WGL v. ASB

HCMP 489/2013

[2018] HKCFI 2615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 489 OF 2013

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J U D G M E N T
(Variation and others)

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Introduction

1.  There are 5 summonses before this Court in relation to the financial provision for the parties’ child ILB, and chronologically they   are:

(i)   The Mother’s summons issued on 14 November 2016 for the Father to pay her the differences between the periodical payments for the ILB’s maintenance as ordered by this Court pursuant to the judgment handed down on 28 June 2013 (“2013 Judgment”) and the index-linked amounts (“CPI Summons”);

(ii)   The Father’s summons issued on 5 April 2017 and amended on 3 May 2018 for downward variation of the periodical payments ordered by this Court pursuant to the 2013 Judgment (“Variation Summons”);

(iii)   The Father’s summons issued on 5 April 2017 and amended on 3 May 2018 for reimbursements of amounts said to be overpaid by the Father to the Mother for the benefit of ILB (“Reimbursement Summons”);

(iv)   The Father’s summons issued on 5 March 2018 and amended on 5 March 2018 for an order that he be allowed to provide an undertaking to pay for ILB’s tuition and extra-curricular activities expenses direct upon production of invoices (“ECA Summons”);

(v)   The Mother’s summons issued on 8 March 2018 for an education fund to be provided for ILB (“Education Fund Summons”).

2.  Save where otherwise indicated, this Court will adopt the abbreviations in the 2013 Judgment and also previous decisions of this Court in this matter.

3.  At the hearing before this Court, Mrs Lisa Remedios and Mr Billy Yau appeared for the Father.  After the 1^st direction hearing of the Variation Summons, the Mother’s solicitors Messrs Withers, filed a Notice to Act for her.  Messrs Withers were also the Mother’s solicitors during the 2013 trial.  About 5 days prior to the commencement of the present trial, on 25 April 2018, Messers Wither came off the record, and the Mother acted in person and was legally unrepresented at the trial. 

4.  At her request, this Court allowed the Mother to have a friend attending the trial and to assist the Mother as “Mackenzie Friend”. 

Background

5.  The background and history of this litigation has been set out in the 2013 Judgment and previous decisions.  Briefly, the parties’ relationship lasted for about a year in New York.  The relationship came to an end during the Mother’s pregnancy in April 2007.  The Mother went back to London where she was living prior to her relationship with the Father. Their daughter ILB was born at end of August 2007 in London.  The parties became embroiled in litigation over ILB since about 2008.  Proceedings were first commenced in Colorado, USA by the Father and later in England by the Mother where it proceeded, followed by proceedings in Hong Kong after the Mother moved here with ILB in 2011.  

6.  The proceedings in Hong Kong commenced in 2012 in the Family Court and were later transferred up to this Court in 2013.  Under an order of 17 December 2012 made by Judge KW Wong, which was a mirror order of an earlier order made by the English Court (“Custody Order”), the parties have joint custody of ILB with care and control to the Mother and there were detailed provisions for defined access (including holiday access) to the Father.  As provided in the Custody Order, amongst other things, the Father was to meet expenses for the air fares and hotel expenses incurred by the Mother and ILB during access.

7.  The 2013 Judgment was handed down after a 4 day trial in May 2013 over ILB’s financial provision.  This Court ordered, amongst other things, the Father to pay the Mother a sum of HK$290,000 per month for periodical payments towards ILB’s maintenance commencing on 1 January 2013, with credit for amounts already paid, until ILB reaches 18 years of age or completes full time education, whichever shall be later (“2013 Order”).  The 2013 Order also provided that the periodical payments should be index-linked.

8.  Subsequently after the 2013 Order, the matter of ILB’s access was transferred down to the Family Court.  The parties continued to have disputes over access and the expenses in connection therewith, so much so, that since about October/November 2017, the Father had ceased access to ILB and this was the position at the time of the present trial.  

9.  The Father was dissatisfied with the 2013 Order although there was no appeal therefrom.  He failed to comply with the order for about 28 months between July 2013 to October 2015 which led to the Mother issuing enforcement proceedings in New York.  Eventually the Father paid up all the arrears and the legal costs.

10.  Since 26 October 2015, the Father has been paying the monthly amount of HK$290,000 under the 2013 Order, although the parties continued to have disputes over the maintenance.

11.  The Mother complained that the Father failed to pay her the index linked increased amounts ordered under the 2013 Order.  The Father asked the Mother for documentary evidence of ILB’s expenses.  The Mother later issued the CPI Summons in November 2016.  This was then followed by the Father issuing the Variation Summons and the Reimbursements Summons in April 2017.

12.  After the issue of the Variation Summons, the Father further issued a summons on 26 May 2017 for an immediate interim reduction of the ordered monthly periodical payment of HK$290,000 per month (“Interim Summons”), as the Mother has moved to live with her current boyfriend (“Mr H”) at about end of February 2017 and the Mother no longer needed to pay for any accommodation for ILB.  On 8 September 2017, this Court handed down a decision (“Interim Decision”) ordering that the payment of a monthly sum of HK$150,000 for housing for ILB, being part of the monthly periodical payments of HK$290,000 under the 2013 Order, be suspended from 1 August 2017 until further order, on condition that the Father was to continue to pay the Mother the remaining sum of HK$140,000 per month plus the CPI increases for ILB’s general and personal expenses until further order (“Suspension Order”).

13.  The Mother then issued a summons for litigation funding from the Father (“Litigation Funding Summons”) and on 30 November 2017, this Court handed down a decision dismissing her application (“Litigation Funding Decision”).  Her application for leave to appeal was refused by this Court and later by the Court of Appeal.

14.  Whilst the present trial was going on before this Court, there was a dispute between the parties as to which school ILB should attend in September 2018 after completing her 6^th grade at her old school which is one of the ESF schools, namely whether she should attend 7^th grade in a secondary school which is one of the ESF schools or another private international school repeating 6^th grade.  After the completion of the trial before this Court, on 8 June 2018, Judge Melloy ruled that ILB to attend the Mother’s proposed private international school in September 2018 notwithstanding having to repeat 6^th grade.  The Father tried to appeal against the decision but his leave application was dismissed by the Court of Appeal on 3 August 2018[1].

15.  In light of Judge Melloy’s order, the parties were given leave to file further written submissions.

The parties’ evidence

16.  There were a total of some 8 affidavits filed by the Father and a total of some 10 affidavits filed by the Mother in relation to the 5 summonses, and also the Interim Summons, the Litigation Funding Summons.

17.  The Mother filed a Form E on 21 September 2017 setting out her financial position.  As the Father had indicated his willingness to abide by whatever orders made by the Court, he had not been ordered to file a Form E.

The Joint Expert Report

18.  On 27 March 2018, this Court ordered that Mr Frank Yuen of KLC Corporate Advisory and Recovery Limited be jointly appointed by the parties as the single joint expert (“SJE”) to:

(i)   prepare an analysis of the evidence provided by the Mother to investigate and report on the actual spending on ILB’s expenses which is supported by documentary evidence as to actual payments made in last 2 years;

(ii)   verify the actual costs of flight tickets/airfares incurred by the Mother on behalf of ILB, between 2012 to 2017 which were supported by proof of payments.

19.  The SJE submitted a report on 20 April 2018 (“SJE Report”).   As set out by the SJE, to determine the amount of ILB’s expenses, he had identified from his review of the documents supplied to him, ie the following documents relevant to ILB’s expenses[2]:

(i)   Supporting documents attached to the Mother’s 2017 Form E;

(ii)   Exhibits ASB11-10 to 11-13 to the Mother’s 11^th affidavit.

20.  The period reviewed by the SJE was a period of 32 months from 1 July 2015 to 8 March 2018 (“Review Period”).  The SJE Report contained a table of a summary of ILB’s expenses prepared by the SJE and referred to therein as Table 23 (“Table 23”)[3].  The SJE set out an amount of a total HK$510,576 for the purported expenses of ILB identified from those documents in the Form E (“Form E Documents”) and an amount of HK$321,651 from the documentary evidence of actual payments during the Review Period.

21.  The SJE Report was submitted when the Mother was legally represented.  Although the Mother had called the SJE Report “absurd”, she did not seek to cross examine the SJE.  The Father has no issues with the SJE Report and seeks to rely on it.

22.  It is however quite clear that the SJE could only base his review on the available documents supplied by the parties, in particular those supplied by the Mother, and it was not for the SJE to form any views or conclusions as to whether any items of expenses were paid by cash or whether there were other items of reasonable expenses for which the Mother had kept no receipts/records or no receipts/records were available.

Agreed Scott Schedule

23.  The parties filed a Scott Schedule dated 18 April 2018, setting out some 14 disputed issues, 9 of which were in connection with the Variation Summons.  3 in connection with the Reimbursement Summons and the remaining 2 in connection with the CPI Summons.

24.  The Variation Summons is clearly the main dispute between the parties and I will consider this summons first.

The Variation Summons

Legal principles on variation

25.  As provided in s 10(4) of the Guardianship of Minors Ordinance (Cap.13) (“GMO”), an order for periodical payments made under subsection 10(2) of GMO towards maintenance of a minor may be varied, discharged, suspended or revived after being so suspended, by a subsequent order on the application of either parent.

26.  Section 10(4) of GMO is worded slightly differently from section 11(1) of the Matrimonial Proceedings and Property Ordinance (“MPPO”) but it is clear whether under GMO or under MPPO, the court has the power to vary, discharge, suspend or revive any order or any provision in an order for periodical payments towards the maintenance of a minor. 

27.  First of all, section 10(2) of GMO provides for the Court’s power to make an order for periodical payments towards maintenance of a minor and it has been held by this Court in the 2013 Judgment that, in making an such an order, the Court’s jurisdiction is discretionary, and in exercising its discretion, notwithstanding the differences in legislation between our GMO and the UK Children Act 1989, this Court will have regard to all the circumstances of the case, including those matters as provided in paragraph 4(1) of Schedule 1 of the Children Act 1989:-

“In deciding whether to exercise its powers under paragraph 1 or 2, and, if so in what manner, the court shall have regard to all the circumstances including: -

(i) The income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph 4 [either parent] has or is likely to have in the foreseeable future;

(ii) The financial needs, obligations and responsibilities which each [parent] has or is likely to have in the foreseeable future;

(iii) The financial needs of the child;

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

(v)   The manner in which the child was being or was expected to be educated or trained.”

28.  As said by this Court in the 2013 Judgment, notwithstanding the differences in the Hong Kong legislation and the UK legislation, the principles and guidelines set out in the leading English authority of Re P (Child: Financial Provision) [2003] 2 FLR 865 and the line of cases thereafter had provided very helpful guidance to the courts in Hong Kong[4].

29.  In the 2013 Judgment, I have set out a summary of the relevant considerations set out in Re P.  I do not propose to set them out again.  Suffice to say, in IDC v SSA [2013] 5 HKC 482, FCMP 158/2011 (22 January 2013), a case where a child was born out of wedlock of wealthy parents, Judge Bruno Chan, as he then was, also followed the principles in Re P and subsequent line of cases in England, and the approach was specifically endorsed by the Court of Appeal later on appeal[5] and also confirmed by the Court of Final Appeal[6].

30.  In Re P, Thorpe LJ had said[7]:-

“Thus, in my judgment, the court must recognise the responsibility, and often the sacrifice, of the unmarried parent (generally the mother) who is the primary carer for the child, perhaps the exclusive carer if the absent parent disassociates from the child. In order to discharge this responsibility the carer must have control of a budget that reflects her position and the position of the father, both social and financial. On the one hand she should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the other parent chooses to live lavishly. On the other hand whatever is provided is there to be spent at the expiration of the year for which it is provided. There can be no slack to enable the recipient to fund a pension or an endowment policy or otherwise to put money away for a rainy day. In some cases it may be appropriate for the court to expect the mother to keep relatively detailed accounts of her outgoings and expenditure in the first and then in succeeding years of receipt. Such evidence would obviously be highly relevant to the determination of any application for either upward or downward variation.”

31.  However, Bodey J had also said the following in Re P:

“[82] It is these fine (and largely insoluble) distinctions of fact and degree within the grey areas of indirect benefit to the child which particularly justify the proposition at para [77] (i) above, namely as to the desirability of a broad budgetary approach by the court in bigger money cases. Such an approach aims so far as possible to avoid subjectively driven, time consuming and cost ineffective arguments, so often fairly sterile in the result.

[83] For the same reasons, the parties should themselves likewise be prepared to adopt a broad-brush approach to questions of sums claimed and sums actually spent. Some give-and-take is plainly required in this sensitive area, if conflict is to be avoided. But where there are grounds for belief that a mother is taking or is likely to ‘take advantage’ by spending Sch 1 payments on things of clearly no benefit whatever to the child, there needs to be some longstop for the father. So as Thorpe LJ says, he may request an account of moneys spent and may revert to the court, if necessary, for his financial obligations to be reconsidered.

[84] This is in no way to encourage a father’s taking this step, nor any sort of officious policing of the mother’s lifestyle.  It is simply a remedy of last resort if a mother were exploiting or were seriously likely to exploit her child-carer status, by for example making significant savings from the income provision ordered for the benefit of the child, or using that income to support the lifestyle of a new partner.”

32.  In relation to variation, Mrs Remedios had referred this Court  to the case Garner v Garner [1992] 1 FLR 573 where it was held that in an application to vary a previous order, the court was entitled to consider all the circumstances afresh, paying such regard to the previous order as may be thought appropriate[8].

33.  Garner v Garner concerned an application for variation of a consent order for the periodical payments to children born within their parents’ marriage.  The principles on variation of an order of periodical payments for the maintenance of children born within wedlock or children of the family under s 11 (1) of MPPO have been set out by Cheung JA in AEM v VFM [2008] HKFLR 106 in paragraph 14.3-14.8[9] as follows:-

“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 7^th 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.”

34.  Further, it was held by Cheung JA in AEM v VFM that the court has an almost unrestricted power to vary its own order retrospectively and to backdate any variation which it makes in a pre-existing order beyond the date of the application for variation, but in practice, orders are not usually backdated to a date prior to the notice of application to vary unless the justice of the case so requires[10].

35.  However, although s 10(4) of GMO provides the court with power to vary a previous order for periodical payments for a minor, there is no provision in the GMO which is equivalent or similar to section 11(7) of MPPO, which states as follows:

“(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.”

36.  In L v W [2006] 2 HKFLR 410, in exercising the power to vary under s 10(4) of GMO, Judge Bruno Chan had pointed out that: -

“There is however no statutory guidance under this subsection [s 10(4) GMO] as to how the Court should vary the maintenance order, although in making the original maintenance order under subsection (2), it speaks of a “reasonable” award having regard to the means of the parent against whom the application is made. This means that the Court has a discretion in the matter, and subject to the result being “reasonable” having considered the means and financial situation of that parent, the discretion is not fettered in any order, as in order to arrive at a reasonable award, it would in fact be necessary to also consider all the relevant circumstances of the case, in particularly as in this case where there are multiple issues beyond not just over the means of the Respondent, but also the means and financial situation of the Applicant and the child’s needs, as well as any change to any of these matters since the making of the original maintenance order[11].”

37.  Having considered the authorities, I do not see any cause for  different treatment between a child born out of wedlock or a child born within wedlock, and notwithstanding that there is no similar provision in GMO as s 11(7) of MPPO, I am of the view that the approach towards variation should be the same, and as set out by the Court of Appeal in AEM v VFM, in that this Court is not required to proceed from the starting point of the original order but look at the matter afresh, and any change in any of the matters to which the Court was required to consider when making the original order is one of the circumstances to be considered.

Material change of circumstances

38.  As held in Garner v Garner,in order to trigger the Court’s jurisdiction/power to order variation, there must exist material change of circumstances[12]. 

39.  Mrs Remedios submitted that there were the following material changes of circumstances to trigger the Court’s jurisdiction/power to order variation:

(i)   The Court in making the 2013 Order mainly arrived at the figures by estimation as there were no receipts/documentary proof provided by the Mother and for the present application, a single joint expert was instructed to assess those documents produced by the Mother in support of ILB’s expenses;

(ii)   Prior to February 2017, the Mother and ILB’s expenses (such as rental expenses) were paid for by her then boyfriend Mr C and it was the Mother’s case that those payments made by Mr C were “loaned” to her and she had to reimburse Mr C.  In the present hearing, the Mother now claims that most of the expenses of ILB originally ordered by this Court are now borne by Mr H resulting in a dramatic decrease in the actual expenses of ILB, and thus there is a “material change”;

(iii)   According to the Mother, there are several heads of expenses which have now ceased to exist, such as boating expenses and some of the ECA expenses.

40.  However, the above matters only took place after the issue of the Variation Summons.

41.  According to the Mother, since about end of February 2017, after she and ILB moved into Mr H’s house, Mr H has not asked the Mother for any rental payment or contribution towards the utility bills for ILB.  She had sent an email to the Father on 21 February 2017 to make certain proposals in relation to the variation of the 2013 Order including reducing the monthly periodical payments for ILB to HK$140,000[13]. In light of this, the material change in the ILB’s circumstances which triggered off the Father’s Variation Summons was in my view the termination of the Mother’s cohabitant relationship with Mr C and upon the Mother and ILB moving into Mr H’s house the Mother not having to pay any rent and utilities. This can be seen also in the Father’s own closing submissions, a copy of which was attached as Annexure 10 to Mrs Remedios’ closing submissions (“Annexure 10”)[14]. In fact, according the Father, the Mother is now engaged to Mr H. 

42.  As seen earlier from the authorities, upon this Court’s jurisdiction or power to vary being triggered, the Court is entitled to consider all the circumstances of this case.

General observations and/or findings

I.   ILB’s lifestyle

43.  The Father said that the Mother never lived with him, nor did ILB ever lived with him and that the Mother never clarified whose or what lifestyle ILB has gotten accustomed to, and that he is not sure what lifestyle that ILB has grown accustomed to under the Mother’s care and that the Mother has since moving in with Mr H raised her living standard to even a higher level on the Peak[15].

44.  As seen in the judgment of Judge Bruno Chan in IDC v SSA[16], and as pointed out by Ward J in A v A ( A Minor: Financial Provision) [1994] 1 FLR 657[17], the standard of living enjoyed by the family is not a factor listed in Schedule 1, no doubt because it is recognized that mother and father may never have lived together as a family in Schedule 1 Proceedings.  In fact, Thorpe LJ had in his judgment in Re P referred to J v C (Child: Financial Provision) [1999] 1FLR 152 in which Hale J had considered the Schedule 1 provisions and Thorpe LJ had summarized 4 points made by Hale J, and in particular, “Fourthly, the child in question was entitled to be brought up in circumstances which bore some sort of relationship to the father’s current resources and the father’s present standard of living.  That proposition was preceded by an acknowledgment that the court must guard against unreasonable claims made on the child’s behalf but with the disguised element of providing for the mother’s benefit rather than for the child” [18].

45.  Thus, in my view ILB is entitled to be brought up in circumstances which bear some sort of relationship to the Father’s current resources and the Father’s present standard of living.  The Father has been described as a “billionaire” by the Mother, which has not really been denied by the Father. He has not been required to file a Form E because he has said he is willing to abide by whatever orders made by the Court.  Anyway, from all the evidence, he leads a high standard of living and his lifestyle is one of comfort and affluence.

46.  I will also set out hereunder the amount of periodical payments which the Father has been paying towards ILB’s maintenance since she was born, either voluntarily or under an agreement/ court order, as gleaned from the 2013 Judgment:

Date	Agreement / Order	Accommodation and Others	Monthly Periodical Payments	Other expenses
Prior to Feb 2009	voluntary	The Mother and ILB (after birth) residing in London in the Roland Way Property (The Mother’s parents’ family home)	US$15,000
Feb 2009	voluntary	The Mother and ILB residing in Roland Way Property	The Father unilaterally reduced the payments to US$10,000
03.12.10 / 25.03.11	Parker’s Judgment / Parker’s Order	Purchase of property  of £2.5m and a car of £125,000	£10,000 (or £120,000 per annum) and varied automatically by increase linked to CPI, if any	School fees and reasonable extras as agreed or ordered and itemized on school bills + tertiary education costs
August 2012	Consent Order before Court of Appeal in England	No provision in the Consent Order, pending making an order in Hong Kong	HK$121,667 (or HK$1,460,000 per annum) excluding accommodation, pending order in Hong Kong
01.01.13	1st Interim Maintenance Order and continued by 2nd Interim Maintenance Order		HK$321,667 (including accommodation)
28.06.13	2013 Judgment / 2013 Order		HK$290,000 (including accommodation) and index-linked	The Father’s undertaking to settle school fees direct

47.  At the time of the 2013 Judgment, the exchange rate used was:

(i) US$1 to HK$7.75

(ii) £1 to HK$12.17 (the rate used in the Consent Order for converting £120,000 per annum to HK$1,460,000.

48.  As seen above, the Father was voluntarily paying US$15,000 per month for ILB in 2009 when she was one year old although he later unilaterally reduced the sum to US$10,000 per month. This was excluding ILB’s housing costs, since at the time of the Schedule 1 Proceedings in London in early 2009, the Father’s case was that he did not need to provide for separate accommodation for the Mother and ILB as they could continue to reside in the Roland Way Property.  Later, at the time of the Consent Order, the Father agreed to pay to the Mother periodical payments of HK$121,667 per month towards maintenance of ILB, excluding of her accommodation and school fees.  The Consent Order was also in line with Parker’s Order, and was agreed on the basis that it was pending the making of an order by the Hong Kong Court or upon parties’ further agreement and was not anticipated to be a final order.

49.  Hence, in my view, those payments which the Father himself had voluntarily paid or agreed to pay in the past would provide an indication as to how the Father himself had viewed the lifestyle or circumstances in which ILB should be brought up.  Further, the orders made by Parker J and the 2013 Order made by this Court would also be an indication of the circumstances in which the courts have accepted in the past as to the circumstances ILB should be brought up.

50.  In the 2013 Judgment, I allowed HK$150,000 per month for ILB’s share of housing costs, based on rental of a flat or apartment fairly near to ILB’s then school, with 3 good sized bedrooms and two proper bathrooms and no less than 1,800 sq ft in net area and in good condition and preferably has some facilities.  ILB’s expenses included a driver and two helpers, and two cats.  I had also allowed HK$20,000 per month for her annual holidays, excluding the access travels.

51.  The evidence showed that ILB has been living in a house of a rental amount exceeding HK$150,000 per month, and that she has enjoyed the services of a driver and two helpers, and she has frequently travelled during school holidays and term breaks/long weekends, whether for the Father’s access or otherwise, on business class and/or private plane.  In my view, these are the circumstances that ILB should continue to be brought up, and this is also the lifestyle she has been accustomed to since moving to Hong Kong. 

II.   The Mother’s lack of supporting documentation

52.  As seen in the 2013 Judgment, the Father’s counsel at that time, Mr Jeremy Chan had criticized the Mother for not bothering to provide necessary documents in support of her monthly expenses.  The Mother had frankly admitted that she did not keep records of anything, and said during the proceedings in England, she was not advised to keep records and that she had never before at any time in her life been asked to keep records of her cash spending until she sought legal advice in Hong Kong, and she had disclosed at the time that she had instructed a qualified accountant to help her to keep records and to assist in her finances[19].

53.  I have said in the 2013 Judgment that not all expenses of ILB can be evidenced by receipts, and what this court has to decide is what is reasonable in light of the parties’ evidence on their respective lifestyles and commensurate with what this court has found reasonable for accommodation[20].

54.  In the present trials, Mrs Remedios had in her closing submissions again referred to what was said by Thorpe LJ in Re P about how highly relevant detailed accounts of a mother’s outgoings and expenditure for a child would be in any application for upward/downward variation.  The Father had been seeking a detailed breakdown of ILB’s expenses with receipts from the Mother for some time, since about early 2015.  The Mother claimed that this Court never ordered her to keep accounts or records or receipts.  She had been reminded to do so not only in the 2013 Judgment but also more recently by this Court’s Order of 3 August 2017 and also the Litigation Funding Decision.  Even if she had no accounts/records/receipts before, if she had started to keep these in 2017, she would have been able to provide more information to this Court.

55.  Yet, notwithstanding this Court’s order of 3 August 2017 and the Litigation Funding Decision, and also that the Mother was legally represented at the time, the Mother has provided very few supporting documentation for her claimed expenses.  During the 1^st day of the trial, the Mother said she had instructed an accountant who had all the receipts and that every month she would send the documents relating to the expenses in an envelope to the accountant, and although she was given leave to approach her accountants after the 1^st day, she did not produce anything from her accountants the following day.

56.  The Father had criticized the Mother’s evidence and listed out the information she had withheld and that the Mother had continued to fail to provide full and frank disclosure[21]. I accept the Mother’s evidence was unsatisfactory, her disclosure in relation to ILB’s expenses was vague, piecemeal and confusing and there were no sufficient supporting documents. The Father had also accused her of “manipulating the system for a bigger pay day in the future”[22], namely knowing that she could come back to the Court for future upward variation.

57.  The Father also submitted that a broad-brush approach, as suggested by the Mother, is wrong for this case and that the Mother should not be allowed to manipulate the system and place the burden of proof on the Father or the Court to “blindly calculate” a reasonable amount for her expenditure on ILB[23].

58.  However, as seen earlier from the quoted passages of Bodey J in Re P, the approach this Court should take is a broad brush approach and not to get bogged down in detailed analyses and categorisations of specific items.  As Bodey J has stressed, no mathematical formula can provide a solution to what is essentially or discretionary exercise to be adopted broadly.  Although as seen later, I will consider the individual item of ILB expenses, this is only to assist the Court in assessing the reasonable and appropriate budget for ILB in the circumstances of this case.   

59.  I can well understand that the Father may feel aggrieved by the Mother’s attitude, and did not trust the Mother at all.  Notwithstanding the passage of time and that each has had formed new relationships, there is still great distrust and animosity between the parties, so much so that it has affected the Father’s relationship with ILB. 

60.  What the Court has to consider is all the circumstances of this case.  As seen in Re P, even though Schedule 1 makes no express reference to welfare of the child[24], embraced within the court’s general duty to ‘have regard to all the circumstances’ is the welfare of the child in question and that Thorpe LJ had further amplified this by saying that welfare must be not just ‘one of the relevant circumstances’ but, in the generality of cases, a constant influence on the discretionary outcome[25].  In any event, in Hong Kong, the wording of section 3 of GMO is in my view sufficiently wide enough to apply to applications under section 10.

61.  As I have said, the Mother’s evidence was unsatisfactory but notwithstanding this and her failure to provide sufficient documentary proof, this should not deprive ILB of reasonable maintenance from the Father who is under a legal obligation to pay such maintenance.  I am also of the view that it is not in ILB’s best interest or welfare that she has to rely entirely on the generosity of someone not related to her to maintain her and who has no legal obligation to do so.

III.   Payments by Mr H

62.  The Mother’s evidence is that the house is in the name of Mr H and that right now Mr H pays his own rent.  Mr H has been paying for rent and utilities since the Mother and ILB moved in according to the Mother, Mr H “will never ask for back”, and that they (the Mother and ILB) live with him “at his good graces”.  It is in fact the Mother who first raised the matter of variation and to reduce the periodical payments by the housing costs of $150,000, albeit on certain conditions.  It is clear from the Mother’s evidence that she and ILB will not need to pay for rent and utilities, but if there is any turn in the relationship between Mr H and the Mother, the Mother and ILB will have to seek alternative accommodation.

63.  As for the rest of ILB’s expenses, the Mother’s evidence during the trial was that she was paying a lot of it until the legal fees “got so burdening” that she could not, and so then Mr H just took over.

64.  During the trial, the Mother told the Court that since August 2017 she had been using the monthly payments from the Father to meet her own legal expense, and therefore Mr H has taken over the payment of all ILB’s expenses and that Mr H had not sought reimbursements from the Mother for those other expenses he paid for ILB.  At the end of the first round of cross examination, when asked by this Court during re-examination as to whether she had anything to explain or clarify in relation to her answers, the Mother had said:

“The only thing I’d like to say is, you know, I’m very thankful that [Mr H’s] been such a great support mechanism while I’ve gone through this whole process and I personally – and It’s up to you to decide because you’re the one that is going to decide [ILB’s] maintenance, what’s appropriate – but I do think it’s quite a bit to ask of my boyfriend of 18 months to fully fund someone else’s child, but he has never complained, he has never said I owe him anything back, it’s just ---- he’s just done it while I’ve handled the legal process. So he’s – he’s spent you know lots on [ILB], but it’s just a --- again, it’s hard --- it’s a lifestyle thing.”

65.  As seen in the Litigation Funding Decision, according to the Mother, as Mr H was in the middle of his own divorce proceedings in the States, he was not able to lend her funds for her legal fees.  However, it would appear notwithstanding that he was not able to lend the Mother funds for her legal expenses, Mr H was able to provide the Mother with a supplementary debit card (limit of which was unknown) linked to his bank account, and he was able to pay for all ILB’s expenses.

66.  Anyway, in so far as ILB is concerned, as I have said, Mr H is under no legal obligations to provide for ILB.  Even though it seems clear that Mr H does not require ILB’s accommodation and utilities to be paid or reimbursed, his position as to the other of ILB’s expenses is not as clear.  It would appear that it was only after the Mother told Mr H, and/or that Mr H believed she had to use the Father’s periodical payments to pay for her legal costs, that Mr H took over the payments for ILB.  Whether she in fact needed to use or did use those payments for ILB for legal costs is another matter, and in fact in Annexure 10, the Father had accused the Mother of “lying” in relation to her legal costs. In any event, as seen later, even if the Mother did use the Father’s payments for ILB to pay her legal costs, by about August 2018, all her legal costs should have been paid up.

67.  In any event, whether Mr H expects reimbursement over ILB’s expenses taken over by him or not, as I have said, the Father continues to have a legal obligation towards ILB and he has agreed to abide by any order this Court shall make.  In my view, notwithstanding that Mr H has taken over ILB’s all other expenses, the Father should continue to meet ILB’s reasonable maintenance expenses, other than housing costs and utilities. 

IV.   The whereabouts of an alleged sum of HK$13.7m

68.  As seen in the Litigation Funding Decision, it was not clear as to when the Mother and Mr C separated, whether it was in May 2016 or January 2017, but it appeared that the Mother had continued to have access of around US$10,000-US$20,000 per month from Mr C until January 2017[26]. Further, there was an amount of HK$13.7m transferred by the Mother to the JP Morgan Account referred to in the Litigation Funding Decision which the Mother said was for repayments to Mr C for contributions Mr C made towards ILB’s accommodation during the 28 months when the Father failed to comply with the 2013 Order.  According to the Mother, the JP Morgan Account belonged to Mr C beneficially.  Mr C had sent two emails, one to confirm that “his” JP Morgan account is and has always been in his name and the other one to confirm the outstanding balance.  What Mr C had said in his emails did not really clear up the matter.  

69.  As said in the Litigation Funding Decision, even assuming the JP Morgan Account was Mr C’s and those were indeed repayments from the Mother to Mr C , there was still no explanation from the Mother as to why she had to repay to Mr C more than she said she had borrowed from Mr C and further what she said she had borrowed from Mr C was almost double ILB’s housing needs[27]. 

70.  Anyway, at the time of the Litigation Funding Summons, the burden was on the Mother to satisfy this Court that she had no other financial resources to meet her legal costs.  She failed to discharge the burden and thus failed in her application.

71.  The Father does not accept that the JP Morgan Account belonged to Mr C and had said at the time of the Litigation Funding Summons that he was seeking supporting documents from the Mother such as the bank transfer instructions.  The Father complained that the Mother only provided redacted documents.  However, there was no application by the Father for any specific discovery of the unredacted documents.

72.  The Father had in Annexure 10 asked that the Court should take a robust assumption that the Mother is lying about the entire situation and that she is the true beneficiary of this savings account.

73.  The burden will shift to the Father to satisfy the Court if it is his case that the monies in the J P Morgan Account are available for the Mother to use to contribute towards ILB’s maintenance.  There was no such submission from Mrs Remedios.  Anyway, as I have said, after the Litigation Funding Decision there has been no further application by the Father for specific discovery, and without further evidence, I find there is currently no sufficient evidence for this Court to decide whether the Mother is or is not the beneficial owner of the JP Morgan Account.

V.   The Mother’s legal costs  

74.  When the Mother first issued the Litigation Funding Summons in August 2017, she sought a sum of HK$1.5m for legal costs and she was acting in person at the time. 

75.  Pausing here for the time being, I make two observations. The first is that August 2017 was also the month the Mother said Mr H began to take over all of ILB’s expenses as she had to use the periodical payments for legal costs.  She did not make this clear at the hearing of the Litigation Funding Summons.  Secondly, at that time, she had had at least an extra HK$150,000 per month from March 2017 onwards, or a total of HK$750,000, out of the Father’s payments, as she did not need to pay for ILB’s accommodation and utilities.  In fact, in August 2017, the Mother had some HK$1.6m in her HSBC Premier account[28]. Even after paying Messrs Withers HK$400,000, in September 2017, she still had some HK$930,000. 

76.  In the Mother’s 2017 Form E (filed on 21 September 2017), she said she owed Messrs Withers legal fees, estimated to be HK$150,000 for September 2017.  Again at that time she had funds in her bank account to pay the amount.  

77.  I thus see no reason why in August or September 2017 she had to use the monthly payments the Father paid for ILB’s maintenance for legal costs.

78.  The Mother’s Form H dated 23 October 2017 indicated unbilled costs and disbursements and counsel fees incurred from 7 August 2017 until and including the Litigation Funding hearing to be HK$919,195, of which HK$400,000 had been paid[29]. There was however no indication that between August and October 2017, apart from the sum of HK$400,000, the Mother had paid any further sums to Messrs Withers towards her legal costs, notwithstanding her present evidence that she used the periodical payments from August 2017 onwards to pay her legal costs.

79.  The Court estimated in the Litigation Funding Decision that costs going forward (from the date of the decision 30 November 2017) should be only in the region of HK$1.2m inclusive of the trial.  

80.  However, by the time Messrs Withers came off record, the Mother seemed to have run up quite a substantial sum of costs.  The Mother produced a Form H dated 2 May 2018 on the 1^st day of the trial indicating her total costs were by then about HK$2.1m[30].  However, this Form H did not indicate any sums which had been paid by the Mother.  At the trial, the Mother told this Court she owed Messrs Withers HK$800,000.  Based on her own evidence, if since August 2017, she had been using the periodical payments of about HK$140,000 per month for legal costs, by the time of the trial in May 2018, she should have paid Messrs Withers something in the region of HK$1,260,000 (9 months x HK$140,000 per month).  With the initial HK$400,000 payment, she would have paid Messrs Withers some HK$1,666,000, and based on her Form H, she would only have about HK$440,000 outstanding legal costs as at 2 May 2018.  It was not clear why the Mother said she still owed Messrs Withers HK$800,000. 

81.  Incidentally, in the Mother’s 2017 Form E, she had also said her liabilities had increased substantially in the last 36 months (which would be from about 21 September 2014 – 21 September 2017), and that litigation with the Father had been continuous the costs of which she had no ability personally to meet, and that she had had to borrow significant sums from her ex-boyfriend, Mr C to fund litigation and for other costs and this must be repaid.

82.  As pointed out by the Father, Messrs Withers only came back on record acting for the Mother on 7 August 2017, 6 weeks before the Mother’s 2017 Form E.  The Mother herself had said that she had been a litigant in person in the Family Court since 2015[31]. It is therefore not clear what costs she was referring to in her 2017 Form E for which she had to borrow significant sums from Mr C, whether it was for her costs in Hong Kong or in the States.  She did say she still owed Mr C some HK$3.6m for legal costs in the States for enforcement proceedings of the 2013 Order[32], but the Father had paid up at about end of October 2015.  The Father said he paid around HK$19m + to the Mother for her legal costs.  

83.  In short, the Mother’s evidence as to her legal costs was confusing, unsupported and inconsistent, and, there was no sufficient evidence that she had paid Messrs Withers a monthly sum of HK$140,000 from about August 2017 onwards towards her legal costs.  

ILB’s “General Expenses”

I.   Generally

84.  In the Mother’s earlier 24^th affidavit filed in support of her Litigation Funding Summons, the Mother had said that ILB’s costs had in fact increased since the 28.06.13 Order and that she had “carefully calculated her costs over the past 12 months and have found those to be greater than HK$170,000 per month (not including any rental portion). [ILB’s] costs are rising as she approaches her teenage years”[33].

85.  The Father had in Annexure 10 pointed out the Mother’s inconsistences in relation to what the Mother said were her expenses on ILB, ranging from a monthly sum of HK$141,806.98 in her 2017 Form E to HK$200,000 in the Scott Schedule.  She had mentioned a “carefully calculated” monthly sum of HK$170,000 in her 24^th affidavit.  During the trial, the Mother was cross examined as to how she arrived at this “carefully calculated” sum.

86.  The Mother claimed that she gave every expense receipt she had, namely credit card bills, bank statements and the items she spent cash on, to her accountant who then came up with HK$170,000 per month.  When she was asked where those supporting documents were, her answer was that every month she just put all the documents relating expenses into an envelope and sent it to the accountant.  The Mother then seemed to suggest that her accountants had prepared a report for her.  As mentioned earlier, at the end of the 1^st day of trial, the Mother was given a chance to contact her accountant to obtain a copy of their calculations or their report but then the next day, she told this Court that after the accountant finished the report for her, they were no longer retained by her.  When asked where the report was, the Mother then said it became part of her Form E.  It appeared further that she had approached her former solicitors overnight during the adjournment instead of her accountant.

87.  Anyway, as I have said earlier, the Mother’s evidence was unsatisfactory. 

88.  According to Part 4.1 of her 2017 Form E, the Mother had stated that ILB’s “general expenses”, excluding rent, were some HK$352,335.27 and under Part 4.3, ILB’s “personal expenses” were HK$141,805.98, and the total of the two amounts came to some $494,142.25.

89.  So far as rent is concerned, the Mother has put down “0”.  As seen earlier, the present position is the same as when the Suspension Order was made, or when the Mother and ILB moved into Mr H’s house, and the Mother had further made clear during the trial, Mr H did not require rent to be paid for ILB’s housing.  Mrs Remedios submitted that the housing payment should continue to be suspended.  I accept her submission. 

90.  As for the other items under “General Expenses”, Mrs Remedios had prepared an analysis of the ILB’s monthly “general expenses” (“Annexure 5”).

91.  On the 2^nd day of the trial, the Mother had told the Court that from the total amount of HK$352,335.47 under Part 4.1 of her 2017 Form E for “general expenses” or “total monthly household expenses”, the Court should remove 4 items, namely (i) “legal costs” of HK$250,000, (ii) “share of food for two helpers”, (iii) “florist” of HK$3,000 and (iv) “Chinese New Year Lai See” of HK$633.33, and then to “divide the rest by two” between her and ILB, and that would give an amount of about HK$41,000 per month for ILB’s share of “general expenses” or total monthly household expenses. 

92.  It would appear from what she said above that the Mother had received some legal advice overnight, even though she was not given leave to do so.  Anyway, the Mother accepted that above 4 items should be removed from of the “general expenses”.  As a result of her evidence, the total “general expenses” for ILB has drastically reduced to HK$41,000 per month.

93.  As seen in the 2013 Judgment, at that time the Father had proposed a total sum of HK$30,617 per month for “general expenses” and had at that time proposed that he contributed half of HK$30,617 per month, ie HK$15,300 per month as being ILB’s share.  In the 2013 Judgment, I have said the Father’s proposal of 50/50 was arbitrary.  It seems the Mother is now herself proposing a 50/50 split of all the items under the “general expenses”.  In my view, this 50/50 approach may only be appropriate for some of the items. 

II.   Utilities

94.  In so far as “utilities” are concerned, the Mother had not included in her 2017 Form E under this item any electricity, gas or water bills/expenses or management fees, and I understand that such expenses are the expenses which the Mother said have been paid by Mr H and will continue to be paid by Mr H together with the rent.  The Mother instead claims under “utilities” a monthly sum of HK$9,307.98 for items including “mobile phones, TV and internet”.

95.  According to Annexure 5, there were 18 receipts produced by the Mother for the PCCW (NOW TV/Netvigator account) which totalled HK$6,534 between October 2015 to July 2016.  Mrs Remedios divided the total amount by 18.  I do not agree with this.  Since the 18 receipts covered only 9 months, the total amount should be divided by 9, which would give an average monthly figure of HK$726 per month.  Mrs Remedios submitted that this item should be divided among 3 persons, namely Mr H, the Mother and ILB.  The accounts were in fact registered in Mr C’s name and I understand Mr C was not living in Hong Kong at the time.  The receipts were in relation to the period prior to the Mother and ILB moving into Mr H’s house.  The Mother was not cross examined as to what portion should be attributed to ILB and also it is not clear whether the amounts were the same after moving into Mr H’s house.  I would however accept the Mother’s broad brush approach of dividing this item into two, namely ILB’s portion is about $363 per month.

96.  According to Annex 5, the payments for the mobile phone totalled HK$210,775.30, or an average of HK$8,431 during the period of about 25 months between September 2015 until September 2017.  The Father’s position is that ILB could not have incurred any mobile phone charges as high as HK$8,431 per month, and in fact does not accept that any part of the amount was attributable to ILB. 

97.  Looking at the 1010 bills, the monthly package from October 2015 onwards was a fixed sum of HK$807 only but the Mother seemed to have incurred substantial IDD calls, global roaming and “value added services” and the total monthly amount ranged from a low of HK$3,166.79 to a high of HK$35,828.84.  Although there was no sufficient evidence as to what portion of the Mother’s bills was related to ILB, I am prepared to accept that the Mother would need a mobile phone for ILB to call her whether in Hong Kong or abroad.  On a broad brush, in my view, I find a reasonable monthly sum for the benefit of ILB should not exceed HK$3,000.

III.   IT/Computer Technician

98.  The Mother claims a monthly sum of HK$1,500 for this item. Her evidence was that the technician would go twice a month to the house in relation to ILB’s computer, and he would charge HK$750 per visit. 

99.  The Mother had produced no supporting documents for such item, and the Father suggested that the amount should be “0”. 

100.  I accept that there may be problems regarding computers in particular an old computer.  The Mother’s American Express card statements showed that a new Apple computer was purchased on 20 June 2017[34].   It seems unlikely that a new computer will break down or has problems twice in a month.  There is no evidence as to how often a computer will need to be replaced.  On the present evidence that a new computer has been purchased, I am of the view that on average one visit every month should be sufficient, or average HK$750 per month, or HK$375 per month for ILB’s share.

IV.   Food

101.  In the 2017 Form E, the Mother claims a monthly sum of HK$34,000 for food, including food for helpers.  According to Annexure 5, for the period of 19 months from August 2015 to February 2017, the documentary evidence produced by the Mother showed a total amount of HK$218,724.53, or on average about HK$11,511.80 per month.  For the 7 months from March 2017 to September 2017, the total amount was HK$121,096.34, or an average of HK$17,299.50 per month.  If divided by 3, this will give $5,766.50 per month. 

102.  Considering that there may be food expenses paid in cash and not purchased from Great/Olivers/Marketplace/FICO/South Stream Seafood Ltd/Ace Cakery, I will allow a budget of $8,500 per month for ILB to include also her school lunches and other food expenses.

V.   Household expenses

103.  The Mother has claimed a monthly sum of HK$16,563.15 for this item.  Based on 50/50 proposed by the Mother, ILB’s share would be about HK$8,282.  According to Annexure 5, the documentary evidence produced by the Mother for 11 months from April 2016 to February 2017 showed a total amount of HK$51,942.50 which on average would be about HK$4,722.05 per month, and for the 4 months from March – June 2017, the total amount was HK$66,937, or average of about HK$16,734.45 per month.  Included in the total amount of $66,937 was the earlier mentioned American Express credit card statement in June 2017 for the Apple computer, which cost HK$24,804.50. If one takes the period March – June 2017, which would be after the Mother and ILB moved into Mr H’s house, and less the computer, the amount would be HK$42,133, namely an average of about HK$10,533 per month.  There was no evidence that the Mother had bought a new computer between the 2013 Order and prior to the June 2017 purchase.  Allowing the computer to be a “household item” and be replaced every 4 years, this would add another HK$516.75 (HK$24,804.50 divided by 48 months) to the monthly average of HK$10,533 per month, making a total of HK$11,049.75.  There may be household items for which no receipts are available, or have been kept by the Mother such as the Mother had also said during the trial the IQAir filters in the house would need replacement once a year at about $12,000 to $13,000 each time for which she has paid by cheque.  I will round up the total to HK$15,000 per month, for the three of them, ILB, the Mother and Mr H. I find ILB’s reasonable share of household expenses to be a monthly sum of about HK$5,000.

VI.   Car expenses, insurance premia and Other transport expenses

104.  The Mother claims a sum of HK$13,532 for car expenses to include petrol and car maintenance eg brake pads, crash repairs replacement tyres and licence fees.  According to Annexure 5, the documentary evidence for the 5 months from March 2017 to July 2017 showed a total of HK$13,100 for “Autotoll, Esso, and Lido”, and on average HK$4,366.67 per month.

105.  The Mother only disclosed during the trial, that Mr H bought a new car for the Mother to use which arrived 3 days before the trial.  The Mother said during the trial she was still using her old car until the expiration of the then car insurance in September/October 2018.  The new car is registered in the name of Mr H.  A new car should not require any substantial maintenance expenses.  The amount for insurance claimed by the Mother was for the insurance for her old car which the Mother said would be either sold or scrapped. 

106.  As for the new car, as the car is in Mr H’s name, in my view the car insurance, annual licence fees and maintenance expenses should be borne by him.  There was no evidence that he had sought any reimbursement from the Mother for her use or for use by ILB. 

107.  The Mother had previously employed a Filipino driver, and she has claimed an amount of HK$21,568.47 per month for “Other Transport (Driver and Octopus).  The Mother’s evidence was that the Filipino driver was due to leave her employment in June 2018 and that she was looking for another driver.  The Mother said she was paying the Filipino driver HK$20,000 per month to stay until June 2018 and that she had to pay for his flight home.  For Octopus card, she would give him HK$500 to load it up periodically for parking, and for petrol, it was at least HK$1,000 per week, or about HK$5,000 per month to fill up the tank.  What the Mother said was different from her evidence in the 2013 trial when she said petrol was HK$12,000 per month.  The Mother had not provided a copy of the Filipino driver’s contract as evidence of his salary.  There is also no evidence as to whether the new driver will be under a contract with the Mother or with Mr H.

108.  In any event, there was no sufficient evidence that the new driver, the petrol, the Autotoll or Octopus expenses were for the sole use of ILB although the Mother said it was mainly for ILB’s use.  The total monthly amount for the new driver, the petrol, the Autotoll and Octopus expenses would appear to be around HK$25,000 (say about HK$20,000 for the driver and HK$4,366.67 per month from Annexure 5) and assuming the car is for the use of ILB and the Mother only, a reasonable budget for ILB’s share would be $13,000 per month including some occasional other transport expenses for ILB.

VII.   Domestic helpers (including salary, bonuses and overtime)

109.  As for the helpers’ salaries, bonuses and overtime, the Mother claims an amount of HK$23,000 per month.  The Mother’s evidence was also that before she and ILB moved to Mr H’s house, she and ILB used to have 2 helpers (one of whom the Mother calls ILB’s nanny and who duties are only to look after ILB’s needs), but after moving into Mr H’s house, she has employed an additional helper in her name, totalling 3 helpers, since the house is bigger with a garden, and she has also said Mr H has 3 grown up children from his earlier marriage, aged about 29, 25 and 23 and they live in the States but may come and visit and stay in the house.

110.  In any event, it was the Mother’s evidence that although all 3 helpers are contracted to the Mother, Mr H in fact pays for the salaries for the 3 helpers.

111.  Although she was asked, the Mother had failed to produce copies of the helpers’ contracts.  According to Annex 5, the invoices produced by the Mother indicated that there were monthly salaries of HK$7,000, HK$13,500 and HK$7,000 paid respectively to 3 helpers, totaling HK$27,500.  However, during the trial, the Mother’s evidence was that the monthly salaries paid to 3 helpers were respectively HK$8,000, HK$5,500, and HK$5,000 and that she would pay each helper an extra month’s pay at about Chinese New Year and that they return home once every year.  On occasions, she would pay overtime when they entertained, but as Mrs Remedios pointed out, such entertaining at home would be more for the Mother and Mr H, rather than for ILB.

112.  According to Mrs Remedios’ Closing Submissions, the amount would be HK$20,041.70 per month.  On broad brush I will round this up to HK$24,000.  I accept this sum should be divided by 3 and that ILB’s reasonable share is about HK$8,000 per month.

VIII.   Legal Fees, Florist, Chinese New Year Lai See

113.  As seen earlier, the Mother abandoned these 3 items during the trial.

IX.   Total under General Expenses

114.  The total of the above comes to about $38,238.  Having regard to the circumstances of this case and that I had allowed a monthly sum of $60,000 in the 2013 Judgment, the Mother’s latest proposal of a monthly budget of HK$41,000 for general expenses is reasonable.  I accept her proposal of a monthly budget of HK$41,000 for ILB.  

ILB’s “Personal Expenses”

I.   Extra tuition fees (including coding, piano, eye-level and other tuition) and Extra-Curricular Activities (including school camp, chess and sports)

115.  In her 2017 Form E, the Mother claims a monthly amount of HK$9,359.15 for “Extra tuition fees” and HK$25,500 for “Extra-curricular activities”.  During the trial, the Mother said the expenses under “Extra tuition fees” were “intermingled” with ILB’s “Extra-Curricular Activities”, and I will refer to the two items collectively as “ECA”, the understanding being that these two items were not covered by the school invoices from ILB’s former school and not payable to the school.  For the two items, the total amount claimed by the Mother is a monthly sum of HK$34,859.15.

116.  In Table 23[35], the SJE has set out an amount of HK$106,330 for the purported “extra tuition” expenses of ILB as identified from Form E documents and an amount of HK$95,750 which was the evidenced actual payments.

117.  As for the “extra-curricular activities”, as set out in Table 23, the purported amount and the evidenced actual payment amount were the same, ie HK$129,285.

118.  Thus, for the two items of ECA, the total of the evidenced actual payments in Table 23 is HK$235,615. 

119.  The Mother had provided a timetable of ILB’s daily activities for 2017-2018[36] (“ECA Timetable”) and ILB’s then school hours were from 8:30 am to 3 pm. 

120.  Mrs Remedios submitted a table of ILB’s schedule of expenses for ECA compiled from Table 23 and the Mother’s evidence (“Annexure 2”). The total monthly sum came to about HK$20,200.  It was Mrs Remedios’s submission that as the Mother and ILB would always go away for holidays during school breaks, those lessons that were scheduled during the holidays would be suspended, and that the costs for these suspended lessons should be excluded from calculation.  She submitted that a total of HK$8,642 should be deducted from the monthly sum of HK$20,200, leaving an amount of HK$11,558.  Mrs Remedios had also submitted a table of a summary of the suspended lessons (“Annexure 3”), which was compiled from the ECA Timetable, the Mother’s evidence and receipts/emails contained in the SJE Report (and its Appendices).

121.  In the 2013 Judgment, the Mother had claimed extra-curricular activities such as summer boating trips and I have rounded up the amount for extra-curricular and summer boating to be HK$15,000 per month[37]. However, the Father said he was told by ILB that she had never gone boating, and the SJE Report also confirmed that there had been no boating expenses.

122.  In any event, Mrs Remedios submitted that the ECA should now be reduced to HK$11,558 per month. 

123.  Annexure 2 was prepared by Mrs Remedios based on “cut-backs” the Mother had referred to in an email to the Father[38]. The Mother had said because the Father “forcing” her to spend ILB’s maintenance on legal fees, there had to be “minor” cut-backs in ILB’s ECA.

124.  First of all, as I have said earlier, there was no sufficient evidence that the Mother had used all the maintenance payments for legal costs.  Secondly, from Mother’s oral evidence, there were other reasons for the “cut-backs” including taking into account ILB’s wishes and also ILB had to attend counselling courses ordered by Judge Melloy and thirdly, the Mother herself described such “cut-backs” as “minor”.  As can be seen from the Mother’s evidence, ECA varied from time to time, and there were amounts which were paid in cash. To allow flexibility in arranging appropriate tuitions/activities from time to time and to allow some tuition/activities could be paid by cash, I am of the view that a reasonable monthly budget for the ECA is HK$15,000.

125.  I will consider the ECA Summons later.

II.   School books and stationery

126.  The Mother claims HK$500 for this item, or HK$6,000 a year.

127.  According to Table 23, the evidenced actual payments of ILB’s expenses under this item amounted to only HK55, whereas the purported expenses identified from the Form E Documents was HK$2,906.

128.  During the trial the Mother, when asked, explained that she spent the amount on purchasing books ILB was reading, and also stationery and text books ILB’s tutors asked the Mother to buy, and there were other items such as rulers, calculators as ILB wanted things that other students wanted.  The Mother had said this item included “general school stuff”.  The Mother said she had bought the whole set of “Malory Towers” for ILB and also “Enid Blyton” and the “Bond” books. The Mother’s evidence showed that she had bought from Bookazine and also Amazon. 

129.  In my view, a monthly sum of HK$500 is a reasonable budget for this item.

III.   Transport to school (including school bus)

130.  The Mother claims “0” for this item.

IV.   Medical/Dental (including pharmacy) 

131.  The Mother claims HK$1,461 for this item in her 2017 Form E.  In the 2013 Form E she had claimed a monthly sum of HK$1,980.41 for medical insurance premia and HK150 for dental (not covered by insurance), totaling HK$2,130.41 per month.

132.  In Table 23, the SJE sets out the purported expenses identified from the Form E Documents to be HK$17,818, and the evidenced actual payments to be HK$10,260. 

133.  At the trial, the Mother said she has a medical insurance policy for her and ILB from BUPA and that the annual premium was “60-something thousand, 68,000 maybe”.  When asked how much of that was for her and how much was for ILB, the Mother’s answer was she could not recall.

134.  The amounts in the 4 receipts referred to by the SJE were for ILB’s dental expenses and 2 were in February 2016, on in September 2016 and one in January 2017.

135.  The Mother’s oral evidence was that for medical expenses she would buy pharmacy items from Fanda, Manning’s or Watson’s, such as neurofen, worming tablets etc and for dental expenses, ILB should go for teeth cleaning every 3 months at HK$1,000 each time, and that every 6 months, ILB has to have a dental checkup at about HK$1,500 each time.  She said ILB had “expanders” at the time of the trial, and ILB may need to have braces which cost HK$140,000.  The Mother said the Father did reimburse about HK$20,000 to her but he had then refused to pay any more.  There was no documentary evidence provided by the Mother of the cost of the braces, although she said the evidence was before Judge Melloy. 

136.  The Mother’s evidence indicated that the medical insurance premium for ILB continues to be payable.  At the time of the 2013 trial, or in the 2013 Judgment, ILB’s medical insurance premium was stated to be HK$1,980.41 per month.  Anyway, the Mother’s oral evidence in the present trial indicated that there are other miscellaneous pharmacy items and also dental expenses. According to the annexure submitted by Mrs Remedios, these other items came to about a monthly sum of HK$3,377[39]. This included the estimated amount of HK$140,000 for braces/orthodontic work.

137.  On a broad brush approach, I would allow HK$3,000 per month for ILB’s medical/dental/pharmacy expenses.  I will allow an additional amount for ILB’s medical insurance premia, upon the Mother providing to the Father and the Court a copy of the policy and a receipt for payment of the premia for ILB.

V.   Entertainment/presents (including presents to ILB and parties etc) and Meals out of home

138.  In the 2017 Form E, the Mother claims HK$15,000 a month for “Entertainment/presents (including presents to ILB and parties etc)”.  

139.  In the 2013 Judgment, I allowed HK$15,000 per month for “Entertainment”, which included birthday party / presents, others / toys / eating out[40]. The amount included ILB’s eating out as well.

140.  In the 2017 Form E, for “meals out of home”, the Mother claims another HK$4,000 per month.  Hence, the total amount for ILB’s entertainment/presents etc and dining out now claimed is about HK$19,000 per month.

141.  In Table 23, the purported expenses from the Form E Documents was HK$53,775 for “entertainment etc” and HK$6,032 for “meals out of home” and the evidence of actual payments for “entertainment etc” was HK$6,301 and for “meals out of home” was “0”. 

142.  During the trial, the Mother said as the Court allowed HK$15,000 per month for ILB in 2013, her expenses must be more by now.  The Mother had also said that ILB would get invited to birthday parties at least once a month and that the Mother would spend between HK$500 and HK$1,000 depending on who the friend was, and maybe HK$1,500 if it was a really good friend.  Also, ILB goes to Space Museum, Ocean Park, Ryze, Verm, and ILB would also be taken with a group of friends to Wildfire, and/or to Zuma which she likes.  ILB may also go ice-skating at the Aberdeen Marina Club.  ILB would also need to be accompanied by either the Mother or a helper when going out.

143.  ILB is now 11 years old.  Her present activities will be different from 5 years ago when she was 6 years old.  With her present timetable of ECA, and her travelling, it does not seem like she would have all that time for parties and eating out, nor would she want the kind of toys a 6 year old would want.  On the other hand, Ocean Park, Ryze and Verm etc, eating at Wildfire and Zuma can be expensive.  Also, at the trial, the Mother said she had bought tickets to take ILB to Cirque du Soleil and those tickets were not cheap.  This item also includes presents to ILB, and in my view should include the puppy the Mother bought for ILB for her birthday in 2017 for HK$18,244.44[41]. Also, according to the Mother, Mr H had paid for a trampoline and a ping pong table for ILB.

144.  According to the Official Solicitor’s report, ILB does not go out that much.  The Mother had said during the trial, that ILB may have dinner out once a week, but she would have lunches out over weekends.  I do find that there was sufficient evidence for the Mother to claim an increase of the previous budget.  Bearing in mind the lifestyle ILB is accustomed to, in my view, the amount should remain at HK$15,000 per month.

VI.   Holidays

145.  In her 2017 Form E, the Mother claims HK$48,268.36 per month for this item. 

146.  In Table 23, the purported expenses from Form E Documents was HK$53,775 during the Review Period, and the documentary evidence of actual payments was found to be nil.

147.  The Mother gave evidence that ILB would go away every Christmas to Austria for skiing with the Mother’s family and, as I understand it, in the past, ILB had gone on around the world business class ticket HK/LA, LA/Denver, Denver/Aspen, Aspen/London, London/Zurich, Zurich/HK, as Father had access at Christmas prior to ILB going to Austria.  I understand from the Mother’s evidence that the Father paid half of ILB’s business class ticket and the other half was paid by the Mother but I will consider the matter as to what the Father should pay again under the Reimbursement Summons.  Anyway, according to the Mother, the half share paid by the Mother for the two of them would be HK$105,000.  10 days of skiing in Austria with a private ski instructor cost €600 per day and they had to buy ski lift passes.  ILB’s hotel expenses were paid for by the Mother’s parents, but if ILB wanted to do anything in Lech, the Mother had to pay for it, and she said on average, the Christmas trip would cost €1,000 per day including the private ski instructor, and 10 days would be €10,000, and that for the Christmas holiday, ILB’s expenses would be about HK$125,000 or HK$130,000.  Then, for Chinese New Year, the Mother and ILB would normally fly to Aspen for about 9 days and the flights cost about HK$102,000 for the two of them and the private ski instructor cost US$1,000 per day including the ski lift tickets and that after skiing, ILB would go to the recreation centre with her nanny which cost HK$30 a day.  Then lunch of about US$80 and dinner of about US$150 every day.  For Easter, ILB would go again to Aspen for two weeks, and this would be about HK$200,000 plus.

148.  Anyway, according to rough calculations, the Mother’s evidence was HK$125,000-HK$130,000 for Christmas, HK$180,000, HK$190,000 for Chinese New Year, then Easter, another HK$200,000 plus. 

149.  The Mother also said for long weekends/half term breaks, they had been to Phuket, the Philippines, Vietnam, and the ILB’s expenses were about US$6,000 to Phuket or US$10,000 to Philippines/Vietnam including flights.

150.  The Mother also said they would go to Aspen or Europe during the summer.  ILB would be off school for about 7 weeks in the summer and that the airfares would be HK$105,000 to HK$110,000 for both of them, which was split between the Father and the Mother.  The Mother had also said that in the past either Mr C or Mr H had paid the expenses as such were not within her budget.  

151.  Based on the Mother’s above evidence, Mrs Remedios prepared an annexure of the Mother’s evidence (“Annexure 4”) which indicated the expenses for ILB was about HK$90,507.40 per month.

152.  As seen in ILB’s Immigration Department Travel Record[42], since the 2013 Order, she was away some 5 times during the latter half of 2013, 6 times in 2014, 8 times in 2015, 6 times in 2016 and 5 times in the first half of 2017.  The Mother said as the Father had ceased access since about October/November 2017, the Mother would have to pay for all ILB’s trips. 

153.  In the 2013 Judgment, I had allowed HK$240,000 a year for ILB’s trips on the basis that the access trips would be separately paid for by the Father under the Custody Order.  

154.  Having regard to ILB’s Timetable, in my view, 3 long trips and 2 short trips a year would be reasonable.  I am of the view that on average HK$100,000 per long trip and HK$30,000 per short trip, would be reasonable and this would be HK$360,000 a year, or about HK$30,000 per month.

VII.   “Clothing/shoes/accessories” and “Haircuts and other grooming”

155.  In her 2017 Form E, the Mother claims HK$4,000 per month for “clothing/shoes/accessories” and HK$1,100 for “hair cuts and other grooming”.

156.  According to Table 23, the purported expenses from Form E Documents was HK$9,547 for “clothing/shoes/accessories” and HK$16,414 for “haircuts and other grooming”, and the evidence of actual payments was HK$245 for “clothings/shoes/accessories” and nil for “haircuts and other grooming”.

157.  In the 2013 Judgment, I have allowed HK$12,000 per month for ILB’s hair/toiletries/clothes/shoes.

158.  The Mother said that ILB is now into fashion.  The Father had referred to the Mother shopped at “cheap discounted stores and outlets” for ILB[43]. The Mother’s evidence was that she bought clothes for ILB from Zara and Crewcuts, and that she had also sometimes paid cash.  The Mother said if about HK$2,000, she would pay in cash.  All in all, ILB is now 11 years old, even though the Mother did not explain during the trial in relation to haircut and other grooming expenses, ILB would obviously need hair cuts from time to time. ILB is now a growing girl, and even though her clothes may not be expensive clothes in the eyes of the Father, she would need new clothes, not only for going out but also sports clothes including ski clothes from time to time.  The Mother’s present claim of about $5,000 per month is reasonable.

VIII.   Other transport (driver and octopus)

159.  There was no amount in Table 23 for this item.

160.  Anyway, I have dealt with the driver, the petrol, Autotoll and Octopus expenses and other transport expenses under ILB’s “general expenses” earlier. 

IX.   Uniform 

161.  The Mother claims HK$800 per month in her 2017 Form E.  Table 23 indicated HK$1,680 for the purported amount and also the evidenced actual payment.  The Mother has said that ILB’s uniform has to be changed every two years, and the Mother has also said that the new school uniform is very expensive, but no documentary evidence has been produced.  Even so, HK$800 a month means HK$9,600 a year, and in my view should be sufficient.  I allow this amount.

X.   Pet expenses (two cats and two dogs)

162.  The Mother claims HK$10,000 per month in her 2017 Form E. 

163.  In Table 23, the purported expenses were HK$68,430 for about 23 months from 23 December 2015 to 24 August 2017 or HK$5,702.50 a month, and the evidenced actual payments were HK$54,465 or HK$4,538.75.  These payments included the remittance for the purchase price of the puppy of HK$18, 244.44[44]. Without this amount, the purported expenses were HK$50,185.56 and the evidenced actual payments were HK$36,220.56.

164.  In the 2013 trial, ILB was said to have two cats only and the Mother claimed HK$5,000 per month at the time.  The Mother’s evidence was that ILB was given a puppy dog for her birthday in August 2017, and that the other dog was bought by the Mother for ILB in Mongkok and they were both ILB’s pets.  As seen earlier, the purchase price for the puppy for ILB’s birthday was taken into account within the item “entertainment / presents (including presents to ILB) and parties etc”.  

165.  For recurring and ongoing monthly expenses on the pets, after considering the documentary evidence, and allowing some cash payments, I will allow HK$5,000 per month for this item.

XI.   Others

166.  The amount claimed by the Mother was HK250 in the 2017 Form E for PTA at her present school.  Table 23 showed a purported amount, which was the same for the evidenced actual payment of HK$23,610. During the trial, it transpired that the Father had paid this amount.

167.  The Mother has claimed that the Father should reimburse her and/or to pay for ILB’s psychologists/counselling fees/Official Solicitors’ costs which were incurred as a result of order/s made by Judge Melloy in the Family Court proceedings relating to the ongoing problems of ILB’s access.  The Mother did not issue a proper summons to seek such reimbursement/payment.  I understand that Judge Melloy has ordered that such costs should be shared equally between the Father and the Mother.  To allow the Mother what she seeks would mean that the Father ends up paying for the entirety of these fees and costs.  This would appear to be contrary to the intention of Judge Melloy. I will not grant the order as sought by the Mother.

XII.   Total of ILB’s Personal Expenses 

168.  The total of all the above ILB’s personal or direct expenses comes to $74,300 which I will round up to a budget of $80,000 per month.  In other words, the amount I previously ordered remains to be in my view a reasonable budget.

The 9 disputed issues under the Variation Summons in the Scott Schedule

I.   Issue 1 and Issue 2 – whether the Mother has applied the entirety of payments from the Father towards ILB’s maintenance and whether there should be any reimbursement

169.  The Father’s case is that the Mother has not applied the entirety of the payments towards ILB’s maintenance.  There is no sufficient evidence that the Mother has not applied the entirety of the payments towards ILB’s maintenance save that she has said since August 2017.  She has applied the amount towards her legal costs.  However, I find there was no sufficient evidence to support what she said.  I will come to reimbursement later.

II.   Issue 3 and Issue 4 – The Mother’s indebtedness to Mr C and if any whether such indebtedness was applied towards ILB’s maintenance

170.  As for whether the Mother’s alleged indebtedness to Mr C, the Mother has not satisfied this Court that the amount allegedly due to Mr C of US $7,336.524 is repayable by her or that Mr C is demanding repayment.  In any event, I find there was no sufficient evidence that the Mother had to borrow from Mr C for ILB’s expenses that were not covered by the periodical payments from the Father.

III.   Issue 5 – level of maintenance ILB now requires

171.  As seen above, I find a reasonable budget for ILB is now a total of $121,000 per month, as follows: -

General Expenses      HK$41,000

Personal Expenses     HK$80,000

IV.   Issue 6 – whether it is more appropriate for the Father to settle ILB’s ECA direct

172.  Under the 2013 Order, the Father has given an undertaking to pay for ILB’s school expenses direct to her school.  In the amended ECA Summons, the Father seeks, amongst other orders, the following:

(i)   Upon the Father’s undertaking to the Mother and to the Court to pay for ILB’s tuition and ECA expenses to the tutors and activities direct upon production of invoices until further order, the Suspension Order be varied to the extent that the monthly amount of HK$140,000 referred to therein payable by the Father to the Mother be reduced to HK$125,000 (sic);

(ii)   The Mother to account for the money she had taken from ILB’s financial support to pay for her legal bills and to reimburse such sum of money to the Father;

(iii)   The Father to pay the tutors/coaches the ECA directly

173.  The Father sought to pay the ECA tutors/service providers direct as he was worried that ILB’s opportunity to attend the ECA would be deprived because of the Mother’s “cut backs”.  Although the Father calculated the ECA expenses to be HK$11,558, he is prepared not to place any ceiling if he is to pay such expenses direct.  The Father did not object to the Mother to continue her role in choosing and scheduling appropriate ECA for ILB.

174.  The Mother opposed to this proposal and said that the Father was simply trying to gain control over her and ILB.

175.  As seen in the 2013 Judgment, the Father also undertook to pay for ILB’s ECA direct but this was not accepted by the Mother.  I did not accept the Father’s then proposal and had said in the 2013 Judgment that as the Mother had always been the parent who had organized those tuitions/activities for ILB and practically speaking, I was of the view that it was best for such items to continue to be paid by the Mother out of the budget for ILB[45].

176.  The Father does not live in Hong Kong.  Further, he has not sought access to ILB since October/November 2017 and does not have as close a relationship with ILB as does the Mother.  In view of the past disputes over ILB’s access and expenses, I am of the view that it is in ILB’s best interest for the Mother to continue to be responsible for payment of her ECA expenses out of the budget allowed as after all, the Mother has been ILB’s primary carer since she was born and from all accounts, they have a very close relationship.

177.  However, it appears that there has been a further change of circumstances after ILB started at her new school at end of August 2018. According to letters sent by the Father’s solicitors to the Court, it appears that most ECAs are now organized by the new school and the costs of such ECSs have been included in the school invoices, which the Father said he would be paying direct to the new school.  In the circumstances, the budget I have allowed earlier for ECA may have to be adjusted.  There was however no evidence from the Mother.

178.  I am therefore of the view that the ECA Summons should be adjourned to a direction hearing to be fixed, of estimated length of hearing of 60 minutes.  However, in the meantime, the Father should continue to pay the amounts ordered herein, until further order, and any overpayment can be adjusted upon the determination of the ECA Summons.

V.   Issue 7 – of the monies paid by the Father to the Mother as set out in the Reimbursement Summons, how much ought to be reimbursed

179.  This will be considered under the Reimbursement Summons

VI.   Issue 8 – what reasonable expenses which have not been covered by the Father and are reasonable for him to pay

180.  The new budget for ILB’s maintenance has been set out above.  So far as membership to private members clubs such as the Aberdeen Marina Club and Hong Kong Country Club, there was no evidence that ILB could join in her own name as a member in her minority.  It appears that ILB has enjoyed the facilities at those clubs even though the Mother is not a member.  As for a private ski instructor for ILB, this has been taken into account as part of her holiday expenses. 

VII.   Issue 9 – should the Mother be expected to contribute towards ILB’s expenses through any income

181.  In her 2017 Form E, the Mother disclosed income of HK$3,083.33 per month.  The Mother was cross examined on an amount in her bank statement which was paid to the Hong Kong Inland Revenue on 17 March 2016[46]. The Mother explained that she has a real estate licence and that she did a one off real estate deal to “house” a neighbor and earned an income.  It is further the Mother’s evidence that she currently has no income and is occasionally invited to various global events where her expenses are paid but she does not receive any income for these trips.  There is no sufficient evidence that the Mother has been in receipt of a regular income of a significant amount which this Court should take into account.

182.  In any event, even if the Mother were to be ordered to contribute, this would be in the proportion that her income bears to the Father’s income.  Since the Father has not filed any Form E, his income cannot be ascertained.  

The Variation Summons: conclusions

183.  In the Variation Summons, the Father first sought a variation downward to HK$80,000 per month, and later at the trial amended to seeking a variation downward to such a figure as the Court thinks fit.  In the ECA Summons, he was seeking a variation downward to HK$125,000 per month, and the ECA Summons has remained unamended.  Then, in Mrs Remedios’s closing submissions, various figures were proposed, based on (i) ILB’s SJE figures without any contribution for general expenses and if ECA to be paid direct by the Father, or (ii) ILB’s SJE figures + ILB’s apportioned general expenses and if ECA to be paid direct by the Father.  The figures proposed by the Father ranged from about HK$12,137.31 per month to about HK$34,337.52 per month.

184.  I find these proposed figures in Mrs Remedios’s Closing Submissions are far too low and not reasonable.  Even though the Mother’s evidence has been unsatisfactory and she has failed to produce sufficient supporting documentary evidence for her claims, ILB’s interests should not be affected by her mother’s failure.  That ILB is accustomed to a high lifestyle has been mentioned by this Court earlier, and ILB is entitled to be brought up in circumstances which bear some sort of relationship to the Father’s current resources and the Father’s present standard of living, which is by all accounts a high one.  

185.  During the trial, when being asked about ILB’s expenses, the Mother did have an outburst saying that she wanted to end the trial and to walk out of the Court room immediately and said the Court could simply order her nothing.  This Court had allowed her time to calm down, and to give the parties time to discuss whether they could their continuing legal battle. Unfortunately, this was to no avail.

186.  Having considered all the circumstances of this case, and the best interests of ILB, in my view, upon the Father’s undertaking to continue to pay upon receipt of school invoices, direct to ILB’s school for any of ILB’s tuition expenses invoiced by the school, and upon the monthly amount of HK$150,000 for the housing costs of ILB being suspended until further order, the amount of the non-housing part of the periodical payments of HK$140,000 per month (or its adjusted index-linked amount) should be varied downward to HK$121,000 per month. The amount of HK$121,000 per month shall be index-linked.

187.  Under the Suspension Order, the housing part of the monthly periodical payments for ILB were suspended in the interim from August 2017 onwards.  I am of the view that justice of the case requires that such suspension should take effect from after the Mother and ILB moved into Mr H’s house, namely from 1 March 2017.  As for the non-housing part of the monthly periodical payments, I am of the view that this should also take effect from 1 March 2017, since the main variation downward is in relation to ILB’s “General Expenses” in which I have taken into account the new circumstances after ILB move to Mr H’s house.

Reimbursement Summons

188.  The Father seeks:

(i) Reimbursement of HK$150,000 being monthly rental (housing costs) from March 2017 to 3 August 2017, totaling HK$750,000;

(ii) Reimbursement of HK$4,000 being monthly amount for utilities from March 2017 to 3^rd August 2017, totaling HK$20,000;

(iii) Reimbursement for overpayment of airfares in the sum of HK$543,181 for ILB over 9 access periods between 2012-2016.

Housing costs

189.  So far as the Mother’s position for reimbursement of the housing costs  portion of the periodical payments totaling HK$750,000, the Mother said she should not be required to reimburse the Father as in the Litigation Funding Decision, this Court has said that the amount could be a “buffer” for the Mother to use[47].

190.  I had referred to the HK$750,000 being a “buffer” in the Interim Decision for extra cash for the Mother in the event that the monthly sum of $140,000 was indeed found to be insufficient to meet ILB’s expenses in the interim to be use.  However, it was not the Mother’s evidence that she had in fact needed to use the HK$750,000 whether towards her legal costs or towards ILB’s expenses.  Instead, she said she used the monthly payments of HK$140,000 from August 2017 onwards for legal costs.  As mentioned earlier, and as seen earlier in her HSBC Premier account statements for August 2017, she had some HK$1.6m in her bank account, which meant that she did not have to use the HK$750,000 to pay the initial amount of costs on account of HK$400,000 to Messrs Withers nor was there evidence she had used it on ILB.

191.  In the circumstances I see no reason why the Mother should not reimburse the Father the amount of HK$750,000.  I order her to reimburse the amount within 90 days.

192.  The Father has not sought reimbursement of any amounts overpaid by him in the non-housing part of the periodical payments.  In light of the new payments taking effect from 1 March 2017 credit has to be given to him for any overpayments since 1 March 2017.

Utilities

193.  As for “utilities”, in the 2013 Judgment, I took a broad brush approach and allowed HK$12,000 per month for a number of items and the amount for “utilities” were not separated or singled out.  Mrs Remedios did not make any submissions on reimbursement of utilities or suggested an amount.  In any event, even though there was no need for the Mother to pay for utilities such as water/electricity/gas/management fees, she had included under this item other expenses not claimed by her in 2013. 

194.  Having considered the above, I will not order any reimbursement over utilities.

Airfares

195.  Under the Custody Order made by Judge KW Wong, the Father shall within 21 days of being provided with an invoice by the Mother in relation to air fares or within 21 days of the end of access meet the expenses of the return business class air fares for the Mother and ILB where ILB is travelling for the purposes of access, but the Father shall not be obliged to meet ILB’s and the Mother’s air fares for their own holidays.  It is further provided that the Mother may take a holiday at the beginning or end of an access period between the Father and ILB, in such case, the Father must meet only the return air fare between the Mother’s home and the place at which access between ILB and the Father takes place, and the Mother shall be responsible for all hers and ILB’s other expenses[48].

196.  Mrs Remedios has set out in a table in her Closing Submissions of the access flights which the Father alleges he has overpaid and the amount of reimbursement he is seeking is HK$480,075 (“Table 6”).  The Father says that he should be reimbursed for the airfares he had over paid for 9 access periods set out in Table 6 as it had transpired that the Mother took ILB on holiday after the access instead of returning to Hong Kong.  The Father had filed his 23^rd affirmation in support of the Reimbursement Summons. The summons and his 23^rd affirmation were filed on 5 April 2018 and served on Messrs Withers while Messrs Withers were still solicitors on record for the Mother.    

197.  The Mother had not responded to the Father’s 23^rd affirmation.  In the Scott Schedule, she said ILB had flown business class or the equivalent on all access flights save for one occasion in June 2016 when ILB was invited to fly privately with a friend from Aspen to New York at no cost to the Father.  She had said when the Father finally reimbursed her for long overdue access flights, she would be able to reimburse the Father in full for this flight.  The Father has acknowledged an amount of HK$63,106 over the flight from Aspen to New York on that occasion had been reimbursed by the Mother and this amount has not been included in Table 6 but the Mother still owes him HK$74,408 over that trip.

198.  The 9 trips in Table 6 were between 2012 Easter – 2016 Summer.

199.  The Mother had said items (1) and (2) of Table 6 took place before the 2013 Order but the order providing for access and payment of airfares over access was the Custody Order, which in turn was a “mirror order” of an earlier order made in England before the Mother and ILB moved to Hong Kong.  The earlier order had not been referred to before this Court at the present trial.

200.  The Mother had also said proof of payments for items (3) to (8) in Table 6 had been provided to Judge Melloy[49].

201.  In the SJE Report, the SJE stated that there was no evidence provided by the Mother of actual payment for airfares for ILB save one invoice dated 11 June 2014 and although this amount was paid, it was not clear whether it was paid by the Mother or another[50]. The Mother had not challenged the SJE’s evidence. 

202.  However, my main problem with this summons is that I am not sure whether the parties’ interpretation of the provisions are correct.  On my re- reading of the Custody Order, according to my understanding, for those trips set out in Table 6, the Father needed only to pay the return business class airfares for the Mother and ILB, HK – (place of access) – HK.  In other words, take item (1), ILB went to Aspen with the Mother for access with the Father, thereafter she went with the Mother to Cabo.  Therefore, the Father should only need to pay return business class airfares for the Mother and ILB for HK-Aspen-HK, and anything extra would have to be paid by the Mother.  Thus, for item (1), if the Father had paid the return business class airfares for the Mother and ILB HK-Aspen-Cabo-HK, then the Mother should reimburse the difference to the Father.

203.  This would be the same for each of the 9 trips.  It is not what Mrs Remedios submitted, that the Father should only be responsible for paying one-way of the return business class tickets, or half of the price of the return business tickets as the Mother seemed to suggest.  In Exhibit WGL23-2 of the Father’s 23^rd affidavit[51], he had also claimed some of the travel invoices provided by the Mother were fabricated.  This is another matter.  However, the Father should know whether the Mother and ILB did in fact go to Aspen/Los Angeles for the Father to have access with ILB, and if they did, the Father would have to pay the return business class airfares for the Mother and ILB for HK- Aspen/LA- HK.

204.  On the evidence before this Court, I am not able to say whether the Father had overpaid or not.  In the circumstances, I will adjourn the part of the Father’s Reimbursement Summons for the overpaid airfares for a further direction hearing, estimated length of hearing of 60 minutes, and to be fixed together with the direction hearing for the ECA Summons.

The Mother’s CPI Summons  

205.  Under the 28.06.13 Order, the periodical payments were to be index-linked. 

206.  In the 2013 Order, the entire amount of the monthly sum of HK$290,000 was subject to the index-linked increases.  The Father did not seek any clarification at the time of the order, nor did he appeal against the 2013 Order.  Thus, pursuant to the 2013 Order, the entire amount of HK$290,000 per month should be index-linked from 5 October 2015.  In light of the suspension of the housing part and the variation downward of the non housing part of the periodical payments will take effect from 1 March 2017, any index-linked increased amount for the entire amount should be up until end of February 2017.

207.  As from 1 March 2017, the new periodical payments ordered herein shall continue to be index-linked.

208.  I will leave the parties to work out the shortfalls, which shall be paid by the Father to the Mother within 90 days, or such shortfalls can be set off by the Mother from the reimbursements ordered above by this Court or any overpayments made by the Father.

The Mother’s Education Fund Summons 

209.  The Mother’s case is that there had been issues with the Father refusing to pay for school deposits for ILB, and she therefore considered that the best way forward is for the Father to pay HK$6m into an education fund for ILB, which will be used to pay for all of ILB’s tuition fees, both secondary and tertiary[52].

210.  The then dispute between the parties was mainly over which school ILB was to attend for the school year commencing September 2018.  The Father’s position is that he has never defaulted payment on ILB’s education expenses and once the schooling arrangement of ILB has been settled, he will pay for the expenses as ordered.  The schooling arrangement has by now been settled, and since end of August 2018, ILB has been attending her new school.  The latest evidence showed that the Father was seeking a clarification of the amounts charged by the new school on the invoice and he has not yet paid the fees.  However, there is no sufficient evidence that the Father will not pay the school fees.  He should pay the fees forthwith if he has not already done so.

211.  Mrs Remedios submitted that the Court has no jurisdiction under s 10(2) of the GMO to order a lump sum for ILB’s education fund to cover ILB’s future education costs.  I accept that the Court has no jurisdiction under section 10(a) of GMO to order the Father to pay to the Mother a lump sum for ILB’s future education costs. However, it appears that Mrs Remedios may have misunderstood what the Mother is seeking, namely the Mother appears to be seeking an order under section 10(e) of GMO requiring the settlement for the benefit of ILB of a sum of HK$6m, namely setting up a trust fund for the future education of ILB.    

212.  In any event, whether this Court has jurisdiction or not, I see no sufficient grounds on the present evidence for the Mother to seek any education trust fund, as there is no sufficient evidence that the Father will not pay any of ILB’s future tuition fees.  Her summons is to be dismissed.

Conclusion 

213.  My orders are to the following effect:

(1) In relation to the CPI Summons, (i) the Father shall pay to the Mother the differences between the total of the periodical payments for ILB’s maintenance, namely a sum of HK$290,000 per month and the index-linked amounts; (ii) All differences/arrears shall be paid by the Father to the Mother within 90 days from the date of this judgment, with credits for amounts already paid.

(2) In relation to the Variation Summons, (i) the housing costs of HK$150,000 per month (or the index-linked increased amount)  shall be suspended as from 1 March 2017 onwards until further order; (ii) upon the Father’s undertaking to continue to pay ILB’s school fees invoiced by her school direct to the school, the non housing part of the periodical payments in the 2013 Order of HK$140,000 per month (or its index-linked increased amount) be varied downwards to HK$121,000 per month, from 1 March 2017 onwards until further order; (iii) the varied periodical payments shall be index-linked as from 1 March 2017.

(3) In relation to the Reimbursement Summons, (i) the Mother shall reimburse the amount of HK$750,000 in housing costs overpaid by the Father within 90 days from the date of this judgment; (ii) the Father’s application for the reimbursement of the “utilities” expenses of the non-housing part of the periodical payments be dismissed; (iii) paragraph 3 of the Reimbursement Summons ie the Father’s application for reimbursement of the “airfares” overpaid by him shall be adjourned to a further direction hearing of estimated length of hearing of 60 minutes. 

(4) In relation to the Father’s ECA Summons, this is to be adjourned to the same direction hearing mentioned above.

(5) In relation to the Mother’s Education Fund Summons, this summons is dismissed.

Costs 

214.  Although the Father has succeeded in varying the periodical payments downwards, the variation is not to the extent he seeks.  In my view, there should be no order as to costs of and incidental to the Variation Summons, including all costs previously reserved.

215.  In relation to the Reimbursement Summons, as part of this summons has been adjourned to a further direction hearing, costs are to be reserved.

216.  As for the ECA Summons, again, as this summons has been adjourned to a further direction hearing, costs are to be reserved.

217.  The Mother has succeeded with her CPI Summons, and the Father should pay the Mother’s costs of and incidental to this summons, including all costs previously reserved.

218.  The Mother’s Education Fund Summons is dismissed, and she should pay the Father’s costs of and incidental to this summons, including all costs previously reserved.

219.  All costs are to be taxed, if not agreed, on party and party basis, with certificate for one Counsel, if applicable.

220.  The above costs orders are orders nisi, to be made final after 21 days.