Dcb v. Ab

HCMP 2173/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2173 OF 2014

______________________

______________________

BETWEEN

______________________

________________

J U D G M E N T

________________

Introduction

1.These wardship proceedings were issued by the plaintiff father (“F”) in August 2014, after the defendant mother (“M”) took their daughter (“L”) to Singapore two months earlier without his consent.

2.M and L eventually returned to Hong Kong on about 8 March 2016 after being ordered by the Singapore Court to do so, and the present applications concern maintenance for L, pending the hearing of M’s application for permanent removal/relocation of L from Hong Kong to Singapore.

Background

3.F and M met in March 2010.  They soon developed a relationship and cohabited from about June 2012.  L was born in May 2013 out of their cohabitation, and is now 3 years old.

4.The parties’ relationship broke down after having an argument on the scheduled date of their wedding on 21 June 2014, and the wedding had to be cancelled.

5.On 23 June 2014, M took L and left Hong Kong and went to Singapore where her family lives.  According to F, he was at first informed by M that she and L would return on about 6 July 2014, but they failed to do so.  This then led to F issuing the present proceedings.

6.In the originating summons, F sought orders including the following:

(i) L be made a ward of this court;

(ii) All of the rights and authority that the law would allow him as father if the L were legitimate, under section 3 (1)(d) of the Guardianship of Minors Ordinance, Cap 13;

(iii) F to have custody, care and control of the L;

(iv) M do return L to Hong Kong forthwith.

7.F had upon issue of these proceedings immediate applied for interim access, and an order was made by Au Yeung J on 12 September 2014, for F to have interim access to L for 2 weeks every 4 weeks in Hong Kong until further order (“Interim Access Order”).  Under the Interim Access Order, F was to fund the expenses for collecting L from Singapore and sending her back to Singapore to M.

8.Subsequently on 16 October 2014, F was granted by this court all of the rights and authority that the law would allow him as father if L were born legitimate, with reasons handed down the following day. On the same day, this court further ordered that the Interim Access Order to continue until further order.

9.After F issued the wardship proceedings in Hong Kong, M also issued proceedings in Singapore, seeking among other things, sole custody of and maintenance for L.  There were thus parallel proceedings in both Hong Kong and Singapore.

10.M had initially instructed solicitors in the Hong Kong proceedings, but before the hearing on 16 October 2014, she filed a notice to act in person and did not appear. 

11.Eventually, on 18 February 2015, the Singapore Court granted a stay of the Singapore proceedings, and M’s application for leave to appeal was subsequently dismissed on 30 September 2015.

12.In the meantime, and notwithstanding the stay of the Singapore proceedings, M failed to take part in the Hong Kong proceedings, nor did she comply with the Interim Access Order.  F decided to also act in person and issued a summons on 2 March 2015 seeking interim custody, care and control of L.  On 19 March 2015, this court ordered that F be granted interim custody, care and control and that D was ordered to return L to Hong Kong for the purpose of carrying out the terms of the Interim Access Order.  This court further directed that F’s originating summons be set down for a substantive hearing on 19 May 2015.

13.M continued to ignore the Hong Kong proceedings and the orders made herein.  As a result, in her absence, this court made an order on 19 May 2015 for the parties to have joint custody of L, with care and control to F, and that M was to have access to L for 2 weeks in every 4 weeks, and that M was to return L to Hong Kong (“19.05.15 Order”).  The question of financial provision for L was further adjourned to a direction hearing on 8 July 2015, which was later adjourned sine die with liberty to restore. 

14.F had further decided to issue proceedings in Singapore under section 8 of the Singapore International Abduction of Children Act, which I understand incorporates provisions of the 1980 Hague Convention on the Civil Aspects of International Children Abduction, for the return of L to Hong Kong.

15.On 30 December 2016, District Judge Jen Koh of Singapore ordered that upon F’s and M’s respective undertakings as set out in the order and subject to such undertakings being carried out by both parties, L was ordered to be returned to her place of habitual residence which was Hong Kong before 31 January 2016[1].  F was to undertake to apply for a mirror order in Hong Kong to incorporate all the undertakings prior to M returning to Hong Kong with L.  On 6 January 2016, M filed an appeal against Judge Koh’s order of 30 December 2015.

16.On 8 January 2016, F issued a summons and applied to this court for the undertakings given by him and M to the Singapore Court be incorporated in a mirror order and further sought, among other orders, maintenance from M in the sum of HK$4,000 upon L’s return to Hong Kong, and orders regarding a parenting plan for L[2].

17.The undertakings were incorporated in this court’s order of 14 January 2016, whereas the other orders sought in F’s summons were adjourned to a further direction hearing on 3 March 2016, after L’s return[3].

18.M applied for legal aid in Hong Kong and filed an application on 1 March 2016 to vary the 19.05.15 Order.

19.M’s appeal against the return order of 30 December 2015 was dismissed by Judicial Commissioner Debbie Ong on 7 March 2016, and parties’ undertakings given under the order of 30 December 2015 were superseded. 

20.As mentioned earlier, M finally returned with L to Hong Kong on about 8 March 2016.

21.M issued a summons on 16 March 2016, seeking leave to relocate L from Hong Kong back to Singapore. 

22.M also issued another summons on the same day, seeking care and control of L, with defined and staying access to F, and interim financial maintenance for L of not less than HK$5,000 per month, and based on the Interim Access Order, an interim allowance of HK$20,000 for the benefit of L, and this was followed by a further summons issued by M on 16 May 2016 for F to make a periodical payment towards the maintenance, advancement and/or benefit of L.

23.I understand that M’s application was for interim maintenance pending the determination of M’s application for L’s relocation, which has been set down for a substantive hearing for 5 days commencing 14 December 2016. 

24.For the purpose of the present application, the parties have agreed to adopt an average exchange rate of 1 SGD to HKD 5.5 for past 12 months. 

The Legal Principles

25.The general legal principles have been set out in this court’s judgment in LCTK & Anor v TKKP, [2010] HKCU 1644, FCMC 173/2009, unreported, 25 June 2010, as referred to by Mr Egerton, Counsel for M.

26.The court will have to adopt a broad brush approach in an interim application and what matters is the immediate and reasonable financial needs of a child.

F’s approach

27.F appeared to be under the impression that because he was granted sole care and control, M had to pay him for support in raising L, or that M should not be entitled to maintenance for L when she was only exercising access rights[4].  He seemed also to be under the impression that a parent who had abducted a child should not be subsequently granted financial support[5].

28.First of all, M was seeking maintenance or financial orders for the benefit of L, and not for the benefit of herself. Secondly, the underlying objective of the 1980 Hague Convention is for the taking/abducting parent to return the child to the state of the child’s habitual residence and for the court in the state of the child’s habitual residence to make appropriate orders in relation to the child, including custody/access/financial orders.  After the return of an abducted child to Hong Kong, the Hong Kong court will upon application of either parent make orders regard custody and access of and maintenance for the child in the normal way, under the applicable legislation, and in the present case, under section 10 of the Guardianship of Minors Ordinance, Cap 13.  In doing so, the court will take into consideration the child’s best interests and shall give due consideration to the views of the child having regard to the age and understanding of the child and any material information contained in a social welfare report[6].  The court also has the power to vary any orders previously made[7].

29.I would also add that in Hong Kong, the law in relation to children is about to be changed with the new proposed “Children Proceedings (Parental Responsibility) Bill”, which if passed by the Legislative Council, is likely to come into effect early next year.  Under this new Bill, terminologies such as “custody and/or “care and control”, with their connotations of ownership of a child, will be swept away and replaced by a new “child arrangements order”.  As set out in the Foreword in the Consultation Paper to the Bill[8], in recent years, the courts have recognised the importance of maintaining the direct involvement of both parents in the child’s life as far as possible, and more orders for joint custody are now being made.  Under these orders, although one parent may have daily care and control of the child, both parents continue to be actively involved in the child’s life and in making major decisions affecting the child. 

30.Whatever the terminologies, the practical arrangement regarding L is that since her return to Hong Kong, she has been spending two weeks every 4 weeks with her father, and the other two weeks with her mother, and thus for those two weeks when L is with M in Hong Kong, M will incur expenses for the benefit of L.

31.In light of the above, F’s approach towards the present applications are totally misconceived.

L’s financial needs

During the 2 weeks L is with F

32.The 19.05.15 Order was made in M’s absence, and when she was refusing to return with L to Hong Kong. M is now applying to vary that order and to seek care and control of L, and a relocation order.  As I have said, the present practical arrangements are that L spends 2 weeks with each of her parents.

33.Prior to the breakdown of their relationship, F and M, and L, were living on Peng Chau Island.  F has continued to live there with his current wife, as F has since M’s departure married someone else in February 2015. 

34.For the two weeks L spends with F, according to F’s Form E filed in April 2016, L’s expenses are about HK$5,240 per month, inclusive of her school expenses.  As L has not been enrolled in any nursery school in Hong Kong, her expenses are about HK$ 4,000 per month when she is with F.  F said this amount had not taken into account for L’s share of rent and general expenses totaling about HK$71,800, with his rent having just been increased by HK$2,000 to HK$26,000 per month.

35.F had filed his 1^st Form E earlier in June 2015[9].  By comparison, it seems his expenses under the “General” were much higher at that time, due mainly to a high amount for food expenses.  In any event, F is still in the same premises and there is no evidence from him that he has incurred a higher rent because he now has L living with him for 2 weeks every 4 weeks.

36.L is only 3 years old, and it is unlikely that F’s other expenses under “General” are going to increase substantially because of L’s 2 week stay.  I note however that he has not included any food for L.  M’s estimated expenses for food and milk for L are about $1,561.  These items should be more or less the same when L stays with F.

37.Taking a broad brush approach, I am of the view that L’s expenses when she is staying with F are about HK$5,500, plus any medical expenses which will be reimbursable under his medical insurance policy, and any nursery school fees, if applicable.

During the 2 weeks L is with M

38.In her 6^th affidavit, M estimated the accommodation for her and L if L remains in Hong Kong to be about HK$14,000 per month from August 2016 onwards.

39.Unlike F, M does not now live in Hong Kong, and when she and L first returned in March 2016, they had stayed with friends.  M and L should not be expected to depend on the generosity of M’s friends to provide accommodation for them on an ongoing basis.  L is too young to live in Hong Kong on her own during the two weeks when she is not with F.  I therefore accept that, pending the determination of M’s relocation application, M will need accommodation for the benefit of L and her estimated amount for accommodation expenses in Hong Kong of about HK$14,000 per month is reasonable. 

40.M has been flying back to Singapore when L is with F, and her future flight tickets from August 2016 onwards will be about SG 375.50 per month, or @ 5.5, about HK$2,065 per month.  Again, in my view, this is a reasonable amount, as M needs to fly back to Singapore when L is with F, to work.

41.F has said that L’s medical costs are covered under his medical insurance scheme, and upon his undertaking to reimburse M for L’s medical costs, the estimated amount of HK$2,727.50 can be deducted from L’s estimated expenses.

42.M has recently submitted a Schedule (D) in relation to L’s updated estimated expenses from August 2016 onwards.  This has continued to include a monthly amount of SG 834.50, or about HK$4,590 for L’s school fees in Singapore.  M’s relocation application will only be heard around middle of December 2016, and it is unlikely that the court will hand down its judgment immediately, and there may be an appeal.  Thus, realistically, even if M is successful with her relocation application, L is unlikely to return to live in Singapore until sometime in early to mid 2017. There is no sufficient evidence that L will not be re-admitted into the same school if M is successful with her relocation application, or that L’s place will no longer be available by early 2017.  Unless M is able to provide further evidence as to why she needs to continue to pay the monthly school fees in Singapore, I will deduct this item from Schedule (D). 

43.On a broad brush basis, I am of the view that L’s expenses as from August 2016 onwards, when she stays with M will be about HK$22,224.50 a month, plus L’s medical expenses being reimbursed by F.  

M’s financial position

44.M is a psychologist.  According to M, prior to leaving Hong Kong for Singapore in June 2014, she and L were financially dependent on F.  This was however disputed by F.

45.Anyway, after M took L to Singapore, in August 2014, M started her own practice in Singapore as a clinical psychologist, and as mentioned earlier, she has flown to and from Singapore so that she can continue her work in her clinic during the two weeks when L is with F.

46.In M’s Form E sworn on 6 April 2016, she gave her average income to be about HK$21,730 per month.  This was challenged by F, who said her income was in the region of HK$38,000 per month.

47.In her 6^th affidavit, M gave further details about her income and her practice.  M’s net income was said to be about average of HK$28,622 over the past 12 months (July 2015 to June 2016), although, if one were to take an average over past 6 months (January to June 2016), it would be about HK$38,126 per month.  She had however explained that her income varied from month to month, in that for April to June 2016, she had had a much larger than usual amount of money coming into her accounts due to clients purchasing “packages”, and she had also said this would likely be a significant drop in her income for July and August 2016.

48.For the present interim purposes, I am prepared to accept that M’s net income to be an average of about HK$28,633 only.  Her updated general and personal expenses in Schedule (C) are about $22,907 a month.

49.In M’s Form E filed on 6 April 2016, she disclosed negative assets of about HK$597,000, which was updated to about negative HK$475, 740 at the hearing.  

F’s financial position 

50.F has changed his job earlier this year and as from 1 February 2016, he has been working as the Country Manager for an Swiss insurance group.  He stated in his 2^nd Form E filed in early April 2016 that his income was HK$150,000 per month.

51.So far as F’s salaries tax is concerned, he had mentioned tax rate at 17%, but this is only the maximum on a progressive scale if he had elected personal assessment.  According to F, his wife works as a personal trainer and her monthly income is about HK$10,000 per month, and she has assets of about HK$232,000.  If F is single, then his present income will fall into the level for standard flat rate of 15%, but if he and his wife are entitled to elect personal assessment, there will be deductible allowances and he may also be able to claim child allowance for L.  F has not provided copies of his latest tax returns.

52.In any event, the average amount of HK$25,500 per month for tax, as stated by F in his Form E, is on the high side, and as seen from his bank statement, his payment of tax on 20 January 2016 was HK$179,496 which presumably was for 2014/2015 tax year.

53.His current income is about HK$10,000 per month higher than his previous income.  On a rough calculation, his tax liabilities should not be more than about HK$200,000 a year, or roughly HK$17,000 per month.  Although the tax is not payable every month, I accept that monthly savings/allowances should be made for tax liabilities.  In fact, M has herself done the same.

54.At the hearing, F informed this court that for the first 6 months, he is on probation, and although for the first 3 months, there was no MPF deduction, the MFP deduction of HK$1,500 per month started as from May 2016, and further there has been a monthly deduction of HK$4,600 for medical insurance, making his present take home pay to be HK$143,900 per month, before tax.  F had not produced a copy of his latest salary statement or employment contract.  It is not clear whether he receives any other benefits from his employment.  His general and personal expenses were about $143,232 in his 2^nd Form E, at the old rent.

55.In his 2^nd Form E, his assets were stated to be in the region of HK$2.4m.  F said the majority of his assets were illiquid, and he owed legal costs to his Singapore solicitors and his former solicitors in Hong Kong.  The amount which he said he still owed his former solicitors Hong Kong at the time of the hearing was HK$116,872[10].

56.F had taken out a personal loan for HK$1.6m which was drawn down on 25 January 2016, and which appeared to be still in F’s HSBC Savings Account.  Mr Egerton submitted that this amount, which was taken out shortly after the hearing on 14 January 2016, was taken out by F to increase his expenses.

57.Although F said he still owed legal costs to his lawyers, it did not seem that it was necessary for him to take out a personal loan of an amount as high as HK$1.6m.  In any event, I am satisfied that he is able to make financial contribution towards L’s interim expenses as ordered below.

Parents’ respective contributions

58.Leaving aside her school expenses and medical expenses, L’s  interim financial needs while staying in Hong Kong, combining both her expenses when she is with M and when she is with F are a total of about HK$27,724.50 per month, or about HK$28,000.

59.I am of the view that the parties’ respective income, after tax, should be taken as a rough basis for calculating their respective contributions for L’s interim financial needs of HK$28,000 per month.

60.M has said her monthly tax liabilities to be about HK$720 per month, and thus, I would make her average income after tax to be about HK$28,000 per month.  F’s tax liabilities are estimated to be about HK$17,000 per month, and his after tax income is thus about HK$133,000 per month.

61.Comparing F’s after tax income of about HK$133,000 to M’s after tax income of HK$28,000, on a broad brush approach, I am of the view that F and M should contribute and share L’s total interim needs of HK$28,000 in the respective proportion of about 83% (being F’s) and 17% (being M’s).

62.Thus, F should pay M HK$17,740 per month (being 83% x HK$28,000 less HK$5,500 paid by F for L during L’s 2 week stay with him ) from 1 August 2016 onwards until further order, in addition to his undertaking to arrange for L’s medical expenses since her arrival in Hong Kong to be paid/reimbursed as soon as practicable upon presentation of such invoices and also on his undertaking to pay L’s nursery school expenses in Hong Kong, if and when applicable.

63.This means M will herself have to contribute about $4,500 per month for L’s expenses (22,224.50 less $17,740).  I am of the view that M should be able to do so.

L’s expenses from 8 March to 13 July 2016

64.M has set out L’s expenses from 8 March to 13 July 2016 in Schedule (B) attached to her 6^th affidavit in the sum of HK$85,137.

65.To this, L’s medical expenses should be paid/reimbursed by F as mentioned earlier. 

66.As for L’s school fees in Singapore, this court gave directions for the fixing of 5 days for trial for M’s relocation application on May 2015, and dates were fixed on that day.  It should be clear to M on that day that the trial dates are fixed in December 2016, and that even if her relocation application is successful, L is unlikely to return to Singapore until early next year.  In my view, unless there is further evidence provided by M as mentioned earlier, it appears to be rather unnecessary for M to continue to pay for L’s school fees after May 2016.  Anyway, I am of the view that it is reasonable for F to contribute to such school fees only until May 2016. 

67.Save for the above deductions, F should reimburse M for 83% of her other expenses.  For whatever reason, M seemed to choose to calculate all L’s expenses in Hong Kong based on Singapore Dollars in Schedule (B).  On my calculations, after deducting L’s medical expenses, the total amount came to SGD 12,834.50 being:

M’s Flights	SGD 2,428.50
Rental Accommodation + utilities	SGD 2,858
Other expenses ( items 3-11 less L’s school fees for June and July 2016)	SGD 7,548
Total	_____________ SGD 12,834.50
@ 5.5	HK $ 70,589.75

68.The amount to be paid by F should be about HK$58,589.49 (83% of HK$70,589.75), which I will round up to HK$58,590.  I am of the view that F should be able to pay this amount within 14 days.  As M is under legal aid, the amount should be paid to M’s solicitors so that they can clarify with the Director of Legal Aid as to whether any first charge is applicable.

Order

69.The effect of my order is therefore as follows:

(i) The Plaintiff shall pay the Defendant HK$17,740 per month  as interim maintenance for the benefit of L, from 1 August 2016 onwards on the 1^st day of each calendar month until further order, upon the Plaintiff’s undertaking to arrange for L’s medical expenses since her arrival in Hong Kong to be paid/reimbursed as soon as practicable upon presentation of such invoices and also upon the Plaintiff’s undertaking to be responsible for payment of L’s nursery school expenses in Hong Kong, if and when applicable.

(ii) The Plaintiff shall pay the Defendant through her solicitors a sum of HK$58,590 within 14 days hereof, being expenses incurred by the Defendant for the benefit of L from 8 March 2016 until 13 July 2016.

70.I will reserve the question of costs.  M’s own costs be taxed under Legal Aid Regulations, with certificate for Counsel.

The plaintiff appeared in person

Mr Robin Egerton, instructed by Tanner De Witt, for the defendant