Wjt v. Yatm

FCMP 79/2017

[2019] HKFC 24

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 79 OF 2017

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D E C I S I O N
( Carer Allowance )

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Introduction

1.The trial of the application of the Applicant (“the Mother”) by way of an Originating Summons filed on 25^th April 2017 (as amended on 1^st June 2017) (“the Originating Summons”) for financial provision for the benefit of a child (“the child”), who was born out of wedlock between the parties on 16^th January 2013 was fixed to be heard on 8^th January 2019 after the issue of the relocation of the child had been settled by a Consent Order dated 7^th March 2018.

2.The Mother asks for financial provisions for the child (including carer’s allowance) as follows :-

(1)  Periodical payment at the rate of HK$90,000 per month for the benefit of the child, until the child reaches the age of 18 or the completion of full-time education, whichever is later;

(2)  Carer’s allowance for the Mother for a duration of 8 years at the rate of HK$50,000 monthly; and

(3)  Lump sums of HK$1,089,913 (for reimbursement of relocation and setting up costs) and HK$156,000 (for private club joining fee).

3.The Respondent (“the Father”) raised a point that the element of the Mother/carer’s allowance included in the Mother’s claim is not pleaded in the Originating Summons and the Court should altogether disregard this part of the Mother’s claim.

4.The position of the Mother is that, as a matter of law and by understanding the nature of Mother/carer’s allowance, paragraph 5 of the Originating Summons is entirely proper and wide enough to cover this part of the Mother’s claim, and the Court can proceed with listening to evidence and to treat this as a legal point for closing submissions, the Mother have to bear the risk that she may turn out to be unsuccessful on this point. 

5.The Position of the Father is that he did not agree to the approach taken by the Mother and his position is that the point raised be dealt with by way of preliminary issue to be determined by the Court first.

6.As a result, the point raised by the Father will be dealt with by way of a hearing of the preliminary issue and the rest of the substantive hearing of the application of the Mother under paragraph 5 of the Originating Summons will be adjourned to another date for trial.

7.The present hearing is to deal with the point raised by the Father, namely whether the Mother/Carer allowance needed to be specifically pleaded in the Originating Summons before the Court can make such award.

Discussion

8.To answer the question raised by the Father, it is necessary to discuss the applicable law under which the Mother can claim the carer allowance.

9.The Mother submitted that the power of the Court to determine the Mother’s claim comes from section 10(2) of the Guardianship of Minors Ordinance (“GMO”), Cap 13 which provides :-

“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 in 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….”

10.For the purpose of illustrating the potential entitlement of carer allowance of the Mother, the following cases had been referred to and relied on by the Mother, namely Haroutunian v Jennings [1980] FLR 62, Re P (Child : Financial Provision) [2003] 2 FLR, T v J (unrep., FCMP 38/2007), Re C (Financial Provision) [2007] 1 FLR 13, CMK v SKL FCMP 67/2011, H v S [2010] HKFLR 236, and WGL v ASB (Child Maintenance under the GMO) [2013] HKFLR 391.

11.The Mother submitted that in Haroutunian v Jennings, it was stated that it is entirely proper to include an allowance for the mother in the periodical payments order for a child in order to reflect a primary carer’s sacrifice :

“in fixing maintenance in this Division that the mother may well be forced and rightly forced to give up employment or not to take employment in order to look after a child. It seems to me perfectly proper that that should be reflected in a maintenance order for the child.”

12.The Mother submitted that Haroutunian v Jennings was followed by Re P (Child : Financial Provision) [2003] 2 FLR 865 at para 76(iii), it was stated that :-

“One of the ‘financial needs of the child’ (to which by para 4(1)(c) the court must pay regard) is for him or her to be cared for by a mother who is in a position, both financially and generally, to provide that caring. So it is well established that a child’s need for a carer enables account to be taken of the caring parent’s needs : Haroutunian v Jennings [1980] FLR 62 at 66; and A v A (financial provision for child) [1995] 1 FCR 309 at 317.”

13.The Mother further submitted that in Re P, Thorpe LJ further elaborated at para 47-48 the rationale of allowing a mother’s allowance to be part of child maintenance. The allowance enables the caring parent to raise the child with a budget in hand that bears some degree of relevance to the other parent’s financial position and standard of comfort :

“[48] In making this broad assessment how should the Judge approach the mother’s allowance, perhaps the most emotive element in the periodical payment? The Respondent will often accept with equanimity elements within the claim that are incapable of benefiting the applicant (for instance school fees or children’s clothing) but payments which the respondent may see more for the benefit of the applicant than the child are likely to be bitterly resisted. Thus there is an inevitable tension between the two propositions, both correct in law, first that the applicant has no personal entitlement, secondly that she is entitled to an allowance as the child’s primary carer. Balancing this tension may be difficult in individual cases. In my judgment, the mother’s entitlement to an allowance as the primary career (an expression which I stress) may be checked but not diminished by the absence of any direct claim in law.

[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 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 endownment 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.”   

14.The Mother’s submission is that the principle established by the authorities referred is that “mother’s allowance” is permissible only because an unmarried caring parent requires a budget for the sole and only purpose of discharging his/her child responsibility, and that mother’s allowance must and can only be claimed as part of the maintenance for the child though it needs not be separately and independently identified, and this must be correct as otherwise such a claim will exceed the ambit of section 10(2) of the GMO.

15.In T v J (unrep., FCMP 38/2007 dated 26^th August 2008) at para 24, it was stated that :

“[24] While the court must always guard against unreasonable claims made on behalf of a child’s behalf with the disguised element of providing for the mother’s benefit rather than the child, as the Father suspects to be the case here, it is well established that a child’s need for a carer enables account to be taken of the caring parent’s financial needs, as the welfare of the child is not just one of the relevant circumstances, but also a constant influence on the discretionary outcome : N v D. It is therefore not realistic simply to apportion items of the budget as referable to the child’s needs because, in my judgment, financial provision must also be made to the mother to enable her to meet the child’s needs, even if it means only temporary until she is able to obtain domestic help and returns to work to maintain herself, as is the proposal of the Mother here, and as the Court of Appeal in the case of Re P (Child : Financial Provision) [2003] ALL ER (D) 312 (Jun), CA, indicated that ‘a more generous approach to the calculation of the mother’s allowance is not only permissible but also realistic’.”

16.My view is that I agree with the Mother’s observation that the power of the Court to determine the Mother’s claim comes from section 10(2) of GMO. Under section 10(2) of GMO, the Court can make an order for such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent.

17.The section did not empower the Court to grant any periodical sum towards the maintenance of the Mother. There is simply no provision where the unmarried mother can invoke to claim purely for her own entitlement against the Father. The mother’s allowance, if any, can only be made as a component of the maintenance of the minor, because the allowance made to the mother was for the purpose of enabling her to meet the child’s needs.

18.In CMK v SKL FCMP 67/2011, 27/4/2012 (unrep) HHJ Melloy followed and cited In Re C (Financial Provision) [2007] 1 FLR 13 :-

“(5) In determining what was reasonable budget, it was necessary to treat the mother’s allowance as primary carer as an independent item, In addition to the direct costs of the child. This did not mean that an actual separate sum had to be identified; rather, the court should bear in mind that factor when looking at the overall budget…”

19.In H v S [2010] HKFLR 236, at para 150, it was stated that :-

“In deciding what is a reasonable budget, although it seems that Re P emphasised the need to treat the mother’s allowance as a primary carer as an independent item, in addition to the direct costs of the child, District Judge Million in Re C [95] has said he did not read those remarks to mean that an actual separate sum had to be identified; rather, the court should bear in mind that factor when looking at the overall budget. “the court in Re P took an explicitly broad brush approach in arriving at an overall budget (in that case) of 70,000 pounds a year.” It was also held in N v D that it was not realistic simply to apportion items of budget as referable only to the child’s needs because financial provision had to be made for the mother to enable her to meet those needs. I therefore propose to adopt a broad brush approach in assessing what is a reasonable budget to cover T’s financial needs and M’s needs as primary carer.”

20.The principle established by the above authorities is that the mother’s allowance must and can only be claimed as a part of the maintenance for the child, therefore in terms of pleading, there is no need for the Mother to plead in the Originating Summons, because the mother’s allowance cannot be treated as an independent cause of action.

21.My view is that in determining what was a reasonable budget for the child maintenance, the mother’ allowance is only one of the items of the discretionary outcome of the quantum of the child maintenance as established by the above authorities.

22.Therefore, in the present case, it is sufficient for the Mother as a matter of evidence to only provide a budget which included the mother’s allowance in her 7^th Affirmation dated 17^th April 2018.

23.By reasons of the aforesaid, I do not accept the argument advanced by the Father that the Mother has not made an application for the mother’s allowance, just because she did not plead specifically in the Originating Summons, and I found that the Mother’s allowance is not required to be pleaded in the Originating Summons before the Court can make such award.

Costs

24.I see no reason why the costs should not follow the event. The parties had previously addressed to the Court that both parties agreed that costs should follow the event, and the costs should be confined to the costs of the 2 days hearing for the present purpose.

25.I therefore made a costs order that the Father shall pay the Mother costs of the hearing on 8^th January 2019 and 9^th January 2019 to be taxed if not agreed with certificate for counsel.  

26.This is a Costs Order Nisi which will become absolute if no application is made within 14 days from the date hereof.

Representation:

Mr. Eugene Yim instructed by Messrs. Pansy Leung Tang & Chau for the Applicant

Mr. G. Surman instructed by Messrs. Cheung & Liu for the Respondent