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R, Er v H, If

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date12 December 2018
Neutral Citation[2018] HKFC 229
Judgement NumberFCMP96/2018
Subject MatterMiscellaneous Proceedings
CourtFamily Court (Hong Kong)
FCMP96/2018 R, ER v. H, IF

FCMP 96 / 2018

[2018] HKFC 229

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 96 of 2018

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IN THE MATTER OF AN APPLICATION under Sections 3 and 10 of Guardianship of Minors Ordinance. Cap. 13
and
IN THE MATTER OF CMH, a boy born on the XX April 2010 and TWH, a boy also born on the XX April 2010, the Minors

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BETWEEN
R, ER Applicant
and
H, IF Respondent

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 2 November 2018

Date of Judgment: 12 December 2018

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J U D G M E N T
(Litigation funding)

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Introduction

1. This is an application by an Applicant mother for litigation funding. As the parents are not married the application has been brought under section 10 (2) of the Guardianship of Minors Ordinance, Cap 13. As will be seen, although in my experience the application is somewhat rare, the father is not disputing jurisdiction and he accepts that the court has the ability to make the order that the mother seeks.

2. In so far as maintenance itself is concerned it is agreed that the father shall continue to make monthly payments to the mother for the benefit of the minor children, twin boys aged 8 years, in the sum of HK$65,000 per month i.e. HK$32,500 per month per child. In addition, the father says as follows in his affidavit dated the 5 October 2018:

11. In addition to this interim financial support, I also provide financially for the Children by meeting the following costs:

(i) The shortfall in school fees not met by CP;

(ii) Behavioural optometrist and glasses for T;

(iii) Occupational therapy for T;

(iv) Medical costs not met by my employment medical insurance policy.

3. Consequently, I take it from this that the father also has no difficulty in undertaking to pay for the school fees and medical expenses of the children generally. This undertaking should also be included in the preamble of the order.

4. In addition to the maintenance for the children, the mother is also seeking leave to relocate to the United Kingdom with them, hopefully with effect from sometime in the summer 2019. At present the father does not consent to this application and it seems likely that there will be a trial on the matter. Consequently, the mother seeks a further sum of HK$50,000 per month as litigation funding. She says that this will not cover all of her legal bills, but that it will go some way towards defraying what are likely to be significant litigation costs. It is estimated that a trial may cost in the region of HK$1 million. She says, and I accept this to be the case, that this will cripple her financially.

The central issue

5. From a legal perspective then, the only issue to be determined is whether or not this is an appropriate case to award an element for litigation funding, and if so, in what amount?

Background

6. The parties met in Hong Kong in about 2001. The mother is British, but she spent time in Hong Kong during her childhood and teenage years, as both her parents worked in Hong Kong during that period of time. She undertook her tertiary studies in the United Kingdom and then developed a career in the media/journalism field back in Hong Kong. The father for his part is a pilot for a well known airline in Hong Kong. He is Australian. The mother is now 41 and the father 47 years of age. The twins were born in April 2010 and the mother has been their primary caretaking parent since that time. Unfortunately, unhappy differences arose between the couple and they separated in or around January 2014. The mother has not re partnered, but the father is now in a new relationship and he has had a further child. He has not married.

7. On the 10th August 2018, the parties agreed as follows:

1. The Respondent do have all the rights and authority that the law would allow him as father of the children, namely CMH, a boy born on XX April 2010, and TWH, a boy born on XX April 2010 (herein collectively called “the Children”), had he been married to the mother when the Children were born.

2. The Applicant and the Respondent do have joint custody of the Children with sole care and control to the Applicant and reasonable access including staying access to the Respondent.

Unfortunately, there are still some outstanding issues with respect to access and there has been no agreement as yet with respect to relocation.

8. According to the parties Form H’s, and as indicated above, it is the mother’s case that a full trial on relocation and access will cost in the region of just under HK$1 million – i.e. HK$956,000. She says that she currently has unpaid legal costs of around HK$170,000. The father for his part has not provided an estimate for trial, but says that he has total fees to date of just over HK$600,000. The mother says her fees to date amount to just over HK$460,000.

Litigation costs

9. Ms Irving for the mother helpfully took me through the case law from the United Kingdom on the issue of litigation funding in unmarried cases and referred inter alia to the following cases:

5. Re S (Child: Financial Provisions)[2005] 2 FLR 94.

6. M-T v T [2007] 2 FLR 925.

7. G v G [2010] 2 FLR 1264.

8. CF v KM(Financial Provision for Child: Costs of Legal Proceedings) [2011] 1 FLR 208.

9. R v F (Schedule One: Child Maintenance: Mother's Cost of Contact Proceedings) [2011] 2 FLR 991.

10. H v H FCMC 1969 of 2007 judgment of 3 October 2007.

11. MG and JG v JF and JFG [2015] EWHC 564 (Fam) (10 March 2015).

I do not intend to go through these in detail here, but suffice it to say that it was of some interest to see how the law had developed in this area.

10. There are only a few cases on this discreet point in Hong Kong, and both sides referred me in particular to the High Court case of WGL v ASB (HCMP 489 of 2013, 30 November 2017. As a general point I accept as pointed out by Ms Rattigan for the father that:

With regard to Legal Costs funding, this is a non-matrimonial application, proceedings are under the Guardianship of Minor’s Ordinance (“GMO”) so the Court must exercise caution considering any grant of legal costs...

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