Ltm v Rjt

CACV 31/2019

[2019] HKCA 1004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 31 OF 2019

(ON APPEAL FROM FCMP NO. 103 OF 2017)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

I. The appeal

1. The issue in this appeal is whether a carer’s allowance should be given to the applicant mother (‘the Mother’) who has the sole custody, care and control of the two children, namely D a girl now aged 18 and S a boy now aged 15, born out of a relationship with the respondent father (‘the Father’). The Mother and Father have never been married. H H Judge Melloy ordered the Father to pay the Mother, amongst other things, child care allowance of $25,000 per month for 24 months until October 2020, such sum to be backdated to the date of the application by the Mother, namely May 2017. Pursuant to leave granted by the Judge, the Father now appeals against the order granting the carer’s allowance.

II. Background

2.1 The following facts are extracted from the judgment below.

1) The parties

2.2 The parties began to cohabit in 1999 and were separated in 2009. The Father formed a new relationship and married in April 2014. His wife has two twin girls.

2.3 The parties met in the Cayman Islands in 1998, which is where they were both working at that time. The Mother, who is a Canadian citizen of Peruvian descent, had recently graduated from a university in Canada and had had several jobs before she started to work for a well-known international corporation. The Father was a British lawyer and he was initially seconded to the Cayman Islands from London. In January 2001 the parties relocated to Hong Kong as a family and the Father took up a new positon which was based here. The Mother did not work and that the parties lived a fairly standard expatriate life style, with good accommodation, a domestic helper and access to club facilities. The children also attended good international schools. The Father became a partner of his firm in 2004 and in 2006 he purchased a large property in France. The parties lived there for a short while in 2008, which also appears to have coincided with the Father’s gardening leave from his original firm. He set up his own partnership in February 2009. They were living in Hong Kong when they separated. Initially, the Father had regular contact with the children but has ceased and he has not seen either of them since 20 April 2017. D is now taking a gap year after her secondary education. S is doing his IGCSE course. He still has to finish three years of secondary school.

2) The Mother’s case

2.4 The Mother claimed that she has been a full time carer of the children. Initially she hired a domestic helper but no longer. She is now 51 years of age. For a short period of time she worked full time for a local company who helped her to secure an employment visa. After the company retrenched, she only worked there part time for a while and she also gave Spanish language tutorial to local students. She is now living in Hong Kong on a rolling visitor’s visa.

2.5 The Father challenged the Mother’s case on her income and capital. But the Judge found the Mother has no other financial resources :

‘ 20. In conclusion, although I have accepted that there are concerns about the mother’s credibility and her approach to this case generally, it is also of note that there is no conclusive evidence to suggest that the mother now has access to other funds, including any savings, or that she is currently able to earn more than HK$10,000 per month (and that is putting it at its highest). In my view there is no evidence to suggest that there is a pot of gold and the end of this particular rainbow. I tend to accept that the mother has reduced her expenditure in order to live within her increasingly limited means and that this is probably not sustainable longer term, especially if she and the children are going to continue to live an ex patriate life of sorts.’

3) Payment by the Father

2.6 The Father has been paying $50,000 for the children’s maintenance. He also pays the children’s school fees directly to the school. The Judge summarised these payments :

‘ He has also agreed to pay for S’s orthodontic treatment. Historically he also paid for the children’s extra-curricular activities (ECA’s) and other ad hoc expenses when requested. However, it is acknowledged that he has not made these additional payments for some time. In total he says that he has been paying over HK$97,000 per month for the children’s expenses.’

2.7 At trial, the Father undertook to pay directly to the school the children’s secondary school fees until they left school, their ECA and school trips. He also undertook to pay directly to the provider the children’s medical and dental treatment and to pay other necessary and ad hoc payments for the children.

III. The awards

1) The children

3.1 The Judge found the general monthly expenses for the Mother and children, such as rent, food and household expenses at $54,000. The children’s share is $18,000 per month each. The Judge found the personal expenses for the children, such as meal outside, home, transport, clothing etc at $22,000 per month.

3.2 The Judge held the children’s total expenses amounted to $48,000 which is very close to the Father’s offer of $50,000. Accordingly, subject to the Father’s undertakings on the payment of the other expenses, the Judge ordered the Father to continue to pay $50,000 per month for the maintenance of the children. It is to be noted that the calculation of $48,000 is an arithmetic mistake. The total sum should be $58,000. After we pointed out this mistake to the parties, the Father very properly conceded the mistake and agreed to pay the children $60,000 per month as from 1 September 2019. The Mother agreed to this payment and accordingly a consent order was made.

2) The Mother

3.3 In respect of the Mother, apart from her share of the general expenses i.e. rent, food and household expenses at $18,000, the Judge found her personal expenses at $13,000. The Judge allowed her $25,000 as carer’s allowance, which is made up of $18,000 for the general expenses and a contribution of $7,000 towards her other expenses. This is on the basis that on the Mother’s own case that she is able to earn at least $5,000 per month and sometimes as much as $10,000 per month.

3) Reasons for granting carer’s allowance

3.4 The Judge held :

‘ 34. This is a hotly disputed item. The mother says that although the children are teenagers that she remains a full time caretaking mother. She says that she has no domestic help and that she is fully responsible for caring for the children and managing the household including all of the cooking, cleaning, shopping etc etc. In any event the mother is in Hong Kong on a rolling tourist visa and cannot work legally. She says that she has looked for work (although I would accept that this appears to have been half hearted at best and that there is a definite sense of litigation window dressing in that respect). The mother admits to working on a very part time basis as a language tutor. She said in her evidence that she was able to earn a fairly minimal amount of about HK$5,000 per month, although as I have said, her counsel said in his closing submission that between November 2015 and July 2016, she earned double that.

35. The father for his part points out that he should not be legally obliged to maintain a woman he was never married to, especially as the children are older and on his case, she has the ability to...