AAN v. EWT

FCMC 15739 / 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 15739 OF 2003

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J U D G M E N T

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Introduction

1. This is an application by a respondent husband for a variation of maintenance for the only child of the family, LL. The wife has also issued a judgment summons to enforce payments, which she says are due and owing under the terms of the original consent order.

Background

2. The parties married on the 21 June 1996 and had one son, a boy, LL, who was born in 2000.

3. Unhappy differences arose between the couple and on the 31 March 2003 they separated. On the 17 March 2004 the wife issued a divorce petition based on mild unreasonable behaviour particulars and on the 15 July 2004 the decree nisi was pronounced. This was then a marriage of approximately 7 years duration.   

4. Initially the parties were both legally represented and on the 12 May 2005 two comprehensive orders were made by consent in relation to both arrangements for LL and ancillary relief. This followed an extensive mediation process. It seems that to a large extent the agreements reached through the mediation process formed the basis of the consent orders, notwithstanding the fact that the parties did not sign mediated agreements. 

5. The consent order in relation to LL was eminently sensible and in an ideal world should have formed a reasonable basis for parenting him going forward. For example the following agreements and undertakings were entered into:

H.    AND UPON the Petitioner and the Respondent acknowledging and agreeing that in relation to all major matters involving LL’s welfare including but not limited to education; country of residence; religion and significant medical matters they will discuss such matters and consult each other so that they may agree as to what in his best interest.

I.   AND UPON the Petitioner and the Respondent acknowledging and agreeing that both parents shall be involved in LL’s schooling and each will keep the other informed so that both may have the opportunity to attend all school functions when parents are invited and parent teacher conferences or parent teacher association events and school activities.

J.  AND UPON the Petitioner and the Respondent undertaking to the Court and to each other that they will communicate with each other by way of informing and updating the other of all significant events concerning LL’s welfare whilst LL is in their respective care.

K.    AND UPON the Petitioner and the Respondent undertaking to the Court and to each other that they will co-operate and will not interfere with the other during their respective parenting of the child; the Petitioner in her daily care of LL and the Respondent during his access.

L. AND UPON the Petitioner and the Respondent acknowledging and agreeing that in the event of any dispute relating to the terms herein, or they are unable to reach agreement on any of the issues that are to be discussed and agreed in future, the parties will refer such disputes or issues to mediation prior to initiating any legal proceedings, or seeking a legal judgment.

6. An order was made for joint custody with sensible arrangements put in place for access going forward. Unfortunately, notwithstanding this order, there have been ongoing disputes concerning LL since and the parties have returned to court on several occasions on issues largely concerned with access.

7. In so far as the consent order concerning ancillary relief is concerned, the parties entered into a clean break agreement, with the wife receiving assets in the sum of approximately HK$8.25 million.

8. In addition the following agreements were made in relation to LL.

E.   AND UPON the Respondent undertaking to the Court and to the Petitioner that he will :-

a)  maintain health insurance with Good health (Asia Pacific) or that of similar coverage for the child of the family, namely JTLT (“LL”), a boy, born in 2000 until he attains the age of 18 or completes his full time undergraduate degree at University, whichever is the later;

b)  cover all of LL’s excess health related expenses not covered by the insurance policy referred to in E(a) above of up to a maximum of HK$1,000,000.00 per annum or HK$2,000,000.00 within the duration of three consecutive years whichever is the lesser sum until he attains the age of 18 or completes his full time undergraduate degree at University, whichever is the later;

c)  maintain the current American Club Membership and to provide for full access for LL towards the use of all facilities until such an age as determined by the American Club when LL is required to convert to his own single name membership;

d)  provides full access to the Petitioner towards the use of all facilities of the American Club until the Respondent remarries or cohabits for a period of no less than 21 months, at which time he may elect to change the named spouse’s membership from the Petitioner to his new spouse or his cohabitee provided that he pays the Petitioner the sum of HK$125,000.00 as 50% of the initial cost of the membership fee within seven days of any such change;

e)  pay the Petitioner’s American Club Parking sticker fees and American Club Golf Association fees for Year 2005 subject to the Petitioner undertaking to the Court and the Respondent that all other expenses including parking and golf association fees from 2006 onwards to be incurred by the Petitioner under the American Club membership will be her own responsibility;

f)   pay for all of LL’s school or other education fees which are agreed by both parties until such time as he completes undergraduate education, such payments to be made direct by the Respondent to the relevant education establishment(s) or to reimburse the Petitioner. The said reimbursement will be made monthly on the 1^st day of each month.  The Respondent will reimburse the Petitioner in respect of all receipts presented 7 days before the next payment date;

g)  maintain LL or a trust in LL’s benefit, as the beneficiary of the two life insurance policies with Metropolitan Life Insurance and Zurich Life Insurance as support of remaining maintenance payments for LL, with shortfalls to be provided for through terms a Will.  The Respondent further agrees that he will provide the Petitioner with confirmation by letter from his lawyers that he has executed a Will within 60 days of the signing of the said Consent Summons giving effect to this undertaking.  The Respondent further undertakes that he will not revoke that clause and in the event that he makes a new Will, he will provide a letter in similar terms from his lawyers to confirm that the new Will give effect to this undertaking within 7 days of execution of new Will;

F.   AND UPON the Petitioner agreeing that she will provide the Respondent with updated copies of the passbook to the HSBC Account No. XXXX-XXX-XXX held in the joint names of the Petitioner and LL in trust for LL on the 1^st January and the 1^st July each year.  Should the Respondent find any withdrawals from this account made by the Petitioner without the prior consent of the Respondent, he may deduct the amount of the unauthorized withdrawal from the next forthcoming maintenance payment to LL.

G.  AND UPON the parties agreeing and acknowledging that :-

a)  should any of LL’s medical expenses exceed the figures in excess of his insurance coverage and the Respondent’s responsibilities in the manner as referred to under paragraphs E(a) and (b) above, any such extra cost shall be spilt between the Petitioner and the Respondent in direct proportion to their respective salaries at that time;

b)  should LL not be residing in Hong Kong during the time when he is still entitled to be a member at the American Club in the manner as referred to in paragraph E(c) above, the Respondent shall have the option to suspend the American Club membership until his return to Hong Kong.  Should the Petitioner choose to do so, she may take over the monthly membership costs for her own use to the Club during the time LL is not residing in Hong Kong;

c)  the HSBC Account No. XXXX-XXX-XXX is held by the Petitioner in trust for LL provided that the Petitioner will provide documentary evidence showing the source of US$50,000 in the said account was from her parents;

d)  LL’s maintenance as referred to under paragraph 1 below is to be reviewed by the parties in May 2007 and adjusted every two years to reflect inflation, such adjustments being established by reference to the Hong Kong Hang Seng Consumer Price Index (B) published by the Hong Kong Government;

e)  at the Respondent’s discretion, he may elect to pay LL’s maintenance as referred to in paragraphs 1 below on a quarterly basis or an annual basis to be paid in advance; and

H.  AND UPON the Petitioner and the Respondent undertaking to each other to inform the other in the event of any change in his or her employment status, to include any change in his or her income.

IT IS HEREBY BY CONSENT ORDERED THAT:-

1) The Respondent do pay the Petitioner maintenance for the benefit of the child of the family, namely JTLT, a boy, born in 2000, in the sum of HK$28,182.00 per month into a bank account to be nominated by the Petitioner.  The first payment for the month of May 2005 to be made forthwith and subsequent payments on the 1^st day of each calendar month commencing on 1^st June 2005.  The payment shall continue until the child reaches the age of 18 or completes his full time undergraduate University degree, whichever is the later.

9. On the 10 March 2009 the wife issued a judgment summons. She maintains that there are outstanding arrears in relation to payment of LL’s mandarin tuition fees contrary to the husband’s undertaking under paragraph E (f) above. She also seeks reimbursement for payment of a computer to assist LL with his homework. The school had said that it was necessary for all children in LL’s year to have access to a computer in order to complete their homework. She seeks this under the same paragraph. In total she says that the sum of HK$24,350 is outstanding i.e. HK$13,800 for the mandarin tuition and HK$10,550 for the computer.

10. On the 23 June 2009 the husband issued a Notice of application seeking a downward variation of child maintenance payments and other child support payments under the consent order referred to above.  He seeks this on the basis of

… changes in circumstances including i) the Petitioner’s reduction in housing and related expenses, (ii) the Petitioner’s prior affirmation to return to the workforce, (iii) my increase in educational costs for the child, (iv) my change in employment and (vi) my increase in US taxation 

Issues

11. It seems to me that the following issues need to be determined:

Variation

Should the maintenance payments and other undertakings relating to the financial support of LL be considered de novo?

If so how much maintenance should the husband pay to the wife for the support of LL?

Should any of the other undertakings be varied?

Judgment summons

Has the husband willfully refused to comply with his undertakings as set out in para E (f) of the consent order dated the 12 May 2005?

In particular has he willfully refused to pay in full for LL’s mandarin tuition and for a new computer for him?

If so is he in contempt of court?

How should the alleged arrears be dealt with?

How should the other undertakings be dealt with?

What order should be made in relation to costs?

Discussion

12. I must now turn to consider the issues, the law and the parties evidence as set out in their affirmations, their Form E’s and as given orally by them during the hearing.  For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the husband or the wife, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact.

Variation of maintenance

Should the maintenance payments and other undertakings relating to the financial support of LL be considered de novo?

If so how much maintenance should the husband pay to the wife for the support of LL?

Should any of the other undertakings be varied?

The Law

13. The husband’s application for a variation 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 ……”

14. 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 fettered by the existence of a previous order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (see Ch 3.131 Jackson’s Matrimonial Finance and Taxation, 7^th edition). However it is also true that there is normally a “trigger” or what some might call a change of circumstance leading to the application.

15. The parties also have a duty to make full and frank disclosure of their means and a failure in that duty can lead the court to draw an adverse inference. (SeeBaker v Baker [1995] 2FLR 829).

16. 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 wife’s present financial position

17. Under the terms of the consent summons the wife received assets in the region of HK$8.25 million on a clean break basis. It was anticipated that she would return to work in some capacity. She is well educated and prior to LL’s birth she worked as a management consultant. She is now 46 years of age and has not worked outside the home for the past 12 years. To a very large extent this is her choice. She wishes to continue to parent LL full time. LL was born in 2000. He is now 9 years of age. He attends XX International School.

18. In order to supplement her income the wife has invested some of her assets in real estate. These investments provide her with some additional income in the sum of c HK$27,500 per month. She says that she has liquidated approximately HK$1.2 million in order to maintain her present lifestyle as a stay at home Mum. The wife is also in a relationship, but she does not permanently cohabit with her new partner.

19. In her schedule of outgoings the wife says that she has general outgoings of approximately HK$32,400 per month, personal outgoings of approximately HK$18,500 per month and outgoings for LL of approximately HK$21,500 per month. These figures do not include those sums that the husband pays directly for school fees, the school bus, the American Club, insurances etc.

20. Both parties have referred me to their negotiation process and in particular to the fact that it was agreed that the husband would pay a proportion of the wife’s and LL’s general expenses. Initially the wife had sought a 35% contribution. In the end a 31% contribution was agreed.

21. The wife puts it thus in her Form E:

4.   We did not use the expense charts in the Form E for our financial negotiations.  Instead, we used the more detailed financial charts discussed in mediation to arrive at our final figures however in filing our respective updated Affidavit of Means, we filed in the traditional court Form E format.  Please see Annexure B for a copy of the Mediation chart utilized to arrive at child support figures for the 12 May 2005 Consent Order.  It remains therefore that the allegation that a “substantial portion” of rent, associated fees and utility expenses were used to arrive at LL’s support is entirely false.  In the interest of avoiding an expensive and potentially lengthy protracted court battle, I agreed to an amount of child support not sufficient to cover 100% of LL’s existing expenses at that time.  Moreover the amount of “general expenses” allocated, as seen in the detailed financial charts, LL’s allocated share was originally only 35% and was subsequently reduced by another HK$1000/month resulting in a final allocated share to LL of only 31% rather than 50% as would be a more fair settlement.  This may be evidenced in our original financial discussion charts.  Without from that time, I found remaining in Shouson Hill not to be financially viable.  This combined with the fact my Shouson Hill landlord requested an increase in rent from HK$35,000/mo to HK$60,000/mo, I was left with no other option, eleven months following the 12 May 2005 order, but to seek more suitable accommodation.

5. LL had for several years experienced lung/respiratory complications requiring him to use a nebuliser daily in order to quell a serious cough and allow him to participate in daily activity and breathe normally.  His respiratory condition was due in part, if not solely, to the air quality.  Whilst we remained in the urban areas, LL’s health did not improve.  Moreover his expenses were increasing year to year as costs for his activities, clothing/food consumption increased with age and our car expenses were rising unexpectedly so we moved to Sai Kung.  I now strive to use organic foods for the benefit of LL’s health thus our food costs have increased substantially.  Since our move to the countryside and since I started to cook using organic foods, LL’s appetite has increased to a more healthy level, he has not needed to use the nebuliser and with the increased amount of outdoor space available, he has been able to spend more time out of doors playing with other children in an environment with much improved air quality over living in the urban areas.

22. Therefore it seems to be accepted by the wife that although a certain level of expenditure was agreed for LL under the heading of general expenditure that at the end of the day she reduced this level of expenditure significantly by moving to Sai Kung. I understand why she did this and given that she has since chosen not to return to work, the move seemed to be a sensible one.

23. I should add though that I do not necessarily accept that this would have been the approach had the matter been argued in Court. I accept that the husband should pay a contribution towards LL’s general expenses, but not necessarily at the level of 50% or even 31% of the total. It seems to me that 50% of the total is quite properly attributable to the wife’s own expenses. If one then splits LL’s expenses, each parent would more likely be contributing 25% each to the overall total.

24. The wife has been under the impression that the husband should be responsible for all of LL’s school expenses, down to reimbursement for back packs, snack box, thermos etc. Generally speaking she says that it costs between HK$35,000 – HK$37,000 per month to maintain LL and that she is responsible for any shortfall. She also mentioned the sum of HK$6,887.

25. Given all of the above it seems to me that this is a suitable case to consider de novo.

If so how much maintenance should the husband pay to the wife for the support of LL?

Should any of the other undertakings be varied?

Change in the Wife’s housing, utility and domestic helper costs

26. The wife says that she has no income save for the rentals in the sum of HK$27,500 per month. She receives periodical payment for LL in the present sum of HK$31,000 per month. In addition the husband pays the school fees, the school bus and the school lunch fees direct. He also reimburses the wife for school uniform and other miscellaneous items. He continues to provide health insurance for LL and he also reimburses the wife for other health related items on a needs must basis. He maintains the American club membership and life insurance.

27. On the wife’s schedule of outgoings the present figure of HK$31,000 should cover all of LL’s expenses as listed in the sum of HK$21,500 per month. She also seeks a contribution towards the general household expenses. The husband says that the figure under general expenses should be reduced given that the wife’s rent and utility expenses are now significantly reduced from before. In addition he says that she does not have a full time domestic helper, but a part time local domestic helper.

28. However the wife’s general expenses at c HK$32,000 per month seem reasonable.  I will allow a 25% contribution or HK$8,000 odd per month as the husband’s contribution towards LL’s expenses under this head. 

The wife’s earning capacity

29. The husband also argues that the wife’s earning capacity should be taken into account. I was initially concerned by the assumption made by the parties that the husband should be wholly responsible for LL’s actual expenses. Certainly had the wife been working I would have expected her to be making an ongoing monthly contribution towards those expenses. The wife says that she has done so in part by paying any shortfall of between HK$4,000 – HK$5,000 per month and also by liquidating some of her asset base. I accept that to be the case.

30. That leads onto the next question – what in truth is the wife’s current earning capacity? She has been out of the work place for 12 years. If she were to return in any meaningful capacity she would most probably need to retrain or possibly re-qualify. The wife says that she has made enquiries and that even if she wanted to return to work she would not be able to do so. I certainly accept that unless the wife were to make a concerted effort she is unlikely to be able to return to the workforce easily. Thus her earning capacity in the meantime is likely to be somewhat limited. Consequently any contribution that she is able to make is likely to have to be from capital or from her other investments. I accept that it is appropriate for her to continue to do so.

Increased educational costs - school fees and other related expenses  

31. In addition she is seeking to increase the amount of mandarin tuition that LL receives. This amount is currently reimbursed to her. The cost is HK$300 per hour i.e. HK$600 per session. She wishes LL to have at least two sessions per week and possibly more, longer term. In her Form E she refers to four hours per week at total cost of HK$4,500 per month (i.e. HK$1,200 per week x 45 weeks (52 weeks per annum less 7 weeks holiday), = HK$54,000 divided 12 = HK$4,500 per month).

32. This is where the real dispute lies. The issues between the parties are actually quite minor – petty even in the overall scheme of things. I recommended that the parties consider mediation and/or the appointment of a parenting co coordinator. For whatever reason this has not happened.

33. I may be wrong in my assessment of the situation, but it seems to me that the real difficulty may lie with the arrangements for LL. As those arrangements have become more problematic that dispute seems to have spilled over into the financial agreement between the parties for LL, with neither parent seemingly finding it possible to compromise. I have also been concerned by references to LL in the pleadings e.g.

v. LL’s refusal to attend weekend access on 5 September 2008, stemmed from his disappointment, which grew between 23 August and 4 September 2008, dire with the Respondent’s lack of willingness to communicate regarding the purchase of his school computer.  Following receipt of the email from school, the Respondent had previously taken LL computer shopping to check out available models, functions and prices during an access visit on 23 August 2008.  He then did nothing further nor communicated with LL to follow up on the purchase or his decision.  I tried to diffuse the situation by telling LL that the Respondent may be busy with other things and that LL should not worry or concern himself with the computer purchase.  By the evening or the 4 September 2008, upon returning home from mid-week access, LL suddenly announced he was not going to participated in weekend access the next evening as he was upset with the Respondent.  This came as quite a shock to me as I had expected they would sort out the computer issue over dinner as LL was beginning to receive homework requiring the computer to complete.  It had by then been over two months since the email from the school dated 23 June 2008, and LL was getting quite anxious with his inability to complete his school work properly.  Despite my attempts to persuade LL to leave with the Respondent for the upcoming weekend access, he adamantly refused.  As I had not received any response to my numerous attempts to contact the Respondent to discuss and resolve this issue, I made the decision to go ahead and purchase the Imac I did no in my continuing effort to promote a healthy relationship between LL and the Respondent, and in order to ensure that LL’s school work does not suffer.  I submitted the receipt in accordance with our 12 may 2005 order, but received no response for 7 weeks, to any of my computer related communications until 9 October 2008, when reimbursement was refused.

34. The husband says that he presently pays education fees in the total sum of HK$14,500 per month, which includes certain payments that he pays direct and others that he reimburses the wife for i.e. mandarin and other tuition expenses. As I have said the wife currently wishes that LL have two sessions of mandarin per week and possibly more longer term. The husband initially agreed to one session of two hours per week. From the e-mail exchange it appears that as the parties relationship deteriorated the negotiations about mandarin tuition became more difficult. Initially the husband refused to pay for an additional session if there was a five week month or if LL was on holiday etc. In October 2008 LL started to have two sessions of mandarin tuition a week i.e. four hours at a cost of HK$1,200 per week. There was some confusion in the e-mail exchange over whether or not the husband actually agreed to this. Initially he seemed to agree to a trial period. In any event I accept that LL needs two sessions of extra mandarin tuition a week in order to maintain his mandarin proficiency at XX International School. In order to lessen the conflict between the parties, instead of that sum being reimbursed to the wife, it will be included in the maintenance figure to be paid by the husband to the wife each month.

The computer 

35. The wife argued that the husband is bound by his undertaking given at para E (f) above to pay for LL’s school computer. I do not agree. There is nothing specifically in that clause about big expense items such as computers. In fact the clause is quite clear – it relates to school or other educational fees i.e. tuition costs and the like. Therefore the husband is not required to reimburse the wife for the cost of the computer.    

The husband’s ability to pay- i.e. his employment status

36. It seems that at present that the husband has the ability to pay. He says that there is a possibility that he may lose his current position as a consultant in the electronic power industry.  Having reviewed the evidence I accept that that is entirely possible. However the current position is unknown. The husband says that he has made some enquiries internally. Other more general enquires has been somewhat limited. In any event I accept that the husband does have a significant earning capacity and that even if he were to lose his job that certainly in the short term he would be able to pay the wife maintenance for LL out of savings.

US tax

37. The husband also argued that an increased US tax liability meant that his maintenance obligations for LL should be reduced. I do not accept this to be the case. Clearly even on his own figures he can afford to pay a reasonable amount of maintenance for LL, even including an anticipated increase in US tax.

How much then should the husband pay?

How should the other undertakings be varied?

38. Based on last year’s figures the husband pays school tuition fees, (HK$131,695 per annum), school other fees and lunch fees ((HK$11,817 per annum) direct. He has undertaken to make these payments. He should continue to do so. He says that the school bus fee has also on occasion been paid direct or he has reimbursed the wife. (HK$14,380 per annum). Going forward he should undertake to pay the school bus fees direct. This will minimize any potential conflict between the parties. Last year he paid an additional HK$4,279 for other items, which were reimbursed to the wife for – i.e. for the school uniform, other clothing and other miscellaneous items.  This amounts to approximately HK$355 per month. This sum will also be incorporated in the monthly maintenance figure. Last year the husband said he paid HK$12,000 for mandarin tutoring. Going forward I will allow HK$4,500 per month as set out above.

39. The wife says that LL’s direct expenses amount to HK$21,500 per month. In addition I will allow a further HK$4,500 per month for mandarin tuition and I will round up any additional miscellaneous items to c HK$350 per month. This totals HK$26,350 per month. In addition I will allow HK$8,000 being LL’s share of the general expenses. This totals HK$34,350 per month. This does not include money that the father further spends on LL direct for holidays and access generally. I accept that the wife makes other contributions towards LL’s maintenance. It seems to me only right and proper that she should continue to do so. The husband shall pay the wife HK$34,350 per month maintenance and I will release him from his undertaking to reimburse the wife for tuition expenses and any other additional items. He is also released from his undertaking to continue to maintain a membership at the American Club. It transpired during the hearing that this facility is rarely now used by the husband or indeed by LL.   

40. The wife has not sought an increase in maintenance. The husband has sought a decrease. In looking at the case de novo it seems to me that HK$34,350 properly reflects what the husband should now pay inclusive of mandarin tuition fees and other miscellaneous expenses. Overall this represents a slight increase in the maintenance that the husband was originally paying. Had the husband agreed to pay for the extra mandarin session there would not be any significant difference in the amount paid. The husband is also released from his agreements and undertakings as set out at para’s E ( c), (d), (e) and G (b) and para E (f) in so far as it relates to “other education fees”.

Judgment summons

The law

41. The Judgment Debtor is required to show cause.  He has to show the court why he should not be committed to prison for contempt.  The court needs to ascertain whether he had the ability to make the payments ordered and whether he has wilfully failed to do so.  The Judgment creditor needs to prove this “beyond reasonable doubt”.  The court has the power to commit a Judgment debtor to prison for up to three months or to commit suspended upon payment of the outstanding debt either in its entirety or by installments or to adjourn sine die with liberty to restore.

42. The general rules relating to judgment summonses can be found at rule 87 and 88 Matrimonial Causes Rules, Cap 179.  Of particular import is Rule 87(5) (a) (ii) which states as follows:

(5)    On the hearing of the judgment summons the judge may-

    (a)    where the order is for-

(i)  the payment of a lump sum or costs; or

(ii)    maintenance pending suit or other periodical payments and it appears to him that the order would have been varied or suspended if the judgment debtor had made an application for that purpose,

make a new order for payment of the amount due under the original order, together with the costs of the judgment summons, the interest and surcharge payable, either at a specified time or by instalments;

43. Consequently the court also has wide powers to vary or suspend payments.

3) Has the husband willfully refused to comply with his undertakings as set out in para E (f) of the consent order dated the 12 May 2005. In particular has he willfully refused to pay in full for LL’s mandarin tuition and for a new computer for LL? If so is he in contempt of court?

44. As indicated above it seems to me that the present applications have arisen due to the unfortunate decline in the parties’ relationship, especially is so far as their son, LL is concerned.

45. Given my findings set out above it does not seem to me that the husband willfully refused to comply with his undertakings. There was a lack of a clear agreement in so far as ongoing mandarin tuition is concerned. As indicated I do not accept that under the terms of the consent order that he was obliged to repay to the wife the cost of the computer for LL. However given that it seems to me to be reasonable for LL to have mandarin tuition for 2 sessions per week I will order that the husband reimburses the wife for the mandarin tuition already undertaken in the sum of HK$13,800 for the period from May 2007 to October 2009. Thus the husband shall reimburse to the wife the sum of HK$13,800 within the next 14 days. He is not required to reimburse the wife for LL’s computer. On that basis the wife’s application for a judgment summons is adjourned sine die with liberty to restore.

46. Given that neither party can be said to have entirely won nor entirely lost I will make an order nisi to be made absolute in 14 days that there shall be no order as to costs in relation to both applications.