LPYY v. FWHF

FCMP 89/2016

[2022] HKFC 271

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NO. 89 OF 2016

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JUDGMENT

(Variation of Access)

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Introduction

1.  This is an application by the Respondent father (“Father”) for a variation of access to the parties’ child (“E”) who was born out of wedlock.  He seeks increase time with E while the Applicant mother (“Mother”) opposes the application.  E is now 9 years of age.

Procedural background

2.  The more detailed background of this case can be found in a previous judgment handed down by Deputy District Judge Rita So on 8 May 2020, in relation to the Father’s application for variation of child maintenance.  However, I will repeat some of the background and supplement with more relevant and up-to-date information.

3.  On 27 April 2016, the Mother commenced an action for custody, care and control of E and child maintenance against the Father.  

4.  On 17 October 2016, a Consent Order was made by HH Judge C K Chan granting joint custody to the parties, care and control to the Mother and defined access to the Father, including day access and staying access.  There was also an order for daily telephone calls and skype calls, and holidays to be shared equally in principle.  The defined access arrangements are detailed as follows:

Weekday access
(a)	(i)	from 6:30 pm to 8:00 pm every Tuesday...
	(ii)	electronic access to E including but not limited to telephone calls and skype between 8:00 pm to 11:00 pm every evening not more than twice …

Weekend staying access
(b)	In addition to paragraph (a) above, the Respondent do have staying access to the E …

5.  Unfortunately, there were difficulties with the access to E in around late 2017.  She demonstrated resistance towards meeting with Father.  In response to the deteriorating quality of access, the parties sought help from the Parent-Child Contact Centre (“PCC”).

6.  On 20 November 2017, the Father filed applications for variation of care and control and access, alongside a variation of maintenance.

7.  Pending further court order, overnight staying access stopped after December 2017 due to E’s resistance towards Father.  Since February 2018, the Father only had weekend day access at the PCC.

8.  On 12 September 2018, Deputy District Judge Rita So, inter alia, made a consent order at the close of a CDR, for a downward variation of the access arrangement (“2018 Variation Order”).  This 2018 Variation Order removed overnight stay access, limited physical access to dinner access during weekdays and Saturday access at the Parent-child Contact Centre.  It is also made in conjunction with certain undertakings by the Mother.  Excerpt of the 2018 Variation Order is as follows:

(1)	Video call or telephone call access to the Child between 9 pm to 10:30 pm every night;
(2)	Dinner access to the Child between 7 pm to 8:30 pm on every Tuesday and Thursday;
(3)	Access to the Child at the Parent-child Contact Centre (親籽薈) at 1:30 pm to 3:30 pm on every Saturday …

9.  Since the 2018 Variation Order, spanning the covid pandemic, and through intervention of social welfare officers, the access arrangement just prior to this current hearing evolves to Friday evening access at a venue close to the Mother’s residence, and alternate Saturday access at the PCC.

10.  Father took out the present summons on 14 January 2021, seeking a variation of access to E to, inter alia, increase his access from Thursday after school until noon on Sunday for school days and from 1:30pm on Thursday to noon on Sunday for a non-school day; and daily remote access between 8-11 pm.  Parties failed to reach a settlement after two CDRs before Deputy District Judge Raymond Chow (as he then was) which took place on 25 October 2021 and 31 December 2021.  The Father’s application was then adjourned to the present trial before me.

11.  Over the course of this 3 days’ trial, both parties gave evidence, as did the social welfare officer and the clinical psychologist. 

Brief background of the family

12.  The Father, born in 1975, is now 46 years old and the Mother, born in 1978, is now 44 years old.

13.  Both parties had former spouses whom they both had divorced in or around 2012.  Father has in his former marriage a daughter who now resides in Australia with his ex-wife and to whom he pays periodical maintenance.  While Mother has no child from her former marriage, she gave birth to a son before her former marriage, but she had not asked for custody, care and control, nor has any duty to pay maintenance.

14.  The Father was employed at a local bank but was terminated in around September 2017.  His unemployment lasted for a brief period of time before he was then engaged with an immigration consultancy company as a director or partner.  The Father now works at a bank on a contract basis; and is paying HK$29,500 per month of maintenance to the Child.

15.  The Mother worked as an accounting clerk but terminated her employment in around mid-2011.  This was shortly after the parties began dating in April 2011.  The Mother remains unemployed.

16.  E was born on XX August 2013.  She just turned 9 and is studying Primary 3 in a local government-aided school.

17.  The parties’ relationship had turned sour since a few months before E’s birth, they appeared to have an on and off relationship until the Mother filed her application for custody care and control in April 2016.  The parties strained relationship does not appear to have improved.

The Father’s case and open proposals

18.  It is the Father’s case that Mother disregarded the Consent Order made by HH Judge C K Chan on 22 September 2016 and behaved in a way that severely obstructed his access with E.

19.  Father complains about Mother’s uncontrolled behaviour that is abusive and intrusive towards him, which has obstructed and interrupted his access time with E.  He drew attention to the fact that such abusive behaviour started around May or June 2017 when he was enjoying weekly staying access.  Such behaviour increased during video call access as a result of which he had to suspend video call access arrangements by April 2018. 

20.  Since then, Father says that E developed a progressively deteriorating trend of behaviour towards him and perceives him as a “common enemy” with the Mother.  Father also says that the quality of access, being mostly at the PCC, progressively deteriorated over the last 4 years to a point of failure.  This is despite his best efforts to rectify E’s belief that he is dangerous and monstrous.  

21.  It was the Father’s case that he had been willing to compromise by consenting to the reduction of access time voluntarily as well as with the 2018 Variation Order.  He says he painfully endured these compromises “for the proper mental development of E”.

22.  The Father has sought to argue the relevance of parental alienation in this case and brought this up at the PTR, but I directed that as there is no independent expert evidence on this topic, I would be unable to rule on the issue of parental alienation.

23.  Over a number of social investigation reports and clinical psychologist reports prepared over the last 7 years, the social welfare officers and the clinical psychologists could not determine the real cause of the E’s near complete rejection towards the Father.  Thus, besides the issue of variation of access, the Father also sought for the following ancillary issues to be considered:

a.  Whether the Mother had exerted abusive and intrusive behaviour towards the Father and in front of the Child which had severely obstructed his access with the Child?

b.  Whether the Mother ought to make certain undertakings to prevent this type of abusive behaviour from repeating during and outside access time?

c.  Whether the Child should attend psychological therapy and counselling with a view to reduce and manage rejection and attitude towards the Father?

d.  Whether the Mother should attend psychological therapy and counselling with a view to (i) reduce and manage the level of abusive attitude and behaviour towards the Father, especially in front of the Child; (ii) display a genuine level of support on the Child having access with the Father; and (iii) genuinely foster a strong and healthy relationship between the Child and the Father?

24.  Although Father recognises that a dramatic change in access times with E is “currently very difficult”, he believes that without an order for a “more longer-term access goal”, the Mother will continue to disregard her responsibility to assist and to foster a good relationship between E and himself.

25.  The Father’s open proposals are thus as follows: -

(1)   For a “longer term goal” for defined access, he proposes weekend staying access, weekday dinner access, daily electronic access, liberty to take E to overseas trips etc. This is in an effort to help restore the necessary bond between himself and E;

(2)   To appoint a Parental Coordinator to facilitate quick resolution of the parties’ disputes and misunderstandings, so that restoration of quality and meaningful access can be achieved sooner;

(3)   He offers to bear the cost of any psychological therapy and counselling session that E and / or the Mother participate in, as recommended by any clinical psychologist of the Social Welfare Department or PCC, as they consider suitable, appropriate or necessary;

(4)   …., and

(5)  He also seeks a number of undertakings from the Mother, mostly focusing on her facilitating access, promoting relationship between E and him, and refrain from speaking ill of the Father.

26.  Father in his oral opening says adamantly that access should be unobstructed and uninterrupted, and that all he wants for E is to experience and receive love and to learn from her “capable and well educated father”.  He asks for the opportunity to participate in her life and to act as a responsible father in her upbringing. 

27.  At the end of the trial, parties were given 28 days to file closing submission, Father has not done so.

The Mother’s case and open proposals

28.  Mother relies on professional views of the social welfare officer and clinical psychologist to support her position that she has not exerted any abusive behaviour towards the Father.  She points out that the three Social Investigation Reports (“SIR”) describe her as having been facilitating access and cooperating with the PCC and the social welfare officer to explore possible alternative for access.

29.  Mother also says that, in any case, it is not necessary to make a factual finding of whether or not she acted abusively towards the Father, because all reports prepared by the social welfare officer and the clinical psychologist is against increasing access time in favour of the Father.  Her counsel submits the following as reasons:-

(1)   E is persistently and intensely resistant towards the Father;

(2)   E’s resistance includes refusal to leave home for access; repeated and vigorous yelling, screaming, crying and trembling; and/or hiding from, ignoring, or assaulting the Father;

(3)   E’s heavy attachment to the Mother and regression behaviour;

(4)   While the reports could not provide a definitive answer to the cause of the E’s serious negative impression towards the Father, it can be observed that the Father has been unable to meet the E’s psychological needs; he exerted a tough attitude when the E was emotional during access.  The dispute between the parties might have also fuelled the E’s impression of the Father;

(5)   The Father rejects professional opinions from the clinical psychologist and does what he considers as beneficial to himself;

(6)   To allow the Father’s access to E or to take E away from the Mother will only worsen the negative impact on E’s impression of the Father, mental health and mental development.

30.  The Mother also criticises that Father requested the 4^th and 5^th SIRs in the hope of persuading them to change their views.  However, the reports continued to and even more strongly recommend against increasing access.

31.  The Mother’s open proposals are as follows:-

(1)   To vary down access times;

(2)   To revise undertakings for the purpose of facilitating interaction and bonding between the Father and the Child;

(3)   Parties and the Child to explore the possibility of undertaking “Reunification Therapy”.

32.  Her counsel in his oral opening proposes to adopt the SWO Mr Lee’s recommendation of biweekly access at the PCC and in the alternative, put forward the suggestion of suspension of access.

The issue

33.  Ultimately, the issue before me is whether it is in E’s best interest for the access order to be varied to give increase time to Father.

34.  For the record, I do not consider the issues raised by the Father set out in paragraph 22 herein to be relevant for the determination of the Father’s application before me.   

35.  However, I will also consider what other measures best serve the E’s interest in the near future.

The law in Hong Kong

36.  As a starting point, the guiding principles governing an application concerning a child are set out in s 3 of the Guardianship of Minors Ordinance, Cap 13, which says that:

“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;

For the avoidance of doubt s 48 C Matrimonial Causes Ordinance, Cap 179 adds that

…… section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the best interests of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).

37.  In looking at the meaning of “first and paramount consideration”, the explanation by Lord Mac Dermott from the case of J v C [1970] AC 668 at 710 cited by DDJ A Tse (as she then was) in the case of E v F[2018] HKFC 130 at §50 is most helpful:

“it seems to be that they must mean more than the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby; when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interest of the child’s welfare …”

38.  The “Welfare Checklist”, i.e. a list of factors under the English Children Act 1989 in the UK, has been a useful guide for our Courts when considering what is in the best interest of children.  These factors are not to be utilised mechanically and judges may cherry pick those that are most relevant. (H v N(children: variation of interim order) [2012] 5 HKLRD 498) The list of factors are:-

(a)  the ascertainable wishes and feeling of the child concerned (considered in the light of his age and understanding);

(b)  the child’s physical, emotional and educational needs;

(c)  the nature of the relationship of the child with each of the child’s parents and with other persons;

(d) the likely effect on the child of any change in the child’s circumstances;

(e)  the child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

(f)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(g)  any harm which the child has suffered or is at risk of suffering;

(h)  any family violence involving the child or a member of the child’s family;

(i)   how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)   the practical difficulty and expense of a child having contract with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k)  the range of powers available to the court under the 1989 Act in the proceedings in question;

(l)   any other fact or circumstance that the court thinks are relevant.

39.  As for the right of access, the Court regards it as the right of the child, not a right of the non-custodial parent.  Hence, considering the child’s best interest, it may be appropriate to refuse access from the non-custodial parent if the child will be adversely affected by it (per Hon Godfrey VP in W v I [2000] HKCA 374).

The Reports

40.  As mentioned above, there have been a number of reports prepared over the course of these proceedings.  There are 5 SIRs since August 2016 (respectively 27 August 2016, 4 July 2018, 6 July 2021, 11 October 2021, and 13 June 2022), of which the latter three were prepared by Mr. Lee who gave evidence in Court.  There are also psychologist report prepared by Ms Wu dated 29 June 2018, and a clinical psychologist report prepared by Ms Chu dated 13 June 2022 (collectively the “Reports”); Ms Chu also gave evidence in Court.

41.  Excerpts of the Reports appear below.  Generally, I find both Mr Lee and Ms Chu to be credible witnesses.  I am particularly impressed with Mr Lee’s engagement with and insight of the family dynamics and situation through his oral evidence. 

42.  I also find Ms Chu’s evidence to be helpful but my disappointment lies in the fact that she said she has tried every method she knew how to help E and do not know what to do with her next.

What has been happening at Access

43.  The most succinct and visual description comes from the latest SIR dated 13 June 2022 (“June 2022 Report”) at §18:

… 從社會工作主任的觀察，E經常聲嘶力竭地面對F先生，反映她並不樂於進行探視。E在探視其間的情緒表現極度反覆，尤其在疫情後恢復的探視，可就是已到達歇斯底里的程度、情緒失控至聲淚俱下和全身發抖的狀況在探視過程中多次出現。若這種情緒狀態一再持續，恐怕對E的心理發展和精神健康帶來巨大的負面影響。(my emphasis)

Phone contact

44.  E has refused to respond to Father’s attempt at audio and video contact.  Father had resorted to sending recorded messages to her through Mother, according to Mother and reported in the SIR dated 6 July 2021 (“July 2021 Report”), the following is the E’s reaction at §8:

…. F先生幾乎每天也有多個語音信息通過她的電話傳送給E，每當收到他的訊息時，她便會讓E聽取及鼓勵她回覆，但E每次也表現抗拒，不停尖叫及嚷著「唔想聽」、「唔想講」等，有時甚至大哭起來。

Day Access at PCC

45.  Access has been taking place on alternate Saturdays afternoon at PCC, every time E goes there, she would demonstrate a lot of unwillingness to go into the room to meet with Father; and even when she finally did, there was either serious tension or limited interaction between the two:

… 當到達親籽薈時，E往往不願與L女士分離，並嚷著要離開或要求L女士陪伴她進入親子房間。即使L女士不斷鼓勵E合作或嘗試帶她進入房間交給社工及F先生，她也毫不理會，甚至大喊大叫及大發脾氣。(July 2021 Report at §10)

46.  Mr Lee reports at §10 of the June 2022 Report:

… 在L女士的陪同下，E能在親子房間與F先生進行活動，但她的情緒依然反覆，對F先生表現抗拒，拒絕與他接觸或獨處。...

47.  At an observation of access at PCC on 14 May 2022, Mr Lee reports as follows:

10. … 佐姑娘和F先生一起在等候區迎接她們，E一直坐在椅子上尖叫，並拉着L女士，表示不想進入親子房間。…

11. … 當F先生接獨遊戲道具時，E不斷尖叫，直至F先生放下道具，她才安頓下來。儘管佐姑娘和L女士不斷引導和鼓勵，E仍堅拒讓F先生參與遊戲，甚至大哭起來，… (§10-11 of June 2022 Report)

Evening Access

48.  E currently sees Father every Friday, this started with a dinner access and has over the years evolved to take place on the podium near the Mother’s residence.

49.  In the July 2021 report, this was what happened in May 2021:

16.  社會工作主任於2021年5月4日在晚餐探視前到L女士家中觀察E出門前的情況。L女士預早提醒E晚餐探視的時間，E多次表示「唔想去」。當L女士協助E換衣服預備出門時，她躲在飯桌下，又睡在沙發上，與L女士爭持，並重覆嚷著「唔想去」。經過L女士的一番努力，以不同方式引導E，花了大約二十分鐘，她才願意出門。… (§16 of the July 2021 Report)

50.  At an observation of evening access on 22 April 2022, Mr Lee went to the Mother’s residence and reported this event:

6.  社會工作主任於2022年4月22日在晚間探視前到L女士家中觀察E出門前的情況。E一直依附著林女士，未有與社會工作主任直接交流。L女士預早提醒E晚間探視的時間，E多次表示「唔想去」。當L女士預備出門時，E躺在沙發，又跪在地上，大哭大叫，與L女士爭持。經過L女士不斷地鼓勵 和引導，E 才不情願地出門，隨 L 女士一 起到平台公園。當F先生到達時 ，E立刻 躲於 L 女士背後，掩着眼睛和耳朵 ... E一 直依附着L女士 ，拒絕 與F先生對話或 接觸。儘管L女士不斷鼓勵E與F先生對 話和玩耍，E 不停叫喊和嚷着要回家。F 先生耐心逗 E 說話，強調自己不會傷害她，但E沒有理會，甚至情緒激動，多次用腳踢F先生的小腿，叫他離開。(§6 of June 2022 Report)

Discussion

51.  I have no difficulty in coming to the decision that the Father’s application must be refused.  

52.  In consideration of the E’s best interest, I believe more measures are required to alleviate the trauma she now experiences going into access with Father.

The View of the SWO Mr Lee

53.  In his first Report in July 2021, Mr Lee says that the Father does have certain realizations. However, I am not of the view that the Father has sustained this understanding.

32. ... F先生亦明白，他必須繼續保持耐心和正面的態度，學習處理E的反覆情緒和行為，細心了解E的情感和發展需要，逐步與E重建安穩的依附關係和情感聯繫，探視的模式才可望有進一步的進展，以達致他期望的獨立探視或留宿探視。(July 2021 Report at §32)

54.  In his second report in October 2021 (“Oct 2021 Report”), Mr Lee has this to say at §8:

8. … 社會工作主任及臨床心理學家則認為，F先生、L女士和E這個家庭系統是由三個關係組成，包括L女士與E、F先生與E和F先生與L女士。要平衡這個系統，不單只是L女士的責任，F先生也扮演著重要的角色，需要學習與E和L女士共建和諧信任的關係。... 可是從親籽薈社工於探視期間的觀察，以至在電話聯繫的過程中，F先生仍未能有效掌握和回應E的情感需要。當E出現反覆情緒時，F先生有時會擺出強硬的態度，令父女關係變得更對立，亦為E帶來負面的探視經驗。... F先生與L女士持續爭執，父母長期的緊張局面亦會令E對F先生產生負面觀感，甚至認為與F先生的聯繫是父母爭執的根源，令她抗拒與父親接觸。(my empahsis)

55.  I specifically recall one part of Mr Lee’s oral evidence when he talks about the weekday access at a podium near Mother’s residence.  When E sees both parents’ presence and see them talking to each other, she reacts more positively to Father’s presence.  This may be an indication that E needs to see the parents in a good terms, especially as she is very close to Mother.  On this point, Mr Lee emphasizes that for access to be successful, it is not just about Father and E, but also between Father and Mother, it’s a tripartite system, and each with important roles to play.  It is clear to him if the parents are in tension, E reacts negatively.

56.  In Court, Mr Lee says that Father would initially appear to be engaged and in agreement with his proposal but in a few days’ time, Father would then revert back to his own point of view and preferred actions.

57.  It is important to note that in his last June 2022 Report, Mr Lee no longer recommends the Friday access but only proposes to keep the phone access and bi-weekly access at PCC.  Regarding these proposals, he explains that on-going access at PCC is preferred as intervention by on site SWO will be available if needed.  He further comments that Father is unable to control or manage E by himself if she goes into hysteria reaction.

58.  At the end of cross examination, I asked Mr Lee whether the parents have a good understanding of the situation.  Mr Lee states that the issue with Father is his unwillingness to accept other people’s advice or change his views, therefore failing to see E’s needs, and only focus on what he wants.  He comments that Mother is willing to collaborate and listens to advice and will try to do what has been suggested to her; but she continues to be under stress as she is always suffering under the Father’s accusing finger.

59.  I accept Mr Lee’s evidence.  I further acknowledge his candour in his oral evidence and his efforts in guiding the parents and dealing with their differences.

The View of the Clinical Psychologist Ms Chu

60.  The view of the clinical psychologist was first captured in §28 of the July 2021 Report, this was her observation:

28. … 當談及F先生時，E表現相當抗拒，不願分享有關探視的經驗，對F先生的感受，以及對F先生抗拒的原因。朱姑娘表示，E對F先生積累了不少負面觀感，暫時未有相關定論和找出確實的成因。朱姑娘認為，E在每次探視前與L女士的角力，持續加深E對F先生的成見和探視的抗拒，過程亦令L女士感到很大壓力。

61.  The essence of her report in June 2022 describes E’s personality and her observations; while she is not able to place the reasons for E’s reaction to Father, what is most disturbing is that E seems to have regressed behaviour, she withdraws herself socially and is in an enmeshed relationship with Mother.  This actually echoes what the Mother said in her oral evidence that relatives observe that E behaves way below her age.  Ms Chu comments that E is also experiencing serious insecurity issues and as echoed in Mr Lee’s oral evidence, takes a long time to warm up to people. 

62.  Ms Chu holds a strong view that Father has to hold off on his conduct to allow for the E to recover.

23. F先生一直認為E對他的抗拒主要是受到L女士的影響，即使本人曾經向他解釋E的成長及她與父母的關係怎樣影響她，卻未能擴闊他去理解探視問題的角度，相反，他更用力去證明他的觀點正確。當本人嘗試與F先生討論在探視時他可以怎樣回應E的抗拒行為，以改善E與他的直接經驗時，他就表示自己可作的甚為有限，這樣的要求對他並不公平；他一直認為，需要改變的是L女士。F先生認為L女士不能好好控制自己的情緒，會因受壓而發脾氣是她本人的問題，會因此影響E就更加不對。對於L女士的難處他表現得難以認同，反而指出他自己的壓力更大。他並且認為需要以法庭盼令去管制L女士的不當行為，這也是他今次向法庭作出申請更改探視的原因。F先生表示有考慮過繼續訴訟對E可能帶來負面的影響，但為著最終能幫到E的福祉，他認為作為負責任的家長就需要這樣做。過去，在討論如何解決探視困難時，本人曾經提醒F先生，激進的改變可能會為E的心理帶來創傷，然而F先生認為本人不應該只著眼於風險而忽視改變可能帶來的益處，而且他認為本人所擔心的只是假定的結果。與F先生溝通的過程中，本人體驗到F先生傾向主觀，對於相信的事情他不易動搖，也不容易接易別人意見或作自我反省，他認為是對的或有益的就會努力去達成，甚至不理對人（E）的影響。假若F先生繼續以這樣的態度去處理他與E及L女士的關係，恐怕父女間的關係會更難重建。(my emphasis)

63.  What is pronounced is that if this is not done, it is her view that the E’s emotion social and mental health will suffer.

25. … 若果在她不想或未準備好的情況下要她與L女士分離，她的恐懼不安伴隨抗議及抗拒自然會更加強烈，而她粘著母親的情況亦會越嚴重，而近月E更倒退到想要停留在幼兒階段，退縮及焦慮/抑鬱的行為亦比以往嚴重，情況確實令人擔心。假若在探視的問題上繼續向E施壓，恐怕只會將她迫得做出更極端的反抗及退縮行為，對她的情緒、社交及精神健康造成更負面的影響，甚至影響她的正常生活。有見及此，本人認為現階段當以協助E重建安全感為目標，好讓她的情緒行為得以恢復到其年齡水平。另一方面，林女士亦需要調整她與E的關係，協助E建立合適的獨立自主，使她可以安心地與母親分離，與其他人建立連繫。與此同時，L女士需要學習更好地處理她的壓力及情緒，以免繼而影響到E。為此，本人建議E及L女士繼續接受臨床心理治療。

26. … E的情緒及心理健康為現時首要處理的問題；要幫到E，避免她的心理狀況繼續惡化，他必須停止在探視問題上繼續施壓。以E現時的心理狀況及父女關係，要實行到F先生向法庭申請的探視安排絕不可能。而以頒令去向L女士施壓，亦只會延續一直的惡性循還。另一方面，為了讓E與父親有連繫的機會，F先生應該繼續獲得介定探視。然而，F先生需要調整他對探視的期望及目標，他應當著眼於自己如何向E表達關心及體諒，而不是著眼於探視的頻次及長短，或其他人有沒有盡力。

27. … 本人希望F先生盡量嘗試去了解E的想法，尊重她的感受及意願，知所進退。同時，亦希望F先生多聆聽及採納他人的意見，避免一意孤行地做出會為E帶來負面影響甚至可能傷害的決定。(my emphasis)

64.  Father in his cross examination of Ms Chu accuses her of being biased and in favour of Mother, this was denied.  His line of questioning echoes his criticism of the Mother, specifically of her inability to control her emotion and her low threshold to handle pressure; Ms Chu’s answer to this is that Father is the one who is causing the Mother’s suffering.  She further reiterates that Father will not listen to any suggestion from her.

65.  When cross examined by the Mother’s counsel, Ms Chu repeats her view that imposing more access and perpetuating Father’s conduct will only negatively impact E, who will continue to resist even more vehemently.  She emphasizes that what is priority now is to foster the E’s sense of security, trust and appropriate level of independence. 

66.  I also accept Ms Chu’s professional views with regard to E’s mental state and the possible risks going forward; save for my decision regarding access in the immediate term as elaborated below.

My view of the Father’s position

67.  I have the benefit of seeing Father gives evidence in Court, he acts in person, is fluent in English and ably presents his case.  He says in his opening that all he wants is to have an on-going relationship with his daughter.  I do not doubt for a moment that he loves E, and his intention well meant.

68.  However, what comes through clearly at trial to me, is that he has no insight whatsoever as to how his conduct is affecting his daughter.  He thinks only he is right and everyone else is in the wrong.  He is only intent on blaming Mother for everything that is happening between E and him, and bases his whole case on his allegation of the Mother’s conduct.  He also believes that his way is the right (and probably the only) way, and says he refuses to be dictated by E’s behaviour; therefore he imposes his own wishes on E with no apparent sensitivity to her emotion, needs and reactions.  The following is in the October 2021 Report:

6.  F先生認為現行探視的時間並不足夠讓他與E改善關係，他要求增加探視的時間和次數，令他有更多空間與E接觸，逐步建立依附關係。他相信E對他的抗拒表現是受到林女士的負面影響，亦認為探視的進程不應再被E主導，即使她表現抗拒或情緒反覆，各方也必須樹立強硬的態度，例如安排L女士離開親籽薈，讓E獨自與他留在活動房間，在沒有L女士的介入下，即使E出現情緒也只是短暫痛楚。他認為讓E突破現時框架，以至衝破她的舒適區，才有望達至獨立探視和留宿探視的目標。(my emphasis)

69.  The Father position is further elaborated in the following excerpts from the same report:

9. … F先生亦明白現階段未能與E獨處，但認為探視的進程不應被E的抗拒表現主導，甚至建議以較強硬的方式讓E與他進行獨立探視和留宿探視。(my emphasis)

But Mr Lee comments as follows:

… 社會工作主任及臨床心理學家認為此舉只會加深E對F先生的抗拒和負面情感，甚至令E不再願意接觸F先生，以及為她帶來不能預計的心理衝擊。F先生應多從E需要和角度出發，伴隨E的步伐，逐步與她建立正面和信任的關係，獨立探視及留宿探視才有望能進一步實行。(October 2021 Report at §9)

15. F先生表示，E的年紀尚輕，自己亦未曾傷害過她，認為她對自己的負面情感和對抗態度是受到L女士的離間。他認為E多年來已受L女士的負面影響，令她失去與父親相處的機會。因此，探視的進程不應再因E的抗拒態度和情緒反應一再拖延。…

17. … F先生認為E的對抗態度是受到L女士的影響，多年來父女的關係不進反退是L女士的責任。L女士則認為F先生長期的進迫態度、挑釁行為及漠視E的感受等令E感到害怕和反感，令父女的關係每況愈下。

18. … F先生認同現時的探視質素並不理想，但他認為E是受到L女士的影響，因此探視的進程，以至獨立探視和留宿探視的安排，不應再被E在探視的表現和狀態主導….  (§§15, 17 and 18 of June 2022 Report) (my emphasis)

70.  Father’s cross examination of Mr Lee, Ms Chu and Mother demonstrate his focus on pointing outward to other people’s faults, and shows a serious lack of self-reflection of how he has contributed to today’s predicament in his relationship with E.

71.  I do not accept Father’s intransigent views that he knows what is best and that he should take over the reign and not be led by the E’s reaction to him.  Father clearly does not understand that increasing the quantity of access does not necessarily lead to increase in its quality.  My view is supported by both Mr Lee and Ms Chu as contained in their reports and oral evidence at trial; it is both their opinions that Father is not willing to take advice on how he should be approaching his time with E.  E’s excessive reactions to Father need to be guided by professional hand; forcing one’s way forward will only result in more negative reactions, and may harm her further in the long run.  What is disturbing to me is that Father is oblivious to all this.

About the Mother

72.  Mother comes across as caring and genuinely concerned about E’s mental state.  The reports repeatedly say that she has been consistently co-operative, and willing to try different ways of engaging with Father.

73.  Mother repeatedly states how stressful she has been in dealing with accusations from Father, managing E’s resistance to him, while dealing with her grave concerns over E’s regressive behaviors.  She was also stressed when there were litigations over reduction of maintenance payment. 

74.  Father focuses his allegations against Mother, criticizing her for emotionally abusing and manipulating E, and for being a bad role model for her, these are denied.  At the trial, he has subjected her to a rather lengthy cross examination based on transcripts of recording during video sessions he had with E which took place back in late 2017 to early 2018, when Mother accompanied her on the video calls.  Father accuses her of losing her control and using abusive language at him during the calls, and he claims that this has affected his relationship with his daughter. Mother’s oral evidence is that if those words were uttered, it was prompted by Father and must be read in context of the conversations.  She agrees that those interaction could have affected E, but this took place 5 years ago, and is no longer happening.  Counsel for the Mother reminds this Court that Mother has given an undertaking in September 2018 not to physically appear in or conduct extended conversation and give E and Father privacy in the video access.

75.  This appears to be the crux of the Father’s case against Mother, based on events that go back several years, but nothing more was put forward to support his case that Mother is ongoing obstructing his access and his relationship with E.  I must admit having observed the cross examination by Father, one can glean his critical attitude against Mother and how she must have been put under immense pressure in the recent years when blamed for E’s reaction to him.                   

76.  I accept Mother’s evidence and finds her to be a credible witness.

What should be the access going forward?

77.  In the assessment of this question, I have in mind the guidance of the abovementioned Welfare Checklist, in particular:

(b) the child’s physical, emotional and educational needs; and

(d) the likely effect on the child of any change in the child’s circumstances; and

(g) any harm which the child has suffered or is at risk of suffering …

78.  It is distinctly apparent to me that what E does not need at this moment is further pressure to spend time with Father.  If any child spends every Friday evening and alternate Saturday afternoons screaming, kicking, trembling and crying in hysteria before going to access, I cannot see how this kind of reaction is not considered as harmful to her well-being.  Furthermore, I am very mindful of Ms Chu’s concern as to the long term effect on E’s mental state.  In my view, physical access time with Father now will therefore be detrimental to her best interest. 

Suspension of Access

79.  At the PTR to this trial, on reading the relevant reports before me then, I have made it clear to Father that while he has applied for an increase in access time with E, I am at liberty to go the other way.  I have also indicated to him that instead of going through the whole trial, money is better spent on helping E’s recovery.

80.  I have not forgotten that the question on suspended access is asked of Ms Chu at trial, and she feels that the Father-Daughter relationship will be affected if access is to be suspended.  I also remind myself that Mr Lee has only suggested a reduction of access to twice a month at PCC.  However, given all the evidence before me especially from the various reports, and oral evidence at the hearing, I am of the view that a period of hiatus is best so that all parties can recover and regroup, and to enable further professional help to be sought.  Therefore with E’s best interest in mind, I will order that Father’s physical access to E be suspended until further Order of Court.

81.  In considering the issue of access going forward.  I am very conscious that best efforts must continue to be made to ensure there are opportunities ahead for Father to mend his relationship with E.  Evidence is that Father and Mother and E are attempting therapy at Asian Academy of Family Therapy, and the Court needs to be apprised of the progress there.  In the alternative, there are professionals who offer family reunification programs.  The updated SIR to be called should contain information from the respective parties on this. 

82.  Father in his open proposal offers to bear the costs of psychotherapy and counselling for E, I intend to make an order for the parties to explore this option for her with a private psychologist/psychiatrist and set this up as a matter of priority, this is preferred because government appointment is taking place only once a month.

83.  I am also of the view that both parties need to have professional guidance on how to manage their inter-relationship and each with E going forward.  In this context, Father should seek assistance especially to learn how to listen to and be open and sensitive to E’s needs, and to place her needs in priority to his own.  As for the Mother, she will need guidance on how to help E to gain a sense of security, learn independence, and to deal with E’s regressive behaviour.  To this end I will direct both parents to seek consultation with private or government psychologist/psychiatrist.  I note that Father is willing to pay for Mother’s consultation or treatment in his Open Proposal and intend to hold him to this offer.

Calling the parties in

84.  I direct that the parties and the SWO Mr Lee to return to Court on 21 November 2022. 

85.  I seek to confirm the time frame for a full parenting course and Mr Lee told me that they are in series of 8 and can be completed within 6 months.

86.  I further inform the parties of my intention to order private therapy treatment for E which can be conducted more frequently than now with the government psychologist.  I also direct Mother to attend therapy; as Mother’s condition is less urgent than E, she can therefore use the government system, however if these sessions are too far apart to assist her, then she should also seek private treatment.  I say this as her ability to support E will contribute to the latter’s faster recovery.  Father confirms his open proposal and undertake to pay for such therapies for E and Mother.

87.  I made it clear to Father that seeking assistance to learn to manage his relationship with E is crucial in moving forward access with E; and invite him to give Court his undertaking to attend therapy for himself.  True to form, he said that he does not think he needs therapy himself, but he agrees to undertake to do so if it will give him access to E.  

Request for Undertakings

88.  At trial I told the parties to consider if they could agree post trial to mutual undertakings as to behaviours during access, I was informed by the Mother’s counsel that they did invite Father to respond to proposals but to no avail.

Cost

89.  Counsel for Mother has asked me to depart from the general practice for child matters and to order cost of this summons incurred after the second CDR on 31 December 2021 to the Mother.  Submissions were made with regard to the Father’s conduct which I accept.

90.  I have informed the Father at PTR that I will consider cost consequences if he insists on putting this whole matter through trial despite all the findings and recommendations from the updated reports.  I agree this is a case where I will depart from the usual practice, and make a costs order against the Father, but only relating to costs subsequent to the PTR date on 4 July 2022, and will include the costs of the trial. 

Orders

91.  Upon the undertakings of Father to (1) pay for E’s therapy with a private therapist, (2) pay for Mother’s therapy, and (3) to attend therapy himself which are accepted by this Court; the following Orders are made:

a. Respondent’s Summons is dismissed.

b. The Order of DDJ R So on 12 September 2018 be varied in that:

i.  Respondent’s physical access be suspended with immediate effect until further Order.

ii.  Respondent shall have remote access via Facetime or similar platform twice a month for not more than 15 minutes per time, at a time to be co-ordinated between the parties or with the assistance of a SWO.

c. E to attend therapy with a private psychologist / psychiatrist, costs to be borne by the Respondent.

d. Both parties to attend parenting courses at the Centre for at least 8 hours within 6 months from the date of this Judgment, the completion certificate is to be filed with the court once with 7 days of the certificate being made available.

e. Updated SIR to be called after 6 months from the date of this Judgment.  

f. Parental co-ordinator to be appointed only on resumption of physical access, costs to be borne by the Respondent.

g. Parties to return for a call over hearing on 13 July 2023 at 9:30am, any applications to be made from now till then shall only be returnable on or after this date.

h. Costs of this Summons from the date of the PTR 4 July 2022 be to the Applicant, to be taxed if not agreed, with certificate for counsel.  This is a costs order nisi to be made absolute within 14 days of this Judgment.

92.  It is directed that:

a. The Respondent to inform the Court the name of the psychologist/psychiatrist from whom he seeks therapy and the date of the commencement of such therapy within 7 days of such commencement.

b. The Respondent do provide his treating psychologist/psychiatrist with all the reports cited in paragraph 40 herein.

FCMP 89/2016

[2021] HKFC 227

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 89 OF 2016

________________________

________________________

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J U D G M E N T
(Varying costs order)

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1.  This is the applicant mother (“Mother”)’s application for varying the costs order nisi, following the judgment of the court dated 8 May 2020 (“Judgment”), from the respondent father (“Father”)’s application for variation of maintenance (“Application”) payable for the child of the parties (“Child”).

2.  After a three-day trial, I handed down the Judgment in relation to the Father’s Application. I ordered that the periodical payment for the Child be varied downward from HK$32,500 to HK$29,500 per month, commencing on 1 December 2017, the date the Father took out the Application. I also ordered that there be no order as to costs for the Application, including all costs reserved, on a nisi basis (“Costs Order Nisi”).

3.  The Mother applied by way of Summons varying the costs order nisi on 21 May 2020 and provided written submissions dated 18 Mary 2020. She asked for variation of the Costs Order Nisi to the extent that the Father should pay her all the costs for the application. The Father opposed to her application.

4.  At the call over hearing on 2 June 2020, the Father requested time to file written submissions. Directions were given for the parties to file written submissions and the matter would be dealt with by way of paper disposal. The time the Father requested to file written submissions was quite substantial, and therefore the Court gave directions that unless the Father lodges with the Court submissions in opposition to the Mother’s application to vary the Costs Order Nisi by 4pm on 1 September 2020, the Father be deemed as not opposing to the Mother’s application.

5.  The Father lodged with the Court the written submissions on time. By the letter from Mr. Tam, Counsel acting for the Mother, dated 10 September 2020, he informed the Court that the Father only served to the solicitors for the Mother on 3 September 2020 by e mail, and therefore, he has failed to comply with the unless order and is deemed as not opposing to the Mother’s application to vary the Costs Order Nisi. Mr. Tam also informed the Court that the Applicant has no submissions in reply.

6.  I am of the view that as the Father lodged with the court his written submissions on time, relief from sanction of the unless order should be given in the circumstances. At the end of the day, the issue of costs is in the discretion of the Court and I have to consider all the relevant circumstances before deciding whether or not to allow the Mother’s application to vary the Costs Order Nisi. Having informed the Mother that the Court will take into account the Father’s submissions, by the letter from the Mother’s solicitors dated 4 November 2020, they confirmed that they have no reply submissions.

The legal principles

7.  The issue of costs is in the court’s discretion. Pursuant to Order 62, rule 5 of the Rules of the High Court (“RHC”),

“(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;

(e)  the conduct of all the parties;

(f)  whether a party has succeeded on party 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.”

8.  Mr. Tam has drawn my attention to the case KJ v KMLM and KCK (Variation; Costs) [2014] HKFLR 227, and had summarized the legal principles as follows :-

(a)  Costs are a matter of discretion, in the exercise of which the Court is required to take into account special matters under O.62, r. 5 of the RHC.

(b)  The principle that costs follow the event is a convenient starting point from which a court can readily depart. It operates to shift to the unsuccessful party the burden of showing why some different approach should be adopted on the facts of that particular case.

(c)  Where the successful party raises issues or make allegations, on which he fails, has caused a significant increase in the length or costs of the proceedings, he may be deprived of the whole or party of his costs. Since CJR, the court is more ready to take an issue-based approach.

(d)  Where the successful party raises issues or makes allegations improperly, unnecessarily or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or party of the unsuccessful party’s costs.

9.  I agree with the legal principles as submitted.

Discussion

10.  In paragraph 159 of the Judgment, I stated that :-

“Generally, costs should follow the event. In this case, the Father is successful in varying downwards the maintenance. However, the Father is getting far from what he asked for. As the award of cost is in the discretion of the Court and in view of the result of the judgment, and the conduct and background of the parties, I am of the view that it is fair to order no order as to costs, including all costs reserved. This is a costs order nisi, which shall be made absolute within 14 days.”

11.  Counsel for the Mother explained in the written submissions why the Costs Order Nisi should be varied, which are summarised into 6 grounds :-

(a)  The Mother is substantially the winner, not the Father

(b)  Adverse findings made in rejecting the Father’s principal basis

(c)  Father’s allegations against the Mother is untenable

(d)  Lack of genuine attempt from the Father to settle

(e)  Father’s rejection of the Open Proposal of the Mother was unreasonable

(f)  Serious unfairness to the Mother and the Child under the Costs Order Nisi

12.  The Father opposed to the Application and explained the reasons in his written submissions, with the following main reasons :-

(a)  There was no clear winner in the original application.

(b)  The Mother failed on a number of issues

(c)  There was zero attempt by the Mother to resolve the matter without trial

(d)  Varying the Costs Order Nisi and award any costs to the Mother is unjust to the Father.

13.  I have carefully considered all the submissions by the parties. I have also considered the background of this case, which I refer to paragraphs 3 to 41 of the Judgment.

14.  It is trite to stress that the issue of costs is in the Court’s discretion, with the consideration of relevant circumstances of the case. Generally, costs should follow the event, but there is no hard and fast rule.

15.  As stated in paragraph 159 of the Judgement, I am of the view that the Father is successful in varying downwards the maintenance, but he is getting far from what he asked for. Mr. Tam submitted that the Mother is substantially the winner, not the Father, as she was able to resist the Father’s Application to a substantial extent, whether on an outcome- or issue-based perspective.

16.  I have reservation to Mr. Tam’s submissions. While it is true to say that the amount ruled in the Judgment is far from what the Father asked for (which I had acknowledged in paragraph 159 of the Judgment), I have also considered the issues of the case and the allegations raised by the parties, as well as the manner the application is pursued or defended.

17.  I have identified the issues in dispute in paragraph 47 of the Judgment, which include the following :-

(a)  Whether the termination of employment of the Father is a material change of circumstances

(b)  The financial resources and earning capacity of the Father

(c)  The financial resources and earning capacity of the Mother

(d)  Reasonable expenses of the Child

18.  In relation to the financial resources and earning capacity of the Father, I have further identified sub-issues to be considered in paragraph 62 of the Judgment, as follows :-

(i)  Whether the Property should be considered as the Father’s financial resources.

(ii)  The liability of the Father

(iii)  Whether the financial difficulties alleged by the Father is self-induced

(iv)  The earning capacity of the Father

19.  Regarding whether the financial difficulties alleged by the Father is self-induced, I have summarised the Mother’s stance and allegation in paragraph 80 of the Judgment, which include mainly :-

(1)  The Father had dissipated assets by (a) spending money in purchasing and renovating the Property; (b) transferring his vehicle to his younger brother; and (c) unjustifiably reducing balance or withdrawing money from his account as early as in 2016, and the total amount inexplicable amounts to $3,491,152, which Mr. Tam had provided a detailed breakdown table (“Table B”), which was produced at the trial and marked as exhibit “A2”) (refer to paragraphs 81 to 91 of the Judgment).

(2)  The Father had lavish spending.

(3)  The inability of the Father to secure another job or get any income at all since September 2017 is unreasonable.

20.  I have to emphasise that the Court has to look at all the evidence as a whole and it is not practicable to simply compare the number of issues accepted by the Court, as some of the issues are intertwined. I have to emphasise that this is not a simple calculation exercise counting the number of points accepted. The points accepted by the Court may be one of the considerations, but at the end of the day, the evidence has to be looked at as a whole to see who is substantially the winner.

21.  An important event in this case, which triggered the application and which is not disputed, is that the Father’s employment at a bank, with a monthly salary of HK$177,219, was terminated by his employer in 2017. It is the Mother’s stance that the termination of employment is not a material change of circumstances. Examination had been conducted in this respect in relation to, for example, whether the Father accepted that there is a “high risk of redundancy” and it is not unexpected to have lost his job.

22.  It was upon the Court’s request for clarification that Mr. Tam clarified during trial that even if the Court is to rule that it is a material change of circumstances, it is the Mother’s case that the Father still has sufficient financial resources and high earning capacity, and the maintenance for the Child should not be varied downwards (paragraphs 48 to 50 of the Judgment).

23.  For this issue, I am of the view that the termination of employment of the Father by his employer is a material change of circumstances, but the more important question is, whether the Father still has the ability to pay for the same amount of maintenance for the Child, or whether there should be a reduction in amount, as I explained in paragraphs 51 and 52 of the Judgment.

24.  In my analysis in the Judgment, I have considered the evidence as a whole, especially the financial resources and earning capacity of the Husband. To summarise, I accepted that the Property should be considered as the Father’s financial resources, I ruled that the Father’s liability could be regarded as soft loans or financial assistance from his parents, I ruled that the Father’s earning capacity is much higher than that of the Mother (which is not disputed) and he still has high earning capacity, it is hard to believe that the Father had used his best effort to look for a job or to get some income for the long period of time he had been out of work and I have expressed my concern about the spending style of the Father and where exactly had some money been spent on, especially in view of the period of time after his employment had been terminated.

25.  However, at the same time, I am not convinced that there is dissipation of assets of the Father, as submitted by Mr. Tam, by (a) spending money in purchasing and renovating the Property; (b) transferring a car (with the purchase price of only $50,000 and estimated current value of about $2,000) to the Father’s younger brother; and (c) the large sums of money as shown in Table B of exhibit “A2”, in the total sum of over $3 million.

26.  I had ruled that the Father had not fully and frankly disclosed the full picture of his financial situation and I have drawn adverse inference in this regard, which resulted in the ruling that the Father is able to pay for the reasonable expenses of the Child as I had ruled (paragraphs 94 to 107 and 156 of the Judgment).

27.  In relation to the financial circumstances of the Mother, it is true to say that the Father’s allegations against the Mother’s finance is untenable and therefore there was no adverse inference to be drawn against the Mother. However, at the same time, I did notice that when the Mother is in financial needs, she could get financial assistance from her family and friends. I also observed that when the Child grows older, the Mother could re-enter the labour force and resume working either full time or part time (paragraphs 121 to 125 of the Judgment).

28.  In relation to the reasonable expenses of the Child, I did not accept the submissions of the Mother in taking a broad brush approach to accept that $32,500 is a reasonable sum. I explained that as this is not a big money case, looking at the individual items of the Child is more appropriate and necessary (paragraphs 127 to 130 of the Judgment).

29.  After consideration of the evidence as a whole, I have analysed and ruled the various aspects of expenses for the Child, and I have ruled that the total reasonable expenses are $29,500 per month.

30.  Having explained in paragraphs 15 to 29 above, I have reservation that the Mother is substantially the winner as alleged, whether on an outcome- or issue-based perspective.

31.  In any event, I will further consider other submissions of the parties, including the conduct of the parties, and also how the parties raise, pursue or contest the allegations and issues of the case.

32.  Both parties had alleged in their submissions that the other side had wasted the court time in making allegations and points not accepted by the Court. The issues accepted and rejected by the Court are summarised and analysed (see paragraph 15 to 29 above).

33.  For the reasons aforesaid, I am not convinced that at least two-third of the trial costs could be save, as suggested by the Wife’s Counsel. I am not of the view that the Father had acted unreasonably in pursuing his application and in contesting the allegations against him.

34.  In relation to whether there were genuine attempts of the parties to settle and whether it was unreasonable for the Father to have rejected the Open Offer of the Mother, I have considered all the evidence as a whole. The Open Offers by the Father and the Mother are stated in paragraphs 33 and 41 of the Judgment. While it is correct to say that the Open Offer of the Mother is nearer to the ruling by the Court after trial, I have also considered the parties’ conduct throughout.

35.  While the Father’s proposal had been unacceptable by the Mother, it cannot be denied that the Mother had not made counter-offer prior to the Open Offer. The Father had offered HK$18,000 as early as in 2017 and invited the Mother to consider and counter-offer, which the Mother objected as it was far from what she requested. The Mother had all along insisted in asking for the full amount outstanding. It was about 7 days before trial, in the Opening Submissions and Open Offer of the Mother’s Counsel, that the Open Offer, as stated in para 41 of the Judgment, had been proposed.

36.  It is noted in the Mother’s Open Offer that she suggested some allowance in the reduction of the amount of maintenance for 1 year, and after 1 year, she insisted resuming to the same amount as previously ordered.

37.  Further, I have not lost sight of the fact that money had been spent by the Mother in engaging solicitors to defend the application. With the payment of legal fees, the Mother will have less money to spend for herself or on the Child. The financial resources and earning capacity of the Mother was considered in paragraphs 113 to 126 of the Judgment. I notice that when the Mother is in financial needs, she could get financial assistance from her family and friends. Without providing further details or supporting documents for the loans of the Mother, I accept that they could be soft loans from her family and friends when she asks for help.

38.  Finally, I have considered the background and circumstances of the parties, and I have also considered the underlying principles as stated in O.1A, r. 1 of the RHC. I am of the view that it is fair to order no order as to costs between the parties. With the reasons aforesaid, I dismiss the Mother’s Summons for variation of the Costs Order Nisi.

Costs

39.  Generally, costs should follow the event. In view of the background of this case, I am of the view that it is fair to order no order as to costs, including all costs reserved, for this application. This is a costs order nisi, which shall be made absolute within 14 days.

Mr Tasman Tam, counsel, instructed by Messrs. Henry Wan & Yeung, for the Applicant

The Respondent acted in person

FCMP 89/2016

[2020] HKFC 98

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 89 OF 2016

________________________

________________________

________________________

J U D G M E N T

________________________

1.  This is the Respondent father (“Father”)’s application for variation of maintenance payable for the child of the parties (“Child”), who was born out of the wedlock, from $32,500 to $14,000 per month.  The Father subsequently offered to vary to $17,000 per month, together with the undertaking to make some payments direct (details referred to in paragraph 33 below).  The Applicant mother (“Mother”) opposed to the application. 

2.  The main reason for the Father’s application is that his employment had been terminated by his then employer and he no longer earns $177,219 in average per month (with reference to his income as stated in his Form E, the basic salary is $144,219, with $33,000 being the bonus).  The Mother is of the view that even if the Father’s employment had been terminated, he still has much financial resources and high earning capacity to pay for the same amount of periodical maintenance for the Child, and therefore the application to variation downwards should be dismissed.

Background and salient facts of the case

3.  The Father was born in 1975.  At the time of the trial, he was 43 years old.  He had a previous marriage and had an elder daughter (“Elder Daughter”) who was born in May 2010.  The Father formally divorced with his ex-wife in about early 2012.

4.  The Mother was born in 1978.  At the time of the trial, she was 41 years old.  The Mother had a previous marriage, with no child born in the previous marriage.  She finalised the divorce with her ex-husband in about 2012. 

5.  The parties met and entered into a relationship in about March to April 2011.  The Mother ceased working as an accounting clerk since about mid 2011. 

6.  By the Order dated 15 June 2012, it was ordered, inter alia, that the Father do pay his Elder Daughter from his previous marriage periodical maintenance of $45,000 per month.

7.  In July 2012, the Father rented a place at a monthly rental of $18,500 and the parties started to cohabit, with the monthly rental paid by the Father. 

8.  In August 2013, the Child was born.  At the time of the trial, she was almost 6 years old and attending kindergarten at K3 level, expecting to study Primary One in September 2019 at a local government school.

9.  A few months before the Child was born, the parties’ relationship had turned sour. The parties went on-and-off since then until about early to mid 2016.  The relationship between the parties had become so sour that there were different grave allegations made against each other, which were denied.  What cannot be denied is that access of the Child had not been going smooth.  

10.  In April 2016, the Mother filed an Originating Summons, seeking custody, care and control of the Child, and also seeking periodical maintenance for the Child.  

11.  In June 2016, the Mother had rented another place (“Flat H”) at a monthly rental of $13,500, which was expected to increase to $15,500, and she and the Child have been living there since then.  The Father had been paying for the monthly rental of Flat H since about June 2016.  Since March 2018, the Mother and the Child moved to another place nearby with monthly rental of HK$15,000.

12.  In early July 2016, the Mother took out application for interim maintenance for the Child. 

13.  In mid July 2016, when the Father was still employed by the bank, which was his then employer, he purchased a flat as his principal place of residence, with zero down-payment and full mortgage of $7,366,000 (“Property”).  The Father spent $900,000 to renovate his Property.

14.  By consent and with both the parties represented by their then respective solicitors, it was ordered on 17 October 2016, inter alia, that the Mother and the Father have joint custody of the Child, with care and control be to the Mother and the Father with defined access.  Further, it was included in paragraph B(4) of the Order by way of undertaking by the Father to the Court and to the Mother that the Father do “pay directly for the school fees and medical expenses of the Child”.

15.  Regarding the application for maintenance for the Child, by consent, by the Order also dated 17 October 2016, it was ordered that the Father do pay the Mother periodical payment of $32,500 per month until the Child reaches the age of 18 or completes her full time education, whichever is later (“Maintenance Order”). The Father was also ordered to pay the Mother the sum of HK$75,000 as contribution towards her legal costs.

16.  On 31 August 2017, the Father’s employment was terminated by his then employer.

17.  On 19 October 2017, by consent, it was ordered, inter alia, that the periodical maintenance the Father do pay his Elder Daughter from his previous marriage be varied from $45,000 to $15,000 per month.  It was also ordered that the payment be suspended after 12 January 2018 until such time when the Father finds another job.  The Father’s ex-wife had agreed to waive the shortfall of maintenance (for May 2017 to October 2017) in the total amount of $124,000.  The Father’s ex-wife had re-married, and she and the Elder Daughter had moved to live in Australia.

18.  According to the Father, there were 2 trips to Australia, visiting his Elder Daughter, one in November 2017 and one in May 2018. 

19.  On 20 November 2017, the Father applied for variation of the care and control of the Child.  He applied for shared care and control of the Child.  On the same day, the Father also applied for variation of the maintenance for the Child. 

20.  Regarding the application for variation of care and control, parties have settled during the Children Dispute Resolution.  By consent, it was ordered on 12 September 2018 that only the access arrangement of the Child be varied.  There is no variation regarding care and control arrangement of the Child.

21.  Parties could not agree on the disputed issues of variation of maintenance for the Child and the Father’s application was adjourned for trial. 

22.  The Father has unilaterally reduced the Child’s maintenance to $18,000 per month or less since about December 2017.

23.  A judgment summons was also taken out by the Mother and has been adjourned pending the outcome of this trial. 

Witnesses and evidence

The Father’s case

24.  The Father gave evidence and did not call any other witness.  He relied on his Form E filed on 11 August 2016 (“Form E”) and his updated Form E filed on 9 March 2018 (“Updated Form E”), his Answer to the Mother’s Questionnaire filed on 29 January 2019 (“Answer”), and also the following affirmations as his evidence in chief. 

25.  He relied mainly on his 3^rd Affirmation, 5^th Affirmation and 7^th Affirmation for this application.  He also relied on other affirmations filed, which have been included in the trial bundle.

26.  The Father was 43 years old at the time of the trial.  He studied secondary school and obtained his Bachelor degree in law in Australia.  After graduation, he worked in a bank in Australia and had been assigned to come to work in Hong Kong for a couple of years.  He then changed to work in a bank, ie. his previous employer, for about 10 odd years until his employment was terminated in 2017.  Before he was terminated, he had been promoted to be a Director and Regional Head.

27.  When his former employer terminated his employment, the Father was paid 3-month salary in lieu of notice and ORSO in the sum of about $1.8 million.

28.  After the termination of employment, the Father has not secured another job.  According to his evidence, he had explored the possibility of starting a business with some partners in the field of financial consulting, which some preparation work for his business had started, but as at the trial date, he had not managed to secure his first client and no income has been generated yet.  In order words, no income has been earned since August 2017.

29.  The Father used to live with his parents at their private property in Yuen Long. After his previous marriage, since about 2012, the Father had been renting a flat to live in.  Since he had purchased the Property, he has been residing at the Property.  According to the Father, his girlfriend, who has stable relationship with him for a few years, also lives there for some nights.  The Mother suggests that his girlfriend and the Father is co-habiting at the Property, which is denied by the Father.

30.  It is the Father’s case that as his employment was terminated suddenly on 31 August 2017, with the last date of employment being 15 September 2017, there is material change of circumstances of his finance, which justifies his application for variation downwards of the maintenance for the Child.

31.  The Father further explained that he has been unemployed since his employment being terminated and he has no confidence that he could find a new job with relatively the same monthly income and benefits shortly.  He foresaw that there would be a long period of time of unemployment and may need to decide on a job that would only give him a much lower salary.  For his business, it will still take some time before income can be generated, but there is no guarantee. 

32.  According to the Father, he has always been willing to pay and has always paid reasonable sum for the maintenance of the Child.  But because he is now facing financial crisis, he asks for reduction in maintenance. 

33.  It is the Father’s open offer as follows :- 

(a)  That the periodical maintenance of the Child be varied to $17,000 per month.  

(b)  That sub-paragraph (a) above is applicable “until such time as the Father finds another job or he embarks on a new venture which is income producing”.

(c)  “By way of undertaking, the Father do inform the Mother and the Court in the event that he becomes gainfully employed on either a full or part time basis or he becomes involved in a venture that is income producing within 4 weeks of commencing such a position.”

(d)  “By way of undertaking, the Father do pay directly for the Child’s school fees (if any), school bus (if any), extra-curricular activities and any major medical and dental procedures that are outside her medical insurance coverage.”

(e)  There be no order as to costs in respect of this application.

The Mother’s case   

34.  The Mother gave evidence and did not call any other witness.  She relied on her Form E filed on 11 August 2016 (“Form E”), and also the following affirmations filed as her evidence in chief.  She relied mainly on her 5^th Affirmation and 8^th Affirmation.  She also relied on other affirmations filed, which has been included in the trial bundle. 

35.  The Mother was 41 years old at the time of the trial.  Before her previous marriage, the Mother had given birth to a son when she was about 20 years old.  The son has always been residing with his father, and they are now residing in Singapore. The Mother does not ask for custody, care and control of the son, and there is no order for the Mother to pay maintenance to the son. 

36.  Before her previous marriage, she used to live with her father and her brother in a public housing in Yau Tong.  Since about July 2012, when the parties started co-habitation, the Mother has been living in a rented flat, with rental paid by the Father.

37.  The Mother used to do accounting work at her father’s company, earning a monthly salary of about $9,000 per month.  She later changed her job and worked as an accounting clerk in another company, earning a monthly salary of about $15,000 per month.  She worked for about 2.5 years and she ceased working in about mid 2011.  The Mother explained that she had tumour at her thyroid in 2008 and after seeing Chinese doctor, she had been advised to rest more and to avoid pressure in daily life.  Since mid 2011, the Mother has not been working and she is the main carer for the Child. 

38.  The Mother’s case is that she does not agree that there is material change of circumstances, even given that the Father’s previous employment, with monthly income of $177,219 in average per month, was terminated.  The Mother is of the view that even if the Court rules that it is a material change of circumstances, given the background of the case, the Father’s financial resources and his high earning capacity, the monthly maintenance for the Child should not be reduced, as the Father has sufficient means and ability to pay for the same amount of maintenance.

39.  The Mother is of the view that the amount of maintenance for the Child is reasonable and should not be reduced. 

40.  The Mother also explained that she has not been working since about mid 2011.  As she is the main carer of the Child, she has not been working and does not earn any income, any reduction in the Child’s maintenance from the Father would affect the Child’s welfare gravely.

41.  The Mother also made an open offer, which was not accepted by the Father.  She offered that the maintenance in the monthly sum of $32,500 be varied to as follows :-

(a)  $28,500 for 6 months from December 2017 to May 2018;

(b)  $29,500 for 3 months from June 2018 to August 2018;

(c)  $30,500 for 3 months from September 2018 to November 2018; and

(d)  $32,500 from December 2018 until the Child reaches 18 years old or completes full time education, whichever is later.

She also asked for costs of and incidental to the Father’s application be paid by the Father.

The legal principles

42.  The powers of the court to make orders for a parent to make various financial provisions for a minor and to vary such orders are set out in section 10(2) of Guardianship of Minors Ordinance, Cap. 13 (“GMO”) as follows :-     

“(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 —

     ......

     (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; …... ”

43.  Section 10(4) of GMO also empowers the court to vary some of the orders made under section 10(2) above as follows :-

“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).”

44.  The approach the Court should take in relation to variation of maintenance orders are well established, which I summarised below :-

(a)  Once an application to vary is before the Court, it is fully entitled to make an order considering all the circumstances afresh, paying such regard to the old order as may be thought appropriate. (HCTT v TYYC [2008] HKFLR 286)

(b)  The traditional approach to variation was not to re-fix afresh the amount of maintenance but to consider the amount of change in the actual means of the parties so that the new order should merely be increased or decreased roughly in proportion to the change in the means.  The modern approach is for the Court to consider all the circumstances of the cases.  The Court is not required to proceed from the starting point of the original order but look at the matter afresh.  (AEM v VFM [2008] HKFLR 106)

45.  In relation to financial provisions for a child born out of wedlock, I have also reminded myself, as rightly pointed out by B. Chu J. in paragraph 51 of the HMSE v JJS (FCMP 70/2008, date of judgment: 29 April 2009), that “the Court in Hong Kong have been guided by the principles and guidelines set out in the English cases, particularly Re P, in considering what financial orders are reasonable for the benefit of a child born out of wedlock.”

46.  The legal principles as cited in Re P (Child: Financial Provision) [2003] 2 FLR 865, as adopted in the Hong Kong cases including WGL v ASB [2013] HKFLR 391, have been considered.  In WGL v ASB, B. Chu J. had succinctly summarised the legal principles in paragraphs 55 to 57 :-

“55.In Re P, a summary of the relevant considerations was set out by Bodey J, as follows:

(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: financial provision) [1998] 3 FCR 79 at 81.

(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] FLR 62 at 66; and A v A (financial provision for child) [1995] 1 FCR 309 at 317.

(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 parents 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: J v C (child: financial provision) [1998] 3 FCR 79 at 87 per Hale J.

(v)However, as 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) [1998] 3 FCR 79 at 87.

(vi)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 all the circumstances.

56. Bodey J then went on to say in Re P that from the experience of that case, he 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 analyses 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 common sense 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.”

57. In Hong Kong, this court’s jurisdiction is discretionary.  No factors having been set out in legislation, the only criteria in s 10 (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.”

Issues in dispute

47.  After consideration of the evidence and submissions, I am of the view that the issues in dispute are as follows :-  

(a)  Whether the termination of employment of the Father is a material change of circumstances

(b)  The financial resources and earning capacity of the Father

(c)  The financial resources and earning capacity of the Mother

(d)  Reasonable expenses of the Child

Analysis of evidence

Whether the termination of employment of the Father is a material change of circumstances 

48.  Mr. Tam, Counsel for the Mother, submitted that it is an issue in dispute for the Court’s determination of whether the Father’s termination of employment is a material change of circumstances.  However, upon request for clarification from the Court and in view of the applicable legal principles, Mr. Tam clarified that even if the Court is to rule that it is a material change of circumstances, it is the Mother’s case that the Father still has sufficient financial resources and high earning capacity, and the maintenance for the Child should not be varied downwards.

49.  Mr. Tam drew the Court’s attention that the termination of employment of the Father is not unforeseeable or unexpected, as the Father has always had in his mind the “high risk of redundancy” and “loss of income” (as explained by the Father in section 5.5 of his Form E), before he consented to pay $32,500 per month. Mr. Tam further emphasised that it is the Father’s evidence that the “high risk of redundancy” existed ever since the day he began being employed by the bank.

50.  The Father explained that with the nature of the industry and the type of his work, he did have the awareness that such risks exist.  I accept that even if the Father has been aware of the high risk of redundancy and the possibility of loss of income, given the nature of his work and the industry he is in, it is not unreasonable to have come across one’s mind of the risk of losing his job.

51.  With the background and circumstances of the case, especially the job of the Father, previously employed by the bank as a Director and Regional Head, earning a monthly salary of $177,219 in average per month, I am of the view that the termination of employment of the Father is a material change of circumstances.

52.  The more important question is, with this material change of circumstances, whether the Father still has the ability to pay for the same amount of maintenance for the Child, or whether there should be a reduction in amount.   

The financial resources and earning capacity of the Father

53.  I repeat paragraphs 26 to 32 above regarding the background of the Father.

54.  With reference to the Father’s Updated Form E dated 9 March 2018, the Property is the only landed property that he owns.  He had bank balance of a total of $1,311,850, stocks of a total sum of $34,000, car in the estimated value of $25,000 and some mandatory provident fund.

55.  The estimated value of the Property as at the date the Updated Form E in 2018 was $8.5 million.  Taking into account the outstanding mortgage of $6.635 million, the estimated net value of the Property is $1.865 million.

56.  The Father further explained his updated finance when giving evidence that his total bank balance has been reduced to only about $10,000 in his saving account.  He explained that he had used up the amounts in his premium account, current account and AUD premium account.  He clarified that there is another bank account in Australia that he has not been using, with a balance of about AUD20,000.

57.  Regarding the liabilities, the Father explained that the only liability is the debt owed to his parents.  Other than that, the credit card debt is only for normal use and he has no other debts.

58.  Regarding his general expenses, the Father explained during examination in chief that there is no change from what had been stated in section 4.1 of his Updated Form E, ie. in the total sum of $60,734, comprising of mortgage instalments of $44,834, utilities of $3,000, management fees of $1,650, food of $4,000, household expenses of $1,500, car expenses of $4,650, insurance premia of $600 and other expenses of $500.

59.  Regarding his personal expenses, the Father explained that there are some updates and cut down on his personal expenses, for example, he no longer spends $500 on holiday, there is no tax expenses of $9,162 as he does not earn any income, the interim maintenance has been reduced from $32,500 to $15,000, there is no contribution to his parents, there is no dependent family members expenses of $47,141, as his ex-wife had agreed to suspend the maintenance to be paid to his Elder Daughter and there is no MPF payment of $1,200. 

60.  During cross-examination, when being asked why he had to spend $3,000 on transport, $1,000 on clothing / shoes and $1,000 on personal grooming when he is unemployed, the Father agreed that he does not have to spend that much now and each of these items can be reduced by 30%, ie. being $2,000 for transport, $666 for clothing / shoes and $666 for personal grooming.  In other words, his personal expenses are summarised as follows :-

Items	Amount in Updated Form E (HK$)	Amount updated in evidence (HK$)
Meals out of home	4,000	4,000
Transport	3,000	2,000
Clothing / shoes	1,000	666
Personal grooming	1,000	666
Entertainment / presents	1,000	1,000
Holiday	500	-
Medical / Dental	300	300
Tax	9,162	-
Insurance premia	300	300
Interim maintenance	32,500	15,000
Contribution to parents	7,000	-
Dependent family	47,141	-
Others (MPF)	1,200	-
Total:	108,103	23,932

61.  To sum up, it is the Father’s case that he now needs to spend about $23,932 in total for his personal expenses (in which $15,000 is the maintenance for the Child) and $60,734 for his general expenses, ie. a total sum of $84,666 per month.   

62.  Under this section, there are different relevant sub-issues I have to consider, as follows :-

(a)  Whether the Property should be considered as the Father’s financial resources

(b)  The liability of the Father 

(c)  Whether the financial difficulties alleged by the Father is self-induced

(d)  The earning capacity of the Father

(a) Whether the Property should be considered as the Father’s financial resources

63.  The main dispute is whether the Property of the Father should be regarded as his financial resources or not.  According to the Father, the Property should not be regarded and considered as his financial resources. 

64.  Mr. Tam submitted that there is no reason why the Property, which is of value, should not be regarded as financial resources of the Father.  Mr. Tam further submitted that the Father had deliberately spent much money on the Property and Mr. Tam drew the Court’s attention especially to the following :-

(a)  The monthly mortgage payment for the Property had been increased from $33,600 to $44,834, which Mr. Tam suggested was a deliberate act by the Father to increase his monthly expenses.

(b)  The act of purchasing the Property shortly after the Mother had taken out the application for interim maintenance for the Child was in fact a calculated act by the Father to lock up a big sum each month to be spent on mortgage repayment.

(c)  The act of purchasing the Property, even though the Father has all along been well aware of the high risk of redundancy and loss of income, was an act in disregard of the welfare of the Child.

(d)  The Father had spent $900,000 on renovation of the Property, which was a deliberate and extravagant act to spend money.

65.  The Father disagreed with Mr. Tam’s allegations.  He justified the reasons of buying the Property and explained the following :-

(a)  The Property was purchased for his residential use, not for investment purpose.

(b)  The Property was bought at a time when the property price was relatively lower, and with the purchase of the Property, the Father could save money and secure for his children’s future educational purpose.

(c)  A room in the Property was decorated for the Child to live in during staying access, with the room decorated with the cartoon the Child likes.  The previous place the Father was living at was too small, almost like a partitioned flat, and was not appropriate for staying access with the Child.  The Father is of the view that the purchasing of the Property benefits the Child as well.

(d)  The monthly mortgage repayment had been increased because when the employment of the Father was terminated, he no longer enjoyed the low interest rate.  With the consideration of re-financing and re-mortgage, it is inevitable that the interest rate and the mortgage repayment being adjusted by the bank to the increased amount of $44,838 per month.

66.  The Father also criticises that it is inhumane for the Mother to suggest that the Father could sell the Property, which would deprive him of the place he now resides.

67.  Mr. Tam explained that the Mother does not insist on the Father selling the Property.  Selling the Property is only one of the ways out.  Mr. Tam further explained that in view of the financial difficulties allegedly faced by the Father, as the monthly mortgage repayment sum is $44,834 per month, there are in fact 3 options open to the Father :-

(1)  First, the Father could move back to live with his parents at their home in Yuen Long so that the Property could be rented out to earn rental income.

(2)  Second, the Father could let the Mother and the Child move in to live at the Property, so as to save some rental expenses.

(3)  Third, the Father could sell the Property, so as to save the monthly mortgage repayment of $44,834.

68.  Regarding Mr. Tam’s submissions suggesting the options opened to the Father, I have reservation of the practicability, especially in view of option (2), suggesting that the Father could let the Mother and the Child move in to live at the Property.  The Father has to continue paying the monthly mortgage repayment of $44,834 regardless of who is living at the Property.  Besides, the Father has to spend money in renting another place, unless he could move back and live at this parent’s home rent free, but that depends on the views of his parents. 

69.  According to the Father, selling of the Property would not improve much of his liquidity, as he “will need to start incurring rent which adds to my expenses without any contribution to my long-term asset value, not to mention costs relating to moving and furnishing a new place of different size and layout and temporary storage for my personal belongings should the new place be unable to fit all my belongings.  Adding to the complication, without a job and an income, it would be very difficult for me to rent a place without offering, say, a few additional months of rent as upfront rent payments”.

70.  The father further drew the Court’s attention to the following amounts either previously incurred or will incur as a result of a proposed sale of the Property, including :-

(a)  The Special Stamp Duty that will apply at 10% of the selling price if the proposed sell is within 3 years of the date of purchase, ie. if sold on or before July 2019

(b)  The stamp duty the Father paid at the date of purchase of about $266,000.

(c)  The renovation costs spent in the estimated amount of $900,000.

(d)  The legal (conveyancing) fees of $20,000.

(e)  The “time value” that was incurred “during the 10-month renovation work (even if only include the additional rent needed to incur whilst waiting for the renovation work to complete, the total rent was at approximately $100,000)”.

71.  The Father was of the view that it is unrealistic, unreasonable and inconsiderate to the best interest of the Child’s bonding with the Father and her long-term financial needs for the Mother to suggest that the father should sell his principle place of residence.  Further, as stated in his Closing Submissions, the Father submitted that even if the market value of the Property had gone up since he purchased in July 2016, he estimated that “the net gain would only be $1,911,700” if the Property is sold, having taken into account the money wasted as a result of the sale, assuming that Special Stamp Duty will apply and assuming that the Property could be sold at the price estimated by the 2 banks.

72.  In view of the Father’s analysis, I have to point out that it is not one of the issues to be determined by the Court how much the net gain is if the Property is sold. The Court should focus on the issues to be determined, ie. whether the Property should be regarded as financial resources of the Father. 

73.  Having considered the Father’s view and submissions, I can understand the importance of residing at a self-owned flat.  The benefits to the Child when she has her own room, decorated to her liking, for staying access cannot be denied. However, the overall circumstances and financial resources have to be considered.  Living in a self-owned flat is not a must.  What I have to consider and determine is what the financial resources of the Father are. 

74.  With the facts available before the Court and having considered parties’ evidence and submissions, I accept that the Property is valuable and I cannot see why the Property should not be included as financial resources of the Father. 

75.  But at the same time, I am aware of the fact that the Property is the only landed property and the most valuable asset of the Father.

(b) The liability of the Father

76.  Regarding the liability of the Father, as explained in his Form E, he has debt owed to his parents in the sum of $1.9 million.  According to him, that is the loan borrowed from his parents when he purchased a property for his first marriage about 12 years ago.  There was no repayment to his parents.

77.  I notice that no interest has been charged for the debt, his parents have not asked for repayment and there is no discussion of repayment terms. While I understand from the Father’s evidence that he is of the view that his parents are entitled to ask for repayment, considering the evidence as a whole, I accept that this can be regarded as soft loan, or better described as financial assistance from his parents. 

78.  Further, Mr. Tam submitted that before the Father moving into the Property, when he was renting a much smaller flat, 95% of the staying access with the Child was conducted at the home of his parents, which is located in Yuen Long, owned by his parents, being a private property.  As it is a private property owned by his parents, the Mother suggested that it could also be possible accommodation for the Father. 

79.  The Father disagreed, but under cross-examination, he admitted that he did not ask his parents whether he could move back and live at their home.

(c) Whether the financial difficulties alleged by the Father are self-induced

80.  Mr. Tam submitted that the financial difficulties as alleged by the Father is self-induced.  In other words, the Mother is of the view that the Father had been painting a picture that he has genuine financial difficulties, which is not true.  That would go to the consideration of credibility of the Father. Mr. Tam’s basis of the allegation that the Father’s alleged financial difficulties are self-induced could be summarised as follows :-

(i)  The Father had dissipated assets.

(ii)  The Father had lavish spending.

(iii)  The inability of the Father to secure another job or get any income at all since September 2017 is unreasonable.

81.  The Mother is of the view that the Father had dissipated assets.  Mr. Tam submitted that the Father had dissipation of assets by (a) spending money in purchasing and renovating the Property; (b) transferring his vehicle to his younger brother; and (c) unjustifiably reducing balance or withdrawing money from his account as early as in 2016, and the total amount inexplicable amounts to $3,491,152.

82.  In relation to the allegation of dissipation of assets by spending money in purchasing and renovating the Property, I am not convinced by Mr. Tam.  As I have analysed above, I am of the view that the Property is financial resources of the Father.  The purchase of the Property cannot be dissipation of assets.  Regarding the money spent in renovation, though I have reservation of the need to spend $900,000 spent on renovation, I do not regard the money spent on renovation being dissipated, as money spent on decoration may add value to the property. Whether it is lavish or extravagant spending of about $900,000 on renovation is another matter to consider.

83.  In relation to the allegation of dissipation of money in transferring the Father’s vehicle to his younger brother (“Car”), the Mother criticised that the Father had never provided any documentary proof and the alleged transfer timing is suspicious, which is shortly after the Father took out the present application to vary downwards the maintenance. 

84.  I have considered the Father’s evidence, in particular his Answers to Question 11 of the Questionnaire “…… This car has always been used and maintained by my younger brother, ever since 2007.  My brother and I decided not to effect the transfer at the time because we do not wish to show another change of ownership in the registration document and incur a transfer fee and would affect the selling price should he decides to sell.  The current market value of this car is around $2,000 and we have decided to effect the transfer in December 2017 because he has been using it for many years and is effectively the owner of it.  Also, having a value of only $2,000 means that adding another ownership change to the registration document is hardly going to affect the selling price later……” 

85.  I have also considered that in the Father’s Form E dated 29 August 2016, which was way before the transfer, it was stated therein that the purchase price of the Car is only $50,000, with estimated current value being $2,000.  The Father also explained in his 5^th Affirmation that the Car had always been maintained and driven by his brother.  Considering the evidence as a whole, I accept the Father’s explanation is reasonable and I do not view the transferring of the Car to the Father’s younger brother as dissipation of assets. 

86.  In relation to the allegation of dissipation of assets through unjustifiable reduction or withdrawals from the Father’s accounts as early as in 2016, Mr. Tam relied on a table summarised by him, and Mr. Tam submitted that the total amount inexplicable amounts to $3,491,152 (which Mr. Tam had provided a detailed breakdown table (“Table B”), which was marked as exhibit “A2”).

87.  The Father denied the allegation.  He explained that Table B “merely shows changes in my total HKD Deposits in my bank accounts combined during the 13-month period from 31 December 2016 to 3 February 2018 (the “Applicable Period”).  It is my submission that such presentation of my financials is an overly simplified way of presenting them without proper regards to my income and expenses at the time”.

88.  The Father further explained that Table B is a “failed attempt to summarise my financials during the Applicable Period.  It contains numbers plugged from different times, bank or credit card statements, bank accounts, resulting in double counting by adding bank balance decreases with credit card debts (which were all auto-debited from my savings accounts)”.

89.  I have considered Table B, the evidence, the documents and parties’ submissions, I do have reservation as to the large sums of withdrawals.  However, considering the evidence as a whole, I do not accept the analysis of Mr. Tam in relation to Table B.  The Father had correctly pointed out that as the amounts were taken at different periods of time and taken from different sources (bank accounts of Hong Kong Dollars and foreign currencies, and credit card statements) and added together, I accept there could be double counting and the total figures do not add up as alleged.  I am of the view that the Table is over-simplified.

90.  The Father also explained that a few one-off major items of expenses, including renovation of the Property in the total sum of $900,000, legal fees for the divorce case of his first marriage in the total sum of $150,000 and travelling twice to Australia to visit his Elder Daughter in the total sum of $100,000. Further, from the documents provided by the Father, there was a net shortfall of $33,941 per month by deducting the expenses of $178,160 from his income of $144,219 (which was disagreed by the Mother).

91.  I am of the view that the evidence has to be viewed in context.  The Father’s employment was terminated in August 2017.  Table B covers both the period before and after the termination of employment.  Before his employment was terminated, he was earning a comfortable income.  Spending relatively comfortably is not unreasonable.  Having considered the evidence as a whole, I am not convinced that Table B supports the Mother’s allegations that the Father had dissipation over $3 million as alleged.

92.  However, at the same time, I have concern about the spending style of the Father and where exactly had the money spent on, especially in view of the period of time after his employment had been terminated. 

93.  In relation to the Mother’s allegation that the Father’s alleged financial difficulties are self-induced with the Father’s lavish spending, with the analysis above, I do have concern of how and where money had been spent. 

94.  I have considered carefully parties’ evidence and submissions, and in particular, the Questionnaire and Answers in relation to these transactions, Questions 42 to 52.  Questions and Answers 42 to 45 are about items of expenses before termination.  There were various large sums withdrawn from bank account, with some items the Father explained how he spent (in which some amounts were spent to settle part of the renovation costs for the Property) and with some items the Father did not explain how he spent but explained that the transaction was conducted before he was terminated by his employer.  Although as I explained above, before termination of employment, the Father could and may have spent more comfortably, with large sums of expenses unexplained only a few months before termination of employment because of performance do raise suspicion.  In particular, in this case, where the Mother had made it clear that she suspects there has been dissipation of money and the application to vary is a calculated act, it is essential for the Father to fully and frankly disclose his financial situations. 

95.  In relation to Questions and Answers 46 to 52, they were over a period from September 2017 to March 2018, the amounts involved are summarised below :-

(a)  For September 2017, total sum of $39,045, JPY150,000 and SGD3,000

(b)  For November 2017, JPY93,000

(c)  For December 2017, total sum of $221,192

(d)  For January 2018, total sum of $189,234.72

(e)  For February 2018, total sum of $177,192.72

(f)  For March 2018, total sum of $166,924.44

96.  The Father made explanations in his Answers, which I am not repeating here.  I accept that some amounts had been used for general expenses including mortgage repayments and utilities etc.  However, the Father further explained that some amounts were used to settle the costs of renovation and furniture for the Property, which was purchased in July 2016 and according to the Father, had been renovated for about 10 months.  On balance of probabilities, it is hard to believe that large sums are still spent on renovation and furniture long after the Property was purchased.

97.  In relation to the allegation that the Father’s alleged financial difficulties are self-induced, it is the Mother’s case that the Father’s failure to secure new employment or income-generating business ventures despite his high earning capacity since September 2017 is unreasonable.

98.  The Father denied the allegation and explained that he had been experiencing extreme difficulties post-termination, when he tried to seek employment.  He had summarised his evidence in his Closing submissions, which I summarised into the following points :-

(a)  The Father had phone calls with various recruitment agents he used to work with. All of them gave him the same response, ie. with his employment history and area of expertise, it will be difficult for him to find anything that is equivalent or similar to his prior position.  His area of expertise is very narrow and only very large global banks may have one such position in the Asia Pacific region.

(b)  There are some opportunities available at a lower level, but unfortunately, not many employers / line managers will consider the Father, as they may fear that the Father may not stay in that position for long or he may be a threat to their own positions.

(c)  It was a fact that the Father was “sacked” by his previous employer.  Given the narrowness of the industry, any potential employers could easily discover the fact which made his job search even harder.

99.  In other words, it is the Father’s case that he had used his best effort, but still could not find a job or engage into income generating ventures.

100.  Mr. Tam had summarised the basis of this allegation in his Closing submissions, which I quote :-

“It is abundantly clear from cross-examination that, since termination of his employment by [ex-employer], all he had done was contacting several of his friends who are recruitment agents, over the phone, asking for equivalent or similar position to his previous employment. In the 19 months from termination of this employment up to trial :-

(i)he conducted no interviews with potential employer(s);

(ii)he did not ask his recruitment agents friends to look also for part-time jobs;

(iii)he did not apply himself (not via recruitment agencies) any jobs, whether full-time or part-time;

(iv)within his previous field or employment, ie. legal documentation, he did not apply for positions lower than the position of Regional Head, despite having admitted that there is usually 1 subordinate to a regional head in major global banks;

(v)outside the field of legal documentation, he did not apply for any jobs, despite having admitted that he has, eg. some working knowledge in know-your-client (KYC) and anti-money laundering (AML) matters, those usually handled by a compliance department. The Court will recall that his evidence was these two fall within one of the areas of service in his newly set-up consulting business; and

(vi) outside the field of legal documentation, he did not even explore any other business ventures or provide paid services where his skills, knowledge or expertise can be utilized for the time being, eg. private tutoring.”

101.  Mr Tam further submitted that the Father has not used his best effort to secure employment.  Mr. Tam also drew the Court’s attention that the Father admitted that “it was his decision not to partake in jobs or business ventures, outside his field and may be of lower salary, which he is qualified and can generate income / salary to finance his expenses”.

102.  I have carefully considered the evidence and submissions. According to the Father, his financial difficulties is so grave that he only has liquidity of about $10,000 when he gave evidence in Court.  However, in his open offer, he offered to reduce to $17,000 per month for the Child.  If the Father has reached the verge of his financial crisis and if he has presented the true and accurate financial circumstances, he would not be able to pay what he now offers. 

103.  If the Father has truly presented the whole picture of his financial situations, he would not be able to pay even the coming month’s monthly mortgage repayment in the sum of $44,834.

104.  The Father submitted that he will need to borrow money from friends at the initial stage before looking into borrowing from financial or credit institutions should his financial crisis persist. 

105.  I have considered all the evidence at a whole, on balance of probabilities, it is hard to believe that the Father had used his best effort to look for a job or to get some income, given his age, educational background and work experience.    

106.  It could be true that he may not be able to secure a job with the same high level of income, or it could be true that with his business still developing, he may not be earning high income or profit to start with.  However, as presented by the Father, he has been earning zero income since August 2017.  If that is the case, it is hard to believe that the Father had maintained the level of expenses as shown in his Updated Form E and is still spending the level of expenses, as he updated when giving evidence in Court (with detailed analysis of expenses referred to in paragraphs 58 to 61 above).  Yet, at the same time, the Father is insisting to keep his Property, with monthly mortgage payment of $44,834 per month and proposing to offer a sum of $17,000 as monthly maintenance for the Child.

107.  The explanation, evidence and submissions of the Father is not credible at all on balance of probabilities.  I do not accept that the Father is telling the whole truth of his financial situation.  I am of the view that there is no full and frank disclosure of his financial situation and therefore I will draw adverse inference.

108.  The possible explanations could be one of the following :- (a) the Father has salary or income non-disclosed; (b) the Father has readily available financial resources and assistance from his parents or his girlfriend to support him; (c) the Father can get a job or income-generating venture anytime without problem, and that it was a deliberate act of not getting a job or income-generating business venture before the trial ends.  In any one of these scenarios, I will draw the inference that the Father has the ability to continue paying reasonable maintenance for the Child and to finance his own expenses.

109.  With the analysis above and with the reasons aforesaid, I am not of the view that the Father has such financial difficulties as he alleged.  I am of the view that he has much financial resources and he does not genuinely face the financial difficulties as alleged.

(d) The earning capacity of the Father

110.  About the earning capacity of the Father, it is not in dispute that the Father has a much higher earning capacity than the Mother. 

111.  With the evidence before the Court, especially in view of the age, education, background and previous work experience of the Father, I am of the view that the Father still has high earning capacity.  

The financial resources and earning capacity of the Mother

112.  I repeat paragraphs 34 to 40 above regarding the background of the Mother.

113.  Regarding the financial resources of the Mother, it is not in dispute that she has no landed property.  She has always lived at a rented flat with the Child.  She has no work and income since about mid 2011.   

114.  With reference to her Form E, the Mother had bank balance in the total sum of $452,776, stock in the total sum of $140,083, some valuable personal items in the estimated total sum of $25,000 and some mandatory provident fund.  As explained in her 8^th Affirmation and to provide further updates of her finance during examination in chief, the Mother explained that her total bank balance was reduced to $281,156 (when she filed her Form J on 28 March 2018 and explained about her assets in section 5.1 therein), which had further reduced to about $200,000 as at the date of trial. 

115.  The Mother further explained that she had no liabilities when she filed her Form E.  However, as the Father had unilaterally reduced the amount of maintenance, she had borrowed from her families and good friend to make up the shortfall, in the total sum of about $300,000 and a further sum of about $140,000 for legal fees from her Aunt. 

116.  The Father alleged in his Closing Submissions that the Mother has sufficient financial resources and /or source of income to facilitate the Child’s reasonable needs, despite the unilateral reduction of maintenance from the Father.  It seems that the father is suggesting the Mother has hidden assets or hidden sources of income from work.  However, these allegations or suggestions are not put to the Mother during cross-examination. 

117.  On the contrary, during trial, the Father agreed that while the Mother is now taking care of the Child full-time, she does not have earning capacity at the moment.

118.  The Mother explained that since the Father had unilaterally reduced the monthly maintenance for the Child, she has cut down her personal expenses, used up some of her own savings and she has also borrowed money from her family and friend to make up the difference.  Having considered the Mother’s evidence as a whole, the documents presented before the Court and all the circumstances of the case, the explanation from the Mother is reasonable.  On balance of probabilities, I accept her evidence in this regard. 

119.  The Father suggested that adverse inference should be drawn against the Mother, as she has failed to voluntarily disclose any bank statements or other supporting documentation, but rely on a mere “say-so” during examination-in-chief and cross-examination to support her version of financial position and her claimed financial difficulties.

120.  I have to point out that before the case was adjourned for trial, upon the inquiry from the Court, the Father had consented to the Mother not filing an updated Form E.  The Father also confirmed no further discovery application or asking for disclosure of documents through questionnaires.  As discovery was complete, the Court was satisfied that the case was ready for trial.  There was no order for the Mother to make disclosure and no adverse inference will be drawn against the Mother as alleged by the Father.

121.  But at the same time, I notice that when the Mother is in financial needs, she could get financial assistance from her family and friends. 

122.  It is the Mother’s case that the amount of $32,500 as ordered by the Court is the maintenance for the Child, not for herself.  With reference to the Mother’s Form E, it is shown that she has her own personal expenses in the total sum of $11,184 per month, which, according to her, had not been financially supported by the Father.  

123.  In her Form E, the total general expenses are $23,961, the total expenses for the Child are $16,248 and the total personal expenses are $11,184, which comprise of meals out of home at $3,500, transport at $1,240, Clothing / shoes at $500, personal grooming at $600, entertainment / presents at $1,000, holiday at $1,000, medical / dental at $500, insurance premia at $844 and contribution to parents at $2,000.  The Mother explained when giving evidence at trial that her expenses are more or less the same, except that she now no longer pays any contribution to her parents and she has cut some of her expenses to ensure the effect of reduced maintenance on the Child from the Father be minimised.  

124.  The Mother has not been working for a number of years, so she must be using her own saving and possibly getting financial assistance from her family and friends to support her when she asks for help.  Without providing further details or supporting documents for the loans of the Mother, I accept that they could be soft loans from her family and friend when she asks for help.

125.  Considering the evidence as a whole, background of the case and submissions of the parties, I accept that the Mother has always been the main carer of the Child.  In view of the Child’s young age of 6 years old, it is reasonable for the Mother to be a full-time mother, taking care of the Child, which is not disputed by the Father.  I accept that the Mother has limited financial resources and no earning capacity at the moment.  When the Child grows older, the Mother could re-enter the labour force and resume working either full time or part time, but if that is the case, more personal expenses and expenses in hiring a maid to take care of the Child will be incurred.

126.  The Father had suggested that the Mother can take the Child to live at the public housing of the Mother’s father (ie. the Child’s maternal grandfather) in Yau Tong in order to cut down the expenses.  The Mother disagreed.  She explained that it was a public housing of her father, which the Mother’s name has been registered and she could stay there, but the Child’s name is not registered and the Child is not entitled to live there.  Besides, it was a place now lived by the Mother’s father and her brother, who are smokers, and the Child has not been living with them in the past.  I accept that it is not a viable option of accommodation for the Child.

Reasonable monthly expenses of the Child

127.  Mr. Tam, acting for the Mother, asked the Court to take a broad brush approach and to accept that $32,500 is a reasonable sum of expenses for the Child.  Mr. Tam further submitted that if the Court takes the broad brush approach, the mother does not claim a separate item of carer’s or mother’s allowance, as it would have been included in the total amount of $32,500.

128.  The Father opposed and submitted that as this is not a big money case, a broad brush approach is not appropriate.

129.  The legal principles as stated above are not in dispute.  I have to point out that even if the Court has the welfare of the Child in mind as one of the relevant, if not paramount, consideration, the carer’s or mother’s allowance is not necessarily awarded in each and every case.

130.  As this is not a big money case, having considered the background of the case, I will look at the individual items of the Child, instead of taking a broad brush approach, to rule on the reasonable expenses. 

131.  Mr. Tam had summarised the Mother’s evidence of the reasonable expenses for the Child in a table (“Table A”), which had been marked as exhibit “A1”.  From Table A, the total expenses for the Child has exceeded $32,500, but Mr. Tam conceded that the Mother only asked to maintain maintenance of $32,500 for the Child.

132.  For general expenses, the Mother asked for $15,000 for rent and $1,404 for utilities.  After viewing the tenancy agreement provided by the Mother, the Father does not dispute the amounts of these 2 items.  I accept that the reasonable expenses for rent is $13,500 and for utilities is $1,404.

133.  The Father had submitted that he is of the view that he should only be obliged to pay half of the general expenses, which I will consider in subsequent paragraphs. 

134.  In relation to expenses for the Child, the Father confirmed that the following items and amounts are agreed, namely uniform of $250, insurance of $300 and daily necessities of $510.

135.  The following items are disputed, including (i) clothing and shoes, (ii) books and stationary, (iii) transportation, (iv) gifts, (v) meals, food and drinks, (vi) holiday and entertainment, (vii) toys and teaching aids, (viii) extra-curricular activities, and (ix) medical expenses. 

136.  Before going into each of the disputed items, there are a few points that I have to make clear.  First, in the Maintenance Order, the parties have consented to the monthly sum of $32,500, without going through trial, and therefore there is no breakdown of individual items expressly analysed before. 

137.  Second, having in mind the legal principles of he who alleges must prove and for the Father’s application of variation of maintenance, the burden is on him, on balance of probabilities, to prove his case, the criticism of the Father not having provided supporting documents in relation to his version of the reasonable expenses for the Child has to be viewed with caution.

138.  While it is true that with supporting documents, the Court will be provided with the basis of the amount alleged, the provision of supporting documents of expenses in the matrimonial context has to be considered in a practical and reasonable manner. 

139.  I have to make it clear that even with the provision of supporting documents, it is for the Court’s determination to consider the reasonableness of the expenses. In circumstances where no or insufficient supporting documents are provided, the Court still has the discretion to consider and rule accordingly what is reasonable and fair in the circumstances. 

(i)     Clothing and shoes

140.  For clothing and shoes, the Mother asks for $1,000.  The Father disagrees and he is of the view that $800 is reasonable.  I notice that in the earlier affirmation filed by the Mother asking for Interim Maintenance in 2016, the amount she asked for under this head is $800.  Considering the age and need of the Child, I rule that $900 is reasonable.

(ii)     Books and stationary

141.  For books and stationary, the Mother asks for $650.  The Father disagrees and he is of the view that $400 is reasonable.  The Mother explains that this item includes books and stationary for school, as well as textbook for ballet, drawing and piano lessons, drawing colour pens and sketch books.  Considering the breakdown of this item, I rule that $650 is reasonable.

(iii)     Transportation

142.  For transportation, the Mother asks for $450, while the Father is of the view that $350 is reasonable.  The Father explains that as the Child lives near her school, she does not need to travel to school or travel to attend the extra-curricular activities currently enrolled, and therefore $350 is sufficient.  The Mother explains that the Child needs to travel to co-parenting organisations for access.  Besides, sometimes the Child may feel tired and there is the need to take a taxi instead of public transportation.  While understanding that sometimes the taking of a taxi may be necessary, it is not a must.  Considering the evidence, I rule that $400 is reasonable.

(iv)     Gifts

143.  For gifts, the Mother asks for $1,000, while the Father says that it is excessive and he is of the view that $300 is sufficient.  The Mother explains that this item includes gifts and other incidental expenses for birthday parties and holiday party.  The Father explains that for gifts to others, instead of buying expensive gifts, they could be hand-made.  Considering the evidence, I am of the view that $1,000 per month is excessive, and I rule that $500 is reasonable.

(v)     Meals, food and drinks

144.  For meals, food and drinks, the Mother asks for $7,000, while the Father is of the view that $5,000 is reasonable.  I notice that in the earlier affirmation filed by the Mother asking for Interim Maintenance in 2016, the amount she asked for under the head of food is $4,178.  Having considered the age and need of the Child, I rule that $5,000 is reasonable.

(vi)     Holiday and entertainment

(vii)     Toys and teaching aids

145.  I will consider these 2 heads together.  It is the Father’s view that none should be included under these 2 heads, as both parties should bear his or her own expenses under these heads when each of them spends time with the Child.

146.  I could understand the rationale of the Father.  While each of the parents are spending time with the Child, there would be expenses spent on holiday and entertainment, toys and teaching aids.  Having considered the background of this case, especially in view of my analysis of the financial resources of the parties above, and also in view of the Mother having care and control of the Child, with defined access to the Father, I am of the view that the Father should be paying for these items. 

147.  Considering the age and need of the Child, for toys and teaching aids, I accept that $470 is reasonable.  For holiday and entertainment, I am of the view that the amount of $2,500 per month the Mother asks for is excessive.  I rule that $1,000 is reasonable.

(viii)     Extra-curricular activities

148.  For extra-curricular activities, the Mother asks for $3,000.  She explains that these expenses include ballet, drawing and piano lessons.  The Father agrees that the Child took these lessons, but he disagrees to pay to the Mother. Instead, he offers to provide an undertaking that he shall pay for these expenses direct.

149.  Having considered the background of the case and the relationship of the parties, I am of the view that these are regular expenses that has to be paid usually on a monthly basis.  However, as the Child grows, there could be adjustment of these lessons, in terms of which class to attend, under private or group class, and the frequency of the lessons.  As the Mother has care and control, I am of the view that it is practicable to have the amounts given to the Mother for her handling, instead of the Father paying direct.

150.  Having considered the background of the case and the age of the Child, I agree that $3,000 is reasonable under this head.

(iv)     Medical expenses

151.  For medical expenses, the Mother asks for $2,000 per month, as the Child no longer enjoys the medical insurance coverage after the Father’s employment is terminated.  The Father disagrees.  He undertakes that he shall pay for medical and dental procedures that are outside her medical insurance coverage.  I also notice that in the Order dated 17 October 2016, it was included therein the undertaking by the Father to pay directly for the medical expenses of the Child.  I am of the view that the same practice should continue and no amount will be included under this head.

152.  To sum up, the total expenses for the Child, including the agreed items are $12,980 ((i) $900 + (ii) $650 + (iii) $400 + (iv) $500 + (v) $5,000 + (vi) $1,000 + (vii) $470 + (viii) $3,000 + agreed items of uniform $250 + insurance of $300 + daily necessities of $510).

153.  The next question is whether the Father should pay the entirety of the general expenses.  The Father is of the view that for the general expenses, the Mother should be paying half, ie, the Father should only be obliged to pay $8,202 (ie. half of $16,404), which the Mother disagrees.

154.  I have considered parties’ evidence and submissions, and also background of the case. Although no breakdown has been provided for the agreed sum of monthly maintenance of $32,500 in the Maintenance Order, given the background of the case and considering evidence of the parties, I am of the view that with the sum of $32,500, the entirety of the rent has been included for consideration therein.  With the background of the case, the Mother has ceased working since about mid 2011, and the Father has always been paying for the rental of the place the Mother and the Child reside.  Also in view of my analysis in relation to parties’ financial resources and earning capacity, and the items and amounts claimed under general expenses (only for rent and utilities), I am of the view that the Father should be paying general expenses of $16,404. 

155.  To sum up, the total expenses of the Child is $29,384 (general expenses of $16,404 + Child’s expenses of $12,980), which I round up to HK$29,500.

Conclusion

156.  With the reasons aforesaid, I have considered the financial resources and earning capacity of the parties, and I have ruled that the Father has a much higher earning capacity, with much financial resources.  I have also ruled that I do not believe the Father has been disclosing fully and frankly the true picture of his financial situations.  Having considered the means and financial resources of the Father, I am of the view that he is able to pay for the reasonable expenses of the Child that I have ruled. 

157.  I allow variation downwards of the maintenance to $29,500.  Further, as the fact of the termination of employment of the Father is not disputed, which meant the Father is no longer earning a monthly salary since 1 September 2017, I am of the view that it is fair to have the order for variation of maintenance be backdated to 20 November 2017, the date the Father took out the application.

Orders

158.  It is ordered that :-

(1)The periodical payment of $32,500 as stated in the Order dated 17 October 2016 be varied to the effect that the Father shall pay the Mother periodical payment for the benefit of the Child, a sum of $29,500 each month commencing on 1 December 2017 and thereafter on the 1^st day of each month until the Child reaches 18 years of age or until the Child finishes her full-time education, whichever is later.

(2)Liberty to apply for the implementation of the orders.

Costs

159.  Generally, costs should follow the event.  In this case, the Father is successful in varying downwards the maintenance.  However, the Father is getting far from what he asked for.  As the award of cost is in the discretion of the Court and in view of the result of the judgment, and the conduct and background of the parties, I am of the view that it is fair to order no order as to costs, including all costs reserved.  This is a costs order nisi, which shall be made absolute within 14 days.