KWAN PO YEE v. WONG HO MING, KENNETH

1996, No.MP1518

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The Applicant in this matter is the natural mother of a girl named Wong Ka Yan, Kelsey who was born on 23^rd July 1992 and is now, therefore, just one month short of her fifth birthday.  The Respondent is the natural father of that child.  Although they were never formally married to each other, the Applicant and the Respondent lived together here in Hong Kong from late 1990 for a period of about four years and it was during this period of cohabitation that the child was born.

2. In January 1996, the Applicant (whom I shall call “the mother”) instituted proceedings in the District Court in terms of the Guardianship of Minors Ordinance, Cap 13, for an order that she be granted custody of the child and for various orders concerning the maintenance and material well-being of the child.  Her application was opposed by the Respondent (whom I shall call “the father”).  In February 1996, the matter was transferred to this Court and has now been tried before me.

Custody of the child

3. Earlier in these proceedings, the father did seek custody of the child and to this end a social welfare report was sought.  However, during the course of compilation of that report, the father conceded that it would be in the child’s best interests if she was left in the care of the mother and he remains of that view.  He has, therefore, abandoned any claim for custody but seeks defined rights of access.

4. The child has, of course, been under the day-to-day care of the mother since birth.  Miss Szeto, the Child Custody Services officer who prepared the social welfare report, found the child to be well settled and happy.  She recommended that custody be vested in the mother.

5. While, in respect of a child born out of wedlock, in the absence of any intervening court order, s.3 of the Guardianship of Minors Ordinance vests all parental rights in the child’s natural mother, nevertheless, to avoid future ambiguity, I shall order that the mother be declared to be the custodian of the child.

6. The parties have most sensibly agreed on the father’s defined rights of access which, at this time, will be every second Saturday from 2 in the afternoon until 7 in the evening.  Initially, for an indeterminate period of time, such access shall be exercised by the father in the presence of the mother.  The parties feel sure that they can agree a time when the mother’s presence will no longer be necessary.  Failing such agreement of course either party may apply for a variation of the defined rights of access.  I shall, therefore, order that, in terms of s.3(1)(d) of the Guardianship of Minors Ordinance, the father be granted such defined rights of access.

An outline of the monetary dispute

7. While matters of custody and access have been agreed, regrettably the parties have been unable to reach any consensus on financial matters.

8. It is the mother’s case that, from the time the child was born until the breakdown of the relationship, she was under no obligation to work and was able to devote her full attention to caring for her daughter in the knowledge that the father would provide for all material needs.  The mother argues that, as the child is still of tender years and as it would clearly be in the child’s best interests to be cared for by her rather than an amah, she wishes to continue to devote her energies to caring for her daughter and not go back to work, not at least until the child is that much older and attending full day school.  Essentially, as I understand it, the mother has therefore requested sufficient monetary support from the father to enable her to maintain the status quo.  To enable her to maintain that status quo, the mother seeks periodic payments under three heads; first, an amount to allow for renting accommodation, second, monthly maintenance for the child and, third, an amount to compensate the mother for electing not to work but to remain home to care full time for the child.

9. It is the mother’s case that, using the vehicle of a company in which he owned the majority shareholding, the father purchased a comfortable apartment in Taikoo Shing as a home for herself and the child and that she should be provided with sufficient funds to enable her - for the benefit of the child - to rent an apartment in the same area of the same standard and dimensions.  The agreed evidence reveals that rentals for similar apartments at this time range from $32,000 to $38,000; a mean average being approximately $35,000.

10. As for the child’s maintenance, the mother has based her claim on the figures set out in her affirmation of 6^th September 1996 with certain amendments thereto.  The result is a claim for monthly maintenance for the child of a figure of around $25,000.

11. As compensation for the fact that she will not go out to work to begin building a career for herself again but will remain at home to care for the child, the mother says that she must be provided with a sum of money to enable her at least to meet her own needs; clothing, cosmetics, daily necessities, food and drink and the like.  This, it has been argued, is not “disguised” maintenance for herself but must be seen as a natural consequence of giving to the child the best care and attention at this time which is reasonably affordable by the father; namely, the care of the child’s own mother rather than an employed helper whose qualities must always - in the initial stages at least - be the subject of conjecture.  To support this, in her affirmation of 9^th September 1996, the mother said -

“Ever since the birth of the said minor, the Respondent [the father] intended and agreed with me to provide the said minor, and so he has been providing throughout all material times, with the best education and the best care and upbringing including food, clothing and environment in the highest standard as those the top class family would provide.  The said minor has therefore been brought up with such provision since her birth.”

12. As for the quantum of that compensation, the mother seeks somewhere between $6,000 per month, being the cost of hiring a full time amah, and $18,000, being what she believes she would now be earning if she had kept her old job.  Her counsel has conceded that the sum would of course have to be subject to notional deductions to meet her own living expenses as a result of being employed.  A middle figure would be around $12,000 per month.

13. As I understand it, therefore, in total, the mother seeks periodic payments for the child of approximately $72,000 per month.

14. What then is the father’s position?  The father does not plead inability to pay.  He has not, for example, disputed the allegation that he has an interest in race horses which must cost him (before any question of winnings is taken into account) a sum in excess of $60,000 per month.  The father accepts that, while there is no suggestion that he falls into the rarefied category of the ultra rich, he nevertheless possesses through property holdings and the like a very high degree of affluence; sufficient to pay for the benefit of the child whatever this Court considers reasonable.  It is his argument, however, that the mother’s demands are manifestly unreasonable, that she is attempting, by seeking grossly inflated maintenance for the child, to thereby secure financial support for herself too; support to which, in law, she has no entitlement.  To employ the robust language used by the father’s counsel, it is the father’s belief that the mother has proceeded with this litigation on the premise that if she cannot get the man then she will at least get his money, using the child to do so.

A brief history

15. To better understand the position of both parties, it is necessary to focus briefly on the history of their relationship.

16. In late 1988, when she was 26 years of age, the mother was employed in a firm of solicitors as a clerk earning a salary of $4,500 per month.  Ten months later she was assigned to work for the father who was the firm’s administrative manager and their romantic involvement began.  The relationship evolved to the point when, in late 1990, the couple began to live with each other.

17. When they began to do so, the mother was aware that the father was already a married man with two children.  It is her evidence, however, that the father assured her that the marriage had broken down, that he and his wife were separated and that he intended to institute divorce proceedings.  The fact that a banquet was held in February 1991 to celebrate their “wedding” is evidence, her counsel has argued, that the relationship was an open one in which the mother’s expectations were realistically based.

18. The father, in his first affirmation, accepted that he had divorced his first wife in December 1995, that being the month when the decree nisi was made absolute.  This would be some 5 years after the father and mother first became romantically involved.

19. In so far as it is relevant, I am satisfied on the probabilities that the mother did enter into her relationship of intimacy with the father in the  expectation that a marriage would result.  Nevertheless, of course, she must have known that she was entering into a relationship which, while based on rational expectation, contained no guarantee of marriage.  And, as it turned out, despite the birth of a child, there was no marriage.  Indeed, from the papers, it appears that the father, having divorced his first wife in late 1995, proceeded eventually to marry a third party, that marriage still subsisting.

20. At about the time that they agreed to live together, an apartment was purchased in Hoi Tien Mansion in Taikoo Shing.  It was purchased by a company called Hundred Health Limited in which the father held the controlling interest.  A loan secured by mortgage was obtained to finance the purchase.  Once the apartment had been decorated, the mother took up residence there.  She, in fact, still remains there with her infant daughter but, for reasons not directly relevant to this matter, the property is now subject to litigation and it appears that in the immediate future mother and child will have to give up residence and seek accommodation elsewhere: hence the mother’s claim on behalf of the child for an accommodation allowance which will take effect from the time new accommodation is obtained.

21. As concerns the mother’s work history, it has not been disputed that in or about March 1991 she gave up work and, as she expressed it in her founding affirmation, “concentrated on looking after the property as a housewife of the family.”  She fell pregnant later that year and, financed by the father, travelled to Canada to give birth to her daughter, Kelsey, in July 1992.  As I have already intimated, the father has never disputed that he is the natural father of the child.  Nor has it been disputed that, after the birth and until the time of the breakdown of the relationship, he was content for the mother to remain unemployed so that she could attend full time to the home and to the child.

22. As to the level of maintenance supplied to the mother for herself and the child, in her founding affirmation the mother stated that the father originally gave her $10,000 a month but this was increased to $15,000 and then to $25,000 to meet “the daily and household expenses for the benefit of the child”.  On the probabilities, I find it difficult to accept that the money at the material time was intended solely for the benefit of the child.  The funds must have been intended for general living, for the mother too in that regard and, to an extent, for the father himself who was intermittently at least living in the apartment and enjoying its comforts.  The mother attached to her founding affirmation a table of payments that she received from the father for “the family” recorded in her bank passbook.  From September 1992 until September 1994, the last full month that the parties were together, that table, on my calculations, reveals an average income of just below $22,000.

23. In her later affirmation in September 1996 the mother spoke for the first time of moneys expended by her on a credit card which had been given to her by the father.  She expressed it thus:

“A credit card had once been given to me by the Respondent to meet part of the monthly expenditure amounting to HK$25,000 in average.  The balance was usually met by cash from the Respondent to me amounting to about $25,000...  The Respondent however canceled my said credit card shortly before commencement of these proceedings.  The total usual expenditure per month had been around $48,000 to $50,000 before these proceedings were commenced.”

24. There is no suggestion, of course, that this monthly expenditure was solely for the child.  It would have included moneys spent by the mother for herself, for clothing, beauty care and the like, at a time when she and the father were still romantically involved.

The relevant law

25. The application for periodic payments is made pursuant to s.10(2)(b) of the Guardianship of Minors Ordinance which reads:

“(2) Where the court makes an order under subsection (1) giving the custody of the minor to any person (whether or not one of the parents), the court may make one or more of the following orders, that is to say -

(a)  .........................

(b)   an order requiring payment to that person by the parent or either of the parents excluded from having that custody of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent (my italics).”

Periodical payments must therefore be towards the maintenance of the minor and not towards the maintenance of a third party, even if that third party is the custodian.

26. As to the quantum of periodical payments, this shall be an amount which the court considers reasonable having regard to the financial means of the parent ordered to pay.  A broad discretion is therefore vested in the court which it exercises in the light of the financial means of the parent ordered to pay but which, of course, if only by implication, must also take into account all other relevant circumstances.

27. In my judgment, where there has, in respect of the child, been a lasting relationship between the parents, the actions taken by them during the course of that relationship to ensure the welfare of the child must constitute relevant circumstances.  As it applies in this case, therefore, where the father has in the past, through his conduct, already “set an agenda” for what he has considered reasonable for the child, that “agenda” must be relevant to my deliberations.

The mother’s financial means

28. It has not been disputed that the mother is a woman of limited means.   She has not worked since 1991.  In her affirmation of 21^st May 1996 she stated that, with the exception of four bank accounts, each holding minimal sums, the largest being $3,111.00, she had no assets, real or personal.  Accordingly, while of course the mother also shares a responsibility to finance the welfare of the child, I am satisfied that at this time she does not have the means to do so and the burden will have to rest on the shoulders of the father.

The father’s financial mean

29. As I have already said, the father, through his counsel, has accepted that his shoulders are broad enough to bear any order that this Court should consider reasonable.  By an order dated 4^th June 1996, the father was in fact ordered to file an affirmation setting out in detail, inter alia, his financial position.  However, he failed to do so within the time stipulated and a summons requesting an extension of time was dismissed by order of the Registrar.  Regrettably, therefore, despite the concession made by the father’s counsel, I had no detailed affirmation from the father before me.  I should also state that the father declined to give evidence during the hearing.

Maintenance for the child

30. In her affirmation of 21^st May 1996, the mother set out a detailed list of the cost of maintaining the child which she totaled at $13,010 per month.  It would appear, however, that there was an error in calculation and the figure should have been approximately $800 less as she included a figure for books and miscellaneous kindergarten expenses of $1,200 as a monthly expense when it was described as an average figure per semester.  In that affirmation, the mother also set out her own monthly expenses which she calculated at $15,026.  These figures, while they cannot be claimed by the mother direct for her own benefit, did set out certain expenses which, in my judgment, were applicable to the child too; for example, electricity, gas, telephone, water and management fees: all utilities necessary for the child’s well being as well as that of the mother. 

31. In her affirmation of 6^th September 1996, some three and a half months later, the mother, while making no separate list to tabulate her own expenses, set out a comprehensive list of what, she said, it would cost to maintain the child.

32. The original list included $18,000 to the mother to compensate her for full time caring of the child; $4,000 to her own mother for “back-up” baby-sitting duties and $2,000 payable to a part-time amah for cleaning and washing: a total of $24,000 per month to pay for varying caring duties.  In addition to these sums, bearing in mind that she was claiming a full $18,000 for herself, presumably to cover her gross earning potential, the mother also, without allocating any share to herself to come out of the $18,000, claimed for the benefit of the child full management fees, full electricity and water charges, full gas charges (increased by $100 from May) and the same figure of $350 per month for telephone expenses that in her May affirmation she had allocated solely to herself.

33. At the hearing, of course, the mother abandoned the total of $24,000 claimed for caring duties but, even with these deductions, I am satisfied that the list of expenses was inflated.  For example, for food and beverages and nutritional supplements, remembering always that this was for a girl who was not five years of age and who thankfully is in satisfactory health, the mother claimed a total of $7,050 made up as follows -

a.	Milk (average)	$2,400
b.	Food and beverages	$2,400
c.	Baby nutrition, including
	baby juice, vitamins
	prescribed by doctors
	and birds’ nests	$2,250

34. As a further illustration, a sum of $2,100 was allocated for “diaper and baby care materials”.

35. Our courts have often warned of being over-influenced by detailed calculations of outgoings.  In this regard see, for example, Moon v Moon (1979) FLR 115.

36. I accept, of course, that in assessing what is reasonable having regard to the means of the father, it is important that I endeavor to determine reasonableness according to the standards enjoyed by the child prior to the breakdown of the relationship between the parents and avoid the risk of confining those standards by the application of scales that would seem generous to ordinary people.  Put simply: what is a luxury for a child of poorer background may be a necessity for a child of more affluent origins.

37. Having said that, however, despite the accepted wealth of the father, it must be remembered that the child was raised in an apartment in Taikoo Shing not a Peak penthouse and there is nothing in the mother’s affirmations which, concerning the child, shows historically the kind of lavish spending that she now insists was always contemplated.  Again to illustrate, the mother claims for two holidays per year for the child at $12,000 per holiday; presumably to cover both herself and the child, but does not give evidence of regular such holidays during the relationship whether with or without the child.

38. Having digested the mother’s affirmations and heard her give oral testimony during the course of the hearing, I am satisfied that her expenses have been tailored to a material degree to provide indirectly for herself as well as the child; in short to ensure that she too can maintain the life style that the father gave to her during the time when they were still romantically involved and he was providing for her.

39. In my judgment, taking what I can from the historical material that I am satisfied has not been inflated, in light of the age of the child and having regard to the means of the father, I consider that $13,000 per month is a reasonable figure for the child’s maintenance, this being $1,000 more than the interim maintenance granted by this Court a year ago.

Provision of accommodation

40. I accept that mother and child cannot continue to reside for much longer in their present accommodation, not in light of the continuing litigation.  I accept too that they are entitled to suitable alternative accommodation.  I speak of them in the plural because, of course, a child of such tender years can only reside where the mother resides.  However, while I accept that the accommodation must be of a good standard, it must be remembered that we are talking about suitable accommodation for a young child not an adult.  In light of that, while the apartment should be in a good area, hopefully close to school, I cannot accept that it must be of the same dimensions or the same standard of luxury.  Those matters, while important to an adult, are not the measure of a child’s welfare.  It must be remembered too that the existing apartment - close to 900 square feet in extent - was obtained for mother, child and the father too.

41. I have had placed before me by agreement two sets of data obtained from estate agents setting out rentals for apartments in the Taikoo Shing area and also in the Kornhill area where the child attends kindergarten.  From this I see that 2-bedroom apartments of between 580 and 675 square feet are presently fetching rentals of between $15,500 and $17,500.  It is impossible, of course, to find the perfect balance in matters of this kind.  But I note that one apartment of 675 square feet in Hing On Mansion in Taikoo Shing has a quoted monthly rental of $17,000 and, in all the circumstances, that I consider to be the most appropriate yardstick.

Financial provision for the mother

42. It has not been disputed that since the birth of the child the mother has not worked and has remained unemployed so that she can provide full-time care for the child.  When the parties were together, I am satisfied that the father concurred with this arrangement substantially at least because he must have considered this to be in the child’s best interests.  Flowing from this, despite the breakdown of her relationship with the father, the mother has made the choice not to go out now and seek to restart her career but rather to continue caring on a full-time basis for the child at least until the child is older and attending all-day schooling.

43. Just as, in my judgment, it would be perfectly proper for the mother to claim the expense of a maid to look after the child while she was working so I consider it proper for the mother - at this time at least when the child is of such a young age and so very dependent - to claim a remuneration for herself for taking on that duty herself.  The great difficulty that I face, however, is in assessing a proper quantum.

44. For me to take a notional salary that the mother could earn if she chose to seek work again and then to make a series of notional deductions to accord for the expenses she would incur in working (travel expenses, lunches, extra clothing and the like) would involve a complex notional accounting based essentially on speculation.  Against that, for obvious reasons, the figure should, I believe, be more than the basic wage for an employed helper.

45. In deciding on an appropriate figure I can again do no more than exercise my discretion in light of the relevant circumstances, remembering always that, there being no marriage, the mother has no entitlement to claim for maintenance as if she was a wife making a claim for ancillary relief under the Matrimonial Proceedings and Property Ordinance, Cap 192.  In doing so, remembering that she now has, through the child, the benefit of reasonable accommodation, I consider that a sum of $8,000 is equitable for the mother.

Summary

46. This makes, therefore, for a total monthly sum of $38,000 which has been calculated as follows -

a.	As and for maintenance for the child	$13,000.
b.	As and for accommodation	$17,000.
c.	As and for the mother for her duties of caring for the child full-time	$8,000.
	Total:	$38,000.

A lump sum payment

47. In her affirmation dated November 1996, the mother spoke of the father’s obligations to pay interim maintenance and his failure to meet those obligations.  In paragraph 5 of that affirmation, she said the following -

“Upon the failure of the Respondent [the father] to pay the interim maintenance in breach of the said Order and by reason of his repeated delay and wilful neglect to pay the said interim maintenance, I was forced to borrow money from my friends and relatives for the purpose of maintaining the said minor, such failure of the Respondent has caused a great hardship to me to maintain the said minor.”

48. If the father has failed to honour an order of this Court, the mother has her remedy in seeking enforcement of the order; it does not lie in seeking a lump sum order while still leaving open her rights to enforce non-payment under the order. In addition, the mother did not give details of the exact amounts borrowed and for what purpose they were used.  I have been unable to find such details in any of her other affirmations. 

49. When the mother gave testimony at the hearing she enlarged on the general statement made in her affirmation.  She stated that the $12,000 per month awarded to her by this Court as interim maintenance was not sufficient to meet expenses and as a result she had been forced to make up the shortfalls with the help of her mother, her younger brother and sister.  She did not speak of friends.  Her mother, she said, gave her $5,000 - $6,000 per month while the brother and sister each gave her $3,000.  This assistance, she said, had been given to her since the middle of 1995.  She did not say specifically when in 1995.  Nor, apart from saying that the money from one of the siblings was used to pay the child’s kindergarten fees, did she give details of how the money was used.  It is therefore impossible for me to consider to what degree the borrowings were merited; that is, reasonably incurred, in the interests of the child as I am directed to do in terms of s.10(2)(a) of the Guardianship of Minors Ordinance.

50. However, in light of all the circumstances and my final orders herein, I am satisfied that the mother has not over the past year received sufficient maintenance to meet the reasonable needs of the child having regard to the father’s financial means and must therefore have been placed in a position where moneys had to be borrowed from family members.  The problem that I face is in assessing a reasonable figure.

51. In saying that I am satisfied that over the past year the mother has not received sufficient maintenance, that is not to be taken as any form of criticism, direct or implied, of the interim order made, far from it.  Maintenance pending suit, of course, is a temporary measure only.  The court, in assessing the amount of such maintenance, does not involve itself in a detailed investigation; it looks broadly at the relevant factors and comes to what has often been described as a “rough and ready conclusion”.  If there has been hardship caused to either party, the necessary adjustments can be made by the court in its final ruling.  One way of making such an adjustment is to backdate any final order or part of any final order and that I consider to be the best way to proceed in the present case to calculate the lump sum that is claimed in terms of s.10(2)(a) of the Ordinance for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the child before the making of this final order to be met.

52. Leaving aside the matter of accommodation which the mother has always enjoyed, my award for maintenance is $21,000 per month.  From this must be deducted the $12,000 ordered by way of interim maintenance which leaves a balance of $9,000.  This sum will be backdated to 1st July 1996, the date from which interim maintenance was ordered to be paid.  This is a period of twelve months, making for a sum of $108,000.

Secured payments

53. The mother has sought security in terms of s.10(2)(c) of the Ordinance.  However, having considered the matter, I do not believe, now that my final orders have been made and hopefully the existing bitterness between the parties will begin to ebb away, that there is any need for such security to be provided by the father.  The mother may always seek such security in future should she have good reason to do so.

Orders

54. My orders are therefore as follows:

1.    That in terms of s.3(1)(c)(I) of the Guardianship of Minors Ordinance, Cap 13, the Applicant be and is hereby declared to be vested with the custody of the minor child, Wong Ka-yan, Kelsey (born 23rd July 1992).

2.    That, having been granted all necessary rights and authority in terms of s.3(1)(d) of the aforesaid Ordinance, the Respondent be granted defined rights of access to the said child in terms of s.3(1)(c)(ii) thereof, such rights to be exercised on every alternate Saturday from 2 in the afternoon until 7 in the evening in the presence of the Applicant.

3.    That with effect from the 1st July 1997 the Respondent shall pay to the Applicant the sum of $21,000 per month as and for maintenance for the said child until the said child attains the age of eighteen (18) years or becomes self-supporting whichever is the sooner.

4.    That, in addition to the maintenance stated in paragraph 3 above, for such period of time that the Applicant rents accommodation for the benefit of the said child, the Respondent shall pay to the Applicant as and for maintenance for the said child a further sum of $17,000 per month.  This sum shall be paid on the first day of the month in which the Applicant rents such accommodation and shall continue to be paid until the Applicant ceases to rent accommodation or remarries.

5.    That within thirty (30) days of the date of this judgment the Respondent shall pay a lump sum payment to the Applicant for the benefit of the said child in the amount of $108,000.

6.    That there be liberty to apply.

7.    That, in the absence of agreement, the matter of costs shall be argued on a date to be fixed.