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CACV 91/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 91 OF 2013
(ON APPEAL FROM FCMP NO. 158 OF 2011)
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BETWEEN
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IDC |
Applicant (Appellant) |
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and |
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SSA |
Respondent (Respondent) |
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| Before: Hon Lam VP, Kwan and Barma JJA in Court |
| Dates of Hearing: 8 May 2014 |
| Date of Judgment: 6 June 2014 |
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
1. In this appeal, we shall refer to the parties as the Father and the Mother. They were not married but they had cohabited since October 2006 and their child [“Z”] was born on 8 March 2009. Before they met, the Mother had been married to another man. During that marriage, the Mother gave birth to another child N on 20 February 2004. N lived together with the Mother and the Father since October 2006. The relationship between the Mother and the Father ran into difficulties and since August 2010 they have been separated.
2. The background and the facts of the case have been carefully set out in the judgment of 22 January 2013. We can gratefully adopt paras 4 to 8 of that judgment:
“[4] Both parties are British, with the Mother now aged 33 and the Father 39. After the Mother completed her university studies, she worked as a fashion model and travelled around the world on her jobs. In 2003 she married a film director from Thailand with whom she gave birth to a daughter N in 2004. Two years later she divorced N’s father and obtained N’s custody. By then she was dating the Father who had moved from London to Hong Kong in the 1990s where he had set up his fashion accessories business.
[5] Upon finalizing her divorce with N’s father in September 2006 the Mother moved with N into the Father’s apartment at Convention Plaza Apartments, and it seems that he had then assumed financial responsibility for N during his relationship with her mother. On 8th March 2009 the Mother gave birth to Z.
[6] That relationship ended in August 2010 but on amicable terms when the Father rented a 2-bedrooms apartment at Convention Plaza for the Mother and her two daughters, and continued to meet their expenses including allowing the Mother to continue to use his American Express credit card. However, what remained of that relationship came to an end in May 2011 after an incident when the Father removed both children to his apartment without the Mother’s consent which required the intervention of the police before the children were returned to the Mother.
[7] Following the Father’s subsequent cancellation of her credit card and ceasing to be involved with N, and allegedly had her followed by his private investigators over some period of time, the Mother moved from the Convention Plaza Apartments in July 2011 with the children and her 2 domestic helpers to her current 3-bedrooms apartment in Bel-Air, Pokfulam under a 2-years lease at a monthly rent of HK$76,000. The Father was then paying her HK$67,000 per month calculated at HK$47,000 being the rent which he paid for her former Convention Plaza Apartment and HK$20,000 as maintenance for Z plus direct payments for her school expenses, extra-curricular activities and the salary of the helper, of which the Mother claims to be grossly insufficient and was forced to meet her monthly deficits with her savings and later borrowing from her father and sister.
[8] Almost immediately after her move to the Bel-Air apartment, the Mother launched these proceedings seeking custody of Z and financial provision for her during her minority. In support of her case she then filed an affidavit of more than 400 pages including exhibits setting out the history of her relationship with the Father with such details which I find mostly unnecessary, immaterial or irrelevant, and which served no useful purpose but certain to provoke tensions and hostilities between the parties, not to mention inflating legal costs. Clearly a practice that should not find favour with the court.”
3. The matter came before the Family Court as an application by the Mother in respect of Z under Section 10 of the Guardianship of Minors Ordinance Cap 13 [“the GMO”]. Judge Bruno Chan [“the Judge”] heard the application and he found that the lifestyle enjoyed by the parties when they were together was of a high standard.
4. On 22 January 2013, the Judge ordered periodic payments in the sum of $118,000 per month to be paid by the Father to the Mother until Z reaches the age of 18 or ceases her full time tertiary education, whichever is later. That sum was ordered in addition to the undertaking given by the Father to be directly responsible for Z’s school fees, school bus charges, fee for ballet and music classes, medical insurance and other reasonable costs of extracurricular activities as well as provision for holidays and also her local travel, food, clothing, toys and presents and salary of a domestic helper.
5. The Judge dismissed the Mother’s application for a lump sum for the purchase of a property for Z. He held that the court has no jurisdiction to make a lump sum order for such purpose. The amount the Mother asked for is $32 million. She also asked for $700,000 for the decoration of the property and $500,000 for the purchase of a car. The question of jurisdiction is the primary issue in this appeal.
6. The Mother also challenged the Judge’s assessment of the periodic payment in this appeal.
The jurisdiction point
7. Section 10 of the GMO provides:
“(1) The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding- (Amended 65 of 1986 s. 3)
(a) the custody of the minor; and
(b) the right of access to the minor of either of his or her parents, (Amended L.N. 80 of 2012)
as the court thinks fit having regard to the best interests of the minor and to the conduct and wishes of the parents. (Amended 1 of 2012 s. 7)
(2) The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders-
(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 installments) 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. (Replaced 80 of 1997 s. 78)
(3) An order may be made under subsection (1) or (2) notwithstanding that the parents of the minor are then residing together, but-
(a) no such order shall be enforceable, and no liability thereunder shall accrue, while they are residing together; and
(b) any such order shall cease to have effect if for a period of 3 months after it is made they continue to reside together:
Provided that, unless the court in making the order directs otherwise, paragraphs (a) and (b) shall not apply to any provision of the order giving the custody of the minor to a person other than one of the parents or made with respect to a minor of whom custody is so given.
(4) An order under subsection (1) or an order under subsection (2) (other than an order for a lump sum payment in one amount, for a lump sum to be paid in instalments where all such instalments have been paid or for the transfer of property) may be varied, discharged, suspended or revived after being so suspended, by a subsequent order made on the application of either parent or after the death of either parent on the application of any guardian under this Ordinance, or (before or after the death of either parent) on the application of any other person having the custody of the minor by virtue of an order under subsection (1). (Amended 65 of 1986 s. 3; 17 of 1993 s. 19)”
8. In H v S (Financial Provision for a Child of Unmarried Parents) [2012] HKFLR 236, Judge Chu traced the development of the legislative scheme and case law in England as well as Hong Kong for making maintenance orders for the children whose parents did not marry each other. In particular, at paras 47 and 48, after comparing our Section 10(2)(a) with paragraph 1(2)(c) of Schedule 1 of the Children Act 1989, Her Honour expressed the following views:
“[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...
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