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H v S

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date29 April 2009
Subject MatterMiscellaneous Proceedings
Judgement NumberFCMP70/2008
CourtFamily Court (Hong Kong)
FCMP000070/2008 H v. S

FCMP 70 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL PROCEEDINGS NO. 70 OF 2008

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

IN THE MATTER OF the child of the Applicant and the Respondent, namely T
And
IN THE MATTER OF the Guardianship Minors Ordinance, Chapter 13 (s.10)

BETWEEN

H Applicant
and
S Respondent

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Coram : Her Honour Judge Chu in Chambers (Not Open to Public)

Date of Hearing : 18th to 20th February 2009 and 13th, 18th March 2009

Date of Respondent’s Written Closing Submissions: 6 April 2009 and 16 April 2009

Date of Applicant’s Written Closing Submissions: 17 April 2009 and 21 April 2009

Date of Handing Down of Judgment: 29 April 2009

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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 1st 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...

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