Coka v. Rmtp

FCMP 180 / 2017

[2018] HKFC 50

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 180 of 2017

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

Date of Hearing: 29 March 2018

Date of Judgment: 13 April 2018

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J U D G M E N T
(Interim maintenance and further directions in relation to access)

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Introduction

1.This is an urgent application by a Respondent father for interim maintenance for the only minor child of the family, a little girl now aged 7 years old, pursuant to s.10(2)(b) of the Guardianship of Minors Ordinance, Cap 13.  

The main issues

2.The main issue to be determined is how much should the mother pay to the father as interim maintenance for the minor child, A? On the face of it the parties seem to be agreed that the mother should contribute towards half of the child’s monthly expenses. The father asks that the mother make such a contribution. Further in part 6.1 of the mother’s Form E dated the 15 February 2018 she states that she is asking the court to make an order that each contributes a “50% share of maintenance cost for the child”. The difficulty appears to be in the execution of that agreement in principle, given what can only be described as an increasingly fraught factual background.    

Background 

3.The parties are not married and by each of their accounts their relationship has been an extremely difficult one. The father accuses the mother of being an alcoholic and he remains very concerned about the mother having any form of unsupervised access to A. In his affirmations he outlines a relationship that has been dominated by addictive behaviour on the mother’s part, frequent unacceptable behaviour, Police involvement, denial etc, etc.  The mother for her part accuses the father of physical and emotional abuse; she also says that he is very controlling. She denies that she is an alcoholic.  

4.I am told that the parties met in 2009 via a dating web site and that for a while they conducted a long distance relationship. A was born on the XX March 2011 in France and she is a French national. The parties separated in April 2014, when A was only about 3 years of age and the mother moved, or was forced out of the parties home, depending on which version of events is to be believed. The parties were living in Hong Kong at the time. Since then A has been based with the father who has cared for her on a more or less full time basis, originally with the assistance of a full time domestic helper. It is the father’s case that he was originally very supportive of all forms of access post separation, but that he had no alternative but to start restrict the mother’s contact with A, when she was unable to comply with his requirement that she not drink during those periods. He has documented a series of incidences in his affirmations, which if true are a course for some considerable concern.

5.The father, who is French, is 51 years old and he is in Hong Kong on a tourist visa. He says that the original intention had been for the parties to marry, which would in turn have meant that he was entitled to a dependant’s visa. He is not currently working save on a part time consulting basis. Originally the mother paid for A’s domestic helper, but that arrangement came to an end in October 2017 following the commencement of these proceedings. Consequently, the father is currently looking after A on a full time basis. She is also being home schooled.    

6.The wife for her part is Cantonese and she holds a position as a Marketing manager at an IT company. She is 38 years old.

7.The mother issued an originating Summons on the 13 September 2017 seeking custody and care and control of A, with defined access to the father. She also asked that the father be restrained from removing A from the jurisdiction of Hong Kong. The non-removal application was repeated in a further inter partes summons dated the 15 September 2017. This was heard on an urgent basis given that the mother was concerned that the father might imminently take A out of the jurisdiction of Hong Kong without her consent. An order was made in these terms on the same date.    

8.On the 22 September 2017 a further order was made inter alia in the following terms:

AND UPON the Applicant undertaking not to consume alcohol when the Minor, namely R, E A, a girl, born on XX March 2011 (“the Minor”), is in her care.

…

The Applicant shall have interim defined access to the Minor as follows:

a.  Every Monday and Thursday from 7pm to 9pm;

b.  Every Saturday from 10:30am to 9pm;

c.  The Respondent shall drop the Minor at the Tung Chung MTR station and pick her up at the Applicant’s apartment in Tung Chung;

d.  Access to be supervised by either Mr P or the Applicant’s mother, or access shall take place at a public place.

9.On the 7 November 2017 the mother filed Notice of Acting in Person, having previously been represented by a specialist family law firm. The father has always represented himself.

10.Unfortunately matters took a turn for the worse at the hearing on the 13 November 2017, when it transpired that notwithstanding the undertaking given by the mother that she had nonetheless drunk alcohol whilst in the presence of A during access. Further the access had not been supervised, nor had it taken place in an open place as ordered. The mother was unable to make other alternative proposals for supervision and pending the receipt of reports it was ordered that the mother have supervised access once per week at the Parent-Child Contact Centre. Other orders for access were suspended.

11.Since then the mother has continued to press for unsupervised and more regular access to A. The father for his part resists such a move and maintains that the mother cannot be trusted.    

12.In the Social Welfare Report dated the 30 November 2017 the Social Welfare officer made the following recommendations:

54.  In view of the above and subject to the outcome of assessment by the Clinical Psychologist of SWD on parenting capacity of both parents, Mr R’s on-going care and control on A is supported from the viewpoint of continuity of care.  Accordingly, joint custody for A, despite her status as an illegitimate child, is supported or both parents’ involvement in making major welfare decisions for A.

55.  Though A appears to have mixed feeling towards Madam C [the mother] while having an affinity towards Mr R, [the father] this little lovely girl deserves love from both parents.  Other than supervised access by PCCC, the alterative of supervision by a third party mutually agreed by Madam C and Mr R so that the access can be carried in an open setting of longer duration is supported for fostering the mother-child relationship.  It can apply to interim access arrangement, or final access arrangement in case care and control is granted to Mr R.  In the long run, unsupervised access to A ought to be the goal to be worked on by both parents.

13.At the call over hearing on the 5 January 2018, and in the absence of any other third party who could assist, the court made a further order as follows:

3.  Orders 1 and 2 contained in the court order dated the 13^th November 2017 shall be varied to the extent that:

a) the Applicant shall have supervised access to the minor child – R, E A, a girl born on the XX March 2011 at the Parent-Child Contact Centre on the first Sunday of each month, such access to commence on the 4^th February 2018 and on one Saturday per month commencing on the 24^th February 2018 from 6 p.m. – 8:30 p.m.

b) prior to that arrangement commencing and on the other intervening weeks the Applicant shall have weekly supervised access at the Social Welfare Department, at a time and in a manner to be determined by the social welfare officer.

c) other access to be by agreement between the parties.

4.  Costs be reserved.

FURTHER IT IS DIRECTED that:-

5.  The Applicant shall have a hair test to determine whether or not she drinks alcohol too excess.

14.There then followed further difficulty re the provision of a hair test, which eventually resulted in the following direction being given by the court on the 8 March 2018:

FCMP No 180 of 2017

There are two issues here. Firstly, is the mother an alcoholic and can it be shown that she has abused alcohol historically and secondly is she currently abusing alcohol and is she presently a risk to her daughter when exercising her right to access.

Thus on the 5 January 2018 I directed inter alia that the mother have a hair test in Hong Kong to determine whether or not she drinks alcohol to excess. I did this because I have made similar directions in other cases when there have been issues of addiction and hair tests have been conducted in Hong Kong and reports have consequently been filed with the court. These are often conclusive one way or another. However, there is no court approved list of experts in this respect and the court very much relies on the parties themselves to make the appropriate enquiries and then the necessary arrangements in relation to the same.  

Both parties have filed written submissions as directed by the court. In the Respondent father’s submission of the 26 January 2018 he states that there is no laboratory in Hong Kong that undertakes such tests for alcohol. I have no way of knowing if that is correct or not. In any event he proposes that the hair test be conducted by a laboratory in Europe called E and he asks that the protocol as set out in his exhibit 1 be followed. The total price for the analysis and report in English is Euro 504.  

The mother for her part states inter alia that hair testing, PEth blood tests and urine tests for alcohol consumption are not available in Hong Kong. Again I have no way of knowing definitively if that is correct or not. She also says that these are not practical solutions in any event and she asks instead that she conduct a breathalyzer test both immediately before and after the access to her daughter and that this be overseen by the Social Welfare Officer with WhatsApp communication and photographs being used as confirmation that the breathalyzer has been taken etc etc. She also proposes a monthly blood (liver function) test. She suggests that this protocol be put in place for a three-month period whereupon the issue of access can be reviewed. On this premise she asks for unsupervised access to her daughter immediately and that this go hand in hand with the three-month period of testing identified.

It is of note that at the hearing on the 22 January 2018 the court reiterated to the Applicant that if she wished to formally review the issue of interim access then she would need to issue a summons with an affidavit in support. To date no such summons has been filed. Further the Social Welfare Officers are unlikely to take up the role identified by the mother in monitoring this arrangement. 

On the 6 March the father filed an Answer to the mother’s proposal. In a nut shell he is very opposed to the protocol identified by the mother. Similarly, the mother filed her response on the 7 March and reiterated that I asked for the test to be done in Hong Kong. She maintains that her proposal is both more feasible and more practical. She also reiterates the need for a blood test to be carried out in parallel in the event that a hair test is ordered as she is concerned about possible contamination of the sample because of cosmetic procedures to the hair or humidity etc.  

Direction

Having considered the proposals put forward by each side it is further directed that the mother have a hair test with E, the provider suggested by the father in accordance with the protocol identified at his exhibit 1 within the next 7 days. In the absence of a laboratory the hair should be cut by a pathologist or nurse in a surgery. A third party should be present when the mother’s hair is cut and the father may also be present to observe the same. I reiterate that the protocol identified must be followed. In addition, the mother shall have a blood test (liver function) also within the next 7 days. The cost for both shall be split between the parties equally. Once the report has been received from E and the blood test result received further consideration may be given to whether or not the protocol suggested by the mother, or indeed any other options need to be considered when looking at the issue of access overall. 

15.To date the court has not received the hair test report. The mother has provided a liver test report but there was no explanation of its findings. The mother has since tried to provide her own explanation of the results. The court has not been assisted by a full Dr’s report in this respect.

16.In the meantime access continues to be problematic, a situation not made any easier by a Memo received by the Social Welfare Department dated the 7 February 2018 which stated inter alia as follows:

2.  Her Honour Judge Melloy ordered on 5.1.218, among others, that Orders 1 and 2 contained in the Court Order dated 13.11.2017 shall be varied to the extent that:

(a) The Applicant shall have supervised access to the minor Child – R, E A, a girl born on the XX March 2011 at the Parent-Child Contact Centre on the first Sunday of each month, such access to commence on the 4.2.2018 from 2 p.m. – 5 p.m. and on one Saturday per month commencing on the 24.2.2018 from 6 p.m. – 8:30 p.m.

(b) Prior to that arrangement commencing and on the other intervening weeks the Applicant shall have weekly supervised access at the Social Welfare Department, at a time and in a manner to be determined by the social welfare officer.

3.  I would like to seek further directive from Court whether the condition ‘on the other intervening weeks’ in above item(b) applies to the access arrangement:

(c) only prior to 4.2.2018, i.e. weekly supervised access by the social welfare officer shall stop when the supervised access to the Child at the Parent-Child Contact Centre has commenced on 4.2.2018, OR

(d) still after 4.2.2018, i.e. weekly supervised access by the social welfare officer shall still be carried out on the remaining weeks of each month not covered by the first Sunday and one Saturday of each month.

17.The mother asked that this situation be clarified in this judgment.

18.In the meantime the father’s financial position has deteriorated significantly and he has also issued an application to relocate to Japan. At the time of the hearing the father had just been evicted from the flat he had been renting in Tung Chung and he has been forced to live in Air BnB’s with A. Luckily he has also been able to sell a property in France and he was expecting to receive the net proceeds of sale from this property in the sum of just under HK$2 million shortly after the hearing. In the meantime, he asks that the mother contribute towards A’s expenses and that in the event that this matter drags on past the Autumn that each side contribute equally towards A’s school expenses. The father said that A had previously been offered a place at the X International School and he now wishes to make a further application with a view to her commencing school in September 2018. The trial for both the mother’s Originating application for custody and care and control and the father’s relocation application has been set down for August 2018 with a further three days reserved.     

The law

Interim maintenance

19.The Guardianship of Minors Ordinance, Cap 13 and the Guardianship of Minors (Amendment) Ordinance 2012 governs this application and for completeness sake I have set out in full the relevant sections below.

3. General principles

(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property

(a)  in any proceedings before any court (whether or not a court as defined in section 2) the court –

(i)  shall regard the best interests of the minor as the first and paramount consideration …  

10. Orders for custody and maintenance on application of either parent

(1)  

(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;

(c)  an order requiring the securing to the applicant by such parent or either of such parents, to the satisfaction of the court, of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;

(d)  an order requiring the transfer to the applicant for the benefit of the minor, or to the minor, by such parent or either of such parents, of such property, being property to which the parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of that parent;

(e)  an order requiring the settlement for the benefit of the minor, to the satisfaction of the court, of such property, being property to which such parent or either of such parents is so entitled, as the court thinks reasonable having regard to the means of that parent. (Replaced 80 of 1997 s. 78)

(13)(3) On an application under section 10 the court may, in any case where it adjourns the hearing of the application for more than 7 days, make an interim order, to have effect until such date as may be specified in the order and containing─

(a)  provision for payment by either parent to the other, or to any person given the custody of the minor, of such periodical payments towards the maintenance of the minor as the court thinks reasonable having regard to the means of the parent on whom the requirement is imposed; and

(b)  where by reason of special circumstances the court thinks it proper, any provision regarding the custody of the minor or the right of access to the minor of either of his or her parents,

but an interim order under this subsection shall not be made to have effect after the end of the 3 months beginning with the date of the order or of any previous interim order made under this subsection with respect to the application, and shall cease to have effect on the making of a final order or on the dismissal of the application.

20.In addition, reference can also be made to the useful summary to be found in LCTK v TKKP FCMP 173 of 2009, unreported dated 25 June in which HH Judge Chu (as she then was) summarized the legal principles thus:

THE LEGAL PRINCIPLES

5.  The Court has power under s.10(2) of the Guardianship of Minors Ordinance (“GMO”) to make various forms of financial provision for a child, which includes periodical payments towards such child’s maintenance.

6.  There are no equivalent statutory matters as those set out in s. 7 of the Matrimonial Proceedings and Property Ordinance which the Court has to have regard to in exercising its discretion in making financial orders for a child under the GMO and the test is simply what is reasonable having regard to the means of the parent on whom the requirement is imposed (s. 10(2)(b)).

7.  Under s. 13 (3) (a) of the GMO, the Court has the power to make an interim order, but such interim order shall only have effect for 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.

8.  Our GMO is based on the UK Guardianship of Minors Act which is now incorporated in Schedule 1 of the Children Act 1989. Paragraph 9 of Schedule 1 relates to interim orders. However, there is now no 3 month limitation for an interim order in the UK provisions. Why there still remains in our legislation this limitation is not quite clear, but there seems to be nothing to stop the Court to make a further interim order, upon the cessation of the first one.

9.  There is no dispute between the parties as to the general legal principles. This being an interim application, and not having had 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.

With respect it seems to me that that remains the position now.  

How much maintenance should the mother pay to the father as interim maintenance for A?

21.Given that the parties agree in principle that they should each be responsible for 50% of A’s expenses, I will start from that premise.

The reasonable needs of A and the mother’s ability to pay

The reasonable needs of A

22.In his Form E dated the 27 February 2018 the father sets out his budget as follows:

Part 4 Current Monthly Expenses
4.1   General

Item	Amount
Rent	18,500 *
Mortgage instalments	8,600 *
Utilities (electricity, gas, rates, telephone & water)	1,400
Management fees	0
Food	8,000
Household expenses	0
Car expenses	0
Insurance premia	830
Domestic helper(s)	N/A
Other	0
Total monthly household expenses	HK$37,330

23.During the hearing the father acknowledged that he was not paying the mortgage and that he was currently having to pay more than HK$18,500 per month for Air BnB as they were very expensive. As at the date of the hearing he was paying HK$2,300 per day. His intention however was to try and enter into a standard tenancy agreement once he was in funds. The mother is currently paying rent of HK$11,000 per month. Consequently, I will reduce the father’s notional rental a little to HK$16,000 per month for both himself and A. I accept the other estimates save for the mortgage instalments and the insurance premia. Thus in total the father will have general expenses of approximately HK$25,400 per month. Of that half will be attributable to the father and half to A – or HK$12,700 per month each. The parties shall be notionally responsible for 50% of A’s costs or HK$6,350 each.     

A’s actual expenses

24.The father set’s out A’s expenses in his Form E as follows:

4.3   Children

Item	Amount
School fees	800
Extra tuition fees	1,000
School books and stationery	300
Transport to school (including school bus)	N/A
Medical / Dental	300
Extra-Curricular Activities	1,500
Entertainment / presents	500
Holidays	1,800
Clothing / Shoes	700
Insurance premia	830
Lunches and pocket money	N/A
Other Transport	500
Child-minding fees	N/A
Uniform	N/A
Others	N/A

Total Monthly Expenses (4.1 + 4.2 + 4.3)

HK$8,230

25.Of those expenses I will take out of the equation the reference to entertainment/presents and holidays. Each party shall be responsible for their own presents for A and in the longer term for other entertainment costs and holidays when each parent is with her. I accept that although the father is home schooling A through an official French Government Home schooling programme, that there are nevertheless some expenses associated with that. Thus in total I accept that the actual costs for A, without including the cost of a domestic helper or school fees and related expenses amounts to just under HK$6,000. Notionally then each party shall be responsible for 50% of those costs or HK$3,000 per month each.    

Can the mother afford to pay the sum of HK$9,350 per month towards A’s monthly expenses?   

26.The mother currently earns nearly HK$48,000 per month (HK$47,738) and according to her Form E she has outgoings of approximately HK$45,000 per month. Of those she says that she spends HK$8,000 per month on A. As indicated above I am taking any reference to entertainment/presents and holidays for A out of the equation and in any event the mother is clearly not making many, if any of these payments at present. Thus she should have these funds to hand to make a proper contribution towards A’s expenses when she is in the care of the father. In addition, it seems to me that the mother should be able to economize a little on her own personal expenses that currently amount to HK$19,000 per month.

27.Further given the perilous state of the father’s finances I would also expect there to be some further economies made around the budget of HK$2,500 per month for extra tuition and extracurricular activities.    

Conclusion on the level of maintenance

28.Consequently, I shall order that the mother pay the father HK$8,000 per month for A with effect from the 1 May 2018. Although this order is for a three months period, I will nevertheless expect this sum to be paid pending further order of the court.  

Backdating

29.The father maintains that the mother has not financially contributed towards A’s expenses since the party’s relationship broke down in April 2014. This is strenuously denied by the mother. In any event I am conscious of the fact that just as the father’s financial position is precarious to say the least, the mother similarly has nothing in the way of savings or other assets. Consequently, I will not backdate the order for maintenance at this time, as it seems to me that to do say may place an intolerable financial burden on the mother’s shoulders.       

Schooling

30.The father wishes to reapply for A to attend the X International School in Hong Kong. He has also made similar applications in Japan, which is where he wishes to relocate to. The difficulty is that it is difficult to see how either parent can afford this in the short term. Thus no further direction/order will be made in this respect at this time.

Further directions in relation to access

31.The original intent as set out in the court order dated the 22 September 2017 was that the mother should have access to A three times per week on each Monday and Thursday from 7 pm – 9 pm and all day on Saturday from 10:30 am – 9 pm. The access was either to be supervised by the mother’s then boyfriend or her mother [the maternal Grandmother] or it was to take place in a public place. It was also subject to the mother’s undertaking not to consume alcohol (i.e. any alcohol) whilst A was in her care. Unfortunately, the mother breached her undertaking and the supervision did not take place as ordered. Difficulties have then ensued as neither party has been able to make any other suggestions re supervision. The mother also maintains that she is not an alcoholic and that she only drinks in moderation. It is of note that her undertaking remains in place and that she has not been released from it. Consequently, the only other alternative was that access take place at the Parent Child Contact Centre once per week. In the meantime, I have yet to receive the hair test. Attempts for the mother to have additional access at the Social Welfare Department as set out in the court order dated the 5 January 2018 also ran into difficulty.

32.Consequently, and for the avoidance of doubt, it is further ordered that the mother shall have weekly supervised access visits at the offices of the Social Welfare Department, in addition to the weekly visits at the Parent and Child Contact Centre as set out in paragraph 3 (a) of the court order dated the 5 January 2018. This shall be at a time and in a manner deemed appropriate by the Social Welfare Officer. Paragraph 3 (b) of the order dated the 5 January 2018 is varied accordingly. Thus the mother will have direct access to A either once or twice per week. In addition, the mother shall have remote access to A on the days that she does not have direct access by either telephone, skype or Facetime. In the absence of any agreement to the contrary this access shall take place at 7:00 pm for approximately 10 minutes.

Costs

33.Costs shall be reserved.

Order

34.The order shall read as follows:

1)  The Applicant shall pay interim maintenance to the Respondent for the minor child, A in the sum of HK$8,000 per month, the first payment to be made on the 1 May 2018 and thereafter to be paid on the 1^st day of each succeeding month until further order.

2)  Costs shall be reserved.

3)  Further order 3 (b) contained in the court order dated the 5 January 2018 shall be varied to the extent that the Applicant shall have weekly supervised access to the minor child A, at the offices of the Social Welfare Department in addition to the access at the Parent and Child Contact Centre referred to in paragraph 3 (a) of the same order. In addition, the mother shall have remote access to A on the days that she does not have direct access by either telephone, skype or Facetime. In the absence of any agreement to the contrary this access shall take place at 7:00 pm for approximately 10 minutes. 

The Applicant and the Respondent both appeared in person