FCMC 595 / 2014
 HKFC 160
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 595 OF 2014
|Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)
|Dates of Hearing: 6 March and 31 May 2018
|Date of written closing submissions: 25 June 2018
|Date of written replies: 16 and 20 July 2018
|Date of Judgment: 19 September 2018
J U D G M E N T
(Variation of maintenance)
1. This is an application by a Respondent father to decrease the maintenance for the only natural child of the family, a little girl, S. S is nearly 7 years of age having been born on the XX October 2011. During the course of the parties’ short marriage the father also treated an older child, O as a child of the family. O is now 14 years of age and it is accepted that he does not form part of the current application. The mother also receives maintenance from O’s father for O’s expenses.
2. In the father’s summons dated the 8 March 2017 he asks to decrease the maintenance from HK$28,000 per month to “a sum that the court deems fit”. In addition, he asks to be discharged from his undertakings that a) he be responsible for S’s education tuition fees, until such time as she ceases her full time education and b) that he also be released from his undertaking to pay for all Extra Curricular Activities (ECA’s) that are agreed between him and the Petitioner mother. In his counsel’s opening submission, he says that he is prepared to pay maintenance of HK$7,750 per month plus 2/3 of S’s school fees. Post-trial he amended that figure to HK$9,126 per month. He also suggests that he continue to pay for S’s ECA’s when she is with him and that the mother pay for those ECA’s when she is with her. He also proposes that each party be responsible for their own holiday costs with S. He is willing to undertake to continue to provide medical insurance for S and to pay for any necessary medical/dental treatment for her that is not covered by his insurance.
3. This is not a case where the husband says that he can no longer afford to pay the level of maintenance originally ordered, rather it is his case that the maintenance that he has been paying has been in excess of S’s actual expenses. He seeks a variation because the mother has remarried, she is no longer paying rent and she is now working and receiving a small income. In essence he says that he is contributing to the general running costs of the mother’s household.
4. In contrast, it is the mother’s case that in reality her new husband is contributing financially towards both S’s expenses and the expenses of the elder child, O. O, a boy, is now 14 years of age having been born on the XX April 2004. O attends the X International School and S attends the Y School. In addition, the mother has had a further child with her new husband. The baby, H was born on the XX November 2016 and is now 22 months old.
5. In an attempt to try to settle matters the mother made the father two offers, both of which were rejected. Initially she said that she would be prepared to accept HK$22,000 per month and later she reduced that figure to HK$15,000 per month plus a continuation of the payment of the school fees. Given that the father did not accept either figure it is the mother’s case that these offers have since been withdrawn. The father for his part seeks a significant decrease and he asks that this figure be backdated to March 2016.
6. There are then three issues to be determined as follows:
a) how much maintenance should the father now pay for S and should that be a decreased figure?
b) should the father be released from his undertakings to pay for S’s school fees and ECA’s?
c) should the new figure be backdated and if so to what date?
7. The parties married on the XX March 2009 and S was born on the XX October 2011. The parties separated towards the end of 2012 and they subsequently settled their differences through mediation. Agreement was reached with respect to both the arrangements for S and the parties’ finances. By virtue of the court order dated the 4 March 2015 the mother received a lump sum by instalments of HK$6 million in full and final settlement of her claims for ancillary relief. In addition, the father undertook as follows:
E. AND UPON the Respondent hereby undertaking to the Petitioner and to this Honourable Court that he shall be responsible for the following costs in relation to the child of the family, namely N, SS, a girl, born on XX October 2011 (“the Child”) in the following manner:-
(i) all education tuition fees of the Child until such time as she ceases full time education. For the avoidance of doubt, all payments from the Respondent for the Child’s education tuition fees shall be made by the Respondent directly to the education institution; and
(ii) all extra-curricular activities of the Child that are first agreed between the Petitioner and the Respondent. For the avoidance of doubt, all payments from the Respondent for the Child’ extra-curricular activities shall be made to the Petitioner within 7 days of the production of the relevant receipt(s) to the Respondent.
In addition, he agreed to pay maintenance for S of HK$28,000 per month. It was agreed that he would not be financially liable for O.
Background to the litigation
8. The father issued his summons on the 8 March 2017. Initially he was concerned that he was contributing towards the general living costs of the household, which on his case included the mother’s new husband Mr B, and Mr B’s brother. It is the father’s case that when the parties separated that the mother was paying rent at the former matrimonial home of HK$58,000 per month. It was his belief that this was then reduced to HK$50,000 per month. However, during the trial, it became...