D, M v. D, R (also known as R, R)

FCMC 1968/2009

[2021] HKFC 48

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1968 OF 2009

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J U D G M E N T

(Undertakings)

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Introduction

1.  This is an application, made by a Petitioner husband, in which he seeks either to be discharged from a number of undertakings given by him in a consent order dated the 26 July 2010 in their entirety, or alternatively for other undertakings to be accepted in their place. The husband’s summons is dated the 21 December 2018. The document is lengthy, but for the avoidance of doubt is repeated in full below. Partly this is in order to ensure that there can be no doubt about the premise upon which he originally sought the court’s intervention:

1.   Paragraph D(ii) and paragraph D(iii) of the Recital state that:

D(ii)   “Subject to Recital E(v), it is the intention of the parties that the children are to be brought up at the former matrimonial home and the Petitioner undertakes to allow and/or do all things in his capacity as Director and Shareholder of the company to cause the company to allow the Respondent to continue to live there with sole and exclusive occupation as against the Petitioner and his heirs and assigns and the Company until the end of summer of the year in which the youngest child of the family reaches the age of 22 (August 2029) and within 3 months of Decree Absolute provide the Respondent with a letter from the Company confirming this arrangement; with the Petitioner being wholly responsible for the paying or causing to be paid the cost of the overhead expenses and outgoings for the former matrimonial home incurred by the Respondent, two children and domestic staff including but not limited to 

(a)   all utilities as per the items currently paid for including but not limited to water, gas, electricity, PCCW landline, netvigator broadband, Now TV consistent with the current package, and security system.

(b)   the wages of two domestic helpers and any associated cost such as a levy or annual return home flight,

(c)   the wages for a gardener and any associated costs,

(d)   the wages for one driver and any associated cost,

(e)   bi-annual pest fumigation,

(f)   reasonable property maintenance and upkeep,

(g)   government rent and rates and management fees.”

D(iii)    “Subject to recital D(ii) in the event the Respondent’s sole and exclusive occupation of the former matrimonial home is terminated by the Company, then the Petitioner undertakes to provide or cause to the provided alternative accommodation to the Respondent and the children and meet the outgoings of same in a similar standard to the Petitioner’s own standard of living from time to time until August 2029.”

The Petitioner seeks to vary these provisions and undertakings so that

(a)  In D(ii)The Respondent continues to live in the former matrimonial home with sole and exclusive occupation as against the Petitioner and his heirs and assigns and the company until the end of the summer of the year in which the youngest child of the family reaches the age of 18 which is August 2025 (not August 2029).

(b)  In D(ii)(a) The Petitioner undertaking in respect of the PCCW landline excludes the Respondents long distance calls.

(c)   In DC(ii)(b) The Respondent to pay the wages of one domestic helper and any associated costs, with the costs of the end contract return flight to be paid only if the domestic helper completes the full term of the contact.

(d)  The date in D(iii) to be changed to August 2025 and the Respondent do pay the end of contract return flight for the driver only if the driver completes the full term of the contract.

2.   Paragraph E(iv) of the Recital states the Petitioner’s undertaking to

“Pay or cause to be paid the membership of the Aberdeen Marina Club for the Respondent and the children of the family and meet the monthly expenses to the extent that they are currently incurred until August 2029.”

The Petitioner forthwith be released from his undertakings to pay or cause to be paid the membership of the Aberdeen Marina Club for the Respondent and to meet her monthly expenses at the Aberdeen Marina Club.

3.   Paragraph E(v) of the Recital states the Petitioner’s undertaking to

“Pay or cause to be paid the cost of up to 4 holidays per annum for the Respondent to take the children on holiday to cover flight, hotels and reasonable travel costs and provide the Respondent with an American Express Platinum Card to cover incidental costs of such holidays. The Petitioner will also pay or cause to be paid the expenses for one domestic helper to accompany the Respondent and the children on such holidays until the youngest child of the family attains the aged of 11 years ago.”

The Petitioner seeks to replace the undertaking with:

(a)  His undertaking to pay the costs of up to 2 holidays per annum for up to 2 weeks each for the Respondent to take the children on holiday.

(b)  To provide the Respondent with an American Express Platinum Card (or any other credit card) to cover incidental costs of such holidays upon the Respondent providing details and receipts of the expenditure following the holiday.

4.   Paragraph E(vii) states the Petitioner’s undertaking to

“Provide or cause to be provided for the Respondent the use of a car comparable to the present Mercedes Benz Station Wagon and a driver as currently provided until such time as the youngest child of the family leaves for University education.”

The Petitioner seeks to be released from this undertaking in August 2025 when the youngest child of the family completes secondary education.

5.   Paragraph 1 of the Order provides that:

“Custody of the two children of the family namely K, a boy born on XX April 2005 and I, a girl born on XX April 2007 shall be granted jointly to the parties with care and control to the Respondent and reasonable access to the Petitioner.”

The Petitioner seeks a variation which recognises the current arrangement whereby the parties have joint care and control of the two children of the family namely K, a boy born on XX April 2005 and I, a girl born XX April 2007.

6.   Paragraph 3 of the Order provides that:

“The Petitioner shall pay to the Respondent the sum of HK$10,000.00 per month per child for each of the two children of the family until the child reaches the age of 18 or completes full time education whichever is the later.: Such payment to be made by direct payment into the Respondents account with HSBC savings account no. 1XX-X-0XXXXXXX, the first payment to commence on the first day of the month following the day of this order and thereafter on the first day of each and every succeeding month.”

The Petitioner seeks to vary the periodical payments for each child to HK$5,000.00 per month.

Overview

2.  This is a highly conflicted piece of litigation which centres on the meaning and scope of a court order dated the 26 July 2010. The parties are both ethnically Indian, the husband having been born and brought up in Hong Kong. The husband is involved in the running of a family business and he is one of the shareholders of that business. There is no doubt that the parties have enjoyed a very high standard of living, both during the marriage and since, and that this has almost exclusively been provided for by the husband. He now seeks to be released from some of his undertakings on the premise that the circumstances have now changed. In particular, the children, who were only 2 ½ and 7 months old when the parties separated, are now aged nearly 16 and nearly 14 years old. It is accepted that originally it was the parties’ intention that the husband would continue to provide the children, and the wife, with a secure home base and that he would also continue to provide for them financially, as he had always done. Initially the wife was the primary caretaking parent and the husband had reasonable access to the children. The parties have always had joint custody. However, the situation has now changed in that the children’s care is now shared between the parties on a more or less 50:50 basis. In such circumstances, the husband maintains that it should no longer be necessary or appropriate for him to continue to provide a 5 bedroomed house for the children and the wife, especially once the youngest child, I, goes to university. He also wishes to revisit some of the other undertakings. He does not suggest that he can no longer afford to pay, and indeed on that premise the parties have only provided fairly limited disclosure, but instead it is his case that it is no longer fair or appropriate for him to pay. It is an argument based on principle. In addition, he alleges that the wife has abused the use of two credit cards, which he eventually cancelled in December 2018 and that she has also adopted a “legalistic” approach to the matter, which he says is not in keeping with the spirit of the original court order. Further, he says that he has over paid the wife in that he has ended up for paying for items which were never meant to be covered by the terms of the original undertakings. The husband estimates that the wife has spent in the region of HK$2 million on the supplementary credit cards in the period from 2016 to 2018.

3.  There have also been difficulties with the children’s school holidays and for the payment of those holidays. As set out in paragraph 1 subsection 3 above, the husband originally undertook to pay for up to four holidays per annum, for the wife and the children. He says that this was because he could only rarely take time off work and this allowed for the wife to take both short and longer trips with the children, which were then age appropriate. He says that the wife has abused this undertaking and that her holidays with the children have become longer and more expensive and that she has further gone outside its terms by buying clothes for the children and other items, which was never the original intent of the holiday undertaking. This is denied by the wife. In any event it is clear that this is a significant bone of contention between the parties, with the wife estimating that four holidays per annum should cost in the region of HK$900,000. She insists that this should continue. The husband, for his part, originally suggested that the wife should only take two holidays per annum with the children, i.e. one longer holiday and one shorter holiday, and that the cost should be limited at HK$300,000 per annum.

4.  In any event, it was finally agreed during the trial (and as suggested by counsel) that the court should deal with the issue of the division of the holidays as a standalone issue prior to the handing down of this judgment on the undertakings. To that end the court handed down the following short Ruling in Memo format on the 16 September 2020.         

Memo

There was a hearing before this court on the 11 and 12 August 2020. Although the hearing, following a failed FDR hearing on the matter, was framed as a variation of maintenance, infact the issues in dispute concerned a number of undertakings and whether certain undertakings should be discharged, retained or replaced by other undertakings. Integral to the almost chronic level of conflict that appears to exist between the parties, was the issue of the children’s school holidays and how those holidays should be split between the parties going forward. As things stand the father had undertaken to pay for the mother to take four holidays per annum with the children. At the time of the original court order dated the 3 August 2010, the children were aged 5 and 3 years of age. They are now 15 and 13 years of age respectively. It was therefore suggested that in order to move matters forward that the court should determine the holiday issue first and directions were subsequently given for the filing of the Statement of Proposals (which were exchanged on the 26 August 2020) and written submissions that were then filed on the 9 September 2020. It was also agreed that the court would deal with this issue in Memo format. Once the court has handed down this Memo on the holidays, the parties will then file and serve their submissions with respect to the undertakings.

It is trite but worth repeating at this point, that court orders are blunt instruments. They often lack the finesse that negotiated agreements can contain. In this instance the court is also being asked to make orders/give directions on issues which arguably fall outside of its jurisdiction. It is not really a matter for the court to determine HOW MANY holidays each parent takes with their children each year – or for HOW LONG. Generally speaking, if parties cannot agree on the division of the school holidays, it is understood that once the court makes an order, that each parent should only take holidays in their designated share of the school holidays. The length of the holiday or the number of holidays taken are usually dictated to by the circumstances of the individual family – i.e. how many holidays can they afford to take, will they spend extended periods of time with family who live outside Hong Kong, how many days holiday can a working parent actually take in any given year etc. In this instance it seems that money is not really an issue, although the husband now objects to the almost unended aspect to the undertaking already given by him concerning the payment for the holidays. This will be dealt with later in the second tranche of the case. In this instance the father asks that each parent only take two holidays per annum. One longer holiday that should not be for more than two weeks and one shorter holiday. The mother for her part says that the original undertaking should remain in place and that she should be allowed to take the children away for up to four times per annum. She wishes to take them away for one long overseas trip in the summer – probably for at least three weeks and for three shorter trips otherwise, including an annual skiing trip and a regular visit to see her wider family in India. There are also other arguments raised concerning the children’s need to develop their own interests, to spend time with their friends, to study during the holidays etc etc.

I should add that this ongoing dispute is also taking place in the context of the parents now sharing the care of the children during term time on a week on/week off basis. It is also of note that they live about 500 metres apart from each other on the South side of Hong Kong island and that the children are used to moving between the two households. The father has also re partnered. The children also attend a well-known international school also on the south side of Hong Kong island.     

By the time that the parties had filed their written submissions it seems that a level of agreement had been reached between them, although some of the father’s submissions were couched in alternative terms. This is not to be encouraged and it has to be understood that this court order will now be the default position going forward. Thus, the parties may, if they wish, try to negotiate other agreements, but as far as the court is concerned this order is the abiding order and in the event of a disagreement, this order shall be upheld.

As indicated above the parties may take the children away in their share of the school holidays. It is directed that it is for each party to parent the children when they are with them and if either child wishes to take a trip with friends etc, it is ultimately for the parent who has the care of that child during the period when the trip is to take place, to make the ultimate decision about that trip, after discussing the same with the other parent. It goes without saying that given the ages of the children it is likely that this will increasingly become a matter to be discussed between them and the parents as opposed to the parents making the decisions on their behalf.

It is further directed that each parent may take the children away for up to three times in each school year. I shall not make any further directions with respect to the length of the holidays and it is accepted that to do so may be a bit artificial. As indicated above, the issue of the payment for these holidays will be dealt with separately in the second tranche of the exercise.

The parties agree in principle that the school holidays shall be split on a more or less 50:50 basis. On that premise     

IT IS FURTHER ORDERED THAT

The school holidays

Fall holiday

1.  The mother shall have the Fall holiday each year.

Christmas school holiday

2.  The father does not wish to have the first half of this holiday each year notwithstanding the fact that his birthday is on the 24 December. Consequently, this holiday shall be split equally and the two halves shall be alternated. The father shall have the first half and the mother shall have the second half of the school Christmas holiday in 2020 and in all even years going forward thereafter and the mother shall have the first half and the father shall have the second half with effect from 2021 and in all odd years thereafter.  

Chinese New Year school holiday

3.  The father shall have the Chinese New Year school holiday each year.

Spring/Easter school holiday

4.  This entire holiday shall be alternated. The mother shall have the whole of this holiday in 2021 and in all odd years going forward. The father shall have the whole of this holiday in 2022 and in all even years going forward. If the Easter public holidays do not fall within the school holiday, then the children shall spend those four days as they fall, in accordance with the week on/week off principle.  

Summer school holiday

5.  The school summer holiday shall be split equally between the parties. The court does not agree that the father be given priority for choosing dates for his proposed two-week trip. Instead he must arrange his holiday during his share of the school holiday. The father shall have the first half of the holiday in 2021 and in all odd years going forward and the mother shall have the first half in 2022 and in all even years going forward. Consequently, the mother shall have the second half in 2021 and in all odd years thereafter and the father shall have the second half in 2022 and in all even years thereafter.

Costs

6.  Given that this is a children’s matter, and in line with normal precedent, it is further ordered that there shall be an order nisi to be made absolute in 14 days’ time that there be no order as to costs on this issue only.

IT IS FURTHER DIRECTED THAT:

7.  Each parent may take the children away, including during the COVID pandemic staycations within Hong Kong, for up to three times during each school year.    

5.  The wife, for her part, interprets the undertakings given by the husband in the 2010 order very widely. She says that it was always understood that the family would be provided for in all respects and that the husband should be wholly responsible for the running of the household and that he would do so at the same standard of living enjoyed by her and the children during the marriage. Indeed, this approach can be seen from the wife’s original Form E dated the 20 April 2009, where she provides a great deal of detail in the schedule of expenses. For example, she says inter alia as follows:

Household expenses

Gardner-1,000, mosquito machine estimate-2,000 per 3 months, dry cleaning-50, flowers-1,000, towels&sheets-1,000, pots and pans and other kitchen items-1,000.  All items get replaced either once a year or every 2 year

$4,850

Other

Dog – food, medication for thyroid, vaccination and check up a every 3 months, stay in Kennel while we travel-3,000, computer and other electronics maintenance-500, NowTV-753, Broadband netvigator-294, Three Mobile telephone estimate 3,000, home fumigation-600, BBQ gas cylinder-150, bulk shopping at Gateway for household items every 3-4 months-1,000

$9,297

6.  During the wife’s cross-examination she reiterated this approach and that in her view, the husband’s undertaking with respect to the household expenses should be interpreted very broadly and that it should include:

A.  All the outgoings of a home, all that takes to spend, whether it’s food, toilet paper, towels, tissues, cleaning supplies, pots and pans, small items of utility, whether it’s in the kitchen or in the household at large, be it to be used for the children or the domestic helpers or me to actually run the home.

7.  She said that parts of the order were deliberately drafted widely in order to provide flexibility. She added that

A.  It said household expenses and all outgoings. So for the people who lived there, for any individual to live in a home, to exist in a home and to survive in a home, in my understanding, it would include food, clothing, supplies, plates, tables, chairs, furniture, everything.

8.  When pressed the wife said that the only things that the husband should not pay for related to her own personal expenses, i.e., her own entertainment, her own travel and holidays without the children, her own clothes and shoes, jewellery etc. Under the terms of the court order therefore she expected the husband to pay for everything else including things like additional soil for the garden and other items which are more in the nature of a capital expenses, such as the purchase of a sewing machine for the household.

Background to the marriage and the litigation

9.  The parties married on the XX February 2000 and separated in November 2007. As I have said the children were very young indeed when the parties separated. The husband issued proceedings for divorce on the 23 February 2009 and the petition was subsequently amended on the 29 December 2009. The decree absolute was pronounced on the 22 September 2010. There are two children of the family, K, a boy born on the XX April 2005 and I, a girl born on the XX April 2007. They are now nearly 16 and 14 years of age respectively.

10.  The parties came to an agreement with respect to ancillary relief as set out in the court order dated the 26 July 2010. Reference should be made to that order as appropriate.  

11.  The husband remarried in 2014 and in or about 2016 the parties came to a further agreement with respect to the children, through mediation, whereby the father took on a greater role, so that the children increased the time that they spent with him on an incremental basis, until by about 2017 the parties began to share the care of the children on a more or less 50:50 basis. This arrangement has not been formally endorsed in a further consent order, but there does not appear to be any dispute that the children now spend time with each of their parents on a week on/week off basis. This is facilitated in part by the fact that the parties live close to each other in Shouson Hill and the children attend a well-known international school also on the south side of the island. It is not clear if the wife is currently in a relationship. She did have a boyfriend who spent time at the former matrimonial home, but she denies that she ever formally cohabited with him. Her boyfriend also accompanied her and the children on some of the holidays paid for by the husband.

12.  By both parties’ accounts, the disputes over the interpretation of the undertakings became more and more frequent with each side taking firmer positions as time moved on. Attempts at mediation and inter solicitor negotiation did not assist. This eventually led to the wife issuing a summons dated the 9 November 2018, in which she sought periodical payments in lieu of the undertakings in the sum of HK$122,525 per month, plus HK$893,700 per annum for a holiday fund and an increase to HK$25,000 per month per child as periodical payments for the children. She also floated the possibility of the husband providing a new independent membership of the Aberdeen Marina Club for her in lieu of his current undertaking. At the hearing before my brother judge on the 3 December 2018, the wife withdrew her request for periodical payments in the sum of HK$122,525 and the holiday fund plus her request with respect to the Aberdeen Marina Club. Shortly thereafter, on the 28 December 2018, the husband filed the current summons dated the 21 December 2018. On the 17 January 2019 the remainder of the wife’s summons was adjourned sine die with liberty to restore. Subsequently in August 2019, and arguably somewhat unfortunately, the wife issued committal proceedings against the husband for his alleged failure to comply with the undertakings, notwithstanding the fact that he had already issued the current summons and it was clear that there were significant issues surrounding the interpretation and scope of the undertakings in dispute. That matter remains outstanding. The husband has said that he will comply with any order that the court makes.     

Each party’s open proposals

The wife’s open proposals

13.  The wife proposed as follows in her Statement of Open Proposals:

The Respondent proposes that the Petitioner’s summons filed on 28 December 2018 be dismissed on the following conditions:

1.  The Petitioner do re-issue a supplementary American Express Platinum credit card to the Respondent to cover incidental costs of holidays and spending on the outgoings of the Former Matrimonial Home within 14 days hereof.

2.  Upon the Petitioner re-issuing the supplementary American Express Platinum credit card to the Respondent, the Respondent undertakes to provide copies of receipts (and alternatively explanations for spending where receipts are unavailable) for (a) any incidental costs for of holidays pursuant to Recital E(v) for items costing HK$1,000 within 4 weeks of returning from such holiday and (b) any overhead expenses and outgoings pursuant to Recital D(ii) for the Former Matrimonial Home for items costing HK$1,000 or more within 4 weeks of such spending.

3.  The Petitioner do pay the Respondent HK$880,000 within 14 days hereof for deductions and payments that he has failed to pay pursuant to his undertakings.

4.  The Respondent do have leave to withdraw her Summons dated 16 August 2019 for the Petitioner to be committed to prison for his contempt of Court within 7 days of receiving the sum paid by the Petitioner pursuant to paragraph 3 above.

The Petitioner do pay the Respondent all costs associated with and in preparation for the Respondent’s committal application and the Petitioner’s variation application.

14.  As indicated by the court during the hearing, the court is not concerned at this juncture with the enforcement of the undertakings. Consequently, and as acknowledged by counsel, the court is unable to make an order in these precise terms. 

15.  In her closing submission, the wife refocused and argued, in effect, that the husband’s original undertakings as contained in 2010 court order i.e., - paragraph D (ii) and (iii) (point 1 of his summons) and paragraph E (iv) (point 2 of his summons) and paragraph E (v) (point 3 of his summons) should remain in place. 

The husband’s open proposals

16.  The husband did not produce a stand-alone document setting out his open proposals prior to the trial. Instead, the court was referred to paragraph 338 of the bundle, where the husband summarizes his position at the end of his 4^th affirmation dated the 13 July 2020 as follows:

(3)  Occupation of the former matrimonial home

I question whether the Respondent will require a 5-bedroom house just for herself when I finishes school in 2025 and ask to be released from the undertaking to provide this house then rather than in 2029. The reason for the Respondent’s occupation of the former matrimonial home was to provide a home for the children at a home when she had sole care and control. Now that the arrangement for the children has changed, this undertaking needs to be amended.

(4)  Domestic helper

I currently provide for 2 domestic helpers and a driver. I have paid all the salary that is due.  There is no basis for the Respondent’s allegation that monies are owing for the domestic helpers and the driver. I asked to be released from that undertaking in respect of 2 domestic helpers to be replaced by an undertaking to provide for 1 domestic helper as the circumstances have changed. I would undertake to pay the contractual wages and the set up and end of contract charges.

(5)  Aberdeen Marina Club

I ask to be released from the undertaking to pay for the Respondent’s membership and expenses at the Club as the children now have their own membership cards.  The undertaking was for the same amount of spending for the Respondent had in 2010 but she has increased her spending in breach of that. Previously she had an occasional personal training package, some hairdressing and occasional tennis. She also used the card to purchase meals and arrange activities for the children. Now she is using it for meals for herself and companions, general shopping, tennis tournaments and coaching and increased level of physical training for herself. I believe this is deliberate. The children are able to and do use the Club by themselves and do not need to be accompanied by the Respondent. I am prepared to continue the Respondent’s membership on the basis that she is responsible for her own expenses there.

(6)  Car

I am under an obligation to provide a car and driver until I leaves school in 2025. This is not something that I was seeking to change as there was a mistake in the dates in my Summons.  However, there has been recent trouble in respect of the car. The car which the Respondent currently uses was involved in an accident. The cost of the repairs need to be put through the insurance policy but only the Respondent has the details of the accident. I have asked her to provide the insurance company with the details and follow through with the claim but she refuses to do this on the basis that the car does not belong to her. I therefore cannot have the necessary repairs carried out under the insurance.  To avoid this kind of abuse and problem I seek to be released from the undertaking to provide a car but instead I will pay her the cost of a new car comparable to the current vehicle so that she can buy whatever she wants and organise her own insurance and maintenance.

(7)  Maintenance for Children

As stated I do not believe that the HK$20,000 per month which I pay for the children’s maintenance has been spent on the children. The Respondent claims to use it for the children’s welfare but she has not actually shown any receipts for such spending. I have applied for this to be reduced to HK$5,000 per month per child on the basis that the children’s household costs and direct costs are already fully covered by me and the Respondent is only providing food costs for 2 weeks out of 4 and some entertainment costs for 2 weekends out of 4. It is true that their direct costs are increasing as they grow up but the Respondent is not incurring those costs. I am.

17.  During the trial, the husband also produced a document in which he set out his various proposals. I will not reproduce that again here. In the husband’s closing submission however, Mr Clough for the father summarizes his final position as follows:

25. F’S OPEN PROPOSALS

He has made Open Proposals that I summarise below:

1.   MAINTENANCE

F will agree to pay a total of HK$20,000 per month to M for the Children’s maintenance. He will pay 12-months per year even though the Children are with him half the time and he supports their upkeep when they are with M on overseas trips. Since housing and education are all paid this is an extremely generous sum for additional maintenance costs.

2.   FMH

F undertakes to allow M to live at the FMH until August 2025 and to pay directly for the following expenses and outgoings

a. for government rent and rates and management fees.

b. PCCW Landing (but not for IDD calls)

c. Netvigator broadband,

d. The current Now TV package, and

e. Security system

f. Water, Gas, and electricity.

3.   PROPERTY MAINTENANCE

He agrees to pay directly for reasonable property maintenance and upkeep as are agreed between the parties AND to reimburse M for the following expenses and outgoings until August 2025.

a.  the wages of one domestic helper and any associated contractual costs such as a levy or annual return home flight but excluding agency fees,

b.  the wages for a gardener and any associated cost as is agreed between the parties,

c.  bi-annual pest fumigation as arranged by F,

4.   THE CHILDREN

a.  Pay or cause to be paid the school fees for the Children and agreed associated costs.

b.  Pay or cause to be paid all agreed additional costs for extra-curricular activities [including karting (K), horse riding (I)] and for school trips and other school activities.

c.  For the avoidance of doubt prior agreement is required for all of the Children’s activities including those at the AMC.

5.   MEDICAL

Pay or cause to be paid the insurance premia for health insurance for Children and pay or cause to be paid all shortfalls in medical expenses to which he has agreed that are not covered by such Insurance.

6.   Pay or cause to be paid the insurance premia for health insurance for M. In relation to elective procedures or other treatment not covered by such insurance F undertakes to pay or cause to be paid or reimburse M for all such elective procedures or other treatment in relation to which he has given his prior consent.

7.   AMC

Pay or cause to be paid the AMC membership for Children and meet their monthly expenses; and for M’s membership until August 2025. M to reimburse F for her monthly expenses.

8.   THE CAR AND DRIVER

F undertakes to pay M a lump sum of HK$500,000 to enable her to purchase her own replacement vehicle and for its associated costs. She can use this without any restriction. i.e. if she spends less, she can utilize the balance for other associated expenses.

9.  F undertakes to pay the wages for a driver up to HK$15,000 per month and any associated cost excluding agency fees.

26. It needs emphasising that this is in the context of M’s situation living rent free in the FMH with all maintenance costs provided down to NOW TV package and a gardener with a car and driver provided. M has the benefit of an income producing asset and financial security so that her standard of living is secure.

The issues

18.  What then are the remaining issues, given that there is now broad consensus with respect to the provision of a lump sum for a new car for the wife and there is no dispute over the driver? (To that end it should be noted that I shall hold the husband to his proposal as set out above). Further there is also an agreement that the current level of maintenance for the children, namely HK$10,000 per month per child shall remain in place. The remaining issues then appear to be as follows:

a)  Should the husband continue to provide the former matrimonial home for the wife and the children to live in until August 2025 or August 2029?

b)  Should the husband’s new proposed undertaking with respect to the payment of the outgoings on the former matrimonial home be accepted?

c)  In particular, should the husband’s undertaking with respect to the PCCW landline exclude the wife’s long distance IDD calls?

d)  Should the husband continue to pay for the wages and associated costs, (with the end of contract return flight only to be paid if the domestic helper completes the full term contract), for two domestic helpers or one?

e)  Should the husband be released from his undertaking to pay for the wife’s monthly expenses at the Aberdeen Marina Club, in addition to her monthly membership fee?

f)  How should the court approach the issue of payment for the children’s holidays, whilst they are with the wife, given the Ruling from the court as set out above?

g)  Should there be any change to the husband’s undertaking with respect to the payment of school fees, extracurricular activities etc?

The law

Undertakings

19.  As discussed during the trial and as set out above, it is not disputed that the court cannot impose an undertaking on a party nor can it vary an undertaking of its own motion. The court may accept an undertaking and it may also refuse to accept an undertaking or to discharge an old one. Thus there is sometimes no alternative but for an original undertaking to remain in place, for lack of any other reasonable alternative. In such circumstances it is also open to the court to invite a party to consider making a different undertaking.     

20.  Counsel for the wife is correct when he says that this issue was recently reviewed by the UK’s Supreme Court in the case of Birch v Birch [2017] WLR 2959. At paragraph 5 of that judgment Lord Wilson said as follows:

“A court has no power to impose any variation of the terms of a voluntary promise. A litigant who wishes to cease to be bound by her (or his) undertaking should apply for “release” from it (or “discharge” of it); and often she [he] will accompany her [his] application for release with an offer of a further undertaking in different terms. The court may decide to accept the further undertaking and, in the light of it, to grant the application for release. Equally the court may indicate that it will grant the application for release only on condition that she [he] is willing to give a further undertaking or one in terms different from those of a further undertaking or one in terms different from those of a further undertaking currently on offer. In either event the court’s power is only to grant or refuse the application for release; and, although exercise of its power may result in something which looks like a variation of an undertaking, it is the product of a different process of reasoning.”

With respect I agree.

21.  Reference was also made to the to the judgment from this court namely MAR v MM [2020] HKFC 49, FCMC 10439 of 2014, where the issue of undertakings was considered by reference inter alia to a judgment from my sister Judge – Deputy Judge Rita So in HMSE v JJS. On that occasion I said at paragraph 21 as follows:

21. Counsel for the wife has referred to the unreported case of HMSE v JJS [2019] HKFC 55, FCMP 70 of 2008 where my sister judge, Deputy Judge Rita So discussed the issue of undertakings and said as follows:

“93. The legal principles on discharge of an undertaking can be summarized as follows :-

(a) An undertaking can be discharged, but not varied.

(b) The Court has jurisdiction to discharge an undertaking given to the Court at any stage, even if it was given in an order made by consent.

(c) A party who has given an undertaking to the Court may seek an uplift or release himself/herself from an undertaking in any of the following situations:-

(i) When there has been a material change of circumstances since the undertaking was given which is not foreseeable at the time and which make compliance not feasible;

(ii) When the subject matter to which the undertaking relates no longer exists which renders compliance impossible;

(iii) The party to whom the undertaking was given releases the undertaker from complying with the undertaking;

(iv) When the undertaking was obtained though fraud, misrepresentation or mistake.

(d) Whether an undertaking given to the Court should be discharged is a matter of judicial discretion to be exercised if it is “just” to do so, in order to achieve a “fair” result.

94. It is trite law that undertakings should not be given lightly.”

I would add that the court is not limited to the situations identified by the Deputy Judge in paragraph 93 (c ) above and that a court may always accept an undertaking or discharge it, if it is just and reasonable to do so.

22.  That remains my view now. It seems to me that the court has a very wide discretion when considering whether or not to discharge an undertaking or to accept a different undertaking in its stead. As with an application to vary under s. 11 (7) of the Matrimonial Proceedings and Property Ordinance, Cap 192, the overall intention is to achieve a fair outcome, by reference inter alia to all of the relevant circumstances of the case, including the basis upon which the parties originally entered into the consent order and whether or not there has been any material change of circumstance. Overall, I am charged with considering whether the husband’s request is just and reasonable. To that end, and by analogy, reference may also be made to the often-quoted section from the Hong Kong Court of Appeal decision, AEM v VFM [2008] HKFLR 106, where the Hon Cheung JA made the following point when referring in particular to agreements reached by consent, as here:

8.   At the same time the basis and intended effect of the original order are relevant factors to which the Court on variation should pay regard and there should not be a radical departure from the approach taken by the parties themselves when they had entered into an agreement embodied in a consent order: Boylan v. Boylan [1988] FLR 282.

23.  It seems to me that the reference by counsel for the wife, to A v A (Variation of Consent Order: Replacement Undertakings) [2018] 4 WLR 66, where the judge in that case said inter alia that consideration should be given to “avoiding serious hardship or injustice” when considering the issue of undertakings, may not be relevant given the circumstances in this particular case. On occasion it may be necessary to consider whether discharging an undertaking will cause serious hardship or injustice. I do not accept that that is necessarily the appropriate test to be applied here. This is particularly so, given the fact that the husband is arguing his case primarily premised on points of principle and where there has only been limited disclosure. The husband has reiterated throughout that he can afford to pay. He just does not believe that it is fair or reasonable for him to pay or to continue to pay, as the wife clearly expects him to pay. There is no suggestion that the outcome will cause either side serious hardship or indeed injustice, in the wider sense of that term. It is largely an issue that centres on the wife’s standard of living and the extent to which that can or should be maintained by virtue of the undertakings that were originally entered into by the husband back in 2010.        

Discussion

Should the husband continue to provide the former matrimonial home for the wife and the children to live in until August 2025 or August 2029?

24.  The wife maintains that the original undertaking should stand. She argues that the children will still need somewhere to stay when they are visiting her during term breaks, whilst at university or college or even once they graduate. Further she says that this was part of the original agreement and that she would not have entered into a settlement had this not been part of the over all package. It is her position that she agreed not to embark on a request for extensive disclosure, which may have involved the husband’s parents and the family company, because it was agreed inter alia that her standard of living would be maintained until August 2029. This included the provision of the former matrimonial home.

25.  The difficulty with this stance however, is that it is accepted that the original intention was to provide both the wife and the children with a home base, given that the children were then living with the mother for the majority of the time. I further accept that that is no longer the case and that in such circumstances it is reasonable of the husband to suggest some changes to the original undertakings.

26.  Consequently, it seems to me that it would be reasonable for the wife to move to smaller accommodation in September 2025, maybe to a three or four bedroomed property and not necessarily to a second house, but maybe to an apartment. In this way she would still be able to accommodate the children when they are with her. I do not accept that it would be reasonable for the husband not to provide any accommodation for her at all for the four-year period from August 2025 until August 2029. I further accept that such accommodation should still be in a reputable area, although that need not necessarily be in Shouson Hill.

27.  Consequently, the husband’s proposed new undertaking with respect to accommodation is not accepted. However, it is further directed that the husband should consider proposing a second undertaking for the court’s consideration say within the next 28 days, in line with the court’s indication. It is accepted that both parties may wish to make further submissions in this regard. In the meantime, the original undertakings do stand (i.e. the first part of D (ii) and D (iii).

Should the husband’s new proposed undertaking with respect to the payment of the outgoings on the former matrimonial home be accepted?

28.  In general, it is the wife’s case that the undertaking given by the husband at recital D (ii) should be interpreted very widely and to that end she refers to the fact that the clause states inter alia as follows:

… with the Petitioner being wholly responsible for the paying or causing to be paid the cost of the overhead expenses and outgoings for the former matrimonial home incurred by the Respondent, two children and domestic staff including but not limited to … 

29.  Understandably perhaps, given the difficulties that this has caused, the husband now wishes to tighten up his undertaking in D (ii). This is arguably the central point in the case. As indicated above, the wife has historically interpreted this undertaking very widely. For the avoidance of doubt it seems to me that this undertaking should NOT have included payment for items pertaining to the children that should, in my view, have been paid for from the maintenance payment of HK$10,000 per month. In the Form E the children’s expenses are identified as follows:

     Children

Item

School fees

Extra tuition fees

School books and stationery *

Transport to school (including school bus)

Medical / Dental

Extra-Curricular Activities *

Entertainment / presents *

Holiday

Clothing / Shoes *

Insurance premia (other than medical)*

Lunches and pocket money *

Other Transport *

Child-minding fees N/A

Uniform *

Other (specify)

Total monthly expenses for children

30.  I have marked with an * those items that I would NOT have expected the husband to have paid for under the terms of the original undertakings. In my view, the wife should have paid for school books and stationery, entertainment and presents, clothing and shoes, insurance premia (if any and other than the medical insurance), lunches and pocket money, other transport (including UBER’s, taxi’s and limousines for the children) and school uniforms (if any) out of the maintenance provided by the husband for the children, and from her own financial resources.

31.  In addition, had this matter proceeded to trial, it is quite possible that a portion of the general monthly expenses would have been attributed to the children, including a share of the household food. It is clear that the husband did not undertake to pay specifically for food and in my view food stands outside the terms of his original undertaking in any event.

32.  There is reference in the papers to the wife using the American Express card, originally provided to her to pay for incidentals whilst on holiday with the children, for things like clothes for the children, (for e.g. whilst in Italy) and for other items such as snorkels, swimming costumes etc. For the avoidance of doubt it seems to me that these items also fall outside of the husband’s original holiday undertaking.

33.  Similarly, I do not accept that the husband should have paid for the children’s birthday parties, or for costumes or presents for other children, under the general proviso referred to above, unless he specifically agreed to do so. He undertook to pay for the “overhead expenses” and “outgoings” of the former matrimonial home and the reference to “including but not limited to” has to be considered in that light.

34.  To that end there has also been a lot of discussion in the papers about other miscellaneous items. For example, the husband refused historically to pay for a number of items including additional soil for the garden (HK$800), vacuum cleaner filters, cleaning liquid, kids soap, medicine, dehumidifier refill packs, cleaning supplies and deep cleaning (HK$13,700). I accept that under the terms of the original undertaking these items most probably fall within the normal outgoings of the former matrimonial home and should be paid. I do not accept that the husband should also pay for items, such as sewing machines and AV equipment. The wife should be responsible for the payment of these items.

35.  Going forward I accept that it is reasonable for the husband to seek to limit his exposure to expenses related to the former matrimonial home and that he should only be obliged to pay for the actual overhead expenses and outgoings as itemized in his proposed undertaking.   

Should the husband’s undertaking with respect to the PCCW landline exclude the wife’s long distance IDD calls?       

36.  This was a small matter in the grander scheme of things and the fact that the parties are still arguing about it, is perhaps indicative of the level of conflict that now exists between them. As part and parcel of his proposed undertaking, the husband specified that the provision of the PCCW landline as originally stated in the 2010 consent order and as included in the new proposed undertaking, should not include provision for IDD calls. Although at first sight this seemed incredibly petty, it transpired that this had become a point of considerable dispute between the parties. The original consent order is silent on this point, but the wife considered that it was also covered by the general “including but not limited to” catch all. The husband did not. The husband argued that in any event there was no need for IDD provision as everyone in India uses a mobile phone and it is possible for people to speak to each other internationally at no or minimum cost. The wife for her part says that the internet is notoriously unreliable in India and that she should not be precluded from speaking to her family members over a landline as she has done historically (she used to speak to her mother in this way and she now on occasion speaks to her sister over a landline). I tend to accept that it would be reasonable for the wife to be able to use the landline for overseas calls to India say once every two weeks and that any other international calls should be made by using her mobile. Provision for this should be included in the husband’s proposed undertaking.   

Should the husband continue to pay for the wages and associated costs, (with the end of contract return flight only to be paid if the domestic helper completes the full term contract), for two domestic helpers or one?

37.  I accept that given the change of circumstances and the fact that the wife is living on her own at the matrimonial home for half of the time, that it should be possible for the wife to reduce the number of domestic helpers from one to two, notwithstanding the size of the former matrimonial home. The husband says that the wife now employs her own domestic staff and consequently it is accepted that it would be more appropriate for the husband to reimburse the wife for these items. However, it is not accepted that the husband should only pay for a return flight at the end of a completed contract as there can be many and varied reasons why a domestic helper does not complete a contract and the blame for this cannot simply be placed at the wife’s door.       

38.  Consequently, the husband’s proposed new undertaking with respect to the remainder of recital D (ii) is only accepted in part. To that end the husband is again invited to consider proposing a further undertaking for the court’s consideration within say the next 28 days. In the meantime, the original undertaking do stand.

Should the husband be released from his undertaking to pay for the wife’s monthly expenses at the Aberdeen Marina Club, in addition to her monthly membership?

39.  This was also a particularly hot topic. The original undertaking states under Recital E (iv) that the husband undertook to

Pay or cause to be paid the membership of the Aberdeen Marina Club for the Respondent and the children of the family and meet the monthly expenses to the extent that they are currently incurred until August 2029.”

40.  As, with some of the other undertakings, it is of note that it is specifically stated that this was a benefit for the wife AND the children. There is no suggestion on a normal and plain reading of this undertaking, that the original intention was to maintain the children’s lifestyle only. Thus the husband’s arguments in that respect are not accepted.

41.  The husband’s summons asks that he be released from this undertaking in its entirety. However, in his closing he proposes a compromised solution, namely that the mother retain her AMC membership until August 2025 and that she reimburse him for her monthly expenses. This is not accepted by the wife.

42.  As indicated above and in keeping with my previous comments, I do not accept that this undertaking should continue only until August 2025. However, I also accept that this clause could have been more accurately drafted and that the words “to the extent that they are currently incurred” are rather unfortunate and open to all manner of different interpretations. I also accept that from a practical perspective this may have caused a great deal of friction between the parties, as the wife continues to use the club facilities in her own capacity and without the presence of the children, but the husband’s new wife cannot.

43.  However, as a general point I accept that the wife should be able to continue to use the club in accordance with the spirit of the original undertaking, which includes payment for her reasonable chits/monthly expenses. It is almost impossible to determine to what extent the wife was using the club for herself in 2010. She says that she always used the gym and that she has always paid for personal training sessions. I tend to accept what she says in this regard. However, it seems likely that her interest in playing tennis evolved over time. But in any event, it is accepted that the husband should continue to pay for the wife’s normal club usage. He should not be required to pay for things like sports wear for either the wife (which she should be paying for herself) or for the children (which is covered by the monthly maintenance figure). The wife should also be paying for her own food and beverage costs when she is not at the club with the children.

44.  As an indication, it seems that the easiest way out of this impasse is for the husband to pay up to a certain limit each month for the wife’s usage of the club and for the wife to be responsible for any expenses over and above this amount. Unfortunately, it is not possible for the court to make an order in these terms, although it could accept a new undertaking which included a clause of this nature.

45.  Consequently, the husband’s proposed new undertaking with respect to the remainder of recital E (iv) is also not accepted. To that end the husband is again invited to consider proposing a further undertaking for the court’s consideration within the next 28 days. In the meantime, the original undertaking do stand.

How should the court approach the issue of payment for the children’s holidays, whilst they are with the wife, given the Ruling from the court as set out above?

46.  In the court’s ruling at paragraph 4 above, it is now directed that both parties may take the children away for up to three times in each school year. In the original undertaking the husband agreed to pay for the wife to take up to four trips per annum. The husband still proposes in its stead that he pay for two trips per annum as follows:

Undertakings

41. As a result of the Order dated 16 September 2020 the overseas holiday question should be largely resolved BUT H’s undertaking was to pay for up to 4 holidays per annum covering “flights, hotels and reasonable travel costs” and provide M the Amex card “to cover incidental costs of such holidays”.

i.  F is prepared to pay business class for M and economy for the Children for 2 overseas holidays.  The Children travel economy when they travel with him.

ii.  He is prepared to provide a supplementary credit card for incidental expenses for meals and travel up to HK$l,500 per diem provided it is returned at the end of the holiday. This is stated in H’s Statement of Proposals in respect of the children’s holiday and travel arrangements filed on 26^th August 2020.

47.  It is also of note that the wife has offered the following undertaking in her counsel’s closing submission:

67. Nonetheless, for the avoidance of doubt, if the Court considers it necessary, W is willing to provide an undertaking that she will provide copies of receipts (and alternatively explanations for spending where receipts are unavailable) for any incidental costs for or of holidays spent using the Amex card pursuant to Recital E(v) for items costing over HK$l,000 within 4 weeks of returning from such holidays. W’s proposal is the only workable solution as it is not possible for her to provide receipts before the credit card charges have been made.

48.  It is also of note that both parties accepted during the hearing that the more sensible way forward might be for the husband to provide the wife with a set sum of money each year for holiday purposes and that it is then a matter for the wife whether she takes the children away twice or three times per annum and for what length of time, as long as it is within her share of the school holidays. This seemed a very sensible way out of the present impasse, but it is not an application before the court at present. It is suggested however, that further consideration be given to this.    

49.  In the meantime, the husband’s proposed new undertaking with respect to recital E (v) is not accepted. To that end the husband is again invited to consider proposing a further undertaking for the court’s consideration within the next 28 days. In the meantime, the original undertaking do stand, save that it will only be possible for the wife to take the children away for up to three holidays per annum in any event given the court’s Ruling on holidays as set out above.

50.  In terms of a further indication and for the avoidance of doubt, the court accepts that the husband should only be obliged to pay for the cost of flights, accommodation including hotel costs and reasonable travel costs plus other incidental holiday costs such as the cost of an activity or tours etc. He should not, for example be obliged to pay for children’s clothes or other items purchased by the wife for the children whilst they are away but otherwise not connected in any way with the trip. It also goes without saying that the husband should also not be obliged to pay for the costs associated with any third parties who are also on the wife’s holiday with the children including, for example, the wife’s boyfriend. Any third parties should be wholly responsible for their own share of any costs associated with the trip, including their own flights, their share of the cost of any hotel rooms and their share of any other related costs etc.   

Should there be any change to the husband’s undertaking with respect to the payment of school fees, extracurricular activities etc

51.  This request did not form part of the husband’s original summons and was not fully addressed during the trial. At present the husband undertakes at recital E (ii) to pay for the children’s school fees and associated expenses. I accept that associated expenses includes their agreed extracurricular activities and agreed extra tuition (if any). To that end there is probably no need to discharge the original undertaking or to replace it with the husband’s now proposed new undertaking.    

Costs

52.  Costs shall be reserved pending further clarification of the new undertakings to be entered into by the husband, if any.

Further directions

53.  There shall be a further callover with respect to this matter on the 6 July 2021 at 9:30am. Both parties shall personally attend that hearing. The husband shall, if so advised, file and serve his new proposed undertakings within the next 28 days, together with a short submission in relation to the same (no longer than 5 pages, 14 font and double spaced). Leave is given to the wife to file a short submission in reply within 28 days thereafter (again to be no longer than 5 pages in length, 14 font and double spaced). Please note that the court is providing the parties with this opportunity in order to hopefully bring some finality to this matter. It is not an opportunity for either side to reargue issues which have already been determined by this judgment. Further the court will not accept undertakings that fall outside the clear indications which have already been given.