TRH v. KCS

FCMC 8704/2023

[2024] HKFC 188

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8704 OF 2023

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D E C I S I O N
(Summary Assessment of Costs)

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1.  On 6 August 2024, I handed down a decision on the Respondent (“M”)’s application for MPS/IM against the Petitioner (“F”). I also made costs order in favour of M to be summarily assessed, which I now do.

2.  After considering M’s Statement of Costs and F’s List of Objections, the costs of M are now summarily assessed at HK$1,140,000 payable by F forthwith.

Representation:

FCMC 8704/2023

[2024] HKFC 151

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8704 OF 2023

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J U D G M E N T
(Maintenance Pending Suit and Interim Maintenance)

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Applications

1.  In the Respondent Mother (“M”)’s summons dated 15 December 2023 (A/1-4), she asked for:

(1)  Permanent relocation of the 2 children of family to Korea by early August 2024 (paragraph 1 of the summons); and

(2)  Upon various undertakings to be given by the Petitioner Father (“F”), there is to be a maintenance pending suit (“MPS”) order for M in the sum of HK$463,600 per month; an interim maintenance (“IM”) order for the 2 children of family in the sum of HK$478,833 per month; or such sum as deemed appropriate by the Court (paragraph 2 of the summons).

2.  F initially defended the relocation application but I was recently informed that he no longer opposed on condition that the parties’ dispute on access could be sorted out.  But since the window for relocation this summer has already been closed, the earliest time for relocation would be in December 2024 or January 2025, if school places could be secured by that time, but if not, then by the summer of 2025.  It is not seriously disputed that after relocation, the monthly expenses of both M and the children will be very different and most probably be less.  In other words, any MPS or IM orders to be made will last for about 4 to 5 months if relocation is to take place by end of 2024 or early 2025, or for about 12 months if relocation is to take place in summer 2025.

3.  At the call-over hearing on 26 January 2024, this court, based on certain undertakings given by F, granted an order for F to pay interim maintenance at HK$150,000 per month until further order of the court, and further directed the substantive hearing of M’s applications to be heard today. 

4.  At today’s hearing, F offered the same previous undertakings with an additional offer of HK$162,962 as MPS and IM.  On the other hand, the claims of M now include a slightly different set of undertakings requested from F with a monthly sum of HK$1,063,833 as MPS and IM.

Brief Background

5.  The parties were married in 2004 but separated on 31 May 2023.  It was a marriage lasting 19 years.  F took out divorce proceedings on 1 August 2023.  A decree nisi of divorce was granted on 26 April 2024.

6.  Within wedlock, 2 children were born.  The elder boy (“A”) is aged 12 and the younger boy (“O”) now aged 9.  Both of them are students of S School but in different classes and campuses.  Although the parties failed to reach a settlement at the MCDR hearing, as recent events unfold, it now seems likely that they could reach some form of agreement on joint custody with care and control to M.   Unfortunately, there is still a huge gap on the issue of access.

7.  As stated above, the issue on relocation has become less controversial as F is likely to give his consent provided the issue on access could be resolved.  The claim for MPS/IM is more controversial and has to be fully argued at this hearing.

Legal Principles

8.  The general legal principles on MPS/IM are not in dispute.

9.  In HJFG v KCY[1], Hartmann JA, at paragraphs 37 and 38 of the judgment, gave a succinct summary of the law in this area by referring to the judgment of Mostyn QC, sitting then as a Deputy Judge of the High Court in England, in TL v ML [2006] 1 FLR 1263, 1289:

“37. The principles that have been emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a Deputy Judge, in TL v ML [2006] 1 FLR 1263, 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the Judge’s reference to the source of those principles:

(a) The sole criterion to be applied in determining the application is “reasonableness”, which is synonymous with “fairness”.

(b) A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

(c) In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

(d) Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumption about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation, the court should err in favour of the payee.

38. Finally, it is to be noted that in application for interim maintenance, when the amount to be paid is for a limited period only and not all the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a “broad-brush” basis.”

10.  Therefore, the overriding considerations for such applications are reasonableness and fairness.   In order to achieve these objectives, the Court has to balance the reasonable needs of the applicant and the ability to pay of the respondent on an interim basis: LJ v LWHH [2003] 3 HKC 455 at 461D.

11.  In undertaking this balancing exercise, the Court will adopt a broad brush approach, and not a detailed investigation of the financial positions of the parties.

Scope of the Parties’ Disputes

12.  As can be seen from the parties’ respective submission, there are 4 main areas of dispute:

(1)  The undertakings to be given by F;

(2)  The reasonable needs of M and the children;

(3)  F’s ability to satisfy those reasonable needs; and

(4)  M’s own ability to satisfy those reasonable needs.

F’s Undertakings

13.  At the call-over hearing, this court has accepted F’s following undertakings to cover certain parts of M and the children’s needs (“F’s current undertakings”).  It would be helpful to repeat them here for reference:

(1)  to procure to the best of his ability, the continued occupation and use of the former matrimonial home (“FMH”) and car parking space #173 (“CP Space”) by M and the 2 children of the family;

(2)  to procure to the best of his ability settlement of all reasonable outgoing expenses in relation to FMH and CP Space as a result of the occupation by M and the children, including but not limited to utilities (including electricity, gas, rates, water, phone and internet services), the management fees, government rent and rates, and any necessary repairs and maintenance;

(3)  to procure to the best of his ability the exclusive use of mobile no. 6xxx xxxx by M and pay and/or cause to be paid all reasonable local expenses pertaining to the phone plan thereto;

(4)  to procure to the best of his ability the availability of private transportation for the children’s needs and reasonable related expenses (including fuel, tunnel tolls) to and from school and extra-curricular activities;

(5)  to pay or cause to be paid to the best of his ability all reasonable expenses of the private vehicles nos. AT 38XX and CD 38XX (i.e. car insurance, registration fees and repairs) directly to the providers registered under the name of M;

(6)  to procure to the best of his ability the use and enjoyment of one (1) driver by M and the children, with any over-time of the driver pre-agreed;

(7)  to pay and/or cause to pay to the best of his ability for the children’s medical insurances directly to the providers as currently arranged;

(8)  to pay and/or cause to pay to the best of his ability for all the children’s reasonable medical, dental and optical expenses (inclusive of glasses) directly to the providers and/or make reimbursements to M for these reasonable expenses within 7 days upon production of receipt provided that M sought F’s prior written consent for procurement of such services;

(9)  to pay and/or cause to pay to the best of his ability for the children’s reasonable education expenses directly to the providers as follows:

(a)  School fees at S School, including all reasonable school related expenses, such as school meals, school trips and school bus fees;

(b)  Extra-curricular activities mutually agreed between M and F, including all reasonable related expenses; and

(c)  Necessary material and equipment needed for the children’s education.

14.  At the hearing, M asked for some variations to F’s current undertakings. Her main ground was that the implementation of some undertakings was problematic and so she asked them to be modified, failing which the court should allow a fixed sum instead.  In order to support her claim of problematic implementation, I was referred to M’s 9^th Affidavit (A/167-182).  I do not propose to repeat them here in order not to lengthen this judgment unnecessarily.

15.  The stance of F is that his current undertakings are sufficient as they have already catered for the needs of M and the children for (i) accommodation and related expenses; (ii) M’s mobile phone expenses; (iii) drivers and car-related expenses for the children; (iv) children’s medical insurance; (v) the children’s medical, dental and optical expenses; (vi) children’s school fees and related expenses; (vii) mutually agreed ECAs of the children.

My Views

16.  It is important to bear in mind that undertakings have to be given by a party voluntarily. This court will not adjudicate on the parties’ different versions of proposed undertakings and then make mandatory orders on them.  Therefore, what this court will do is to see whether the undertakings now proposed by F (in terms of his current undertakings) are reasonable in the circumstances.  If not, and if appropriate, the court may make monetary orders in lieu of those proposed undertakings.

17.  In my view, an important feature of this case is F’s own financial inability to cater for M and the children’s needs.  It is common ground that this family’s very high standard of living in the past was solely dependent on the financial support from F’s parents.  Therefore, it is not a matter of whether F was willing or able to make the financial provisions.  It is more a case of whether he was able to persuade his parents to continue those very generous financial support, by way of undertakings or otherwise.  Of course, at present there is no credible evidence that the grandparents are prepared to stop the financial support and that is why F was still able to fulfil the current undertakings given by him at the last hearing.  However, this court has to recognise that there may be limitation on how he may structure the undertakings to be given.

18.  Another consideration is the rather short duration of the MPS/IM to be ordered.  Any undertaking and monetary provision will likely to last for only about 5-12 months, after which practically all of them have to be re-visited in accordance with the then circumstances after relocation.  Therefore, it may not a fruitful exercise to go into a detailed discussion on the so-called problems as disclosed in M’s 9^th Affidavit.  After all, some of the “problems” as encountered by M, though seem minor, but actually might not be so easy to resolve by way of a monetary order.  For example, the 1^st “problem” encountered was the fact that M was only given 1 access card to the FMH.  She said she needed 7 cards.  I do not see how that “problem” could be resolved by granting a monetary order in lieu.  It could only be resolved by the parties adopting reasons and common sense.  In this regard, I would expect F to provide additional access cards to M, if that has not already been done.

19.  By adopting a broad-brush approach, I tend to agree with Ms. Booth’s submission that F’s current undertakings are already very extensive, catering for accommodation, transport, medical, school and ECA expenses.  M may not be entirely satisfied with some of the detailed arrangement but this court is not minded to substitute any of them with monetary orders.  I am satisfied that F’s current undertakings are reasonable and are accepted by this court for the relatively short period that they are supposed to cover.

Reasonable Needs of M and the Children

20.  On top of the undertakings, M now asks for a monetary MPS/IM order as follows:

General Expenses

Item	Amount (HK$)
Food	80,000
Household	30,168
Repair and maintenance	41,800
Car expenses	61,500
Domestic Helpers	31,000
2 Drivers	65,000
Mercedes EQS	34,862
Sub-total:	HK$344,330

Personal Expenses

Item	Amount (HK$)
Meals out of home	62,000
Transport	2,000
Clothing/shoes	100,000
Personal grooming	48,000
Entertainment/Presents	36,000
Holiday	100,000
Medical/dental	10,600
Club memberships	6,070
Sub-total:	HK$364,670

Children Expenses

Item	Amount (HK$)
Extra tuitions and ECA	162,000
Lunch/pocket money	3,500
Clothing/shoes	20,000
Personal grooming	5,000
Entertainment/Presents/Books/Stationery	20,000
Holiday	133,333
Medical/dental	11,000
Sub-total:	HK$354,833
Grand-total:	HK$1,063,833

Discussion

General Expenses

Food

21.  M claims for food under general expenses in the sum of HK$80,000 per month.

22.  F argues that there is insufficient documentary evidence for such a high figure.

23.  Over all speaking, I accept that this family did enjoy a very high standard of living, if not a luxurious one.  This could be seen from the fact that just for donations to school and educational institutions, they amounted to over HK$1,000,000 a year.  I also have to bear in mind that this family employs 3 domestic helpers.  In other words, the monthly expenditures on food are to feed a total of 6 people.  Still, a monthly sum of HK$80,000 on food at home seems on the high side.  A daily sum of HK$2,000 sounds more reasonable, i.e. HK$60,000 per month, bearing in mind that M also claims for meals out of home, which will be discussed later in this judgment.

Household Expenses

24.  M claims for HK$30,168 per month as household expenses.

25.  F suggests that HK$16,000 is more reasonable as M could not produce documentation to support such a high figure.

26.  At §§52-56 of M’s 5^th Affidavit (A/49-50), M tried to explain her claim of HK$30,000 per month for household expenses.  She referred to the high hygiene standard that they adopted at home; how they utilized hospital-level IQ air filters; using high-standard personal consumables; paying repair and maintenance expenses for wear and tear of appliances, equipment and furniture. She also included HK$168 monthly expenses on internet.  However, there was no breakdown to show how she arrived at HK$30,000 or HK$30,168 per month. 

27.  On the other hand, I do not see any written submission on how F arrived at his suggested figure of HK$16,000.

28.  Overall speaking, for a family which had enjoyed such a high standard of living before separation, a monthly sum of HK$30,000 on general household expenses could not be regarded as unreasonable.

Repair and Maintenance

29.  M claims for HK$41,800 for repairs and maintenance of the FMH.

30.  F refused saying that this part of the expenses should have been covered by the current undertakings.

31.  I accept that these expenses of the FMH should have already been covered by the undertaking in relation to the FMH.  After all, I note that for the general household expenses, which have already been allowed in full, there is already an element on “repair and maintenance expenses for the wear and tear of appliances, equipment and furniture in the FMH”.  Therefore, this separate item on repair and maintenance is not allowed.

Car Expenses

32.  M claims for car expenses at HK$61,500 per month, in lieu of F’s undertaking on transportation.

33.  This court has already accepted that F’s undertakings are reasonable and so M’s claims of HK$61,500  for private transportation must fail.

Domestic Helpers

34.  M claims for 3 domestic helpers at a total costs of HK$31,000 per month.

35.  F said 2 domestic helpers are enough, proposing HK$15,000 per month for this item.

36.  I accept that M is currently employing 3 domestic helpers with one of them being in employment for almost 10 years.  It is not unreasonable for M to pay them something more than the legal minimum.  I will allow HK$24,000 per month for 3 domestic helpers with an average of HK$8,000 each.

Drivers

37.  M claims for HK$65,000 per month for 2 drivers.

38.  This has already been covered by F’s current undertakings and nothing will be allowed in this regard. 

Mercedes EQS

39.  M claims for HK$34,862 per month, to which F raised no objection.  This item is allowed in full.

M’s Personal Expenses

Meals out of Home

40.  M claims HK$62,000 for meals out of home.

41.  F objected by saying that M could not produce sufficient documentation to support such a high figure.

42.  In my view, requiring M to provide proof on every dollar and cent of her interim need on meals out of home is not reasonable, nor practicable.  All these figures are necessarily rough estimates.  But I accept that M spending an average of over HK$2,000 on each every day of the month for meals out of home is a bit on the high side.  I would reduce it to HK$30,000 per month.

Transport

43.  M claims HK$2,000 per month for personal transport, to which there is no objection. This item is allowed.

Clothing/shoes

44.  M claims HK$100,000 per month on her own clothing and shoes.

45.  F objects and suggests HK$10,000.

46.  I accept that both parties did purchase expensive clothing and shoes before separation, but a monthly sum of HK$100,000 is still on the high side.  I would allow HK$50,000 per month which I consider to be more reasonable.

Personal Grooming

47.  M claims HK$48,000 per month on personal grooming.

48.  F suggests HK$8,000 per month.

49.  I think a monthly sum of HK$20,000 is more reasonable as an interim measure.  

Entertainment/presents

50.  M claims HK$36,000 per month as entertainment and presents.

51.  F suggests HK$5,000 per month.

52.  I think a monthly sum of HK$20,000 is reasonable.

Holidays

53.  M claims HK$100,000 per month on her holidays.  It is noted that she also claims for HK$133,333 per month as the children’s travelling costs, which will be dealt with later in this judgment. She said before COVID, the family travelled to Korea every year 5-6 times.  They also went for skiing trips in places like Niseko, Japan and Whistler, Canada, during which they would engage top-notch private instructors for each child.  At §76 of her 5^th Affidavit (A/54-58), she even set out a table of their 10 overseas trips between Christmas 2022 and October 2023, with an estimated spending of HK$2,800,000. This did not include the costs to Seoul with a further estimate of HK$200,000.  

54.  F objects and suggests HK$10,000, instead.

55.  I note that M’s estimation of total travelling costs at about HK$3,000,000 covered the period from Christmas 2022 to October 2023.  It was an estimated figure without documentary support.  Doing the best as I could, I allow HK$50,000 per month for M’s holidays.

Medical/dental

56.  M claims HK$10,600 per month as her medical and dental costs.

57.  F suggests HK$3,100 saying that this is enough for M to maintain necessary medical insurance.

58.  I note that at §§77-80 of her 5th Affidavit (A/58-59), M set out her needs item by item, averaging HK$8,100 per month. Arguably, some of them may not be “medical” in nature. One obvious example was health supplements.  Glass lens also might not be needed every year, certainly not every month. Moreover, it might not be practical to purchase medical insurance just covering such a short period of time from now to December 2024, or summer 2025 the latest.  For this item, I would allow HK$5,000 per month.

Club Memberships

59.  M claims HK$6,070 per month for her membership fees at the American Club and Hong Kong Country Club, which amounts used to be paid out from the parties’ joint account.

60.  I am satisfied that M’s continued enjoyment of these club membership is justified and the amount is allowed in full.

Children Expenses

Extra tuitions and ECA

61.  M claims HK$162,000 per month for the children’s extra tuitions and ECA.

62.  F objects saying that they have already been covered by the F’s undertakings.

63.  I accept that the undertakings are sufficient to cover the children’s expenses in these 2 areas and so no monetary awards will be made.

Lunch and Pocket Moneys

64.  M claims HK$3,500 per month for the children’s lunch and pocket money.

65.  F objects and relies on the undertakings.

66.  Since the sum involved is comparatively small.  I am minded to allow this sum at HK$3,500 per month.

Clothing/shoes

67.  M claims HK$20,000 per month for the children’s clothing and shoes.

68.  F objects and suggests HK$2,000 instead.

69.  I think HK$2,000 is too little.  I allow HK$10,000 per month.

Personal Grooming

70.  M claims HK$5,000 per month for the children’s personal grooming.

71.  F suggests HK$2,000.

72.  I accept F’s proposal being reasonable.  HK$2,000 per month is allowed.

Entertainment/presents/books/stationery

73.  M claims HK$HK$20,000 per month for the children in these items.

74.  F proposes HK$5,000.

75.  I allow HK$10,000 per month.

Holidays

76.  M claims HK$133,333 per month for the children’s holidays.

77.  F proposes HK$10,000.

78.  I have allowed HK$50,000 per month for M’s holidays.  For the children, I would reduce it slightly to HK$40,000 per month for each child, making it HK$80,000 for 2 children.

Medical/dental

79.  M claims HK$11,000 per month for the children’s medical and dental expenses.

80.  F suggests nil as they have already been covered by undertakings. 

81.  I have allowed HK$5,000 per month for M as medical and dental expenses.  Medical expenses for children might not be less than adult.  I would also allow HK$5,000 for each child, making it HK$10,000 per month as children’s medical and dental expenses.

Summary of reasonable monthly expenses as found by this court

82.  By way of summary, the reasonable monthly expenses of M and the children as found by this court in additional to F’s undertakings are HK$447,432.  They are summarized as follows:

General Expenses

Item	Amount (HK$)
Food	60,000 (- 20,000)
Household	30,000 (-168)
Repair and maintenance	Nil (- 41,800)
Car expenses	Nil (- 61,500)
Domestic Helpers	24,000 (- 7,000)
2 Drivers	Nil (- 65,000)
Mercedes EQS	34,862 (- 0)
Sub-total:	HK$148,862(-195,468)

Personal Expenses

Item	Amount (HK$)
Meals out of home	30,000 (- 32,000)
Transport	2,000 (- 0)
Clothing/shoes	50,000 (-50,000)
Personal grooming	20,000 (- 28,000)
Entertainment/Presents	20,000 (- 16,000)
Holiday	50,000 (- 50,000)
Medical/dental	5,000 (- 5,600)
Club memberships	6,070 (- 0)
Sub-total:	HK$183,070 (-181,600)

Children Expenses

Item	Amount (HK$)
Extra tuitions and ECA	Nil (-162,000)
Lunch/pocket money	3,500 (- 0)
Clothing/shoes	10,000 (- 10,000)
Personal grooming	2,000 (- 3,000)
Entertainment/Presents/Books/Stationery	10,000 (- 10,000)
Holiday	80,000 (- 53,333)
Medical/dental	10,000 (- 1,000)
Sub-total:	HK$115,500 (- 239,333)
Grand-total:	HK$447,432 (- 616,401)

F’s Ability to Pay

83.  In addition to the undertakings, F offers to pay HK$162,962 per months as monetary MPS/IM.  The difference between this and the reasonable needs of M and children as found above is HK$284,470 per month (HK$447,432 – HK$162,962 = HK$284,470). The next question is whether F has the ability to pay this additional HK$284,470 per month.

84.  As stated above, there is no dispute on F’s own financial inability to support this family’s very high standard of living in the past.  He only received about HK$75,000 per month as director fees from the family company (“VG”) and RB. Undoubtedly, very generous financial support has been given by F’s parents.  According to M, such financial support was given in mainly 3 areas:

(1)  Direct payments by F’s parents:  They include the provision of the FMH; 2 drivers and related expenses; ad-hoc expenses including large amount of donations; the use of family yacht and the apartment at Century Tower.

(2)  Direct spending on supplementary cards and club memberships:  The family always ordered takeaways from various clubs and those bills would customarily booked to F’s parents.  The family always used the supplementary cards given to F by his parents.  M was also given a BEA supplementary card by F’s father.  The family purchased gifts, such as antique from art dealers and galleries and such bills would be sent to F’s parents directly.

(3)  Reimbursements: There was an additional HK$500,000 monthly budget given to F who would transfer money into the parties’ joint account.  Out of the HK$500,000, payments would be made towards the children’s miscellaneous and ad-hoc expenses, children’s ECA and the balance to be paid into F’s company (RB).  F’s parents would also give lai-sees to the family every year.

85.  At §21 of F’s 4^th Affirmation (A/112), he admitted that his parents did provide the following financial assistance to the family:

(1)  Accommodation at the FMH and transportation.

(2)  Children’s school fees and ECAs.

(3)  Medical and dental expenses.

(4)  Family daily expenses of HK$60,000.

(5)  Use of supplementary credit cards.

86.  At §§33-37 (A/115-116), there was also no dispute that F’s mother did provide a monthly budget of not more than HK$500,000 to the family.  However, he said such assistance was no longer available and he had to seek assistance from a relative. At §35, F said:

“35. My mother has used a cap of HK$500,000 per month with her accountant to RB and my family. The amount includes HK$60,000 for daily family expenses, reimbursements for ECA and a loan to RB to sustain its business activities. The loan will have to be repaid by RB the company. The amount owed by RB to my parents was set out in my Form E, and now that my mother is no longer willing to loan for RB due to the amounts, I have to seek a family relative to keep the company afloat.”

87.  There was no credible evidence on the cessation of financial assistance from F’s mother, except his mere say so.  There was also no mention of which family relative is now supporting F in place of his mother.  On the other hand, the fact that F is able to offer the current undertakings is a strong indication that financial assistance is still forthcoming from his family.  On balance, I am satisfied that F’s family is continuing to provide financial assistance to the family as in the past, which includes a monthly budget of not more than HK$500,000. 

88.  However, one has to bear in mind that this HK$500,000 monthly budget must have included some of the items now covered by F’s proposed undertakings.  Moreover, the budget was provided to support the “whole” family including F and his company RB, but not simply for M and the children.  There was not clear evidence on how much of that HK$500,000 is now being used to cover F’s current undertakings; or how much of it could still be used as direct monetary contribution towards M and the children’ interim reasonable needs.  Doing the best as I could, I am prepared to assume half of that sum, namely HK$250,000 is still available to be used as such direct monetary contribution. In other words, this court is of the view that apart from F’s current undertakings, he does have ability to make direct monetary contribution in the sum of HK$250,000 towards the interim reasonable needs of M and the children.

M’s own ability to satisfy her and the children’s needs

89.  The last and more controversial issue is M’s own ability to satisfy her and the children’s interim reasonable needs.

90.  I think it is fair to say that M herself is not a person without means.  Arguably, M is a richer person (as compared to F) in her own right.  In her Form E dated 6 October 2023, she stated at Part 5.1 that (A3/523):

“As per Part 5.5, I have inherited an interest in a total of three properties in Korea from my late father who passed away in 1997. One of the properties is set out in Part 2.2. The remaining two are commercial properties, and my interest in both properties is 20%.

The said two properties in Korea have been sold in the past 36 months. One sale took place on 27 June 2022. The sale price was KRW 27,400,000,000 (approximately HK$158,920,000) and my share is 20%. I had transferred about HK$20 million to the Petitioner on the understanding that he would hold the money for me for investment. But the Petitioner refused to return it to me after our separation despite my request. That is the sum of money that I set out in Part 2.9 above that the Petitioner owes me.

The other sale was conducted on 4 August 2023. The sale price was KRW 17,200,000,000 (approximately HK$99,760,000) and my share is 20%. The sale proceeds are payable to me by instalments. About HK$1.97 million was received on 4 August 2023, and HK$5.93 million was received on 5 October 2023,and the payments are now held by my mother for me. She could only transfer the same to me after settling the tax payment upon the completion of sale.

The sale proceeds stated are subject to 40% government tax and costs incidental to the sale including real estate agent’s fee, lawyer’s fee, and accountant fee.

The sale proceeds will be used to pay for my legal costs in these proceedings.”

91.  Even in her own words, M is having assets at least as follows:

(1)    40% in a property in Seoul, Korea	HK$7,080,000
(2)    Sale of Korean property on 27/6/2022 (20%)	HK$31,784,000
(3)    Sale of Korean property on 4/8/2023 (20%)	HK$19,952,000
	HK$58,816,000

92.  Even assuming M has to pay 40% of Korean tax for the sale of 2 properties, she still has received or about to receive HK$31,041,600 (HK$31,784,000 + HK$19,952,000) x 60% = HK$31,041,600.

93.  According to M, out of those sale proceeds, she has entrusted HK$20,000,000 with F for investment.  At the hearing, it was mentioned that the trusted money with F has now been reduced to about HK$16,000,000 but that is still quite a big sum by any standard. In the Form E, M alleged that F refused to return the money upon request.  But the irony is that at the call-over hearing, F has already through counsel offered to return the money but his offer was flatly refused.

94.  It seems that M also has another source of income and that is an annuity of HK$65,000 per month.  That is also a financial resource that could be used towards the interim reasonable needs of M and the children.

95.  At the hearing, there was hot debate on whether or how M’s wealth would impact on her MPS/IM application.  Ms. Yip on behalf of M submits that even if M is having assets, that does not mean that no MPS or IM could be granted.  I was referred to CWK v. YCHS, CKY (unrep., FCMC 6082/2014, 10/12/2015) in which HHJ Own ordered the husband to pay maintenance on a level that he previously had been paying during marriage.  Ms. Yip further submits that M’s assets are non-matrimonial in nature because they represent her inheritance which have always been kept separate from the family’s own finances.  Therefore, it is unreasonable to request her to use her resources of a non-matrimonial nature to meet the on-going needs.  Ms. Yip also submits that M is not claiming legal cost provision at the moment and any financial resources currently retained by her are destined for such purpose.

My Views

96.  I have no issue with the proposition that even if a party does have her own means, that does not bar him or her from claiming MPS or IM.  However, it is my firm view that if a party does own substantial assets, whether matrimonial or otherwise, that is a factor that needs to be taken into account in deciding whether or what sort of MPS or IM orders are to be made.  It may be true that in the final ancillary relief hearing, assets of a non-matrimonial nature may receive different treatment from joint marital acquest.  Sometimes, non-matrimonial assets may even be ring-fenced from distribution in appropriate cases.  But it is never the law that a party’s financial resources should never be taken into consideration in ancillary relief proceedings, even if they are of a non-matrimonial nature. This must be the case by virtue of section 7(1) (a) of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) in that:

“(1) It shall be the duty of the court in deciding whether to exercise its powers … to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say –

(a) The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

…”

97.  Therefore, it is my view that M’s own substantial financial resources, in particular her monthly annuity of HK$65,000 and the HK$16,000,000 now held by F on her behalf, could also be used towards her and the children’s interim needs.

98.  Moreover, it is quite clear that M’s mother has also given substantial financial assistance to M.  M actually confirmed this at §45 of her 6^th Affirmation (A/84):

“45. Although I am fortunate enough to have financial assistance from my mother …”

M also stated at §103(a) of her 9^th Affidavit (A/167) that her mother have given financial assistance (allegedly a loan) to her in the sum of HK$3,082,400. 

99.  I suppose that M’s mother is a person of substantial means as she should also have received a large legacy from M’s father’s estate.  If F’s parents’ financial assistance could be regarded as a financial resource of F, there is no reason why the same treatment should not be given to M’s mother’s financial assistance.

100.  Based on the above discussion, I am of the view that both M’s own financial resources, including her mother’s financial assistance could also be used to satisfy M and the children’s interim reasonable needs.

Conclusions and Orders

101.  After hearing submissions, this court has come to the following conclusions:

(1)  The current undertakings given by F are reasonable and therefore, accepted by this court.

(2)  In addition to those undertakings, the interim reasonable needs of M and the children amount to HK$447,432. 

(3)  It is accepted that during the course of marriage, most if not all family expenses were paid by F with financial assistance provided by his parents. F’s mother had also provided financial assistance up to a monthly sum of HK$500,000, which was inclusive of such payments as school fees and ECAs. As far as F's ability to pay, the court is satisfied that he has such ability to make monetary contribution of up to HK$250,000 per month towards the interim reasonable needs of M and the children in addition to the current undertakings.

(4)  At the same time, M’s own assets (in particular the HK$16,000,000 now held by F on M’s behalf) and her monthly annuity of HK$65,000 could also be utilized towards M and the children’s interim reasonable needs.

102.  Based on these conclusions, it is fair for M and the children’s interim reasonable needs of HK$447,432 to be shared between the parties equally. For this purpose, I am minded to order F to pay a monthly sum of HK$225,000 as MPS/IM for M and the children, with the balance to be borne by M from her own resources. 

Orders

103.  Based on F’s undertakings:

(1)  to procure to the best of his ability, the continued occupation and use of the FMH and CP Space by M and the 2 children of the family;

(2)  to procure to the best of his ability settlement of all reasonable outgoing expenses in relation to FMH and CP Space as a result of the occupation by M and the children, including but not limited to utilities (including electricity, gas, rates, water, phone and internet services), the management fees, government rent and rates, and any necessary repairs and maintenance;

(3)  to procure to the best of his ability the exclusive use of mobile no. 6xxx xxxx by M and pay and/or cause to be paid all reasonable local expenses pertaining to the phone plan thereto;

(4)  to procure to the best of his ability the availability of private transportation for the children’s needs and reasonable related expenses (including fuel, tunnel tolls) to and from school and extra-curricular activities;

(5)  to pay or cause to be paid to the best of his ability all reasonable expenses of the private vehicles nos. AT 38XX and CD 38XX (i.e. car insurance, registration fees and repairs) directly to the providers registered under the name of M;

(6)  to procure to the best of his ability the use and enjoyment of one (1) driver by M and the children, with any over-time of the driver pre-agreed;

(7)  to pay and/or cause to pay to the best of his ability for the children’s medical insurances directly to the providers as currently arranged;

(8)  to pay and/or cause to pay to the best of his ability for all the children’s reasonable medical, dental and optical expenses (inclusive of glasses) directly to the providers and/or make reimbursements to M for these reasonable expenses within 7 days upon production of receipt provided that M sought F’s prior written consent for procurement of such services;

(9)  to pay and/or cause to pay to the best of his ability for the children’s reasonable education expenses directly to the providers as follows:

(a)  School fees at S School, including all reasonable school related expenses, such as school meals, school trips and school bus fees;

(b)  Extra-curricular activities mutually agreed between M and F, including all reasonable related expenses; and

(c)  Necessary material and equipment needed for the children’s education.

It is ordered that F shall pay the following MPS/IM on the 1^st day of every month, starting 1 September 2024 until further order of the court:

(i)  HK$75,000 as MPS for M;

(ii) HK$75,000 as IM for A; and

(iii) HK$75,000 as IM for O.

Costs

104.  M has to come to court before she could obtain the present MPS/IM orders and therefore arguably, she should be regarded as the winner of this application. She should be given costs, including costs reserved with certificate for 2 counsel. This is in the form of an order nisi to be made absolute after the expiry of 14 days from the handing down of this judgment.  Within 14 days of costs order being made absolute, M is to submit a costs statement limited to 2 pages of A4 paper for the court’s summary assessment and F be at liberty to submit a list of objections also limited to 2 pages of A4 paper 14 days thereafter for the court’s consideration.

105.  Lastly, I thank counsel for their assistance.

Representation:

[1] [2012] 1 HKLRD 95

FCMC 8704/2023

[2024] HKFC 110

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8704 OF 2023

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D E C I S I O N
(Summary Assessment of Costs)

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1.  On 17 April 2024, I dismissed the Petitioner Father (“F”)’s ex-parte summons (on notice) for interim access and made costs order against him. I also directed that the costs order is to be summarily assessed which I now do.

2.  The Respondent Mother (“M”) submitted her statement of costs in the sum of HK$337,020 (including Senior Counsel fee of HK$200,000 and junior counsel fee of HK$35,000). F submitted that the total counsel fees of HK$235,000 were excessive. F further submitted that the costs order should be assessed at HK$161,194 only.

3.  I note that Senior Counsel have all along been instructed by both sides for many of the previous hearings. For the present ex-parte summons (on notice), F himself has also instructed very experienced Senior Counsel to attend, indicating that the involvement of Senior Counsel was well justified. In the circumstances, I would assess M’s solicitors’ costs at HK$70,000; and counsel fees of HK$235,000 are allowed in full. Therefore, the total costs of M are now summarily assessed at HK$305,000, payable by F forthwith.

Representation:

FCMC 8704/2023

[2024] HKFC 100

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8704 OF 2023

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D E C I S I O N
(TEMPORARY REMOVAL)

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Application

1.  This is a hearing of the Respondent Mother (“M”)’s summons filed on 3 April 2024, in which she asked for temporary removal of the 2 children of family during the coming summer vacation as follows:

(1)  To the USA from 15 June 2024 to 28 July 2024 (both dates inclusive); and

(2)  To South Korea from 29 July 2024 to 8 August 2024 (both dates inclusive).

2.  The Petitioner Father (“F”) initially did not agree to the proposed vacation plan but he eventually agreed to the proposed trips with conditions. The parties could not agree on those conditions and also on costs and so a determination by this court has become necessary.

Discussion

3.  Although the Petition for Divorce was only issued in August 2023, there have already been 10 hearings before the court, many of which touched upon very contentious issues mainly on access. After the unsuccessful MCDR hearing on 8 March 2024, the parties could not agree on the children’s summer arrangement. M wants to enrol the children for a swimming camp at Palo Alto, California from mid-June to end of July 2024, and then go to South Korea from 29 July 2024 to 8 August 2024 to visit their maternal grandmother. She issued the present summons on 3 April 2024 together with her 7^th supporting Affidavit.

4.  In response, F filed his 7^th Affirmation raising initial objections to the US trip but not the South Korean trip. He said he had no objection for the children to have swimming training in the summer but that could be done in Hong Kong instead of in the US. He further said that M’s travel plan has basically monopolized the whole of the children’s summer vacation and he as a father would also like to spend some time with the children as well. Therefore, he proposed that the children are to remain in Hong Kong from 15 June 2024 to 28 July 2024 for therapy and activities. He could also take the children to a vacation of their choice for some time in between. He has no objection for M’s proposed trip to South Korea thereafter for the children to see their maternal grandmother.

5.  M filed her 10^th Affidavit in reply but it will serve no useful purpose by going into that Affidavit.

6.  F was represented by Ms. Booth this morning who pointed out that the entire summer vacation of the children covers a period of 59 days from 15 June 2024 to 12 August 2024. In M’s vacation plan, M is to have the children for 54 days, and returning them to Hong Kong only 5 days before the children’s new school term. At no point has M suggested F to have any holiday or make up access to the children. This is most undesirable as according to F, he is having zero access to the children at the moment. That was why he puts up the alternative proposal for the children to have their swimming training in Hong Kong. After further consideration, F’s current proposals are as follow:

(1)  F has no objection to the US trip but subject to the following requests (“F’s Special Requests”):

(a)  Provision of the itinerary for the intended holidays;

(b)  Provision of details of the accommodation arrangements and updates if any during the trip;

(c)  M facilitating daily remote access to the children by video call on their own personal devices (without being monitored), at a time convenient to M and the children between 7am to 11pm Hong Kong time; and

(d)  M facilitating F and the children having access during the holidays in South Korea by bringing them to F’s hotel for 1 hour a day between 1 August to 8 August 2024.

(2)  F has no objection to the South Korean trip for the children to visit their maternal grandmother.

7.  M was represented by Ms. Anita Yip SC. In her written submissions, Senior Counsel has referred to lawyers’ recent correspondence saying that F’s “extreme behaviours” has made the children being very scared of him. I do not intend to go into the details of those behaviours because I trust that they must be rigorously contested by F. But I think one thing is very clear. For one reason or another, F is having great difficulty in seeing the children. F said it was due to the uncooperative altitude of M whilst M suggested it was due to F’s “extreme behaviours” and his determination to force his way to access. M also suggested F’s reneging on his promise to allow the children to go to South Korea during Easter has also caused additional strain to the already very fragile father-and-children relationship. However, this is not an appropriate occasion for this court to make a determination on those disputes.

8.  For F’s Special Requests, Ms. Yip submitted that the itinerary and accommodation details have already been provided. M agrees to provide updated information, if there are changes. For remote access, the children have their own mobile phones and laptops. Bearing the parties’ heavily disputed cases in mind, M is unwilling to provide an undertaking to “facilitate” access as she has strong reservations about F’s ulterior motive due to his repeated threats to commit her for contempt. For the same reason, M does not agree to give an undertaking to “facilitate” daily access during the South Korean trip.

My views

9.  I am glad to note that F has finally agreed to the proposed US and South Korean trips. What remains in dispute has become very narrow and they are F’s Special Requests. I have no problem with the requests on itinerary and accommodation information. Such information, including updates, should be provided if they have not already been given.

10.  What is a little contentious is about the request for M’s facilitation to F’s remote access and 1-hour daily access during the South Korean trip. It is my view that despite all the contentious issues between the parties, M as the main carer has a clear duty to facilitate F’s access to the children, no matter how difficult that might be. Some may argue that by using general term like “facilitation” of access, it is only aspirational in nature as it may be difficult to say whether “facilitation” has been provided or not. Be it aspirational or not, I have no hesitation in requiring M to facilitate F’s access to the children. However, as to the 1-hour daily access in South Korea, a mandatory order for the access to take place at F’s hotel may be too rigid. It would be more reasonable for it to take place at F’s hotel or at a place to be agreed.

Orders

11.  Based on the above discussion, and subject to M’s written undertaking to return the children at the end of the 2 proposed trips, I am minded to make the following temporary removal orders:

(1)  Leave to M to take the 2 children to the USA from 15 June 2024 to 28 July 2024 (both dates inclusive);

(2)  Leave to M to take the children to South Korea from 29 July 2024 to 8 August 2024 (both dates inclusive);

(3)  M shall provide the children’s itinerary and details of their accommodation arrangements and updated information if there shall be changes thereof;

(4)  M shall facilitate F’s daily remote access to the children by video call on their own personal devices (without being monitored), at a time convenient to M and the children between 7am to 11pm Hong Kong time; and

(5)  M shall facilitate F to have daily access to the children at F’s hotel or at a place to be agreed during the holidays in South Korea for 1 hour a day between 1 August and 8 August 2024.

Costs

12.  M asks for costs. Ms. Yip submitted that F’s refusal to the temporary removal is so unreasonable making this a paradigm case calling for costs consequence. F was intentionally forcing M to spend legal costs, attempting to drain her and exerting pressure for her to “surrender”. F could have agreed to the trips much earlier but he chose to oppose the summons requiring M to file 2 affidavits and to engage her team of counsel. F only agreed to the trips but subject to his Special Requests at the very last minute, resulting in the necessity of the hearing. M should not be burdened with the legal costs which she quantified at HK$338,315.

13.  Ms. Booth for F submitted that as a general rule, unless there are exceptional circumstances, there is usually no order as to costs in children proceedings, citing the case of NI v TCHK[2023] HKFC 253. The issue now is whether there are such exceptional circumstances in the present case. Ms. Booth submitted that there was not and F’s conduct could not be regarded as reprehensible or unreasonable as he was only trying to secure some form of sharing of the summer vacation. Therefore, F should not be penalised on costs.

14.  In my view, F’s initial objection to M’s temporary removal application has of course made this hearing become necessary. However, this court cannot ignore the undeniable fact that he as a father, has not been able to see the 2 children at all. The reason for such failure is still subject to debate but as a loving father, his anguish in not being able to maintain contact with his children is understandable. By looking at M’s holiday proposals, the children will spend 54 out of their 59 days of summer vacation out of Hong Kong and if allowed unconditionally, F’s hope to have some form of contact with the children during summer will be dashed. Therefore, F’s efforts to negotiate for the children spending some of their summer time in Hong Kong or later some form of access to be arranged during the trip cannot be regarded as so outrageous that he must be penalised on costs. Therefore, there shall be no order as to costs in this application. At the hearing, I had a query on whether the instruction of 2 counsel in a temporary removal application was necessary but in view of my decision that there shall be no order as to costs, that issue is no longer relevant.

15.  Lastly, I thank counsel for their assistance.

Representation:

FCMC 8704/2023

[2024] HKFC 82

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8704 OF 2023

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D E C I S I O N

(Ex-parte Summons (On Notice) for Variation of Interim Access)

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1.  This is an ex-parte application taken out by the Petitioner Father (“the father”) on the issue of interim access. On 20 October 2023, this court has granted the father an interim defined access order in respect of the 2 children of family on broadly the following terms:

(1)  Access by way of weekday morning drop-off for elder son (“A”) on Monday, Wednesday and alternate Friday; and for younger son (“O”) on Tuesday, Thursday and alternate Friday with some other related directions (§1 (a), (b) and (c)).

(2)  Weekday afternoon access on Tuesdays and Thursdays after school from 4:15pm to 9:00pm (§1 (d)).

(3)  Sunday access from 9:00am to 9:00pm (§1 (e)).

(4)  All access initially take place at the former matrimonial home (“FMH”) and the father be at liberty to take the children for access outside the premises (§1 (f)).

(5)  The Respondent Mother (“the mother”) and maternal grandmother to leave FMH 15 minutes before access (§1 (g)).

(6)  CCTV at FMH to be turned off during access (§1 (h)).

(7)  The children to attend a private clinical psychologist, preferably the same one as the parties’ (§2).

(8)  The parties to attend co-parenting course and to receive counselling (§3).

(9)  A parenting coordinator to be appointed (§4).

(10)  Costs of the parenting co-ordinator and clinical psychologist to be shared equally (§5).

2.  On 15 April 2024, the father issued the present Ex-parte Summons (On Notice) for variation of the above interim defined access order, returnable today for a 2-hour hearing.

3.  As submitted by the father’s leading counsel Mr. Cheng SC, ever since the granting of the interim defined access order, the mother continued to obstruct the father’s already limited access to the children. The situation has now come to a stage that the father is currently having zero access.

4.  In support of his application, the father has filed a lengthy 6^th Affirmation basically saying that the mother has now denied the children of all access to the father; the mother being a dishonest person and not being fit as a temporary or sole guardian. He also put in 2 affirmations, one from the family driver saying how the father was being a hands-on and loving father and also on an incident happened on 9 April 2024, during which the younger son did go to the Century Tower voluntarily. The other affirmation was from a mutual friend saying that the mother has placed the children’s passports with her but at the same time alleged those travel documents were being kept by the father. I think the father was trying to show that the mother was a dishonest person.

5.  The father now asks for urgent orders from the court to vary the interim defined access order in that:

(1)  the week-day afternoon access on Tuesday and Thursday from 4:15pm to 9:00pm be changed to Monday, Tuesday and Wednesday for the children to be picked up at school until 9:00pm.

(2)  On non-school days, access to start from 3:30pm to 9:00pm to take place at the Ladies’ Recreation Club and returning the children to the FMH at the end of access.

(3)  Sunday access from 9:00am to 9:00pm with handover at Ladies Recreation Club.

(4)  There be urgent regular therapy sessions with Dr. Chan, clinical psychologist, with a regular frequency established before the children are allowed to leave Hong Kong.

(5)  A report from the parties’ single joint expert, Dr. Poon on the children.

(6)  The parties do attend co-parenting course.

(7)  The costs of clinical psychologist to be shared equally.

One would realise that sub-paragraphs (1) to (3) concern with the actual access time by the father, whilst sub-paragraphs (4) to (7) deal with psychological therapy, expert report and co-parenting course to be attended by the parties themselves.

6.  In sub-paragraphs (1) to (3), the father is actually asking for an increase in access (from 2 week-day afternoon access to 3 week-day afternoon access) and the place of pick-up to be changed from FMH to school pick-up or the Ladies Recreation Club. As to the other sub-paragraphs (4) to (7) on psychological therapy, expert psychologist report and co-parenting course, they are more or less the same as the previous order.

7.  As the mother was put on notice, she was represented by Ms. Yip SC this morning. Due to the short notice, the mother was only able to submit a draft 8^th Affirmation in response. There was no denial that the father‘s access to the children has deteriorated but according to the mother, there were 2 incidents which have caused such an undesirable state of affairs. First, during the M-CDR hearing, it was agreed that the children would be allowed to go for holidays in Korea during the Easter Holidays, but the father now reneged on it. Second, during a morning trip to school, the younger son was forced to go to the father’s residence at Century Tower and the above 2 matters have caused much distress to both children.

8.  Before one goes into the merits of the father’s application, this court has to address a more fundamental point and that is whether this court should entertain the father’s ex-parte application, whether on notice or not, at all. It is well established that ex-parte applications should be regarded as exceptional and the court should not entertain the same unless there are cogent justifications usually in terms of extreme urgency or secrecy: Slik Hong Kong Co Ltd v Gerald Merlyn Rhoslyn E & Ns and Others [2005] HKEC 2368, per Lam J (as Lam PJ then was) at §2.

9.  The issue here is whether the requirement of extreme urgency is satisfied. I stress here that the requirement is not simply urgency, but extreme urgency. I fully appreciate that from the angle of a loving father, anything that may affect the welfare of his children would somehow be urgent, but I am afraid that the test is much higher than that.

10.  As far as the present case is concerned, there is undoubtedly no justification whatsoever for the reliefs under Paragraph 5 (4) to (7) above to be sought by way of an ex-parte application. There are already similar orders in place, including psychological therapy to the children and the parties’ attendance of co-parenting course. For the appointment of an expert report on the children, that is nothing so urgent that it cannot be done by way of an inter-parte application, if such order has not yet been made.

11.  The same can also be said of Paragraph 5 (1) to (3). Again, there is already an existing interim access order. I accept that for one reason or another, the terms of the order could not be carried out as anticipated. The father is now asking for such interim access to be substantially increased (from 2 afternoon access to 3 afternoon access) and the place of pick-up to be varied. I do not see why such application can not be done by the usual way of an inter-parte application, so that the mother could be put on proper notice (not just 1 or 2 days’ notice) and be allowed to put forward her side of the story in a more comprehensive manner. If there is really some urgency in the matter, the father could ask for an early return date or even for the time for service to be abridged.

12.  At the hearing, I was reminded by Mr. Cheng SC that the mother once did file an ex-parte summons on access which was heard by this court on 28 September 2023, accepting that the requirement of extreme urgency may be more readily relaxed on children matters. But as rightly pointed out by Ms. Yip SC, the mother’s then ex-parte application was within a much narrower ambit in that she only asked for access to take place at FMH, hoping that it would make the father’s access easier to be achieved. That was very different for the father’s present ex-parte application in which he asks for quite a substantial increase in access time, apart from the changing of pick-up venue. Despite the very skilful submissions put forward by Mr. Cheng SC, I am afraid that the father simply fails on the threshold of extreme urgency.

13.  Another criticism by Ms. Yip SC is material non-disclosure of relevant and important facts on the part of the father. I was referred to Hong Kong Civil Procedure 2024, Vol.1, §29/1/47:

“Paragraphs 19-22 set out general matters relating to ex-parte applications for interim relief and paragraphs 23-26 of the Practice Direction the requirements for the supporting affidavit in some detail including likely defences or weaknesses in the plaintiff’s case. On an ex-parte application in particular, the affidavit must be full and frank and failure to disclose a material matter will often lead to the discharge on an injunction even if it would otherwise remain justified (see notes on Mareva injunctions). …”

14.  Reference was also made to Practice Direction 11.1, §32 that:

“32. The affidavit in support should contain a clear and concise statement of the following:

…

…

…

(4) any answer either asserted or likely to be asserted by the defendant in response to the applicant’s claims for interim relief and substantive relief;

(5) any facts known to the applicant which might lead the Court not to grant the relief sought or not to grant relief ex-parte; and

…”

15.  It was Ms. Yip’s submission that one of the main reasons for the rapid deterioration of the already fragile father-and-sons relationship was the father‘s reneging on his previous agreement to the children’s trip to Korea during the Easter Holidays. This important fact was missing from the father’s affidavit which was a material non-disclosure and therefore, the father’s ex-parte application should be refused.

16.  Mr. Cheng for the father counter-argued that the father had no intention to hide the children’s failure to have the Korean trip during Easter. He did disclose this at §81 of his 6^th Affirmation and a letter from the mother solicitors dated 5 April 2024 recording such fact was also enclosed as exhibit.

17.  As far as I could recall, the parties did reach an agreement or at least a clear understanding at M-CDR that the children would be allowed to go to Korea for holidays during Easter. The father’s subsequent refusal to allow such a trip must have pushed the already strained relationship between father and sons to a higher level. In my view, the father does have a duty to expressly draw the court’s attention to this aspect of the case in order to fulfil his full and frank disclosure, instead of just putting in one sentence mentioning about his disagreement to the holidays and enclose the mother’s solicitors’ letter as one of the many exhibits of the affirmation. The father must appreciate that the court has just very little time to read the parties’ affirmations and submissions during the ex-parte hearing and this look-it-up yourself attitude cannot be accepted.

18.  Lastly, I must point out that the father is not asking for an ex-parte prohibitory order just to maintain a status quo. Instead, he is asking for a mandatory order for a substantial increase in access time. In view of the parties’ serious dispute on the facts leading to the total breakdown of access, this court is simply not in a position to adjudicate on their dispute on facts and rule on the father’s ex-parte application by just relying on his one-sided affirmation evidence.

19.  Based on the above discussion and despite Mr. Cheng’s very able submissions, the father’s ex-parte summons has to be dismissed.

20.  Costs will follow event. The mother shall have the costs of this ex-parte application with certificate for 2 counsel. This will be in the form of order nisi to be made absolute upon the expiry of 14 days from the handing down of this Decision. After costs order being made absolute, I direct the mother to lodge and serve a statement of costs restricted to 1-page A4 paper for the court’s summary assessment within 7 days and the father be allowed to lodge and serve his objections also restricted to 1-page A4 paper for the court’s consideration.

21.  Lastly, I thank counsel for their assistance.

Representation:

FCMC 8704/2023

[2024] HKFC 12

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8704 OF 2023

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D E C I S I O N
(DVO INJUNCTION)

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1.  On 13 November 2023, the Respondent mother (‘the mother”) issued an ex-parte summons (on notice) asking for various injunctive reliefs against the Petitioner father (“the father”) to restrain him from:

(1)  assaulting, molesting, harassing and/or threatening the 2 children of the family, now aged 11 and 8 respectively;

(2)  making disparaging remarks about the children themselves and/or the mother;

(3)  discussing and/or disclosing information contained in these proceedings to the children and/or any third parties until further order.

2.  At the urgent hearing on 14 November 2023, this court, after hearing the mother’s counsel (Ms. Yip SC leading Ms. Yu for the mother) and the solicitor for the father, ordered a return date of 12 January 2024, i.e. today, for an one hour hearing. At the same time, the court also granted an interim injunction restraining the father from:

(a)	(i)	Non-stop ringing the doorbell and the home phone of the Former Matrimonial Home (“FMH”);
	(ii)	photographing, filming or recording the mother and/or the children without their consent;
	(iii)	guilt-tripping, threatening, insulting, bullying, blackmailing, intimidating, or interrogating the children;
	(iv)	frustrating or obstructing the communication (including electronic forms) between the children and the mother;
	(v)	frustrating, disturbing or blocking the mother’ and the children’s entry to the FMH;
	(vi)	tracking or following the mother’s whereabouts or exact locations.
(b)	Making disparaging remarks about the children themselves and/or the mother; and
(c)	discussing and/or disclosing information contained in these proceedings to the children and/or any third parties, except legal advisors and other professionals involved in these proceedings.

3.  Subsequent to the hearing, the father’s affidavit in opposition was filed on 5 December 2023, refuting the mother’s allegations.

4.  At today’s hearing, an important preliminary point arises and that is the mother has not filed and serve an inter-partes summons for her application for the DVO injunction. According to Ms. Yip, there is no order by the court at the last hearing for an inter-partes summons to be issued by the mother. She even cited para 29/1/34 at p. 818 of the White Book and quoted the second last paragraph:

“Where an injunction was obtained ex-parte with notice, and was opposed by the enjoined party but no evidence was filed on his behalf, it is unsatisfactory for that party to pursue an appeal at that stage. Instead, the plaintiff’s original motion should be stood over to a subsequent inter-partes hearing when the evidence of both parties will be before the court of first instance (Hunter & Partners v. Wellings & Partners [1987] FSR 83, 88 (CA) (May LJ).”

5.  First of all, this passage concerns mainly with whether the enjoined party should appeal against an ex-parte injunction or the case should be stood down for an inter-partes hearing. It is not authority to say that an inter-partes summons is not necessary for an application for an interlocutory or final injunction.

6.  I am of the view that an inter-partes summons is necessary for an application for a final injunction (it is to be noted that the mother’s application is for a final injunction under DVO). This is clear by reading paragraph 29/1/50 at p. 822 of the White Book:

  “Ex parte applications – The starting-point is that application for interlocutory injunctions should be made inter-partes after the commencement of proceedings. It is contrary to the principles of natural justice that any judicial order adversely affecting a party’s interest should be made without the party being given a reasonable opportunity of being heard. Derogations are only permitted in certain limited and exceptional circumstances, the most obvious of which concerns matters of such extreme secrecy or urgency where there is no time to warn the defendant of what is proposed, or where the purpose of the injunction will or may well be frustrated if the defendant is informed of what is proposed, or where the defendant simply can not be found.

  …

  Where an interlocutory injunction is obtained ex-parte, there will be marked in the order a “return date” for an inter-partes hearing (Para.33(2)). Detailed provisions concerning the listing and hearing of such inter-partes summons for interlocutory injunctions are now contained in Practice Direction 5.3, which is reproduced at para. PD5.3/1, and Practice Direction 5.4 which is reproduced at PD 5.4/1. While it is necessary duly to serve a respondent out of jurisdiction in accordance with procedural rules, instead of fixing a return date for the inter-partes summons at a later date to enable due service to occur, it will often be a better approach to fix an early return date for the inter-partes summons and to notify the respondent by using other modes of communication such as email, short message service or fax (Tiong King Sing v Sam Boon Peng Yee [2011] 5 HKLRD 651).”

7.  It may be true to say that in the interim injunction order dated 14 November 2023, the court did not order the mother specifically to issue an inter-partes summons for the court’s consideration of her final injunction application, but as the mother was represented by such an experienced firm of solicitors in family litigation, it was naturally assumed that they know the requirement of issuing an inter-partes summons failing which  the court would not be in a position to grant a final injunction order basing only on their ex-parte application, even on notice.

8.  Ms. Yip also mentioned that the lack of an inter-partes summons is a technical point. I agree with Mr. Cheng’s submission that an injunction is a draconian measure. The court has to be careful in its deliberation and the lack of an inter-partes summons cannot simply be regarded as a technical default.

9.  As for the way forward, Ms. Yip submitted that the mother’ ex-parte summons should be adjourned for argument with one day reserved. She also asked for the interim injunction to continue (the mother’s primary stance) or an interim injunction in terms of the ex-parte summons (the mother’ alternative stance).

10.  Since the mother had the opportunity, but failed to issue a proper inter-partes summons before me, I do not think it right to adjourn the ex-parte summons for argument. The mother asked for the continuation of the interim injunctions. But the issue is until when? An interim injunction is granted to hold the fort, so to speak, pending the determination of a party’s substantive application. There is no proper substantive application before me. I am not convinced that an interim injunction should continue in such a vacuum.  

11.  Of course, the court is mindful of the fact that we are talking about the welfare of 2 young children. But as I see it, even though the process of negotiation might have been very difficult, the parties could in fact come to some forms of mutual undertakings of non-molestation. Those undertakings, if agreed, would provide enough safeguards to the interest of the children. But the obstacle, as I was told, was that the mother is now asking for costs. In respect of children matters, we always say that it is not easy to determine who the winner is. Therefore, I would urge the parties to re-consider on resolving this aspect of their disputes by way of mutual undertakings. Of course, that is a matter entirely up to the parties with proper advice from their counsels. The unfortunate alternative would be for the mother to issue a proper inter-partes summons on DVO, which would be costly and time consuming.  This will not serve the best interests of the children, nor those of the parties.

12.  Based on the above considerations, I hereby make the following orders:

(1)  The mother’s ex-parte summons (on notice) is dismissed.

(2)  The interim injunction granted on 14 November 2023 to be discharged.

(Re: Discussion on costs)

13.  Although the father is successful in resisting the ex-parte application of the mother, it is obvious from the correspondence that the mother (as well as the father) did try very hard to reach some form of agreement on mutual undertakings. We all know that the court has very wide discretion on costs, especially in children matters. Under these circumstances, I have decided that this is not a proper case to order the mother to pay costs. There shall be no order as to costs, including all costs reserved.

Representation:

FCMC 8704/2023

[2023] HKFC 202

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8704 OF 2023

____________________

____________________

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

D E C I S I O N

(INTERIM ACCESS)

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

1.  It is regrettable to note that the issue of interim access has to be re-visited today, just 3 weeks after its making on 7 September 2023, and with the next hearing coming up in another 3 weeks’ time on 20 October 2023.

2.  On 7 September 2023, after hearing the father’s urgent application for interim access to the 2 children of family, I granted an interim access order on the following terms:

(1)  Daily morning drop-off access during school weeks, i.e. the father shall take the children to school: on Monday, Wednesday and alternate Friday morning for the elder son, and Tuesday, Thursday and alternate Friday morning for the younger son.

(2)  Every Tuesday and Thursday after school to 9:00 pm.

(3)  Every Sunday from 9:00 am to 9:00 pm.

3.  However, an ex-parte summons (on notice) was issued yesterday, with a return hearing at 3:30 pm today. In the mother’s 2^nd Affidavit, she stated that “Unfortunately, there has been extreme difficulties with access because the children’s resistance, fear and anxiety towards seeing the father, which has worsened and increased with each access” (paragraph 4).   I was informed that there was great reluctance on the part of the children in having access outside the former matrimonial home.  So far, 3 access had taken place, but all were only made possible with the encouragement from the mother.  There are even allegations that these 3 access times were “sabotaged” by the father’s unwitting acts, which are listed in paragraph 8 of Ms. Yip, SC’s skeleton submissions. For the other time slots, there were scenes of deadlock because the father simply refused to go inside the former matrimonial home, whilst the children insisting not to go out of the home.  This has caused much distress and according to Ms. Yip, if nothing is done, there is a real risk that the children’s well-being will be harmed beyond repair. 

4.  In order to address the problem, the mother is now proposing for the Tuesday, Thursday and Sunday access to take place in the former matrimonial home, which is the only place that the children would feel safe, secure and comfortable.  This is also the place where they will have their ECA on Sunday.  In the draft order prepared by Ms. Yip, the mother also proposes certain mutual undertakings, hoping to avoid any escalation of the problem, and she also proposes the engagement of a child psychologist to provide therapy treatment to the children.

5.  The father was represented by Mr. Li.  From his written submissions, the father refuted the allegations of the mother. Mr Li criticised the mother in not complying with the interim access order and said the mother’s maid even refused to open the front door of the former matrimonial home.  The suggestion of the father having access at the former matrimonial home is not accepted because the father did not want the form of access to be dictated in any way by the mother.  Mr. Li also queried why the application has to be made on an ex-parte basis, because such application should only be made on an extremely urgent basis.

6.  On the extreme urgency point, I agree with Mr. Li that ex-parte application should only be made either if the issue of confidentiality is involved, or there is extreme urgency.  Due to the fact that a hearing is coming up in 3 weeks’ time, I accept that there is some doubt on whether the present application would fall into that extreme urgent category. However, we have to bear in mind that this is a children matter and their welfare is now in issue. I decide to consider the merits of the application despite the mother may not be able to satisfy the extreme urgency requirement.

7.  In my view, it is totally unsatisfactory for proper access as ordered not being able to take place. However, I think this is not an appropriate time to investigate into whose fault it was. What is more important is for the father to resume access to the children.  It is also important to facilitate the proper preparation of a Social Investigation Report on 20 October 2023. 

8.  In this regard, I am minded to order the access on Tuesday, Thursday and Sunday to take place initially at the former matrimonial home, but with a condition that the mother and maternal grandmother should leave the place 15 minutes before access.  After the father starting access at the former matrimonial home, and if the children are willing to go with him, access could take place outside the former matrimonial home.  I do not expect the father to put pressure on the children in mandating them to go outside and I trust that the father will exercise his good judgment in this regard. 

9.  As for Sunday, Ms. Yip urged that such access should also take place at the former matrimonial home because all or most of the ECAs would take place there.  I can only say that from my perspective, the father’s access to the children is far more important than any of those ECAs.  I will not order the re-building of the father and son relationship to be subject to any ECAs at all. Therefore, the Sunday’s access will also take place at the former matrimonial home initially, and the father is at liberty to take them out when they are ready to do so.

10.  The mother’s second application is for the appointment of a child psychologist to provide therapy treatment to the children.  I have already ruled on this point last time and I am not prepared to vary the said decision, unless there is an agreement between the parties.

11.  Ms. Yip also asked this court to make orders in terms of the proposed undertakings in the draft order.  Without the agreement of the father, I am not convinced that it is proper to make such orders on an ex-parte application.

12.  The father also asked for extended access time during Fall Break.  There is no formal application before me, but even if there is any, I would prefer to leave that after seeing the Social Investigation Report.  After all, what’s important now is to make the current access order work, before we talk about any increase in access time.

13.  In the circumstances, I hereby make the following further order:

(1)  For access on Tuesday, Thursday and Sunday, they will take place initially at the former matrimonial home and the father be at liberty to take the children for access outside the former matrimonial home.

(2)  The mother and maternal grandmother should leave the former matrimonial home 15 minutes before access time.

(Re: Discussion on costs)

(3)   There be no order as to costs.

Representation:

FCMC 8704/2023

[2023] HKFC 182

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8704 OF 2023

____________________

____________________

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

D E C I S I O N

(INTERIM ACCESS)

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

1.  There are 2 summonses before me this morning, one from the petitioner father (“the father”) and the other one from the respondent mother (“the mother”). 

2.  The father’s summons was issued on 16 August 2023 asking for:

(1)  Interim shared care and control of the 2 children of family on a 2-2-5-5 basis, i.e. 2 consecutive days in the father’s care, followed by 2 consecutive days in the mother’s care, and then 5 consecutive days in the father’s care, and followed by 5 consecutive days in the mother’s care. This is in effect a request for equal sharing of care and control of the children.

(2)  Pending the court’s decision on the above, an interim arrangement for weekday morning drop-off (i.e. the father taking the children to school); weekly evening access from after school to 9:00pm on Tuesday and Thursday; and weekend access from Sunday 7:00 am to Monday morning when school starts.

(3)  The calling of a Social Investigation Report and a Child Psychologist Report.

3.  This was followed by the mother’s summons dated 29 August 2023 asking for:

(1)  The children to attend therapy with a child psychologist.

(2)  The parties and 2 children to attend family therapy.

(3)  Pending recommendations from child psychologist and family therapist on access, interim access to the father by way of weekday morning drop-off but to be supervised by the maternal grandmother or the children’s god-mother; and electronic access by way of zoom/Whatsapp call on Mondays, Wednesdays and Sundays.

4.  Just a few words on the background. The parties were married in 2004 and separated on 31 May 2023. There were 2 children, both boys, born within wedlock and they are now aged 11 and 8 respectively. 

5.  After the father moved out of the former matrimonial home on 31 May 2023, it is now the case of the father that access to the children became very difficult. He was only allowed to see the children on 6 occasions, and starting from about July, his request for access was totally denied.  In order to see the children, the father had to make arrangement to see them at school for very short period of time.  He said before separation, he used to be a very hands-on father, maintaining a very close relationship with the children.  Therefore, he now asks for an interim equal sharing of care of the children in order to maintain that close relationship.

6.  On the other hand, it is the mother’s case that she has all along been the main carer and the role of the father was always a “fun-father”.  She said after separation, it was the father who refused to access the children on a more frequent basis.  He even refused to join the family trips to Tokyo and the USA.  On 28 July 2023, an unhappy incident happened outside the former matrimonial home for about 2 hours, during which the father simply refused to enter even upon the request of the children. On another day, the father’s unannounced attendance at the school has also caused alarm to the boys.  In order to move things forward, the mother did request the children and the family to attend family therapy which was unreasonably refused by the father.

7.  In support of their respective application, each party has filed a very substantive affidavit.  The narrative of the father’s supporting affirmation was 34 pages but with exhibits of 449 pages.  There was also a Form J of 36 pages.  In reply to the mother’s affidavit, the father has filed another second affirmation of 18 pages.

8.  The narrative of the mother’s affidavit was 41 pages, with 234 pages of exhibits. There was another Form J of 24 pages.

9.  It is totally out of all proportion as far as the argument on interim access is concerned. The court is simply not in a position to read all these materials in this very short period of time.   I think it is high time for legal representatives to advise their clients and to instill some sense of proportionality in the litigation. 

10.  In view of this tsunami of information, I confess that I could only focus my attention on the narrative part of the affidavits.  Only casual attention could be spent on the exhibits. 

11.  Judging from those affidavits, there were numerous allegations and counter allegations, on which there is no way for this court to form a definite view. Basically, each party alleged the other to have psychological or emotional problems.  The father said his efforts to access the children were unreasonably obstructed or denied by the mother.  The mother denied and said the father refused to have close contact with them after separation and his later strange actions have also caused alarm and much distress to the children. Therefore, she would now only agree to limited supervised access to the father in the meantime. She also advocates the engagement of psychologist and family therapist in order to give assistance to the family, in particular, to the children.  

12.  As I said before, it is not possible for this court to form a definite view on the parties’ respective claim.  My preliminary view is that even though both parties are loving parents, it seems more likely that the mother must have spent more time in the care of the children in the past.  The father did have and still has a business to attend to.  After separation, the so-called status quo, though short in terms of time, is that the children stay with the mother, the maternal grandmother and 3 domestic helpers in the former matrimonial home.  On the other hand, the father stayed alone in a separate residence nearby. Under these circumstances, I do not consider it to be in the children’s best interest for this whole arrangement to be upset and turn it into an equal sharing of care and control even on an interim basis.

13.  However, it is wholly unsatisfactory for a loving father not having reasonable access to the children since July 2023. Pending the recommendations of the Social Investigation Officer, the father should be given interim reasonable access, which in my view, should include at least the following arrangement:

(1)  Daily morning drop-off access during school weeks, i.e. the father shall take the children to school: on Monday, Wednesday and alternate Friday morning for the elder son, and Tuesday, Thursday and alternate Friday morning for the younger son.

(2)  Every Tuesday and Thursday after school to 9:00 pm.

(3)  Every Sunday from 9:00 am to 9:00 pm.

I am convinced that supervision by third party during access is unnecessary.  But if the above access should coincide with the ECA already arranged for the boys, I would expect the father to take them to those ECA. The above interim arrangement shall start on 11 September 2023, i.e. next Monday.  As for interim staying access, I note that, for whatever reasons, the children, especially the elder son did exhibit some resistance in going to the father’s residence.  Under these circumstances, the issue of staying access should best be left to be considered after the social investigation report has been obtained.

14.  For the way forward, I note that a First Appointment is to be heard on 16 October 2023 at Court No. 50. But in order to have some continuity in the proceeding, both parties agree to keep this case in my court at least for the moment.  Since I will be on leave on 16 October 2023, I will re-fix the First Appointment to 20 October 2023 at Court No. 9, 2:30 pm with 1 hour reserved.  Therefore, in addition to the above order on interim access, I hereby give the following directions:

(1)  Both parties’ summonses are adjourned to 20 October 2023 at Court No. 9 at 2:30 pm with 1 hour reserved.

(2)  The First Appointment is also re-fixed to that date.

(3)  A Children Appointment is also fixed to be heard at the same time.

(4)  The original First Appointment hearing date of 16 October 2023 is vacated.

(5)  The social investigation report on interim access to be prepared at least 7 days before hearing, i.e. on or before 13 October 2023.

(6)  Both parties to file and serve Form E at least 28 days before hearing, i.e. on or before 22 September 2023.

(7)  Both parties to lodge and serve First Appointment Bundle at least 14 days before hearing, i.e. on or before 6 October 2023.

(8)  Both parties to attend next hearing personally.

(9)  Costs of today’ hearing be reserved.

15.  As to the calling of Psychologist Report or on the issue of family therapy, I will leave that to the First Appointment and Children Appointment after seeing the Social Investigation Report.  After all, I do not think there is sufficient time for such reports to be prepared before the next First Appointment.

16.  I thank counsel for their assistance.

Representation: