R, E also known as M, E v. P, OPM also known as P M, OPR

FCMC 1658/2020

[2023] HKFC 33

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1658 OF 2020

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J U D G M E N T
( AR Hearing (Maintenance for Children) )

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1.  This is the AR hearing between the parties, and will be focused on maintenance for the children.  H has been absent from these proceedings since August 2021 when his then lawyers applied to cease to act. He made no appearance today.

2.  It is in the Court’s knowledge, as informed by the W, that H is probably residing in Thailand at this moment.  Court does not have his address there although request has been made to H to provide his address (email to H dated 28 January 2022).

3.  Some background to this case can be gleaned from HHJ Melloy’s MPS Judgment dated 8 June 2021.  It is confirmed by W today that save for 1-2 months of payment previously, he has not paid at all under the MPS Order.

4.  On 20 June 2022, I grant leave for W to relocate to Denmark with the three children of the family, namely a daughter age 13, and two sons age 11 and 9.  H gave his consent via email, this is the only participation he made since August 2021.  She moved to Denmark with the children since 1 July 2022.

H’s notice of these proceedings

5.  I need to be satisfied that the H is aware of these proceedings.

6.  The AR trial was set down by DDJ Barnes on 27 January 2022 and fixed on 20 June 2022.  Thereafter DDJ Barnes gave leave for the Order made on that day to be sent by post to H’s last known address in HK, and via email (“H’s email”).  There was no “return mail” on record, but H has not responded via email.

7.  On 20 June 2022 at the intended AR trial date, W produced a record from “WETRANSFER” that H has downloaded the trial bundles she prepared and sent via H’s email on 17 June 2022.  W today in her oral evidence has added that when she asked H how he wanted to receive bundles, via courier or email, it was the H who told her to send bundles via “WETRANSFER”.

8.  W also wrote to H’s email at 11:52am on 20 June 2022 asking him to confirm his receipt of the trial bundles, her opening submission, and her application for relocation with the children dated 16 June 2022, and his consent allowing the children to relocate.

9.  At 2:55pm on the same day, H used H’s email to send his signed consent (dated 12 June 2022) to the children relocation back through the Court’s email address. 

10.  This is a clear indication to me that H’s email is active, and H is aware of the AR hearing on that date although he chose to only respond regarding the children relocation which he approves.

11.  On 20 June 2022, I adjourn the AR trial to today 8 February 2022 with an Unless Order for the H that reads as follows:

“Unless the R do comply with paragraph 3 and 5 of the Order dated 27 January 2022 within 56 days from this Order, the R will be debarred from filing any document in support of the ancillary relief trial.”

12.  Paragraph 3 dealt with filing of Form E, and Paragraph 5 dealt with submission for Court for the AR trial.  Nothing has been filed by the H since 20 June 2022.

13.  In the Order of 20 June 2022, I also gave leave for the H’s friend to file and serve an affirmation confirming he has informed H of the Court Orders, no such affirmation has been filed.

14.  At the hearing today, I seek to further clarify the H’s awareness of these proceedings.

15.  W informs the Court that since June, she has brought up this hearing with H via Whatsapp, and asking if he would attend. She said that he would always ignore this subject.  However, if she asks him other questions, and at one point was asking for his contribution to the daughter’s schooling which he refused, he would be in discussion.

16.  Furthermore, regarding H’s friend, apparently H has used this friend’s address as his correspondence address provided to the Court.  W says with certainty that as they are good friends and clearly in contact, that H would be in receipt of any document sent to this address.  I accept this explanation as when Court sent out the 20 June 2022 Order, no mail was returned, so it must have been received on the H’s behalf. 

17.  It is regrettable due to the H’s unreasonable and intransigent position, this matter has been delayed for more than one year.

18.  I am satisfied on a balance of probability that H is aware of these proceedings and chose not to participate.  As he has been debarred from providing any further evidence, I shall proceed based on the W’s case.

W’s Ask for Ancillary Relief

19.  W filed her Form E in June 2022, which is contained in the bundles sent via H’s email to him and which he has downloaded according to the “WETRANSFER” record.  I accept and make the finding that he has had access to this Form E and the information therein, and chose not to challenge these numbers when given a chance to do so.

20.  She states that she asks for the following for the children, these being from the adjusted numbers she declared under “anticipated expenses” from July 2022 onwards.

i. Half of ¾ of the general expense being $15,530

ii. Half of children’s expenses being $16,580

21.  And for tax purpose, she also asks that:

i. H pays school direct

ii. H pays $10,700 to each child directly into their respective bank account in Danske Bank, Denmark

iii. Amount to be inflation - adjusted by 3.8% per year

22.  I clarified in Court why the maintenance is paid into the children’s bank account.  She explains that there is an annual gift tax exemption amount for the children, so if they receive the maintenance, part of it will be exempted from tax; but if received in her hand, the amounts will be taxed fully.

23.  I told W today that her anticipated expenses are not backed by supporting information and therefore I need to seek clarification at this hearing where W gives evidence under oath.

24.  She confirms that the anticipated numbers under general expenses are more or less accurate.  I accept these numbers of a total of $41,410; ½ of ¾ of this amount comes up to = $15,528, and $5,176 per child.

25.  However, as I am not able to obtain an undertaking from the H regarding school fees, I have to factor this into the monthly maintenance.  Balancing H’s earning capacity versus the W’s and the fact that she has the care of the children while working, he should be bearing the full amount of the school tuition. This comes to $9,624/3 = $3,208 per child.

26.  With regard to the children’s expenses, and in the absence of supporting information, I have made some adjustments to the discretionary spending as follows:

ITEMS	W’s ask	My assessment
School books	$1,800	$1,800
Medical	$1,100	$1,100
ECA and camps	$6,840	$5,800
Entertainment	$2,000	$2,000
Holidays	$4,100	$3,500
Clothing (no uniform and winter)	$3,900	$3,900
Insurance	$920	$920
Pocket money	$3,600	$3,000
Child minding fee	$6,700	$6,700
Pet	$700	$700
TOTAL	$31,660	$29,420

27.  At ½ share of $29,420, it is $4,903 per child.

28.  On my calculation therefore, the amount H should pay for each child is

$5,176 + $3,208 + $4,903 = $13,287 (rounded up to $13,300)

29.  W does acknowledge that she has earning capacity but limited by the fact that she needs to assist the children and be available to them especially since they have just moved and settled down in Denmark.  The W’s earning capacity is therefore limited in terms of what she can do, how long a time she has factoring the care of the children, and an income tax of 40%.  I accept this position.  In court, she confirms that she is still seeking employment and trying to set up a side business selling home items on-line.

30.  W will have to therefore, be responsible for her own portion of general expenses, ½ share of the children’s share of the general expenses, her own personal expenses, and ½ share of children’s expenses, out of her own income.

31.  Based on a brief internet search on inflation rate for Denmark, W’s ask for inflation adjustment at 3.8% looks conservative and modest, and I will accept this position accordingly.

Lack of information from H

32.  I do not have any updated information from H.

33.  All I have is his Form E from March 2021; and affidavits exchange from the W’s MPS application.  W has allegation of his resources.

34.  I am mindful of observations made in the MPS Judgment.  However, it was a decision on a broad brush approach, H’s alleged financial position was clearly not tested.

35.  That said, H has clearly chosen not to provide any information to this Court when given ample opportunity to do so. 

Conclusion

36.  For the best interest of the children, who have now settled down in Denmark, it is important that this matter is brought to a close for them at this point of time.

37.  The following Order for the children’s maintenance are made in the absence of any challenge by H on their expenses when given a chance to do so. As these are periodical payments for the children, these amounts can be varied at any point of time by either parties making the necessary application.

Order

38.  I MAKE THE FOLLOWING ORDERS:

i. H do pay $13,300 maintenance to each of the three children by making direct payment into their bank account with Dansk Bank, Denmark.

ii. This payment to commence from 1 March 2023 until each reaches the age of 18 or completes full time tertiary education, whichever is the later.

iii. This maintenance amount is to be upward adjusted for inflation at 3.8% on an annual basis.

iv. S.18 Declaration to issue.

v. No Order as to Costs.

39.  I FURTHER DIRECT:

i. This Order be sent to the H’s last known address and to H’s email on Court’s record.

ii. W do seek and arrange a Mirror Order of this Order in Denmark or any other relevant jurisdiction if she is so advised.