Case Detail

TPF v. W

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[2019] HKFC 172-EN-2019-07-02

TPF v. W

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FCMC 16179 / 2011

[2019] HKFC 172

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16179 OF 2011

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

BETWEEN
	TPF	Petitioner
and
	W	Respondent

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

Coram:

Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Written Submissions:	12 June 2019
Date of Ruling:	2 July 2019 (paper disposal)

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RULING
(Costs)

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Introduction

1. In my judgment dated the 16 January 2019, on the wife’s application to vary the maintenance for the child of the family, V, I made an order nisi to be made absolute in 14 days time that the Petitioner father do pay the Respondent’s costs to be taxed on a party and party basis if not agreed. In doing so I made the following comments:

Costs
34. The mother seemingly had no option but to issue this summons, given the father’s rather uncompromising stance. Given that, and notwithstanding the fact that both parties are representing themselves, I shall make an order nisi to be made absolute in 14 days time, that the father do pay the mother’s costs of and arising out of her summons on maintenance dated the 6 June 2017, to be taxed if not agreed on a party and party basis.

2. On the 25 January 2019 the husband issued a summons asking that the order nisi be varied to no order as to costs. In his submission on costs dated the 21 June 2019 he highlights the mother’s apparent failures with respect to the litigation process. He accuses her inter alia of not making full and frank disclosure of her finances and of refusing to mediate. He does not however refer to his own short comings.

The issue

3. Thus there is only one issue to be determined, namely what is the appropriate cost order to be made in this case, given the findings made by me in the judgment dated the 16 January 2019.

The judgment dated the 16 January 2019

4. The case before me was essentially an application by the Respondent mother to vary the maintenance payments that had been agreed when the child of the family, V, was living with the father. The original court order was dated the 29 March 2012 and was based on a mediated agreement. On the 2 November 2017 the court made an order varying the original consent order on the child’s arrangement to reflect the fact that V had begun living with the mother. Thus common sense should have dictated that the original financial order would need to be amended to reflect the change in circumstance. Instead the father pursued the mother for non payment of maintenance, even though V was not living with him (see paragraph 6 of the judgment). This was both unnecessary and aggressive.

5. At the end of the day I accepted the mother’s primary position that each side should be responsible for 50% of V’s costs. In general, I also accepted the mother’s estimates for costs and commented that the father’s estimates seemed very much on the low side. Although the mother had sought HK$10,000 per month and my order was for HK$6,600 per month, it would be fair to say that I came down more in favour of her than the father.

The law

6. The law in relation to costs is well settled and not in dispute. It has been said that the issue of costs lies in the discretion of the court and that costs are normally expected to follow the event. It is also accepted that this presumption is more easily displaced in family proceedings than in others. (See for example, Z v X & C, CACV 166/2011). Reference may also be made to HK v BD, CACV 252 of 2009 unreported where the Hon Mr Justice Hartmann (as he then was) said as follows:

“78. In family matters, 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 issues 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.
(Emphasis added)

With respect I agree.

7. The starting point referred to above in the leading case of Gojkovic v Gojkovic [1992] Fam 40, states as follows:

“There are many reasons which may affect the court in considering costs, such as culpability in the conduct of the litigation: for instance (as I have already indicated earlier) material non-disclosure of documents. Delay or excessive zeal in seeking disclosure are other examples. The absence of an offer or of a counter-offer may well be reflected in costs – or an offer made too late to be effective. ... It would, however, be inappropriate, and indeed unhelpful, to seek to enumerate and possibly be thought to constrain in any way, that wide exercise of discretion. But the starting point in a case where there has been an offer is that, prima facie, if the application receives no more or less than the offer made, she/he is at risk not only of not being awarded costs, but also of paying the costs of the other party after communication of the offer and a reasonable time to consider it. That seems clear from the decided cases and is in accord with the Rules of the Supreme Court and the County Court Rules 1981 requiring the court to have regard to the offer. I cannot, for my part, see why there is any difference in principle between the position of a party who fails to obtain an order equal to the offer made and pays the costs, and a party who fails by the offer to meet the award made by the court. In the latter case prima facie costs should follow the event, as they would do in a payment into court, with the proviso that other factors in the Family Division may alter that prima facie position”.

8. This general approach has been routinely adopted in Hong Kong. It should also be noted that this case was in essence a financial application to vary maintenance for a child, which was considered de novo. Thus the starting point that costs should follow the event is less easily displaced than in other types of family related litigation.

Conclusion

9. Given the above, it seems to me that the correct order is that order nisi shall stand. Further, given that the Petitioner has failed in this application it follows that the Petitioner do pay to the Respondent the costs of and arising out of this application, also on a party and party basis to be taxed if not agreed.

	(Sharon D. MELLOY)
	District Judge

The Petitioner and the Respondent both appeared in person

FCMC 16179 / 2011

[2019] HKFC 19

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16179 OF 2011

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

BETWEEN
	TPF	Petitioner
and
	W	Respondent

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

Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Dates of Hearing: 2 August and 16 October 2018

Dates of Closing Written submissions: 13 and 16 November 2018

Date of Judgment: 16 January 2019

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

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Introduction

1. This is an application by a Respondent mother for maintenance for the only child of the family, a teenage girl called V, who is now aged 15 years.

2. The main issue concerns the level of maintenance for V. Originally V had been living with the Petitioner father and the mother had been paying the father HK$5,100 per month for her maintenance. The father had sole custody and care and control of V at the time. These terms are set out in the court order dated the 29 March 2012 which states inter alia as follows:

1. that custody, care and control of the child of the family, namely V be granted to the Petitioner with reasonable access to the Respondent.
…
2. the Respondent do pay to the Petitioner the sum of HK$5,100.00 per month as the periodical maintenance for the said Child by depositing the said monthly sum of HK$5,100.00 into the Petitioner’s designated bank account commencing from within 30 days of the Decree Absolute being granted and thereafter the 2nd day of each of the succeeding month until the said Child attains the age of 18 or ceases to receive full time education， whichever is the later; and…

It is of note that this order was based on a mediated agreement (known as the “Chinese Divorce Medication Agreement” or “Mediation Agreement”) entered into between the parties on the 30 January 2012.

3. On the 2 November 2017 an order was made by consent, varying the original custody order. The mother now has sole custody and care and control of V, with reasonable access to the father. It is therefore on this basis that the mother now asks that the father do contribute towards V’s maintenance. Initially the mother asked for HK$9,000 per month. At trial she increased this figure to HK$10,000 per month.

Background to the marriage

4. In an earlier judgement dated the 11 May 2016, I summarized the background to the parties’ marriage as follows:

8. The parties married on the XX October 2000 and had one child V, who was born exactly three years later on the XX October 2003. It seems that unhappy differences arose between the couple and the parties separated but continued to live under the same roof from in or about March 2008. According to the mother much of the difficulty within the marriage related to conflicts concerning the appropriate way to parent V. The parties physically separated in August 2011 when the father did not return to the matrimonial home following a trip with V to Canada. From that point on V has resided with the father. On the 18 November 2011 the father issued proceedings for divorce based on two years’ separation.

5. The decree absolute was pronounced shortly thereafter on the 15 May 2012. Unfortunately, however this did not end the litigation between the parties, with each issuing various summonses from time to time. In particular, it should be noted that on the 15 July 2013 the father issued a judgment summons for outstanding maintenance, which was followed on the 13 September 2103 by an application for accrued interest. The mother also subsequently issued a summons to vary the maintenance down and the father filed a Notice of Application on the 3 September 2014 to vary the maintenance up to HK$6,734 per month. At the end of the day however, the mother paid what was outstanding and she continued to contribute HK$5,100 per month. It is also her case that she also paid for other expenses for her daughter as required and when she was in her care. Other problems ensued, including arguments with respect to the choice of secondary school and the choice of the school net etc. To date the court has handed down two judgments in relation to these other matters, the first dated the 6 March 2015 in relation to the school issue and the second dated the 11 May 2016 in relation to an application to vary access. Since then it seems that V has “voted with her feet” and on the 24 December 2016 she moved in with her mother and has refused to have any meaningful contact with the father and the paternal side of the family since.

6. On the 6 June 2017 the mother applied to vary both the custody order and the order for maintenance. The order varying custody was made by consent on the 2 November 2017. On the 13 February 2018 the father’s judgment summons was dismissed (he had been pursuing the mother for non-payment of maintenance since January 2017 even though V was not living with him). What remains is the current application by the mother for an order that the father do pay maintenance for V. In effect it is an application to vary. It is the mother’s case that the father has not contributed to V maintenance since V began to live with her. This is denied by the father who maintains that he has continued to make some payments for ECA’s and other school related matters.

7. I should add that this continues to be a very high conflict case with each party continuing to make wide ranging and varied allegations against the other.

The issues

8. There are a number of issues that require determination but in summary they are as follows:

a) How much should the father contribute to the mother as monthly maintenance for V?
b) Should that sum be backdated and if so to what date?

Open proposals

Mother’s proposal

9. The mother’s final proposal is set out in her closing submission dated the 16 November 2018 as follows:

18. After the trial, in consideration of the evidence given, I have updated my proposal from that in the Notice of Application filed herein on 6 June 2018 before custody change to that in my Form E and make the current proposal as follows:
The monthly maintenance fee for V due from the Petitioner to the Respondent be varied from $5,100 to $10,000 with retrospective effect from date of custody change i.e. 2 Nov 2017 and thereafter on 1^st day of each calendar month until V attains the age of 18 or ceases her full-time education whichever is later.

Father’s proposal

10. The father for his part concluded as follows in his closing submission of the 13 November 2018:

(a) I humbly request this Honorable Court to take into account all the circumstances of the present case as mentioned above and consider my dedicated efforts in the previous 10 years full time to bring up V, my financial situation, my duty to take care of my parents and also my own health issues. If the Judgment Date is with effective from 1st December 2018, my proposals to resolve the case are as follows: -
(1) Clause 2 of the Order dated 29 March 2012 on monthly periodic maintenance fee for V due from the Petitioner to the Respondent is varied from HK$5,100 to HK$2,445 per month with effective from 1^st December 2018. The amount has been included the ballet and piano/examination fees.
(2) V’s maintenance fee for the pre-judgment period from 1^st January 2017 to 30 November 2018，i.e. the final Pre-judgment Amount ($27,588) plus one-time payment of Japanese class fee $3,600 shall be HK$31,188 due from the Petitioner to the Respondent as full and final settlement.
(3) The Respondent is under a duty to inform the Petitioner all V’s extra-curricular activities and school notices and reports by e-mail.
(4) In the event V stopped attending the piano and ballet lessons, the monthly expenses of V to be adjusted by excluding that item where she quitted accordingly. The Respondent shall provide V’s payment receipts for piano and ballet lessons by e-mail in soft copies.
(5) Cost to be awarded to me.

The law

11. The mother’s application to vary is made pursuant to section 11 (7) of the Matrimonial Proceedings and Property Ordinance Cap. 192, which provides that:

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

12. It is accepted that in considering a change of circumstances, I may look at the case de novo. In other words, the court is not necessarily fettered by the existence of a previous order. I may look at the situation afresh and make an order based on the parties’ existing financial circumstances. (See Ch 3.131 Jackson’s Matrimonial Finance and Taxation, 7^th edition). It is also true that there would normally be a reason for the application to vary or what some might call a “trigger”. Here it is accepted that the “trigger” was V moving to live with her mother.

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

14. The correct approach was summarized by the Court of Appeal in AEM v VFM [2008] HKFLR 106. In that case the Hon Cheung JA made the following point when setting out the law. Referring in particular to agreements reached by consent he said:

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

15. Cheung JA added in relation to backdating that:

Principle on backdating of order
15. 1. The court has an almost unrestricted power to vary its own order retrospectively and to backdate any variation which it makes in a pre-existing order beyond the date of the application for variation.
2. In practice, orders are not usually backdated to a date prior to the notice of application to vary unless the justice of the case so requires.
See Rayden & Jackson on Divorce and Family Matters 18^th Ed, Vol. 1, Para. 18.25.

Discussion

Income and other financial resources of the parties

The father

16. The father is a 51-year-old part time Auxiliary Policeman. He also holds some assets including a property in Thailand, some stocks and shares (valued at just under HK$5.8 million) and other cash assets (approximately HK$600,000). He also receives some dividend income. However, even on his own case, he does not have sufficient income (c HK$8,500 per month) to pay for his outgoings of approximately HK$20,000 per month. He says that he has to rely on his savings to make up the short fall. At present he is living in a property owned by his father and he says that he pays him HK$8,000 per month, although there was seemingly no evidence of a regular payment in this amount (the court was only able to find two cheques in the father’s more recent bank statements both dated the 2 January 2018). It is the father’s case that he intends, longer term, to use his funds to purchase a flat in which to reside.

The mother

17. The mother is 49 years old and she works in wealth management on a commission only basis. She also holds some assets including two properties, the first being an investment property and the second being a property in which she and V now reside. She values both of these properties at HK$6.8 million each. She has mortgages on both and with respect to the second property there are also other loans related to it, which are outstanding. It is of note that these property values are challenged by the father who says that the properties should be worth more than the mother’s estimates. In addition, the mother also has some cash assets of just over HK$900,000 and some stocks and shares valued at approximately HK$580,000. Her income is variable and on her case she currently earns approximately HK$16,500 per month and receives a further HK$16,500 per month in rental income. However, she has outgoings of over HK$100,000 per month including two mortgages and other loans to family members referred to above. She says she is able to manage by relying on her cash savings in the short term. She also confirmed in the witness box that she had suspended the payment of an insurance premia for V in the sum of HK$13,000 per month and that there was some flexibility with respect to the loans that she owed to her other family members. She was however able to show the court a regular payment of HK$31,269 being the monthly repayment of one of these loans.

18. The father attacked the mother’s credibility in this respect and maintained that she must have been earning far more than declared. There were also issues surrounding the audited accounts from her companies, although I am inclined to accept her case that she has not been required to file audited statements for her main small limited company as it is currently operating at a loss. Similarly, I am also inclined to accept the father’s case that he is unable to produce tax returns as he is not earning enough at present to pay tax.

Earning capacity

19. Longer term however, it seems to me that both parents have an earning capacity and one that they will now need to maximize to the full. The mother struck me as a resourceful and intelligent woman and I have no doubt that once this litigation is finally concluded that she will either be able to work more fully in the wealth management field or alternatively look to other forms of employment. Similarly, I am not convinced by the father’s suggestion that he is unable to return to the work force given that he has not worked full time for the last 10 years. He is also a bright man and given that he is no longer looking after V there is no reason at all why he should not return to work in a more full time capacity. If he chooses not to do so then that is really a matter for him. However, that is a choice that will not influence the court’s decision with respect to each party’s financial responsibilities towards V.

Contribution towards V’s expenses

20. Consequently I accept the mother’s primary position that each party should contribute equally towards V’s expenses. I do not accept the father’s argument that he should only be expected to contribute towards V’s actual expenses. It seems to me that he should also make a contribution to the relevant household expenses, being his contribution towards V share of the same.

What then is the appropriate level of maintenance to be paid by the father for V going forward?

21. In total the mother is seeking HK$10,000 per month for V. It is not clear how this sum is broken down. However, as stated above, it is the mother’s primary position that the parties should be equally responsible for V’s expenses, which includes a contribution towards the general household expenses.

The General expenses

22. It was accepted during the trial that the mother’s list of expenses as set out in her Form E dated the 5 December 2017 are the most up to date. In that, the mother lists her general expenses as follows:

4.1 General
Item Amount
Rent $0
Mortgage instalments a) Citibank
b) HSBC $9,262
$9,370
Utilities (electricity, gas, rates, telephone, broadband & water) $2,550
Management fees $2,513
Food – V and me (at home)
–   V and me (out of home) $4,000
$2,000
Household expenses – fixture repairing $500
Car expenses $0
Insurance premia – Home Insurance $153
Domestic helper(s) $0
Other – 2 personal loan repayment
   a) my sister’s p loan
   b) my personal loan $31,269
$8,533
Total monthly household expenses    HK$70,150

23. I should say at the outset that I accept that it would not be reasonable for the father to contribute either to the cost of the mortgages or to the other loan repayments. These all relate to the two properties and although V lives with her mother in the K property, this is also a capital investment. It follows that I also accept that of the remaining expenses the father should only be expected to contribute towards the expenses that relate to the K property. In other words, he should contribute towards the utilities, management fees and household expenses being V’s share of the same in the K property. This issue was subject to an extraordinary amount of cross examination given the amounts of money involved. In his closing submission the father summarized the position on utilities, management fees and household expenses as follows:

Utilities

(ii) For utilities: On 2 August 2018 trial, the Respondent agreed in the witness box that, as shown in her China Construction Bank (CCB) 3-month credit card statements from September to November 2017, her averaged payment for electricity was $413 p.m. (although she claimed it was $300), gas was $156 p.m., rates for 2018-2019 year are fully waived by HKSAR concession which is confirmed zero, telephone charge was not found but she agreed it was $50 by using PCCW, no water charge payment was shown but it should be around $20 p.m.(if any), broadband fee payment was not shown, but it should be $79 p.m. (see Exhibit P 2) if using the provider Hutchison Global Communication Ltd (HGC). The Court specifically directed the Respondent could bring along her utilities receipts on 16 October 2018 as evidential proof of her utility payments. However, she ignored the direction or she might unable to produce such receipts for verification and these remain questionable. Therefore, the Court is entitled to base on her testified statement given in the witness box that the averaged monthly total for utilities is around HK$718 p.m.

I shall round this up to HK$1,000 per month to take into account variables with respect in particular to the cost of broadband, the telephone and for rates in due course.

Management fees

(iv) For Management Fees: The Respondent has two properties in her own name, one is living with V i.e. K Garden unit; and the other is for her own investment in GW unit, where she is currently receiving rental income of HK$16,500 p.m. This management fee has to be excluded fully. The Respondent intentionally did to show the breakdown of the individual management fees for each property (like her other items), but she confusingly shows only one lump sum in total of $2,513. However, her CCB credit card statements had shown the payment breakdowns:-
(1) Where the management fee paid for her property in K Garden unit is HK$1,043 p.m. to X Management Ltd; and
(2) The management fees HK$1,462 p.m. paid to Y Management Ltd is for her property in GW unit. This amount should have been absorbed into the rental income HK$16,500 paid by her tenant and it is irrelevant to V’s periodic maintenance calculation.

It is accepted that the father should only be contributing towards a share of the management fees for the K property, which I will round up to HK$1,050 per month.

Household expenses

(vi) For Household expenses: The Respondent has no justification in support of HK$6,000 per year ($500×12) for the household fixture repairing. In particular:-
(1) Her property in GW, a newly developed estate and she purchased in the 2007, was rented to a tenant for $16,500 p.m., where the tenant should responsible for the household fixture repair expense (if any).
(2) For her property in K Garden, the Respondent just purchased it on 15 November 2016 in good condition at time of purchase. There is no significant fixture repairing to justify this HK$6，000 repairing expense per year.
(3) If the Respondent allege it treated as a provisional or contingence purpose for household expense in fixture repairs, HK$1,200 per year i.e. HK$100 p.m. is more than reasonable.

This is not accepted. The sum of HK$500 per month for household expenses including minor repairs etc does not seem unreasonable and will be allowed.

Food and insurance premia

24. There was a great deal of debate about the cost of food for V, including what she ate for breakfast, when she ate out etc etc. In general, it seemed to me that the estimates put forward by the father were incredibly low and seemed unsustainable as a result. In contrast the mother’s estimate of HK$4,000 per month for food within the home and further HK$2,000 per month for food outside the home, seemed a lot more realistic. Thus I will allow these figures in full. I will also allow the insurance premium in the sum of HK$153 per month.

Conclusion on General expenses

25. In total then the mother’s general expenses less the mortgages and other personal loans, amount to approximately HK$8,700 per month as follows:

General
Item Amount
Rent $0
Mortgage instalments a) Citibank
b) HSBC N/A
Utilities (electricity, gas, rates, telephone, broadband & water) $1,000
Management fees $1,050
Food – V and me (at home)
–   V and me (out of home) $4,000
$2,000
Household expenses – fixture repairing $500
Car expenses $0
Insurance premia – Home Insurance $153
Domestic helper(s) $0
Other – 2 personal loan repayment
   a) my sister’s p loan
   b) my personal loan N/A
N/A
Total monthly household expenses     HK$8,703

Of this half shall be apportioned to the mother and half to V – i.e. HK$4,350 each. The mother and father will then each be responsible for half of V’s general expenses rounded up to say HK$2,200 each.

V’s direct expenses

26. The mother estimates these as follows:

School books and stationery $300
Transport to school $154
Medical/Dental $2,260
- Dermatologist $800/time (4 times a year) $266
- Nutritionist Supplement for eczema $1,000/mth $1,000
- Annual Dental $480 / year $400
- Orthodontics $34,400 since Feb 2017
(amortize for the next 3 yrs until age 17) $955
Extracurricular activities (ECA’s)
$2,960
- ballet $130/lesson (8 lessons/mth) $1,040
- piano $400/lesson (4 lessons/mth) $1,600
- Exam fee of the above $3,000/ year $250
- Summer, seasonal and interest course $800/year $70
Entertainment/presents 500
Holidays 500
Clothing/shoes 200
Insurance premia (13,000)
Lunch/pocket money 1,480
Other transport 104
Uniform 66
Others – 288
- mobile phone $88
- School sundries + school picnic + school extra-curricular activities $200
Subtotal 8,812

27. There was a great deal of debate during the trial concerning V’s current ECA’s – namely ballet, Japanese and piano. The father was of the view that her attendance was contrived and was unlikely to continue longer term. As a general point it seems to me that provision should be made for both the ECA’s and extra tuition, whilst acknowledging at the same time, that these activities may alter as the child develops and her needs and interests alter. Given the high level of conflict between the parties this is not a case where it would be sensible to direct that the parties split these costs upon the production of receipts. I accept that V is currently taking ballet and learning the piano and Japanese. I also accept that the mother arranged for her to attend various activities over the summer including swimming camp. Perhaps more importantly, and given the continued high level of conflict in this case sadly unsurprisingly, V has also been struggling at school of late and extra tuition has been deemed necessary. Thus the mother has been paying an additional sum for extra tuition which varies, but is in the region of HK$520 – HK$650 per month. Bearing all of the above in mind, I will allow HK$3,000 per month for ECA’s and extra tuition. It will be for the mother to work within this figure.

28. The father also takes issue with the mother’s use of supplements in order to assist V. It is not disputed that V suffers from eczema. What is disputed is the best way of treating the eczema. The father wishes V to continue to attend the Government hospital and to use the cream prescribed. Whilst not opposing this, the mother has also looked to alternative remedies and private dermatologists to assist. The mother has also arranged for V to have orthodontic treatment and to receive dental care. Whilst the father may not agree with this, I accept that these are genuine expenses borne by the mother and that in the circumstances of this case that they are reasonable. I will allow these and I will round them down to HK$2,200 per month.

29. In summary the father also challenges the other expenses for V and concludes as follows in his submission:

(h) Consequently， the adjusted Total child's monthly expense in R(2017) Form E Part 4.3should be HK$4,889 per month (i.e. books/stationery $300， transport $154, dermatology clinic for eczema $53, annual dental $40, ballet (if she persists) $1,280 ($160 x 8), piano (if she persists) $1,600， exam fee (if she persists) $250, summer activities $70, clothing/shoes $80, lunch at school $400, pocket money $400, other transport to ballet center (if she persists) $104, uniform $20, mobile phone $88, school sundries $50). If splitting into 50%, each party should share HK$2,445 per month: -
4.3 Children
Item Amount
School fees N/A
Extra tuition fees N/A
School books and stationery 300
Transport to school 154
Medical / Dental - $53/$40 93
Extra Curricular Activities - Extra Curricular Activities – Ballet/piano/exams/ summer - $1,280/$1,600/$250/$70 per month 3,200
Entertainment/presents N/A
Holidays N/A
Clothing/Shoes 80
Insurance premia N/A
Lunches and pocket money - $400/$400- 800
Other Transport 104
Child-mining fees N/A
Uniform 20
Other (specify) – school sundry / telephone: $50/$88 138
Total monthly expenses for children HK$4,889

30. In general, I prefer the mother’s estimates to the father’s, which in general seem to be very much on the low side. In so far as entertainment and holiday costs are concerned - whilst I would accept that in a normal case, where both parties are seeing a child or children, that the reference to holiday and entertainment costs may be removed from the schedule, on the premise that each party should then be responsible for those costs when the child is in their respective care, that is not the case here. In this instance all of these costs currently fall on the mother’s shoulders. Consequently, these items shall not be removed from the schedule. I should add that HK$200 per month for clothes and shoes for a teenage girl seems very reasonable and that in my view it is perfectly acceptable for a child to expect to have a new school uniform as required. There was also further debate concerning V’s school lunches. For the record I accept that as a 15-year-old teenager, that V may go out of school for her lunch. There will also be other costs including pocket money etc. In total then I will allow HK$8,800 per month as V’s direct expenses, which I have rounded up from the following estimated expenses as follows:

School books and stationery 300
Transport to school 154
Medical/Dental 2,200
Extracurricular activities (ECA’s) 3,000
And extra tuition
Entertainment/presents 500
Holidays 500
Clothing/shoes 200
Insurance premia (13,000)
Lunch/pocket money 1,480
Other transport 104
Uniform 66
Others – 288
- mobile phone $88
- School sundries + school picnic + school extra-curricular activities $200
Subtotal 8,792

Conclusion

31. In total then the father shall contribute HK$2,200 per month towards V’s general expenses and an additional HK$4,400 per month towards her actual expenses, totalling HK$6,600 per month. It is of note that this only slightly more than the amount that the mother was originally paying to the father for V’s expenses and is very similar to the increased amount originally requested by the father in 2014.

Can the father reasonably afford to pay this amount?

32. As indicated above the father has some savings and he has an earning capacity that he will now need to realize more fully. I am satisfied that he has the means to pay this sum, which is similar to the amount that he had expected the mother to contribute towards V’s expenses when V was living with him in any event. I am satisfied in the circumstances that this is a fair and reasonable amount to expect him to pay.

Should this sum be backdated?

33. The mother asks that this sum be backdated, not to the date when V first started to live with her on a full time basis, or to the date of her summons, but to the date of the order for the variation of custody - i.e. 2 November 2017. This is accepted. I also acknowledge that the father had made some payments for various ad hoc items including the ballet lessons up until February 2018 and some of the piano lessons etc. However, given that the mother is not seeking back payment to January 2017, I do not intend to make any further orders in relation to those items, given that they are the only things that the father has paid for since V moved to live with her mother.

Costs

34. The mother seemingly had no option but to issue this summons, given the father’s rather uncompromising stance. Given that, and notwithstanding the fact that both parties are representing themselves, I shall make an order nisi to be made absolute in 14 days’ time, that the father do pay the mother’s costs of and arising out of her summons on maintenance dated the 6 June 2017, to be taxed if not agreed on a party and party basis.

Final order

35. I will therefore make an order as follows:

1)    The Petitioner father shall pay the Respondent mother periodical payments for V in the sum of HK$6,600 per month with effect from the 1 February 2019. Subsequent payments to be made on the first day of each succeeding month until V reaches the age of 18 years or ceases full time education, whichever is the later, or until further order.
2)    Further the Petitioner shall pay the Respondent backdated maintenance for the period from the 1 November 2017 – 1 January 2019 i.e. a period of 15 months, in the sum of HK$99,000, within the next 28 days.
3)    There shall be an order nisi to be made absolute in 14 days’ time, that the Petitioner do pay the Respondent’s costs on a party and party basis to be taxed if not agreed.

	(Sharon D. MELLOY)
	District Judge

The Petitioner and Respondent both appeared in person

FCMC 16179/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16179 OF 2011

____________________________

BETWEEN
	TPF	Petitioner
	and
	W	Respondent

____________________________

Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 1 – 3 and 16 March 2016

Date of closing submissions: 5 April 2016

Date of Judgment: 11 May 2016

__________________

JUDGMENT
(Access arrangements)

__________________

Introduction

1. This is an application by a respondent mother for additional access to the only child of the family, V who is a 12 and a half year old girl, having been born on the XX October 2003. Although the mother’s summons references both access and financial arrangements, this hearing is to determine the access arrangements for V only.

2. In the mother’s summons dated the 13 March 2014 the mother seeks shared care of V as follows:

1. Paragraph 1 of the Order made by H.H. Judge S.D. Melloy on 29^th March 2012 be varied to the extent that the Respondent be granted defined access to TWKV(“V”) as follows:
(a) The Respondent shall have staying access of V from Sunday at 11:00 am to the beginning of school on Wednesday. If it is a school holiday, V is to be returned to the Petitioner at 11:00 am on Wednesday.
(b) The Petitioner and the Respondent shall have staying access to V over the School Holidays being Christmas and New Year holidays, Chinese Lunar New Year holidays, Easter holidays and Summer holidays (the “School Holidays”) equally. The Petitioner shall take the first half of the School Holidays and the Respondent shall take the second half of the School Holidays.
(c) The Petitioner and the Respondent shall have staying access to V over the public holidays of Labour Day, Buddha’s Birthday, Tuen Ng Festival, HKSAR Establishment Day, Mid-Autumn Festival, National Day and Chung Yeung Festival (the “Public Holidays”) alternately. The Petitioner shall start the staying access to V over the Public Holidays first.
2. The Respondent be released from the undertaking contained in clauses 5.5.1, 5.4.2, 5.4.3, 5.4.4, 5.4.5 and 5.4.7 of the Chinese Mediation Agreement dated 30 January 2012.

3. This application is made in an environment of consistent and ongoing conflict. The parties seem unable or unwilling to compromise on even the smallest of issues. They were also unable to decide on the choice of senior school for V which necessitated a further hearing. Consequently the parties have been in and out of court on a regular basis following the original mediated agreement dated the 30 January 2012 and subsequent court order dated the 29 March 2012. In that order it was agreed inter alia that the Petitioner father would have sole custody and care and control of V with reasonable access to the mother. The issue of custody is not challenged and the mother has not sought to vary this aspect of the order. However she does seek considerably more access that the original mediated agreement allowed for. V was 8 years old at the time of the mediated agreement.

4. There are also additional difficulties in that historically V has been very resistant to having overnight staying access with her mother. This has made it difficult for a more traditional order to be put in place whereby for example school holidays might be shared more or less equally and the parties might also either share or alternate the weekends.

5. V has also been interviewed by the social welfare officer involved in her case on several occasions and also by the clinical psychologist. She has also met me so that she was able to express her own views directly with respect to the choice of a senior school for her. On this occasion however she has refused to participate in the interview process. It is therefore difficult for me to place too much reliance on either the old reports, which are now outdated or the updated reports.

6. The other point to note is that as this case has progressed the mother has sought more and more access – so that as things stand at present she is arguably seeking more contact time than the father – notwithstanding the fact that the father has sole custody and care and control of the child.

The issues

7. The father has identified nine issues in his closing submission and counsel for the mother has identified four. In broad terms I agree that I need to determine a structure for access from now until V turns 18 years of age. This should include regular access during term time and access during public holidays and school holidays. These arrangements need to include staying and day time access as appropriate and arrangements during examination periods and on special days such as birthdays and Mother’s day.

Background to the marriage

8. The parties married on the XX October 2000 and had one child V, who was born exactly three years later on the XX October 2003. It seems that unhappy differences arose between the couple and the parties separated but continued to live under the same roof from in or about March 2008. According to the mother much of the difficulty within the marriage related to conflicts concerning the appropriate way to parent V. The parties physically separated in August 2011 when the father did not return to the matrimonial home following a trip with V to Canada. From that point on V has resided with the father. On the 18 November 2011 the father issued proceedings for divorce based on two years separation. The parties entered into mediation and an agreement was reached on all matters and encompassed in a Divorce Mediation Agreement dated the 30 January 2012. This then formed the basis of the court order dated the 29 March 2012.

9. As indicated in paragraph 1 above the mother now wishes to be released from certain undertakings in the mediation agreement. The relevant clauses are as follows:

5.4.2 Both parties agree that Ms. W (Respondent) shall have access to the daughter V on every Monday, Tuesday and Wednesday from 5:30 p.m. to 8:30 p.m. and she shall keep contact and keep in touch with the daughter V. Both parties agree that Ms. W shall meet the daughter V on every Monday, Tuesday and Wednesday at 5:30 p.m. at the school playground where the daughter studies. The daughter V shall be delivered back to Mr. TPF (the Petitioner) at 8:30 p.m. that night at the A Entry of Taikoo MTR. If any dates as mentioned aforesaid is a public/school holiday, Ms. W agrees to give one day notice to Mr. TPF by telephone and by email for making a decision. Ms. W agrees to waive her rights to the access of her daughter V while during school examination (total 6 days per year).
5.4.3 Both parties agree that Ms. W shall have access to the daughter V on every 2^nd and 3^rd day of Lunar New Year, Easter holiday, daughter V’s summer holiday, Christmas holiday and Ms. W’s birthday, one day on each occasion (total 6 days). Ms. W shall meet together with the daughter V and shall have right to keep contact and in touch with the daughter V. Both parties agree that on every morning of 2^nd day of Lunar New Year at 10:30 a.m., Mr. TPF shall deliver and Ms. W shall pick up the daughter V at the A Entry of Taikoo MTR. The daughter V shall be returned back to the same place at 6:00 p.m. that day evening. Both parties agree that on every 3^rd day of Lunar New Year, Easter holiday, the daughter V’s summer holiday and Christmas holiday, one day on each occasion (total 4 days), Mr. TPF shall deliver and Ms. W shall pick up the daughter V at 12:00 noon at the A Entry of Taikoo MTR. The daughter V shall be returned back to the same place at 6:00 p.m. that day evening. Both parties agree that on every birthday night of Ms. W, she shall meet the daughter V for her birthday dinner.
5.4.4 As far as the arrangement of access as mentioned in paragraphs 5.4.2 and 5.4.3 above are concerned, both parties agree that Ms. W shall on the day prior to the access have an access arrangement discussion with the daughter V. In case if either the daughter V or Ms. W is unable to attend the access, the access will be cancelled automatically.
5.4.5. Both parties agree that in the future if either Mr. TPF or Ms. W need to change the time and place of any access, one day notice before the access, either by telephone and email, shall be given to each other.
5.4.7 Both parties agree and promised that the access arrangement mentioned in paragraph 5.4 above shall be made subject to the daughter V’s own welfare, health, interests and normal activities. Both parties agree that should the daughter V is unable to present any access meeting as mentioned in paragraph 5.4. above, both parties shall not request the daughter V to attend the access meeting involuntarily.

(Clause 5.5.1. relates to financial matters).

Background to the litigation

10. The parties have been at loggerheads over V for a considerable period of time. They disagree for example on the best way to treat V’s eczema and on her schooling. Staying access has also been a matter of considerable difficulty. On the 7 October 2014 the court made an order for interim staying access on alternate weekends from Friday after school until 6:30 pm on Saturday when V attends her ballet lesson. The mother drops V off at her ballet lesson and the father picks her up from there. In addition single public holidays are alternated with the mother having access on her days from 10:30 am – 8:30 pm. Access on Monday’s Tuesday’s and Wednesday’s was ordered to continue from after school until 8:30 pm.

11. Unfortunately there were difficulties even with this minimal level of staying access and on the 31 December 2014, following the second Children’s Dispute Resolution hearing, the level of staying access was reduced during term time to once per month. Day time access on Monday’s Tuesday’s and Wednesday’s was ordered to continue during the term and a replacement mechanism was put in place for access during school tests and examinations in March and June. Staying access during the school holidays was increased slightly to two nights and day time access was also increased with the stipulated time stated to be from 11:30 am to 8:30 pm.

12. On the 29 June 2015 an attempt was made again to increase term time staying access to twice per month from 4:00 pm on Friday to Saturday at 6:30 pm. Access on Wednesday’s was cut back to alternate weeks and the access arrangements for the school summer holidays was set out to include two longer weekends, one for July and one for August together with increased day time access over the summer on Tuesday’s and Wednesdays. An attempt was also made to incorporate more staying access over the Christmas school holiday and Chinese New year of 4 days/3 nights. In the absence of any agreement between the parties this was to take place in the first weekend of the school holiday i.e. from Friday after school until Monday evening. Single public holidays continue to be alternated.

The present arrangements for V

13. V started senior school in September 2015. At present she is taking extracurricular Japanese lessons on Monday’s and Friday’s after school – run by X University and ballet lessons on Wednesday from 6:15 – 7:30 pm and on Saturday late afternoon. In addition she is learning to play the piano and she practices most days and has a lesson on Sunday afternoon’s at 4:00 pm. She also enjoys cooking and playing table tennis. In addition she has a very heavy academic work load as she is in a Band One English school. The father said at the end of the trial that she has 10 subjects to study and that she often does not get to bed until 12 midnight. Her normal bedtime is 11:30 pm. She gets up at 6:45/7:00 am. She also has pets i.e. a hamster, turtles and fish which she is responsible for looking after. V also likes to travel and she has historically enjoyed spending time with her extended paternal family in Canada.

14. In terms of the access V presently sees her mother as set out in paragraph 12 above. There are still difficulties however with the access arrangement and the staying access in particular continues to cause problems. Other disputes also arose during the examination periods.

The law

15. As indicated before in the Ruling dated the 6 March 2015 on the choice of school and choice of the school net, the law governing applications concerning children is set out in s 3 Guardianship of Minors Ordinance, Cap 13, which states as follows:

GENERAL PRINCIPLES

(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-
(a) in any proceedings before any court (whether or not a court as defined in section 2) the court -
(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -
(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and
(B) any material information including any report of the Director of Social Welfare available to the court at the hearing;

16. The court is concerned with the best interests of the individual child and what might work well for him or her. It is generally understood that it is the right of the child to have an ongoing relationship with both of his or her parents.

The proposals made by each parent

The mother’s proposals

17. The mother’s final proposal was put forward in counsel’s closing submission dated the 5 April 2016 as follows:

E. R’s proposals
16. After the trial, in consideration of the evidence given, R has updated from her 4^th Statement of Proposal and makes the current proposal in regards to her access period:-
During School Term
(1) R shall have staying access on every weekend from after school on Friday to 9:00 pm on Saturday to V.
(2) R shall continue to have access to V on every Monday, Tuesday and Wednesday from after school until 9:00 pm.
(a) Alternatively, R shall continue to have access to V on every Tuesday and Wednesday from after school until 9:00 pm; or
(b) R shall continue to have access to V on every Tuesday from after school until 9:00 pm.
Long School Holidays
(3) The parties shall have staying access to V over the Long School Holiday being Lunar New Year holidays, Ester Holidays, Summer holidays and Christmas holidays equally as follows:
(a) Lunar New Year holiday shall be split equally with R shall have staying access commencing from 11:00 am on the Second Day of Lunar New Year to 9:00 pm on the last day of staying access.
(b) Easter holidays, Christmas holidays and Summer holidays shall be split equally. P shall take the first half and R shall take the second half of the Easter holidays, Christmas holidays and Summer holidays in 2016 and all even years going forward. R shall take the first half and P shall take the second half of the summer holidays in 2017, and all odd years going forward.
Single Public Holiday
(4) The parties shall alternate the single public holidays with Ching Ming Festival, the Birthday of the Buddha, HKSAR Establishment Day, and National Day in 2016 and all even years going forward to R and Labour Day, Tuen Ng Festival, Day following the Mid-Autumn Festival and Chung Yeung Festival in 2017 and all odd years going forward to R. R’s access shall be from 10:30 am to 9:00 pm.
(5) R shall have access to V on every American Mother’s Day from 11:00 am to 9:00 pm.
(6) The parties shall remove V out of the jurisdiction of Hong Kong for holidays purposes exceeding 10 days each year unless with the consent of the other parent or with the leave of the Court.
(7) Notwithstanding the above said access arrangement, the parties shall attend the school events of V, and her examination of extra-curricular activities.
(8) The access in the above said (1) and (2) shall start at 11:00 am if it is a school holiday.

The father’s proposals

18. The father’s final proposal was likewise attached to his lengthy closing submission as follows also dated the 5^th April 2016:

PETITIONER’S CLOSING STATEMENT OF PROPOSALS (2016-03-16)
(for trial before H.H. Judge Melloy on 1^st, 2^nd, 3^rd and 16th March 2016 at 10:30 am)
The following proposals had been made reference to the recommendations from 1^st, 2^nd and 3^rd Social Investigation Reports, 1^st and 2^nd Clinical Psychologist Reports and witness evidence and comments given in the witness box during the trial of the case on 1^st, 2^nd, 3^rd and 16^th March 2016.
School days
1.   The Respondent shall have staying access twice a month on alternate weekend from after school at 4:00 pm on Friday to 6:30pm on Saturday to the child of the family, namely TWK, V (“V”) when she shall attend the ballet class. V shall be dropped off at the ballet lesson by the Respondent and shall be picked up by the Petitioner at the end of the said ballet class.
2.   During the week with staying access, the Respondent shall have 1-day access on Wednesday from after school until 8:30pm; and during the week without staying access, the Respondent shall have 2-day access on Monday and Wednesday from after school until 8:30pm.
[Ref: Paragraph 33 (ii) 2^ndSI Report dated 17.6.2015 on School days: “…(the Respondent) to have 1 night staying access twice a month preferably from Friday to Saturday; …2 day access and 3 day access on alternative week, preferably 2 days couple with staying access..from after school to 8:30 pm.”]; and [Paragraph 41 (a) CP Report dated 22.12.2014 last 3 sentences: …in order to decrease the tension as related with the insecurity and struggles of the child experiencing in the staying access, the frequency of staying access should be decreased, e.g. from twice to once per month.]
3.   Access during test and examination periods shall be cancelled without replacement at V’s best interest.
-   [Paragraph 5.4.2 of Mediation Agreement: (The respondent) Ms W agrees cancel her rights to access V during her examination period (total 6 days)
-   Reference was made to the comments from clinical psychologist Ms L in the witness box.
Other School Holidays
4.   The Respondent shall have 3 days and 2 nights staying access during V’s school holidays at Christmas, Chinese New Year and Easter. For avoidance of doubt and in the absence of any agreement between the parties, the access shall take place in the first weekend of the holidays. The school holidays access shall replace the school term access.
[Paragraph 33 (iii) of 2^ndSI Report dated 17.06.2015: Mdm W to have 1 or 2 night staying access cum day access, totally access day to be half period of school holidays, at their agreeable date and time.]
5.   In the event there is second week during the school holiday, the Respondent shall have day access during the following week on Monday and Wednesday from 11:30 a.m. to 8:30 p.m.
6.   Summer Holidays
(i)   The Respondent shall have 3 days and 2 nights staying access to V on alternate week basis. For avoidance of doubt and in the absence of agreement between the parties, the staying access starts on the first long weekend of the full week holiday from 4:00 pm Thursday to 6:30 pm on Saturday.
(ii)   For the weeks in (i) without staying access, the Respondent shall have 3-day day access on Monday, Tuesday and Wednesday on alternate week basis.
[Paragraph 33 (i) of SI Report dated 17.06.2015:
- If V has overseas trip with her father; Mdm W to have a 2 night staying access and 3 or 4 day access on alternate week, total access day almost half of the remaining summer holiday;
-   If V has no overseas trip with the father, Mdm W to have day access and staying access on alternative week, including 3 night staying access once with 1 night next staying access; most preferably 2 nights; 3 or 4 day access a week. Total access day almost half of the summer holiday.]
Single Public Holiday
7.   The parties shall alternate the single public holidays including Ching Ming Festival, the Birthday of the Buddha, HKSAR Establishment Day and National Day in 2016 and all even years forward to the Respondent; and Labour Day, Tuen Ng Festival, Day following the Mid-Autumn Festival and Chung Yeung Festival in 2017 and all odd years going forward to the Respondent from 12:30pm to 8:30 p.m.

The recommendation made by the Social Welfare officer

19. As indicated above both the Social Welfare officer and the Clinical Psychologist were in some difficulty at trial given that V appears to have “voted with her feet” and refused to participate in the latest round of reports. There could be many and different reasons for this and I do not intend to offer up any one hypothesise.

20. In her concluding remarks the Social Welfare officer stated as follows in her updated report dated the 16 February 2016.

26. Both parents held diversified view on the future access arrangement. They also expressed much co-parenting difficulty regarding access and other V’s matters in the present adjournment. It reflected their communication problem and limited mutual trust. For the best development of the child, parents’ continuous collaboration for child’s welfare after separation was most desirable and unavoidable. Both parents may consider sacrificing their self-interest for V’s best interest. Otherwise, V might easily be trapped between the parents’ conflicts. In order to tackle the persisting co-parenting difficulty, establishing mutual trusting and respectful relationship, jointly participation of two parents in co-parenting counselling was highly recommended.
27. Due to V’s resistance to contact investigation social worker, no direct information or experience about access condition and future arrangement could be obtained from V. Both parents also did not want to push V for the present social investigation, as they worried the negative impact the parent-daughter relationship and possible stress to V. Talking about the future access arrangement of V who is a teenage, her wish and view should be considered. However, lacking of such important information, it was difficult to make any recommendation regarding a change on the present access arrangement.

She agreed that the recommendations made in her previous two reports were now out of date and that the recommendations made could no longer be relied upon as she simply did not know what V’s own views were at this time.

The recommendation made by the Clinical Psychologist

21. Likewise the clinical psychologist made the following concluding comments:

Conclusion and Recommendations
18. Information gathered from Mr. T suggested that Mr. T was still very committed and devoted in his parenting role. His grave concern on V’s academic performance was noted and he had demonstrated his strong willingness and effort in facilitating the child’s learning and academic performance. It seemed to me that he felt a bit frustrated for helping V as she, stepping into adolescent stage, may be at times rebellious towards his teaching and guidance though V may cherish his help at times. He compared his parenting with that of Mdm. W and he tended to attribute V’s rebellious attitude towards him was to the relatively loose parenting of Mdm. W. He remarked that the access days and duration were too much for V to spare time to manage the school demands. His grievance towards Mdm. W was still present and he really hoped that Mdm. W would return the container he bought for containing the cream for V. He objected further increase in staying access or time for day access. My concern is that Mr. T’s emphasize on V’s study and his comparison on Mdm. W’s parenting could not bring any benefit to the father-daughter relationship.
19. Mdm. W enjoyed very much the current improved mother-daughter relationship which was more intimate than before. She experienced that the daughter had grown up mentally and physically after she was promoted to Form One. She had not yet fully sense V’s strong resistance in meeting helping professionals for talking about the access matter until V showed strong reactions. Though Mdm. W perceived that V was a bit resistant to have more monthly staying access, she still wanted to make an effort try to fight for more chances to relate with her daughter in a more frequent term. Her grievance towards Mr. T was still present and she did not want to communicate with him. Though she sensed that V may be trapped in the middle now because V had developed good relationship with her and at the same time she wanted to protect the father’s feeling, Mdm. W preferred to communicate with V directly. As reflected from her description, I have a concern that Mdm. W still tended to place her own pace and need to connect with the daughter higher than that of V’s feeling and needs.
20. I had no chances to meet V and cannot gather her views. It seemed to me that V’s refusal might be a reflection of her need for autonomy and her firm position of not want to get involved much in the parental disputes. As a child of twelve years old, she had demonstrated her enough ability to refuse by verbal expression or in physical resistance to see anyone or to face with the access arrangement. As noted, V had very busy schedule for her extra-curriculum activities and probably heavy school work and demand. It may not be easy for a girl who can always maintain an average level and have good social relationship in a Band One school. I opined that the parents should try their best to set aside their dispute on access for the best benefit for the child and to give a least disruption of the current condition to make a smooth transition for V from childhood to adolescence stage.

22. When answering a question posed by the court Ms L suggested that it might be possible to eliminate the after school access on Monday’s Tuesday’s and on alternate Wednesday’s altogether because the mother and daughter would be able to communicate by electronic means in any event and their relationship was much improved from before. She thought that V might then be able to enjoy her after school activities more freely and have time for all of her homework and revision. She also thought it might be possible to increase the staying access slightly. In so far as the holidays are concerned she preferred the staying access to remain as currently ordered without any further increase.

Discussion

23. The difficulty with the mother’s proposal, if I were to put that proposal at its highest, is that it would mean that V will spend much more time with her than with the father – notwithstanding the fact that the father has sole custody and care and control. V would only have Thursday after school and evening and Saturday evening and all day Sunday with her father. I do not accept that the little time that she has with her father after access with her mother on Monday’s Tuesday’s and Wednesday’s is very significant in this context. When I put this to the mother in the witness box she said that she would miss V very much otherwise. As I pointed out to the mother however, this is not about what is best for her but rather what is best for V. I also have some concerns that this arrangement is putting too much pressure on V. It is also difficult to see how she will be able to fit a social life of her own into this schedule once she gets a bit older.

24. The other point to note is that although access to the non caretaking parent three times per week after school may be perfectly appropriate for a younger child, it is not so appropriate for an older child. The difficulty is that normally by that stage the older child would be having regular overnight staying access with the non resident parent. Unfortunately that has not happened here.

The character of the parties and their relationship with V

25. Both parties appeared unwilling or unable to compromise on even the smallest of matters. I have no doubt that their continual bickering causes V much distress. I accept that V has a close relationship with her father and that this continues notwithstanding a more rebellious attitude on her part from time to time as she gets older. He appears to be a devoted father.

26. I also accept that V has a closer relationship with her mother than before and that this is likely to be important for her as she enters into adolescence. Thus it is important for V to have regular contact with both parents.

The mediated agreement

27. For the avoidance of doubt both parties will be released from the undertakings given in paragraphs 5.4.2, 5.4.3, 5.4.4, 5.4.5 and 5.4.7 of the Mediated Agreement dated the 30 January 2012.

Access during the school term

28. Generally speaking I accept that V should have significant periods of time at home with the father and that this is necessary if she is going to keep on top of her homework etc. Although I appreciate that V does some of her homework at her mother’s I accept that she often has to top this up when she returns to her father’s home after access. This is not sustainable longer term especially as V’s level of homework is likely to increase as she gets older. Having given the matter some thought therefore I am going to make an order that the mother shall continue to have staying access twice per month on alternate weekends from after school at 4:00 pm on Friday to 6:30 pm on Saturday. The drop offs and pickups shall continue as before with the mother dropping V off at her ballet lesson and the father picking her up from there. I anticipate however that V will eventually stop taking ballet. In that event the mother’s access shall end at 6:30 pm.

29. In so far as day time access is concerned I have considered eliminating this as suggested by Ms L the clinical psychologist. The difficulty with that suggestion however is that the contact between the mother and daughter would then be seriously curtailed – especially given V’s resistance to full weekend staying access. In such circumstances I will make an order that the mother have access to V on Monday’s and Wednesday’s after school. The access shall be from after school or the extracurricular activity until 8:30 pm. I accept that it would be helpful for V to have both Tuesday’s and Thursday’s after school at her father’s home on a regular basis. Both parties shall be responsible for ensuring that V has time to do some homework when she is in their care. This will mean that V has two evenings during the week with each parent and that the weekends are shared once every two weeks. The father will also have one full weekend with V once every two weeks. As I have said I accept that V should have some longer periods of time to do her homework at her father’s home.

30. In so far as the school exams and tests are concerned – I also accept that during those periods the access during the week shall be cancelled. There will be no makeup access. It seems that the issue of makeup access has caused a lot of friction between the parties and for no useful purpose. This is a matter of some regret. In such circumstances it seems more sensible to simply cancel the access during the exam period.

The school holidays

31. Unfortunately V appears historically to have been resistant to increased overnight staying access during the school holidays. It is not clear what her present views are on the subject. This is also unfortunate. Ms L was of the view that the holiday arrangements should not be altered. The father appears to be of the same view whereas the mother is proposing a more radical departure with V having staying access with her for half of the school holidays. The difficulty with imposing this sort of order is that there is a possibility that V will simply choose not to comply with it. Doing the best that I can in the circumstances therefore I will make an order that allows for the mother to share in significant public holidays as follows:

Christmas school holiday

a) This is normally a two week holiday. Last year V spent Christmas day with the mother. There was however an incident over this period which I will not go into her, but suffice it to say that V did not spend as much time at her mother’s home as had originally been intended. The original order was that the Respondent shall have 4 days/3 nights staying access with V during the Christmas, Chinese New Year and Easter holidays. In the absence of any agreement this staying access was to take place during the first weekend of the holiday – i.e. generally from Friday after school. The mother now asks that the Christmas holiday be split and the father asks that the staying access be reduced to 3 days/2 nights and that in the event that the holiday is for two weeks that the mother shall have access to V on Monday and Wednesday during the day in the second week from 11:30 am – 8:30 pm.

b) There are normally a number of special events during this school holiday including Winter solstice, Christmas day, Boxing Day and New Year’s Day. Generally speaking if parents split this holiday one parent would have Christmas day/Boxing day and the other would have New Years day. I accept however that V is unlikely to agree to staying access for 7 days. I am also conscious of the fact that the arrangement did not work particularly well last Christmas. Going forward then the parties shall alternate Christmas day/Boxing day and New Year. In 2016 V shall spend three nights with her mother from the 30 December 2016 – 2 January 2017 i.e. from 11:30 am on the 30th December 2016 to 8:30 pm on the 2 January 2017. This arrangement will take place in all even years. In all odd years V shall spend three nights with her mother from 11:30 am on the 24 December to 8:30 pm on the 27 December. This means that V will spend the Christmas period with her mother. This arrangement will begin in 2017 and will continue in all odd years thereafter. The winter solstice evening shall be alternated between the parties with the father having winter solstice in 2016. Other than as set out above the Mother shall have access to V on Monday’s and Wednesdays from 11:30 am to 8:30 pm. For the avoidance of doubt if part of the overnight access falls on either a Monday or Wednesday there will be no additional access.

Lunar New Year

c) The mother has asked for access from 11:00 am on the second day of the Lunar New Year and asks for half of the holiday. The father’s position is as set out above. The school holiday is normally for 10 – 14 days. Going forward then the father will have New Years Eve and the first day of the Lunar New Year. The mother shall have overnight staying access to V from 11:30 am on the second day of Lunar New Year to 8:30 pm the following day. Otherwise the Mother shall continue to have access to V on Monday and Wednesday’s from 11:30 am to 8:30 pm during this period. For the avoidance of doubt if part of the overnight access falls on either a Monday or Wednesday there will be no additional access.

Easter holidays

d) This is normally a two week holiday with Easter being a four day holiday. This holiday will be alternated between the parties with the mother having Easter in 2017 and in all odd years and the father having Easter in all even years commencing in 2018. Thus the mother shall have access to V from 11:30 am on Good Friday to 8:30 pm on Easter Monday from 2017 onwards. In even years the mother shall staying access to V for three nights/four days on the last weekend of the holiday commencing on Thursday morning at 11:30 am to Sunday at 8:30 pm. Otherwise the Mother shall continue to have access to V on Monday and Wednesday’s from 11:30 am to 8:30 pm during this period. For the avoidance of doubt if part of the overnight access falls on either a Monday or Wednesday there will be no additional access.

The school summer holidays

e) I accept that in an ideal world both parties should have an opportunity to take V away on holiday during the summer. I have not however been addressed on this specifically during the trial. I also accept that V is unlikely to agree to simply splitting the summer holiday period. Consequently I am inclined to accept the father’s proposal as set out in paragraph 18 (6) above. In the event that either party wishes to take V away for a holiday then they will each need to make an application to the court in the normal way.

Single Public Holidays

f) The parties are in agreement that single public holidays should be alternated as set out in paragraphs 17 (4) and 18 (7) above. An order will be made in those terms. However the parties are not agreed on the time for access. For the avoidance of doubt the access shall be from 11:30 am to 8:30 pm.

32. In addition the mother shall have access to V on Mother’s day from 11:30 am – 8:30 pm. In the event that the parties’ birthdays fall during V’s time with the other parent then the arrangement shall be altered so that V has dinner with the birthday parent from after school until 8:30 pm if it is a school day or from 4:30 – 8:30 pm otherwise.

Costs

33. Given that this is a child related matter I shall make no order as to costs.

(Sharon D. MELLOY )
District Judge

The Petitioner Father appeared in person

Mr M Kong instructed by Messrs S.W. Tai & Co. for the Respondent mother

Item	Amount
Rent	$0
Mortgage instalments a) Citibank b) HSBC	$9,262 $9,370
Utilities (electricity, gas, rates, telephone, broadband & water)	$2,550
Management fees	$2,513
Food – V and me (at home) – V and me (out of home)	$4,000 $2,000
Household expenses – fixture repairing	$500
Car expenses	$0
Insurance premia – Home Insurance	$153
Domestic helper(s)	$0
Other – 2 personal loan repayment a) my sister’s p loan b) my personal loan	$31,269 $8,533
Total monthly household expenses	HK$70,150

School books and stationery		$300
Transport to school		$154
Medical/Dental		$2,260
- Dermatologist $800/time (4 times a year)	$266
- Nutritionist Supplement for eczema $1,000/mth	$1,000
- Annual Dental $480 / year	$400
- Orthodontics $34,400 since Feb 2017 (amortize for the next 3 yrs until age 17)	$955
Extracurricular activities (ECA’s)
		$2,960
- ballet $130/lesson (8 lessons/mth)	$1,040
- piano $400/lesson (4 lessons/mth)	$1,600
- Exam fee of the above $3,000/ year	$250
- Summer, seasonal and interest course $800/year	$70
Entertainment/presents		500
Holidays		500
Clothing/shoes		200
Insurance premia		(13,000)
Lunch/pocket money		1,480
Other transport		104
Uniform		66
Others –		288
- mobile phone	$88
- School sundries + school picnic + school extra-curricular activities	$200
Subtotal		8,812

Item	Amount
School fees	N/A
Extra tuition fees	N/A
School books and stationery	300
Transport to school	154
Medical / Dental - $53/$40	93
Extra Curricular Activities - Extra Curricular Activities – Ballet/piano/exams/ summer - $1,280/$1,600/$250/$70 per month	3,200
Entertainment/presents	N/A
Holidays	N/A
Clothing/Shoes	80
Insurance premia	N/A
Lunches and pocket money - $400/$400-	800
Other Transport	104
Child-mining fees	N/A
Uniform	20
Other (specify) – school sundry / telephone: $50/$88	138
Total monthly expenses for children	HK$4,889

TPF v. W

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