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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BETWEEN

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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

2.1The following facts are extracted from the judgment below. 

1)  The parties

2.2The 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.

2.3The 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

2.4The 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.

2.5The 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

2.6The 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.’

2.7At 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

3.1The 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.

3.2The 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

3.3In 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

3.4The 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 work in any event.

36.  There is an element of truth in both parties’ positions.  I accept that the mother should be able to work in some capacity and that if she wishes to remain in Hong Kong, then there is an onus on her to obtain a proper work visa.  I do not accept the argument that she needs to be available for the children on a full time basis.  In that respect it is of note that technically [D] is already an adult.  But, whilst the mother failed to come up to proof on many aspects of her case, it is also accepted that she may need some financial support for a limited period of time in order to ensure that she is able to maximize her earning capacity longer term.  I am also conscious of the fact that [D] is in her final year of school and that S has just begun his IGCSE courses which makes it difficult for her to leave Hong Kong in the immediate to short term.

37.  Consequently I will make an order for a carer’s allowance for the next two years.  By that stage S will have completed his IGCSE exams.  This should give the mother sufficient time to get on her feet, to retrain if necessary and to obtain a more secure position going forward with the requisite work visa.  I appreciate that this will be a blow to the father but overall this seems to me to be a reasonable outcome.’

IV.  The principles

4.1In Hong Kong, a parent’s responsibility for the maintenance of the children born within and outside marriage is governed by section 10 of the Guardianship of Minor’s Ordinance (Cap. 13).  The relevant section for the Court’s discretion to grant a carer’s allowance is accepted by Ms Rattigan to be under section 10(2)(b) :

‘ (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―

...

(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;’

4.2Hong Kong Courts have been adopting the principles propounded in the English decisions on the granting of a carer’s allowance, see, for example, IDC v SSA [2014] 4 HKLRD 220 at [54]-[62]; H v. S [2010] HKFLR 236; WGL v ASB [2013] HKFLR 391 and CKM v SKL [2012] HKFLR 177.

4.3In Re P (Child: Financial Provision) [2003] 2 FLR 865, Thorpe LJ reviewed and adopted the previous authorities such as Haroutunian v Jennings [1980] 1 FLR 62, A v A (A Minor: Financial Provision) [1994] 1 FLR 657 and J v C (Child: Financial Provision) [1998] 3 FCR 79 at 87, which established the principle that it is not wrong for the Court to augment the periodical payments order for a child to include an allowance for the carer (generally the mother), especially if the carer has to give up work or is unable to work because she has to look after the child.

4.4Thorpe LJ rejected the notion that the carer’s allowance should be less than the amount that a parent may need to pay a staff to look after the child because, as it was said, to allow more would be seen to be paying maintenance to the former mistress who has no claim in her own right to be maintained.  He held :

‘ [43]  I cannot agree with that reservation. I believe that a more generous approach to the calculation of the mother’s allowance is not only permissible but also realistic ....’

4.5Thorpe LJ further held that the welfare of the child is 

‘ [44]  .... in the generality of cases, a constant influence on the discretionary outcome. I say that because the purpose of the statutory exercise is to ensure for the child of parents who have never married and who have become alienated and combative, support and also protection against adult irresponsibility and selfishness, at least insofar as money and property can achieve those ends.’

4.6In the Hong Kong context the best interest of the child is, of course, the relevant consideration.

4.7Thorpe LJ emphasized on the need to adopt a broad common sense approach and discouraged undue bickering over budgets as this type of orders are often subject to subsequent variations.  The starting point is to ensure the child has a home to live and his future needs such as education, travel, holidays are met.  See [46, 47 and 48].  As for carer’s allowance, he held that :

‘ [49]  Thus, in my judgment, the court must recognise the responsibility, and often the sacrifice, of the unmarried parent (generally the mother) who is to be the primary carer for the child, perhaps the exclusive carer if the absent parent disassociates from the child. In order to discharge this responsibility the carer must have control of a budget that reflects her position and the position of the father, both social and financial. On the one hand she should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the other parent chooses to live lavishly. On the other hand whatever is provided is there to be spent at the expiration of the year for which it is provided. There can be no slack to enable the recipient to fund a pension or an endowment policy or otherwise to put money away for a rainy day. In some cases it may be appropriate for the court to expect the mother to keep relatively detailed accounts of her outgoings and expenditure in the first and then in succeeding years of receipt. Such evidence would obviously be highly relevant to the determination of any application for either upward or downward variation.’ (emphasis added)

4.8The paying father in Re P had unlimited resources, but, in our view, subject to the recognition of the paying parent’s financial ability in a particular case, many of these principles can still be applied with the necessary moderation to a case like the present where the Father does not have unlimited resources but is a professional earning a good income. As Bodey J observed in Re P :

‘ [80]  Since there will always be distinctions of fact and degree as between cases, it is not possible to reduce to words any formula for seeking to ensure that the above distinction is maintained between mother as carer and mother as former wife. There will always be some budgetary needs claimed by a mother which fall clearly within her reasonable needs as the child’s carer and others which fall clearly outside those needs as carer.

[81]  There will equally and inevitably be numerous grey areas, where the need asserted is of no direct benefit to the child, but is (or is arguably) of legitimate indirect benefit in helping reasonably to sustain the mother’s physical/emotional welfare. This will be most pronounced when the father is very wealthy and able without difficulty to provide for living costs of no clearly identifiable direct benefit to the child, but which would indirectly promote the mother’s care of the child by allowing her such a lifestyle as not to feel ‘out of place’ in the society of the parents of the child’s friends.’ (emphasis added)

V.  Our view

5.1Applying these principles to this case, what the Judge said in some passages in [36] and [37] of her judgment such as ‘she may need some financial support for a limited period of time in order to ensure that she is able to maximize her earning capacity longer term’ or ‘This should give the Mother sufficient time to get on her feet, to retrain if necessary....’ may on first reading give the impression that she is providing maintenance to the Mother in her status as a former partner of the Father for which she is not entitled to by law. 

5.2But in reality, all that the Judge was attempting to do was to address the Mother’s need which falls within the carer’s needs and the grey area where her need is of legitimate indirect benefit in helping reasonably to sustain her physical/emotional welfare.  This is a case where the Mother is the sole custodian responsible for the care and control of her two children in both the legal and practical sense of these terms because of the disassociation of the Father from his former family.  As the Mother poignantly submitted, apart from solely taking care of the everyday life of two children, she, on her own, also has to try to keep them away from trouble.  She is the only one looking after the emotional welfare of the two children who are growing up and are deeply affected by the separation and the Father’s neglectful behaviour towards them.

5.3This is a family whose previous life style should also be recognized.  They had lived in an apartment and in detached houses in some fashionable areas outside the city and also in a French chateau with nine hectares of land.  After the separation, the Mother and children more recently had to live in hotels, Airbnb and a one bedroom apartment before eventually moving to their current accommodation in Happy Valley so that the children could be able to travel on their own by public transport.

5.4The Judge found that the Mother has no other financial resources or savings and that she could earn no more than $10,000 per month.  The Mother is already 51 years of age.  Common sense will tell that she would have some real difficulties in entering the labour market at her age.  In any event, even assuming that she could secure a full time employment, inevitably a domestic helper has to be hired to take care of the household.  This will require money.  The Judge had adopted a mathematic approach by dividing the total expenses of the family into three parts and assessed the children’s need.  While this is permissible and is necessary to assess the need of the children, in reality their share of the rent and utilities etc at $18,000 each or $36,000 for the both of them does not mean they could live on their own and rent a place at $36,000.  The stark fact is that they have to live with the Mother and the rent alone of their current accommodation is already $39,000.  Again some extra money is required to maintain the household since the Mother could only earn $10,000 per month.  The authorities referred to the tension between, on the one hand, the mother who has no personal entitlement and, on the other hand, she is entitled to an allowance as the primary carer.  No precise formula can be suggested to resolve this tension.  Inevitably this is a fact sensitive exercise.  But the constant theme in this type of cases is that one has to recognise the responsibility and sacrifice of the primary carer or, like the present case, the sole carer of the children, particularly in case where the other parent’s financial ability to pay is not in issue.  The Father is correct to say that he has to save up for his old age but his responsibility to his former family only has a limited duration by the terms of the order.

5.5In our view the Judge is correct in her decision to give carer’s allowance to the Mother.  We would like to point out there is no backdating of the order as such by the Judge.  All that she did is to order the payment to commence from the date of the application to the date of her order and to limit the future carer’s allowance to a term of two years.  Inevitably there will be a time gap between lodging of the application and the hearing and the need for carer’s allowance clearly had arisen from the time of the application.

VI.  Conclusion

6.We will dismiss the appeal.

VII.  Costs

7.The Mother is to have the costs of the appeal which we will assess summarily on paper.  She is to lodge a summary of her costs within seven days of this judgment and the Father is to respond to it within seven days thereafter.

The applicant, unpresented, appearing in person

Ms Mairead Rattigan, instructed by Withers, for the respondent