FCMP 273/2013
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 273 OF 2013
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IN THE MATTER OF an application for a declaration pursuant to Section 6(1) of the Parent and Child Ordinance Cap. 429
AND IN THE MATTER OF an application under Section 10 of the Guardianship of Minors Ordinance Cap. 13
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BETWEEN
NAL
1st Applicant
JNL by his
2nd Applicant
mother and next friend
NAL
and
PKW
Respondent
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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)
Dates of Hearing: 9 January and 9 February 2015
Written closing arguments submitted: 2 and 14 March 2015
Date of Judgment: 16 April 2015
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J U D G M E N T
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Introduction
1. This is an application by a mother for financial provision for the parties’ 2½ year old son, who I will refer to in this Judgment as J, pursuant to section 10 of the Guardianship of Minors Ordinance, Cap. 13. The mother filed an originating summons in support of her claim dated 20 November 2013 in which she seeks maintenance “as may be determined by the Honourable Court”. I am told that she is also seeking a lump sum order as part of that general claim.
2. The central issue here is what level of financial support should be provided by a father for a very young child, J, where on the face of it there is very little money available to support him and the earning capacity of each .parent is similarly limited.
Background
3. The mother is from the Philippines and she came to Hong Kong in 2011 to work for the father’s family as a domestic helper. Her employer was the father’s wife. The mother alleges that the father raped her on three separate occasions. However, there has been no finding of rape and the Department of Justice did not prosecute the father. Consequently, for the purposes of this hearing I have proceeded on the premise that there was some form of illicit sexual relationship between the mother and the father which led to the birth of J. Not surprisingly in the circumstances, the mother left the employ of the father and his family when she made the report to the Police. Since then she has been mainly unemployed. She cannot obtain further work as a domestic helper because she is also caring full-time for J. She is presently in Hong Kong on a Visitor’s Visa. J now has permanent residence in Hong Kong.
4. The father, for his part, spends most of his time looking after his disabled son who has severe cerebral palsy, indeed the mother was employed, in part, to assist in taking care of the said child. It is not clear on the papers whether the child presently attends an educational institute of any kind. What is clear is that the father’s wife goes out to work and is the family’s main wage earner or only wage earner. The father’s earning capacity is therefore very much in issue.
5. I originally ordered that the father pay $4,000 per month to the mother on an interim basis for J’s maintenance. This was on 21 February 2014. The father was not in court on that occasion. Subsequently I varied that sum down to $2,000 per month once I had had sight of the party’s initial financial documents. I made that order because it was clear that the father was making small bets at the Hong Kong Jockey Club and that on any assessment if he could afford to do that then he could also afford to pay at least that sum for the support of J.
6. The mother currently receives $590 from the CSSA for J and some other benefits in relation to his kindergarten education, etc. She receives $2,000 per month from the father. Other than that, she relies on charitable donations and food from the food bank. She lives with J at a Church on Kowloon side and I accept that on the face of it her situation is quite desperate and untenable in the longer term. She says that she is separated from her husband in the Philippines and that her daughter by her marriage is cared for by her parents. They are also in severe financial difficulty.
7. The father, for his part, says that he is wholly supported by his wife who apparently earns in the region of $40,000 per month. Not surprisingly, he says that his marriage is under severe strain. He and his wife live in a small self-owned property and he says that he relies on his son’s disability allowance to pay for his own expenses and that otherwise his wife is responsible for all household outgoings. In his affidavit of 9 July 2014, he describes his role in his son’s care. Referring to his son’s hospitalisation in 2009, he says:-
“My son was then discharged to rest at home but since then he must always have a range of medical equipment with him, blood oxygen meter, phlegm suction pump, ventilator and oxygen generator were indispensable. Guided by doctors, nurses and physiotherapists I have also learned the use of medical equipment for home recovery, stoma care, rehabilitative therapy, rehabilitive physiotherapy and so on. Now I am taking care of my son by myself because to use the medical equipment takes knowledge and experience, administering, rehabilitative therapy and medical care is not easy to learn either. Up until now I still cannot find anyone who can look after my son for me.”
The issues
8. Given the above, it seems to me that the following issues now require determination namely:
(1) What is the earning capacity of each party?
(2) Given that what is a reasonable level of monthly maintenance for the father to pay for J?
(3) Should the father pay the mother a lump sum in addition?
(4) How should the issue of costs be determined?
Open proposals
9. The mother asks that the father pay for all of J’s expenses plus, it seems, her expenses as a carer’s allowance. If one includes rent, food, utilities and J’s expenses, she is seeking $10,375 per month. She anticipates that J will need a further $2,740 per month going forward. The father says that he can afford none of this and that he is borrowing from family members, presumably his wife at present, to pay for the $2,000 interim sum per month previously ordered.
The law
10. The Guardianship of Minors Ordinance , Cap. 13 and the Guardianship of Minors Amendment Ordinance 2012 governs this application and in particular sections 3 and 10. I will not read those out in full but reference to those sections can be made if necessary.
11. In general terms I must have in mind the best interests of the minor as being of paramount consideration. Insofar as any maintenance to be awarded, I am governed by the reasonableness of that award having regard to the means of the parents which in this case should also include any earning capacity that they each might have.
Discussion
12. I must now turn to consider the issues, the law and the parties’ evidence as set out in their affirmations and as given orally by them during the hearing. For the avoidance of doubt, insofar as the matter set out in this Judgment differ from the evidence of the mother or father, that is because I have preferred the evidence of one or other of the parties or because I do not find the evidence given credible or because I consider that the documents produced confirm my finding of fact.
What is the earning capacity of each party?
The mother
13. Realistically, the mother’s only longer term option if she wishes to remain in Hong Kong is to work as a domestic helper. Most would-be employers are unlikely to want to employ a domestic helper with a young child given that that child will need to be cared for. Alternatively, the mother has estimated the costs of a day-care service at $3,500 per month which is just under her estimated salary. According to the Government website, the minimum wage for a domestic helper currently is $4,110 per month with effect from 1 October 2014. In addition, she would be entitled to food or a food allowance of $964 per month plus accommodation, flights home, etc. Thus in broad terms, the mother has an earning capacity of just over $5,000 per month if one includes the salary and her food allowance. In addition, she would be entitled to free accommodation. In such circumstances, it seems to me that the mother has some very very hard choices to make going forward. For the purposes of this exercise, however, I am proceeding on the premise that the mother has an earning capacity of approximately $5,000 per month.
14. I was told during the hearing that the mother has also issued other legal proceedings although there is nothing about that on the papers and I was told initially that this was privileged information. At paragraph 56 of the mother’s closing, however, I was further informed that:
“The 1st Applicant has given evidence that she is pursuing two Legal Aid applications for judicial review to challenge the Foreign Domestic Helper’s Policy and the tort action against the Respondent respectively” and that she also has a case with the Equal Opportunities Commission. It is submitted that the 1st Applicant was likely to remain in Hong Kong for the foreseeable future and that the court should make an assessment on that basis.
15. I have no way of determining whether the 1st Applicant will remain in Hong Kong for the foreseeable future but in any event, I am agreeable to proceeding on that premises. In the event that the situation changes, then it will be open for either party to make an application to vary.
The father
16. The father’s earning capacity is central to the case. The father says that he has no earning capacity. Although I would accept that his evidence was not always consistent, in essence he said that he had not worked for a considerable period of time. His case was that he had been unemployed since 2006 and that he was made bankrupt in 2004. Prior to that, he had set up his own business in the toy industry but that had not been successful hence the bankruptcy petition. There was some debate over whether or not he had worked as a freelance webpage designer given that his wife told the Police that he had worked in that capacity from home. On the mother’s own evidence, the father was based at home and the wife went out to work. She said that she had seen him working on the computer although, with respect, it seems to me that it would be almost impossible for her to know whether the father was working in a paid capacity or otherwise.
17. The father also has a limited education having only attended school up until Form 3. He estimated that he might be able to earn up to $12,000 per month if he went back to work full time. However, as I have already said, I have noted that he has been out of the workforce for a considerable period of time. In such circumstances, I accept that it would take him some time for him to find any form of paid work full-time or part-time. It has been suggested that he should employ a domestic helper to take care of the son. Although that is a possibility, given the health condition of the son and the fact that the wife works full-time and for fairly long hours, I accept that the father is needed at home. In such circumstances, it seems to me that at most the father could be expected to work in a part-time capacity and that a helper of some sort will be needed at home in order to enable him to do that. In such circumstances, I estimate his earning capacity at no more than $6,000 to $8,000 per month.
Given that, what is a reasonable level of monthly maintenance for the father to pay for J?
18. I accept that the father should be contributing towards J’s expenses but it seems to me that it will not be possible for the father to fully maintain J. Further, it may not be possible for the child to continue to live in Hong Kong. I am also concerned about the mother’s estimated expenses, for example, rental of $4,000 per month. This is based on the mother residing in Jordan on Kowloon side. It seems to me that realistically speaking, the mother may not be able to continue to live in Jordan and any rental payments may be likewise reduced. As I have said, it also seems to me that the mother has some very hard choices to make going forward.
19. In such circumstances and based on each party’s estimated earning capacity going forward, I will order that the father do pay maintenance for J in the sum of $3,000 per month to take effect from 1 November 2015, in other words I will give the father six months to find some form of alternative employment. In the interim, the original order of $2,000 per month shall stand. It almost goes without saying that it will be incumbent upon the mother to also find employment.
Should the father pay the mother a lump sum in addition?
20. I will not order that the father pay the mother such a lump sum. It is clear that the mother has received charitable donations from a variety of different sources including Pathfinders and the Food Bank which she will not be required to repay. Further, the father has no assets to speak of, save for potentially his share of the matrimonial home which cannot be sold at present in any event.
How should the issue of costs be determined?
21. Lastly, on the question of costs, it is fair to say that the mother had no option but to issue the originating summons given that the father was not willingly paying her anything at all for J. She is also legally aided. In such circumstances, the father shall pay the mother’s costs of and occasioned by the originating summons dated 20 November 2013 on a party and party basis to be taxed if not agreed. The mother’s own costs should be taxed in accordance with Legal Aid Regulations.
22. I will make an order as follows:-
1) The Respondent shall pay periodical payments to the 1st Applicant for J, the 2nd Applicant, in the sum of $3,000 per month, the first payment to be made on 1 November 2015 and thereafter payments to be paid on the first day of each succeeding month until J reaches the age of 18 years or he ceases full-time education, whichever is the later or until further order.
2) The Respondent do pay the 1st and 2nd Applicant’s costs of and occasioned by the originating summons dated 20 November 2013 on a party and party basis to be taxed if not agreed. Legal Aid Taxation of the 1st and 2nd Applicants’ own costs.
(S.D. Melloy)
District Judge
Ms N Wong, of Daly & Associates, for the 1st and 2nd Applicants
The Respondent appeared in person