Lchj v Syma

CourtFamily Court (Hong Kong)
Judgment Date09 May 2014
Judgement NumberFCMP28/2014
SubjectMiscellaneous Proceedings
FCMP28/2014 LCHJ v. SYMA

FCMP 28 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 28 OF 2014

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IN THE MATTER OF SYCM, a minor

and

IN THE MATTER of section 13 of the Guardianship of Minors Ordinance, Cap.13

BETWEEN

LCHJ Applicant

and

SYMA Respondent
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Coram : Deputy District Judge S. G. Chan in Chambers (Not Open to Public)
Dates of Hearing : 14 and 16 April 2014
Date of Judgment : 9 May 2014

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J U D G M E N T

(Interim maintenance for child)

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Introduction

1. This is an application under S.13 of the Guardianship of Minors Ordinance Cap 13 (“GMO”) taken out by the Applicant (“Mother”) for interim maintenance for her daughter who was born in August 2004 (“Child”) out of her relationship with the Respondent (“Father”).

2. The Mother issued an Originating Summons on 28 January 2014 for financial provision under S.10 of the GMO. At the same time, she took out an Inter-Partes Summons pursuant to S. 13 of the GMO for interim maintenance from the Father, at the rate of $57,616.77 per month or such amount to be determined by the Court.

3. On 4 March 2014, Her Honour Judge Melloy made an Order, inter-alia, that the parties do file and exchange their respective Form Es and the Father do pay interim interim periodical payment for the Child of $11,000 per month until pending order. The substantive hearing of the Mother’s application for interim maintenance was adjourned to 14 April 2014, with half day reserved.

The Legal Principles

4. There is no dispute between the parties as to the general legal principles.

5. The Court has power under S.10(2) of the GMO to make financial provision for a minor, which includes periodical payments towards such minor’s maintenance as the Court thinks reasonable having regard to the means of the parent to which the order is imposed.

6. There are no specific factors under the GMO which the Court has to have regard to, in exercising the discretion in making financial orders for a child, such as those set out in S.7 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”). The overriding consideration for such application is reasonableness.

7. However, notwithstanding the absence of the factors set out in S.7 (2) of the MPPO or paragraph 4(1) of Schedule 1 of the Children Act 1989 in the GMO, the Courts in Hong Kong have found the principles and guidelines set out in the English cases very helpful, particularly in Re P (Child: Financial Provision) [2003] 2 FLR 865, in considering what financial orders are reasonable for the benefit of a child born out of wedlock.

8. In Re P, [2003] 2 FLR 865 paragraph 47, Thorpe LJ stated that the Court should discourage undue bickering over the budgets. What is required is a broad common sense assessment.

9. Bodey J further stated in Re P, [2003] 2 FLR 865 paragraph 77 (i), that in considering the mother’s budget, the court should adopt a broad brush approach,

“(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...”

10. In determining the amount of interim maintenance of a child under the GMO, Her Honour Judge B Chu also adopted a broad brush approach in LCTK v TKKP [FCMP 173/2009, unreported, 25 June 2010],

“This being an interim application, and not having the benefit of seeing the parties in the witness box with their evidence tested, the Court will have to adopt a broad brush approach. The Court will not take a long term view and what matters is the immediate and reasonable financial needs of the child.”

11. Under S.13(3)(a) of the GMO, the Court has power to make an interim order, but such interim order shall only have effect of 3 months from the date of the order, and shall cease to have effect on the making of a final order or on the dismissal of the application.

12. The Court in making interim orders under S.13 of the GMO has to balance the reasonable needs of the Child and the ability of the paying parent to pay on an interim basis.

The Main Issues

13. Thus, in undertaking this balancing exercise, the Court will adopt a broad brush approach in determining a) the immediate and reasonable financial needs of the Child, including housing needs as claimed by the Mother; and b) the apportionment of the Child’s said needs to be paid by the Father and his ability to pay on an interim basis.

14. A detailed examination of the parties’ means may be considered later at the final hearing, if no agreement is reached in the meantime. If there is any overpayment or underpayment, the figures can be put right in the final order. [see AEL v MRL [2009] HKFLR 131]

Brief Background

15. The Mother was born in Taiwan and domiciled and living in Hong Kong since 1994. She is 38 years old and currently working as a Senior Business Manager at X Group Limited. According to the latest tax return, her average income is approximately $31,000 per month.

16. The Father was born in Hong Kong. He is aged 41 years old and currently working as a Senior Vice President in the Private Wealth business in Y Private Wealth. His average income in the past year is approximately $190,000 per month.

17. The parties met in January 2002 and soon developed an intimate relationship. They never got married and in August 2004, the Applicant gave birth to the Child out of their relationship. However, shortly after the birth of the Child, the parties separated in around March 2005.

18. The Child has been residing with Mother since birth and since December 2008 they have been residing in a 3 bedroom apartment with a gross floor area of about 1150 sq ft with a 900 sq ft balcony in XX Court, Bonham Road (‘the Bonham Residence’), which is owned by the Mother’s father (‘the maternal Grandfather’).

19. It is not disputed that the Child, who will be turning 10 in August 2014, maintains a close and intimate relationship with both the Mother and Father. The Mother is the main carer of the Child since birth and the Father spends Saturdays with the Child regularly.

20. The Child attends a well established local school in Hong Kong and has been accustomed to a relatively comfortable lifestyle with at least 3-4 overseas trips (which includes 1 school trip per year), access to exclusive clubs, hotels and nice restaurants for meals with either parents, and engaging in extra tutorial lessons, private extra-curricular activities such as playing the flute, piano, drawing and swimming lessons etc.

21. There is some dispute regarding access at the beginning of the hearing and the Father has taken out an application on 8th April 2014 for joint custody with care and control to the Mother with generous flexible access to the Father.

22. In gist, the Father wishes to have a one-hour dinner with the Child in mid-week in addition to Saturday access and regular telephone contacts, whereas the Mother is concerned that dinner in mid-week would cause disruption to the daily schedule of the Child. Like many local primary students in Hong Kong, the Child’s schedule during the week is packed with homework, tutorial lessons and extra-curricular activities. As such, the Mother...

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