W v. W

FCMC 3715/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 3715 OF 2003

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J U D G M E N T

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Applications

1.  I have three summonses before me. They are:

(1) The summons of the Petitioner husband (hereinafter called “the Husband”) dated 19 May 2005 for a downward adjustment of the maintenance he is now paying to the Respondent wife (hereinafter called “the Wife”) and the child of the family (hereinafter called “J”);

(2) The summons of the Husband dated 26 May 2005 on the future education of and his access to J; and

(3) The summons of the Wife dated 7 February 2006 for an upward adjustment of the maintenance she is now receiving from the Husband for herself and J. 

2. In this judgment, I shall deal with the summons on access first. As to the other 2 summonses, they will be dealt with together as they are just the two sides of the same issue.

Background

3. The Husband is now aged 47. He is an expatriate employee of a big American paper company occupying a senior position.

4. The Wife is now aged 43. She married the Husband in 1986. For most of her married life, she has been a housewife.

5. J was born on 7 May 1991 and therefore is now aged 15. He is a student of the Hong Kong International School.

6. Due to the nature of the Husband’s employment, he had been posted to different parts of the world, including Guangzhou, Taiwan and Hong Kong. Naturally, the family moved with the Husband from time to time.

7. In 1999, the family was relocated to Hong Kong due to the Husband’s secondment here. As an expatriate officer of the company, the Husband was entitled to rather generous employment terms. Apart from the monthly salary and annual bonus he was entitled to, the Husband was also given various fringe benefits, the most important of which was the provision of a company flat in the Tregunter Tower, measuring a floor area of 3,000 sq. ft. I was told that the monthly rent of the Tregunter flat was in the region of HK$ 120,000.

8. The marriage lasted 16 years. They separated in 2002. It was agreed that J would stay with the Wife. With the help of a mediator, the parties also entered into a mediation agreement on 17 December 2002 (‘the Mediation Agreement”) to settle the issue of J’s custody and the parties’ financial claims.

9. On 2 April 2003, the Husband filed a divorce petition based on one year separation with consent. A consent order was granted by Deputy Judge D’Almada Remedios on 13 November 2003 embodying the terms of the Mediation Agreement (“the Maintenance Order”). It was a rather long order reciting a long list of acknowledgments and undertakings by the parties. I think it is sufficient for present purposes to recite only some of the important undertakings and terms of the order here:    

“  ….

E. AND UPON [the Husband] hereby undertaking to [the Wife] and to this Honourable Court that upon the termination of the lease for Tregunter, the former matrimonial home,…, he will, through his employer, provide alternative accommodation to be chosen by [the Wife] of not less than two bedrooms for [the Wife] and [J] using the whole of [the Husband]’s housing entitlement/allowance from his employers, and in any event of such housing entitlement/allowance from his employers coming to an end, such provision is to be the subject for further negotiation via mediation in the first instance, if practicable

F. AND UPON [the Husband] hereby undertaking to [the Wife] and to the Honourable Court that upon receipt by him of his employer’s notice of relocation from Hong Kong, [the Husband] shall transfer all his interim accommodation benefit to [the Wife].

G. AND UPON [the Husband] hereby undertaking to  [the Wife] and to the Honourable Court that upon cessation of the interim accommodation to be provided for by [the Husband]’s employer, [the Husband] shall pay to [the Wife] and [J] a sum of HK$ 25,000 per month pro-rata to the actual length of time it takes between the end of interim accommodation provided by [the Husband]’s employer to an agreement being reached by mediation.

H. AND UPON [the Husband] undertaking to the Court and to [the Wife] that [the Husband] shall pay direct for [J]’s school tuition fees, bus fares, lunch expenses, medical and dental cost, such payments being made expeditiously by [the Husband] on presentation of invoices or demands for such payments. The expenses mentioned in this paragraph are all being paid by[the Husband]’s present employer and in the event of such fringe benefit enjoyed by[the Husband] coming to an end, such provision is to be subject for further negotiation via mediation in the first instance, if practicable

….

IT IS BY CONSENT ORDERED THAT :-

(1) [The Husband] and [the Wife] do have joint custody of [J],…, with care and control granted to [the Wife] and reasonable access to [the Husband] in accordance with the provisions of paragraph 5 of the Mediation Agreement….

(2) [The Husband] do pay periodical payments, …, for the maintenance of [the Wife] in the sum of US$4,653.00 per calendar month, payable on the 1^st day of January 2003 and thereafter on the 1^st day of each succeeding month…until [the Wife]’s remarriage, or until further order.

(3) [The Husband] do pay periodical payments,…, for the maintenance of [J] in the sum of US$1,631.00 per calendar month, payable on the 1st day of January 2003 and thereafter on the 1^st day of each succeeding month, until [J] leaves secondary school in Hong Kong or his 18^th birthday, whichever shall be later, or until further order.

….”

10. In short, the Husband agreed to provide company accommodation, pay the monthly sums of US$ 4,653 (for the Wife) and US$ 1,631 (for J) as maintenance, and pay all of J’ school related and medical expenses.

11. It was envisaged in the Maintenance Order that the Husband, as an expatriate officer of the company, may be posted out of Hong Kong in the future. This has actually happened in 2005. On 17 June 2005, the Husband was relocated to Shanghai. The immediate effect of this transfer was that the company accommodation in Tregunter was no longer available. 

12. There had been talks between the parties on whether the Wife and J should also go to Shanghai but eventually it was decided that they would stay in Hong Kong. After all, even if they should go to Shanghai, the Wife would not be entitled to stay in company accommodation there because the parties are no longer husband and wife. Any use of the Husband’s existing company accommodation by the Wife would result in huge tax liability on the part of the Husband, which I accept would not be within the Husband’s financial means to afford.

13. Then there came the question on how to accommodate the Wife and J in Hong Kong. It is the Husband’s case that he is not in a position to provide alternative accommodation equivalent to Tregunter. That fact is beyond dispute. The Husband was only willing to provide, as an interim measure, a sum of HK$ 15,000 for the Wife and J’s accommodation in Hong Kong, pending a decision of the Court on this issue. The situation was further complicated by the remarriage of the Husband in 2004. He said his job had also become insecure and with his income reduced. Therefore, he said he had no choice but to take out the application for a downward adjustment of the maintenance payments after he failed to secure an agreement of variation from the Wife.

14. On the other hand, the Wife was aggrieved by the fact that she and J had to move out of Tregunter which had been their home for the past 6 years. With the HK$ 15,000 provided by the Husband, she and J were only able to secure a flat of 700 sq.ft. in Taikooshing, Quarry Bay, Hong Kong. She feels that she is entitled to some better accommodation, especially in view of the fact that the Husband and his new family are now enjoying rather luxurious company accommodation in Shanghai. She therefore asked for an upward adjustment of the Maintenance Order. 

15. With this downgrade of accommodation, J was particularly upset because of the inferiority he felt when compared with his rather affluent schoolmates. To make things even worse, the Husband chose to inform J of his remarriage by an e-mail in January 2005, which was 10 months after the event. J vented his anger by refusing to see the Husband or communicate with him in anyway. This has led to the Husband’s summons for defined access.

Access to J

16.  In the summons for access dated 26 May 2005, the Husband originally asked for:

(1)   Directions on the future education of J; and

(2)   Defined access including staying and holiday access to J.

17. In his supporting affirmation, the Husband said since he was no longer working in Hong Kong, it was now time for J to consider whether he should continue his education in Taiwan (where both parties have their relatives there) or the US (where J was born). However, as it is the wish of J to continue his secondary education in Hong Kong, the Husband is now no long pursuing this part of the summons. It is now the agreement of the parties that the Wife and J will stay in Hong Kong until J has at least finished his secondary education.

18. The remaining issue is the resumption of access to J by the Husband.

19. After learning the Husband has remarried in the circumstances as described in paragraph 15 above, J has refused to see the Husband. Despite the fact that J is already 15 years of age, both parties agree that it will only be in the interest of J to have resumed access with the Husband. The issue now is how to make that happen.

Social Investigation Report

20.  A social investigation report has been called for. In the report, apart from reporting on the general conditions of the parties, the Social Investigation Officer, Mr. Fung, has also interviewed them, including J. According to J, he did not enjoy the access by the Husband all along. He felt particularly awkward and upset when he learnt the Husband’s remarriage in an e-mail who also wanted to get J involved in the Husband’s new family. Therefore, he tried to avoid the Husband as far as he could. He also expressed his reluctance to visit the Husband in Shanghai or to meet him at all.

21. During a joint session, J has asked the Husband not to contact him by any means except by physical mail, with the implication that he could control the pace of contact.

22. In Court, Mr. Fung gave evidence and being examined by the parties’ respective counsels. He expressed his view that he would like to see the access to be something more than physical mails. He suspected that the proposal of physical mail by J was only an attempt to reduce contact with the Husband. Having said that, he also accepted the fact that to force a young man of 15 to do something against his wish might be counter-productive. He suggested that the Wife could use more of her influence on J in letting him to see the goodness of having continuous access with his father. Finally, he stated his recommendation in the report that:

“…I recommend that unrestricted and reasonable access to [the Husband] should be continued and flexibly arranged between the parties, taking into the account the schedules and availability of [the Husband] and [J], and that [the Husband]’s visit to the boy during weekends and school holidays coupled with more frequent telephone contacts should be promoted.”

Clinical Psychologist Report

23. The parties have also called a jointly appointed clinical psychologist, Dr. L, to give evidence. Dr. L shared the view that the Husband’s access to J should be restored. However, in order to ease the anger of J and to re-establish the trust between father and son, the resumption of access had to be done gradually.

24. Dr. L recommended that before the actual resumption of face to face contact, it would be useful for J to go through some individual counseling sessions first in order to make him understand that the resumption of contact with the Husband would be to his benefit. Only after J was ready then a joint session should be arranged so that father and son can meet in the presence of a joint counselor. Hopefully with that gradual resumption of trust between father and son, future normal access can then follow. 

Court’s View on Access

25. I think it is common ground that the resumption of access to J by the Husband is important not only to the Husband, but may be even more important for the normal development of J as an adolescent in a broken marriage. The parties also agree to the counseling sessions as recommended by Dr. L. The issue now is how to make that happen in view of the rather negative attitude of J on this matter. 

26. I was told at the trial that at one stage, the parties could almost arrive at a settlement more or less along the recommendations of Dr. L. They had even drafted a consent summons with all the terms on access to be agreed except on one point. That was how to determine whether J was ready to attend the joint counseling session or to have physical or telephone access with the Husband. 

27. It was the Wife’s case that J, as a teenager of 15 now, should not be forced to go to the joint counseling session. In other words, J should go only if he himself thinks that he is ready. Likewise, if J decides not to have physical or telephone access with the Husband after the joint counseling session, he should have every right not to do so. 

28. On the other hand, it is the Husband’s case that he would certainly respect the views of J on the matter of access. He would even agree to give an undertaking to the Court that he would not force upon J to attend the joint sessions or to resume physical access if J is not yet ready. However, it is his view that the timing of starting the joint counseling sessions and to have subsequent physical or telephone access should not be left to the subjective view of J, but to the objective views of the professional counselors. A clear message has to be sent to J that he cannot do whatever he wants although his view on the matter will be respected.

29. In deciding on the question of access, the welfare of J is always the first and paramount consideration: S.3 Guardianship of Minors Ordinance, Cap 13.

30. It is obvious that the resumption of access will be in the interest of J. Unfortunately, that fact may not be obvious to J himself. His anger towards the Husband is understandable. But it is also my view that it is now time for the Court to give some clear directions to J that at some time in the near future, the Husband’s physical access to him has to be resumed. Of course, everybody knows that forcing a teenager to do something against his wish may sometime be counter-productive, but to allow him to dictate on when that access is to be resumed is equally undesirable. A fine balance has to be struck. I am of the view that it is reasonable for the joint counseling sessions and the subsequent resumption of physical access to start upon the recommendations of the relevant counselors.     

31. Based on the above reasons and upon the personal undertaking by the Husband that he would not force upon J to have physical access with him unless and until he is ready to do so, I will make the following orders on access:

(1) J to receive individual counseling on regular fortnightly basis as soon as practicable with a professional counselor to be jointly appointed by the parties but other than Dr. L (hereinafter called “the Individual Counselor”);

(2) Upon professional advice from the Individual Counselor on J’s progress, there shall be joint counseling session to be attended by J and the Husband before a joint counselor to be agreed between the parties but other than the Individual Counselor or Dr. L (hereinafter called ‘the Joint Counselor”);

(3) Upon the professional advice from the Joint Counselor that J is ready for access, the Husband’s physical access to J be resumed and defined as follows:

(i)   The Husband to have visiting access to J at least once every 2 months, either in Hong Kong or Shanghai, subject to prior arrangement and agreement between the parties;

(ii)   The Husband to have staying access and holiday access to J to be arranged with prior notice and upon prior agreement with the Wife and J;

(iii)   The Husband to have telephone access to J at least once a week.

(4) The Husband shall bear the costs of the Individual Counselor, the Joint Counselor and the traveling expenses of J to be incurred.

Variation of the Maintenance Order

32. I will now deal with the parties’ respective summonses on the variation of the Maintenance Order.

The Parties’ Respective Positions

33. At the beginning of the trial, the Husband has already stated his open offer very clearly, namely:

(1)   The monthly maintenance of the Wife be reduced from US$ 4,653 to US$ 3,000, i.e. a reduction of US$ 1,653 (about HK$ 12,893 by adopting the exchange rate of 1:7.8);

(2)   The monthly maintenance of J be remained at the same rate, i.e. US$ 1,631 until he finishes his education in Hong Kong;

(3)   The Husband will continue to pay all of J’s school tuition fees, bus fares, lunch expenses, medical and dental costs;

(4) The Husband will pay an additional sum of HK$7,500 per month as his contribution towards J’s accommodation expenses until he finishes his education in Hong Kong.

34. On the other hand, the Wife’s present position on the issue is as follows:

(1)   The present level of maintenance payments for both herself and J shall remain the same;

(2)   The Husband shall continue to honour his obligations to pay J’s school tuition fees, bus fares, lunch expenses, medical and dental costs;

(3)   There shall be an additional monthly payment of HK$25,000 to cater for the housing needs of both herself and J.

35.  By simple calculation, one can immediately see that the difference between the parties is a monthly sum of HK$ 30,393.

The Law

36. I think it is always convenient to start with the law governing the variation of maintenance orders. That can be found in Section 11 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) which is as follows:

“11. Variation, discharge, etc. of orders for financial provision

(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.

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(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 and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death.
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37. The proper approach that the court should take in exercising its discretion under this section can be found in the English Court of Appeal case of Lewis v. Lewis [1977] 1 WLR at 409 in which it was held:

“----- that the powers of the court when dealing with an application to vary a periodical payments order were not confined to considering the alteration in the actual means of the parties; that under section 31(7) of the Matrimonial Causes Act 1973 [equivalent to our section 11 (7) MPPO] the court was required to have regard to changes in any of the matters mentioned in section 25 of the Act of 1973 [equivalent to our section 7 MPPO] and therefore, the judge was right to look at all the circumstances as they were when the case was before him and to make an order that was reasonable in those circumstances.”

38. A similar approach was adopted and developed upon by the local court in a more recent case of K v. K, DJ No. 5 of 1986, 11 December 1997 in which Deputy Judge Hartmann (as he then was) had the following to say at paragraph 12:

“In considering an application of variation, I am not required to proceed from the starting point of the original order but must look at the matter de novo although obviously any material change in the matters to which the Court was required to have regard when the original order for maintenance was made are of relevance. In my judgment, therefore, in matters of this kind I should adopt the approach in Flavell v. Flavell [1997] 1 FLR 353 (at 357G); namely, to look first at the present situation, examine the basis of the original order, consider events since that order was made and decide what is fair in the light of those matters.”

39. I do not think the principles as expounded in the above cases are disputed by the parties.

The Husband’s Financial Position

Income

40. The Husband is an expatriate officer of an international corporation. Since July 2005, he has been posted out of Hong Kong and is now living with his present wife and a new born son in Shanghai. According to his pay stubs, his present basic salary is about US$ 12,000 per month. From the evidence produced by the Husband, it can be seen that the monthly basic salary did vary a little in certain months (Bundle 5, p.1474 to 1483). I suppose that may be due to the various allowances and deductions in his pay package.                                                  

41. The Husband is also entitled to an annual bonus. The latest bonus was released in February 2006 in the sum of US$ 24,112.80 (an  average of US$ 2,009.40 per month). Although this bonus is necessarily paid at the discretion of the company, I think it is fair to say that from the history of the Husband’s employment, he has received such bonus every year despite the sums received may vary from year to year.

42. In 2005, there was also a tax refund of US$ 17,202 (an average of US$ 1,433.50 per month) from the US Inland Revenue for the over deduction or payment of tax. Although this sum also varies from year to year, I think it is only fair to put this back into the Husband’s income equation.

43. During the trial, the Husband was cross-examined vigorously by the counsel for the Wife. There were allegations that he had not been frank about his income and assets. After hearing his evidence in Court, which was not shaken at all under cross-examination, I am satisfied that the Husband is an honest and truthful witness.

44. I am satisfied that the average monthly income of the Husband is about US$ 15,442.90 per month (US$ 12,000 + US$ 2,009.40 + US$ 1,433.50). In converting that into Hong Kong currency, that amounts to a monthly sum of about HK$ 120,000 (US$ 15,442.90 x 7.8 = HK$ 120,454.62). Overall speaking, I am not convinced that there is any decrease in the Husband’s present income as compared with his then income in 2002/2003.

45. As to the monthly outgoings of the Husband, they were listed in his 3^rd Affirmation [Bundle 4, p. 1054] as follows:           

                   General

Monthly Rent	Paid by Company
Utilities	Paid by Company
Management Fees	Paid by Company
Food	HK$ 4,571.42
Household Expenses	HK$ 3,494.46
Domestic Helper(s)	HK$ 2,000
Others
a. Electronics	HK$ 3,527.94
b.[Present wife] mobile	HK$ 52.26
	________________
Sub-total:	HK$ 13,646.08
Personal (including [present wife])
Meals out of Home	HK$ 5,634.72
Transport	HK$ 450
Clothing/Shoes	HK$ 9,315.54
Personal Grooming	HK$ 2,617.68
Entertainment/Presents	HK$ 1,945.32
Holidays	HK$ 2,178.54
Medical/Dental	HK$ 353
Tax	Paid by Company
Contribution to mum	HK$ 5,460
Others
a. Leisure	HK$ 180.18
b. Web info service	HK$ 207.48
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Sub-total:	HK$ 28,342.46
Existing Maintenance Payments
The Wife	HK$ 36,293.40 (US$ 4,653)
J	HK$ 12,721.80 (US$ 1,631)
Interim Housing	HK$ 15,000
	______________________
Sub-total:	HK$ 64,015.20

The grand total of the outgoings amounts to HK$ 106,003.74 per month.

46. Among those expenditure items, much criticisms have been levied on the Husband’s payment of HK$ 5,460 to support his mother in Taiwan. On this, I can only say that as a matter of strict legal requirements, I do not think the Husband has any legal obligation to support his aged mother in Taiwan. But we all know that in a Chinese family, a son in supporting his aged parents financially is very much in the tradition and I see nothing wrong in the Husband in honouring his duty as a son. Afterall, we are not facing a situation that the Husband is supporting his mother while neglecting his duties towards his own family. He only pays a relatively small amount (less than 5%) of his income to his mother. I will accept this as a reasonable item of his monthly expenses.  

47. I also take note that when the Husband prepared the above table of expenditures back in February 2006, his son with the present wife has not yet been born. Since the son’s birth in May 2006, I trust that the Husband must have incurred some new financial obligations, the amount of which will no doubt increase gradually in the future. Although there is no evidence of the Husband’s present expenditures on his new born son, I am prepared to set aside a monthly sum of HK$ 5,000 for this purpose. 

48. Furthermore, with the introduction of the counseling arrangement for J, it is anticipated that further expenses will be incurred. The estimated cost for each counseling session is HK$ 1,500. That means there will be an extra payment of HK$ 3,000 per month in this regard by the Husband.

49. Since the Husband is now residing in Shanghai, he has to incur extra traveling and accommodation expenses to attend the joint counseling sessions and to exercise his right of access to J (for either the Husband coming to Hong Kong or J going to Shanghai). Although there has not been any evidence on the likely costs of those extra travels, I think it is fair to set aside a sum of HK$ 5,000 per month for these purposes.

50. Overall speaking, I am prepared to accept the reasonable monthly outgoings of the Husband at HK$ 119,003.74 (HK$ 106,003.74 +  HK$ 5,000 + HK$ 3,000 + HK$ 5,000). 

51.  Since the Husband has an average monthly income of HK$ 120,000 (i.e. after taking into account of the bonus and tax refund), I am satisfied that the Husband is just able to make his ends meet with not much of a saving.

Assets

52. As far as the Husband’s assets are concerned, I am satisfied that he has the following capital assets:

Bank Accounts
(1) Erie Shores Credit Union	HK$ 195,425 (US$ 25,054)
(2) HSBC	HK$ 52,251
(3) Bank of China	HK$ 87,312 (RMB 90,950)
	______________________
Sub-total:	HK$ 334,988
Investment Accounts
(4) Merill Lynch	HK$ 55,692 (US$ 7,140)
(5) TD Waterhouse	HK$ 199,385 (US$ 25,262.19)
(6) TD Waterhouse	HK$ 27,328 (US$ 3,503)
	_______________________
Sub-total:	HK$ 282,405
Pensions
(7) Company Pension	HK$1,980,209 (US$253,873)
(8) Salary Savings Plan 401K	HK$1,742,953 (US$223,455)
	________________________
Sub-total:	HK$ 3,723,162

53. Although the grand total of the Husband’s capital assets amount to HK$ 4,340,050 (HK$ 334,988 + HK$ 282,405 + HK$ 3,723,162 = HK$ 4,340,555), it must be borne in mind that a large portion of those assets is not readily available until his retirement, which I believe to be in at least 10 or 15 years’ time.

Liabilities

54. I accept the Husband has the following liabilities (excluding legal costs) as set out in the schedule prepared by the Wife’s counsel on 15 June 2006:

(1) Loan due to his employer	HK$ 204,352
(2) Due to Dr. L	HK$ 13,350
	HK$ 217,702

I do not include the calculation of legal costs at this stage because that should be a matter to be looked upon at the conclusion of the trial.

Net Assets

55. Based on the above calculations, I am prepared to accept that the Husband has the net assets of HK$ 4,122,853. But as I said before, only a small portion of those assets (i.e. not counting his pension benefits) are readily available for his use.

The Wife’s Financial Position

56. The Wife is now aged 43. Before marriage, she worked as a clerk in the Courts of Taiwan. After marriage, she had worked in some part-time employments for a very short period of time. It is common ground that she was basically a homemaker during marriage. Therefore, it is not surprising at all that she finds it extremely hard to find any gainful employment after the separation in view of her long absence from the labour market. Moreover, since she is no longer remaining in Hong Kong with a dependent visa, it is also doubtful whether she will be allowed to seek lawful employment locally.

57. Facing with such precarious situation, she decided to do something to equip herself by taking a course in Chinese medicine. As part of her formal training, she has to go to Beijing or Shanghai for study trips from time to time.

58.  According to the Wife, these are the sources of her present income:

(1)   Monthly maintenance for herself	HK$ 36,293.40 (US$ 4,653)
(2)   Monthly maintenance for J	HK$ 12,721.80 (US$ 1,631)
(3)   Provision for interim housing	HK$ 15,000
(4)Monthly rent from the lease of her Seattle Apartment	HK$ 14,040 (US$ 1,800)
	___________
	HK$ 78,055.20

Outgoings

59. In her 3^rd Affirmation, the Wife has set out her monthly expenses as follow (Bundle 4, p.1208):

Household Expenses
Rent	HK$ 15,000
Mortgage instalments and homeowner’s due (for Seattle Property)	HK$ 15,600
Utilities	HK$ 3,500
Food	HK$ 7,000
Household expenses	HK$ 1,200
Domestic helper	HK$ 1,500
Others	HK$ 1,565
Sub-total:	_________
	HK$ 45,365
Personal expenses
Meals out of home	HK$ 1,200
Transport	HK$ 1,200
Clothing/shoes	HK$ 1,500
Personal grooming	HK$ 1,000
Entertainment/presents	HK$ 500
Holiday	HK$ 5,500
Medical and Dental Insurance	HK$ 2,100
Tax (US Income Tax US$7,000/annum	HK$ 6,500
and US Property Tax US$3,000/annum)	HK$ 1,000
Insurance Premia	HK$ 7,266
Others including:
Tuition (HK$ 50,000/annum)
Study materials, books stationeries
(HK$100 per month)
Learning trips (HK$16,000/annum)
Accountant (HK$4,000/annum)
Optical expenses (HK$4,000/annum)
Ice skating lesson (HK$ 800)
Books (HK$ 200)	______________
Sub-total:	HK$ 27,766
Expenses for J
Extra tuition fee	HK$ 3,500
School books and stationery	HK$ 500
Entertainment/presents	HK$ 600
Holidays	HK$ 3,300
Clothing/Shoes	HK$ 800
Lunches and pocket money	HK$ 1,500
Others including:	HK$ 2,800
French Immersion trip
(HK$ 18,000/annum)
Other school trips (HK$11,500/annum)
Other extracurricular activities
(HK$ 300/month)	____________
Sub-total:	HK$ 13,300

The grand total of the Wife’s monthly expenses amount to HK$ 86,431.

60. According to the above calculations, the Wife has a monthly deficit of HK$ 8,375.80. She said she has been relying on some of the loans extended to her by her family members in Taiwan to cover those deficits.

61. At trial, counsel for the Husband has cross-examined the Wife in details on some of the items of expenses.

Food

62. The Husband’s first attack on the Wife’s expenses is on her monthly household food bill of HK$ 7,000 (i.e. about HK$ 230 per day). The Wife explained that J is now 15 and does have a very good appetite. She would buy a lot of nutritious food everyday, including steak, fish, bread, a lot of fresh fruits etc. 

63. At trial, counsel for the Husband has tried to go through some of the Wife’s credit card receipts to check her spending history in various supermarkets. However, it must be noted that food purchases in Hong Kong do not necessarily restricted to supermarkets. It is well known that Chinese people like to buy food from wet markets and receipts to prove those spendings are rare. 

64. On the whole, I am satisfied that the spending of HK$ 7,000 per month on household food bill, may be a bit on the high side, can not be described as totally unreasonable, especially in view of the fact that J is a growing adolescent.

Tuition Fee

65. The next challenge by the Husband is on the Wife’s education and related expenses, which amounts to about HK$ 5,600 per month. According to the Wife, if everything goes well, she can expect to practise Chinese medicine sometime in 2013. The Husband opines that the Wife’s pursuit in her interest in Chinese medicine is very expensive and not a necessary expense.

66. On this topic, I am afraid I can not agree with the Husband.

67. It is undeniable that the Wife has dedicated 16 years of her precious youth in looking after the family. Due to the nature of the Husband’s employment as an expatriate staff and the fact that she has to take care of J, the Wife has practically given up her career for the sake of the family. Now, she has to start thinking about her own future at the age of 43. I do not think she should be criticized for pursuing her studies in something of her own interest. Afterall, it was the parties’ agreement that the Wife should have monthly maintenance of US$ 4,653 (HK$ 36,293) from the Husband. She is entitled to spend that money in whatever ways as she pleases. Spending about 15% (HK$ 5600 out of HK$ 36,293) of one’s income on education can not be regarded as unreasonable under these circumstances.    

Holidays

68. The Husband also takes issue on the Wife’s spending on holidays for herself (HK$5,500 per month) and J (HK$ 3,300 per month). It amounts to HK$ 8,800 per month, or HK$ 105,600 per year. 

69. According to the Wife, she takes 2 trips to Taiwan with J each year. On top of this, there were other trips excluding her learning trips and the school trips of J.

70. In 2004, she took a trip with J to Europe in the summer and another trip to Seattle in December.  

71. In 2005, they took a trip back to Seattle in the summer and then another trip to Sydney in December.

72. By looking at the matter objectively, by spending 18% (HK$ 8,800 out of HK$ 49,014) of one’s total maintenance income (for both the Wife and J) on leisure trips alone does seem a bit too extravagant to me. I do agree with the view of the Husband’s counsel that there is certainly some room for savings in this aspect, especially in view of the Wife’s complaint that she is not enjoying proper accommodation with J.

Seattle Property

73. At the time of divorce, the parties entered into the Mediation Agreement in which the division of the family assets was set out. It was agreed that the Wife would be given the parties’ flat in Seattle, USA, subject to the then existing mortgage. The monthly mortgage and related payments amount to HK$ 15,600, which was listed as a monthly expense of the Wife in her affirmations.

74. The Husband objected to the inclusion of this “expense” in the consideration of the maintenance issue. As far as I can understand from his argument, the Husband contends that in the Mediation Agreement made in 2002, it was the parties’ agreement that the Wife would get the Seattle Property as part of her entitlement to the family assets, but subject to the then existing mortgage. That means she was entitled to the then net equity in the property (i.e. the market value less the outstanding mortgage at that time). By asking the Court to include the Wife’s monthly mortgage payment now in considering the Husband’s liability for maintenance towards the Wife, she is effectively asking the Husband to contribute towards her capital accumulation in the Seattle Property.  

75. I agree with the submission of the Husband that it would not be right for the Wife to ask for any direct contribution from the Husband towards the mortgage payment of the Seattle Property which was a subject of the capital settlement concluded sometime ago in the Mediation Agreement. However, in considering whether there should be any variations of the maintenance payments, I am bound to consider all the circumstances of the case, which must necessarily include the parties’ respective capital positions: Section 11 (7) Matrimonial Proceedings and Property Ordinance, Cap.192. Therefore, both the mortgage payments for and rental income from the Seattle Property will be included in my considerations.   

The Wife’s Capital Assets and Liabilities

76. As to the present value of the Seattle Property, there were different views from the parties. The Wife said the net value of the Seattle Property should be about HK$ 1,460,000 (US$ 310,000(market value) – US$ 122,754.95(outstanding mortgage) = US$ 187,245.05 x 7.8 = HK$ 1,460,511.39). On the other hand, the Husband said its net worth should be in the region of about HK$ 2,550,000 (US$450,000(market value) – US$122,754.95(outstanding mortgage) = US$327,245.05 x 7.8 = HK$ 2,552,511.39). Unfortunately, there was not any formal valuation report produced by any party. What they have done was just to produce some letters from different estate agents on some of the recent transactions in the same building.

77. With this rather limited information on the prevailing market value of the Seattle Property, it is quite difficult for the Court to make a determination on the issue. However, I note from the Husband’s information that his quote of US$450,000 was in respect of a property, though in the same building, but of a different size and settings. In this regard, I am satisfied that the Wife’s evidence on the net value of the Seattle Property is more accurate. 

Loans and Trust Money from Family Members

78. There have been much debate on the Wife’s saying that she is owing some debts to her mother and siblings in Taiwan.          

79. In her affirmations, the Wife had exhibited some “loan documents”, including a letter from her brother proving a loan of HK$ 50,000, a letter from her sister proving a loan of HK$ 45,000 and a letter from her mother proving 3 loans of the respective sums of HK$ 130,000, US$ 9,000 and HK$ 26,000 (Bundle 3, p.884-886). All these documents were signed by the creditors themselves. There were no mention of the purposes of those loans, nor were there any mention of interest or repayment dates. More importantly, all these documents were signed long after the transfer of the funds. None of those lenders gave evidence.

80. During cross-examination, the Wife agreed that for those “family loans”, there was not any agreement on how to repay. She even agreed that she would not be sued if she did not repay.

81. On balance, I am not satisfied that these are genuine loans. I am more inclined to accept that these were financial assistance rendered or gifts given by the Wife’s family.

82. At trial, counsel for the Husband has also cross-examined the Wife quite extensively on her RMB accounts which showed quite substantial sums of money going through them. The Wife explained that those fund were held on behalf of her sister who wanted to buy a property in Beijing and to take advantage of the recent appreciation of the Chinese currency. The Wife was also able to prove the source of those funds when she went through the entries in her account.

83. I am satisfied of the Wife’s explanations. I accept that those were trust funds holding on behalf of the Wife’s family members.

Court’s Views on the Applications

84. It was the original contention of the Husband that there should be a downward adjustment of the Maintenance Order because there has been a decrease in his income (in particular, the decrease in his bonus) and an increase in his outgoings (because of remarriage, the arrival of his new born son and his maintenance towards his aged mother in Taiwan).

85. However, the evidence shows that his bonus, which may have been reduced from US$24,000 to US$ 9,425 in the year of 2005, has now remained at US$ 24,112.80 in February 2006. Therefore, there is no change of his overall income if we compare his present income with his then income at the time of settlement. No doubt there has been fluctuation in his income because of the discretionary nature of his bonus. But that has always been the case and the parties were well aware of that when they entered into the Mediation Agreement. It would not be right to allow the Husband to rely on this fluctuation alone to justify an adjustment of the maintenance payments to the Wife and J.     

86. As to his remarriage, I note that the parties reached a settlement as reflected in the Mediation Agreement in 2002. The Maintenance Order to formalise the parties’ agreement was made in November 2003 whilst the remarriage took place 5 months later in March 2004. In other words, at the time of the Husband’s agreement to the Maintenance Order in late 2003, the prospect of remarriage had to be within his reasonable contemplation. Therefore, I do not think it is now open to the Husband to argue that the remarriage was a significant change of circumstances that would justify a variation of the Maintenance Order.

Accommodation

87.  Another hotly debated issue is the Wife’s request for the provision of appropriate accommodation from the Husband.

88. During the subsistence of the marriage, the family resided in the Tregunter Tower, a flat of about 3,000 sq. ft. provided by the Husband’s company. Even after the separation, the Wife and J still resided there until the Husband’s relocation to Shanghai in June 2005. Thereafter, the Husband has been paying a monthly sum of HK$ 15,000 to cater for the Wife and J’s accommodation pending the resolution of this issue.  

89. It is the case of the Husband that in view of the parties’ financial resources, it is only fair for him to bear J’s housing need in Hong Kong. He proposed a monthly sum of HK$ 7,500 in this regard.

90. The Wife argues that it was a term of the settlement back in 2002 that she and J would be provided with the housing benefits that the Husband would receive from the company. Since the Husband is now residing with his present wife and child at a luxurious home in Shanghai provided by his employer, she and J have every right to demand some decent accommodation in Hong Kong to be provided by the Husband. In her 3^rd Affirmation, she asked for HK$ 25,000 a month for their accommodation (Bundle 4, p.1216).

91. It is indisputable that one of the important terms of the Maintenance Order was the provision of company accommodation for the use of the Wife and J. However, that is no longer possible due to 2 reasons:

(1)  Since the Husband has been relocated to Shanghai whilst the Wife and J decided to stay in Hong Kong, it is impracticable for the Wife and J to enjoy the new company accommodation in Shanghai, even if it is available.

(2) As the parties have divorced, if the Husband shall continue to allow his ex-spouse to live in the company flat, there would be substantial tax implication because the housing benefit would be fully taxable under US tax regulations. If that were the case, the Husband would not be in a position to shoulder this extra tax burden.

92. In deciding this issue, one must first look at the Maintenance Order which has encapsulated the parties’ agreement on the accommodation of the Wife and J. The agreement was in the form of undertakings by the Husband which were as follows:

“  …

E. AND UPON [the Husband] hereby undertaking to [the Wife] and to this Honourable Court that upon the termination of the lease for Tregunter, the former matrimonial home,…, he will, through his employer, provide alternative accommodation to be chosen by [the Wife] of not less than two bedrooms for [the Wife] and [J] using the whole of [the Husband]’s housing entitlement/allowance from his employers, and in any event of such housing entitlement/allowance from his employers coming to an end, such provision is to be the subject for further negotiation via mediation in the first instance, if practicable

F.  AND UPON [the Husband] hereby undertaking to [the Wife] and to the Honourable Court that upon receipt by him of his employer’s notice of relocation from Hong Kong, [the Husband] shall transfer all his interim accommodation benefit to [the Wife].

G.  AND UPON the Petitioner hereby undertaking to [the Wife] and to the Honourable Court that upon the cessation of the interim accommodation to be provided for by [the Husband’s] employer, [the Husband] shall pay to[the Wife] and[J] a sum of HK$ 25,000 per month pro-rata to the actual length of time it takes between the end of interim accommodation provided by [the Husband’s] employer to an agreement being reached by mediation.

………”.

93. I think it is fair to say that at the time of settlement, there was no doubt in both parties’ minds that the Wife and J’s housing needs would be taken good care of by the Husband. It was envisaged that there might be future changes because of the nature of the Husband’s employment and so there were provisions for re-negotiation in case of a change of the Husband’s employment circumstances.

94. There was indeed such change of circumstances happening in that the Husband was transferred to Shanghai and therefore losing his housing benefits in Hong Kong. But as one can see from the Maintenance Order, the spirit of the agreement was that there would be some form of alternative housing provisions for the Wife and J, the details of which were supposed to be worked out through further negotiations.

95. I do not think the parties were contemplating that there could never be any cancellation of the provision of free housing to the Wife and J. I would certainly think that there could be situations justifying such a cancellation, obvious examples of which would be like a substantial decrease in the financial well being of the Husband, or a substantial increase in the financial well being of the Wife rendering such provision for free housing no longer necessary. However, anything falling short of those will not entitle the Husband to withdraw from his undertakings to cater for the housing needs of the Wife and J.

96. As one can see from paragraph 44 above, it is my ruling that the Husband has not suffered from any decrease in his overall income by comparing his present income and his income in 2002/2003 when the parties reached their settlement. Of course, one may argue that there had been fluctuation in the Husband’s income because of a downturn in his bonus in the year of 2005. However, this bounds to happen from time to time because of the discretionary nature of the Husband’s bonus payment, which was well within the parties’ contemplation at the time of settlement. Therefore, the Husband can not satisfy this Court that this is a proper case to reduce his maintenance payment or to set aside his undertakings to provide housing to the Wife and J.

97. As I see it, the main issue here is what kind of alternative housing should be provided to both the Wife and J.

98. As an interim measure, the Husband is now providing a monthly sum of HK$ 15,000 to cater for the Wife and J’s housing needs. According to the Wife, that is not enough for her to rent any decent place to house herself and J. What she could secure was a flat in Taikooshing measuring about 700 sq. ft. There are 2 bedrooms in the flat. She occupies one of the bedrooms whilst the other bedroom was converted into a working room for both herself and J. That leaves J with no bedroom of his own and he has to sleep in the sitting room. There is only one washroom in the flat which has to be shared between the two of them and their dog as well. In short, the Wife complains that the flat is totally inadequate.

99. As for J, it was reported that he was depress because of this downgrade of accommodation, especially when he compared his living conditions with his rather affluent friends at school.

100. The Wife’s grievance in this regard is understandable especially in view of the fact that the Husband is now enjoying company accommodation in Shanghai which is at least comparable to the Tregunter in Hong Kong, if not better.

101. Counsel for the Husband submitted that the Wife has to somewhat lower her expectations on her housing arrangement. It is impossible for them to continue to be housed in accommodation comparable to the Tregunter. I entirely agree. However, I do not agree with counsel’s contention that the Wife has to provide for her own housing whilst the housing provision for J should be limited to HK$ 7,500 a month. It is my ruling that the Husband has to provide alternative housing to both the Wife and J but the quantum of which should be within the means of the Husband. 

102. After considering all the above relevant factors, I am of the view that the present provision of HK$ 15,000 for the Wife and J’s housing is a fair amount under the circumstances. I fully appreciate that this sum will not enable the Wife to secure any accommodation comparable to the Tregunter, or even anything close. But I think she has to live with that. Afterall, this is what the Husband can afford under the present circumstances.

103. I agree that by requiring J to sleep in the living room is not entirely satisfactory. But I suspect that if the Wife is willing to move to a less convenient place, she should not face big difficulty in securing a relatively larger place with HK$ 15,000 per month. Even if she decides to stay in the present accommodation, I trust that by better utilisation of the floor space, she should be able to provide a bedroom for J.

Conclusion

104. By way of conclusion, I do not see any justifications in the Husband’s application for downward adjustment of the Maintenance Order. On the contrary, I would allow an increase of HK$ 15,000 per month to provide for the housing needs of the Wife and J in Hong Kong. For the sake of clarity, I would split up this sum equally between the Wife and J, i.e. HK$ 7,500 each.

Orders

105. I will now make the following orders:

(1)    For the Husband’s summons dated 26 May 2006 for the access to J, there shall be an order in terms of paragraph 31 of this Judgment;

(2)    For the Husband’s summons dated 19 May 2005 for a downward adjustment of the Maintenance Order, it is dismissed;

(3)    For the Wife’s summons dated 7 February 2006 for an upward adjustment of the maintenance Order, it is now ordered that the Maintenance Order be varied to the following extent:

(i) The original orders for the periodical payments of the respective sums of US$ 4,653 and US$ 1,631 to the Wife and J to remain unchanged;

(ii) The Husband shall pay an additional monthly sum of HK$ 7,500 for the Wife’s accommodation payable on the 1^st day of every month, starting from 1 September 2006 until the Wife’s re-marriage or until further order; and

(iii) The Husband shall pay an additional sum of HK$ 7,500 for J’s accommodation on the 1^st day of every month starting from 1 September 2006 until J leaves secondary school in Hong Kong or his 18^th birthday, whichever shall be later, or until further order.

Costs

106. For the summons on J’s access, I see no reason why the usual order for each party to bear his costs should not apply here and so I order.

107.  For the parties’ respective summonses for variation, I see that it is rather difficult to say who has actually won as both of them failed to get what they originally asked for. However, as the Husband has failed totally in his application whilst the Wife has succeeded in getting an increase in her and J’s maintenance, albeit a bit less than she would have liked, it would be fair for the Husband to bear half of the Wife’s costs in these 2 summonses, to be taxed if not agreed with Certificate for Counsel given.

108. These orders are of course in the form of an order nisi which will be made absolute after the expiry of 14 days from the handing down of this Judgment.