JN v. TLC

FCMP 283/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NUMBER 283 OF 2011

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J U D G M E N T

(Variation of Maintenance)
(Jurisdiction & Stay of proceedings)

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Introduction

1.  By an inter-parte summons dated 27^th July 2015, the Respondent mother (hereinafter called “the mother”) made the Application to vary the Order dated 23^rd July 2014 (“the Maintenance Order”) to the effect that the maintenance provided for in the Maintenance Order be varied (hereinafter called “the mother’s V of M summons”). The mother’s V of M summons is one of the issues to be determined in this hearing.

2.  By an inter-parte summons dated 5^th October 2015, the Applicant father (hereinafter called “the father”) also made the Application to vary the Maintenance Order (hereinafter called “the father’s V of M summons”). The father’s V of M summons is second issue before me in this hearing.

3.  The third issue is an inter-parte summons dated 27^th April 2016 taken out by the father raising the issue of jurisdiction and stay of proceedings (hereinafter called “the summons related to jurisdiction”).

4.  I had given an order dated 7^th April 2016 that the aforesaid 3 summonses be heard together in July 2016.

5.  In support of the mother’s V of M summons, the mother will rely on her 34^th and 37^th Affirmations to vary paragraphs 3, 6 and 8 of the Maintenance Order as stated in her opening submission which was also adopted as her final submission.

Applicant’s request for adjournment of trial and non-attendance

6.  The trial date of the aforesaid 3 summonses was fixed on 7^th April 2016 after consulting the mother and the father, and the trial was fixed to be heard on 6^th -8^th July 2016 and 12^th July 2016.

7.  By a letter dated 6^th June 2016 from the father, the father informed the court that he would not be able to attend the hearing schedule on the 6^th -8^th July 2016 and the 12^th July 2016, and he requested the trial date be postponed to the end of July or the first week of August or another alternate date that can be fixed depending on the court schedule.

8.  The reason given by the father in his letter was that he needed to resubmit his Australian visa application in Papua New Guinea on 24^th June in Port Morseby, and he would not be able to travel back to Hong Kong in between the processing time as he would not have any passport.

9.  He further stated that his visa for Australia would expire on 12^th July 2016 and upon travelling out of Australia, he needed to apply as soon as possible in June 2016 to ensure that he had a valid visa for July 2016. He stated that he would make the application on 24^th June 2016 in Port Morseby so as to enable him to travel to Australia for access in July 2016.

10.  He further stated that he would return to Hong Kong after he had received his Australian visa and his passport. He asked for the court to re-schedule the hearing.

11.  By a letter dated 27^th June 2016, the father send a letter to the court informing the court that he was in Papua New Guinea and would not be able to attend the hearings scheduled. He also stated that all his court documents had already been filed and the court could make a determination based on the documents that had been filed if it would continue with the trial on the dates stated.

12.  The father was aware that his application for adjournment might not be granted, so he asked the court to consider the merit of his case in his absence, should the trial continue.

13.  By a letter dated 9^th June 2016, the mother raised her objection to the father’s application for adjournment.

14.  On the date of trial, the father was absence and I heard the grounds of objections and submission raised by the mother to the adjournment made by the father.

15.  In gist, the mother submitted that this was not the first time that the father used the same reason to adjourn the hearing. He had previously sent letter dated 11^th July 2015 to the court asking for the adjournment of pre-trial review. On that occasion, he also used the same excuse of the expiry of Australian visa. The mother submitted that he should be aware of the time of expiry of his Australian visa when fixing the trial date of this hearing on 7^th April 2016.

16.  Further, the mother submitted that it was also not necessary for the father to leave Hong Kong to apply for Australian visa. The mother submitted that the father can apply for Australian visa via online or through the Australian consulate-General Hong Kong.

17.  To support her observation, the mother had provided me the information which showed that passport holder of Papua New Guinea could apply for Australian visa via online, therefore the father was not justified to leave Hong Kong to make such application.

18.  In addition to that, the father chose not to apply for the visa in Hong Kong but to leave for Papua New Guinea was only delay tactics. In any event, the father chose not to attend the trial when there was no justifiable reason for him to leave Hong Kong.

19.  I was persuaded that the father had deliberately chosen not to attend the trial. Further, since the father had already indicated in his second letter to the court that all the documents that he relied on had filed to the court, and the court could base on those documents to determine the case in his absence, I was satisfied that the trial should proceedin the absence of the father, and I had made known to the mother that she should deal with the points raised by the father in his various affidavits filed to the court.

Background of this case

20.  The background and history of this case prior to the mother’s V of M summons had been illustrated in the judgment dated 23^rd July 2014 given by Deputy District Judge Yim(hereinafter called “the Maintenance judgment”) which I am not going to repeat again in details in this judgment. Nevertheless, I will only give a brief account of what had happened prior to issue of the mother’s V of M summons.

21.  This case first begun by an originating summons dated 24^th November 2011 issued by the fatherfor defined access and parental rights of his son C (hereinafter called “C”) pursuant to the Guardianship of Minors Ordinance Cap 13 (GMO).  C is approximately 5 years and 5 months old now.

22.  Later, the mother took out a summons dated 10^th February 2012 for relocation to Australia.  The mother’s application for leave to relocate to Australia was settled by consent on 9^th May 2013 subject to an undertaking that she is to return C to Hong Kong if called upon by the Court to do so.

23.  On the other hand the mother also took out a summons dated 9^th December 2011 for C’s maintenance pursuant to section 10 of GMO.  Interim maintenance has been paid by the father either voluntarily or pursuant to court, the application was set down for trial following an unsuccessful Financial Dispute Resolution (FDR) hearing in November 2013.

24.  Despite the consent order in May 2013, the parties’ disagreement upon access continued, the father took out a summons dated 18^th February 2014 for various reliefs related to C’s arrangement matters, in gist, the father urged the court to direct the return of C pursuant to the mother’s undertaking. The father’s summons was adjourned to be heard together with C’s maintenance summons.

25.  However during the proceedings the father said that he would register a mirror order in Australian Court while the mother said she would object the holiday access over there.

26.  In November 2011 the mother unilaterally named C by removing his first name and the father’s surname from the hyphenated surname leaving C’s second name and the mother surname.  The matter related to C’s name and the application for C’s Papua New Guinean passport was settled by virtue of the consent order in May 2013.

27.  The parties had heated dispute over the minor access and maintenance matters.  The father took out a summons for defined access on 24^th November 2011, and C was 8 months old by that time.  Following that the mother took out a summons for maintenance on 9^th December 2011.  Both summonses were to be heard on 15^th February 2012.

28.  The father later also took out a further summons for a social welfare report and defined C’s access in the absence of the mother on 21^st December 2011 to be heard on 16^th January 2012.

29.  On 16^th January 2012, all the summonses was adjourned to 18^th April 2012 and a social welfare report was called for and to be available 7 days before the hearing.

30.  The mother later also took out a summons on 10^th February 2012 to be heard on 19^th March 2012 for leave to remove C to New Zealand, Australia, Thailand and USA from time to time for the purpose of holiday and visiting family.

31.  On 5^th March 2012, the mother by affirmation made further request for leave to remove C to Australia after the hearing on 18^th April 2012 as the maternal grandmother has been diagnosed with cancer. The father by his affidavit dated 16^th March 2012 objected the mother’s removal application.

32.  On 18^thApril 2012 upon hearing from the parties and the mother’s undertaking, and interim access order was made in line with the social welfare officer’s recommendation, the mother was granted leave to remove C within a specified period of time.

33.  The case was adjourned to 22^nd October 2012 to deal with the interim maintenance for C and to review the access arrangement.  On 20^th August 2012 a formal order of interim maintenance in the sum of $6,000 was made commencing from 1^st September until further order.

34.  The mother left Hong Kong with C accordingly. While the access dispute was yet to settle, the mother took out two summonses to be heard on 19^th November 2012 for leave to remove C and relocate to Australia and an increase for interim maintenance for the minor on 8^th November 2012.

35.  During the hearing on 19^th November 2012, the father indicated that he intended to apply for sole care and control in view of the mother’s relocation application.  Upon hearing from the parties, Deputy Judge Yim increased the interim maintenance from HK$6,000 to HK$12,000 for the month of December and January pending the maintenance trial in February 2013, and ordered the issue of defined access while C remained in Hong Kong be set down for trial with two days reserved on 30^th and 31^st January 2013 and the mother’s relocation application be set down for trial on 2^nd May with 7 days reserved together with the father’s possible application for sole care and control.

36.  On 30^thJanuary 2013, Deputy Judge Yim ordered the monthly interim maintenance of HK$6,000 to continue until further order and the mother’s application for C’s maintenance be adjourned to a date to be fixed with one day reserved.

37.  The mother’s application for relocation and the father’s application for custody and sole care and control were heard between 2^nd May 2013 and 9^th May 2013 eventually, towards the end of the trial the parties were able to reach an agreement and the consent order was granted subject to a number of undertakings provided by the parties.

38.  Upon the settlement of C’s custody and removal on 9^th May 2013, the maintenance issue was adjourned to 30^th July 2013 for mention.

39.  The mother later issued a summons dated 3^rd September 2013 for C’s maintenance at the rate of AUD$1,069 from March 2014 and a lump sum of AUD$332 for school enrolment fee, this summons was adjourned on 18^th September to 20^th November 2013. The mother also issued a summons on 5^th November 2013 for interim maintenance in the sum of HKD$12,000 for the month of December 2013 and January 2014 and AUD$2,975 from February 2014 until further court order.

40.  Upon hearing from the parties, Deputy Judge Pang ordered the father to pay monthly interim maintenance HK$8,700 from December 2013 until further court order.

41.  The mother relocated to Australia with C in February 2014 leaving her daughter K (hereinafter called “K”) behind with K’s father.The removal order was made upon the parties’ consent in May 2013 towards the end of the removal trial, and the father was legally represented during the trial.

42.  C had since February 2014 relocated to Australia with his mother.  The parties had previously agreed that from 1^st February 2014 the habitual residence of C shall be Australia.  The mother had made arrangement for childcare in Australia with a view to take up gainful employment and K was to join them in due course. C has now been living in Australia for approximately 2 years and 6 months.

43.  The mother has also undertaken in the Order dated May 2013 not to defend or otherwise obstruct the father from seeking and receiving a mirror order in Brisbane, Australia.  The date of relocation was stipulated to be 1^st February 2014, the father could have applied for a mirror order well before that date to protect his parental rights.

44.  Finally, the hearing for C’s maintenance was heard in April 2014 and July 2014 respectively, and Deputy Judge Yim gave the Maintenance judgment and concluded the matter related to C’s maintenance. The Maintenance judgment was the basis of the Maintenance Order, therefore in due course, I shall cite some of the relevant parts of the findings made by Deputy Judge Yim in the Maintenance judgment in this judgment.

Events and reasons leading to the mother’s V of M summons

45.  The mother stated that the main reason for the variation, amongst others is the difficulties she had experienced in enforcing paragraphs 6 and 8 of the Maintenance Order. She claimed that as a result of the father’s continual breaches of the Maintenance Order, she had sought the assistance of Child Support Australia (hereinafter called “CSA”), which was an agency run by the Australian Government of Human Services, to assist separated parties in enforcing maintenance payments for the benefit of their children.

46.  She said that she had obtained the assistance of CSA to collect and enforce the maintenance payment of HK$7,000 per month under paragraph 3 of the Maintenance Order from the father.

47.  She said that CSA registered paragraph 3 on 19^th January 2015 at which time they converted the monthly maintenance of HK$7,000 into AUD$1,128.40. Since then, she said that she no longer required to incur costs and spend unnecessary time pursuing the father about providing the maintenance for C as ordered under paragraph 3 of the Maintenance Order.

48.  However, she was informed by CSA that they are unable to assist her with the collection of any amounts due under paragraphs 6 to 8 of the Maintenance Order because, unlike C’s monthly maintenance payments of HK$7,000 under paragraph 3 of the Maintenance Order, the amounts to be paid under paragraphs 6 to 8 of the Maintenance Order are not periodic and the specific amounts of the nursery/education fees as well as the Bupa health coverage were not clearly set out in the Maintenance Order.

49.  The mother submitted that CSD confirmed in their letter dated 6^th June 2016 under a heading “A court order that allows for education and private health fees as periodic payments” which stipulated in Division 1 of the Child Support (Registration and Collection) Act of 1988 the type of liabilities that can be registered for collection with department. If the court order states either a weekly, monthly or yearly amount for the cost of education and private health fees, then this order can be registered for collection.

50.  Thus, the mother submitted that in order to ensure that all of the terms of the Maintenance Order could be both registered and enforced via CSA and she no longer had to waste any further costs and time chasing the outstanding payments from the father going forward, she requested for the two expenses under paragraphs 6 and 8 to be incorporated into the periodical payments under paragraph 3 and be varied pursuant to paragraph 24.1 and 24.2 of her submission.

51.  Furthermore, the mother also submitted that in addition to the aforesaid reason, there was a change of circumstances after the granting of the Maintenance Order which justified the variation of the Maintenance Order as suggested by the mother.

52.  The mother said that the father had continually acted in breach of paragraphs 3, 6, 7 and 8 of the Maintenance Order. She said that after C relocated to Australia, the father continued to make irregular or late payments for C’s maintenance, and the father had been continually in breach of paragraph 6 and his undertakings provided to the Court on 9^th May 2013, 17^th January and 3^rd July 2014 to share C’s education expenses with her.

53.  She further said that the father had also not reimbursed her for any of his share of C’s fees at Cooloon in 2014 and Indooroopily Montessori Children’s House in 2015.

54.  C had commenced primary school at Anglican Church Grammar School (“Churchie”) in January 2016. The mother said that the father had ignored her correspondence to him in relation to C’s primary school education for 18 months. The father finally agreed to C attending Churchie in February 2016, but the father failed to reimburse her his share of C’s expenses at Churchie.

55.  The mother stated that Churchie charged higher school fees to non-residents of Australia, and the father is not an Australian Resident, so to protect C’s best interests and to avoid the never ending court proceedings due to the father’s continuous breaches of the Maintenance order, was for the father’s share of C’s education expenses under paragraph 6 to be varied to an amount and incorporated in paragraph 3 of the Maintenance Order to be collected and enforced by CSA.

56.  The mother also submitted that the father had been in breach of paragraph 8 for 23 months. Paragraph 8 stipulated that the father provided health coverage to C under his existing family health with Bupa Australia. The mother stated that the father had refused to provide health coverage to C under his family health coverage with Bupa Australia.

57.  The mother further stated that the father only purchased a Bupa Asia budget individual child health coverage for C, and in any event, C could not benefit from Bupa Asia health coverage, as C did not reside in Hong Kong.

58.  The mother also disbelieved that the father had arranged a medical insurance for C via Bupa Australia, as the mother stated that the father failed to provide any details of the policy or a medical card to her. Therefore the mother through her solicitors proposed to the father that the father provided AUD$251.35 per month towards a single parent Bupa Australia health care policy. Because Bupa Australia was unable to provide health care for a child via a single person policy, so it had to be done by subscribing to a Single parent Policy.

59.  The mother said that on 2^nd March 2016, the father took out a policy with Bupa Australia, however it was not under his family health coverage; instead it was a Single Parent Budget policy with AUD$500 excess, and she submitted that the coverage offered by this policy was insufficient to meet C’s medical expenses when compared with the family health coverage with Bupa Australia.

60.  As a result, the mother now proposed that paragraph 8 of the Maintenance Order be varied to the effect, that a monthly amount of AUD$269.37 be added to and payable under paragraph 3 of the Maintenance Order.

61.  The mother said that the Australia Court did not have the jurisdiction to vary a Hong Kong maintenance order, therefore she withdrew her application to the Australia court which she previously filed.

62.  The mother was also of the view that the father had access to funds from undisclosed sources, and that he should be financially capable of meeting the amount of the maintenance as suggested by the mother.

63.  As to the father’s V of M summons, the mother stated that it should be dismissed because the father failed to attend the trial.  Further, the mother submitted that the father’s V of M summons should not be heard until he complied with the terms in the Order dated 18^th November 2015, and that the father failed to provide any documentary proof to show that there had been significant change in his financial capabilities.

64.  The mother was of the view that the main complaint of the father stated in his 20^th Affidavit in support of the father’s V of M summons referred to complaints over the access and mirror order, and these matters were irrelevant to his application to vary paragraphs 3, 4 and 6 of the maintenance Order. It was submitted by the mother that the maintenance and parenting matters are separate matter though the father continually tried to link them together.

The oppositions made by the father

65.  The father stated in his 21^st Affidavit that the mother had not shown any details of a significant change in C’s situation, and that he could not afford the varied amount as suggested by the mother.

66.  The father said that previously he told the court that he would be seeking third party help from his family to support C’s school fee payments as he could not afford to pay maintenance and school on his own, and now his family had removed this support.

67.  The father was complaining that the mother was using the Centre link child care benefit and children refund from the government as an additional payment for herself as well as claiming the full school fee payment from the father and not declaring them.

68.  The father asserted that the Public school system in Australia was free and a good system used by the Australians up until the later primary years of which they then proceed to private school and that he complained the mother’s choice of sending C to private school currently which he could not afford at present.

69.  The father also raised his objections to the mother’s V of M summons by filing his 25^th Affidavit dated 22^nd April 2016 and also the summons related to jurisdiction and stay of proceedings.

70.  Although the father’s 25^th Affidavit was filed 1 day late and the summons related to jurisdiction was filed 6 days late pursuant to the Order dated 7^th April 2016, I will give leave to the father to be heard and to be determined in his absence, because the facts he relied on in his 25^th Affidavit also raised the concerns of this court, and that the delay caused by the father was not substantial enough to justify for a denial of his right to be heard.

71.  In his 25^th Affidavit, he stated that there are 6 proceedings in 2 Jurisdictions namely Hong Kong and Australia, and all proceedings in these 2 jurisdictions are related to custody, welfare and maintenance of C and should be heard together in 1 jurisdiction being Australia, as C is no longer a Hong Kong resident but a resident of Australia and domiciled there.

72.  The father also said that the custody and welfare of C had direct impact on the maintenance order in terms of payment of school fees and third party payments for health care and payment of maintenance as a whole, therefore the father stated that the custody and welfare of C should be heard first in Australia.

73.  The father stated that though the mother registered the Hong Kong maintenance order, she was able under the child support services legislation to apply for the maintenance of C to be determined again, and the mother should have applied to have the maintenance determination to be dealt with in Australia.

74.  The father also stated that the custody and welfare of C should be heard first in Australia and determined before maintenance to be determined in Hong Kong, therefore he also asked for stay of proceedings.

75.  The issue of jurisdiction raised by the father should be the preliminary issue to be dealt with by me first. Based on the grounds relied on by the father, there are 2 issues I need to address to. First, whether this court has any jurisdiction to deal with C now and if yes, then secondly, should this court decline jurisdiction or stay the proceedings pending the determination of the custody and welfare of C in Australia.

76.  I was asked by the mother to vary the Maintenance Order. The question to be determined is whether this court has any power to vary an order previously made by this court.

77.  My view is that this court has power to vary a previous order made by this court, namely the Maintenance Order. Deputy Judge Yim made the Maintenance Order pursuant to Guardianship of Minors Ordinance, Cap.13 which covers the law governing applications concerning children of unmarried parents in Hong Kong.

The Law in Hong Kong

78.  The general principles governing applications relating to children are set out in Section3 of the Guardianship of Minors Ordinance, Cap. 13 (hereinafter called “the Ordinance”), which says that:

(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a)  in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i)  shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to-

(A)  the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B)  any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii)  shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b)  except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and shall be exercisable by either without the other;

79.  Section 10 of the Ordinance provides that:

“(1) The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding-

(a)the custody of the minor; and
(b) the right of access to the minor of either of his or her parents,

as the court thinks fit having regard to the best interests of the minor and to the conduct and wishes of the parents.

(2)The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders-

(a) an order requiring payment to the applicant by the parent or either of the parents of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that parent;
 
(b) an order requiring payment to the applicant by such parent or either of such parents of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;

(c) an order requiring the securing to the applicant by such parent or either of such parents, to the satisfaction of the court, of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;

(d) an order requiring the transfer to the applicant for the benefit of the minor, or to the minor, by such parent or either of such parents, of such property, being property to which the parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of that parent;
 
(e) an order requiring the settlement for the benefit of the minor, to the satisfaction of the court, of such property, being property to which such parent or either of such parents is so entitled, as the court thinks reasonable having regard to the means of that parent.

(3)An order may be made under subsection (1) or (2) notwithstanding that the parents of the minor are then residing together, but-

(a)no such order shall be enforceable, and no liability thereunder shall accrue, while they are residing together; and
 
(b) any such order shall cease to have effect if for a period of 3 months after it is made they continue to reside together:

Provided that, unless the court in making the order directs otherwise, paragraphs (a) and (b) shall not apply to any provision of the order giving the custody of the minor to a person other than one of the parents or made with respect to a minor of whom custody is so given.

(4)An order under subsection (1) or an order under subsection (2) (other than an order for a lump sum payment in one amount, for a lump sum to be paid in instalments where all such instalments have been paid or for the transfer of property) may be varied, discharged, suspended or revived after being so suspended, by a subsequent order made on the application of either parent or after the death of either parent on the application of any guardian under this Ordinance, or (before or after the death of either parent) on the application of any other person having the custody of the minor by virtue of an order under subsection (1).”

80.  Section 12A of the Ordinance being provision as to powers of court to make orders in favour of children and duration of such orders:

“(1) Subject to subsection (3), the term for which by virtue of an order specified in subsection (2) any payments are to be made or secured to or for the benefit of a child may begin with the date of the making of an application for the order in question or any later date but shall not extend beyond the date when the child will attain the age of 18.

(2) The orders specified for the purposes of subsection (1) are an order

(a)under section 10(2)(a), 11(1)(b)(i), 12(b)(i) or 13(2)(a) for payment of a lump sum by instalments;
 
(b) under section 10(2)(b) or (c), 11(1)(b)(ii) or (iii), 12(b)(ii) or (iii) or 13(2)(b), (3)(a) or (4) for periodical payments or secured periodical payments.

(3)The court may include in an order referred to in subsection (1) in relation to a child who has not attained the age of 18 a provision extending beyond the date when the child will attain that age the term for which by virtue of the order any payments are to be made or secured to or for the benefit of that child, if it appears to the court that-

(a) that child is, or will be, or if such an order or provision were made would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not that child is also, or will also be, in gainful employment; or

(b) there are special circumstances which justify the making of the order or provisions.

(4)Any order made by virtue of section 10(2)(b), 11(1)(b)(ii), 12(b)(ii) or 13(2)(b) shall, regardless of anything in the order, cease to have effect on the death of the person liable to make payments under the order, except in relation to any arrears due under the order on the date of such death.”

81.  According to section 10(4) of the Ordinance, it clearly states that an order under subsection (1) or an order under subsection (2)……may be varied, discharged, suspended or revived after so suspended, by a subsequent order made on the application of either parent or ……

82.  At the time of the commencement of proceedings and the making of the Maintenance Order, C was residing in Hong Kong. Therefore, when considering the question of jurisdiction for varying the Maintenance Order, it does not matter whether C is still residing in Hong Kong.  This court has the power to vary a previous order made by this court as stated in section 10(4) of the Ordinance.

83.  The point raised by the father that C is now residing in Australia may be relevant when this court considers whether jurisdiction should be declined, which I shall deal with later.

84.  In the mother’s V of M summons, the mother asked that subject to an order being made under paragraph 1 of the mother’s V of M summons, paragraphs 6 and 8 of the Maintenance Order be dismissed.

85.  Paragraphs 6 of the Maintenance Order stated that “the Applicant is to pay half of the minor’s nursery/education fees directly to the service provider where this is not acceptable by the service provider, the Applicant is to reimburse the Respondent with half of the minor’s nursery/education fees within 7 days upon receipt of the un-redacted payment proof.”

86.  Paragraphs 8 of the Maintenance Order stated that “the Applicant to provide health cover to the minor under his family health cover with BUPA Australia, until the minor reaches the age of 25 years.”

87.  The second question I need to consider is that whether I should vary paragraphs 6 and 8 of the Maintenance Order to the extent as suggested by the mother.

Relevant parts of findings of Maintenance judgment

88.  In the Maintenance judgment, Deputy Judge Yim found that the mother had undisclosed fund which enable her to maintain her living standard, and that the father was only able to meet monthly maintenance payment at the rate of $7,000.

89.  Deputy Judge Yim also found that the father was not in a position to make any lump sum payment as requested by the mother, and the father had entered into an agreement with his parents that they would pay half of the minor’s nursery/education fees should he not able to do so.

90.  Deputy Judge Yim accepted the evidence that the father had subscribed a medical insurance policy (a family health cover with BUPA Australia) which would cover his child, on top of the monthly minor maintenance the father offered to include the minor under this policy and had a medical card under this policy be issued to the minor to allow him extra medical protection.  Child under this policy was covered up to 25 years old.

91.  It was under these findings and background that paragraphs 6 and 8 of the Maintenance Order was granted.

92.  According to section 10(2) of the Ordinance, I am of the view that section 10(2)(b) and 10(2)(c) give the court power to deal with periodical payment, whereas section 10(2)(a), 10(2)(c) and 10(2)(d) of the Ordinance give the court power to deal with lump sum payment, the transfer of the property, and settlement for the benefit of the minor such property of the parent respectively.

93.  I am of the view that paragraphs 6 and 8 of the Maintenance Order should be dismissed in the first place, since they are not periodical payment, and also does not fall within the power of the court to grant under the rest of section 10(2) of the Ordinance. Therefore, the court did not have the power to grant these 2 orders from the outset.

94.  The next question that I need to consider is after dismissing paragraphs 6 and 8 of the Maintenance Order whether I shall entertain the mother’s request to have paragraph 3 of the Maintenance Order be varied to the effect that the father paid the mother a revised periodical payments for the maintenance of C as requested by the mother in the mother’s V of M summons. This question has to be answered in line with the issue of jurisdiction and stay of proceedings raised by the father.

Jurisdiction and Stay of proceedings

95.  To begin with my discussion under this topic, a distinction must be drawn on the difference between the existence of jurisdiction and the power of the Court to decline to exercise jurisdiction even if such jurisdiction exists. This is quite different from the issue of whether the Hong Kong proceedings should be stayed by reason of forum non conveniens which is an alternative basis for the Hong Kong Court to decline jurisdiction (see paragraph 8.15 QMY and GSS [CACV 68/2014]).

96.  The aforesaid Court of Appeal case stated at paragraph 8.18 that the court should be extremely circumspect in assuming any jurisdiction in relation to a child who is currently physically present in some other jurisdiction……This is certainly not a case where the welfare of the child is at risk if the Court declines to exercise jurisdiction. Although any order made by the Hong Kong Court may be enforced in Hong Kong where the father lives, the Court faces unfamiliar matters relevant to the child such as her living, education and medical expenses…..

97.  The mother asked this court to vary the Maintenance Order so that the monthly maintenance of C for the sum of HK$7,000 be increased and included the expenses for education fees and health care expenses.

98.  I was provided by the father an order of the Federal Circuit Court of Australia dated 15^th February 2016 which was exhibited in the 25^th Affidavit of the father. In that Order, it was noted that the mother enrolled C in Prep at the Anglican Church Grammar School and she considered that C should continue attending the school, whereas the father does not wish for the child to attend Prep at the Anglican Church Grammar School.

99.  The future choice of school is one of the issues needed to be determined by the Court in Australia. The father and the mother is now asking the Federal Circuit Court of Australia to give the parenting order, such parenting order may deal with the care, welfare or development of C which shall include the type of school C should attend in future.

100.  I agree with the father that the custody and welfare of C had direct impact on the maintenance order in terms of payment of school fees and third party payments for health care and payment of maintenance as a whole.

101.  In fact, both the means of the father and the means of the mother need to be considered at the same time so as to determine the amount of maintenance of C when considering the welfare of C. The Australia court is in a better position to assess the means of the mother and reasonable expenses and needs of C.

102.  Since after relocation, the custody and welfare of C will be heard in Australia, the mother should have applied to have the maintenance determination to be dealt with in Australia, if the amount of HK$7,000 per month previously granted in Hong Kong is insufficient to cater for the needs of C.

103.  I also agree with what the father stated that though the mother registered the Hong Kong maintenance order, there is nothing to stop her from applying for the maintenance of C to be determined again in Australia. It is up to her to register the Maintenance Order or to apply afresh in Australia.

104.  The present case is certainly not a case where the welfare of C is at risk if this Court declines to exercise jurisdiction.

105.  The father also stated that the custody and welfare of C should be heard first in Australia and determined before maintenance to be determined in Hong Kong, therefore he also asked for stay of proceedings.

106.  I am of the view that save and except that paragraphs 6 and 8 of the Maintenance Order should be dismissed for reasons I had stated above, I consider that the variation of maintenance as suggested by the mother and the father will not be entertained by this court, because I shall decline jurisdiction for reasons I had stated above.

107.  As I have already ruled that jurisdiction should be declined, it is not necessary to consider the issue of stay of proceedings.

108.  In addition, the father failed to attend the court on the trial date, the father’s V of M summons shall be dismissed as a result of his non attendance on the trial date.

Costs

109.  The mother failed in her application to have the maintenance of C to be varied to the effect as suggested by her. However, I am of the view that the father’s un-co-operated conduct created much difficulties to the mother in collecting payment of C’s educational fees previously. The father also caused great difficulties to the mother in relation to the arrangement of the health care protection of C.

110.  Further, the father chose not to attend the trial, and asked for further adjournment of the trial.

111.  My view is that the mother’s V of M summons was a result of the conduct of the father forcing her to seek this court’s determination. In the circumstances, I consider that it is fair to make no order as to costs for all the 3 summonses before me, though the mother failed in her application.

Order

112.  It is ordered that :

(1)  Paragraphs 6 and 8 of the Order dated 23^rd July 2014 made by Her Deputy Judge Yim be dismissed with effect from 23^rd July 2014;

(2)  the inter-partes summons dated 27^th July 2015 taken out by the mother and the inter-partes summons dated 5^thOctober 2015 taken out by the father be dismissed;

(3)  there be no order as to costs for the inter-partes summons dated 27^th July 2015 taken out by the mother and the inter-partes summons dated 5^th October 2015 and the inter-partes summons dated 27^th April 2016 taken out by the father, including all the reserved costs.

Representation: