JBGMK v. JPLY

FCMP61/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 61 OF 2011

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BETWEEN 

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Judgment

(Financial Provision for Child of Unmarried Parents )

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1.  This is the Respondent Mother’s application under s 10(2) of Guardianship of Minors Ordinance, Cap 13 for reasonable financial provision from the Applicant Father for their only son FX born out of wedlock, now aged 14 and studying in a boarding school in UK pursuant to leave granted earlier by Deputy Judge Woodcock (as she then was) on 26^th August 2011. In her supportive affidavit the Mother asked for an equal monthly contribution of about HK$46,000 from the Father towards what she claimed to be FX’s monthly expenses of some HK$93,000, but at the hearing she made an open proposal essentially that she would be prepared to accept a much lower sum of HK$25,000 per month from the Father so as to save time and legal costs, such sun to be dated back to the time of her application of 26^th July 2011.       

2.  That proposal was however not agreeable to the Father who contends that their son FX does not need to spend as much as the Mother has claimed, and that given his age which is 63 and close to retirement, as well as his limited income and financial resources, he insisted at that time that he could only afford to pay HK$23,000 per month instead, but that he has since reconsidered his financial ability and counter-offered HK$20,000 per month as long as FX shall remain in boarding school in UK after taking into account of the additional expenses for visiting him over there in Europe, and that it would not be necessary for it to be backdated since he has so far already paid more than that amount per month on average.     

3.  Given the relatively small difference between the parties’ respective latest proposal, it is unfortunate that they were unable to find further common ground or to further compromise their respective position, notwithstanding having spent a better part of the first day of the trial to try to settle the matter. As such the trial had run its full course, no doubt with further financial implication on legal costs to both sides, of which I understand had run up to in excess of HK1 million for each side in the whole proceedings, with more than half thereof incurred for the present application, a staggering sum in my view which is wholly disproportional to the amount of their dispute or their own financial mean, and which no doubt could have been put to much better use on their son instead. 

Background

4.  I do not propose to repeat here all the background already detailed in Deputy Judge Woodcock’s judgment of 26^th August 2011 when she granted leave to the Mother’s earlier application to send FX to boarding school in UK, save and except those which are material or relevant to the matter now before me as follows.

5.  The Father is a French national but a permanent resident in Hong Kong, and as indicated above is now aged 63. He became acquainted with the Mother in 1997 in Hong Kong when he was then a Vice President in Human Resources Asia Pacific of Louis Vuitton Moet Hennessy (LVMH) while the Mother, an American born Chinese from Washington, USA and also a permanent resident in Hong Kong now aged 44, was then working for the First Pacific Davis as a real estate agent. He was then already married but living apart from his wife and 3 children in France. The parties subsequently started a relationship and when the Mother became pregnant with FX, she resigned from her job and moved in with the Father at his apartment in Stanley.

6.  On 24^th May 1999 the Mother gave birth to FX in the US and in December of the same year she brought FX back to Hong Kong where the parties continued their cohabitation. In about 2000 the Mother began to ease back to work albeit initially on a part-time basis. Unfortunately in June 2001 the Father lost his job at LVMH and started legal proceedings in France against his former employer for unfair dismissal and sued for compensation.              

7.  In July 2001 the Father found a job in Luxemburg and the parties somehow ended their relationship when the Mother moved with FX to a rented apartment at Tsing Yi and hired a domestic helper to look after FX while she returned to full-time employment at Citibank until she started her present fashion designs business through a company known as DHC Ltd. In March 2002 the Father returned to Hong Kong and took up his present employment as a managing director of a public relations company which required him to travel between Hong Kong and China. He now stations in his China office in Shanghai most of the time, but would also stay in Hong Kong from time to time. 

8.  In late 2005 his wife obtained a divorce against him in France and he was ordered to make certain alimony payments to her from his pension as well as maintenance for their 3 children. He claims that these financial obligations together with his on-going legal battle with his former employer LVMH had put him in such difficult situation that he could not make any contribution towards the maintenance of FX during that period of time other than spending and paying for some holidays with him.  

9.  Eventually after he settled his case with LVMH by accepting a lump sum from them in 2006, and with improved financial situation he started to pay for FX’s education costs at the French International School (FIS) and school camps expenses as well as various gifts and holidays for him.

10.  Unfortunately due to problems in school with behaviour issues, FX in 2006 was diagnosed with Aspergers Syndrome, an autism spectrum disorder characterised by difficulties in social interaction, and was required to receive regular counselling and therapy. However, the parties had since been having various disputes over the Father’s access to and/or contact with FX, and when he heard from FX that the Mother intended to leave Hong Kong for good and to return him to her parents’ home in the US, the Father launched these proceedings by issuing an originating summons on 16^th March 2011 under s 10(1) of GMO for inter alia FX’s custody, to which the Mother countered with her said application for leave to remove him from FIS to a boarding school in UK at Woodcote House and for financial contribution from the Father (“Boarding School Application”), which was opposed by the Father but eventually led to the said judgment of Deputy Judge Woodcock on 26^th August 2011 allowing the Mother to do so after having received certain assurance from her, of which no doubt I will have more to say later on.

11.  On 1^st September 2011 the Learned Judge made a further order for the Father to contribute a sum of HK$160,000, which he did, to cover FX’s initial costs and expenses for the boarding school including the first term school fees of £6,300, his flight to UK, various school-related charges, as well as clothing and other setting up expenses, with the question of the Father’s monthly maintenance adjourned pending the parties’ financial disclosure.    

12.  Consequently FX has since September 2011 been studying in UK as a boarder, completing his primary education at Woodcote House during the first year before starting his secondary school in September 2012 at Sherborne School, during which the Mother claims that the Father had contributed on average just a bit more than HK$15,000 per month to meet his needs, much less than half of what she argues he should be responsible, but which the Father insists to have been close to HK$30,000 on average after taking into account of his spending on FX during their holidays together, an amount which however he says he cannot afford to maintain in future given his age and financial limitation.  

13.  As for the proceedings herein, after an unsuccessful FDR hearing before Judge Melloy, and after some delays to the filing of their respective affidavit in support, the Mother’s application for monthly maintenance for FX finally came before me for trial during which both parties gave oral evidence and were cross-examined, with Mr Giles Surman representing the Mother, while the Father was represented by Ms Anita Yip together with Ms Yu-Wing Man.          

Applicable Legal Principles

14.  There is no apparent issue between the parties over the applicable legal principles for such application, specifically under s 10(2)(b) of GMO: 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.

15.  While the only statutory guidance is that the award shall be reasonable given the means of the paying parent, to arrive at what is in the circumstances reasonable, the court will nevertheless bear in mind all the relevant matters drawn to its attention relating to the parties as well as the child, with perhaps the most outstanding factors being the reasonable needs and requirements of the child which must necessarily be linked to the situation of the custodial parent, financially and otherwise, and the ability of the other parent to pay, bearing in mind of course his or her own reasonable needs and requirements so as to arrive at a fair and just award. After all, the concept of reasonableness being synonymous with fairness must be a universal truth. 

16.  In other words, the court has to consider carefully the reasonableness or fairness of the amount of the claim by the mother for the child, and having determined what is a reasonable amount after considering the mother’s means and the child’s needs, as in any maintenance case, the court must then consider whether it is reasonable or fair for the father to pay such an amount against the court’s determination of his overall net income and ability : N v D [2008] 1 FLR, 1629.     

The Mother’s Claim

17.  The Mother’s case is first set out in her 8^th Affidavit where she gave an itemised breakdown of FX’s expenses from July 2011 to November 2012 at an average sum of HK$93,482.68 per month, of which she sought an equal monthly contribution of HK$46,741.34 from the Father (P8 : 1793, 1794 – 1796).

18.  While she did at the trial come down quite substantially from that amount first to HK$27,000 and then HK$25,000 as noted above, it was only a compromise on her part to settle with the Father in order to save time and costs, and as the Father still takes issues with some of her items of expenses or their amount as either unnecessary, excessive or unreasonable, hence it will be helpful to set out all those expenses as originally claimed, which the Mother has divided into 2 parts : General and Personal :

FX’s Personal Expenses :

19.  While these figures were based on her very detailed spreadsheets of FX’s recorded expenses exhibited to her said affidavit (P8 : 1815 – 1883), if they truly represent his monthly needs, then there seems to me something very inherently wrong or unrealistic with the way the Mother had budgeted for her son, a teenager still in secondary school only, albeit one with some special needs, as they would have amounted to more than twice her disclosed monthly income, or 2/3 of the combined disclosed income of the parents, a situation that does not make any financial sense to me, and is clearly not what they could afford, as pointed out by the Father almost at the beginning and throughout the proceedings.  

20.  As noted above, the Mother was prepared to concede at the trial that her original figures had included FX’s setting up costs and other expenses incurred upon first arriving in UK before the start of his boarding school some 2 years back, and hence may not accurately represent his current or foreseeable future needs and expenses, which explains why she was prepared to come down from the original figures with her said new proposal at the trial.       

21.  Leaving aside those setting up costs, she agreed at the trial that FX’s more current and foreseeable monthly expenses should be somewhat lower, and hence she made the open proposal during the trial as noted above with essentially the following items:

(a) Father to pay HK$25,000 per month as being his contribution towards FX’s maintenance;

(b) Father to spend 50% of the school holidays with FX during which he would be solely responsible for his expenses, or in lieu of holidays and if Father does not take holiday with FX then he shall contribute HK$14,000 being the approximate average cost of a UK/HK return airfare, and HK$300 per day for each day of his ‘foregone’ holiday;

(c) The said monthly maintenance shall be backdating to the date of the Mother’s application, with credit to be given of monies paid to date by the Father.  

22.  As already noted above, the Father finds the Mother’s original claimed monthly expenses of HK$93,000 for FX as both excessive and unreasonable, and apart from those initial and set-up costs which she has as aforesaid conceded as inappropriate, I can see why he also takes issue with some of her other items, in particularly as to what she claims to be FX’s ½ share of her general household expenses such as rent, utilities and food when he in fact spends no more than 3 months in total each year in Hong Kong on his school holidays even before taking into account of his access time with the Father during such holidays. At any rate she conceded at the trial that she has since moved to a cheaper flat for less than half of her earlier flat at HK$16,000 per month.

23.  The same can also be argued about her claim for ½ share for her domestic helper whom she says was hired mainly for FX, which may well be true when he was in Hong Kong, but given the fact that he is now 14 and a boarder in UK, it is no longer convincing to me that she can justify having the helper in her household because of FX and hence half of her expenses should go to him.

24.  As for her alleged holiday expenses for FX, the Father also finds them exceptionally high at HK$12,000 per month on average, or HK$144,000 for the year when essentially FX would be with her only for about half of his school holidays, and even if they were to include his hotel bills at the Hilton, dining and shopping at Harrods and travelling in Italy as she disclosed at the trial. Again I can see why, and even at the reduced sum of HK$7,000 as conceded by the Mother at the trial was argued by the Father as too high for a school kid, and I agree that a monthly sum of HK$5,000 or HK$60,000 for the year would seem to me a more reasonable amount for FX’s future holiday expenses in the circumstances.

25.  In fact, Ms Yip argues, according to the Mother’s own summaries of FX’s general and personal expenses from January to November 2012 in her 8^th Affidavit (P8/1880 – 1881), the average sum actually amounted to only about HK$21,000 per month, which the Father believes more accurately reflects the son’s reasonable needs and expenses, as it chimes with what the Mother has said in her evidence that after the son has settled in, she could better economise, and that even adding her own figures of the son’s school fees, tuition fees and other school expenses, the total monthly sum amounts to just over HK$50,000, which is still less than her reduced sum at the trial, let alone the original amount of her original claim.

26.  At any rate, Ms Yip submits, the Mother’s claim must be premised on an estimated monthly average that is fair and reasonable, but on the evidence referred to above, there is considerable difficulty in understanding the basis of her calculation both by looking at the tables and the invoices she has produced, and that in light of her spending pattern and financial management of which Ms Yip described as poor, the court should not so easily or readily accept what the Mother said as reasonable needs and expenses.                       

27.  Above all, it is submitted on behalf of the Father that whatever reasonable budget the court may find for FX, and whatever amount that the Mother may be prepared to come down from her original demand, her claim must be looked at together with her assurance given to the court in her Boarding School Application which Ms Yip contends as one of the most significant factors on the merits of the Mother’s present claim.  

Mother’s Assurance to Court

28.  According to Ms Yip, one should in fact start by looking at the events leading to the Mother’s Boarding School Application of 26^th July 2011 when FX was then studying at a reputable international school at FIS, being able to see both parents as and when he liked, and when the Father could financially afford a level of contribution acceptable to both himself and the Mother, against her sudden and whimsical decision to send FX to UK boarding school in the hurried fashion that she chose, and her assurance (“The Assurance”) given to the court at that trial that she would support FX’s education even though the Father’s contribution was insufficient or even if he was unable to provide any contribution, thereby disabling the Father to raise financial inability as a ground for objecting that FX be sent to the UK for schooling at such a young age when it was obvious that the parties could not financially afford to pay for 9 years of education abroad with their own asset which ultimately led the court to allow her application.

29.  This means, Ms Yip argues, that the Mother must be financially capable of maintaining FX in boarding school by herself, and that it would not be fair for her now to require the Father to contribute more than what he has offered to support FX, given the fact that he did insist at that trial, and still does, that he cannot afford to support him in boarding school in UK.         

30.  That Assurance of the Mother was confirmed by her at this hearing, and Ms Yip argues that it must be made on the basis that the Father pays nothing, hence anything contributed by him would be a bonus and regardless of whether he is able to contribute or not, the Mother would continue to ensure that FX is taken through the next 8 or 9 years of education in UK.  

31.  It was not expected, Ms Yip argues, that the parties would suddenly generate funds with time and the Mother well knew that the Father would soon be facing retirement, and that since the Boarding School Application, the parties’ assets have not increased but rather depleted by the increased expenses for funding FX’s UK education, and if I may add no doubt also by their legal costs incurred in this application.  

32.  Hence, Ms Yip submits, given the Mother’s Assurance, strictly speaking the real and only issue is over the Father’s means and ability to pay which should be considered in the context of his age and the fact that he will retire in about 2 years’ time. I agree that the Mother’s Assurance would be one relevant factor to be taken into account for the court to arrive at a fair and reasonable sum of maintenance which the Father should provide for FX, but to do so, it would be necessary to first investigate in more details the parties’ respective financial means, starting with the Mother’s, including what the Father believes to be significant resources from her parents.

Mother’s Financial Means

33.  As noted above the Mother has been running her own fashion design & trading business in Hong Kong and India, and according to her latest 9^th supportive affidavit she is now earning HK$39,000 per month from her company with no other allowance or benefits (P9/1889), although in her Form E filed earlier in 2011, she put her total monthly income somewhat higher at HK$45,000 made up of director’s salary and various allowances (P5/1195). 

34.  At either income, Ms Yip argues, that the Mother could not have given her Assurance unless she has other resources, and that such resources clearly come from her rich parents with an average of about HK$1 million per year deposited into her various bank accounts as evidenced by her bank statements (P9/1911 – 1943), of which she says is not disputed and that there is no contention that such funding would stop in future.  

35.  Such financial assistance received from third party, Ms Yip submits, should of course be taken into account by the court even before the recent decision of the Court of Final Appeal in KEWS v NCHC, FACV 18 of 2012, that the court should not ignore the very significant financial support given by a party’s parents, with the following further guidance on two critical evidential questions that the court should consider (para36):

(1) What is the extent of the financial assistance provided by the third party to the husband or wife?

(2) What is the likelihood of such financial assistance continuing in the foreseeable future?

36.  According to Ms Yip, solid proof of the Mother’s parents’ financial support can be easily gleaned from her said Form E where she disclosed inter alia 2 Charles Schwab accounts with total investment then worth just over HK$6.2 millions, which has since grown to over HK$6.8 millions according to her said 9^th Affidavit (P9/1887), although she also claimed to have total liabilities in excess of HK$3.5 millions, of which US$250,000 or the equivalence of HK$1,939,462.65 were said to be loans from her parents to ‘meet the shortfall between her income and FX’s and her expenses, including her legal expenses.’ 

37.  As her total legal costs incurred up to the 9th Affidavit were stated to be HK$1,188,858.26, Ms Yip submits that this means that the rest of the ‘borrowing’ would have gone into meeting her living expenses and FX’s at the average sum of over HK$80,000 per month.

38.  While the Mother has put these financial support down as loans from her parents, which is not admitted by the Father, Ms Yip argues that at best they must be treated as commonly known as ‘soft loans’ only to be repaid when the Mother were capable of doing so, but not obliged to if she was not, and on the facts of this case, Ms Yip submits, that the parents’ support must be unconditional and anything but loans, which was the reason why the Mother was able to so confidently give her said Assurance to the court.    

39.  In the absence of any evidence from the Mother to the contrary at the trial, I agree with Ms Yip’s submission that these financial support from the parents are likely to continue or will be provided whenever the Mother are in needs of them, and that if these were indeed loans, they should be treated as soft loans which may not be repayable in future, but Mr Surman contends that the court should not be distracted by them from the real issue, which is not about what money the Mother has which if substantial may only have the effect of reducing the Father’s contribution, but rather about how much does FX reasonably cost, and how much should the Father contribute towards such cost. I have already dealt with the former, as for the latter, it will of course be necessary to consider the Father’s financial means, as it turns out to be indeed the bone of contention between the parties.

Father’s Financial Means

40.  In his Form E of 2 years ago in 2011, the Father put his monthly average income at HK$99,000 made up of base salary of HK$24,250, bonus of HK$22,765 and commission of HK$51,994, and that he also had assets mainly in bank savings and investments then worth about HK$5.4 million in total. However, according to his 9^th Affidavit of 25^th February 2013, he claims to be now earning less at just over HK$83,000 per month on average based on previous year’s figures due to the fact that the economy was not particularly good in 2011/2012, and with the market deteriorating which will have a negative impact on his employer’s business and ultimately his income in particularly his commission, he is concerned that his future income will only go further down until his retirement in 2016, while the value of his assets has also dropped significantly to now stand at only HK$3.2 million (P9/2029 – 2033).

41.  In the same affidavit he also updated his current expenses at just over HK$100,000 per month, being HK$34,772 for his general household expenses including rental of HK$24,000 for an apartment in Causeway Bay, HK$40,000 for his personal expenses, and average about HK$26,000 on FX including travelling and other expenses for holidays with him in Europe.

42.  He further claimed that upon his retirement in about 2 years, he may only find work on a casual basis from home and hence whatever income he may be able to earn will likely be insubstantial, and that any monthly deficits that he will certainly run into from meeting his living expenses as well as his contribution towards FX’s maintenance will have to be met from his savings, and when they run out, in the absence of any pension or other resources, it would be disastrous to him at his old age, alone and without the support of his children from his previous marriage who are all in Europe and have their own family.       

43.  It is for all these reasons, he says, why he can at present only afford to pay HK$20,000 per month for FX after taking into account of his additional expenses for spending his half share of his school vacations, and that anything more will place him under immense financial strain, bring a large deficit and likely impact on his ability to enjoy his access to FX as he would be left with no money to travel to Europe to see him.  

44.  The Mother of course takes issue with everything the Father has said about his financial situation, in particularly with what he alleges to be his current income. Firstly, as pointed out by Mr Surman on her behalf, being one of the founding members of his company and one of its managing directors running the China office regularly handling large sums of cash which he alleges are for the office expenses, but which she very much doubts his evidence that none of this money is in fact for his benefits.

45.  These cash withdrawals mainly from the Father’s CCB bank account were indeed quite substantial, usually in amounts between HK$300,000 and HK$400,000 in various months of 2012 (P10/2192 – 2200), totalling more than HK$1.8 million in cash over a 9-month period, all of which he simply explained either as his own expenses or for his China Office operation costs without any documentary evidence from his employer as to the latter, of which Mr Surman submits that the court should take a very dim view of these explanations and conclude that he has access to much more money than he has admitted.

46.  Secondly, Mr Surman argues, the Father’s assertion that the economic downturn in Europe in recent years and flowing through to Asia and as a result has impacted on his company’s business and hence his commission is in fact not borne out by his Inland Revenue Income Tax Assessments over the past 3 years which show indeed an upward trend as to his income in 2009/10 at an average sum of HK$63,644 per month, increasing to HK$95,755 per month in 2010/11, and HK$132,564 per month in 2011/12.    

47.  Above all, Mr Surman submits, the manners in which the Father has thrown money in his legal costs in his continued effort to avoid contributing to his son’s welfare and upkeep, his seeming unconcern about how much he was spending such as keeping an apartment in Causeway Bay, an expensive area in Hong Kong while spending most of his time in Shanghai, his cavalier attitude in testifying in court, and his nonchalant approach to how much he was spending on his lawyers can mean only one thing – that he has a lot more money than he has disclosed.

48.  While it is true that his tax assessments show an upward trend in his annual income from 2009 – 2012, but as pointed out by Ms Yip, they do not necessary show the full and more current picture of all 3 components of his income, and that according to those documentary evidence produced by the Father in these proceedings and in particularly those exhibited to his said 9^th Affidavit, Ms Yip submits that they reveal a much lower income of only about HK$83,000 per month on average for the 12 months preceding to his said affidavit, and a much more gloomy forecast of his future income in particularly as to his commission.

49.  Most of those documentary evidence can be found under exhibit “JBK-54” to his 9^th Affidavit (P10/2092 – 2330) of well over 200 pages, but also in other earlier affidavits filed in the proceedings, of which the more relevant ones are as follow:

(a) His employment contract dated 23^rd February 2002 (P8/1687);

(b) His remuneration records from January to December 2012 and Employer’s Control Sheets (P10/2270 – 2293, 2295 – 2300);

(c) Cash advancements from Employer for office’s expenses verified by their letters (P5/1112, P6/1317);

(d) Bank statements of his Bank of China Account No. 121-721-1-003376-7 (P10/2190 – 2206);

(e) His Tax Returns Notice from issued by Inland Revenue Department (P10/2268 – 2269);

(f) His Employer’s Letter dated 15^th February 2013 clarifying his current income arrangement and their economic outlook for the next 2 years which may impact on his income (P11/2502 - 2503).            

50.  Ms Yip submits that these evidence prove that under examination, the Mother’s suspicions that the Father is earning more than he has disclosed are baseless, that his average income depends on the period of time considered given that his commissions fluctuate, and that the economy and his work market directly impact his commission and often such impact is felt only a year or 2 later. Given his employer’s comment that the economy is not going to augur well in the next two years which will impact on the company’s revenue and hence the staff’s income, the evidence in fact suggests that the Father’s income will instead slope downwards. At any rate, she submits, even assuming the world economy will pick up, there is no guarantee as to what income the Father will reap in what he claims to be the remaining 2 years of his working career given that his work is commission-based.

51.  Furthermore, Ms Yip submits, despite challenges during cross-examination, the Father’s evidence that his income will decrease remains firm and reliable, when he attributed to the statutory restriction the Chinese government has imposed on his visa, and that he will have difficulty obtaining a work visa in future given his age, and if he continues to use a business visa instead, he will be subject to the heavy PRC tax. As a result he was asked by his employer to take up more and more administrative and IT work, which was another reason culminating in his decreased income for 2013.

52.  Whatever the future holds for his income, it must of course first be set against his own expenses before it can be assessed as to how much he can or should contribute for his son, and much has been said about his keeping an expensive apartment in Hong Kong, which Mr Surman argues that he does not need given the fact that he spends most of his time in Shanghai, and that he should have at least move to a cheaper flat away from Causeway Bay in order to economise for his son, as the Mother has done with her own accommodation.

53.  To which Ms Yip submits that his lease began in March 2009 and will not be expiring until March 2014, hence the Father cannot until then break it and hence there is nothing he can do for the time being to cut down on his rental expenses. In any event she submits that it is not unreasonable for him to keep the flat, which is not luxurious, and which he claims to be his home and to house his various possessions, and it is also where he can entertain his clients and acquaintances which is important for his job, and where FX can stay during his access time to him in Hong Kong.

54.  I agree with Mr Surman that the Father in fact had the opportunity to move to a cheaper flat when he renewed the lease in March 2013 after the first part of the trial when it was clear to him of this issue being taken by the Mother, and while I accept his reasons for keeping an apartment in Hong Kong, I also agree that his current one is too expensive for him under the circumstances, but short of breaking his lease now, which is not what I would suggest, it seems to me that there is not many other options available than to wait and see what will happen to his accommodation cost when his current lease expires in 2014.

55.  Much criticisms have also been levelled at him by Mr Surman over the amount of his legal costs and the manner in which he was said to have thrown money at his lawyers in what the Mother believes to be his continued effort to avoid contributing to his son’s welfare and upkeep is described by Mr Surman as breathtaking, and he submits that the Father’s seemingly unconcern and cavalier attitude about how much he was spending on lawyers can mean only one thing – that he has a lot of money and a lot more than he has disclosed.

56.  The same criticism should in fact in my view be also levelled against the Mother for the same way she has spent her legal costs over what seems to me a rather straightforward dispute with a relatively small difference between the parties’ respective proposal referred to above, of which no doubt I will have more to say later in this judgment, but the fact that entrenched parties were so often ready and willing to spend or waste their resources on litigating their disputes so disproportionally does not necessarily mean that they could afford to do so, let alone to show that they must have a lot of money hidden elsewhere, as it has been well observed in this jurisdiction that when relationship broke down, some parties were simply unable to manage or control their emotion or affairs which sadly very often led to such madness as profligacy on legal costs.                  

57.  Nor is the fact that the Father was listed third in his employer’s introduction of consultants in its website (Exhibit “R-2”) necessarily mean that he is the third most important member of the company, or the third highest earner for that matter, or that he is making more money than he has disclosed, as implied by Mr Surman. As pointed out by Ms Yip, “R-2” shows that there are other managing directors in fact listed lower than those members who are not managing directors, hence the fact that the Father was listed third by the company seems to me neither here nor there as far as his income is concerned.

58.  Accordingly, and on the evidence before me including those of the Father under cross-examination at the trial, I am not persuaded that he has concealed any income or money other than what he has already disclosed, and that the Mother’s suspicion that he may have is just what it is, a suspicion which can perhaps be disposed of by asking this question: If indeed he has a lot more income or money than he has disclosed, why did he not simply pay over the few thousand dollars extra that she asks for and just call it a day?

Conclusion

59.  Whatever maintenance this Father is to pay for the support of his son, as noted above the only statutory guideline is that such sum shall be reasonable having regard to his means, which means that it should also be fair between the parties, but to arrive at what is reasonable the court must take into account of all other relevant factors and circumstances of the case, which essentially can be summarised as follows: that the Mother, having given her assurance to the court that she could support her son even without any contribution from the Father in her desire to send the son to boarding school in UK against the Father’s wish that he could not afford to do so, now asks him to contribute at least HK$25,000 per month and to be dated back to her said application.

60.  Having made my findings of the respective financial means of the parties and the needs of FX as above, the essential question to ask must therefore be this: How much then should the Father, now at the age of 63 and on the verge of retirement in the near future and naturally concerned about his own financial needs, be contributing for the support of his son, when the Mother obviously has a comparatively much longer working life ahead of herself and with substantial financial resources from her parents, that the court thinks both fair and reasonable in the circumstances?       

61.  I have no difficulty concluding that the right answer to that is for him to pay as he has proposed HK$20,000 per month on top of meeting additional expenses when on vacation with FX, which is both fair and reasonable in the circumstances of the case, as it is an amount within his means without crippling him financially or causing any difficulty to the Mother who should and can afford to shoulder up a somewhat bigger share of their son’s monthly expenses given her financial resources and her said assurance, and that in view of the various payments already made by the Father for FX since his enrolment into boarding school in UK, of which I understand averaging close to or no less than his proposed sum, it would therefore not be appropriate in my view for it to be dated back to the date of the Mother’s application, but instead to the date of his such proposal, with credit to be given of any payments made since, and I so order accordingly.

62.  Of course it goes without saying that such maintenance may be looked at again or reviewed sometimes next year if necessary when the Father may move to a cheaper apartment, or when his commission situation may become better than he has predicted. It seems also that the parties may have agreed between themselves on certain financial arrangements for their son during his school vacations which do not require my attention or adjudication, and if so, I suggest that those terms be included in the draft order.

63.  As for the question of costs, given the result of my decision, and taking into account of the substantial amount of legal costs already incurred by each party, I do not think that the Mother would in the circumstances want to argue against it, in particularly after the way she had initially framed her claim as to some of the expenses much criticised above, I believe it would be appropriate for each party to bear his/her own costs of the application, which is an order nisi to be made absolute at the expiration of 14 days.

64.  In closing, however, I find it necessary to emphasize here again that sadly this is yet another one of those cases in which the legal costs incurred have become so disproportional to the disputes between the parties that it is indeed maddening, all the more so with the relatively long interval between the trial and its conclusion in this case during which the parties were able to continue to negotiate but that at the end they instead chose to incur a further HK$170,000 in combined legal costs rather than to further compromise what boiled down to be a monthly difference of a mere few thousand dollars, and that even something like half of that amount of further legal costs would most likely have settled their remaining dispute over backdating the Father’s maintenance. The madness of all these is indeed, borrowing a word from Mr Surman, breathtaking, and for which neither party deserves sympathy but only criticisms. Nevertheless, it remains of course my gratitude to their counsel for their valuable assistance rendered to the court throughout the trial.