H v. S

FCMP 70 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL PROCEEDINGS NO. 70 OF 2008

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J U D G M E N T

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INTRODUCTION

1.  The Applicant mother (“M”) is applying for financial provision for her daughter T, who was born out of her relationship with the Respondent (“F”).

2.  M’s application was issued under s.10 of the Guardianship of Minors Ordinance (“GMO”).  There is no dispute regarding paternity, and the only matter which this Court has to decide is the reasonable financial provision for T.

BACKGROUND

3.  M is now 35 years of age.  She appears to come from a comfortable background.  Her parents are members of the Hong Kong Jockey Club, Kowloon Cricket Club, and the Hong Kong Golf Club.  According to M, she herself became a member of the Kowloon Cricket Club and the Hong Kong Jockey Club respectively in 1997 and in 2001.  Her parents have been divorced for some time, and M has apparently not seen her father since about the time of the divorce, but she has maintained a good relationship with her mother and her brother.

4.  M was educated in well known Canossian schools in Hong Kong up to Form 4 level and then she left to continue further education in Sydney.  She later attended university, where she graduated with a Bachelor Degree in Health Sciences (Rehabilitation Counselling) in 1997.  In 1997, M also completed a certificate course on horse husbandry in  Sydney and while she was studying for her degree, she worked part time for a well known female horse trainer in Sydney.  After graduation, she worked part-time in clinics in Sydney for about a year from early 1997 to early 1998, before returning to work in Hong Kong in March 1998.  Her first job was with a university as a researcher earning HK$11,000 per month.  Later, she switched to work for another university as a researcher, initially earning about HK$15,000 odd per month, which was increased to about HK$18,000 odd per month for about 3 months from January to April 2002. 

5.  After April 2002, M ceased working full time and started to cohabit with a Mr. L after holding a wedding banquet.  During this period, M acquired a Master Degree in Medical Sciences (A1:126).  Their daughter, B, was born in February 2003.  It was only 4 months later, in June 2003, that M and Mr. L registered their marriage and were legally married.  Their marriage was, however, rather short lived since according to M, by November 2003, her relationship with Mr. L had in effect ended.

6.  Prior to her cohabitation with Mr. L, M was living with her mother in Homantin.  M moved to Mr. L’s  quarters in Sheung Shui when they started living together.  Later, in November 2003, when their relationship was on the rocks, according to M, she would often go to her mother’s home in Homantin, spending 3 or 4 nights in Sheung Shui and the rest at her mother’s home.  Although she and Mr. L started living apart, it appears that it was only sometime much later, in February 2007, that M started divorce proceedings with Mr. L, and only obtained a divorce in May 2007, at about the time T was born.

7.  Thus when M met F, she was still legally married to Mr. L. According to M, she met F in January 2005, and she gave an exact date, i.e. 23 March 2005 that she started to have an intimate relationship with F. During the period 2004 to 2005, M apparently acquired a Financial Planner’s licence and worked part time for an Insurance Company.

8.  Turning to F’s background,  he was born in July 1954, and is now 54 years old.  He grew up in a remote area in Australia and attended a boarding school when he was very young, about 5 or 6 years old.  He told this Court that he had worked 7 days a week for past 40 years.

9.  F was married once before his present marriage.  He has an adult son by his first wife, who is now about 25 years old and an adopted daughter, now aged about 35.  He and his present wife have no children.

10.  F arrived in Hong Kong in 2001 to work.  According to F’s Affidavit filed in July 2008, his wife decided to remain living in Australia, largely because of health issues but he and his wife have never formally separated and they have been maintaining a long distance relationship.  It is not disputed that apart from his wife, F also has a girlfriend in Hong Kong, whom he met in about August 2003.  During the trial, F has said that although he and his girlfriend have had disputes and separation, they currently still see each other.

11.  When M met F, she knew he was married and that he already had a girlfriend in Hong Kong.  M, however, claimed that she was convinced by F that he had separated from his wife for 1½ years and that his girlfriend would soon go away because he still had not divorced his wife. 

12.  M’s intimate relationship with F started in March 2005.  M said she and F would see each other about once or twice a week.  Then in June 2005 they became closer and according to M, saw each other almost every day.  In July 2005, apparently F asked her to “do the tax” for him.  She agreed and then according to M, in August 2005, F’s wife asked him to pay some money to her for the job.  It was not really disputed that F then gave her a cheque of HK$20,000, which was an one off payment.

13.  Between September 2005 to November 2005, even though there was a dispute on the length of time she was spending in F’s apartment, it is, however, not disputed that during those 3 months, F paid M HK$8,000 per month, to do some casual jobs for him. 

14.  Then, in December 2005, according to M’s 1^st Affidavit, she was formally employed by F and started working full time for him, with the title Personal Assistant.  She was initially paid HK$20,000 per month as her salary, which in May 2006, was increased to HK$30,000 per month.  H, however, said that the level or remuneration was disproportionate to M’s job nature and work load, and he only agreed to pay her so much because of their then intimate relationship.

15.  In August 2006, M found herself pregnant but unfortunately had a miscarriage 7 days later.  She stayed overnight at F’s apartment for about 4 days, and she claimed to be looked after by F’s maid and F.

16.  By that time F himself had stopped using protective measures on his part when the parties were having sexual relationship, although F had said that it was not his wish to have a baby.  F had said in his Affidavit that after M’s miscarriage, he had advised her to take extra care regarding contraceptive method as he made it clear to her that he did not want a baby.

17.  Nevertheless, on 1 October 2006, M found herself pregnant again.  During her pregnancy, the parties’ relationship deteriorated.  The parties gave different reasons for this.  M said their relationship deteriorated because in March 2007 she found out that F had a sexual relationship with a Filipino maid who later blackmailed him.  F said it deteriorated because M became extremely demanding and possessive of him during her pregnancy, and wanted to be at his flat all the time and be part of his life, but this was not what he wanted, nor did he want a baby.

18.  M then went on her maternity leave in April 2007, and T was born in May 2007, and is now just 2 years of age.  M did not resume working for F after her maternity leave.  She said F told her verbally in June 2007 that she did not have to go back to work for him.  Apparently she then made a complaint to the Equal Opportunities Commission.  Anyway, it was not disputed that F continued to pay her the salary HK$30,000 per month until September 2007.

19.  After T was born, F did not contact M for about 6 or 7 months, save a congratulatory SMS and maybe a telephone call in late June or July.

20.  Then, at about end of January 2008, F took the initiative to contact M again, and thereafter the parties started to have sexual relationship again. M said this was a reconciliation and that F had given her hope that he would be with her without having his girlfriend around.  F denied this and said he had contacted M again telling her that they should be speaking to each other and they should have a harmonious relationship as they have a child, but that M immediately seized the opportunity to enhance the case against him, and one of the things she did was to ask him to pay her HK$60,000 per month.  It was not disputed that F bought M a diamond ring from Tiffany’s for HK$165,000 on 16 February 2008, after he took M to dinner on Valentine’s Day.  F said he bought the ring for M upon her demand.  F later gave M a one off payment of HK$30,000 in the beginning of March, and he said that when M realized that she could not get him to pay more, she called the relationship off and decided to sue.  M, on the other hand, gave a different version as to what happened.  Anyway, to summarise, the intimate relationship between M and F totalled approximately 2 years.

21.  The first time F saw T after her birth was in February 2008, when M took her to F’s flat.  F saw T on a few occasions, and since about early March, he has had no contact with T.

22.  Not long after M started her relationship with F, she bought a small flat at Shatin Centre (“Shatin Flat”) out of her own savings, to be nearer to F.  M had initially said it was in about May 2006 that M formally moved her belongings and B’s belongings into the Shatin Flat, but in her Closing Submissions, she seemed to be saying this was in July 2006 (para. 24).  After T was born, the Shatin Flat was where she was living with her mother and her half sister B together with a maid, until about 3½ months before the trial.

23.  On 1 November 2008, M, with B and T, moved out of the Shatin Flat into a rented flat in Mei Foo Sun Chuen (“Mei Foo Flat”).  As for her Shatin Flat, she has let this out as from 10 January 2009.  M only disclosed her move during the trial. 

24.  Just before the 2^nd part of the trial resumed in March, M then suddenly disclosed that her landlord was willing to sell the Mei Foo Flat for HK$3.5m, and she was proposing F to purchase this flat for her and T to live in.

25.  T is now almost 2 years old.  In January 2009, she has started attending pre-nursery class at a kindergarten once a week, and she has also started taking piano/music lessons once a week.  T seems to be a healthy girl and there is no evidence that she is suffering from any physical or mental disability.

PARTIES’ PROPOSALS

M’s Proposals

26.  In M’s Written Opening Submissions, she was seeking the following:

(a)  a lump sum of about HK$8,125,520 as follows:

(i)  HK$5m for buying a 3 bedroomed flat in F’s name for M and T to reside in, which will revert to F after T attains the age of 21 or ceases full time education, whichever is later;

(ii)  HK$3 m for a trust fund to provide for T in the event of F’s death, or in the event if F fails to pay the periodical payments;

(iii)  HK$125,520 for a car

(b)  HK$58,000 per month for the periodical payments for T, being HK$38,000 for “mother’s allowance”, and HK$20,000 for T’s actual expenses.  The sum to be backdated to the date T was born, i.e. 10 May 2007, and to be reduced to HK$20,000 per month when T attains the age of 6 or enters first year of primary school.

27.  At the end of the trial, the housing fund claimed by M has been reduced to HK$3.5 m, with her other claims unchanged.

F’s Proposals

28.  F had paid M a total sum of HK$240,000 being maintenance for T from her birth in May 2007 until April 2008 and since May 2008, he has been paying HK$20,000 per month for T.  Initially, F’s proposal was to continue to pay HK$20,000 per month for T.

29.  When the 2^nd part of the trial resumed on 13 March 2008, in the afternoon, F made open proposals through his counsel Ms Tsui, which included an undertaking to purchase the Mei Foo Flat by paying HK$1m as down payment, to take out a life insurance policy of HK$3m, to pay M an ex gratia sum of HK$200,000 for her, and to pay HK$10,000 per month for T’s living expenses.

30.  At the end of the trial, and in her Closing Submissions, Ms Tsui has expanded on the open proposals, setting out the following undertakings which F is now willing to provide:

(a)  For purchase of a property

(1)  To buy a property in the name of F at the value of not more than HK$3m( in Shatin or in Mei Foo Sun Chuen) and to provide this property for the accommodation of T, M, and B  until T reaches 18 years of age or until T finishes her first full-time tertiary degree whichever is later;

(2)  To pay HK$1m as down payment for the property to be brought under undertaking(1) and to pay the balance of the purchase with a mortgage for a period of not more than 10 years;

(3)  To take out an insurance policy for the outstanding amount of mortgage to cover the risk of non-payment of mortgage loan in the case of F’s death during the term of the mortgage;

(4)	(i)	To pay for the necessary maintenance and repair of the property as required by the Incorporated Owners of the building or the management company concerned during the time of the occupation of T;
	(ii)	To act as a reasonable landlord to be responsible for internal and structural problems on notice of such problems.

(b)  For protection of T’s living expenses and education expenses

(5)  To take out and maintain a life insurance policy for the value of HK$3m naming T as the beneficiary to provide T with the living and educational expenses in the case of the death of F before T reaches 18 or completes full time first tertiary education, whichever is later;

(6)  It shall be a term of the said life insurance that F may draw out from the said life insurance a sum of not less than aggregate amount of HK$1.5m for the education expenses when T begins tertiary education whether in Hong Kong or in Australia;

(7)  To pay for the school fees and school transportation fees (school bus or other means of public transport) when T begins her pre-school class in HLY International School in September 2009 and thereafter when T begins her education in an International School up to Year 12 or when she receives primary and secondary education in any other local schools in Hong Kong;

(8)  To be responsible for paying a private debenture for the International School, if and when necessary.

(c)  For Security

(9)  To use the property purchased as mentioned in Undertaking(1) as security for the periodical maintenance of T;

(d)  For Departure from Hong Kong

(10)  Should F decide to leave Hong Kong for good whether on notice of termination of services  or otherwise, to inform the Court and M of such decision forthwith;

(the above collectively called “F’s Undertakings”)

31.  Upon F providing the above undertakings, he would require the following undertakings from M:

(1)  To vacate the property and delivery vacant possession of the property on demand from F when T reaches 18 of when T has completed her first full-time tertiary degree, whichever is later;

(2)  Not to allow anybody else except T, B and herself and/or a domestic helper to reside in the property;

(3)  To inform F forthwith of her marriage, if any;

(4)  To return to F or his estate forthwith the debenture bought for the  International School [with reference to above undertaking (8)], upon return of the same by the said school.

(the above collectively called “M’s Undertakings”)

32.  In addition to F’s Undertakings, F proposes to pay to M HK$7,000 per month for T’s living expenses, since T’s accommodation and education expenses will now be covered under F’s Undertakings.

LEGAL PRINCIPLES

33.  Previously in Hong Kong, the power of the courts to make maintenance orders for children born out of wedlock was provided in the Affiliation Proceedings Ordinance, which was based on the Affiliation Proceedings Act 1957 in England.

34.  In England, over the years, the treatment of children of unmarried parents has moved towards equality of treatment with children of married parents.  In A v A (A Minor: Financial Provision) [1994]1 FLR 657, at 659, Ward J (as he then was) has set out the history of the powers of the courts in England to make provision for the children of unmarried parents.  Initially these were very limited and governed by the Affiliation Proceedings Act 1957.  Later, the criteria for assessing periodical payments were assimilated to those of other children in the Domestic Proceedings and Magistrates Courts Act 1978.  But jurisdiction for lump sum provision was limited, and otherwise there were no powers to make capital settlements.  These limitations were eventually removed and a wider range of orders was provided for in the Family Law Reform Act 1987, following two Law Commission Reports on illegitimacy.  The object of those reports was to remove the differences in the legal positions of children, the underlying principle being that children should not suffer just because their parents had, for whatever reason, not been married to one another (see J v C (Children: Financial Provision) [1999]1 FLR 152, at p 155).

35.  The Children Act 1989 then came into effect and s.15 of the Children Act enables the court to make financial orders for children, with paragraph 4(1) of Schedule 1 defining the criteria which the court has a duty to have regard to when making such orders.  Paragraph 4(1) of Schedule 1 of the Children Act 1989 sets outs as follows:

“ In deciding whether to exercise its powers under paragraph 1 or 2, and, if so in what manner, the court shall have regard to all the circumstances including-

a)  the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph 4 [either parent] has or is likely to have in the foreseeable future;

b)  the financial needs, obligations and responsibilities which each [parent] has or is likely to have in the foreseeable future;

c)  the financial needs of the child;

d)  the income, earning capacity (if any), property and other financial resources of the child;

e)  any physical or mental disability of the child;

f)  the manner in which the child was being or was expected to be educated or trained.”

36.  Paragraph 4(1) is, however, slightly different from s.25(3) of the Matrimonial Causes Act 1973 , as set out by Ward J in A v A (A Minor: Financial Provision), at p. 660, in that:

“(1)  Under the Matrimonial Causes Act, the court’s first consideration is for the welfare of the minor child.  Whilst welfare is the paramount consideration for the court on any question with respect to the upbringing of the child, upbringing does not include maintenance payments: see the Children Act 1989, s.105.

(2)  The standard of living enjoyed by the family is not a fact listed in Schedule 1, no doubt because it is recognized that mother and father may never have lived together as a family.

(3)  The physical or mental disabilities of the parent are  not expressly in issue under the Children Act though I do not easily understand why that omission is made.”

37.  As to the reason for the omission of the requirement to treat the child’s welfare as the first consideration, Hale J (as she then was) in J v C (Child:Financial Provision), had this to say at p. 156:

“The reason for the omission of the requirement to treat the child’s welfare as the first consideration is probably that these provisions apply in cases where the adult parties are, or were, married to one another, and therefore, the court will usually be faced with claims for some provision for the adults as well as for the children.  In such cases it makes sense to provide that the children’s welfare should come before that of the adults in determining those claims.

Nevertheless, in cases under the Children Act 1989 the welfare of the child concerned, even if neither the paramount nor the first consideration, must be one of the relevant circumstance to be taken into account when assessing whether and how to order provision.”

38.  Then the Child Support Act 1991 was introduced which applies to “maintenance orders”, meaning the making or securing of orders for periodical payments.  Notwithstanding the Child Support Act 1991, the courts in England retain their jurisdiction to make orders for lump sums and transfer and settlement of property for children under section 15 of the Children Act 1989.[1] 

39.  Re P (Child:Financial Provision) [2003]2 FLR 865 is the leading case where the Court of Appeal in England undertook a review of the principles underlying Schedule 1 cases, namely what constituted reasonable provision in Schedule 1 cases.  Thorpe LJ said at paragraph 45 :

“The starting point should be to decide what housing provision the father should be called on to make. From there, one can go on to consider what budget the mother may reasonably require and what, if any, provision is appropriate by way of lump sum…  The value, the size, and the location of the home all bear upon the reasonable capital cost of furnishing and equipping it as well as upon future income needs, directly in the case of outgoings but also indirectly in the case of external expenditure such as travel, education, and perhaps even holidays. The home will ordinarily be transiently required during the child's minority or until further order.  The appropriate legal mechanism is therefore a settlement of property order. Since the Respondent is entitled to the reversion, which in certain circumstances may fall in before the child's majority, the Respondent must have some right to veto an unsuitable investment.”

40.  Also in Re P, Bodey J has provided a very helpful summary of the relevant considerations at paragraph [76], page 882, as follows :

“The welfare of the child while a minor, although not paramount, is naturally a very relevant consideration as one of 'all the circumstances' of the case.

(i)  Considerations as to the length and nature of the parents' relationship and whether or not the child was planned are generally of little if any relevance, since the child's needs and dependency are the same regardless: J v C (child: financial provision) [1998] 3 FCR 79 at 81.

(ii)  One of the 'financial needs of the child' (to which by para 4(1)(c) the court must pay regard) is for him or her to be cared for by a mother who is in a position, both financially and generally, to provide that caring. So it is well established that a child's need for a carer enables account to be taken of the caring parent's needs: Haroutunian v Jennings [1980] FLR 62 at 66; and A v A (financial provision for child) [1995] 1 FCR 309 at 317.

(iii)  By paras 4(1)(a) and (b) of Sch 1, the respective incomes, earning capacities, property and other financial resources of each of the parents must be taken into account, together with their respective financial needs, obligations and responsibilities. So 'the child is entitled to be brought up in circumstances which bear some sort of relationship with the father's current resources and the father's present standard of living': J v C (child: financial provision) [1998] 3 FCR 79 at 87 per Hale J.

(iv)  However, as this latter concept lends itself to demands going potentially far wider than those reasonably necessary to enable the mother properly to support the child, 'one has to guard against unreasonable claims made on the child's behalf but with the disguised element of providing for the mother's benefit rather than for the child': J v C (child: financial provision) [1998] 3 FCR 79 at 87.

(v)  In cases where the father's resources permit and the mother lacks significant resources of her own, she will generally need suitable accommodation for herself and the child, settled for the duration of the child's minority with reversion tothe father; a capital allowance for setting up the home and for a car; and income provision (with the expense of the child's education being taken care of, generally, by the father direct with the school).

(vi)  Such income provision is reviewable from time to time, according to the changing circumstances of the parties and of the child.

(vii)  The overall result achieved by orders under Sch 1 should be fair, just and reasonable taking into account all the circumstances.

[77]  From the experience of this case, I would propose three further considerations.

(i)  In considering the mother's budget, at least in bigger money cases, the court should paint with a broad brush, not getting bogged down in detailed analyses and categorisations of specific items making up opposing budgetary presentations. Rather, the court should do its best to achieve a fair and realistic outcome by the application of broad common sense to the overall circumstances of the particular case.

(ii)  Comparisons with the commercial cost of providing professional care are unlikely to be of great assistance and may only serve to distract.

(iii)  When setting up a budget for the sort of lifestyle a child should be enabled to have, the court should not generally attach weight to the risk that the father may reduce or withdraw his support when the child comes of age (or ceases education or training) thereby obliging the child to adapt to a lower lifestyle at that time.”

41.  The above sets out briefly the history of the developments of the legal principles in relation to financial orders for children in England up to Re P. 

42.  I will now turn back to the position in Hong Kong. The Affiliation Proceedings Ordinance in Hong Kong was repealed in 1997[2].  The power for the courts to make financial orders for children born out of wedlock now appears in s.10(2) of the GMO, which was amended in 1997 to provide a wider range of orders which the court is empowered to make. 

43.  S.10(2) of Guardianship of Minors Ordinance (“GMO”) now reads as follows:

“ (a)  an order requiring payment to the applicant by the parent or either of the parents of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that parent;

(b)  an order requiring payment to the applicant by such parent or either of such parents of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;

(c)  an order requiring the securing to the applicant by such parent or either of such parents, to the satisfaction of the court, of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;

(d)  an order requiring the transfer to the applicant for the benefit of the minor, or to the minor, by such parent or either of such parents, of such property, being property to which the parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of that parent;

(e)  an order requiring the settlement for the benefit of the minor, to the satisfaction of the court, of such property, being property to which such parent or either of such parents is so entitled, as the court thinks reasonable having regard to the means of that parent. ”

44.  Furthermore in 1997, s.12A of GMO was introduced to extend the duration of the financial orders for children to beyond the age of 18 in certain circumstances, in line with the provisions in Matrimonial Proceedings and Property Ordinance (“MPPO”).

45.  In the case of a child of the family in matrimonial proceedings, s.7(2) of MPPO sets out the factors to which this Court shall have regard in exercising its discretion in making financial orders for the child. However, no factors, whether along the lines of s.7(2) of MPPO or paragraph 4(1) of Schedule 1 of the Children Act 1989, have ever been incorporated into our GMO.

46.  I would further point out that paragraph 1(1) and (2) of the Schedule 1 of the Children Act 1989 are in fact slightly different from our 10(2) of the GMO.   Paragraph 1(1) and (2) and the Children Act 1989 reads as follows:

“1. (1) On an application made by a parent or guardian of a child, or by any person in whose favour a residence order is in force with respect to a child, the court may—

(a)   in the case of an application to the High Court or a county court, make one or more of the orders mentioned in sub-paragraph (2);

(b)  in the case of an application to a magistrates' court, make one or both of the orders mentioned in paragraphs (a) and (c) of that sub-paragraph.

(2) The orders referred to in sub-paragraph (1) are—

(a)  an order requiring either or both parents of a child—

(i)  to make to the applicant for the benefit of the child; or

(ii)  to make to the child himself, such periodical payments, for such term, as may be specified in the order;

(b)  an order requiring either or both parents of a child—

(i)  to secure to the applicant for the benefit of the child; or

(ii)  to secure to the child himself, such periodical payments, for such term, as may be so specified;

(c)  an order requiring either or both parents of a child—

(i)  to pay to the applicant for the benefit of the child; or

(ii)  to pay to the child himself, such lump sum as may be so specified;

(d)  an order requiring a settlement to be made for the benefit of the child, and to the satisfaction of the court, of property—

(i)  to which either parent is entitled (either in possession or in reversion); and

(ii)  which is specified in the order;

(e)  an order requiring either or both parents of a child—

(i)  to transfer to the applicant, for the benefit of the child; or

(ii)  to transfer to the child himself, such property to which the parent is, or the parents are, entitled (either in possession or in reversion) as may be specified in the order.”

47.  The only test set out in s.10(2) of GMO appears to be what the court thinks is reasonable having regard to the means of the parent against whom an order is being sought.

48.  Further, the power to make orders regarding lump sums in Hong Kong appears to be different from that in England.  In Hong Kong, the Court only has power is to order a lump sum for the immediate and non-recurring needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both under s.10(2)(a) of GMO.  However, under paragraph 1 (2)(c) of Schedule 1 of the Children Act 1989, the court can make an order for “such lump sum as may be so specified”.  Therefore there is power to order a lump sum generally, in addition to the power in paragraph 5(1) of Schedule 1, which states that an order for a lump sum may be made for the purpose of enabling any liabilities or expenses incurred in connection with the birth of the child or in maintaining the child and reasonably incurred before the making of the order to be met.  There also appears to be power for the courts in England to make more than one lump sum (paragraph 1 (5)(a), Schedule 1), which is not the case in Hong Kong.

49.  Notwithstanding the differences in legislation between the GMO and the Children Act 1989, Re P seems to have been relied on by the Courts in Hong Kong.  There have not been too many published cases in Hong Kong in relation to financial provision for children born out of wedlock, but there were two unreported judgments among those submitted to this Court, i.e. K v W (Children-Removal from Jurisdiction) [2006]2 HKFLR 292 and T v J FCMP 38 of 2007 dated 26 August 2008 in which Re P was referred to.

50.  In K v W (Children-Removal from Jurisdiction), Hartmann J (as he then was) referred to Re P when considering the financial support for the children, and allowed an interim maintenance for the children for 12 months factoring in the ‘mother’s allowance’.  Re P was also one of the cases referred to by Judge Bruno Chan in the more recent case of T v J.  

51.  Thus, notwithstanding the omission in our GMO of the factors set out in paragraph 4(1) of Schedule 1 of the Children Act 1989 and the differences between paragraph 1(1) and (2) of the said Schedule 1 and our s.10(2), it appears that the Courts in Hong Kong have been guided by the principles and guidelines set out in the English cases ,particularly Re P, in considering what financial orders are reasonable for the benefit of a child born out of wedlock. 

52.  F’s Counsel, Ms Tsui, does not dispute the applicability of the general principles set out in Re P.

53.  Since Re P, there have been further developments in England concerning financial provision for children of unmarried parents, with Re N (a child) (payments for benefit of child) [2009] EWHC 11(Fam) and N v D [2008] 1 FLR being the latest, I think.  N v D was referred to in T and J by Judge Chan, although neither Ms Tsui nor M has referred this Court to N v D, or any of the recent cases.  F v G [2005]1 FLR 261 and H v M (Also known as F v M) [2006] EWHC 3676 (Fam) were two of the cases since Re P which this Court drew the parties’ attention to, subsequent to Ms Tsui’s Closing Submissions.  To summarise, the generosity of approach envisaged by the Court of Appeal in Re P appears to have been followed in the later cases.  I will be referring to some of these cases in greater detail later in this Judgment.

54.  With the above principles in Re P and the recent approach in mind, I now turn to deal with the present application.

MAIN DISPUTES

55.  M has filed a total of 10 Affidavits and a Form E, whereas F has only filed 1 Affidavit in answer to M’s first 4 Affidavits and a Form E setting out his finances.  The main disputes between the parties are in relation to the following :

(i)  the nature of the parties’ relationship

(ii)  Reasonable Financial Provision for T.

NATURE OF THE PARTIES’ RELATIONSHIP

56.  M has described her relationship with F as a loving relationship and that they had built a very strong bond and trusted each other very much.  M felt aggrieved and deceived by F and during the trial she had at times been emotional.

57.  On the other hand, F’s case is that his relationship with M was purely or largely sexual.  He said he had never given false hope to M that he would divorce his wife and marry M, and had not intended to have any “permanent commitment” in their relationship, nor would he do so in the future.

58.  Initially in her 1^st Affidavit, M had said she was spending 11 hours a day, i.e. from 10 am to 11pm every day at F’s home between September and November 2005.  This was denied by F.  During the trial, and in her Closing Submissions, M clarified and said that except Wednesdays, she would be at F’s home for about an hour in the morning between 10 to 11am to have breakfast with F, and then after breakfast, M would leave to pick up B.  M would then return to F’s home at about 6 to 7pm, and leave after midnight.  On Wednesdays, she would arrive at F’s home around 6pm, had dinner with him at his home and then with him until 11 pm.

59.  Further, when F’s girlfriend visited F which appeared to be at least once a week, F said he would tell M to leave.  This was not contradicted by M.

60.  The parties never cohabited.  The only time when M slept overnight at F’s home during their 2 year relationship was a period of 4 days after she had a miscarriage.  Even for these 4 days, whether she was sleeping in F’s bedroom was disputed. 

61.  It is not disputed that from December 2005 onwards she was formally employed by F.  From then on, M clearly played two roles, one as F’s employee / personal assistant, and one as F’s lover.  M said she had contributed towards the flourishing of F’s career during the period she was with him, and that 2005-2006 was the most successful year for F since he arrived in Hong Kong in 2001.  During cross-examination, Ms Tsui had put to her that it was part of M’s job duties to help F, and M’s reply was that she had helped like his wife.  I do not doubt that M would have tried to help F in his career/business in whatever way she could, whether as his personal assistant or as his lover, and that she had treated F well during the period of their relationship.  However, F has worked hard for the past 40 years and has continued to do so, and I am equally in no doubt that his successes and achievements today have largely been due to his own efforts.

62.  In M’s 7^th Affidavit, she produced 71 SMS messages sent to her allegedly from F’s mobile telephone from March 2007 to April 2008.  F said he was not sure whether those text messages were correct as he did not have a record of them, and further said they were taken out of context.

63.  M has not shown the messages she sent F, only those from F. Only 8 of those messages were between March and November 2007, and those, in my view, were mainly ordinary cordial exchanges.  By way of example, the message sent by F to M on 13 May 2007, just after the birth of T, was “Congratulations, I expect you are very relieved and excited, pleased to hear all is well, hope you and T have many joyful times together.”  The rest of the 63 messages were from January 2008 to April 2008, 7 of which was after M’s then solicitors had sent a letter to F.  Some of these messages contained expressions of love by F.

64.  M has undergone one marriage and has a daughter by the time she met F.  She was 33 years old at that time.  She is an extremely intelligent lady with higher academic qualifications than F.  She said she was convinced by F that he had actually separated with his wife for 1½ years.  It was correct that F and his wife were living in different countries, and from one of the messages sent by F, he was telling M that his wife knew he wanted a divorce.  Notwithstanding what he said, there was no evidence that F ever said to M that he was going to divorce his wife to marry M.  In fact, according to M herself, F had told her that he would not divorce his wife.  (A1:11) 

65.  M also said that F had convinced her when she first met F that his girlfriend would soon go away.  During the period of his relationship with M, F continued to see his girlfriend and maintained his relationship with her, and when his girlfriend turned up, he would ask M to leave.  M admitted to be fully aware that throughout their relationship F had continued his relationship with his girlfriend who would visit F once a week, each time staying for 5 or 6 hours (A1:51 para 4).  In paragraph 13 of M’s 2^nd Affidavit, M further set out information on F’s financial arrangements with his girlfriend.  M has also said in her 1^st Affidavit that she and F sometimes had conflict or arguments over the relationships between F, her and his girlfriend.  Thus, F never tried to hide his continuous relationship with his girlfriend from M.  The only time when his girlfriend left him was in December 2007, and apparently F was so upset that he lost 14 pounds.  Again, F never tried to hide his feelings for his girlfriend from M. M said it was when F told her that he was seeing his girlfriend again that they finally broke up in March 2008.

66.  According to M, F had a promiscuous life before he met her (A1:139).  Even during their relationship, F apparently had an affair with a Filipina maid, and this, according to M, led to the parties’ separation in April 2007.  

67.  To summarise, whatever M may now say, and F might have expressed love for her as appeared in the text messages, I find that there was no evidence of any promise of any long term or life time commitment on the part of F, nor was there any sufficient evidence that F had deceived her in any way. 

68.  I am of the view that M and F entered into the relationship as consenting adults with their eyes wide open like the parties in the case of T and J.

69.  I do not, however, find that the relationship between M and Fto be as casual or turbulent as the parties in T and J, or purely or largely sexual as F has put it.  Notwithstanding that there was no intention of any long term commitment on the part of F, he and M were clearly lovers and  he did show love and care for M, even though it was perhaps not to the same degree as M.  In fact, as F had summed it up quite correctly during the trial, when there were two people in a relationship, each could have a different view, and that it was obvious that M’s view of their relationship was different from F’s.

70.  M has not disputed what F said about him not wanting a baby.  F clearly did not want to have a baby.  F’ s name does not appear on T’s birth certificate even though he does not deny paternity.  At one stage during the trial, F appeared to be willing to consider adding his name as father on T’s birth certificate, but apparently after obtaining legal advice, he then decided against it.  About 9 or 10 months after F and M started their intimate relationship, F ceased taking any protective measure, apparently to accommodate M (A1:10), and thereafter other measures were adopted.  There was, however, no allegation nor was there any or any sufficient evidence that M had deliberately planned the pregnancy.  As in Re P, M and F never lived together, nor did T ever lived with her father, and Bodey J has said in Re P that the length and nature of the parents’ relationship and whether or not the child was planned is generally of little if any relevance (although later in F v G, this view was not shared by Singer J where the parties had lived together with their child).  The fact remains that T was born.  T is innocent and her welfare, whether paramount or not, is a very relevant consideration for this Court.

PARTIES’ RESPECTIVE FINANCIAL SITUATION

71.  Before I consider the reasonable provision for T, I will first of all set out the parties’ respective means.

F’S MEANS

72.  According to F’s Form E filed in September 2008, his income from August 2007 to July 2008 averaged just under HK$428,000 per month or about HK$348,000 net (less tax of about HK$80,000), plus a HK$35,000 monthly housing allowance if he moves out from quarters.  In addition, he receives discretionary gratuities of about HK$55,000 per month.  In F’s Form E, his monthly expenses were about HK$140,000 per month, but this included the monthly sum of HK$20,000 which he is now paying for T and a monthly sum of HK$80,000 for his taxes.  It is not disputed that F transfers his entire earnings, after defraying his personal expenses and Hong Kong taxes, to Australia to be held by his wife.  The earnings are kept in bank accounts in his wife’s sole name and his wife has further invested in properties in her own name.  F, however, accepts that notwithstanding such properties and bank accounts being held in his wife’s sole name, he should be entitled to 50% thereof.  In F’s Form E, he gave a summary of his net assets to be in the region of HK$28.6m, based on 50% of the assets held in his wife’s name, at the then exchange rate of AUD 1 @ HK$6.67.  Apart from the sale of an investment property, his capital position, as disclosed, has remained more or less the same at the time of the trial, save that the Australian dollar has dropped as against the Hong Kong Dollar.  Of his assets, the matrimonial home of F and his wife in Woollahra, New South Wales was valued to be AUD 2.5m, at the present exchange rate of about AUD 1 @ HK$5.56, would now be about HK$14m, instead of about HK$16.675m at the time of the Form E. 

73.  F has said during the trial that he believes that for the current racing season, his income could drop.  M disputed this and during the trial, M produced A-15 to show that F earned HK$2,768,098 from September to February 2009.  The earnings for March to August 2009 are at the moment not known yet.  Anyway, this is really not that important, since it has been accepted on F’s behalf that he is able to meet any order which this Court could reasonably be expected to make.

74.  M submits that F is a “very wealthy” father.  It appears that M believes that F and his wife have other assets which have not been reflected in his Form E and which she was seeking further information in her summons issued in December 2008.  In her Supplemental Submissions, she has submitted that he and his wife have assets over HK$55m, but she is calculating the combined assets of F and his wife. Even on her figures, assuming F has 50%, then F’s interest would only be about HK$28m.  Anyway, notwithstanding what M says, F is clearly nowhere near the same level of the “fabulous wealth” of the international businessman father in Re P, who conceded that he could pay a lump sum of 10m pounds if ordered to do so, and this was in 2003.  Ms Tsui has submitted also that F is not ‘very wealthy’ as the father was in F v G, or a ‘multi millionaire’ as the fatherinH v M.  M has submitted that F is of the same wealth or could be wealthier than the father in F v G.  The entrepreneurial father in F v G was treated to have capital assets of over 4m pounds and an income approaching 500,000 pa, but that father’s capital position was more complex and the figure of 4m pounds excluded value of his car and his collection of wine valued at over 200,000 pounds and if one reads between the lines, there was suggestion that the father was worth a lot more.  M has also submitted that F is “definitely” a multi-millionaire, but she is referring to Hong Kong Dollars, whereas it was sterling in H v M.  I accept what Ms Tsui has said, that F is not a billionaire nor “very wealthy”, compared to the fathers in some of the English cases.  However, F certainly has considerably more financial resources or much wealthier than M.

M’s MEANS

75.  So far as M is concerned, in her Form E also filed in September last year, she gave her occupation as a housewife with no income.  Mr. L used to pay HK$14,000 per month for B’s maintenance but in June 2006, according to M, Mr. L had financial problems and the amount of maintenance for B was reduced to HK$5,000 per month and then in April 2007, it has gone up to HK$8,000 per month (A1:21).  During the trial, it seems that the figure has gone down to HK$6,000 per month.  M disclosed net assets of about HK$1.44m in her Form E, including her MPF and the Shatin Flat.  By the time of the trial, she claimed that the market value of the Shatin Flat had dropped from HK$2.3m to about HK$1.8-1.9m.  She has rented out the Shatin Flat in January 2009 for a monthly rent of HK$6,500.  She had bought a 2002 530I BMW on 22 January 2009 by trading in the old Camry which F transferred to her in about November last year.  I will deal with the issue of the car later in this Judgment.  She valued the BMW to be now about HK$100,000 to HK$110,000.  She had sold her shares, and her bank balances had drastically reduced, and she had to obtain 2 loans totalling HK$90,000 respectively in November and December 2008 as she needed money for the move to the Mei Foo Flat and at that time, the Shatin Flat had not yet been rented out.

76.  M registered a business called G’s at her mother’s address on about 5 November 2007, and the nature of the business described on the current Business Registration Certificate is “Hair products and Ginger Products” (A-7).  She claimed that she had wanted to carry out some research into hair dye products, but has not yet started this business.

77.  M further claims that she cannot stand or sit for too long as there is degenerative change in her L5S1, and this gives her pain in the lower back.  She has produced a certificate from a doctor dated 27 August 2008 for consultation and laboratory tests and the diagnosis was hyperthyroidism, back pain, and carpal tunnel syndrome (A-6).

78.  In her Form E, she gave a monthly total of her expenses for her and T, which amounted to HK$53,387.  At the trial, she said the main changes were the present rental of the Mei Foo Flat, and the car park.

REASONABLE FINANCIAL PROVISION FOR T

79.  I will now consider what should be the reasonable financial provision for T.  There are 5 issues here:

(i)  Standard and cost of the accommodation

(ii)  T’s education expenses

(iii)  Trust Fund

(iv)  Car

(v)  “Mother’s Allowance”

(vi)  Reasonable Budget for T

(i) Standard and cost of accommodation

80.  Before M married Mr. L, she was residing with her mother together with an Indonesian maid in her mother’s self owned flat in Homantin.  After marriage, she and Mr. L resided in quarters in Sheung Shui.  In November 2003 when she was having marital problems with Mr. L, she said she started to return to her mother’s home about 3 or 4 nights a week.  After she started an intimate relationship with F, M bought the Shatin Flat for HK$1.68m in May 2006.  She said this was because she and F were getting on well, she wanted to move nearer to F.  She used her own savings to pay for the down payment and the rest was paid by way of a mortgage loan.

81.  After moving into the Shatin Flat in June/July 2006, M said she hired a maid as she anticipated B coming to live with her.  She said during cross examination that after the addition of T, she wanted to improve their living condition, so long as it was within her ability to do so.

82.  M was cross examined as to why even as late as her written opening submissions, she did not disclose her moving to the Mei Foo Flat, whereas she did disclose the purchase of a new car.  In both her 7^th and 8^th Affidavits filed respectively in December 2008 and early February 2009 shortly before the trial, M gave the Shatin Flat address although she had already moved by then.  Under cross-examination, M tried to explain that this was because she did not wish any letters to be sent to the Mei Foo Flat as she was worried that her landlord might open her letters.  M had also said that she had sought an opinion from a lawyer, and that she was given some wrong advice.  She was not willing to disclose the name of this lawyer.  She then apologized for not disclosing her move earlier.  She said her move to the Mei Foo Flat should not affect her case much, and she further said that if this Court did not order the provision of a flat for her, at least she was able to provide a more comfortable home for the children for awhile, even if they were to move in one or two months time.

83.  According to M, the Shatin Flat is 507 sq ft in gross area, and the net area is only about 410 sq ft, with 2 bedrooms.  Apparently, she and T used to occupy on bedroom, with T sleeping in the playpen, and B and the maid shared the other bedroom.  M said the Shatin Flat was too small, as T needed a bigger bed and that was why she moved to the Mei Foo Flat, which is 890 sq ft gross, or about 800 sq ft net, with 3 bedrooms.  M and T still occupy the same bedroom, whereas B now has one bedroom to herself, and the maid occupies one bedroom.  Although T still shares the room with M, she now sleeps on a folding bed by her mother’s bed.  The rent for the Mei Foo flat is HK$12,500 per month, excluding the carpark rental.  The carpark is a public carpark for which she has to pay rent of another HK$2,950 per month.

84.  M has rented out the Shatin Flat in January 2009 for HK$6,500.  She still has an outstanding mortgage for which she has to repay HK$8,300 per month.

85.  M has changed her evidence several times in relation to the proposed accommodation.  Initially in her 1^st Affidavit, she was asking F to contribute only 1/3 of the total value of a new apartment of about 850 square feet in the area of her Shatin Flat, which would cost about HK$5m. In her 3^rd Affidavit, she changed her mind and asked F to purchase a 3 bed-roomed apartment either in Homantin or Shatin, which would cost about HK$5m, to be held by a trustee and to revert to F after T attains the age 21 or ceases full-time education.

86.  Shortly before the resumed trial in March, M informed the Court that the landlady of the Mei Foo Flat was willing to sell the flat for HK$3.5m, and she asked that F purchase the flat for her and T, and B, to live in until T reaches the age of 18 or completes full time education, whichever is the later.  Having obtained advice from Ms Tsui, F eventually did make an open offer.  These are F’s Undertakings, mentioned earlier in this Judgment.  However, F has limited the price to be not more than HK$3m, as Ms Tsui informed this Court that they had sought a valuation of the Mei Foo Flat from HSBC, which was only HK$2.64m.

87.  M does not accept HK$3m being the ceiling, and she does not agree to the property being purchased with a mortgage loan.  She asked for a property of HK$3.5m and that F should pay the purchase price outright.

88.  I have to say I do not see there being any urgency for M to move out of the Shatin Flat 3½ months before the trial.  In her Form E, she has already indicated that she intends to move to a bigger apartment and the date of moving will depend on the outcome of this case in “probably March 2009” (A1: 195).  She had already listed this as an item of anticipated expenditure in her Form E.  She signed the tenancy agreement on 7 November 2008 (A-2(a)) and made no mention of this either at the hearing on 8 December 2008 or at the Pre-Trial Review on 23 December 2008, when F’s solicitor was informing Court of M’s claims, including HK$5m for a housing fund. It is therefore not surprising that Ms Tsui attacked M’s credibility saying that she had continued to surprise the Court with new information.

89.  By moving to the Mei Foo Flat shortly before the trial, without informing any one and without waiting for this Court to make a decision on the matter, M has clearly chosen to take matters into her own hands, presenting this Court and F with a fait accompli, leaving this Court with little alternative, since it would not be in the interest of T for every one to move again, when they have only just settled down.

90.  M has referred to the standard of F’s own accommodation, as compared to what she is seeking.  In Hong Kong, F lives in quarters a flat of about 2,000 sq ft, with 3 bedrooms and 2 bathrooms and maid’s quarters.  He lives mainly by himself, with his wife visiting him occasionally.  In February 2009 during the trial, his wife happened to be in Hong Kong.  M and F have maintained separate addresses throughout the period of their relationship.  As mentioned earlier in this Judgment, T has only been to F’s flat on a few occasions for over a period of about less than 3 weeks in February/March 2008 when she was about 9 months old.  T has not had any contact with her father since, nor has she been to his home since.

91.  It is clear from Re P that the starting point should be to decide what housing provision the father should be called on to make, and where the father’s resources permit and the mother lacks significant resources of her own, she will generally need suitable accommodation for herself and the child.

92.  M in the present case does own the Shatin Flat, but is this suitable accommodation for T, with her mother and her half-sister? Initially from Ms Tsui’s List of Issues, it appears that F’s case at that time was that M has her own obligation to provide for her own accommodation and for B. This issue is now largely resolved in that by agreeing to provide F’s Undertakings, F’s position now is that he is willing to purchase Mei Foo Flat or another property for T, but he is only willing to pay up to HK$3m.

93.  It has been said in J v C (Child: Financial Provision) [1998] 3 FLR at 79 at 87 per Hale J that “the child is entitled to be brought up in circumstances which bear some sort of relationship with the father’s current resources and the father’s present standard of living”. This view was endorsed by Bodey J. in Re P.

94.  Looking at F’s standard of living, since he came to live and work in Hong Kong in 2001, he has spent most of his time in Hong Kong, working 7 days a week. Although he has maintained a home with his wife in Australia, he has only returned there almost every year in the summer for about 14 days, and sometimes less.  In Hong Kong, as mentioned earlier, he lives in quarters of about 2,000 sq ft.  F had 2 cars in Hong Kong, a 1993 Mercedes Benz, which he got rid of about 6 weeks before the trial, and the old Camry which he later transferred to M.  He said he got rid of the Benz as the car was very rarely used, although according to M, his wife has a BMW.  He did employ a driver previously, but has not employed one for about 2 years.  According to F’s Form E, his own monthly expenses would be only about HK$ 40,000 per month, excluding the HK$20,000 for T, and the HK$80,000 for taxes.  According to M, F usually spends less than HK$50,000 per month generally, which included credit card payments, maid’s salary, household utilities and others (A1:19), except for the months of July and August (A1:19), and that he probably spends another HK$20,000 per month on his girlfriend, and that his wife is allowed to use AUD 100,000 per year for her own use (A1:19).  All this information was provided by M, which no doubt was gathered by her during her relationship with F.

95.  From the above, I am of the view that F enjoys a comfortable lifestyle but not extravagant.  His home in Hong Kong is spacious by Hong Kong standard, whether for one person or for a couple.  Although his Hong Kong home is not owned by him, he has interest in his matrimonial home in Australia. By comparison, the Shatin Flat was purchased by M only for her and B to live in.  With B entering into the picture and with B and T growing bigger, I agree with M that the Shatin flat was becoming cramped for the three of them, together with a maid.  I am of the view that F should provide a more comfortable home for T.  Having regard to F’s resources and his standard of living, I am of the view that the amount sought by M, i.e. HK$3.5m is reasonable, whether this be the Mei Foo Flat, or another flat.

96.  M is asking to be held in a trust and to be reverted to F when T reaches 21 (M has now accepted that the age of majority should be 18) or ceases full time education.  F offers to purchase the property in his name with an undertaking for T to reside there with M and B until T reaches the age of 18 years old or completes first tertiary education as set out in F’s Undertakings.  This proposal eliminates the formal setting up of a trust with independent trustees, which no doubt will save time and administration costs.  I find F’s proposal reasonable.  The other issue is that M wishes F to pay for the property outright.  F, however, undertakes to purchase the property with a 30% down payment and the balance by way of a mortgage for not more than 10 years, with an insurance policy to cover the outstanding amount of the mortgage in case of his death during the term of the mortgage.  He has also undertaken to pay for necessary maintenance and repairs and internal and structural problems as set out in F’s Undertakings.  According to Ms Tsui, the monthly mortgage repayment would be about HK$20,000 and the insurance premium for the Mortgage Protector Plan would be another HK$1,750 per month (R-5).

97.  M has made reference to F buying a house in 2007 for his adult son from his first marriage (then about 23 years old) for AUD 1.4m.  F says the house is now worth about AUD 1.26m, which was about HK$8.4m at the time he filed in Form E, and about HK$7m now, due to the drop of the AUD.  The house is held in the name of a trust for his son.   The circumstances as to why F made this purchase are unclear, but it is obvious that F has a much closer relationship with his son than with T.

98.  In F’s Form E, his main accounts are his Premier intergrated accounts held jointly with his wife at HSBC.  At the date of the Form E, there was about HK$1.3m in his Premier current account, and about HK$265,000 in his Premier savings account.  F has said during the trial, he happened to have HK$ 1m available in his accounts in Hong Kong, and thus, if he were to buy the property with a mortgage, he would not need to transfer funds from Australia.  The other bank accounts in Australia are held in his wife’s sole name, and there are about AUD 2.8 m held in his wife’s sole name.  Although F admits he has a 50% in these accounts, the monies appear to be in the control of his wife, being the sole account holder.  In 2007, when F asked his wife to give him AUD 1m to purchase a house for his son, there was some evidence of reluctance on the part of his wife.  M said at the time F said his wife tried to divorce him due to the withdrawal of the AUD 1m for purchasing the house.

99.  It was said in Re C (Financial Provision) [2007]2 FLR 13  that there was no rule of law that stipulated that a wealthy parent, providing for his child and the child’s other parent, must purchase a property through a trust rather than finance a rented property, even though in that case, the Judge eventually preferred the conventional solution of the father’s proposal to purchase a property through a trust arrangement rather than the mother’s preference to remain in the then rented property.  There have been no cases that I am aware of to say that suitable accommodation cannot be provided by a father through other means or that such accommodation must be purchased outright, without any mortgage.

100.  To meet M’s concern that something could happen to F before the property is paid off, H is proposing a Mortgage Protector Plan to cover any unpaid mortgage instalments, with death, permanent and also temporary disability benefits (R-5).  M’s main reasons for wanting F to pay for the property outright appear to be that he has purchased the house for his son outright, and that F is very wealthy, and can afford to pay HK$3.5m outright.  I understand that M is also concerned that if F fails to pay the mortgage after he leaves Hong Kong, she may have difficulty to enforce such payments.

101.  In view of the assets in Australia being held in F’s wife’s sole name and controlled by her, transfers of funds from Australia may result in delay.  In Hong Kong, F only has cash of about HK $1.6m.  Having considered all the above, I am prepared to accept F’s proposal to pay for the property by way of a mortgage, except that I am of the view that F should pay up the balance of any outstanding mortgage loan if and when he moves out of Hong Kong.

102.  In the above circumstances, I am therefore prepared to accept paragraphs (a)(1) to (a)(4) and (d)(10) of F’s Undertakings, which F has offered, subject to F being willing to increase the amount to not more than HK$3.5m, with the down payment to be at least 30%, i.e. HK$1,050,000 and the balance to be paid by a mortgage loan, which has to be paid up if and when he moves out of Hong Kong for good, and the purchase to be effected within 3 months.  The insured amount under the Mortgage Protector Plan would be up to HK$2,450,000.  In the event such undertakings are not forthcoming, then I will make an order requiring a property of not more than HK$3.5m to be purchased and settled for the benefit of T with terms along those set out in F’s Undertakings and above.  W has indicated that she is willing to provide those part of W’s Undertakings in relation to the property, which should also be incorporated in the Order.

(ii) T’s Education Expenses

103.  In most cases concerning financial provision for children, the expense of the child’s education is usually taken care of, generally, by the father direct with the school.  So far as T’s education expenses are concerned, F is now prepared to offer an undertaking to pay for T’s tuition fees, school transportation and to purchase a debenture from the Australian International School.  I find his offer reasonable since his undertakings will cover any fluctuation in the amount of tuition fees and school transportation as T grows older and this will avoid frequent variation applications due to the increase in such expenses.  I therefore accept F’s undertakings (b) (7) and (8) in this regard.  W has also indicated that she is willing to provide that part of the W’s Undertaking in relation to the repayment of the debenture to F, and such will be incorporated in the Order.

(iii) Trust Fund

104.  M has asked for a trust to be set up in the sum of about HK$3m.  The main reason for this given in her 6^th Affidavit is that F is likely to leave Hong Kong after he reaches the age of 60 and that all his assets are in Australia and held in the name of his wife.  The reasons why M is asking for a trust is because she says that in case of any emergency such as sudden death of F, or when F leaves Hong Kong permanently or in case he is bankrupt, then she can have access to cover the agreed amount of HK$20,000 per month for T (A1:173).

105.  To meet M’s concerns, F has undertaken to take out an insurance policy on his life in the sum of HK$3m with T as the beneficiary.  Such will cover T’s living expenses and education expenses in case of his sudden death.  F has further undertaken to use the property to be purchased as security for R’s periodical maintenance.

106.  F’s contract  is renewable every year.  There is no evidence that his contract will not be renewed every year until normal retirement age, which is 65 and which is another 10 years from now.  M accepts that 65 is now the normal retirement age and not 60(A-17).  F has undertaken that should he decide to leave Hong Kong for good, he will inform M of such decision forthwith.  There is no evidence that if F does leave Hong Kong, he will be moving to any country other than Australia.  Australia is a reciprocating country under the Maintenance Orders (Reciprocal Enforcement) Ordinance.  In the event that F fails to comply with any maintenance orders made by this Court, there is no reason, so far as I am aware, why such maintenance orders cannot be enforced under that Ordinance.

107.  F has no liabilities, as disclosed in his Form E.  He appears to be financially sound, and there is no evidence of him going into bankruptcy.  Further, F has further offered the property to be purchased as an additional security in case of any other emergency, and which will be paid up upon him moving out of Hong Kong. 

108.  I therefore find F’s proposals reasonable and do not see the need of a separate trust being set up for T.  Thus, I accept F’s undertaking (b)(5) and (6) provided that T be named as the sole beneficiary, with a further undertaking from F that he will not change the name of the sole beneficiary, until T has reached the age of 18 or completes her 1^st full time tertiary education, whichever is later.  I further accept F’s undertaking (c)(9).

(iv) Car

109.  In her 1^st Affidavit M had claimed for a new Toyota Camry to replace the old one.  In her 6^th Affidavit, M set out her claim for a sum of approximately HK$300,000 to purchase a new 5 seater car of not less than 3000cc for the use of her, T and B.

110.  During the parties’ relationship, F’s driver at that time would drive them around, but for the last two years, F has not employed a driver and before T was born, M was also allowed to drive F’s 1997/8 Toyota Camry.  After T was born, M continued to have the use of the Camry.  In about September 2007, the parties apparently had a conversation about T’s support and the use of the Camry car.  F said they had a verbal agreement that he would pay HK$20,000 per month for child support and expenses of the car until October 2008 when they would review the arrangements.

111.  Then in about November 2007, F said he received a notification that the Camry was unlicensed, and he was concerned.  He then asked to transfer the car to M’s name as he did not wish to be held responsible in case of any accidents.  H asked a friend to speak to M regarding the transfer.  The transfer was effected and thereafter, F has continued to pay the running expenses of the car, such as petrol, tunnel fees and repairs, the arrangement being that M would send the bills to his friend, who would pay M on behalf of F.  F had said at the time they estimated that the expenses would be about HK$5,000 per month.  Then F would reimburse his friend.  According to F, there was supposed to be a review of such arrangements in October 2008, but as the trial was approaching, he was advised by his lawyers to continue the status quo until the Court has made a determination on this matter. 

112.  Less than a month before the commencement of the trial, on 22 January 2009, M suddenly decided to purchase a second hand BMW 530I as she claimed that the old Camry had worn out “very seriously” in the last 12 months.  The BMW cost a total of HK$125,520 (A1:448).  She traded in the old Camry for HK$9,000, and obtained a loan of HK$70,000 by hire purchase, and the balance of HK $46,520 was paid by her.  She has continued to send bills for running expenses to F’s friend for payment, although for the last couple of months, she has not been paid in full.  F said this was because he noticed that the bills had gone up.  Anyway, during the trial, F had agreed that instead of going through his friend, M could send the bills direct to him pending this Court’s decision on the matter.

113.  The car loan of HK$70,000 is repayable over a period of 36 with a monthly instalment of HK$2,266 per month from 22 February 2009.  Further, M says she has to pay HK$2,950 to Wilson Parking, which manages the Public Carpark at the Mei Foo complex (A-2(b)).

114.  F does not dispute that he had allowed M to use his old Camry and had given the old Camry to her, or that he has been meeting the running expenses of the car.  F, however, says it was a one off gift, and it was not meant for a lifetime commitment to provide M with a car.

115.  There is no evidence as to whether M had a car or not before her relationship with F, although it appears that during her relationship/marriage with Mr. L, she had the use of a car, which was provided by Mr. L.  M also used to be the registered owner of a car parking space in Homantin, which she said she had to sell in November 2007 for HK$170,000 to meet her expenses for T.

116.  M’s case is that she needs a car to drive T to the kindergarten in HLY.  When asked why she did not choose a kindergarten nearer to the Mei Foo Flat, M’s response was as B had attended the same kindergarten in Hong Lok Yuen about 4 years ago, and M was satisfied by the standard there, she would like T to attend the same kindergarten.  She thus drives T there every Tuesday to attend the pre-nursery class.  T’s nursery hours are from 1:30 pm to 3 pm.  B, on the other hand attends a primary school in Mongkok.  Previously, when they were living in Shatin, B would take the school bus.  After their move to Mei Foo, i.e. from November 2008, M would drive B to school every day.  B’s schooling hours are 1:30 pm to 4:30 pm.  On Tuesdays, apparently, M would first drive B to her school and then drive T to HLY. Under cross-examination, M admits that sometimes T could even be as much as half an hour late for her nursery class, which means that she only gets to attend class for 1 hour.  M insists that this is still worth the journey as there are not that many kindergartens with English speaking/Western children.  Ms Tsui, however, submits that M has “created a situation” to justify the need of a car even after she moved from Shatin to Mei Foo.

117.  M has also said in cross-examination that she needed a car to take the children, to the Jockey Club, the Kowloon Cricket Club, and to outings in Sheung Shui or Stanley etc.

118.  In J v C (Child: Financial Provision), the mother had sought a lump sum for a modest one year old family car in the sum of 9,000 pounds.  In that case, the parents’ relationship started about 18 months before the child was born.  It was a turbulent relationship and broke down whilst the mother was pregnant with the child.  The parents retained their own addresses during their relationship, with the father spending varying amounts of time at the mother’s home.  When the father met the mother, he was working as a club doorman and in the car valeting business.  After the relationship broke down, the father made some small contributions towards the household.  The mother apparently broke down when she was driving an old car to which she had access and asked the father to help her.  The father felt sorry for her and so he bought her an old Cortina, but the mother said this did not last very long either.  This was before his lottery win. The father then won 1.4m pounds on the national lottery.  After he won the lottery, his lifestyle improved immensely e.g. he bought a 5-bedroomed house for 180,000 pounds outright from his winnings and a 70,000 pounds Porsche motor car.  Hale J (as she then was) agreed with H v P (Illegitimate Child: Capital Provision) [1993] Fam Law 515 that the child is entitled to be brought up in circumstances which bear some sort of relationship with the father’s then resources and the father’s then standard of living.  In J v C, the child in question also had two half-sisters, and it was said that whilst the father was not responsible for them, who had a different father, the child had a need to live with them and, in practical terms, with their mother.  It was ordered, inter alia, there be capital provision for a reasonable family car.  In J v C, the father had acknowledged that a car was sensible and the car sought by the mother was modest.  Hale J also found it a reasonable requirement. 

119.  Although F in the present case says that the old Camry was an one off gift, M has had access or use of a car provided by F throughout their relationship and after T was born.  Although driving T all the way to HLY to attend nursery class for about an hour once a week may appear to be a “created” reason for the need of a car, T will be attending nursery for longer hours come September this year and furthermore, F has not come up with any proposals as to whether there are any other suitable nurseries nearer to where T lives, nor has F provided the Court, by way of comparison, with any information as to the cost of public transport if M were to travel around, say by taxi.  M now has two young children to care for, and I accept that it would be sensible and more convenient for M to drive them to clubs and outings or other activities, rather than taking taxis or other public transport.  

120.  Having considered the circumstances of this case, I find that the car is a reasonable requirement.  F had not disputed dispute that the Camry often needed repairs.  F’s case throughout has been that he needs not provide M with another car, and further he has not provided this Court with any evidence as to the cost of what he thinks would be a suitable car in the event if this Court were to find that a car would be required. During cross examination, Ms Tsui had put to M that she could have purchased a smaller car of 1500 cc of a 3 year old Honda or Toyota, it may well be the case but there was no evidence provided by F, by way of comparison, as to the cost of such 1500 cc Honda or Toyota.  M had said that in February 2008 the car door at the driver’s side was not accessible and that she had to access the driver seat through the door of the passenger seat on the other side of the car.  This was repaired.  With two young children, M said she was concerned over their safety in view of the constant repairs to the old Camry and that she went to look at a second hand car shop near the Mei Foo Flat and in the end settled on the 2002 BMW which she said was a good deal.  I do not find this unreasonable. M bought the BMW with a hire purchase loan and so far has only paid several months of instalments.  She asked for a sum of HK$125,520 which would enable her to pay off all outstanding instalments.  I find this reasonable.  I am of the view that the sum of HK$125,520 was a liability or expense reasonably incurred by M in maintaining T before the making of the order under s.10(2)(a) of GMO . Thorpe LJ has said in Re P that this section is to be construed broadly and I therefore will make an order that F is to pay this sum for the car.

121.  In view of my finding that the car is a reasonable requirement, M would need to pay for rental of a car parking space.  Previously when she was residing at the Shatin Flat, the monthly rent was only HK$900 per month but M says at Mei Foo the rental of a car parking space run by a commercial carpark management company is HK$2,950 per month.  I find this amount high and I think M should try to find alternative parking space.

122.  So far as the running costs of the car are concerned, A-16 adds up to a total of HK$98,350 being paid by F from May 2008 to March 2009, averaging HK$8,941 per month for those 11 months.  For 9 of those 11 months, i.e. up until 22 January 2009, a total of HK$81,000, i.e. HK$9,000 related to the old Camry.  In her Form E, M claimed a monthly sum of HK$4,752 for her and T’s share, but in the Letter, M claimed that was underestimated and it should be a total of HK$9,848 per month for all 3 for them, or HK$6,565 for her and T.  In the Letter, M had provided a breakdown, which included petrol of HK$5,000 per month, the rental of the then car parking space of HK$900 per month, car wash, car steam and wax  of HK$664 and car maintenance for the old Camry totalling HK$2,000 at that time, and registration, insurance and parking fees during outings.  M mentioned during the trial that the last repair bill for the old Camry being about HK$14,500.  She had also produced 4 bills from 28 September 2007 to 15 February 2008 of average about HK$1,800 per month.  Since the BMW is only recently acquired and being a newer model, I do not expect there will be any major repair costs within a short time.  However, the insurance costs may be higher.  On the other hand, petrol has come down.  With both children spending longer hours at school coming September, there will be less time for outings.  M has apportioned the running costs to be 1/3 each for her, B, and T respectively.  I would prefer to deal with the overall budget on a broad brush basis, rather than providing any arbitrary apportionment.  Furthermore, it seems that previously all the bills were paid by F without any apportionment.  Overall, I find a budget of HK$8,000 per month to be reasonable for the running and maintenance expenses of the car, and the rental of a car parking space. 

123.  I will also not make any apportionment in relation to the purchase price of the BMW, since in J v C, there did not appear to be any such apportionment for the purchase of the car, even though the child in that case was living with two half-sisters.

(v) “Mother’s Allowance”

124.  M initially had instructed solicitors to write to F on 25 March 2008 to seek, inter alia, “compensation” for herself, and it was stated in that letter that M had ceased to work after giving birth to T and was looking after T on a full time basis, and by reference to her salary and benefits received before giving birth, she sought HK$50,000 per month as her “compensation”.  M further demanded the compensation of HK$600,000 for a year from May 2007 to April 2008 be paid to her forthwith.

125.  In M’s Originating Summons and her 1^st Affidavit, again she claimed “compensation” but she had reduced her claim to HK$38,000 per month, which again according to her, this amount was by reference to the salary and benefits from her former employment before she gave birth.

126.  It was only in her 6^th Affidavit filed on 10 July 2008 that she referred to her claim as the “mother’s allowance” for the care of T and she seeks a “mother’s allowance” until T attains the age of 6 or enters first year of primary school.  The amount she claims has remained HK$38,000 per month.

127.  The first leading case on what is now commonly called the “mother’s allowance” is Harountunian v Jennings (1980) 1 FLR 62. The Court of Appeal in England had before it an appeal by the father from an award made in favour of the mother of a child born out of wedlock which included an allowance for the mother.  The appeal was dismissed.  Sir George Baker P had said at p.65:

“ It has long been accepted in fixing maintenance in this Division that the mother may well be forced and rightly forced to give up employment or not to take employment in order to look after a child.  It seems to me perfectly proper that that should be reflected in a maintenance order for the child.  … After all there is long historical precedent for accepting that a rich man will pay more than a poor man for the maintenance of his child, legitimate or illegitimate.”

128.  In Haroutunian v Jennings, the mother had been an airline hostess, but as the child was very young she had no employment and was looking after the child, her income at the time of the trial being social security payments and family allowances, and the amount of maintenance for the child appeared to have been assessed with reference to the benefits she was receiving at the time.  From my reading of the case, there was no evidence that the amount awarded was based on her previous income as an airline hostess or her earning capacity.

129.  The proposition of inclusion of a “mother’s allowance” in the maintenance for a child was subsequently supported by Ward J in A v A (A Minor: Financial Provision).  In determining the financial needs of the child the subject of a maintenance claim he said at p. 665:

“[The child] has a financial need to be able to remunerate the full-time staff that would have to be employed to look after her, 24 hours a day.  Her mother does this, for nothing.  It is now well established that the amount of maintenance for the child can include an allowance for the mother:  Harountunian v Jennings (1980) FLR 62).  …There is no evidence before me to enable me to quantify this precisely.  … I bear in mind a broad range of imprecise information from the extortionate demands (but excellent service) of Norland nannies, to au pair girls and mother’s helps, from calculations in personal injury and fatal accident claims and from the notice-boards in the employment agencies I pass daily.  I allow 8000 pounds under this head.  It is almost certainly much less than the father would have to pay were he to be employing staff, but to allow more would be- or would be seen to be- paying maintenance to the former mistress who has no claim in her own right to be maintained.”

130.  The total amount which the father in A v A was ordered to pay was 20,000 pounds a year including the mother’s allowance of 8,000 pounds.  The school fees and usual school extras were in additional.

131.  Ward J (as he then was) indicated in his Judgment that the 8,000 pounds a year which he allowed for the “mother’s allowance” would be much less than staff costs, but paying more would be seen to be paying maintenance to a former mistress which she was not entitled to.

132.  Then, as I have set out earlier in paragraph 40, Bodey J set out the relevant considerations, including those for “mother’s allowance”. Later, came F v G (Child: Financial Provision).  In F v G, the mother had already gone back to work by the time of the trial.  In setting the amount to be paid as periodic maintenance, Singer J adopted a generous approach and decided that the cost of the nanny be notionally allocated to the mother’s salary, leaving the mother with about one third of her net salary for her own use, and the father was to pay the mother the full primary carer’s allowance.  Singer J had said that by notionally allocating the cost of the nanny to the mother’s salary, this would allow the mother to make her own decisions about employment.

133.  In H v M (also known as F v M), the father was a multi-millionaire who had a two-year relationship with the mother which ended before the child’s birth.  The mother had both graduate and post-graduate qualifications, had had a career in banking to which she had not yet returned.  The mother had an 8 year old daughter by a different father, from whom she received maintenance under a court order which did not include a carer’s allowance.  The father and the mother had entered into a written agreement negotiated through experienced family lawyers which had never been made into an order.  It was held, inter alia, that the agreement gave insufficient consideration to the child’s future housing requirements and the desirability of these bearing some relationship to the father’s lifestyle, and that following Singer J’s approach F v G, in cases involving a wealthy father and a mother who ultimately chose to work, it was appropriate to require the father to pay a full carer’s allowance and the mother to pay for child care and to retain any surplus (page 928, November [2006] Fam Law). 

134.  Turning to the Hong Kong cases provided to this Court, the earliest relevant one was K and W HCMP 1518 of 1996, unreported judgment dated 27 June 1997 of Deputy Judge Hartmann (as he then was) (see also K and W [1998]1 HKLRD on matters arising out of the judgment).  The mother therein was claiming HK$6,000 per month, being the cost of hiring a full time amah, and HK$18,000 per month, being what she believed she would then be earning if she had kept her old job.  Hartmann J (as he then was) ordered a sum of HK$8,000 per month as the “mother’s allowance”, saying that just as it would be perfectly proper for the mother to claim the expense of a maid to look after the child while she was working, he considered it proper for the mother - at this time at least when the child was of such a young age and very dependent, to claim a remuneration for herself for taking on that duty herself.  The child was at that time about 5 years old.  The total maintenance ordered for the child was eventually HK$21,000 per month.  The father and the mother lived together for a period of about 4 years during which the child was born.  The father did not plead inability to pay, and accepted that he possessed a very high degree of affluence which was sufficient to pay for the benefit of the child whatever the Court considered reasonable.  This case was before Re P, which was in 2003.

135.  In a later case, (not connected with the earlier case mentioned above), K v W (Children-Removal from Jurisdiction), [2006]2 HKFLR 292, the mother was seeking leave to permanently remove two children, of about 5 and 1 years old, out of jurisdiction, and their interim maintenance.  Hartmann J (as he then was) had referred to Re P, and pointed out that while maintenance would not payable directly to a mother as maintenance for herself, if the best interest of the children dictated that she should not work then financial support payable to them could take this into account, and made an interim order factoring in an allowance for the mother for 12 months.

136.  I now turn to the unreported judgment of Judge Bruno Chan of T and J, which Ms Tsui submits is ‘highly relevant’ to the present case.    The parties therein had a pair of twins out of a 2 year relationship. 

137.  In paragraph 24 of his judgment, Judge Chan has referred to N v D  [2008]1 FLR 1629 and said that while the court must always guard against unreasonable claims made on behalf of a child’s behalf with the disguised element of providing for the mother’s benefit rather than the child, it is well established that a child’s need for a carer enables account to be taken of the caring parent’s financial needs, as the welfare of the child is not just one of the relevant circumstances, but also a constant influence on the discretionary outcome.  Judge Chan then went on to refer to Re P.

138.  In T and J, although the father was working in the field of corporate finance, he was out of regular employment about a year before the date of the judgment.  The father had, however, accepted that he had an earning capacity of about HK$100,000 per month.  The father had sold his matrimonial home which was held in joint names with his wife for HK$8.78m, of which he received half share of the net sale proceeds of about HK$1.84m.  He then used part of this amount to repay a previous loan to his parents, and to pay off overdrafts and credit cards, leaving only a sum of about HK$210,000 which he then said had all been spent by the time of the trial, and that he had to resort to relying on his wife’s earnings and her share of the net sale proceeds.  This was met with grave suspicion from the mother.  Eventually, Judge Chan held that the father had the means to pay the orders made.  He further held that by 1 October 2008 the mother should have returned to employment and ordered that the father to pay the mother the sum of HK$34,000 per month as maintenance for the twins until 1 October 2008, and then the sum to be reduced to HK$28,000 per month. Such sum included the rental and the twins’ nursery fees.

139.  In T and J, there was no dispute that the mother did try to return to work in January 2007, about 8 months before the trial commenced, but she had to resign after her helper had quit.  Her helper had quit because of her inability to taking care of the twins and other household chores all by herself, and the mother was claiming that she required 2 helpers.  The mother’s intention was to return to work after the conclusion of the proceedings.  Judge Chan accepted that until such time that the mother was able to employ a foreign domestic helper, she had to rely on part-time local helpers which were more expensive than foreign domestic helpers.  Judge Chan further held that with the twins then being about 22 months old that it was the right time for the mother to return to earn her own living and to obtain the necessary income proof to hire the foreign domestic helper to replace the more expensive local helper, but what Judge Chan had said had to be seen against the background that the mother herself had already chosen to return to work about 8 months before the trial and was herself intending to return to work after the proceedings, and that she should be able to earn HK$17,000 per month.

140.  I am of the view that the circumstances of the present case can be distinguished from T and J.  The father in T and J appeared to have much fewer capital assets, and a much lower monthly income than F in the present case. The mother did go back to work for a short while before stopping and had intended to go back to work after the proceedings.  Further, it appears that Judge Chan was not referred to F v G.

141.  Before M was employed by F, her last regular job was as a university researcher, and was in the region of about HK$18,000 per month.  This was in early 2002.  While she was cohabiting with Mr. L, and pregnant with B, she studied for a Master Degree in Medical Sciences.  Then, during the period 2004 to 2005, after obtaining a Financial Planner’s licence, she worked for about a year and she was only receiving commissions of about HK$8,000 – HK$9,000 per month.  Thus, at the time when M met F, she was working as an insurance agent, earning only about HK$8,000 to HK$9,000 per month.  According to M, her licence had expired some time ago, and she had no intention to renew it.  Anyway, F decided to pay her a salary of HK$20,000 per month, which was later increased to HK$30,000 per month.  In December 2005, when F decided to formally “employ” M, she had already been out of regular employment for over 3 ½ years.  F had said that he paid her the amounts demanded by her begrudgingly and the amounts were disproportionate to her job nature.  F said it was a two-fold engagement, one part was for work, and the other part was due to the sexual relationship between them.  Although when F was cross-examined by M, he was not able to apportion the two parts, I accept that F agreed to pay M the amounts she sought due to their intimate relationship.  There was no evidence that M would have been able to earn a salary of HK$30,000 per month had she not been employed by F.  M’s claim of HK$38,000 per month for her ‘mother’s allowance’ was based on what she said was the last salary paid to her by F and the benefits she received from F.  It thus appears that she is saying that she has an earning capacity or a potential earning capacity of as high as HK$38,000 per month.

142.  Anyway, whether M’s earning capacity is HK$38,000 per month or not, I find that M’s claims are misconceived in that I do not find that the cases support a claim for ‘mother’s allowance’ based simply on the earning capacity of the mother.  In the earlier cases, comparisons were made with commercial cost of providing professional care but this was considered unlikely to be of great assistance and may only serve to distract (See Para [77], Re P).  The approach developed in later cases, such as F v G and H v M appears to be in considering a child’s needs for a carer, such enables account to be taken of the caring parent’s needs, irrespective whether the caring parent is working. Further, in F v G, as I have mentioned earlier, the question of what account to take of the mother’s earnings or earnings potential and of the additional child care costs involved in going out to work arose and Singer J notionally allocated the cost of the nanny to the mother’s earned income and required the father to meet the balance of the day-to-day income needs of the mother and the child, the mother being free to deploy the balance of her earned income (over and above the cost of the nanny) as she thought fit, e.g. towards pension provision.

143.  Turning to the question whether M in the present case should go back to work and if so when.  It is F’s case that M had helped her mother in trading stocks working at home before and was able to take care of B and worked at the same time.  She was also able to work as a financial planner when B was small.  F said that M was also able to buy the Shatin Flat on her own and could afford to pay the mortgage repayment with a monthly salary of HK$30,000 from F.  It is F’s case that M, being a capable, very well-educated person fluent in both English and Chinese, should be able to go back to work now, with a full-time helper at home and B going to school every afternoon.

144.  During cross-examination by M, F agreed that his son was looked after by his mother and that they did not have any domestic help.  His first wife looked after their son personally.  When asked by M whether it would better to have a domestic maid look after a child or whether it would be better for a mother to look after her child, F replied that there were no domestic maids in Australia and that there was a different economic situation there.  F has said in the 24 apartments in his block in Hong Kong, most of the residents with children are foreigners and they all have domestic helpers, and the system seems to work well here.

145.  There was evidence that M herself had anticipated going back to work for the F, since she said she hired an additional Indonesian maid soon after T’s birth, not realising that she would be dismissed by F.  It appeared that when M realised that she would not continue to work for F as his personal assistant that the maid was sent home. Since then, M has not sought any other work, even though she appeared to have formed the business Genie’s in November 2007, when T was about 6 months old.  She has also said she does voluntary work for the church at the funeral parlour of at least 3 or 4 times a month from 7am odd to about 11am or noon.  I agree with Ms Tsui that M is a very capable and intelligent lady. She has spent considerable time on the preparation of her case and the research into the authorities, since most of the authorities were produced by her.  I am sure if she wanted to, she would be able to cope with working at least part time as well as taking care of her children.

146.  Having said this, there is no doubt that a natural mother’s care is preferable to that of a hired helper in the case of a young child, and that even in Hong Kong, where it is financially possible, it would be in the best interests of a young child for him/her to be cared for by a full time mother.  In view of T’s young age, I do not find it unreasonable for M to choose to be a full time mother for the time being and to devote her time to looking after T, as well as B, even though she has already employed a domestic helper.  However, I would remind M what was said by Deputy High Court Judge Peter Hughes QC in paragraph 94 of H v M, “If the mother works, she should meet the extra child-care costs associated with that decision, and she should have the opportunity of putting any surplus funds either towards her own lifestyle choices, or perhaps more prudently, towards her own future, remembering that the father’s obligation is only to the child and for the child’s minority.”

147.  Although I am of the view that M should be able to start working some part-time work now, gradually returning to full time work, I would allow her to make her own decisions about employment, following the approach of Singer J did in F v G.  If M does decide to return to full time work, then the costs of any additional domestic helper should be notionally allocated to her salary, and she be allowed to deploy the balance of her earned income (i.e. over and above any additional domestic helper) as she thought fit, e.g. towards her own savings or pension provision.

148.  I accept that F in this case may not be as wealthy as the father in F v G or at least F does not lead the kind of extravagant lifestyle as the father in F v G, and further F is not at the same level as the father in H v M, but as F’s financial resources and earning capacity are much greater than M’s, and F has further conceded that he is able to meet any reasonable orders this Court is to make.  Even though M and T never lived with F, I see no reason why the approach in F v G should not be followed in the present case, as such approach appears to have been endorsed in recent cases in England.

149.  Following Re P and H v M, I would adopt a broad brush approach in relation to the assessment of a reasonable budget for T and M being her carer, bearing in mind that inevitably there is likely to be a difference of perception between what the mother may see as her reasonable needs to enable her to provide for the child, and what the father may see as her attempt to improve her own lifestyle (H v M para 82, page 11), and further bearing in mind that F’s lifestyle in the present case is more modest than the fathers in some of the English cases.

150.  In deciding what is a reasonable budget, although it seems that Re P emphasised the need to treat the mother’s allowance as a primary carer as an independent item, in addition to the direct costs of the child, District Judge Million in Re C [2007]2 FLR 13has said in paragraph 73 that he did not read those remarks to mean that an actual separate sum had be identified; rather, the court should bear in mind that factor when looking at the overall budget.  “The court in Re P took an explicitly broad brush approach in arriving at an overall budget (in that case) of 70,000 pounds a year.” (per District Judge Million in Re C.).  It was also held in N v D that it was not realistic simply to apportion items of budget as referable only to the child’s needs because financial provision had to make for the mother to enable her to meet those needs.  I therefore propose to adopt a broad brush approach in assessing what is a reasonable budget to cover T’s financial needs and M’s needs as a primary carer.

(vi) Reasonable Budget for T

151.  First of all, I will consider the issue of half-siblings, which has arisen in cases such as A v A, J v C, and H v M.  In A v A where there were two other children who were not the responsibility of the father, Ward J (as he then was) held that this was immaterial because their needs did not greatly affect the cost of keeping a roof over the head of the relevant child and her carer.  As recognised in J v C, in practical terms the child needed to live with her two half-sisters and her mother had to provide for them and that had to be taken into account, and in human terms she needed to grow up with her sister and it would clearly be greatly to her benefit for her to do so.  In H v M, the father had argued that it was wrong that he should be expected to subsidise the child’s half-sibling or make good any shortfall in the provision from the father of the half-sibling.  Deputy High Court Judge Hughes referred to what Ward J had said in A v A and said that there was no ideal or perfect solution, and he had to look at things as they were.  He had to take account of the provision that the mother was receiving from the father of the half-sibling in deciding what provision of the father of the relevant child ought to make, but he did not consider that it would be right to reduce the level of that provision on the basis that the mother ought to be seeking more from the half-sibling’s father.

152.  In M’s Form E filed in September 2008, she was claiming about HK$54,000 per month as her and T’s expenses, which included a monthly sum of HK$8,000 for B.  During cross-examination, M has said that B’s father is presently only contributing HK$6,000 per month for B’s expenses, and that as she is contributing about HK$8,000 per month, making a total of $14,000 for B.  M proceeded to itemize B’s expenses and claimed that B’s expenses in fact amount to about HK$17,326 per month.  Thus, it appears that total amount of monthly expenses of M would be in the region of about HK$71,000 per month.

153.  As pointed out by Ms Tsui during the trial, M had given different estimates of her expenses at various times.  In M’s solicitors’ letter sent about 6 months before her Form E, i.e. on 25 March 2008, the total minimum amount of T’s expenses was at that time set out to be HK$27,800 per month, including her share of accommodation of HK$5,000 per month.  In M’s 2^nd Affidavit filed about 2 months later, in May 2008, she had said that she would usually spend HK$50,000 per month, which included maintaining the living expenses of the two daughters, herself and one maid (A1: 21), with the car expenses paid for by F.  In the same paragraph, M had also said that she had employed an extra maid in June 2007, but later she sent the newly employed maid back to Indonesia in July 2007 after she noticed that she would be dismissed by F and since then, she had employed a part-time worker who would come 2 times a week to do the cleaning of the house.  M gave a breakdown of the monthly sum of HK$50,000 per month, which included, inter alia, mortgage and management fees of her Shatin Flat of HK$11,650 per month, car parking fees (including monthly rental, car washing and fees for parking when going out) of HK$1,400 per month, B’s School Fees and School Bus Fees, and the Medical and Life Insurance for B (A1:22).  In addition, there were the running expenses of the old Camry car.

154.  F has been paying HK$20,000 per month which included T’s share of accommodation expenses (B1:11).  In addition, he has been reimbursing M for the running cost of the car.  Although M said that the sum of HK$20,000 per month was only sufficient to maintain T’s basic expenses excluding accommodation expenses (B1:7), it appears from M’s Form E that HK $20,000 per month was sufficient to cover T’s direct expenses, if one does not take into account the allowance for M. 

155.  The accommodation expenses will now be separately covered by the purchase of a property or the Mei Foo Flat.  The amounts for the items under paragraph 4.1 of M’s Form E, i.e. under the heading of “General” set out by her were 2/3 of the total, being her and T’s share.  What M did was to divide the total by 3, each for her, B and T.  I find such apportionment arbitrary, and would look at the overall cost of providing T with a home, following the approach in the English cases. The monthly utilities expenses M gave would amount to about HK$2,400 for the family.  Apart from the accommodation and the utilities expenses, under the heading of “General” expenses in paragraph 4 of her Form E, the largest item was “Food”, which was HK$8,580 for M and T, or HK$12,870 in total including B’s share.  I find this figure somewhat inflated.  During cross-examination, M had said that this item included bird’s nest for her, T, and B, which they would eat for breakfast.  M had said that the daily market expense for 3 meals for all of them would be HK$200 per day, making a total of about HK$6,000 per month, but excluding the bird’s nest.  They sometimes would go out for meals, and this would cost about HK$3,000 per month.  This, however, is not consistent with what she said in her letter of 5 October 2008 to F’s solicitors (“Letter”) in answer to their request for further particulars and documentary evidence, when she gave only a figure of HK$1,800 per month for meals out of home.  The breakdown she gave for food expenses at that time came to HK$8,950 per month for all 3 of them, including HK$2,600 for bird’s nest.  I find bird’s nest to be an extravagance, and thus overall, a reasonable amount for food expenses should come to about HK$6, 350 per month of a for all 3 of them, if one deducts the bird’s nest.   

156.  M claimed a total sum of HK$4,455 for “Household Expenses” i.e. HK$1,485 each, or HK$2,970 for her and T in her Form E During cross-examination, she said this was for repairs of exhaust fans, heaters, and T’s nappies.  In her 2^nd Affidavit, she only a monthly sum of HK$700 for this item only, which was in May 2008.  However, in the Letter, she provided a long list for the breakdown for the items for 3 months of July, August and September 2008, totalling HK$9,596 and averaging HK$3,198 per month.  Although this M said was for her and T, looking at the list of items, apart from diapers the items were more for all 3 of them. The items in the breakdown included a second-hand laptop, one house phone, an oven, a portable DVD, a fan, Computer parts, air-con, but these items are not monthly recurring items.  T soon will be 2 years old, and will not be needing nappies for much longer.  In my view, a monthly sum of HK$1,500, or HK$18,000 a year to cover the various items set out by M would be reasonable. 

157.  I have dealt with the Car Park and the running costs of the Car earlier, which come to a budget of HK $8,000 per month. 

158.  Even though M is not at the moment working, as F has no direct contact with T and M is responsible for the day to day care of T, she ought to have some time to herself (see comments in para 61 of Re C).  I thus find it reasonable for her to employ a Filipino maid, but I am not satisfied that she requires any additional child minding fees of HK$1,400 per month.  During the trial, in fact she said the child minding fees were HK$200 each time (HK$50 an hour x 4) and were required for about 6 hours a month, totalling HK$1,200 per month.  M had said she needed to go out e.g. to the bank, or to do voluntary work at the funeral parlour, which Ms Tsui had described as a “funny” answer.  M had never disclosed such voluntary work at the funeral parlour in any of her Affidavits and not even during examination in chief when this Court was asking her about the child minding fees.  All she said when she needed to go out to the bank or to the market during the day, or when she attended Court, she would ask a child minder to help her look after T.  M only suddenly sprang this piece of surprise information during cross-examination. M said she would not trust leaving two children to one maid to look after.  As B now attends school every afternoon, if M needs to go out to attend to personal matters, she could either take T with her, or leave T with the maid, or make some other arrangements. The trial has now come to an end, and M will no longer need to attend court.  M’s case has always been that she is a full time mother. She already has a Filipino maid to help her.  I do not find any additional child minder necessary unless M starts working, but she does start working, such costs would be allocated to her.  I accept the cost of the Filipino maid being an average of HK$4,230 per month (A1:450).

159.  I would not include M’s mortgage payments for the Shatin Flat and the fire insurance premia of HK$165 for the Shatin Flat in considering expenses under “General”, as the object is not to enable the mother to finance a property for her own benefit (see para. 108 of H v M) Now that F will be providing accommodation for M, T including B, there is no reason why he should pay for the mortgage of the Shatin Flat for M or any expenses relating to the Shatin Flat.  Thus, in my view a reasonable budget under the “General” would be :

Utilities                                     HK$2,400

Food                                               6,350

Household expenses                        1,500

Filipino maid                                    4,230

Car park and running costs of car     8,000

Total, approximately                    $22,500

160.  Under “Personal” expenses, M gave a total figure of HK$19,800 per month, which if deducting HK$8,000 per month for B, would be HK$11,800 per month.  Included in this amount is HK$2,000 for an endowment insurance premia for her own benefit and HK$2,000 for accessories/jewellery.  In Re P, paragraph [49], Thorpe LJ had said that the budget provided was to be spent at the expiration of the year it was provided and “there could be no slack to enable the mother to fund a pension or policy or otherwise to put money away for a rainy day”.  In F v G and H v M, where a mother has earning capacity or potential earning capacity, the approach was for the mother to retain any earnings for her own future, after meeting any additional nanny’s cost (paras 89-94, H v M). It was further said in para 80, page 11 in H v M : “The object is not to meet the mother’s aspirations, which fall outside her reasonable needs as the child’s carer, or to provide her with surplus funds to set aside for her own future ”.  Further in N v D, DJ Harper has said in paragraph [27], “The court will not permit a maintenance claim in disguise for the mother’s benefit.  The mother needs for such purposes to eat, clothe herself, maintain car expenses and take the child for holidays…[medical casts] are reasonable because she (the mother) must be sufficiently equipped and healthy in order to be able to care for S.”  Having considered above, I find M’s needs under “Personal” will be met by a sum of HK$8,000 per month, with her other costs under “General” being covered.  

161.  Under cross-examination, M has said B expenses come to a total of about HK$17,326.  This included 1/3 share of rental, utilities, food, household, domestic helper.  According to M’s figures, B’s total direct expenses come to about HK$5,600 per month, i.e. excluding her share of the “General” expenses.

162.  As for T, her other direct expenses in paragraph 4.3 in M’s Form E come to about HK$4,500 per month, excluding the child-minding fees, but this would include nursery fees, which M said during the trial is covered under the “Entertainment/presents”.  The nursery fees will be in future separately covered under F’s Undertakings.

163.  Thus, to summarise, in my view, taking a broad brush approach, and after taking into account the monthly sum of HK$6,000 being for B by her father, and M’s allowance as a primary carer, a reasonable sum to be provided by F would be a total of HK$35,000 per month, in addition to F’s Undertakings.

164.  Taking into account mortgage expenses of say HK$25,000 (in view of the amount of the housing fund of HK$3.5m instead of HK$3m), insurance premia of about HK$13,620 and T’s education expenses, I am aware that the total amount payable by F could be in the region of HK$75,000 per month.  Having regard to F’s income and his assets, I am of the view that he is able to pay this sum.  Although I am aware that the amount falls short of what M is seeking, and bearing in mind that maintenance is never decided for all time and either party can seek a variation in future and that T is now only about 2 years old, I am of the view that the amount of HK$35,000 per month, in addition to F’s Undertakings, is fair and reasonable.

165.  The amount of HK$35,000 per month includes the car’s expenses of HK$8,000 per month, but this sum excludes accommodation costs.  Without the car’s expenses, the amount is HK$27,000.  F should continue to reimburse the car’s expenses reasonably incurred up till end of April 2009, as he has agreed to do.  There will be a period of up to 3 months before the purchase of the property is to be completed, and therefore, M will continue have to pay rent during this period.  Thus, as from 1 May 2009, F should pay a sum of HK$47,500 (i.e. inclusive of car’s expenses and rent for Mei Foo Flat of HK$12,500 per month) until completion of the purchase of the property.  Thereafter, he should pay HK$35,000 per month. 

166.  M has herself proposed that her “mother’s allowance” be paid until T is 6 years old or when T enters first year of primary school.  Thorpe LJ had said in paragraph [53] of Re P that the judge (of the lower court) in providing a down variation at the relevant child’s 7ths birthday was clearly wrong.  “Future variations, unless to take early effect, are far better left to await event and to allow an agreement or a decision to reflect facts and circumstances that have transpired in the interim.” (per Thorpe LJ).  I have indicated earlier that I would leave the decision to M as to when she feels is the right time for her to resume working. It may well be that she may wish to start re-entering the workforce earlier in view of my order falling short of what she is seeking.  I therefore will not incorporate such a term in my order.

LUMP SUM

167.  M has sought that the mother’s allowance be paid as from the date of T’s birth.  Any backdating can only be from the date of the making of the application (s.12A of GMO), which in the present case was 15 May 2008.  This Court does, however, have jurisdiction to order a lump sum for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining a child before the making of the order to be met under s.10(2)(a) of GMO.  Thorpe LJ has said in paragraph 57 of Re P that he was of the opinion that this provision should be broadly construed in considering backdating.  F was paying M the salary of HK$30,000 per month until September 2007, and he has paid M a sum of HK$240,000 for T’s expenses at HK$20,000 per month for 12 months since her birth. However, M has incurred expenses and liabilities for the maintenance of T.  She has sold her shares after moving to the Mei Foo Flat to cover her expenses and has further borrowed two loans.  In view of the monthly amount now ordered, I am of the view that F should pay M a sum of HK$208,000, whether as backdating or to meet the liabilities or expenses reasonably incurred for maintaining T before the making of the order, based on the following:

(i)  from October 2007 until October 2008 ( a total of 13 months), a total sum of HK$91,000, i.e. a monthly sum of HK$7,000 (being HK$27,000  less HK$20,000 paid) x 13 months, and

(ii)  from November 2008 until 30 April 2009 (a total of 6 months), a total sum of HK$117,000, i.e. a monthly sum of HK$19,500 (being HK$39,500 less HK$20,000 paid) x 6 months. 

168.  The sum payable for the BMW is HK$125,520. 

169.  Thus the total lump sum payable by F will be HK$333,520, and I order this sum to be paid by him within a month.  

COSTS

170.  M has sought costs.  Although F has been legally represented by experienced family lawyers throughout, it was not until the trial that he came up with the undertakings regarding accommodation, insurance and education to meet M’s concerns.  In view of the fact that Ms Tsui has not disputed the general principles set out in Re P, I am of the view that F should have offered the undertakings earlier.  M has overall been successful, even though the amount ordered is less than she has sought.  I am of the view that M should have her costs of this application, to be taxed, if not agreed, on party and party basis.  This is an order nisi, which will be made final after 21 days.

ORDER

171.  Assuming that F’s Undertakings, subject to my amendments and M’s Undertakings are forthcoming, the effect of my order is as follows:

(i)  F shall pay M a lump sum for the benefit of T of HK$333,520 within one month.

(ii)  F shall pay M periodical payments for the benefit of T in the sum of HK$47,500 per month as from 1 May 2009, and thereafter on the 1^st day of each month until T reaches the age of 18 or completes full time education, whichever shall be later.

(iii)  The sum of HK$47,500 per month shall be reduced to $35,000 per month, as from the date of completion of the purchase of the property. 

(iv)  F shall pay M’s costs of and incidental to this application, including all costs reserved, to be taxed, if not agreed on party and party basis.  This is an order nisi, which shall be made final after 21 days hereof.

172.  I will direct F’s solicitors to draft the order for my approval.

MEDIATION OR FINANCIAL DISPUTE RESOLUTION FOR CHILDREN

173.  Lastly, I would add my own comments or small voice on mediation or financial dispute resolution in family proceedings other than matrimonial proceedings.  Thorpe LJ has in paragraph [70] of Re P asked “What help have the parties had to resolve their differences without contested hearings? We were told there had been no attempt in mediation. Procedural reforms introduced in 2000 ensure that the court has the duty to explore settlement of Matrimonial Causes Act claims before directing a trial.  Would not such an obligation be appropriate in Sch. 1 claims, certainly where capital provision is sought?”.  In H v M, paragraphs 135 and 136, Deputy High Court Judge Hughes QC then added his own voice to the observations of Thorpe LJ, saying that almost three years had passed by since those comments made by Thorpe LJ and nothing had been done, and commented that changes in procedure to encourage mediation and to introduce a Financial Dispute Resolution hearing in Schedule 1 claims, akin to those in matrimonial proceedings, would be highly desirable.  I am not aware as to whether there has been anything has been done in England in the past 3 years since those comments of Deputy High Court Judge Hughes QC in H v M.

174.  In Hong Kong, the only practice direction in relation to Family Mediation applies only to matrimonial proceedings, as in England. In the present case, during the PTR, I had already urged the parties (F not being present) to attend mediation, and it is regrettable that notwithstanding M writing a letter to indicate her willingness to attend mediation, nothing took place nor any help given for the arrangement of such mediation until this Court mentioned it again during the trial, when F’s side eventually agreed to help to arrange for mediation, which only took place during the trial.  This should have taken place much earlier.  It is hoped that the Family Mediation Committee will consider extending the practice direction on mediation to other family proceedings.  With the coming in of the Civil Justice Reform, PD 15.12 has now been introduced.  In cases where there are substantial capital provisions sought for a child with unmarried parents under GMO, perhaps parties in future should seek directions from the Court at any early stage as to whether any other part of PD 15.11 on the Financial Dispute Resolution could be extended to such applications, e.g. filing of Form Es or even arranging for a Financial Dispute Resolution.

[1]  See Philips v Peace [1996] 2FLR 230

[2]  See s.79 of the Law Reform (Miscellaneous Provisions and Minor Amendments) Ordinance (No. 80 of 1997) and also L v C, HCMP No. 4167 of 1993.