CWT v. CKK

FCMC 14169 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14169 OF 2007

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Judgment
(Maintenance)
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1.  This is an application on the part of the mother (the petitioner) on 8 March 2014 for maintenance to be paid by the father (the respondent) for the benefit of the child of the family, referred to as “N” in this Judgment. 

2.  In her earlier summons dated 29 December 2012 seeking variation of the custody and access of N, which I will refer to below, she also seeks, in para 3 of the summons, for the father’s compliance of certain undertakings that he gave on 2 July 2008 (“the Undertaking”) or alternatively, monthly maintenance for the benefit of N.  Her summons in relation to custody and access has already been dealt with and now this is the judgment dealing with the financial side of the dispute.

Background

3.  The parties were married in December 1996.  The mother gave birth to N, a girl, in June 2001 who is now 13 years old and is studying Form 2.

4.  The mother petitioned for divorce on 19 November 2007 on the ground of 2 years’ separation.  That was uncontested and Decree Nisi was granted on 2^nd July 2008.  In the interim, the parties were able to arrive at a settlement on ancillary relief and the arrangement of N.  By a consent order dated 31 January 2008, the custody of N was granted to the parties jointly with care and control to the father and reasonable visiting access to the mother.

5.  Upon the granting of the consent order regarding ancillary relief on 2July 2008 which principally dealt with the sale of the matrimonial home by way of various undertakings, the father gave the Undertaking to the court as referred to in Para 2 above.  It was as follows:

“AND UPON the Respondent’s undertaking to the Court and to the Petitioner that he shall be responsible for the maintenance of the child of the family including, but not limited to, the child’s annual school fees, fees of her extra-curricular activities and all other necessary daily expenses to the benefit of the child until she attains 18 years of age or finishes her full time education, whichever is the later or until further order.”

6.  Then about a year later on 3 September 2008 the mother applied for variation seeking the sole custody of N with reasonable access to the father.  This application was strenuously opposed, resulting in a 4-day trial.  After trial, HH Judge Chu kept the joint custody order but varied the care and control of N in favour of the mother with reasonable access including staying access during weekends and school holidays to the father.  This is the order dated 8 October 2009.

7.  Decree Absolute was granted on 30 March 2010.

8.  This is not the end of the matter.  Subsequently there were further applications by both parties regarding N.  The mother applied on 29 December 2012 to have the joint custody order varied to a sole one with the removal of staying access and in replace of it, a much limited defined access to the father.  It was in this application that she also seeks for the father’s compliance of the Undertaking or alternatively, monthly maintenance for the benefit of N.  

9.  Probably in response to the mother’s application, the father also sought additional access on 12 November 2013.  I do not think I need to review the chronicles of these applications.  Suffice for me to say is that broadly speaking, the social welfare officer was not in favour of the mother’s proposal, and after much protracted hearings and with the assistance of the social welfare officer, the parties were finally able to come to terms during the CDR hearing of 14 February 2014.  As a result, the situation, in general terms, has come up to this:  the father is having access every Friday night, access on every Tuesday evening which is being carried out at a cafeteria or a fast food shop near to N’s home, staying access on alternate short weekends from Friday evenings to Sunday mornings, consecutive staying access over half of N’s school holidays, further access on Father’s Day and the father’s birthday and telephone access.

10.  It is not in dispute that N lived with the father from March 2008 to March 2010 and has been living with the mother since March or April 2010 up to now.

Parties Open Offer

The Mother

11.  The mother is asking for a monthly sum of $7,150 for the maintenance of N.  This is the sum that she stated on her Form E dated 7 April 2014 as the monthly expenses that she incurs for N.

12.  She also holds the father to be responsible for major expenses of N, including but not limited to N’s future orthodontic treatment and laser vision correction surgery.

13.  She also seeks for the establishment of an education fund for the daughter’s university education.  She proposes that the fund should accumulate up to $500,000 in 4 years’ time (ie 48 months) and that the parties should make monthly contributions to make this happen.  She is willing to contribute 60% and so she is asking the father to contribute the remaining 40%.

The Father

14.  The father’s response, as far as monthly maintenance is concerned, is that he has been making payments for the daughter’s extra-curricular activities arranged by him.  He is also paying N’s school textbooks, school uniforms, school meals, computer, cell-phone expenses, extra-curricular books, insurance, clothing, sundries, entertainment fees and her pocket money.  He reckons that all these already amount to about $8,000 per month.  He agrees and is willing to provide an undertaking to the court for the continuous payments of all these but he does not agree to pay the monthly maintenance as requested by the mother.

15.  As for the education fund, he does not agree to its establishment.

The Law

16.  Notwithstanding that the parties have divorced for a couple of years, this is the first application for financial provision on behalf of the child of the family.  The relevant provisions are in section 7(2) of the Matrimonial Proceedings and Property Ordinance, Cap 192:

(2) … it shall be the duty of the court in deciding whether to excise its power under section 5, 6 or 6A in relation to a child of the family and, if so, in what manner, 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) the income, earning capacity (if any), property and other financial resources of the child;

(c) any physical or mental disability of the child;

(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;

and so to excise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (1), just do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him.

The Monthly Maintenance

The Mother’s Case

17.  The mother argues that according to the Undertaking that the father gave to the court, he should be responsible for the maintenance of N but he failed to do that after the care and control of N was given to her in October 2009.  She submits that the Undertaking has remained valid and effective and the father has been in breach of the Undertaking.

18.  As regards whether there has been a breach, I take a different view.  This appears also to be the stance taken by the father.  The order of 2 July 2008 must be read and construed as a whole.  When the Undertaking was given, there was already an earlier order dated 31 January 2008 giving the care and control of N to the father.  It was subsequently more than a year later that the care and control was varied on 8 October 2009.  The mother seemed to have forgotten that in her Statement as to the Arrangement for N dated 1 September 2008 in support of her variation of the custody and care and control, on the part of “Financial Provision”, her proposal was that “she will support the said child financially with contribution from the Respondent”.  Therefore, it seems to me clear that the circumstances under which the Undertaking was given has been changed. 

The Father’s Case

19.  The father emphasizes that during the 2 years when N was living with him prior to the variation he shouldered all her expenses.  Further, after the daughter had moved to live with the mother, he has been continuously paying the daughter’s extra-curricular activities arranged by him, such as ice-skating class, summer classes, school textbooks, school uniforms, computer, cell-phone expenses, transportation, extra-curricular books, insurance, clothing, sundries, entertainment and other expense in the region of $8,350.  The mother has failed to acknowledge his contribution by way of these direct payments.

20.  Under the present access arrangement, the daughter is now spending substantial amount of time with him.  The father submits that the expenses incurred by him in relation to access should also be taken into account.  Further, the father also asks the court to take into account his expenses on overseas trips with the daughter during her school holidays.

The Financial Resources and Needs of the Mother

21.  The mother is now living with N in a rented apartment in Happy Valley, which is in the proximity of N’s school, a competitive direct-subsidy secondary school. She is taking care of N with the help of a foreign domestic helper.

22.  She has a very stable job.  She is working as an Executive Officer in a statutory body earning a monthly remuneration of about $59,660.  She is now 50 years old.  Her retiring age is 60.

23.  The mother’s monthly expenditure, inclusive of N’s, as set out in her Form E and revised in her evidence is as follows:

General
Item	Amount HK$
Rent	18,300
Mortgage instalments (The grand-mother’s residence)	7,100
Utilities (electricity, gas, rates, telephone & water)	1,200– 1,500
Food	2,000
Household expenses	1,000
Car expenses	4,650
Insurance premia (the car)	450
Domestic helper(s)	4,000
Other (specify) Home Wifi	250
Total monthly household expenses	39,250
Personal
Item	Amount HK$
Meals out of home	1,000
Transport	3,000
Clothing / shoes	1,000
Personal grooming (including haircut and cosmetics)	500
Tax	3,000
Insurance premia	4,300
Others (specify) – Mobile fee	450
Total monthly personal expenses	13,250
N’s Expenses
Item	Amount HK$
Extra tuition fees (mathematics)	2,000
School books and stationery	300
Extra Curricular Activities (Tennis)	3,000
Entertainment / presents	500
Clothing / shoes	500
Insurance premia (life insurance and Education fund)	850
Total monthly expenses for children	7,150
Total Monthly Expenses	59,650

24.  On the liability side, the mother owes her former solicitors professional costs of $80,000 that she incurred in the previous application for variation of custody.  Nevertheless, she admits that she has no concrete plan of repayment. She has also withdrawn some money from her insurance policies and again she has no concrete plan of repayment.  There are no due dates for the repayments.  If she does not repay them, she would get less when the policies mature.

25.  N’s monthly expenditure is stated to be $7,150 per month.  The mother is seeking an order from the court that the father is to make a monthly periodical payment of this sum.  In other words, apart from N’s share of general expenses that forms part of the mother’s reported general expenses such as food at home or the utilities, the mother is asking the father to shoulder the entirety of N’s living expenditure.

26.  In evidence, the mother admits that given her level of expenditure, she has not been able to have any meaningful savings.  If she is able to get some maintenance from the father, she would then be in a position to save for N’s future university education.  Ideally, she should be able to save the whole of $7,150 if the court so orders.

27.  It is fair to say that in trial the father has not launched any serious criticism and challenges against the mother’s expenditure.  On the contrary, while the mother agrees to most of the minor items, she has raised a number of objections to the father’s items. 

28.  To me, the approach adopted by the father is a sensible one.  First, apart from one or two items which I will turn to when I come to the education fund, I consider that the items are necessary and their amounts are reasonable. Secondly, any unnecessary challenges would only add fuel to the parties’ mistrust against each other when in my view, they, in particular the mother, have already developed deep-seated mistrust against the other.  From what I can gather from the present trial and also from the previous disputes, the mother is clearly of the view that the father is in her way.

The Financial Resources and Needs of the Father

29.  As for the father, same as the mother, he remains single and is living alone in a rented apartment in Kornhill, Quarry Bay.  He was trained in Electronic Engineering and is now working as a project manager in a building services company earning about $34,700 per month.  He is now 52 years old.

30.  The father’s monthly expenditure, also inclusive of that of N, as set out in his Form E and revised in his evidence is as follows:

General
Item	Amount HK$
Rent	14,500
Utilities (electricity, gas, rates, telephone & water)	600
Food	2,500
Household expenses	300
Other (specify) Broadband expenses	145
Total monthly household expenses	18,045
Personal
Item	Amount HK$
Meals out of home	200
Transport	1,800
Clothing / shoes	200
Personal grooming (including haircut and cosmetics)	100
Entertainment / presents	200
Holiday	200
Medical / dental	250
Tax	2,281
Insurance premia	514
Contribution to parents	500
Others (specify)(a)  Mobile Expenses: $400 (b)  Professional membership fee: $300 (c)  Master degree course fee: $1,000	1,700
Total monthly personal expenses	7,945
N’s Expenses
Item	Amount HK$
School books and stationery	450
Medical / dental	200
Extra Curricular Activities (Ice-Skating)	1,800
Entertainment / presents	300
Holidays	200
Clothing / shoes	300
Insurance premia (Education fund and medical)	850
Lunches and pocket money	2,000
Other Transport	200
Uniform	150
Other (specify) (a) N’s Mobile Expenses: $200 (b) Extra Curricular Books / Computer / I-phone: $300 (c) Local part-time helper during N’s summer holiday at $70 per hour (average 27 days): $600 (d) Meals out of home with N during Weekday evenings’ access: $800	1,900
Total monthly expenses for children	8,350
	34,340

31.  The mother accepts most of the items that the father says has been making towards N’s living expenses.  There are some minor disputes over whether the school books and stationery amount to as much as $450 and the mother accepts $375 only but I do not think this is material.

32.  Apart from ice-skating, the father mentions that he arranged summer classes for N but the mother’s response is that she is not aware of these because the father did not ‘ask’ her about them.

33.  The father also explains that since he is having roughly 50 days of staying access each year, he has to employ a part-time helper during the month when N is staying with him.  He did so in 2014.  He is also paying N’s lunches and pocket money $500 per week. 

34.  In addition to the expenditures as stated, the father says that he has some bank loans on which he has to make monthly repayments of about $7,896.  These liabilities began when he was unemployed for 6 months in August 2009 and when he had to pay his solicitors’ bill for the variation litigation in October 2009.  He has not included the monthly repayments in his Form E.  As a matter of fact, he is running at a deficit.  I accept that this is the case.  Indeed, the mother has not challenged the genuineness of the debts.  I also accept the father’s evidence he has in fact understated some of the items, for instance he has not included the costs of N’s summer class, in order to make it more acceptable to the mother.

35.  Despite the objections from the mother, I find the father’s expenses reasonable.

Discussion

36.  To start with, in my view, since both parties’ situation is more or less the same, it is only fair that both should be responsible for the maintenance of N.

37.  Secondly, the parties’ expenditures on N to some extent complement each other.  Hence, the mother does not need to pay for the annual text books that the school requires, N’s lunches and pocket money and her uniform and cell-phone because the same have been taken care of by the father.

38.  That said, the parties’ financial resources are regrettably limited.  Though both can be regarded as having a stable job and a steady income (especially the mother), there are now two separate households.  It is not surprising that their means would just be sufficient to meet their ends.  On the part of the father, I accept that he has been running at a deficit in the past few years but being a loving and caring father, he has been trying his best to provide for N.  This is something that should be acknowledged.

39.  The mother submits that there is duplication of the items.  Given the limited financial resources of the parties, this duplication should be avoided so that monies are used in the best interest of N.  However, in essence, what she is asking for is the cancellation of some of the father’s items that he is spending on N (and to keep all of her items). 

40.  It is clear that the parties have had communication problems and these led to their respective applications regarding access.  Though eventually the parties able to come to some form of agreement, it is unfortunate that their communications, at least as far as in other aspects are concerned, have remained difficult.  By way of an example, when it comes to N’s extra-curricular activities, both are determined to have their own ways.  The mother considers that apart from volleyball, tennis is the sport that N should excel in but the father prefers ice-skating and both have been making their own arrangements in this regard.  It is fair to say that both do not see much value in the choice made by the other; and in my view, the mother is more vocal and critical in this respect.  As far as I can see, there is little communication between them not to mention co-operation. 

41.  I have an impression that the mother regards herself always in the right.  She considers that the father has been spending money unwisely in employing a part-time helper (on average $600 per month) when N is staying with him during the summer vacation but at the same time, she has been enlisting the help of a full-time domestic helper.  It is true that the mother during trial has proposed that she could instruct her helper to stay at the father’s place, but I do not think that according to the terms of contract she has with her helper she is able to do so legally.  The mother is even taking the view that the father is spending beyond his means because he is having too much access to N.

42.  The mother also suggests that the ice-skating activity should be cancelled and the weekly lunch and pocket money of $500 should be given to her directly.  This is opposed to by the father.

43.  From the evidence before me, it appears that N has been enjoying both activities.  I see little justification to have one activity cancelled in favour of the other. 

44.  As for the $500 pocket money, the mother is essentially saying that $500 is too much for N because N is having breakfast at home and she does not normally have lunch outside the school.  However, she does not object to the suggestion from the father that when N promotes to Form 3 this summer she may have the need to have lunch outside more often.  In some ways, I regard this practice as one of the ties that the father has with the daughter and for this reason this should not be upset lightly.  In this regard, the father is urged upon to give more instructions and guidance to N on spending money responsibly.

45.  For these reasons, I incline to keep the existing practice.   

46.  As far as N’s total expenditures are concerned, they appear to be a bit on the high side.  A major reason is the duplication of some of the activities or items which are in the range of about $1,000 to $1,500 but given the state of the relationship between the parties as of now, I think this is unavoidable. Subject to this caveat, in my assessment, by and large they are reasonable. Thus analysed, I am of the view that the status quo should be maintained. It is hopeful that when the parties regain more trust on the other in the future, they may be able to communicate constructively.

47.  The father has agreed to give an undertaking to the court that he shall continue to make payments for the benefit of N at a sum not less than $8,000 per month.  I shall hold the father onto this undertaking and this undertaking shall form part of the order made herein.

Orthodontic Treatment and Laser Vision Correction Surgery and Future Expenses

48.  Clearly there are disagreements over whether or not the treatments mentioned by the mother need to be performed. 

49.  As far as the orthodontic treatment is concerned, the mother admits that the treating dentist has advised against the treatment but she stresses that N would very much like to have at least the lower jaw treated because N is aspiring to become an actress. 

50.  As for the Laser Vision Correction Surgery, the mother says it is just on her agenda that this may have to be done some time in the future but she has nothing concrete yet.

51.  As the matter now stands, I see little evidence and little need for the orthodontic treatment.

52.  As I have explained to the parties, the ultimate question is whether the treatment is for the best interest of N.  The court would have to consider each treatment on a case by case basis if the parties are not able to arrive at an agreement.  And in this regard, I would like to remind the parties that there should be concrete medical evidence available for the court’s deliberation if there should any application in the future.  

N’s University Education Fund

53.  The mother estimates that if N is to have university education overseas such as in the UK or the United States, a minimum of $200,000 per year is required, so assuming a period of 4 years, this would mean $800,000.  N is now in Form 2 so there are still some 4 to 5 years to go before she needs the money.  The mother argues that it is now high time that the parties planned ahead.  She agrees to have a sum of $500,000 by the time when N departs for education.

54.  The father considers that it remains uncertain as to whether or not N is going to have her university education overseas.  There are 10 local universities.  It may well be the case that N will remain in Hong Kong.  Further, even if N has to go overseas, UK or US may not be the only options.  All in all, there are many unknown factors.  Nevertheless, the most important point is as of now for the reason that he is in a deficit he is not able to make any contribution. 

55.  The father also points out that there appears to have some inconsistencies in the mother’s stance.  In her Form E (Part 1.13), her proposed future arrangement is for N to go overseas if she is not able secure “a good university space locally”. Further, the mother now informs the court that she would like N to have orthodontic treatment so as to fulfil N’s dream of becoming an actress.  To this, the mother explains that when she mentioned “a good university space locally” she was referring to professional courses such as medicine and law and N could be an actress after she has completed her education.  

56.  I see some force in the father’s observations.  I incline to agree with the father that the daughter’s options are many and open, depending on a variety of factors such as her interest and ability and the type of courses available, whether local or overseas.

57.  Both parties are well educated.  In her younger days, the mother obtained a Diploma in Executive Secretarial Studies after completion of her secondary education. She continued her study while working full-time and managed to obtain a Higher Certificate in Company Secretary and two Master Degrees.

58.  As for the father, he attended university in the United Kingdom and obtained a Bachelor degree in Electronic Engineering.  He too continued his study while working full-time and acquired a Postgraduate Diploma and two Master Degrees. He is still working on a third Master Degree in Arbitration and should be able to complete it by the summer of June 2016.

59.  I accept this is within their reasonable and legitimate expectation that N should receive university education if her ability allows her to do so.

60.  The mother and the father are aged 50 and 52 respectively.  Both of their retiring age is 60.  By the time when N departs for tertiary education, if that really happens, both of them should still be in gainful employment earning wages presumably higher than what they are getting now as they advance in their careers.  They should be financially in a better position than what they are now.  Thus, I agree that the parties may not need to accumulate the whole sum of $800,000.  I accept that $400,000 to $500,000 should be an appropriate amount.  In this respect, in the event that the court makes an order that the father is to make a periodical payment for this purpose, the mother agrees to undertake to the court that she will open a bank account exclusively for this purpose and will deposit her part of contribution and the father’s periodical payments into the account. 

61.  It should be noted that both have been maintaining an insurance policy for N. According to the terms of the father’s policy, N will get $50,000 upon reaching the age of 18.  Similarly, there will be another sum of $150,000 from the mother’s policy upon N’s age of majority.   Hence, N will have at least $200,000 for her education.

62.  Having said that, it seems to me clear that the real issue is whether or not the parties are able to save.  

63.  I accept that the father is running at a deficit and so unfortunately in the meantime he is not able to make any contribution.  As evident in the previous Social Investigation Reports and from the fact that he has been making continuous payments towards N’s expenses, I have no doubt that he is a loving and caring father and will be contributing his due share when he is able to do so.

64.  As the situation now stands, it would appear that the mother is in a much better position to save.  Her expense on the car amounts to a total of $8,100 per month (Car expenses $4,650 + Insurance premia $450 and Transport $3,000).  She testifies that she needs the car for work and for taking N to activities.  N also enjoys very much the time she has with her in the car.  In my view, given the convenience and easy accessibility of public transportation in the city, there are ample substitutes for the car at much lower costs.  It would appear to me that this item is the one of the two items that some economy can be made so as to make room for N’s education fund.  Another item is the tuition fee in Mathematics that the mother is spending.  The father, who is a graduate in electronic engineering, has offered to do the tutoring for N but this is rejected by the mother.  In my view, these are the areas that the mother may consider to give them a try so as to enable her to save for N’s future education.

65.  To conclude, I am not in favour of having an education fund.

Orders

66.  For the reasons aforesaid, I give the following orders.

67.  Upon the undertaking by the respondent to the court and to the petitioner that he will continue to make payments towards the maintenance of the child of the family including extra-curricular activities, school textbooks, uniforms and meals, computer, cell-phone expenses, extra-curricular books, insurance, clothing, sundries, entertainment fees and pocket money at a sum of not less than $8,000 per month until she attains 18 years of age or finishes her full time education, whichever is the later, it is ordered that:

1. Para 3 of the Petitioner’s Summons dated 29 December 2012 is dismissed.

2. The Petitioner’s Application dated 8 March 2014 is dismissed.

3. The respondent’s undertaking dated 2 July 2008 in relation to the maintenance of the child of the family is discharged.

Costs

68.  Since the petitioner fails in her applications, she should be liable to pay the respondent’s costs.  I give an order that the petitioner do pay the respondent the costs of her applications, including costs reserved, to be assessed by way of summary assessment.