 4 December 2018 in their entirety.

5.  For the avoidance of doubt, it should be noted that only those points that are in bold in paragraph 3 above, remain in issue. It is not disputed that that the husband is no longer responsible for the salary of the domestic helper, given that both children have completed their secondary education. Further the husband did pay the wife the sum of HK$835,000 in compliance with his undertaking to pay her 50% of the proceeds of sale of his shares in C P HK Limited. Consequently, the undertakings at 1, 5 and 6 fall away as they have been fully complied with. 

6.  There remains a potential issue with respect to the husband’s pension with PE, but it is also acknowledged that this sum is not due to be paid until a later date. In the husband’s updated Form E dated the 5 March 2019 he states that the sum of approximately HK$900,000 from PE is due to be paid in 2026. The wife believes that the payment might be due earlier than this, possibly when the husband turns 65 years of age in about 4 year’s time, but in any event this is not an immediate issue, although it is acknowledged that this was the focus of the wife’s original summons and the wife remains concerned about these monies. (As an aside the wife’s original summons referred to the “NL pension fund”. However, given that the husband has already received the funds from the NL insurance it seems more likely that the wife’s original concern lay with the husband’s PE pension). In any event the husband has not sought to vary the terms of his undertakings at paragraphs 2 and 7 of the original order and therefore those undertakings shall remain undisturbed.  

7.  The remaining issues then are these - 1) the husband’s undertaking to pay the wife’s rental of HK$35,000 per month until further order 2) his undertaking to be responsible for the children’s college fees until they cease their full time education, 3) the parties agreement to share on maturity, the life insurance policy with NL Insurance, 4) the order for maintenance for the wife and the two children of the family and 5) the lump sum payment of HK$1.5 million to be paid to the wife on or before the 4 May 2018.      

Background to the marriage and since

8.  The parties, who are both of European descent married on the XX July 1997 in Greece. They are long term ex patriates and have lived in Hong Kong for a considerable period of time. The husband is now aged 61 and the wife is a little younger at 53 years of age. The wife has re partnered and the husband is currently single. There are two children of the family, both girls, N, who is now 20 years old and studying at a university in Amsterdam and A who completed her secondary school education at an ESF school in Hong Kong last year and is now 18 years of age. N is expected to graduate this summer, whereas A is expected to start university later this year. A did very well, scoring 42 in her International Baccalaureate programme and is currently taking a gap year. It is not disputed that the husband has been supporting N directly by paying for her university fees and also by paying her an allowance of approximately HK$11,000 per month to cover her accommodation and other living expenses. It seems that the husband now wishes to recoup those expenses by using the NL funds for that purpose.

9.  Although the parties originally reached an agreement by consent on the arrangements for the children and their finances, it now seems clear that despite this there has been a very high level of conflict between the parties for a considerable period of time. On the 14 May 2014 the wife initially issued proceedings based on mild unreasonable behaviour particulars. The parties subsequently agreed to proceed on the basis of one-year separation with consent and a further petition to this effect was filed by the wife on the 7 August 2014. The decree nisi was subsequently granted on the 16 October 2014 and on the same day the court granted the wife sole custody and care and control of the children with reasonable access to the husband. On the 4 May 2015 the order on finances followed. Shortly thereafter, on the 12 May 2015, the decree absolute was granted.

10.  At the time that the parties entered into the consent summons on finances the husband was unemployed. However, prior to that he had held senior positions in a number of different companies and from February 2008 to December 2013 he was the Chief Operating Officer of a company earning in the region of HK$200,000 per month. The parties entered into the consent summons in the reasonable expectation that the husband would be able to find a similar position going forward. In other words, the agreement was entered into in the knowledge that the husband had a high earning capacity. Unfortunately, however that has not transpired and the husband has struggled to find similar remunerative work. Consequently, he set up a consultancy business and his income has seemingly fluctuated over the intervening years.

11.  It is the husband’s case that he earned HK$505,000 from his consulting income in the year 2016 and that this dropped to HK$421,000 in 2017 and to only HK$210,000 in 2018. Thus he had no option but to also rely on capital and a loan in order to make ends meet. He is currently earning HK$75,000 per month plus an allowance for gas of HK$3,500 per month. He is also reimbursed for any out of pocket expenses. He further admitted, under cross examination, that he was entitled to a housing allowance of HK$18,500. It is not clear if that is included within the HK$75,000 base salary. He began this new position in October 2018.

12.  The wife for her part started a new job in June 2019 and she earns HK$30,000 gross, or HK$28,500 net of her MPF contribution. The wife is currently living with her partner. It is her case that she had no alternative but to start living with him as the husband stopped paying any contribution towards her rental in August 2019. She says that she is currently responsible for paying for half of her partner’s current rent at HK$14,700 per month. Although the wife is a graduate and she trained to be a real estate agent during the marriage and she has also worked from time to time in an unpaid or voluntary capacity, it does not appear to be seriously disputed that the husband was responsible for all of the family expenses during the marriage.

The issues

The current issues then are these:

Should the court discharge the undertakings given by the husband with respect to a) the rental payment of HK$35,000 per month and b) payment of the children’s college fees until they cease full time education? If so, what alternative undertakings or court orders can and should be made in their stead?

What orders if any should be made with respect to the life insurance policy with NL insurance?

Should the order that the husband do pay maintenance for the wife in the sum of HK$13,000 per month until her remarriage and maintenance for the two children of the family in the sum of HK$13,000 per month each until they reach the age of 18 years or cease full time education, be varied? If so what should they be varied to?

Can any other orders be made with respect to the lump sum order?

The law

Maintenance orders

13.  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 ……”

14.  It is of note that the court does not have any jurisdiction to vary a lump sum order – see section 11 (2) MPPO. Thus the husband’s application to vary can only apply to order 1 of the court order dated the 4 May 2015, namely that he do pay HK$13,000 per month for the wife until she remarries and HK$13,000 per month for each of the two children of the family, until they cease their full time education.

15.  The husband also asks that he not be liable to make any further rent or maintenance payments to the wife. The order that the husband do pay the wife a lump sum of HK$1.5 million on or before the 4 May 2018 is not variable. This sum has not been paid. The fact that the husband says that this lump sum was based on his ability to earn a high salary, is neither here nor there. The court has no jurisdiction to vary this order.   

16.  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”.

17.  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).

Recent case law

18.  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.

19.  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.”

Undertakings

20.  In so far as undertakings are concerned, I think it is worth reiterating and as discussed during the hearing that the court cannot simply impose an undertaking on a party nor can it vary an undertaking of its own motion or on the request of only one or other of the parties. The court can accept an undertaking; it can discharge an undertaking and it can, in some circumstances and depending on the wording of the undertaking, refuse to accept or to discharge an undertaking. It can also accept a new undertaking in lieu of an old one. As has been said in other cases, this may look like a variation, but in truth it is not.

21.  Counsel for the wife has referred to the unreported case of HMSE v JJS [2019] HKFC 55, FCMP 70 of 2008 where my sister judge, Deputy Judge Rita So discussed the issue of undertakings and said as follows:

“93. The legal principles on discharge of an undertaking can be summarized as follows :-

(a) An undertaking can be discharged, but not varied.

(b) The Court has jurisdiction to discharge an undertaking given to the Court at any stage, even if it was given in an order made by consent.

(c) A party who has given an undertaking to the Court may seek an uplift or release himself/herself from an undertaking in any of the following situations:-

(i) When there has been a material change of circumstances since the undertaking was given which is not foreseeable at the time and which make compliance not feasible;

(ii) When the subject matter to which the undertaking relates no longer exists which renders compliance impossible;

(iii) The party to whom the undertaking was given releases the undertaker from complying with the undertaking;

(iv) When the undertaking was obtained though fraud, misrepresentation or mistake.

(d) Whether an undertaking given to the Court should be discharged is a matter of judicial discretion to be exercised if it is “just” to do so, in order to achieve a “fair” result.

94. It is trite law that undertakings should not be given lightly.”

I would add that the court is not limited to the situations identified by the Deputy Judge in paragraph 93 (c) above and that a court may always accept an undertaking or discharge it, if it is just and reasonable to do so.

22.  In this instance the husband is asking to be discharged from his original undertaking to pay rent. It is his case that he could not afford the sums originally agreed and that he and the wife reached a subsequent agreement in August 2015 that he would pay rental of HK$20,000 per month with effect from October 2015. The wife says that there was no agreement and that the husband simply informed her that this is what would be happening going forward. In any event she found a cheaper apartment at $25,000 per month, which is where she and the girls then moved into. The husband stopped paying any rent at all in August 2019 and in September 2019 the younger daughter initially moved to live with him.

23.  The husband’s current position is a little unclear. During the hearing he said that he was willing to undertake to continue to pay for the girls’ education and living expenses. However, in his closing submission he reiterated his original position as follows:

2.  In respect to my Application to Vary the Order, the Respondent seeks the following order to be made by the Court (the “Proposed Order”):

2.1.  The Respondent and the Petitioner to be equally (i.e. on fifty-fifty per cent basis) for both children’s (i.e. A and N) undergraduate education fees and living expenses.

2.2.  The Respondent and the Petitioner to both acknowledge and agree that the NL Insurance life policy that matured in 2018 will be used to meet the expenses for N’s undergraduate education fees and living expenses.

2.3.  The Respondent to cease having to make any further rent or maintenance payments to the Petitioner.

2.4.  The Petitioner’s Monetary Claim to be dismissed in its entirety. 

2.5.  No other claim or liability to arise under the Order.

24.  In other words, the husband wishes to be released from his undertaking to pay for the children’s school fees until they cease their full time education and in its place he wishes the parties to enter into mutual undertakings or agreements that both parties shall be jointly responsible for these expenses, including their living expenses on a 50:50 basis. The wife does not agree to this and has not proffered any of her own undertakings in this respect. As indicated above he also wishes to vary the agreement reached on the NL insurance monies and for those funds to be used retrospectively to pay for N’s education fees and living expenses. Again the wife does not agree to this. He also asks that the undertaking with respect to the payment of rent to be discharged together with the order on maintenance and the lump sum payment. He wishes it to be acknowledged that he owes the wife nothing in relation to the non-payment of these items historically.

Agreements

25.  Although an undertaking is enforceable in the same way as a court order, an agreement is not. In this instance, and for reasons which are not entirely clear, the parties had only agreed to share, on maturity the life insurance policy funds which matured in 2018 with NL insurance. I asked both parties why there was a difference in the approach taken to this item, but neither could assist me on this point. They had both been under the impression that this insurance was to be dealt with in the same way as the other undertakings given. For the avoidance of doubt I should add therefore that I do not accept counsel’s original submission in this respect namely that

                  The nature of such agreement is no different from a mutual undertaking.

26.  It seems to me that they are most certainly different and that this point needs to be acknowledged. It is not disputed that the husband received the sum of EUR63,326.41 from NL insurance in 2018 but that he has not shared this sum with the wife as agreed.

Summary

27.  As will be seen in the more detailed discussion below it is my intention to make an order in the following terms:

•  The undertakings in relation to the PE pension at sub paragraphs 2 and 7 above shall remain in place

•  The undertaking in relation to the rental shall be discharged with effect from August 2019. Prior to that I shall accept the husband’s undertaking to pay rental of HK$20,000 per month from October 2015 – August 2019. I accept that the husband shall contribute towards the wife’s rental until the younger child starts university and that he shall pay her the sum of HK$14,700 per month from August 2019 to September 2020. Thereafter he shall not be responsible for contributing towards the rental component. This sum shall be included in the maintenance payment.

•  The husband shall not be discharged from his undertaking to pay for the children’s college fees until they cease their full time education. His proposal in relation to the NL insurance funds is not agreed.

•  For the avoidance of doubt I shall make an order that the husband do pay the wife an additional lump sum of Euro 31,663.20 being half of the NL insurance funds as originally agreed.

•  The maintenance payments for the elder child shall be discharged with effect from September 2017 which is when she began her university studies. This is also on the premise that the husband has paid her an allowance of HK$11,000 per month from that date for her accommodation and living expenses. The husband is invited to undertake to continue to make these payments until she completes her course this year. In the event that he refuses to do so then the court shall order that he pay the wife HK$11,000 per month for the elder child until she completes her full time education (namely her first degree). This is on the premise that the wife will then be responsible for paying these funds to the elder daughter.

•  The maintenance payments for the younger daughter shall be discharged with effect from September 2020, which is when she is due to begin her university course, again on the premise that the husband undertakes to also pay her an allowance of HK$11,000 per month for her living expenses in the same way as the elder daughter. Again in the absence of any such undertaking then the court shall that make an order that he pay the wife HK$11,000 per month for the younger child until she completes her full time education (namely her first degree). Again this is on the premise that the wife will then be responsible for paying these funds to the younger daughter also.

•  The order that the husband do pay the wife maintenance of HK$13,000 per month shall be discharged with effect from August 2019.

•  Previous maintenance and other monies due under the order shall be excused. The court accepts that the husband was in a difficult financial position and that he paid what he could afford at the time. It is also accepted that this put the wife in a very difficult financial position.

•  The order in relation to the payment of the lump sum of HK$1.5 million cannot be varied and shall remain in place.

Discussion

Should the court discharge the undertakings given by the husband with respect to a) the rental payment of HK$35,000 per month and b) payment of the children’s college fees until they cease full time education? If so, what alternative undertakings or court orders can and should be made in their stead?

28.  The husband has not proposed any alternative undertaking with respect to the rental and although he said during the hearing that he agreed to continue to pay for the children’s education and living expenses, this is not what he has said in his closing submission.

29.  I should say at the outset that I do not accept the wife’s argument that as the husband was unemployed at the time that they entered into the consent summons in May 2015, that it follows that there was no change of circumstance in the years that followed and therefore there is no basis for the husband’s application. It is clear that it was within both party’s reasonable expectation in May 2015 that the husband would get further high paying employment. This did not happen. I accept therefore that this is a relevant change of circumstance and one that was not contemplated at the time that the consent summons was entered into in May 2015.  

Each party’s case

30.  It is the husband’s case that both sides had to live within his reduced means and that he paid maintenance for what he considered to be essential expenses for the family and that infact the wife and children received 72/73% of his total income for the three-year period from January 2016 – December 2018. The wife said that this was impossible to verify and she was not entirely clear what payments were included in the husband’s calculation. Various spread sheets were produced by both sides during the hearing, but the supporting bank statements were not initially in evidence. In any event it was the husband’s case that he received a total income of HK$4,390,000, which included liquidating some assets and that he paid out in total HK3,170,800 during that period. This is set out in his exhibit MM3 which states as follows

MM Income and payments	2016	2017	2018	2019	Total Income/payments 2016-2018	Income after loan repayment
Bank deposits January	518120	1021551	893484	353960
Consulting Income	505000	421000	210000
Loan Interest to be paid back in 2018	500000	0	0
Selling assets (Club membership)	645000	0	0
Income from the sale of CP	0	1670000	0
Insurance income	0	0	567000
Salary			274419
Total Income  deposits (approximation)	1650000	2091000	151419		4792419	4392419
Payments to ARM, Kids and helper
Rental	240000	240000	240000
Helper salary, food money, flight, transport	92000	80000	81000
maintenance	204000	140000	20000
School fees Hong Kong	230000	192000	132000
other HK Kids expenses (Medical, insurance, food, holidays, pocket money, other school expenses, challenge week, flights, presents)	90000	90000	50000
School and maintenance fees N (Amsterdam)	0	70000	144800	154000
Payment to ARM from the selling of CP	0	835000	0
Total payments to family	856000	1647000	667800	154000	3374800 More than 70% of my income went to family
Loan Repayment			400000	100000

It is of note that the husband has included in this calculation the sale of some of the assets and a loan in the sum of HK$500,000.

31.  The wife for her part produced a schedule of maintenance and other payments, which I have attached to this judgment at “A”.  From this it would seem that in October 2015 the husband reduced the rental to HK$20,000 per month which was shortly after the consent summons was entered into. In November 2015 he also reduced the maintenance to roughly HK$15,000 per month, although these payments did fluctuate a little. He stopped paying any maintenance at all for the first 10 months in 2018 and recommenced a further reduced payment of HK$10,000 per month in November 2018, which coincided with him also starting his new consulting position and receiving a regular income of c HK$75,000 per month. The schedule stops in March 2019, but I was told that the husband stopped paying any contribution to rental at all in August 2019.

32.  Although I agree with the wife that the husband’s calculations are difficult to verify, I do nevertheless accept that his income had dropped significantly during this period and that he paid what he calculated he could afford.

33.  In such circumstance it seems fair and reasonable to make the orders as set out in the summary above.

What orders if any should be made with respect to the life insurance policy with NL insurance?

34.  It is not disputed that the husband has received this money or that the original intention was that this sum should be split between the parties on a 50:50 basis. As indicated above therefore, I shall make a further order that the husband do pay the wife an additional lump sum of Euro 31,663.20 within the next 28 days being her half share of this fund.

Should the order that the husband do pay maintenance for the wife in the sum of HK$13,000 per month until her remarriage and maintenance for the children in the sum of HK$13,000 per month each until they reach the age of 18 years or cease full time education, be varied? If so what should they be varied to?

35.  Turning first to the children’s maintenance, it is generally accepted that once a child goes to university or college, that it is more appropriate for maintenance to be paid directly to the child/young adult concerned. In this case N started university in the Autumn of 2017 and the husband then paid for her education fees directly to the university concerned and he also provided her with an allowance. From that point it was not appropriate for the wife to receive maintenance for N from the husband in addition to the sums that he paid to her directly. The same should apply to A when she goes to university later this year. I have therefore invited the husband to give undertakings in this respect. This should be done within the next 28 days. In the event that no such undertaking/s is received then I shall vary the maintenance payable to the wife for the children accordingly. This is on the premise that the wife will then be responsible for forwarding these funds to the children.

36.  In August 2019 the wife moved into her partner’s flat and whilst I accept that she felt that she had no alternative, it would be normal in a situation like that for both the maintenance payments for the wife and the husband’s contribution towards the rental to cease. I also accept that if A was living with the father then it would have been appropriate for him to take up all financial responsibility for her at that point. If, however, A has returned to live with her mother, then it seems to me that it would be more appropriate for the husband to make some contribution towards her maintenance, whilst she is living with the wife and before she goes to university. It is not however possible for me to make a firm order in that respect given that this was not argued before me at the time. It is though an indication and I would urge the parties to be sensible in that respect. In so far as the wife’s maintenance is concerned, an order will be made as set out in the summary above.

Can any other orders be made with respect to the lump sum order?

37.  As indicated above it is not possible to vary a lump sum order and that order shall remain in place.

Can the husband afford to pay the maintenance that has been ordered?

38.  Although I accept that the husband’s financial situation has been strained, it seems to me that he should be able to afford to pay for these amounts albeit it is accepted that some of the outstanding amounts due may need to be paid by instalments.  

Costs

39.  This is the husband’s application. However, neither party has been wholly successful with respect to it. Consequently, I have decided to exercise my discretion and I shall make an order nisi to be made absolute in 28 days’ time that there be no order as to costs.

40.  Thus an order shall be made as set out in paragraph 27 above as follows:

a)  The undertakings at sub paragraph 2, 4 and 7 shall remain in place;

b)  The undertaking at sub paragraph 3 in relation to the rental shall be discharged with effect from August 2019. Any outstanding monies due under the original undertaking shall be excused.

c)  The agreement at sub paragraph 2 in relation to the NL insurance shall be discharged.

d)  The husband is invited to provide the wife and the court with an undertaking within the next 28 days that he shall continue to pay for the elder child, N’s accommodation and living costs in the sum of HK$11,000 per month until she ceases her full time education and that he will also provide for the younger child, A’s accommodation and living expenses in the sum of HK$11,000 per month with effect from September 2020 until she ceases her full time education.

IT IS FURTHER ORDERED THAT:

1)  The Respondent do pay the wife a lump sum of Euro31,663.20 within the next 28 days.

2)  Paragraph 1 of the court order dated the 4 May 2015 shall be varied in that the Respondent shall pay the Petitioner maintenance for herself in the sum of HK$14,700 per month to be backdated to August 2019 until September 2020, whereupon the maintenance order for the Petitioner shall be discharged in its entirety;

3)  Paragraph 1 of the court order dated the 4 May 2015 shall be varied in so far as it relates to the maintenance for the two children of the family in that on the premise that the Respondent provides the undertakings in paragraph d) above, the maintenance order shall be discharged, with effect from September 2017 for A and with effect from September 2020 for A. In the event that the Respondent does not provide that undertaking then the order shall be varied in that the Respondent shall pay the Petitioner HK$11,000 per month for the elder child N from the date of his last direct payment to her until she ceases her full time education. In addition, he shall pay the Petitioner HK$11,000 per month for the younger child from September 2020 until she ceases her full time education.

4)  For the avoidance of doubt order 2 contained in the court order dated the 4 May 2015 that the Respondent do pay the wife a lump sum of HK$1.5 million on or before the 4 May 2018 shall remain in place. It is not possible to vary this order.

5)  All other monies allegedly due to the wife under the terms of the court order dated the 4 May 2015, other than as set out above shall be excused, save for maintenance for the younger daughter during her gap year, which is currently still outstanding.

6)  The wife’s judgment summons and summons seeking leave to enforce the arrears that are over 12 months old shall be adjourned to the 14 July 2020 at 9:30 a.m. for a callover.

7)  Both parties do personally attend that hearing.