BWBP v. T KP nee DP

FCMC 2128 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2128 OF 2009

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J U D G M E N T
(Variation of maintenance and related orders)

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Introduction

1.  This is an application by a Petitioner father originally dated the 8 March 2016 and amended on the 9 September 2016 as follows:

Upon the Undertaking of the Petitioner to pay the incidental expenses including toiletries, haircuts and sundry expenses incurred by the children T a boy born XX September 1999 and C a boy born XX January 2003 at A whilst they are enrolled as International Boarding Students by maintaining an appropriate cash balance in their respective bank accounts;

1. Undertaking K paragraph (i,ii) (page 8) of the Order dated 26 February 2010 be amended to state the following : The Petitioner pay for boarding and school fees only. Undertaking K (ii) be amended to state the following: From the date of this Order and until each child attains the age of 18 years, the Petitioner shall reimburse the Respondent for all medical and dental expenses and reasonable clothes and shoes for each child within 14 days of production of receipts by the Respondent and such original receipts to be produced by the Respondent to the Petitioner within 28 days of such expense being incurred AND FURTHER the Petitioner undertakes to pay for these reasonable expenses during the children’s tertiary education with such amount to be provided directly to the children where appropriate.

2. Paragraph 2 (Page 9) of the Order dated 26 February 2010 is removed be discharged from the date of this summons.

3. The reimbursement of HK$157,500.00 by the Respondent for outstanding payments as per written agreement made August 2014 on commencement of T attending boarding at A in Australia be made and the written agreement be added in the Order dated 26 February 2010.

4. The reimbursement of HK$168,000.00 (HK$7,000.00 per month) due to loss of rental income from the Golf Cart for a 2 year period commencing December 2012 until January 2015 according to undertaking J paragraph (ii) (page 7) of the Order dated 28 February 2010 be made.

4. Paragraph 3 of the Order dated 26 February 2010 be formally discharged as at date of Respondent’s remarriage.

5. Costs.

2.  In summary the father seeks to discharge the original order for maintenance for the two children of the family in the sum of HK$21,000 per month or HK$10,500 per month per child and to amend other undertakings under Recital K as set out above.  In part this is because he is now responsible for higher school fees than before as the boys are at boarding school, although on his case he is in effect also seeking reimbursement from the mother for this expense in any event. There are also other issues from the father’s perspective including that of the mother’s earning capacity. The father is of the view that the mother should be earning more than she does and this is also something that he asks the court to take into account. The mother for her part asks that the original order of HK$21,000 per month remain in place. She has not issued any summons of her own, but makes the point that Recital K in the original court order does not work and has not done so for some time. She says that she is willing to pay for 50% of the boys’ general expenses. She also says that she is now responsible for the vast majority of their incidental expenses as she is living close to the school and is in her words “the hands on parent”. There are also other issues concerning a so called “side agreement” entered into by the parties in August 2014. This was not endorsed by the court. The father asks that this agreement be upheld. The mother for her part says that it should not be.

Background

3.  The background to the marriage is set out in my judgment of the 1 February 2012 on Relocation – see in particular paragraphs 3 – 22. Reference can be made to those paragraphs as necessary. In summary this is a highly conflicted situation which started off with all of the best intentions in that originally the parties were able to come to terms with respect to both their finances and the arrangements for the two children of the family. Both parties were assisted by lawyers at the time and the children’s order was granted by consent on the 26 May 2009 followed by the financial order on the 26 February 2010. Subsequently, the mother sought to relocate to South Africa, which was resisted by the father and led to a full contested hearing on the issue. Ultimately that application was denied. The mother did not then seek to further vary the arrangements for the two children, although that was an option that had been open to her, and for a while their care continued to be shared by the parents as before. In essence, as I understand it, the father would care for the boys when he was not flying and the mother would care for them otherwise. The father is a pilot with a well-known airline in Hong Kong and therefore has a significant amount of free time. The mother for her part is a qualified speech therapist with a niche area. She worked part time in Hong Kong and also took up a position as an Educational Assistant at the school that the boys both then attended in Discovery Bay.

4.  In 2014 the eldest child T expressed an interest in attending boarding school. It seems that there was a lot of discussion and negotiation surrounding this and that the mother eventually agreed to pay the father HK$10,500 per month because at the time the father had said that he could not afford to pay the boarding school fees. It is the mother’s case that the father would not agree to T attending boarding school otherwise. Reference is subsequently made to this agreement in a number of e-mails after August 2014. It then followed that the mother would seek to offset monies that she said were owed to her by the father under Recital K from the HK$10,500 per month. Confusion ensued with the father agreeing to pay for some items but not for others. The mother later reneged on this agreement, as she says that the father had not been honest about his claim that he could not afford to pay the fees. She also points out, inter alia, that there had not been any updated disclosure, she had not been legally advised and that she had felt coerced into making the said agreement. (i.e. the “side agreement”)

5.  T went to boarding school in Australia in October 2014. He is said to be a good student and wishes at present to study medicine. T will be 18 years old on the XX September 2017 and he will complete school at the end of this academic year in Australia. University is likely to start in February/March 2018. Consequently, there is also an issue concerning the funding of T’s tertiary education and how that should be structured. The father wishes to fund T directly whereas the mother asks that the father continue to make a financial contribution to her for T.

6.  C is 14 years old. After T left Hong Kong, C remained and continued initially to split his time between two households. The mother for her part spent a lot of time in both Hong Kong and Australia as she tried to support both children. She also remarried on the XX April 2015. Her husband is originally from New Zealand but the parties reside in Australia. It is the mother’s case that C became very unhappy with this arrangement and that he also expressed a wish to go to boarding school in Australia. This was resisted by the father. There were also other issues and the relationship between father and son became strained. It is the mother’s case that C does not like the father’s new partner. She also alleged during the trial that this application was ill meant and that there is a plan by the father and his partner to, in her words, “break her”.  In any event since August 2015 C has been resistant to staying at the father’s home and access has generally only taken place when T was also present. Consequently, C began to spend the majority of his time with the mother.

7.   On the 29 February 2016 the matter returned to court again for a Children’s Dispute Resolution hearing. The mother sought leave for C to join his brother at boarding school in Australia. Agreement was eventually reached and the father consented to both children being removed from Hong Kong on a temporary basis in order to go to Australia for study purposes. Agreement was also reached with respect to the school holidays with the father having the care of the children for the school holidays in April and October and the mother for June/July. It was further agreed that the long school holiday over the Christmas/New Year period would be split between the parties. Notwithstanding that it seems that C still refused to come to Hong Kong in 2016 for the father’s share of the long summer break (i.e. Christmas/New Year). At the time of the hearing the father relied on a report prepared by the psychologist Dr B dated the 18 February 2016. In that report Dr B recommended inter alia that:

43.   Given that the issue of C attending boarding school is – as noted by the Social Welfare Officer – a matter of ‘when’ and not ‘if’, it may be most practical to permit him to attend boarding school immediately.  There are a number of reasons for this:

43a.   Boarding school may effectively remove C from a high conflict environment and remove the burden of being the subject of that conflict from his shoulders;

43b.   C will benefit from the structured consistency of boarding school rather than moving between two households that have very different parenting styles;

43c.   The relationship between C and his father is extremely important for both of them, and both individuals are experiencing a great deal of pain due to the current situation.  Enrolling in boarding school may provide enough of an emotional distance to allow both parties to begin the healing process, and render C more receptive to resuming communication with Mr. P;

43d.   C is close to T and the siblings will have the chance to be together if C is in boarding school.  This is particularly relevant for C as he is somewhat isolated in Hong Kong and has limited emotional support at the moment;

44.   Mr. P raised a number of anxieties regarding his relationship with C should he relocate.  It is important that every effort be made to ensure an agreement or outcome that can effectively alleviate his concerns and provide safeguards to ensure that he is, indeed, given full opportunity to heal his relationship with C.  Some of these safeguards include:

44a.   C should be required to attend boarding school (as opposed to day school).  He needs a structured and neutral environment with routine and boundaries. Residing with his mother as a day student will result in further enmeshment and difficulties for Ms. G to enforce the necessary boundaries C will require as a teenager, and may serve to further strain the relationship between Mr. P and the children.

44b.   C should be scheduled to return to Hong Kong for the next three lengthy holidays (more than 7 – 10 days) to stay with Mr. P and allow their relationship to heal.  This should not be presented to C as an option as he may feel some loyalty conflict in being responsible for making the choice himself.

44c.   It is recommended that future travel dates to Hong Kong for C to see Mr. P be arranged as far in advance as possible and incorporated into a Court Order.

44d.   If the Court Orders that C remain in Hong Kong – either until June or longer – it is important that it be explained to C in a way that does not place blame on Mr. P.

44e.   Regardless of whether C is in Hong Kong or Australia, right of first refusal for his care when Ms. G is traveling should be Mr. P’s.  If this is impractical due to travel constraints, then both parents can then decide who will care for him during the time Ms. G will be away.

44f.   C should remain in therapy with Ms. L for as long as he is in Hong Kong.  There may be scope for some family sessions to take place once an agreement has been reached as C will likely be more receptive to input at that point.

44g.   It is also recommended that Mr. P work with Ms. L to develop strategies for regaining trust and how to most effectively listen to and communicate with C.

44h.   Ms. L can also work with Ms. G for as long as C remains in Hong Kong to help develop better strategies for setting and enforcing limits with him.

44i.   It may be helpful for C to receive an explanation of the sequence of events leading to the current situation from a neutral third party (possibly Ms. L or the undersigned, etc.) so that his blame of Mr. P can begin to be addressed.

44j.   To promote feelings of security for both parents, it may be worth considering obtaining a mirror order in Australia.

8.   Unfortunately, the relationship between C and his father has not improved. It is also not clear if the recommendations made by Dr B were acted upon. It is the mother’s case that C is unhappy boarding and that he would like to be a day pupil. Given the recommendations made by Dr B this is vigorously resisted by the father. In any event, as I pointed out to the parties during the hearing, there is currently no application before me in that respect. I accept that if the mother were to make such an application, that there would need to be updated reports. For the purposes of this application I accept that the mother is living near to the school with her new husband and that C comes to her home most weekends from Friday evening until Monday morning. In addition, he sometimes comes out mid-week. It seems that C is a very bright but sensitive child and that there have been issues inter alia with bullying. T also comes back to the mother’s home most weekends and in addition he will sometime choose to base himself at the mother’s home during study leave. This can sometimes be for up to blocks of two weeks at a time. The father for his part has only been able to go down to Australia three times since T started school. Consequently, he is not as involved in the day to day parenting of the boys as the mother is. The father says that this is because his work commitments have precluded him from making frequent trips down. He hopes that this will not be the situation going forward and that he will be able to go down to Australia more frequently to see the boys. He has allowed for five trips per annum in his financial statement.

The litigation

9.   The original consent order on finances dated the 26 February 2010 stated inter alia as follows:

Recital K

K.   AND UPON the Petitioner agreeing and undertaking to the Respondent and to the Court that he will make or cause to be made the following payments as they arise:

(i)   The children’s school fees, tertiary education fees, school uniforms, additional educational extra-curricular expenses and any other major expenses for the children directly to the relevant educational establishment or institution until the children cease full time tertiary education.

(ii)   Reimbursement to the Respondent, upon production of receipts, for all medical and dental expenses for the children and all reasonable clothes and shoes purchased by the Respondent for the children.

Order 2

2.   The Petitioner do pay to the Respondent on the 1^st day of every month commencing on 1^st February 2010 periodical payments for the maintenance of each of child of the family namely T, boy born on XX September 1999 and C, a boy born on XX January 2003 and each month thereafter the sum of HKD$10,500 making a total of HK$21,000.00 until each of the children respectively attain the age of 18 years or finish their full time education whichever is the later.

Order 3.

3.   The Petitioner do pay to the Respondent on the 1^st day of every month commencing on 1^st February 2010 and each month thereafter periodical payments for her maintenance in the sum of HKD$14,000 per month until the Respondent remarries, cohabits with another man for a continuous period of 6 months or until further order, whichever is the earlier.

10.   It is of note that there has been no variation to this order, notwithstanding the fact that it was made over 7 years ago. The mother’s maintenance for herself came to an end upon her remarriage. Currently then the father is bound by order 2 and Recital K.

Issues to be determined

Should the “side agreement” of August 2014 be upheld?

If not what weight should be attached to it, if anything at all?

What financial ramifications arise out of that determination?

How should Recital K be interpreted?

In terms of the historical items claimed by the mother under recital K, what should be allowed and what should be disallowed?

Should Recital K be discharged, amended or upheld?

In the event that it is discharged in part, how will that impact on the financial arrangements for the boys going forward?

Is it accepted in principle that the father should no longer be obliged to contribute towards the children’s maintenance because he pays more for the boarding school fees?

Should the maintenance order of HK$10,500 per month be upheld, reduced or discharged?

Should this arrangement change once T starts university?

How much maintenance should the father pay to the mother as maintenance for the two children of the family and over what period of time?

How should the Singapore property be regarded?

The law

Variation of maintenance   

11.   The father’s application is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap 192, which provides that:

“(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates ……”

12.   As I explained to the parties during the hearing it is accepted that in considering a change of circumstances, I may look at the case de novo. In other words, the court is not necessarily bound by the existence of the previous consent order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (See Jackson’s Matrimonial Finance and Taxation, 8^th edition Chapter 3.147 - 3.157):

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 case 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.

13.   It is also true that there would normally be a reason for the application to vary or what some might call a “trigger”. In this case the father says that the trigger is the children going to boarding school in Australia. He does not dispute that he can afford to pay and indeed says that this is not the reason for the application.

14.   The court has a very wide power, including a power to terminate payments and to backdate the variation ordered. The overall objective is to achieve a fair outcome (see M v M, FCMC 4070 of 1990, dated 12 May 2006, unreported).

The enforceability of agreements

15.   There is also another issue here concerning the enforceability of the so called side agreement. The issue of the weight to be attached to agreements reached between parties has been looked at recently in the context of ancillary relief as whole, with an emphasis on pre-nuptial and post nuptial settlements. However, in this instance we are concerned with an agreement allegedly reached between the parties after the issue of final ancillary relief had been resolved. Arguably, what is said about the enforceability of agreements in that scenario will also have some bearing on the situation here.

16.   In determining whether there is a valid agreement and the weight to be attached to it, paragraphs 34 and 35 of SPH v SA are relevant and bear some repetition. These also cite with approval paragraphs 68 – 73 of England’s landmark decision Radmacher v Granatino:    

34.   The particular matters which were stressed by the Supreme Court were these.  The court when considering the grant of ancillary relief was not obliged to give effect to nuptial agreements―whether they were ante-nuptial or post-nuptial. The parties could not, by agreement, oust the jurisdiction of the court.  The court must, however, give appropriate weight to such an agreement.  But it was the court, and not any prior agreement between the parties, that would determine the appropriate ancillary relief when a marriage came to an end, for that principle was embodied in the legislation. [2], [7].

35.   The Supreme Court said:

“68 If an ante-nuptial agreement, or indeed a post-nuptial agreement, is to carry full weight, both the husband and wife must enter into it of their own free will, without undue influence or pressure, and informed of its implications. …

69 … the Court of Appeal was correct in principle to ask whether there was any material lack of disclosure, information or advice. Sound legal advice is obviously desirable, for this will ensure that a party understands the implications of the agreement, and full disclosure of any assets owned by the other party may be necessary to ensure this. But if it is clear that a party is fully aware of the implications of an ante-nuptial agreement and indifferent to detailed particulars of the other party’s assets, there is no need to accord the agreement reduced weight because he or she is unaware of those particulars. What is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end.

…

71 … The first question will be whether any of the standard vitiating factors: duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it.

72 The court may take into account a party’s emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. The circumstances of the parties at the time of the agreement will be relevant. Those will include such matters as their age and maturity, whether either or both had been married or been in long-term relationships before. For such couples their experience of previous relationships may explain the terms of the agreement, and may also show what they foresaw when they entered into the agreement. What may not be easily foreseeable for less mature couples may well be in contemplation of more mature couples. Another important factor may be whether the marriage would have gone ahead without an agreement, or without the terms which had been agreed. This may cut either way.

73   If the terms of the agreement are unfair from the start, this will reduce its weight, although this question will be subsumed in practice in the question of whether the agreement operates unfairly having regard to the circumstances prevailing at the time of the breakdown of the marriage.”

17.   The Court of Final Appeal added at paragraphs 39 and 40:

The application of Radmacher v Granatino in Hong Kong

39.   There have been signs of approval of Radmacher v Granatino in this court in LKW v DD [2010] HKEC 1727, (2010) 13 HKCFAR 537 (per Ribero PJ at [53], [105], obiter since the appeal did not concern an ante-nuptial agreement).  In the view of this court, the principles enunciated in Radmacher v Granatino should also be regarded as the law in Hong Kong.  In common with the UK Supreme Court, we see no reason for distinguishing between ante-nuptial agreements and separation agreements.

40.   As we have said, the Hong Kong Court of Appeal has already accepted in L v C [2007] 3 HKLRD 819 that the old rule that agreements providing for future separation are contrary to public policy is obsolete, and we endorse its judgment.  We agree with the UK Supreme Court that this should not be restricted to separation agreements.  None of the supposed distinctions between them can any longer be supported, although we accept that there may be circumstances where it is appropriate to distinguish between an ante-nuptial and a separation agreement.  As the UK Supreme Court said (at [61]) the circumstances surrounding the agreement may be very different dependent on the stage of the couple’s life together at which it is concluded, but it is not right to proceed on the premise that there will always be a significant difference between an ante-nuptial agreement and a separation agreement.

Discussion

Should the “side agreement” of August 2014 be upheld?

If not what weight should be attached to it, if anything at all?

What financial ramifications arise out of that determination?

18.   The father argues that the “side agreement” should be upheld. He says that this was an agreement entered into by two consenting adults who, had by that stage, had a lot of experience in litigation, notwithstanding the fact that they were not legally represented at the time. In any event he says that it was acted upon by both sides and he refers to a number of e-mails after August 2014 where reference is made to it.

19.   The mother for her part says this of the side agreement in her 7th affirmation dated the 2 August 2016:

19.   In August 2014, my naïve and coerced “agreement” to pay HK$10 500 per month back to the Petitioner for T’s schooling was made under duress, and my longing to bring some peace to T who desperately wanted to go to Australia, as he had already gone through much emotional and psychological abuse to gain his father’s consent to start attending boarding school.  After the Petitioner told T he could go to A (A), it became clear that he would change his mind if I did not “agree” to pay back HK$10 500, so at the time I had no choice but to put the emotional and psychological needs of T first (Please refer to Respondent’s 6^th Affirmation, Paragraph 26 for more details).

20.   At this time in August 2014, the Petitioner never disclosed evidence of his financial status, but merely stated “he could not afford” to let T go if I did not help.  This evidently is not true since all fees have been paid up to date and no information to the contrary has ever been disclosed (EXHIBIT 7-6 for email revealing my naïve and pressured efforts to prioritise the needs of T and the details of our “agreement”.)

21.   The Petitioner frequently makes threats (including of police), changes his mind and reneges on promises to the boys, which leaves me under pressure to compensate and protect the children’s well being, which explains why I was coerced to “agree” to pay the above mentioned amount even though I did not have time to consider the ramifications on my own financial commitments to the boys as there was significant time pressure to get T enrolled at the time.  For these reasons and those mentioned below, I am not paying the Petitioner HK$10500 per month.  (Refer to Respondents 6^th Affirmation, Paragraph 26 and 76 (vii) for more details).

She reiterated this in her oral evidence in the third day of trial as follows:

A.   And I acknowledge that under duress and misleading information where you told me that you do not have enough money and that you told me that T could not go to A unless I made that contribution, I did agree but it was under misleading, misguided information and under me as a mum trying to give my son the best chance at something that he really wanted to do.  So I’m not disputing that in that time I agreed to pay you the 10,500 but it was not a fair and open and fully disclosed arrangement.  You told me you couldn’t afford it and you told me that T couldn’t go and, your Honour, if you go to pleadings bundle 2…

A.   P2, page 281, paragraph 19.  He even says in his own words “I reached a written agreement because really this is his agreement that he forced on me.  It is always” …

A.   So the last three lines, you can read the whole sentence if you want but “I reiterate that I reached”, I reached, “written agreement she would reimburse me 10,500 if I provided my consent to T attending A boarding school”.  It was like if he didn’t give it to me, if I didn’t agree, then T couldn’t go.  He even writes that in his own words.

20.   For the avoidance of doubt I accept what the mother says in this respect. It also seems to me that the agreement was inherently unfair given the financial circumstances of the parties at the time. As I pointed out during the hearing it is also of note that the parties never filed a consent summons giving legal effect to the “side agreement” in any event. In such circumstances the side agreement shall not be upheld and no weight shall be attached to it. It follows that the focus must then turn in the first instance to Recital K and which expenses should be reimbursed and which expenses should not be.  

How should Recital K be interpreted?

21.   At the time of the order the father was working as a pilot in Hong Kong and the mother was a part time speech therapist. The mother was to receive maintenance of HK$21,000 per month for the boys and in addition she received HK$14,000 per month for her own maintenance i.e. HK$35,000 per month in total. Recital K was meant to cover additional and specific items. It seems to me that in accordance with normal interpretation guidelines this clause should be given its natural and normal meaning. I repeat therefore that under Recital K the father agreed to pay for the children’s school fees, their tertiary education fees, school uniform, additional educational extra-curricular expenses and any other major expenses for the children and such expenses were to be paid to the relevant educational establishment or institution direct. In addition, he agreed to pay upon the production of receipts and on a reimbursement basis only, for all of the children’s medical and dental expenses and for all reasonable clothes and shoes purchased by the mother for the children. Some of the dispute lies with the fact that the mother has paid for some out of pocket expenses herself – because she was the parent on hand and the father has consequently refused to pay for them because they were not payable directly to an institution. He has since softened his position on this and he has agreed to pay for some items that according to the mother he had simply refused to pay for previously.  

22.   The other difficulty is that the document produced with respect to the reimbursement claimed seems to have had several different versions. In any event and for the avoidance of doubt, in so far as this trial is concerned I will be making reference to the final document produced in court namely R-4 and the most updated document attached to an e-mail dated the 20 February 2017 in Correspondence 2 (page 315 onwards). It is the mother’s case that the father is only conceding certain points now, at trial, when infact he has refused to pay for some items going back to 2010. In any event she says that Recital K simply does not work, especially given the fact that the current arrangements for the boys are now significantly different from before. For example, she says that when the care of the boys was genuinely shared, the boys would each ask both parents for certain things and each parent would agree – or not, on a more or less ad hoc basis. That is not the case now and the whole burden financially for the boy’s day to day living costs rest on her shoulders save for the boarding school fees and related expenses.

Reimbursable expenses under Recital K

In terms of the historical items claimed by the mother under recital K, what should be allowed and what should be disallowed?

2010

23.   The outstanding expenses claimed by the mother and the father’s comments at trial are reproduced below:

Medical and Dental Nathelia Gomid $585.00 Clothes/Shoes School Uniform - T $790.00 School Uniform – C $50.00 Clothes – both boys $2,197.00 China Visa – T $680.00 Sub total per year $4,302.00

Not an expense per Recital K for medical for Boys Also worked for Respondent when boys with her YES 790 YES 50 YES 2197 YES 680 HKD3,717.00

I accept what is said by the mother here with respect to the HK$585 for medical and thus HK$4,302 is reimbursable to the mother.

2011

24.   The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:

Medical and Dental
Arm Sling - T	$100.00	YES	100
Matilda Hospital - T	$4,792.00	NO	Claimed by [husband’s employer] medical and Respondent Refunded
Matilda Hospital - T	$1,500.00	NO	Claimed by [husband’s employer] medical and Respondent Refunded
Clothes/Shoes
School Uniform - T	$1,455.00	YES	1455
School Uniform – C	$595.00	YES	595
Clothes – both boys	$239.00	YES	239
Swimming costume	$350.00	YES	350
School shoes and casual shoes - C	$853.00	YES	853
Sportwear	$920.00	YES	920
New Zealand Ski Holiday – Clothing T and C
Boarding School Setup - T
Miscellaneous
China Visa – T	$310.00	YES	310
School Deposit for D to keep space for T in High School	$21,000.00	NO	Respondent paid 2 other deposits in 2007 and 2011 For P International School and C College Not as per Recital K
Sport Equipment	$244.00	YES	244
Sub total per year	$32,523.00
Balance owed per year	$23,604.50	HKD 5,066.00

25.   I accept what the father says with respect to the refunding of medical expenses to the mother and note that he has now agreed to pay for a number of clothes and shoes. The mother asks for reimbursement of HK$21,000 for a school deposit for D. During the trial it was said that this was the school that T eventually attended, although I note from the Social Welfare Report that he actually went to X School for High School. In any event this seems like a reasonable major expense for T and one that should and could have been paid to the institution direct had the father agreed. In such circumstances the sum of HK$21,000 shall be reimbursed to the mother plus the other items agreed to by the father. I accept that the others are not reimbursable expenses. Thus HK$26,066 shall be reimbursed to the mother for 2011.

2012  

26.   The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:

Medical and Dental
IMI – Medication / Supplements	$855.00	NO	Receipt for Adult homeopathic medicine
School Books, Stationary and School related
Cafeteria Food – Chartwells School Lunch	$501.00	NO	Not as per Recital K
Clothes/Shoes
School Uniform - T	$2,110.00	YES	2110
School Uniform - C	$90.00	YES	90
School shoes and casual shoes – C	$380.00	YES	380
Sub total per year	$3,936.00		HKD 2,580.00

27.   I accept that under the terms of recital K the school lunch is not a refundable expense. However, it seems to me that arguably the homeopathic medicine should have been reimbursed to the mother. Thus HK$3,435 is reimbursable to the mother for 2012.

2013

28.   No claim is made by the mother for 2013 as she says that all receipts have been lost. Notwithstanding that I accept that she must have had expenses that year which would, in the normal course of events, have been reimbursable to her. I will allow an additional HK$5,000 in that respect, which is roughly the maximum allowed for incidental expenses in years 2010 – 2012, once the school deposit is taken out of the equation. During this period all parties were still based in Hong Kong.

2014

29.   The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:

School Books, Stationary and School related
Stationary - Officeworks	$824.49.00	YES	824.49
Clothes/Shoes
School Uniform - C	$1,620.00	YES	1620
Clothes – both boys	$4,181.00	YES	4181
Boarding School Setup - T	$3,837.57	YES	3837.57
Miscellaneous
Sport Equipment	$1,303.23	YES	1303.23
Boarding School Setup – Toiletries and Towels	$1,024.13	YES	1024.13
			HKD 12,790.42

30.   There is no dispute and the father now agrees to reimburse the mother the HK$12,790 claimed (rounded down). T started boarding school in 2014.

2015

31.   The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:

Medical and Dental
Orthodontist	$3,000.00	YES	3000
Dentist – T	$495.00	YES	495
Doctor Consultation	$1,075.20	YES	1075.20
School Books, Stationary and School related
Pen n Paper	$558.00	YES	558
Compulsory Camp – T	$2,693.60	YES	2693.60
Melbourne Chinese school trip	$694.00	NO	T offered to pay
Dance Lessons – T (for all Year 10’s)	$868.00	YES	868
Clothes/Shoes
Clothes – both boys	$2,770.00	YES	2770
Miscellaneous
Sport Equipment / Clothes – football boots, haviannas and spray water bott	$833.74	YES	833.74
Toiletries - T	$1,042.00	NO	Not as per Recital K
Visa – C	$450.00	NO	Not as per Recital K – No info on visa
Sub total per year	$14,479.54		HKD12,293.54

32.   There were a number of disputes this year. The first related to a Melbourne Chinese school trip. The mother wished C to go. The father disagreed and refused to pay. The mother arranged for C to go and paid the requisite fee. Again I tend to agree with the mother that this is a trip that C would have benefited from, not so much because it was a trip to China Town, but because it was an out of town trip with his peers. Again this is an expense that could and should have been paid by the father to the institution direct. I will allow it. I accept that the other items i.e. toiletries for T and a visa for C are not reimbursable expenses under Recital K. Consequently, HK$12,988 (rounded up) shall be reimbursed to the mother for 2015.

2016

33.   The outstanding expenses claimed by the mother and the father’s comments for trial are reproduced below:

Medical and Dental
Cranio sacral therapist and remedial massage – C	$1,764.00	NO		Not agreed and no discussion, not a medical doctor
Doctor – T – Skin condition and general well being	$1,960.00	WAITING		Boys have OSHC insurance and have cards with them, T able to seek refund from insurance if doctor part of insurance scheme
Doctor – C – Weight/Nutrition and general well being	$1,120.00	WAITING		Boys have OSHC insurance and have cards with them, T able to seek refund from insurance if doctor part of insurance scheme
Orthodontist – consultation for underbite T	$600.00	YES	600	However was not advised T had this appointment nor was it discussed
Blood test	$162.00	WAITING		Boys have OSHC insurance and have cards with them, T able to seek refund from insurance if doctor part of insurance scheme
Optometrist + Glasses	$4,508.00	PARTIAL	2254	Unnecessary designer frames selected nor was it discussed
Special – Dermatologist	$1,260.00	WAITING		Boys have OSHC insurance and have cards with them, T able to seek refund from insurance if doctor part of insurance scheme
Medication	$459.65	WAITING		Boys have OSHC insurance and have cards with them, T able to seek refund from insurance if doctor part of insurance scheme
Supplements	$2,512.89	NO		No discussion or agreement of vitamins used as per parenting agreement-paragraph A(iv) – No Doctors prescription seen
Miscellaneous	$1,830.70	NO		Nothing under miscellaneous in financial order para K(i)(ii)
School Books, Stationary and School related
Club Soccer – T	$2,100.00	NO		Not agreed as A provides excellent sport training
Strength Camp – C and T	$2,352.00	NO		Not agreed or discussed, holiday activity while Boys with T-under para K(i) need to pay them directly
Speed Camp – C	$907.20	NO		Not agreed or discussed, holiday activity while Boys with T-under para K(i) need to pay them directly
Football Camp – C	$4,900.00	NO		Not agreed or discussed, holiday activity while Boys with T-under para K(i) need to pay them directly
Pride Physic therapy Kettlebell Training $AUD300/10	$840.00	NO		Not agreed or discussed, holiday activity while Boys with T-under para K(i) need to pay them directly
Football Fitness Tests – T + C	$336.00	NO
Chinese Tutor	$8,960.00	NO
Staionary - Officeworks	$6,652.91	PARTIAL	1680	Submitted receipts include 10 X storage containers, 2 X office chairs – and is obvious most of equipment and stationary for T and P’s home office supply. I am willing to pay 300 AUD per year for school supplies- even though not as per para K(i)
Clothes/Shoes
Clothes – both boys	$11,401.60	PARITAL	5700.8	I’m prepared to pay half as don’t feel designer clothing such as versace shirts at 199 AUD are reasonable and appropriate for the boys as per para K(ii) –reasonable. I also purchase clothing for the boys
New Zealand Ski Holiday – Clothing T and C	$1,065.68	YES	1065.68
Miscellaneous
T Iphone	$6,720.00	NO		Not necessary as per para K(i) and T advised it was a gift for birthday
C Iphone	$6,720.00	NO		Not necessary as per para K(i) and was a gift for C
T laptop	$15,080.80	NO
T Learners Licence Test x 2	$257.60	YES	257.6
Learners Licence Book	$112.00	YES	112
T’s Driver’s Licencse card	$898.80	YES	898.8
Visa Medicals not claimed	$1,290.00	YES	1290
Alterations/Dry Cleaning of uniforms / Labels	$2,240.00	PARTIAL	590	Will pay for dry cleaning only as no receipts for labels or alterations
Monthly subscription per child AUD$90	$12,096.00	NO		No receipts received, if they are for mobile phones not my responsibility as per para K(i)
Pocket money	$896.00	NO		I pay boys pocket money as set out in my form E
Sub total per year	$102,479.82		$14,448.88	AMOUNT OWED TO T FOR 2016 EXPENSES- PLEASE NOTE MOST OF EXPENSES OCCURRED DURING LAST 3 MONTHS

34.   It would be fair to say that by this time, relations between the parties were at a very low ebb. I accept that discussion on any topic is likely to have been difficult. The father is willing to pay for orthodontic treatment for C but he queries other medical expenses and suggests that the mother should be reimbursed by the medical insurer in any event. It is not clear, even if her claim is successful, whether she is likely to get all of these expenses back. However, I also accept that these are genuine expenses for the boys. I accept therefore that they should be reimbursable to the mother under the second half of Recital K either in whole, or in part, once the amount allowed by the insurers is known. I will allow the cost for cranio sacral therapist and for the full cost of the optometrist and glasses. I will also allow the request for supplements. Where the parties are waiting for confirmation of payment from the insurer I will put that payment to one side. The balance should be reimbursable to the mother by the father in the normal course of events. I will not allow the miscellaneous expense.

35.   The father refused to pay for a number of expenses under the school related column including some that could properly be classed as extra-curricular activities, as he is of the view that all such activities should be covered by the school. I tend to agree with the mother on this and accept that there are likely to be some expenses which the parents will be required to cover on top of the boarding school fees, for example see the reference to the Speed and Football camp. Again these are expenses that could and perhaps should have been paid to the provider direct, had the father agreed. I will allow all of these expenses, including those for the Chinese tutor. (i.e. club soccer, strength camp, speed camp, football camp, Pride Physic training, Football fitness tests). The amount for stationery does seem to be a bit on the high side and I accept that the mother may have made a genuine mistake in this respect. The sum of HK$1,680 offered by the father is accepted. I also accept the father’s proposal to pay for half of the cost of clothing. There was also a dispute concerning the provision of IPhones and laptops, with the father insisting that these should be gifted. In today’s world these items tend to be regarded as essential, although I tend to agree with the father that if possible it might be preferable for them to be gifted. In any event I will allow them on this occasion. Going forward this issue will not arise. The pocket money that the mother provides is also not a reimbursable expense, nor are the monthly subscriptions. I will accept the partial payment for alterations dry cleaning etc. Thus HK$69,530 is reimbursable (rounded up).

36.   In total then the sum of HK$134,111 is reimbursable to the mother. It is therefore directed that this sum be paid by the father to the mother within the next 28 days.  

Should Recital K be discharged, amended or upheld?

In the event that it is discharged in part, how will that impact on the financial arrangements for the boys going forward?

37.   It is possible for the court to discharge an undertaking or to amend it with the consent of the party giving the undertaking. In this instance the mother maintains that Recital K should be discharged and that in truth it has never really worked – but in any event it works less well now than it did in 2010 when the parties entered into the original consent summons. The father for his part wants Recital K amended as set out in paragraph 1 above.

38.   The difficulty, it seems to me, is that Recital K was an entirely appropriate undertaking when the parties were living in close proximity to each other and sharing the care of the children. This undertaking ensured that the father would continue to be responsible for the children’s major expenses such as their school fees and other extra-curricular costs, over and above the cost of maintaining them on a day to day basis. The mother was responsible for maintaining the children during the time that they were with her – for approximately 50% of the time from the maintenance that she received from the father of HK$21,000 per month. In addition, she received HK$14,000 as maintenance for herself. She also received a small income from working as a part time speech therapist and from working, for a time, as an Educational Assistant. Further she received a passive income from renting out the property that she had received in Discovery Bay as part of her settlement. In total she probably had an income of approximately HK$50,000 per month at that time. In contrast the father was earning in the region of HK$200,000 per month inclusive of benefits. It was therefore entirely appropriate that the father should also be responsible for these additional expenses under Recital K. The father says, and this is accepted by the mother, that it was always understood that his contribution would not cover all of the children’s costs. It is the father’s case that the mother should have maximized her earning capacity by now in order to pay for any shortfall. Whereas the mother is of the view that it is a matter for her how she pays for any deficit. As indicated during the trial I agree with the mother on this. She says, and I accept this to be the case, that she has always put the welfare of the boys first.   

39.   It seems to me that Recital K works in so far as the school fees are concerned. It should also work going forward with respect to tertiary education fees. As I indicated to the father during the hearing I will expect him to pay for T’s university costs from the start of the next academic year, plus the cost of accommodation – whether T is living in halls or in separate accommodation plus provision for a separate living allowance. This would constitute “other major expenses”. I also have no difficulty in extending Recital K as suggested by the father, in that once T starts university any medical/dental costs should also be payable by the father direct to T on a reimbursable basis. But it seems to me that asking the child to seek reimbursement from him direct for clothes and shoes is likely to impose an unreasonable burden on both sides and could lead to further and unnecessary conflict. Provision for this should be included in his living allowance.  

40.   In so far as C is concerned and for T’s final two terms at school, the father has suggested that he provide for incidental expenses by retaining a balance in their bank accounts. He has not indicated what that balance might be – or how that might work in practice. Again it seems to me that this is likely to lead to further conflict. However, I accept that the arrangement for school uniforms and other related items is now working well in that such items can be purchased from the school shop direct and the shop has the father’s credit card details. The mother also confirmed that this was now working reasonably well. There is though continued difficulty with respect to extra-curricular activities and the reimbursement of clothes and shoes. I will therefore release the father from this part of the undertaking. Other than for school uniform I will also release the father from his undertaking to reimburse the mother on production of receipts for all reasonable clothes and shoes purchased by her for the children.  

41.   I will therefore amend Recital K so it reads as follows:

AND UPON the Petitioner agreeing and undertaking to the Respondent and the court that he will continue to make or cause to be made the following payments as and when they arise:

(i)   The children’s school fees, tertiary education fees, school uniforms and any other major expenses for the children directly to the relevant educational establishment or institution until the children cease full time tertiary education. For the avoidance of doubt it is further directed that the father pays a living allowance to each child direct during the course of their tertiary education such sum being regarded as a “major expense”.

(ii)   From the date of this Order and until each child attains the age of 18 years or ceases High School, the Petitioner shall reimburse the Respondent for all medical and dental expenses for each child within 14 days of production of receipts by the Respondent and such original receipts to be produced by the Respondent to the Petitioner within 28 days of such expense being incurred AND FURTHER the Petitioner undertakes to pay for these reasonable expenses during the children’s tertiary education with such amount to be provided directly to the children where appropriate.

42.   Going forward therefore the cost of the extra-curricular activities whilst both children are at school (which in reality will effect C more than T) and the cost of clothes and shoes, apart from school uniform will be included as part of the mother’s ongoing expenses for the boys and will therefore be included as part of her maintenance claim.  

Is it accepted in principle that the father should no longer be obliged to contribute towards the children’s maintenance because he is paying more for their school fees?

43.   This is not accepted in principle. The father does not dispute that he can afford to pay a reasonable amount for the children’s maintenance. He is currently earning over HK$300,000 per month inclusive of benefits, which is a significant increase from his original salary in 2010. His case is that as he now has to pay more for the children’s school fees (there was some dispute during the trial about the actual figure, but for arguments sake I will accept that he now has to pay HK$21,752 per month on top of his educational allowance as opposed to a top up of HK921 per month when both children were studying in Hong Kong – a difference of slightly less than HK$21,000 per month). He says that given that the children are at a full time boarding school that he should not be required to pay anything to the mother in addition. He is further of the view that any excess should be paid either from the mother’s contribution under the “side agreement” or from her own income. He also maintains that the mother’s expenses are excessive and that she has not substantiated many of them with receipts. He also argues that each parent should be responsible for the children’s general expenses whilst they are in each party’s respective care, although he acknowledged that in reality the children are not currently in his care for very much of the time.  

44.   The mother for her part now agrees to pay for 50% of the children’s actual expenses whilst they are in her care. Although not expressly stated I understand that to mean that she will cover half of the boys general living costs outside the costs of their education etc. It seems to me that this is quite generous given the disparity in the party’s actual income. This in turn undermines any argument advanced by the father with respect to her earning capacity etc. It matters not, if she is prepared to pay for 50% of their costs in any event.

45.   Further I do not accept the suggestion made by the father that given that he is paying for the boarding school fees, that each parent should simply be responsible for the boy’s expenses when they are in each sides respective care. That only works if infact the children are roughly splitting their holiday time between both parents and they are in boarding school otherwise. Rightly or wrongly that is not the reality here and the maintenance order should reflect that.  

Should the maintenance order of HK$10,500 per month be upheld, reduced or discharged?

46.   I should say at the outset that I intend to uphold the order. The mother said that she was not asking for more but that she did not expect to receive less. Although I am upholding the order, she will be expected nevertheless to pay for all clothes and shoes and for extracurricular activities from that sum.

47.   Originally the mother asked for 43% of the total claim for general expenses. This seemed incorrect mathematically and I gave an indication to that effect during the hearing. However, given the practical reality here it is quite difficult to do justice to the situation simply by relying on the math.  

48.   As a starting point I accept that the parties should each be responsible for 50% of the children’s general living costs. Given that the children are with the mother for 3 or 4 nights per week, this calculation is necessarily difficult. But as a starting point I accept that when the children are with the mother and her husband and there are four people in the house that approximately ¼ of the consumption for general household expenses shall in the first instance apply to each person more or less equally. Given that the children are not there all of the time, it then seems reasonable to suppose that of their ¼ each, say 70% of that is attributable to them whilst they are at home. (I accept that they probably eat a great deal, use a lot of electricity etc etc). 

49.   In exhibit R-4, which is based on the mother’s Form E figures, she set out her general living expenses for a nine-month period from April – December 2016 as follows:

UPDATED – CHILDREN’S MONTHLY EXPENSES FROM APRIL 2016 – DECEMBER 2016 IN AUSTRALIA
			AUD$	HK$ (5.6)
GENERAL	FIGURES BASED ON RESPONDENT’S FORM E (P3/711-713)
Mortgage – TBC so estimate	TOTAL for Household - % allocation to children to be determined		$7,641.00	$42,789.60
Food	TOTAL for Household - % allocation to children to be determined		$3,000.00	$16,800.00
Utilities	TOTAL for Household - % allocation to children to be determined		$2,500.00	$14,000.00
Household	TOTAL for Household - % allocation to children to be determined		$1,200.00	$6,720.00
Car and Fuel	TOTAL for Household - % allocation to children to be determined		$1,400.00	$7,840.00	Bought new car for T to use so additional 1200 per month
	% to be allocated to children as Court sees fit.  Based on income the respondent asks to Petitioner to contribute 70% and possibility of C becoming a day scholar if he continues to struggle being in boarding – especially once T leaves at the end of 2017.		$15,741.00	$88,149.60

50.   I accept that these figures provide a good indication of the general living expenses for the household during this period. In so far as the mortgage is concerned and as indicated during the hearing, this expense will be taken out of the equation, as it does not seem reasonable to expect the father to contribute to the acquisition of an asset by the mother and her new husband. This leaves a figure of HK$45,360 per month. The father complains bitterly about this figure. He says that there is no documentary evidence in support and that it is far in excess of the mother’s previous list of expenses whilst she was living in Hong Kong. He also points out that his own general expenses are quite low. He believes that the figure is inflated, something that is vehemently denied by the mother.

51.   It is of note that when the mother lived in Hong Kong that her expenses were of necessity quite low. She lived in small units and the overhead would not have been high. It is reasonable to suppose that those overheads will now be significantly higher given that she is living in a house. Children also generally get more expensive as they get older. Thus food and other household expenses would normally be expected to increase. Further the mother has included the provision of a car for T in her list of general expenses. In such circumstances I will accept the estimates provided by the mother.

52.   Thus the HK$43,360 shall be divided by 4 = HK$11,340 per month each. Given that the boys are not there all of the time and as suggested by the mother, I will attribute 70% of that figure as their expenses or HK$8,000 per month each. (i.e. 70% x 11,340 = 7,938 rounded up to HK$8,000). Of that sum each parent shall notionally be responsible for 50% of the cost or HK$4,000 per month per child.

53.   In addition, the parents shall each be notionally responsible for 50% of the children’s actual costs, other than for those costs under the amended Recital K. This is a more difficult calculation, especially given the fact that there is some overlap between the figures provided by the mother in the schedule and the figures that she sought to reclaim by way of reimbursement in paragraph 33 – 35 above. I accept though that the figure amounts to approximately HK$6,500 per month each. In the mother’s schedule she said that the expenses for the boys including medical and dental and the IPhones and Laptop, (which are not recurrent expenses) amounted to just over HK$24,000 per month or HK$12,000 per month per child. I accept however that there will be other adhoc expenses not allowed for in the schedule going forward. Thus an allowance of HK$6,500 per month per child seems reasonable in the circumstances. As such the maintenance order for the boys of HK$10,500 per month each shall not be discharged (HK$4,000 per month as a contribution towards the general expenses and HK$6,500 per month for their actual expenses).

Should this arrangement change once T starts university?

54.   In the normal course of events, and if T is at university away from home, then one would expect the father not to pay the HK$10,500 per month to the mother direct once he starts his tertiary education, but for this sum to be utilized as a contribution towards T’s costs. Given that this is an unknown at present I will direct that in the event that T goes away for university, then the father’s contribution of HK$10,500 per month shall cease from that time onwards. Further it is directed that a living allowance shall be paid directly to T until such time as he ceases his full time tertiary education.

55.   The father indicated during the hearing that he would expect T to work in some capacity whilst he was studying at university. The mother for her part pointed out that the course that he was likely to study would most probably be very demanding, in which case it may not be possible for him to work as well. As an indication it seems to me that it is more likely that T will be able to work, either in a paid or unpaid capacity during the university vacations. To what extent he is able to work in a paid capacity might be dictated to by his study visa in any event. It is also very common for students to take unpaid or lowly paid internships during the holidays in order to gain some much needed work experience. Consequently, it is likely that T will need to rely on his parents for significant financial support going forward.  

How should the Singapore property be regarded?

56.   There is a difference of opinion with respect to a Singaporean property retained by the father as part of the financial settlement. Recital F states as follows:

F.   AND UPON the Petitioner and the Respondent acknowledging, agreeing and undertaking that in relation to the property situated at and known as No. 8 Y Street #XX-XX, Singapore, ABCDE, that :

(v)   The Petitioner is to be solely entitled to the rental income as against the Respondent and the Petitioner undertakes to apply this to the reduction of the mortgage secured over the Singapore property or re-invest it for the purpose of the children’s future education in consultation and agreement with the Respondent.

…

(vi)   The Respondent acknowledges that the Petitioner wishes to retain his interest in the property as a capital investment for the children’s future education expenses as he is to be solely responsible for these expenses as against the Respondent as set out in Recital K(i) herein and the Petitioner undertakes that in the event he intends to sell his interest in the property that he will do the following :

(a)   provide 14 days written notice to the Respondent prior to selling his interest;

(b)   re-invest the whole of the net proceeds for the ongoing purpose of meeting the children’s future tertiary education expenses and consult and agree with the Respondent as to the next investment;

(c)   in the event the Petitioner intends to remarry he will discuss and agree with the Respondent prior to remarriage as to the way in which these funds are held so as to preserve the monies for the stated purpose.

57.   The father said during the trial that his interpretation of this was that in the event that he was unable to meet his obligations to the boys under Recital K for their tertiary education that the Singaporean property could be relied upon. The mother for her part was of the view that these were funds that can and should be made available in any event to meet the children’s tertiary education needs going forward. It is of note that if T decides to pursue a career in medicine that he will need to do two degrees. This is not a matter that was before the court for adjudication at this time, but again as an indication the court will expect the father to fully support both children during their tertiary education and if need be to rely on the net equity in the Singaporean property in order to ensure that that is done appropriately. I accept that given the circumstances this may mean that T is supported during two degrees.   

Costs

58.   Both parties are representing themselves, although I understand that they may also have had the benefit of legal advice from time to time. In this case the mother has been more successful than the father, in that I have not accepted the father’s request that his undertaking be extended to cover sundry expenses, I have not accepted his argument on the “side agreement” and the maintenance order for the boys has not been discharged. I did though accept some of his arguments with respect to the second part of Recital K and the funding of the boy’s tertiary education costs. In such circumstances the father shall pay 75% of the mother’s costs on a party and party basis to be taxed if not agreed.

Conclusion

59.   Consequently an order shall be made as follows:  

1.    Recital K shall be amended as follows:
AND UPON the Petitioner agreeing and undertaking to the Respondent and the court that he will continue to make or cause to be made the following payments as and when they arise:

(i)   The children’s school fees, tertiary education fees, school uniforms and any other major expenses for the children directly to the relevant educational establishment or institution until the children cease full time tertiary education. For the avoidance of doubt it is further directed that the father pay a living allowance to each child direct during the course of their tertiary education such sum being regarded as a “major expense”.

(ii)   From the date of this Order and until each child attains the age of 18 years or ceases High School, the Petitioner shall reimburse the Respondent for all medical and dental expenses for each child within 14 days of production of receipts by the Respondent and such original receipts to be produced by the Respondent to the Petitioner within 28 days of such expense being incurred AND FURTHER the Petitioner undertakes to pay for these reasonable expenses during the children’s tertiary education with such amount to be provided directly to the children where appropriate.

2.   The father shall pay the mother the sum of HK$134,111 within the next 28 days.

3.   The father do pay 75% of the mother’s costs on a party and party basis to be taxed if not agreed.