LCTK AND ANOTHER v. TKKP

FCMC 173 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 173 OF 2009

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J U D G M E N T
(Interim maintenance for child)

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INTRODUCTION

1. The 1^st Applicant in these proceedings is the mother (“Mother”) of the 2^nd Applicant (“Child”), and the Respondent is the father (“Father”).

2. The Mother issued an Originating Summons on 21 August 2009 under the Parent and Child Ordinance and the Guardianship of Minors Ordinance to seek a declaration of paternity against the Father, custody of the Child, and financial provision for the Child in the form of periodical payments and lump sum.  The parties eventually resolved the matter of paternity by consent, after the DNA report, and there is no dispute over custody of the Child.  The only issue outstanding is the financial provision for the Child.

3. On 16 April 2010, the Mother issued an application for interim maintenance for the Child.

4. It seems that almost one year has elapsed since the Mother issued the Originating Summon and the substantive application still has not been set down for trial.

THE LEGAL PRINCIPLES

5. The Court has power under s.10(2) of the Guardianship of Minors Ordinance (“GMO”) to make various forms of financial provision for a child, which includes periodical payments towards such child’s maintenance.

6. There are no equivalent statutory matters as those set out in s. 7 of the Matrimonial Proceedings and Property Ordinance which the Court has to have regard to in exercising its discretion in making financial orders for a child under the GMO and the test is simply what is reasonable having regard to the means of the parent on whom the requirement is imposed (s. 10(2)(b)).

7. Under s. 13 (3) (a) of the GMO, the Court has the power to make an interim order, but such interim order shall only have effect for 3 months from the date of the order, and shall cease to have effect on the making of a final order or on the dismissal of the application.  

8. Our GMO is based on the UK Guardianship of Minors Act which is now incorporated in Schedule 1 of the Children Act 1989.  Paragraph 9 of Schedule 1 relates to interim orders.  However, there is now no 3 month limitation for an interim order in the UK provisions. Why there still remains in our legislation this limitation is not quite clear, but there seems to be nothing to stop the Court to make a further interim order, upon the cessation of the first one.

9. There is no dispute between the parties as to the general legal principles.  This being an interim application, and not having had the benefit of seeing the parties in the witness box with their evidence tested, the Court will have to adopt a broad brush approach. The Court will not take a long term view and what matters is the immediate and reasonable financial needs of the Child.

BRIEF BACKGROUND 

10. The parties met in about March 2002.  The Mother was born in 1970, and was then about 32 years old while the Father was then about 58 years old, being born in 1943.  They are now 40 and 66 respectively. At the time they met, H was already married and the Mother was fully aware of this.

11. Not long after the Father met the Mother, they formed an intimate relationship and the Father started to provide financially for the Mother.

12. In April 2004, as a result of their relationship, the Mother gave birth to the Child, who is now 6 years old.

13. The Father is a wealthy businessman, and in his Form E, has disclosed substantial income and assets.  Suffice to say, he has stated that he is able to meet any reasonable order this Court is to make for the benefit of the Child.

14. The Mother was unemployed throughout the parties’ intimate relationship. She has not worked for some time.

15. According to the Mother, the Father was initially paying her about HK$20,000 per month to maintain her, which was eventually increased to HK$50,000 per month when their relationship became stable.  In addition, the Mother was provided with the use of a car, and a credit card to cover expenses of the car and her other expenses.  The Mother claimed that her average credit card charges were about HK$30,000 per month.  The Father has not contradicted her claims.

16. The Father also bought a house in Sai Kung (“Property”) for the Mother to reside in.  The Property was purchased in the parties’ joint names in December 2003. The purchase price was HK$6,138,000, of which HK$3,138,000 was paid by the Father as a down payment, and the balance of HK$3,000,000 was paid by way of a mortgage loan.  The mortgage loan was fully paid up by the Father prior to the breakdown of their relationship.

17. Apart from the Property, in 2003/2004, the Father had bought 3 other properties in the sole name of the Mother. One was sold in November 2005. After the parties’ relationship turned sour, the Father has initiated an action in the High Court (HCA 920 of 2009) claiming that these 2 unsold properties purchased by the Father in the sole name of the Mother, together with the Property, were held by the Mother on resulting trust for him.  This litigation is still going on and the Court has not been provided with any information relating thereto.

18. In addition to the properties, and the use of a car, the Father had also bought jewellery for the Mother. By all accounts, the Father was generous towards the Mother during their intimate relationship.

19. For reasons I do not need to go into detail at this interim stage, the parties’ relationship ended in about February 2009, amidst a highly publicized affair of the Mother’s at the time.

20. Since the parties’ intimate relationship ended, the Mother has continued to live in the Property with the Child.  Also living in the Property are the Mother’s mother (“Grandmother”) and father, and brother.

21. The Father, on the other hand, is living with his lawful wife and their son and daughter-in-law.

22. In her Form E, the only income the Mother has disclosed is the rental income from the 2 properties which the Father had paid for but held in her name. The rental income is HK$20,000 per month, out of which she has to pay the mortgage repayments of one of the properties of about HK$5,000 per month. The Mother has also disclosed in her Form E that she is a director of a company, of which there no details seem to have been provided.  She claims her assets to be in the region of about HK$13.25 m, which includes her half interest in the Property and her interest in the other 2 properties.

23. The Mother had alleged earlier that since the parties’ separation, the Father has not paid any maintenance for the Child. 

24. On the other hand, the Father said he was giving money to the Grandmother for the living expenses and other miscellaneous expenses of the Child, and that he and the Grandmother had an agreement that she would continue to help take care of the Children even after his relationship with the Mother had ended.  The Father claimed that he would deposit money into one of his accounts with the Standard Chartered Bank and would provide the Grandmother with withdrawal slips to withdraw cash for the maintenance of the Child and that the Grandmother would account to him for such expenses.  The Mother now admits that there was such an agreement.  The Grandmother has also filed an affirmation in relation to this agreement.  The Grandmother in her affirmation has said that during the period from February 2010 to early April 2010, the Father ceased providing her with withdrawal slips. Anyway, these arrangements are not satisfactory.

25. At the 1^st part of the hearing, I have also pointed out to Ms Irving, Counsel for the Father, that under s. 10 of the GMO, the payments should be to the parent or the appointed guardian of a minor, or the Director of Social Welfare. The Grandmother is not an appointed guardian.

26. The Mother was claiming $51,051 per month in her summons as interim maintenance for the Child, but later in her 2^nd affirmation, she amended the claim to a total of HK$48,557.50 (being HK$32,949 for one half of the General Expenses, and HK$32,083 for the Child’s actual expenses).  Later, she again amended her claim to a total of HK$49,007.50.

27. During the 1^st part of the hearing,  the Father, through Ms Irving, has offered the following undertakings , which consist of autopay and re-imbursements, namely :

(i)    he will continue to pay direct the Child’s school fees by autopay, currently about HK$6,840 per month ;

(ii)  he will continue to pay direct the premia for the insurance policies by autopay, currently about HK1,773 per month;

(iii)    he will continue to pay direct the Child’s school bus fees by autopay, currently about HK$915 per month;

(iv)    he will re-imburse the Mother , against production of receipts, for the Child’s extra-curricular activities, a sum of not more than HK$6,000 for a 3 month period;

(v)  he will re-imburse the Mother, against production of receipts, for the Child’s extra tuition, a sum of not more than  HK$15,210 for  a 3 month period for the Child’s extra tuition;

(vi)    he will re-imburse the Mother, against production of receipts, for the Child’s medical and dental/health related expenses, a sum of not more than HK$3,000 for a 3 month period ;

(vii)    he will pay for the Child’s summer school fees for summer 2010 of HK$3,390, on an one off basis ( This was only added during the 2^nd part of the hearing).

(“Undertakings”)

28. In addition to the Undertakings, the Father proposes to pay a sum of HK $8,200 per month as interim maintenance for the Child. The autopay payments in the Undertakings amount to about HK$9,528 per month, and the re-imbursement payments would amount to not more than HK$8,070 per month.  Thus, apart from the summer school fees, the Father’s total proposals amount to payments of about HK$25,798 per month.

29. Ms Wong agrees that if the Father’s above Undertakings were to be accepted by this Court, the rest of the Mother’s claims would amount to about HK$31,409 per month (i.e. HK$49,007.50 less$9,528 (autopay) and less $8,070 (re-imbursements).

30. One of the major items of dispute is the apportionment of the Child’s share of the “General Expenses” under paragraph 4.2 of her Form E (A:124), as later amended in her 2^nd Affirmation (A: 247)

31. The hearing took place in 2 parts, the 1^st part of about 1 hour, on 7 June 2010 and the 2^nd part, about 2 hours, on 18 June 2010.  At the end of the 1^st part of the hearing, the Mother sought leave to produce further receipts in support of her claims, which she did in her 3^rd affirmation filed on 10 June 2010.  The Father then filed a 4^th affirmation in reply .

THE CHILD’S REASONABLE EXPENSES

“General Expenses”

32. The Mother claims that her total General Expenses are HK$32,949 per month and that the Child’s share should be 50% thereof.

33. From the authorities such as Re P (Child:Financial Provision) [2003] 2 FLR 865, the starting point should be the housing provision for the Child.   The Property was purchased on 19 December 2003, before the Child was born. Although it was not clear as to when the Mother’s parents and brother moved in, the Mother was then already pregnant and expecting the Child, and I could safely assume that it was intended by the Father that the Property would also be the Child’s home. Since the Child was born, she has lived in the Property. Although the Father is now saying it is too extravagant for the Child to live in a “huge house”, this seems to be the life style the Child has enjoyed since birth and at this interim stage, this Court will not disturb such arrangements which have been in place for the past 6 years.  There are obviously associated costs in connection with accommodation, such as rates and management fees.  According to the Mother, the rates are about HK$2,190 per month (A:180), and the management fees are HK$1,337 per month. The Father says the receipts produced by the Mother show rates and rent were only HK$1,495 per month. I am prepared to accept the Father’s amounts at this interim stage. These items are fixed amounts and do not in fact depend on the number of occupants.  Thus even if the Mother’s parents and brother were to move out, these amounts would remain the same. The Mother herself is only seeking half of the rates and management fees for the Child.  I am of the view that this is reasonable during the interim stage.  The Child’s 50% share is thus HK$747.50 per month for rates, and HK$668.50 per month for management fees.

34. The Mother has said in her 1^st affirmation that she has employed a domestic helper to ensure the Child is well taken care of when she is not at home, and to assist the day to day running of the family. It appears that the Mother has employed a domestic helper for some time. Bearing in mind that this was the lifestyle enjoyed by the Mother during the parties’ intimate relationship, I am of the view that it is reasonable for the Mother to continue to employ a domestic helper to help her to look after the Child at this interim stage, with or without her other family members living with her. Thus, her own 50% apportionment for the helper’s salary for the Child is reasonable, which comes to HK$1,965 per month.

35. The other controversial item is the car and its related expenses. Again during the parties’ intimate relationship, the Father had provided the Mother with the use of a Mercedes Benz.  After their relationship has broken down, the Father removed the car, but then the Mother bought her own Mercedes Benz. The Property is in Sai Kung. The Mother has explained she would drive the Child to the Disneyland 2 times a year, and on each occasion they would stay overnight, and the overnight parking costs would be HK$120. Although the Child uses the school bus, the Mother has said in her 2^nd affirmation that she would go and pick up the Child twice a week after school, once every Tuesday to take the Child to piano lessons at Tseung Kwan O, followed by Japanese lessons at mid-levels, and each time this would cost about HK$450 including parking fee. The other time she during the week would be to pick up the Child for other after school activities or events.  Every Saturday, the Child has brain training classes, jazz classes and painting classes in Hung Hom, and the Mother would drive her there and afterwards, the Grandmother would go to pick up the Child and they would go home in a taxi, which would cost about HK$130 per trip. The Mother has claimed a total of HK$7,182 per month for this item, being HK$1,500 for parking fees, HK$6,000 for petrol, and toll charges of HK$1,000.  She has explained in her 2^nd affirmation as to how these amounts were arrived at. Ms Irving submits that the Mother only produced receipts for petrol of about HK$3,673 per month, but the Mother has also produced receipts for the car repairs of about HK$1,800 per month. However, most of the major expenses were incurred before end of last year, and the amounts for this year have been minimal. The car is a 4 year old car.  Taking a broad brush approach at this stage, I am of the view that a total amount of HK$4,500 per month would be reasonable during the interim period for petrol, parking, toll fees. The Father has said that the Mother did not claim car maintenance expenses before, but in connection with a car, there must be associated expenses such as maintenance, annual licensing and insurance expenses. This is a matter for the final hearing. There is no evidence that any other family members used the Mother’s car.  I therefore accept the Mother’s apportionment of 50% for the Child’s share of such expenses, which amounts to HK$2,250 per month.

36. For other items of utitilies (excluding rates and management fees), food and household expenses (including supermarket bills), these are on consumption basis. Although the Father is under a legal obligation to make financial provision for the benefit of the Child, he is under no legal obligation to provide financially for the Mother, her parents or her brother. As there are altogether 5 persons living in the Property, including the Child, but excluding the domestic helper, I accept the Father’s apportionment of the Child’s share to be only 1/5of such expenses.

37. For utilities, the Father says receipts show about HK$ 3,493 per month in total, but I notice these were mainly for PCCW bills and the Mother’s credit card evidencing payment to PCCW. There was only one gas bill of HK$395 for April 2010. The Mother has said the electricity bills were about HK$1,000 per month, gas bills were about HK$600 per month, and water about HK$500, and the telephone bills were HK$150 per month, and these come to HK$2,250 per month.  It appears from the PCCW bills , the fixed residential line is HK$330 per month.  Anyway, I am sure the Child uses electricity and water.  The Father’s figures for electricity, water, gas and telephone (should be HK$330 and not HK$300) are HK$2,028 per month.   Electricity, water and gas bills may fluctuate. These items are largely on consumption bases, save perhaps for the fixed line telephone.  At this interim stage, in view of the small sum for the fixed line telephone, I accept the Mother’s figure and the Father’s overall apportionment of 1/5 for these items and thus the Child’s 1/5share is about HK$450 per month.

38. So far as food is concerned, the Mother claims 50% of HK$11,000 per month, making it HK$5,500 per month for the Child.  Ms Irving has proposed a total of HK$2,000 per month for both the food and the household expenses, and apportioned it to be HK$1,800 for food, and HK$200 for household.  In her 1^st affirmation, the Mother explained how she arrived at HK$11,000 by saying that she and the Child would have meals at home and her monthly expenses on grocery shopping amount to about HK$5,000.  Further, she and the Child would go out to eat at least 10 times during the week, and she claims a total of HK$6,000 per month on eating out. Later, in answer to the Father’s Questionnaire, the Mother then seemed to change her evidence somewhat and said she would go to the wet market every day to purchase food, and would spend HK$300-HK$400 each visit.  She has not been able to provide any receipts, but I accept that for purchases in wet markets, there are often no receipts. In any event, it now appears from the Mother’s 3^rd affirmation that the HK$11,000 per month is mainly for food in wet markets for dinner for the whole family of 5 persons.  The Child’s 1/5 share should be HK$2,200 per month.

39. As for household expenses, the Mother claims HK$5,000 per month.  She initially has said this was for periodic renovations and improvements.  Later, in her answers to the Father’s questionnaire, she again changed her evidence and said this was for her going to the supermarket 3 times a week to purchase household items for the family, and would spend about HK$400 per visit.  She initially produced no receipts, but later in her 3^rd affirmation, she did produce some, and Ms Irving calculated these to be HK$2,349 per month, but submits that the Child’s share should be HK$200 per month.  There is no evidence that for the rest of the year, the house would need any major renovations or repairs. I think a reasonable total sum for the general household expenses for the entire family at this interim stage would be HK$2,500 per month and the Child’s 1/5 share would be HK$500 per month.

40. To summarise, the items under the heading of “ General Expenses” would amount to the following monthly sums :

Rates	$747.50
Utilities (excluding rates)	$450
Management Fees	$668.50
Food	$2,200
Household Expenses	$500
Car expenses	$2,250
Domestic Helper	$1,965
Sub total	$8,781

“The Child’s Specific Expenses ”

41. At this interim stage, I am prepared to accept the Father’s Undertakings outlined above. School fees, school bus, and insurance are normally paid by autopay arrangements. The Father’s proposals in relation to the re-imbursements are also reasonable in view of the Mother initially produced hardly any documentary evidence to support her claim.

42. As to the other items, for the Child’s school books and stationery, upon the Mother producing receipts in her 3^rd affirmation, she found that she is still paying HK$1,920 per month from her credit card for a set of encyclopaedia for the Child.  Thus, although she originally claimed only HK$1,000 per month for the item of school books and stationery, Ms Wong later amended this item of claim to HK$1,920 per month.  The Father claims that he has already paid off this item all at time of purchase, but has not produced any evidence of the same.  In the circumstances, I will accept the amount of HK$1,920 per month in the interim.

43. The Mother originally had claimed $2,600 per month for the Child’s transport to school. The Mother has said in her 2^nd affirmation the Child has now changed school and the Child now takes the school bus. Yet, it seems she is maintaining this claim of $2,600 per month, which means that apart from the school bus of $915 per month which the Father has undertaken to pay by autopay, the Mother claims another HK$1,685 per month for other transport to school.  The Father proposes a sum of HK$400 per month for other transport, in addition to the school bus.  Further, as mentioned in her 2^nd affirmation, and as mentioned earlier in this Judgment, the Mother would pick up the Child after school twice a week, and this would be included in the item of her car expenses.  The taxi fare incurred by the Grandmother for picking up the Child on Saturdays are included elsewhere. I therefore believe the Father’s proposal of HK$400 per month for this item, apart from the school bus, is sufficient.

44. For the item of entertainment/presents, the Mother claims HK$3,000 per month, and the Ms Irving submits that the receipts only support an amount of HK$1,083 per month, and some included expenses for 2 or 3 persons. In her 2^nd affirmation, the Mother has explained that she would take the Child to a move about twice a month, and this would be about HK$200 each visit, which would include tickets for the Mother and the Child. I am of the view it is reasonable if occasionally other friends/family members also go along with the Mother and the Child. According to the Mother, the Child also receives invitation to parties quite frequently, such as birthday parties, or special celebrations, such as Christmas, and each present would cost about HK$300.  Also the Mother would organize birthday parties for the Child, and usually would invite about 30 people, and there are costs of booking venues, say at the clubs or at the house. The Mother also says she herself would purchase presents, such as a Nintendo WII recently for the Child, and a hamster.  There would also be toys and books.  Although the Mother has not produced sufficient receipts to substantiate this claim, her explanations seem reasonable.  However, bearing in mind the Child has just had her birthday, and Christmas is another 6 months away, I would allow HK$2,000 per month at this interim stage.

45. For holidays, the Mother claims HK$3,750 per month.  At the 2^nd hearing, Ms Wong told this Court that for the coming summer the Mother plans to take the Child to Taiwan for 5 days.  This item also includes holidays at Disneyland in Hong Kong.  For the interim period, as the Mother is only planning one trip to Taiwan, the Father’s proposal of HK$1,000 per month should be sufficient.

46. For clothings/shoes, the Mother claims an amount of HK$2,000.  The Father proposes HK$1,000.  He has agreed to pay the amount of HK$250 per month for the Child’s uniform.  For this interim period, I think HK$1,500 per month should be sufficient.

47. For the Child’s lunches and pocket money, the Mother says she would prepare a lunch box for the Child, consisting of sushi, or ham, or a sandwich, and says HK$800 for the lunch, and about HK$900 is for pocket money.  The Mother says she gives the Child HK$30 every day as pocket money, and that the Child keeps it in her piggy bank, and will sometimes treat the Grandmother to tea.  The Child has just turned 6, and I am not sure why the Grandmother would expect the Child to treat her to tea. I think for the time being, due to the Child’s young age, she does not really need any regular pocket money for her own use. Thus, for this item, I would allow HK$800 per month only at this stage.

48. The Mother further claims an item of other transport of HK$1,000 per month. As mentioned earlier, the Grandmother would pick up the Child every Saturday after the Child’s Saturday classes and then they would take a taxi home, and this would cost HK$130 per trip.  This would be about HK$520 per month.  Allowing other occasional trips by taxis, I would think a sum of HK$800 would be reasonable, bearing in mind the Mother claims to be driving the Child to most of the Child’s activities.

49. To summarise, for the Child’s specific expenses, the monthly amount would be :

School books and stationery	$1,920
Other transport to school	$400
Entertainment/presents	$2,000
Holidays	$1,000
Clothing/shoes	$1,500
Lunches and pocket money	$800
Other transport	$800
Uniform	$250
Sub-total	$8,670

CONCLUSON

50. To conclude, I am of the view, adopting a broad brush approach at this interim stage, the Child’s reasonable needs would be an amount of about HK$17,451 per month, which I will round up to HK$17,500 per month, in addition to the Father’s Undertakings of about HK$17,598 per month. 

51. In total, the Father may need to pay an overall sum of about HK$35,098 per month for the benefit of the Child.  In view of his income and assets, I am of the view that he has the means to pay these amounts in the interim period.  Although under the GMO, this order only has effect for 3 months from the date of this order, I hope the parties will have the good sense of agreeing to the terms being made a new order, before the expiration of 3 months, unless there are any substantial changes in circumstances.  No matter what allegations the parties may have against each other, the Child is innocent, and the payments are for her benefit.  Furthermore, any over payments or under payments may be adjusted at the final trial. I think the parties should consider attending mediation.

52. My order is thus:

(1)    Upon the Respondent’s Undertakings as follows:

(i)   he will continue to pay direct the Child’s school fees by autopay, currently about HK$6,840 per month ;

(ii)    he will continue to pay direct the premia for the insurance policies by autopay, currently about HK1,773 per month;

(iii)  he will continue to pay direct the Child’s school bus fees by autopay, currently about HK$915 per month;

(iv) he will re-imburse the 1^st Applicant, against production of receipts, for the Child’s extra-curricular activities, a sum of not more than HK$6,000 for a 3 month period;

(v)   he will re-imburse the 1^st Aplicant, against production of receipts, for the Child’s extra tuition, a sum of not more than  HK$15,210 for  a 3 month period for the Child’s extra tuition;

(vi) he will re-imburse the 1^st Applicant, against production of receipts, for the Child’s medical and dental/health related expenses, a sum of not more than HK$3,000 for a 3 month period ;

(vii)   he will pay for the Child’s summer school fees for summer 2010 of HK$3,390, on an one off basis

The Respondent shall pay to the 1^st Applicant a sum of HK$17,500 per month for the benefit of the 2^nd Applicant (“the Child”), commencing from 1 July 2010, and thereafter payable on the 1^st day of each calendar month, until further order. The above payments shall be credited by the Respondent into a bank account designated by the 1^st Applicant.

COSTS

53. Ms Wong seeks costs for this application for the Mother. As pointed out by Ms Irving, by the time of the 1^st part of the hearing, the Mother’s claims were largely unsubstantiated, and her evidence in connection with some items also had changed.  It was after the adjournment of the 1^st part of the hearing that she managed to produce more documentary evidence in support of her claims.  As I have pointed out, the Mother initiated these proceedings almost a year ago now, I would have thought that she had had ample time to prepare her case. Although the Mother has not been awarded the sum she seeks, the proposals of the Father have also been too low, and his previous arrangement with the Grandmother was obviously unsatisfactory. In the circumstances, it appears that the Mother had no choice but to issue a summons for interim maintenance in order to obtain the order today.  Having considered all the circumstances, I am of the view that the Father should pay 50% of the Mother’s costs of and incidental to this application, with certificate for counsel, to be taxed, if not agreed on party and party basis.

54. This is an order nisi, which shall be made final after 21 days, unless there is an application by either party.