CCMJ v. SSM formerly known as SKL

FCMP 67 / 2010

[2025] HKFC 177

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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D E C I S I O N
(Leave to Appeal)

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Foreword

1.  This is the application for leave to appeal lodged by the Applicant father in respect of the Judgment granted by me on 21 May 2025 (“21/5/2025 Judgment”).  The Applicant would be referred as “Father” in this Decision.  The Respondent would be referred as “Mother”. Their daughter, who will be approaching her 17^th birthday next month, would be referred as “N”.

2.  Suffice for me to say is that amongst the many written Judgment(s)/Decision(s)  handed down by me in the Family Court for the past 15 years (since N was only 2 years old), there were 3 Judgment(s)/Decision(s)  handed down on 11/1/2013, 12/8/2015 and 18/5/2017 dismissing all the Father’s leave to appeal applications on various matters. 

3.  With such exposure to handling leave to appeal applications in the past, I can safely assume the Father should be familiar with the statutory provisions and legal principles governing leave to appeal applications.  Hence, I will not repeat and recite those statutory provisions and legal principles again in this Decision, save to only refer to some procedural guideposts under the “New Arrangement for Application for Leave to Appeal in the Family Court” (“New Arrangement”)  issued by the then Acting Principal Family Court Judge C.K. Chan on 13/8/2018.  The “New Arrangement” took immediate effect upon its issuance and hence was in place for about 7 years by now.

4.  The “New Arrangement” was applicable to all applications for leave to appeal in the Family Court with no distinction between legally represented litigants and litigants acting in person.

Background

5.  The “21/5/2025 Judgment” was granted after a 3-day trial on the Father’s application for variation of maintenance order/discharge of undertakings given by him and remission of unpaid arrears of N’s maintenance and the Mother’s carer’s allowance, pertaining to an Order granted by me back on 5/6/2015 (some 10 years ago).  Within the 3-day trial, there was also the Mother’s application by summons for capitalisation of periodical payments (both in terms of N’s maintenance and her carer’s allowance)  which were past due and continued unpaid.

6.  Worth to mention is that the 5/6/2015 Order was granted also after a bitterly fought 7-day full blown trial before me.  The Father had once sought leave to appeal the 5/6/2015 Order from me and then at the Court of Appeal but were all unsuccessful.

7.  In a gist, under the 21/5/2025 Judgment, save and except the Father only succeeded in his variation of the Mother’s carer allowance from HK$10,000 a month down to HK$2,000 a month (instead of nil which he had sought), all his other applications were dismissed.  The Mother was successful in her application for capitalisation of those long overdue and unpaid periodical payments under the 5/6/2015 Order into lump sum(s), anticipated payment(s), recovery of past dues and costs.

8.  The total sum thus ordered to be paid by the Father, not including any university course fees of N in future years, came up to HK$6,777,008 (that is HK$2,489,108[1] + HK$4,287,900[2]).

Leave to Appeal out of time

9.  On 18/6/2025, I granted time extension for the Father to lodge the present application for leave to appeal until 16/7/2025 with standard directions on pages and format resembling those set out in paragraph 4(3)  of the “New Arrangement”.

10.  On 16/7/2025, the Father issued the Summons for the present appeal together with a 5-page Written Statement/Skeleton Submissions. Surprisingly, there was a 59-page document named “Draft Grounds of Appeal” (and was attached with 4 exhibits)  thus making a total of a 80-page “Draft Grounds of Appeal”.  This is unorthodox for this type of cases. 

Father’s Written Statement/Skelton Submissions

11.  As set out in paragraph 4(3)  of the “New Arrangement”, the Written Statement/Skeleton Submissions in support should state why leave to appeal should be granted.  Further, it should not be more than 5 pages on A4 paper (single side only)  legibly printed in no less than 14 font size and 1.5 line spacing unless otherwise directed by the Court.  The Father had complied with such specified format in his Written Statement/Skeleton Submissions.

12.  The Father set out 6 reasons/submissions that leave to appeal should be granted.  They are grouped as follows :-

-  Procedural errors compromising fairness (“Submission I”);

-  Mis-judgment of financial needs and means (“Submission II”);

-  Serious criminal offence of evidence manipulation and faking – evidence is not properly considered (“Submission III”);

-  Unjust financial burden due to concealed changes and need for fresh consideration of evidence (“Submission IV”);

-  Inappropriate carer allowance (“Submission V”);

-  Misapplication of judicial discretion and transparency in judicial decision-making (“Submission VI”).

Each of the Father’s Submissions

13.  On Submission I, the Father said his financial resources was immobilised since February 2022 when the interim injunction was granted against him by the Family Court.  The absence of financial provisions for his sustainability, including meeting his alleged alarming medical expenses and debt liabilities, was said by the Father to be flagrant denial of due process of remedies, profound absence of equity and deprivation of his right to engage legal counsel.  The Father said he was compelled to handle the complexities of legal process.

14.  On Submission II, the Father said the Court had mis-judged his pressing financial exigencies which is in a dire situation whilst taking the Mother’s speculations without transparency and had culminated in an inequitable financial decree.  Reference was made to his financial disclosure under Form E from February 2014 to May 2023 which suggested his financial capability was in a negative figure.  This was, however, not considered by this Court.

15.  On Submission III, the Father referred to those monthly food and household expenses asserted by the Mother were manipulated and fabricated.  This had misled the Court and he was unjustly disadvantaged.  There was substantial oversight of the Court over those “manipulated” evidence by the Mother which had undermined the integrity of the judicial process.  The Mother’s production of those manipulated and fabricated evidence should come with legal ramifications.

16.  On Submission IV, the Father claimed that the Court had languidly revisited past events but not considering matters afresh.  The “21/5/2025 Judgment” was said to have referred to and relied on historic perceptions which had compelled him to pay unnecessary rent when the Mother and the child N had already moved away from the rented unit to live with the maternal parents for a year or so.

17.  On Submission V, the Father considered carer’s allowance was no longer required for the child N who is now 17 years of age.

18.  On Submission VI, the Father said there was insufficient transparency, claiming the absence of sufficient rationale or lack of legal foundation in the 21/5/2025 Judgment, for making the robust judicial decision against him.  

Father’s “Draft Grounds of Appeal”

19.  There are altogether 6 grounds (comprising 168 paragraphs) within the 59-page “Draft Grounds of Appeal”.  Going through the draft carefully and in their context, the so-called “Draft Grounds of Appeal” are nothing more than extended elaboration of matters already raised under the 5-page Written Statement/Skeleton Submissions.  The only difference which I can see is that at various parts of the “Draft Grounds of Appeal”, some case names and, for reasons unknown, various statutes were cited such as :-

-  Matrimonial Proceedings and Property Ordinance, Cap.192[3] (“MPPO”)[4];

-  Bill of Rights Ordinance, Cap.383[5] (“BRO”)[6];

-  Legal Aid Ordinance, Cap.91[7] (“LAO”)[8].

20.  Mistakenly though, hoping that this was not intentional, the Father at paragraphs 37 and 54 of the “Draft Grounds of Appeal” (under Ground 2), put down “Children Ordinance (Cap.461)” twice.  This is utterly wrong.  Within the Laws of Hong Kong, Cap.461 is “Criminal Jurisdiction Ordinance” and further that there is no “Children Ordinance” within the many chapters of the legislation.  Curiously, the Father then quoted a so-called section 3 of the “Children Ordinance” in a way as if such Ordinance does exist.  This is unsatisfactory if not misleading conduct.

21.  Although the Father at various places cited cases/authorities, he had not provided copies of those cases/authorities.  I believe the Mother’s legal representatives was also not provided with any copy of the cited cases/authorities by the Father.

My Views on the preparation of documents

22.  Apparently this is an astute way (my emphasis) of the Father to get around the limitation on number of pages specified under paragraph 4(3)  of the “New Arrangement”[9] on Written Statement/Skeleton Submission which, unfortunately, had not limited the number of pages for the draft grounds of appeal which need to be filed. 

23.  Making lengthy skeleton submissions discreetly under the pretext of “Draft Grounds of Appeal” should not be allowed and must be deplored.  Such unbefitting, if not underhand, conduct of preparation of appeal applications undermines the aim and objectives of the “New Arrangement” to regulate leave to appeal process.  Given that we are now at the era of active case management under the spirit of the Civil Justice Reform (“CJR”), procedural economy and fairness, costs effectiveness and case expediency should always be kept at the forefront in all civil litigation process, Family Court proceedings alike, including appeals. 

24.  Further, the Father’s unscrupulously extending his skeleton submissions by discreetly embodied them under the pretext of “Draft Grounds of Appeal” came up with paragraphs by paragraphs in “narrative” form of submissions (adding up to 168 paragraphs in total).  This is outrageous and must be deplored. 

25.  This had led to Mother’s Counsel Miss Alison Choy, in her Written Submissions, submitted on the unsuitability and inappropriateness for the Father to use the platform of the appeal process in the way which he did.  I fully endorse Counsel Miss Choy’s submissions.

26.  That said, I decided that it would only be fair for me to consider the Father’s leave to appeal application by reviewing the ground(s)  that could be readily discernible from reading the headings, rather than going into those 168 paragraphs of elaborated skeleton submissions, within the “Draft Grounds of Appeal”.  I would, however, cross referenced to the matters stated in the 5-page Written Statement/Skeleton Submissions which

the Father had filed in compliance with the “New Arrangement”.  I noticed that the headings appeared in the “Draft Grounds of Appeal” largely resembled, if not replicating, those headings in his Written Statement/Skeleton Submissions.

27.  The Father should not be unjustifiably benefited from his astute way of using the platform of appeal to regurgitate the evidence and factual aspects of the case hoping that the appellate judge may view the matter differently.

Mother’s Written Statement/Skeleton Submissions

28.  Miss Alison Choy, Counsel assigned by the Director of Legal Aid for the Mother, in her Written Submissions opposed the Father’s leave to appeal application as being unmeritorious.  Rightly put, there was the submission that the appeal process should not be designed to give a platform for a litigant to regurgitate his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge (see China Gold Finance Limited v CIL Holdings Limited & Ors[10]).

29.  In addition, there was the submission that the Father had improperly exhibited in his “Draft Grounds of Appeal” new evidence after trial.  The Father had not been able to bring himself within the requisites set out in the case of Ladd v Marshall [1954] 1 LR 1489 at 1491 for adducing new evidence after trial.  The burden rests squarely with the Father who had not addressed anywhere in his submissions as to admissibility of those intended new evidence for them to be included for the Court’s consideration.

The legal position

30.  It is trite law that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

31.  The test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he/she has an arguable case with reasonable chances of success on appeal.  A reasonable chance of success means an appeal with prospects that are more than “fanciful” but which do not need to be probable (see KNM v HTF, HCMP No.288/2011 per Fok JA at paragraphs 8 and 9 of the Judgment).

The Court’s Views

Ground 1

32.  The underlying facts to support this ground aimed at the injunction granted (and continued)  against the Father in the Family Court.  The Father said he had been immobilised on his sole financial resources which was the net proceeds of sale of his One xxxx Property by the mortgage bank in 2022.  He was not given any financial provisions to cover his living costs, medical costs, paying legal fees to defend court cases and paying his debts. 

33.  In my decision, it was open to the Father to appeal the granting of the said injunction and the continuation of it; both of which the Father had attempted but failed.  There was no room for the Father to refer to and/or rely upon his inability to “unfreeze” his financial resources through his attempted but failed appeal process, and now to say that there was “procedural errors compromising fairness” under this ground.

34.  For this ground, I decided that there was no reasonable prospect of success on appeal.

35.  Ground 1 would be dismissed.

Ground 2

36.  The contention made under this ground was that my finding of facts were made without fully assessing his dire financial situation whilst accepting the Mother’s evidence in full without stating my reasons for so doing in the 21/5/2025 Judgment.

37.  The Father referred to the MPPO, LAO and BRO and submitted that those statutes supported his contention that the Court should not dictate the Mother’s wishes and should not obstruct his legitimate and lawful access to his funds which are necessary for him to obtain legal representation.

38.  At paragraph 49 of the 21/5/2025 Judgment, I explicitly said:-

“…… children expenses are easy to spend but difficult to quantify.  From time to time the Court has to scrutinize ledgers of children’s expenses pragmatically given the parents’ conflicting views or lack of trust with each other.  In some other cases, there may be a need to adjudicate children’s expenses with laxity to ensure the best interests of the children are not affected by their parents’ conflicting positions and disputes.  The prevailing and dominant approach of the courts is to provide the children with quality life within parameters of reasonableness subject to the means and resources of the paying parent.”

39.  I stand by what I had said above.  At paragraphs 50 to 59 of the 21/5/2025 Judgment, I have given my reasons as to how the living costs and expenses (including Melaleuca supplement which the Father placed emphasis upon in his contention)  of the child N was arrived at. 

40.  At paragraphs 60 to 63, I also considered the reason for the need, and then proceeded to assess the appropriate amount of carer’s allowance for the Mother.

41.  As to the Father’s alleged dire financial situation not having been assessed, this was incorrect submission made out of context.

42.  At paragraphs 74 of the 21/5/2025 Judgment, I have said the Father’s ability to pay would have to be considered.

43.  At the very beginning at paragraph 3 of the 21/5/2025 Judgment, I have already made specific reference to the views of Hon Cheung JA in the case of CACV No.84 of 2021[11] where a “Hadkinson Order” was sought by the Mother and granted against the Father in one of his appeals from decisions made in the Court of First Instance.  The Father then sought leave to appeal to the Court of Final Appeal which was also dismissed[12].

44.  Under the heading “Impediment of justice” at paragraph 43 of the Court of Appeal Judgment (which I have recited in paragraph 3 of my 21/5/2025 Judgment), the Father’s breaches of court orders leading to impediment of justice was clearly noted by the Court of Appeal.  There was specific reference to the two orders of 5/6/2015 and 10/2/2023 both of which were the subject of the Father’s variation application before me.   

45.  Citing and repeating the words of Hon Cheung JA as follows :-

“In our view, the Father’s breach to pay under the two orders impedes the course of justice. The history of this case shows the difficulty in enforcing the two orders which the Father has chosen to ignore…..…..The Father has no defence to the payment of these sums(my emphasis)  ………the Father’s non-payment has a very considerable and detrimental impact on N - her educational and her general well-being and its obstructs the exercise of the Court’s quasi-parental powers over N who is a ward of the Court.  The Father has amoral and legal obligation to discharge his obligations.  Further, the costs incurred in these proceedings are totally out of proportion to the money at stake.”

46.  The “two orders” which Hon Cheung JA referred to precisely are the 2 orders of which the Father sought to vary before me and both of which he had lost (except only the amount of carer’s allowance)  under the 21/5/2025 Judgment.  Given the abovementioned views and findings of Cheung JA had not been disturbed or overturned on any further appeal at the time of trial before me, I am entitled to take note of those views and findings as one of the many circumstances of the case that need to be considered; including but not limited to the Father’s conduct and ability to pay per se; in particular, that the legal costs spent by the Father in these proceedings far exceeded the money at stake and the amount of which was said to be out of proportion noted by the Court of Appeal.

47.  With such undisturbed views and findings of the Court of Appeal over the Father’s conduct fully noted, I am entitled to consider the Father’s ability to pay with reference to whatever means available to him for paying sums adjudged rather than to do a “post-mortem” of his so-called dire financial situation. 

48.  Furthermore, it serves no legitimate purpose for me to do the “post-mortem” exercise when, even on the Father’s own evidence, it was a result of his own choice to spend millions of dollars on legal costs and choose not to fulfill his moral and legal obligations (citing the words of Cheung JA, supra)[13] to make payments under the said “two orders” which he had “no defence” (in the words of Cheung JA)[14].

49.  Thus, at paragraphs 75 to 77 of the 21/5/2025 Judgment, I decided to consider the Father’s means and ability to pay sums adjudged by

me in the process of capitalisation of long due and unpaid arrears of periodical payments (my emphasis)  with reference to the net proceeds of sale of around HK$8 million only, which was being kept in the actively on-going interpleader proceedings in the Court of First Instance.

50.  For this ground, I decided that there was no reasonable prospect of success on appeal.

51.  Ground 2 would be dismissed.

Ground 3

52.  This ground of appeal was raised under the heading of :-

“Grave Criminal Offense of Evidence Tampering and Fabrication, deceitful practices for food or dietary supplement expenses for my daughter, domestic expenditures, and monthly expenses for my daughter. The court has a serious misunderstanding of the evidence.”

53.  There was the contention that the Mother had manipulated and fabricated evidence which this Court had accepted to his disadvantages.

54.  I stand by my decision on Ground 2 to also apply to this Ground 3 insofar as the Father’s asserted dire financial means was concerned.  As to the Father’s assertion that his financial needs had not been properly or prudently considered, there was the primary hurdle for him to persuade this Court why his financial needs could not be met by those substantial sum of monies which he managed to obtain but chosen to spend on legal fees to contest a “no defence” case and then he could claim that his financial needs could not be met.  Such contention, in my view, even does not get off the ground.

55.  As for the assertion that the Mother had manipulated and fabricated evidence to mislead this Court, this is no more than his own perception of the evidence and misunderstanding as to the probable value of evidence in civil proceedings, including matrimonial litigation. 

56.  For this ground, I decided that there was no reasonable prospect of success on appeal.

57.  Ground 3 would be dismissed.

Ground 4

58.  The Father was of the view that this Court languidly revisited to past events but not considering matters afresh.  Such contention arose from this Court ordering him to pay rental of the unit which the Mother and the child N once lived in but no longer living at the time of trial. 

59.  Same as before, the Father was trying astutely and shamelessly to hide away from his misdeeds whilst attempting to put forward his contention out of context to ground his appeal.

60.  From paragraphs 30 to 33 of the 21/5/2025 Judgment, I have set out the underlying facts leading up to the urgent need of an additional rental expense of HK$22,000 to build into the original 5/6/2015 Order.  In a gist, this was due to the Father’s sudden non-payment of the mortgage instalments of his property ordered by me to be settled on trust for the use and benefit of N.  The Father’s non-payment, apart from breaching the 5/6/2015 Order, attracted foreclosure proceedings by the mortgagee bank. The Mother and the child N were thus forced to move out and to incur unexpected rental expense of HK$22,000 a month for their immediate housing needs which had resulted in the 23/2/2023 Order.

61.  Faced with the continuous breach of the “two orders” with no payments received for years, the Mother’s case was that she and the child N could only move to live with her parents for rent saving reasons.

62.  The Father’s unscrupulous submission that this Court did not consider matters afresh is misconceived and completely groundless. On the facts of this case, if the Court was to accept Father’s contention of considering the “forced-to-be” scenario of the Mother’s and the child N’s free accommodation in the maternal grandparent place, without noting the cause and underlying facts which gave rise to such episode, this would be tantamount to recognising and accepting the Father’s continuous breach of the “two orders” without consequences.  This is repugnant to any sense of justice and fairness. 

63.  For this ground, I decided that there was no reasonable prospect of success on appeal.

64.  Ground 4 would be dismissed.

Ground 5

65.  At paragraphs 60 to 63 of the 21/5/2025 Judgment, I have set out the reasons for the need of this item but assessed it from HK$10,000 a month down to HK$2,000 a month to run retrospectively from the month of November 2023 (when N was aged 15)  to achieve fairness.

66.  The Father was unable to show any error of law on my decision on this item.

67.  For this ground, I decided that there was no reasonable prospect of success on appeal.

68.  Ground 5 would be dismissed.

Ground 6

69.  It is trite law that it is not the function of a judgment to address each and every point in arguments or evidence without regard to the significance of the same in the overall exercise in assessment of facts and evidence (as per Lam VP (as he then was)  in the case of LWH v NKWS & Ors [2018] HKCA 260).

70.  There are ample and sufficient reasons, so far as could be found on the evidence received at trial and overall consideration of all the circumstances, for me to arrive at the 21/5/2025 Judgment to achieve justice and fairness in the case, with the child N’s best interests preserved though yet to be received in the near future.  This is grossly unsatisfactory.

71.  For this ground, I decided that there was no reasonable prospect of success on appeal.

72.  Ground 6 would be dismissed.

Summary of Father’s 6 grounds of appeal

73.  The Father tried to do a summary of his 6 grounds of appeal by the following paragraphs in the “Draft Grounds of Appeal” which I set out as follows :-

“53. It appears my evidence has not been thoroughly scrutinized, and care has been taken to prudently assess it, accompanied by a lack of elucidation.  Furthermore, I am unable to perceive any justification for the approximately HK$6.80 million adjudicated given my genuine and current financial situation disclosure, which cannot accommodate such amounts.

54. In summary, the Matrimonial Proceedings and Property Ordinance (Cap.192), particularly Sections 7 and 10, Legal Aid Ordinance (Cap.91), Children Ordinance (Cap.461)  along with the Bill of Rights Ordinance (Cap.383)  Article 10, which establishes the legal framework for considering the father’s financial means in matrimonial maintenance claims, may not have complied with.  The court is required to prudently assess my financial circumstances before making any judgments, ensuring that the welfare of the child and the needs of both parties are adequately addressed.  Notably, the authentic and judicious evaluation of the father’s current and prospective financial capabilities, his standard of living, as well as his medical and legal support requirements, has not been conducted with the requisite transparency.

55. There may also be scrutiny regarding the Respondent’s financial resources.  It is both illogical to presume that the Respondent has successfully subsisted for the past 16 years without any form of income, savings, financial support, or inappropriate recourse to my daughter’s maintenance funds.

56. Neglecting my financial resources or means and the pertinent evidence in making determinations regarding maintenance variations may culminate in erroneous conclusions that could be rendered void under legal stipulations……

57. In conclusion, the cited case law collectively supports my contention that the court erred in making a maintenance variation by disregarding my financial means and documentary evidence while relying on the Respondent’s speculations with spurious and tampered evidence.  The rulings emphasise the importance of basing judicial decisions on credible and substantiated evidence, ensuring that all parties are treated fairly and justly in maintenance matters.”

74.  These proceedings were commenced under the Guardianship of Minors Ordinance, Cap.13 (“GMO”).  There are specific provisions for adjudication of parents’ liabilities and financial needs of the minor(s)  in question.  There is no marital relationship between the Father and the Mother for matrimonial maintenance claims (my emphasis)  under the statutory regime of the MPPO so suggested by the Father in paragraph 54 of his “Draft Grounds of Appeal”.  The Father apparently had mixed up spousal; maintenance and carer’s allowance.

75.  At paragraph 26 of the 21/5/2025 Judgment, the statutory provisions governing maintenance for minors under the GMO were recited and noted by me.  The 2 key factors which need to be considered are, namely, (i)  the financial needs of the minor(s)  in question; and (ii)  the means of the parent being asked to pay (in this case the Father).

76.  At paragraph 29 of the 21/5/2025 Judgment, I referred to and agreed with the decision in the case of RMH v GY [2021] HKFC 215 that the court’s approach (my emphasis)  in determining variation of maintenance applications under the MPPO and the GMO are alike.  However, the likeness of the court’s approach must not be mingled with the substantive legal rights afforded under the 2 different statues.  

77.  When considering all the circumstances afresh (my emphasis)  in variation of maintenance applications, the court is entitled to view the case overall and afresh from different perspectives.  The extent or scope of the perspectives varies from case to case and is fact-sensitive.  The term “all the circumstances afresh” must not be confined to simply taking records of whatever figures provided by the parties, carrying out the mathematics of addition and subtraction of the figures provided and then come up with a quick and easy answer on the outcome of the variation application without looking further into how those figures came about and/or why was that.

78.  I arrived at my 21/5/2025 Judgment from 3 mutually exclusive but highly relevant and important perspectives for disposing the Father’s application for variation.  For the sake of completeness but at the expense of repetition, they are now repeated as follows :-

“45. From the perspective of costs, M was and still is on legal aid.  F in the past years engaged different reputable law firms specialised in matrimonial practice and engaged different eminent Counsel, including Senior Counsel, to represent him.  F revealed before me that he had so far spent around or over 20 million dollars in legal costs and now he chose to represent himself in these proceedings.  This undoubtedly contravenes the underlying aim and objectives of costs effectiveness under Order 1A rule 1 of the Hong Kong Civil Procedure (“HKCP”)  2025.

46. From the perspective of time, it is now the 15^th anniversary of This case and the child who was born in 2008 would be turning majority (that is, 18 years old)  in November 2026 (that is, 18 months later).  Worst still, the child does not seem to have enjoyed, or had ever continuously enjoyed, the fruits of litigation for having the full benefit of maintenance orders granted by the Court.  This undoubtedly also contravenes the underlying aim and objectives of procedural economy and case efficacy under Order 1A rule 1 of the HKCP.

47. From the perspective of practicality, I have no hesitation to say these proceedings serve no benefit for the child who had been caught in between her parents’ 15 years of battle in litigation since she was only 2 years old in 2010 when these proceedings first started.”

79.  As the docket judge overseeing this case for the past 15 years uninterruptedly, I have given full and careful consideration to the Father’s case and his evidence produced for his variation application, including his financial resources and documents, in an attempt to show his asserted dire financial situation.  As a matter of fact, this had led me to look into the case overall and afresh with the above 3 perspectives in mind. 

80.  All in all, I find none of the Father’s 6 grounds of appeal sustainable or supportable for me to grant him leave to appeal.

81.  Accordingly, I decided that the Father’s Summons dated 16 July 2025 seeking leave to appeal be dismissed.

“New Evidence” produced by the Father

82.  I agreed with Counsel Miss Alison Choy that the Father failed to meet the criteria for adducing new evidence after trial, which were attached as 4 exhibits to his “Draft Grounds of Appeal”.

83.  Hence, none of those exhibits would be considered by me.

Any “interest of justice” ground for leave to appeal ?

84.  I have given careful consideration and decided that no such ground exists for me to grant leave to appeal to the Father.

Costs

85.  With my decision on the Father’s application for leave to appeal having failed completely, it is fair and reasonable for costs to follow the event in favour of the Mother, who is legally aided.

86.  I also grant Certificate for Counsel.

Orders

87.  I now grant the following Orders :-

(a)  Father’s Summons dated 16 July 2025 seeking leave to appeal be dismissed;

(b)  Father do pay to the Mother the costs of the application, including costs reserved (if any), to be taxed if not agreed;

(c)  There be Certificate for Counsel; and

(d)  Mother’s own costs be taxed in accordance with Legal Aid Regulations.

The Applicant unrepresented, acting in person

Miss Alison Choy instructed by Messrs. Stevenson, Wong & Co, Solicitors for the Respondent on the instructions of the Director of Legal Aid

FCMP 67 / 2010

[2025] HKFC 89

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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J U D G M E N T
(Variation of Maintenance/Discharge of Undertakings/
Remission of Outstanding Arrears

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Introduction

1.  This is a piece of protracted litigation for the past 15 years where 20 full written Judgments/Decisions had been handed down by the Family Court and 5 Decisions by the Court of Appeal, let alone the wardship proceedings in the Court of First Instance under HCMP No.929 of 2017 taken out by the Applicant father where 12 full Judgment(s)/Decision(s) were handed down by Madam Justice B Chu and 2 Decisions by the Court of Appeal. Counting this Judgment, there would be 40 full written Judgment(s)/Decision(s) handed down by different levels of court.

2.  Further, there was another full Judgment by the Court of Appeal in CACV No.84 of 2021 (Re: Hadkinson Order) granted against F in his appeal against the decision of Madam Justice B Chu dated 3 February 2021 in the wardship proceedings dismissing his application for custody, care and control of the child.[1]

3.  In granting the “Hadkinson Order”, Hon Cheung JA at paragraph 43 of the Judgment said :-

“(3)

Impediment to justice

43.

In our view, the Father’s breach to pay under the two orders impedes the course of justice. The history of this case shows the difficulty in enforcing the two orders which the Father has chosen to ignore. Although the Mother is legally aided, she requires the maintenance and allowance for N and herself. The Father has no defence to the payment of these sums. We agree with Mr Surman that the Father’s non-payment has a very considerable and detrimental impact on N – her educational and her general well-being and it obstructs the exercise of the Court’s quasi-parental powers over N who is a ward of the Court. The Father has a moral and legal obligation to discharge his obligations. Further, the costs incurred in these proceedings are totally out of proportion to the money at stake. The historical context of this case is pertinent. As B Chu J observed :     ‘As of todate, there have been no less than 16 published judgments/decisions handed down by Judge Own in the Family Court (“Judge”), 7 judgments/decisions in the Court of Appeal on leave to appeal applications/interlocutory appeals and 9 judgments/decisions in these wardship proceedings. Further there have been no less than 18 social welfare reports (referred to individually as “SWR”), 3 reports from the Official Solicitor as guardian ad litem for N (referred to individually as “OS Report”).”

4.  Background of this case had been repeatedly set out in those earlier Judgments/Decisions and I do not intend to repeat here anymore. I will be brief and concise in my Judgment this time on the parties’ cross applications which was bitterly fought again for 3 days before me.

5.  According to the document index in the Court file, the latest state of play was that there are altogether 458 documents (Folio Nos.1 to 458) consists of thousands of pages and large number of affidavits from both parties. For the sake of convenience and clarify, I confirmed with the parties before the trial commenced as to which affidavit evidence they intended to use for this trial. The parties confirmed to me as follows :-

(a)  Applicant father’s affidavit(s) - 46^th, 47^th 48^th, 50^th, 51^st, 52^nd and 53^rd;

(b)  Respondent mother’s affidavit(s) - 31^st, 32^nd, 34^th, 35^th and 36^th.

Parties’ Summonses

6.  F’s Summons dated 5 October 2021 was amended (just less than 2 years later) in August 2023 seeking, inter alia, the following :-

“1.	Paragraphs 1, 3 to 8 of the Order dated 5 June 2015 and Paragraphs 1 and 2 of the Order dated 10 February 2023, be varied and superseded by the following :-
	(a)  The maintenance for the minor shall be varied down to HK$10,000 per month until the minor reaches the age of 18 or completes the first undergraduate degree, whichever is the later;
	(b)  The Respondent’s carer’s allowance shall be varied down from HK$10,000 per month to nil; and
2.	Leave to be granted to the Applicant to withdraw his undertakings dated 12 June 2014.
3.	Remission of all arrears for the Minor’s maintenance, expenses and/or carer’s maintenance under the Order dated 5 June 2015, the Order dated 10 February 2023, and the Applicant’s undertakings dated 12 June 2014 up to the date of the Order to be made.”

7.  M’s Summons dated 18 May 2023 seeking, inter alia, the following :-

“1.	A lump sum with a reasonable amount to be assessed by the Court, including but not limited to a variation of the Orders dated 5 June 2015 and 10 February 2023 to reflect, amongst others, the increase in the Child’s spending and living costs, and/or to replace the Undertakings given by the Applicant on 12 June 2014 to cover the Child’s extra-curricular activities and school-related expenses, to be settled on trust for use of the Child and the Respondent, by way of payment into Court in an interest bearing account from the sale proceeds (“the Sale Proceeds”) of the Applicant’s property　known as Flat x on xx Floor including the Balcony and utility platform thereof of Tower 2, xxxx, 18 xxxx Road, Kowloon, Hong Kong (“the One xx Property”) or otherwise, and with leave to the Respondent to apply to the Court for payment of an amount to be so assessed every 6 months out of Court for the maintenance of the Child.
2.	A lump sum for the purpose of enabling liabilities or expenses incurred by the Respondent in maintaining the Child to be met (i) since April 2016 when the Applicant’s access to the Child decreased from about 46% of the Child’s time to about a few hours a week; and/or (ii) for the Child’s set-up and moving costs (of HK$67,100) for moving from the One xx property to the current rented residence, be repaid by the Applicant to the Respondent, via the Director of Legal Aid Department, forthwith with interests from the Sale Proceeds or otherwise.
3.	All the arrears of carer’s allowance and child maintenance of not less than HK$933,506 in total (as of May 2023, excluding interests) be repaid by the Applicant to the Respondent via the Director of Legal Aid Department, forthwith with interests from the Sale Proceeds or otherwise; and
4.	Such other Orders and directions as this Court deems fit and appropriate.”

Decision dated 5 June 2015 (“2015 Order”)

8.  After a bitterly fought 7-day trial back in 2015, I handed down my 78 pages (189 paragraphs) Judgment (Financial Provisions) in respect of the child “N” whereby F’s property at “One xx Property” was settled on trust for the use and benefit of the child “N” until she reaches 18 or ceases full time education (whichever is the later); F do pay to M periodical maintenance of HK$13,726 a month for the child “N”; F do pay to M carer’s allowance of HK$10,000 a month, and F’s undertakings given on 12 June 2014 do stand (the “2015 Order”). The F’s undertakings relate to his agreement to pay the child N’s school related expenses and ECA expenses.

9.  F sought leave to appeal the “2015 Order” which I dismissed on 12 August 2015 with costs to M.

10.  F then went further to seek leave to appeal the “2015 Order” at the Court of Appeal under HCMP No.2059 of 2015 which was dismissed on 2 December 2015 (Reasons dated 7 December 2015) with indemnity costs summarily assessed at HK$100,000 be paid by F to M[2].

Decision dated 10 February 2023 (“2023 Order”)

11.  The “2023 Order” was granted upon M’s variation application taken out in 2022 (some 7 years after the “2015 Order”) and F’s variation application (which was taken out in 2021 earlier than M’s application) but it was adjourned sine die with liberty to restore pending Official Solicitor’s Report on F’s mental condition. Reason was that at the time F repeatedly claimed that he was suffering from mental conditions.

12.  Upon the Official Solicitor producing their Report which confirmed F’s mental condition was suitable for him to handle the case, F however did not restore his variation summons nor did he file his Form E despite having been directed by me to do so and even with an “unless order” in place[3]. The time for F to do so was extended to 30/9/2022. From case management perspective, F’s and M’s applications for variation should be dealt with in “one-go” and not one after the other.

13.  Instead of filing his Form E and affidavit evidence, F sent in a letter (on 21/9/2022) and his 48^th Affidavit (on 30/9/2022) which was a 31-page document of 133 paragraphs with 19 exhibits setting out matters which are not supportive of his “unrestored” variation summons.

14.  To avoid any delay caused to M by F, whose position on his own variation summons was unknown, I decided that M’s variation application be proceeded (without F’s variation application) and, with reasons provided in the reasons for decision in the “2023 Order”, that it would be dealt with by way of paper disposal[4] on an urgent basis.

15.  It was after the time provided by the “unless order” had long expired that on 30/1/2023, F sought to restore his pending variation summons and then amended the contents of his summons to also include varying the “2023 Order” for the purpose of this trial. Those words shown in italics in F’s Amended Summons which I recited above are the amendments made to also vary the “2023 Order”. This was the reason for the time gap between F’s Summons issued in 2021 compared with M’s Summons issued in 2023, but the trial of the 2 Summonses only started in March 2024.

16.  Under the “2023 Order”, the periodical maintenance of the child was adjusted upwards from HK$13,726 (granted under the “2015 Order”) to HK$35,726 a month; M’s carer’s allowance of HK$10,000 to remain unchanged and to continue. It was highlighted in my reasons for decision that the original amount of the child’s maintenance to continue “for the time being” when I only topped it up with the rental expenses of HK$22,000 to arrive at adjusted figure of HK$35,726 a month as the child’s maintenance.[5]

17.  On the undisputed facts prevailing at the time, M and the child was forced to move out from the “One xx Property” where they were living due to F’s default in meeting the monthly mortgage instalments of the property. This ended up with proceedings for recovery of possession commenced by the mortgagee bank. With F’s non-payment of the child’s maintenance and carer’s allowance since July 2020 (which was already some 20 odd months ago) and that M had to pay HK$22,000 for renting other accommodation, there was the immediate need and urgency to adjust the monthly sum that need to be paid by F. It ended up with topping up the child’s monthly maintenance payment without any further variation.

Non-compliance of both the “2015 Order” and “2023 Order”

18.  There could hardly be any dispute that compliance with the “2015 Order” by F, despite his application for leave to appeal the same was turned down twice; first by me and later by the Court of Appeal, was not forthcoming for the past 10 years since 2015.

19.  To assist the Court, there was produced a 3-page chronology of events by M’s legal team as “Annex 2” under the Skeleton Submissions dated 27 December 2023 going back to the time when the child was born in 2008 until this trial in 2024.

20.  Briefly stated, F’s non-compliance insofar as the “2015 Order” was concerned, was narrated below –

-  F failed to handover possession of the “One xx Property” for the use and benefit of the child. This had ended up with a fully contested trial with another Judgment handed down on 13 March 2017 against F;

-  From January 2017 to September 2018, F only settled a portion of the child’s school related expenses and ECA expenses (which F undertook to pay in June 2014) and often late in payment;

-  In October 2018, F ceased all payments for the child’s school related expenses and ECA expenses;

-  In July 2020, F ceased paying M’s carer’s allowance of HK$10,000 a month;

-  In October 2020, F ceased payment of the child’s maintenance of HK$13,726 a month;

-  In January 2021, F defaulted in paying mortgage instalments for the “One xx Property”. This ended up with proceedings commenced by the mortgagee bank for recovery of possession;

-  In August 2022, M and the child was forced to move out from the “One xx Property” to a rented place in Kai Tak, Kowloon, at the rent of HK$22,000 a month solely paid by M

21.  There were also protracted disputes raised by F as to the definition and scope of what items are to be covered under the term “school related expense” and the type of activities to be regarded as “ECA” despite both of which F had provided his Undertakings on 12 June 2014 to pay and that such Undertakings were embodied in the “2015 Order”.

22.  Non-compliance with the “2023 Order” was that F continuously failed to pay the child’s maintenance which was adjusted to HK$35,726 a month and M’s carer’s allowance of HK$10,000 a month.

F’s position in this trial

23.  F’s contention on M’s variation application can be summarised as follows :-

-  There was no material change of circumstances for M to seek variation 3 months after the “2023 Order” was granted (F referred to the case of HCTT v TYYC [2008] HKFLR 286);

-  M’s variation application was an appeal of the “2023 Order” through the backdoor (F referred to the case of RMH v GY [2021] HKFC 215);

-  M was seeking backdated and advanced lump sum payment which would not normally be granted (F referred to the case of AEM v VFM [2008] HKFLR 106);

-  M was seeking to recover arrears past due for over 12 months and such recovery would require leave of the court;

M’s position in this trial

24.  M’s claim was simple and straightforward. She was seeking :-

-  An upward variation of the child’s maintenance to meet the increase in the child’s spending and costs of living;

-  Financial orders under Section 10(2) of the Guardianship of Minors Ordinance, Cap.13 (“GMO”) for :-

(a)  secured lump sum for the increasing living costs and expenses of the child and, if the court sees fit to include the school-related expenses and ECA expenses in the varied sum, to replace F’s Undertakings;

(b)  lump sum for past expenses; and

(c)  recovery of all arrears of child’s maintenance and carer’s allowance.

25.  As to F’s application to vary the child’s maintenance down to HK$10,000 a month, M’s carer allowance down to HK$0 and remission of all outstanding and unpaid arrears, they are all rejected by M.

Provisions under the GMO

26.  Section 10 of the GMO provides :-

“10.	Orders for custody and maintenance on application of either parent
	(1)	The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding—
		(a)	the custody of the minor; and
		(b)	the right of access to the minor of either of his or her parents,
		as the court thinks fit having regard to the best interests of the minor and to the conduct and wishes of the parents.
	(2)	The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders—
		(a)	an order requiring payment to the applicant by the parent or either of the parents of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that parent;
		(b)	an order requiring payment to the applicant by such parent or either of such parents of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;
		(c)	an order requiring the securing to the applicant by such parent or either of such parents, to the satisfaction of the court, of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;
		(d)	an order requiring the transfer to the applicant for the benefit of the minor, or to the minor, by such parent or either of such parents, of such property, being property to which the parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of that parent;
		(e)	an order requiring the settlement for the benefit of the minor, to the satisfaction of the court, of such property, being property to which such parent or either of such parents is so entitled, as the court thinks reasonable having regard to the means of that parent.
	(3)	An order may be made under subsection (1) or (2) notwithstanding that the parents of the minor are then residing together, but—
		(a)	no such order shall be enforceable, and no liability thereunder shall accrue, while they are residing together; and
		(b)	any such order shall cease to have effect if for a period of 3 months after it is made they continue to reside together:
		Provided that, unless the court in making the order directs otherwise, paragraphs (a) and (b) shall not apply to any provision of the order giving the custody of the minor to a person other than one of the parents or made with respect to a minor of whom custody is so given.
	(4)	An order under subsection (1) or an order under subsection (2) (other than an order for a lump sum payment in one amount, for a lump sum to be paid in instalments where all such instalments have been paid or for the transfer of property) may be varied, discharged, suspended or revived after being so suspended, by a subsequent order made on the application of either parent or after the death of either parent on the application of any guardian under this Ordinance, or (before or after the death of either parent) on the application of any other person having the custody of the minor by virtue of an order under subsection (1).”

Discussion

27.  Parties’ respective variations of the child’s maintenance are plainly “2 sides of the same coin”. The answer turns upon my finding of M's credentials over the living costs, financial needs and expenses of herself (of which contained a portion for the child) and the child’s own expenses. At this trial, F had vehemently challenged and, leaving no stone unturned in his cross examination on W’s credentials and tried to explore inconsistencies and inaccuracies on the child’s expenses which M claimed had been spent or need to be spent on the child.

28.  Without any disrespect or discourteousness to any party, including the child, I am minded to say that even petty sums of spending on sanitary products had been included in F’s line of cross examination questions on W. This is completely unnecessary and outrageous.

29.  On the topic of variation of financial orders made under the GMO, I am in agreement with my learned brother Judge I Wong in his Judgment in the case of RMH v GY [2021] HKFC 215 where he said :-

“19. The guidance given by the Court of Appal in AEM v VFM, supra, is in respect of an application for variation under the Matrimonial Proceedings and Property Ordinance (Cap.192). Though the present case is one commenced under a different statutory regime, namely, the Guardianship of Minors Ordinance (Cap 13), I am of the view that the same guidance that the court may consider all the circumstances afresh should also apply.”

Any material change of circumstances ?

30.  F’s submission was that there could hardly be any material change of circumstances within the 3-month period between the “2023 Order” dated 10 February 2023 and M’s Summons for the present variation dated 18 May 2023. Material change of circumstances was required for bringing variation applications.

31.  My reasons for decision of the “2023 Order” must first be read and understood in its context; in particular, the underlying facts and surrounding circumstances at the time leading to the need to grant the “2023 Order” is important. The following paragraph of my reasons outlining the background facts at the time is illustrative and important :-

“7. M’s Variation Summons was first heard on 8/7/2022 and was adjourned for a 2^nd hearing on 12/7/2022. Such short adjournment came about as there was an urgent need (my emphasis) for M to try and explore some sort of financial arrangement/settlement with F given the fact that the One xx Property where she and N was residing and solely owned by F had been re-possessed by the mortgagee bank due to F’s failure to pay the mortgage instalments. The adjourned hearing on 12/7/2022 was further put back a few days to 15/7/2022 for the on-going negotiation. However, at the end, no financial settlement could be reached. M and the Child N was then under the fate of having to move out from One xx around the end of the month without the aid of any financial assistance from F, not to mention the arrears of N’s maintenance and M’s carer allowance which had been outstanding and unpaid since November 2020 (around 20 months by that time). M had taken garnishee proceedings which F contested the garnishee order(s) to be made absolute.”

32.  As I said in paragraphs 16 and 17 of this Judgment, the “2023 Order” was granted by me on an urgent basis (my emphasis) only to cater for the sudden and unexpected need of rental expenses arising from F’s default of paying mortgage instalments. It was not and should not be seized upon by F as a complete variation application per se when all the circumstances, including M’s financial means and resources and the child’s needs and expenses, had not been fully investigated and considered in the full course of a trial on viva voce evidence. This could be demonstrated by the fact that M’s variation application was actually dealt with by way of paper disposal without receiving any viva voce evidence within a substantive trial proper as is in the present case. In any event, F had not lodged any complaint on such course nor had he appealed the “2023 Order”. F simply continued with his default in paying the child’s maintenance.

33.  Given that the “2023 Order” was specifically granted to cover the HK$22,000 rental expenses and not determinated as a complete variation application per se, F’s contention of no material change of circumstances since the “2023 Order” was granted could not stand. There was no substantive trial on M’s variation for me to find and determine the circumstances of the case at the time, save and except only the fact of F’s default (on meeting mortgage instalments thus causing the “unpaid and unemployed” M and the child to raise HK$22,000 rental expenses for a roof under their heads) on an urgent need basis having been proved to this Court on her affidavit evidence.

Was it an appeal through the backdoor ?

34.  Given my decision above that the “2023 Order” was not determined upon a complete variation application per se, and was a decision arrived at out of an urgent situation caused by F, M could not be said to be bringing an appeal through the backdoor by filing her present Summons for variation in May 2023. I do not accept F’s such contention.

Was M seeking backdated and advanced lump sum payment ?

35.  The scope of financial reliefs that could be sought under Sections 10(2) of the GMO are wide. It could be lump sum or periodical payments towards maintaining the minor as the court thinks reasonable; it could include financial reliefs for meeting the immediate and recurring needs of the minor; or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor to be met before the order was made, but all such scenarios must have regard to the means of the parent against whom payment was sought.

36.  On the terms of M’s Summons, she was simply seeking lump sum from F to meet the liabilities and expenses that she had already incurred in maintaining the child. At the same time, she also seeks variation of the amount of maintenance to cater for the increasing living costs for the child, it is misconceived for F to argue and say the reliefs sought are “backdated and advanced lump sum” given that his so-called “backdated” lump sum was accrued and accumulated by his years of non-compliance with court orders for maintaining his daughter “N”. There is no room for F to walk away from his legal liability for persistent breaches of court orders on the child’s maintenance, let alone his moral obligations to maintain his daughter, and then come forward to raise such “backdated” contention and the next contention of arrears due over 12 months require leave to enforce (which I will deal with below).

37.  I do not accept F’s such contention.

Does W require leave to recover arrears over 12 months ?

38.  This contention is wholly misconceived. The requirement of leave to recover arrears over 12 months was confined to enforcement process in respect of money orders granted under the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”)[6].

39.  Under the GMO, there is no time line for seeking present or future financial reliefs or to recover liabilities and expenses already incurred or spent in maintaining the minor, subject only to reasonableness of the sums and having regard to the means to the parent making the payment.

40.  For all these reasons, I find against F on all his contentions over those procedural aspects of M’s variation application fails.

Any need for lump sum capitalisation and variation of existing maintenance ?

41.  On financial reliefs granted by the courts within the matrimonial context or under the GMO, whether it should or need to take the form of lump sum or periodical payments, and whether it should or need to be secured or unsecured, varies from case to case and is highly fact-sensitive. It is always a matter of discretion for the courts to be exercised fairly and proportionately to ensure justice and fairness in the case. For financial reliefs affecting children, the courts must ensure the best interests of the children are preserved or maintained.

42.  As outlined at the beginning of this Judgment, there could hardly be any dispute that financial orders granted in the past years had not been complied with by F. Fairly put, orders had been ignored or flouted and ended up with further litigation even over enforcement process. My property settlement order under the “2015 Order” called for a fully contested trial before possession of the “One xx Property” was delivered up by F some 2 years later in 2017[7]; Garnishee orders nisi could only be made absolute after a full judgment by way of paper disposal was handed down by me in 2022.[8] This is highly unsatisfactory given that these proceedings are brought under the GMO and any breaches or non-compliance of court orders would affect the children most. Their best interests would not be served on time and would inevitably be prejudiced, if not compromised.

43.  Actually things in this case had progressed from bad to worse over these years. At present, it was indeed exacerbating. I noticed that F and M are now competing with each other in the Court of First Instance in an interpleader proceedings under HCMP No.2099 of 2023. There are actually 6 other interpleaders including the Official Solicitors and the Director of Legal Aid (presumably both of them on their costs incurred) and 4 other interpleaders including F’s mother and his friends to whom F had executed Legal Charges for loans allegedly to have received from them.

44.  M who was on legal aid throughout these years had once saw the need to seek assistance from the Court of Appeal for a Hadkinson Order to be granted against F which she succeeded[9].

45.  From the perspective of costs, M was and still is on legal aid. F in the past years engaged different reputable law firms specialised in matrimonial practice and engaged different eminent Counsel, including Senior Counsel, to represent him. F revealed before me that he had so far spent around or over 20 million dollars in legal costs and now he chose to represent himself in these proceedings. This undoubtedly contravenes the underlying aim and objectives of costs effectiveness under Order 1A rule 1 of the Hong Kong Civil Procedure (“HKCP”) 2025.

46.  From the perspective of time, it is now the 15^th anniversary of this case and the child who was born in 2008 would be turning majority (that is, 18 years old) in November 2026 (that is, 18 months later). Worst still, the child does not seem to have enjoyed, or had ever continuously enjoyed, the fruits of litigation for having the full benefit of maintenance orders granted by the Court. This undoubtedly also contravenes the underlying aim and objectives of procedural economy and case efficacy under Order 1A rule 1 of the HKCP.

47.  From the perspective of practicality, I have no hesitation to say these proceedings serve no benefit for the child who had been caught in between her parents’ 15 years of battle in litigation since she was only 2 years old in 2010 when these proceedings first started.

48.  As the docket judge for 15 years and with all the above matters fully and carefully considered, I accept M’s application for lump sum in respect of past dues and future maintenance for the child, with variation of the maintenance amount to cater for the child’s increasing living costs, and to recover liabilities and expenses incurred in maintaining the child to be met.

Living costs and expenses of the child “N”

49.  At the outset, I wish to say that children expenses are easy to spend but difficult to quantify with any precision. From time to time the Court has to scrutinize ledgers of children’s expenses pragmatically given the parents’ conflicting views or lack of trust with each other. In some other cases, there may be a need to adjudicate children’s expenses with laxity to ensure the best interests of the children are not affected by their parents’ conflicting positions and disputes. The prevailing and dominant approach of the courts is to provide the children with quality life within parameters of reasonableness subject to the means and resources of the paying parent[10].

50.  F has vehemently criticised M’s declared items of spending for the child in terms of the need, value, purpose or usage; in particular, on the item of Melaleuca supplements given to the child. Besides, the costs of the Melaleuca supplements at HK$2,300 was also hotly disputed by F when he cross examined W.

51.  In the absence of nutrient expert evidence, I am in no position to decide the suitability or unsuitability or even the need to give Melaleuca supplements to the child. It was purely one’s words against the other. That said, I am inclined to accept M’s evidence on the need of such supplement since F has to, but had not, adduce expert evidence to support his personal views on such supplements. This item of expenses will be allowed and the costs also accepted by me.

52.  As for the other items of monthly expenses, both for M and the child, M’s legal team has helpfully produced a summarised table[11] setting out 3 scenarios, namely :-

(a)  child’s maintenance as per the “2015 Order”;

(b)  M’s monthly expenses as per her Form E dated 21 March 2023; and

(c)  M’s anticipated monthly expenses in normal circumstances.

53.  Within the items of expenses and where appropriate, there were apportioned sums which M worked out as the child’s share of that particular item of her general expenses and with brief markings on such apportionment. I have taken time and effort to review and carefully consider each and every items of expenses within the table. Given the fact that M is now seeking variation of the amount of the child’s maintenance, those columns with breakdown of expenses for child’s expenses as per the “2015 Order” comparing with the same item of expenses contained within M’s Form E (as at 31/3/2023) is useful.

54.  Having gone through the figures under M’s Form E[12], the evidence I received from M at this trial and her answers to F’s questions during cross examination, I find and decided the amount(s) of all the items under M’s general expenses are fair and reasonable. However, given the “2023 Order” handed down on 10/2/2023 was in place at the time of this Form E, I saw the need to include the rental sum of HK$22,000 as the child’s maintenance in line with my decision, which neither party had objected or appealed for adding the rental expenses into child’s original maintenance to arrived at the sum of HK$27,500 a month (HK$22,000 + HK$5,500).

55.  On the items of expenses under the heading of “Child Expenses” in M’s Form E, I decided that only the following adjustments would have to be made. All the other expenses are fair and reasonable estimate.

(a)  the extra-curricular activities of HK$2,994, the extra tuition fees of HK$2,500, school-related expenses (school books and stationery HK$600, transport HK$200, uniform HK$300) totalling HK$6,594 be deducted as all of them would continue to fall within F’s Undertakings given on 12 June 2014; and

(b)  the entertainment/presents of HK$2,000 be adjusted to HK$1,000 a month.

56.  With these 2 adjustments, I decided the amount of the child’s expenses to be HK$8,472 instead of HK$9,472 a month.

57.  Hence, the total sum for N’s monthly maintenance would be HK$35,972 (that is HK$27,500 + HK$8,472).

58.  In the column of M’s anticipated monthly expenses which she arrived at the figure of HK$57,172 a month, I have also read and consider carefully the “Remarks” column made against those items where the reasons for and amount of increase was provided by M.

59.  Given overall consideration and a broad assessment of those increase of costs, I agree and accept the estimate of HK$57,172 would be fair and reasonable, also giving consideration to the factor of inflation in the coming years before the child finishes her tertiary education at the university, which M worked out to be in the year 2031 when the child reaches the age of 22.[13]

M's carer’s allowance

60.  With the child’s age in mind, I tended to accept F’s queries on the need of this item if one comes to consider those day to day routines, such as, buying food and groceries, taking meals, transport, personal hygiene, clothing so on and so forth, which the child clearly capable of handling without any need of a carer.

61.  However, I am minded to take into account the need for care, advice and guidance over questions and issues arising from puberty and adolescence for the child “N” who is a girl at the age of 16. There is also the inherent factor of mother-child bonding (particularly for same sex child) for the past 16 years for the child to turn to M for advice and guidance when she needs help.

62.  Thus, on this item of carer’s allowance, I am minded to keep it but at a lower rate of HK$2,000 a month to last until the month of November 2026 when the child reaches 18 years old.

63.  For those past due under this item, I am minded to adjust it downward from HK$10,000 a month to HK$2,000 a month commencing from the month of November 2023 (that is, when the child reached 15 years old).

Arrears unpaid under the “2015 Order” and “2023 Order”

64.  M in her Counsel’s Submissions dated 27 December 2023 attached with the following Annexures.

Annex 1 :	Table of outstanding child maintenance and carer’s allowance (not including ECA and school related expenses) as of December 2023.
Annex 3 :	Lump sum sought by M for the purpose of enabling liabilities or expenses incurred in maintaining the child

65.  In my decision, the child’s maintenance at the rate of HK$13,726 per month as per the “2015 Order” counting from cessation of payment in November 2020 up to and including August 2022 (total 22 months) was HK$301,972 (that is HK$13,726 x 22).

66.  Further, in my decision, the child’s maintenance at the adjusted rate of HK$35,726 per month as per the “2023 Order” counting from September 2022 up to and including April 2023 (total 8 months) was HK$285,808 (that is HK$35,726 x 8).

67.  Hence, the total amount of arrears unpaid was HK$587,780 (that is HK$301,972 + HK$285,808), which I decided F should repay to M. I noted that it was F’s application to remit all these arrears which I find there was no basis for F to avoid his legal liabilities under the 2 Orders.

M’s claim for reimbursement of “additional” expenses after April 2016

68.  At paragraph 2 of M’s Summons, she sought to recover additional expenses incurred by her since April 2016 when F’s access time with the child was greatly reduced from 46% of time in a week to only a few hours a week. Such reduction of time was undisputed to be a fact.

69.  M worked out a table at Annex 3 and come up with a figure of HK$943,362.40 which she claimed against F as additional expenses incurred by her since April 2026 when the access time spent by F with the child greatly reduced from 46 % of time in a week down to only 1.20 % of time in a week.

70.  I have read and considered the table and the calculation. The calculation was up to 18 May 2023, which was the date of M’s Summons for variation.

71.  I agree with M’s evidence that whenever the child spent access time with F, she would be financially relieved from supporting the child. The converse would definitely happen when the child spent more time with her and, accordingly, she would have to bear additional financial burden(s) over the child in terms of living costs and maintenance. In my view, these are liabilities and expenses which would have to be met under Section 10 of the GMO provided the sums are reasonable and within the means of the parent from whom payment was sought.

72.  On the amount, I decided to adopt a broad brush assessment rather than pin-pointing to every single dollar and cents or counting hours and minutes as M did in the calculation. That said, I would assess this claim at HK$600,000 to be fair and reasonable.

73.  I decided not to allow the moving costs of HK$23,100 (that is HK$67,100 – HK$44,000) to M’s claim.

F’s means and ability to pay

74.  As required by the law, I need to consider F’s ability to pay those sums found by me in this Judgment.

Secured Lump Sum/Payment into Court

75.  M in her Summons sought a secured lump sum order over the net proceeds of sale of F’s “One xx Property” which I understand is now the subject matter of the interpleader proceedings in the Court of First Instance. I also noted that the sums involved in the interpleader proceedings are in the region around HK$ 8 million and are kept in the Court of First Instance for further disposal.

76.  All these information and hard facts lend to my observation that F would have the liability to pay my award in this Judgment given that he is also one of the 8 interpleaders along with, amongst others, his mother and friends.

77.  With the net proceeds of sale forming the subject matter of the interpleader proceedings, and presently under the direction of the Court of First Instance, I have no jurisdiction to order lump sums to be secured over the net proceeds of sale or further directing the sale proceeds be paid into the Family Court.

Calculation of sums to be paid by F

78.  I will first deal with the past dues and sums currently due and unpaid.

(a)  The past dues of HK$587,780[14];

(b)  The reimbursement to be made to M of HK$600,000[15];

(c)  Carer’s allowance due and unpaid since July 2020 at the rate of HK$10,000 a month up to and including the month of October 2023 (totalling 40 months) capitalised at HK$400,000[16];

(d)  Carer’s allowance due and unpaid since the month of November 2023 at the rate of HK$2,000 a month to the month of May 2025 (totalling 19 months) capitalised at HK$38,000[17];

(e)  Monthly maintenance for the child at the rate of HK$35,972 a month[18] commencing 1 June 2023 until the month of May 2025 (totalling 24 months) capitalised at HK$863,328.

79.  The total capitalised lump sum is therefore HK$2,489,108 (that is HK$587,780 + HK$600,000 + HK$400,000 + HK$38,000 + HK$863,328).

80.  I will now deal with capitalisation of anticipated living costs and expenses for the child until she finishes full time tertiary education in August 2031 (that is, 75 months from the date of this Judgment), using the estimated rate of HK$57,172 a month. The total capitalised maintenance is therefore HK$4,287,900 (that is HK$57,172 x 75 months).

81.  The capitalised anticipated living costs and expenses of HK$4,287,900 had not included any university course fees which would have to be further resolved in due course of time.

Decision

82.  For all the above reasons, I decided as follows :-

(a)  Paragraphs 1(a), 2 and 3 of F’s Summons be dismissed;

(b)  Paragraph 1(b) of F’s Summons be allowed and varied to HK$2,000;

(c)  All Undertakings of F given on 12 June 2014 do stand and continue.

(d)  Order be granted as per paragraphs 78, 79 and 80 above in terms of M’s Summons;

(e)  All payment(s) payable to M are subject to the Director of Legal Aid’s First Charge.

83.  There be liberty to apply for directions on implementation of this Judgment.

Costs

84.  Given my decision on the parties’ applications, although F managed to vary M’s carer’s allowance but was unable to succeed to the full extent. Overall speaking, M is the “winner” of both Summonses.

85.  I decided that F should pay to W all costs of and occasioned by both F’s and M’s Summonses, including all costs reserved, to be taxed if not agreed.

86.  M’s own costs be taxed in accordance with Legal Aid Regulations.

87.  I also grant Certificate for Counsel.

88.  This is a costs order nisi which would become absolute if no application to vary the same was made within 14 days from the date of this Judgment.

The Applicant unrepresented, acting in person

Miss Allison Choy instructed by Messrs. Stevenson, Wong & Co, Solicitors for the Respondent on the instructions of the Director of Legal Aid

FCMP 67 / 2010

[2025] HKFC 13

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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

__________

_____________

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

DECISION
(Rule 121 of MCR Cap.179A)

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Foreword

1.  This is the trial of the Respondent’s Summons dated 2 July 2024 taken out under Rule 121 of the Matrimonial Causes Rules, Cap.179A (“MCR”) for use and disclosure of documents in the ongoing proceedings at the Court of First Instance under HCMP No.2099 of 2023 and/or the fresh proceedings to be commenced by the Respondent in respect of 4 Legal Charges executed by the Applicant in November 2022 (“Rule 121 Summons”).

2.  Suffice it is for me to say the ongoing proceedings under HCMP No.2099 of 2023 was issued by the Bank of China on 10 November 2022 under Order 17 rule 1 of the Rules of the High Court, Cap.4A in respect of the net proceeds of sale of F’s solely owned property known as One Silversea (“Silversea Property”) in March 2022. The net proceeds of sale come to the sum of HK$12,122,071.55.

3.  In this Decision, I would refer to the case of HCMP No. 2099 of 2023 as “Interpleader Proceedings”.

Some general factual background

4.  This piece of protracted litigation between the Applicant father (“F”) and the Respondent mother (“M”) in respect of a child born in 2008 out of their cohabitation. As the docket judge overseeing this case for the past 14 years, there were multiple applications in the Family Court, Court of First Instance (wardship) and in the Court of Appeal ending up with no less than 25 judgment(s) were handed down by different level of courts. That said, there was yet another decision of this Court to be handed down in the next couple of months in respect of F’s application for variation of order.

5.  In 2015, this Court handed down a Judgment after a 6-day trial whereby, amongst others, F’s Silversea Property was ordered to be settled on trust for the use of the child of the parties and M free of mortgage payments until the child reaches the age of 18 or ceases full time education, whichever is the later.

6.  At all material times the Silversea Property was mortgaged to the Bank of China and F had to pay the monthly mortgage instalments during the period of settlement directed by this Court.

7.  In January 2021, F stopped paying the mortgage instalments of the Silversea Property leading to the Bank of China issuing proceedings against F in the District Court under DCMP No.2538 of 2021.

8.  On 12 January 2022, an order for possession of the Silversea Property was granted and mortgagee sale was being arranged.

9.  On 25 February 2022, M obtained an interim injunction (“Interim Injunction”) restraining F from dealing with the net proceeds of sale of the Silversea Property and ordering payment of the same upon receipt into this Court.

10.  In November 2022 (i.e. after the Interim Injunction was granted), F executed 4 Legal Charges (collectively “Legal Charges”) separately in respect of purported loans allegedly given to him by his mother and 3 other friends between 2018 and 2022. The 4 Legal Charges were registered at the Land Registry on the title of the Silversea Property which came to the notice of Bank of China at the time of sale.

11.  On 10 March 2023, the Bank of China sold the Silversea Property and the net proceeds of sale came up to the region of HK$12,122,071.55 (“Proceeds of sale”).

12.  On 10 November 2023, the Bank of China through their lawyers Messrs. Chu & Lau, Solicitors, took out the Interpleader Proceedings since they could not determine how the net proceeds of sale to be dealt with.

13.  On the other hand, the Interim Injunction was tried by Deputy Judge Jeffrey Li who handed down his Decision in August 2024 whereby a sum of HK$8,058,523 out of the net proceeds of sale was to be injuncted until further order of the Court. It was further ordered that F do pay or procure to pay the said sum of HK$8,058,523 into this Court forthwith.

14.  On 30 October 2024, F issued a Summons seeking leave to appeal the Decision of Deputy Judge Jeffrey Li and, at the time of this Decision, the outcome is pending.

The Interpleader Proceedings (HCMP No.2099 of 2023)

15.  There are altogether 8 Claimants as follows :-

-  Director of Legal Aid	(1st Claimant)
-  Respondent	(2nd Claimant)
-  The Official Solicitor	(3rd Claimant)
-  (Friend of F)	(4th Claimant)
-  (Mother of F)	(5th Claimant)
-  (Friend of F)	(6th Claimant)
-  (Friend of F)	(7th Claimant)
-  Applicant	(8th Claimant)

16.  At the directions hearing on 26 April 2024, Hon S.T. Poon J granted leave for M (2^nd Claimant), F (8^th Claimant) and the 4^th to 7^th Claimants to file affirmation evidence in respect of the Legal Charges within 28 days given that M through her Counsel informed the Court that M would challenge the validity of the Legal Charges. M (2^nd Claimant) has consequential leave to file her affirmation in reply within 28 days thereafter[1].

17.  It turned out that the 4^th to 7^th Claimants and F (8^th Claimant) chose not to file any l affirmation evidence in respect of the Legal Charges. Hence, F took the stance of opposing M to file any affirmation “in reply” in the Interpleader Proceedings.

18.  On 15 July 2024, M took out a Summons[2] in the Interpleader Proceedings to seek clarification/directions for leave to file her affirmation evidence which had earlier been directed to be filed “in reply” notwithstanding the absence of supplemental affirmations from the 4^th to 8^th Claimants on the 4 Legal Charges. M’s Summons was scheduled for hearing on 20 September 2024. In the meantime, the Originating Summons had been scheduled for substantive hearing on 6 November 2024 at 10:00 a.m.

19.  On 16 September 2024, F filed his 2^nd Affidavit (without leave) to oppose the Originating Summons.

20.  On 20 September 2024, Hon S.T. Poon J noted M’s Rule 121 Summons dated 2 July 2024 taken out in these proceedings, and the decision of which was pending at that time, granted the following orders :-

-  Retrospective leave for F’s 2^nd Affidavit to stand as affidavit in opposition to the Originating Summons taken out by Bank of China dated 10 November 2023;

-  Leave be granted to M to file her Reply Affidavit within 35 days from the date of this Decision on her Rule 121 Summons;

-  The substantive hearing of the Originating Summons on 6 November 2024 be vacated and adjourned to a date to be fixed (1 day reserved) in consultation with Counsel’s diaries within 14 days after the filing of M’s Reply Affidavit;

-  There be a directions hearing before the Judge presiding the substantive hearing and not less than 28 days before the substantive hearing.

The “Rule 121 Summons”

21.  As per paragraph 1 of the Summons, there are altogether 12 items of documents under items (a) to (l) consists of F’s Form Es, Affirmation of F’s mother, F’s 45^th, 46^th, 47^th, 50^th, 51^st and 52^nd Affidavits, F’s hearing note filed on 20 December 2023 . The use and disclosure of those documents was required :-

“…..for the purposes of advancing and/or defending the proceedings in HCMP 2099/2023 and/or the fresh High Court proceedings to be commenced by the Respondent (as the Plaintiff in those fresh proceedings) in respect of which the Legal Charges registered in the Land Registry by Memorial Nos.2211xxxxxxxx29, 2211xxxxxxxx30, 2811xxxxxxxx43 and 2211xxxxxxxx58 against [One Silversea Property] (as the case may be)”

22.  At paragraph 31 of her 39^th Affidavit[3] which was filed in support of her Rule 121 Summons, M sets out the relevance and the need to use each of the 12 items of documents. In a gist, they are relevant to F’s previous disclosure of his financial situation, liabilities and the alleged loans that he received.

23.  Since M’s 39^th Affidavit was filed on 4 July 2024, which was before the Decision of Deputy Judge Jeffrey Li dated 21 August 2024, M in her 40^th Affidavit in Reply extended the scope of her application and said at paragraph 17 :-

“17. The Injunction Judgment directly relates to the said proceeds of the One Silversea which is the subject matter of the Interpleader Proceedings. Therefore, in addition to the list of documents as set out in my Summons, I hereby seek leave to disclose and use the said Judgment in the Interpleader Proceedings and/or the fresh High Court proceedings to be commenced by me.”

F’s Affirmation in Opposition

24.  F’s reasons for opposition are contained in his 43-page 56^th Affidavit dated 22 August 2024[4]. Within the 105 paragraphs of the Affidavit, there contained matters not directly relevant to M’s application but F’s views and comments on the way which M had pursued her case with criticisms against M of tampering and fabricating evidence, removing necessary and material evidence from his affidavits when pursuing the trial of the Injunction thus perverting the course of justice, undermining his legal rights and eroding public trust in the legal system[5].

25.  I do not intend to go through F’s 56^th Affidavit in any great detail save to refer only to those contentions, if any, which are of relevance and importance when considering M’s application herein.

26.  For the sake of completeness, I would also go through the applicable law and legal principles on Interpleader procedure under Order 17 rule 1 of the RHC, Cap.4A, followed by the legal principles and procedure under Rule 121 of MCR, Cap.179A.

Order 17 rule 1 of the RHC, Cap.4A

27.  “Entitlement to relief by way of interpleader (O.17, r.1)

(1) Where –

(a) a person is under a liability in respect of a debt or in respect of any money, goods or chattels and he is, or expects to be, sue for or in respect of that debt or money or those goods of chattels by two or more persons making adverse claims thereto, or

(b) ……….

the person under liability is mentioned in sub-paragraph (a), or (subject to rule 2) the bailiff, may apply to the Court for relief by way of interpleader.

Powers of Court hearing summons (O.17, r.5)

(1) Where on the hearing of a summons under this Order all the persons by whom adverse claims to the subject-matter in dispute (hereafter in this Order referred to as the claimants) appear, the Court may order –

(a) That any claimant be made a defendant in any action pending with respect to the subject-matter in dispute in substitution for or in addition to the applicant for relief under this Order, or

(b) that an issue between the claimants be stated and tried and may direct which of the claimants is to be plaintiff and which defendant (my emphasis).`

(2) ……..

Trial of interpleader issue (O.17, r.11)

(1) Order 35 shall, with the necessary modifications, apply to the trial of an interpleader issue as it applies to the trial of an action.

(2) The Court by whom an interpleader issue is tried may give such judgment or make such order as finally to dispose of all questions arising in the interpleader proceedings.”

28.  In the case of Nanyang Commercial Bank Limited v The Personal representative of Vannee Nativivat, deceased (unreported, HCMP No.2027 of 2011), Hon To J said :-

“Some legal principles applicable to interpleader proceeding

9. Interpleader proceeding is a proceeding by which a person, from whom two or more persons claim the same property or debt, but who does not himself claim the property or dispute the debt, wishes to protect himself from legal proceedings by calling upon the two claimants to interplead, that is to say, claim against one another, so that the title to the property or debt may be decided by the court: Order 17 rule 1 and Hong Kong Civil Procedure 2012 paragraph 17/0/2. The prerequisite to the right to interplead is that the intended interpleader: (a) has no interest in the property the subject matter of the dispute; (b) did not collude with any of those claiming the subject property

10. In DLA Piper v China Property [2010] 1 HKLRD 903, the Court

of Appeal endorsed the following principles applicable to interpleader proceeding as correct:

(1) where two or more persons claim the same thing or fund, the holder of the thing or fund does not claim any interest in the property, and not knowing to which of the claimants he ought to deliver the property, and he is sued or fears that he may be sued by some of them, he may apply for interpleader relief against the claimants;

(2) the relief is discretionary and it will not be granted unless there appears to be some real foundation that the applicant may be sued;

(3) the applicant does not in any manner collude with any claimant, or has not voluntarily put himself into the situation from which he calls on the court to extricate him;

(4) he is ready to bring into court, or to pay to dispose of the subject matter of the action in such manner as the court may direct;

(5) the test for a real foundation of being sued is whether a prima facie case exists (see Chan King Sheen v KC Tsang & Co [2002] 3 HKC 209 (CA) at 2211); and

(6) the test is whether each of the rival claimants has a prima facie case against the interpleading party, but not whether the adverse claimant has a claim against each other (my emphasis) (see de La Rue v Henru, Peron & Stockwell Ltd [1936] KB 164 per Greene LJ at 170-173, Tsun Fat Finance Co Ltd v Commissioner for Police [2002] 3 HKC 232 at 246).

The first four of these “principles” are prerequisites. The remaining two are the test and the standard of the test to be applied in ascertaining whether the interpleading party has a real foundation that he will be sued by the claimant

11. On hearing the application, the court has wide discretion, including dismissing the application on grounds that the prerequisites in rule 1 or the formal requirements in rule 3 are not satisfied; making a summary determination of the claim; and giving direction as to the further conduct of the proceedings: rule 5 and Hong Kong Civil Procedure 2012 paragraphs 17/5/2 to 17/5/9. Summary determination is the course most commonly taken in straightforward cases, particularly where expedition is desirable. But if the subject matter is of considerable value and difficult questions of law may arise, summary determination is not appropriate, even if the parties so consent: Fredericks and Pelhams Timber Buildings

v Wilkins, Read (Claimant) [1971] 1 WLR 1197; [1971] 3 All ER 545 (CA).

12. A summary determination, being summary in nature, is only appropriate for clear cases to which summary judgment under Order 14 is applicable. The legal principles applicable to summary judgment under that order are also applicable to a summary determination under Order 17. Summary determination is therefore appropriate for cases which there is no material factual dispute and if there is a legal issue, then no more than a crisp legal question as well decided summarily as otherwise.The court must not embark on a mini trial on affidavits (my emphasis).

Rule 121 of the MCR, Cap.179A

29. Rule 121 of the MCR provides :-

“121. Inspection etc. of documents retained in court

(1) A party to any matrimonial proceedings or his solicitors or the Secretary for Justice may have a search made for, and may inspect and bespeak a copy of, any document filed or lodged in the registry in those proceedings.

(2) Except as provided by rules 47A(3) and 95(3) and paragraph (1) of this rule, no document filed or lodged in the registry, other than a decree or order made in open court, shall be open to inspection by any party without leave of the court, and no copy of any such document, or of an extract from any such document, shall be taken by, or issued to, any person without such leave.”

30.  The applicable legal principles under Rule 121 of the MCR, Cap.179A have been summarized by this Court in the earlier case of WSSA v SYH[2023] HKFC 94[6]. In a gist, the Family Court has the general power of control over access to documents within its custody in common law. The exercise of the inherent jurisdiction is subject to a balancing test in terms of weighing the relevant conflicting interests and rights[7] (see Secretary for Justice v FTCW & Ors [2014] 1 HKLRD 849, at §§16, 27-28 per Hon Lam VP (As he then was).

31.  There was no issue over Bank of China as the interpleading party in HCMP No.2099 of 2023, the only question to be considered was how the competing adverse claims of each of the Claimant(s) to be resolved.

32.  So much has been said on the applicable law and legal principles, including those on interpleader proceedings, I will move on to M’s case for her Rule 121 application.

Discussion

33.  Procedurally speaking, where a dispute arises which does not involve issues of fact but rather on matters of law or ascertainment of rights and status, the legal proceedings would be commenced by way of originating summons[8], petitions or in rare cases, by motion[9]. No pleadings are required for such originating process (unless otherwise directed). Parties’ evidence are uncontroversial and would generally be adduced in the form of affidavits/affirmations (including exhibits) without the deponent/affirmant testified on his or her credentials. The reliefs sought would normally take the form of declarations, rulings or determination on the subject matter before the court. Having said, interpleader proceedings are one of those categories where the parties’ (claimants’) making adverse claims whose priorities would be determined, and in most cases, determined summarily and thus relieving the interpleading party from risks of being sued by the claimants (see : DLA Piper v China Property, supra).

34.  Unless specific directions are granted for an interpleader issue to be tried with the “plaintiff” and “defendant” for such issue identified under Order 17 rule 5(1)(b) by the court hearing the interpleader proceedings, whereupon provisions on process of trial under Order 35 of the RHC, Cap.4A would apply to the trial of the identified interpleader issue as if it applies to the trial of an action[10].

35.  On the evidence before me with specific reference to the last Order dated 20 September 2024 in HCMP No.2099 of 2023, no directions were granted for an interpleader issue vis-à-vis 2^nd Claimant (M) and 8^th Claimant (F) to be tried. Moreover, there appeared to be no application by M for any interpleader issue to be tried in the forthcoming substantive hearing of the Originating Summons dated 8 November 2023. His Lordship set down the Originating Summons dated 8 November 2023 for substantive hearing and with a Directions hearing to be held no less than 28 days before the substantive hearing. At present, it is yet unknown whether M’s challenge of the 4 Legal Charges would be taken and dealt with as an interpleader issue or, as M had submitted throughout in the present application and spelt out in the terms of her Rule 121 Summons, to commence a fresh High Court proceedings with M as the plaintiff (and presumably with F as the defendant).

36.  Given M’s position was to contest the legality and/or genuineness of the 4 Legal Charges created by F, which are serious factual disputes and could only be resolved through a substantive trial proper brought under the a civil action with pleadings filed and exchange, the chargor’s (that is F’s) and the chargees’ (that is, other claimants’) credentials would then be tested under cross examination. Alternatively, directions might or could be granted for M’s challenge and contention to be tried as an interpleader issue preceding to or at the same time in the substantive hearing of the Originating Summons dated 8 November 2023. By then, there would also be directions on the filing of pleadings.

37.  In my view, unless and until pleadings are filed and exchanged, I am unable to carry out any “balancing test” (see Secretary for Justice v FTCW & Ors, supra) in terms of weighing the relevant conflicting interests and rights of the parties. It is legally and procedurally wrong for me to carry out the requisite “balancing test” in abstract in anticipation of a piece of “would-be” litigation (my emphasis).

38.  Regarding M’s specific purpose of the documents sought are for “advancing and/or defending the proceedings in HCMP No.2099/2023”[11], this is, with respect, misconceived. I failed to see how M would be able to articulate the forthcoming substantive trial of the Originating Summons dated 8 November 2023 with her case against F on the 4 Legal Charges executed by F in the absence of any pleadings, identified interpleader issue or other civil action yet to be commenced by her against F. The court must not embark on a mini trial on affidavits (see Nanyang

Commercial Bank Limited v The Personal representative of Vannee Nativivat, deceased, supra at paragraph 12) filed in the Interpleader Proceedings.

39.  Given the 4 Legal Charges are instrument(s) of deed executed and witnessed, they are as a matter of law presumed valid unless and until the contrary was proved through the legal process, be it under an interpleader issue to be tried or by a fresh civil action to be commenced. In whatever legal process, the burden of proving the contrary always rests with M.

40.  Turning to F’s apprehension of encroachment on the privacy of the child to unrelated parties[12] had M been allowed to use the documents in these proceedings in the Interpleader Proceedings where there are other claimants, this calls upon the exercise of a proper “balancing test” which could not be undertaken by me at this stage for those reasons I set out in the preceding paragraphs. Hence, I tended to accept F’s contention when the “balancing test” had not been conducted.

41.  F’s other contention and concern of violation of the privacy of the child, his mother and himself to other unrelated parties when the information contained in the documents sought by M in this application was entirely irrelevant to the interpleader relief (my emphasis)[13], I tended to agree.

42.  The relief under the Interpleader Proceedings was sought by the interpleading party Bank of China was determination of the priorities and respective entitlement of the 8 Claimants making adverse claims over the subject matter, that is, the net proceeds of sale of HK$12,122,071.55 and not the legality and genuineness of the 4 Legal Charges executed by F (8^th Claimant) which M (2^nd Claimant) now contended. The relief sought by the interpleading party and the reliefs intended (my emphasis) by M are apparently not the same.

Decision

43.  For all the above reasons, I decided that M’s application as per her Rule 121 Summons fails. Likewise, M’s request for the use of the Decision of Deputy Judge Jeffrey Li on the Injunction also fails.

Costs

44.  Given my decision against M on her application, I believe it is only fair and reasonable for her to bear the costs of F. Since F was unrepresented and this is a standalone application taken out by M, I decided to summarily assess F’s costs in the sum of HK$3,000.

45.  M’s own costs to be taxed in accordance with Legal Aid Regulations.

Orders

46.  I now grant the following Orders :-

(a)  M’s Summons dated 2 July 2024 be dismissed;

(b)  M to pay costs of the application, including all costs reserved (if any), to F and summarily assessed at HK$3,000;

(c)  M’s own costs be taxed in accordance with Legal Aid Regulations.

47.  This is a costs order nisi which would become absolute if no application to vary the same was filed within 14 days from the date of this Decision.

Applicant unrepresented, acting in person

Miss Fiona F.C. Chong instructed by Messrs. Stevenson, Wong & Co, Solicitors for the Respondent on instructions of the Director of Legal Aid

FCMP 67/2010

[2023] HKFC 31

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

________________

________________

________________

____________________

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

____________________

Foreword

1.  The Applicant is the father, whom I will refer to him as “F”.  I will refer to the Respondent mother as “M”.  The child in question born out of the wedlock is now at the age of 14 years whom I will refer to her as “N”.

2.  This is a piece of protracted litigation where there was 23 published Judgment(s) by the Family Court (“FC”), Court of First Instance (“CFI”) and Court of Appeal (“CA”) over the past 12 years.  F had also taken out Wardship Proceedings for N to be made a ward of Court under HCMP No. 929 of 2017.  In addition to the said 23 published Judgments, there was another round of 12 published Judgments in the Wardship Proceedings.

3.  Amongst the numerous decisions at different levels of the courts, this Court handed down a 78-page Judgment on Financial Provisions on 5/6/2015.  At the time of the Judgment on Financial Provisions, which I will refer to it as “5/6/2015 Judgment”, N was at the age of 7 and she is now at the age of 14.  The bitterly fought trial lasted for 6 days and F was ordered after trial to pay, inter alia :-

(a)  maintenance for N at the rate of HK$13,726 per month commencing 1/7/2014 and thereafter on or before the 1^st day

of each month until N reaches the age of 18 or ceases full time education, whichever is the later[1]; and

(b)carer’s allowance to M at the rate of HK$10,000 a month commencing from 25/10/2013 until further Order[2].

4.  Since the 5/6/2015 Judgment, F engaged in all other applications which could not be disposed of without a full blown trial and most of which, if not all, are followed by appeals on the court’s decisions.    Over the past 12 years of protracted litigation, M was legally represented most of the time on legal aid.  F instructed different reputable firms specialised in matrimonial practice and engaged different Senior Counsel, such as Mr Russell Coleman S.C. (as he then was), Mr Richard Todd K.C., Mr Paul Shieh S.C., Miss Anita Yip S.C., leading experienced junior counsel such as Mr Jeremy Chan in most of the substantive and lengthy hearings.

5.  However, for those recent applications in this Court, F was acting in person.

This Application and Chronology

6.  Around 7 years after the 5/6/2015 Judgment, M took out a Summons for upward variation of N’s maintenance and her carer’s allowance to such sum as this Court may deem fit and appropriate. I will refer to M’s Summons as “M’s VariationSummons”. M filed her 31^st Affidavit in support of her application.

7.  M’s VariationSummons was first heard on 8/7/2022 and was adjourned for a 2^nd hearing on 12/7/2022.  Such short adjournment came about as there was an urgent need for M to try and explore some sort of financial arrangement/settlement with F given the fact that the One Silversea Property where she and N was residing and solely owned by F had been re-possessed by the mortgagee bank due to F’s failure to pay the mortgage instalments.  The adjourned hearing on 12/7/2022 was further put back a few days to 15/7/2022 for the on-going negotiation.  However, at the end, no financial settlement/settlement could be reached.  M and the Child N was then under the fate of having to move out from One Silversea around the end of the month without the aid of any financial assistance from F, not to mention the arrears of N’s maintenance and M’s carer allowance which had been outstanding and unpaid since November 2020 (around 20 months by that time). M had taken garnishee proceedings which F contested the garnishee order(s) to be made absolute.

8.  At the hearing on 15/7/2022 following the unfruitful negotiation, directions were granted there and then for F to file his affidavit in opposition and both parties to file their respective Forms E on 29/7/2022.  M could then file her Affidavit in Reply (if any) on or before 5/8/2022, which was 7 days thereafter.  It was further directed that M’s VariationSummons would be disposed of on paper.

9.  M filed her Form E (in sealed envelope) on 29/7/2022 in compliance with the Order dated 15/7/2022 but F failed to do so.  By way of letter dated 18/8/2022 (without a Summons), F sought extension of time for him to file his affidavit evidence and Form E.  F repeated his requests by a further letter dated 19/8/2022 attached with some medical certificates.  Broadly speaking and quoting from his letter, F said he was suffering from “dizziness, nausea, panic attacks, shortness of breaths resulted by major depression and anxiety and also got rashes as additional symptoms” and needed more time to handle the documents.

10.  On 2/9/2022, this Court granted an extension of time on an “unless basis” up until 30/9/2022 (that is to say, another 28 days) for F to file his affidavit evidence and Form E and; in default of compliance, F would be debarred from filing any further documents (“unless order”).

11.  On 21/9/2022, F again by way of letter (without a Summons) sought further extension of time until end of October to file his affidavit evidence and Form E.  Such further and repeated letter of request was responded to by this Court on 28/9/2022 re-instating that the terms of the “unless order” dated 2/9/2022 stand.

12.  On 30/9/2022, F filed his 48^th Affidavit (“F’s48^th Affidavit”) which was a 31-page document containing 133 paragraphs together with 19 exhibits from “Exhibit 48-1 to 48-19”.  F did not file any Form E nor had he provided any reasons for not doing so.

13.  On 7/10/2022, M filed her 32^nd Affidavit in reply to F’s 48^th Affidavit”, which was 7 days after F’s 48^th Affidavit so allowed by this Court as per the Order dated 15/7/2022[3].

14.  On 26/10/2022, F suddenly produced his Form E and managed to “file” it at the Family Court Registry without leave of this Court or consent from M’s lawyers.

Other related factual background

15.  By way of further background to the above chronology, F defaulted in maintenance payment for N and carer allowance for M since November 2020 (which was about 20 months).  M was forced to take out garnishee proceedings on F’s bank accounts with Bank of China and HSBC, both applications were faced with F’s opposition to the respective garnishee order(s) nisi to be made absolute.  At the end, Judgment on the garnishee proceedings was handed down on 11/8/2022 whereby the respective garnishee order(s) nisi was made absolute.

16.  Faced with the mortgagee action taken by the Bank of China as mortgagee of the One Silversea Property under DCMP No.2538 of 2021 for recovery of possession, M took out injunctive proceedings to restrain F from disposing the net proceeds of sale of the One Silversea Property by the mortgagee bank.  It was anticipated that there would be around 8 to 10 million of the net proceeds of sale.  On 25/2/2022, M obtained an interim injunction which was still in place at the time of this Judgment and had yet to be further dealt with.

17.  It was worth to mention that the Court of Appeal (with Hon Cheung JA giving the Judgment[4]) under CACV No.84 of 2021 had granted a “Hadkinson Order” on 26/1/2022 in the latest appeal lodged by F.  The Court of Appeal allowed F to pay up N’s maintenance and M’s carer’s allowance by 28/2/2022. 

18.  However, prior to the expiry of the time for payment, F took out a Notice of Motion on 23/2/2022 seeking leave to appeal the “Hadkinson Order” to the Court of Final Appeal.  This application for leave to appeal was dismissed by the Court of Appeal on 12/7/2022 with costs summarily assessed at HK$104,992.  M’s own costs be taxed in accordance with Legal Aid Regulations[5].

Parties’ affidavit evidence

19.  F’s Form E was produced for filing on 26/10/2022 in defiance with the “unless order”.  In my decision, unless there was further time extension granted by this Court, which would only be granted on exceptional circumstances, F could not take the law to his own hands and chooses to “file” his Form E as and when he so wished or ready to do so.  That said, I would not accept or consider F’s Form E dated 26/10/2022 as evidence in respect of his means or ability to pay in his case of opposition to M’s Variation Summons.

20.  Having said, F would be left with his 48^th Affidavit as evidence for opposition in which he had included other areas of contention but most of which was not related to M’s variation application.  There are altogether 29 sub-headings in italics and underlined in F’s48^th Affidavit which I would set out hereunder solely for the sake of completeness since this application was disposed of on paper without any viva voce evidence.  The 29 sub-headings in italics and underlined are :-

(a)  Full Father’s Rights and Authorities;

(b)  No Stereotyping;

(c) Out of Proportion Legal Cost Claims – Appointment of Mr. Barry Leung, the Law Costs Draftsman;

(d)  I should not be excluded from the Child’s life and penalized with costs;

(e) Not just a maintenance variation up or down issue;

(f)  No supporting evidence and grounds for the Mother’s maintenance variation up;

(g)  The Mother made me unable to pay.  She showed did not have urgency for money;

(h)  No jurisdiction to force me to make borrowing or create debts directly or indirectly without verifications;

(i)  The highly obstructed access since mid-2015 and the very unreasonable “reasonable access” order made in late 2016 has distressed the Child out – False child abuse allegations;

(j)  Is it not infeasible and unsuitable for the Child live with me or my family members ?

(k) The Child has been distressed and scripted with threats to get mental disorders with her Mother;

(l)  The Mother did not need to rely on maintenance variation up when she deprived most of my access since 2015 but suddenly in 2022;

(m)  My Mother’s Kowloon Tong residence and domestic helpers;

(n)  The Mother is a wealth princess;

(o)  Car and club memberships;

(p)  The Care and Control & Custodian Quality;

(q)  The financial matter should be resolved once for all on clean cut (break) basis;

(r) Fair financial treatment and planning;

(s) Unrealistic carer’s allowance;

(t)  I am always nice to the Child to a level that the Mother would be so jealous and vexatious of;

(u)  I will not just walk away after the clean break;

(v) I did nothing wrong to be nice to the Child and to be very helpful for her needs;

(w)  The Mother’s obstructions and dishonest acts aiming for retaliations and discharging her hatred must be stopped;

(x) Strong Greed;

(y) The Child is independent enough;

(z) The Mother could raise and prepay a large amount of money;

(aa)  The Mother has long known my only property needs to do refinancing or the mortgage bank would take possession of the property and the Child stability would also be affected;

(bb)  The Mother refused and rejected all possible solutions to resolve the financial difficulty but putting all blames to the Father;

(cc)  The Father has been pushed to the dead end.

21.  Going through each of the paragraphs in F’s 48th Affidavit and given them careful consideration, F’s grounds of opposition insofar as M’svariation application was concerned (emphasis added), could be summarised as follows :-

(a)  Appropriateness of M’s application without notifying the Court of First Instance whilst N was being made a ward of the Court or via the Official Solicitor who represented N’s interests (seeparagraph 17).

(b)  Lack of quantified amount for N’s maintenance and M’s carer allowance.  It was unfair to him since M does not have to take up any financial responsibility for her own expenses (seeparagraph 18).

(c)  Unfairness and injustice for him to pay upon M’s speculations and fabrications without supporting evidence (see paragraph 19).

(d)  Net proceeds of sale of the One Silversea Property had to be used for paying his debts and for financial planning for N (see paragraph 23).

(e)  The money borrowed by F for paying N’s maintenance and the mortgage instalments of One Silversea Property had been “frozen” by M’s garnishee order(s) (see paragraph 24).

(f)   Apart from N’s monthly maintenance and M’s carer allowance, F had been paying N’s school fees, school expenses, medical fees and other expenses. Hence, it could not be said that N did not have enough for food.  M had neglected that she also had to bear financial responsibilities for N, not only her own expenses (see paragraph 34).

(g)  A holistic approach, with the involvement of the Official Solicitor, should be adopted to resolve all financial issues once and for all to achieve a “clean break” outcome on finances (see paragraphs54 and 55).

(h)  F’s net assets and liabilities should be prudently calculated or assessed.  The current situation of locking up the One Silversea Property has shown to be a big mistake (see paragraph 55).

(i)   It is safer to put aside a defined sum of money to be managed by the Official Solicitor or the Social Worker or the Court (seeparagraph 60).

(j)   Removal of M’s carer allowance (see paragraph 61).

(k)  M has earning capacity as much as HK$27,000 a month (see paragraph 62).

(l)   M has been spending N’s maintenance more on her own illegitimate uses rather than spending for N’s needs (see paragraph 68).

(m)  M was not trustworthy for managing N’s finance and that maintenance should be transferred directly to N (see paragraphs 77 and 80).

(n)  M was able to make prepayment for over a million dollars in the past when she claimed maintenance and HK$331,783 for renovation costs (seeparagraph 82).

(o)  F’s medical doctors opined that a holistic clean break approach on financial matters would help his major depression recovery and also avoid his mental conditions further harmed (seeparagraph 89).

(p)  F’s not understanding why his variation of maintenance application was stayed for a long period of time whilst M’s variation of maintenance application, which came later than his similar application, was dealt with immediately and also not allowing him to submit his court note while the same arrangement does not apply to M (see paragraphs 92 and 93).

22.  M in her 32^nd Affidavit[6] in reply said F had referred to all sorts of irrelevant matters in his 48^th Affidavit.  M categorized her reply under the following areas :-

-  Reasonable needs of N;

-  Urgency of needs;

-  Increased costs of living;

-  My medical expenses;

-  F’s ability to pay;

-  My financial means;

-  Litigation conduct.

Paper Disposal

23.  Before considering each of F’s grounds of opposition, it is important to say a few words on the use of “paper disposal” in this application which was commonly seen nowadays in the Family Courts.  Given the need for expediency of court proceedings encompassed by the spirit of the Civil Justice Reform, Practice Direction No.37 was issued on 20/5/2022 to regulate the time frame for judgments reserved after conclusion of a hearing to be handed down. 

24.  For cases where there was substantial dispute of facts, paper disposal may not be appropriate as the parties’ credentials over their affidavit evidence or witness statements could not be determined without their testimonies fully tested through cross examination at the substantive trial.  However, for cases where the issue(s) before the court are simple and straight forward which could be resolved without depending much upon the parties’ credentials, paper disposal of those issue(s) could be adopted in order to achieve expediency and/or for saving costs.  The use of “paperdisposal” is always within the court’s discretion exercised under its case management powers to regulating proceedings. The only caveat when exercising such discretions is that all parties should be afforded fair and equal chance of submitting their evidence in accordance with established rules of procedure.

25.  Paper disposal had been used by this Court for resolving F’s opposition to M’s garnishee order(s) nisi to be made absolute.  There was disagreement from F for paper disposal suggested by M’s lawyers[7].  Given the simple nature of the matter to be resolved, namely, the making of garnishee order(s) nisi absolute, and the need for expediency arising from the circumstances, namely, that F had defaulted in paying N’s maintenance and M’s carer allowance since November 2020, paper disposal was considered to be the appropriate mode for determining the issue of whether the garnishee order(s) nisi should be made absolute.  The full Judgment was handed down on 11/8/2022[8].   

26.  For the present application, the issue(s) before this Court as per M’s Variation Summons was whether N’s maintenance and/or M’s carer allowance, both of which was determined 7 years ago under the 5/6/2015Judgment, need to be re-visited now, be it upward or downward.   As a matter of fact, it was F who first saw the need to re-visit the amount of N’s maintenance and M’s carer allowance by filing his Summons on 5/10/2021 for variation downward of those money orders and also seeking to “withdraw” certain undertakings given by him on 12/6/2014.  Undisputedly, M’s Variation Summons was only filed on 6/7/2022 which was some 9 months after F’s Summons for variation.

27.  However, F’s Summons for variation was not proceeded further and was adjourned sine die with liberty for F to restore it for hearing pending

the Official Solicitor’s Report on F’s mental condition for the fact that F had persistently claimed to have been suffering from mental conditions[9]. The Official Solicitor’s Report was available on 11/1/2022, which was about 6 months before M’s Variation Summons dated 6/7/2022 was issued.  The Official Solicitor gave the view that F should be entitled to self-determination and appointment of next friend was considered unnecessary[10].

28.  Despite the availability of the Official Solicitor’s Report and the views therein, F did not restore his Summons for variation before the closing time for submission of evidence to dispose of M’s VariationSummons, the expiry date being 30/9/2022 so directed by this Court’s “unless order”.  As at 30/9/2022, F had not even filed his Form E ordered by this Court for the purpose of M’s VariationSummons nor had he applied to restore his own Summons for variation.  At that time, it remained a complete mystery as to whether F would be filing his updated Form E; and if so, when would he file it ?  Besides, F’s stance in respect of restoration his Summons for variation was also unknown.

29.  In such circumstances, paper disposal of M’s Variation Summons was considered reasonable and necessary. 

F’s grounds of opposition

30.  Amongst the 133 paragraphs in F’s 48^th Affidavit, there are about 18 paragraphs that had been extracted under (a) to (p)[11] above might bear some relevance to F’s grounds of opposition.  The other paragraphs in the 48^th Affidavit referred to other matters such as some historic events over the years, F’s personal views, perceptions or grievances[12] of these proceedings, F’s complaints over M’s handling of access, F’s financial situation should not be stereotyped by his place of residence in Kowloon Tong or his possession of club memberships, so on and so forth.  F also included his criticisms against the Court of Appeal when conducting the hearing for the “Hadkinson Order” where he alleged that he was being unfairly treated[13].

F’s 18 paragraphs of opposition grouped under (a) to (p)

31.  I will now deal with each of those 18 paragraphs by referring to the alphabetical paragraphs (a) to (p) in sequence.

32.  On (a), the submission of informing the Court of First Instance or seeking the variation of maintenance via the Official Solicitor as N was being made a ward of the Court was a complete non-starter and unheard of.  There was no such requirement, statutory or otherwise, for so doing as submitted by F.

33.  On (b), the lack of quantified amount of maintenance for N or the carer allowance for M would not, in my decision, render M’s variation application otiose.  Although there was no quantified amount stated in M’s VariationSummons per se, M in her 31^st Affidavit in support of the variation application clearly stated 2 major areas of financial needs under :-

-  Loss of accommodation for N (see paragraphs 7 to 18); and

-  Care arrangement of N (see paragraphs 19 to 23).

34.  Without having had to refer F back to the mortgagee proceedings taken out by Bank of China over the One Silversea Property where M and N were residing after the 5/6/2015 Judgment, the loss of accommodation for M and N at the One Silversea Property was something imminent and determined to happen to the knowledge of F.  Although once there was some discussions between F and M’s lawyers to “rescue” the dilemma, all efforts made were unsuccessful at the end.  In F’s case, he said he had proposed that N could reside with him at the Kowloon Tong property after re-possession of the One Silversea Property and he had no strong objection for M to move in there as well.

35.  The 5/6/2015Judgment provides, inter alia, that the One Silversea Property be settled on trust for the use and benefit of N with M as the carer until N reaches 18 or ceases full time education, whichever is the later, with reversion to F. 

36.  The 5/6/2015 Judgment does not provide for N, with or without being accompanied by M, to live at F’s place of residence at Kowloon Tong as F had been offering.  With the One Silversea Property being re-possessed by Bank of China as a result of F’s default on mortgage payments, it would only be fair and proper for F to arrange and pay for alternative accommodation for N commensurate with the standard of living at One Silversea Property in order to comply with the 5/6/2015 Judgment on N’s accommodation needs.

37.  As at the date of M’s Variation Summons which was taken out in July 2022, M and N were still living at the One Silversea Property although vacant possession was required to be delivered to Bank of China in a couple of weeks’ time.  M in her 32^nd Affidavit in reply filed in October 2022 said she and N had already moved to a new address rented by her commensurate with the One Silver Property and produced some relevant documents as proof of evidence.  In my decision, M had quantified the amount of maintenance increase in her 32^nd Affidavit in reply although such quantified sum was yet to be known at the time of issuing M’s Variation Summons.

38.  F’s other contention that it was unfair to him that M does not have to be responsible for her own costs of living was misconceived.  Such contention rests upon an erroneous assumption that the carer’s allowance awarded to M under the 5/6/2015 Judgment had been spent by M on her own expenses.  There was no evidence before the Court for such assumption except F’s assertion.

39.  On (c), F was repeating his contention about lack of documentary evidence from M to support her variation application.  F said M had been fabricating and speculating far-fetchingly in order to make him pay more money than what was actually required by N.

40.  F’s contention must be considered within proper context and not in abstract or broad-brushing.  It would only be correct for F to say M was fabricating or speculating expenses had M requested for a specific amount (emphasis added) whilst she was unable to provide documentary evidence to support or justify the amount she was claiming. This was not what had happened here.  M was simply seeking variation upward to such amount (emphasis added) which the Court may deem fit and proper. The Court in every variation application would have to consider not only parties’ evidence, needs and ability to pay, and in appropriate cases, may even consider the matter afresh[14]. That said, the Court could and would also consider the circumstances which had arisen that lead to the variation application. 

41.  There was no dispute that F himself also saw the need to re-visit the amount of N’s maintenance and M’s carer allowance which was decided at the time when N was only 7 years ago. At present, which was 7 years later, N is now at the age of 14.

42.  Whilst the parties’ stance as to variation are at sharp difference, there was the common view that it was the right time to re-visit what was decided 7 years ago, be it an upward or downward variation, given the time that had elapsed and all possible change of circumstances that had happened including N’s needs after 7 years.        Hence, there are cross applications for variation although running in opposite and not in parallel before this Court.

43.  On (d), F’s submission on his intended or planned use of the net proceeds of sale of the One Silversea Property could hardly be accepted as ground of opposition to M’s variation application.

44.  On (e), F’s submission of the funds that he had borrowed were “frozen” by M’s garnishee proceedings could not be accepted as ground of opposition to M’s variation application.  M was actually exercising her legitimate right of enforcement to recover unpaid judgment sum(s).

45.  On (f), F was attempting to classify and quantify each item of expenses that was required by N and his payment of them.  This would only be a live issue to be considered upon F’s variation application.  Given the fact that M was only seeking to vary upward N’s maintenance generally (emphasis added) without specifying what particular item of expenses that need to be varied, it is superfluous to drill into each and every item of N’s expenses to see whether F had paid them or not.         Hence, such submission could not be taken as ground of opposition to M’s variation application at this stage.  Given that F did not restore his application on time to catch up with M’s variation application, it would be highly unfair and improper to take such contention on board as a ground of opposition at this stage.

46.  On (g) and (h), F was only stating his views and wishes for global resolution of N’s maintenance rather than putting forward any ground of opposition.

47.  On (i), F was again stating his views on arrangement rather than putting forward any ground of opposition.

48.  On (j), F’s submission would only be considered in his variation application rather than taking it as his ground of opposition at this stage.

49.  On (k) and (l), there was no evidence to support F’s assertions.

50.  On (m), F was again stating his views rather than putting forward any ground of opposition.

51.  On (n), M’s past financial means, even if that was the case as F had said, could not be taken as her present financial position for determining her variation application.

52.  On (o), F’s submission of his doctors’ opinion could not be accepted as ground of opposition.

53.  On (p), F referred to his comments on M’s care and control of N in the past.  The medical certificates referred to in paragraph 49 as Exhibit 48-9 are all dated back to 2013 and 2015 which had already been considered in the earlier decision on custody, care and control.                  None of them could be taken as ground of opposition at this stage (emphasis added).

54.  For all the above reasons, I find F was unable to put forward any legitimate grounds of opposition to M’s variation application.

55.  Accordingly, I decided that N’s maintenance and M’s carer allowance under the 5/6/2015 Judgment would be re-visited.

The Variation

56.  M filed her updated Form E on 29/7/2022 in compliance with the Order dated 15/7/2022[15].         Since F did not file his Form E at that time but only chose to do it later, M’s Form E was enclosed in a sealed envelope in accordance with the Practice Direction.  As said earlier, F’s updated Form E was only filed on 26/10/2022 in defiance of the “unless order” and without obtaining further time extension from this Court or consent from M’s lawyers.  F’s Form E would not be considered.

57.  Having said, without mutual exchange of updated Forms E between F and M, it may not be proper for this Court to just rely upon M’s updated Form E to work out the amount for the variation when F did not have the chance of reading M’s updated Form E despite such bizarre situation was wholly created by F.

58.  Given such situation, I decided to work upon the amount for the variation by referring to the facts set out in M’s 32^nd Affidavit in reply and cross reference to the 2 major areas of financial needs stated in her 31^st Affidavit.  I understand that both Affidavits had been properly filed and served upon F.

59.  On accommodation needs, M and N had now moved to a newly rented apartment of commensurable size to One Silversea at the rental of HK$22,000 a month since 1/9/2022.  M had paid 2-months’ rental as deposit, estate agent commission at HK$11,000, moving costs of HK$6,600 and set-up costs of not less than HK$5,500 which M labelled them collectively as “One-Off Expenses”[16] all of which are well documented.  The “One-Off Expenses” added up to HK$67,100.  The rent paid so far since 1/9/2022 (commencement of tenancy) including the rental payment fall due on 1/2/2023 was 6 months totalling HK$132,000 (HK$22,000 x 6 months).

60.  The total sum of the “One-Off Expenses” and the rental paid added up to HK$199,100 (HK$67,100 + HK$132,000).

61.  I have reminded myself that F was not legally liable to pay M’s contractual liabilities such as rental under the Tenancy Agreement that she had signed for the newly rented accommodation.  However, since M is the custodian parent and carer of N who had been forced to leave the One Silversea Property, and that N is a minor not capable of signing the related Tenancy Agreement, I accept and find that the rental liability for the newly rented apartment was incurred by M for the use and benefit of N although M would also have to live in there to take care of N, which was the same situation when both of them were residing in the One Silversea Property.

62.  I do not intend to apportion or crave out M’s share of the rental payment of HK$22,000 for her own use and occupation given the fact that there was no such finding of apportionment in the 5/6/2015 Judgment on M’s share or portion of the accommodation expenses. I accept and find that such rental expenses, being the accommodation needs of N in place of the One Silversea Property, should be taken as part of N’s maintenance in the round and to start from 1/9/2022. 

63.  For the other items under the One-Off Expenses, namely, rental deposit, estate agent commission, moving costs and set-up costs, in respect of which the rental deposit was a refundable item, they would not be taken as N’s maintenance although they might be categorized as payments for the “immediate and non-recurring” needs of N defined under Section 10(2)(a) of the Guardianship of Minors Ordinance, Cap.13.  As there was no such claim for reimbursement in M’s Variation Summons, they would not be considered in this application.

64.  On N’s monthly periodical maintenance of $13,726, it was assessed upon M’s evidence and Form E filed back in 2015 by going through those items of expenses in her Form E.  M’s carer allowance of HK$10,000 per month was likewise assessed.   

65.  There was no definitive amount of increase sought by M in her Variation Summons.  Although M had filed her updated Form E on 29/7/2022 which must have set out the latest expenses that are incurring for N, it was unfortunate that such updated Form E could not be considered in this application for the reasons aforesaid[17].  In my decision, it would be fair and reasonable for the original amount for N’s maintenance to continue forthe time being (emphasis added) and top up with the additional sum of HK$22,000 of rental expenses, thus making the sum of HK$35,726 (HK$13,726 + HK$22,000) a month for N’s expenses. 

66.  On M’s carer allowance, the situation is the same as in N’s case.  I decided that for the time being (emphasis added), the amount of M’s carer allowance of HK$10,000 shall continue.

67.  As repeatedly said in this Judgment, the original amount of HK$13,726 and HK$10,000 per month respectively for N’s maintenance and M’s carer allowance was decided 7 years ago.  If one is to take into account the time factor that had elapsed and the inflation factor for 7 years since 2015, let alone any other factors stated in M’s latest Form E, it was likely and more probable than not that an increase in both amount would be justified. 

68.  Maintaining the original amount for the time being (emphasisadded) poses no injustice or prejudice to the parties since variation applications could be lodged from time to time during subsistence of the financial order(s) under the 5/6/2015 Judgment whenever there was any change of circumstances, objectively speaking.

Conclusion

69.  For all the above reasons, I concluded that, for the time being (emphasisadded), N’s maintenance be varied to HK$35,726 a month and M’s carer allowance to continue at HK$10,000 a month.

70.  The varied sum of N’s maintenance of HK$35,726 to start from 1/9/2022.

Costs

71.  M had failed in varying her carer’s allowance but only succeeded in varying N’s maintenance.  However, judging M’s variation application in the round and in context, it was F who had failed to file and serve his Form E within the original timeframe of 29/7/2022 and further by his defiance with the extended time given to him under the “unless order”.  This had led to M’s Form E, which was filed on 29/7/2022 in full compliance with the original court order dated 15/7/2022, could not be considered by this Court on reason of procedural fairness and justice to F.

72.  Hence, it would be wholly unjust and unfair that M could not have her costs of this application through no fault of her own.  And I will so order accordingly.

Orders

73.  I now grant the following Orders :-

(1)There be a variation of the maintenance for N from HK$13,726 to HK$35,726 per month commencing from 1/9/2022 until N reaches the age of 18 or ceases full time education, whichever is the later, or until further Order;

(2)M’s carer allowance of HK$10,000 per month to continue until further Order;

(3)F do pay to M all the costs of and incidental to M’s Variation Summons, including all costs reserved, to be taxed if not agreed;

(4)M’s own costs to be taxed in accordance with Legal Aid Regulations.

74.  This is a costs order nisi which would become absolute if no application to vary the same was made within 14 days from the date of this Judgment.

[2022] HKFC 161

FCMP 67/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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D E C I S I O N

(Garnishee Order Absolute : By Paper Disposal)

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Foreword

1.  This is a piece of protracted litigation where there was over 22 Judgment(s) handed down by the Family Court (“FC”), Court of First Instance (“CFI”) and Court of Appeal (“CA”) over the past 12 years.

2.  The Applicant is the father, whom I will refer to him as “F”. I will refer to the Respondent mother as “M”. The child in question is now at the age of 13½ years whom I will refer to her as “N”.

3.  On 12/6/2014, this Court granted an Order[1] which contained the following undertakings (“the Undertakings”) by F :-

“AND UPON the Applicant undertaking to the Respondent and to the Court that he shall pay for all the Minor’s school fees, school bus, school uniform, school books and stationery so long as they are reasonable and deemed necessary by the school with school books and stationery to be initially paid by the Respondent in respect of which she will be repaid on reimbursement basis within 14 days from the Respondent’s production of receipts.

AND UPON the Applicant undertaking to the Respondent and to the Court that he shall bear all reasonable costs of extra-curricular activities arranged by the Respondent provided that the total costs of such activities shall not exceed HK$4,000 per month, such costs to be initially paid by the Respondent in respect of which she will be repaid on a reimbursement basis within 14 days from the Respondent’s production of receipts.”

4.  On 5/6/2015, this Court granted an Order[2] after trial on financial provisions (“Maintenance Order”) which contained, inter alia, the following :-

“2. Subject to full reimbursements by the Applicant to the Respondent as per the Undertakings dated 12 June 2014, the Applicant do pay the Respondent the sum of HK$140,140.61 as reimbursement of expenses incurred for the Minor for the period from May 2009 to June 2014 within 14 days from the date of the Judgment dated 5 June 2015.

3. Subject to any payments already made under the Interim Maintenance Order dated 7 November 2013, the Applicant do pay to the Respondent periodical payments for the maintenance of the Minor at the rate of HK$13,726 per month commencing from 1 July 2014 and thereafter on or before the 1^st day of each succeeding month until the Minor reaches the age of 18 of ceases full time education, whichever is the later.

4. ……

5. The Applicant do pay to the Respondent carer’s allowance at the rate of HK$10,000 a month commencing from 25 October 2013 until further Order.

6. ……

7. The Applicant’s undertakings dated 12 June 2014 do stand until further Order.

8. Extra-Curricular Activities expenses for the Minor arranged by the Respondent in excess of HK$4,000 to be equally shared by the Applicant and the Respondent.”

The 1^st Garnishee Proceedings

5.  On 19/3/2020, M filed her 26^th Affidavit as an ex parte application for garnishee proceedings in respect of F’s bank accounts with HSBC (“HSBC”) and Bank of China (“BOC”) for recovery of the sum of HK$181,773.90 together with interest in the sum of HK$15,803.30 accrued thereon up to 18/3/2020 and further interest to be accrued until date of payment together with costs of the garnishee proceedings.

6.  On 19/5/2020, this Court granted 2 garnishee order(s) to show cause[3] ordering F and the respective garnishee(s) to attend court on 6/7/2020.

7.  On 6/7/2020, Deputy Judge To granted the following order upon F’s undertaking to pay 2 sums within 7 days after F’s garnisheed account(s) being unfrozen, namely, (a) HK$7,144 representing N’s school fees and related school expenses for the school term starting in September 2020; and (b) HK$22,000 being undisputed amount under the garnishee order proceedings. The learned deputy judge then ordered[4] :-

“1. The issue arising from the Applicant’s liability to pay under the undertakings as set out in the Order dated 12 June 2014 be transferred to Court No.3 for further directions on 9 October 2020 at 9:30 a.m. with 30 minutes reserved;

2. ……

3. The Garnishee Order to Show Cause granted on 19 May 2020 be set aside with costs reserved to be dealt with upon the hearing in Paragraph 1 above.”

8.  On 9/10/2020, this Court made no Order as to costs of the said garnishee order(s) to show cause proceedings. F to pay the costs of the hearing of that day and that M’s own costs be taxed in accordance with Legal Aid Regulations[5].

The 2^nd Garnishee Proceedings

9.  On 16/10/2020[6] and 28/10/2020[7], M filed her 27^th and 28^th Affidavits respectively as ex parte application(s) again for fresh garnishee proceedings in respect of F’s bank accounts with HSBC and BOC for the total sum of HK$289,111.00 together with interest to be accrued under the Undertaking(s) dated 12/6/2014 and the Maintenance Order dated 5/6/2015.

10.  On 17/11/2020, this Court granted 2 garnishee order(s)[8] to show cause ordering F and the respective garnishee(s) to attend court on 23/2/2021.

11.  Due to public health concern arising from the Covid-19 pandemic, the hearing on 23/2/2021 was re-scheduled by the learned deputy judge to 20/4/2021.

12.  On 20/4/2021[9], Deputy Judge To ordered that the 2 garnishee order(s) to show cause be adjourned to 7/10/2021 at 10:30 a.m. for substantive argument with 1 day reserved. Leave was granted for F to file Affidavit in Opposition and consequential leave for M to file Affidavit in Reply, if any.

13.  F filed his 46^th Affidavit in Opposition[10] where he also referred to his 45^th Affidavit filed earlier when he opposed M’s 1^st Garnishee Proceedings.

14.  M filed her 29^th Affidavit in Reply[11].

The substantive hearing on 7/10/2021

15.  At the hearing on 7/10/2021, F turned up unrepresented and sought an adjournment of the trial. F first submitted that he had just applied for legal aid and was awaiting the outcome of his application. He further submitted that he was suffering from Depression, Anxiety and Insomnia and referred the Court to some historic medical records[12]. H said he also suffered from other chronic disease and had psychiatric issues causing him unable to focus on the matter.

16.  Besides, he said he did not receive complete set of documents from his previous lawyers Messrs. Chan & Chan except some loose sheets of the Trial Bundles. He still owed Messrs. Chan & Chan legal costs. He gave the reason for the late application for legal aid was that his previous lawyers only told him the amount of legal costs and Counsel fees required of in order to continue representing him just a few dates before this trial. He found that he was unable to afford and then applied for legal aid.

17.  Upon hearing F’s submission, M’s lawyers agreed to provide F with another complete set of the Trial Bundles upon F’s agreement to pay the prescribed photocopying charges. This Court decided to adjourn the trial to 17/11/2021, which coincidentally was 43 days later, for F to prepare his case.

18.  It was also confirmed with both parties that there would not be any viva voce evidence at the substantive trial and that parties would confine to their affirmation evidence filed and also the written submissions provided and exchanged. It was also directed that no further Affirmation or Submissions could be filed by either party unless otherwise directed by the Court.

The adjourned hearing on 17/11/2021

19.  F appeared in person. He sought a further adjournment for about 3 months as he expected by then his legal aid application would be decided. As a matter of fact, F had sent in a letter dated 12/11/2021 (copied to M’s lawyers) setting out his request for adjournment. In essence, he repeated his earlier reasons about his physical condition and mental illness and submitted that he was unable to handle the case without legal help. He referred to 2 medical certificates back in August and October 2021 and also photographs showing the medication/prescription that he was taking each day all of which would cause him drowsiness.

20.  At this hearing, F suggested that the trial could be conducted in trunks of, say, an hour or less in a day until it finishes for the reason that he could not sustain a whole day trial continuously in Court and also without legal assistance. M’s lawyers Miss Chow opposed F’s second adjournment. Given F’s situation, Miss Chow came up with another suggestion for the trial to be disposed of on paper given that the issue in dispute does not involve findings of fact or parties’ credentials and there would not be any viva voce evidence from the parties.

21.  F opposed to the suggestion of disposal on paper. F requested for an oral hearing for him to clarify physically in Court on those matters raised by M and, whenever appropriate, he would elaborate his case by way of oral submissions.

22.  The suggestion of the trial to be disposal of on paper was accepted. However, given consideration to F’s submitted physical condition and in particular, mental illness, this Court directed the Official Solicitor to carry out investigation over F’s mental condition and produce their Report before 22/12/2021. Such arrangement was warranted and fair to F in order to ensure that his 46^th Affirmation evidence (17 pages with 59 paragraphs) (even though it was prepared by his then lawyers) was upon clear instructions given whilst he was mentally capable to do so. This would also serve the same purpose over his written submissions dated 6/10/2021 (10 pages with 49 paragraphs) prepared by himself.

23.  It was noted that F had filed a Summons seeking variation of the Maintenance Order which was scheduled for a call-over hearing to be heard on 13/12/2021.

24.  Given the need of the Official Solicitor’s assistance and Report over F’s mental condition, F’s Summons for variation of the Maintenance Order was accordingly adjourned sine die with liberty to restore by F pending outcome of the Official Solicitor’s Report.

The Official Solicitor’s Report

25.  On 15/12/2021, the Official Solicitor applied for an extension of time to produce their Report on or before 1/3/2022. The requested time extension was granted by the Court.

26.  On 11/1/2022, the Official Solicitor produced their Report which contained the following conclusion :-

“Conclusion

In light of the available medical findings and subject to the Court’s decision, we are of the view that the Applicant should be entitled to the right of self-determination and it may not be necessary or appropriate to appoint a next friend for him in the proceedings.

In the circumstances, we consider that this case could continue to proceed. If it is considered that a legal representative is required, it is suggested that the Applicant may instruct a solicitor on private basis or apply for legal aid.”

F’s Legal Aid Application

27.  On 27/1/2022, the Legal Aid Department issued the Memorandum of Notification where F’s application for legal aid was refused.

The Hadkinson Order under CACV No. 84/2021

28.  On 26/1/2022, which was just the day before F’s legal aid application for contesting these proceedings was refused, the Court of Appeal handed down its decision[13] on M’s application for a “Hadkinson Order” to be made in respect of F’s intended appeal against the decision of Madam Justice B. Chu on 3/2/2021 whereby F’s application for custody, care and control of the child N was dismissed after a lengthy trial.

29.  The two orders in respect of which M invited the Court of Appeal to require F to comply with before F’s was to be allowed to proceed with his intended appeal aforesaid are actually the Undertakings dated 12/6/2014 (where undertakings to pay extra-curricular activities are now in dispute) and the Maintenance Order dated 5/6/2015 (where payment of extra-curricular activities arranged by M are now in dispute).

30.  In the 22-page Judgment, the Court of Appeal found :-

(a)  F was in contempt/deliberate and continuing breach of the 2 orders of this Court[14]; and

(b)  There was impediment to justice[15].

31.  That said, it is informative to refer to some important findings of the Court of Appeal on their determination of F’s conduct.

32.  At paragraphs 37 and 39 of the Judgment where it was said :-

“37. The Father is in breach of the two orders by which he either undertook or was required to pay the specific sums. He has only made partial payments. His conduct is a cynical disregard of his obligations under the two orders. Plainly, he is in contempt and the contempt is deliberate and continuing. He said he is not liable to pay the ECA expenses sought by the Mother but there is no defence to his liabilities to pay N’s maintenance and the Mother’s carer allowance. He had not disputed that he is so liable and had, in fact, admitted at this hearing that he is liable.

38. …….

39. The Father said he was unable to pay the money. This is clearly not justified. He had until recently, for this application, instructed a team of lawyers which included an experienced specialist counsel and junior counsel. Judge Own in his decision of 23 September 2020 also referred to the names of prominent senior counsel that the Father had previously instructed in the proceedings between the parties. The Father said he has to rely on borrowing from friends and relatives to finance his litigation but the loans which according to the calculation by the Mother amounted to $5.8 million were apparently advanced to him without any security. The Mother stated, according to the Father’s own evidence, since 1 October 2020, when he ceased to pay N’s maintenance and the Mother’s carer allowance altogether, he had borrowed $1.9 million, from which he paid $300,000 to his solicitors, on 1 March 2021. This is to be compared with the total outstanding sum for N’s maintenance and the Mother’s carer allowance as of that date which was only $172,356 (excluding interest). This belies his claim that he is concerned with the well-being of N and has to instruct prominent lawyers to fight for her. This is another example of someone who stopped the payment for reason of parsimony rather than principle. Further, it is clear that the Father has the capacity to borrow to finance his expenses.

33.  Further, at paragraph 43 of the Judgment as to the finding of impediment to justice where it was said :-

“43. In our view, the Father’s breach to pay under the two orders impedes the course of justice. The history of this case shows the difficulty in enforcing the two orders which the Father has chosen to ignore. Although the Mother is legally aided, she requires the maintenance and allowance for N and herself. The Father has no defence to the payment of these sums. We agree with Mr. Surman that the Father’s non-payment has a very considerable and detrimental impact on N – her education and her general well-being and it obstructs the exercise of the Court’s quasi-parental powers over N who is a ward of the Court. The Father has a moral and legal obligation to discharge his obligations. Further, the costs incurred in these proceedings are totally out of proportion to the money at stake.”

34.  I have reminded myself that the above findings of the Court of Appeal should not be affecting F’s case of defence in the present dispute. The above reference was, however, brought upon in this decision only because it touched upon the Undertakings and the Maintenance Orders of this Court which F was now contesting his liability to pay the extra-curricular expenses which M had spent on the child N.

F’s defence

35.  F in his 46^th Affirmation in opposition, where he also referred to his 45^th Affirmation filed earlier in respect of M’s 1^st garnishee proceedings, raised no issue that a substantial part of N’s maintenance and M’s carer’s allowance under the Maintenance Order were outstanding due to his dire financial condition. F plainly admitted that the main issue or dispute in the present case was the expenses for the item of extra-curricular activities “ECA” under the Undertakings and Maintenance Order.

36.  F’s contentions set out in his 46^th Affirmation, insofar as they relate to the expenses of extra-curricular activities, can be analysed and grouped under 3 areas :-

-  Expenses by definition within school curriculum and not involving development of N’s other potentials extra to the subjects covered by school are not “ECA” expenses. F had used the terminology “Illegitimate Items” in his 46^th Affirmation;

-  Expenses claimed with no original receipts produced;

-  Expenses spent without first consulting him or with his prior consent being obtained.

37.  It was noted that F had included in his 46^th Affirmation at different paragraphs a number of criticisms against M and other contentions, the bulk of which are unrelated to the present issue in dispute. Hence, those criticisms and contentions would not be canvassed in this Decision. The contentions included, inter alia, N’s performance at school and N’s mental well-being, M overloading N with unnecessary homework and tuition classes, N’s academic ranking in her primary school studies so on and so forth. There are also lengthy paragraphs on his own health and financial condition; his attitude towards overpaying N’s expenses and some others.

38.  Oddly, F even went further to submit that neither the Undertakings nor the MaintenanceOrder required him to pay management fees and government rent of the One Silversea property which was adjudged to be settled on trust for the use of N and the carer M (i.e. mother). F submitted that the management fees and government rent totalling around $5,000 per month adding up to around $255,000 should offset the amount which he needed to pay M or that M should pay him back the management fees and government rent since April 2017 when possession of the One Silver Sea property was delivered up by him[16].

39.  On his 1^st contention as to the definition of “ECA”, F submitted that he had consulted Social Welfare Department, Hong Kong Welfare Society, Caritas Family Services and the Hong Kong Education Bureau[17]. He was told that homework and tuition classes are not ECA and thus M should not have claimed homework and tuition classes as “ECA” of which he should not be liable to pay under the Undertakings or the MaintenanceOrder.

40.  On his 2^nd and 3^rd contentions, F submitted that M did not allow him to observe or visit those ECA activities thus giving him no chance to see the value of those activities. Besides, the homework and tuition classes were held at home with no interaction between N and her peers for any social life involvement[18].

41.  At paragraph 57 of his 46^th Affirmation, F made his own arithmetical calculation allegedly based upon what N told him, there might be a surplus of about $7,700 a month out of the monthly maintenance of $13,726 ordered by this Court back in 2015.

M’s case and reply

42.  In countenance to F’s 1^st contention as to the definition of “ECA”, M referred to the historical background and circumstances back in 2014 and the transcript of hearing on 12/6/2014 where there were discussions between Counsel on the provision of “ECA”. At the hearing, it was confirmed by F’s Counsel Mr Jeremy Chan that F would agree to pay whatever ECA that M enrolled for N provided that the amount was under HK$3,000 (which was subsequently discussed and raised to HK$4,000). At that time N was enrolled in (a) E Nopi (mathematics); (b) English (private tutor); (c) Drawing lessons and (d) Dancing classes which, by and large, resemble those ECA expenses claimed in the present application; namely (a) Mathematics; (b) English tuition; (c) Cello class; (d) Drawing class and (5) Dancing class[19].

43.  As a matter of fact, F through his then lawyers Messrs. Haldanes had paid the sum of HK$83,626 for reimbursement of N’s ECA expenses from May 2009 to June 2014 which included SDM Ballet, drawing class, speaking class, Mandarin class, swimming class, E Nopi (mathematics), interview class, E Nopi (English) and dancing class[20].

44.  As to F’s 2^nd and 3^rd contentions, M submitted that there was no requirement of producing original receipts or seeking F’s prior consent for enrolment of ECA for N under the terms of the Undertakings and Maintenance Order. F’s submission was made as additional hurdles on M to claim reimbursement on N’s expenses for the ECA[21].

45.  M also took the liberty to set out at various paragraphs of her 29^th Affidavit other disputes outside the scope of the present dispute of expenses for ECA. Same as in F’s case, I would not venture to go to those paragraphs in this Decision.

The Court’s Views

46.  It is trite that Court orders should be strictly adhered to or complied with in all aspect and that Undertakings given thereunder or embraced within the terms of Court orders are alike.

47.  Should there be any ambiguities or disputes between the parties, whether over the meaning and effect of the terms of the order; or on the applicability or scope of the order; or as to the compliance of it, the parties involved in or being affected should seek clarification or direction from the Court to resolve the ambiguities or disputes. Having said, proper application should be made at the earliest possible moment and in the correct manner and forum to avoid any prejudice or delay.

48.  The terms of the Undertakings and Maintenance Order, insofar as the disputed item of expenses for extra-curricular activities was concerned, related to expenses spent by M over the years for N’s enjoyment and benefits. It goes back to some 7 or 8 years from and since 2014 or 2015. In my view, 7 or 8 years is a long period of time. Over these years, expenses for N’s extra-curricular activities are incurring and accruing on a continuous basis, month by month and year by year.

49.  On the records, F had once made an application back in 2016 for discharge/modification of his undertakings given as per the Undertakings back in 2014. Such application was eventually dismissed by this Court after a full blown trial. F had not appealed against the dismissal nor had he taken any other steps or applications to seek clarification of the scope of the undertakings; in particular, what expenses are or should be embraced or covered by the term “ECA” within the Undertakings and the Maintenance Order. What had then happened, as M’s lawyers rightly submitted, was that F simply sit upon the matter and chose to either delay or default in compliance of his undertakings on payment of the extra-curricular activities.

50.  As at the present stage of the enforcement proceedings, F raised as his defence against the garnishee order(s) nisi to be made absolute by taking issues over the necessity, appropriateness and also definition of the term “extra-curricular activities”, in order for him to avoid paying the accrued and long overdue arrears which M had spent throughout these years. In my decision, this is most unscrupulous and unfair. F’s long inactivity or silence since 2016 for clarification, if he really so wishes, of the definition of ECA expenses or the scope of it might now even constitute waiver or estoppel for him to do so at the present stage of enforcement.

51.  As a matter of fact, this Court in its Decision[22] on dismissing F’s Application for discharge/modification of Undertakings in 2016 had already said :-

“Had there been any disagreement by the Father whether as to the expenses claimed by the Mother fall within the scope of the Undertakings or supporting receipts, it is for the Father to seek further directions from the Court if it could not be resolved amicably through respective lawyers.”

52.  In my decision, it is not for F himself to dictate or decide the scope of “ECA” under the Undertakings and Maintenance Order by seizing the convenience and advantage of the “word-confined” definition that he had obtained and then chose to default in compliance of his undertakings on payment without first seeking the Court’s clarification even though he had ample time and chance to do so since 2016. The “word-confined” definition could only serve as evidence for the Court’s consideration and could never be an excuse or explanation to “justify” non-compliance of undertakings given especially when those undertakings were provided with the aid of legal assistance of Counsel and solicitors.

53.  On the terms of the Undertakings and Maintenance Order, there was no requirement of original receipts to be produced by M or prior consent to be obtained from F for enrolling extra-curricular activities for N. That said, F’s 2^nd and 3^rd contentions failed completely.

54.  For all the above reasons, I find against F on all his grounds of opposition to the garnishee order(s) obtained by M in respect of his HSBC and BOC accounts to be made absolute.

Was F’s ability to pay an issue for this Court ?

55.  I noticed that the learned deputy judge To in her order(s)[23] granted on 6/7/2020 under the 1^st garnishee proceedings directed that the issue arising from F’s liability to pay (emphasis added) under the Undertakings be adjourned to this Court. The subsequent set of similar order(s)[24] dated 20/4/2021 under the 2^nd garnishee proceedings only directed that the garnishee order(s) nisi be adjourned for substantive argument (emphasis added) without specific reference to F’s liability to pay (emphasis added) as she had done so in the 1^st garnishee proceedings.

56.  Since F was directed by the learned deputy judge to file his Affirmation in Opposition 21 days after the order dated 20/4/2021, it would only be fair to say that the learned deputy judge was not aware of F’s line of contention whether it would include or exclude his ability to pay (emphasis added) apart from his liability to pay when F was challenging the 1^st set of garnishee proceedings.

57.  It now transpired in F’s 46^th Affirmation in Opposition that he was contesting on both liability to pay and ability to pay in these 2^nd garnishee proceedings. Given F’s dual contention of liability to pay and ability to pay, F’s ability to pay does not call for consideration for the following reasons.

58.  First, challenging garnishee order nisi to be made absolute, if successful, does not require F to make further payment from his resources on hand. Thus, ability to pay was not an issue requiring adjudication. Secondly, given the observation of the Court of Appeal[25] on F’s latest financial status, any consideration of F’s ability to pay would be superfluous since it is plain and obvious that F has the ability to pay or raise funds to pay even if this was needed.

Decision

59.  I now decided that the 2 garnishee order(s) nisi both dated 17/11/2020 be made absolute forthwith.

Costs

60.  Given the decision above, I decided that it must be fair and reasonable for me to order F to pay all the costs of and occasioned by his opposition to the 2 garnishee order(s) nisi both dated 17/11/2020 obtained by M, including all costs reserved.

61.  M’s own costs be taxed in accordance with Legal Aid Regulations.

Orders

62.  I now grant the following Orders :-

(a)  The Garnishee Order Nisi dated 17/11/2020 in respect of F’s HSBC bank account be made absolute forthwith;

(b)  The Garnishee Order Nisi dated 17/11/2020 in respect of F’s BOC bank account be made absolute forthwith;

(c)  F do pay to M all costs of and occasioned by his opposition to the said garnishee order(s) nisi to be made absolute, to be taxed if not agreed; and

(d)  M’s own costs be taxed in accordance with Legal Aid Regulations.

63.  This is a costs order nisi which would become absolute if no application to vary the same was made within 14 days from the date of this Decision.

Applicant unrepresented, appearing in person on 7/10/2021 and 17/11/2021

Miss Chloe Chow of Messrs. Stevenson, Wong & Co, Solicitors for the Respondent on instructions of the Director of Legal Aid

FCMP 67 / 2010

[2020] HKFC 198

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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BETWEEN

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DECISION ON COSTS

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1.  The Applicant and Respondent are respectively the father and mother of the child N, who was born out of their cohabitation.  I will refer to them as “Father”, “Mother” and “Child” in this Decision.

2.  For the past 10 years, the parties have been engaged in hotly contested and protracted litigation which ended up with 16 Judgments handed down by the Family Court, 4 Judgments on leave to appeal, 1 Judgment by the Court of Appeal and lately, 8 Judgments by the High Court under the Wardship proceedings (HCMP No. 929/2017) taken out by the Father.  This is the 17^th Judgment of the Family Court between the parties.

3.  Throughout these years, the Father instructed different law firms specialized in matrimonial practice and engaged prominent Counsel including Senior Counsel such as Mr. Richard Todd Q.C., Mr. Russell Coleman S.C., Mr. Paul Shieh S.C. in the recent Wardship proceedings which appears to be still ongoing.

4.  On the other hand, the Mother was on legal aid beginning from the outset with assigned Counsel Mr. Kevin Li appearing for her in most, if not all, of the hearings during these years in the Family Court, High Court and Court of Appeal.  On this fact alone, it can be seen the disparity of means between the parties is vast and significant.

5.  At the time of this Decision, there are on-going enforcement steps taken out by the Mother by way of Garnishee proceedings in respect of expenses due from the Father under his Undertaking given to this Court and to the Mother embraced in a Consent Order dated 5 June 2015 (“2015 Order”).  The Garnishee Order to Show Cause once obtained by the Mother had now been set aside and a directions hearing had been scheduled for 9 October 2020 at the Family Court.  Suffice to say is that this Decision on Costs, though this is the 17^th Judgment of the Family Court between the parties, could not be expected to be the last decision between them.  It is yet unclear as to the progress of the Wardship proceedings.

Background

6.  On 5/10/2012, this Court after a 16-day trial handed down its 97-page Judgment (Custody, Care and Control) granting the Mother sole custody, care and control of the Child.

7.  On 5/6/2015, this Court after a 7-day trial handed down its 78-page Judgment (Financial Provisions) whereby, inter alia, the Father’s property at One Silver Sea be settled on trust for the use of the Child at nil consideration with a reversion to the Father upon the Child reaches 18 or ceases full time education, which is the later.

8.  On 13/3/2017, this Court handed down its 22-page Judgment (Jurisdiction: Section 10(2)(e) of the Guardianship of Minors Ordinance, Cap.13) (“GMO”) whereby, inter alia, the Father was ordered to deliver vacant possession of the property at One Silver Sea in compliance with the Judgment dated 5/6/2015. 

9.  On 19/7/2017, the Mother issued an Originating Summons (“OS”) seeking from the Father lump sum payments for non-recurring expenses in respect of renovation work done in the property One Silver Sea.  The Father in his 43^rd Affirmation contended that the property had been in a good and liveable condition since he moved out.  Only some simple cleaning and fixings were needed and thus disputing the Mother’s claim for renovation costs virtually on all aspects, including but not limited to, necessity, reasonableness and quantum.

10.  The substantive trial of the OS came along on 6/8/2019 during which the parties were able to reach a settlement, on a without admission of liability basis, that the Father shall pay a lump sum of HK$200,000 to the Mother, by way of reimbursement for the non-recurring expenses arising from the renovation of the property at One Silver Sea for use by the Child.  Question of costs of the OS be determined on paper and directions for mutual exchange of submissions and reply submissions were granted by this Court.

11.  Father now seeks costs of and occasioned by the OS together with Certificate for Counsel.  Mother invited the Court to exercise its discretion by awarding costs to her. 

The applicable legal principles on costs

12.  To start with, Order 62 rule 3(2) of the Rules of the High Court (“RHC”), which are applicable to matrimonial proceedings commenced in the Family Court by virtue of rule 3 of the Matrimonial Causes Rules, Cap.179A, provides :-

“3(2) If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings (other than interlocutory proceedings), the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”

13.  Further, Order 62 rule 5 of the RHC provides :-

“5(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account –

(aa) the underlying objectives set out in Order 1A, rule 1;

(a) any such offer of contribution as is mentioned in Order 16, rule 10, which is brought to its attention in pursuance of a reserved right to do so;

(b) any payment of money into court and the amount of such payment;

(c) any written offer made under Order 33, rule 4A(2);

(d) any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;

(e) The conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(g) any admissible offer to settle made by a party, which is drawn to the Court’s attention.

(2) For the purpose of paragraph 1(e), the conduct of the parties includes –

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.”

14.  The principles in relation to costs are well settled.  In family cases, except those where children are involved which normally attract no costs order, costs are in the discretion of the court and should be expected to follow the event except that it appears, by considering the overall impression, that some other order should be made in the circumstances of the case.

15.  In the unreported case of HK v BD[1], where Hartmann JA (as he then was) said as follows :-

“78. In family cases, as in all civil proceedings, the basic principles are that costs are in the discretion of the court but that costs should follow the event except when it appears to the court that, in the circumstances of the case, some other order should be made. In family matters, because of their particular dynamics, the exercise of discretion is broader-based than in other civil proceedings. However, as was observed by Butler-Sloss LJ in Gojkovic v. Gojkovic [1992] Fam 40, there still remains the necessity for some starting-point. That starting-point, as we have indicated, is that costs prima facie follow the event.

79. On behalf of the wife, the oblique criticism was made that the judge proceeded on the basis of “honours even”, that seemingly being the essential reason why he came to his determination that both parties should bear their own costs. We do not see that the judge can be criticised in that respect. If costs were to prima facie follow the event, it was necessary for the judge to identify who had been successful and who had not.

80. But there were of course many cases which the judge in the present case had to take into account in considering how best to exercise his discretion as to costs. It is a long established principle that, after analysing the case of each party, costs must be judged by way of overall impression. They are not to be assessed by breaking down the litigation into its many component and interlocking parts in order to draw up some kind of profit and loss account.”

16.  In the later case of YBL v. LWS (No.2) [2017] 2 HKLRD 783, the Court of Appeal said as follows :-

“9. In our judgment, the proper approach in determining costs is that succinctly put by the Chief Justice in Mimi Kar Kee Hung v. Raymond Kin Sang Hung, FAMV 10 & 11 of 2014, 7 July 2015 at [7] :

‘The discretion as to costs in this Court, as in any other Court, is to be exercised in a principled way with a view to reality and justice.’

10. For present purposes, the relevant principles on the exercise of discretion as to costs can be summarized as follows :

(a) whilst the courts often start with the proposition of costs following event, it is no longer a general rule but a starting point, see Hung Fung Enterprises v. Agricultural Bank of China [2012] 3 HKLRD 683;

(b) there have to be some justifications for depriving a successful party of his costs;

(c) in measuring who is the successful party and the extent of his success, the court must examine the reality and justice of the case. Thus, in Hysan Development Co Ltd v. Town Planning Board (No 2) (2016) 19 HKCFAR 635, the Court of Final Appeal made no order as to costs notwithstanding the success of the appellants in reversing the Court of Appeal’s decision because they did not achieve the full objects of their appeals;

(d) in addition, under Order 62 Rule 5, the court in exercising its discretion shall take into account the matters set out in Rule 5(1) as may be appropriate in the circumstances;

(e) Rule 5(2) highlights some conduct which the court may take into account including whether it is reasonableness for a party to take an issue, the manner in which the matter was pursued or defended, the extent of success, and conduct before, as well as during the proceedings;

(f) If a successful party has brought the litigation upon himself or has done some wrongful act in the course of the transaction, he could be deprived of his costs.”

17.  Guided by the above principles, I now proceed to consider the appropriate costs order in respect of the OS issued by the Mother.

Discussion

18.  Mother’s Counsel Mr. Li in his written submissions sets out 4 areas which the Court should consider when deciding costs should be awarded in favour of the Mother.  The 4 areas are, namely :-

- that renovation of the property at One Silver Sea was necessary and inevitable;

- that the Mother is the “winning party”;

- that the Father’s conduct has been reprehensible;

- that there was disparity between the parties’ financial positions.

19.  Father’s Counsel Mr. Yim made the first submission that reasonableness of renovation would only come into the picture when the renovation was determined to be necessary. Mr. Yim submitted that this was indeed an observation made by this Court at the substantive hearing on 6/8/2019.  The core question was whether the Mother was able to establish that the renovation that she had done at One Silver Sea was necessary or even inevitable.  The Father’s position, insofar as the condition of One Silver Sea was concerned, was that only some touch up and cleaning works might be required for habitation and that he had been readily offering to do the same but the Mother resisted. 

20.  Given the fact that the Mother had unilaterally started the renovation in December 2017, notwithstanding the Father’s demand not to dismantle or demolish the original renovation, it was submitted that the Father or the Court could not now possibly consider Mother’s claim.  The report of the single joint expert (“SJE”) which the Mother relied upon could only tell whether or not the finished work worth the amount of the claim.  The report of the SJE does not take the Mother’s claim for reimbursement any further since no inspection of the original renovation had ever been undertaken by the SJE.

21.  Father’s position as at the substantive hearing on 6/8/2019 was that the Mother had failed to make good her application both on causation and on law, thus not entitled to any relief claimed[2]. Nonetheless, at the hearing on 6/8/2019 the Father was willing to pay HK$180,000 to resolve the matter whilst the Mother insisted upon her claim of HK$327,538.20.  The trial then proceeded.

22.  Whilst Mother’s Counsel Mr. Li in his written submissions labelled his first area as the renovation was necessary and inevitable and Father’s Counsel Mr. Yim in reply submissions took issue upon “necessity” of the renovation works, it is my view that in determining costs of the OS proceedings, the Court should approach it from a different perspective.

23.  Given the fact that the OS proceedings was commenced to recover expenses already spent (emphasis added) by the Mother for the renovation of One Silver Sea, the proper question to ask is whether the OS proceedings (emphasisadded) were necessary or inevitable for recovery of the money spent rather than any part of the renovation work already undertaken was necessary or inevitable.  The cause of action, so to speak, under the OS proceedings was for recovery of sums of money.  In my decision, had the OS proceedings been seeking mandatory or peremptory reliefs or orders such as to carry out renovation work then the question of “necessity to do the renovation” would come into play.

24.  That said, the OS proceedings which was issued back in July 2017 but was only settled 2 years later in August 2019 during the substantive hearing, when it comes to consider the question of costs, the proper question to be asked is how likely or unlikely would the Mother be able to recover the money spent, or any part thereof, or at the end of the day that she might even lost in her claim, had she not commenced the OS proceedings against the Father ?  The likely outcome of the Mother’s monetary claim under the OS proceedings at the conclusion of the trial should not be a relevant factor for costs determination if the proceedings were concluded by way of compromise or on a “no admission of liability” settlement. Needless to say, unless expressly provided for or conceded by the parties, all settlement would be taken as “no admission of liability” ways of resolution of disputes.

25.  More importantly, had the Mother failed in her monetary claim under the OS proceedings for whatever reasons, there might be costs sanction against the Mother.        

26.  Going through the historical background of these proceedings, following this Court’s Judgment (Financial Provisions) dated 5 June 2015  handed down after trial whereby, inter alia, the One Silver Property was directed to be settled on trust for the use of the Child and the primary carer, namely, the Mother[3], the Father lodged an application for leave to appeal the said Judgment at this Court and the Court of Appeal.  His application was dismissed at this Court and also at the Court of Appeal where he was ordered to pay costs at indemnity basis summarily assessed at HK$100,000.

27.  To compel compliance and implementation of the said Judgment (Financial Provisions), the Mother was forced upon to issue another Summons on 2 March 2016 for delivery of vacant possession of the One Silver Sea which application was strenuously contested by the Father.  Yet it took another 2 years when this Court handed down its Judgment (Jurisdiction : Section 10 (2)(e) of the Guardianship of Minors Ordinance, Cap.13) dated 13 March 2017 after trial.  The Father was directed to deliver up vacant possession of the settled property, namely, One Silver Sea.  Vacant possession was only delivered on 5 April 2017.

28.  From a review of the Father’s recalcitrant attitude in these proceedings throughout the past 10 years, I am of the firm view that the OS proceedings was inevitable and justifiably issued by the Mother had she wanted to recover the money spent.  Leaving aside the fact that it took another 2 years since the OS proceedings was commenced on 19/7/2017 and that compromise could only be reached during the course of trial on 6/8/2019, it can be seen from the Father’s Affirmations filed in opposition that he had tried his best endeavours to raise every possible contention to the Mother’s monetary claim.  As rightly referred by Mother’s Counsel Mr. Li to the earlier Judgment of the Court of Appeal in HCMP No.178/2013 at §9, where it was said :

“However, in the course of the more than 2 years that have elapsed, it became clear that (to put it neutrally) the father has left no stone unturned in his efforts to criticise the mother’s personality, her family and her care of the child, leading to a fractious and uncooperative relationship between the parents.”

29.  For the above reasons, I am in favour of the Mother, insofar as the commencement of OS proceedings is concerned, that it was necessary and inevitable.

30.  As to who is the “winning party”, this would have to be considered from the “overall impression”[4] of the case, and also to examine the case with a view to reality and justice[5], before the Court can exercise its discretion fairly and in a principled manner.

31.  My overall impression is that the Mother had achieved the purpose of recovery of money spent on renovation of One Silver Sea from the Father.  Therefore, she should be regarded as the winning party.  The amount settled at the end fall below the amount claimed for should not be a relevant factor for deciding who is the winning party. 

32.  Father’s Counsel Mr. Yim submitted that the Father had made various open offers since November 2018 up to January 2019 starting from HK$150,000 and then at HK$180,000 with conditions that there be no order as to costs[6].  The Mother did not eventually obtain a better result than what the Father had offered to pay on 9 January 2019[7].

33.  With respect, I can hardly agree with Mr. Yim.

34.  The Mother was on legal aid and is subject to the Director of Legal Aid’s First Charge (“First Charge”).  I am minded to say that the Father’s legal team and Counsel would have informed the Father that his open offers, if accepted, would be subject to the First Charge which effectively means that whatever sums agreed would have to be deducted the legal fees spent on the Mother if no separate costs order was granted in favour of the Mother.  Thus, it is within the spectrum of reasonableness for the Mother not to consider any offers attached with conditions that there be no order as to costs.  Such kind of offers, if accepted, could have the result of the settlement sum not even enough to cover the First Charge.

35.  The OS proceedings had lasted for 2 years between 17/7/2017 and 6/8/2019.  Given the amount of paper work undertaken and the time spent, the legal costs incurred must be significant if not more than the settlement sum of HK$200,000.  I am not convinced that settlement at HK$200,000 with costs to be determined by the Court could not be said to be better than HK$200,000 with no order as to costs. Unless and until this Court had determined to be the latter, it is premature for the Father to say so and it is in fact quite to the contrary.    

36.  The reality of the case is that the Mother had to bitterly fight for every single penny and cent for the Child over the past 10 years through the assistance of legal aid.  The justice of the case is simply that costs should follow the event. 

37.  Father’s Counsel Mr. Yim in his submissions sought to further argue that the Father could not be criticised in any way for his approach in the OS application by referring to 3 aspects, namely, there were open offers at different stages made by the Father and by refusing to accept and proceed further, the Mother failed to obtain a better outcome.  Secondly, Mother’s OS proceedings were unnecessarily and unreasonably taken.  Thirdly, Mother had unreasonably dismantled and demolished the original renovation despite the Father’s protests and thereby depriving Father to appoint expert and the Court to assess the Mother’s claim.

38.  The 1^st limb of the further contention had been dealt with at paragraphs 34 and 35 of this Decision.  The 2^nd limb of the further contention had been dealt with at paragraphs 23 to 29 of this Decision.  The 3^rd limb of the further contention could only stand when there are findings of fact by this Court upon the evidence of the parties as to the condition and habitability of One Silver Sea.  The parties’ evidence on the condition and habitability of One Silver Sea are in sharp difference which calls for the Court’s adjudication at trial.  In the absence of any findings of fact by the Court on the parties’ evidence and to take the Father’s evidence to be the truth, then to comment upon the Mother proceeded with the renovation against the Father’s protests, is incorrect and unfair.  Such 3^rd limb of the further contention must fail.

39.  On the aspect of disparity of financial means between the parties, Father’s Counsel Mr. Yim referred me to the decision of DHCJ Gill (as he then was) in the case of S v. S[8] where it was said that the relevant consideration is how any costs order may impact on the parties.  Mr. Yim went further to submit that the Mother had eventually agreed to accept a sum of HK$200,000 which is substantially less than what she had claimed for, her financial means is one factor that this Court may consider.

40.  However, in the cardinal case of Piglowska v. Piglowska[9] where Lord Hoffmann, when deciding the approach of the appellate court concerning challenges of findings of fact and the exercise of judicial discretion, had said :-

“Fourthly, there is the principle of proportionality between the amount at stake and the legal resources of the parties and the community which it is appropriate to spend on resolving the dispute..……. To allow successive appeals in the hope of producing an answer which accords with perfect justice is to kill the parties with kindness.”

41.  I am of the view that the principle of proportionality enunciated by Lord Hoffmann applies equally when costs are being determined by the courts in their exercise of judicial discretion.  Disparity of financial means warrants the Court’s consideration when deciding what type of costs order, with a view to reality and to ensure justice to the parties, are appropriate on the facts of the case.  This is far more important than the impact of the costs order that may affect the parties.  

42.  As the docket judge overseeing these proceedings for 10 years since 2010 with 16 written Judgments handed down, I am confident to say there is a huge disparity of financial means between the Father and the Mother, let alone the fact that throughout the past 10 years of protracted litigation, different prominent and senior Counsels had been instructed through different reputable matrimonial law firms engaged by the Father.

43.  For completeness, I would add that the impact, if any, of costs order on the Mother who was on legal aid throughout the past 10 years would be far more significant than the Father. 

Conclusion

44.  Taking into account all the above, I decided that the Father should pay the Mother’s costs of the OS dated 17 July 2017, together with all costs reserved, to be taxed if not agreed.

45.  The Father shall also pay the Mother’s costs of this costs application, to be taxed if not agreed.

46.  I also grant Certificate for Counsel.

47.  The Mother’s own costs in respect of the OS and of this costs application be taxed in accordance with Legal Aid Regulations.

Orders

48.  I now make the following Orders :-

(a) The Applicant (Father) do pay the Respondent’s (Mother’s) costs of the Originating Summons dated 17 July 2017, together with all costs reserved, to be taxed if not agreed;

(b) The Applicant (Father) do pay the Respondent (Mother) costs of this costs application, to be taxed if not agreed;

(c) There be Certificate for Counsel on both the OS application and this costs applications;

(d) The Respondent’s (Mother’s) own costs be taxed in accordance with Legal Aid Regulations.

49.  This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Decision.

Mr. Eugene W.T. Yim instructed by Messrs. Chan & Chan, Solicitors for the Applicant

Mr. Kevin Li instructed by Messrs. Stevenson, Wong & Co., Solicitors for the Respondent on the instructions of Director of Legal Aid

FCMP 67 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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__________

__________

____________________

D E C I S I O N
(Leave to appeal)

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Introduction

1.  This is the application taken out by the Applicant (“the Father”) for leave to appeal the Decision of this Court dated 30 September 2016 (“2016 Access Decision”) whereby the Father’s application for resumption of access as per the Order dated 13 March 2014 (“2014 Access Order”) was dismissed. 

2.  The 2016 Access Decision, apart from dismissing the Father’s intended resumption of the “2-year old” 2014 Access Order, directed the Father to apply for determination of details of general access provided to him under the very first Judgment of this Court dated back to 5 October 2012 (“2012 Judgment”) when the Respondent (“the Mother”) was given sole custody, care and control of the child in question after a 16-day trial.  As regards access, at paragraphs 167(b) to (d) of the 2012 Judgment it was decided, inter alia :

“(b) The Applicant do have general access to the child, details to be determined at a hearing to be fixed with 1 hour reserved;

(c) Pending determination on details of the general access or further Order, the present access arrangement shall continue;

(d) Both parties to file and exchange written submissions limited to general access within 14 days from the date of this Judgment.”

3.  As to historical development, the Father first sought leave to appeal the 2012 Judgment but lost first in this Court and then in the Appellate Court in HCMP No.178 of 2013 (see [2013] 3HKLRD 497).  On 5 November 2013 which is about 6 months after he had lost the intended leave to appeal at the Appellate Court, the Father chose to issue a Summons to seek variation of the custody, care and control granted to the Mother under the 2012 Judgment.  Such variation application did not move along expeditiously and, for whatever reasons, was withdrawn on 8 March 2016; which is some 28 months later and after five (5) Pre-Trial Reviews had been conducted.  This is exceptional and unusual.

4.  With the intended appeal being brought and the subsequent variation being filed, determination of details of the general access under the 2012 Judgment was put in abeyance as a matter of course.  As a matter of usual practice and procedure, following failure of the intended appeal and withdrawal of the variation application, details of the general access under the 2012 Judgment should have, but unfortunately for reasons of tactics or otherwise have not, been revived for determination by the Father.

The relevant provisions

5.  The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

6.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Fok JA at paragraphs 8 and 9 of the Judgment).

7.  There is no issue on the applicable test for the present leave to appeal application between Senior Counsel Mr. Russell Coleman S.C. for the Father and Counsel Mr. Kevin Li for the Mother.

The Father’s application

8.  In the Father’s draft Notice of Appeal, leave to appeal and Order was sought for setting aside the 2016 Access Decision and that the 2014 Access Order be resumed.

9.  The Mother opposed the Father’s application.

The Father’s Grounds of Appeal

10.  Senior Counsel Mr. Coleman S.C. in his skeleton submissions dated 20 April 2017 submitted that the Father’s proposed grounds of appeal identified the following ‘flaws’ in the 2016 Access Decision :-

(a) There was no proper basis to order reasonable access;

(b) There was no proper basis to order access on a conditional basis;

(c) The Court’s reason for departing from the recommendation to resume normal access in the Social Welfare Report was manifestly wrong;

(d) It was also manifestly wrong to dismiss the Father’s application to resume normal access.

11.  The Father’s Draft Notice of Appeal, consists of 16 grounds under the following 8 headings :-

(a) Misunderstood the Facts/Evidence (Grounds 1 to 2);

(b) Access Recommended by Professionals = Access Granted by 13/3/2014 (Ground 3);

(c) Application to resume access because of 3^rd Abuse Allegation (Ground 4);

(d) Schooling Considered by Mr. Cheng (Ground 5);

(e) Reasonable Access Not in the Child’s Best Interest (Grounds 6 to 9);

(f) Conditional Access Not in the Child’s Best Interest (Grounds 10 to 14);

(g) Took Irrelevant Factor into Account/Gave it Disproportionate Weight (Ground 15);

(h) Failed to Take Into Account Important Factors (Ground16).

The Court’s Views

12.  To start with, it is pertinent to say the term “normal access” which has been used by the social welfare officer Mr. Cheng in his oral evidence and report, should not be taken to mean any access arrangement not in line with “normal access” so described by Mr. Cheng would not have been normal.  The word “normal” should not be taken lightly at its face meaning.  In addition to the term “normal access”, there are other terms used by the Father in his Grounds of Appeal such as “SupervisedAccess”; “Conditional Access” and “Access Prior to AA” each of which should call for meanings restricted to context by reference to the specific circumstances at the time rather than any face meaning taken broad-brushly.

13.  In the Grounds of Appeal, the Father asserted this Court erred in fact in stating or implying that the Father’s Summons and/or the Mother’s Summons was prompted by the suspension of the 2014 Access Order on 4 June 2015 following the Mother’s complaint of suspected child abuse after an access ended on 30 May 2015.  The Mother’s Abuse Allegation (“AA”), in particular, the 3^rd AA on 24 October 2015 had caused suspension of the 2014 Access Order on 9 December 2015.  At Grounds 1 (c) and (d) it was said :

“(c) Owing to the 3^rd Abuse Allegation, the Normal Access prior to AA was suspended and replaced by a supervised access of 3 hours per week at the Social Welfare Officer’s office by an order dated 9 December 2015 (“Supervised Access”).

(d) Pending the substantive hearing as regards the 3^rd Abuse Allegation, the Supervised Access was modified to a defined day access of every Saturday from 10 am to 9 pm, on the condition that the Father complies with five undertakings put forth by the learned Deputy Judge, by an order dated 31 March 2016 (“Conditional Access”).”

14.  There are 2 fallacies in such Grounds.  First, the access arrangement prior to the 3^rd AA was labelled as and pre-supposed by the Social Welfare Officer Mr. Cheng (and such label is now taken advantage of by the Father throughout this application) to be a kind of “normal access”.  Such misnomer, so to speak, provides nothing but ambiguity.  As a matter of fact, the access arrangement prior to the 3^rd AA was the 2014 Access Order which, at the time when it was granted in 2014 (my emphasis), must have been fair and reasonable having regard to the then existing circumstances in 2014 for otherwise it would not have been granted.  Whether the 2014 Access Order was, and continued to be, a kind of “normal access” which was fair and reasonable at the time of hearing the Father’s Summons for resumption, that is to say in July 2016 which is more than 2 years later (my emphasis), is something which call for further consideration, investigation or preferably further report.

15.  Given the dynamics of children’s matter, it is wrong for Mr. Cheng and the Father to pre-suppose the specific access arrangement in the 2014 Access Order to be any kind of normal access with perpetuity (my emphasis).  Putting aside the 2014 Access Order and then putting in place a different access arrangement to cater for any particular circumstances that had arisen is within the Court’s powers and duties to do so.  The fact that access was changed to a supervised one following the Mother’s 3^rd AA, in my view, is a matter of course.  There is no question as to any error in fact as to the Father’s Summons for resumption being prompted by suspension of the 2014 Access Order.

16.  Modification of the supervised access to become unsupervised access on 31 March 2016 upon undertakings by the Father and with conditions to be satisfied was concurred by the Father through his then Counsel Mr. Hotten in court even though they did not come from the Father.  It is trite law that a party could not be compelled or ordered to give undertakings.  Had the undertakings not been concurred by or consented to or, as now so alleged in this appeal, ‘forced upon’ the Father who had no choice at the time but to accept, the Father (who was legally represented and properly advised throughout the hearing and thereafter) should have taken the matter on to appeal soon after the hearing.  At the very least, the Father could have sought modification of or withdrawal from the undertakings and conditions.  Oddly enough, the Father (with the benefit of legal advice) proceeded to comply with the undertakings and conditions for months until his Summons for resumption of access was dismissed.  The Father then raise it now as one of the grounds of appeal against the 2016 Access Decision.  The undertakings and conditions, even if not explicitly consented to there and then, must have been accepted by his conduct or implicitly.  It is wrong for the Father to raise such contention now whether in an attempt to renege from the undertakings and conditions or as a ground of appeal.  He is also, as a matter of law, estopped from raising such contention.

17.  It was submitted by the Father that there is no proper evidence suggesting that the Conditional Access is in the best interests of the Child.  Reason being that it was neither raised nor discussed in the Social Welfare Report, it was neither raised nor recommended by any of the 9 professionals in the MDCC; it was not put forth by the Father.  In my view, if and when the parties proceeded to carry out terms and conditions unreservedly and that access was then implemented, neither party could renege from their position and raise as an issue that those terms and conditions duly complied with originated from nowhere or challenge the rationale behind.  Such conduct of litigation is, in my view, unreasonable if not unscrupulous.  

18.  Thus, I find Grounds 1 to 2 have no reasonable prospect of success on appeal.

19.  There comes the Father’s submission that the Conditional Access was put in place only due to the 3^rd AA, which was clear from the terms of the undertakings, and given the fact that no abuse was then found by the professionals in the MDCC or this Court, the basis for the Conditional Access fell away (see paragraph 28 of Mr. Coleman S.C.’s submissions). 

20.  With respect, I do not agree.  The Father seems to suggest that once the basis for the Conditional Access fall away, the access arrangement should be “automatically” reverted back or switched over to the 2014 Access Order without the need of any thought or review as to the latest situation and circumstances, such as, the child’s latest daily routine and timing, schooling hours so on and so forth.  Reference was made to one of this Court’s earlier decision in this case (date of judgment : 21 September 2015) where the 2014 Access Order was resumed.

21.  The 21 September 2015 Decision differs from the present case.  First of all, the period of suspension by that time was only of a short duration of 3 months from 4 June 2015 and it was resumed in September 2015.  In the present case, the suspension had lasted for around 7½ months since December 2015 when the matter was heard by this Court in July 2016.  The Child was expected to finish the 2015/2016 school calendar year in the month of July and there may be all sorts of different schedules and routines in the upcoming 2016/2017 school year which requires consideration of the Court.

22.  Moreover, as can be seen in the 21 September 2015 Decision, a social welfare report was specifically called for and before the Court on 10 August 2015.  A further note dated 1 September 2015 on 2 consecutive access arrangement on 27^th and 28^th August 2015 was also before the Court.  The conclusion on those 2 consecutive access was that the atmosphere was harmonious and relaxing in general. 

23.  Compared with the present case, the social welfare officer Mr. Cheng in his report noted the startling emotions when the child displayed disapproval with the Father.  More importantly, Mr. Cheng was transferred out of the post around end of February 2016 and accordingly, he had stopped evaluating the case from February/March 2016 onwards until the trial in July 2016.  He agreed his evaluation of access only hold good until February/March 2016 and that a further report from his successor is desirable before deciding resumption of the 2014 Access Order (see paragraph 30 of the 2016 Access Decision). 

24.  To simply adopt an “automatic reversion or switch back” to a 2-year old Access Order without any consideration of the circumstances 2 years later, not to say any possible change in affinity of the Child in question who is still of tender years, is wrong.  In my view, the Father should have sought determination of the details of general access under the 2012 Judgment which had long been overdue for almost 5 years instead of insisting upon “automatic reversion or switch back” to the 2014 Access Order which apparently is the Father’s favour or preference.  In reality and practical terms, the Father did not afford himself the chance of determination of the details of general access under the 2012 Judgment; which may or may not end up with an access arrangement wider in scope than the 2014 Access Order.  Having said, the Court is duty bound to consider the best interests of children rather than the wishes or preference of the parents.   

25.  The Father, whether knowingly or unwittingly, not proceed with determination of the details of general access for 5 years under the 2012 Judgment but chooses to linger upon the 2014 Access Order would not be accepted or encouraged by the Court.  Apart from case management perspective and the underlying aims and objectives (Order 1A Rule 1 of the RHC) under the Civil Justice Reform (“CJR”) regime, where cases should be dealt with as expeditiously as is reasonably practicable with costs effectiveness and to ensure Court’s resources are fairly distributed, it is trite law that Court orders and directions are to be observed and complied with.  Unless the Father is able to overturn the determination of the details of general access in the 2012 Judgment, he was and still is obliged (my emphasis) to comply with it no matter how dissatisfy he is about it. Otherwise, the Father would be able to take the law in his own hands to flout Court orders.  The Court would then become hands-tied or forced to turn a blind eye over it.   As the docket Judge overseeing this case for 5 years with 16 written Decisions handed down (including the present one), not to mention a few Appellate Court decisions, the Father’s litigation conduct over these years poses a genuine concern not only with the Mother, also with this Court.  It is noted that the Appellate Court lately also saw fit to order indemnity costs of HK$100,000 against the Father (see HCMP No.2059 of 2015).  Besides, there are 2 other costs order of the Appellate Court in the sum of HK$40,000 (HCMP No.178 of 2013) and HK$60,000 (HCMP No.3205 of 2016) against the Father notwithstanding all the disputes circled upon children’s matters.  Throughout these 4 to 5 years of protracted litigation, the Father had spent millions of dollars engaged different reputable law firms and different experienced Counsel one after the other on all possible areas whereas the Mother all along was and still is on legal aid to protect the child’s interests.

26.  At paragraph 29 of Mr. Coleman S.C.’s submissions, it was said that if this Court genuinely took the view that Conditional Access is in the best interests of the Child, it is illogical or unclear why Conditional Access would only be implemented if, quoting the words in the 2016 Access Decision, “the Father applies to proceed with the general access arrangement provided for under the Main Judgment within 21 days”.

27.  It is then submitted that the form of the 2016 Access Decision is wholly inapt to child proceedings.  It comprises an ‘unless order’ which rests to compel a request for directions under threat of a different form of access arrangement.  Moreover, it does so where neither of the two conditional alternatives is legally or factually apt to the circumstances (see paragraph 2 of Mr. Coleman S.C.’s skeleton submissions).

28.  There are 2 limbs of such contention.  First, Mr. Coleman S.C., submitted that the imposition of a reasonable access order was at least arguably clearly wrong; it couldn’t be in the best interests of the Child.  Nobody raised it or discussed it, not the Social Welfare Report, none of the professionals, not the Mother herself and not the Father.  Secondly, there is an illogicality there in that if reasonable access to be in the best interests of the Child, it would only be applicable if the Father doesn’t apply for directions for general access.  Further and as a corollary contention, if the Father doesn’t so apply, why not the Court just give directions by, for instance, saying to the parties that they should be filing affidavits and the Court then would obtain a Social Welfare Report.

29.  With greatest respect to Mr. Coleman S.C., such submission fails.  As said earlier in paragraph 15 above, conditions were attached to access to cater for particular circumstances that had arisen.  Reasonable access has been granted by Family Courts day to day and is not any peculiar kind of access requiring parties’ propositions or social welfare officer’s recommendation.  It is well within the Court’s powers and jurisdiction to grant it whenever it sees fit in appropriate cases without the need of any proposals from parties or recommendations from social welfare officers.  Having said, if the parents’ litigation conduct or attitude towards each other or, even over their child is, if I may use the word ‘unreasonable’, there will never be any “reasonable access” proposals from either parent.  As a matter of common sense and logic, parties would never propose “reasonable access” when they themselves are being unreasonable.  In such cases, would the option of reasonable access, a form of access readily available to the Court, be then ruled out by the parties’ unreasonable conduct ?  Moreover, there seems to be no cases or authorities for “reasonable access” either has to come from parents’ proposals or social welfare officer’s recommendation before the Court could grant such an access.  The Court’s discretion over children’s matter including access are wide and unfettered which varies from case to case or within the same case but at different stages of the litigation.  Further and in any event, at paragraph 29 of the 2016 Access Decision, this Court said :-

“29. In my view, whatever label or description given to the existing access arrangements is neither here nor there. What does reallymatter is whether the existing access arrangements are in the bestinterests of N given the fact that the scope and extent of access atpresent is comparatively less than that provided for under the13/3/2014 Order. In particular, staying access with the Fatherhas not been provided for at present (my emphasis). I believe this is also the main reason for the Father to apply to resume the 13/3/2014 Order. In any event, parties should always lookforward to practical solutions rather than nagging upon historicevents (myemphasis).

30.  There is no finding at paragraph 29 that the Conditional Access was in the best interests of the Child.  Quite contrary, the Court was very much concerned with whether the access arrangement then existing, that is, the Conditional Access could be in the best interests of the Child in particular when there was no staying access. Without going further to any unrealistic and impracticable terminology on access, the parties were then reminded by the Court to look forward for practical solutions.  On such reminder, the initiative falls back again with the Father (having all along been legally advised) to proceed with details of the general access determination under the 2012 Judgment which had been long overdue.  There is no illogicality or unclearness so asserted by the Father. 

31.  The contention that the 2016 Access Decision comprises an ‘unless order’ in that the Father was said to be compelled to request for directions under threat of a different form of access arrangement is misconceived.  Such contention can only be arguable if the determination of details of the general access under the 2012 Judgment had been set aside or overturned on appeal.  Otherwise I fail to see why this Court could not, in the exercise of its case management powers overseeing cases before it, proactively put a litigant back to the right track in order to uphold compliance of the 2012 Judgment so as to prevent any further unwarranted flittering of the case.  The word ‘unless’ was used to accommodate the Father with some time to manoeuvre his long overdue application.  There is no question of 2 modules of alternative access so submitted, that is Conditional Access/reasonable access, depending on whether or not the Father proceed with his long overdue application under the 2012 Judgment. 

32.  With greatest respect to Mr. Coleman S.C., the Court directly or even robustly asking the parties to file affirmations and then to obtain Social Welfare Report outright, which I accept the Court is able and entitled to do so, is inappropriate in this particular case.  First, granting such outright directions at the conclusion of the Father’s application for resumption of access (when he did not seek any other or alternative directions) exonerates the Father’s obligation to explain his delay on compliance, but which is wanting.  This may also be depriving the Father’s right to give explanation.  Secondly, granting such outright directions there and then without giving the Father any time to prepare for compliance of the 2012 Judgment poses substantial risks of delay rather than providing solutions or expediting the matter.  Given the fact that the Father, with legal advice throughout these years, managed to come up with various reasons to have his own variation application dragged on for about 28 months (from November 2013 to March 2016) and after five (5) Pre-Trial Reviews had been conducted (see paragraph 3 above) and then withdrew it completely, it is not surprising a similar exercise would be repeated if he was not given any or sufficient time to pick up the 2012 Judgment.

33.  Thus, I find Grounds 1 to 2 and 6 to 15 have no reasonable prospect of success on appeal.

34.  Grounds 3 and 5 referred to this Court erred in its finding that the “normal access” recommended by the social welfare officer Mr. Cheng should not be taken to mean the terms of the 2014 Access Order.  At paragraphs 32 and 33 of Mr. Coleman S.C., skeleton submissions, it was said :

“32. At the time the Social Welfare Report was prepared, the Child was repeating Primary One as observed by Mr. Cheng, i.e. it was her second year in primary school. Thus, the Child’s schooling at primary school has existed for quite some time when Mr. Cheng conducted his investigation.

33. Indeed, Mr. Cheng explicitly considered schooling of the Child in Primary School at §§11 and 12 of the Social Welfare Report; and gave oral evidence that his recommendation to resume the previous access was made after consulting teachers and staff in primary school and after taking into account the schooling matters of the Child in Primary One, including but not limited to the Child’s academic performance, homework and her emotional behaviour in school.”

35.  As set out in paragraph 23 of the 2016 Access Decision, access should be considered against a number of different existing facts rather than relying upon historical events.  Schooling is amongst one of the several factors to be considered.  Further, as stated in paragraphs 12 and 14 above of this Decision, Mr. Cheng had pre-supposed the access prior to the AA to be a kind of “normal access” and such pre-supposition suggested nothing but ambiguity. 

36.  Further, social welfare report is not binding on the Court.  It is not a special category of material information nor should the recommendation assume a status somewhat akin to a legal presumption which needs to be rebutted.  Ultimately the decision making lies with the judge based on the available evidence and guided by the relevant principles (see WSM v. FSY (a minor: custody appeal), CACV No.352/2004). 

37.  Also at paragraph 23 of the WSM case (supra), it was said :

“23. This is a matter of commonsense but as more recent cases show, the judge’s reasons for reaching his own decision instead of relying on the recommendation are normally the very reasons for his declining to follow the recommendation. Unless his reasons are manifestly wrong he is not under any further duty to spell out the reasons for departing from the recommendation : see ReV (residence : review) [ 1996] 3 FCL and Naziya Aslam v. Rafagat Ali (CACV 144/2003). This is an approach we will also adopt. Otherwise the matter will be enmeshed in technicalities.”

38.  Thus, I find Grounds 3 and 5 have no reasonable prospect of success on appeal.

39.  Ground 4 referred to this Court erred in finding at paragraph 25 of the 2016 Access Decision that the Father did not explain why he applied to resume the 2014 Access Order.  The Father did so explain in his affirmation.

40.  Ground 4 missed the point.  Paragraph 25 of the 2016 Access Decision referred to the absence of explanation for not seeking determination of the details of general access under the 2012 Judgment.  It was not about the absence of explanation for seeking resumption of the 2014 Access Order.  Paragraph 25 is recited as follows :-

“25. Moreover, Counsel Miss Athena Wong in her Submissions referred to the Father’s application for general access being overtaken by event of his earlier custody variation application. It is, however, noted that such custody variation application was withdrawn on 8 March 2016, which is 8 days prior to his filing of the present Summons for resumption of interim defined access on 16 March 2016 (although the Summons was dated 7 March 2016). Why the Father does not pursue the general accessarrangement (my emphasis) but chose to pursue resumption of the interim defined access Order of 13/3/2014 remain to beexplained (my emphasis).”    

41.  Thus, Ground 4 has no reasonable prospect of success on appeal.

42.  For Ground 16, the Father submitted that this Court failed to take into account important factors such as (a) Pattern of Child Abuse Allegation; (b) Child’s fear to the Mother; and (c) Abuse Allegations were very harmful to the child.

43.  Failure to take into account pattern of child abuse, even if substantiated which I disagree, does not provide any basis for “automatic reversion or switch back” to the 2014 Access Order for those reasons set forth in paragraph 20 above. 

44.  The Father’s reference to the child’s fear to the Mother was recorded in previous years in 2013, 2014 and 2015 by other officers.  There is no such observation of fear to the Mother by social welfare officer Mr. Cheng.  This Court does not see fit to attach weight to those historic feelings or fear of the child or would there be any relevance when deciding what access would best fit the circumstances in July 2016 for securing the best interests of the child. 

45.  As to the abuse allegations were harmful to the child, this Court has duly noted.  Apart from the Court’s concern of this case being dragged on for years and tried to provide stability on access for the child by requiring the Father to act conscientiously and expeditiously (as stated in paragraph 33 of the 2016 Access Decision) to seek determination of the details of general access, this Court at the concluding paragraph 34 of the 2016 Access Decision commented as follows :-

“34. In so deciding, I have considered but minded not to arrange any further social welfare reports. Reason being that the child has already been subjected to numerous interviews by different professionals including several social welfare officers in the past few years some of which, as I see it, could have been avoided had the parents been more sensible and reasonable with less animosity against each other.” 

46.  Thus, I find Ground 16 has no reasonable prospect of success on appeal.

Grounds on interests of justice

47.  Although Mr. Coleman S.C., had not urged this Court to consider such ground, I did consider it and find that there being no other reason in the interests of justice that leave to appeal should be granted.

Conclusion

48.  For all the above reasons, I find the Father failed in satisfying the necessary threshold for granting leave to appeal. 

49.  According, I dismiss the Father’s Summons dated 14 October 2016 for leave to appeal.  For children’s matter, it is well established that the Courts would normally make no order as to costs in trials on custody and related issues.  Rationale being that parents should not be deterred from litigating for the best interests of their child for fear of the costs of litigation.  However, the same rationale does not apply to appeals and that the normal rule of “costs to follow the event” should apply. Otherwise, the parent who successfully opposed the appeal would have to bear his or her own costs whereas the other parent who triggered the appeal but lost could have his or her days in Court without any risks to pay costs.     

50.  In light of this Court’s decision, I now order the Father to pay the costs of the Summons dated 14 October 2016 together with costs reserved (if any) to the Mother.  Since the Mother is legally aided, I also order that the Mother’s own costs be taxed in accordance with Legal Aid Regulations.

51.  I also grant Certificate for Counsel.

Orders

52.  My Orders are as follows :-

(a)  The Applicant’s (Father’s) Summons dated 14 October 2016 be dismissed;

(b)The Applicant (Father) do pay to the Respondent (Mother) the costs of the said Summons, including any costs reserved, to be taxed if not agreed;

(c)  The Respondent’s (Mother’s) own costs be taxed in accordance with Legal Aid Regulations; and

(d)There be Certificate for Counsel.

53.  This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Decision.

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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D E C I S I O N
(Jurisdiction : Section 10(2)(e) of the
Guardianship of Minors Ordinance, Cap.13)

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Introduction

1.   The Applicant is the Father.  The Respondent is the Mother. 

3.   Following a bitterly fought trial which spanned for 7 days in respect of the Mother’s claim for various financial reliefs under the Guardianship of Minors Ordinance, Cap.13 (“GMO”) in respect of the child N born out of their relationship, this Court handed down its 78-page Judgment on 5 June 2015 (“the Financial Judgment”). 

3.   At paragraph 180 of the Financial Judgment, this Court made, amongst other financial orders, the following Settlement Order (“Settlement Order”) :-

“180.  For all the reasons above, there will be financial provisions for

the child N, subject to the Legal Aid First Charge (if any), as

follows :-

(a) The property situated at One Silver Sea under the sole name of the Father be settled on trust for the use of N and her primary carer, the Mother, at nil consideration until N reaches the age of 18 or ceases full time education, whichever is the later, with the reversion to the Father (as per paragraph 72 above);

(b) ……………..

(c) ……………..

(d) ……………..

(e) ……………..

(f) ……………..

(g) ……………..

(h) ……………..

(i) ……………..

(j) ……………..”

4.   At paragraph 72 of the Financial Judgment, this Court said :-

“72. Given careful consideration to the above analysis and findings and all the available options, also having taken in account the means  and resources of the Father, I would grant a settlement order under Section 10(2)(e) of the GMO in respect of the One Silver Sea property to cater for N’s use and occupation under the care of the Mother, with a reversion to the Father upon N’s reaches 18 of ceases full time education, whichever is the later. Since the Mother is granted the custody, care and control of N, she would have to live with N together until further Order.”

5.   The Father sought leave to appeal the Financial Judgment from this Court and then the Court of Appeal (see HCMP No.2059 of 2015).  On 2 December 2015 (Reasons dated 7 December 2015), the Father’s application for leave to appeal was dismissed with costs, on indemnity basis, summarily assessed at HK$100,000 by the Appellate Court (“the Appeal Decision”).

6.   At paragraph 12 of the Appeal Decision, Mr. Justice Lam VP had said :-

“12………..It appeared to us from the submissions of Miss Wong, Counsel for the Father, during the course of the hearing that he was trying his best not to provide accommodation to the Child in the One Silver Sea Property, despite the Settlement Order.  That attempt must  be nipped in the bud. It is the Judge’s clear finding on the evidence before him that the only option open for consideration by the court on  the Child’s accommodation needs was the One Silver Sea Property : see [54] of the Main Judgment.  It was upon that basis the he made the  Settlement Order. The Father is bound by the Judge’s finding. He must provide for the Child’s accommodation needs in the Property. It  is also the duty of his legal representatives to advise him that like it or not, he must act according to the Judge’s finding. Without expressing any view on the merits of the stamp duty ground, we indicated that to alleviate the financial burden on the Father arising from the stamp duty as a result of the Settlement Order, if genuine, an undertaking by him to allow the Child and the Mother to occupy and live at the One Silver Sea Property rent free until the Child reaches 18 would be an option worth    exploring. That, we note, was accepted by Ms Por, solicitor for the Mother, to be reasonable. We would leave it to the parties to see if anything can be made out of our indication.”

7.   On 2 March 2016, the Mother took out a Summons and at paragraph 2 thereof seeking, inter alia, that the Father do deliver vacant possession of the One Silver Sea property to the Mother forthwith (“the Mother’s Application”).

8.   The question which arose for consideration is whether this Court has jurisdiction to order delivery of vacant possession of property under the GMO.  Since such question being a legalistic one not involving any factual disputes, Counsel for the parties fairly agreed that it could be dealt with on paper with the Mother filing her written submissions first and then followed by the Father’s submissions.  The Mother had the right to file a further submission in reply.

The Father’s contention

9.   Counsel Mr. Keith Hotten for the Father, in his written submissions, sets out the contention to the Mother’s Application under 4 separate headings :-

(a) Joint Efforts of the Parties to Settle the Property by Deed of Trust;

(b) The Request to deliver vacant possession is outside the Court’s jurisdiction;

(c) The Summons is Defective in Substance and in Procedures;

(d) The Application is not in the Child’s best interest; CA suggests Undertaking.

The Mother’s Reply

10.  Counsel Mr. Kevin Li for the Mother, in his submissions in reply, referred to the Father having adopted tactics to attempt to create more barriers in order to avoid providing the Child with a shelter.  The Father was taking advantage of his own default and his position and his delaying tactics was seen by the Court of Appeal and reflected in the Appeal Decision (see paragraph 6supra). 

11.  Further, it was submitted that the Mother’s Summons is not an enforcement Summons as the Father so contended in his Counsel’s submissions.  The Mother’s Summons was to seek specification of a time for compliance with a view to apply for contempt and/or enforcement.

The time being sought for in the Mother’s Application is “forthwith” which is to mean as soon as it can reasonably be done (see Commentary 42/2/2 of the Hong Kong Civil Practice 2016 Vol 1). “Forthwith” has also been held to be a sufficient expression of time for doing an act directed by a Court Order (see Thomas v. Nokes (1868) L.R. 6 Eq.521, Halford v. Hardy (1900) 81 L.T. 721).  An order to do an act forthwith means that the act is to be done as soon as it can reasonably be done (see Hillingdon LBC v. Cutler [1968] 1 Q.B. 124; [1967] 2 All ER 361 CA; and Chou Yi Feng v. ChouYi Chen and others, HCA No.4393/2001).

12.  Reference was made to the case of IDC v. SSA[2014] 4HKLRD 220 where it was held by the Court that the similarity on language used between Section 10(2)(e) of the GMO and Section 6(1)(b) of the Matrimonial Proceedings and Property Ordinance, Cap.192 does not call for a narrower interpretation be given to the meaning of “property” in the GMO from what had been laid down in the Interpretation and General Clauses Ordinance, Cap.1.  “Property” was defined under section 3 of Cap.1 to include money, goods, chose in action and land; and obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as defined in the Ordinance.    

13.  The Father, as the sole legal and beneficial owner of the One Silver Sea property, having the right to exclusive possession and enjoyment of the property could have been able to settle all his rights and interests in the One Silver Sea property of which he had not done so, despite the Settlement Order.

The 4 Contentions of the Father

14.  I will first deal with each of the Father’s contentions in sequence.

15.  It is the Father’s case that joint efforts of him and the Mother are required to work out various essential terms of the Deed of Trust before any settlement could be arranged.  Further, any agreed terms would still have to be consented to or approved by the mortgagee bank of the One Silver Sea property.  However, despite the Father’s efforts made to the Mother’s legal representatives, all the proposals of the Father were either not responded to or rejected by the Mother.  

16.  In my view, there is no legal requirement or rules for parties who intended or being ordered by the Court to enter into a deed of trust to have to agree upon terms of the trust before it could be settled.  Very rarely and only in exceptional circumstances, there may be reasons for better management or special arrangement of the trust which call for terms to have to be agreed and in place before the deed of trust could be settled. 

17.  Mr. Hotten in his submissions have not referred me to any cases or authorities on this aspect or there exist any exceptional circumstances save and except that whatever terms agreed to by the parties would still have to be consented to by the mortgagee bank of the One Silver Sea property. 

18.  For the present case, the Settlement Order requires that the One Silver Sea property which is legally and beneficially owned by the Father to be settled on trust for the use of the Child N and her primary carer, namely, the Mother with reversion to the Father. Unless with the consent of the Mother or directed by this Court, the Father could not “coerce/extract” for terms to be first agreed to by the Mother whilst putting his compliance with the Settlement Order in complete abeyance. 

19.  In CWG v. MH and Others [2014] 4 HKLRD 141 where the Court of Appeal in its Judgment on a “Hadkinson” application taken out by the wife in the case against the mother of the husband in that case had said :-

 “16.1Of course, the crucial issue is whether in the exercise of its discretion, the court should bar the Mother from participating in the appeals by reason of her non-compliance, but first, it is necessary to say a word about the ambit of the Hadkinson application.

16.2 A summons was taken out only in CACV 83/2013 (ie the Mother’s appeal) and not in the other appeals where she is a respondent. By way of explanation (or perhaps excuse), Ms Eu SC, leading counsel for the Wife, has referred us to some cases where the reports show that a Hadkinson point had been taken without a summons having been issued.  

16.3 For my part, I would have thought that bearing in mind the principles of the Civil Justice Reform, an application of such significance as a Hadkinson application should not be made without the other party being duly forewarned by way of summons, with enough time for affidavit evidence to be adduced for and against the making of the order.  That has not been done in relation to the appeals in which the Mother is a respondent.

16.4 However in the present case there is no suggestion that the Mother’s legal team has been misled or taken by surprise by the application being extended to the appeals in which she is a respondent. What has been pressed on us by Mr. Li by way of submission, which I accept, is the principle that a Hadkinson application “needs even more serious consideration where the party in respect of which it is submitted should not be heard is the respondent to the application” : M v. M [2011] 1 FLR 1773, 1779, para.26; or, in our case, a respondent to the appeals.

17. However, even after having given more serious consideration to the issue as a result of that feature, it is clear that in the exercise of the court’s discretion, the non-compliance in the present case was such that the Mother should be debarred from participating in the appeals.

18.1 First, I accept the reality of the additional feature in the present case that the Husband’s legal team remained available, as it were, to fight the Mother’s corner : c.f. X Ltd v. Morgan-GrampianLtd [1991] 1 AC 1, 51. However that is only one factor to be taken into account.  A party cannot get away with non-compliance of the court’s orders simply by taking advantage of the fact that there is another party with allied interests.(my emphasis)

18.2 Importantly, there was no appeal from the Discovery Order and it has not been argued that the order was an unreasonable one. In those circumstances it cannot be said that there is any infringement of the maxim “audi alteram partem”: X Ltd v. Morgan-Grampian Ltd, p.50 or related constitutional rights.

18.3 Although the Order was made in August 2012, no attempt was made at compliance, even after a Hadkinson order was made by the judge in August 2013 and was confirmed by another division of this court four months ago.

18.4 It took yet another Hadkinson application in respect of these appeals before the Mother took any action, and even then the judge found what was provided was too little, too late.

18.5 In these circumstances, to permit the Mother to participate in the appeals would be tentamount to condoning a deliberate flouting of the court’s orders. (my emphasis)

20.  Although there is no “Hadkinson” application or any such submission from the Mother, I am minded to say the Father’s continuous non compliance with the Settlement Order; in particular, after having failed in his appeal in the Court of Appeal with indemnity costs of HK$100,000 ordered against him, is serious and even contumacious. The Court would not condon any deliberate flouting of Court’s orders (see CWG v. MH and Others supra).  Apart from there being no basis to “coerce/extract” terms to be agreed to or undertakings to be given by the Mother, the Father could not get away with his non compliance by taking advantage of there exist the mortgagee bank’s interests.  Any hindrance to performance by the mortgagee bank, which I doubted there is or will be any, as to compliance of the Settlement Order should be resolved through proper application to the Court for directions rather than the Father withholding compliance of the Settlement Order. 

21.  In my view, what the Father should have or could have done is to inform the mortgagee bank about the Settlement Order who then might or might not come back with their views of the Father (as mortgagor) having to settle the mortgaged property on trust.  It does not make any sense for the Father to first try and agree terms with the Mother and then to seek the mortgagee bank’s views or consent.  I cannot see any logic for the Father to elicit terms or undertakings from the Mother without first informing the mortgagee bank of the Settlement Order against him in respect of the mortgaged property (that is, One Silver Sea).  Given the fact that the Father had been legally represented continuously since the Settlement Order, it is highly unlikely that his lawyers would not have properly advised him of such situation.  It is more probable than not that the Father does not want to provide accommodation to the Child despite the Settlement Order as His Lordship had said in the Appeal Decision (see paragraph 6 above).

22.  Thus, the Father’s contention (a) must fail.

23.  It was also contended by the Father that the Mother and the Child do not have any arguable right to possession until the property has been settled on trust (paragraph 7 of Mr. Hotten’s submissions).

24.  There is a fallacy in such contention.  The right to have possession and use the One Silver Sea property in the present case was conferred upon the Mother and the Child by the terms of the Settlement Order rather than the property in question being settled on trust so contended by the Father.  Given the fact that the Father is the sole legal and beneficial owner of the One Silver Sea property and this was the only option open for consideration at the time of trial (see paragraph 54 of the FinancialJudgment), and further that the Court had founded upon evidence at trial that the Child’s accommodation needs (with the Mother as her primary carer) should be provided by the Father, the provision of  ‘settlement’ under Section 10(2)(e) of the GMO is proper and reasonable taking into account all the circumstances, including the means and resources of the Father.  This was indeed upheld by the Court of Appeal.

25. In my view, those matters raised in paragraph 8 of Mr. Hotten’s written submissions, such as “the need for there to be a ‘trust’”; “who is to be the trustee”, “position of the bank in respect of the mortgage”; “waste of large sums of money in stamp duty” so on and so forth are the Father’s self-serving reasons, if not excuses, for him not to comply with the Settlement Order.  In case there are any disputes arising subsequently after the Settlement Order was complied with, it could always be resolved through the Court in accordance with established principles of trust or further appropriate directions would be given.  The Father could not take the law in his own hands as he wishes.

26.  In my decision, the Father’s contention (b) must fail.

27.  Reference was then made by the Father to the Mother’s Summons being defective in substance and in procedure (that is, contention (c)). 

28.  At paragraphs 9 to 13 of Mr. Hotten’s written submissions, it was said :-

“9.If Mother had a present right to possession, the proper enforcement method would be under O.45 r.3, which pertains to

the enforcement of judgment for possession of land. Leave of Court is required before a writ of possession to enforce a

judgment or order for the giving of any land will be issued; the Mother has made no such application for leave.

10. The Mother’s summons is based upon O.45, r.6, which only permits the Court to make an order requiring the act to be done within a certain time. Again, there was no order from the Court requiring Father to deliver possession of the property to the Mother prior to it being settled on trust, and she has no interest in the property or right to possession unless and until it is settled on trust.

11. The Mother’s summons is also defective in that she is not asking the Court to specify a time by which the property be delivered to her, rather she asks that Father deliver vacant possession forthwith. The Court can only specify a time for doing an act required by an order under r.6, nothing more. If Mother wants vacant possession of the Property, she would have to proceed under either O.45 r.3 or r.5 and, for completeness, would have to demonstrate they served Father with the appropriate notice under O.45 r.7(4) (which was not done here).

12. There is no jurisdiction to order the delivery of vacant possession of the Property forthwith under the Guardianship of Minors Ordinance, Cap.13 (“GMO”).  See, for example, section 10 of the GMO in respect of orders that the Court may make for custody and maintenance on application of either parent and in particular the need to have regard of the means of the parent.

13. To repeat, the Mother relies on Order 45, rule 6, the Rules of the District Court (“RHC”), Cap.336H for her request for delivery of vacant possession forthwith.  The request made is different from the action stipulated under the Order dated 5 June 2015 which, to repeat, required the Property “be settled on trust for the useof” the Child and the Mother until the Child reaches the age of 18 or ceases full time education, whichever is the later, with reversion to the Father.  Thus, the action required under the Settlement Order was the settlement of the Property on trust not the delivery of vacant possession.  The request of the Mother falls outside O.45, r.6.”

29.  Under Part 6 of the GMO with heading of “Jurisdiction, Procedureand Appeals” at Section 23 which provides :

“23.Procedure in District Court

Except as otherwise expressly provided in this Ordinance, Part 4 of the District Court Ordinance (Cap.336) shall apply to every proceeding before, and every order by, the District Court under this Ordinance(my emphasis), and –

(a) the application may be heard and determined otherwise than in open court;

(b) where the District Court considers that the matter is one which could more conveniently be dealt with by the Court of First Instance, the District Court may refuse to make an order and in that case, without prejudice to the general right of appeal conferred by Part 4 of the District Court Ordinance (Cp.336), no appeal shall lie from the decision of the District Court;

(c) an order for the payment of money shall be enforceable in like manner as an order for the payment of a civil debt.”

30.  Under Part 4 of the District Court Ordinance, Cap.336 (“DCO”) with heading of “Civil Jurisdiction and Procedure” at Section 48 which provides –

    “48. General ancillary jurisdiction

(1) The Court has the same power as the Court of First Instance in any proceedings before it –

(a) To grant the relief, redress, or remedy or combination of remedies, either absolute or conditional; and

(b) Subject to section 46, to give effect to every ground of defence or counterclaim, equitable or legal,

which ought to be given.

(2) The Court has to administer law and equity so that, if there is a conflict or variance between the rules of equity and the rules of the common law referring to the same matter, the rules of equity prevail.

(3) The Court has to give the same effect as in the past –

(a) To equitable estates, titles, rights, relieves, defences and counterclaims, and to equitable duties and liabilities; and

(b) Subject to paragraph (a), to legal claims and demands and estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom or created by an Ordinance.

(4) The Court has to exercise its jurisdiction to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and multiplicity of legal proceedings on any of those matters is avoided(myemphasis).

(5) The Court may stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person, whether or not a party to the proceedings.”

31.  The Father’s contention that this Court has no jurisdiction under the GMO to order delivery of vacant possession must be considered in the context of the legislation.

32.  First of all, the Settlement Order granted under Section 10(2)(e) of the GMO requires the Father to settle the One Silver Sea property on trust for the use(my emphasis) of the Child and the Mother until the Child reaches 18 or the so-called “maximum term” upon cessation of full time education, whichever is later.  It is only possible to have the use of property when such property is actually delivered or possession given to the user, that is, the Child.  Given the fact that the Child is only at the age of 8 and being taken care of by the Mother as her primary carer, possession would have to be given to the Mother on the Child’s behalf who would also be living with the Child.  The terms of the Settlement Order are clear enough that possession should be given by the Father in order that the Child could use it.  It is not a case where the Father was ordered to simply settle the One Silver Sea property on trust for the benefit of the Child which might still arguably be that the Child be given the proceeds of rent if there is rental income.  The term “use of the property” requires no elaboration.

33.  With respect, Mr. Hotten’s submissions (see paragraph 28above) merely referred to matters of procedure under the relevant Rules of the District Court for enforcement of those day to day judgment for recovery of possession cases between landlord and tenant.  It is not the case here and indeed not the terms of the Settlement Order.  There is a reversionary interest with the Father.

34.  Again with respect, the contention as to the Mother’s Summons being defective in substance and procedure completely missed the point.  In my view, the matters so raised as contention in Mr. Hotten’s submissions (see paragraph 28 above) are merely stating the obvious and undisputable rules of procedure for enforcement in those landlord and tenant possession cases.

35.  With my finding that the right to have possession was conferred by the terms of the Settlement Order rather than upon the trust being settled so contended by the Father (see paragraph 24 above), the next question is how and when the Child could enjoy the fruits of litigation, that is, the use of the One Silver Sea property ?

36.  Paragraph 2 of the Mother’s Summons which is now being challenged by the Father is that this Court has no jurisdiction under the GMO; first, to order the Father to deliver vacant possession of the One Silver Sea property; and secondly, forthwith.  The Father contended that a specified period of time must also be stated rather than merely stating “forthwith”.  The Mother would also have to follow certain procedures if she wants to have vacant possession.

37.  In my view, the Father’s contention as to jurisdiction must fail for the following reasons.

38.  Part 4 of the DCO applies to proceedings before and every order made by the Court under the GMO (see section 23 of the GMO).  The Court was statutory bound to exercise its jurisdiction in a way to secure as far as possible all disputes are completely and finally determined and to avoid multiplicity of proceedings (see section 48(4) ofPart 4 of the DCO).  This is also within the spirit and objectives of the Civil Justice Reform (“CJR”) (see Order 1A, r.1 of the Hong Kong Civil Practice).

39.  In my decision, section 48(4) of the DCO (under the heading of “General Ancillary Jurisdiction”) provides the Family Court (as part of the District Court) with the requisite jurisdiction to grant orders, remedies or reliefs which could otherwise be obtained in civil proceedings in the District Court.  The legislative intent under section 48(4) is clear.  It is to avoid multiplicity of proceedings so much so that every order granted under the GMO could, as far as possible, be implemented without having to commence further or multiple proceedings.  On such interpretation that I find this Court, in granting the Settlement Order under section 10(2)(e) of the GMO in respect of the One Silver Sea property for the use (my emphasis) of the Child, by virtue of section 48(4) of the DCO was embraced with the jurisdiction to order delivery of vacant possession against the Father.  In any event, no submission was made by Counsel Mr. Hotten as to the provisions of section 48(4) of the DCO being inapplicable. 

40.  Accordingly, I find there is jurisdiction to order delivery of possession of property to the beneficiary of the settlement upon an Order being granted under section 10(2)(e) of the GMO. The Father’s contention as to jurisdiction fails.

41.  I noted that the Settlement Order does not specify a time for the Father to settle the One Silver Sea property.  Having waited for about 9 months after the Settlement Order or about 3 months after the Court of Appeal had dismissed the Father’s leave to appeal application, the Mother sought the Court’s assistance to order the Father to deliver vacant possession to her forthwith.  I also noted that there is no application for stay of execution of the Settlement Order taken out by the Father though I doubted there are legitimate reasons for such application to be made.

42.  For the fact that the Settlement Order had not specified the time for the settlement to be made, it is perfectly sound and proper for the Mother to request a time be fixed after having waited for 9 months or at least 3 months.  Instead of stating a period of time in paragraph 2 of the Mother’s Summons, say for instance, a number of weeks or months, for the One Silver Sea property to be settled on trust but to seek an outright delivery of vacant possession forthwith by the Father, I find it proper to do so given the observation in the Appeal Decision (see paragraph 6 above) that the Father was trying his best not to provide accommodation for the Child had seen to be materialised with the passage of time.  I also accept Counsel Mr. Li’s submissions as to the term “forthwith” sufficiently spell out the time frame to be “as soon as it can reasonably be done” without having to state the exact number of days or weeks.  A lapse of, say, around 3 months after the Father’s application for leave to appeal was dismissed is, in my view, sufficient enough for compliance of the Settlement Order.

43.  Thus, I find the Father’s contention as to the Mother stating the time of “forthwith” fails.

44.  Moreover, as the docket judge of this case since commencement of these proceedings in 2010, 14 Judgments had been handed down by this Court, with 4 Decisions by the Court of Appeal, and with this Decision to be the 15^th Judgment, not to mention another forthcoming leave to appeal application lodged by the Father now scheduled for hearing on 25 April 2017 at 2:30 p.m., it is more likely than not that whatever period of time specified by the Mother for delivery of possession would be futile.  In my view, any further delay in settlement of the One Silver Sea property or the delivery of vacant possession severely prejudice the Child’s interests to receive the fruits of litigation.  Such flagrant breach and contumacious conduct would not be accepted or tolerated by the Court.    

45.  At paragraph 36 of this Court’s Judgment dated 3 November 2016 where the following comments had been made :-

“36. Given the contumacious attitude and litigation conduct of the Applicant, I am satisfied that if leave to appeal is granted, whether it is out of time or within time, the Respondent and the child in question would be seriously prejudiced by the Applicant’s conduct of litigation which no Court would encourage or tolerate. If such litigation conduct is to be accepted, I firmly believe it is in contravention to the spirit of the Civil Justice Reform (CJR) regime.”

46.   For these reasons, I find the Father’s contention (c) fails.

47.   In the Father’s contention (d), he referred to the Court of Appeal’s indication of the option of undertakings as opposed to settlement in order to avoid the stamp duty issue arising from the settlement regime.  Such option had been agreed to by the Mother’s legal representative at the Court of Appeal hearing.

48.   Counsel Mr. Hotten submitted that to settle the One Silver Sea property on trust would be chargeable with stamp duty as an “agreement for sale” and/or as a “conveyance on sale”.  The total amount of stamp duty payable was estimated to be around HK$975,000 thus making the Settlement Order disproportionate, costly and unreasonable as regards to the means of the Father.  Such sizeable sum would be better spent on the child N rather than “lost’ to the Government.

49.  Mr. Hotten referred to the case of Re P [2003] 2 FLR 865 (with approval in IDC v. SSA [2014] 4 HKLRD 220) which suggested that the Father must have some right to veto an unsuitable investment.

50.  In my view, the stamp duty factor should only be an issue worth exploring out of court (my emphasis) rather than using it as an excuse for not complying with the Settlement Order.  Once it becomes apparent that the stamp duty could not be resolved through out of court (my emphasis) negotiation, the only option for the Father is to go back to the arena and proceed with the Settlement Order and not to defer or delay it as long as he wishes.  The Father had appealed but lost.  It can be seen from paragraphs 5, 8 to 11 of the Appeal Decision that the Father’s then Counsel Miss Athena Wong had surreptitiously included the stamp duty issue in the Notice of Appeal which was thrown out by the Court of Appeal outright.  Reason being that such issue had not been brought forward at all at the trial proper before this Court.  There is no room for the Father now to put up such stamp duty issue again as an explanation for his non compliance with the Settlement Order.

51.  With respect, it is wrong for Mr. Hotten to say the Father must have some right to veto an unsuitable investment for 2 reasons.  First, the Settlement Order could hardly be compared or in any way compatible with an investment as in the case of IDC v. SSA (supra).  Secondly, there had never been any issue of investment under the terms of the Settlement Order.

52.  I find the Father’s contention (d) completely fails.

Conclusion

53.  For all the above reasons, I find in favour of the Mother and grant an Order in terms of paragraph 2 of her Summons dated 2 March 2016 with minor amendments.

54.  To provide the Father with some leeway, I am prepared to extend the time for delivery of vacant possession from “forthwith” to “28 days from the date of this Decision”; that is to say, up to and including 10 April 2017.

55.  To ensure compliance by the Father for better protection of the Child’s best interests, I will endorse a penal notice on this Order with directions that such Order be personally served on the Father and also his present legal representatives.

Costs

56.  Given careful consideration, I decided that it is fair and reasonable to apply the normal rule on costs to follow the event.  That is to say, the Applicant shall pay the costs of paragraph 2 of the Mother’s Summons dated 2 March 2016 including all costs reserved (if any), to be taxed if not agreed.  The Respondent’s own costs be taxed in accordance with Legal Aid Regulations.

57.  I also grant Certificate for Counsel.

Orders

58.  I now grant the following Orders :-

(a)  The Applicant (Father) do deliver vacant possession of the One Silver Sea property to the Respondent (Mother) for the use of the Child on or before 10 April 2017 in compliance with paragraph 180 (a) of the Judgment dated 5 June 2015;

(b)Penal Notice be endorsed on this Order;

(c)  Service of this Order be effected on the Applicant (Father) personally and his present legal representatives;

(d)The Applicant (Father) do pay the costs of and occasioned by paragraph 2 of the Respondent’s (Mother’s) Summons dated 2 March 2016, including all costs reserved (if any), to be taxed if not agreed; and

(e)  The Respondent’s (Mother’s) own costs be taxed in accordance with Legal Aid Regulations.

59.  I also grant Certificate for Counsel.

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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__________________________

__________________________

D E C I S I O N
(Leave to Appeal out of time, Leave to file
submissions in reply on variation of costs)

__________________________

Foreword

1.   The Applicant is the Father.  The Respondent is the Mother. There are 2 matters listed before this Court today for disposal. 

2.   First, there is the Applicant’s Summons dated 24 August 2016 (“Appeal Summons”) seeking leave to appeal out of time against this Court’s Decision dated 27 July 2016 (“Costs Variation Decision”) in respect of his Summons for variation of costs (“Costs Variation Summons”) taken out back on 19 June 2015, that is to say, about some 16 months ago.

3.   Secondly, there is the Applicant’s Summons dated 24 June 2016 (“Leave to file Reply Summons”) seeking leave to file his reply submissions on his variation of costs application.  This Leave to file ReplySummons was scheduled to be heard on 29 August 2016.  At the hearing on 29 August 2016, this Summons was adjourned to today with costs reserved.

4.   The Applicant’s present lawyers Miss Chan Hoi Yan Andrey filed her 2^nd Affidavit in support of the Leave to file Reply Summons.  The Applicant himself filed his 41^st Affirmation in support of the Appeal Summons.

5.   As set out in paragraph 5 of the Costs Variation Decision, apart from the parties’ agreement to have the Costs Variation Summons to be dealt with by way of paper disposal, the parties managed to also agree on the timing and filing of written submissions. There was a joint letter dated 21 April 2016 which contained the agreed directions and time schedule for the filing of respective written submissions.  There was no agreement for the Applicant to file a further submission in reply in those agreed directions. 

6.   On 22 April 2016 this Court granted an Order in terms of the parties’ agreed directions as per their joint letter dated 21 April 2016.   Nonetheless, the Applicant’s submissions were filed later than the original agreed time schedule which was agreed to be 6 May 2016 (that is to say, 14 days after the 22/4/2016 Order as agreed).  It turns out that an ‘unless order’ was needed in order to compel the Applicant to do so and the time was extended to 4 p.m. on 26 May 2016.  The Respondent then filed her submissions on 10 June 2016 (with 9 June 2016 being a public holiday).  Having received both parties’ written submissions, this Court started to consider its decision on the Father’s Costs Variation Summons which was then handed down on 27 July 2016.

The hearing today and time estimation

7.   Today’s hearing was scheduled for 12:00 noon which, unfortunately due to the massive number of cases (11 in total between 9:30 a.m. and noon) after the long weekend ending yesterday, this case could only start around 1:00 p.m.   The Appeal Summons taken out by Messrs. Chan & Chan was marked for a “3 minutes” hearing.  Such time estimate is grossly under estimated in light of the nature of such application.  In any event the hearing started around 1:00 p.m. 

8.   Counsel Miss Athena Wong for the Applicant having started for about 20 minutes until around 1:20 p.m. when it was obvious that she was nowhere near the end of her submissions, this Court raised the concern on the hearing time since Respondent’s Counsel Mr. Kevin Li has yet to make his reply.  Miss Wong then informed the Court that she might need probably another 30 minutes or so to finish her submissions, that is to say, around 1:50 p.m.  Having said, the time estimate for the AppealSummons should have been listed for an hour if not more rather than listed for a “3 minutes” hearing.   Even worse is that Counsel Mr. Kevin Li was engaged for another case in the afternoon at 2:30 p.m. in the Lands Tribunal in Kowloon and that he has yet to take his lunch. 

9.   Both Counsel then agreed that the hearing of the Appeal Summons could continue by way of paper disposal based on respective written submissions filed subject to the Applicant having the right to file a further written submissions in reply to that of the Respondent’s submissions.

10.   Eventually, both parties confirmed that the hearing of the Appeal Summons be continued by way of paper disposal without further hearing in this Court to save costs and time.  By consent, the Applicant was granted leave to file his written submissions in reply within 21 days, that is, on or before 1 November 2016.

The applicable law and legal principles

11.    The jurisdiction to grant leave to appeal was contained in Section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.  It is trite law that the duty of showing reasonable prospect of success falls upon the applicant for leave to appeal, namely, the Applicant in this case.

12.   The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hon Fok JA at paragraph 9 of that Judgment).

13.    When determining whether leave to appeal out of time should be given are, the following factors have to be considered :-

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of success;

(d) the extent of prejudice that would be caused to the other party if leave is granted.

(see : Norwich and Peterborough Building Society v. Steed[1991] WLR 449followed by Birkenhead Properties & Investments Ltd v. Leung Yiu & Ors[1998] 1 HKLRD 527.)

Whether leave to appeal out of time should be given in this case ?

14.   To start with, it is a matter for the Court’s discretion as to whether justice could be served by allowing extension of time for seeking leave to appeal.  

15.   However, in the present case, the Costs Variation Decision was handed down on 27 July 2016.  The Appeal Summons was issued on 24 August 2016, that is to say, the last day of the 28-day appeal period.  Thus, there is no issue of the present appeal being brought out of time as Counsel Miss Athena Wong so alleged.

16.   In light of the Applicant’s submissions also covered leave to appeal out of time, I am prepared to go through those submissions and also the factors for determining leave to appeal out of time which also include the factor of whether there exists any reasonable prospect of success.

(a)   Length of the delay

17.   For the computation of time just said, there is no issue of the Applicant’s appeal being brought out of time. 

(b)   Reasons for the delay

18.   Even if there is an issue as to delay (which is not the case here), I am minded to say that in the Father’s 41^st supporting Affirmation, there can hardly be seen any legitimate reasons for the delay in filing the Appeal Summons. The following paragraphs are what the Applicant had said in the 41^st Affirmation purportedly to be his “reasons” for the delay :-

“4. On 26^th May 2016, I filed and served my submissions on the Costs Summons.  On 10^th June 2016, the Respondent filed and served her submissions on the Costs Summons.

5. Having perused the Respondent’s submissions, I found that a number of points expressed therein called for clarification. Therefore, on 24^th June 2016, I instructed my solicitors Messrs. Chan & Chan (“my solicitors”) to take out a Summons seeking leave to file and serve my reply submissions on the Costs Summons as per the draft attached thereto (“the Reply Summons”). The hearing of the Reply Summons was scheduled for 29^th August 2016 at 12 noon before Deputy District Judge G. Own.

6. On 26^th July 2016, my solicitors received a letter dated 26^th July 2016 from the from the Respondent’s solicitors stating that the Respondent was prepared to agree to the Reply Summons on condition that a few amendments were made to the draft reply submissions. There is now produced and shown to me marked ‘CCMJ-41-1’ a copy of the said letter.

7. After being informed of the Respondent’s stance, I sought and awaited advice from my solicitors and counsel on whether the amendments were acceptable.  In view of the Respondent’s agreement, I believed that the Reply Summons could be disposed of without a hearing.

8. Nonetheless, on 27^th July 2016, my solicitors informed me that Deputy District Judge G. Own handed down the Decision in which the Costs Summons was dismissed with costs to the Respondent.

9. Knowing that the Reply Summons had yet to be disposed of, I instructed my solicitors to write to the Court on 8^th August 2016 praying that the Court could set aside the Decision.  There is now produced and shown to me marked ‘CCMJ-41-2’ a copy of the said letter.

10. On 16^th August 2016, however, my solicitors informed me that the Court did not see fit to do so.  There is now produced and shown to me marked ‘CCMJ-41-3’ a copy of the Order/Comments made by the Court.”

19.   From reading the above, the Applicant attempted to put forward his “reasons” for the delay by reference to what had happened between himself and his solicitors and; also between his lawyers and the Respondent’s lawyers.  Counsel Miss Wong also referred to those events stated above are actually the “reasons” for the delay.  Miss Wong further submitted that this was not a case where the intended appellant simply ‘sits on’ the matter and did nothing.  With respect, I do not agree with Miss Wong.

20.   Lawyers are supposedly fully conversant with the relevant rules, practice and procedure at each stage of the litigation process and, more importantly, what step to take at each stage of the proceedings in order to protect his or her client’s best interests.  Take a day to day example in personal injuries litigation cases, if the parties are in active negotiation for settlement when the legal right to bring the claim is going to be statute-barred, could the intended claimant/plaintiff simply let the time passes and then, when negotiation fails, issue the Writ and seek the Court’s indulgence to extend the limitation period by saying that it was not the case that the claimant/plaintiff had done nothing and let the limitation period passed, there had been active negotiation which unfortunately had fallen through ?  In such an example, issuing a protective writ is the diligent and proper way of protecting the client’s rights and interests which competent lawyers would do whilst the active negotiation could still be on-going.

21.   Another submission by Counsel Miss Wong that not issuing the Appeal Summons within time is for costs savings hoping that it could be resolved is, in my view, a complete non-starter.   If the Applicant is not satisfied with the Costs Variation Decision, the only option open to him is to seek leave to appeal to overturn it.   In the absence of any appeal, how could the Costs Variation Decision be resolved even if consent was obtained from the other side for him to file a further submission in reply ?  Moreover, the costs for the filing of the Appeal Summons when compared with the Costs Order at stake which has been reviewed and upheld on 27 July 2015, is just minimal.

22.   Had this Court all along been provided with copies of the letters exchanged between the 2 law firms (which was not the case and in fact should not be the case) and was then put on notice of the on-going negotiation as to the intended filing of a further submissions by the Applicant, there is still no rule or practice or any norm that the Court (being under the duty to deliver its reserved decision expeditiously under the spirit of the Civil Justice Reform) should then ‘refrain’ from so doing and wait and see how things go along outside the courtroom between the parties’ lawyers. 

23.   In my view, if the Applicant’s lawyers only managed to schedule a hearing date for the Leave to file Reply Summons (dated 24 June 2016) to be heard 2 months later on 29 August 2016, they could always seek urgent directions from this Court, or even from the Duty Judge, for expediting the hearing of such Summons with good reasons being provided.  No such step had ever been taken.  No reason was put forward even at this stage as to why such step of seeking urgent directions had not been taken or contemplated.   What the Applicant or his Counsel Miss Athena Wong is attempting to argue is that, as I see it, it is a matter of course (myemphasis) that the Court should look after the Applicant’s case or monitor the way how the Applicant conducted his case.   Without doing so, it would then be a ‘breach of the rules of naturaljustice and fairness’ as Counsel Miss Athena Wong so framed her argument.  I will come to such contention later in this Decision.

24.   Moreover, even if there was special arrangement for expediting the hearing of the Leave to file Reply Summons by the Applicant’s lawyers, such application might still be contested and there is no assurance that the Applicant could obtain leave to do so at the end of the day. 

25.   Taking all the above into account, I find that the “reasons” provided for the delay are nothing but excuses.  Luckily, there is no such issue of delay in the present appeal; for otherwise, the Applicant will lose on such factor.

(c)   The prospects of success

26.   In a gist, the Applicant’s only ground of appeal (as per the draft Notice of Appeal) is that this Court should have, but did not, withhold handing down its Costs VariationDecision until the Applicant’s Leave to file Reply Summons was heard.  Counsel Miss Wong in her written and oral submissions even went further to refer to “breach of therules of natural justice and fairness”; not acting in accord with the spirit of the Civil Justice Reform (“CJR”) where the Court or Tribunal should ensure fairness between parties; not fulfilling the duty to act fairly so on and so forth.  It was then submitted that at the end, what had happened is that this Court just handed down its Costs VariationDecision on 27 July 2016, which is over a month before the date scheduled for the hearing of the Leave to fileReply Summons, without giving the Applicant the right to be heard on such Summons.

27.   Further, the Applicant at paragraphs 9 and 10 of his 41^st Affirmation submitted that this Court, having handed down the Costs VariationDecision, did not set it aside and hand down ‘a new decision’ after giving the Applicant the chance to file his Reply Submissions so requested by them. 

28.   In my decision, such contentions of the Applicant and his Counsel which was relied upon as his grounds of appeal (though not specifically pleaded so in the draft Notice of Appeal) are unscrupulous and bound to fail for the following reasons.

(a) According to the records, there was no letter or even any memo from the Applicant’s lawyers, Messrs. Chan and Chan, informing this Court that they had filed the Leave to file Reply Summons and requesting this Court to expedite the hearing of such Summons.  I must say that it is not the duty or obligation, or even there had ever existed any practice or norm, for a Judge who had reserved his or her Decision on any matter, and before handing down the Decision, to first have a thorough ‘go-through, search or vet’ the entire case file to ensure that there was no applications filed which are pending.  It is entirely wrong to expect a Judge to do such an exercise, if not being disrespect to the Judge or discourteous to the Court;

(b) Had the Court or the Judge been so informed, it is still a matter of judicial discretion as to whether the mere filing of a Summons by a party could then ‘defer’ a reserved Decision from being handed down.  Any such ‘deferment’, if I may use such a phrase, must be considered with extreme care and caution and should be rare for otherwise the Court would be ‘monitored’ by the parties when exercising its judicial functions, including handing down of reserved decisions.  Moreover, there is always unmeritorious applications taken out by unscrupulous litigants with the intention to delay the due process of litigation or defer the other party from receiving the fruits of litigation; 

(c) It is always the sole responsibility of the lawyers to look into the matter with due diligence and competence when determining the need or urgency of any application, to see whether special arrangement should be called for so that his or her client’s rights and interests may be well protected or secured, rather than simply ‘throwing in’ (if I may use such phrase in the present context) an application and then completely shifting the responsibility over to the Court or blaming the Judge for not attending to it. Any attempt to take chance over the Court’s diary on fixing of hearing dates not early enough to cater for any urgent situation as a ground of appeal, as happened in the present case; and also to seize it as an ‘excuse’ or ‘explanation’ for not taking steps which ought to have been taken by the lawyers but somehow not been taken or even overlooked must fail and would not be tolerated.

29..   In order to complete the picture, I have also considered the contents of the Applicant’s submissions in reply sought to be filed which was attached to the Leave to file Reply Summons.   I come to the conclusion that those matters had either been canvassed by this Court when arriving at the Costs VariationDecision dated 27 July 2016 or merely a repetition of matters which had earlier been pleaded.

30.   Considering all the above, I find that there are no reasonable prospects of success on appeal, whether on the contention that this Court had not attended to the Leave to file Reply Summons before handing down the Costs Variation Decision; any alleged ‘breach of the rules of naturaljustice’ or even on the submissions in reply intended to be filed by the Applicant attached to the Leave to file Reply Summons.

31.   The submission that this Court did not set aside the Costs Variation Decision and hand down a ‘new decision’ is totally incorrect and go against any established procedure, legal practice or jurisprudence.  There is no basis for a Court to set aside a decision which had been handed down (my emphasis) and then to hand down (my emphasis) ‘a new decision’.  This is different from the case of variation (my emphasis) of an Order on legitimate grounds.   Counsel Miss Wong does not seem to have further submissions to make on this issue although the Applicant had referred to it at paragraphs 9 and 10 of his 41^st Affirmation.  I would add that it is unprecedented for such suggestion to come from legal practitioners (see contents of the letter from Messrs. Chan and Chan dated 8 August 2016 produced as exhibit “CCMJ-41-2”).

(d)   The extent of prejudice to the other party

32.   Although there is no issue of the Applicant’s appeal being brought out of time, I am prepared to say that the extent of prejudice caused to the Respondent is substantial had I been required to deal with this factor.   The prejudice is the substantial delay of the proceedings and also deferring the Respondent from receiving the fruits of litigation, both of which caused by the litigation conduct of the Applicant.

33.   As said, the Applicant’s Summons for variation of the Costs Order was filed about 16 months ago on 19 June 2015, not to say the substantive Costs Order granted in favour of the Respondent which was embodied in the Judgment on Financial Provisions handed down on 5 June 2015.  For various reasons, such application to vary costs was only set down for disposal in April this year by the Applicant. It is always the party, which is the Applicant in this case and had been legally represented, who wishes to seek review of costs to pursue his application expeditiously and efficiently.

34.   As the docketed Judge overseeing this case for nearly 6 years, the Respondent has all along been receiving legal aid on public funds since 2010 (save and except her application for travel with the child in summer vacation this year).  Any fruits of litigation, including costs, should be finalized and preferably received within a reasonable time.  On the other hand, the Applicant has all along (save and except a brief moment of just 2 days only) been spending enormous legal fees throughout the past 6 years.  At paragraph 26 of one of my Ruling in this case dated 10 June 2015 where I had said :-

“26. The Father has all along been legally represented by reputable firms with extensive matrimonial practice and experienced Counsel.  I have no hesitation to say the Father must have been apprised with the contents and meaning of every single documents, orders, directions and reports with the benefit of full legal advice.  It strikes my surprise that the Father now seeks to refer and also accedes to those comments of this Court contained in the Judgment dated 5 October 2012 of which he had once disagreed with and sought to obtain leave to appeal from this Court and the Court of First Instance.  For the sake of completeness, the Father had so far instructed 3 firms of solicitors (Messrs. Michale Li & Co., Messrs. Lam, Lee & Lai, Messrs. Haldanes) and engaged 6 Counsel to protect his interests (Miss Jennifer Tsui, Mr. Felix Li, Miss Annie Lai, Miss Francis Irving, Miss Mairead Rattigan, Mr. Jeremy S.K. Chan) throughout different stages of the proceedings.”

35.   As a matter of fact and court records, subsequent to the aforesaid Ruling in June 2015, there are also the successor law firms of Payne Clermont and the present firm of Messrs. Chan and Chan instructed by the Applicant, Counsel Mr. Keith Hotten was instructed for one hearing on 31 March 2016.  Counsel Miss Athena Wong should be the 8^th Counsel acting for the Applicant in this case.  Moreover, and it is most unfortunate, there is on the file records that the Respondent has recently issued a Judgment Summons which has yet to be heard later this year against the Applicant for his non compliance with various orders and undertakings, which includes the terms in main Financial Judgment handed down on 5 June 2015.  The Applicant had once attempted to appeal the main Financial Judgment which was dismissed with an indemnity costs order summarily assessed at HK$100,000 against him granted by the Court of Appeal (see HCMP No.2059 of 2015, dated 7 December 2015).  For that hearing, Counsel Miss Athena Wong also represented the Applicant on the instructions of the law firm, Payne Clermont. 

36.   Given the contumacious attitude and litigation conduct of the Applicant, I am satisfied that if leave to appeal is granted, whether it is out of time or within time, the Respondent and the child in question would be seriously prejudiced by the Applicant’s conduct of litigation which no Court would encourage or tolerate. If such litigation conduct is to be accepted, I firmly believe it is in contravention to the spirit of the Civil Justice Reform (CJR) regime.

37.   With respect, Counsel Miss Wong’s submission that this Court having breached the rules of natural justice and fairness; not acting in accord with the spirit of the Civil Justice Reform (“CJR”) in that the Court or Tribunal should ensure fairness between parties; not fulfilling the duty to act fairly is totally unsustainable. How could a party or his lawyers who had failed in taking a step in the litigation process or acted diligently or competently turn around to make the assertion that his or her client was being unfairly treated by the Court ?  Any such assertion is beyond any sense of logic, justice or even professional ethics. 

Any exceptional circumstances?

38.   To complete the picture, I have also considered whether there are any exceptional circumstances where justice calls for leave to appeal to be granted to the Applicant.

39.   Given careful consideration, I simply do not find any exceptional circumstances exist.

40.   For all the reasons above, I find the Applicant’s AppealSummons fails and must be dismissed.

41.   Following the dismissal of the Appeal Summons, the Leave to File Reply Summons becomes academic and must be dismissed.

Costs

42.   Given careful consideration, I decided that it is fair and reasonable to apply the normal rule of costs to follow the event.  The Applicant shall pay the costs of the 2 Summonses to the Respondent, to be taxed if not agreed.  The Respondent’s own costs be taxed in accordance with Legal Aid Regulations with Certificate for Counsel.

Orders

43.   I now make the following Orders :-

(a) The Applicant’s Appeal Summons dated 24 August 2016 be dismissed;

(b) The Applicant’s Leave to file ReplySummons dated 24 June 2016 be dismissed;

(c) The Applicant do pay the costs of and occasioned by the Appeal Summons and the Leave to file ReplySummons to the Respondent, including all costs reserved (if any), to be taxed if not agreed; and

(d) The Respondent’s own costs on both Summonses be taxed in accordance with Legal Aid Regulations.

44.   I also grant Certificate for Counsel on both Summonses.

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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D E C I S I O N
(Resumption of Interim Access/Variation of Interim
Access : By Paper Disposal)

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Background

1.  This is a protracted and high conflict case between the parties over their daughter N born out of the wedlock since the child was under 2 years old back in 2010.  At present, the child is nearly 8 years old and studying Primary 2 in September this year.  The Applicant is the Father (“Father”) and the Respondent is the Mother (“Mother”).

2.  Following a 16-day trial back in 2010, the Mother was granted custody, care and control of N and the Father was granted general access (“the Main Judgment”).  Directions were given that a short hearing be fixed with one hour reserved for determination on details of the general access.  Parties were granted leave to submit written submissions on general access arrangement within 14 days of the Main Judgment.

3.  Without going back to each and every step taken by the Father since the Main Judgment, which includes appeals, variations and various other applications, the Father had not and still did not pursue the general access arrangement provided for under the terms of the Main Judgment.  Although the Father had been legally represented throughout these years (save and except a brief moment of only 3 days from 18/4/2016 to 20/4/2016 inclusive), the Father now chooses to linger upon an interim access arrangement granted by this Court on 13 March 2014 (“the 13/3/2014 Order”).  The 13/3/2014 Order was, however, suspended on 4 June 2015 following the Mother’s complaint of suspected child abuse after an access ended on 30 May 2015.  For the sake of completeness, there are 2 more incidents of complaints of alleged child abuse by the Mother.  Suffice to say is that by now all those complaints had been resolved by the Multi-Disciplinary Case Conferences (“MDCC”) with no findings of abuse or prosecution of the Father.  The latest access arrangement now in place since 2 April 2016 is that the Father would have unsupervised access on Saturdays from 10 a.m. to 9 p.m. against certain undertakings given by the Father.  This is by way of consent of the parties modifying the Court Order dated 9 December 2015 when the Father was only having 3 hours weekly supervised access at the Social Welfare Office.

4.  The Mother filed her Summons on 12 November 2015 seeking to vary the Father’s access to supervised day access (“the Mother’s Summons”).  She filed her 15^th Affidavit in support of her application and her 16^th Affidavit in reply to the Father’s 36^th Affirmation.

5.  The Father filed his Summons on 7 March 2016 seeking resumption of the access arrangement as per the 13/3/2014 Order (“the Father’s Summons”).  He filed his 37^th Affirmation in support, his 36^th Affirmation in opposition to the Mother’s Summons, his 38^th Affirmation in reply to the Mother’s 18^th Affidavit.

6.  The parties’ Summonses were listed for a 2-day trial on 28 and 29 July 2016.  Throughout these years, there are different social welfare officers who had prepared various investigation reports.  The latest officer is Mr. Cheng Cho Hong (“Mr. Cheng”) who, after prepared the last report dated 24 August 2015, also transferred out of his post in February 2016. 

7.  Both parties are represented by Counsel for this hearing.  Both Counsel informed this Court that the parties themselves would not be giving oral evidence at this trial but to rely upon their respective affidavit evidence filed and also further written submissions on paper.  Thus, only the social welfare officer Mr. Cheng testified at the trial and subject to examination by the parties’ Counsel.

8.  Given the fact that neither party decided to give oral testimonies and be cross examined upon their affidavit evidence when their credentials could be tested under oath, I have to say that little weight would be attached to their affidavit evidence whenever there are controversies on any factual issues. 

The applicable law

9.  There is not much dispute as to the applicable law and legal principle of “best interests” of N is always the first and paramount consideration of the Court.

The core issue 

10.  Given the nature of the parties’ applications, the core issue to be determined is, in so far as access is concerned, whether it is in N’s best interests to now resume the access arrangement as per the 13/3/2014 Order as the Father now so alleged; or, whether the access issue be considered and resolved afresh at this stage, preferably a long term access as opposed to any interim defined access, as the Mother now so alleged ? 

The Father’s application 

11.  In a gist, the Father referred to the findings of different MDCC that the Mother’s alleged 3 incidents of child abuse had never been established and that all the professionals within the MDCC, and also the social welfare officer Mr. Cheng who testified in Court at this trial, considered that the Father poses no risk of harm to N and had recommended resuming normal access.  Reference was also made to this Court’s Judgment dated 21 September 2015 where it was said, inter alia, that “in the absence of any finding orconclusion of child abuse, to continue with the suspension of the Access Order dated 13 March 2014 would not be in the child’s best interests.” (see CCMJ v. SSM, FCMP 67 of 2010 at paragraph 38). 

12.  Counsel Miss Athena Wong for the Father in her 1^st Closing Submissions (consists of 35 pages and 98 paragraphs) referred to different reports and comments by various professionals made in the past.  To say a few of the professionals, namely, the psychiatrist of Kowloon Hospital Dr. Lee Yat Duen; clinical psychologist of Kowloon Hospital Miss Chan; the social welfare officer Miss Ho; the clinical psychologist Miss Cheung W.S. Irene of Yaumatei Child Psychiatric Centre, Dr. Winnie Wong in her affirmation dated 22 September 2014, Dr. Bill Tsang’s, Counselling Psychologist of Caritas Family Services, observation, and also different social welfare officers in charge such as Miss Chow, Miss Yim and Miss Kiu.

13.  Miss Athena Wong filed her further Submissions in Reply dated 14 September 2016.  Cases and authorities relied upon by Miss Athena Wong include CLL v. SW, FCMC No.10564/2009 (Unreported, 17/12/2012); CCMJ v. SSM, FCMP No.67/2010 (Unreported, 21/9/2015), LHM v. HTF, FCMP No.10/2010 (Unreported, 19/5/2011) and Re B(Children) [2009] 1 AC 11.

The Mother’s application

14.  The Mother’s stance can be summarised as follows.

15.  Counsel Mr. Kevin Li for the Mother in his first Closing Submissions referred to the startling emotions of the child N when she displayed disapproval with the Father as so recorded in the report of Mr. Cheng not to be lightly ignored although this Court is not required to come to any definitive view of the reason; the recommendation of social welfare officer Mr. Cheng was assessed only on weekly 3-hour sessions under his supervision without the opportunity to actually assess N’s behaviours towards the Father when there was no supervised access; the lack of chance for Mr. Cheng to evaluate the situation after March 2016 when the present access arrangements were put in place since he himself was transferred out to other department around end of February 2016.  It was submitted that Mr. Cheng’s opinion was only applicable up to March 2016 and more importantly, he had fairly accepted that he would not be in a position to say whether the current access arrangements are better or worse than before.  There ought to be a further report by his successor in this case on such aspect.

16.  Furthermore, Mr. Cheng also accepted that complete resumption of the 13/3/2014 Order might not be practicable in light of N’s present schoolwork, extra-curricular activities and schedules. 

17.  Counsel further submitted that the Father had been procrastinating on the general access arrangement as provided for under the Main Judgment back in October 2012 for no apparent reason.  Rather, the Father saw fit to spend time and costs on different applications for variation of interim access, custody, care and control over these years. The Father’s underlying intention for so doing should not be overlooked.

18.  Reference was also made to the wellbeing of the child N by maintaining the present access arrangement, say, every Saturday from 10 a.m. to 9 p.m. on condition that the Father complies with a number of undertakings.  The present access arrangement was in fact a modified one by consent of the parties from the earlier defined interim access of only 3 hours per week at the Social Welfare Officer’s office as ordered by this Court. 

19.  In his Further Closing Submissions, Counsel Mr. Kevin Li submitted that the Father’s case as per his Counsel’s Submissions is pressing this Court to now resolve and make findings without a trial upon the 3 incidents of child abuse complained of by the Mother which essentially are factual disputes.  This is commonly excluded to be an adjudication done summarily.  In any event, all those incidents are now ‘water under the bridge’ and this Court should now be primarily concerned with the “best interests” of the child and not the parents’ conflicts or differences (see WTV v. WMC, FCMP No.54/2014).

20.  As to the evidence of Mr. Cheng, reference was made to the case of WSM v. FSY (a minor: custody appeal), CACV No.352/2004 where it was said, inter alia, that “a socialwelfare report is not a special category of material information, nor shouldthe recommendation assume a status somewhat akin to a legal presumption which needs to be rebutted.  Ultimately the decision making lies with the judge based on the available evidence and guided by the relevant principles.”

The Court’s Views

21.  Given the fact that matters relating to children are always volatile and case sensitive, the Court should at all times be astute to oversee all the circumstances with the “best interests” of the child always in mind rather than meeting the wishes of the parents or simply adopt the recommendation of the social welfare officers in their reports when deciding children matters.  Although from time to time it has been said that social welfare officers are the ‘eyes and ears’ of the Court, it is ultimately the Court’s exercise of discretion to uphold the child’s best interests (see WSM v. FSY supra).

22.  Although “normal access” was recommended by both Mr. Cheng and various other professionals in their reports, there remain the important question as to whether “normal access” should automatically be taken to mean the access arrangement defined (my emphasis) under the 13/3/2014 Order ?  

23.  In my view, “normal access” should not be equated with the 13/3/2014 Order for 2 reasons.  First, I am not convinced to any extent by Counsel Miss Athena Wong that the defined arrangement for N’s access 2 ½ years ago back in 2014 could now be accepted as ‘normal’ in any sense without any regard or consideration to the present circumstances of the child N, such as her schooling, activities and other related factors, not only the fact that N was in kindergarten at that time and now she is in her primary studies.  This could have been considered subjectively by the Father himself as being “normal access”.  Secondly, normal access should be decided against a number of existing facts rather than relying upon historical events.  To say the Mother’s repeated child abuse allegations over the years not being substantiated or established by now and accordingly the access arrangement 2 ½ years ago then become a “normal access” is over simplistic and without basis. As said, children matters are always volatile and varying from time to time.

24.  I also have difficulty to understand how this Court could make its own findings of fact on the Mother’s child abuse allegations simply by reference to the findings of other professional bodies such as the MDCC but without actually conducting a trial on the evidence.  The Father, with the benefit of legal advice, even saw fit not to give oral testimonies to persuade this Court that resumption of the 2 ½ year ago interim access would be able to fit into “normal access” so recommended by Mr. Cheng and other professionals is also difficult to understand. 

25.  Moreover, Counsel Miss Athena Wong in her Submissions referred to the Father’s application for general access being overtaken by event of his earlier custody variation application, it is however noted that such custody variation application was withdrawn on 8 March 2016, which is 8 days prior to his filing of the present Summons for resumption of interim defined access on 16 March 2016 (although the Summons was dated 7 March 2016).  Why the Father does not pursue the general access arrangement but chose to pursue resumption of the interim defined access Order of 13/3/2014 remain to be explained.

26.  As to the Mother’s application for variation of the Father’s access to supervised day access, this was somehow overtaken by event of the arrangement in March 2016 when unsupervised (my emphasis) Saturday access from 10 a.m. to 9 p.m. was agreed to by her although with certain Undertakings by the Father.  The Mother has not amended her Summons either to specifically state what access orders she is now seeking. 

27.  Counsel Mr. Kevin Li in the Closing Submissions invited the Court to maintain the ‘status quo’ to avoid any unnecessary disruption to the present routine of N.  To the very least, no further disruption should be made until the final access arrangement to be determined. 

28.  Counsel Miss Athena Wong commented that it is misconceived to term the present access arrangements as any kind of ‘status quo’ since it was only a temporary access due to abuse allegation which had now been found to be unsubstantiated.  To take the present access as ‘status quo’ would have the undesirable effect of unfairly depriving the Father (who was being falsely accused) of his access whilst unjustly rewarding the Mother (who wrongly accused the Father).  ‘Status Quo’, as submitted by Counsel Miss Athena Wong, should be the regular stable access arrangement prior to the abused allegation, namely, that of the 13/3/2014 Order.

29.  In my view, whatever label or description given to the existing access arrangements is neither here nor there.  What does really matter is whether the existing access arrangements are in the best interests of N given the fact that the scope and extent of access at present is comparatively less than that provided for under the 13/3/2014 Order.  In particular, staying access with the Father has been suspended for some 15 odd months.  I believe this is also the main concern of the Father when he applied to resume the 13/3/2014 Order.  However, parties should always look forward to practical solutions rather than nagging upon historic events.

30.  I am not convinced by Mr. Cheng’s recommendation that normal access in the terms of the 13/3/2014 Order to be in the best interests of N.  Reason being that Mr. Cheng himself acknowledged that no account had been taken of as to the child’s existing and increasing workload at primary schools which apparently does not exist at the time of the 13/3/2014 Order.  More importantly, Mr. Cheng agreed that it is in N’s best interests to have the long term access arrangements determined as soon as possible.  A further report from his successor is desirable and should be called for when deciding resumption of the 13/3/2014 Order.

31.  The child N has been caught in the parental conflicts for a number of years by now and that loyalty issues had been seen by different professionals to have happened with N.  As said, no reason had been provided for by the Father for not resuming the general access after he decided to withdraw the custody variation application.  Further and prior to the custody variation application, he had once appealed against the Main Judgment which he had also lost.  Having said, I agree with Counsel Mr. Kevin Li that it is high time that the long term general access arrangement of N should be explored sooner rather than later. 

32.  Whilst not accepting the Father’s request for resumption of the 13/3/2014 Order on interim defined access to be in the best interests of N, the Mother’s Summons for variation does not cater for N’s best interests either.  I decided that both Summonses should be dismissed.

33.  Given the fact that general access under the terms of the Main Judgment had long been overdue for almost 4 years since October 2012, coupled with the fact that children matters are of prime concern to the Court, I decided that unless the Father applies to proceed with the general access arrangement provided for under the Main Judgment within 21 days from the date of this Decision, the terms of access of N would be one of reasonable access with the usual removal restrictions applicable to both parties.

34.  In so deciding I have considered but minded not to arrange any further social welfare reports.  Reason being that the child has already been subjected to numerous interviews by different professionals including several social welfare officers in the past few years some of which, as I see it, could have been avoided had the parents been more sensible and reasonable with less animosity against each other.

Orders

35.  I now make the following Orders :-

(a) The Applicant’s Summons dated 7 March 2016 be dismissed;

(b) The Respondent’s Summons dated 12 November 2015 be dismissed;

(c) No Order as to costs of both Summonses;

(d) Respondent’s own costs be taxed in accordance with Legal Aid Regulations;

(e) There be Certificate for Counsel;

(f) Unless the Applicant proceeds to apply for determination of general access arrangement under paragraph 167 (b) of the Judgment dated 5 October 2012 within 21 days from the date of this Decision, the Applicant do have reasonable access of the child;

(g) There be removal restrictions applicable to both parties.

Miss Athena Wong instructed by Messrs. Chan & Chan, Solicitors for the Applicant

Mr. Kevin Li instructed by Messrs. Stevenson, Wong & Co, Solicitors for the Respondent assigned by the Director of Legal Aid

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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D E C I S I O N
 (Ruling on Costs : By Paper Disposal)

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Foreword

1.  Following a 7-day trial spanned over a period of 9 months from June 2014 to March 2015 in respect of the Respondent’s (Mother’s) Summons dated 25 October 2013 for financial provisions on behalf of the child N against the Applicant (Father), this Court handed down its Judgment on 5 June 2015 with costs including all costs reserved to be paid by the Father (“the FinancialProvisions Judgment”).

2.  Given the fact that the FinancialProvisions Judgment is the 12^th Decision of this Court throughout these proceedings since 2012, it is not surprising that the Father challenged the FinancialProvisions Judgment to its fullest extent by issuing 2 Summonses on 19 June 2015 and 3 July 2015 respectively seeking (i) variation of the costs order thereunder; and (ii) leave to appeal.  For the purposes of this Decision, I will refer to the 19 June 2015 Summons as the “Costs Variation Summons”.

3.  The 3 July 2015 Summons for leave to appeal was disposed of by this Court on 12 August 2015 refusing leave to appeal with full reasons handed down.  The Father then took the matter further to the Court of Appeal which was also dismissed on 7 December 2015 with indemnity costs summarily assessed at HK$100,000 granted by the Appellate Court against the Father (see HCMP No.2059 of 2015).

4.  The present Costs Variation Summons was first listed for hearing on 11 September 2015.  For various reasons, it was only set down for hearing on 28 April 2016 at 9:30 a.m.

5.  On 21 April 2016 (that is, a week before the hearing), a Joint Letter by the parties’ lawyers was submitted to this Court with agreed directions for disposal of the Costs Variation Summons as follows :-

(a) The Father’s Summons dated 19 June 2015 to vary the Costs Order nisi dated 5 June 2015 to be disposed of on paper;

(b) The Father to file his written submissions within 14 days from the date of the Order to be made;

(c) The Mother to file her written submissions within 14 days thereafter;

(d) The hearing fixed for 28 April 2016 at 9:30 a.m. to be vacated;

(e) The costs of this joint application to be in the cause, save the Mother’s own costs be taxed in accordance with the Legal Aid Regulations.

6.  On 22 April 2016, this Court granted an Order in terms of the agreed directions as per the Joint Letter.  The Father should be filing his written submissions by 6 May 2016. Again, not surprisingly, this had not been done by the Father.

7.  On 25 May 2016, this Court granted an ‘Unless Order’ that the Father should file his written submissions by 4 p.m. on 26 May 2016, failing which, the Father be barred from filing any written submissions.

8.  On 26 May 2016, the Father filed his written submissions settled by Counsel Miss Athena Wong who appeared on his behalf in the applications for leave to appeal in this Court and the Appellate Court.  It is worth to mention that neither Counsel Miss Athena Wong nor the present instructing solicitors Messrs. Chan & Chan appeared for the Father at the trial proper in respect of which the FinancialProvisions Judgment was granted with the said costs order of which the Father is now seeking to vary.  The Father’s then legal team was Counsel Mr. Jeremy S.K. Chan and Messrs. Haldanes. 

9.  On 10 June 2016, the Mother filed her written submissions settled by Counsel Mr. Kevin Li who represented the Mother at the trial proper, the leave to appeal in this Court and the Court of Appeal.

The Relevant Procedural Rules on Costs

10.  It is trite law that costs are in the discretion of the court.  Generally, if the court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings (other than interlocutory proceedings), the court shall order the costs to follow the event, except where it appears to the court that in the circumstances of the case some other order should be made as to the whole or any part of the costs (Order 62, rule 3(2) of the Rules of the High Court (“RHC”)).

11.  Order 62, rule 5(1) of the RHC provides for special matters to be taken into account in exercising discretion, namely, the underlying objectives set out in Order 1A, rule 1 of the RHC; any offer of contribution as is mentioned in Order 16, rule 10 of the RHC; any payment of money into court and the amount of such payment; any written offer made under Order 33, rule 4A(2) of the RHC; any written offer which is expressed to be ‘without prejudice save as to costs; the conduct of the parties, whether a party has succeeded on part of his case, even if he has not been wholly successful; any admissible offer to settle made by a party, which is drawn to the court’s attention.

12.  Order 62, rule 5(2) of the RHC provides that for the purpose of the conduct of the parties it includes whether it was reasonable for a party to raise, or pursue or contest a particular allegation or issue; the manner in which a party has pursued or defended his case or a particular allegation or issue; whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and conduct before as well as during the proceedings.

13.  There is no issue that the RHC are also applicable to proceedings in the Family Court including the present proceedings.

The Applicable Legal Principles

14.  In civil cases, the principles on costs are set out in the cardinal case of  In re Elgindata Ltd (No.2) [1992] 1 WLR 1207 where it was held :-

  “(a)  That the general rule that costs should follow the event unless  there were circumstances suggesting that some other order  should be made did not cease to apply merely because a  successful party had raised issues or made allegations which he  had failed to establish at the hearing;

   (b)  That a successful party to an action who had not acted improperly or unreasonably in raising issues ought not to be ordered to pay any part of the unsuccessful party’s costs.

15.  For contested applications in the Family Court, the In re Elgindata principles apply generally.  The starting point is still that costs prima facie should follow the event.  This has been clearly set out in the English leading case of Gojkovic v. Gojkovic [1991] 2 FLR 233 at 236, where Butler –Sloss LJ (as she then was) had said :

“However, in the Family Division, there still remains the necessity for some starting-point.  That starting point, in my judgment is that costs prima facie follow the event (see per Cumming-Bruce LJ in Singer v. Sharegin [1984] FLR 114 at p.119), but may be displaced much more easily than, and in circumstances which would not apply, in other Divisions of the High Court.  One important example is, as the judge pointed out, that it is unusual to order costs in children cases.  In applications for financial relief, the applicant (usually the wife) has to make the application in order to obtain an order.  If the financial dispute can be resolved, it is usual, and normally in the interests of both parties, that the applicant should obtain an order by consent; and if money is available, and in the absence of special circumstances, such an agreement would usually include the applicant’s costs of the application.  If the application is contested and the applicant succeeds, in practice in the divorce registries around the country where most ancillary relief applications are tried, if there is money available and no special factors, the applicant spouse is prima facie entitle to, and likely to obtain, an order for costs against the respondent.  The behaviour of one party, such as in material non-disclosure of documents, will be a material factor in the exercise of the court’s discretion in making a decision as to who pays the costs.”

16.  In the case of S v. S (HCMP No.5547/1999), Deputy High Court Judge Gill went through various authorities then available, including Gojkovic v. Gojkovic (supra),and succinctly summarised the proper approach as to costs in relation to contested cases involving children :

  “(1)  In general circumstances there should be no order for costs.   Parties who have a reasonable case to put forward going to a child’s welfare should not be dissuaded from doing so by threat of an adverse costs order if they do not succeed.  And in a child related case there should be no perceived winner or loser, save that it is the child who is the winner.

   (2)  If a party has by virtue of improper conduct attracted the proceedings which but for that may have been avoided then that might well warrant an adverse costs order.

   (3)  If in the course of the proceedings one party behaves unreasonably in his or her conduct of the litigation then that might be recognised in an adverse costs order.

   (4)  The financial circumstances of the parties and how an order for costs will impact on the parties is a factor for consideration.

   (5)  The general rule of not ordering costs should not deter a court from exercising its discretion to do so in circumstances it finds to be exceptional not necessarily limited to a particular category of cases.”

17.  In the later case of IDC v. SSA(FCMP No.158/2011) the learned Judge Bruno Chan, having meticulously reviewed those cases such as In reElgindata Ltd (No.2)[1992] 1 WLP 1207, Gojkovic v. Gojkovic [1992]Fam 40, Keller v. Keller and the Legal Aid Board [1995] CA 1 FLR 259, and H v. H [2002] CACV 42/2002 HKEC 1123 and at paragraph 18 of his Judgment the learned Judge said :

  “18.  It is therefore clear from these principles that while it is in the unfettered discretion of the court, when it comes to costs over the custody, care and/or access arrangements of a child, the appropriate order would normally be no order as to costs, but as for claims for financial provision for a child, the starting point is for costs prima facie  to follow the event, which may however be displaced by an order against a party who had been guilty of unreasonable conduct or where there was such disparity between the means of the parties that a specific order would be fair or justified.”

18. With these guidelines and principles, I now proceed to consider the Father’s application for variation of costs under the FinancialProvisions Judgment.

The Father’s Arguments

19.  The Father is now seeking to vary the Costs Order Nisi to the extent that there should be no Order as to costs of the Mother’s Summons dated 25 October 2013 seeking financial provisions for the child N.

20.  The Father, by referring to extracts from the Hong KongFamily Court Practice (LexisNexis Butterworths, 2^nd edition) and the  FamilyLaw and Practice in Hong Kong (Sweet & Maxwell. 2^nd edition), first submitted that in cases involving children, the normal costs order is ‘no order as to costs’ (see paragraphs 2 and 3 of Father’s submissions). 

21.  Reference was then made to 2 English cases, namely, Sutton London Borough Council v. Davis (No.2) [1995] 1 All ER 65 and Re R (Aminor) [1996] EWCA Civ 1120 (Date of Judgment : 5 December 2006) and also one Hong Kong case of TPL v. WYY formerly known as WYY [2014]HKCU 2884 (see paragraphs 4 to 10 of the Father’s submissions).

22.  At paragraph 11 of the Father’s submissions, it was submitted that the principles elucidated in those cases apply with equal force in whether the cases involve custody, care and control or child’s maintenance since both types of cases surround the welfare of the children.  The primary concern of the courts is to ascertain what is in the best interest of the children.  In both type of cases the child is the only winner and both parents should not be regarded as winner or loser.  Moreover, an order of costs may diminish the funds available to meet the needs of the family.  The label that a party is the winner or loser may cause greater tension and animosity between the parties.  This would definitely not in the best interest of the children.

23.  The other submissions of the Father referred to this Court’s Decision reduced the Mother’s claim in significant aspects.  At paragraph 29 of the Father’s submissions, there was a comparison table setting out the difference in percentage between what was claimed and what was awarded.  Besides, 3 items of claim of Refurbishment, Car Purchase and Harp amounted to some 1.14 million was not allowed by the Court. 

The Mother’s contention

24.  The Mother’s contention rests upon the Father’s unreasonable litigation conduct and the disparity in financial resources.  Reference was made to the cases of Sutton Borough Council v. Davis (No.2)[1995] 1 AllER 65 [1994], R v. R [Costs: Child’s Case] [1997] 2 FLR 95 and Keller v.Keller and Legal Aid Board [1995] 1 FLR 259.

25.  At paragraphs 20 and 21 of the Mother’s submissions, it was submitted that there are exceptional circumstances in that the Father had deployed conduct which are beyond the band of reasonableness.  The conduct includes the inadequate and unrealistic offer of N’s maintenance; neglect to provide any accommodation and even worse was the attempt to persuade the Court that he was in need of the One Silver Sea as his own accommodation of which this Court had rejected.

The Court’s Views

26.  The concept of “best interests of the child” has always been the first and paramount consideration of the Court when determining applications involving children.  In the case of H v. N [2012] 5 HKLRD 498, which is the first hearing in the High Court after the amendment to Section 3(1) of the Guardianship of Minors Ordinance, Cap.13, of the terms “welfare” and “wishes” to that of “the best interests” and “views”.  His Lordship Poon J (as he then was) whilst restating the general approach to Section 3(1) of the said Ordinance, visited the welfare principle and provided useful guidance as to the meaning of the term “best interests”.

27.  At paragraphs 22 to 25 of the Judgment, His Lordship said :

  “D.3.1. Applicability of the case law on the welfare principle

   22.  The change in terminology from “best interests” to “welfare”  does not affect the substance of the law.  For the expressions  “welfare” and “best interests” are synonymous : Re B (AMinor)(Wardship: Sterilisation)[1998]AC 199, per Lord Hailsham of St Marylebone LC at p.202, cited in Re A  (Conjoined Twins : Medical Treatment)[2001] 1 FLR 1, per Robert Walker LH at p.34D. 

   23.  It follows that the case law on the welfare principle before the amendments to section 3(1) remains cogently relevant and indeed applicable to the assessment of the best interests of a minor.

   D.3.2. Widest meaning possible 

   24.  The term “best interests” is not defined.  For one thing, it is simply impossible to give an exhaustive statutory definition that  embraces every eventuality.  More importantly, the flexibility  without a statutory definition enables the court to identify and  look into all the welfare issues concerning the minor as they arise from the particular circumstances of the case and carefully consider and evaluate all the matters pertaining to those issues. 

   25.  A cursory research of the cases readily shows that the court has given the word “welfare” its widest meaning.  Thus, it is not limited to monetary or material needs, the minor’s physical well-being or physical comfort but encompasses medial, moral,  religious and emotional issues including his ties of affection and  all other welfare issues.  The same must be true for the term  “best interests” too.”

28.  The Father’s contentions, in so far as the legal principles on costs is concerned, can be summarised as follows :-

(a)  For cases involving children, the normal costs order is ‘no order as to costs’;

(b)It is unusual to order costs in children’s cases, the aspiration being that in the outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate (see London Borough Council v. Davis (No.2) [1995] 1 All ER 65);

(c)  An order for costs may diminish the funds available to meet the needs of the family and that the primary concern of the courts is to ascertain what is in the best interest of the child (see Re R (A minor) [1996] EWCA Civ 1120);

(d)An order for costs would only be made in exceptional circumstances where one party has behaved unreasonably in the litigation;

(e)  As to the kind of conduct in exceptional circumstances that would justify a departure from the general rule, those unreasonable conduct was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of the litigation (see Re A (A Minor) [1996] EWCA Civ 1120 and TPL v. WYY formerly known as WYY [2014] HKCU 2884).

Normal costs order is “No Order as to Costs” ? 

29.  Since the nature of the applications relating to children varies from case to case, it calls for different consideration as to how the Court should exercise its discretion when determining costs.  All the cases referred to by Counsel Miss Athena Wong for the Father involve custody, care and control applications as opposed to claims for financial support of children between the parents, which is the situation in the present proceedings.  As rightly pointed out by His Honour Judge Bruno Chan in the case of IDC v. SSA (supra) which I fully agree, for claims for financial provision for a child, the starting point is for costs prima facie to follow the event although it might be displaced for reasons of any unreasonable conduct of a party or disparity of means between the parties.

30.  Applying IDC v. SSA, I do not agree with Counsel Miss Athena Wong’s submissions that the normal order that no order as to costs should apply in the present case. 

Would an order for costs discourage a parent from puting forward a casewhich is in the best interests of the child ? 

31.  Given the fact that the term “best interests” has to be given its widest meaning with flexibility and not limited to monetary or material needs, but can encompasses medial, moral, religious and emotional issues (per H v. N supra), it is not being possible to definitively state an answer without evaluation of the factual matrix of the dispute taken out by a parent in each individual case. 

32.  Generally speaking, disputes as to how the child is to be brought up, say for instance, choice of schools, religion or enrolment upon a particular kind of sport, might not attract any costs order against the parent who had lost in the litigation.  Reason being that the parents might have different views on those matters.  However, the situation would be different when it comes to determine the financial needs of the child where one parent, usually the non-custodian parent and having to pay, challenges the amount that was required from him.   I accept that the subject matter which gives rise to the financial needs may be disputable by the parents, say for instance, the costs of buying a pair of shoes for soccer are premised upon soccer being agreed by the parents to be in the best interests of the child.  This is why the learned Judge Bruno Chan considered that it is the ‘starting point’ which may be displaced against the parent who had been unreasonable or where disparity of means of the parents call for a fair order to be made.

33.  For the present case, the Court had awarded less than what the Mother had claimed and also disallowed 3 one-off items should not, when determining the costs issue, be considered in isolation without reference to the context and overall result. 

34.  First of all, the Refurbishment item was claimed by the Mother for the One Silver Sea Property. It tied hand in hand with the child’s accommodation needs of which item of claim the Father had lost completely.  The Father had withdrawn his initial offer of providing 5 million towards the child’s accommodation needs during the trial without any alternative arrangement and without justification as have been found by this Court.  The Father claimed that the child could continue to live with the Mother at the Mother’s elder brother’s flat.  Such arrangement was completely rejected and thrown out by this Court.  Eventually the Court was left with no option but to order the One Silver Sea Property be settled on trust for the child’s accommodation needs. 

35.  In my view, the Father could not now turn around going through the back door and argue that since the Mother had failed in the Refurbishment costs for the One Silver Sea property, her costs position should be discounted or reduced whilst he himself had already withdrawn the One Silver Sea property from the arena.  In my view, the Father’s contention that the Mother had failed in the claim for Refurbishment costs bears no significance when considering his application for variation of the Costs Order Nisi.  Had the Father kept the One Silver Sea property as his proposals which the Mother did not accept it unless refurbished but such item of refurbishment costs was eventually rejected after trial, the Mother’s position on costs might be different.  Moreover, costs had in fact been spent on going through the Father’s evidence as to the living condition of the One Silver Property prior to the Father’s withdrawal when such costs had apparently been wasted. 

36.  As for the Car purchase claim, the reasons for not allowing such item have been set out in paragraphs 78 to 85 of the FinancialProvisions Judgment.  As found by the Court, the provision of a car as a means of transportation was not something new or ‘out of the blue’.  The child N has had enjoyed private transport since birth and prior to the parties’ separation.  At paragraphs 82 and 85 of the FinancialProvisions Judgment, it was said :

  “82. On the Mother’s uncontroverted evidence, transport arrangement by private car is not something ‘new’ to N since her birth.  After separation, except on access occasions when the Father would pick up and return N using his Audi Q5, N does not have the benefit of transportation by private car.

  85. Taking into account the costs involved for maintaining a private car and considering from the best interests perspective other than the choice of comfort and convenience, I find it not reasonable for the Father to provide a private car for N’s transportation needs. This item of claim fails.”

37.  In my view, it is incorrect for the Father to say that the Mother’s claim for such item being ‘unreasonable or hopeless’ (see paragraph 30 of the Father’s written submissions).  The Court’s finding against the Mother was mainly on account of the related costs for maintaining a car and the choice of comfort and convenience.  The fact that the Father, who having been found by the Court to only have to provide reasonable costs for N’s transportation needs, does not necessarily mean that the Mother had brought hopeless claim against him; in particular, N has had the provision of a private car since birth.  I also find this contention does not assist the Father’s application for variation of costs. 

38.  Had the Mother put forward new items of claim which had never been given to or enjoyed by the child, this may be different if such new items were then dismissed by the Court.

39.  As to the claim for the Harp, it was the Mother who unilaterally offered to withdraw the claim rather than dismissed by the Court (see paragraph 119 of the FinancialProvisions Judgment).  Thus, it is incorrect for the Father to say that he successfully challenged such ‘unreasonable or hopeless’ item.

An Order for Costs would diminish funds available to meet the child’sneeds ?

40.  I find the Father’s such contention unconvincing.

41.  Throughout these proceedings for the past 6 years since 2010, the Father was legally represented by 5 different law firms, 6 different Counsel at various hearings, save and except for a brief moment of 3 days (18/4/2016 to 20/4/2016) only.  The Father’s Notice to Act in Person filed on 18 April 2016 replacing Messrs. Payne Clermont.  The present lawyers Messrs. Chan & Chan filed Notice to Act for the Father 3 days later on 21 April 2016.  It is the Father’s own case that he had already spent over millions of dollars on his own legal costs, not to mention the indemnity costs of HK$100,000 that was recently ordered by the Court of Appeal on 7 December 2015 to be paid by him to the Mother.

42.  Had the question of legal costs diminishing funds available to cater for the child’s best interests been the Father’s genuine concern, he offered no explanation as to why he himself all along had been so luxurious, if not extravagant, on legal costs spending in the past 6 years and now come along and argue undeterred that any costs order against him would diminish funds available for the child ?  I am prepared to take judicial notice that whenever there is a change of legal team (unless it is because of the handling solicitor who has changed firm), there ought to be certain repetition of costs for going through all the papers by the succeeding lawyers.  Besides, such contention of diminution of funds available to the child would also fail for the fact that the Court of Appeal also considered that indemnity costs of HK$100,000 against the Father would be appropriate.  

43.  I find such contention unsustainable for his application to review the Costs Order Nisi.

Has the Father behaved unreasonably so far in the litigation ?

44.  Following the Mother’s Summons for financial provisions of the child N dated 25 October 2013, the Father filed his Summons on 5 November 2013 for variation of custody, care and control of N.  The Father’s Summons had not been proceeded along smoothly for reasons of repetitive delay and non compliance with directions and had, unfortunately, ended up with having to schedule a 5^th Pre-Trial Review for 29 May 2015. 

45.  On 14 May 2015, the Father’s lawyers sought leave to issue a Summons seeking to adjourn his own (my emphasis) variation application sine die with liberty to restore.  Alternatively, there be extension of time for him to file updating Affirmation out of time as directed by the Court on 29 December 2014 and 27 February 2015.  The Father’s Summons was dismissed by this Court with full reasons handed down on 29 May 2015.  The 5^th PTR proceeded along and the Father was again further directed to file his Affirmations which should have been filed months earlier.  It was also directed that a 6^th PTR be scheduled after 26 August 2015 but no later than 11 September 2015 for reasons of case management.

46.  The Father had, for some reasons, eventually decided to withdraw his Summons for variation of custody, care and control dated 5 November 2013.  Leave to withdraw was granted by this Court on 8 March 2016 with costs to the Mother.

47.  Given the Father’s conduct in handling his own application to vary custody, care and control of the child, the Father in his opposition to the Mother’s Summons for financial provisions took issue on all the items of claim both on necessity and quantum.  An example is that the Father even considered the claim of Now TV (cartoon channels) of HK$143 a month for the child (aged 7) to be not appropriate/unnecessary; the child’s share of household expenses should only be HK$300 a month. (see paragraph 89 of the Financial ProvisionsJudgment).  There was also convoluted calculation by the Father’s then Counsel to try and work out the child’s expenses (see paragraphs 124 to 127 of the Financial Provisions Judgment). There was also a ratio apportionment of 2:1 suggested by the Father (see paragraph 128 of the Financial Provisions Judgment). 

48.  In addition, there was also assertion of lack of receipts from the Mother to substantiate her claim for past expenses for 62 months.  This Court, however, had found the Mother had already been doing her very best in keeping receipts down to meagre amount of, say, a pack of Tofu for HK$5.80, a pack of vegetable for HK$12.20 so on and so forth (see paragraphs 136 to 138 of the Financial Provisions Judgment).

49.  At all material times the Mother was legally aided of which the Father is well aware of.  With the benefit of legal advice, the Father ought to know the implications of the Legal Aid First Charge upon the Mother although this would not be his primary concern.  Given careful consideration to all the above collectively and objectively, the established legal principles on costs, the overall result under the Judgment dated 5 June 2015 and the Father’s conduct in litigation with the Mother’s financial claims for the child, I am satisfied that on all justice and fairness it calls for a costs order in favour of the Mother in respect of her Summons dated 25 October 2013.  

Conclusion 

50.  For all the reasons above, I find the Father’s application fails.

51.  The Father’s Costs VariationSummons dated 19 June 2015 be dismissed with costs to the Respondent Mother, to be taxed if not agreed.  The Mother’s own costs be taxed in accordance with Legal Aid Regulations.

52.  I also grant Certificate for Counsel.

Orders

53.  I now make the following Orders :-

(a) The Applicant’s Summons dated 19 June 2015 be dismissed;

(b) The Applicant do pay the costs of and occasioned by the Summons dated 19 June 2015 to the Respondent, including all costs reserved (if any), to be taxed if not agreed, with Certificate for Counsel;

(c) The Respondent’s own costs be taxed in accordance with Legal Aid Regulations.

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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

BETWEEN

_____________

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 D E C I S I O N
 (Temporary Removal)

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1.  This is Respondent’s (Mother’s) application for removing the child N for summer vacation holidays to Canada from 31/7/2016 to 19/8/2016.  The Applicant (Father) in principle agreed to the trip provided that he could take N for a school interview scheduled for 10/8/2016.

2.   Throughout these years, there has been protracted litigation between the parties and this is the 11th Decision of this Court since 2012.  Besides, there are also 3 Decisions of the appellate court.  At present, there is a 2-day hearing scheduled for 28^th and 29^th July 2016 for the Father’s application to vary the interim defined access presently in place back to the access arrangement over 2 years ago as provided for under the Order dated 13/3/2014.   

3.   The Mother who has been legally aided throughout was not represented for this application.  She took out the Summons herself on 20/6/2016 together with her 19^th Affidavit in support.  She produced 2 exhibits covering an email sent by her to the Father back on 13/5/2016 (“19-SSM-1”) and 6 letters exchanged between her legal aided assigned lawyers and the Father’s lawyers between 26/5/2016 and 14/6/2016 (“19-SSM-2”).

4.   On 28/6/2016, the Father through his lawyers filed his 39^th Affirmation together with 2 exhibits.  On 29/6/2016, the Father filed another “39^th Affirmation” which his lawyers Miss Andrey Chan informed this Court that the one filed the day before was found to have left out some paragraphs and the second “39^th Affirmation” was then filed to replace the earlier one.  Miss Andrey Chan confirmed that only the second “39^th Affirmation” was served on the Mother.  The Mother confirmed she received the second “39^th Affirmation”.  Due to the lateness in service, the Mother had not been able to put in any Affidavit in reply and, upon enquiry by this Court, she confirmed that she would not be filing any affidavit in reply.

5.   Leave was granted by this Court for the Father to rename the second “39^th Affirmation” to read “40^th Affirmation”.  Apart from stating the reason that there was a school interview scheduled for 10/8/2016 at 3:00 p.m. at ESF Beacon Hill Primary School (“ESF School”), the Father also deposed that his right of access would be infringed in the event that he was successful at the forthcoming 2-day hearing on his variation of the interim defined access.  There was also reference to his elderly parents not having much chance to spend time with the child N since May 2015.  Moreover, the Father also made reference to the Mother enrolled N for English and Maths revision classes in July and August 2016 where those classes will clash with the access times in the event that he is successful in restoring the access under the earlier Order dated 14/3/2014 at the forthcoming hearing.  Miss Andrey Chan confirmed that those matters set forth in the Father’s 40^th Affirmation are the grounds for opposing the Mother’s Summons.

6.  The Mother agreed that the ESF School had once been chosen for the child N but that was a few years ago. Since N was not offered a place for Primary One, N was enrolled with True Light Primary School (“True Light”) to start with her Primary One.  It is common ground that N has repeated Primary One.  N will be taking her final examinations soon and she ranked 11^th amongst 40 in the First Term. The Mother confidently said N will be promoting to Primary Two in September 2016, that is to say, after the upcoming Summer Vacation.  For these few years, N has been accustomed to the school, the teachers, classmates and environment and has been doing well in her studies.  The Mother said she has not had the faintest idea that the Father was arranging the ESF School for N.

7.  The Mother confirmed that she has not yet booked any flight because she would need to know whether leave would be granted by this Court for the trip.  Noting that it is already end of June and each year July/August is peak season for parents to take children out for travel, I directed the Mother to first provide details as to availability of flights before considering her application.  In the meantime, I also directed the Father to check whether the interview date he himself arranged with the ESF School could be re-scheduled. 

8.  Today Miss Andrey Chan for the Father informed the Court that actually the ESF School started its summer vacation on 24 June 2016 and nobody there to respond to the Father’s email and telephone call made after the last hearing for re-scheduling.  At the last hearing, Miss Andrey Chan had once reported to the Court that the interview date with the ESF School could not be changed save and except the time could either be in the morning or in the afternoon.  Today, The Mother produced 2 reservations for departure on 31/7/2016 and returning on 19/8/2016 (“1^st travel period”) and for departure on 11//8/2016 and returning on 29/8/2016 (“2^nd travel period”).  It is noted that the flight departure time for both travel periods is 0030 hours which is after mid-night.

The applicable principles

9.   It is trite that on all matters affecting children, the first and paramount consideration for the Court is the best interests of the child, which requires an exercise of discretion after taking into account all relevant factors and surrounding circumstances. Needless to say, this is case sensitive and the Court has a wide discretion.

The Mother’s Views 

10.  The Mother raised her queries as to why the Father would want N to be interviewed by the ESF School. The Mother raised her main concern (which I agree is legitimate) that True Light is one of those private schools with traditional mode of teaching curriculum whereas ESF is an international school.  In case N is not suitable to the ESF School teaching curriculum after the switch over, there is no room for N to ‘revert back’ to the traditional type of schools.  Apart from the reason that N has now been doing quite well in True Light, the Mother said she understands the school fees for ESF School are HK$8,380 a month whereas True Light is HK$4,494 a month.  Besides, the ESF School also need HK$32,000 maintenance fee and a Debenture of HK$500,000.  The Father at the latter part of these protracted litigation on finances (see Judgment dated5/6/2015) had repeatedly asserted in Court that he will be retiring soon which will affect his income and finances, how could the Father be capable to support such increased school fees and charges for the remaining years of N’s education in the ESF School ?  Amongst other things, the Mother said would such change to the ESF School be practicable, if not unrealistic so to speak.

The Father’s Reply

11.  Miss Andrey Chan on instructions informed the Court that the Father has already discussed with the ESF School and was informed that the HK$500,000 Debenture would not be required.  There was no reply from the Father as to the increased school fees for changing over to ESF School and those other views of the Mother.

The Court’s Views

12.  At the last hearing on 30/6/2016, I confirmed with Miss Andrey Chan that the Father’s 40^th Affirmation would be his grounds of opposition to the Mother’s Summons.  There is no application by the Father for change of school for N although any such application would have to be well justified since the Mother has all along been the sole custodian parent having full care and control of N.  The Father has withdrawn his Summons for variation of custody, care and control of N.

13.  I will start with some chronology by reference to the exhibits produced by the parties. 

14.  On 13/5/2016, the Mother sent to the Father an email (Exhibit “19-SSM-1”) as follows :-

  “xx :

 

  我和女兒打算於暑假 31/7-19/8去加拿大探親旅行, 19/8會

  回到香港, 我們會住在我舅母家, 位於加拿大温哥華. 至

  於6/8、13/8你的探視, 會安排補回給你, 你意見如何 ?

  謝謝 !

  xx”

15.  There was no reply from the Father to this email.  The Father did not deny in his 40^th Affirmation that he had received this email. 

16.  On 26/5/2016, the Mother through her legal aided assigned lawyers Messrs. Stevenson, Wong & Co. (“SW”) wrote to the Father’s lawyers Messrs. Chan & Chan (“CC”) to follow up with the Mother’s email of 13/5/2016.  Since then, there was a series of correspondence between respective lawyers until 14/6/2016 (“Exhibit “19-SSM-2”) with no consensus and therefore the Mother rightly took out the present Summons to seek the Court’s assistance.

17.  The Father in one of his exhibits produced the email he received from the ESF School on 23/6/2016 at 2:05 p.m. where it said, inter alia, the following :-

  “Dear Mr. C

  Re : EA1308Axxxxx – (name of child)

  Further to your application for a place for your child xxxxx in

  Year 4 at Beacon Hill School, we are very pleased to invite

  you to bring xxxx for an interview on Wednesday, 10 August

  2016 at 3:00 p.m.”

  …………….

  Best regards,

 

  Barbara Woo

  School Office Manager/Admissions”

18.  Attached to the same exhibit is the Father’s reply to the school on the same date at 14:23 (that is, 18 minutes later) :-

  “Dear Miss Woo,

   Thank you very much for your kind notice and we shall

  attend the interview on time on 10 August 2016.

   Best regards,

  xxxxx

  (Father of the applicant)”

19.  Attached to the same exhibit is the Father’s email the following day to the Mother in Chinese dated 24/6/2016 at 9:07 p.m. telling her the appointment with the ESF School on 10/8/2016.  He also asked that he himself only to accompany the child N to the interview.

20.  It is unclear as to the scheduled interview was in anticipation of which academic school year and I sought confirmation from Miss Andrey Chan for the Father.  Surprisingly, I was informed that the interview on 10/8/2016 was for the coming September 2016 school year and not next year 2017.

21.  I have a few observations as to the practicality of the Father to accept the interview on 10/8/2016 for the school year to start in September 2016.

22.  First, the Father being the non custodian parent should have obtained the consent of the Mother before accepting the interview.  To the very least, he should have notified the Mother and discussed with her first before making up his own decision within 18 minutes. In particular, at the time of the Father’s reply to the ESF School, he already has had in mind that the Mother has planned to take N for a trip (“the 1^st travel period”) which will clash with the interview date.  Even worse the Father then pushed for the Mother’s consent in his email the following day.  The Father having been legally represented throughout would have the benefit of full legal advice of his rights as a non custodian parent, given the fact that this is a change of school decision.  Surprisingly, I was informed by Miss Andrey Chan today that in fact there was a telephone conversation between the Father and the ESF School before (my emphasis) the email from the ESF School.  This was not stated anywhere in the Father’s 40^th Affirmation. 

23.  Secondly, in my view, it is completely not feasible at all for N to start in the ESF School in September 2016 even if the interview does go ahead and is successful in that N was offered a place in September 2016.  There is no prior discussion with the Mother at all as to change of school from True Light to the ESF School.  Since the Mother has now indicated her disagreement to the change to the ESF School, such matter would have to be fully argued in Court in the same way as what had happened in the summer of August 2013 when the parties heatedly disputed upon whether N should study K3 kindergarten or in Primary One.  On that occasion, this Court was asked by the Father to grant an injunction against the Mother (see Judgment dated 30/8/2013).  Even if the result of interview was to be known on the same day of 10/8/2016 immediately after the interview, how could the change of school issue be determined through substantive Court hearing within, say, 20 days between 11/8/2016 and 31/8/2016 ?

24.  The Father in his Affirmation and email to the Mother asserted that N was in the waiting list all along since Year 1 when it now came the chance for an interview.  Upon close scrutiny of ESF’s email, I have great reservation about what the Father said.  The letter started with “Further to your application for a place for your child  xxxx in Year 4……..”.  Had this been a chance because of N having been placed in the waiting list for Year 1 few years ago, I do not believe the ESF School would make reference to “an application for a place in Year 4.  This is in direct contradiction to the Father’s evidence as to how this 10/8/2016 interview appointment came about. 

25.  Moreover, the child N will be promoting to Primary Two in September 2016, how could she be capable of managing studies in Year 4 even if she is successful at the 10/8/2016 interview ?  As stated in the ESF School’s email, N’s latest school report is needed for the interview.  How possible would it be for the ESF School to consider an application for Year 4 by considering the latest school report of N which is Primary One ?

26.  Although Miss Andrey Chan orally informed the Court that the ESF School would consider N’s ability to take up which year or grade of studies, this is something which should come directly from the ESF School for the Court’s consideration.  Again, and further assuming this is the case, whether there will be vacancies in the ESF School for Year 2 or Year 3 intake in September 2016 is something unknown. 

27.  Since the Mother is now able to reserve 2 travel periods including the initially planned 1^st travel period of 31/7/2016 to 19/8/2016, I believe the focus falls upon whether it is in N’s best interests to attend the 10/8/2016 interview at 3:00 p.m. and then take the 2^nd travel period of 11/8/2016 to 29/8/2016.  As noted, the flight departs at 0030 hours on 11/8/2016 which means N would have to be in the airport 2 or 3 hours before flight departure, that is to say, at the night of 10/8/2016 a couple of hours after the interview that afternoon.  The 2^nd travel period ends on 29/8/2016.  The flight scheduled to arrive in Hong Kong around 1915 hours (that is, 7:15 p.m.).  New school term usually starts in early September each year.  Again, assuming N is accepted by the ESF Schools and given the Mother’s reasons for opposing change of school, it is not possible for the Court to resolve such issue of change of school by the non custodian Father after the 2^nd travel period (that is, after 29/8/2016) and before the new school term starts in early September 2016.

28.  Given careful consideration to all the above circumstances, I am not satisfied that it is in the best interests for N to attend the 10/8/2016 interview at the ESF School for Year 4 which the Father had unilaterally accepted without the knowledge of the Mother, and which the Father now seeks to put forward as his main reason to oppose the Mother’s application.  I also do not find any other reasons set forth in the Father’s 40^th Affirmation supportive of his opposition.  I must also say that it is not correct for the Father to postulate success of his application in his 40^th Affirmation which has yet to be heard on 28^th and 29^th July 2016 and then make grounds of opposition premised upon such postulations.

29.  I must also emphasize that this decision should not be taken as deprivation of the Father’s rights to participate in the education plan of the child even though he is not the custodian parent.  Also this decision should not be mistakenly construed as holiday travel ranks priority or precedence to education arrangement. 

30.  There are just too many contingencies which may render the 10/8/2016 interview with the ESF School even if successful not being capable of yielding fruitful results.  On balance, I prefer and find for the Mother on the 1^st travel period initially arranged.

Conclusion

31.  Considering the flight schedules provided by the Mother today, I now grant leave for the Mother to bring the child N out of Hong Kong for holidays to Canada for the 1^st travel period between 31/7/2016 and 19/8/2016 (both days inclusive) upon the Mother’s Undertaking to return the child to Hong Kong.

32.  As this is a child related matter, I decided that there should be no Order as to costs.

Miss Andrey Chan of Messrs. Chan & Chan, Solicitors for the Applicant

The Respondent (Mother) acting in person

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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D E C I S I O N
(Discharge/Modification of Undertakings)

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Introduction

1.  This is the call over hearing of the Applicant Father’s Summons dated 3 November 2015 seeking leave to withdraw from his Undertakings given to the Court and to the Respondent on 12 June 2014 (“the Undertakings”).  There is an alternative prayer in the Summons seeking ‘modification’ of the Undertakings.

2.  It is noted that the Undertakings were given on the 1^st day of a 7-day trial of the Mother’s claim for financial provisions for the child N against the Father.  Both the Father and Mother were represented by Counsel at the trial when the Undertakings were negotiated and concluded.

3.  This Court handed down its Judgment on 5 June 2015 in respect of the Mother’s claim for financial provisions.  The Father sought leave to appeal against the Judgment at this Court and, being unsuccessful, took the matter further to the Court of Appeal. The Father’s application for leave to appeal was dismissed by this Court on 12 August 2015.

4.  On 7 December 2015, the Court of Appeal also refused the Father’s application for leave to appeal (see HCMP No.2059 of 2015) and ordered him to pay Indemnity costs summarily assessed at HK$100,000.  The Mother’s own costs are to be taxed in accordance with Legal Aid Regulations.  The Court of Appeal opined the Father’s application is wholly unmeritorious (at paragraphs 14 to 18 of the Reasons for Judgment).

5.  At this hearing, the Father was represented by Counsel Miss Athena Wong, who also appeared for the Father at the hearing before the Court of Appeal in HCMP No.2059 of 2015.

The 2 Undertakings

6.  I shall set forth the terms of the 2 Undertakings given on 12 June 2014 which was embodied in a Court Order sealed and perfected on 16 July 2014 :-

“AND UPON the Applicant undertaking to the Respondent and to the Court that he shall pay for all the Minor’s school fees, school bus, school uniform, school books and stationery so long as they are reasonable and deemed necessary by the school with school books and stationery to be initially paid by the Respondent in respect of which she will be repaid on a reimbursement basis within 14 days from the Respondent’s production of receipts.

 AND UPON the Applicant undertaking to the Respondent and to the Court that he shall bear all reasonable costs of extra-curricular activities arranged by the Respondent provided that the total costs of such activities shall not exceed HK$4,000 per month, such costs to be initially paid by the Respondent in respect of which she will be repaid on a reimbursement basis within 14 days from the Respondent’s production of receipts.”

The Father’s Summons

7.  The terms of the Father’s Summons are, inter alia, as follows :-

“1.  The Applicant be granted leave to withdraw from the undertakings he gave to the Court and to the Respondent at the hearing on 12 June 2014 before Deputy District Judge G. Own (the “Undertakings”);

2.  Alternatively, the Undertakings be modified to the extent below :

a.  the Respondent shall present a list of all claimed expenses, that fall within the scope of the Undertakings, and all the original receipts of the claimed expenses to the Applicant’s solicitors on the last business day of every month (“the Reimbursement Request”);

b.  The Respondent undertakes to the Applicant and to the Court that she shall obtain the prior written consent of the Applicant for seeking reimbursement of any items or expenses falling outside the scope of the Undertakings; and

c.  The Applicant undertakes to the Respondent and to the Court to pay all expenses covered by the Undertakings within 14 days from the receipt of the Reimbursement Request.”

The Father’s supporting affirmation

8.  The Father’s 33^rd Affirmation (46 paragraphs) filed in support together with 13 exhibits (from “CCMK33-1 to CCMJ-13” altogether adding up to about 120 pages not including the exhibit sheets) divided into the following sub-headings :-

“A.  Reasons for this Application (paras 3 to 6);

B.  Undertaking given on the hearing on 12 June 2014 (paras 7 to 19);

C.  The Respondent’s Abuse of the Undertaking and Repeated Demands (paras 20 to 22);

D.  Effort to Resolve the Reimbursement Matters was Futile (paras 23 to 30);

E.  Threat from the Respondent’s solicitors (paras 31 to39);

F.  Increased demands from the Respondent (paras 40 to44);

G.  Relief Sought (paras 45 and 46).”

9.  Counsel Miss Athena Wong for the Father in her Speaking Notes referred to the case of Re Hudson [1966] 1 Ch. 209 and a passage extracted from the Common Law Library, Arlidge, Eady and Smith on Contempt, 4^th ed.   

The Mother’s stance

10.  The Mother was represented by Legal Aid assigned Counsel Mr. Kevin Li who appeared in the 7-day trial. Counsel in his Speaking Note submitted that the Father’s Summons should be dismissed even at this call over hearing before proceeding any further for failure to satisfy the relevant legal principles on the topic of Undertakings. At this hearing, Counsel confirmed no Affirmation in Opposition would be filed at this stage although the Father’s present application would be fully contested by the Mother.  In the event that this Court allows the Father’s Summons to be proceeded along, the Mother would be seeking directions for the filing of affirmation in opposition.

11.  Counsel Mr. Li in his Speaking Notes referred to 2 cases of the Family Court where applications relating to undertakings were considered.  The cases are L v. C(FCMC No.5952 of 2012) and TLS nee J v. RCS(FCMC No.1637 of2012).  The latter case is a decision of this Court.

The relevant legal principles

12.  It is pertinent to note the difference between an order to do something and an undertaking embodied in an order to do the same thing.  Such difference was noted by Buckley J in the case of Re Hudson[1966]1 Ch. 209 where the learned Judge went into detail as far as to differentiate  between undertakings to make payment of money and undertakings to perform or abstain from performance of an act other than payment of money . 

13.  Quoting from pages 213G to 214D of the judgment where the learned Judge said :-

“………..An undertaking, however, is not an order.  It is true that an undertaking to do or abstain from doing something other than payment of money may have the same effect as a mandatory or a restrictive injunction; for a breach of such an undertaking, like a breach of an injunction, expose the culprit to the risk of imprisonment or possibly of sequestration or a fine.  These are penal sanctions aimed at enforcing compliance with either a promise made to the court or an order of the court, as the case may be.  They are not remedies the purpose of which is to compensate some other party for damage he has suffered as the result of the breach or for recovering any property or enforcing any right of his.  In most cases, at any rate, an order to pay money is of awholly different character and produces quite different results from anundertaking given to the court to pay something (my emphasis).  In the first place an order to pay money is most usually, though not always, a consequence of the person to be paid having established a right to payment of the sum in question.  The order having once been made, the court would not revoke or vary it.  Where, on the other hand, no order for payment has been made but an undertaking has been given to the court to make a payment, the court could at any time upon good cause being shown release or modify the obligations under theundertaking (my emphasis)…….…”

14.  It is clear from the judgment of Buckley J that where there was no court order to make payment but nevertheless a party has given an undertaking in the litigation process to make payment and such undertaking was embodied in a court order, it is only the obligations (myemphasis) embraced within the undertakings as opposed to the actual undertakings given could be released or modified upon good cause being shown.  

15.    As to application for the uplift of or release from performance of undertakings given, the legal position remains the same as set forth in L v. C(FCMC No.5952 of 2012) and TLS nee J v. RCS(FCMC No.1637 of2012).  I am not assisted by the Father’s Counsel Miss Wong with any cases, authorities from any higher level of courts or jurisprudence, which I doubted there are any, where undertakings given of which, in most cases as in the present one, was clothed with an element of voluntariness, could be ‘modified’ although it could be uplifted or discharged in appropriate circumstances.  In TLS nee J v. RCS (supra) at paragraph 15 of the Reasons for Decision, 4 circumstances have been set out to support an uplift or discharge of undertakings, namely :-

“(a)  There has been a material change of circumstances since the undertakings were given which are not foreseeable at the time and which make compliance not feasible;

(b)  The subject matter to which the undertakings relate no longer exists which render compliance impossible;

(c)   The party to whom the undertakings were given releases the other party from complying with the undertakings;  

(d)   The undertakings were obtained through fraud or misrepresentation.”

16.  In L v. C (supra), the learned Deputy Judge Grace Chan at paragraph 22 of her Judgment, citing TLS nee J v. RCS (supra), said further :

“22.      Based on all the above cases and doing the best I can, I shall summarise the applicable legal principles as follows :-

(1)   An undertaking can be discharged, but not varied.  This is because the litigant is not ordered to give these undertakings; he chooses to give them : Cutler (supra);

(2)   The court has jurisdiction to discharge an undertaking given to the court at any stage, even if it was given in an order made by consent : Kensington Housing Trust (supra) and Mid Suffolk District Council (supra);

(3)   [Citing TLS nee J v. RCS (supra)……..]

(4)   Whether an undertaking given to the court should be discharged is a matter of judicial discretion to be exercised if it is ‘just’ to do so : Kensington Housing Trust (supra) at 613;

(5)   ………….”

17.  With these principles in mind, I now proceed to consider the Father’s application.

Discussion

18.  To start with, the reliefs sought by the Father are in the alternative, namely :-

(a)  To withdraw the Undertakings (paragraph 1 of the Summons); alternatively,

(b)  To ‘modify’ the Undertakings if not be able to withdraw the Undertakings (paragraph 2 of the Summons).

19.  The Father at paragraphs 3 to 6 of his 33^rd Affirmation (under sub-heading A: “Reasons for this Application”) referred to the Undertakings had been unfairly exploited or abused by the Respondent Mother.  Counsel Miss Wong for the Father further submitted, as I understand it, that the Mother had bombarded the Father’s email account with numerous demands for moneys of which not being covered by the terms of the Undertakings.  Such conduct was said to have amounted to a material change of circumstances which warranted the present application of the Father.

20.  Although reliance was placed by Counsel Miss Wong on Re Hudson (supra), it seems to me that she had misread the decision of Buckley J in failing to see that it was the obligations (my emphasis) which a party had undertook to perform could be released or modified rather than the undertaking to perform.  Quoting a day-to-day example would be that the obligation to pay (which a party had so undertaken) a sum of, say, $1000 could be modified either upwards or downwards to other amount of money.  However, such undertaking to pay could only be uplifted or discharged if one or more of the circumstances set out in TLS nee J v. RCS (supra) exists.

21.  This follows the next question as to whether, according to the matters raised by the Father in his supporting Affirmation, amounted to a material change of circumstances which was not foreseeable at the time when he gave the Undertakings and had rendered performance not feasible (TLS nee J v. RCS)  ? 

22.  Going through the Father’s supporting Affirmation, in particular, (sub-heading C: “The Respondent’s Abuse of theUndertaking and Repeated Demands”) and (sub-heading F: “Increased demands from theRespondent”), he is in essence complaining the Respondent’s repetitive demands through emails to his office email account for reimbursement of sums falling outside the terms of the Undertakings.  The Father also complained no original receipts were provided by the Mother since the receipts were needed for his tax purposes and also for verification as to whether the expenses are indeed related to the child in question.  There is also complaint by the Father that the Mother did not seek his consent or consult him prior to signing up for additional Extra Curricular Activities (“ECA”) classes.

23.  The Father in his Exhibit “CCMJ-33-4” and “CCMJ-33-5” produced the emails exchanged between himself and the Mother. I should perhaps say that since no Affirmation was filed by the Mother, I would assume the emails produced by the Father are complete.

24.  Considering the contents of the emails, it can be seen that the Mother had been repeatedly chasing him for reimbursement of expenses spent on the child.  Some receipts are produced by the Mother but whether it is complete had yet to be ascertained from the Mother, if necessary. In the email dated 13 October 2015, the Mother was chasing the Father 4 sums of moneys, namely, $1,637 which she had notified him on 1/9/2015 (outstanding 41 days); $3,500.30 which she had notified him on 7/9/2015 (outstanding 35 days); $350 which she had notified him on 16/9/2015 (outstanding 26 days) and $1,860 which she had notified him on 25/9/2015 (outstanding 18 days).  The total outstanding sum is $7,347.30.   

25.  It is not the Father’s case, to the very least not deposed to in his 33^rd Affirmation, that he had already settled the moneys requested for by the Mother but nevertheless the Mother kept on bombarding his office emails account.  Given the fact that there are sums long outstanding and unpaid, the Mother’s repeated requests for reimbursements could not be said to be unforeseeable or unreasonable so as to amount to unfair exploitation or abuse of the Undertakings.  Had there been any disagreement by the Father whether as to the expenses claimed by the Mother fall within the scope of the Undertakings or supporting receipts, it is for the Father to seek further directions from the Court if it could not be resolved amicably through respective lawyers.  There is so far no such application and the Father then come up with the present application for an outright withdrawal from the Undertakings as per paragraph 1 of the Summons.  This is not acceptable.

26.  As to the matters raised under (sub-heading B : “Undertakinggiven on the hearing on 12 June 2014”), it is superfluous to re-visit the circumstances as to how the Undertakings came about and given.  First of all, the Father was legally represented by experienced family law practitioners including experienced Counsel Mr. Jeremy Chan.  It is fair to say whatever contingencies that might arise in relation to the subject Undertakings would have been canvassed by and within the contemplation of his lawyers, if not the Father himself also.  Secondly, it is noted that the Father produced a copy of the Transcript of the hearing on 12 June 2014 with an attempt to elaborate or explain the meaning, scope and extent of the Undertakings in question.  In my view, such attempt is unscrupulous.  As said earlier, any dispute as to the meaning and scope of the Undertakings would be the subject of clarification by Court’s process rather than seeking outright withdrawal of the Undertakings.  Had the Court not been able to clarify or resolve the dispute without going through the transcript, it would then do so.  Thirdly and surprisingly, I fail to see how the Father could produce the Mother’s Counsel’s Opening Submission as his own documentary exhibit under Exhibit “CCMJ-33-3”.  This is, in my view, unscrupulous if not contrary to any professional rules, conduct and ethics. 

27.  As to the matters raised under (sub-heading D : “Effort toResolve the Reimbursement Matters was Futile”), I do not see how those contacts between the respective law firms attempting resolution on reimbursement would have any relevance to become a ground to support the present application.

28.  As to the matters raised under (sub-heading E : “Threat fromthe Respondent’s solicitors”), which is again repeating the chain of correspondence exchange between the respective law firms.  Counsel Miss Athena Wong for the Father failed to address further as to what ‘threats’ had the Father been subjected to so much so that he could rely upon as his ground for the present application.  

29.  The Father had not been able to bring himself within any one or more of the circumstances set forth in TLS nee J v. RCS (supra) for withdrawal of the Undertakings.  The Father had also failed to demonstrate any legal basis that the Court could ‘modify’ Undertakings.

Retrieval/Qualifying the Undertakings

30.  It is not the first time that the Father attempted to retrieve from or qualify the Undertakings that he gave on 12 June 2014.  In this Court’s Judgment handed down on 5 June 2015 as to Financial Provisions, at paragraphs 145 to 150, upon the Father’s then Counsel’s submissions in arguing the financial provisions for the child N, this Court had already referred to the Order dated 12 June 2014 containing the Undertakings and had said :-

“145.  This Order embodied the Father’s 2 Undertakings and was drafted by the Mother’s solicitors ‘having the carriage oftheorder’ (see 42//5/4 of HKCP 2015), perfected and sealed on 16 July 2014.  There is no question that it had been duly served upon the Father’s lawyers.

146.  Since the Order has been perfected and sealed, it is trite that this Court is now functus officio on the terms therein (see Andayani v.             Chan Oi Ling [2000] 4 HKC 233).  If any party considers that an order not in accordance with the order as pronounced, he should apply to the court to vary the order as soon as possible so as to prevent the order from being passed and entered and made final (Re Swire (1885) 30 Ch.D, 239).

147.  In my decision, the terms of the Undertakings are clear in context and coverage, it refers to “all school fees, school bus,school uniform, school books and stationery…….” and “allreasonable costs of extra-curricular activities ……no exceedHK$4,000 per month….” without any reference or restrictions as to any period of time for it to apply, whether in prospective, that is to take effect from and since the date of the Undertakings, or retrospective, that is to also cover expenses before the date of the Undertakings.

148.  In my decision, the Father’s 2 Undertakings apply to expenses before and after the date when the Undertakings were given.  That is to say, they also covered those expenses under the Mother’s claim for reimbursements within the 62 months.  There are 2 reasons for this finding.  First, the Undertakings contained the word “all” which could not be taken to mean only expenses spent on and after the date of the Undertakings.  Secondly, the 12 June 2014 was the very first day of the trial of the Mother’s claim which included reimbursement of these expenses that had been spent within the 62 months prior to the trial. The 2 Undertakings were included (as drafted by the Mother’s lawyers) as pre-emptive clauses before the order for adjournment of the trial.  Without any express limitation as to the time period, this could not be taken to mean it only covers expenses spent on and after the date of the Undertakings but not before.

149.  It is my decision that the 2 sums of HK$83,626 for Extra-Curricular Activities expenses and HK$39,920 for School Bus (spent and incurred during the 62 months between May 2009 and June 2014) both fall within the terms of the Father’s 2 Undertakings given on 12 June 2014.  Accordingly, subject to the Father’s full compliance of the terms of his Undertakings, these 2 sums would have to be deducted from the sum of HK$239,850.60 (paragraph 143 above).

150.  The medical expenses of HK$23,836 for N fall outside the Father’s Undertakings.  Given the lapse of time since these expenses were incurred, they are now no longer recoverable from the Father’s employer’s medical insurance.  In Father’s Counsel’s written closing submissions on calculation of outstanding reimbursement figure, it was said that the Mother had belatedly provided the Father with documentary proof.  It is now too late to claim from medical insurers and the Father would have to pay from his own pocket (paragraph 48(3) of Counsel’s submissions). The Father’s Counsel, with this sum of HK$23,836 added in as money payable by the Father, then came up with the total sum of HK$89,477 as the total outstanding amount. The fact that the Father had not produced evidence on his assertion of the Mother belatedly gave him the receipts and the inclusion of such sum as part of the amount which need to be reimbursed, it is my decision that such medical expenses should not be deducted from the sum of HK$239,850.60 (paragraph 143 above).”

Cross Undertakings by the Mother ?

31.  Upon review of the alternative prayer in the Father’s Summons, it is odd and absurd for the Father to be able to impose terms (see paragraph 2(a) of the Summons) and cross undertakings (see paragraph 2(b) of the Summons) upon the Mother as condition precedent to his performance of the Undertakings that he gave. 

32.  Counsel Miss Athena Wong could not assist this Court further as to what legal basis or logic for the Father to be able to put forward such alternative prayer. 

Compliance with the Practice Directions

33.  Upon review of this case as a whole, it is noted that at least on 2 previous occasions that the Father, with the benefit of legal advice by experienced family law practitioners throughout, was found not to have complied with Practice Directions.  This is odd and unacceptable.

34.  At the trial in this Court back in 2012 when the Father was legally represented throughout the trial, he attempted to adduce medical expert evidence without compliance with Parts G and K of Practice Directions 15.12 and Order 38, Part IV on Expert Evidence (date of Judgment : 5 October 2012).

35.  In HCMP No.2050/2015 (date of Judgment : 7 December2015) on the Father’s application for leave to appeal, Hon Poon JA commented the hearing bundles submitted were not in compliance with Section E of Practice Direction 4.1.  It also ignored the reminder sent by the Registrar of the High Court to the parties dated 27 August 2015 that the hearing bundle should only contain documents essential for disposal of the application for leave to appeal.  His Lordship at the concluding paragraph of the Judgment said :-

“26.  In the future, if the hearing bundles for leave application before the Court of Appeal do not satisfy the requirements in Practice Direction 4.1, this Court will simply return them without reading and direct the responsible party to prepare them in accordance with Practice Direction 4.1.  The Court may also visit the responsible party and his solicitors with costs sanctions.”

36.  In the present application, it is noted that the Father produced the Order dated 12 June 2014 as his documentary exhibit under Exhibit “CCMJ-33-1” to his 33^rd Affirmation.  This is, unfortunately, again in breach of the Practice Directions, namely, paragraph 4(c) of Practice Directions 10.1.

Conclusion

37.  For all the reasons above, I find the Father’s application for withdrawal or the alternative application for variation of the Undertakings fail.

38.  The Father’s Summons must be dismissed with costs to the Respondent Mother, to be taxed if not agreed.

39.  I also grant Certificate for Counsel.

Orders

40.  I now make the following Orders :-

(a)  The Applicant’s Summons dated 3^rd November 2015 be dismissed;

(b)  The Applicant do pay the costs of and occasioned by the Summons dated 3^rd November 2015 to the Respondent, including all costs reserved (if any), to be taxed if not agreed; and

(c)  The Respondent’s own costs be taxed in accordance with Legal Aid Regulations.

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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DECISION
(Resumption of Defined Access)
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Background

1.  This is the adjourned hearing of the Applicant Father’s Summons dated 4 June 2015 which was issued on an urgent basis and heard by this Court in the afternoon of 4 June 2015.  I will refer to this Summons as “Access Summons” in this Decision.

2. Pursuant to an Order dated 13 March 2014 the Father was granted defined access to the child, whom I referred to as “N”, inter alia, as follows :-

“(a) One week from Wednesday after school or 9:30 a.m. if no school to Saturday 9:30 p.m.; and

(b) The second week from Thursday after school or 9:30 a.m. if no school to Sunday at 10:00 a.m.”

3. Following an access which ended on 30 May 2015 the Mother, having discovered an abrasion under the right eye of N and enquired the Father via text messages and also asked N about it, made a report to the Police on 31 May 2015 for suspected child abuse.  The child was then admitted to Tseung Kwan O Hospital for checking and there was police investigation. 

4. On 1 June 2015 which is a Monday, the Mother through her lawyers informed the Father’s lawyers proposing temporary suspension of the said defined access of which the next session would be 4 June 2015 pending further news from the Police and the Social Welfare Department in respect of the suspected child abuse.

5. The Father saw fit to issue the Access Summons on 4 June 2015 on an urgent basis and this was heard in the afternoon.  The Access Summons was drafted, inter alia, in the following terms :-

“1. The Respondent do provide to the Applicant details and particulars of the injury that the Respondent alleges that the child of the family, namely, N suffers from and provide supporting documents, including but not limited to medical reports;

2. Unless otherwise advised by the medical doctor of the Tseung Kwan O Hospital with supporting documents, the Respondent do sent N to attend her usual school activities at xxxxx School (Primary Section);

3. For the purpose of Paragraph 3 of the Access Order dated 13 March 2014, the Respondent do deliver N to the roundabout of the Respondent’s residence in Tseung Kwan O for the Applicant to pick up N if she is not attending school on 4 June 2015 at 9:30 a.m. Alternatively, the Respondent be prohibited from giving any instructions to the school, her servants, agents or otherwise from preventing, prohibiting or obstructing the Applicant from picking up N from school for his access on the 4 June 2015.”

6. Having heard submissions, this Court adjourned the Father’s application for a week to 11 June 2015, directed both parties to jointly write to the Tseung Kwan O Hospital for N’s medical conditions and temporarily suspended the Father’s defined access under the 13 March 2014 Order until further order.

7. By a joint letter dated 10 June 2015 (which is a day before the adjourned hearing), the parties sought to vacate the hearing on 11 June 2015 and re-fix it to a later date.  The Court accepted the application and re-fixed the hearing to 2 July 2015.

8. At the hearing on 2 July 2015 and after hearing submissions, the Court made the following orders :-

“1. Paragraph 1 of the Summons be withdrawn;

2. Paragraphs 2 and 3 of the Summons be adjourned to a date to be fixed not earlier than 13 August 2015;

3. Social Welfare Report be called for as to resumption of Access Order dated 13 March 2014 in English and to be available 7 days prior to the adjourned hearing of the Summons; and

4. Costs be reserved and save that the Respondent’s own costs on 4 June 2015 and of today be taxed in   accordance with the Legal Aid Regulations.”

9. On 29 July 2015, the Father filed a further Summons of which I refer to it as “Interim Supervised Access Summons” seeking, inter alia, the following :-

“1. The Applicant be granted interim supervised access with the child of the family N with the presence and guidance of an independent third party or a Social Welfare officer, every Monday to Friday from 2:00 p.m. to 5:30 p.m. and Saturday from 9:00 a.m. to 1:00 p.m.;

2. The Respondent and/or person related to the Respondent shall not be present during the Applicant’s supervised access with his daughter.”

10. This Interim Supervised Access Summons could only be listed for hearing around a month later on 31 August 2015.

11. On 10 August 2015, this Court received the Social Investigation Report compiled by one Miss Yim Heung Mui (“Miss Yim”) as to the resumption of the Access Order dated 13 March 2014.  Upon reading Miss Yim’s report, this Court directed a short hearing on 14 August 2015 on an urgent basis to arrange for interim supervised access for the remainder of the summer vacation, by that time which only has 2 more weeks to go.  At this hearing, the Father was granted interim supervised access on 20, 21, 27 and 28 August before the hearing scheduled for 31 August 2015.

12. At the hearing on 31 August 2015, parties agreed that pending the substantive argument of the Access Summons, the Father would continue to have interim supervised access on 4 and 11 September (Fridays) (3:30 p.m. to 5:15 p.m.) and 5 and 12 September (Saturdays) ( 9:00 a.m. to 12:00 p.m.).

13. The Father’s grounds for the present application are set out in his 29^th Affirmation, the Mother’s grounds of opposition at her 12^th Affidavit and the Father’s reply at his 32^nd Affirmation.  Reference was also made to matters stated in the Father’s 30^th Affirmation and the Mother’s 13^th Affidavit.

The Proper Question

14. It is trite that the best interests of children are always the first and paramount consideration of the Court wherever there are disputes over custody, care and control or access of children.  The Court would be astute to look into all relevant matters and circumstances, apart from considering the parents’ respective cases, and to find where the best interests of the children should lie.  This is a fact finding process followed by an exercise of discretion which involves no consideration of any complicated questions of law or legal principles.

15. Thus said, the proper question before this Court is whether it is in N’s best interests to have the access arrangement since March 2014, but which had been temporarily suspended by this Court on 4 June 2015, be now resumed ? 

The Social Investigation Report (“SIR”) dated 6 August 2015

16. The SIR was specifically called for by this Court for consideration of resumption of access.  The case officer is Miss Yim Heung Mui (“Miss Yim”). 

17. Miss Yim had arranged 3 accesses for the Father, namely, 30 minutes on 20/7/2015; one hour each on 27/7/2015 and 3/8/2015.  She reported in details as to what had happened during each of the access.  I find the following observation of N by Miss Yim at each of the access respectively and set out in the SIR particularly useful with those important description underlined in italics :-

“18. ……..She appeared to be anxious when she met the father. After warming up for about couple minutes, the girl could talk

with the father spontaneously and play with him freely and happily. The access atmosphere was relaxing and full oflaugh……….. When the girl was asked about her feeling right after the meeting with the father, she described herself as nervous before seeing the father and wasvery relaxed afterseeing him.”

“19. ……..She also expressed fear to meet the father at the beginning of access but could interact with the father freely after about 15 minutes later. She played chess with the father, chatted with him and did some artworks with him. In the later time, she even asked for more time to do her drawing with the father….…… The girl was observed to be ease and continued her discussion with the father in designing her drawings. Right after the access, the girl also expressed her relaxed and lessnervous after seeking the father to the investigating officer.

“20. Yet, the girl appeared to be tense and nervous in the third access and required longest time in warming up. Different from the past two accesses, the girl avoided to have contact with the father and always cling to the investigating officer. Only in the latter part, she left the investigating officer alone twice and chatted with the father spontaneously…..After the access, the girl, different from the past two accesses, remained tense and expressed that she did not want to meet the father. She could not further elaborate on it.”

18. At paragraph 28 of the SIR, Miss Yim said :-

“28. …….The girl acted freely and happily with the father during the two accesses and expressed her relax and ease after seeing the father.However, she acted differently in the third access by clinging onto the investigating officer and avoiding having interaction with the father……..”

19. At paragraph 29 of the SIR, Miss Yim made the following important remarks and recommendation :-

“29. No matter how the present incident was, it seemed to be a parenting issue and suspended the contact between the fatherand child did no help inimproving the family relationship. In contrast, it spotlighted the girl and pulled her in between the parents’ conflicts, which stressed the girl much as reflected by the assessment of the girl’s clinical psychologist. It was glad to see that both parents were willing and motivating to receive external assistance to promote the welfare of the girl. In fact, there was already a big team of professionals, e.g. psychiatrist, clinical psychologists, family social worker, social worker for co-parenting services, medical social worker and other private medical practitioners to support the parents and the girl.

Nevertheless, the most powerful one was still the parents themselves to reassure and nurture the girl that she could get the love from both parents without any worry to upset either one.

20. Miss Yim at the end of the SIR recommended as follows :-

“30. ……I would like to suggest the access be resumed as usual as far as possible. …..”

The Memo by Miss Yim (“The Memo”) dated 1 September 2015

21. The Memo was directed by the Court at the hearing on 14 August 2015 when 4 separate dates of interim defined supervised access were arranged for the remainder of the summer vacation (see paragraph 11 above).  Due to Miss Yim was out of town on 2 of the access dates, only 2 access took place on 27 and 28 August 2015.

22. For the access on 27 August 2015, Miss Yim described :

“……She appeared to be anxious when the father showed up. After warming up for about 15 minutes, the girl could talk with the father and play with him freely….. The girl played play-mud, paper craft and different games with the father interactively. Before the session ended,   the girl also asked the father to read a book with her.”

23. For the access on 28 August 2015, Miss Yim described :

“……The girl had stronger rejection to meet the father and expressed via her mother for the company of the social work officer to stay with her during the whole access time. When the girl was interviewed alone, she expressed her fear to meet the father as she worried that the father would take her away from her mother…… She appeared to be very tense while seeing her father. For warming up, the father showed the girl her favourite DVD which he brought upon the request of the girl in the last access. The girl became relaxed after warming up. She played the pretend-cooking with the father happily and interactively in the latter part of the session. The girl also felt ease of the social work officer’s request to walk away from the playroom several times and  continued her play with the father freely.”

24. Miss Yim, in the concluding paragraph of the Memo, had said :

“The atmosphere during the two access was harmonious and relaxing in general.”

The Father’s view

25. Much emphasis was placed by the Father upon the conclusion reached by the Multi Disciplinary Case Conference (“MDCC”) as to the allegation of child abuse complained by the Mother.  The MDCC consists of 8 professionals including police officers, social welfare officers, doctors from Tseung Kwan O Hospital and a clinical psychologist from Kowloon Hospital, and they unanimously concluded that there was no child abuse.  The letter was exhibited as “CCMJ-30-3” to his 30^th Affirmation.

26. Besides, the Tseung Kwan O Hospital where the child N was admitted and having been medically checked and examined also concluded there was no child abuse so alleged by the Mother.  The letter was exhibited as “CCMJ-32-1” to his 32^nd Affirmation.

27. Still further, the class teacher Miss Chan observed that the child N behaved normal without exhibiting any emotional problem when she resumed schooling after the suspected child abuse incident.  This was recorded in the SIR at paragraph 15.

28. Father’s Counsel Miss Athena Wong in her submissions made reference to certain video recordings taken by the Father as early as 20 December 2014, 7 May 2015 and 21 May 2015 of which 2 DVDs were produced as an exhibit “CCMJ-32-2”.  These 2 DVDs were produced without any advance notice either to the Mother’s lawyers or to the Court of their existence.  It simply came in, as one would say, ‘out of the blue’ as an exhibit.  The reason given by the Father was that he was concerned that if he did mention it beforehand, the Mother would place additional pressure on the child N.  There was no further evidence to set out the circumstances when the recordings were taken or the veracities of the contents. 

29. The Father relied upon the 2 DVDs as evidence to show the Mother had coached the child N as to what to say to the social worker.  This had happened on 21 May 2015 which is just 9 days before the Mother made the complaint of child abuse in an effort to deny his access.

The Mother’s view

30. The Mother in her 13^th Affidavit made some comments on the SIR as to the reaction of N before and/or after each of the 3 accesses on 20 July 2015, 27 July 2015 and 3 August 2015 which had happened but not mentioned by Miss Yim in the SIR.  The Mother also refuted the Father’s allegation that she had deliberately refused the Father to bring N to see the clinical psychologist on the 19 June 2015

31. Counsel Mr. Kevin Li for the Mother invited this Court to consider the fact that the police investigation of the Father, at today’s hearing, has yet to complete despite the MDCC conclusion on 16 June 2015.  Further, the evidence of the child abuse actually came from the child N herself and not the Mother’s bare allegation as the Father’s Counsel had so submitted at paragraph 2(a) of her written submissions. The true story of child abuse came from the child N and reflected in the SIR rather than one-sided complaint of the Mother. 

32. Reference was also made to the change in attitude of N who was quite fearful at the beginning of the 3 accesses.  There was at least some reluctance on N to see the Father which might be due to the alleged assault/abuse. 

33. As to the 2 DVDs, both of them are self-serving.  Although no strong views were taken as to the way by which they were recorded and produced, there was contention if they were relied upon as evidence against the Mother for having pressurised or coached the child N in the way which the Father had suggested.

34. Mother’s Counsel reminded the Court that the Father had prolonged delay in his application for general access which this Court had so directed him to do so when the Mother was granted sole custody, care and control of the child back in October 2012.  The present access arrangements are only temporary ones which are not designed to serve for long term purpose nor was it intended to be a replacement of the general access application (at paragraphs 17 and 18 of Mr. Kevin Li’s Speaking Notes).

35. Finally, this Court having had the ‘best interests’ of the child as a determining factor, should consider maintaining the present status quo of interim supervised access of twice a week as opposed to going back to the access arrangement under the Access Order dated 13 March 2014 which the Father is now seeking to reinstate.

The Court’s view

36. I have already posed the proper question to be asked at paragraph 15 of this Decision.  The answer to the question requires consideration of the following in sequence :-

(a) What had happened which necessitated a suspension of the Access Order dated 13 March 2014 ?

(b)  Whether those circumstances that had arisen and resulted in the suspension persists or how likely were those circumstances recur ?

(c) Are there any justifiable reasons, considered upon the evidence available and all the surrounding circumstances objectively and with the ‘best interests’ of the child in mind, to continue with the suspension ?

37. It needs no further elaboration that the Access Order dated 13 March 2014 was suspended on 4 June 2015 because of the alleged child abuse around 30 May 2015 complained by the Mother against the Father.  The complaint was lodged with the Police.  The alleged child abuse had then been looked into and investigated by the MDCC.  On 16 June 2015 the MDCC concluded that the complaint of child abuse was not established.  As rightly submitted by Counsel for the Father, there was no other evidence until now to support any child abuse.  The treating doctor of Tseung Kwan O Hospital also made no finding of child abuse in his medical report dated 14 August 2015 (see exhibit “CCMJ-32-1”). 

38. The fact that the police investigation on the Father is still pending is, in my view, neither here nor there.  First, when the police will complete its investigation is no way to be ascertained.  Such investigation may or may not lead to prosecution.  Even if there is prosecution, it is trite that a defendant charged with an offence is presumed innocent until the contrary is proved and convicted by the criminal court.  Secondly, unless there are overwhelming evidence that the Father was more likely than not would be prosecuted, and further, in the absence of any finding or conclusion of child abuse, to continue with the suspension of the Access Order dated 13 March 2014 would not be in N’s best interests.  Put it the other way, the substratum upon which the suspension order was granted no longer exists.

39. There is no corroborative evidence of the comments raised by the Mother as to N’s reaction at the 3 accesses did occur but was not mentioned in the SIR.  The Court could only take the Mother’s comments at their face value.  On the other hand, I find the SIR comprehensive and useful; in particular, the description of the child’s reaction upon meeting the Father and the Father-child interaction in each of the 3 accesses.  I accept the remarks and recommendation of Miss Yim.

40. For these reasons, I find those circumstances leading to the suspension no longer exists as at the date of this hearing.  Also, considering the evidence readily available, I also believe it is unlikely that those circumstances would recur or there are any justifiable reasons to continue with the suspension. 

41. Regarding Mother’s Counsel’s submission of the status quo access should be the same as the present arrangement rather than the 13 March 2014 arrangement, with respect I do not agree.  But for the suspension on 4 June 2015, the access arrangement as per the Access Order dated 13 March 2014 continues.  There has never been any complaint from the Mother prior to the suspension that the Access Order in 2014 was not in the child’s best interests.  There is also no application for variation of the Access Order dated 13 March 2014 by the Mother.  Accordingly, Mother’s Counsel’s submission is tentamount to taking advantage of the suspension to vary the Access Order in 2014 without any formal application for variation by the Mother.

42. Mother’s Counsel in his Speaking Notes raised 2 technical points.  First, he referred to the Father’s Summons asked for quite different orders none of which concerned an order to resume interim access in full scale.  Secondly, he referred to Section 13(3) of the Guardianship of Minors Ordinance, Cap.13, which provides that interim orders shall not be made to have effect after the end of 3 months.

43. Section 13(3) of Cap.13 provides as follows :-

“(3) On an application under section 10 the court may, in any case where it adjourns the hearing of the application for more than 7 days, make an interim order, to have effect until such date as may be specified in the order and containing –

(a) provision for payment by either parent to the other, or to any person given the custody of the minor, of such periodical payments towards the maintenance of the minor as the court thinks reasonable having regard to the means of the parent on whom the requirement is imposed; and

(b) where by reason of special circumstances the court thinks it proper, any provision regarding the custody of the minor or the right of access to the minor of either of his or her parents,

but an interim order under this subsection shall not be made to haveeffect after the end of 3 months beginning with the date of the order (my emphasis) or of any previous interim order made under this subsection with respect to the application, and shall cease to have effecton the making of a final order (my emphasis) or on the dismissal of the application.”

44. The Mother in her 13^th Affidavit dated 26 August 2015 at paragraph 28 concluded that complete resumption of access (my emphasis) is not in the child’s best interests.  She further deposed that she believed that a gradual resumption of access (my emphasis) is more appropriate. Further, at paragraph 27 of the same Affidavit, the Mother deposed “….to resume the access arrangementbefore the child abuse…” Having said so, how could the Mother’s Counsel now raised the technical point that the Father’s Summons referred to different kind of orders and not seeking resumption of full access arrangement ?  Although paragraph 3 of the Access Summons as drafted was not in verbatim to the reliefs presently sought by the Father, say for instance, “resumption of the Access Order dated 13March 2014” or any similar terms, the fact that the Mother was fully aware of the nature of the application and had had the chance to respond fully by affidavit evidence would not be prejudiced. 

45. Mother’s Counsel’s other submission that the Access Order dated 13 March 2014 lapsed by virtue of Section 13(3) of Cap.13 is, in my view, misconceived.  The 13 March 2014 Order was made to have effect there and then (my emphasis) when it was granted.  It had been in place for about 15 months before it was suspended in June 2015.  No final order had been made so far.  The 3-month period under the statutory provision refers to any interim orders granted shall not be made to have effect after the end of 3 months counting from the date of the Order (myemphasis) and which would only cease to have effect upon a final order or dismissal of the application in respect of which the interim order was initially granted.  It should not be construed as any such Order itself having a 3-month validity period.  With respect, I do not agree with Counsel Mr. Li.

46. Moreover, all along both parties are observing the terms of the Access Order dated 13 March 2014 as to defined access until suspension on 4 June 2015.  Also, I wish to add there is no question of the Access Order of 13 March 2014 having ceased to have effect by virtue of Section 13(3).  The Order dated 4 June 2015 is neither a final order nor an order dismissing the Father’s access application. I also do not agree with Counsel Mr. Li.

Decision

47. For the above reasons, I decided as follows :-

(a) the Order dated 4 June 2015 (suspending the Access Order dated 13 March 2014) be set aside;

(b) the Access Order dated 13 March 2014 be resumed with effect from Wednesday, 23 September 2015 until further Order.

48. Since this application relates to children matters, I believe it is fair and reasonable for making no Order as to costs including all costs reserved.  The Mother’s own costs be taxed in accordance with Legal Aid Regulations.

FCMP 67 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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J U D G M E N T
(Leave to appeal)

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1.  This is the application taken out by the Applicant (“the Father”) for leave to appeal from the Judgment of this Court dated 5 June 2015 (“the Judgment”). There is also an application for stay or interim stay of execution of the Settlement Order under the terms of the Judgment.

The relevant provisions

2. The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

3. The relevant tests for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of the Judgment).

The Trial Proper

4. At the trial proper, the Father was represented by Counsel Mr. Jeremy S.K. Chan.  Since the trial proper which ended with the Judgment, the Father changed his legal team from Messrs. Haldanes to Messrs. Payne Clermont who issued the present Summons for leave to appeal.  Counsel Miss Athena Wong was now engaged by the Father to pursue the leave to appeal application.  The Mother was represented by the same legal team and Counsel on the instructions of the Legal Aid Department to oppose the Father’s application.

The Father’s application

5. The Father in his Summons dated 3 July 2015 sought the following :-

“1. The Applicant do have leave to appeal against thefollowing Orders made by Deputy Judge G. Own on the

5^th day of June 2015 :

a.The property situated at One Silver Sea under the sole name of the Father be settled on trust for the use of N and her primary carer, the Mother, at nil consideration until N reaches the age of 18 or ceases fill time education, whichever is the later, with the reversion to the Father (the “SettlementOrder”);

b.Subject to full reimbursements by the Father to the Mother as per the Undertakings dated 12 June 2014, the Father do pay to the Mother the sum of HK$140,140 as reimbursement of expenses incurred for N for the period from May 2009 to June 2014 within 14 days from the date of this Judgment;

c.Subject to any payments already made under the Interim Maintenance Order dated 7 November 2013, the Father do pay to the Mother periodical payments for the maintenance of N at the rate of HK$13,726 per month commencing from 1 July 2014 and thereafter on or before the 1^st day of each succeeding month until N reaches the age of 18 or ceases full time education, whichever is the later; and

d.The Father do pay to the Mother carer’s allowance at the rate of HK$10,000 a month commencing from 25 October 2013 until further Order.

   2. The Applicant be granted leave to appeal as per the draft grounds of appeal annexed hereto;

   3. A stay of execution of the Settlement Order pending  appeal be granted and, if the same is refused, an  interim stay pending the Applicant’s application to the  Court of Appeal for a stay of execution of the  Settlement Order pending appeal be granted; and

   4. Costs of this application be provided for.”

6. Attached with the Summons are the draft Grounds of Appeal (“the Appeal Grounds”) under 4 headings as follows :-

(a) Onerous Maintenance Borne by the Father (from  paragraphs 1.1 to 1.9);

(b) Unreasonable Carer’s Allowance (from paragraphs 2.1  to 2.3);

(c) Improbable & Inexplicable Expenditures (from  paragraphs 3.1 to 3.4);

(d) Eviction of the Father out of his Only Property in HK  (from paragraphs 4.1 to 4.10).

7. Counsel for the Father, Miss Athena Wong, produced a 22-page skeleton submissions (consists of 86 paragraphs) together with a list of cases and authorities.  Counsel for the Mother, Mr. Kevin Li, opposed both the applications for leave to appeal and stay or interim stay of execution but fairly conceded that if leave to appeal was obtained by the Father, there will be no objection to a stay of execution of the Settlement Order until determination of the substantive appeal.

The Grounds of Appeal

8. At today’s hearing Counsel Miss Athena Wong adopted all the Appeal Grounds.  For the sake of brevity, I will deal with each of the 4 headings in the Appeal Grounds by reference to those sub-paragraphs thereunder.

(a)  Onerous Maintenance Borne by the Father (Paras 1.1 to 1.9)

9. It was submitted under this Appeal Ground that :-

“The Court erred in finding that the financial provision madeis reasonable as regards to the means of F, having regard to all the circumstances of the case.”

10. The Father’s employment, disclosed means, resources and liabilities were considered and set forth in paragraphs 33 to 41 of the Judgment.  His latest financial position as well as all his alleged future liabilities set out in his 27^th Affirmation was also considered by this Court at paragraphs 152 to 175 of the Judgment.  It was only then that this Court came to its conclusion and finding as to the overall financial means of the Father at paragraph 178 of the Judgment.  The Father had not elaborated in any detail or with precision as to how this Court had fallen into any error in law when so finding.  Hence, paragraphs 1.1, 1.2, 1.3, 1.6 and 1.9 have no reasonable prospect of success on appeal.

11. As to paragraph 1.4, this has been considered by this Court at paragraph 179 of the Judgment.  In any event, as rightly pointed out by Mother’s Counsel, the Father has failed to demonstrate any error in law on the Court’s finding.  Thus, paragraph 1.4 has no reasonable prospect of success on appeal.

12. As to paragraphs 1.5 and 1.7, the Father referred to the amount of transportation expenses and food supplements objectively assessed by this Court (at paragraphs 95 and 106 of the Judgment respectively).  The Father again failed to demonstrate any error in law on the assessment process or that such findings fall outside the ambit of generosity and reasonableness over children’s expenses.  Paragraphs 1.5 and 1.7 have no reasonable prospect of success on appeal.

13. As to paragraph 1.8, it has been considered by this Court at paragraph 157 of the Judgment.  Over and again, the Father failed to demonstrate any error in law on the Court’s finding. Paragraph 1.8 has no reasonable prospect of success.

(b)  Unreasonable Carer’s Allowance (Paras 2.1 to 2.3)

14. It was submitted under this Appeal Ground that :-

“The Court erred in allowing a carer’s allowance of $10,000 per month.”

15. The Father’s case on the Mother having income, earning capacity, employment prospects and financial resources rests principally on 2 sets of undisputed facts, namely, (i) that the Mother once had had earned income from Nu Skin and; (b) throughout the years, or more precisely during the past 62 months, she had been financially supported by the maiden family, including her father’s canteen business income.  The Father alleged that such support came about under the disguise of ‘loans’ which were merely ‘soft loans’ if one has to describe it as any kind of loans.

16. The reasons and evidence put forward by the Mother for sourcing out income from Nu Skin due to the Father’s sudden unilateral reduction of the child N’s maintenance had been fully considered by this Court and accepted as evidence of facts at paragraphs 109 to 112 of the Judgment.  Not only was the Father unable to show any error in law of this Court in arriving at such findings of fact, the Father’s argument of ‘earning capacity’ which, given the Mother’s reasons found and accepted by the Court, was forced upon by the Father on the single parent Mother and is, in my view, untenable and unjust.  

17. As to the financial support from the maiden family, be it so called ‘soft loans’ by the Father or any other label or description, the real issue is whether those financial support had actually been spent by the Mother for maintaining the child N which should otherwise came from the Father of which the Mother is entitled to be reimbursed (at paragraph 132 of the Judgment).  Having considered all the circumstances and analysed the Mother’s evidence on balance of all probabilities, the Court accepted the Mother’s reimbursement claim albeit not upon any findings of ‘soft loans’ but rather on expenses which had reasonably been incurred by her for maintaining the child N.

18. Accordingly, paragraph 2.1 has no reasonable prospect of success on appeal.

19. As to paragraphs 2.2 and 2.3, the reasons for awarding carer’s allowance were set out in paragraphs 112, 114 to 117 of the Judgment which I do not intend to repeat here.  Carer’s allowance is always fact sensitive and varies in different cases.  This is also essentially a discretionary exercise to be adopted broadly (as per Bodey J in Re P (Child : Financial Provision) [2003] 2 FLR 865).  At paragraphs 78 to 82 of the Judgment (at page 883 to 884), where Bodey J said :-

“78. It is in quantifying the mother’s reasonable needs as carer of the child that a tension emerges in such cases as this where the father is very wealthy. This tension is between seeking to achieve that the child has a standard of living bearing ‘some sort of relationship with the father’s current resources and standard of living’, yet that the mother is not in the process provided for just the same as if she and the father had undertaken the commitment of marriage.

79. Such tension is unlikely to emerge where the father is of lesser means, as (i) his lifestyle will be more modest as a comparative factor and (ii) his own needs will place a curb on the amount which he can reasonably be expected to pay.

80. Since there will always be distinctions of fact and degree as between cases, it is not possible to reduce to words any formula for seeking to ensure that the above distinction is maintained between mother as carer and mother as former wife. There will always be some budgetary needs claimed by a mother which fall clearly within her reasonable needs as the child’s carer and others which fall clearly outside those needs as carer.

81. There will equally and inevitably be numerous grey areas, where the need asserted is of no direct benefit to the child, but is (or is arguably) of legitimate indirect benefit in helping reasonably to sustain the mother’s physical/emotional welfare. This will be most pronounced when the father is very wealthy and able without difficulty to provide for living costs of no clearly identifiable direct benefit to the child, but which would indirectly promote the mother’s care of the child by allowing her such a lifestyle as not to feel ‘out of place’ in the society of the parents   of the child’s friends.”

20. The Father in his Form E in February 2014 deposed to have assets in the region of around HK$22.7 million (at paragraph 36 of the Judgment).  The Father’s Affirmation in January 2015 deposed of having net assets of HK$20.7 million (at paragraph 38 of the Judgment).  It was noted by this Court that the Father is financially capable of acquiring 50% interest in a property in Beijing back in 2007 (without mortgage) and more importantly, the further financial capability for keeping the Beijing property ‘idling around andunrented’ with zero income for around 8 years since 2007 until the time of trial, but paying maintenance fees and other related expenses.  With the increase in land prices in Beijing, PRC and the exchange rate between Renminbi and Hong Kong Dollars in recent years, it was found by this Court that the Father’s 50% interest worth around HK$5 million (if not more) (at paragraphs 171 to 175 of the Judgment).  Still further, in the latest Form H (that is, costs estimate) filed by the Father’s previous lawyers Messrs. Haldanes on 1 June 2015, legal costs had already run up to around HK$5,115,333.10.  It is unfortunate to see that such estimate had already exceeded the Father’s initial proposal (which was then completely withdrawn during trial) for putting up worth of HK$5 million to cater for N’s accommodation costs.  This Court, after consideration of the Father’s evidence as to his alleged expenses and liabilities, found the Father’s overall financial means is wealthy (at paragraph 178 of the Judgment).

21. The Father is unable to show any error in law for such award.  Paragraphs 2.2 and 2.3 have no reasonable prospect of success.

(c)  Improbable & Inexplicable Expenditures (Paras 3.1 to 3.4)

22. It was submitted under this Appeal Ground that :-

“The Court erred in accepting Mother’s evidence that the Mother spent HK$1,056,269.”

23. Paragraph 3.1 referred to the expenses claimed by the Mother being improbable, unexplained and/or unsubstantiated by documentary evidence.  As I have pointed out in paragraph 135 of the Judgment, the receipts and documents produced by the Mother to the Father lacked completeness.  However, having so found, it is also my finding that the Mother had done her best in keeping receipts (at paragraphs 136 to 138 of the Judgment) which had not added up to the exact dollar and cents for the amount claimed as reimbursements for 62 months (at paragraph 135 of the Judgment).  Further, a broad brush approach was considered to be the best and fairest way in the quantification exercise (at paragraph 140 of the Judgment). Paragraph 3.1 has no reasonable prospect of success.

24. Paragraph 3.2 referred to the 20% discount applied by this Court.  As stated in paragraph 142 of the Judgment, the 20% discount was to delineate those of N’s expenses which came from the Mother’s own moneys from those expenses which should have come from the Father and which need to be reimbursed.  Nonetheless, the Father is unable to show the 20% discount is unreasonable or such percentage falls outside the ambit of reasonable discretion of the Court or otherwise it is an error in law to do so.  Paragraph 3.2 has no reasonable prospect of success.

25. Throughout the trial and the Father’s case, the Father has not been able to adduce any evidence as to the Mother’s claims were made for her own or her maiden family benefit.  Paragraph 3.3 has no reasonable prospect of success.

26. Paragraph 3.4 referred to this Court not having found the financial support from the Mother’s parent and the parent’s canteen business were ‘soft loans’ and form part of the Mother’s personal liabilities.  As stated in paragraph 132 of the Judgment, the real issue to be decided is whether there are expenses actually incurred by the Mother for maintaining the child N which falls within the limits of reasonableness and which the Father is now liable to repay to the Mother.  This Court’s findings are that there are such expenses.  Further, as stated in paragraph 130 of the Judgment, the Mother under cross examination confirmed and agreed the financial support she received from her maiden family had never been repaid but there would be repayment after these proceedings.  Such evidence of intended repayment was found to be credible and, in the absence of further evidence in rebuttal, had undermined the Father’s case of ‘soft loans’.  Paragraph 3.4 has no reasonable prospect of success.

(d)  Eviction of the Father out of his Only Property in HK  (Paras 4.1 to 4.10)

27. It was submitted under this Appeal Ground that :-

“The Court erred in ordering the property situated at OneSilver Sea under the sole name of the Father be settled ontrust for the use of N and the Mother until N reaches the age of 18 or ceases full time education.”

28. Paragraphs 4.1 and 4.2 referred to this Court’s findings of fact as opposed to any error in law.  The findings are based upon analysis of evidence which were manifested under paragraphs 57 to 73 of the Judgment which I do not intend to repeat here.  Paragraphs 4.1 and 4.2 have no reasonable prospect of success.

29. Paragraph 4.3 is misconceived. The case put forward by the Father was that during access time in the past, he and the child N would either be staying in the Kowloon Tong property owned by SLAFF Limited (the Father’s family owned company) or the One Silver Sea owned by him.  At all time until now the Mother has the sole custody, care and control of N.  The Father is unable to show any basis for N’s accommodation costs should be borne by the maternal uncle and not by N’s parents, namely, either himself or the Mother.  In my view, this is neither a question of reasonableness or unreasonableness between the Father vis-à-vis the maternal uncle to bear N’s accommodation costs as drafted in Paragraph 4.3 nor any error in law of this Court.  There is no reasonable prospect of success on this paragraph.  

30. Paragraph 4.4 is odd.  The Father’s case was that he had already moved out from the Kowloon Tong property in May 2014 (over a year by now) and his parents are still alive (my emphasis).  Unless the Father concedes that he had not yet moved out from the Kowloon Tong property, there is no room for the Father to say this Court had erred in rejecting his evidence that he would have to move out after his parents pass away. 

31. As to the remaining part of paragraph 4.4, it is misconceived.  There is no finding or any conclusion at all of this Court as to when the Father’s parents would pass away.  It is entirely incorrect for the Father to say “…….the Court concluded that the Father’s parentswould only pass away many years later without any factual basis supporting such a conclusion.”  Rather, as rightly submitted by the Mother’s Counsel in his skeleton submissions, the Father’s submission that he would be evicted upon his parents’ demise was rejected for lack of evidence.  It is also odd to see that the Father is seemingly criticising this Court for concluding his parents would pass away many years later by saying “…Further, the Court concluded that the Father’s parents would only pass away many years later without any factual basis supporting such a conclusion.”  Not only such assertion is without respect to his parents, it is also unfair to the Court.  Paragraph 4.4 has no reasonable prospect of success.

32. Paragraph 4.5 referred to the impact on the Father upon implementation of the Settlement Order.  With the Court’s finding of One Silver Sea property not being the Father’s only place of residence and also with the Settlement Order in place, this could not constitute a ground of appeal and there is no reasonable prospect of success. 

33. Paragraph 4.6 referred to the Father was subject to discharge the existing mortgage liability of One Silver Sea property and thereby tying up a majority of his assets due to the Settlement Order.  As I stated in paragraph 67 of the Judgment, the One Silver Sea property encumbered by an existing mortgage would not prevent it from becoming the subject matter of a settlement.  There is no question of having to discharge the existing mortgage right away.  The corollary is that the Father could continue paying the existing monthly mortgage repayments (which he would have to do so in any event irrespective of whether there is the Settlement Order) without tying up a majority of his assets (at paragraph 71 of the Judgment). 

34. Counsel Miss Wong at paragraphs 38 and 39 of her skeleton submissions referred to the observation of Thorpe LJ in the case of Re P (supra) and submitted that the Settlement Order deprived the Father of any right to veto the settlement of the One Silver Sea.  With respect, this is incorrect.  There is no question of exercising any veto rights to buy another property for the purpose of the Settlement Order as it was the case in Re P.  For the present case, the One Silver Sea property is readily there and available to form the subject matter of the settlement.  There is also no evidence that the Father would be disposing of it in the near future.  Quite contrary it is the Father’s case that he would continue to hold onto the property after his retirement.  Paragraph 4.6 has no reasonable prospect of success.

35. As rightly pointed out by Mother’s Counsel in his skeleton submissions, there was no evidence at all throughout the trial as to what disturbance, inconvenience or emotional distress would be caused to the child N if she is required to move into and live in the One Silver Sea property.  Paragraph 4.7 has no reasonable prospect of success.

36. As to paragraph 4.8, it referred to N would be staying in the One Silver Sea with the Father during access even without the Settlement Order.  The Settlement Order was granted for the long term best interests of N with maximum degree of stability.  This could not be comparable with and is entirely different from any short period of access accommodation.  Paragraph 4.8 has no reasonable prospect of success. 

37. As to paragraph 4.9, the Father is unable to demonstrate any error in law in finding the existing housing arrangement of N to be unreasonable.  This Court’s finding was based upon detailed analysis of objective factors and surrounding circumstances of the living condition of N by comparing between her stay with the Father and with the Mother (at paragraphs 24 to 29 of the Judgment).  As to the remaining part of paragraph 4.9, it is the Father who had withdrawn his initial offer of providing an alternative accommodation worth HK$5 million for N without any alternative proposals, even without offering renting alternative accommodation (at paragraph 50 of the Judgment).  Again, as Mother’s Counsel rightly submitted, this Court was even invited not to consider other viable accommodation in the absence of evidence.  Accordingly, it is plainly wrong for the Father to be able to retract now and to submit that this Court had erred in not exploring suitable alternative accommodation.  Nonetheless, this had been done by the Court and the only option open for consideration is the One Silver Sea property (at paragraph 54 of the Judgment).  Paragraph 4.9 has no reasonable prospect of success.

38. Paragraph 4.10 referred to the Father’s living standard being significantly undermined by the Settlement Order.  To support such Appeal Ground, Counsel Miss Wong relied upon paragraph 35 of her skeleton submissions.

39. Counsel Miss Wong at paragraph 35.1 of her skeleton submissions referred to the lack of evidence that the Father would be allowed to stay in the Kowloon Tong property after his parents’ demise.  Such submission is, without disrespect to Miss Wong, is incorrect. Since it is the Father’s positive case or assertion (my emphasis) that he would not be allowed to stay after parents’ demise, he has to prove such positive case or assertion by way of cogent evidence rather than relying upon the absence of evidence to prove and support his positive case.  This is rather in the reverse.

40. Counsel Miss Wong at paragraph 35.2 of her skeleton submissions referred to any alternative accommodation found by the Father would likely be less favourable than One Silver Sea.  This is again incorrect.  The Father had never provided any alternative accommodation throughout the trial.  There was no such finding of alternative accommodation other than the One Silver Sea property.  How would the Father be in a position at this appeal stage to compare his One Silver Sea property with any other alternative accommodation which had never been proposed or found by the Court ?

41. Counsel Miss Wong at paragraph 35.3 of her skeleton submissions repeated paragraph 4.7 of the Appeal Grounds.  My reasoning would be the same as paragraph 35 above of this Decision.

42. Counsel Miss Wong at paragraph 35.4 of her skeleton submissions referred to an item of expenses by the Mother which had been rejected by this Court.  It is this Court’s express finding against the Mother (at paragraph 76 of the Judgment).  How could such submission be referred to by the Father in support of his Appeal Grounds ?  

43. Counsel Miss Wong at paragraph 35.5 of her skeleton submissions again referred to ‘tying up’ majority of the Father’s assets.  My reasoning would be the same as paragraph 33 above of this Decision and paragraph 71 of the Judgment.

44. Having said, paragraph 4.10 has no reasonable prospect of success.

Grounds on interests of justice

45. I also find that there being no other reason in the interests of justice that leave to appeal should be granted.

Conclusion

46. For the above reasons, I would dismiss the Father’s Summons dated 3 July 2015 seeking leave to appeal. I also make an order that the Father do pay the costs of the application for leave to appeal to the Mother.  As the Mother is legally aided, I also order that the Mother’s own costs be taxed in accordance with Legal Aid Regulations.

47. I also grant Certificate for Counsel.

Stay of Execution

48. As the Father’s application for leave is dismissed with costs, the stay of execution of the Settlement Order under the terms of the Judgment is likewise dismissed.

Interim Stay of Execution

49. The Father also sought an interim stay of execution of the Settlement Order, in the event that this Court refused to grant him leave to appeal, until his application for leave from the Court of Appeal.  Counsel relied upon the applicable principles propounded by Hon Ma J (as he then was) in the case of Star Play Development v. Bess Fashion Management Co Ltd (HCA No.4726/2001).  The ground of ‘good reasons’ specifically relied upon is that the absence of a stay would render the appeal nugatory in terms that great disturbance and nuisance would be caused to the child N in moving into a different residence and renovation could be carried out by the Mother (see paragraph 84 of Miss Wong’s skeleton submissions).

50. To start with, Hon Ma J (as he then was) held that it is the court’s discretion whether or not to grant a stay, and it is important to bear in mind that the starting point is RHC Order 59 rule 13 (1).  Unless the appellant can justify a stay of execution, one will not be ordered.  The practice of the court is that justification can be demonstrated only if good reasons exist.  Good reason can exist in a variety of forms.  It will be wrong to set out any exhaustive definition of what would constitute good reasons, but, commonly, reference is made to factors such as whether the absence (or existence) of a stay would render an appeal nugatory (thus bringing into focus the relative prejudice that may be caused to the appellant and to the respondent by a stay of execution), and the merits of the appeal (see paragraphs 6, 7 and 8 of Hon Ma J’s Judgment.

51. Hon Ma J (as he then was) then listed out 9 observations in his Judgment with the following important remarks at paragraph 10 :-

“10. Ultimately, the court embarks on a balancing exercise and uses its common sense, but bearing in mind at all times the starting point that the successful party is not to be deprived of the fruits of his success : see Winchester Cigarette Machinery, per Ralph   Gibson LJ.”

52. It is noted that the Father’s reasons for the stay of execution is that the appeal would be rendered nugatory because of ‘disturbance and nuisance’ to the child N for moving into One Silver Sea property.  The second part of the reason is that renovation could be carried out by the Mother.  Would these reasons fall within the ambit of ‘good reasons’ ? 

53. As said earlier, there had never been any evidence adduced by the Father on ‘disturbance and nuisance’ throughout the trial that might be caused to the child N.  This is no more than the Father’s personal views unsupported by evidence.  Quite contrary, it is the Father’s case that the child had in the past stayed in the One Silver Sea property with him during access times.   That being the case, N must be familiarized both with the One Silver Sea property and the surrounding environment.  It is not a case of moving N to a place where she had never been there before.  Even to leave aside the absence of evidence as to ‘disturbance and nuisance’ before the Court at trial, I firmly believe N would not be disturbed if she knows that she would be moving into the One Silver Sea property.  Therefore, the submission as to ‘disturbance and nuisance’ could not be a ‘good reason’ to justify a stay or interim stay of execution by the Father. 

54. Again as said earlier, the Mother’s claim for renovation costs was rejected by this Court.  The Mother has not appealed against this finding.  Thus, it is wrong for the Father to say the Mother would be carrying out renovation.  Even in the unlikely event of so doing by the Mother, this would only be at the Mother’s own risks of losing such renovation costs in the event of a successful appeal by the Father.  The submission as to renovation could not be a ‘good reason’ to justify a stay or interim stay of execution by the Father or rendering the appeal nugatory.

55. Having said, the terms of the Settlement Order is in the best interests of the child N of which is always the first and paramount concern

of the Court over children’s matter.  I have also reminded myself the important remarks that, in the balancing exercise, the successful party should not be deprived of the fruits of litigation.  One has to ask what is the prejudice, if any, that would arise by the existence or absence of a stay (or interim stay) of execution ?

56. The Father maintained he had now been using the One Silver Sea property as his residence.  He claimed it was the place, apart from the Kowloon Tong property, where he and N had stayed during access times in the past.  In my view, in the event of a successful appeal by him, it makes no difference insofar as ownership is concerned since he has a reversionary interest under the Settlement Order upon N attaining majority.  In terms of the use of the property, given the finding of One Silver Sea not being his only place of residence where he can have a roof over his head, it is also of no significant difference because the implementation of the Settlement Order does not render the Father with no place to live.  In terms of his access, it could still take place in the Kowloon Tong property as had happened before or even in One Silver Sea with appropriate arrangement with the Mother or directions from the Court. 

57. Given the fact that the Father’s application for variation of N’s custody, care and control has yet to be decided, in the event that the Father was successful, it is possible and likely that N would still be staying in One Silver Sea.  Where is the ‘disturbance and nuisance’ to N then ?

58. It is perhaps worth to mention that the Father issued his application for variation of N’s custody, care and control almost 2 years ago back in November 2013.  There had already been five (5) Pre-trial

Review (PTR) hearings in respect of the Father’s variation application.  Without complying the court’s directions, the Father chose to apply for adjournment of his variation application sine die which was scheduled to be heard at the same time at the 5th PTR.  This Court handed down full reasons for its Ruling dated 10 June 2015 rejecting the Father’s adjournment application.  Further consequential directions were also granted by this Court.  The 6^th PTR was directed to be fixed after 26 August 2015 but no later than 11 September 2015 in consultation with Counsel’s diaries.

59. It is also worth to mention that there had been protracted litigation between the Father and the Mother for the past 5 years, both at the Family Court and Court of Appeal, since this Court handed down the very first Judgment on 5 October 2012.  Throughout these years, N had already been exposed to various examinations and check up both at the medical and psychological level along with police investigation for suspected child abuse and a number of social welfare investigations.  It is high time for N, who will be turning to 7 years old in coming November, to have stability and certainty in terms of her growing needs.  Any delay in determining N’s future needs, accommodation or otherwise, in my view is highly detrimental to N’s best interests.  Any prejudice to any party would have to give its way to N’s best interests.

60. Over 2 months had elapsed since the Judgment (dated 5 June 2015) was handed down and it is now close to mid August and moving towards the end of the summer vacation.  To provide N with certainty and stability in terms of her accommodation and housing needs for the coming school year in September is, in my view, imminent, important and in her

best interests.  It also helps the Mother who has the custody, care and control of N, in the planning of schedules for any tuition and activities for the coming school year. 

61. For the above reasons and my conclusion as to the Father’s merits for the intended appeal, I decided to strike the balance with full consideration of N’s best interests and also dismiss the Father’s interim stay of execution application.

Orders

62. My Orders are as follows :-

(a) The Applicant (Father) Summons dated 3 July 2015 be dismissed;

(b)The Applicant (Father) do pay to the Respondent (Mother) the costs of and occasioned by the Summons, including any costs reserved, to be taxed if not agreed;

(c) The Respondent’s (Mother’s) own costs be taxed in accordance with Legal Aid Regulations; and

(d)There be Certificate for Counsel.

63. This is a costs order nisi which will become absolute if no application to vary the same within 14 days from the date of this Judgment.

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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

________________________

________________________

________________________

RULING
(Father’s Summons for Adjournment)

________________________

Introduction

1. The Applicant is the Father and the Respondent is the Mother.

2. Today’s hearing was scheduled for the 5^th Pre-trial Hearing (“5^th PTR”) for the Father’s Summons dated 5 November 2013 for variation of the custody, care and control of the child N (“Variation Summons”).

3. On 14 May 2015, the Father’s solicitors wrote to the Court for leave to issue the present Summons to be heard at the same time at the 5^th PTR. Leave was granted on 18 May 2015 and the Summons was filed on 20 May 2015.

4. The terms of the Father’s present Summons (“AdjournmentSummons”) are, inter alia, as follows :-

“1. The Applicant’s application by Inter Partes Summons dated 5 November 2013 be adjourned sine die with liberty to restore;

2. Time for filing and serving the parties’ respective updating affirmations pursuant to the Order dated 29 December 2014 be adjourned sine die with liberty to restore after such time as the Inter Partes Summons dated 5 November 2013 is restored;

3. Alternatively, leave be granted to the Applicant to file and serve his updating affirmation (as directed by paragraph 2 of the Order dated 29 December 2014 and paragraph 1 of the Order dated 27 of February 2015) out of time within 28 days of 30 June 2015.”

5. The grounds for the application are set out in the Father’s 28^th Affirmation together with 13 exhibits attached.

6. The Mother opposed the Adjournment Summons.

The Father’s Application

7. There are 2 reasons put forward by the Father in his 28^th Affirmation which can be succinctly be described as ‘Child-Focusedreasons’ and ‘Health reasons’.

Child Focused reasons

8. The Father referred to certain paragraphs in the Judgment of this Court dated 5 October 2012 (that is, about 2 ½ years ago from now) after a 16-day trial on N’s custody, care and control (“Custody Judgment”). Reference was made to the Court’s view under the heading ‘The Way Forward’ in the Custody Judgment that the parties should build up trust and confidence, minimise potential conflicts over access and to achieve the goal of joint custody. The Father then referred to the Social Welfare Report (“SIR”) dated 18 June 2014 where the social welfare officer commented that both parents should undergo extensive parent counselling with the common aim of building trust and confidence with each other. The Father further referred to the report of Dr. Anita Leung, clinical psychologist, dated 30 September 2013 where the child N was found to have had anxiety problems originating from disputes between the parents (i.e. between Father and the Mother).

9. The Father produced 2 Certificates of Attendance as Exhibit “CCMJ-28-7” issued by the Parent Education Institute of the school where N is attending Primary One to show he had completed the Foundation Course in ‘Education of Children’ (held from 12/10/2014 to 14/12/2014) and the Intermediate Course in ‘Education of Family’ (held from 11/1/2015 to 22/3/2015). The Father also produced exchange of correspondence between respective lawyers, as well as emails exchanged between themselves, as to their differences in opinion over the suitability of co-parenting counselling courses. Within the exhibits, there is a Certificate of Attendance dated 27 September 2014 to show the Mother had attended the Pilot Project on ‘Child-focused’ Parenting Coordination and Co-parenting Services for Divorced Families organised by the Hong Kong Family Welfare Society.

10. The Father hoped to resolve the differences with the Mother through co-parenting counselling rather than through his Variation Summons application. According to the Father, this would be a practical way forward and a preferable way alternative to engage in litigation for the rest of N’s minority years (at paragraph 17 of his 28^th Affirmation). There is a joint undertaking embodied in a Court Order dated 3 December 2013 that both of them had agreed to participate in co-parenting counselling and coordination services.

11. At paragraphs 22 and 23 of his 28^th Affirmation, the Father deposed he verily believed bringing his Variation Summons application to a temporary halt pending the outcome of co-parenting counselling and coordination services would be beneficial to both parties and the child N. There is also the advantage of saving the Court’s time and resources, as well as costs for those updating affirmations which had not yet been filed.

Health reasons

12. At paragraphs 25 to 29 of his 28^th Affirmation, the Father sets out his grounds for his alternative prayer, namely, that he needs more time to prepare the updating affirmation in the event the adjournment sine die is refused. The extra time requested, as per the Adjournment Summons, is 28 days from 30 June 2015.

13. Reference was made to paragraph 17 of his earlier 27^th Affirmation where he deposed to have been receiving treatment for depression, anxiety and insomnia since 2012. Since May 2014, he was treated by Dr. Gabriel Hung and was prescribed antidepressant medications, anti-anxiety medications, sleeping pills and tranquilizers. A letter from Dr. Hung was produced as Exhibit “CCMJ-28-13”.

14. It is important to recite the 2 concluding paragraphs of the Father’s 28^th Affirmation as follows :-

“28. As confirmed by Dr. Hung, due to the side effects of the medication and changes, I experience extended and extreme tiredness and difficulty in concentration. This, along with my processing speed and organizational skills being affected by the medications, is a significant factor leading to my inability to keep up with large volume of documents required for these proceedings, in particular, the preparation of my substantive updating affirmation. I need more rest to improve my condition. It is mainly due to the above that I have been unable to complete my updating affirmation.

29. In late March 2015, my treating doctors at Kowloon Hospital changed my antidepressant medication from Lexapro to Pristiq. Dr. Hung notes that antidepressant medications generally take four to six weeks to show initial improvement and remission or significant improvement usually takes three months. As such, Dr. Hung anticipates that my condition should be improved by the end of June 2015 onwards so I believe that I will be able to start working on my updating affirmation around that time, if it should be necessary to do so in light of my application for an adjournment. However, I remain of the view that attempting to work matters out with the Respondent Mother through the assistance of professional service providers will be far more constructive and beneficial to N than continuing with and increasing the intensity of acrimonious litigation.”

The Mother’s Opposition

15. Today is the first call over hearing of the Father’s Adjournment Summons, the Mother had not been given any directions for the filing of Affidavit evidence.

16. Mother’s Counsel Mr. Kevin Li, on instructions, opposed the Adjournment Summons. Counsel produced his Speaking Notes and referred to the cases of WSM v. FSY (CACV No.352/2004) and CWT v.CKK (HCMP No.2501/2009) as his authorities.

17. There is also contention from Mother’s Counsel as to whether the letter attached as Exhibit “CCMJ-28-13” should be considered by the Court since it was expert evidence adduced without leave being first obtained under the Hong Kong Civil Practice.

Chronology of Events

18. At the 4^th PTR hearing on 29 December 2014, the Father was represented by Counsel Miss Rattigan and the Mother represented by Counsel Mr. Kevin Li. The hearing lasted from 10:05 a.m. to 11:10 a.m. with breaks in between for respective Counsels to discuss and consider any agreed directions. This hearing eventually was ended with agreed directions including, inter alia, the Father to file his updated affirmations within 7 weeks, the Mother to file her affirmation in reply within 7 weeks thereafter. The Father has the final right to reply within 4 weeks after the Mother’s affirmation (“PTR agreed directions”).

19. The 7-week for the Father to file his updated Affirmation expired on 16 February 2015. On 12 February 2015, the Father’s lawyers filed a Consent Summons seeking an extension of time up until 4 March 2015 for the Father to file his updated Affirmation. An Order was granted in terms of this Consent Summons on 13 February 2015.

20. On 8 April 2015 (that is, 5 weeks after the extended time had expired), the Mother’s lawyers wrote to this Court (letter copied to the Father’s lawyers) seeking directions as to conduct of the case. Reason being that the Father still had not filed his updated affirmation. On 15 April 2015, this Court on paper gave the following directions :-

“1. Parties to comply with the terms of Consent Order dated 29/12/2014;

and

2. Penal Notice be endorsed.

21. Notwithstanding it was the Father’s Summons for extension of time which was granted by consent, and also the subsequent directions of this Court that parties are to comply with the PTR agreed directions with penal notice be retrospectively endorsed on the PTR agreed directions Order of 29 December 2014, no updated Affirmation was filed by the Father. The Father instead sought leave to issue the present Adjournment Summons on 14 May 2015, which is about 1 month after the penal notice was directed.

Discussion

22. The Father’s Child-Focused reasons, in my decision, could not be accepted as sufficient ground for seeking to have his VariationSummons and the compliance of the PTR agreed directions to be adjourned sine die with liberty to restore.

23. First, the Father had not explained why there is a need to keep his VariationSummons ‘alive’ and in abeyance whilst he is allegedly attempting to resolve his differences with the Mother on N’s issues through joint co-parenting counselling endeavours. The Father tried to focus and highlight on the demerits of having his variation application to run in parallel with the joint efforts of co-parenting counselling. At paragraph 19 of his 28^th Affirmation, he deposed :-

“19……I believe that, as we attempt to move forward in the spirit of cooperation, it would be incongruous for us to, at the same time, engage in hotly contested and acrimonious litigation. I verily believe that continuing the proceedings in parallel with our efforts to cooperate in co-parenting would undermine the effectiveness of the same.”

24. I have no difficulty in rejecting the Father’s submission. It is the Father himself who instigated the present pending proceedings for variation. The Mother so far has only been defending the Father’s case. How could the Father then say ‘incongruous for us (my emphasis)…to engage in hotly contested andacrimonious litigation’ ? How could he put the incongruence on the Mother over a piece of litigation started by him and the continuance or discontinuance of the proceedings is completely in his own hands ? Such submission falls short of any common sense or logic and is bound to fail.

25. If the Father is genuine and sincere over co-parenting counselling efforts as the foremost aim and objective for resolving differences with the Mother, why he does not simply withdraw his Variation Summons against the Mother as a gesture of goodwill or sincerity ? The Father’s approach of seeking adjournment sine die with liberty to restore his Variation Summons, in my view, is akin to a person having his pistol over one’s head ready to shoot if the other does not yield to him. I do not see any mutual benefit to the Father and the Mother to have the Variation Summons hanging over one’s head. I also do not believe these proceedings, if adjourned sine die, would increase the chances of success in co-parenting counselling. If there is any concern over wasted costs arising from withdrawal, this is always open for negotiation and is ultimately at the Court’s discretion. In fact, withdrawal had never been in contemplation of the Father and thus he had never suggested this in his 28^th Affirmation.

26. The Father has all along been legally represented by reputable firms with extensive matrimonial practice and experienced Counsels. I have no hesitation to say the Father must have been apprised with the contents and meaning of every single documents, orders, directions and reports with the benefit of full legal advice. It strikes my surprise that the Father now seeks to refer and also accedes to those comments of this Court contained in the Judgment dated 5 October 2012 of which he had once disagreed with and sought to obtain leave to appeal from this Court and Court of First Instance. For the sake of completeness, the Father had so far instructed 3 firms of solicitors (Messrs. Michael Li & Co., Messrs. Lam, Lee & Lai, Messrs. Haldanes) and engaged 6 Counsels to protect his interests (Miss Jennifer Tsui, Mr.Felix Li, Miss Annie Lai, Miss Francis Irving, Miss Maireed Rattigan, Mr. Jeremy S.K. Chan) throughout different stages of the proceedings.

27. The social welfare report which the Father now also referred to was dated 18 June 2014, which was arranged by this Court subsequent to his Variation Summons. Had he been convinced by the comments of the social welfare worker back in June 2014, why he did not choose to have his Variation Summons brought to an end or at least put to ‘a halt’ soon after noting the comments of the social welfare officer to facilitate any conciliatory attempt to resolve issues with the Mother ? According to the records, at the time of this social welfare report in June 2014, the proceedings had not yet been to the 1^st PTR which was held on 2 July 2014. Apparently, the Father did not pay heed to the comments in the social welfare report and decided to push along with full strength to the 1^st PTR and all the way to the 4^th PTR on 29 December 2014. It also strikes my surprise that the Father now wanted to re-visit and rely upon the social welfare officer’s comments as his grounds for adjournment.

28. I have raised with Father’s Counsel Mr. Jeremy S.K. Chan at this hearing (at 10:28:51 hours of hearing in the transcripts) that why did the Father not simply withdraw the variation application. Counsel rightly conceded that does not really make any difference as it would be without prejudice to the Father’s rights to seek variation any time later. Counsel submitted that the Father simply wanted to change the ‘litigation mode’ to ‘cooperation mode’. Unless the parties are in cooperation, there will always be variation applications coming up whether on maintenance or access before the child ceases full time education.

29. The Father’s case is to attempt to resolve differences through joint effort of co-parenting counselling. This is the aim and objective for the Father to take out the present application. However, the Father is unable to show the chances of success of his aim and objective would be enhanced by adjourning his Variation Summons. On the contrary, it is my view that withdrawal of the Variation Summons without prejudice to the Father’s right to make application later at any time, is more beneficial and likely to achieve the Father’s aim and objective.

30. Secondly, upon review of the lawyers’ correspondence exchanged lately and parties emails last year which the Father produced as his Exhibit CMMJ-28-8, it can be seen that the parties are clearly not ‘ad idem’ upon issues and no way close to consensus even on the choice of co-parenting counselling services. The letters under Exhibit CCMJ-28-9 and CCMJ-28-10 further shows the parties’ differences are sharp. The Father only agreed to participate in the Mother’s co-parenting counselling services with the Hong Kong Family Welfare Society (“HKFWS”) as late as 12 March 2015 (myemphasis) (see Exhibit CCMJ-28-11) notwithstanding that HKFWS was chosen under the terms of the Consent Order containing the parties’ joint undertaking on 3 December 2013 (myemphasis), which is about 15 months ago.

31. From reading the contents of those letters, I find more probable than not that there is a long way forward for the parties to shift from ‘litigation mode’ to ‘cooperation mode’ with these proceedings hanging around. The concept of joint co-parenting counselling emerged as early as 5 December 2013 (my emphasis) as can be seen in the terms of the Consent Order where it provides, inter alia, as follows :-

“AND UPON the parties agreeing, acknowledging and undertaking to the Court and each other that they shall engage in “Child-focused” parenting Coordination and Co-parenting Services for Divorce Families from the Hong Kong Family Welfare Society with costs to be paid by the Applicant in full and that the total costs of such parenting services shall not exceed HK$50,000.”

32. Had the Father been genuine, sincere, conscientious and cooperative towards co-parenting counselling services embodied in the terms of the Consent Order recited above, why it takes 15 months (from 5/12/2013 to 12/3/2015) for him to eventually agree to join the co-parenting counselling services provided by HKFWS ?

33. The fact that there was financial claims by the Mother during this 15-month period could not, in my view, be taken as an excuse for the Father not being able to attempt resolving differences with the Mother through co-parenting counselling. With hindsight on the stance of the Father in the financial claims trial, I believe the ‘mode’ there was antagonistic and nowhere close to cooperation. Father’s Counsel at paragraph 11 of his Brief Notes referred to the financial trial now behind the parties, the Father wishes to reactivate the parties’ constructive efforts for best interests and welfare of the child N. With respect, there is a fallacy in such submission. “Best interests” in the context of children, covers a wide perspective not only restricted to custody, care and control issues. It would also cover financial issues such as providing better food and living environment to the child may be in the child’s best interests to do so. Having heatedly fought a 6-day financial claims, I do not believe the Father’s wish to switch to ‘cooperation mode’ is realistic.

34. On the evidence before me considered in totality, I do not agree with the Father’s case that adjourning his Variation Summons and compliance with the PTR agreed directions would, adopting Father’s Counsel’s phrase, switch the parties from ‘litigation mode’ to ‘cooperation mode’ or anyway close to that.

35. In arriving at such a conclusion, it is not the intention of the Court to promote litigation and incur legal costs. It is unfortunate that from time to time there are cases where litigation is unavoidable. As I mentioned in one of my earlier Decisions in this case dated 12 December 2014 on the filing of medical reports at paragraph 3 where I said :-

“3. …….At present, N is aged 6 years old. In the past few years, 6 Judgments were delivered (4 from this Court and 2 from the High Court). This Judgment will be the 7^th Judgment where disputes between the parties seem nowhere close to the end.”

36. There are 3 matters which are worth to mention. First, all the 6 Judgments (4 plus 2), they are all stemmed from the Father’s application. Secondly, the number of Affirmations from the Father and the exhibits he produced added up to thousands of pages. There are numerous acrimonious allegations and accusations against each other in the context of those affirmations, not to include those contained in the parties’ lengthy emails exchanged attached as exhibits. Thirdly, according to the records, there are extensions of time or prolonged delay of the Father in the progress of his case since he issued the Originating Summons on 26 March 2010. The change of legal representatives by the Father had, to a certain extent, prolonged the progress of the case. To cite a few examples as follows :-

(a) Pursuant to Order of Deputy Judge Tracy Chan dated 19/10/2010 (paragraph 2), Father was to file his Affirmation in Reply within 36 days, that is, on or before 24/11/2010.

- Father only filed his 5^th Affirmation on 19/10/2011 (a delay of 11 months).

(b)Pursuant to Order of Deputy Judge S Lo dated 10/6/2013 (paragraph 5), Father was to file his updated long term arrangement within 14 days, that is, on or before 24/6/2013. A Consent Order dated 30/7/2013 to extend the time for filing to 12/8/2013.

- Father filed his 16^th Affirmation on 13/8/2013 (a delay of 7 weeks from the original time schedule).

(c) Pursuant to Order of Deputy Judge G Own dated 29/12/2014 (paragraph 1), Father was to file his updated Affirmation within 49 days, that is, on or before 16/2/2015.

A Consent Order dated 27/2/2015 to extend the time for filing to 4/3/2015

Direction granted on 14/4/2015 for penal notice to be endorsed on the Order dated 29/12/2014

- No Affirmation was filed. Instead, Father instead issued he Adjournment Summons on 20/5/2015.

37. I find the Father’s Adjournment Summons on the ground of Child Focused reasons fail.

38. Now I will deal with the Father’s alternative application, namely, extension of time for compliance with the PTR agreed directions.

39. The Father relied upon the Health reasons for seeking time extension. Evidence of his health condition comes from a letter of his treating doctor dated 13 May 2015, Dr. Gabriel B.K. Hung, which was produced as Exhibit CCMK-28-13.

Evidence of Dr. Gabriel B.K. Hung

40. Order 38 rule 36 of the Rules of the High Court provides :-

“(1) Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing of any cause or matter unless the party seeking to adduce the evidence –

(a) has applied to the Court to determine whether a direction should be given under rule 37 or 41 (whichever is appropriate) and has complied with any direction given on the application.

(2) Nothing in paragraph (1) shall apply to evidence which is permitted to be given by affidavit or shall affect the enforcement under any other provision of these rules (except of Order 45, rule 5) of a direction given under this Part of this Order.”

41. There is contention over the admissibility of the letter from Dr. Gabriel B.K. Hung as evidence. Since the Father’s evidence for the AdjournmentSummons would have to be given by way of affirmation of which he produced the letter as an exhibit, I agree with Father’s Counsel that Order 38 rule 36(2) applies to the present situation. Accordingly, I am entitled to consider the contents of the letter from Dr. Hung produced as “CCMJ-28-13”.

42. The Father deposed Dr. Hung started to treat his depression since May 2014 and there were 10 treatment costs receipts from May 2014 to January 2015 produced as exhibits in his earlier 27^th Affirmation. One of the medications prescribed by Dr. Hung was “Lexapro” which can be seen in each of the 10 receipts.

43. The Father then deposed at paragraph 29 of this 28^th Affirmation that in late March 2015, his treating doctors at Kowloon Hospital changed his antidepressant medication from “Lexapro” to “Pristiq”. He went on to say Dr. Hung noted that antidepressant medications generally take 4 to 6 weeks to show initial improvement and remission or significant improvement usually takes 3 months. This is why the requested time extension of 28 days start to run from the end of June 2015.

44. The Father’s evidence, as to his health condition, is unclear and far from satisfactory.

45. First, he has not produced any documents from his treating doctors at Kowloon Hospital, such as memo or medication slips which are commonly seen in Government Hospitals, to confirm that he was being treated there and prescribed with “Pristiq”. In the absence of such evidence, which in my view should not be difficult to obtain, the change of medication is merely his bare assertion. There is not even a patient card or appointment letter of the Kowloon Hospital.

46. Secondly, if apart from Dr. Hung of ‘The Central Practice’ (shown on the top of the letter), the Father is also receiving treatment at the Kowloon Hospital, why he had not said so in his 27^th Affirmation or his Form E filed herein. When did he start treatment at the Kowloon Hospital ? Since Dr. Hung’s letter was dated 13 May 2015 without saying he had ceased treating the Father, I believe the Father might also be receiving treatment at the Kowloon Hospital where allegedly he was prescribed with “Pristiq” in March 2015. The Father offered no explanation as to why he needed treatment from Dr. Hung and Kowloon Hospital whether in parallel or in sequence. Furthermore, it is odd and unusual to find medical practitioner in private practice to provide general and overall comments on effects of prescription given by Government Hospitals without reference to dosage. Had Dr. Hung been told the dosage of prescriptions by Kowloon Hospital when he was giving his professional views of antidepressant medications apart from the name of the prescription “Pristiq” ? All these crucial information are missing.

47. Finally, I do not quite understand how could Dr Hung anticipate the Father’s condition should be improved by the end of June 2015 if the Father is receiving treatment and medication not from him but from the Kowloon Hospital ? At the last paragraph of the letter, Dr. Hung said :-

“I anticipate that his condition will be improved by the end of June 2015, which is three months following the change of his antidepressant medication.”

48. I also quoted the following passages from the letter of Dr. Hung which seems interesting to note :-

“He is on antidepressant medications, anti-anxiety medications, sleeping pills and tranquillizers for the control of his condition. Due to his depressive condition and the side effects of medications, he experiences extended and extreme tiredness (my emphasis) and difficulty in concentration (my emphasis). His processing speed and organizational skills are also affected. This is a significant factor leading to his inability to keep up with the large volume of documents required for his current matrimonial proceedings, in particular the preparation of his affidavit.

Although his ability to process complex legal documents is currently impaired, I do not foresee any difficulty in his ability to care for himself or for his daughter during this period.”

49. Given the fact that looking after children of tender years are always said, which I believe is true from day to day experience, to be an energetic exercise, it puzzled me how the Father with ‘extended and extreme tiredness’ and ‘difficulty in concentration’ would have no difficulty in caring for his daughter, aged 6 ½ years during such period of extreme tiredness as Dr. Hung had so opined.

50. As said, the Father has been fully advised and assisted by reputable firms of lawyers with extensive matrimonial practice experience. I believe his rights and interests have been and will continue to be best looked after in the further conduct and preparation of these proceedings.

51. In the absence of further elaboration from Dr. Hung or other evidence which are of relevance, I attach very little weight to the medical evidence so far adduced by the Father to consider his Healthreasons for seeking extra time to comply with those long due and outstanding PTR agreed directions.

52. Concluding upon all the evidence, I also find the Father’s Adjournment Summons on the ground of Health reasons fails.

Other Considerations

53. I have considered Father’s Counsel’s submission as to the need to deal with the present matter expeditiously. It was submitted the present proceedings relate to variation application which happens, unless the respective parents co-operate and resolve their differences, from time to time when the Court’s assistance is needed. This is not akin to those custody trials since such issue had long been decided in the present case in October 2012. Given the passage of time, it is now moving along to more or less equal access time with both parents, say the 56:44 split, which the Father persistently highlighted throughout in his case.

54. With respect, I do not agree with Father’s Counsel. The pending proceedings were instigated by the Father for variation of custody, care and control of the child. In effect and in essence, this is a change of the status quo. The ‘de facto’ more or less equal sharing access time of, say, 56:44 as the Father had persistently claimed and highlighted in his case does not, in my view, change the legal position in terms of the primary care and control of the child. There should be no mix-up of access with care and control. The plain fact that remains is that this is children’s matter which calls for expedition.

55. I agree with Mother’s Counsel’s submission that children’s matter should always be dealt with expeditiously and be given priority. Those cardinal principles in relation to children’s matter enunciated in cases of WSM v. FSY (CACV 352/2004) and CWT v. CKK (HCMP No.2501/2009) do apply to the present case. Father’s Counsel had not been able to come up with any case law where there is any differentiation, in terms of prioritisation of children’s matters, between first round custody trials and variation of custody trials.

56. I also agree with Mother’s Counsel that those underlying objectives of the Civil Justice Reform under Order 1A and 1B of the Rules of the High Court should be fully observed in that a case should be dealt with as expeditiously as is reasonably practicable.

57. I was invited by Mother’s Counsel to consider the sanction of ‘unless order’. In my decision, this is not applicable on children’s cases or even in family cases.

58. I was also invited by Mother’s Counsel to consider costs for the 5^th PTR be granted against the Father since the 5^th PTR hearing has now been overtaken by the Father’s Adjournment Summons.

59. In my decision, the appropriate costs order for the 5^th PTR would either be reserved or in the cause. I would, at this stage, reserve such costs and separately deal with the costs of the Father’s Adjournment Summons.

60. For the costs of the Adjournment Summons, the Father lost paragraphs 1 and 2 of his Summons. For paragraph 3, he succeeded only in obtaining an extension but not to the requested time frame. In exercise of my discretion, I believe it is fair and reasonable for the costs of the Adjournment Summons be in the cause of the Variation Summons.

Conclusion

61. For the above reasons, I dismiss paragraphs 1 and 2 of the Father’s Adjournment Summons with costs.

62. In respect of paragraph 3 of the Father’s Adjournment Summons, I make the following orders and directions :-

(a) Leave be granted for the Applicant to file and serve Updated Affirmation (pursuant to paragraph 1 of the Order dated 29 December 2014 and paragraph 1 of the Order dated 27 February 2015) out of time within 14 days from the date of this Ruling, that is, on or before 24 June 2015;

(b)Leave be granted for the Respondent to file and serve her Affirmation in reply (pursuant to paragraph 2 of the Order dated 29 December 2014) out of time within 14 days thereafter, that is, on or before 8 July 2015;

(c) Leave be granted to the Applicant to file and serve his Affirmation in Reply (if any) (pursuant to paragraph 3 of the Order dated 29 December 2014) out of time within 7 days thereafter, that is, on or before 15 July 2015;

(d)No further affirmation be filed without leave by either party save as aforesaid;

(e) An updated Social Welfare Report on variation of custody, care and control of the child N be called for in English, to be made available within 6 weeks from the filing of the last affirmation aforesaid;

(f) Any further interlocutory application be filed within 14 days of receipt of the updated Social Welfare Report;

(g) The 6^th PTR be fixed after 26 August 2015 but no later than 11 September 2015 in consultation with Counsel’s diaries;

(h)The costs of the Father’s (Applicant’s) Adjournment Summons dated 14 May 2015 be in the cause of the Variation Summons;

(i) The Mother’s (Respondent’s) own costs be taxed in accordance with Legal Aid Regulations;

(j) There be Certificate for Counsel; and

(k)The costs of the 5^th PTR hearing be reserved.

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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JUDGMENT
(Financial Provisions)

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Introduction

1. This is the Respondent Mother’s Summons dated 25 October 2013 seeking maintenance provisions for the child “N” born out of their relationship. At the conclusion of this trial, the child N was about 6 ½ years old whose custody, care and control had been granted by this Court to the Respondent Mother after a 16-day trial back in 2012. Suffice to say for the past 3 years there was protracted litigation between the parties in respect of N. At the moment, there is pending the Father’s Summons for variation of N’s custody, care and control .

Background

2. Both parties are Hong Kong citizens. The Father now aged 55 and the Mother aged 30. They came to know each other in 2005 and started cohabitation around 2 years later in 2007. In early 2008, the Mother found herself pregnant and she gave birth to N in November 2008.

3. Throughout the period of cohabitation, they lived at the Father’s parents’ residence in Kowloon Tong, which is a 4-storeys townhouse type of dwelling of about 4,800 sq ft in size (“Kowloon Tong property”). The Father had been living there rent free since 2001, that is to say, long before the cohabitation started. The other family members living there are the Father’s parents, elder brother, elder sister-in-law and 2 domestic helpers. The Kowloon Tong property was owned by a ‘family owned’ company by the name SLAFF Limited with the parents, the Father and his siblings as shareholders. On 28 April 2011, the Father and each of the siblings executed a Declaration of Trust (at pages 646 to 651 of the Trial Bundle) in respect of their respective shareholdings declaring the shares were held on trust for their elderly father.

4. Prior to the cohabitation, the Mother lived with her parents in a Government’s home ownership scheme property in Tseung Kwan O area (“TKO property”) with the Mother’s elder brother as the sole owner. The gross area is about 800 sq ft which is a 3-bedroom dwelling. The Mother’s parents, the Mother, N and a domestic helper, altogether 5 persons are living there.

5. Following an argument around May 2009 over change of milk powder when N was about 6 months old, the parties’ relationship broke down. The Mother and N left the Kowloon Tong property and went to live at her maiden family in the TKO property whereas the Father continued to stay in the Kowloon Tong property. Back in November 2007, the Father himself bought a newly built property by the name One Silver Sea in Tai Kok Tsui area (“One Silver Sea”) at a consideration of HK$6.90 million. He made a down payment of HK$3.90 million with the balance of HK$3.0 million on mortgage with the Bank of China. The monthly repayment at present is about HK$15,000 with the remaining term of 156 instalments (that is, 13 years) and the outstanding mortgage is about HK$2 million.

6. It is the Father’s evidence that he moved and resided in the One Silver Sea property last year around May 2014. It is also the Father’s evidence that the One Silver Sea property was purchased for his financial security and all along intended to be his ultimate home after his parents pass away. He had renovated the One Silver Sea property by pulling down one partition wall to change it from a 3-bedroom unit to a 2-bedroom unit which he described as a ‘bachelor’s flat’. Since the One Silver Sea property was purchased, he continued to reside in the Kowloon Tong property. The reason given in his Affirmation for not moving to his own property is only because he had to assist in the care of his elderly parents for his brother who always work in Mainland China. It can be seen from the 1^st Affirmation of the Father in these proceedings filed back in the year 2010 up until his 24^th Affirmation filed on 3 March 2014 opposing the Mother’s present claim, the Kowloon Tong property was used as his residential address in all his Affirmations. It only started from his 25^th Affirmation filed herein on 27 June 2014 (which was filed in support of other application), he changed his residential address to the One Silver Sea property.

The statutory provision

7. Section 10 (2) of the Guardianship of Minors Ordinance, Cap. 13 (“GMO”) provides :-

“(2) The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders –

(a) an order requiring payment to the applicant by the parent or either of the parents of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that parent;

(b) an order requiring payment to the applicant by such parent or either of such parents of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;

(c) an order requiring the securing to the applicant by such parent or either of such parents, to the satisfaction of the court, of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;

(d) an order requiring the transfer to the applicant for the benefit of the minor, or to the minor, by such parent or either of such parents, of such property, being property to which the parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of that parent;

(e) an order requiring the settlement of the benefit of the minor, to the satisfaction of the court, of such property, being property to which such parent or either of such parents is so entitled, as the court thinks reasonable having regard to the means of that parent.”

The relevant case law and applicable principles

8. There has once been controversy as to the interpretation of the statutory provision of Section 10(2)(a) as to whether it provides the court with jurisdiction to make lump sum orders for the purchase of housing and whether such provision of housing falls within the ambit of ‘immediate andnon-recurring needs’ under the statutory wordings of Section 10(2)(a) of the GMO.

9. The Court of Appeal in the case of IDC v. SSA [2014] 4 HKLRD 220 (Date of Judgment : 6/6/2014), after reviewing the legislative history of our Section 10(2) with cross reference to the relevant English statutes and some other case law, disagreed with the decision of Her Honour Judge Chu (as she then was) in the case of H v. S (Financial Provision or a Child of Unmarried Parents) [2012] HKFLR 236 and concluded that Section 10(2)(a) does not confine to a one off lump sum application (see paragraph 21 of the CA’s Judgment). The Court of Appeal agreed with the trial Judge’s finding in IDC v. SSA that the housing need of a child is a recurring need. The attempt to have such recurring need satisfied by a property already owned by a parent would not change the nature of the need to become a non-recurrent one. The purchase of a property to cater for such need for the time being cannot satisfy such need once and for all (see paragraph 26 of the CA’s Judgment).

10. The Court of Appeal, having considered the Judgment of Singer J in the case of Phillips v. Peace [2005] 2 FLR 1212, went further and decided that a lump sum order under Section 10(2)(a) is not appropriate if the intention is to reserve a reversionary interest to the paying party (see paragraph 27 of the CA’s Judgment). Having said, the Court of Appeal however ruled that Section 10(2)(e) does provide the Court with jurisdiction to order a sum of money for the purchase of property to cater for the housing need to be the subject matter of the settlement for the benefit of the child in question. At paragraphs 31 to 36 of the CA’s Judgment, Hon Lam VP said :-

“31. Bearing in mind the legislative history, the purpose for which Section 10(2)(e) was added to the GMO in 1993 to give effect to the recommendation of the Law Reform Commission on equality between legitimate and illegitimate children, the similarity in language between Section 10(2)(e) of the GMO and Section 6(1)(b) of the MPPO, we do not see any reason to give a narrower interpretation to the meaning of “property” in Section 10(2)(e). The context of the GMO does not require a different meaning from that laid down in Cap.1 to be given to this word.

32. Mr. Pointer referred to a line of English authorities to demonstrate that orders were made under a similar provision for settlement for the benefit of a child of unmarried parents for funds to be provided for the purchase of a house for his or her accommodation during the period in which the father was obliged to maintain the child with the reversion to the father at the end of the trust. For the purpose of this judgment, we only need to mention the following cases : J v. C [1999] 1 FLR 152; Re P [2003] 2 FLR 865; F v. G [2005] 1 FLR 261; Re S [2006] 2 FLR 950; MT v. OT [2008] 2 FLR 1311.

33. The judge rejected the argument on jurisdiction based on Section 10(2)(e) at para 31 of his Judgment. He held that the property ordered to be settled must already be owned by the Father or to which he is so entitled, either in possession or reversion. He accepted the submission of Mr. Coleman that it could not be extended to putative property, and thus the court has no power to order the Father to purchase a property in order to have it settled in favour of the child.

34. With respect, we cannot agree with the Judge in this respect. His approach focuses on the property to be purchased as the subject matter of the settlement. However, as the English cases show, the sum of money which is to be used for the purchase can equally be the subject matter of the settlement. It is perfectly viable to have a sum of money to be settled on trust for the purchase of a property to be used for the benefit of the child up to a certain point in time and thereafter to be held for the father by way of reversion.

35. Mr. Coleman relied on Phillips v. Pearce [2005] 2 FLR 1212 to argue that Section 10(2)(e) should not be construed in a way to allow a settlement for the purchase of a property to cater for the housing need of a child when this could not be achieved by a lump sum payment under Section 10(2)(a). With respect, Singer J did not decide anything which can remotely support such argument. The condemned misuse of power in that case was the attempt by the mother to circumvent the effect of para 1(5)(b) of Sch 1 of the Children Act. We are not deciding with that sort of situation. Given Singer J’s observation cited at para 27 above on the inappropriate use of lump sum order to achieve what should be achieved by a settlement order, it is difficult to derive from the limitation in our Section 10(2)(a) an underlying statutory policy against a settlement of a sum of money to provide for the housing need of a child under Section 10(2)(e). Further, as submitted by Mr. Pointer, if the Father has a landed property suitable for the accommodation of the child, it is not disputed by Mr. Coleman that the court can either order a transfer of the property (under Section 10(2)(d) of the GMO) or a settlement of it for the benefit of the child. Thus, construing Section 10(2) as a whole, there is no underlying policy restraining provision for housing need of the child to periodic payment by reference to rental expenses. As counsel put it rhetorically, why should there be a distinction between a settlement of the landed property and a settlement of a sum of money for the purchase of property ? Subject to what we shall say below on the exercise of the discretion, we agree with this observation.

36. In our judgment, the court does have jurisdiction under Section 10(2)(e) to order a settlement of a sum of money to be held on trust for the purchase of a property to cater for the accommodation need of a child with a reversion to the paying parent. The Judge was wrong in dismissing the application under Section 10(2)(e) for want of jurisdiction.”

11. The learned trial Judge Bruno Chan in IDC v. SSA (supra), whilst holding Section 10(2)(e) could not be extended to “putative property”, where the appellate court now held that a sum of money to purchase “putative property” could be the subject of a settlement, took the view that Section 10(2)(e) refers to settlement of a property to which the parent is so entitled (i.e. a property already(my emphasis) owned and which can be properly identified). This view was not taken on appeal and I fully agree with the learned trial Judge’s view. This stands to be the correct interpretation of the law. Putting together the appellate court’s decision on the interpretation of Section 10(2)(e), the court’s jurisdiction thus could either be ordering a sum of money to be settled on trust for the purchase of property to cater the child’s housing need with reversion to the payer parent or, in appropriate cases, simply to order settlement of a property already(my emphasis) owned by that parent, either in possession or reversion, for the child’s accommodation if it is fair and reasonable, having regard to the means of that parent.

12. When concluding Section 10(2)(a) of the GMO confines to a one off application (such view has now been disapproved by the Court of Appeal in IDC v. SSA (supra) ) in the case of H v. S(Financial Provision for a Child of Unmarried Parents) [2012] HKFLR 236, Her Honour Judge Chu (as she then was) had analysed and compared the major differences between the provisions in Hong Kong under the GMO and those set out in Section 15 and Schedule 1 of the English Children Act 1989. The learned Judge concluded the factors under Paragraph 4(1) of Schedule 1 of the English legislation do not exist in the Hong Kong GMO.

13. For the English legislation, Paragraph 4(1) of Schedule 1 sets out the criteria which the court has the duty to have regard to when making financial orders for children as follows :-

“In deciding whether to exercise its powers under paragraph 1 or 2, and if so in what manner, the court shall have regard to all the circumstances including :-

(a) the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph 4 [either parent] has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each [parent] has or is likely to have in the foreseeable future;

(c) the financial needs of the child;

(d) the income, earning capacity [if any], property and other financial resources of the child;

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

(f) the manner in which the child was being or was expected to be educated or trained.”

14. Deputy High Court Judge Chu (as she then was) in the later case of WGL v. ASB (HCMP No.489 of 2013) at paragraph 54 of the Judgment said :-

“54. Notwithstanding those differences in legislation, in relation to the financial provision of a child of unmarried parents, as I have set out in H v. S, and also recently set out by Judge B Chan in his judgment in IDC v. SSA, those principles and guidelines set out in the leading English authority of Re P (Child : FinancialProvision) and the line of cases thereafter have provided very helpful guidance to the courts in Hong Kong.”

15. In the English case of Re P(Child : Financial Provision) [2003] 2 FLR 865 which is the leading case where the Court of Appeal in England undertook a review of the principles underlying Schedule 1 of the Children Act 1989. At paragraphs 76 and 77 of the Judgment, Bodey J said :-

“76. In the light of para 4 of Sch 1 to the Children Act 1989 and the authorities to which we have been referred, the following summary can be offered as to the consideration applicable to claims under Sch 1 :

(i) The welfare of the child while a minor, although not paramount, is naturally a very relevant consideration as one of ‘……….all the circumstances…….’ of the case.

(ii) Considerations as to the length and nature of the parents’ relationship and whether or not the child was planned are generally of little if any relevance, since the child’s needs and dependency are the same regardless : J v. C(Child : FinancialProvision) [1999] 1 FLR 152 at 154B.

(iii) One of the ‘…..financial needs of the child……’ (to which by para 4(1)(c) the court must pay regard) is for him or her to be cared for by a mother who is in a position, both financially and generally, to provide that caring. So it is well established that a child’s need for a carer enables account to be taken of the caring parent’s needs : Haroutunian v. Jennings (1980) 1 FLR 62 at 66C; and A v.A(A Minor) (Financial Provision) [1994] 1 FLR 657 at 665G.

(iv) By paras 4(1)(a) and (b) of Sch 1, the respective incomes, earning capacities, property and other financial resources of each of the parties must be taken into account, together with their respective financial needs, obligations and responsibilities. So ‘…..the child is entitled to be brought up in circumstances which bear some sort of relationship with the father’s current resources and the father’s present standard of living…..’ – per Hale J in Jv. C (Child : Financial Provision) [1999] 1 FLR 152.

(iv) However, at this latter concept lends itself to demands going potentially far wider than those reasonably necessary to enable the mother properly to support the child, ‘…..one has to guard against unreasonable claims made on the child’s behalf but with the disguised element of providing for the mother’s benefit rather than for the child…..’ – J v.C (Child : Financial Provision) [1999] 1 FLR 152.

(v) In cases where the father’s resources permit and the mother lacks significant resources of her own, she will generally need suitable accommodation for herself and the child, settled for the duration of the child’s minority with reversion to the father; a capital allowance for setting up the home and for a car; and income provision (with the expense of the child’s education being taken care of, generally, by the father direct with the school).

(vii) Such income provision is reviewable from time to time, according to the changing circumstances of the parties and of the child.

(viii) The overall result achieved by orders under Sch 1 should be fair, just and reasonable taking into account of all the circumstances.

77. From the experience of this case, I would propose three further considerations :

(i) In considering the mother’s budget, at least in bigger money cases, the court should paint with a broad brush, not getting bogged down in detailed analysis and categorisations of specific items making up opposing budgetary presentations. Rather, the court should do its best to achieve a fair and realistic outcome by the application of broad commonsense to the overall circumstances of the particular case.

(ii) Comparisons with the commercial cost of providing professional care are unlikely to be of great assistance and may only serve to distract.

(iii) When setting up a budget for the sort of lifestyle a child should be enabled to have, the court should not generally attach weight to the risk that the father may reduce or withdraw his support when the child comes of age (or ceases education or training) thereby obliging the child to adapt to a lower lifestyle at that time.”

16. Our Hong Kong Court of Appeal in IDC v. SSA (supra), whilst disagreed with Judge Chu (as she then was) on the interpretation of Section 10(2)(a) of the GMO, had not disturbed Judge Chu’s (as she then was) views in both H v. S(Financial Provision for a Child of Unmarried Parents) and WGL v. ASB (supra) as to the approach which the court needs to adopt when considering financial orders for child of unmarried parents.

17. At paragraph 57 of the Judgment in WGL v. ASB (supra), Deputy High Court Judge Chu (as she then was) said :-

“57. In Hong Kong, this court’s jurisdiction is discretionary. No factors having been set out in legislation, the only criteria in s10(2) of our GMO is what the court deems “reasonable” having regard to the means of the parent to whom the application is directed, which in the present case is the Father. In exercising discretion, this court will have regard to all the circumstances of the case, and in my view, these should include those matters as provided in the English legislation.”

18. With the authoritative decision of our Court of Appeal in IDC v. SSA (supra) of which I am bound to follow, and the guidance of Bodey J in Re P (supra), I now proceed to consider the facts of the present case and the Mother’s application. I intend to do so by going through each of the items listed in the Mother’s Open Proposals and the Father’s Open Proposals in reply. In so doing, I have also reminded myself the appropriate approach to be taken set out in the above cases of H v. S and WGL v. ASB (supra) and the statutory wordings “….as the court thinks reasonable havingregard to the means of that parent” in Section 10 (2) of the GMO.

The Mother’s Application

19. The Mother is now seeking various financial provisions for N from the Father which, as set out in her Open Proposals, contains the following :-

(a) Accomodation arrangement for N by the Father transferring his property at xxxx Tower 2, One Silver Sea, Kowloon, Hong Kong (“One Silver Sea”); or alternatively a lump sum of 13 million to be held on trust for the purchase of a property with reversion to the Father;

(b)A lump sum of HK$700,000 to HK$800,000 towards decorating, furnishing and equipping the accommodation so arranged;

(c) Transportation arrangement for N by the Father transferring his car of Audi Q5; or alternatively a lump sum of HK$300,000 for the purchase of a car or settle the said sum to be held on trust for the purchase of a car to cater for N’s transportation needs with reversion to the Father;

(d)Monthly maintenance for N in the region of HK$47,950 plus the Father continuing to pay for N’s school fees, uniform and extra-curriculum activities arranged by the Father;

(e) Carer’s Allowance payable to the Mother in the sum of HK$12,000 per month;

(f) Purchase of a Harp for N in the sum of HK$40,000;

(g) Reimbursement by way of lump sum payment of HK$1,056,269 for expenses incurred (from May 2009 to June 2014) by the Mother.

20. The Mother filed her 7^th Affidavit in support of the application and her 9^th Affidavit in reply to the Father’s 24^th Affirmation in opposition.

The Father’s Objection

21. In the 41-page 24^th Affirmation, the Father grouped his objections under separate headings followed by his revised proposals in relation to the maintenance for N claimed by the Mother. The sub-headings are :-

(a) Present level of child maintenance;

(b)Response to the Mother’s 7^th Affidavit;

(c) Living Standard Pre-separation;

(d)Living Standard Post-separation;

(e) My financial means and earning capacity;

(f) My standard of living;

(g) Carer’s allowance and the Mother’s earning capacity;

(h)My reply to the Mother’s proposal;

(i) Revised Proposals (sub-divided into the following) : –

- Monthly Periodical Payment;

- Undertakings to pay expenses directly or

reimbursement the expenses upon production of

documentary proof by the Mother;

- Accommodation

- Expenses incurred by Father whilst N is under his care

- Father’s financial circumstances

22. The Father obtained leave from this Court to file his Mother (Madam Wong)’s Affirmation dated 8 June 2014 without calling his mother as a witness to testify at this trial for cross examination for health reasons. Besides, the Father also issued a subpoena to a bank officer of the Bank of China (also known as Madam Wong) to testify at the last day of trial in respect of a sum of HK$32 million once kept in the Father’s bank account which he held on trust for his elderly mother.

Standard of living before separation

23. The parties started their cohabitation in the Kowloon Tong property around late 2007 or early 2008. N was born in November 2008 and lived there until her parents separated in May 2009. Ever since the cohabitation, the Mother was not working. She worked as a clerk for her father’s business prior to the cohabitation.

24. There are 2 domestic helpers and a driver employed by the Father’s family in the Kowloon Tong property, which is a 4-storeys townhouse type dwelling of about 4,800 sq ft. For a more descriptive condition of the Kowloon Tong property, the Father in his 1^st Affirmation filed at the commencement of these proceedings when he sought for N’s custody, care and control, at paragraph 150 (at pages 82 to 83 of the Trial Bundle) said :-

“150. There is now produced and shown to me marked exhibit CCMJ-20” a set of photographs showing the environment of the Address. It is a 4-storey house with open spaces in Kowloon Tong district and surrounded by parks and reputable schools of different grades for different ages of kids. The house is owned by my parents. Since I am the only child of the family who has not married, I have all along been residing at the Address with my parents since the house was bought in 2000. The house would also be provided as a home for the Defendant and the Child with two adjacent suite bed rooms and a study room designated for the little family’s private use.”

25. During pregnancy, the Mother was allowed to use the Father’s car, by that time was an Audi A3, with all expenses paid by the Father for transportation. After N was born, the Father bought a brand new SUV, which is an Audi Q5, for taking N and the Mother around. N was taken care of by the Mother full time. N was also enjoying tonic food on a regular basis for her health. As a matter of fact, during the entire period of cohabitation, all the expenses of N and the Mother were borne by the Father.

26. The Father is a member of the Hong Kong Jockey Club (“HKJC”) and the Kowloon Cricket Club (“KCC”). At present, the HKJC monthly membership fees are HK$2,000. The KCC monthly subscription fees are HK$1,300. N was able to enjoy the clubhouse facilities suitable for her age.

27. The living standard at the time, as I see it, is quite high compared with most of the middle class families in Hong Kong.

Standard of living after separation

28. After separation, the Mother and N started to live in the maiden family residence in Tseung Kwan O area, which is a home ownership scheme property solely owned by the Mother’s brother. The gross area is around 800 sq ft, which is about one-sixths (1/6) of the size of the Kowloon Tong property. The Mother continues to look after N as a full time mother. There is 1 domestic helper employed by the Mother’s father (i.e. the maternal grandfather) who helped in doing the household chores as the Mother’s parents have to work daily in their canteen business.

29. It is obvious, so far as the usable size of the living places for N is concerned and not to consider any parks or spaces nearby in the vicinity, the Kowloon Tong property is 6 times larger than the TKO property which N is currently living.

30. In so far as N’s maintenance is concerned, the Mother in her 7^th Affidavit filed on 25 October 2013 at paragraphs 4 to 12 (at pages 123 to 126 of the Pleadings Bundle) set out the difficulty she encountered with the Father over the years on N’s maintenance after separation :-

“4. The Applicant has been paying maintenance for N. However, the level has been inadequate and his payments have been irregular and inconsistent. It cannot secure for N a living standard which bears resemblance to that of the Applicant’s given his resources and standard of living.

5. As early as March 2010, about a year after our separation, my then solicitors issued a letter to the Applicant on a Without Prejudice basis for the maintenance of N. However, the Applicant did not give any constructive reply to the same. Instead, the Applicant, under the pretense of seeking more, further and better information, particulars and documentary proof, delayed the matter. On 8 April 2010, I was served with the Originating Summons in which the Applicant sought sole custody and care and control of N. It was then followed by the Applicant opening numerous issues including but not limited to access, removal, documents, diet, health, holiday, medical treatment, education, extra-curricular activity ….etc. This line of litigation continues to date.

6. On 12 August 2010, my then solicitors issued a letter on an open basis for maintenance with a detailed proposal for the Applicant’s consideration. There is now produced and shown to me marked exhibit “7-SSM-1” a copy letter from Alvin Cheng & Rosaline Choy to B Mak & Co dated 12 August 2010. The detailed proposal was met with that “as our client is now applying for the custody of N, before the final decision of the court on this matter, it is premature for your client to make such request at this stage”. I note that for the monthly maintenance at the time, the Applicant commented that “our client is confident that the current maintenance arrangement is satisfactory and sufficient…. N is only one year 10 months old… our client send your client a minimum of HK$10,000/month to cover all other expenses involved for taking care of N. We consider the provision sufficient.” However, since July 2012, the Applicant unilaterally cut the monthly maintenance for N to HK$5,000, which has remained the level till September 2013 after the hearing of 9 August 2013. There is now produced and shown to me marked exhibit “7-SSM-2” a copy letter from B Mak & Co to Alvin Cheng & Rosaline Choy dated 20 August 2010.

7. Since 2013, it had become even more difficult for me to secure for N maintenance from the Applicant. The Applicant’s contribution had either been delayed or even suspended by him for no reasons. Every month, I have to send numerous e-mails to the Applicant requesting for the maintenance of N. The Applicant would respond either by telling me to go back to work or alleging that he has already paid. There is now produced and shown to me marked exhibit “7-SSM-3” a copy of the e-mail exchange between me and the Applicant. The difficulty continued only until the hearing of 9 August 2013in which the Court brought up the issue of maintenance. Since then, the Applicant has increased the level of maintenance from HK$5,000 to HK$9,000.

8. However, the level of the A’s maintenance is still inadequate. The schedule of payments has still been irregular and inconsistent. Despite my requests that the Applicant should make the payment through making direct credit into my bank account on the 1^st day of each calendar month, the Applicant would insist on sending me cheques by post with his letter prompting me to go back to work. There is now produced and shown to me marked exhibit “7-SSM-4” a copy of letters by the Applicant.

9. On 6 September 2013, my solicitors issued a letter on an open basis to the Applicant with a detailed background and maintenance proposal for N. There is now produced and shown to me marked exhibit “7-SSM-5” a copy letter from SWC to Haldanes dated 6 September 2013. I crave leave from the Court to refer to the content of the letter, which sets out, in detail, N’s living standard pre-separation and post-separation, the means of the Applicant, the earning capacity of the Applicant, the standard of living of the Applicant, and my proposal for the Applicant’s maintenance of N.

10. In response, the Applicant first briefly commented that the maintenance proposal was grossly excessive. He then tried to further delay the matter by asking for more documentary proof, as appears to be his usual practice. There is now produced and shown to me marked exhibit “7-SSM-6” a copy letter from Haldanes to SWC dated 23 September 2013.

11. As the documentary proof of N’s expenses is as material as that of the resources and living standard of the Applicant, I proposed the exchange of our respective Forms E to progress the matter. There is now produced and shown to me marked exhibit “7-SSM-7” a copy letter from SWC to Haldanes dated 25 September 2013.

12. The Applicant however responded that “your client’s request for the parties to exchange their Form Es is unhelpful….our client does not accept that the parties’ respective Form Es are warranted at this stage of the proceedings as a Form E would not be able to assist your client to substantiate her purposed expenses.” There is now produced and shown to me marked exhibit “7-SSM-8” a copy letter from Haldanes to SWC dated 27 September 2013.”

31. The parties’ respective Form Es were only filed in January/February 2014.

32. It is the Mother’s case that due to insufficient maintenance from the Father since separation in May 2009, she has incurred debts from her father and her father’s canteen business, loans from credit cards altogether running up to around HK$753,000 as at early January 2014 (at page 12 of her Form E).

The Father’s background, means, resources and liabilities

33. The Father graduated from University of Birmingham in 1983 with Bachelor of Science in electronic and electrical engineering. He was granted a Master Degree in Business Administration by the University of Aston in Birmingham in 1985.

34. The Father worked for different companies holding posts of General Manager and Senior Vice President with monthly salary income ranging from HK$59,000 in 1990 to HK$150,000 in 2000.

35. In 2008, the Father joined a Hong Kong listed company as Director of Business Development for a monthly salary of HK$100,000. Around October 2010, he arranged with his employer to work on a ‘part-time’ basis at a reduced salary of HK$70,000. The reason provided by the Father for such arrangement was that he wanted to have more time with N. During the years of employment with the current employer, he had received discretionary bonus of HK$1.30 million for the year 1/4/2012 to 31/3/2013, HK$200,000 for the year from 1/4/2009 to 31/3/2010. He thus averaged out the bonus income to be HK$20,833 per month over his 6 years employment with the current employer. The fixed monthly salary plus the average bonus thus come to around HK$90,833 (HK$70,000 + HK$20,833) a month.

36. The Father in his Form E filed in February 2014 deposed to have total assets in the region around HK22.7 million (exclusive of the HK$32 million held on trust for his mother). The value of his total assets comes from 2 landed properties (1 property in One Silver Sea in Hong Kong under his sole name, 1 property in Beijing PRC jointly owned with a friend through a Hong Kong incorporated company “MB Limited”), cash value in banks worth around HK$4.9 million, values in stocks worth around HK$4.8 million, a Audi Q5 car worth around HK$180,000, and other valuable items of 2 Rolex watches, 2 IWC Schaffhausen, 1 Official Panerai, Leica camera and lenses, Canon camera and lenses (total value worth around HK$285,000), MPF valued around HK$167,834. For his 50% interest in the MB Limited holding the Beijing property, he estimated his interest worth around HK$8,324.50 excluding the value of the Beijing property. In the Annexure to his Form E, he valued the Beijing property worth around HK$9.21 million using an exchange rate of RMB 1 to HK$1.01 only. He is also holding 20% shareholding in SLAFF Limited on trust for his father, which company holds the Kowloon Tong property.

37. The Father’s reported liabilities in his Form E include (a) Club membership fees with HKJC at $2,000 and (b) Legal fees to Haldanes at HK$150,230. There is a credit balance of HK$40,903.06 in his Visa Card account with the Bank of China. Thus, the reported net liabilities is HK$111,326.94 (i.e. HK$2,000 + HK$150,230 – HK$40,903.06 = HK$111,326.94). It is noted the liability owed to HKJC is the regular monthly membership fees and the other liability to Haldanes is part of the legal costs incurred for these proceedings.

38. The Father, without obtaining leave in advance and before resumption of the part-heard trial in March this year, filed his 27^th Affirmation on 13 January 2015 to update his latest position, as to his financial and his health, since he filed his Form E in February 2014. His net assets worth had dropped from HK$22.7 million to HK$20.7 million, a reduction of HK$2.0 million odd within 11 months since his Form E was filed due to expenditure on legal costs, counsel’s fees and disbursements and various other reasons. Besides, there are legal costs around HK$449,735 remain outstanding as of 9 January 2014. In anticipation of the legal costs for this trial and his ongoing variation of custody application, he anticipated his net assets worth would be dropped by at least another 4 million.

39. In his 27^th Affirmation, he deposed there are further additional liabilities which include having to share his father’s medical expenses of approximately HK$118,800 per month with his siblings. His share (1/6^th) is around HK$19,800 per month. Since May 2014, he started to live in his One Silver Sea property and there are additional monthly expenses for utilities. He has to spend HK$500,000 to purchase Individual Nomination Right of ESF school for N’s admission later this year and by then, N’s school fees would be doubled by what he is now paying for N. He also needs to reserve funds for N’s future education in private schools and tuition, physical health care and mental health care, including possible overseas medical treatment for N’s leg problems. Further, he anticipated that there will be additional expenses of approximately HK$4,000 per month for counselling N’s anxiety issues recommended by Dr. Anita Leung earlier in these proceedings.

40. In his 27^th Affirmation, he also deposed that although he had been working part time since 2010, the workload and responsibility are exactly the same as a full time position and are ever increasing with the fast growth of his employer’s business. The pressure and responsibility demanded from his work are too high for him to cope with at his present age. His employer had been in negotiation with him several times as to when would be the appropriate time for him to leave the company. He was expected by his current employer to complete three very difficult and important projects on hand under the supervision of a new executive director before the termination of his employment. The Father expected that it is likely that he would be losing his current job in about 5 to 7 months after he completed those projects.

41. In addition to the increased expenses, he deposed there are also treatment costs of himself. He had been receiving treatment since May 2012 for major depressive disorder, anxiety and insomnia. He had spent HK$45,612 on treatment costs over his depression between May 2014 and January 2015. Since he would be terminated by his current employer in the foreseeable future whereupon losing his health insurance, he needs to pay approximately HK$40,000 annually for health insurance coverage. Besides, he claimed the major cause of his psychiatric condition is stress from work, ceasing to work would undoubtedly be beneficially to his health. Given the fact that his employer had indicated that he would be phased out in the near future and coupled with his health condition, it is opportune time for him to retire from working life. By then he would have to rely on his savings, stocks and landed properties to support his and N’s expenses. He expected it is unlikely for him to find other employment in future.

The Mother’s background, means, resources and liabilities

42. The Mother received local education up to secondary level. Before she came to know the Father, she worked as a clerk for his father’s canteen business at a salary of HK$10,000 a month. Through her times of work, she came to know the Father around 2005 and started the courtship leading to cohabitation 2 years later.

43. The Mother ceased working after cohabitation with the Father in 2007. She became a full time mother after N was born in November 2008. After the separation in May 2009, she stayed unemployed with no income and continued as a full time mother looking after N. Around May 2013, she had a chance to join as a member of Nu Skin as end user for purchase of some vitamins and cod oil for N’s consumption. She found the products of Nu Skin effective and then started to introduce them to friends and relatives. In so doing, she could earn irregular income whenever friends and relatives purchased Nu Skin products through her membership. These incomes were highly irregular depending upon the quantity and value of products bought from Nu Skin. The Mother does not reckon such income as any fixed or regular part time employed work since there were no fixed or designated working hours or any sales target. At paragraph 38 of her 9^th Affidavit, she deposed the income so earned from Nu Skin as follows :-

“May 2013	HK$ 794.44
June 2013	HK$ 5,820.36
July 2013	HK$ 6,894.88
August 2013	HK$ 2,280.35
September 2013	HK$ 16,415.77
October 2013	HK$ 22,648.49
November 2013	HK$ 7,316.34
December 2013	HK$ 2,166.96
January 2014	HK$ 4,842.30”

44. Over the years since separation, the Father had not adequately maintained N financially. This resulted in her having to obtain loans from her father, her father’s canteen business, her maiden family’s assistance and also have to resort to loans from credit cards to pay for her own and N’s expenses.

45. The Mother in her Form E filed in January 2014 deposed to have the following assets and liabilities :-

Assets
(a) Cash values at banks	HK$ 13,320.16
(b)Surrender values of 3 insurance policies	HK$ 1,511.93
(c) Manulife MPF Plan	HK$ 11,251.09
	HK$ 26,083.18

Liabilities
(a) BOC credit card	HK$ 60,175.00
(b)Hang Seng Bank credit card	HK$ 116,146.99
(c) Aeon credit card	HK$ 26,680.68
(d)Loans from father and father’s Business	HK$ 550,000.00
	HK$753,002.67

Analysis and Discussion

(a)Accommodation needs of N

46. The Father in his Open Proposals at the beginning of the trial in June last year offered a sum not exceeding HK$5 million (including stamp duty and set up costs) to purchase a property under his name for the Mother and N’s residence with reversion to him upon N’s majority. This proposal was, however, completely withdrawn by the Father at the resumed hearing in March this year without any alternative proposals. There is even no proposal for rental payments. It was suggested by the Father that N could continue living at the Mother’s maiden home in Tseung Kwan O.

47. The One Silver Sea property is a private dwelling in Kowloon area worth about 13 million at the time of this trial. This property is about 1,000 sq ft purchased by the Father in 2007 as the sole owner and the current mortgage repayments around HK$15,000 a month. The Father deposed at paragraph 10.25 of his 24^th Affirmation (in opposition to the Mother’s present claim) that this property was purchased for his financial security and intended to be his ultimate home after his parents pass away. The Father continued to reside in the Kowloon Tong property after he bought the One Silver Sea property was only because he had to assist in the care of his elderly parents for his brother who always work in Mainland China.

48. The Father’s latest Open Proposals for the accommodation needs of N, as I see it, is far from reasonable. Reason being that N’s accommodation needs had not been catered for at all when the Father completely withdrawn his earlier proposals of settling a sum of HK$5 million to purchase a property. First of all, the Father has had his Summons seeking variation of N’s custody, care and control to be given to him running in parallel(my emphasis) to the Mother’s present claim for N’s financial provisions, including N’s accommodation. In the event that the Father’s Summons for variation is successful, N would then either be staying with the Father at his own property which is the One Silver Sea property or the Kowloon Tong property. Given the fact that the Father had deposed the One Silver Sea property is now his residence in his 25^th Affirmation (contents of this 25^th Affirmation unrelated to the present claim) filed in June 2014 and in his subsequent 27^th Affirmation in January 2015, it is more probably than not that N would be residing with the Father at the One Silver Sea property, or in the Kowloon Tong property as the Father may so choose, if the Father is successful in his Summons.

49. Leaving aside whether the One Silver Sea property had been renovated or rebuilt into a bachelor’s flat or otherwise, in terms of usable space, value and location, it is obvious that there is significant disparity between the One Silver Sea property (a 13-million worth private dwelling solely owned by the Father) and the Mother’s maiden home at Tseung Kwan O (a home ownership scheme property not even owned by the Mother, but is owned by the Mother’s elder brother). Given the fact that N’s accommodation needs are the same irrespective of who is her ultimate primary carer, I find there is no reason why N should be residing in the Mother’s elder brother’s residence when the Mother is having her custody, care and control but to reside in a 13-million worth of residence (that is, the One Silver Sea property) in the event that the Father has her custody, care and control, not to say the possibility of living in the even more luxurious Kowloon Tong property.

50. The Father, whilst completely withdrawing his Open Proposals of providing 5 million to be settled on trust to purchase a property to cater N’s living needs, provided no proposals whatsoever towards the living costs of N, whether by way of rental payments for renting alternative accommodation or in the form of any monetary contribution. The Mother in her Form E had stated that there are mortgage instalments over the TKO property which was paid by her elder brother but N is also living there. Why should the maternal uncle (i.e. the Mother’s elder brother) have to bear N’s living costs? On the other hand, when it comes to calculate N’s expenses (whether on reimbursement of expenses incurred for 62 months since separation or further periodical payments) other than living costs, the Father made his best efforts through his Counsel to go into meticulous calculation such as working out the percentage of access time which he is currently enjoying with N (which is around 46%) and invited the Court to take this into account as part of his financial liabilities.

51. In my Judgment, N is entitled to be brought up in circumstances which bear some sort of relationship with the Father’s current resources and the Father’s present standard of living (see J v. C, supra). The Father’s suggestion of N to continue to live in TKO property on a ‘no costs basis’, in my view, is in affront to any sense of justice or fairness or any jurisprudence which I am aware of. This is not a case of maintaining the status quo of N’s living environment. Quite contrary, on the facts before me, this is a proper case where such status quo of living should give way to the best interests of N. Apparently, the present status quo of N’s living was brought about by the parties’ separation 5 years ago (when N was only 6 months old not even attending nursery at that time) and forced upon N without any consideration of her best interests. With the fast growing needs of N and her primary education needs, this is high time for the Court to look into N’s best interests in all perspective if this was not too late. Also with the fast physical growth of a child at her age, it is my decision that it is not in her best interests to continue to live in an accommodation of 800 sq ft with 4 other adults (including the Mother) whereas it happens that her Father claimed to be living alone in a HK$13 million worth of dwelling.

52. I have considered the option of ordering a sum of money to be settled by the Father to purchase a property for N’s accommodation with reversion to the Father, notwithstanding the Father had withdrawn such option in his latest Open Proposals. Such option, however, seems to create problems rather than provide solutions. However, I believe the Father who had the benefit of legal advice would have already considered the potential problems when he proffered the HK$5 million cash be settled in his earlier Open Proposals.

53. With the rapid and sharp increase in prices in the Hong Kong property market lately, it is practically difficult if not impossible to fix the appropriate level of money needed to acquire a suitable accommodation for N. Since whatever property to be acquired would be purchased under the Father’s name and settled for N’s use with reversion to the Father, there are the secondary stamp duty (so called “SSD”) issue which may be payable because the Father had already owned his first property, namely, the One Silver Sea. Such SSD, if this have to be paid, would no doubt eat up part of the moneys set aside resulting in reduction of the moneys available for the purchase. Further, it is unlikely that the Father would be willing to arrange finance by mortgage because of his alleged anticipated lost of job or early retirement. In the event of purchasing a property by full payment without raising any mortgage, say for instance, using the Father’s initial proposal of HK$5 million, it might result in an even worse scenario than the Father paying off the remainder of the existing mortgage of the One Silver Sea property, which is just around HK$2 million outstanding, a difference of putting up HK$3 million cash less in money terms. Even if the Father is agreeable to arrange mortgage for the new purchase, this would end up with the Father having to pay, in addition to the existing One Silver Sea property mortgage, another ‘newly created’ mortgage for the next 10 or 15 years on the property to be purchased.

54. Since the Father had completely withdrawn his earlier proposals of settling a sum of not exceeding HK$5 million without proposing any monetary sum to purchase (or even to rent) alternative accommodation to cater for N’s accommodation needs, coupled with this Court’s finding that it is not in N’s best interests to continue to live in the TKO property, and the potential problems aforesaid, the only option then open for consideration by the Court on N’s accommodation needs would be the One Silver Sea property.

55. Pausing here, the Court would have to look into the 2 questions which the Father’s Counsel Mr. Jeremy Chan fairly submitted, namely, (a) how could the Father’s residence, namely, the One Silver Sea property be transferred when there is an outstanding mortgage? and (b) the financial means and resources of the Father to accede to the Mother’s Open Proposals.

56. Counsel submitted that since the One Silver Sea property is on mortgage, it is not feasible or legally possible for any transfer of ownership unless the mortgage is fully paid off. The outstanding mortgage at present is around HK$2 million. Moreover, the One Silver Sea property is the Father’s only property and place of residence. Counsel then submitted that he had not heard of any cases where the owner (i.e. Father) should be evicted from the use and occupation of his own and only place of residence. It was submitted that the Father could not afford to settle any sum of money for the purchase of any other accommodation, not to mention the sum of 13 million proposed by the Mother for N’s accommodation costs and over half a million dollars for decoration costs to pull down and ‘re-do’ the One Silver Sea property.

57. I have some observations over the Father’s evidence about his current place of residence is the One Silver Sea property.

58. First of all, I do not believe the Father is now using the One Silver Sea property as his place of residence as he so alleged. Had I been wrong on this finding, to the very least, the One Silver Sea property is not the only place where the Father could live in as his residence. In his 24^th Affirmation filed in March 2014 whilst he was still using the Kowloon Tong property address as his residential address in the affirmation, the Father gave the reason for staying in the Kowloon Tong property is because of having to assist in the care of his parents. In his evidence given during cross examination at the resumed trial on 15 January 2015, he gave the reason for moving out of the Kowloon Tong property to the One Silver Sea property was because there had been discussions ongoing for few years within the family about selling the Kowloon Tong property in order to help in settling his elder brother’s business debts incurred in Mainland China (中山三鄉鎮). Such discussion had continued for years and went on in 2014. At the same time, his elderly father’s health condition had deteriorated a lot. The elderly father now had difficulty in walking. The elder brother suggested the entire family should move to live in some other properties with lift because the Kowloon Tong property is a kind of 4-storeys townhouse with stairs. His mother Madam Wong strongly objected to the idea of selling the Kowloon Tong property. According to the Father’s evidence, there was conflict within the family on such issue which had intensified recently. He just felt embarrassed to continue living there as he does not want himself to be, using his own words, a ‘parasite (寄生蟲)’ to continue living in the Kowloon Tong property. Also he did not want his elder brother to wrongly think his continuous stay in the Kowloon Tong property hindered the idea of selling the Kowloon Tong property to settle the business debts. He also did not want to be involved within the family conflict. Therefore, he decided that it would be better for him to move out from the Kowloon Tong property. The Father said he could only move to his own property at the One Silver Sea.

59. I find the Father’s evidence, on balance, not believable. There is no evidence either from his elder brother or parents to support his reasons to have to move out from the Kowloon Tong property. In the absence of such evidence, his reasons proffered are no more than his bare allegations or mere assertions. He was cross examined by the Mother’s Counsel Mr. Kevin Li whether he knows the amount of his elder brother’s debts. The answer provided was that he did not know since this is his elder brother’s affairs. I find this odd and unusual for the Father not even able to tell the debt was how much, say, for instance hundreds of thousands or several millions since he alleged the idea of selling property to settle debts had been thrown out by the elder brother quite a while and had been ongoing.

60. Under cross examination, the Father agreed with the Mother’s Counsel that his reasons of there had been on-going family conflicts and his hope to avoid such family conflicts himself had not been mentioned by him anywhere in any of his earlier Affirmations; in particular, such ‘family conflicts’ had been ongoing for a few years already. The Father also agreed with the Mother’s Counsel that even at present, it is a matter of his choice to stay few nights in the One Silver Sea property and other few nights at the Kowloon Tong property. The Father, seemingly noticed a loophole in his answers, tried to supplement his answer by saying that in any event after his parents pass away in future, he would certainly need a place to live in because the Kowloon Tong property is not his place of residence. This last supplemented answer will only happen many years later.

61. The Father had all along been represented by reputable legal firms with extensive matrimonial practice and experienced Counsel, the absence of the ‘family conflicts’ reasons for the moving out in any of his affirmations handled by his lawyers renders his reasons given at trial unbelievable. I do not believe what the Father said.

62. As the Mother’s Counsel rightly put to the Father, he chose to move out at the time when the elderly father’s health had deteriorated but the earlier reason given for staying in the Kowloon Tong property was to assist his elder brother to take care of his parents seems contradictory. Would it not be the case that his elderly father whose condition had deteriorated need more care now than before ? There was no constructive reply to this question except to say that that is why he needed to share part of his father’s medical costs and the other domestic helper salary. There is no evidence from the elderly father of being in need of such contribution. Moreover, there is no documentary evidence produced by the Father to support his sharing of such costs.

63 Given careful consideration to the Father’s evidence in totality, I find there are no compelling reasons or any urgency for him to have to move out from the Kowloon Tong property in May 2014. Although I accept his evidence about his parents’ ages and health, there is no evidence that he would be ‘evicted’ or ‘expelled’ by his siblings from living in the Kowloon Tong property (where he had been living there for about 14 years since 2001) after his parents pass away. The Kowloon Tong property was owned by SLAFF Limited and not by any of the siblings, or the elder brother who allegedly was in debt and who had wanted to sell the Kowloon property. There is also no evidence in respect of the Father’s concern that he would have to move out from the Kowloon Tong property after his parents’ pass away.

64. On the other hand, the One Silver Sea property was bought in 2007 and was left vacant for about 7 years despite the Father’s case that the property was all along intended to be used as a bachelor’s flat solely by himself. The Father’s claimed intention of self use is not accepted by this Court. Reason being that from his handwritten note given to the Mother which was produced and attached as exhibit “9-SSM-1” to the Mother’s 9^th Affidavit where the Father said :-

“若妳不喜歡衡州道 , 丈夫就另覓地方, 給妳和女兒先居住, 盡快把一號銀海弄好後, 再搬去那邊吧 !”

65. Although there is no date written on this handwritten note, it is obvious the One Silver Sea property, to the very least at some point in time after having it renovated expeditiously, was intended for the use of N and the Mother.

66. Secondly, it appears to me odd and unusual that the Father would not update or amend his residential address from the Kowloon Tong property to his One Silver Sea property if it was his genuine and determinative plan to move and live in his own property in May 2014. Attached to the Father’s 27^th Affirmation dated 13 January 2015 as Exhibits “CCMJ27-1” is a bundle of documents of 70 pages. Within this exhibit there are the Father’s bank statements of HSBC (from February to December 2014), One Silver Sea mortgage repayment schedule for December 2014, Daily Securities Transaction Statement dated 11 December 2014, MPF Statement printed by BCT dated 17 December 2014, Visa Card statement with Bank of China from January to December 2014, Hang Seng Bank HKJC membership card statement from January to December 2014 (collectively called “personal statements”). It is noted that all these personal statements contain the Father’s name and the address used there is the Kowloon Tong property address. Even though there is no evidence before me from the Father, I am prepared to accept that it is all possible for the Father to get his personal statements sent to the Kowloon Tong property when he went there to see his elderly parents. I am, however, not convinced at all that since the Father’s reasons given (only lately during this trial) was that his moving out from the Kowloon Tong property is that he does not want to be ‘parasite (寄生蟲)’ and also to avoid any misunderstanding of his elder brother that he ‘hindered’ the sale of the Kowloon Tong property. In that case, how would his physical moving out but keeping the Kowloon Tong property address as his mailing address would alleviate his concern or show he does not want to be ‘parasite (寄生蟲)’ within the family ? In the absence of any evidence from the elder brother or the parents, it is my finding by drawing reasonable inference that either the Father’s assertion of change of residence from the Kowloon Tong property to the One Silver Sea property is only temporarily and for a purpose or it simply did not occur at all.

67. Section 10(2)(e) of the GMO empowers the Court to order property to be settled on trust and such property could already be owned by the parent either in possession or reversion or, such property to also include ‘a sum of money’ for acquiring a ‘putative property”. The One Silver Sea property is owned by the Father and could, in appropriate cases, be settled on trust with a reversion to the Father. The fact that the One Silver Sea property is encumbered by a mortgage would not prevent it from becoming the subject matter of a settlement. Any such arrangement would resolve the first question (a) posed above by Counsel if this Court is minded to grant a settlement order under Section 10(2)(e) and not a transfer order under Section 10(2)(d) of the GMO .

68. The other submission raised by Counsel that there are no cases to his knowledge that a legal owner be ‘evicted’ from using his own residence falls miles apart upon my finding of fact that the One Silver Sea property is not the Father’s place or only place of residence. It is also my finding of fact that the Father’s unprecedented move to the One Silver Sea property and then asserted using it as his place of residence is, on balance of all probabilities, not believable and likely to be an attempt to prevent the One Silver Sea property from being ‘seized’ for use by N through the Mother’s present application.

69. Turning to the second question (b) as to the Father’s financial means and resources, this Court is urged to take into account the Father’s liabilities since the Father has been granted extensive access time to N, during such access time the Father would have to pay for N’s expenses and not the Mother. Such extensive access time accounted for about 46% of the entire period of the time when N would be under the care and control of the Mother.

70. Father’s Counsel in his supplemental closing submissions on law referred to the discharge of the existing mortgage of the One Silver Sea property by the Father would involve ‘tying up’ over HK$2 million which the Father would then not be able to access until N finishes full time education and financially independent, something that is in all likelihood about 15 years away if not more. This submission, in my decision, may only be relevant if the Father could be ordered by the Court to discharge a mortgage to facilitate a transfer of ownership under Section 10(2)(d) of the GMO. Father’s Counsel had rightly submitted that the GMO does not provide such jurisdiction as to order a discharge of mortgage. If a mortgagor (the Father in the present case) voluntarily undertakes to do so, the Court could accept such an undertaking. However, as I have decided under paragraph 67 above, to order settlement of a property under Section 10(2)(e) of the GMO does not require the discharge of the existing mortgage of that property.

71. I also hold a different view with the Father’s Counsel’s submission of ‘tying up’ assets for about 15 years. If the mortgage over the One Silver Sea property is redeemed now through capital payment of HK$2 million out of the Father’s liquid cash on hand which is about 7 or 8 million, the Father would be immediately relieved from the burden of having to pay monthly mortgage instalments of HK$15,000 for the next 13 years. Since the Father’s case is that he would be losing out his employment and thus salary income upon his anticipated termination or retirement in the near future, such ‘tying up’ of HK$2 million coming out from his 7 or 8 million liquid cash on hand may be financially justified than having to pay HK$15,000 monthly mortgage instalments for the next 13 years to go, which means until the Father is 68 years old (that is, 55 + 13 = 68). According to the Bank repayment schedule of the One Silver Sea property dated 20 December 2014, the outstanding term is 156 months (i.e. 13 years).

72. Given careful consideration to the above analysis and findings and all the available options, also having taken in account the means and resources of the Father, I would grant a settlement order under Section 10 (2)(e) of the GMO in respect of the One Silver Sea property to cater for N’s use and occupation under the care of the Mother, with a reversion to the Father upon N’s reaches 18 or ceases full time education, whichever is the later. Since the Mother is granted the custody, care and control of N, she would have to live with N together until further Order.

73. Having said, whether the Father chooses to continue to discharge his monthly mortgage repayment liabilities of the One Silver Sea property with the Bank of China for the next 13 years or by full capital payment to redeem the One Silver Sea property outright is entirely a matter for the Father’s own choice of which this Court would not, as Father’s Counsel rightly submitted, have jurisdiction to deal with.

(b) Renovation costs for One Silver Sea

74. The Mother filed this item of claim based upon figures and quotation provided by one Choice Design Company (at pages 1083 to 1093 of the Trial Bundle). The Mother’s case is that the One Silver Sea property would need to be refurbished back to its original layout for N’s use. The Father had refurbished the property by knocking down the wall partition of 1 room converting the property from a 3-bedroom to a 2-bedroom flat. The Father also took out the bathtub in the guest washroom to add a cabinet there.

75. In my decision, this item of claim must fail for the following reasons.

76. First, there is no sufficient evidence as to the present condition of the One Silver Sea property requires refurbishment to the extent as the Mother thought so before it could be used as N’s accommodation. Secondly, even if there is a need for some refurbishment, the extent of refurbishment must be specific (or even tailor made) to cope with N’s use and needs, no less and no more. This could only be checked out after N had moved in and live there. Thirdly, there is no sufficient evidence that the quotation is the best price obtainable in the open market or the items of refurbishment set out in the quotation are necessarily needed for N. Fourthly, the quotation was not prepared after an on-site inspection of the property and therefore lacks precision.

77. In the event that such item of refurbishment expenses are needed (which I made no finding at this stage), there are still provisions under the GMO to cater for such expenses.

(c) Transportation arrangement

78. The Mother’s claim for the provision of a car to be arranged by the Father would have to be determined by considering the following questions :-

(a) What was the transport arrangement for N before and after the parties’ separation?

(b)Would it be in the best interests of N if a car is provided as the means of transport arrangement proposed by the Mother?

79. The Mother under cross examination agreed the Father bought the Audi Q5 after N was born. Before separation, the Father had used it to drive N. Occasionally the Father also drove her to the MTR station after she received physiotherapy treatment.

80. During cross examination, the Mother was referred to a letter dated 29 April 2011 (at page 817 of the Exhibits Bundle) by Father’s Counsel which was sent by her then solicitors to the Father’s then solicitors where it said :-

“In relation to school bus, the issue was in fact discussed before Deputy Judge T. Chan. N at this age will be benefited by the school bus service which is a social experience for her. She should not be habitually chauffeured in a private car, and in any event your client had indicated that he would not be able to make such an arrangement on a daily basis.”

81. The Mother agreed that the letter reflected her stance at that time when N was still young and the Father could not commit to drive N daily. Faced with such situation at that time, the only option open to her was for N to take the school bus. If a car is now provided, she would be able to drive N to and from school and N would not have to take school bus. On weekends and holidays, it would be more convenient for her to drive N for pleasure trips such as to Disneyland and Shek O. The Mother further testified that the Father had once provided her with an Audi A3 to drive the Father to and from work, for her pregnancy check etc. She agreed that she had never driven the Audi Q5.

82. On the Mother’s uncontroverted evidence, transport arrangement by private car is not something ‘new’ to N since her birth. After separation, except on access occasions when the Father would pick up and return N using his Audi Q5, N does not have the benefit of transportation by private car.

83. Since N would continue to study full time in Primary 2 in coming September, I agree with Father’s Counsel that by that time there would not be much use of a private car when N is at school Mondays to Fridays (except certain weekday holidays). There is also the time when N is with the Father when there would be no need for the Mother to drive N along. Also, I agree the costs to maintain a private car is comparatively higher than taking school bus on school days and public transport on holidays.

84. If a private car is to be provided as N’s transport arrangement, I believe it is a matter of comfort and convenience more than anything about N’s best interests. In my Judgment, best interests for N on this topic should be taken to mean she could attend schools or events on time unrelated to what means of transport to bring her there, be it a private car, by MTR, by taxi or even by bus.

85. Taking into account the costs involved for maintaining a private car and considering from the best interests perspective other than the choice of comfort and convenience, I find it not reasonable for the Father to provide a private car for N’s transportation needs. This item of claim fails.

(d) Monthly maintenance, school fees, uniform, extra curricular fees etc

86. There is disagreement between Counsels as to whether the Father’s Undertakings given during the hearing on 12 June 2014 embodied as the Court Order of the same date had dealt with the Mother’s claim for reimbursement of N’s school fees, school bus, school uniform, school books and stationery; and also dealt with N’s extra-curricular activities for the 62 months so much so that this Court would not have to be troubled with making any findings on those expenses at this trial.

87. I will deal with the issue of Extra-Curricular Activities expenses, school fees, school uniform etc at the later paragraphs of this Judgment when I come to consider the terms of the Order dated 12 June 2014. Suffice to say at this juncture that in any event Extra Curricular Activities expenses arranged by the Mother in excess of HK$4,000 per month is an issue to be determined by this Court since this would fall outside the maximum limit of the Undertaking.

88. The Father now sought to adjust the amount in the Undertaking on Extra Curricular Activities expenses from HK$4,000 a month down to HK$3,000 a month. This was not agreed to by the Mother. Therefore, the Undertaking stands in its original form and the maximum amount of reimbursement capped at HK$4,000 a month.

89. The Mother in her Open Proposals suggested N’s monthly maintenance and expenses in the sum of HK$59,950 included an item of carer’s allowance at HK$12,000. The Father in his Open Proposals suggested N’s monthly maintenance and expenses in the sum of HK$7,533 with the aforesaid 2 Undertakings remain intact but without any carer’s allowance. The following is the comparison table of the monthly maintenance of N (at pages 269 to 270 of the Correspondence Bundle) of the Mother’s claim and the Father’s views or comments, including his proposed amount, on each of the individual items.

	Mother’s Open Proposal	Comments / Ref’s	Father’s Position	Comments / Ref’s
Monthly Maintenance
Utilities	$3,800	This appears to include M’s own portion as well; increased from HK$569.00	$600	Child’s portioning
NowTV (cartoon channels)	$143	Not appropriate	Not appropriate / unnecessary
Broadband Internet	$226	This appears to be on the basis that M makes no contribution whatsoever	$113	Child’s portioning
Food	$6,000	Increased from $4,000 This appears to include M’s own portion as well	$2,250	Child’s portioning Further, Father will pay school fees – which includes lunches.
Household	$2,000	This appears to include M’s own portion as well	$300	Child’s portioning
Car Expenses Parking, Gas, Maintenance)	$8,000	This appears to include M’s own portion as well	$300	For miscellaneous transport, on top of school bus which Father will pay for (on the basis of no car)
Domestic Helper	$6,972	Increased from $3,920 This appears to be on the basis that M makes no contribution whatsoever	$2,000	Child’s portioning; and on the basis that Mother goes back to remunerative employment
School Books	$929	Increased from $300	Father’s Undertaking	Father’s Undertaking
Extra Curricular	$6,810	Increased from $2,225 + $2,400	Father’s Undertaking	Father’s Undertaking
Entertainment / Presents	$5,000	Breakdown ?	$1,000	Grossly excessive
Holidays	$3,000	Increased from $1,700		Each party pays for own holiday.
Clothing / Shoes	$500		$500	Agreed
Medical insurance	$370		$370	Agreed
Lunch & Pocket Money	$1,000			Lunch is covered by school fees – which Father pays
Skincare	$100		$100	Agreed
Others – Luxurious FoodStuff	$3,100			Grossly excessive. Some of the proposed supplements are not suitable for children
Purported Carer’s Allowance	$12,000		$0	Mother has income and de facto income. With domestic helper and Child in full-time education. Mother can go back to remunerative employment.
Monthly Total:-	$59,950	Does not include direct payments made by the Father AND expenses borne by the Father when the Child is with his as to over 40% of the time	$7,533

90. For the item of utilities, the Father proposed HK$600. The Mother’s estimate of HK$3,800 for N’s share appears excessive. It is however not at all possible to quantify the exact sum. I would therefore assess this at HK$1,600 a month as a fair and reasonable share for N on this item.

91. For the item of NOW TV (cartoon channel), I do not agree with the Father that N, at the age of 7, should not be watching cartoon channels of programme suitable to her age. I allow this item of HK$143 a month in full.

92. For the item of Broadband Internet, the Father’s latest position as per the letter dated 10 June 2014 is to share 50% of the charges of HK$226 with the Mother. His share is HK$113. I allow this item at HK$113.

93. For the item of Food, the Father proposed HK$2,250 out of the Mother’s claim of HK$6,000. Although the Father is paying N’s school fees which include lunch, there are still food expenses for breakfast, snacks, dinner and meals for non school days when N is with the Mother. Again, it is not at all possible to quantify the exact sum. I would assess N’s expenses for this item at HK$3,000 a month.

94. For the item of household expenses, which include items such as share of toothpaste, tissue paper, washing powder, detergents, use of bowls and dishes utensils etc. The Father’s proposed sum of HK$300 a month is, in my view, definitely too low and beyond reasonableness. I would assess N’s expenses for this item at HK$1,000 a month.

95. For the item of car expenses, I had disallowed this item for the reasons set out above at paragraphs 78 to 85 of this Judgment. Although the Father’s Undertaking covered school bus, there are still transportation expenses on non school days for pleasure, attending tuition classes or Extra-Curricular Activities not being catered for. I would assess N’s expenses for this item at HK$3,000 a month.

96. For the item of domestic helper, the Father is offering HK$2,000 as N’s share for the use of the domestic helper on the basis that the Mother is going back to employment. The corollary is that if the Mother does not go back to work, there will be no such contribution by the Father.

97. I will deal with this item when I come to consider the Mother’s claim for carer’s allowance in the later paragraphs of this Judgment.

98. For the item of school books, this was covered by the Father’s Undertaking on a 14-day reimbursement basis. Therefore, there is no finding of any amount in N’s monthly expenses for this item.

99. For the item of Extra-Curricular Activities, this will be confined to those activities arranged by the Mother in excess of HK$4,000 per month. In my decision, it is fair that any Extra-Curricular Activities arranged by the Mother in excess of HK$4,000 should be equally shared between the parties. Subject to such sharing, there is no finding of any fixed amount as N’s monthly expenses for this item.

100. For the item of entertainment/presents, the Mother’s estimate of HK$3,800 appears excessive. Again, it is not at all possible to quantify the exact sum. I would assess N’s expenses for this item at HK$1,600 a month.

102.For the item of holidays, I agree with the Father that on all fairness each party should pay for their own holiday arrangements for N. There is no finding of any fixed amount over this item as N’s monthly expenses.

102.For the item of clothing/shoes, the Father agreed the sum of HK$500. There will be a finding for this item at this amount.

103. For the item of medical insurance, the Father agreed the sum of HK$370. There will be a finding for this item at this amount.

104. For the item of lunch/pocket money, the Father maintained this had been covered by his Undertaking to pay school fees of which lunch is included. Mother in her evidence clarified that the sum of HK$1,000 a month was given to N each month to teach her savings habit. Whilst I accept the Mother’s evidence of the need to teach N savings habit and this is no doubt in N’s best interests to learn, I do not agree such ‘money forsavings’ should take the form of any regular monthly maintenance payment from the Father. This item will be disallowed.

105. For the item of skincare, the Father agreed the sum of HK$100. There will be a finding for this item at this amount.

106. For the item of other foodstuff or vitamins, Marine Omega, Edible bird’s nest, Probiotics, Caterpillar fungus and ingredients for soup, the Father disagreed completely. Father’s stance is that if the Mother provides healthy food for N, no supplemental or luxurious nourishment is needed. I can hardly agree with the Father. In my decision, it is not uncommon for child of tender years to take vitamins or food supplements although this need to be selective in quality, quantity and kind of supplement. I would assess N’s expenses for this item at HK$2,300 a month.

107. Based on the above assessment adding together, I find N’s monthly expenses, not to include those items covered by the Father’s Undertakings and for the time being, the carer’s allowance, at HK$13,726 a month.

108. The Father, apart from challenging N’s monthly expenses claimed by the Mother to every single dollar and cents, also invited the Court to take into account that the Father is now having about 46% of access time during such time the Mother would not have to pay for N’s expenses. I will deal with this submission at the later paragraphs of this Judgment.

(e) Carer’s Allowance

109. The Mother is seeking a sum of HK$12,000 as Carer’s Allowance. The Father strongly opposed this item on the basis that the Mother has earning capacity. Prior to the cohabitation, the Mother was working for her father’s canteen earning HK$10,000 a month. The Father alleged that the Mother had not resigned but took maternity leave for the pregnancy. Besides, the Mother is now working as a ‘sales distributor’ with Nu Skin with commission income derived from sales of products. The Mother in her Form E had confirmed that she had received income from Nu Skin at HK$54,854.29 for a period of 6 months from May to October 2013 which averaged out at HK$9,142.38 a month (i.e. HK$54,854.29 x 1/6 = HK$9,142.38). In November 2013 she earned HK$7,316.34, in December 2013 she earned HK$2,166.96 and in January 2014 she earned HK$4,842.30.

110.The Mother in her 9^th Affidavit in reply explained she only came across Nu Skin in February 2013 when she joined their membership to purchase vitamins and cod oil for N as an end user consumer. She found the products safe and effective. She therefore started to introduce Nu Skin products to her friends and relatives. This is not any kind of employment since there are no fixed hours of work. The participation in Nu Skin is flexible and she only received income upon purchases made through her. The Mother further explained the reason for joining Nu Skin was because since July 2012, the Father had further reduced N’s monthly maintenance. At that time she was already in debts owed to her father’s business. She did not want to increase her debts and liabilities. The income received from Nu Skin had been spent to repay her loans, to pay for N’s English class and to pay for a trip to Dubai with N during Chinese New Year. To prove the Father’s further reduction in maintenance, the Mother produced a handwritten note written by the Father produced as Exhibit No. “9-SSM-7” in her 9^th Affidavit (at page 828 of the Trial Bundle) where the Father said :-

“我說過妳再不合作和給予我無禮或侮辱的言詞, 我會考慮再 cut budget, 我是認真的。”

111.This handwritten note is undated but it came in together with a cheque dated 12 November 2012 drawn in favour of the Mother for HK$5,000 as maintenance. The contents of the quoted sentence, on all fours, tally with the Mother’s evidence that the Father had reduced N’s maintenance in 2012. First, I believe and find more probable than not that this handwritten note was sent to the Mother around the time of the cheque. Secondly, I find the meaning of the Chinese character “…再 cut budget” speaks for itself which literally means “again cut budget”. I was invited by Father’s Counsel not to just consider the meaning of the quoted sentence in isolation or in context but also to have regard to the overall circumstances and the background when the note was so written and given. However, Counsel has not been able to persuade me further that the quoted sentence bears a meaning different from what I have found.

112. I accept the Mother’s evidence and reason for her joining Nu Skin. Having so found to be the case, would justice and fairness permit the Father could take advantage of his unilateral reduction of N’s maintenance, which was ‘forced upon’ the single parent Mother who simply made her efforts to relieve her financial burden on maintaining N, then to come up to say the Mother had earning capacity and had also earned income; and accordingly, the Mother is not entitled to any Carer’s Allowance ? In my judgment, the short answer must be ‘No’.

113. During cross examination of the Mother on the item of domestic helper as part of N’s expenses, the Father’s Counsel positively put to the Mother that she was not financially qualified to hire a domestic helper since she had no income to satisfy the Immigration requirements on hiring foreign domestic helper. The Mother’s initial answer was that she did not know clearly the Immigration requirements but she might agree if that is the case. Father’s Counsel then produced those requirements downloaded from Immigration Department as to the requirements for hiring foreign domestic helpers and other related extracts. These were produced and marked Exhibit A(1)(i) and A(1)(ii) at the trial.

114. Given this is the Father’s case on the Mother’s eligibility to hire domestic helper to take care of N, and given the fact that the Mother was granted custody, care and control of N and has been the primary carer since N was 6 months old, it goes without say the Mother would be the only person to look after N under the terms of the custody order. I see no reason why the Mother should not be given carer’s allowance. I will so order accordingly.

115. In the case of Re P (Child : Financial Provision) [2003] 2 FLR 865 where Thorpe LJ said :-

“49. Thus, in my judgment, the court must recognise the responsibility, and often the sacrifice, of the unmarried parent (generally the mother) who is to be the primary carer for the child, perhaps the exclusive carer if the absent parent disassociates from the child. In order to discharge this responsibility the carer must have control of a budget that reflects her position and the position of the father, both social and financial. On the one hand she should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the other parent chooses to live lavishly. On the other hand whatever is provided is there to be spent at the expiration of the year for which it is provided. There can be no slack to enable the recipient to fund a pension or an endowment policy or otherwise to put money away for a rainy day. In some cases it may be appropriate for the court to expect the mother to keep relatively detailed accounts of her outgoings and expenditure in the first and then in succeeding years of receipt. Such evidence would obviously be highly relevant to the determination of any application for either upward or downward variation.”

116.In the case of IDC v. SSA (supra), I find the following passages from the Judgment of the learned trial Judge Bruno Chan on the item of carer’s allowance particularly useful :-

“84. The evidence before the court is that the Mother used to earn between HK$20,000 - $30,000 per month before she gave birth to Z. While she is certainly not entitled in law to claim her carer’s allowance on the same basis of a wife for ancillary relief, it would not be inappropriate in my view instead to use her former average income as the basis for assessing her allowance as the primary carer, which as Thorpe LJ said in Re P above, and using his word here, may be checked but not diminished by the absence of any direct claim in law, and that in order to discharge this responsibility as the primary carer of Z, she must have a budget that reflects her position and the position of the Father both social and financial, as she should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the Father chooses to live lavishly.

85. ……..

86. As Bodey J has stressed in Re P supra, no mathematical formula can provide a solution to what is essentially a discretionary exercise to be adopted broadly, and no doubt with common sense on the part of the judge…….”

117. I adopt the approach of the learned trial Judge in IDC v. SSA (supra) for granting the Mother’s carer’s allowance. I fixed the Mother’s carer’s allowance at the rate of HK$10,000 a month. Such allowance to be dated back to the date of her Summons (i.e. 25 October 2013).

118. Since I have allowed carer’s allowance for the Mother, there will be no finding of any amount on the Mother’s claim for domestic helper.

(f) Purchase of a Harp in the sum of HK$40,000

119.The Mother in her evidence at trial agreed not to pursue further on this item. Accordingly, there will be no award on this item.

(g) Reimbursement by way of lump sum of HK$1,056,269

(From May 2009 to June 2014) – total 62 months

120. The Mother agreed she had received HK$426,951 (from May 2009 to August 2013) and HK$98,000 (from September 2013 to June 2014) from the Father.

121. The sum of HK$1,056,269 which the Mother is now claiming reimbursement was arrived at by using N’s expenses of which she assessed at HK$22,449 a month for 62 months (from May 2009 to June 2014), plus Extra Curricular Activities of HK$83,626, Medical of HK$23,836, School Bus of HK$39,920 and Holiday expenses of HK$42,000 and then minus the 2 sums she had received from the Father (at pages 331 to 333 of the Pleadings Bundle).

122. The Mother under cross examination confirmed the sum of HK$1,056,269 was the amount she had spent on N which she is seeking reimbursement from the Father. Counsel for the Father, in his written closing submissions, used the Mother’s claim for reimbursement of HK$1,056,269, plus the 2 sums of HK$426,951 and HK$98,000 received by the Mother, and worked out a summation of HK$1,581,220 as the total sum of money which the Mother allegedly had spent on N for the 62 months between May 2009 and June 2014.

123. The Mother under cross examination was also asked to give a figure as to how much she spent on herself for the past 62 months. The answer given by the Mother was around HK$10,000 a month.

12. Counsel for the Father then, using the Mother’s claim for reimbursement of HK$1,056,269, plus the Mother’s spending on herself of HK$620,000 (i.e. HK$60,000 x 62 months) and came up with the figure of HK$1,676,269 as the Mother’s and N’s combined expenses. The Mother’s further evidence under cross examination was that, leaving apart the Father’s contribution of the 2 sums of HK$426,951 and HK$98,000 in the past, she had to use her credit cards and to obtain loans from her father and her father’s business to make ends meet on the monthly expenditure. The total amount of indebtedness disclosed in her Form E is HK$753,002. It was then submitted by Father’s Counsel that the Mother’s case on N’s expenses for reimbursement simply did not add up at all. Reason being that there was an unexplained sum of HK$923,267 (HK$1,676,269 – HK$753,002 = HK$923,267) of ‘magical money’ (using Counsel’s phrase in his written submissions) coming from nowhere in the Mother’s evidence .

125. At paragraph 34 of Father’s Counsel’s written submissions, it was then submitted that given the Mother’s unexplained sum of HK$923,267, the best way to work out N’s expenses for the past 62 months (May 2009 to June 2014) would be by adding :-

(a) The Mother’s own case and evidence of HK$753,002 of indebtedness from credit cards and loans; and

(b)The Mother’s spending of HK$203,000 on N out of her own moneys as she testified under cross examination; and

(c) the Father’s contribution of HK$426,951 and HK$98,000 (total of HK$524,951).

with all these added up together is HK$1,480,953. By average this figure for the 62 months, it works out at HK$23,886 per month (HK$1,480,953 x 1/62 = HK$23,886).

126. At paragraph 36 of Counsel’s written closing submissions, it was further submitted that the said HK$1,480,953 is in fact not appropriate for going forward. Reason being that this amount had included the 3 sums of money claimed by the Mother to have been spent but was however either covered by the Father’s Undertaking to pay them or covered by insurance coverage. The 3 sums are respectively HK$83,626 for Extra-Curricular Activities (covered by Father’s Undertaking); HK$39,920 for school bus (also covered by Father’s Undertaking) and HK$23,836 for medical expenses (covered by medical insurance). If one is to take away these 3 sums, the total amount would then be reduced from HK$1,480,953 to HK$1,333,571 (i.e. HK$1,480,953 – HK$83,626 – HK$39,920 – HK$23,836 = HK$1,333,571) for 62 months which would work out an average of HK$21,509 a month.

127. This base figure of HK$21,509 so arrived at, submitted by Father’s Counsel at paragraph 37 of his written closing submissions, would be the expenses for both the Mother and N combined together.

128. Father’s Counsel’s then, at paragraph 39 of his written closing submissions, further submitted that a fair and reasonable apportionment would be 2:1 for Mother : N in terms of the combined expenses of HK$21,509 he so worked out. Such apportionment rests upon the fact that N spends ‘half-time’ with the Mother. By such 2:1 ratio, N’s expenses would be around HK$7,169 a month (HK$21,509 x 1/3). This amount of HK$7,169 compares fairly and reasonably with the Father’s estimate and in his Open Proposals of HK$7,533 a month. The figure of HK$7,533 a month should be used as a base figure for calculating the Mother’s claim for 62 months reimbursement claim subject to some other additions and deductions. He thus worked out the outstanding amount of reimbursement to be HK$89,477 (see paragraphs 46 to 49 of Counsel’s written closing submission).

129. In all cases involving children, I would say there is no hard and fast rule as to how a child’s expenses should be worked out or any rigid formula to adhere to or any scientific methodology of calculation to be adopted. There is always a degree of flexibility and reasonableness within the Court’s discretion. A child’s expenses are made up of different items also at variable amounts in different cases depending on the child’s needs of which age is one of the factors. It may be over simplistic if the Court is to apply any rigid straight line theoretical approach to determine a child’s expenses.

130. There was challenge from the Father’s Counsel as to the figures provided by the Mother did not sit together happily, leaving the so-called ‘magical money’ unexplained (see paragraph 124 above). Mother’s evidence as to the loans from her father and her father’s business was heatedly challenged by Father’s Counsel as ‘soft loans’ for lack of any obligation of the Mother to repay. In fact, on the Mother’s evidence under cross examination, she confirmed and agreed that it had never been repaid so far but she then said there would be repayment after these proceedings. I believe the Mother was meant to say being successful in her claim of reimbursement after these proceedings.

131. I noted there is no documentary evidence from the Mother on the alleged loans due to her father and/or her father’s business. Her father had not been arranged as a witness to testify on this issue either. It is the Mother’s case that the reason for having to obtain financial assistance from her father and/or father’s business, leaving aside for the time being her need to rely on loans from her own credit cards, is because of the need to maintain N due to insufficient maintenance from the Father, of which had been further reduced to HK$5,000 in 2012.

132. In relation to the Mother’s claim for reimbursement of N’s expenses already incurred, the proper question to be considered is not the nature or source of funds obtained by the Mother, be it a loan recognised by law, a ‘soft loan’ or even a gift of moneys out of parental love and affection. What is in real issue is whether there are actually liabilities or expenses reasonably incurred by the Mother for N from May 2009 to June 2014 (62 months), then using the statutory wordings of Section 10(2)(a) of the GMO, ‘…… for the purposes of …………. maintaining the minor before the making of the order……..as the court thinks reasonable having regard to the means of that parent’ of which the Father is now obliged to repay.

133. It is useful to refer to the Father’s Open Proposals set out in his lawyers’ letter dated 10 June 2014 (at pages 266 to 268 of the Correspondence Bundle) on the Mother’s claim for reimbursement which are as follows :-

“5. Our client is not in a position to consider your client’s request for reimbursements of the various expenses as listed out in your client’s open proposals as your client failed to provide adequate documentary evidence to support her case nor the breakdown and calculation thereof. To clarify, our client has in fact paid a total sum of HK$462,951 instead of HK$426,951 as alleged for the period from May 2009 to August 2013. Please refer to exhibit CCMJ-24 of our client’s 24^th affirmation.”

134. Although there is no sufficient evidence to ground a finding of loan owed by the Mother to her father or the father’s business, I believe the Mother’s testimonies and accept her evidence to be more probable than not that she had incurred liabilities and expenses for maintaining N during the said 62 months. The Father had not been able to show or was it the Father’s position in his Open Proposals in June 2014 or his case throughout this trial that the 2 sums of HK$426,951 and HK$98,000 he paid were already adequate and enough to meet all of N’s expenses for the 62 months.

135. It is undisputed that receipts and documents for the 62 months period had already been provided to the Father although lack completeness. However, the receipts are already quite substantial in quantity as can be seen from the photocopies produced for this trial (see pages 160 to 261 of Correspondence Bundle; pages 1021 to 1076 of the Exhibits Bundle) although they did not add up to every single dollar and cents of the amount claimed for reimbursement. Mother’s Counsel invited this Court to consider what would be the reasonable amount.

136. I believe the Mother had been doing her very best to keep up with the receipts. On each of the pages from 160 to 261 of the Correspondence Bundle, there are 2, 3, 4 or more receipts put together and then photocopied as 1 page apparently for green reasons. Take just a few examples, the receipts can be as petty as HK$13 for buying bread in A-1 Bakery inside ‘Taste’ supermarket on 5 August 2010 (at page 160), a pack of strawberries for HK$24.80 on 5 April 2010 (at page 163), a pack of Tofu for HK$5.80 at Park’N shop on 11 October 2009 (at page 202), 2 Muffins for HK$20 at Park’N Shop on 23 September 2009 (at page 202), a pack of菜心 for HK$12.20 on 25 April 2010 (at page 203) so on and so forth. There are also receipts of comparatively larger amount, say for instance, of medical fees of Dr. Cheng Chun Fai at $1,510 (at page 252).

137. In answering the Father’s Questionnaire, the Mother had also provided various other receipts (see pages 1021 to 1076 of Exhibits Bundle) where, over and again, receipts of petty sums can be seen. Examples such as receipts from fresh food market stall 名鮮店 for buying chicken (雞) at HK$32 (at page 1022), from fresh food market stall成安時果 for buying apples (蘋果) for $20 (at page 1037), from fresh fruit market stall 四季蔬菜 for buying eggplant (茄子) for $8, so on and so forth.

138. Amongst the receipts produced by the Mother, there are also other receipts for purchase of various different items of food and groceries adding up to a few hundred dollars. For the items shown on these receipts, I believe those items were not for the exclusive consumption of N but by the Mother’s maiden family of which N would have taken part at the meals. In that case, how are we going to carve out how many taels out of a catty of菜心was eaten by N ? This is an impossible task.

139. In my decision, it is plainly impossible to split or divide which item out of these purchases was consumed by N for which the Father should pay for it. In that case how could the Mother in any position to provide ‘….breakdown and calculation……’ to reply to the Father’s Open Proposals I cited above ?

140. Faced with such a scenario, what the Court would do is to adopt a broad brush approach in assessing N’s portion. The best and fairest way, in my decision, is to give a discount over the expenses claimed by the Mother for reflecting items not consumed by N, then deduct the 2 sums of HK$426,951 and HK$98,000 already paid by the Father from the discounted figure to arrive at the best estimate for N’s expenses for the 62 months. This is what I have done in the following paragraphs.

141. I wish to add that given the lengthy period of time, even if a particular amount for a particular month was found to be N’s expenses, it does not necessary follow it was the same the following month or throughout the entire 62 months. N was born in November 2008. The 62 months stretched from May 2009 (when N was only 6 months old) up until June 2014 (when N was 5 years and 7 months old). There are different needs in terms of food and expenses as N grows up day by day from 6 months to 5 years and 7 months within the 62 months period.

142. Having said and for assessing N’s expenses for the 62 months period, I will apply a 20% discount on the total amount which the Mother alleged had been spent on N from her own moneys and from the amount of indebtedness disclosed in her Form E, that is to say, 80% of the summation of HK$203,000 and HK$753,002 (that is, totalling HK$956,002) to be my assessment of N’s reimbursement sum which come up with the figure of HK$764,801.60 (that is, HK$956,002 x 80/100 = HK$764,801.60).

143. Then by offsetting the Father’s 2 payments of HK$426,951 and HK$98,000 (that is, totalling HK$524,951) against this sum of HK$764,801.60 and arrive at the net sum (my emphasis) for N’s reimbursement, of HK$239,850.60 (that is, HK$764,801.60 – HK$426,951 – HK$98,000 = HK$239,850.60).

144. The last question on this item of reimbursement is whether the aforesaid 3 sums of HK$83,626, HK$39,920 and HK$23,836 (see paragraph 126 above) have to be deducted from this net sum for N’s reimbursement for the reason that they were covered either by the terms of the Father’s Undertaking or medical coverage. The answer must be considered by reference to the Order dated 12 June 2014.

The Order dated 12 June 2014

145. This Order embodied the Father’s 2 Undertakings and was drafted by the Mother’s solicitors ‘having the carriage ofthe order’ (see 42//5/4 of HKCP 2015), perfected and sealed on 16 July 2014. There is no question that it had been duly served upon the Father’s lawyers.

146. Since the Order has been perfected and sealed, it is trite that this Court is now functus officio on the terms therein (see Andayani v.Chan Oi Ling [2000] 4 HKC 233). If any party considers that an order not in accordance with the order as pronounced, he should apply to the court to vary the order as soon as possible so as to prevent the order from being passed and entered and made final (Re Swire (1885) 30 Ch.D, 239).

147. In my decision, the terms of the Undertakings are clear in context and coverage, it refers to “all school fees, school bus, school uniform, school books and stationery…….” and “all reasonable costs of extra-curricular activities ……no exceed HK$4,000 per month….” without any reference or restrictions as to any period of time for it to apply, whether in prospective, that is to take effect from and since the date of the Undertakings, or retrospective, that is to also cover expenses before the date of the Undertakings.

148. In my decision, the Father’s 2 Undertakings apply to expenses before and after the date when the Undertakings were given. That is to say, they also covered those expenses under the Mother’s claim for reimbursements within the 62 months. There are 2 reasons for this finding. First, the Undertakings contained the word “all” which could not be taken to mean only expenses spent on and after the date of the Undertakings. Secondly, the 12 June 2014 was the very first day of the trial of the Mother’s claim which included reimbursement of these expenses that had been spent within the 62 months prior to the trial. The 2 Undertakings were included (as drafted by the Mother’s lawyers) as pre-emptive clauses before the order for adjournment of the trial. Without any express limitation as to the time period, this could not be taken to mean it only covers expenses spent on and after the date of the Undertakings but not before.

149. It is my decision that the 2 sums of HK$83,626 for Extra-Curricular Activities expenses and HK$39,920 for School Bus (spent and incurred during the 62 months between May 2009 and June 2014) both fall within the terms of the Father’s 2 Undertakings given on 12 June 2014. Accordingly, subject to the Father’s full compliance of the terms of his Undertakings, these 2 sums would have to be deducted from the sum of HK$239,850.60 (paragraph 143 above).

150. The medical expenses of HK$23,836 for N fall outside the Father’s Undertakings. Given the lapse of time since these expenses were incurred, they are now no longer recoverable from the Father’s employer’s medical insurance. In Father’s Counsel’s written closing submissions on calculation of outstanding reimbursement figure, it was said that the Mother had belatedly provided the Father with documentary proof. It is now too late to claim from medical insurers and the Father would have to pay from his own pocket (paragraph 48(3) of Counsel’s submissions). The Father’s Counsel, with this sum of HK$23,836 added in as money payable by the Father, then came up with the total sum of HK$89,477 as the total outstanding amount. The fact that the Father had not produced evidence on his assertion of the Mother belatedly gave him the receipts and the inclusion of such sum as part of the amount which need to be reimbursed, it is my decision that such medical expenses should not be deducted from the sum of HK$239,850.60 (paragraph 143 above).

151. Based on the above, the net amount of reimbursement to be paid by the Father to the Mother, subject to full reimbursement of the Extra-Curricular Activities expenses and School Bus expenses, is HK$140,140.61 (that is HK$239,850.61 – HK$83,626 – HK$39,920 + HK$23,836 = HK$140,140.61).

The Father’s 27^th Affirmation dated 13 January 2015

152. Without obtaining leave of the Court in advance, the Father sought to update his latest financial position since he filed his Form E in February 2014 by filing his 27^th Affirmation.

153. The Father claimed his assets had dropped by about 2 million odd dollars within the past 11 months from around HK$22.7 million to around HK$20.7 million notwithstanding some of his asset values such as stocks and securities and the One Silver Sea property had increased.

154. The reasons put forward for the drop in asset values include having to pay his own legal costs but still with an outstanding sum of HK$449,735 as at 9 January 2014; he had to contribute to his father’s medical expenses and care expenses including a domestic helper, having to share HK$19,800 per month towards his father’s medical expenses with his other siblings; utilities expenses for the One Silver Sea property as he had moved in there in May 2014; having to reserve HK$500,000 to purchase Individual Nomination Right of ESF for N which will be payable later this year; having to reserve a respectable amount of funds for N’s future education, tuition, physical health, care and mental health care, possible overseas medical treatment, having to spend approximately HK$4,000 a month for counselling N’s anxiety issue.

155. Besides, there are medical costs for his own healthcare as he expected to have to purchase health insurance after his current employment was terminated. He anticipated such costs to be in the region of HK$40,000.

156. At paragraph 17 of this 27^th Affirmation, he deposed he had been receiving treatment since May 2012 for major depressive disorder, anxiety and insomnia. He had incurred treatment costs of HK$45,612 from May 2014 to January 2015 for his depression. The treatment costs receipts were produced under Exhibit No.”CCMJ27-4”. A letter from his treating doctor was produced under Exhibit “CCMJ27-6”.

157. In my decision, a parent’s liability or potential liability to pay his own legal fees for privately engaged lawyers, in my view, is not a factor which the Court should have much regard to when considering the means of the paying parent under the provisions of the GMO. Otherwise, a parent under legal obligation to maintain his or her child could, when being claimed in a court of law, engage the most expensive legal team and argue his or her resources are being used up for or exhausted by the legal fees in the subject proceedings where the child’s maintenance is at stake. In the present case, it is the Father’s own choice and preference to have lawyers and Counsels to represent him for the past 5 years since he issued the Originating Summons back in 2010. In my decision, this is an item of expenses of which the maintenance of the child in question should not be giving way to.

158. There is no other evidence to substantiate the Father’s assertion of having to contribute to his father’s medical expenses and care expenses including a domestic helper, having to share HK$19,800 per month towards his father’s medical expenses with his other siblings, apart from his own assertions. None of his siblings or parents were arranged to testify on such issue. Therefore, I need to consider from all the circumstances objectively and on balance of all probabilities, to determine his credentials as to whether such additional expenses do exist.

159. Throughout these proceedings, there has never been any evidence adduced as to the Father’s parents requires financial assistance. The Father’s parents’ financial situation seems quite wealthy instead. To the very least and leaving aside the asset value of the Kowloon Tong property beneficially owned by the Father’s parents, it is the Father’s case that a sum of HK$32 million in cash once kept in his personal account with the Bank of China is in fact his mother’s money. He simply kept it on trust for his mother. Such evidence can be found in the Affirmation of the Father’s mother, Madam Wong xxx filed in these proceedings. The Father had also arranged another Madam Wong, an officer from the Bank of China, to testify upon such issue on the last day of trial. This piece of evidence alone, in my view, justifiably displaces any suggestion of financial needs of the Father’s parents.

160. I noted it is the Father’s evidence that he was making the contribution towards the medical costs of his elderly father for filial reasons (there is no such finding by this Court) rather than parents’ financial needs. Since the Father invited the Court to note these contributions when assessing his financial abilities to maintain N, it is my decision that this would be a relevant factor for the Court to take into account if and only if (my emphasis) there are financial needs of the parents which the Father must bear or share. Otherwise, such contribution would not be a relevant factor for the Court when deciding the parent’s means to provide for his or her child’s maintenance.

161. Based upon the finding of this Court that the One Silver Sea property is not the Father’s residence or only place of residence, coupled with the fact that the utilities expenses for the Father (1 person), such as gas, water, electricity etc in all circumstances would be minimal, I do not believe such utilities payment for the One Silver Sea property would affect the Father’s means to support N. The other expenses such as government rent, rates, management fees and also mortgage instalments of the One Silver Sea property are payable anyway whether or not the Father is residing there. These other expenses are not something ‘new’ and in fact had all along been paid by the Father ever since he purchased the One Silver Sea property in 2007. How could this be counted as a factor for change of the Father’s financial means and resources in the past 11 months since he filed the Form E in February 2014?

162. The need to purchase health insurance and reserve funds for N as the Father had so deposed is, in my view, neither here nor there in so far as the present application is concerned. Reason being that these are not accrued liabilities due and payable. It is, in my decision, incorrect to take into account of future and not yet existing or contingent liabilities, such as having to ‘hold up’ funds or to reserve moneys even for designated objectives and purposes, when the Court is required to consider a parent’s means to meet imminent (my emphasis) maintenance payments or to reimburse the other parent for past accrued (my emphasis) maintenance liabilities of his or her child. Such reason could not take precedence over a child’s right to be adequately maintained afforded by the law. It also could not prejudice the other parent’s right to seek reimbursement under the statutory provisions. I need to clarify that in forming such a view, I do not mean reserving funds for the child’s future use is not in the child’s best interests. However, this involves an element of ‘wait and see’ whether those funds so reserved or being held up are really needed for the child. The same applies to the need to purchase health insurance which only arises when the termination actually materialise. I would also add there is no evidence to support the Father’s case of the ‘would-be’ termination of employment except his own assertion.

163. The receipts for the Father’s treatment costs of HK$45,612 are contained in 10 receipts issued by Dr. Gabriel B.K. Hung. There is also a letter by Dr. Hung dated 7 January 2015.

164. In Dr. Hung’s letter, there is no reference to the anticipated or likely treatment costs for the Father. There is also no reference to any likely period of treatment or expected recovery time. Dr. Hung has diagnosed the Father to have suffered from, quoting the words of the doctor, ‘significant anxiety symptoms, being on multiple psychiatric medications for treatment of depression, anxiety andinsomnia’. It appears to me extremely odd and unusual that the doctor also stated in the letter that he has no reservation regarding the Father’s fitness to take care of N and his psychiatric condition has no impact on the Father’s ability. In the absence of further medical evidence or elaboration from Dr. Hung, I am in no position to accept the ‘face value’ of the letter and, in particular, the spending of those sums as per the 10 receipts to be sufficient to the extent of affecting the Father’s financial means and resources to financially support N.

165. At paragraph 14 of the 27^th Affirmation, the Father had not disclosed nor deposed further in any detail as to whether the treatment costs of HK$45,612 spent are recoverable or had already been recovered from the medical insurance scheme of his current employer. If so, such expenses would not be affecting his financial means. For the fact that the Father at paragraph 4.2 of his Form E deposed to medical expenses (if not covered by medical insurance provided by employer) of HK$500, I believe such treatment costs would have been covered by the employer’s medical insurance scheme. If these expenses are not recoverable and had to be paid by the Father himself, as I said above, there is nonetheless no evidence how much more and for how long the Father would have to pay these treatment costs which would affect his financial means and resources. At paragraph 4.4 of the Form E dated 18 February 2014 (Anticipated Future Expenses), the Father had not stated there are any such psychiatric treatment costs for himself. If such treatment costs are on an on-going basis, I believe he would have said so in paragraph 4.4 since he deposed having received treatment on his psychiatric problems since May 2012 (see paragraph 17 of his 24^th Affirmation).

166. Nonetheless, I wish to add that such treatment costs of HK$45,612 only represents 0.228 % of his latest net assets value of HK$20 million, or, even to take away the asset value of the One Silver Sea property of HK$13 million, only represents 0.57% of his latest net cash value on hand of around HK$8 million, if the Father really had to pay it out of his own pocket.

167. I also wish to add that Dr. Hung in his letter said he started treating the Father in May 2014. The Father himself deposed at paragraph 17 that he had been receiving treatment since May 2012 for major depressive disorder, anxiety and insomnia. Dr. Hung described the Father’s condition as ‘significant anxiety symptoms, being on multiple psychiatric medications for treatment of depression, anxiety andinsomnia’. The descriptive wordings of the diagnosis seem to suggest some degree of seriousness which had occurred for some time. This tally with the Father’s own evidence of having been receiving treatment of his psychiatric problems since May 2012. In that case, why there is no medical reports or receipts for the treatment between 2012 and 2014 prior to the Father seeing Dr. Hung ? More importantly, I noted that at paragraph 1.12 of his Form E dated 18 February 2014, he put in the word ‘Nil’ for himself when he was required to state with full details whether he has any physical or mental disability. At the same paragraph 1.12 he had, however, chosen to state quite a lot of physical disability of N. Had the Father’s psychiatric problems started in May 2012 as stated in paragraph 17 of his 24^th Affirmation, he should not have stated ‘Nil’ in the Form E in February 2014.

168. Given the fact that the Father is conversant with English and his case had all along been handled by reputable legal firms with extensive matrimonial practice and experienced Counsels, it strikes me with great surprise if this was any kind of error or oversight on the part of those handling the drafting. We are dealing with 2 different documents, the Form E and 24^th Affirmation, affirmed on 2 different dates, namely 18 February 2014 and 28 February 2014 respectively. It needs very high probability of coincidence for such kind of error or oversight to occur.

169. The Father also produced as Exhibit “CCMJ27-7” an Attendance Certificate issued by Evangel Hospital to certify his attendance on 19 April 2014 for suffering from Insomnia. Such certificate is not, in my view, convincing evidence so as to affect his financial means and resources to support N.

Father’s Employment Contract

170. It is the Father’s evidence that his monthly salary was adjusted from HK$100,000 to HK$70,000 since October 2010. He had so far only produced a 6-page Employment Contract dated January 2008 for the HK$100,000 monthly salary (at pages 163 to 168 of Exhibits Bundle). He testified at trial that there was no written Employment Contract signed with his current employer for the switch over to part time work earning HK$70,000 a month. Although this is not an issue heatedly contested by the Mother, it again appears odd and unusual to me that a Hong Kong listed company not to have any written contract or memorandum to record such change when there was a very well drafted and comprehensive 6-page Employment Contract in the first place.

The Beijing property

171. The Father is also one of the co-owner of a property in Beijing since 2007 with one of his friends through a corporate vehicle MB Limited.

172. According to the Father’s Form E (Annexure A) dated 18 February 2014 which is over a year ago (at page 189 of the Pleadings Bundle), the Father estimated the market value was around HK$9.21 million. There was no mortgage on this property nor, according to the Father’s evidence a trial, had it been rented out at any time. The property was just left there since it was purchased. The down payment at that time was about RMB 3.06 million or HK$3.09 million (the Father took an exchange rate of RMB: HK at 1: 1.01 only).

173. Taking the current exchange rate which is around RMB: HK at 1: 1.25, the current market value would definitely be more than HK9.21 million. Moreover, I took judicial notice that since February 2014, property prices in Hong Kong and major cities like Beijing, Shanghai in Mainland China had arisen quite a lot. The current market value (taking into account the rise in property prices and also the 25% or so increase in exchange rates of RMB when compared with the Father’s exchange rate of RMB: HK at 1: 1.01 in the Form E), I believe this property might worth around HK$10 million or even more at the date of this trial.

174. In my view, this is an asset of which the Father owns 50% interest at a present value of about HK$5 million if not more (50% of HK$10 million or more) idling around the corner for the past 8 years which should also be taken into account of when assessing the Father’s financial means and resources.

175. Although the Father gave an explanation for the property to be left unrented for various reasons, such as the complexities for renting out in Mainland China and other fiscal laws and regulations in the PRC, he had not come up with any evidence in support of such explanation. It is fair and reasonable to say the Father did have the financial ability to acquire this property and the further financial ability to let the property yielding zero income since 2007.

The Father’s mother’s Affirmation

176. Since no issue was taken by the Mother’s Counsel as to the sum of HK$32 million transferred back from the Father to his mother Madam Wong, there is no finding of this Court as to the contents of Madam Wong’s Affirmation dated 8 June 2014.

The evidence of the Bank Officer Madam Wong

177. The evidence of the bank officer Madam Wong relates to the sum of HK$32 million. As said, since no issue was taken by the Mother’s Counsel at trial that such sum actually belongs to the Father, there will be no finding of this Court as to the credentials of this witness’s testimonies.

The Father’s overall financial means

178. Given careful consideration and assessment of all the above, I come to the conclusion that the Father’s overall financial means and resources are sufficient to maintain the child N at the level of living standard comparable to the Father’s present living standard. It is also my finding that it is in N’s best interests to have such standard of living.

179. I have also considered Father’s Counsel’s submission of the need to take into account the percentage of access time (that is, 44% with Father) when considering Father’s liabilities to meet N’s expenses (at paragraphs 69 and 108 above). Given this Court’s finding on the Father’s financial means and resources, any expenses to be incurred by the Father during his 44% access time would not, in my view, affect the Father’s means to support N to the extent as I have so decided in this Judgment.

Conclusion

180. For all the reasons above, there will be financial provisions for the child N, subject to the Legal Aid First Charge (if any), as follows :-

(a) The property situated at One Silver Sea under the sole name of the Father be settled on trust for the use of N and her primary carer, the Mother, at nil consideration until N reaches the age of 18 or ceases full time education, whichever is the later, with the reversion to the Father (as per paragraph 72 above);

(b)Subject to full reimbursements by the Father to the Mother as per the Undertakings dated 12 June 2014, the Father do pay to the Mother the sum of HK$140,140.61 as reimbursement of expenses incurred for N for the period from May 2009 to June 2014 within 14 days from the date of this Judgment (as per paragraph 151 above);

(c) Subject to any payments already made under the Interim Maintenance Order dated 7 November 2013, the Father do pay to the Mother periodical payments for the maintenance of N at the rate of HK$13,726 per month commencing from 1 July 2014 and thereafter on or before the 1^st day of each succeeding month until N reaches the age of 18 or ceases full time education, whichever is the later (as per paragraph 107 above);

(d)Any arrears or shortfall of the periodical payments for the maintenance of N under paragraph (c) to be paid within 14 days from the date of this Judgment;

(e) The Father do pay to the Mother carer’s allowance at the rate of HK$10,000 a month commencing from 25 October 2013 until further Order (as per paragraph 117 above);

(f) The carer’s allowance for the Mother under (e) above to be paid within 14 days from the date of this Judgment;

(g) The Father’s Undertakings dated 12 June 2014 do stand until further Order;

(h)Extra-Curricular Activities expenses for N arranged by the Mother in excess of HK$4,000 to be equally shared by the Father and the Mother hereto (see paragraph 99 above);

(i) The interim maintenance order dated 7 November 2013 be ceased forthwith and all payments made on and after 1 July 2014 be set off against payments due and payable under paragraph (c) hereinabove;

(j) There be liberty to apply for implementation of this Judgment.

Costs

181. Given the outcome of this case and the latest Open Proposals of the Father, I see no reason or any basis to depart from the normal rule for costs to follow the event.

182. I decided that the Father should pay all the costs of the Mother’s Summons dated 25 October 2013 including all costs reserved, to be taxed if not agreed, on party and party basis. The Mother’s own costs be taxed in accordance with Legal Aid Regulations.

183. I also grant Certificate for Counsel.

184. This is a costs order nisi which will become absolute if no application to vary the same within 14 days from the date of this Judgment.

185. Last but not least, I wish to thank Counsels for the assistance to the Court.

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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D E C I S I O N
(Filing of Medical Reports)

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Introduction

1.   This is the Applicant’s Summons dated 4 July 2014 (hereinafter called “Medical reports summons”) seeking leave of this Court for the filing of the following medical reports :-

(a)  Medical report of Dr. Cheung Ho Man dated 11 June 2012;

(b)  Medical report of Dr. Stanley Lam dated 2 July 2013; and

(c)  Medical report of Dr. Andrew Ip dated 8 July 2013

(hereinafter collectively called “the 3 medical reports”).  I will refer to each of the 3 medical reports by the surname of the doctor, namely, Dr. Cheung, Dr. Lam and Dr. Ip respectively. 

2.   At a hearing on 2 July 2014, upon the undertaking of the Applicant’s solicitors to issue the Medical reports summons by 4:00 p.m. on 4 July 2014, it was ordered inter alia that the Applicant’s supporting affirmation will be his 19^th Affirmation, the Affirmation in reply will be his 21^st Affirmation and the Respondent’s Affidavit in opposition will be her 6^th Affidavit, all of which had been filed prior to the issuance of the Medical reports summons.  Reason for the filing of Affirmations before the Summons was issued was set out in paragraph 11 below.

Background

3.   The Applicant is the Father and the Respondent is the Mother of a child (hereinafter called “N”) born in November 2008 out of the parties’ cohabitation.  These proceedings were commenced back in March 2010 when N was only aged 1 year and 4 months.  At present, N is aged 6 years old.  In the past few years, 6 Judgments were delivered (4 from this Court and 2 from the High Court).  This Judgment will be the 7^th Judgment where disputes between the parties seem nowhere close to the end.

4.   By way of background, this Court handed down the first Judgment back on 5 October 2012 that custody, care and control of the child N be given to the Respondent (Mother) after a 16-day trial.  It was decided in that Judgment that the Applicant (Father) would have general access and details of which was adjourned for further hearing with 1 hour reserved.  Without proceeding with the general access under the Judgment, the Applicant lodged his application for leave to appeal which was first dismissed by this Court and then further dismissed by the High Court under HCMP No.178 of 2013 on 25 June 2013.

5.   Whilst the issue of general access under the terms of this Court’s Judgment in October 2012 had yet to be finalised, the Applicant issued a Summons for variation of custody, care and control on 5 November 2013 (which is 5 months after the High Court refusal of his leave to appeal).  The present Medical reports summons was issued, as stated in paragraph 1 therein, for the purpose of the Summons dated 5 November 2013 (which is the summons for variation of custody, care and control).  The 2^nd Pre-Trial Review of the Applicant’s summons for variation has yet to be fixed at the time of this hearing.

6.   By way of further background, there are contemporaneous proceedings (whilst the Applicant’s variation of custody application is down the pipeline) by the Respondent seeking financial reliefs for the support of the child N, the trial of which had already started in August this year but adjourned part-heard and re-fixed to January 2015.  There had been an application by the Applicant for leave to issue a subpoena at the eleventh-hour before the Respondent’s financial relief trial in August started.  Upon this Court’s refusal, the Applicant took the matter to the Court of Appeal (see CACVNo.152 of 2014) where this Court’s refusal of leave to issue subpoena was set aside.  Upon the comments of the Court of Appeal, parties have now provided case management timetable for the continuation of the financial relief trial which had now been re-fixed to January 2015.

Summons dated 17 October 2013

7.   On 17 October 2013, the Applicant issued a Summons which reads, inter alia :-

“(1)  Leave be grant to file medical reports in relation to N’s leg deformities problems in these proceedings including the respective medical reports of Dr. Stanley Lam dated 2 July 2013 and Dr. Andrew Ip dated 8 July 2013.

(2)  ………..”

Summons dated 5 November 2013

8.   On 5 November 2013, the Applicant issued another Summons and returnable on 7 November 2013 (that is, 2 days later) which reads, inter alia :-

“(1)  ……..

(2)  ……..

(3)  ……..

(4)  ……..

(5)  Leave be grant to file medical reports in relation to N’s leg deformities problems for the purpose of this Summons including the respective medical reports of Dr. Cheung Ho Man dated 11 June 2012, Dr. Stanley Lam dated 2 July 2013 and Dr. Andrew Ip dated 8 July 2013.

(6)  …….

(7)  …….”

9.   On the return day of 7 November 2013, this Court granted an Order which reads, inter alia :-

“(1)  …….

(2)  Parties to submit joint statement on Meeting of Experts within 21 days of this Order (i.e. on or before 28^th November 2013); and

(3)  …….”

10.   A Joint Meeting of experts between Dr. Andrew Ip (nominated by the Applicant) and Dr. Li Yun Hoi (nominated by the Respondent) was held on 20 November 2013.  The Joint Statement by the 2 experts was filed on 11 March 2014 (hereinafter called “the Experts’ Joint Statement”).

11.   Notwithstanding the aforesaid 2 Summonses had been disposed of by way of this Court’s directions on Joint Meeting of experts under Order 38, r.38 of the RHC, and the fact that the Joint Meeting was actually held and the Joint Statement had been filed back in March 2014, Miss Elsie Liu of Messrs. Haldanes at the Pre-Trial Review hearing on 2 July 2014 (which is about some 8 months later) re-visited the question of the filing of the 3 medical reports stated in the aforesaid Summons dated 5 November 2013.  Upon further clarification with Miss Liu there and then at the hearing on their position, directions were then given for a proper Summons to be issued by 4 p.m. on 4 July 2014, which is the present Medical reports summons.

12.   At this hearing, the Applicant was represented by Counsel Miss Mairead Rattigan.  The Respondent was represented by Counsel Mr. Kevin Li on the instructions of legal aid. 

The Applicable law and legal principles

13.   It is trite that leave must first be obtained from the Court if a party wishes to adduce expert evidence [see Order 38, r.36 of the Rules of the High Court “RHC”].  Further, even if leave is granted, there are various pre-requisites for the expert to comply with before his/her evidence can be adduced as admissible evidence, such as the expert’s statement of truth (see Order 38, r.37A), expert’s declaration of duty to court (see Order 38, r.37C).  Moreover, there are provisions for meeting of experts (see Order 38, r.38) where there are different experts holding divergent views on issues.   All these are under Part IV (Expert Evidence) of Order 38 of the RHC.

14.   Practice Direction 15.12 (Matrimonial Proceedings and Family Proceedings) applies to the High Court and Family Court (see Part A paragraph 1 therein).  Part G paragraph 8 reinstates the case management powers of the court under Order 1B having regard to the underlying objectives of the Civil Justice Reform (“CJR”) under Order 1A.  Part G referred to the new measures under the Civil Justice Reform setting out various Orders of the RHC of general applicability to Family Court; where Part IV of Order 38, Part IV – Expert evidence is one of them (see paragraph 9 (6)).  Part K paragraph 20 expressly sets out the applicability of Expert Evidence under Order 38 of RHC to contested matrimonial/family proceedings where expert needs to be instructed subject to those directions set out in Part K, namely, paragraphs 21 and 22.    

15.   I have not been assisted by Counsels as to any local case law which I may consider in deciding the present application save and except the English case of J v. C by Miss Rattigan in her written submissions, citing one passage from the Judgment of Lord MacDermott, as to how the child’s welfare as the first and paramount consideration was to be construed. 

The Applicant’s position