KJ v. KJ

FCMP 57/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 57 OF 2016

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

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

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

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

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

1.  This is a hearing on the accommodation of the 2 children born outside wedlock and the Respondent mother (“the mother”)’s application for their interim maintenance against the Applicant father (“the father”).

The Parties’ Respective Position

2.  For the children’s accommodation, the mother’s view is that they should be housed in a private flat located in Shatin whilst the father considers a flat at Shiu Fai Terrace at Stubbs Road, Hong Kong more suitable.

3.  For the children’s interim maintenance, the mother asks for a monthly sum of $90,574 together with a monthly rent between $44,000 to $55,000 for the flat in Shatin.

4.  The father offers $30,000 per month plus other undertakings, together with a monthly sum of $40,000 for the rent.

Background

5.  The parties met in San Francisco and entered into cohabitation in about 2003.

6.  Within this relationship, they have 2 daughters now aged 9 and 5 respectively.

7.  In April 2006, the mother joined the father in Hong Kong.  She was first housed in an apartment in Tai Hang and was later moved into a duplex at No. 8 Shui Fai Terrace (“the Shui Fai Property”) which was purchased by a company in which the father was a director.  There is some dispute on the actual size of the Shiu Fai Property. It was said to be about 150 sq m (about 1,614 sq ft) in the Social Investigation Report.  The father said it was about 2,030 sq ft usable.  The mother said it was 2,373 sq ft usable.

8.  There is no dispute that the parties’ relationship broke down in about August 2014.  The father said as they had already separated and thus he arranged the mother and the children to move to a flat at Price Edward Road West, Ho Man Tin, Kowloon (“the Ho Man Tin Flat”).  This was a 3-bedroom flat of about 1,400 sq ft usable.  The mother’s version was that she and the children were ousted from the Shiu Fai Property by the father unilaterally.

9.  On 11 November 2015, the father issued an Originating Summons (HCMP 2999/2015) invoking the wardship jurisdiction of the High Court, fearing that the mother might unilaterally remove the children to the US.  In §2 of the Originating Summons, he asked for the care and control of the children.

10.  Whilst disputing the father’s wardship application, the mother had also issued a summons on 22 February 2016 asking for the children’s care and control, together with the father continuing to honour his undertakings to pay certain expenses and also for maintenance pending suit.

11.  On 26 February 2016, the children were de-warded by an order of the Honourable Madam Justice B Chu. The parties agreed and were ordered to have joint custody of the children with the issues of care and control and interim maintenance to be transferred to be dealt with in the Family Court.

12.  The existing arrangement for the children’s care is that the elder child is now residing with the father at the Shiu Fai Property whilst the younger one is residing with the mother in a flat at Sai Yeung Choi North Street, Kowloon.  I was informed that the tenancy of the mother’s flat will expire in early December 2016.

13.  On 1 April 2016, the mother issued another summons in the Family Court asking for interim care and control of both children and also for interim maintenance for the children and the mother as their carer in the sum of $109,574 per month.

14.  As far as care and control of the children are concerned, the parties were finally able to come to an agreement in which they shall have shared care and control of both children. The essential terms of their agreement are as follows:

(1)   During school term, the children will stay with the mother subject to the following arrangements:

(i)   The father shall have dinner with the children every Wednesday evening from 6:30pm to 9:00pm.

(ii)   The children shall stay with the father and under his care in the following manner alternating between Week 1 and Week 2:

(a) In Week 1, the father shall collect the children directly from school or tutor class on Friday and shall return them to the mother’s home on Sunday by 10:00pm; and

(b) In Week 2, the father shall collect the children from the mother’s home on Sunday at 10:00am and take the children directly to school on Tuesday morning.  In the event that the children do not have school on Tuesday, the children shall be returned to the mother’s home on Tuesday by 10:00am.

(2)   The children’s school holidays will be more or less divided between the parties in equal shares.

15.  It was also part of the parties’ agreement that the above shared care arrangement shall only take effect on 1 September 2016 or upon the mother and children moving into an accommodation suitable for housing the children, whichever is later.   It is rather unfortunate that the parties cannot agree on such suitable accommodation and so they now ask this court to make the necessary rulings on the children’s future accommodation.

Accommodation of the children

16.  In Mr Egerton (representing the mother)’s skeleton submissions, the mother proposes 2 options for the children’s future accommodation.  One is a flat in Shatin, the Dragons Range development, at a monthly rent from $44,000 to $55,000, depending on the size and particular location of the flat.   The other is a flat in Kowloon to be chosen from a list enclosed in her letter dated 25 July 2016, with monthly rent ranging from $80,000 to $92,000.   But judging from Mr Egerton’s oral submissions, it seems that the mother is more in favour of the first option.

17.  It is the mother’s case that both children are now studying in the Kowloon area and a flat in Shatin seems to be a more suitable option than the father’s proposals.   Mr Egerton also submitted that the mother is not “a supplicant of the father” and the father should not be allowed to impose conditions on where the mother and children should live in view of the following facts:

(1)   It was the father who first moved the mother to the Kowloon area;

(2)   The mother and younger child’s current residence is in Kowloon which is being near to the children’s school; and

(3)   As recently as May 2016, the father was still proposing property for the mother in the Kowloon area.

18.  On the other hand, the proposal of the father is for them to be housed in a flat near to the Shiu Fai Property, which is the present residence of the father and the elder child.   He argues that although the children have lived in other places, it is undeniable that they grew up in Shiu Fai Terrace and therefore, the neighbourhood is familiar to them.  Furthermore, by housing the children in Shiu Fai Terrace, it would also facilitate the father’s access to the children bearing in mind that they will spend at least 3 days and 2 nights per week at the father’s residence on a weekly basis.  It will also offer the advantage of flexibility in the shared care of the children in that if one party is suddenly unavailable, it would be a lot easier for the other party to step in.

19.  Furthermore, I understand it is the father’s case that he would like to sign as the tenant of the future tenancy and also pay the rental deposit directly to the landlord.  He said this is more convenient to him administratively.  I take that he is willing to offer an undertaking to pay the rent and the necessary rental deposit of a flat to be decided by this court.

My views

20.  I think one of the most controversial issues concerning the children’s accommodation is location.   The mother asks for a flat in Shatin, whilst the father said a flat in or near to Shiu Fai Terrace is more suitable.

21.  In this regard, I fully appreciate the case of the father that Shiu Fai Terrace is a place familiar to the children and the elder child has been residing there for quite some time.  However, I must not ignore the fact that the agreed future arrangement is for both children to reside with the mother for 5 nights in a week and with the father for 2 nights only.  Therefore, despite the fact that the parties do have joint custody and shared care and control of the children, the reality is that the children will spend most of their time with the mother who should therefore be regarded as the main carer.   If this is the case, it is important that sufficient regard has to be given to the wishes and decisions of the main carer unless there is evidence to suggest that his or her decisions will have adverse effects on the interest of the children.

22.  I do not see such adverse effects in this case.  After all, we all know that Hong Kong is a terribly small place.   The children will be picked up by chauffeur and the travelling time from Shatin to Shiu Fai Terrace will take less than 30 minutes if the traffic is smooth or not more than an hour even if the traffic is heavy.  Moreover, the children are studying in Kowloon Tong, which I believe is closer to Shatin than Shiu Fai Terrace.

23.  Under these circumstances, it is my view that the children should be housed in Shatin when they stay with the mother.

24.  As to the issue of whether a 3-bedroom or 4-bedroom flat should be rented, it is my view that it is not the number of rooms that matters, but the size.  One would be amazed to learn that in the peculiar housing market in Hong Kong, it is actually possible to have a 4-bedroom flat in the size of 600 sq ft only.   I understand that the Shiu Fai Terrace is a duplex with an area of over 2,000 sq ft (usable), therefore, for the mother and the 2 children, I would think a flat in the region of 1,200 to 1,500 sq ft (usable) to be about right.  Whether the mother would like to have 3 bedrooms or 4 bedrooms, it is really a matter up to her.

25.  As stated in Annex C to Mr Egerton’s written submissions, the rent for one of the proposed 4-bedroom flat in Shatin (Dragons Range) with a size of 1,538 sq ft (usable) is $55,000 per month.  But in the latest letter dated 2 August 2016, a flat in similar size with a garden only asks for $50,000.  I say this would be a suitable flat for the mother and the 2 children.  I understand that this quotation may be some time ago and the same flat may no longer be available, but I think the sum of $50,000 is a good indication of the reasonable market rent of a flat suitable to the mother and children.   If in the unfortunate event that such a sum could no longer rent a 4 bed-room flat, I am afraid that the mother may have to settle on a 3 bed-room flat instead.  

26.  Therefore, as far as the children’s accommodation is concerned, I am prepared to accept the father’s undertaking to rent a flat in Shatin (the Dragon Range) for the use of the mother and the children at a rent of not more than $50,000 per month, which should be inclusive of all management fee and government rent and rates.   It is up to the mother to choose such a flat in the development but of course subject to the maximum monthly rent of $50,000.

Interim maintenance

Financial  circumstances of the mother

27.  The mother is now aged 45.  According to her, she has no employment and her only income is rent she received from a US property in the monthly sum of about HK$10,000.  In her Form E, she stated her monthly outgoings were in the sum of $356,059 ($266,059 if rental payment is excluded).  Her net assets were stated at $7,484,535 but that has been reduced by over $1,000,000 as set out in her 3^rd Affirmation dated 27 June 2016.

28.  In her 2^nd Affirmation, the mother set out her claim for interim maintenance for the children in the sum of $109,574, which is of course in addition to the father’s existing undertakings to pay for the chauffeur, telephone bills, school fees, other school-related expenses, books and stationery, etc.

The financial circumstances of the father

29.  The father is now aged 59.  In his Form E, he put down his occupation as a merchant under the employment of 6 companies, 5 in Hong Kong and one in the US.   He was a director of 11 companies (p.277 of the hearing bundle).  He stated that his monthly income was HK$146,500 and US$38,500 (totally about HK$445,000), with outgoings at HK$162,000 as a lot of them were being paid directly by the companies.   However, he also stated that the income from the US company would end on 30 June 2016.   As far as his capital is concerned, the father stated that he had assets in the sum of about HK$6,200,000.

30.  Despite such disclosures, I think it is indisputable that the father does come from a very wealthy family.   In the divorce proceedings with his former wife (HCMC 4 of 2010), the father was ordered to pay HK$130 million as ancillary relief and for the costs of those proceedings, he had actually paid the sum of HK$10,080,000 as recent as January 2016.  Therefore, I am satisfied with the father’s ability to pay the children’s interim maintenance as claimed.  The real issue is whether the sums as claimed by the mother are reasonable under the circumstances of this case.

The laws on interim maintenance under GMO

31.  Under s.13 (3) of the Guardianship of Minors Ordinance, Cap. 13 (“GMO”), the court does have jurisdiction to grant an order on interim maintenance for the benefit of children:

“(3) On an application under section 10, the court may, in any case where it adjourns the hearing of the application for more than 7 days, make an interim order, to have effect until such date as may be specified in the order and containing-

(a) provision for payment by either parent to the other, or to any person given the custody of the minor, of such periodical payments towards the maintenance of the minor as the court thinks reasonable having regard to the means of the parent on whom the requirement is imposed; and

(b) ....

but an interim order under this subsection shall not be made to have effect after the end of the 3 months beginning with the date of the order or of any previous interim order made under this subsection with respect to the application, and shall cease to have effect on the making of a final order or on the dismissal of the application.”

32.  The law allows the court to make an interim order on maintenance but only for a limited period of 3 months.  As it is only an interim application, the court will adopt a broad-brush approach based on the immediate and reasonable financial needs of the children: §9 of HH Judge Chu (as she then was)’s judgment in LCTK v TKKP, unreported, FCMC 173/2009.

The children’s immediate and reasonable needs

33.  At the hearing, the parties have had the opportunity to reconsider their positions and were now able to narrow down the scope of their disagreements.  Mr Egerton has very helpfully set out their respective position in a table as follows:

34.  I see that there is a very slight difference on the items of car/travel and medical/dental.   In this regard, I will take the round up figures of the father for the ease of calculation, namely the sums of $2,300 for car/travel and $3,200 for medical/dental.

35.  For clothing and shoes, I see that the mother has no strong objections to an interim monthly sum of $5,000 provided some of the children’s clothing is returned.  I trust that the parents could work out the return of the clothing themselves and so I would allow a monthly of $5,000 only under this item.

36.  As to the item of domestic helper, I understand that the father is willing to give an undertaking to pay all costs on the hiring of a domestic helper.  I agree that such an undertaking is sufficient and I will say no more on this.

37.  The main contention is the household expenses or sometimes being referred to as the cash allowance.  The mother asks for a sum of $50,000 while the father is only willing to pay $15,000. 

38.  The father’s case is that the sum of $50,000 that he used to pay the mother usually covered one and a half month’s household expenses and also included other outgoings like the driver’s overtime pay, costs of domestic helper as well as school expenses.

39.  I remind myself that this sum is for the general household expenses, including food, shopping and eating out, etc. for a household of 4 people, namely, the mother, the 2 children and the domestic helper.   I also remind myself that the children have been housed in a spacious flat at a prestigious area of the Hong Kong Island and they have the service of a chauffeur driven private car.  The father is a member of the Hong Kong Jockey Club and the Hong Kong Country Club and I suppose that the clubs’ facilities are also open for the use of the children, if not the mother.   These are the hallmarks of a family enjoying a very high standard of living.  If viewed in that angle, I do not think a monthly sum of $50,000 to cover their general monthly expenses is in any way unreasonable.

40.  Based on the above, the interim maintenance to be allowed are as follows:

Backdating

41.  I note that the mother is asking for the interim maintenance to be backdated to 11 November 2015. However, I also note that the elder child has all along been residing mainly with father who has also paid the younger child’s interim maintenance at $15,000 and the children’s school fees and other outgoings.  I agree with Ms Yip’s submission that it is better to leave the backdate issue to the final hearing.   Therefore, I will order the interim maintenance of $65,000 to start from 1 December 2016 when the 2 children resume their living with the mother in Shatin.

Conclusions and orders

42.  By way of conclusions, I would record and accept the following undertakings from the father:

(1)   To rent a flat at the Dragon Range in Shatin (to be chosen by the mother) at a monthly rent of not more than $50,000 inclusive of management fee and government rent and rates for the use of the mother and the 2 children to start from 1 December 2016.  The father should pay the necessary rental deposit directly to the landlord and all associated costs of the tenancy.

(2)   To pay all the costs of a domestic helper to be chosen and hired by the mother for the exclusive use of the mother and the children.

(3)   To pay the contracts and all charges including roaming costs for the mobile phones of the 2 children.

(4)   To pay the school fees, extra-curricular activities and extra tutoring expenses of the 2 children.

(5)   To provide a chauffeur driven car for the school run.

(6)   To continue to pay the existing interim maintenance of $15,000 for the younger child until 1 December 2016 when the 2 children to start living together at the flat in Shatin.

43.  With the above undertakings, I would grant an interim maintenance order for the 2 children in the sum of $65,000 per month ($32,500 each), such payment to start from 1 December 2016.

Costs

44.  Although the mother does not succeed in all her claims for interim maintenance but the undeniable fact is that she has to come to court before she could get the interim maintenance as now ordered.   In the circumstances, I think that it is fair for her to get the costs of her application for interim maintenance, including all costs reserved on this topic, with certificate for counsel.   This will be in the form of an order nisi to be made absolute after the expiry of 14 days from the handing down of this judgment.

45.  Last, but not least, I thank counsel for the assistance rendered to this court.