LO v. CHIU

[English Translation – 英譯本]
FCMC 2740/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 2740 OF 2006

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Judgment
(Variation of Maintenance)
(Education fees for Children)
(Security for Payment)
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Introduction

1. This trial concerns the various applications the petitioner (the mother) has made against the respondent (the father) for varying the financial provisions for herself and the two children. Pursuant to the initial order made on 12 June 2007, the father had to pay a monthly maintenance of $14,000 to the mother and $6,500 to each of the children, totalling $27,000. Thereafter, the court reduced the maintenance for the mother to the nominal sum on 28 April 2010 for the reason that the father had become unemployed. It also reduced the maintenance for the children to $5,000 each, totalling $10,000, subject to a review in 6 months’ time. In the review hearing, the mother maintained that she had doubts about the father’s allegation that he was unemployed. After hearing the matter, on 21 July 2011, the court upheld the varied maintenance order.

2. On 30 June 2014, the mother re-applied for variation of the maintenance order. She requested for (1) an increase of the maintenance for herself and the two children, (2) the payment of the surgery fees of the daughter and the orthodontic fees of the son by the father, (3) the overseas school fees of the two children, and (4) a security for payment. The father had remarried for many years and settled in the Mainland. He seldom returned to Hong Kong. The two children began to suffer from depression at the end of 2011 and 2012 respectively. Their studies were affected. The son had even quit school because of this since then. Both children wish to go overseas to pursue their studies. The son particularly lacks confidence in continuing his studies in Hong Kong.

3. The hostility the parties had towards each other remained unabated despite the passage of time. They still refused to give in on the questions of whether the father was still unemployed and whether he had exercised reasonable diligence in finding a job. The father at first opposed all the applications the mother made. But during the trial, they managed to put aside the hostilities they had towards each other and gave priority to the welfare of the children to have a sincere dialogue when matters regarding the future of the children were discussed. Knowing that the mother had limited financial capabilities, the father in the end gave up his initial position of refusing to contribute to the payment of the expenses relating to the overseas education. Apart from the monthly maintenance, he agreed to cash in an investment fund held in his name to pay for half of the school fees of the overseas education. But the father indicated that he was still unemployed and saw no reason why the total maintenance sum of $10,000 should be varied.

Background

4. The father and the mother are now aged 51 and 48 respectively. They were married in March 1995 and gave birth to two children during the marriage. The elder child, a girl, was born in December 1996. She is now 18 and plans to go to university next semester. The younger child, a boy, was born in September 1998. He is now 16 and had quit school at the end of 2011 while studying form 2. He repeated form 2 in the same school in the first term of 2013 but was unable to adapt.  During that time, he attended lessons intermittently and received treatment in hospital. He was in the end unable to complete the first term of school and quit school again. He has so far not resumed schooling.

5. The mother petitioned for divorce in 2005 on the ground of unreasonable behaviour. Thereafter, she submitted a fresh divorce petition in 2006 with the ground in support changed to one-year separation. During that time, the parties reached agreement regarding children’s arrangement. With the consent of the parties, the court ordered on 18 April 2006 that the parties were to have joint custody of the two children, with care and control to the mother and reasonable access to the father. The matter was adjourned to 24 July 2006 for financial dispute mediation. The parties failed to reach agreement in the mediation hearing. The court transferred the matter to another court for handling after making a decree nisi.

6. The court made a decree nisi on 19 October 2006 and adjourned the ancillary relief application of the mother to 20 November 2006 to be dealt with by Judge Levy. The father was absent in the 20 November 2006 hearing. The matter was further adjourned to 11 December 2006 for pre-trial review. In the 11 December 2006 hearing, the court gave directions in relation to the trial and set the matter down for trial with 3 days reserved. In the end, the matter was fixed for trial between 2 and 4 May 2007.

7. In the meantime, on 12 January 2007 the court heard the submissions of both parties at the hearing in respect of the mother’s application for interim maintenance. In the course of the hearing, the father produced exhibits R1 and R2. The father undertook to pay all the billed expenses evidenced by the invoices the mother had produced and listed out in exhibit R1 as per her request. Upon the undertaking of the father, the court made an interim maintenance order. On 27 February 2007, the mother complained to the court by way of affirmation/affidavit that the father had not performed according to the undertaking and he had taken no heed of the requests for payment that she had made. She also took out a summons to ask for the directions of the court. On 7 March 2007, the father entered into an agreement to dissolve the employment contract with the employer to take effect in the same month.  According to the agreement, the father was to receive a total of $822,956 to be paid in 12 instalments from 29 March 2007 as full and final settlement.

8. In respect of the ancillary relief application of the mother, Judge Levy gave judgment on 12 June 2007 after trial (the 2007 trial). After dividing the matrimonial assets, the judge further ordered that the father to pay the mother and the two children monthly maintenance in the total sum of $27,000. The assets in question were two properties in Hong Kong: unit 16H and unit 3G (with a car parking space). Unit 16H was given to the mother and unit 3G with the car parking space to the father.

9. On 14 June 2007, the court made a decree absolute. Both parties appeared before the court again on 27 July 2007 to deal with the question of costs. In that hearing, the mother gave the undertaking that she would not sell unit 16H before each of the children had reached the age of 18. The father gave the undertaking that he would continue to pay the premium of the two insurance policies relating to the children before each of them had completed full-time education.

10. The mother and the two children lived in unit 16H until August 2010 when they moved to an accommodation which was near to her maiden family and of a lower rental.  She arranged to lease out unit 16H until 2012 when she sold it. In March 2007, the father dissolved the employment contract he had with his employer. But two months after the July 2007 hearing, in September 2007, the father found a new job in the Mainland. He worked in the job until November 2008. The net annual income was RMB¥579,020 which was paid in 13 monthly instalments. Besides, he enjoyed provident fund benefit calculated on the basis of a monthly salary of HK$48,000. In other words, in the 6 months between September 2007 and February 2008, he received from his old and new employers at the same time a sum in excess of HK$110,000 per month in total.

11. During that time, in May 2008, the father, in breach of his undertaking, cancelled the aforesaid two insurance policies relating to the children and received their cash value. The mother pursued the father in respect of this. In November 2008, the father dissolved the employment contract he had with his employer and collected RMB¥39,825 as compensation.  The pursuit by the mother was fruitless. On 10 December 2008, she filed an affirmation/affidavit to ask the court to make an order that the father should perform the undertaking he had given. On 7 January 2009, she formally took out a judgment summons in respect of this application.

12. The judgment summons was served on the father on 21 February 2009. Thereafter on 3 April 2009, the father took out a summons to request that the question of financial provision for the mother and the two children be resolved once and for all so that he would not have to make monthly periodic maintenance payments. On 29 April 2009, the mother issued an ancillary relief notice to oppose resolving the question of financial provision for herself and the two children by way of a lump sum payment. She asked the father to increase the maintenance payments and to pay for the orthodontic fees of the daughter.

13. The father had failed to pay the mother her monthly maintenance of $14,000 since June 2009.  The efforts the mother made to press for payment were in vain. She issued a judgment summons on 10 July 2009. The series of applications made in 2009 were dealt with by Judge Lok.  After trial (the 2010 trial), the court ordered on 28 April 2010 that the maintenance for each of the children be reduced to $5,000, making a total of $10,000, to be paid out of the rental income obtained from leasing out unit 3G and its parking space; the maintenance for the mother be changed to that of a nominal sum, subject to review in 6 months’ time. It was because it was felt that the father’s unemployment should only be a temporary condition. The old maintenance order was varied to clear the father of all maintenance payments owed in arrears.  The judgment summons that demanded the husband to perform the undertaking he had given to pay for the insurance premiums and to pay the maintenance owed to the mother was dismissed. The court further ordered on 19 July 2010 that the father should pay $46,000 for the orthodontic fees of the daughter and adjourned the matter to 2 November 2010 for mention to review the matter. In August 2010, the mother and children moved to rented accommodation and put unit 16H on the market for leasing out so as to make use of the difference in rentals to pay part of the daily expenses. They nonetheless still had to borrow from family members to make ends meet.

14. The maintenance review hearing was dealt with by Judge Wong. The trial was set down for 12 July 2011. During the time, on 7 June 2011, the mother took out a summons to ask the father to pay the son’s study tour fees of $22,000. After trial (the 2011 trial), in view of the fact that the father was still unemployed, Judge Wong ordered on 21 July 2011 that the varied maintenance order to remain unchanged, and that the father had to pay $10,000 of the study tour fees. Besides, he called for a Social Welfare Report to report on matters relating to the day-to-day care and control and access of the children as the father complained that as a parent having joint custody of the children, he had been unable to take part in the making of important decisions regarding the children.

15. During the 2010 trial, the father testified that he was living in Shenzhen. His current wife was pregnant and he expected the monthly expenses to increase. In the 2011 trial, he testified that as there was no money to pay for childbirth, decision had been taken to abort the foetus. However, the current wife was pregnant again with the expected date of confinement to be at the end of the year. In order to save money, the whole family had moved to live in the family home of the wife in the North-East of Mainland China. The father later told the Welfare Officer that his current wife had a miscarriage in August 2011.

16. According to the Social Welfare Report obtained in 2011, both children showed symptoms of emotional distress.  Those of the son’s were more serious. Besides, the mother was minded to send the children overseas for education. Both parents loved the children. However, the perennial disputes they had over money as a result of the divorce not only dragged the children into the dispute of right or wrong, but also made it difficult for the parents to build up an effective cooperation relationship to exercise joint custody of the children. By the end of 2011, the son had already quit school because of the emotional problem he suffered from. On learning that it was the intention of the mother to arrange the children to go overseas to study, the father made it clear that he would not share the burden of the related expenses, but agreed to allow the two children to leave Hong Kong for overseas education. On 22 February 2012, Judge Wong granted leave to the mother to arrange for the departure of the children from Hong Kong for education overseas, and withdraw the undertaking she had given not to sell unit 16H. The mother later sold unit 16H and obtained $6,653,500.  After settling the debts, the balance of the money was used on investing in funds and meeting daily expenses.

17. In March 2012, the son was diagnosed to be suffering from depression and had to receive medicinal treatment. But the son resisted treatment. The plan of going overseas for education was therefore shelved.  The wife had originally intended to send the daughter to the United States between September 2012 and June 2013 as an exchange student to learn English and had obtained the permission to leave Hong Kong on 16 April 2012. But the daughter had likewise shown symptoms of serious emotional distress at the end of 2012. She was not willing to go out and go to school. The matter dragged on until March 2013 when the mother took the daughter to a doctor who diagnosed her to be suffering from depression. Fortunately, the daughter was willing to receive medicinal treatment. She resumed going to school in September, but refused to do so in December 2013 when she came across a bully at school. In March 2014, on medical advice, the mother sent the daughter to another school. During the trial, the daughter was preparing for the Diploma of Secondary Education Examination to be held in April 2015 to try to get a place in a course of an overseas university. But the daughter had no confidence in her own grades; she was prepared to do a foundation course before enrolling in a degree course.

18. During that time, the son had not been going to school and resisted medicinal treatment. Fortunately, he stopped resisting on seeing that his sister was willing to receive medicinal treatment. In the end, the son attempted to repeat Form 2 in the original school but his condition was unstable. He was once admitted to hospital for treatment. Upon discharge from hospital, he went to school intermittently but had stopped going to school since the end of the first term and had not resumed doing even now. Both parents indicated that the standard of English of the son was good but that in the other subjects fell short of the required standard for a form two student. The son now spends most of his time at home playing computer games and lives a nocturnal life with rare contact with sunlight. He has no confidence to continue his studies in Hong Kong and is not willing to repeat the same grade in Hong Kong. He hopes to pursue an overseas education and believes that he can adapt to it. He finds repeating form 2 or form 3 acceptable.

19. In the notice applying for ancillary relief issued on 19 May 2014, the mother asked that:

1) The maintenance for the children be increased from $10,000 to $20,035;

2) The maintenance for her be amended from nominal to one of $28,092;

3) Payment be made for the surgery fees of the daughter’s tonsils operation (the balance of $1,769 after reimbursement by the insurance company);

4) Payment be made for the son’s orthodontic fees of $46,500.

The mother’s application was set down for hearing on 30 June 2014. I gave relevant directions regarding the said application and adjourned it for mention on 17 October 2014. I gave further directions regarding discovery in the hearing held on 17 October 2014 and adjourned the case to 31 December 2014 for mention. The father indicated that he would not attend the 31 December 2014 hearing. I had already reminded the father to attend the hearing and indicated that the matter would be set down for trial in the upcoming hearing.

20. During that time, on 17 November 2014, by means of an affirmation/affidavit, the mother asked the court to order the father to pay for all expenses relevant to the overseas education of the children. Although I had already reminded the father that he should attend the 31 December 2014 hearing, he chose to be absent. Bearing in mind that the mother was planning to move the whole family to a foreign country in the following school term as the children would both be studying overseas, I asked the mother if she wanted security for payment. If she did, she had to apply by taking out a summons. On 31 December 2014, the mother took out a summons to apply for security for payment with unit 3G as the security for the maintenance of the children and all expenses relating to overseas education.

21. Both parents took the view that the son must go back to formal schooling. The father changed his original position during trial. Not only did he agree to let the two children study overseas, he even agreed to share the burden of the school fees in order to make the dreams of the children to study overseas come true. In particular, he wanted to give the son a chance to start afresh. During the trial, the parents even reached agreement that during the time the father was in Hong Kong, they would work together to encourage the son to sleep and work at fixed hours, to begin leading a regular life, to go out in the sun, and to revise the lessons all over again with the guidance of the father to prepare for further studies in future.

The law

22. Section 11 of the Matrimonial Proceedings and Property Ordinance (Cap 192, Laws of Hong Kong) makes provision for variation, discharge, etc. of orders for financial provision. In particular, it states:

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

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(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.”

23. In HCTT v TYYC [2008] HKEC 1105, having considered a number of relevant authorities and section 11 above, the Court of Appeal explained how the court should exercise its discretion in varying an existing order under section 11 (whether or not it was made with the consent of both parties). Although the power to vary is unfettered, the original order should not normally be varied unless there had been a material change in circumstances. The relevant paragraphs are quoted below:

“13. (As per Hon Tang VP) In Lewis v Lewis, the English Court of Appeal was concerned with the argument that according to Foster v Foster [1964] 1 WLR 1155, even when there has been a change of circumstances:

“…the correct approach was to start from the original order and see what changes had taken place since the original order, and make adjustments roughly in proportion to the changes, if that were possible”

14. In that context Ormrod LJ said that the power of variation under section 31(7) of the Matrimonial Causes Act 1973 (on which our section 11(&) (sic) is based), was conferred with the intent that:

“…the court should have as unfettered a discretion as possible to deal with the situation as it is when the matter comes before it. I am sure it is not the intention of Parliament in any way to trammel the discretion by any kind of technical reasoning or technical grounds.”

15. But as Garner v Garner [1992] 1 FLR 573 shows that does not mean that the earlier order, whether made by consent or not, carries no weight. How much weight should be given to the earlier order must depend on the circumstances.  Cazalet J said in the English Court of Appeal:

“Almost invariably, an application to vary an earlier periodical payments order will be brought on the basis that there has been some change in the circumstances since the original order was made; otherwise, except in exceptional circumstances, the application will, in effect, be an appeal. If an order is not appealed against, or is made by consent, then the presumption must be that the order was correct when made. If it was correct when made, then there will usually be no justification for varying it unless there has been a material change in the circumstances. However, because of the impact of continuing inflation, because children grow older and cost more to support and because, for example, the cost of living in its increase may hit one party harder than another, it will usually follow that, if time has passed, there will inevitably have been some changes in the circumstances, and in particular in the financial circumstances, of the parties concerned.

Following Lewis v Lewis, by which decision this court is bound, a court on the hearing of an application to vary is fully entitled to look at all the relevant matters set out in s.25 of the Matrimonial Causes Act 1973. On occasions, the court may be slow to accede to an application to vary a consent order; not least because the parties’ solicitors might otherwise be deterred from either seeking to negotiate such a provision or to achieve finality.  Another factor which may influence a court will be the time that has passed since the original order was made.  If an application consequent on an order is brought very soon after that order has been made, the court, in normal circumstances, is likely to attach more weight to the earlier order than if it had been made some years previously.  Likewise, the court would expect to pay full regard to any special terms agreed between the parties at the time the original order was made – as, for example, when endorsements on briefs or contemporaneous correspondence show that an agreed order has, for some particular reason, been set at an artificially low figure.  Shortly stated, the court must decide what weight it should attach to the original order and all the surrounding circumstances. However, once an application to vary is before it, the court is fully entitled to make an order considering all the circumstances afresh, paying such regard to the old order as may be thought appropriate.”

16. Thus, although the jurisdiction to vary is untrammelled, normally the earlier order would not be varied unless there has been a material change in circumstances.

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49. (As per Hon Lam J) Even though we are only dealing with a consent order, I also agree with the observations of the Vice President regarding the approach of Cazelet J in Garner v Garner [1992] 1 FLR 573 on applications for variation generally.  Application for variation should not be pursued when in substance the grounds advanced for variation tantamount to re-argument of the same issues that have been argued before the court before the making of the original order.  If a party is aggrieved by the terms of the original order, the proper course is to appeal against that order.”

24. Also, in AEM v VFM (No.2) [2013] 2 HKLRD 144, the Court of Appeal agreed with and quoted Jackson’s Matrimonial Finance and Taxation (8^th ed.), Ch,3.147 – 3.157 when it dealt with a similar application:

“The modern approach is that the court has to consider all the circumstances of the case, and the court is not hide-bound by the existence of a previous order; the court must look at the matter de novo and make an order that is reasonable in the current circumstances.  The usual basis on which a variation of an order for periodical payments is founded is that there has been a material change in the circumstances of one or both the parties.  On application for revision, the court, as it was put in one case, has “regard to all the circumstances of the case in the same manner as if those circumstances had existed at the date of the original order”.  Even before White v White and Miller v Miller; McFarlane v McFarlane the court could increase an order for periodical payments beyond the payee’s strict budgeting requirements if the payer’s circumstances justified it.  Now, as a result of those cases, it is clearly established that a payee’s “reasonable requirements” are “no more a determinate or limiting factor on an application for a periodical payments order than they are on an application for payment of a lump sum’, and those words apply just as much on an application to vary a periodical payments order.”

The disputes

25. In principle, the 12 June 2007 decision of Judge Levy was to divide the total family assets of about 7.8 million dollars in net value equally between the parties to the marriage.  But as the father was much more earning capacity than the mother, she also ordered the father to pay the mother and the two children maintenance in the total sum of $27,000. The father asked for variation of the maintenance on the grounds of unemployment, re-marriage and the imminent confinement of his current wife. The court allowed his applications in the 2010 and 2011 trials and ordered that he should pay a reduced sum of maintenance of $10,000 in total per month. This sum was equal to the rental income he was receiving at that time. The father claims that he is still unemployed and is relying on his current wife for living. It is very difficult for him to find a job in the Mainland at present. If he is to find work in Hong Kong, he has to make at least $35,000 each month to make ends meet. The mother is doubtful regarding the father’s claim that he is still unemployed. She thinks that it is impossible for the father not to be able to find a job given his academic qualifications and experience. She submits that the father’s claims are not to be believed.

26. The mother claims that the varied maintenance is in fact not enough to cover the daily expenses each month. In order to meet the expenses, she has to resort to borrowing. She had at one time hoped that the rental income of unit 16H could help cover the shortfall, and in the end, in order to look after the needs of the two children, she sold unit 16H to get cash after obtaining leave from the court. After clearing the debts and setting aside a portion as stand-by cash, she invested the proceeds obtained from the sale of the property in funds that paid periodic interest to meet daily expenses, but the capital value of these interest-yielding funds dwindled after the interest payments. The father takes the view that the expenses of the mother are not reasonable and she should cut back on them. Besides, he feels that with the interest she now collects and the monthly maintenance, the mother has enough to meet all expenses. The investment funds the father currently holds do not yield periodic interest payments; all growths, if any, will only be reflected in the capital value. The father gave no reply regarding the dwindled capital value resulting from the present arrangement the mother makes in order to pay for the living expenses.

27. The mother claims that she has already complied with the directions the court had given and made full disclosure regarding her financial position, expenses and assets. She feels that, the husband has, on the contrary, refused to disclose the whereabouts of the Chinese investment funds and European investment funds distributed to him after the 2007 hearing and the documents relating thereto. The refusal is for the purpose of hiding his assets. The father objected to this and said that he had not made any securities/investment funds transactions since July 2011.

28. The mother plans to settle overseas with the children to allow them to study overseas. This move will however incur huge educational expenses. The mother thinks that apart from the aforesaid concealed assets, the father still owns unit 3G (with a car parking space), he should pay for the expenses relevant to the children’s overseas education. During the trial, the father indicated that he was aware of the children’s wish to study overseas. He considered education important. Although it involved risk, he did hope that it would motivate the children to work hard in their studies. But he only agreed to bear the burden of half of the school fees. Besides, as no decision had been made regarding which school the son would go to, the parties therefore each made his/her own proposal to cap the upper limit of the monthly school fees of the son on a 10-month per year basis at $15,000 (mother’s proposal) and $12,000 (father’s proposal).

29. Further, the mother had taken out medical insurance for the daughter, but the daughter’s surgery fees had not been fully reimbursed. She therefore asked the father to pay the balance.  Besides, she arranged the son to undergo orthodontic treatment on the recommendation of a dentist. As the maintenance the father paid was not enough to meet the day-to-day needs, she asked the father to pay for the relevant orthodontic fees. The father objected to this on the ground that he had already paid for the maintenance of the children. Besides, the orthodontic treatment was neither essential nor urgent; it could be done when the son has the financial capabilities to do so.

30. The father does not think that there has been material change of circumstance in the present case. He feels that the varied maintenance orders should remain. Therefore, the disputes in the present case are:

(1) Is the father still unemployed? If so, why?

(2) Has the father concealed his assets or other sources of income?

(3) What are the needs of the parents and the children?

(4) Is there any reason to justify changing the present maintenance arrangements?

(5) If there is, what is the reasonable level of maintenance?

(6) What arrangements should be made regarding the expenses relevant to the overseas education of the children?

(7) Should the father pay for the balance of the daughter’s surgery fees?

(8) Should the father pay for the orthodontic fees of the son?

(9) How should the question of legal costs be dealt with?

Assessment of evidence

The father’s capability to work

31. The father is now aged 51. He has a bachelor degree and 3 master’s degrees from three universities in Hong Kong and worked for various multi-national and listed companies in posts dealing with finance and management. He has also been in management posts of logistics and sales businesses. Between September 1998 and mid-December 2004, the father worked as a director of E Limited Company. His total income from 1 April 2004 to mid-December 2004, including all allowances, double pay, bonuses, share option of the company etc, was $1,888,964. His basic monthly salary was around $42,000. Of it, about 1.4 million dollars of the final payment was made in mid-December 2004. After waiting a few months for employment, he was employed by M Limited Company in mid-June 2005 with a basic salary of about $67,000 per month. The father worked for M Limited Company until March 2007 when he entered into an agreement with the employer to dissolve the employment contract to take effect in the same month. According to the agreement, the father would receive a total of $822,956 to be paid in 12 monthly instalments from 29 March 2007 as final settlement. In other words, the father would have a steady income equalled to that of the basic salary of $67,000 in the year after leaving the Company. In September 2007, the father found a job in Shenzhen, the net annual salary was RMB¥579,020 (after deducting the mainland salary tax) to be paid in 13 months. Besides, he enjoyed provident fund benefit calculated on the basis of a monthly salary of HK$48,000. The father worked in Shenzhen until November 2008. He claims to be unemployed thereafter.

32. Before 2008, the father was able to find a new job each time after he had left an employment. And the financial position in the period of time waiting for another job was not affected by the quitting of the former job. It only took the father half a year to find a new job after he had collected the final payment of around 1.4 million dollars in December 2004 from E Company Limited, an amount that was more than his yearly basic salary.  In March 2007, the father had already found a new job six months after collecting about $820,000, an amount equalled to his yearly annual salary, from M Company Limited as final settlement.  In the six months from September 2007 to February 2008, the father received more than $110,000 each month from the old and the new employers respectively, and during that time, he had already moved to Shenzhen to live.

33. Judge Lok, the judge dealing with the 2010 trial, also commented that the arrangement was not very satisfactory when he made the order to reduce the maintenance. But he based his decision on the facts that the father had always been a person who was keen on advancement and that there was another child was on the way, he did not believe that he would deliberately avoid employment in order to dodge maintenance payment. Judge Lok was of the view that the father should have the opportunities to work and to earn money and therefore ordered that the order be reviewed in six months (see paragraphs 8, 19, 27 of his judgment dated 28 April 2010). Judge Wong, the judge dealing with the 2011 trial, noted that the father possessed good academic qualifications, had worked at senior management level of an extremely well established company, had a wife who was pregnant again and needed him to work to support the living of the new-born child.  Although he did not lower his requirements to find a mid/low level job, Judge Wong felt that the chances of him inducing harm to himself to refrain from looking for a job to hurt both himself and the mother were relatively small. The judge also found that there was no prima facie evidence whatsoever to show that the father’s claims of him being unemployed and not having begun any business of his own were lies. Therefore, the judge accepted on the balance of probabilities that the father was unemployed (see paragraphs 27, 34, 35 of his judgment dated 21 July 2011).  The three judges who had dealt with the present case had each affirmed that the father was keen on advancement and capable. Both Judge Levy and Judge Lok took the view that the father should be able get a job within a short time. Judge Wong also thought that the father should lower his requirements as soon as possible to find a mid/low level job.  Judge Lok and Judge Wong had each further considered that as a baby was on the way to the family in the second marriage of the father, they believed that the father would not act deliberately to cause himself self-induced harm in not looking for a job.

34. According to the evidence of the father, he married his current wife in January 2009 after he had become unemployed.  If that was the case, to the wife, the father should be someone holding a managerial post in a company earning about ¥45,000 a month.  At the beginning of his second marriage, he lived in Shenzhen. In 2011, he and his wife moved to the wife’s maiden home in the northeastern part of Mainland China. The address is unknown. The evidence shows that the father had always been the breadwinner of the family during the first marriage. The income of his current wife is limited. If the father had been unemployed since 2009, why did he and his wife plan to start a family? The father testified in the 2010 and the 2011 trials that his wife was pregnant and that they planned to start a family. The wife underwent an abortion in her first pregnancy due to the lack of financial means. That being the case, how come the wife became pregnant again and was prepared to give birth to the baby before he had found a job? Even if the current wife finds it acceptable for her highly-qualified and well-experienced husband to stay at home to wait for a new job, but the father had in his earlier affirmations/affidavits repeatedly mentioned how painful and conscience-stricken he was over the two abortions and miscarriage that the mother had gone through. If it was indeed true that the current wife underwent an abortion in her first pregnancy due to financial reasons as the father alleged, he should have tried even harder to look for a job to be responsible to the family. That the second pregnancy of the current wife ended in miscarriage was not expected. The father testified during the 2011 trial that he had tried to look for work through different means and had made 230-250 attempts to seek employment in the 3 years after he had become unemployed. But all these attempts were in vain for the sole reason that he could not lower his requirements to look for mid/low level of work. I accept the findings of fact Judge Wong made on the balance of probabilities on 21 July 2011, but do not think that the father could rely on the  fact that Judge Wong accepted that he was unemployed in July 2011 to support his claim that he is currently (March 2015) still unemployed. Each trial should be decided on an overall consideration of all the evidence presented in the trial.

35. The father testified that he kept separate books for his Mainland and Hong Kong accounts. However, we only have his words on everything he claims to be about the life and finances in the Mainland. During the trial, the father testified that the last two jobs he had were introduced to him by a friend. But according to his affirmation/affidavit dated 25 July 2014, he found the last job from a recruitment advertisement placed in a Hong Kong newspaper. With his academic qualifications and experience in Maths, English and Business Management, it is impossible for him not to have been able to find any job so far. Turning to the income the father used to earn, the basic salary of the job he last held in Hong Kong was $67,000. After he had moved to the Mainland to work, his monthly income was reduced by about 20%. But in view of the fact that he has not been in employment for quite a while, he has to be realistic and accept jobs other than those of mid/low administrative or managerial posts (sic). After considering the matter, I take the view that for someone as competent as the father, he should be able to get paid no less than $35,000 per month.  The evidence of the 2011 trial indicates that the reason why the father was still unemployed was because the father had not been reasonably diligent in applying for work at mid/low level. Judge Wong had already reminded the father that he should proceed realistically. According to the testimony of the father, he has better career prospects in Hong Kong, but he felt that to live in Hong Kong and neighbouring Shenzhen would cost far more than the current RMB¥1,800 living expenses per month. Therefore, he does not intend to find work in Hong Kong.

36. It can be seen from the background of this case that in February 2007 and May 2008, the mother had pursued the father for payments as he had breached the undertakings he made to the court. And coincidentally, on both occasions, the father entered into agreement with the employers to dissolve his employment contracts with them in the last two jobs he held when the mother pursued him for payments. In the father’s affirmation/affidavit dated 25 July 2014, he mentioned that the wife had a miscarriage after the trial in 2010. In the end, it was only by choosing to move to the maiden home of the wife that they could break free from the threat of the mother. But according to the Form E (29 November 2010) that the father submitted for the 2011 trial, he was at that time living with his current wife in their abode in Shenzhen rented by the wife. In the 2011 trial, the father testified that had already moved to the maiden home of his wife who was pregnant again. He refused to fill in the address of his mainland abode on the ground that the mother would cause nuisance to him. None of the mainland financial documents were made available. He demanded the mother to produce proof to support her query on his claim that he was still unemployed. But there was no way the mother could check and prove the matter other than relying on the past employment situation of the father. The present case turns on whether or not the evidence the father gave is to be believed.

37. The father said in his 30 June 2014 affirmation/affidavit that he kept the books of his Hong Kong and Mainland accounts separate. The balance of the Hong Kong books was always in the red, (meaning that he had to borrow money from family to make the mortgage repayments after paying the $10,000 maintenance with the rental income, but his actual net capital value had increased from 2007), whereas the Mainland accounts were merely enough to make his own ends meet. The Mainland outgoings were met by his wife with her monthly average income of RMB¥1,800. The couple had already moved from the village to the city, lodging at the home of the wife’s sister. The wife saved RMB¥250 per month to pay for his annual passage to Hong Kong. When he was in Hong Long, he lodged at the home of his unmarried elder sister. The father filled in the updated Form E that he had retired. In his affirmation/affidavit dated 25 July 2014, the father said that to find another job was impossible and to start a business was pure fantasy. To settle in Hong Kong required a job that paid $30,000 per month. To settle in Shenzhen required a job that paid $25,000. Based on the reasons given above, the father was more than capable of making at least $35,000. Besides, his current wife is employable. If they live in Shenzhen, it is practicable for the couple to both work to earn double income. The father stated in his affirmation/affidavit that the wife was not willing to go back to live in Shenzhen as she did not want to be away from her elderly mother. But the wife’s mother comes from a farming family. According to the affirmation/affidavit of the father, the couple have already left the village and moved to live in a city. Obviously, the reason why the wife went to work in Shenzhen in the first place was for the sake of increasing her personal financial income. The reason why she went back to the native place and moved from the village to a city was also for the sake of increasing financial income. The husband alleged that the wife was not willing to live in Shenzhen, I do not find this credible after considering the matter. In my view, the father is making up this excuse in order to explain why he has not been able to find a job up to now.

38. The father plans to move back to Hong Kong with his current wife to live in unit 3G and look for an ordinary job that requires no academic qualification when there is no longer the need to pay for the maintenance of the children. The monthly mortgage repayment of unit 3G is $7,588, payable until October 2032.  The father will be 69 years old by that time. According to the father, he has to borrow from the family to meet the mortgage repayments. It is highly likely that the son will have to repeat form 2 or form 3 in the next school term. In other words, it is highly likely that he will only be free from the obligation of paying for the maintenance of the children in 8 years’ time, that is, when he is nearly 60. Based on his claim that he has been unemployed since 46 and retired in 51 without any financial income, what ordinary job that requires no academic qualification can he find to maintain his living in Hong Kong?  The father is not someone without social experience. He has married twice and at one time planned to start a family with the current wife. With the situation he claims to be in at present, his plan is in fact unrealistic. Further, if he can return to Hong Kong to look for an ordinary job that requires no academic qualification when he approaches the age of 60, how come he still has not been able to find a job so far and claims to have retired?

39. It is the father’s case that during the initial stage of his remarriage in 2009, he relied on money borrowed from the family, such as the income of his wife, to live in Shenzhen. Later, he used the compensation obtained from mini bond to repay the money he owed the family. He moved northwards again in 2011. Since then, he kept separate books for his Hong Kong and Mainland accounts. At present, he lodges at the home of the elder sister of his wife and relies on the ¥1,800 income of the wife to live. Besides, the wife saves ¥250 each month to pay for his annual passage to Hong Kong. With the assets the father owns, there is indeed no need for him to let himself and his wife live the self-sufficient life that he claims they are living now. And it is not possible for him to be less capable in earning a living than his wife who makes ¥1,800 each month. How is it necessary for the couple to rely on the ¥1,800 per month to live? After considering the matter, I am of the view that the evidence given by the father is exaggerated and untrue. I have reservation regarding the father’s claim that he still does not have any financial income whatsoever. After considering the matter, I hold the view that if the father has indeed been still unemployed in the last two years as he claims to be the case and is not trying to hide his employment situation from the court, it is entirely the result of his inducing harm to himself. Therefore, consideration should be made on the basis that the father is capable of making no less than $35,000 per month regardless.

Assets of the parties

40. In her judgment dated 12 June 2007, Judge Levy in principle divided the family asset which was worth a net value of about 7.8 million dollars at that time between the two parties. The mother was given the mortgage-free unit 16H which was worth 3.4 million dollars as the abode of herself and the two children, a lump sum payment of $500,000 as standby cash (with $46,000 of it deposited into a bank account of the daughter held in trust by the mother) and repayment of her personal loan of $200,000. She was to continue to hold an insurance policy which was in her name with the son as the beneficiary that allows a lump sum withdrawal of $130,000 when he reaches the age of 21. The father was given unit 3G which was subject to mortgage and worth a net value of 1.5 million dollars, a parking space which was worth $480,000, China investment fund which was worth $900,000, European investment fund which was worth $830,000, US stocks which was worth $440,000, mini bond which was worth $480,000, Mandatory Provident Fund which was worth $190,000, cash of $150,000 and he was to continue to hold the 3 insurance policies which were in his name (one of them was an endowment insurance for the daughter which allows a lump sum withdrawal of $190,000 when she reaches the age of 18; the other was an endowment insurance for the son which allows a lump sum withdrawal of  $233,000 when he reaches the age of 18). However, he had to make full repayment of the $970,000 mortgage of unit 16H, to pay a lump sum of $500,000 and tax in the amount of $60,000.  Besides, as the father was the sole breadwinner during the marriage and that he was much more capable in earning a living than the mother, Judge Levy ordered that the father to pay the mother and the two children maintenance in the total sum of $27,000.

41. It can be seen from the distribution set out above that it was Judge Levy’s arrangement that each of the parents should use part of the assets distributed to them to provide for the children financially. Later, in the hearing held on 27 July 2007, each of the parents gave an undertaking regarding the financial provision of the children. The mother undertook that she would not sell unit 16H before the children had each reached the age of 18. The father undertook to continue to pay for the premium of the two insurance policies relating to the two children before each of them had completed full-time education.

42. The first time the father stopped paying for the $14,000 maintenance of the mother was in June 2009. Part of the amount was for the general expenses of the family. The children took up $6,000 according to the proportion. After the 2010 trial, the original maintenance order was reduced to a total of $10,000 per month. This order was upheld in the 2011 trial. During that time, the mother borrowed money from the family to pay the living expenses. She paid off the debt after selling unit 16H with the leave the court granted in 2012. The balance of the money was spent on investing in fund(s) and paying daily expenses. In the updated Form E dated 25 April 2014 and the supplemental affirmation/affidavit dated 16 December 2014, the mother gave a detailed account of her financial position and the movement of the fund(s) after the sale of unit 16H. I accept her evidence after consideration. I find that she had not concealed her assets. According to the updated Form E, the balance of the mother’s bank account was about $220,000, the cash obtained from the cancellation of insurance was about $80,000. During that time, apart from the $10,000 monthly maintenance, the interest collected from the investment fund(s) was about $23,000 per month. As at 9 December 2014, the value of the investment fund(s) kept at the Standard Chartered Bank account was $3,997,000. As at 10 December 2014, the value of the investment kept at the Bank of East Asia was $1,336,266. In other words, the value of the current total assets of the mother is $5.63 million dollars.

43. The father testified that as he had to pay off the mortgage of 16H, he refinanced unit 3G and the car parking space to obtain cash. The US stock that was worth $440,000 had long been sold for cash to pay maintenance and the lump sum payment. The mini bond that was worth $480,000 had once been frozen. Later, cash compensation made in two separate payments was received. All the insurance policies had been cancelled to get cash. All relevant monies and cash he held during the 2007 trial had all been used up before the 2011 trial.  The mother no longer disputed the whereabouts of these assets after cross-examining him to get a brief understanding. The dispute the mother had was the whereabouts of the $900,000-worth China investment fund and $830,000-worth Europe investment fund. She believed the father had concealed no less than 1 million dollars of assets.

44. According to the father’s updated Form E dated 16 June 2014, he still had a Mandatory Provident Fund account which is currently worth $220,000. The China investment fund and the Europe investment fund he held back then had been changed to Latin America investment fund and Europe emerging market investment fund respectively. They are worth a total of about $650,000. Basing the calculation on the average value obtained from valuation data the parties provided, the net value of unit 3G and the car parking space is about 4.6 million dollars. The monthly mortgage repayment is currently $7,588. The unit and the parking space are rented out separately. The rentals had been increased a number of times. At present, the monthly rental incomes are $13,000 and $3,200 respectively, making a total of $16,200. According to the testimony of the father, his total assets are worth about 5.47 million dollars besides owing his family of about $340,000 as at March 2015.

45. Judge Lok mentioned in his judgment that the father had two investments that were worth at the time about $700,000 (see paragraph 12 of the judgment). By that, I believe he was referring to the 338.76 units of Europe emerging market investment fund and 583.94 units of Latin America investment fund that the father held in April 2010. They were worth around $700,000 between March and April 2010. The quantities of these two investment funds that the father held had remained unchanged since March 2009. The mother questioned the father that as he had used the China investment fund and the car parking space as securities for the mortgage of unit 3G, he should still be holding those investment funds (the value of which was $1,834,599 on 1 August 2014). The father denied hiding anything. He testified that the two investment funds back then had been changed to the two he currently held. Although the father had not submitted the post-2007 trial change in circumstance of the two main investment funds, the quantity and value of these two investment funds had been confirmed and accepted in the 2010 and 2011 trials. Findings were already made at that time regarding the assets of the father that there was no question of asset-concealing regarding the two investment funds in question. These findings of facts are binding on this application.

46. As I had pointed out to the parties during the trial, Judge Levy had in principle divided the family assets equally between the parents in the 2007 trial. The assets that each of the parties was distributed were property, shares, investment funds and structured financial investment products. Different investments are exposed to different risks.  There may be difference at the moment in the net value of the assets each of the parties holds, but there can be gains and there can be losses in investments. As the mother had pointed out in the information she submitted, if the father had not switched the China investment fund to another investment fund, the total value of the investment funds that he now holds would have been at least 1 million dollars more than the present level. Each party has to bear the risks of the investments they make. The total value of the mother’s assets is around 5.63 million dollars at present and that of the father is around 5.47 million dollars. The mother does not believe that the father has to borrow money to meet the mortgage repayments and therefore does not believe that the father owes the family any debt. Based on the reasons set out above, even if the father is still unemployed, there should have been no need to borrow loans had it not been for his performing acts to inflict harm on himself. In any event, these personal debts carry no due date of repayment. In the words of the father, they are “long-term debts to be repaid in the long run”. Therefore, in my view, the question of maintenance should be approached on the basis that the assets that the parties each possesses are comparable.

Needs

47. In her updated Form E dated 25 April 2014, the mother filled in that the monthly expenses were: general expenses $23,068, personal expenses $5,023 and children’s expenses $20,035 (which included school fees of $31,00 (sic)), making a total of $48,127 (the mother had got the sums wrong. The total should be $48,126). Based on the principle on which the 2007 maintenance order was made, the mother asked the father to pay maintenance of the children in the sum of $20,035 and of herself in the sum of $28,092, making a total of $48,127. In his reply by way of affirmation/affidavit dated 25 July 2014, the father suggested that the mother should amend her expenses as follows: general expenses $19,523, personal expenses $4.523 and children expenses $16,096 (which included school fees of $31,00(sic)), making a total of $40,141. General expenses are the collective expenses of the mother and the 2 children which each should take up 1/3. According to the suggestion of the father, the average amount that each of the children needs is $14,555, that is, the father is at present bearing about 1/3 of what the children need. The mother testified that her actual monthly expenses were more than what had been set out in the amended Form E.

48. It was the finding of Judge Levy in the 2007 trial that after the mother had got unit 16H as the place of abode for herself and the two children, the reasonable amount of expenses of the three of them was $9,000. The personal expenses of the mother was in the amount of $5,000 and the reasonable needs of the two children (excluding school fees as there were no school fee expenses at that time) required $6,500 to meet. In other words, in the absence of the need to pay rental and school fees, the reasonable needs of each of the children were adjudged to require $9,500 to meet. The mother is now paying rental of $9,500. The father does not seek to adjust it. Judge Levy found that after adding rental outlay and price fluctuations in the meantime and deducting school fees outlay, the reasonable needs of each of the children should require $14,000 to meet. Therefore, after adding the $3,100 average monthly school fees of the daughter, each of the children should require $15,550 on average, making a total of $31,100. And the overall reasonable needs of the mother are about $12,000. After considering the matter, I take the view that the mother’s total monthly expenses should be revised to $43,000.

Should the current maintenance arrangement be changed?

49. The mother was a full-time housewife during the marriage. Her resume and capabilities to make a living are far inferior to those of the father. After the maintenance had been reduced, she tried to look for a job but without success. During the time, the two children fell prey to depression one after the other. Their studies and social life were affected. It is understandable that the mother was unable to find a job because of the need to look after the children. She plans to settle in a foreign country with the two children in the next school term to let them study overseas. It is less likely for the mother to be able to find a job in a foreign country than in Hong Kong. After considering the matter, I take the view that she can at best be able to earn an income to meet her own living expenses.

50. The father testified that he and his wife were self-sufficient in the Mainland. The books of the Hong Kong and Mainland accounts were kept separate. It is the father’s case that he did not have to use the assets distributed to him in the 2007 trial to pay for living expenses. The distribution of assets Judge Levy ordered back then was on the basis that the father had to continue paying for the maintenance of the mother and the two children. According to the above analysis, the father is now using the rental income from unit 3G and the car parking space that were distributed to him in the 2007 trial to pay for the maintenance that meets about 1/3 of what the two children need, and the mother has to rely on the assets that she was distributed in the 2007 trial or the investment returns to pay for the remainder of the needs of herself and the two children.

51. The father felt that as he was still unemployed, in the absence of any material change in circumstance on the whole, the maintenance order should not be varied.  In the judgment of 2010, after Judge Lok had accepted that the father was unemployed, he considered that the father could pay for the maintenance of the children with the rental income of about $10,000 at that time from unit 3G and its parking space. Judge Wong upheld the decision in the 2011 trial. Thereafter, the father suffered limited loss as the mini bonds were bought back pursuant to the settlement agreement. The two main investment funds had not yet been sold. The value of unit 3G and its car parking space kept going up. The rental income has gone up from about $10,000 during the 2010 trial and about $11,500 during the 2011 trial to the present $16,200. I consider keeping the current maintenance arrangements, which require the jobless mother who is far less capable in making a living than the father to bear 2/3 of the burden of meeting the reasonable needs of the children for an extended period, is unfair.

52. During the 2010 and 2011 trials, the court accepted that it was excusable for the father to be unemployed. But both Judge Lok and Judge Wong took the view that the father could find a job within 6 months, and the sole reason why he had not been able to find a job was because he was unable to lower his requirements. The father had been reminded to lower his requirements. In view of the reasons given above, the unfolding of events so far makes me conclude that the father is able to make no less than $35,000 per month. I have reservation regarding the evidence he has given to explain why he is still unemployed. I find that if he is still unemployed at the moment, it is entirely the result of his having acted to induce harm to himself. Having considered the circumstances on the whole, I take the view that varying the current maintenance orders is justified. Proceeding on the basis that the monthly income of the father is no less than $35,000, the net monthly rental income is about $8,500 and with his wife being capable enough of taking care of her own personal expenses, his total family income should be no less than $43,500 per month. Considering the matter in the light of the father’s suggestion to the mother regarding what her living standard should be, the general expenses of he and his wife should be $13,000. Given that his personal expenses are $10,000, (calculated on the basis of twice of what he suggested the mother’s personal expenses should be) and those of his wife are $4,500 (if his wife continues to work, then what the father has to pay in respect of the personal expenses of the wife will be even less), there should at least be $16,000 for the maintenance of the children. But it is considered that the father is unable to pay maintenance in the total sum of $48,127 as requested by the mother, unable to meet all the reasonable needs of the children nor the maintenance of the mother.

53. The mother had all along been trying hard to meet the reasonable needs of the two children. She sold unit 16H in order to get cash for paying the day-to-day expenses. There is a price to pay in exchange for the interest income of about $23,000 per month. In the long run, the capital value will dwindle. Besides, she has to resort to spending the stand-by cash in order to meet the shortfall. Setting aside the general and personal needs of the mother, there is still investment fund interest of about $11,000 for the maintenance of the children. Taking into account of the $16,000 mentioned above that the father should be able to spare to be spent on the maintenance of the children, there is still a shortfall of $4,000 before their overall needs could be taken care of. After considering the matter, I do not think that the whole sum of $4,000 should be borne by the mother alone but should be divided equally between the parties. That is to say, the father should pay a total of $18,000 for the maintenance of the children.

54. The aforesaid reasonable needs of the children include the present average monthly school fees of the daughter.  Therefore, the average expenses of the two children up to August 2015 should remain unchanged. Although it is not essential to study overseas and the father had previously indicated that he would not bear any of the costs, the mother had as early as 2012 planned to send the children overseas for education and the trip was not made only because of the emotional distress the children were experiencing. The mother will take the children to study and to settle in an overseas country before the commencement of the new school year in September 2015. The father has changed his position and agreed to pay half of the school fees. Therefore, it is necessary to deduct the average monthly school fee expenses of $3,100 from the total of $31,100 that covers the reasonable needs of the children, making a total of $28,000. According to the above distribution, the father has to pay $16,500 and half of the children’s school fees (subject to the upper limit of the son’s school fees), the mother is responsible for $11,500 and the remainder of the children’s school fees, as well as the other expenses incurred as a result of moving to live in another country. Although Judge Levy had already laid down the level of reasonable needs for the parties and the two children, the mother has all along inclined to provide the children a better life. In the future, if the mother wants to provide an even better life to the children, she could only make use of her own assets to cope.

The surgery fees of the daughter and the orthodontic fees of the son

55. The above reasoning shows that the father had not been making reasonable contributions to share the burden of paying for the expenses of the children. I do not think that the father can refuse paying for the surgery fees of the daughter and the orthodontic fees of the son on the ground that he had already paid maintenance. Whether or not the orthodontic procedure was essential, it is beneficial and good to the son. Further, the father had not been making reasonable contributions to share the burden of paying for the expenses of the children. Without changing the pre-trial maintenance, I consider that it is necessary for the father to pay for the balance of the daughter’s surgical fees of $1,769 and the son’s orthodontic fees of $46,500.

Security for payment

56. To ensure timely payments by the father of the maintenance and school fees of the children after she and the children have settled overseas, the mother asked that unit 3G in the name of the father be used as a security for payment. Although the father has no intention to sell unit 3G and plans to live in the unit later when he moves back to Hong Kong, he is strongly against using this property as a security for payment. He feels that it is coercion and says that he has always been making timely payments for maintenance.

57. The track record of the father shows that he had twice breached the undertaking he had made to the court regarding payment of maintenance for the mother and the children, once in February 2007 and once in May 2008. And in June 2009, he unilaterally stopped paying the maintenance of the mother, $6,000 of which was actually for the general expenses of the children. Although the father left employment in November 2008, there were 6 months during the period that he was receiving a total of over $110,000 from his then new and old employers whereas the mother and the children were still residing at unit 16H. The father should be clearly aware that the mother had in fact no liquid funds to meet the day-to-day expenses; she had to borrow from the family in order to pay bills.

58. The father said repeatedly during the trial that he was still unemployed, there was no improvement in the overall situation and he was unable to pay maintenance of more than $10,000. He also mentioned that his current wife should have half interest of unit 3G. If the unemployment of the father is a result the harm he induced to himself, consideration should be made on the basis of his abilities to earn a living. Besides, the rental income he receives has gone up to $16,200 from $10,000. The value of his assets has also gone up. The father is absolutely able to pay the revised maintenance for the children. Be that as it may, the father kept repeating that he was unable to pay maintenance of more than $10,000. After considering the matter, I take the view that a security for payment should be put in place to ensure that the father will make timely payments for the maintenance of the children.

59. The mother had taken out medical insurance for the daughter. She only asked the father to pay the unreimbursed surgical fees of $1,769. Besides, the balance of the orthodontic fees of the son has to be paid in mid-2015. The overall fees are $46,500. Since 2012, the mother had to rely on the assets to meet over half of the needs of the children. This proportion has gone up to 2/3 since the time when the daughter has to pay school fees. Without changing the pre-trial maintenance, I take the view that the father should pay the surgery fees of the daughter and the orthodontic fees of the son, totally $48,269, within 3 months. After considering the matter, a security for payment should be put in place to ensure that the father will make timely payment for the relevant fees.

60. The father agrees that the children should receive education, though not necessarily an overseas education which he knew was the wish of the mother and the children. He agreed to sell the investment funds he held for cash to pay for half of the school fees. But because the son may have to go to a private secondary school, so the parties suggested that an upper limit be set for the school fees of the son. The mother suggested that it be $15,000×10 months. The father suggested that it be $12,000×10 months. After considering the matter, I take the view that to cap it at $13,500×10 months is a reasonable arrangement. In order words, the upper limit per year is $135,000. But both parents should work together to do their reasonable best to enrol the son in a government school. Upon receiving the school fees invoice from school, the mother should email a copy of it to the father within 24 hours. The father should deposit the part of the school fees he is liable to pay into the account designated by the mother no fewer than 7 days before the payment due date. The father has reservation regarding whether or not the children can adapt to and complete their education overseas. He took the view that if they move back to Hong Kong, this split-bill arrangement to pay for school fees should continue until the children have completed full-time education. After considering the matter, I take the view that a security for payment should be put in place to ensure that the father will make timely payments for the relevant school fees of the children.

Conclusion

61. I am of the view that the evidence the father gave regarding his financial situation and life in the Mainland was exaggerated and untrue and have reservation on his claim that he is still unemployed. With the father’s resume, I consider that he is capable of making no less than $35,000 per month. If he is now still unemployed, it is purely because he had acted to induce the harm to himself. But as he is only capable of making a living to the extent of being able to cope with part of the children’s needs, I consider it necessary to maintain the nominal maintenance of the mother. On the other hand, in 2012, it order to meet the needs of the children, the mother had to sell unit 16H, her only asset, for cash to repay debts. After clearing the debts, part of the money was used as stand-by cash, the rest invested in interest-bearing fund. It is unfair to require the jobless mother who is far less capable than the father to bear 2/3 of the burden of meeting the reasonable needs of the children for an extended period. I consider it justified and necessary to adjust the maintenance the children are now getting.

62. At present, it takes $31,100 to meet the overall reasonable needs of the two children (on average $15,500 each). The father should be able to pay no less than $16,000 per month to meet the reasonable needs of the children. The mother has $11,000 of investment fund interest to be used to meet the reasonable needs of the children. In other words, she is about $4,000 short. In my view, the parties should rely on their own assets to pay this $4,000 in equal share, that is, each to pay $2,000. As of 1 April 2015, the father has to pay a total of $18,000 per month, that is, $9,000 per month, as the maintenance for each of the children, until 31 August 2015, to be deposited into the account designated by the mother. He has to pay before 30 April 2015 the full amount of the revised maintenance for the children for April 2015.

63. Commencing from the new school year in September 2015, the children will continue their education in an overseas country, the school fees in question will be more than the present $3,100 per month. The father agreed to pay part of the overseas education school fees and has reached agreement with the mother regarding how each to bear a portion of them. Therefore, I find it necessary to revise the reasonable needs of the children, including school fees, to $28,000 as of 1 September 2015. According to the above sharing ratio, the father has to pay a total of $16,500 as of 1 September 2015, that is, $8,250 for each of the children, until they have each reached the age of 18 or completed full-time education, whichever is later. The payment is to be deposited into the account designated by the mother.

64. In the absence of varying the pre-trial maintenance, the father has to pay the balance of the daughter’s surgery fees of $1,769 and the son’s orthodontic fees of $46,500 within 3 months to be paid into the account designated by the mother.

65. As of the 2015-2016 school year, the father has to pay half of the daughter’s school fees. As of the 2015-2016 school year, the father has to pay half the son’s school fees. As it had not been confirmed which secondary school the son would go to, the parents agreed to set an upper limit for the school fees of his secondary school education but no agreement had been reached regarding the amount. After considering the matter, I take the view that the upper limit should be set as $135,000 per year. In other words, the father has to pay no more than $67,500 per school year for the secondary school tuition fees of the son.

66. The parents should both make all reasonable efforts together to enrol the son in an overseas government school. The mother has to email a copy of the school fees invoice to the father within 24 hours after receiving it from the school. The father has to deposit the part he is liable to pay into the account designated by the mother no fewer than 7 days before the due date.

67. In view of the background and the overall circumstances of the case, in order to ensure that the interest of the children in this order is protected, it is necessary to use unit 3G of the father as a security for payment of all the aforesaid payments. He is banned from selling the unit. The mother has liberty to register this order against the property information of unit 3G kept at the Lands Registry to protect the interest of the children.

Costs

68. The applications by the mother for increasing the maintenance of the children, payment of the balance of the daughter’s surgery fees and the son’s orthodontic fees and an order for security of payment are allowed. The father had agreed in the course of the trial to bear part of the children’s school fees as of the 2015-2016 school year. On the question of costs, it is my view that the appropriate order to make is not to make any costs order. This is an order nisi to be made absolute in 14 days.

Orders

1. The nominal maintenance order of the petitioner to remain unchanged.

2. As of 1 April 2015, the respondent to pay monthly maintenance of the children, each revised to $9,000, making a total of $18,000, on or before the 1st day of each month, until 31 August 2015. Full payment of the April 2015 maintenance has to be made before 30 April 2015. Payments are to be deposited into the account designated by the petitioner.

3. As of 1 September 2015, the respondent to pay the monthly maintenance of the children, each revised to $8,250, making a total of$16,500, on or before the 1st day of each month, until they have each reached the age of 18 or completed full-time education, whichever is later. Payments are to be deposited into the account designated by the petitioner.

4. Within 3 months from the date of this order, the respondent to pay the balance of the daughter’s surgery fees of $1,769 and the son’s orthodontic fees of $46,500 into the account designated by the mother.

5. The respondent to pay half of the daughter’s school fees as of the 2015-2016 school year.

6. The respondent to pay half of the son’s school fees as of the 2015-2016 school year. The secondary school tuition fees of the son are capped at $135,000. That is, the respondent is to pay in each school year no more than $67,500 for the secondary school tuition fees of the son. The son’s university tuition fees are not subject to this restriction.

7. The petitioner is to email a copy of the school fees invoice to the father within 24 hours after receiving it from the school. The respondent is to deposit the payments set out in paragraphs 5 and 6 above into the account designated by the petitioner no fewer than 7 days before the due date.

8. As of the date of this order, the respondent is not allowed to sell unit 3G which he holds. The property is to be used a security for payment of the orders set out in paragraphs 2,3,4,5 and 6 above. The petitioner has liberty to register this order against the property information of unit 3G kept at the Lands Registry to protect the interest of the children. The relevant fees are to be borne by the petitioner.

9. There be no order as to costs, including all costs reserved. This is an order nisi to be made absolute in 14 days.