Re An Infant

CourtFamily Court (Hong Kong)
Judgment Date06 Jul 2007
Judgement NumberFCMP222/2006
SubjectMiscellaneous Proceedings
FCMP000222/2006 RE AN INFANT

FCMP 222/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 222 OF 2006

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IN THE MATTER of an infant
and
IN THE MATTER of an application under s. 10 of the GUARDIANSHIP OF MINORS ORDINANCE, CAP. 13

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Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing : 17 May & 4 June 2007

Date of Judgment : 6 July 2007

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J U D G M E N T

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1. This is the Applicant Mother’s application against the Respondent Father for maintenance for their child, a son born out of wedlock on 3rd September 2003, who is now 3 1/2 year old and is residing with the Mother and under her care and control. The Mother is a divorcee in her early 40s who used to be employed as a manageress of a health and beauty company, but is now in transition from freelance work to a more permanent employment, while the Father is a 31 year old kickboxing champion hailed from Cameroon who is now married with a wife and a small child and works as an instructor in a martial arts and fitness centre.

2. Although the issue is fairly straightforward, mainly about the child’s needs and the Father’s ability to pay, it would be relevant to go into the background in more details.

3. The Mother came to work in Hong Kong in the late 80s and subsequently married a Mr D, and as I understand, it was her 2nd marriage after divorcing her first, and she has 2 other children, both of whom are now adults, presumably born out of her 1st marriage.

4. The Father, on the other hand, only came to Hong Kong in about September 2002 after spending sometime doing competition in Thailand. It was here when the parties first met through mutual friends. The Mother’s case is that the parties started to cohabit together shortly thereafter during which she became pregnant with the child but when she discovered that the Father was seeing another woman, she therefore left him in March 2003 before giving birth to the child in September of the same year.

5. The Father however denies that there had been any cohabitation or relationship with the Mother, as he was then residing in accommodation provided by his sponsor, and that he already had a girlfriend at that time who subsequently became his present wife, but that it was the Mother who had been harassing and stalking him.

6. Whatever the truth of their case, and there were some serious squabbling between the parties which even involved the police intervention, it is not necessary for me to investigate the details as they are not in my view straightly relevant to the matter now before me, suffice it to say that the Father did make some payments of a few thousand dollars each from early 2004, and as from August 2004, he would regularly deposit a sum of $5,000 per month into the Mother’s Bank of East Asia account as his contribution for the child’s monthly maintenance which was later regulated in August 2005 by auto-pay on the 11th of each month.

7. In August 2006 when the child started his kindergarten, the Mother approached the Father for increase of the maintenance in view of the child’s additional school expenses, but after making some contribution towards the child’s school uniform and other start-up school expenses, the Father indicated that he could not afford any substantial increase on regular basis in view of his own financial burden due to the arrival of a baby to his own family, which unfortunately led to further squabbling between the parties that again involved the police intervention, and eventually to the present application issued on 22nd November 2006, in which the Mother, in addition to periodical sum towards the maintenance of the child, also seeks a lump sum for “the immediate and non-recurring needs of the child or for the purpose of enabling liabilities and expenses reasonably incurred in maintaining the child before making the order be met” as set out in the originating summons issued under the Guardianship of Minors Ordinance, Cap. 192 (GMO), i.e. the various medical and hospital expenses incurred by her for the birth of the child, the initial and consequential expenses for setting up accommodation for the child, and as aforesaid his education expenses.

8. Initially the Father, perhaps unwisely, disputed the paternity of the child and demanded DNA test be carried out, which necessitated an adjustment of the hearing but not before the Mother was able to obtain an order for interim maintenance of $7,000 per month dating back to 11th November 2006, the date which the Father used to pay in the past.

9. The paternity test, as expected, turned out to be positive, and the Father conceded his financial obligation towards the child, but as the parties were too far apart as to the quantum of the Mother’s application, the matter was adjourned further for them to file their respective Financial Statements, upon which both gave oral evidence at the trial and were cross-examined.

10. The part of the Mother’s originating summons for the lump sum is in fact taken, work for word, from s. 10 (2) of GMO which provides : -

(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 instalments) 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;
(
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