WJT v. YATM

FCMP 79/2017

[2020] HKFC 241

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL PROCEEDINGS NO. 79 of 2017

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DECISION

( Leave to appeal )

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Application

1.  This is the Respondent Father’s application for leave to appeal against my judgment handed down on 28 September 2020 (“Judgment”). 

2.  In the Judgment, which was handed down after trial on the Applicant Mother’s application for financial provision for the benefit of her son, V, under section 10 of the Guardianship of Minors Ordinance, Cap.13, I made an order (“Financial Order”), in essence, that the Father do pay the Mother: -

(1)  a lump sum of US$108,400;

(2)  save that a sum of US$1,200 shall be deducted from each of the payments for August and September 2018 to avoid double-counting the accommodation cost, monthly periodical payment for the maintenance of V in the sum of US$8,000, dating back to 1 August 2018 until V reaches the age of 18 or ceases full time education, whichever is later;

(3)  save that a sum of US$1,200 shall be deducted from each of the payments for August and September 2018 to avoid double-counting the accommodation cost, monthly periodical payment for the carer’s allowance in the sum of US$2,500 for 8 years, dating back to 1 August 2018.

3.  By the Summons filed on 27 October 2020, the Father now seeks leave to appeal for the purpose of setting aside the Financial Order and obtaining a substitute order that the Father do pay half of the reasonable expenses and private school fees of V.  V was born out of wedlock between the Parties in January 2013 and is now 7 years old. 

4.  The background and my analysis of this case was set out in the Judgment which I shall not repeat here.  I shall adopt the abbreviations contained in the Judgment.

Legal principles

5.  Leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reasons in the interest of justice that the appeal should be heard: section 63A(2) of the District Court Ordinance, Cap 336.

6.  Reasonable prospect of success connotes the prospect of success must be reasonable and more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125. An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed.

7.  Even if the court takes the view that there is a reasonable prospect of success, it still remains a discretion as to whether to grant leave, though the fact that there is, ex hypothesis, a reasonable prospect of success would heavily influence the court in exercising its discretion: Hong Kong Civil Procedure 2020 Vol. I §59/2A/4.

8.  With these principles in mind, I now turn to consider the Father’s application.

Intended Appeal

9.  By the draft grounds of his intended appeal annexed to the present Summons, the Father puts forward 5 proposed grounds of appeal as follows: -

“Ground 1 : carer’s allowance ordered for the Mother is too much for too long;

Ground 2 : the well-educated, professionally qualified, multi-lingual previously employed Mother can & should work outside the home;

Ground 3 : contributions by each parent to the financial maintenance of the child. Judge erred in making no order that Mother should contribute;

Ground 4 : challenge to provision of cost of a nanny for the child; and challenge to the costs of a nanny for the child in addition to carer’s allowance for the Mother to care for the child

Ground 5 : the Simple Truth”

10.  These 5 grounds are repeated in the Respondent’s Submissions dated 27 October 2020 (“Respondent Submissions”) with some general elaboration.  The Father is essentially seeking to challenge this Court’s findings of facts.

11.  It is well-established legal principles that the appellant court is not to assume the task of reviewing the evidence and substituting the trial judge’s findings with findings of its own.  The appellant court would only reverse a finding of primary fact if it is satisfied that the finding is plainly wrong.  If not so satisfied, it would defer to the trial judge’s conclusion on fact even if in some doubt as to its correctness: Ting Kwok Keung v Tam Dick Yuen & Ors [2002] 5 HKCFAR 336.

Ground 2

12.  I should first deal with Ground 2 which, to a certain extent, forms the underlying basis of the Father’s arguments over other grounds.  In Ground 2, the Father basically complains that given the Mother’s qualification and work history, this Court should have found that the Mother ought to join the work force and accordingly, neither carer’s allowance nor nanny fees should be allowed.  Instead, the Mother should financially contribute to V’s maintenance. 

13.  Much reliance has been placed by the Father on the Mother’s testimony that she had worked even when her two daughters from a previous marriage were young, that she now chose not to work, not that she could not work because of health or sleeping problem, that she had indicated her plan to work in her previous application for leave to relocate V from Hong Kong to the US. 

14.  Plainly, the Father seeks to run the same arguments as advanced in the trial.  Those arguments have been fully considered, the determination that “it is unfair and unrealistic to expect the Mother to obtain any fruitful employment in the US while taking care of V as a single mother in the next few years” and that “it is for V’s best interest to continue to receive full-time care from his natural mother who has been his primary carer since his birth.” was made after serious consideration of all the relevant circumstances including, inter alia, the Mother’s health, qualification, work history,  reasons for not joining the work force, the child-care arrangement for V since his birth and the Father’s arguments as summarized in §§11-13, 90, 166-178 of the Judgment. 

15.  Specifically, the Mother’s qualifications and work experience were reviewed in §§11-13.  Against such background, the Mother’s reasons for her abortion of her employment plan and her explanations for the flimsy prospect of fruitful employment were scrutinized in §§172-175.  The issues of her health and sleeping problem as well as the reasons why she could not take care of V while working as she had done for her two daughters when they were small a decade ago were investigated in §§169-171.  The weighing exercises between employment and full-time care of V were conducted and tested against the Father’s arguments in §§176-178.  In this application, the Father is unable to illustrate how this Court erred in law or in fact.  Ground 2 is unmeritorious.

Grounds 1 and 4

16.  Grounds 1 and 4 can be dealt with together.  The elements of carer’s allowance and nanny fees were added to V’s maintenance and the amount of each item was assessed after detailed analysis of all the relevant matters as elaborated in §§67-71, 166-171, 176, 178 and 184-191 of the Judgment.

17.  In this application, the Father contends that V’s full-time education and extra-curricular activities have rendered the service of a nanny and a full-time mother unnecessary as “mothers of school-age children can take up employment in addition to their roles as carers for children”, which was common in the US.  He also argues, in substance, that the service of a nanny and the full-time care of the Mother should be mutually exclusive.  Such arguments are indeed a repetition of his arguments in the trial which were rejected specifically in §68-69, 166, 170-1, 176-178 of the Judgment. 

18.  As referred in §176 of the Judgment, the Mother, in Court, elaborated her daily child-care plan and her nurtured ambition for V to be bright person as his half-sister, A.  She has given evidence, in Court and in affirmations, about her daily routine and child-care arrangements, including, her practice of personally sending V to school, accompanying him to attend activities as well as participating in his school activities and social life. 

19.  I also considered, in §69 of the Judgment, that probably the Mother might derive benefits from the nanny’s contribution to household chores. I was however persuaded that she would even more focus on taking care of V which would benefit V the most at the end.  The service of the nanny would not render the full-time care of the Mother unnecessary or unreasonable for V.

20.  At present, the Father fails to explain how my findings that it is for V’s best interest to continue to receive full-time care from his natural mother who has been his primary carer since his birth and to receive service of a nanny (as he had enjoyed throughout his stay in Hong Kong) is wrong in law or in fact.  Suffice it to say that my finding is the result of a detailed examination of all the relevant factors, including, inter alia, the Parties’ respective personal situation and financial condition, V’s interests and the fact that the Mother is a single mother without the assistance of the Father in the US. 

21.  As to assessment of quantum, this court has taken into account the fact that V is no longer an infant and a highly professional nanny would not be necessary, hence, a downward adjustment of the nanny fee from US$3,000 to US$1,750.  The fact that child-minder fees in the US are relatively higher than Hong Kong is not a valid reason for depriving V of such benefit, bearing in mind that V had the service of 2 domestic helpers arranged by the Father (who had to provide salary, food, accommodation and home-travelling costs to the domestic helpers) while living in Hong Kong and the Father’s strong financial position.

22.  The provision of the carer’s allowance was only confined to 8 years commencing from 1 August 2018, when V was aged 5.5, in §191 of the Judgment. Accordingly, the Father’s complaint that this Court should not have ordered carer’s allowance for 8 years “when the son is already 7 years old” is groundless.  The provision of the carer’s allowance will cease when V reaches the age of around 13.5.  By that stage, V should be more mature embarking on higher school education and the dependency of the Two Daughters should cease. The mother should then be better-equipped to work or accumulate sufficient wealth to be self-support. 

23.  The assessment of the amount of the carer’s allowance was detailed in §§187-191 of the Judgment.  Indeed, the expenses of the Mother and V were adjusted in light of the service of the nanny, ending up with a downward adjustment on their expenses, i.e. out-of-home meal expenses in §71 as well as the carer’s allowance in §190.  I have also taken into account the Mother’s financial resources and concluded that even though she should be provided for her general and living expenses to enable her to care for V, she should pay her own way for her own holidays, entertainment and presents with her own financial resources.

24.  Thus analyzed, the Father’s challenges under grounds 1 and 4 are without substance.

Ground 3

25.  In ground 3, the Father attacks this Court’s decision of not ordering the Mother to contribute to V’s expenses.  He complains that this Court should have found that the Mother should be gainfully employed and, in any event, she had sufficient financial resources to pay V’s expenses.

26.  Again, the Father makes an attempt to re-argue the same set of arguments he put forward in trial.  The reasons for my rulings on them were set out in details in the Judgment.  In brief, the prospects of the Mother returning to gainful employment in the foreseeable future while taking care of V were examined in §§166-178. Her financial resources were investigated in §§90-165, in that the Father’s allegations about her hidden assets were analyzed in §§97-110, about her undisclosed business in §§111-114, about his gifts of more than US$1 million to her in §§115-139.  On the other hand, the Mother’s alleged liabilities and financial obligations were scrutinized in §§93, 140-165.

27.  Apart from testing the Mother’s evidence against the Father’s evidence, the combined effect of all the evidence was weighed.  The analysis of all the evidence separately and together with the reasons as to why I accepted the Mother’s arguments for not financially contributing to V’s maintenance but rejected the Father’s arguments were provided for in §§179-183.  

28.  In §§204-214, the basis upon which the conclusion that the Father had actual knowledge about the Mother’s financial resources were limited to the extent that he would have to be solely responsible for the living expenses and accommodation cost of the Mother and V were expounded.  Ground 3 is without merit.

Ground 5

29.  Ground 5 challenges this Court’s assessment of V’s cost of living at US$8,000 per month is wrong.  The challenge is premised on 3 arguments.  The first argument stresses that there is no evidence that V has ever lived a lifestyle costing US$8,000 per month.  The Father says that the Mother had only been provided a monthly allowance of US$3,000 while living in the US before moving to Hong Kong.  He argues that that was adequate for her because she had received US$1 million from him before, and, a condominium was bought and subsequently sold at a profit by her.  He also argues that the cost of living in Hong Kong as ordered in the 2017 Order was for the whole family of five not just for V.

30.  The second argument attacks the assessment was done without due regard to the Father’s senior age, his deteriorating health and financial condition.

31.  The third argument rests on this Court’s error in finding V’s lifestyle should be significantly “more costly” than his two half-sisters and the average middle-class children in Los Angeles.

32.  Plainly, the Father seeks to re-argue the same arguments advocated at trial which have been fully considered and elaborated in the Judgment.  The first argument is without merit at all.  The Father’s account of his past payments for V’s expenses set out in §§14-15 of the Respondent’s Submission (i.e. a monthly allowance of US$3,000 to the Mother after V’s birth and before moving to Hong Kong; and “the cost of living in Hong Kong as ordered to maintain by previous Judge during the trial was for the whole family of five, not for V only”) paints an incomplete picture of the payment history.  In any event, the law does not limit the assessment of V’s reasonable expenses to the past payments of the Father. 

33.  In the Judgment, §§27-31 set out the well-established legal principles governing this Court’s assessment of V’s reasonable expenses.  The living standards of V and the Parties in Hong Kong were examined in §§33-43 and V’s reasonable living standard in the US was ascertained in §§60-82.   

34.  The history of the Father’s payments for V’s living expenses since V’s birth were reviewed in §§7-9, 20-21, 33-34, 115-139.  It is clear that even on the Father’s own account at trial, his past payments for V’s living expenses were not limited to what he now says, i.e. he paid a monthly living allowance of US$7,000 in January 2013 (while V was just a newborn baby), not to mention his alleged substantial monetary gifts to the Mother at that time. 

35.  The interrelationships between the Father’s monthly living allowance payments, his alleged monetary gifts to the Mother, and the Mother’s complaints of insufficiency of such payments leading to her raisings of loans were analyzed in §§115-139 (the Father’s alleged monetary gifts), §§140-161 (the Mother’s alleged loans), §§162-165 (the Mother’s alleged financial obligations), §§223-226 (the Father’s default in payments of the Direct Payments).

36.  Of the second argument, not only the Father’s affluent financial position remained undisputed as set out in §§83-89 of the Judgment, the Father’s repeated confirmations that his ability to pay was not in issue and he would be able to pay any sum which the Court might order give no room for the Father’s present reference to his alleged recent health problems or his general statement of drop of income in §16-18 of the Respondent’s Submission, which was not elaborated in trial.  After all, the Father fails to show how such alleged health problems or drop of income, if true, have any impact on his strong financial position.  Instead, he reiterates in the Respondent’s Submissions that he still chooses not to retire because he enjoys his work.

37.  Of the third argument, the cross-referencing exercise as initiated by the Father was actually carried out and the reasons why those figures on cost of living and education in the US as suggested by the Father (including, inter alia, the published figures on the internet, the spending of his friends and relatives in the US, the maintenance of V’s 2 half-sisters) posed as some of the considering factors (which this Court has already taken into account) but neither a dominating factor nor a straight formula in assessing V’s needs were set out in §§45-51 of the Judgment.

38.  Absent any legal authority or fresh argument to dispute the application of the legal principles or the reasons given in the Judgment, Ground 5 is bound to fail.

39.  In the Judgment, I have weighted all the relevant evidence on each side separately as well as the combined effects of all evidence together.  The analysis of the arguments of the parties was provided for. In seeking leave to appeal, the Father fails to demonstrate how this Court’s finding is wrong, such that an appellate court would intervene. 

Conclusion

40.  Having considered the submissions of both parties, the proposed grounds are without merit. Since the intended appeal has no reasonable prospect of success, and there is no other reason in the interests of justice why the appeal should be heard, leave to appeal is therefore refused.  The present Summons is dismissed. 

Costs

41.  Taking into account the outcome of this application and the Statement of Costs for the Mother, I order that the Father do pay forthwith the Mother’s costs of this application, summarily assessed at HK$50,000.