SMC v. JAC

FCMC 5555 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 5555 OF 2009

----------------------------

BETWEEN

----------------------------

--------------------------------------------------

J U D G M E N T
(Variation of Maintenance and Attachment of Income)

--------------------------------------------------

Background

1.  The Petitioner is the Wife (“W”).  The Respondent is the Husband (“H”).  Both H and W are Canadian nationals.

2.  There are 3 applications before this Court, namely,

(a)  Summons dated 6 January 2011 by H seeking variation of maintenance for the 2 children of the family to the extent of reducing HK$2,500 per month per child (“the Husband’s Summons”);

(b)  Summons dated 1 February 2011 by W seeking an Order that H do pay the school fees for the 2 children of the family after their permanent removal from Hong Kong to Canada after 30 June 2011 (“the Wife’s Summons”);

(c)  Summons dated 24 May 2011 seeking an Attachment of Income Order against H for arrears of maintenance (“the AIO”).

3.  The parties were married on 15 August 1998.  There are two children born out of the marriage who are now of the age 9 and 12.   A Petition for divorce was presented after 11 years of marriage in May 2009 by W relying upon the fact of unreasonable behaviour of H. The Decree Nisi was granted on 16 July 2009 whereby the question of ancillary reliefs was adjourned for further disposal.

4.  Following the requisite procedures on exchange of Financial Statements (Form E) by the parties with Questionnaires raised thereupon, the Financial Dispute Resolution (FDR) hearing took place before Judge Melloy on 21 January 2010. 

5.  At the FDR hearing, parties came to an agreement on the issue of ancillary reliefs for W and periodical payments of maintenance for the children.  There are also undertakings given by H.  The parties’ agreement was embodied in the form of a Consent Order granted by Judge Melloy (“the Consent Order”) on 21 January 2010.    

6.  For the present applications, the following parts of the Consent Order are of relevance :

“H. AND UPON the Respondent undertaking to the Petitioner and to the Court to pay all club fees and expenses at the Hong Kong Football Club for the children of the family, namely LPC, a girl, born on the xx day of xx 1999 and SAC, a boy, born on the xx day of xx 2002 until the children attain the age of 18 or complete full-time education, whichever is the later.

I. AND UPON the Respondent undertaking to pay subject to a limit of HK$2,000 per month the chits incurred by the Petitioner at the Hong Kong Football Club until the children attain the age of 18 or complete full-time education, whichever is the later.

      BY CONSENT, IT IS HEREBY ORDERED  that :-

 1……………

2.   The Respondent do pay periodical payments to the Petitioner for the benefit of the children of the family, namely, LPC, a girl, born on the xx day of xx 1999 and SAC, a boy, born on the xx day of xx 2002 in the sum of HK$16,500 per child per month, such payment to be made until such time as children attain the age of 18 or ceases full time education, whichever is the later or until further order.  The said sum of HK$16,500 for each child shall be deposited by the Respondent directly into the Petitioner’s bank account with xxxx in Hong Kong, account number xxxxxxxxxxx payable monthly in advance, on the 1^st day of each month, 1^st payment to be made on 1^st February 2010. “

The Husband’s Summons

7.  In support of the application, H filed an Affirmation stating the following :

“I have had a change in circumstances. My expenses have risen recently by a large amount. My income remains unchanged. The petitioner’s income and expenses are unchanged. I therefore am requesting to reduce child maintenance payments by the amount of HK$5,000 per month (HK$2,500 per child)”

8.  There are attached to the Affirmation 2 sheets of the front page of 2 Tenancy Agreements showing his monthly rental was HK$19,000 from 30/8/2009 to 29/6/2010; the monthly rental was HK$24,000 from 1/1/2011 to 30/6/2011.

The Wife’s Summons

9.  Counsel for W confirmed at the outset that this was not W’s application for setting aside or to re-visit the terms of the Consent Order as a whole.  The application, in the way as it was now being put, was necessitated by a material change of circumstances of W after the Consent Order.  W is seeking an Order for the school fees of the children to be paid by H as both children have moved back to Canada in summer this year and studied there since September.  W relied upon the facts stated in her 7^th and 8^th Affidavit in support of the application.

The AIO

10.  As stated in the 8^th Affidavit of W, there have been occasions when H unilaterally reduced the amount of maintenance for the children resulting in arrears under the terms of the Consent Order.  Hence W took out the application for attachment of income which I will deal with towards the end of this Judgment.

11.  H also filed a 2^nd Affirmation in response which he also relied upon as reply to all the other Affidavits of W.

The Law

12.  The jurisdiction of the Court in an application for variation of maintenance orders is under section 11 (7) of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) which provides :

“(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……..

13.  In considering a change of circumstances, the court may look at the case de novo.  In other words, the court is not fettered by the existence of a previous order.  Thus, the court may look at the overall situation afresh and make an order based on the parties’ existing financial circumstances and needs.[1] The court has a broad discretion in applications relating to variation. [2] In so doing, the court should also bear in mind that an application to vary the terms of a settlement embodied in a consent order are not to be lightly entertained unless the party seeking to disturb the same can show good and substantial cause.[3] In the case of L v. C [4] where Stock JA said :

“The courts must be astute in this field to guard against the manipulative litigant who seeks to undo an agreement…… and to bear in mind the factors, quite clear now as a result of developed authority, which might go to vitiate such agreement……”

14.  In the case of HCTT v. TYYC[5], Mr. Justice Lam agreeing with the judgment Hon Tang VP in the case, when citing L v. C had said :

“43. I hasten to add that the courts in the family jurisdiction must be equally astute to guard against unmeritorious applications for variation by litigants who have second thoughts about settlements they have knowingly reached on their own volition.

…………

45. Further, in many instances, one or both parties are acting in person. Lack of legal representation should not be regarded as a vitiating factor in an ordinary sense.

46. Therefore it would go against the modern ethos of family dispute management if the court were to entertain lightly an application to vary the terms of a settlement embodied in a consent order.

47. I think the following approach suggested by Stock JA at para 42 of L v. C [2007] 3HKLRD 819 at p.841, with slight modifications, can equally serve as a good guidance for deciding whether an application for variation of periodical payments in a consent order should be entertained,

“an agreement [on periodical payments] is ‘presumptively [not to be varied without material change of circumstances]’, the burden being on the party seeking to achieve a different [terms] to show good and substantial cause why the compact should not be respected, and ….. the scope for so doing is one directed at an injustice in the circumstances in which the agreement came to be concluded or in clear injustice occasioned to one of the parties by reason of event unforeseen at the time of the agreement were the agreement to be enforced to its letter."

The issues

15.  As to W’s 1^st application, it seems to me the issue is whether there is a material change of circumstances to such extent that the Court should, whilst keeping the original terms of the Consent Order in particular the periodical payments of maintenance to the children unchanged, consider the matter de novo so much so that H should now be ordered to pay the children’s school fees in Canada.  

16.  As to H’s application, it seems to me the issue is simply whether there is a change of circumstances which rendered H no longer to be able to pay the amount of periodical payments and there should be a downward adjustment of HK$2,500 per child per month, say, HK$5,000 each month. 

Discussion

17.  I will now turn to consider the issues, the law and the parties’ evidence as set out in their affidavits and given orally by them during the hearing.  I will deal with the applications in sequence by reference to their dates of filing.

18.  H’s is now aged 46.  H was and is employed as a Senior Director in an international bank.  On the disclosed evidence, his remuneration consists of a fixed pay of HK$1,950,000 gross per annum and a variable pay of a so-called discretionary cash award payable along with the payroll in March each year.  The amount of such variable pay for the performance year 2010 was HK$350,000 payable in March 2011.  Thus, the monthly income for the year 2010 averaged out to be HK$191,666 (i.e. HK$1,950,000 + HK$350,000 x 1/12).

19.  H argued that his expenses have increased whereas his income unchanged.  H testified in court his gross monthly income is HK$158,000 after tax.  The variable pay for the year 2011 was yet to be known though he expects to be lower than 2010 and he believes barely enough to pay his tax bill.  

20.  On his monthly rental, it was HK$24,000 for the first 6 months of 2011 but it is now HK$26,000.  In the Statement of Means of Maintenance Payer (Form 1), he provides the following information :-

Part I :  Monthly salary income of HK$153,975 (net)

Part II :  Monthly principal expenses –

	Food and Household expenses	7,000 (Food +management/utilities)
	Transport	$4,000
	Medical/Insurance	$400
	Others (specify)	$10,000
	Rent	$24,000 going to 26,000
	Tax Loan	$40,000
	Child Maintenance	$28,000
		$113,400

21.  When being cross examined by Counsel that the reason behind his reduction of HK$6,000 for the children’s maintenance in the month of September 2010 was that he was upset about the situation, the answer given by H was “Who wouldn’t be ?”  On further questioned upon whether he agreed that he can afford to pay the full amount of maintenance, the answer given was “ I am able to pay but just think not fair !”

22.  H in his 2^nd Affirmation gave an explanation for the shortfall of HK$6,000 for children’s maintenance for September 2010 was due to deductions made for spending on annual rugby, annual field hockey, annual soccer and swimming lessons incurred in excess of the agreed amount on monthly chit of the Football Club expenses.  I will come back to this issue when I deal with the AIO application in the latter part of this Judgment.

23.  On being cross examined further as to the fixed salary income remaining unchanged so far, the answer given by H was in the affirmative.

24.  On being questioned that there in fact has no change in his salary income, H maintained that there was change and he found the expenses excessive and his personal monthly expenses increased.

25.  It is clear from the above that even taking the disclosed net fixed salary income of H in his Form 1 Statement of Means of HK$153,975 per month, deducting the monthly expenses of HK$113,400, it produces a surplus of HK$40,575 per month.   The monthly expenses of HK$113,400 took into account of the old rental of HK$24,000 but not the increased rental of HK$26,000.  Adding this portion of HK$2,000 increase in rent, the surplus remaining would still come to the sum of HK$38,575 (i.e. HK$40,575 – HK$2,000).  In calculating the monthly expenses of HK$113,400, H adopted the figure of HK$28,000 as children maintenance which should have been HK$33,000 under the terms of the Consent Order.  Hence, putting it back onto the right track, with children monthly maintenance at HK$33,000 instead of HK$28,000 (i.e. another HK$5,000 per month included in the expenses), H would still be left with the sum of HK$33,575 per month as surplus (i.e. HK$38,575 – HK$5,000).  It should be noted that no account had yet been taken of the variable pay income of H in these calculations.  

26.  I do not accept H’s application.  Applying the principle set out in the case of HCTT v. TYYC (supra), I am not satisfied that there has been a change of circumstances on the part of H to the extent that H can now seek a downward adjustment of the children’s maintenance which is part of the Consent Order last year.  The mere fact that there has been an increase of rental payment of H without a parallel increase of his income, with the end result of not affecting his ability to pay maintenance which he had consented to, can hardly be accepted as good and substantial cause for variation of the Consent Order.

27.  H’s Summons for variation of the children’s maintenance is accordingly dismissed with costs. 

Canadian School Fees

28.  I will now deal with W’s application.  At the outset, I should say that this is somewhat different from H’s application. W’s application, as Counsel for W submitted, is not seeking a revamp of the Consent Order.  The Court thus should look into all the circumstances  at the time of the application and decide whether there is any material change since the original Order was made which fairness requires looking at the matter de novo.

29.  W’s application was triggered by the fact that the two children of the family have been studying in independent private schools in Canada since September 2011.  The arrangement of moving back to Canada was known to H who had consented to the permanent removal.  There is a Consent Order of this Court on 9 November 2010 to such effect, which is 8 months after the Consent Order on ancillary reliefs was granted.

30.  The two children were both studying in independent private  schools whilst they were in Hong Kong.  Before moving back to Canada with the children, W was employed as a teacher with the ESF earning around HK$58,000 a month.  In addition, she received subsidized housing and school fee benefits (80% of the fees paid) for the children who were attending ESF schools.  W is now 46 and remained unemployed since she was back to Canada.  On her evidence, W does not intend to return to work in the foreseeable future as she would need to settle down and take care of the children as her first priority.  Unlike in Hong Kong, she does not have the assistance of a helper and she will effectively be a single mother.  Even if she could secure employment as a teacher in the future, the reality is that her salary would be significantly less than in Hong Kong and she would not be getting the same housing and educational benefits as she had enjoyed here before.

31.  Though W had received something just less than half of H in terms of the lump sum financial reliefs, the fact remain to be that she, as a single mother having the day to day care and control of the children, would have to live off her assets whilst H is able to continue with his earnings to meet his expenses without having to live on his share of the lump sum.

32.  Miss Rattigan acting for W submitted that it is H’s duties and responsibilities to look after the children’s school fees and especially in the present case when H is financially capable to do so.

The Husband’s contentions

33.  H in his evidence raised a number of contentions.  First, he does not accept that he should, apart from the periodical payments under the Consent Order, in addition be paying the children’s independent private school fees in Canada.  He insists that the children should be receiving the same quality of education, and indeed would be better still, if they study in public schools in Canada which is free of charge. 

34.  Secondly, H strongly objects to placing the children into those over-rated elite independent private schools in Canada.  One of the reasons is that the two independent private schools for the children in Canada are of uni-sex.  He himself feels strongly that the children ought to know the way of communication with schoolmates of different sex.  The other reason is that he had never given any consent to the children attending independent private schools.  H relied upon a draft note he prepared for W to sign around December 2010 (at page 1008 of the Trial Bundle) stating that it was W’s own choice of placing children into private schools and hold him not liable for any costs arising therefrom.  W had not signed this note.

35.  Thirdly, he maintained that W is financially better off than him since W is one of the beneficiaries of a multimillion dollar trust of which W can have access to funds anytime she wants.  Moreover, the father of W has also set up an education fund for his two grand children (i.e. the children of H and W).

Any material change of circumstances ?

36.  Comparing the present overall situation of W with the time when the Consent Order was granted, I am satisfied there has been a material change of circumstances.  The fact that she is now no longer employed and thus not receiving the educational subsidies from her then employer for the children; she and the children having moved back to Canada; and the need to pay the children’s school fees in Canada in full without any subsidy, all lead to my finding that there is a material change of circumstances as a result of the relocation.  The next question is, in my view, whether H should be held liable to look after the Canadian school fees arising from such relocation.  And if so, to what extent ?    

37.  Since 16 July 2009, H and W were granted joint custody of the two children with care and control given to W and reasonable access given to H.  The permanent removal of the children to Canada requires the consent of the other joint legal custodian or the leave of the Court.  This was readily obtained by W when H gave his written consent on 26 October 2010.  On 9November 2010, Judge Melloy granted a consent order for permanent removal of the two children by W from the jurisdiction of Hong Kong to Canada on or after 30 June 2011.

38.  In fact, as early as 27 August 2009 when W sworn her Form E, she had planned to return to live in Canada after June 2010. Obviously such plan had deferred a year until after June 2011.  At paragraph 5.5 of her Form E, she said :-

“I may wish to return to live with the children in Canada after June 2010. If I do so, I may not be able to earn as much as I do in Hong Kong. I will have to pay more tax; and I will lose my education and medical allowances.”

39.  In the same Form E of W at paragraph 4.3 on children’s monthly expenses, the item on school fees was stated as follows :

School fees (80% fee reduction due to my employment with the ESF)*

HK$ 2,600

The “*” denotes –

“For these expenses, the Petitioner pays 30% and the Respondent pays 70% of the total sum each month”

40.  At the FDR hearing on 21 January 2010, H must be aware of or at least had been put on notice of W’s relocation plan though exactly when it was going to happen has yet to be seen.  It is common knowledge that on the date of the FDR when the Consent Order was granted, the two children were studying in independent private schools in Hong Kong with subsidies and allowances from W’s employment.  By calculation, W’s share of the 30% of the reduced school fees of HK$2,600 is HK$780; H’s share of the 70% of HK$2,600 is HK$1,820.

41.  Thus it is fair to say that H when agreeing to the periodical payments at the FDR hearing on 21 January 2010 on the amount of HK$16,500 per child per month, he must have been aware of 2 things, namely, (i) the low level of the children’s schools fees in Hong Kong was because of the subsidies from W’s employment; and (ii) W’s intended plan of bringing the two children back to Canada to study after June 2010.  Since it was expressly stated in the Form E the children’s school fee reduction to be 80%, it is also fair to say that H should know that he himself and W together were actually paying only one-fifths of what should have been paid in terms of children’s school fees had there been no subsidy and allowance from W’s employment.

42.  With the knowledge of W’s relocation plan, H’s agreement at the FDR hearing on the periodical payments of maintenance for the children must be premised upon there will come the time when such periodical payments would be insufficient when W terminated her employment and leave for Canada with the children.  By that time the school fees subsidy would certainly go.  Nevertheless, H had agreed to the amount of HK$16,500 each child each month without any reference to what level of periodical payments would be after relocation.  In such situation, it is open to W, who having the care and control of the children, to seek the Court’s relief for the reason that the school fees have substantially changed from 20% (with subsidy) to 100% (no subsidy).  Such significant change in percentage of school fees by itself is also a change of circumstances not necessarily linked with the relocation to Canada.  Take an example, if W changed jobs in Hong Kong which provided her with no subsidy for children’s school fees, she may also seek a variation on children’s maintenance sum as a whole to reflect what level of maintenance should then be.  Children maintenance is always subject to variation before they reach 18 or ceases full time education; whichever is the later. 

43.  Having said that, the next question is whether the issue of children’s maintenance should be considered de novo or only upon the topic of Canadian school fees as W had now prayed for in her Summons.  

44.  Counsel for W referred to the case of AEM v. VFM[6] where Hon Cheung JA at paragraph 14 of his Judgment said :-

“1………….

2………….

3. The traditional approach to variation was not to re-fix afresh the amount of maintenance but to consider the amount of change in the actual means of the parties so that the new order should merely be increased or decreased roughly in proportion to the change in the means : Foster v. Foster [1964] 3 All ER, Jackson’s Matrimonial Finance and Taxation 7^th Ed. 131.

4. The modern approach, as required by section 11(7), is for the Court to consider all the circumstances of the cases. The Court is not required to proceed from the starting point of the original order but look at the matter afresh: Flavell v. Flavell [1997] 1 FLR 353 at 357B following Lewis v. Lewis [1977] 1 WLR 409 and Garner v. Garner [1992] 1 FLR 573.

5…………..

6…………..

7…………..

8…………..       ”  

45.  I accept Counsel’s submission.  This Court is not required to proceed from the starting point of the original order but looks at the matter de novo; that is to say, look at the section 7 factors to establish a fairness of result within the context of those factors and all the circumstances of the case. 

46.  Section 11 (7) of MPPO requires the Court to 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 (my emphasis)…………

47.  Section 7 (2) of MPPO provides :-

“……it shall be the duty of the court in deciding whether to exercise its powers …….. in relation to a child of the family……to have regard to all the circumstances of the case including the following matters, that is to say –

(a) the financial needs of the child;

(b) …………

(c) …………

(d) the standard of living enjoyed by the family before the breakdown of the marriage;

(e) the manner in which he was being and in which the parties to the marriage expected him to be educated;

48.  H’s first contention of the Canadian school fees being ‘additional’ to the periodical payments of maintenance is not accepted.  The children have all along been studying in independent private schools in Hong Kong which are not free of charge.  At all material times H knew 80% of the school fees in Hong Kong come from subsidy of W’s employment. So long as W’s employment continues, the school fees subsidy is there.  If W’s employment ended, the school fees subsidy went.  On the existence and strength of such subsidy, H agreed to the amount of the children’s periodical payments in the Consent Order. 

49.  As I said earlier, W had indicated her intended relocation in her Form E back in August 2009.  By seeking H’s consent in October 2010 for permanent removal of the children out of jurisdiction of Hong Kong after June 2011, the lost of school fees subsidy became imminent to H. The issuance of the present Summons on 1 February 2011 made it clear to H the lost of the school fees subsidy is bound to happen, sooner or later.  Taking all these together, I do not accept H’s contention that the Canadian school fees are “additional” to what he had agreed to pay.  I would say that the 80% savings on school fees are always there which was, if I may use the word ‘luckily’, absorbed by the subsidy from W’s employment.  H is fully aware of what he was paying was the 20% remainder of the school fees which were paid on a 30/70 split with he himself paying the 70%, W paying the 30%.

50.  The contention of H’s about quality of education between public schools and independent private schools in Canada being the same, there simply no reason for W to arrange children in private schools against his objection and then make him to pay the Canadian school fees.  There is no evidence led by either party on such comparison between public and independent private schools.  In my view, it is not correct to make such a kind of comparison.  The question whether the children should be attending public schools when they are back to Canada depends on the standard of living before the breakdown of marriage and also the manner in which the parties to the marriage had expected the children to be educated.  These are factors which the Court has to consider under section 7 (d) and (e) of the MPPO.

51.  There has never been any objection of H for the children to attend independent private schools in Hong Kong although I am fully aware of the fact that that might be due to language barrier, the children cannot attend the traditional public schools in Hong Kong.  In Canada, the children would not have language barrier problems and may be able to attend public schools.  However, I also noted that the elder daughter is now placed in the school in Canada where W had attended in her youth.  The younger son same as H (i.e. his Father) who had also attended independent private schools in his youth.    

52.  To decide whether H’s contention between public and independent private schools is genuinely raised, I need to refer to the note drafted by H for W’s signature about the children’s educational costs in Canada.  For the sake of completeness, the note is reproduced as follows :-

“Dec 12 2010

SC,

xxxxxx

Re : Toronto Private School Applications for xxxx and xxxx

I, SC agree that these private school applications are of my own choice. Given my current financial status, my access to trust funds and my father’s education savings plans, I take full responsibility of these costs.

I will not hold AC financially liable for these tuition fees in excess of the current child maintenance payment arrangements in place. If an application for reduction takes place as a result in the change in income/expenses, I am not going to hold him liable.

Agreed on this xxx day of xxxx 2010.

__________________________ ______________________

S C Witness “

53.  Counsel Miss Rattigan for W submitted that the reality is that H does not object the children to go to independent private schools in Canada.  H simply not agreed to pay for it.  H strongly objected but I agree with Counsel.  Except the reference to money issues of trust funds and educational plans in the draft note, H had not stated anywhere the other contentions he is now putting forward before this Court; namely, quality of public schools being compatible to private schools in Canada and his alleged concern of the children attending uni-sex schools.   Further, I noted that H had not even thrown out his idea of public schools in the note he drafted.

54.  The parties had been on a high standard of living prior to the marriage broken down.  In my judgment, I am of the view that the standard of living of the children before their parents’ marriage broken down and also how H and W had expected the children to be educated justify the placement of the children by W in independent private schools in Canada.

55.  I find H’s grounds of objection to W’s Summons unsustainable.  I grant an order in terms of W’s Summons with costs but subject to the level of Canadian school fees to be paid by H.  I will deal with this below. 

56.  The question now remain is whether I should order H to pay whatever amount of the Canadian school fees without any contribution from W.  Counsel in her opening and final submissions re-iterated it is just that H lives up with his responsibilities as a parent and pays for the children’s school fees.  H clearly has an obligation to pay for them.

57.  I think it is fair to say H has been paying school fees for the children whenever he pays the sum of HK$16,500 per child per month.  Reason being that such level of maintenance was agreed at the FDR hearing when the children were receiving subsidy on their school fees.  On the HK$2,600 for children’s school fees in Hong Kong disclosed in W’s Form E, there is a 30/70 split between W and H.

58.  Since the periodical payments of maintenance for the children had not been altered, the continuing periodical payments of HK$16,500 per child per month must have included an element of school fees though not to the full extent as the present amount of school fees. Therefore, I believe to order H to pay the full amount of the Canadian school fees would ignore the element of school fees within the continuing periodical payments and also ignoring the agreed 30/70 proportion split between the parties which they have agreed upon whatever the amount of balance of school fees payable in Hong Kong after the subsidy. 

59.  In the circumstances, I believe it is fair and reasonable that whilst H is bound by the terms of the original Order on periodical payments for the children at HK$16,500 per child per month, H is required to pay 70% of the Canadian school fees for the children.  The balance of 30% to be paid by W.

60.  As stated in W’s Affidavit, the Canadian school fees for the children are in the region of HK$40,944 per month  (subject to fluctuation on exchange rates).  Taking 70% of HK$40,944 is HK$28,660.80.  By deducting HK$28,660.80 from H’s monthly surplus of HK$33,575 (under paragraph 25 above), there still remain a surplus of HK$4,914.20 per month.  Such surplus for H has not yet considered the variable pay of bonus award of H so he would not be left with nothing to live upon.

61.  Hence I will order H to pay 70% of the Canadian school fees under W’s Summons dated 1 February 2011 in addition to the agreed periodical payments of HK$16,500 per child per month under the Consent

Order.  As the school term started in September 2011, such term on children’s school fees in Canada to take effect from 1^st September 2011.

62.  During the hearing, W produced the letters from the respective schools in Canada on the fees already paid and to be payable for the two children for the 2011-2012 school year.  These are exhibited as P1 and P2.  The annual school fees for the younger child are payable at different stages and, as at the date of this Judgment, the annual school fees for the elder child seems to have been paid in full already.  I will direct W’s Solicitors to calculate the exact amount of school fees in Canadian currency for each of the child per month so that my order of H to bear 70% of the two children’s school fees will show how much exactly it was in Canadian dollars per month.  I noted in the letters that both schools also require a “one-time fee”, whether it be initial registration fee or building and property upkeep fee so described.  It is also my decision that H should bear 70% of such “one-time fee”.   In computation of the monthly school fees, I also direct adopting a 10-month period for the annual school fees which I believe to be fair and reasonable.

Attachment of Income

63.  As stated in the 5^th Affidavit of W, H had only paid HK$30,000 per month for May and June 2010.  The shortfall of HK$6,000 (i.e. $3,000 x 2) was only paid after W’s instructed her lawyers to demand payment. 

64.  Subsequently, in September 2010, H only paid HK$27,000 thus leaving a balance of HK$6,000 unpaid.  The reason given by H was that the deduction was made because the children’s expenses incurred at his Hong Kong Football Club had run over the agreed monthly chits.  As Counsel for W rightly pointed out, such explanation was unacceptable for the reason that H had given his undertakings at Clause H of the Consent Order that he would be paying the expenses of the children at the Hong Kong Football Club without any limit on the expenses.  Hence, I agree with Counsel that the deduction of HK$6,000 is unacceptable and is in breach of H’s undertaking to this court and the Respondent within the terms of the Consent Order.

65.  In addition, as stated in W’s 8^th Affidavit, H had not paid the full amount of HK$33,000 per month of periodical payments for the two children since 2011, details of which are as follows :-

Month	Amount Paid	Outstanding
January	$ 26,000	$ 7000
February	$ 27,500	$ 5,500
March	$ 28,000	$ 5,000
April	$ 28,000	$ 5,000
May	$ 28,000	$ 5,000
June	$ 28,000	$ 5,000
July	$ 28,000	$ 5,000
August	$ 28,000	$ 5,000
September	$ 28,000	$ 5,000
	Total:	$ 47,500

66.  Thus the total outstanding amount is HK$53,500 (i.e. HK$6,000 + HK$47,500).

67.  The reason given by H for the deductions is mainly that his income remain unchanged but his expenses had increased.  In his evidence, H was referring to his rental income had increased since 2010 and further increased sharply in 2011.  In H’s supporting Affirmation, he also referred to W’s income being unchanged. 

68.  I do not accept the reasons of H who apparently is in breach of the terms of the Consent Order.  In my judgment, H has not been able

to provide this Court with any reasonable excuse for all the deductions.  I am satisfied that the breaches are serious and repetitive. 

69.  Under section 28(1) of the MPPO which provides :-

“Where a maintenance order has been made against a

maintenance payer and –

(a)(i) a court is satisfied that the payer has without

reasonable excuse failed to make any payment

which he is required to make by the maintenance

order; or

(ii) a court is satisfied that there are reasonable grounds to believe that the payer will not make full and punctual payment in accordance with the maintenance order; or

(iii) ……….; and

(b)there is any income capable of being attached payable to the payer, the court may, in accordance with rules made for the purpose of subsection (6), order the income to be attached as to the whole or part of the amount payable under the maintenance order and the amount attached to be paid to the maintenance payee.

70.  Under section 28(1A) of the MPPO which provides :-

“For the purpose of (1)(a)(ii), in deciding whether there are

reasonable grounds to believe that the maintenance payer

will not make full and punctual payment in compliance with

the maintenance order, the court shall take into account all

the circumstances of the case, including (but not limited

to) -

(a)the payer’s past record and conduct in discharging his reasonable financial obligation towards the designated payee before any maintenance order is made;

(b)the payer’s past record and conduct in connection with the making of maintenance payments to the payee pursuant to the maintenance order or an undertaking in any proceedings; and

(c) the risk of the payer dissipating his property.

71.  Under section 28(2B) of the MPPO which provides:-

“An attachment order may be made by the court on its own

motion or on the application by the maintenance payer or

      the designated payee or both.”

72.  Further, Rule 13 of the Attachment of Income Rules, Cap.13A provides :

“The court may –

(a)dispense with or relax any procedure specified in rules 3 to 8, or;

(b)abridge any time limit specified in rules 3 to 8,

     if the court is satisfied that it is fair and reasonable to do so

     in the circumstances of the case.

73.  In the present case, H in his evidence confirmed his present employment is the same as before when he filed his Form E.  There was also no change in his fixed salary income either.

74.  Having considered all the circumstances of the case; in particular, the fact that there had been deduction of maintenance of HK$3,000 a month for May and June 2010 (totaling HK$6,000) which was only paid after W had instructed her lawyers to demand the same; the deduction few months later in September 2010 for the unjustifiable excuse of the children’s expenses at the Hong Kong Football Club which H had undertaken to pay in full without limit; several repetitive deductions of several thousands from the agreed amount of HK$33,000 per month for the two children’s maintenance since January 2011, I am satisfied that there are reasonable grounds for me to believe H will not be making full and punctual payment of maintenance under the terms of the Consent Order. 

75.  I will make an attachment of income order as follows :-

(a)    the periodical payment of maintenance of HK$33,000 for the children of the family be attached with effect from the date of next payment of H’s salary in November 2011;

(b)   arrears of maintenance of HK$53,500 be divided into 5 instalments of HK$10,700 each month, each instalment to be attached with effect from the date of next payment of H’s salary in November 2011 until full payment.

76.  Since the children’s Canadian school fees was only made an Order at this hearing and there is no evidence yet that H is in default of such Order, the attachment of income order will not include the Canadian school fees which H has now been ordered to pay.

77.  As to the costs of the AIO application, I see no reason why the normal rule should not apply.  I therefore order H to pay W’s costs of the AIO application, to be taxed if not agreed.

78.  Further, I will also grant Certificate for Counsel.

ORDER

79.  My Order is as follows :-

(a) The Respondent’s (H) Summons dated 6 January 2011 be

   dismissed with costs to the Petitioner (W), to be taxed if not

   agreed;

(b) The Petitioner’s (W) Summons dated 1 February 2011 be

   granted to the extent the Respondent (H) do pay 70% of the

   children’s monthly school fees in Canada with costs of the

   application be to the Petitioner (W), to be taxed if not agreed;

(c) There be an attachment of income order in respect of the

   Respondent’s (H) salary from his employers for :-

(i) the sum of HK$33,000 per month; and

(ii) the sum of HK$10,700 per month for 5 months

with effect from the next salary payment date in November 2011, such sums attached shall be paid to the Petitioner’s (W) nominated bank account, details of which to be set out in the Order to be drawn up by the Petitioner’s (W) Solicitors.  Costs of the AIO application be to the Petitioner (W), to be taxed if not agreed.