MYPC v. CWH

FCMC 8147 / 2014

[2020] HKFC 253

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 8147 OF 2014

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J U D G M E N T
(VARIATION OF MAINTENANCE)

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1.  The parties are former wife and husband.  For easier reference, the petitioner wife will be referred to as the “Mother”, with the respondent husband referred to as the “Father”.

2.  This is the trial of:- (a) the Father’s application for variation downwards of the monthly maintenance payable for the Mother (from HK$23,100 to HK$10,000) and the 2 children of the family (“Children”) (from HK$23,000 to HK$15,000 for each child) ; and (b) the Mother’s application for variation upwards of the monthly maintenance payable for them (to be increased to HK$35,000 for the Mother, and HK$38,000 for each child), together with the application for Attachment Of Income Order. 

Background and salient facts of the case

3.  The Father was born in 1966.  At the time of the trial, he is 53 years old.  He has been working as a civil servant for about 23 years and he is now at a high rank position in the government.

4.  The Mother was born in 1969.  At the time of the trial, she is 51 years old.  She is now a full time housewife.

5.  The parties were married in December 1996.  Two daughters were born in the wedlock in 2003 and 2009 respectively.  At the commencement of the trial, the elder daughter is 16 years old (“Elder Daughter”), studying Year 12 at an international school in Hong Kong and the younger daughter is 10 years old (“Younger Daughter”), studying Year 10 at the same international school in Hong Kong.

6.  In 2013, the property in Discovery Bay (“Discovery Bay Property”) which the parties jointly owned was sold.  

7.  In March 2014, the Mother petitioned for divorce based on one year’s separation with consent.

8.  The parties had reached settlement regarding Children matters and ancillary relief issues after going through mediation.  By consent, it was ordered on 26 August 2014 that joint custody of the Children be granted to the parties, with care and control granted to the Mother with defined access granted to the Father (“2014 Order”). 

9.  Ancillary relief matters were also included in the 2014 Order by way of orders and also by way of undertakings, with the following major terms :-  

(a)     The property in shanghai (“Shanghai Property”) be sold and the net sale proceeds be divided and distributed to the Mother and the Father in the proportion of 60.7% and 39.3% respectively.

(b)     The Father shall pay a lump sum of HK$1 million to the Mother and HK$18,000 as maintenance from his pension when he retires.

(c)     The Mother shall pay a lump sum of HK$300,000 to the Father.

(d)     The Father shall pay for the school fees of the 2 Children in addition to the monthly maintenance.

(e)     The Father shall pay HK$23,100 as the monthly maintenance for the Mother.

(f)     The Father shall pay HK$23,000 as the monthly maintenance for each of the Children, making a total of HK$46,000 per month for the Children.

(g)     Monthly maintenance for the Mother and the Children shall be increased annually in accordance with the same percentage of the annual civil servant pay for civil servant of directorate band announced by the HKSAR government.

10.  In July 2016, the Shanghai Property was sold, with the sale proceeds distributed according to the 2014 Order, with HK$4.56 million to the Mother and HK$3.1 million to the Father.

11.  In September 2016, the Mother bought the property she is now residing at with the Children in Tai Kok Tsui (“HG Property”) at about HK$7.1 million, with downpayment of HK$3.55 million and a mortgage of the remaining amount.

12.  At about the same time, the Father bought the following properties :-    

(a)     In September 2016, he bought 5 apartments in Bangkok.

(b)     In October 2016, he bought a property in Hong Kong (“LG Property”) at about HK$7 million, with downpayment of about HK$1.4 million and mortgage of the remaining amount.

(c)     In March 2017, he bought 2 shops in Zhuhai, namely “Shop 408” and “Shop 522” jointly with his present wife (“Wife”).

(d)     In July 2017, he bought a shop in Foshan, namely “Shop in Foshan” jointly with his Wife. 

13.  In August 2017, the Father got married with his Wife.  A child was born in February 2020.

14.  On 28 March 2018, the Father took out an application for variation downwards the maintenance payable to the Mother and the Children.  He asks for the monthly maintenance to be reduced from HK$23,100 to HK$10,000 for the Mother and to be reduced from HK$23,000 to HK$15,000 for each of the Children (ie. a total of HK$30,000 for 2 Children).

15.  On 22 June 2018, the Mother took out an application for variation upwards the maintenance payable to them.  The Mother asks for the monthly maintenance to be increased to HK$38,000 for the Mother, and to be increased to HK$35,000 for each of the Children (ie. a total of HK$70,000 for 2 Children).

16.  From 1 December 2018, the Father had unilaterally reduced the total maintenance payable for the Mother and the Children from HK$79,910 (as there was increase in the amounts in accordance with the same percentage of the annual civil servant pay) to HK$40,000 without an order from the Court and without the Mother’s consent.

17.  On 7 December 2018, the Mother also applied for attachment of income order.

18.  Apart from the financial disputes between the parties, there were also other disputes and applications made by the parties in relation to Children matters, which had been eventually resolved without resorting to trial.

19.  The parties had tried to settle the outstanding financial matters by mediation conducted in December 2019, but was not successful.  Trial commenced as scheduled. 

Evidence

20.  Both the Mother and the Father give evidence.  No other witnesses were called.  The following documents had been adduced as evidence in chief :-     

(a)     For the Mother, her Form E, 9 affirmations and 2 Answers to Questionnaires.

(b)     For the Father, his Form E, 4 affirmations and 2 Answers to Questionnaires.

The Mother’s case

21.  The Mother is 51 years old at the commencement of the trial.  She graduated from a Bachelor degree and had worked until about 1999.  She had earned a monthly salary of HK$12,000.  According to the Mother, she had brought a property of her own to the marriage.  After getting married and giving birth to the Elder Daughter, when the Father was transferred to work in Geneva, the Father asked the Mother to be an accompanying wife.  The Mother then became a full-time housewife.  The family had lived in Geneva for about 4 years, with the Younger Daughter born there.

22.  During the marriage, the Mother obtained 2 Masters degrees in urban planning and environmental science respectively between 1999 and 2003.  From October 2014 to May 2018, the Mother had worked as a part-time town planner for her friend for around 10 to 12 hours on average for about HK$8,000 to HK$14,000 per month.

23.  The Mother quieted working for her friend since June 2018 and has been a full time housewife since then.  According to her, the reason of quitting the job was because she needed to spend much time in dealing with this case.  She decided to quit her part time job to concentrate to handle the case, attended the Social Welfare Department and Clinical Psychologist investigations and later the attachment of income order application, hearing for discovery and committal applications due to the Father’s default in payments.

24.  The Mother has been living with the 2 Children since divorce and she is the carer of the 2 Children.  They had moved residence for 3 times after the divorce and the Mother then decided to purchase an apartment of around 400 square feet in Tai Kok Tsui (ie. the HG Property).

25.  The Mother is of the view that the Father has sufficient means to pay for the maintenance ordered by the Court.  There have been no financial difficulties at all and if any, they are self-induced by the Father, and the Mother and the Children should not be held responsible for causing the financial difficulties.  The Mother is of the view that there are changes in circumstances which justify the increased maintenance that she asked for.

26.  It is the Mother’s Open Proposal that the monthly maintenance should be increased to HK$38,000 for the Mother and to HK$35,000 for each of the Children, making it HK$70,000 for 2 Children, and a total of HK$108,000 for them all.  In addition, the Mother also asks the Father to continue paying the school fees of the 2 Children, studying at international school.

27.  As the Father had unilaterally reduced the amount of maintenance to HK$40,000 without Court order or consent by the Mother, the Mother is of the view that attachment of income order is appropriate in the circumstances.

The Father’s case

28.  The Father is 53 years old at the commencement of the trial.  He graduated from a Bachelor degree and had later obtained 2 Master degrees.  He has been working in the HKSAR Government for over 23 years and is now at a high rank post in the government, earning a monthly salary of about HK$200,000, including monthly salary and some allowance.  

29.  The Father is of the view that the 2014 Order was entered into by pressure, and there was no fair distribution of matrimonial assets.  It is the Father’s case that he had financial difficulties to pay for the amounts ordered by the Court in the 2014 Order shortly after the 2014 Order was granted, but he still kept paying the amounts as ordered and trying to earn more money through investment in properties.  

30.  According to the Father, he had incurred much loss in investment and debts had been accumulated (including loans from banks and loans from his family), which rendered him unable to continue paying for the maintenance ordered by the Court, and therefore he took out the application to vary downwards the maintenance.  He had also obtained loans from his sister and his mother in order to ease his monthly deficit and indebtedness, and to pass the extended integrity checking conducted on senior civil servants.

31.  The Father is of the view that with his financial circumstances, it is fair for the Court to order a lower sum of maintenance for the Mother and the Children.  The Father believes that the Mother has much financial resources and earning capacity.  She should share some of the family expenses, which justifies the reduction of maintenance for her and the Children.

32.  In relation to the application for decrease of maintenance, it is the Father’s Open Proposal that the monthly maintenance should be further decreased to HK$5,000 for the Mother and HK$15,000 for each of the Children, making it HK$30,000 for 2 Children, and a total of HK$35,000.  The Father is willing to continue paying for the school fees of the 2 Children.  He also suggested variation and discharge of some undertakings in the 2014 Order.  

The legal principles

33.  The Court’s power to grant an order for variation of maintenance is governed by section 11(1) and (7) of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”), which provides that :-

“11. Variation, discharge, etc. of orders for financial provision

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

……

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

34.  According to the above provisions, the Court, in considering such applications for variation, has to consider all the circumstances of the case, including any changes in any matters to which the Court was required to have regard when making the order to which the application relates.

35.  This approach was examined and explained in the Court of Appeal in the case of AEM v VFM [2008] HKFLR 106, paragraph 14-3 to 14-8 :-

“3. The traditional approach to variation was not to re-fix afresh the amount of maintenance but to consider the amount of change in the actual means of the parties so that the new order should merely be increased or decreased roughly in proportion to the change in the means: Foster v. Foster [1964] 3 All ER 541, Jackson’s Matrimonial Finance and Taxation 7th Ed. Ch. 3. 131.

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

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

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

7. An increase in the wealth of the husband was a relevant factor to be taken into account: Primavera v. Primavera [1991] 1 FLR 16 and Cornick v. Cornick (No. 2) [1995] 2 FLR 490.

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.”

36.  In other words, the Court is not required to proceed from the starting point of the original Order but can look at the matter de novo, that is to say, to have regard to the matters pursuant to section 7(1) and (2) of MPPO.

37.  Section 7(1) of MPPO requires the Court to have regard to, in relation to financial orders between the parties, “the conduct of the parties and all the circumstances of the case including the following matters, that is to say ---”

“(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.”

38.  In relation to financial provisions for children, section 7(2) of MPPO provides that the Court should have regard to all the circumstances of the case including the following matters:-

“(a) the financial needs of the child;

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

(c) any physical or mental disability of the child;

(d) the standard of living enjoyed by the family before the breakdown of the marriage;

(e)   the manner in which he was being and in which the parties to the marriage expected him to be educated”

39.  These are the guiding legal principles when I consider the facts of this case.

Issues

40.  The parties have each identified a list of issues in dispute.  Both agree that there are material changes in the circumstances justifying the re-consideration of the Orders made.  It is a matter of what adjustment of the maintenance amount that is in issue.

41.  After consideration of the evidence and submissions from both parties, I am of the view that the following are issues for the Court’s determination, with the areas of issues identified by parties already included :-

(1)     What are the income, earning capacity, property and financial resources (including assets, financial resources and assistance from family) of the parties?

(2)     What are the financial needs, obligations and responsibilities of the parties?  

(3)     Whether there is full and frank disclosure

(4)     What should be the reasonable sums of maintenance to be ordered

(5)     Whether attachment of income order should be made

Analysis of evidence

42.  Before going into each of the issues in dispute, I observe that some of the evidence is not in dispute and I accept the following, which are relevant for my consideration of the issues :- 

(a)     At the commencement of the trial, the Mother and the Father are 51 and 53 years old respectively.  The parties were married in 1996 and the Mother petitioned for divorce in 2014.  This is a marriage of about 18 years.  Two daughters were born in the wedlock in 2003 and 2009 respectively.

(b)     Both the Mother and the Father are well educated.  Each of them has obtained 2 Master degrees.  The Mother had acted in person before and after the PTR and trial of the present applications.  The Father acted in person for the preparation of these applications.  With the documents submitted by the parties when acting in person, there is no doubt about their language and intellectual ability.  I accept that both are highly intellectual persons.

(c)     The standard of living of the family during marriage is not in dispute.  In view of the evidence from the parties, including the size of the former matrimonial home of about 600 to 700 square feet usable size, the parties having their own property in Hong Kong, domestic helper had been hired, travelling overseas for holidays, having a family car for a period of time during the marriage and the Children studying at international school, I accept that the family enjoyed a reasonably comfortable living standard as a middle class family.  

(d)     At the time the 2014 Order was granted, both were represented by their respective solicitors.  The 2014 Order was made pursuant to a joint application filed by the parties’ solicitors.

(e)     The nature of work of the Husband and his income is not in dispute.  The Husband has always been the breadwinner of the family, supporting the family financially. 

(f)     The Mother has always been the carer of the Children.  Even if there were allegations made by the Father in relation to Children matters, it is not in dispute that the Mother took care of the Children well.  The Elder Daughter has been doing very well academically.  Apart from taking care of the Children, the Mother had worked from October 2014 to May 2018, and had earned income.

43.  Before going into each of the issues in dispute as identified above, I will also consider the 2014 Order (details referred to paragraph 9 above) as one of the relevant considerations.

44.  It is the Father’s case that the 2014 Order was entered into by pressure and at a time when he was not well psychologically.  According to the Father, the amount ordered in the 2014 Order by consent is not affordable.  The Father is also of the view that the 2014 Order was not fair, as the Mother got more than half of the matrimonial assets.  I have considered parties’ submissions and especially the Father’s views and submissions in relation to the 2014 Order.

45.  I have considered the entirety of the 2014 Order.  I observe the following (with more analysis in subsequent paragraphs) :-

(a)     The 2014 Order was ordered based on the consent summons filed by the parties’ solicitors, with both parties with separate legal representatives (referring to paragraph A of the preamble of the 2014 Order).

(b)     The 2014 Order is a full and final settlement of the parties’ claim against each other, and it was agreed by the parties based on the mediation conducted prior to agreement (referring to paragraph B of the preamble of the 2014 Order).

(c)     The parties have acknowledged that they are aware of their respective legal rights as to disclosures and discovery of their respective financial positions and their rights under the Matrimonial Proceedings and Property Ordinance and they have entered into the settlement free from any duress, menace, fraud or undue influence.  They have each received independent legal advice as to the terms and effects of the agreement (referring to paragraph C of the preamble of the 2014 Order).

 (1) Income, earning capacity, property and financial resources

(a) Income, earning capacity, property and financial resources of the Mother

46.  Background of the Mother has been summarised in paragraphs 21 to 27 above.

47.  The Mother owns one property in her own name, ie. the HG Property.  According to her Form E, the HG Property is estimated to be about HK$8.4 million in market value, with about HK$3.25 million in outstanding mortgage.  As at the date of the Form E, the Mother had savings in the bank of a total sum of HK$1,890,267, stock in the total sum of HK$1,922,730, some insurance policies and valuable personal item of about HK$60,000 in value.

48.  There is liability of credit card balance of about HK$45,000.

49.  The Mother had been working part-time from October 2014 to May 2018.  The monthly maintenance from the Father is also her financial resources.  According to the Mother, since about 1 December 2018, the Father had unilaterally reduced the monthly maintenance to HK$40,000 per month in total and the Mother has been using her own savings to make up the difference in monthly expenses.

50.  In relation to the Mother’s financial circumstances, her income and earning capacity are disputed by the Father.  In relation to financial resources, the Father is of the view that if the financial resources from his family are to be considered, those from the Mother should also be considered.  Financial resources will be considered later in paragraphs 76 to 85 below. 

51.  In relation to income and earning capacity of the Mother, it is the Father’s case that the Mother did not disclose fully her income.  I will consider whether there is full and frank disclosure in subsequent paragraphs.

52.  The Father is of the view that the Mother earns much and has much earning capacity. As stated in the Father’s closing submissions, he is of the view that the Mother can earn income in the total sum of about HK$42,000 per month, including:- (a) monthly salary from employment; and (b) income from buying and selling of stock.  I will consider these 2 aspects of income and earning capacity of the Mother in turn.

53.  In relation to the Mother’s income from employment, the Father is of the view that with the Mother’s educational qualification, she could earn much as a town planner or she can find a job in the social work field.  The Father is of the view that the Mother’s case of having worked for her friend is an example showing the Mother could earn much with her professional qualification. 

54.  The Mother disagreed to the Father’s allegation.  The gist of her case is that she only helped her friend in doing the town planning work.  She is not qualified to sign on contracts as a town planner and she only offered administrative works, not professional work in the company.  She also explained the difficulties of finding work in the social work field, given her lack of work experience in that area since her graduation many years ago.

55.  I have considered the Father’s cross-examination and the Mother’s explanation, and also all the evidence and supporting documents.  I accept that, with the care and control of the Children granted to the Mother, she needs to spend much time in taking care of the Children.  Even with the help of a maid, I accept that it is justified for the Mother to work part-time, so that much time can be spent on taking care of the 2 Children, at least for some time after divorce when the Children were still much younger.

56.  I am of the view that the Father’s suggestion that the Mother could earn a salary of at least HK$30,000 per month is not substantiated with the evidence, given the Mother’s circumstances.

57.  However, as correctly pointed out by the Husband, there is no MPF in support to her case of the income received.  I also have reservation as suggested by the Father as to the nature of work, whether involving professional work akin to a town planner or just administrative work.  The Mother explained that as she was asked by her friend whom she has known for many years to assist in his company, the Mother did not ask much about the formalities and therefore no MPF had been reported.

58.  With the background of the Mother, being a housewife for many years and then later gave birth to 2 Children, when she resumes working in the labour market, I accept that she could resume working part-time, as she did between 2014 and 2018, and then gradually resuming working full time.  Given the Mother’s age and experience, I am of the view that she could earn about the same salary of about HK$16,000 in average per month as she worked part-time before, and then gradually earning more than that to at least about HK$16,000 to HK$20,000 per month as stable income when she works full time. 

59.  In relation to the Father’s allegations that the Mother earns much each month from the buying and selling of stock, the Father had produced a table summarised by him some of the financial documents and statements of the Wife, showing that over a period of 1 year, the securities transaction volume amounted to HK$14,142,954 (ie. the average monthly transaction volume exceeded HK$1,178,500) of a total of 82 securities transactions in total.  The Father calculates that the investment income estimated to be about HK$65,798 per month. 

60.  The Mother disagreed with the Father’s allegations.  She explained that she is not a professional in investing in stock and she mainly buys blue chip stocks.  With the economy doing well, the value of the stocks she bought increases much, but that does not guarantee the Mother could earn a regular income from stock transactions.

61.  I have considered parties’ submissions and evidence carefully. As pointed out by Mr. Cheng, acting for the Mother, the securities transaction volume amounted to HK$14,142,954 includes both the amounts of buying and selling of shares over 1 year.  The Court should consider also the total securities transactions of 82 times in a year, which means less than 7 times per month.  Considering the frequency of stock transactions, I am not convinced that the Mother is a professional earning a living from the buying and selling of stock for regular income as the Father alleges.

62.  However, with the amount of stock the Mother has, which are mainly blue chips stocks, as shown in a table produced by the Mother of the stocks she has, and with the bank statements produced, I accept that when the economy flourishes, she can earn much from the increase in stock value, but there is no guarantee of how the market is doing.  With the evidence before me, the Mother does make some profit from investment in stocks, and she could be expected to earn some dividends, as stated by her in the Form E, HK$3,900 per month in average.  At the same time, I have not lost sight of the fact that investment involves risks and it is not a regular income that the Mother can rely on, unlike stable monthly salary.

63.  In the Mother’s Form E, she also stated in 3.6 therein that she earns interest from her saving in the sum of HK$2,600 per month in average.  But it should be noted that if the Mother has to use her saving or sell some stocks in making up the shortfall of maintenance, less amount will be available to earn interests or dividends.

(b) Income, earning capacity, property and financial resources of the Father

64.  Background of the Father has been summarised in paragraphs 28 to 32 above.

65.  According to the Father’s Form E, he owns the following properties :-

(a)     LG Property, which is in the Father’s sole name, bought on 15 October 2016, with estimated value of HK$7,100,000 and outstanding mortgage of HK$5,479,442 (HK$4,105,442 + HK$1,374,000).  Under cross-examination, the Father agrees that the current value is about HK$9.4 million.

(b)     5 properties in Bangkok, bought on 15 October 2016, in the Father’s sole name.  Until June 2017, he had paid a total of about THB 1,771,675 (ie. about HK$439,000).

(c)     2 shops in Zhuhai, ie. Shop 408 and Shop 522, bought on 22 March 2017 with RMB274,280 for Shop 408 and RMB 835,444 for Shop 522, which are jointly owned by the Father and his Wife.

(d)     The Shop in Foshan, bought on 27 Jul 2017 with RMB1,172,304 with full payment, which is jointly owned by the Father and his wife.  The estimated value is the same as the purchase price.

66.  According to the Father, not all the above properties are his financial resources, as some of the properties had been forfeited, which will be further considered in subsequent paragraphs.

67.  According to the Father’s Form E, he has some insurance policies, valuable personal items about HK$18,000, pension of lump sum in the estimated value of HK$1,174,274 and monthly pension of HK$62,108.  He has several bank accounts, with bank statements produced.  It is the Father’s case that he hardly has any savings in bank, as he has liabilities of about HK$2,181,835 (HSBC personal loan of HK$883,335 and Citibank personal loan of HK$1,298,500), and also some credit card debit balance.  

68.  The Father agrees that at the time of his retirement, he could get a pension of about HK$1.6 million if he chooses to get lump sum of 10%, but he can get about HK$7.3 million, if he chooses to get lump sum of 50%.

69.  According to the Father’s case, apart from the 2 bank loans, he has also borrowed from his mother for about HK$2.5 million and from his sister for about HK$1 million.

70.  Income and earning capacity of the Father is not in dispute, as he works at the government and receives stable monthly salary.  He now earns a monthly salary of about HK$200,000, including some allowance.  According to his Form E, in additional to his monthly income of HK$178,851, he also receives education allowance of HK$6,436 and passage allowance of HK$5,395.  He also gets income from approved work, being a marker for examination, earning an average of HK$2,000 per month.  When giving evidence, the Father confirms that his monthly salary has increased to HK$187,150, with allowance in the total sum of HK$12,966 per month in average.

71.  In relation to the Father’s earning capacity, it is the Father’s case that he has much pressure and had to seek professional help psychologically since about the time of the divorce, which is caused by the Mother, which was still continuing to the time of the 2014 Order.  The Father further alleges that he still has much pressure now, which may affect his career, or even the security of his job. 

72.  I have considered the Father’s evidence and the supporting documents produced.  This aspect is also related to my consideration of whether there is any physical or mental disability of either parties to the marriage, as stated in section 7(1)(e) of MPPO. 

73.  After consideration of the Father’s evidence and supporting documents, I accept that the Father had encountered difficulties and emotional distress or even some psychological problems at about the time of the divorce, and there are supporting documents of the Father having consulted professionals in these areas.  I have considered the recent referral letter from a government hospital dated 23 October 2019 referring the Father to psychiatry for follow up.  It is Father’s case that he had consulted private psychiatrist previously a few years ago for depression and now as he is running out of money, he has to consult government hospital.

74.  It is not an issue for me to rule whether or not the Mother was the cause of the alleged problems and pressure of the Father.  It is understandable that parties may encounter problems and disturbance emotionally and even psychologically in divorce, which may somehow affect one’s emotion and concentration in work etc.

75.  But I have to point that that there is no evidence that such issues affect the Father’s work and income.  The Father has always been working, and is now at a high rank position, earning a monthly salary of about HK$200,000, including some allowance.  He has got married and has his own family.  I do not accept there is any physical or mental disability of the Father affecting his intellectual ability, his work, his income or earning capacity.  With the evidence before the Court, I do not accept that the Father’s income and earning capacity is or has actually been affected.

(c) Financial resources of the parties  

76.  According to the Mother, the Father has much financial resources and assistance from his family, including his Wife, loan from his sister, loans from his mother from the estate of his deceased father and also the future estate from his mother.

77.  In relation to the Father’s Wife, she has a property in Hong Kong, which is rented out, and had a property in Japan.  She used to work in the IT field and earned a salary of about HK$40,000 per month.  However, because of stress and dispute in work, she quitted her job in December 2018 and started a business but so far no revenues have been generated.  According to the Father, his wife had sold the property in Japan and had re-mortgaged her property in Hong Kong to contribute to the present family.

78.  I have to make it clear that the Father’s present Wife is not expected to pay for any maintenance for the Father to his previous wife and Children, but it is acceptable and expected that if the Father’s present Wife has income, earning capacity and financial resources, she can share some of the family expenses.  

79.  Another aspect that the Wife plays a role is in relation to the Father’s properties buying.  As it is the Father’s case that some properties were bought with his present Wife jointly  (refer to paragraph 12(c) and (d) above) and she also contributes to the purchase price, I accept that the Wife is one of the financial resources of the Father.

80.  In relation to the loan from his sister of HK$1 million in March 2019, it is the Father’s case that his sister helped him out in times of his financial difficulties, but he has to make repayments to his sister. 

81.  In relation to the total amount of about HK$2.5 million received from his mother, it is the Father’s case that these are loans from his mother from the estate of his deceased father with details, as follows :-

(a)     HK$580,000 on 7 July 2017;

(b)     HK$880,000 on 13 July 2017;

(c)     HK$34,500 on 9 October 2017;

(d)     HK$1 million on 1 December 2017

82.  In addition, the Father received HK$200,000 on 7 July 2017 as wedding gifts from his mother.  With the evidence and documents in this case, I am of the view that the amounts from his sister and mother, especially those from his mother, are soft loans and can be viewed as the Father’s financial resources.  They may not need to be repaid or repayment could be made with very flexible terms or may be arranged or set off with any future estate to be obtained from his mother.

83.  Further, it should be noted that the Father’s father had passed away and there was no will.  There are a total of 3 siblings, including the Father.  It is the Mother’s case that the amount the Father got from his Mother was in fact his share of the estate from his deceased father.

84.  In relation to the future estate from the Father’s mother, the Father is of the view that it is uncertain, as his mother is still alive and there is a possibility that she may not leave him anything.  The Father submitted that if this is to be included to be considered, then the Mother’s future estate from her parents should also be considered as the Mother’s financial resources.

85.  My view is that I understand there is uncertainty of the possible estate to be received, but I have to consider whether there maybe future financial resources of the parties.  There is the possibility for both the Father and the Mother getting financial assistance from the estate from their parent.  But it should be noted that there are no further details or evidence suggested for the Mother’s side as to the potential estate she may get, but for the Father’s side, there is evidence before me that the Father’s mother is now holding the whole of the property in Lei Yu Mun in her sole name, with no mortgage, with the agreed valuation of about HK$12,680,000, and she had provided large sums of money for the Father in 2017 to ease his financial constraint and to give him HK$200,000 as wedding gift when he got married again in 2017.

(2) Financial needs, obligations and responsibilities of the parties

(a) Financial needs, obligations and responsibilities of the Mother

86.  The Mother is now residing with her 2 Children at her self-owned property.  The financial needs of the Mother and the 2 Children are stated in the Form E, with some updates in her evidence in Court.  At the time the Form E was filed, a maid was also living with the family.

87.  Under cross-examination, the Mother explains that there are emotion problems of the Children, and even with some depression symptoms, possibly arising from the impact of the parties’ divorce.  But I notice that there is no physical or mental disability of the Children that would affect the financial needs, obligations and responsibilities of the Mother.

88.  It is the Mother’s case that the total monthly expenses are HK$117,870 (with household expenses of HK$45,100 + personal expenses of HK$22,210 + children expenses of HK$50,560), with breakdown as follows :-

     General expenses

Item	Amount
Mortgage instalments	21,300
Utilities	3,100
Management fees	2,400
Food	7,200
Household expenses	2,500
Insurance premia	4,370
Domestic helper	4,230
Total	44,997

     Personal expenses

Item	Amount
Meals out of home	4,700
Transport	560
Clothing / shoes	2,000
Personal grooming	2,000
Entertainment / presents	3,400
Holiday	5,300
Medical / dental	1,700
Others (including books, learning fee and monthly donations to charity of 1,100)	2,550
Total	25,210

     Children expenses

Item	Amount
School fees (paid by the Father partially from the civil servant account)	-
Extra tuition fees	7,800
School books and stationery and computer	1,800
Transportation to school	1,780
Medical / spectacles	400
Extra-curricular activities	9,700
Entertainment / presents	3,400
Holidays	11,200
Clothing	1,600
Lunches and pocket money	2,600
Other transport	620
Uniform	300
Others (including :- (a) summer holiday learning programmes (b) school camps and overseas study trip (c) dining out	1,660 1,300 6,400
Total	50,800

89.  In relation to the Mother’s expenses, the Father agrees to the following :-

(a)     Under general expenses, management fees of HK$2,400, food of HK$7,200, household expenses of HK$2,500, insurance premia of HK$4,370 and domestic helper of HK$5,200 if the Mother needs to employ a full time maid so that the Mother can work full time.

(b)     Under personal expenses, agree clothing / shoes of 2,000, personal grooming of HK$2,000 and medical / dental of HK$1,700.

(c)     Under Children expenses, agree extra tuition fees of HK$7,800, school books and stationery and computer of HK$1,800, transportation to school of HK$1,780, medical / spectacles of HK$400, clothing of HK$1,600, lunches and pocket money of HK$2,600, other transport of HK$600 and uniform of HK$300.

90.  Before I go through the disputed items in turn, I have to make it clear that for the consideration of reasonable expenses, I have to consider what is reasonable in the circumstances, with the background of the case and the standard of living of the parties.  It is not the case that all the expenses with documentary proof will be allowed automatically.  Having spent the amounts with proof as shown in the bank statements does not mean the items and amounts have been proved to be reasonable and should be allowed.  Equally, it is not the case that those expenses without documentary proof will not be allowed.  The Court has to consider whether the items and amounts are reasonable in the circumstances, with documentary proof useful for the court’s consideration and reference.

91.  Under general expenses, the Father disagrees with the items of mortgage and utilities.

92.  For mortgage, it is not in dispute that the amount of monthly mortgage is HK$21,300.  The Husband disputes the inclusion of mortgage in the monthly expenses.  He is of the view that in the 2014 Order, the Wife had already obtained much ancillary relief, which should be sufficient to cover for the accommodation needs of her and the Children to buy a property to live in. 

93.  I disagree that the mortgage expenses should not be considered at all.  I am of the view that accommodation needs are important financial needs which should be considered.  But at the same time, I notice that when the Mother purchased the HG Property in September 2016, the monthly mortgage was only HK$11,710, which was later increased to the present amount of HK$21,300 with the arrangement of another mortgage plan with shorter number of years of mortgage repayment.  The Mother explained the reason that she got re-arrangement of the finance and the number of years of repayments could be reduced.  I am of the view that it is the Mother’s choice to have rearrangement of the mortgage plan.  In the consideration of the application of variation of maintenance, I do not think it is fair to considered the increased amount.  I am of the view that mortgage expense of HK$11,710 for accommodation is reasonable.

94.  About utilities, the Mother asks for HK$3,100.  The Father is of the view that it is too high and the reasonable sum should be HK$2,000, the same amount for his family which the Mother agrees to be reasonable.  Having considered the evidence, I am of the view that utilities of HK$3,000 is reasonable with the maid also living in the family. 

95.  About the maid expenses, the Mother only asks for HK$4,320 now, which is the amount for part-time maid (HK$130 per hr x 3 hrs x 4 weeks), as she no longer employ the live in maid.  The Father agrees to HK$5,200 being expenses for a live in maid, and that the Mother could work full time, earning a salary.  It is the Mother’s case that if she is allowed to continue taking care of the Children full time, she only needs a part-time maid and to cut half of the expenses for the maid to HK$2,160 (HK$4,320 / 2).  I agree that if the Mother is to work full time, the maid expenses be HK$5,200, while if the Mother remains a full time housewife, I am of the view that maid expenses of HK$2,160 should be allowed.

96.  Under personal expenses of the Mother, the Father disputes meals out of home, transport, entertainment / presents, holiday and others.  For meals out of home, the Mother asks for HK$4,700, with breakdown as follows :-

(a)     HK$3,200 with Children (HK$200 x 4 times a week x 4 weeks)

(b)     HK$600 with family (HK$300 x 2 times with family)

(c)     HK$900 with friends (HK$300 x 3 times)

97.  The Father disagrees and proposes the amount of HK$2,500.  Having considered the background of the case and the standard of living, I am of the view that HK$2,500 is reasonable. 

98.  For transport, the Father suggests HK$540, which the Mother agrees.

99.  For entertainment / presents, the Mother asks for HK$3,400 and she explains that includes Disney annual pass with the Children, movies, shows, outdoor activities with Children and Chinese New Year red packets expenditure and mobile phone expenses.  The Father disagrees and proposes of HK$2,400.  After hearing evidence and having considered the background of the case, and all the relevant circumstances, I am of the view that HK$2,500 is reasonable.

100.  For holiday, the Mother asks for HK$5,300 for overseas trips with the Children. The Father disagrees and he proposes HK$1,700 per month.  I have considered the Mother’s evidence explaining the need to travel overseas which the family has always used to and the benefit to the Children, and also the compromise she had already made in choosing budgeted airlines or “red-eye flights” of odd flight time with discounted price.  However, I have to consider the evidence as a whole and the background of the case.  With all the relevant circumstances considered, I am of the view that the sum of HK$3,000 is reasonable.

101.  For others under personal expenses, the Mother asks for HK$2,550.  She explains that includes buying books of HK$350, learning oil painting or dance of HK$1,000 and also monthly donations to charity of HK$1,100.  The Father disagrees and opposes especially to the donation to charity, and he proposes HK$500.  I agree with the Father that donation to charity should not be considered in the maintenance hearing.  I allow HK$500 as reasonable under this head after considering all the circumstances of the case and the Mother has agreed the Father’s expenses of HK$500 under the head.

102.  It is the Mother’s evidence that if she works full time, she will need HK$2,000 more for each of the items of meals out of home, transport, clothing / shoes and personal grooming, making it a total of HK$8,000 more.  I agree that Mother will need to spend more if she works full time.  However, I am of the view that the amounts of clothing / shoes of HK$2,000 and personal grooming of HK$2,000 as agreed by the Father is very generous.  I am of the view that a total of HK$4,000 extra for these 4 items is reasonable if the Mother works full time.

103.  Under Children expenses, the Father disputes extra-curricular activities, entertainment / presents, holiday and others.  For extra-curricular activities, the Mother asks a total sum of HK$9,700 (HK$3,000 for the Elder Daughter and HK$6,700 for the Younger Daughter).  She explains these expenses include Disneyland annual pass, movies, museum visit and frequent beach, hiking and cycling activities, Art Festival shows and others.  The Mother further explains that HK$3,000 for the Elder Daughter comprises of HK$1,000 for violin / music and HK$2,000 for other activities, while HK$6,700 for the Younger Daughter comprises of HK$1,300 for art class, HK$800 for swim class, HK$2,600 for piano class and HK$2,000 for other activities.

104.  The Father disagrees and proposes HK$2,000 for the Elder Daughter and HK$3,800 for the Younger Daughter.  I accept that the Mother loves the Children very much and would like to provide the best she possibly can for her Children, but there is no hard and fast rule as to how many activities or classes to join.  It may not be the case of the more the better, and at the same time, the Court has to consider the background of the parties in consideration of the reasonable expenses under this head.  Having considered the evidence and all the circumstances, I am of the view that HK$2,000 for the Elder Daughter and HK$3,800 for the Younger Daughter are reasonable sums, making it a total of HK$5,800 under this head.

105.  For entertainment / presents, the Mother claims HK$3,400 (HK$1,800 for the Elder Daughter + HK$1,600 for the Younger Daughter).  The Mother explains that the expenses include :-

(a)     books of HK$200;

(b)     movie of HK$200;

(c)     music subscription of HK$60;

(d)     monthly children reading material subscription of HK$200;

(e)     toys of HK$100;

(f)     mobile phone and connection;

(g)     camp equipment;

(h)     drawing tools and device;

(i)     birthday (HK$2,000 for Elder Daughter and HK$500 for Younger Daughter)

(j)     Christmas gifts (HK$500 each);

(k)     birthday gifts to friends and classmates (HK$200 each)

106.  The Father disagrees and he proposes HK$1,200 for each of the Children.  Adopting the same reasoning as in paragraph 104 above, I am of the view that HK$1,200 for each daughter, making it a total of HK$2,400 under this head, is reasonable.

107.  For holiday, the Mother asks for HK$11,200 for the Children.  The Father disagrees and proposes HK$2,650 for the Elder Daughter and HK$2,238 for the Younger Daughter.  I notice that the Father’s allowance includes travel allowance for the Children of HK$39,640 per every two-year cycle, making it HK$1,651 per month in average.

108.  I am of the view that the sums proposed by the Father under this head are reasonable, and I will round up to HK$2,500 for each child, making it a total of HK$5,000 under this head. 

109.  I am shocked to learn from the parties’ evidence that the travel allowance for the Children had not been claimed and the Mother is asking for the Father to give HK$11,200 per month for holiday expenses.  It is not in dispute that there is travel allowance for each of the Children.  The Father explains that the Mother did not give him the receipts for him to claim.  The Mother explains that she had not done so.  I urge parties to do so in future, which both parties had agreed.

110.  For other expenses, the Mother asks for HK$9,360, which includes :-

(a)     HK$1,660 (which is to be shared equally between the Children) for summer holiday learning programmes of HK$5,000 each, with Chinese and science/coding lessons, which are divided into 12 months

(b)     HK$1,300 (in which HK$11,100 for the Elder Daughter and HK$4,500 for the Younger Daughter) for school camps and overseas study trip, divided into 12 months

(c)     HK$6,400 (which is to be shared equally between the Children) for dining out (HK$200 per meal x 4 times x 4 weeks)

111.  The Father disagrees and proposes HK$5,000.  He is of the view that the Children could utilise the time during summer holiday to do voluntary service to broaden the exposure, instead of participating costly camps and holiday learning programmes.  The Mother explains that the participation of those activities are very minimum and some are arranged by the school. 

112.  I agree that expenses for summer programmes and summer camps are reasonable.  In view of the expenses for dining out, I am of the view that spending HK$3,200 for each daughter on dining out each month is excessive in the circumstances. I agree that HK$5,000 in total under this head is reasonable.

113.  By adding up my ruling of the reasonable amounts under each head in dispute and the items agreed by the Father, the total monthly expenses are HK$90,220 (HK$36,380 for general expenses + HK$18,740 for personal expenses + HK$35,100 for Children expenses).  But I have to point out that some of the items agreed by the Husband is very generous indeed.

(b) Financial needs, obligations and responsibilities of the Father

114.  The Father is now residing with his Wife at a rented place in the same estate as the LG Property that the Father bought in October 2016, with a maid helping and their baby born in February 2020.  According to the Father, his Wife used to work in the IT field, earning a monthly salary of about HK$40,000.  His Wife stopped working in about end of 2018.  At the time of this trial, she is pregnant and is expected to give birth to a baby in February 2020.  She used to own 2 properties, one in Hong Kong and one in Japan, which the one in Japan was subsequently sold.  She also used to own 2 cars, one of which had been sold. 

115.  According to the Father, his Wife had contributed to some of the family expenses, but now she had quitted her job and has a baby to take care of.

116.  The financial needs of the Father and his family are stated in the Form E, with some updates in his evidence in Court.  It is the Father’s case that the total monthly expenses are HK$187,602 (with household expenses of HK$76,163 + personal expenses of HK$90,219 + children expenses of HK$23,220), with breakdown as follows :- 

     General expenses

Item	Amount
Rent	24,000
Mortgage instalments	24,193
Utilities	2,000
Management fees	1,700
Food	7,200
Household expenses	2,500
Car expenses	5,000
Insurance premia	4,370
Domestic helper	5,200
Total	76,163

     Personal expenses

Item	Amount
Meals out of home	5,000
Transport	200
Clothing / shoes	1,000
Personal grooming	1,000
Entertainment / presents	2,400
Holiday	1,000
Medical / dental	2,000
Tax	26,952
Insurance premia	1,000
Others (eg. Professional books)	500
Repayment of loans	47,167
Total	88,219

     Children expenses

Item	Amount
School fees	15,000
School books and stationery and computer	1,000
Transportation to school	-
Medical / dental	200
Extra curricular activities	3,800
Entertainment / presents	1,000
Holidays	1,000
Clothing / shoes	800
Other transport	420
Total	23,220

117.  In relation to the Father’s expenses, the Mother agrees to the following :-

(a)     Under general expenses, rent of HK$24,000, utilities of HK$2,000 and domestic helper of HK$5,200.

(b)     Under personal expenses, transport of HK$200, closing / shoes of HK$1,000, personal grooming of HK$1,000, entertainment / presents of HK$2,400, holiday of HK$1,000, tax of HK$26,952, insurance premia of HK$1,000 and others (eg. professional books) of HK$500.

118.  I will now rule on the disputed items in turn.  Under general expenses, the Mother disputes mortgage instalment payments, management fees, food, household expenses, car expenses and insurance premia.

119.  For mortgage instalment payments of HK$24,193 and management fees of HK$1,700, the Mother disagrees as she is of the view that if LG Property is sold, there is no need to pay for these expenses.  The Father strongly objects to the Mother’s view, as he is of the view that it is unfair for the Mother to have her own property of HG Property, but the Father is forced to sell his LG Property. 

120.  I will consider about the properties the Father had bought and whether or not he should sell those properties in subsequent paragraphs.  When considering the financial needs of the Father, I accept that at the moment, the Father is paying those mortgage instalments and management fees, but at the same time, when I consider the accommodation needs of the Father, he either spends money in renting a place to live, or live in his own property.  I agree that HK$24,000 be considered as reasonable rental expenses to satisfy the accommodation needs of the Father and his new family, and therefore the expenses for mortgage instalments and management fees are not included here.

121.  For food of HK$7,200, the Mother disagrees and proposes HK$5000 for the Father’s family, while the Mother asks for the sum of HK$7,200 for her family (with 4 persons including the maid), and the Father agrees.  I am of the view that HK$7,200 is on the high side.  Taking into account the number of persons in the family (a total of 3 persons including the maid), I am of the view that HK$6,000 is reasonable. 

122.  For household expenses of HK$2,500, the Mother disagrees and proposes HK$1,600, while she asks for the sum of HK$2,500 for her family, which the Father agrees.  With the number of persons living in the household considered, I am of the view that HK$2,000 is reasonable.

123.  For car expenses of HK$5,000, the Mother is of the view that this item should be deleted.  During marriage, there were some period of time the family had owned a car, or rent a car for use during holiday.  After divorce, there is no car expenses for the Mother’s expenses.  The Father confirms that the car he is now driving is under the name of his Wife, and the previous car sold was also under his Wife’s name, brought by her.  I am of the view that in the circumstances of this case, I do not include HK$5,000 car expenses as reasonable under the Father’s expenses, but adjustments will be made in the transportation expenses of the Father under personal expenses.

124.  For insurance premia of HK$4,370, the Mother disagrees and proposes HK$1,500.  Considering the background and circumstances of the case, I accept that HK$1,500 is reasonable. 

125.  Under personal expenses, the Mother disputes meals out of home, medical / dental and repayment of loans.  For meals out of home of HK$5,000, the Mother proposes HK$4,000 for the Father, while she asks for HK$4,700 for herself.  Having considered the fact that the Father works full time, I am of the view that HK$5,000 per month is reasonable.

126.  For medical / dental of HK$2,000, the Mother disagrees and proposes HK$500.  I notice that the Father is a civil servant and he gets medical provision from public service, but I accept that some medical / dental services may not be covered. I am of the view that HK$1,000 per month is reasonable. 

127.  For repayment of loans of HK$47,167, the Mother disagrees as she is of the view that if LG Property is sold, the Father will have resources to fully repay these outstanding loans. 

128.  I will not include this sum of HK$47,167 in my consideration of the financial needs of the Father as these are not incurred from his daily life.  These loans, according to the Father, had been incurred from the loss in investment and also accumulated from the deficit in means meeting ends after divorce, which the Father has the burden to prove, not only asserting that the 2014 Order is unfair and he was under pressure when reaching the agreement.

129.  As I have disallowed the expenses for car expenses, I will adjust the amount of travelling.  I am of the view a sum of HK$2,500 per month is reasonable.

130.  Under Children expenses of school fees for the Children of HK$15,000, the Father explains that apart from getting education allowance for his Children from his employer, he needs to pay HK$15,000 extra per month.  The Mother disagrees. She explains that the school fees are only paid for 10 months and therefore the average is HK$12,500.  In view of the documents for school fees provided, I accept the Mother’s view and rule HK$12,500 as the reasonable sum.

131.  For all other expenses, the Mother disagrees as they are expenses for the unborn child and not yet incurred at the time when the Father filled out the Form E. I can understand the Mother’s view.  However, it is practical to consider these expenses, if not as expenses already incurred, these are expenses reasonably expected to be incurred.  It is common sense that with the new born baby, additional expenses will be incurred.  I will consider that as the estimated amount of financial needs.  With the background and circumstances of this case, I am of the view that with the new born baby, it is reasonable to expect additional expenses of HK$5,000 per month in total. 

132.  It is Mother’s case that with her calculation of the reasonable expenses suggested by her, the Father is able to pay the maintenance in the sum the Mother requests and to support his new family at the same time, which I do not agree.

133.  By adding up my ruling of the reasonable amounts under each head in dispute and the items agreed by the Mother, the total monthly expenses of the Father are HK$100,732 (HK$40,700 for general expenses + HK$42,352 for personal expenses + HK$17,500 for Children expenses).  But I have to point out that it is the Father’s case that his Wife has always assisted in paying some of the expenses for their family, and I have ruled that his Wife is one of the financial resources of the Father.  I accept that the Wife will share some of the general expenses of the family and expenses for their new born baby.

(3) Whether there is full and frank disclosure   

134.  There is allegation from both the Mother and the Father that the other side had not made full and frank disclosure, and they attack each other’s credibility. 

135.  After hearing the evidence, I do not form the view that either the Mother or the Father had been dishonest or intentionally misleading the Court.  However, I observe that both parties are highly intellectual persons, capable of emphasizing skillfully their strong points, and sometimes even either intentionally or subconsciously exaggerating their own difficulties.  I do have reservation in the accuracy of some of the aspects of their evidence, of whether they have disclosing the full picture of their finance fully and frankly, and how much weight I should put on their evidence.

(a)      Evidence of the Mother

136.  It is the Father’s case that the Mother had not disclosed any tax return or MPF information, and she has failed to explain the increase in her bank savings despite it is her case that there is deficit every month.  I share the same concern as to whether the Mother had exaggerated the expenses, justifying the application for variation upwards the maintenance amount. 

137.  In relation to the lack of MPF and tax returns, the Mother explained that as she was helping an old friend whom she has known for many years, and she did not follow up on whether her friend’s company had treated her as an employee and MPF should be arranged.  The Mother further explained that after deducting the single parent allowance, she does not have to pay rent at all and thus there is no tax return to be disclosed.

138.  I have reservation of the Mother’s version of the nature of work she is doing.  The company she had worked for is a company doing town planning work.  Although the Mother’s evidence is that she only helps with the administrative work, she agrees that she has also been assigned to attend important meetings as well.  I have reservation as to the Mother’s involvement in work in the company and the amount of salary she had received.  As there is no MPF or documents of salary proof, I have reservation of the Mother’s evidence in this respect. 

139.  I also have reservation as to the Mother’s stance about her earning capacity.  It is understandable that the Mother may wish to continue being a full-time housewife, which would be best for the Children.  However, in view of the evidence of the case, with the educational background of the Mother and her high intellectual ability, I am of the view that the Mother has much earning capacity as I have considered and ruled in the above paragraphs.  I do not go as far as saying that the Mother has not disclosed fully and frankly, but I do have reservation as to her evidence to support not working and the level of income she may earn. I accept that the Mother can and should work full time.

(b)      Evidence of the Father

140.  It is the Mother’s case that the Father had not disclosed fully and frankly his financial circumstances, mainly in the following aspects :- 

(a)     About documents about the mainland shops, to show whether his Wife had been paying some money, whether one of the shops had been forfeited and the sale and purchase agreement to reflect the true value

(b)     To show the whereabouts of the HK$3 million which had been in the Father’s account

(c)     To show that the Thailand properties are no longer under the Husband’s name and that most of the amounts paid had been forfeited

141.  The Father had made explanation in the Answer and also when being cross-examined.  I notice that the Father has been asked to disclose the relevant documents of the properties he owns in the Questionnaire.  It is alarming to know that the Father had been purchasing 5 properties in Bangkok in a day, and the LG Property and the properties in the mainland within a short period of time.  It is not in dispute that there is investment in various properties of large sums of money within a short period of time.  The investments are relevant and important to the evaluation of the financial circumstances of the Father, and whether there were genuine financial difficulties. 

142.  In this respect, I agree with the observations and submissions of Mr. Cheng, as summarised in his written closing submissions, including the following :-

(a)     That the Father has failed to produce documents to prove the funding for the downpayment of the 3 properties in the mainland, especially how much was contributed by his Wife.

(b)     That the Father has failed to disclose documents for the purchase price of the 2 shops in the mainland and the sale and purchase agreement.

(c)     That the Father has not disclosed in the Answer that at least his Wife owns a Mercedes Benz, which is only admitted in cross-examination.

(d)     That the Father has failed to disclose documents showing that the flats he bought in Thailand (according to the Father, only 4 out of 5 flats) had been forfeited.   

(e)     That the Father has failed to produce documentary proof that the Shop in Foshan is being placed in the market for rent.

143.  Considering the Father’s evidence as a whole, I am of the view that there is no full and frank disclosure as to his financial circumstances.  The Father should have disclosed fully the documents he had been asked to produce, so that the court can have a full picture of the financial circumstances.

144.  As a result, I draw the inference that with the Father’s financial resources, he is able to cope with the financial difficulties he now faced.  With his income and financial resources, I am of the view that he is able to continue paying for the maintenance for the Mother and the Children in the amount to be awarded by the Court. 

145.  Further, as there is the lack of documents to prove that 4 out of 5 properties in Thailand had been forfeited, and documents to prove the difference between the total amount of money he deposed in his Form E for the purchase of the 3 shops in the mainland and the total amount he admitted in his Answer in relation to various withdrawals from the bank that they were for the purchase of the 3 shops in the mainland, I will consider all the landed properties of the Father as financial resources.

146.  While the Father is emphasising that he is facing grave financial difficulties, including the repayment of various loans, it should be pointed out that these so-called financial difficulties had mainly, if not entirely, been caused by the investments of these properties.  While the father focuses on the financial difficulties, the value of those properties and the rental income should not be undermined and I am of the view that arrangements have to be made in realising cash to ease the financial constraints as alleged by the Father.

(4) What should be the reasonable sums of maintenance to be ordered

147.  To consider the reasonable sums to be ordered, I have considered all the relevant factors, including the 2014 Order.  I have not lost sight of the Father’s complaints and his submissions in relation to the 2014 Order.  I reiterate my observations after considering the entirety of the 2014 Order, as explained in paragraph 45 above.

148.  Further, I wish to point out that as the parties reached agreement and settled the ancillary relief claims against each other in 2014, no Form E had been filed then.  Parties, with separate legal representation, had agreed (which was included in paragraph C in the preamble of the 2014 Order) that they are aware of their respective rights as to disclosure and discovery. 

149.  Besides, both parties had participated in the mediation and reached agreement, and subsequently both parties had legal separate representatives when the joint application was filed into Court, which was then approved by the Court as the 2014 Order.  With the evidence before me, I am not convinced that terms of the 2014 Order are not agreed by parties willingly with their free will with sound mind.

150.  With the Mother and the Father getting 60.7% and 39.3% respectively of the net sale proceeds of the Shanghai Property as provided in the 2014 Order, it does not necessarily mean that the agreement is unfair, as suggested by the Father.  The entirety of the 2014 Order has to be viewed in context. 

151.  I have to point out that equal division of assets is one of the considerations and one of the legal principles considered.  With reference to the leading case LKW v DD [2010] 13 HKCFAR 537, needs of the parties have to be satisfied before the Court will apply the legal principle of equal division of labour.

152.  After consideration of the entirety of the 2014 Order, the background and submissions of the parties, and also evidence of this case, I do not form the view that it is not agreed fairly between the parties.  The Father alleges that the Mother got a larger proportion of the sale proceeds of the Shanghai Property and the sale proceeds of the Discovery Bay Property, and she got cash in bank, the 2014 Order was not agreed on fair terms.  I have to point out that the Mother had been a housewife for many years since about 1999 and she had been granted the care and control of the Children, while the Father has always been the breadwinner of the family with stable income.  Each party has his/her role to play in the family.  Considering the background of the case and also needs of the Mother and the Children, I am not convinced that the terms in the 2014 Order is unfair. There is no sufficient evidence before me, on balance of probability, to show that the Father had not been able to pay the amounts ordered in the 2014 Order.

153.  But I should not and had not stopped there after the consideration of the 2014 Order, as it is only one of my considerations.  I should continue considering the relevant matters, including the matters as stated in section 7(1)(a) to (g) and also section 7(2)(a) to (e), which I had already considered above.  

154.  I have considered the contributions made by the parties to the welfare of the family. I am of the view that both had contributed in different aspect to the welfare of the family, with the Father being the breadwinner and the Mother being the home-maker taking care of the family and the Children.  There should not be discrimination between them with their respective roles.  The contribution made by a housewife taking care of the family should not be valued less than a husband earning a living for the family, paying for expenses and purchasing family assets.  

155.  I have also considered the conduct and behaviour of the parties as in their evidence and submitted in their submissions, which I am not repeating here.

156.  Background and financial circumstances of the Father and the Mother on one hand (refer to paragraphs 46 to 85 above), and the financial needs of them on the other hand (refer to paragraphs 86 to 133 above) have also been considered.

157.  I reiterate especially to the background of this case and some of the relevant aspects that are not in dispute, as I have summarised in paragraph 42 above.  It is under these factual scenarios that I consider and rule on the disputed issues. 

158.  This is a divorce case in 2014.  The parties had not been able to maintain harmonious relationship towards the end of the marriage and after divorce. There are different allegations from parties against each other, including the Mother complaining about the Father not exercising access of the Children and leaving the Mother to bear all the time and responsibilities in taking care of the Children and therefore more expenses incurred, while the Father complaining about the Mother having caused him emotional stress and pressure, not facilitating access of the Children, if not alienating him from the Children. 

159.  The parties’ relationship had turned so sour to the extent that the parties had not even put in effort to communicate to claim for travel allowance for the Children, which they are entitled to, so as to save money which could be reimbursed by way of travel allowance by the Father’s employer.

160.  The lack of trust and communication during the marriage and after divorce had led to the difference in views which are not reconcilable.  The Father asks for decrease in maintenance, while the Mother asks for increase in maintenance.  It is not in dispute that the costs of living must have increased for both parties in the past few years, and with the Children growing up, it is not unexpected that more expenses are reasonably expected to incur. 

161.  At the same time, with the parties having divorced, it is expected that each party should start a new life.  More expenses will be incurred when one household is split into 2 households.  Although getting married again is not a reason to automatically reduce the maintenance ordered by the Court, having a new family and a new born baby will necessarily add to the financial responsibilities of the Father and these are relevant considerations.  At the same time, the obligation to the ex-wife and Children from the previous marriage should not be ignored.

162.  The Court has to strike a balance between the financial resources and needs of the parties and of the Children in order to making a ruling fairly.  I have considered and ruled on the reasonable financial needs of the parties and the Children.  In further considering the Father’s ability to pay and the reasonable sums to be awarded, I have considered and have observations especially of the following :-

(a)     The Father has stable income.

(b)     The Mother has work and earning ability, but her work and income is not a certain and stable as the Father’s.

(c)     With the amount of liabilities of the Husband, it is not in dispute that they are actual debts, but considering why they had been incurred, I am not convinced that Mother and the Children should be held responsible.

(d)     In considering the financial resources of the Father, including his income and other financial resources, including the assistance from his family, I am of the view that the Father has the ability to pay for any reasonable sums to be ordered by the Court. 

(e)     The Father may have to sell the LG Property or to seek further help from his family if he wishes to keep the LG Property, but owning one’s own property is not a must.  The value of the LG Property, along with the value of other properties under the sole or joint name of the Father, are considerations from the Court.

(f)     With the evidence before the Court, especially in view of the Father’s Answer and the fact that the Father and his Wife are not living at the LG Property, I am of the view that it may well be purchased for investment purpose, at least not to satisfy the current accommodation needs, as the Father is residing at a rented property of a larger size.

(g)     With the way the Father bought the 9 properties within a short period of time, with the amount spent in purchasing those properties, with his Wife receiving treatment from a hospital in Thailand and then subsequently having a baby, I am of the view that the loans from banks were advanced mainly to purchase properties.  Some money may be used to ease the financial constraint, but the financial difficulties were self-induced, not caused by the Mother or by the 2014 Order. It is not fair just to focus on the financial liabilities and the loan repayments involved, without considering at the same time the value of the properties the Father owns and the rental income he can receive from those properties.  With the re-arrangement of some of the properties, such as selling some of them, some of the corresponding financial liabilities will be gone.

163.  Having considered the background and circumstances of the case, and evidence and submissions from the parties, I am of the view that the amounts ordered in the 2014 Order were appropriate and fair.  The provision therein that the amounts shall be increased annually in accordance with the same percentage of the annual civil servant pay as announced by the HKSAR government has catered for the needs of reasonable increase in expenses.  I rule that the same amounts, and the taking into account the corresponding increase in annual salary pay as stated in the 2014 Order, are reasonable, and I also rule that the Father has the ability to pay.  There should not be an increase or decrease in maintenance for the Mother and for the Children.

164.  The Mother may be of the view that the amounts are not sufficient, comparing to the amounts she asks for.  I have no doubt that the Mother loves the Children very much and would wish to give the best she could to the Children, as much as to the same level as before divorce during marriage, but at the same time, the Court has to do justice to both parties.

165.  In view of the amounts of maintenance to the Mother and the Children, I am of the view that they are reasonable to maintain similar standard of living and to live reasonably comfortably. 

166.  I am of the view that the amounts parties agreed on in the 2014 Order, in addition to the corresponding increase in the Father’s salary pay, is reasonable.  It is enough to provide for the Mother and the Children reasonably comfortably.  If there is any shortfall, they are for better provision of a more comfortable life, which the Mother should support herself and the Children with her own financial resources.

167.  I notice that there are different open offers made by the Father apart from asking for a decrease in the amount of maintenance for the Mother and the Children, ie. varying some undertakings in the 2014 Order.  After hearing evidence, with the background of this case, I accept that the Father had not blatantly intend to non-compliance of that undertaking and the concerning insurance policies are no longer in existence, I would allow to discharge the obligation to fulfil the obligation for paragraph J of the 2014 Order and allow the Father to make other arrangement for insurance.  

 (5) whether attachment of income order should be imposed or not

168.  For the application of attachment of income order, I have considered the relevant sections, including sections 28(1), 28(1A) and 28(2B) of MPPO.

169.  It is the Mother’s case that as there is default of full payment from the Father, she asks for maintenance to be attached to the Father’s income.

170.  The Father opposed.  He is of the view that there is no intention to default payment in full.  The reason for reducing the amount to be paid without court’s order and the Mother’s consent is because of his financial constraint. Further, he explains that any attachment of income may affect his work and possible promotion, which in turn would jeopardise the interest of the Children, if his work will and income be so affected.

171.  It is not in dispute that the Father had unilaterally reduced the amount of maintenance without the Mother’s consent.  I notice that there is continuous payment, but in a much reduced sum.  The Mother has been and is able to make up the shortfall with her own resources.  Having considered the parties’ financial circumstances and having made the ruling as aforesaid, I accept that the Father had incurred his financial debts and liabilities, leading to his disposable income having decreased to an extent that made him unable to comply with the 2014 Order. 

172.  However, with my ruling above, I have not accepted the Father’s application of decrease of maintenance and I am of the view that the Father has sufficient income and financial resources to pay for the amounts.  Re-arrangement of the properties the Father owns, including selling the LG Property or some other properties, should be considered, if no further financial assistance is to be received from the Father’s family.  I can understand that before the trial hearing and before the Court having made the ruling, the Father has not been sure if the Court would accept his explanation and possibly order the amounts to be deceased to what he has been paying, with backdating effect.  I have considered the Father’s explanation.

173.  Further, the Father had confirmed with the Court that he undertakes to pay whatever amounts to be ordered by the Court as reasonable sums, and if in default in future, he will not oppose to any application for attachment of income order.  Given the background of the Father and the circumstances of the case, I have reasonable grounds to believe that the Father will make full and punctual payment in future and I am of the view that attachment of income is not to be ordered at this stage. 

174.  But I make it clear that I have ruled that the Father has the ability to pay for the amounts I order.  After my ruling, the Father should be making arrangements, including considering selling or re-arranging some of his properties, and he would be able to pay for the amounts ordered by the Court, including the outstanding amounts of maintenance.  In the event that there is any payment of monthly maintenance in default in future, there should be no hesitation from the Court to order attachment of income, without having the need to go through trial.

Orders

175.  Based on the reasons explained hereinabove, I make the following orders:

(1)     The Father’s application for decreasing the maintenance be dismissed. 

(2)     The Mother’s application for increasing the maintenance be dismissed.

(3)     The Mother’s application for attachment of income order be dismissed.

Costs

176.  Generally, costs should follow the event.  In the present case, I have dismissed the parties’ respective applications.  I am of the view that there is no winning party of the proceedings.  Having considered the parties’ respective open proposal, circumstances of the case, and the court’s ruling, I am of the view that it is fair to order no order as to costs for all the applications, including all costs reserved.  This is a costs order nisi, which shall be made absolute within 14 days from this order.