NH v. SH nee C

FCMC 11845/2007

[2018] HKFC 41

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11845 OF 2007

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RULING
(Variation of Maintenance)

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Introduction

1.  This is an application by a Petitioner father for a variation of maintenance for the youngest child of the family A, who is now 18 years of age.

The issue

2.  The application identifies, what has become a more prevalent issue in our society as a whole, as young adults often take longer to get on their feet and enter the workforce. It begs the question - when should a paying parent’s obligations towards an adult child come to an end?

3.  In his Notice of Application dated the 9 June 2017 the father put it thus:

That the monthly maintenance payable to the Respondent [wife] for A, currently, HK$21,000 be immediately suspended pending clarification of A future full time education.  If A does not enter into full time education, then the maintenance payment shall be terminated forthwith.  If any future maintenance payments are due, these shall henceforth be paid directly to A.  Further, the educational costs from this day forth for A shall, be jointly shared and bourne equally by the Respondent and the Petitioner.

Background

4.  This application has its roots in highly conflicted proceedings that eventually settled by agreement in 2008. The parties have been in and out of court on a regular basis in the 10 years since that agreement was reached and I have handed down several judgements in relation to the same. In particular reference should be made to the judgments dated the 16 May 2012, 14 January 2014 and 15 May 2017. I have set out the background to the case in those various judgments and I do not intend to repeat the same here. Reference can be made to them as appropriate.  

5.  In the context of this application however it should be noted that the division of capital was on a clean break basis, with the wife receiving most if not all of the assets from the marriage. The husband made further provision for the boys, with suitable acknowledgment being made for the fact that the husband was then on an ex-patriate package which was likely to come to an end at some point. The agreement was made on the assumption that the wife and the boys would relocate to the United Kingdom in due course and the wife would then live in the property that they had owned there and which had become hers as part of the settlement agreement. There was no time frame set around any possible relocation.     

6.  For a variety of reasons that I will not go into here, although the father’s ex-patriate package did come to an end, the mother did not relocate and she has continued to live in Hong Kong up until now. The elder son, L is currently at university in the UK and he is due to graduate this year. The father has paid his university and accommodation fees direct plus a small living allowance. Although this has been a matter of some dispute with the mother asserting that she has had to supplement L’s living costs, nevertheless L has done well and it is hoped that he will be off the pay roll soon.

7.  Unfortunately A has had a number of difficulties which has held him back. He was born on the XX May 1999, so he is currently 18 years of age. Initially he had depressive issues and at one point he refused to go to school. The mother says that he still struggles with depression and that he is currently “skeletal”. He left school with no qualifications and it has since been discovered that he is also dyslexic. Intellectually however he is said to be capable and there is no reason longer term why, with proper support, he should not also go on to some form of higher education.

8.  Consequently, with the mother’s emotional support he has taken 4 IGCSE’s last year which he passed. He had some private tuition in order to assist him with the necessary preparation which the father paid for. He achieved passes in Math, Double Science and Geography. However, he was unable to progress to a BTEC, or a similar program without a pass in English. Consequently, this year he sought to rectify that and I am told that after the hearing he received his IGCSE result in English and that he achieved a B grade.

9.  Consequently A is not studying at present, nor is he working full time. He does some occasional work in a local restaurant and is paid accordingly. This provides him with some pocket money but it is certainly not enough to support him fully or to contribute in any way to the household expenses.

10.  A’s plan now is to leave Hong Kong with his mother probably in July. He hopes to be able to do a foundation course perhaps at one of the universities or possibly at a College of Further Education as a precursor to taking a degree or diploma course in Media and Communications. It is likely that he will live at home next year before going on to college or university the year after.         

11.  Under the terms of the last court order dated the 15 May 2017 the father pays periodical payments for A in the sum of HK$21,000 per month. The order states as follows:

1. Order 2 contained in the court order dated the 16^th May 2012 shall be varied to the extent that the Petitioner do pay periodical payments for the younger child of the family, in the sum of HK$21,000 per month with effect from the 1^st June 2017 until A ceases full time education or further order.

2. There shall be no order as to costs.

12.  The mother is currently working in a local school and she has a short term contract which comes to an end in the first week of July. She says that she cannot afford to pay for everything without the father’s maintenance contribution. She also remains very concerned about A’s emotional and physical state. The intention is to relocate back to the UK in the summer but she acknowledges that she is likely to struggle financially once she is back in the UK. A wishes to leave then, at the same time as the rest of his friendship group.

The issue

13.  There is only one issue namely should the father be obliged to continue to maintain A in these circumstances, given the terms of the order dated the 15 May 2017?

The law

14.  This application is really an application for a variation and consequently it is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap. 192, which provides that:

“(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates ……”

15.  I have set out the law on variation applications in previous judgments, however for the avoidance of doubt I repeat that it is accepted that in considering a change of circumstances, I may look at the case de novo. In other words, the court is not necessarily fettered by the existence of a previous order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (See Ch 3.131 Jackson’s Matrimonial Finance and Taxation, 7th edition). It is also true that there would normally be a reason for the application to vary or what some might call a “trigger”. In this instance the so called is the fact that A is not currently working or in full time education.

16.  However the court also has a very wide power, including a power to terminate payments and to backdate the variation ordered. The overall objective is to achieve a fair outcome (see M v M, FCMC 4070 of 1990, dated 12 May 2006, unreported).

The parties’ proposals

The father’s proposals

17.  The father made the following proposal at the hearing and said that he would be prepared to enter into an undertaking as follows:

Undertaking Regarding A

In the event that A secures a place at a college or university, I do undertake as follows:

1) That I will bear the reasonable costs for A college/university course fees until he completes his first degree.

2) In the event that A is required to live away from home for the attendance of college/university then I will pay his reasonable cost of his student accommodation costs to a maximum of £300 per calendar month from the commencement of his college/university course until such time as the completion of item 1 above.

3) In the event that A attends college/university, I will pay him a monthly allowance, direct to his account in the sum of £500 per calendar month from the commencement of his college/university studies until the completion of item 1 above.

The mother’s proposals

18.  The mother for her part asks that the current maintenance order remain in place given that A does intend to go back to full time study. She says that the father should continue to pay her when A is initially living at home, but she will accept the father’s proposed undertaking once A is at college or university and living away from home. She does not accept that the maintenance payments should be suspended or terminated forthwith. 

Discussion

19.  It seems to me that issues of this nature are very fact specific. In this case it is clear that the intention is that A should continue with his education, which has been interrupted for reasons, which in part lay outside of his control. Consequently, although he is not currently in full time education or working full time, nevertheless he intends to return to full time study in September. In such circumstances it seems to me that it would not be either fair or reasonable to simply terminate the maintenance payments for him at this time. The father says that he has fulfilled all of his obligations and that his commitment to pay maintenance for A “until he reaches the age of 18 years or ceases full time education” has been satisfied. This is especially given the undertaking from him (see paragraph 17 above) to provide for A once he starts at college or university. In addition, the father said that he would provide the same support for A if he lives at home and does a one-year foundation course and that in such circumstances A could give the mother his living allowance of some GBP300 per month. The mother disagrees and argues that as A is still in full time education that the maintenance order should remain in place until he goes to university or college. At that stage she said that she would be willing to accept the husband’s undertaking subject to a couple of caveats.

20.  On the premise that A will live at home for at least the next academic year and attend a college in the United Kingdom, it seems to me that although his education has been interrupted, it has not come to an end. Consequently, the order dated the 15 May 2017 shall remain in place until A starts either a degree or similar course at a tertiary institution that requires him to live away from home. At that point in time the payment of HK$21,000 per month shall come to an end and the father’s undertaking as set out in paragraph 17 above shall come into effect.    

Miscellaneous point

21.  For the avoidance of doubt it is also ordered that undertaking O in the original Court order dated the 5 June 2008, which states that:

AND UPON the Petitioner and the Respondent hereby acknowledging and agreeing to each other that the Petitioner will pay all reasonable costs relating to school trips, regular extra-curricular activities, school equipment and school uniforms of the children of the family.

shall also be discharged.

Costs    

22.  Although both parties are representing themselves, the mother asks for her costs of and occasioned by this application. However, given that there are really no legal costs to speak of, I will make an order nisi to be made absolute in 14 days’ time that there be no order as to costs. 

FCMC 11845 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11845 OF 2007

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

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Introduction

1.  This is the third time that this case has come before the court since the original court order was made by consent on the 5 June 2008. Since then there have been two variation applications; judgments were delivered on the 16 May 2012 and the 14 January 2014 respectively. The findings made in those judgments do continue to stand. In particular, it should be noted that the original order was on a clean break basis. Consequently, it is not possible for the wife to make any application for maintenance for herself. Secondly it was always understood that the husband’s ex patriate contract might come to an end at some point and that at that stage his ex-patriate benefits would also cease. This was expressly acknowledged in the original order.   

2.  In the wife’s summons dated the 18 October 2016 she sought the following relief:

RESPONDENT REQUEST FOR AMENDING THE MAINTENANCE PROVIDED FOR L & A BACKDATED TO 3^RD AUGUST 2015 TILL END OF FIRST UNIVERSITY DEGREE AND/OR EDUCATION.  FROM MAINTENANCE OF HK$17,000 ONLY, ONE CHILD GIVEN BY MR NH, PETITIONER TO RESPONDENT/MTH TO HK$25,000 PER MONTH PER CHILD.  REASON: L STRUCKLING TO MANAGE AT X UNIVERSITY UK ON £5 PER DAY EVERYTHING; S PAYING HK$13,500 RENTAL, UTILITY BILLS PLUS COURT ORDER ON HOURLY PAID TEACHING, PLEASE KINDILY TAKE ACCOUNT ZERO INCOME, UNEMPLOYED RESPONDENT, JUNE 2016 TO MID SEPEMBER 2016 (3 MONTHS) HOURLY PAY, LOW INCOME, SALARY FOR SEPT TO OCT 2016 HK$8,000 ONLY TO PAY RENTAL, SINGLE, NO PARTNER, HK$20,000, DEBT DUE TO FURNITURE & FURNISHINGS TO PROVIDE 700 sq ft APPARTMENT IN SAI KUNG FOR TWO SONS (ZERO BENEFITS).

3.  In addition she filed an emergency summons dated the 8 May 2017 in which she stated as follows:

Urgent Application due Breach of Order by Petitioner, Order dated 5^th June 2008, for failure to pay child maintenance as per the Order by the 2^nd May 2017.

4.  I made an order in terms of the wife’s emergency application on the 11 May 2017 – but for the avoidance of doubt I repeat that the order for maintenance for the younger son A shall continue until he completes his full time education, which is normally regarded to be up until he has completed his first degree or its equivalent. The husband, who had misunderstood the meaning of the original order, confirmed that he would pay the outstanding balance of HK$7,581 forthwith. The maintenance payable for A is currently set, after CPI variance, at HK$18,081 per month.

5.  In addition the husband confirmed that he is continuing to support the elder son, L, who will shortly finish the second year of a three-year degree program at X University in the United Kingdom. He has one year to go. The husband pays the university fees direct in the sum of GBP9,000 per annum. In addition, he contributes GBP500 per month towards L’s accommodation costs and his living expenses. He also provides him with other ad hoc expenses (e.g. monies to replace a stolen bicycle etc.) The wife says that this is not enough and she complains that she is also subsidizing L’s living expenses. L stays with his maternal grandparents when on holiday from university. It is of note that L does not appear to have worked in any capacity to supplement his income either during the holidays or otherwise and that he also does not appear to have taken out a student loan of any kind even though he has home status. It seems to me that both options would be available to him.

6.  Unfortunately the younger son has suffered significant physical and mental health issues which led to him being unable to complete his IGCSE program and effectively dropping out of school. He will turn 18 later this month. As indicated above the husband had originally misunderstood the situation and he had thought that his obligation to provide for A came to an end when he reached the age of 18 years. He now understands that that is not the case.

7.  A is currently studying privately for four IGCSE’s – Double Science, Foundation Math and English Language. He passed his Geography IGCSE last year. He will take these exams in May and June of this year and the husband is currently paying for private tuition up to a maximum of HK$10,000 per month in this respect. Longer term he wishes to attend Y College or Z College and to take a two year IB – or probably B Tech program. He is said to be interested in taking B Tech in Business.

8.  When the parties were before me on the last occasion I made an order which anticipated that the wife and children would most probably have no option but to relocate to the United Kingdom in the summer of 2015. At paragraph 30 and 31 I said as follows:

Should any other orders be made?

30. The main difficulty relates to the rental on the wife’s accommodation. The first point to make is that this situation was reasonably foreseeable. It is clear from the wording of the undertakings that it was always understood that the husband’s agreement to pay for certain items was conditional on his continued employment in China by his present employer. Payment of the rental was likewise conditional on the husband’s employer agreeing to reimburse that expense. That is no longer the case. Further the review clause states clearly that any review will be in accordance with the husband’s current or future employment.  The husband’s rental allowance is no longer available to the wife and the boys and cannot be utilized by them. What then is to be done? The husband cannot afford to pay for the rental from income. Although I have found that the wife has some financial resources at her disposal I also accept that these are quite limited. It will not be possible for the wife to pay for the whole of the rental herself. One alternative would be for the wife and boys to return to the United Kingdom to live. The parties are though agreed that if at all possible it would be best for the boys to remain in Asia – at least for the next 18 months or so until they have completed the IB/IGCSE courses. With that in mind it seems to me that the only other alternative is for the parties to utilize the one remaining joint resource at their disposal – namely the S P Policy No Q. Unfortunately neither party was able to provide me with an up to date statement. The husband however believes that there is in the region of GBP60,000 saved in that policy – or HK$750,000. The wife however is of the view that the sum is very much lower. The husband’s original estimate in his Form E was HK$500,000.

31. I will therefore direct that the policy be liquidated by the parties and the net amount be paid into court forthwith. The intention will be to use these funds to provide for the boys housing needs until the summer of 2015. There are of course difficulties with this course of action, the main one being that there will not then be funds available to pay for the boy’s tertiary education. The hope is that the sum of HK$25,000 - HK$30,000 per month might be provided from this source to cover the costs of renting alternative accommodation depending on the amount of money available. If the wife wishes to pay more then she will need to top this up from her own resources.      

9.  This is then what happened. The policy was liquidated and the monies were made available to the wife so that she could then rent a property in which she and the children could live. I am not sure why she did not then relocate back to the United Kingdom, given the circumstances. She says that she has relied on her own resources but is now no longer able to work apart from in a minimal capacity. She also has some health issues. She wishes to remain in Hong Kong for at least another two years so that A may complete his schooling here.  

The law

10.  The law remains the same and is as set out in the previous two judgments. But for the avoidance of doubt I repeat that the wife’s application is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap 192, which provides that:

“(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates ……”

11.  As stated previously I may look at the case de novo. In other words, I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. In this instance that means looking at the husband’s present contract of employment and his ability to provide maintenance for the two boys based on that and his other financial resources. Likewise, I need to also take into account the wife’s current circumstances including her own financial resources.

12.  It almost goes without saying that the parties also have a duty to make full and frank disclosure of their means and other financial resources and a failure in that regard can lead the court to draw an adverse inference. Each continues to accuse the other of material nondisclosure.   

Discussion

Should the maintenance payments for the two children of the family be varied upwards and if so by how much?

L

13.  The husband says that he has negotiated with L directly with respect to the financial support that he provides. Although I accept that GBP500 per month is probably a bit on the low side for accommodation and living costs, I also accept that L is very lucky not to have to take out a loan or to work part time. If the wife chooses to supplement his income, then that is really a matter for her. In such circumstances I do not intend to vary the maintenance payments for L is any way.

A

14.  The situation with A is of course a little more complex. The wife sets out her general expenses and those for A in her updated Form E as follows:

4.1   General

Item	Amount
Rent (INCLU CARPARK)	13,200
Mortgage instalments	/
Utilities (electricity, gas, rates, telephone & water)	3,250
Management fees	/
Food	8,000
Household expenses	2,000
Car expenses	1,500
Insurance premia	/
Domestic helper(s)	/
Other (specify) FAMILY PETS (DOG, CAT)	750
Total monthly household expenses	HK$28,700

Attach copies of the latest rental receipt.  [REFER EXHIBIT 5] [ REFER EXHIBIT 8]

4.3   Children [REFER EXHIBIT 9]

Item	Amount
School fees	/
Extra tuition fees	/
School books and stationery	100
Transport to school (including school bus)	500
Medical / Dental	200
Extra Curricular Activities	1,000
Entertainment / presents	1,000*
Holidays	1,000
Clothing / Shoes	1,000
Insurance premia	/
Lunches and pocket money A	2,500
Other Transport TAXI	300
Child-minding fees	/
Uniform	/
Others (specify): BIRTHDAYS, CHRISTMAS L & A	1,000*
Total monthly expenses for children	HK$8,600

15.  Given the circumstances I accept that the husband should be wholly responsible for A’s share of the general expenses – i.e. half of HK$28,700 or HK$14,350 per month. I am also of the view that these expenses appear reasonable.

16.  In so far as A’s actual expenses are concerned I accept that entertainment/presents and the reference to birthdays and Christmas at the end of the schedule should be taken out of the equation. I have marked those items with an *. It is of reach parent to provide for these as they think appropriate. This leaves a balance of HK$6,600. I accept that as things stand at present the husband should be responsible for these items. In total then this amounts to HK$20,950 per month (HK$14,350 + HK$6,600 = HK$20,950 or say rounded up to HK$21,000 per month), an increase of approximately HK$3,000 per month. In addition, the husband should continue to be responsible for the tuition costs and for any school fees in the event that A is able to remain in Hong Kong. It seems to me that the husband should be able to afford this sum from his own resources. The wife has limited resources of her own. She receives a rental from a property in the United Kingdom of HK$1,000 per month and there remains a question mark over her financial relationship with her parents. Putting all of this to one side though I am not convinced that she will be able to remain living in Hong Kong unless she can secure some form of remunerative employment for herself going forward. The husband will be obliged to pay this sum for A whilst he is living and studying full time in Hong Kong, probably for the next two years in the event that he is able to continue to reside in the Territory and attend school here. The financial situation will of course need to be reviewed in the event that he returns to the United Kingdom for study purposes.      

17.  There shall be no order as to costs.

Order

18.  Order 2 contained in the court order dated the 16 May 2012 shall be varied to the extent that the Petitioner do pay periodical payments for the younger child of the family, A in the sum of HK$21,000 per month with effect from the 1 June 2017 until A ceases full time education or further order. There shall be no order as to costs.