Kmu v. K

FCMP 192 of 2021

[2022] HKFC 277

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 192 OF 2021

----------------------------

----------------------------

----------------------------

Coram:  Deputy District Judge Peter Barnes in Chambers (Not open to public)

Date of Submission:  5 December 2022 (Respondent)

Date of Judgment:  16 December 2022 (Paper Disposal)

------------------------------------------------------------

J U D G M E N T

( GMO – CHILD MAINTENANCE )

------------------------------------------------------------

1.This is the Decision on the Summons of the Respondent (“Mother”) filed 14 February 2022 for maintenance for the only child of her relationship with the Applicant (“Father”).  I will refer to this Summons as the “CM Summons.”

2.Z, a daughter (“the Child”), was born in Hong Kong and is now 9 years of age.  She lives with the Mother in a public housing flat on one of the outlying islands.  The flat is rented by the maternal grandfather, who also lives there with his wife, the Child’s grandmother, and several other relatives.  The Child attends a local Catholic school. 

3.These proceedings were commenced by Originating Summons filed by the Father on 1 September 2021 seeking access to the Child. On 23 November 2021 the Court directed the parties to file Forms J and called for a Social Investigation Report, adjourning the matter to 25 February 2022. 

4.On the same day on which she filed the CM Summons, the Mother filed another Summons seeking sole care and control of the Child with defined access to the Father (“Child Summons”).  Both the CM Summons and the Child Summons were returnable on 25 February 2022. 

5.The hearing on 25 February 2022 did not proceed, as the Mother had shortly beforehand contracted the Coronavirus and the parties agreed on an adjournment.  The matter was re-fixed for 22 April 2022.

6.At the hearing on 22 April 2022 the Court granted (by consent) an order on the CM Summons that the Applicant Father pay interim maintenance in the sum of HK$2,000 per month and for interim access to the Child to take place every four weeks on Saturday afternoon at a specialized co-parenting support centre, to be supervised by one of the centre’s staff. Directions were given for the disposal of the CM Summons by the filing of an affirmation by the Father and leave for the Mother to file an affirmation in reply.  The Order further provided for the parties to exchange written submissions on the CM Summons within 14 days of the filing of the Mother’s reply affirmation, and for it to be dealt with on paper. 

7.There seems to have been some confusion on these directions, as on 17 June 2022 the Father filed an affirmation but this dealt with issues relating to custody, care and control and access, not the question of whether and if so how much he should pay by way of maintenance to the Mother for the benefit of the Child.  On 20 July 2022 the Mother filed a reply affirmation to the Father’s affirmation, again not dealing with finances but the child arrangements. 

8.On 29 July 2022 the Court gave further directions for the filing of affirmations by the Father and Mother explicitly referring to the CM Summons.  On 23 September 2022 the Father filed his affirmation and on 12 October 2022 the Mother filed her reply affirmation.  (I note that each of these documents was filed late, a matter which the parties should endevour to avoid in the future.)  However, for the purposes of disposing of the CM Summons I have considered the documents as duly filed pursuant to the Order of 29 July 2022.

9.For completeness, I note that the Court has now made orders concerning the arrangements for the Child pending further Order. Specifically, on the adjourned Children’s Appointment on 25 August 2022 the Court ordered that the Mother do have custody, care and control of the Child, with the Father to have defined access every four weeks, on Saturdays between the hours of 3pm and 6pm at a specialized co-parenting support centre.  It further directed that an updated Social Investigation Report be called for in 12 months from the hearing. 

10.The 22 April 2022 Order directed both parties to exchange written submissions on the CM Summons within 14 days of the Mother’s reply affirmation.  The parties were reminded of this direction by the Court by further direction dated 17 October 2022. The Mother’s written submission was subsequently filed on 5 December 2022.  No submission has been received from the Father.  I will proceed on the basis that the Father has nothing to add to his contentions set out in his Affirmation, which I will come to in addressing the question of his capacity to pay. 

Background

11.The Mother was born in Pakistan in 1994 and is now 28 years of age.  She came to Hong Kong in 2010 as a dependent of her father.  She acquired permanent residency in Hong Kong in 2017.  Between 2013 and 2017 she worked as a security guard, but since 2017 she has been a full-time mother/carer to the Child.  She receives a CSSA allowance of HK$6,100 per month for herself and the Child. 

12.The Father was born in Pakistan and he is 37/38 years of age.  Until recently he was working as a security guard in Hong Kong, earning either $15,500 per month (according to his Form J) or $14,500 per month (his Affirmation). 

13.The parties’ marriage (arranged by their parents) took place in Pakistan in October 2012.  After the marriage the Mother stayed in Pakistan for 2 months before returning to Hong Kong.  She took up her work to enable her to sponsor her husband’s dependent visa application. Eventually, in August 2017, the Father came to Hong Kong to reunite with the Mother and their daughter, who was by then 4 years old.  They moved into rented accommodation in Kowloon.  The Father managed to secure work as a security guard in 2018.  It is unclear from the papers whether his dependent visa was granted in 2017 or 2018. 

14.The relationship was not a happy one, and the Mother’s affirmation evidence includes a number of allegations against the Father including that he was violent and abusive towards her, sometimes in front of the Child.  Finally, in September 2018 the Mother decided to leave the apartment with the Child and return to her parents’ residence.  About a month later, in October 2018, the Father came to this residence, and an incident took place which led to a report to police and to the Father being charged with Assault Occasioning Actual Bodily Harm (the allegation was not of assaulting the Mother, but rather one of her siblings).  According to the materials, the case was concluded in April 2019 with the Father being sentenced to a fine of HK$3,000. 

15.After this incident, in November 2018 the Mother wrote to the Director of Immigration to withdraw her sponsorship of the Father.  The Director wrote back acknowledging this withdrawal of sponsorship.

16.In April 2019 both parties travelled to Pakistan and divorce proceedings were filed.  Their application was granted later that year but no other order was apparently made, relating either to the Child or with respect to finances. 

17.The Father remarried, in December 2019.  It is not known whether he has any children from this second marriage.

18.According to the Mother, the Father made no attempt to keep in touch with her or ask for any contact/access to the Child following his departure from Hong Kong in April 2019.  Nor, according to her, did he pay any maintenance to her for the Child until the interim order of April 2022. 

The Law

19.The Mother’s CM Summons is brought under Section 10 of the Guardianship of Minors Ordinance (Cap. 13) (“GMO”). 

20.There was a possible alternative route by which she could have applied for maintenance and other financial provision for the Child, i.e. Part 2A of the Matrimonial Proceedings and Property Ordinance Cap. 192.  It is relevant to note that on 31 January 2022 the Mother filed a Form A “Notice of Intention to Proceed with an Application for Ancillary Relief”. That Form is only applicable in proceedings between divorcing or divorced couples, including in respect of applications under Part 2A, MPPO. 

21.As the parties divorced outside Hong Kong, the Mother cannot proceed with an ancillary relief claim under the without first obtaining leave under Part 2A to do so.  If, in these proceedings, (or in fresh proceedings) she wishes to obtain relief for herself, then that is what she must do. 

22.Nonetheless, the Court retains jurisdiction under the GMO to grant relief including maintenance for a child of a former marriage. 

23.Specifically, section 10(2) of the GMO provides that the Court may make various orders for the financial provision of a minor child, on application made by the parent with custody of the minor: 

“ (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.”

24.Section 13(3) of the GMO further provides

“(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.”

25.In WGL v ASB [2013] HKCFI 1196; HCMP 489/2013 (28 June 2013), the Court accepted the following principles to apply to such applications:

“55. In Re P, a summary of the relevant considerations was set out by Bodey J, as follows:

(i) The welfare of the child while a minor, although not paramount, is naturally a very relevant consideration as one of ‘...all the circumstances…’ of the case

(ii) Considerations as to the length and nature of the parents' relationship and whether or not the child was planned are generally of little if any relevance, since the child's needs and dependency are the same regardless: J v C (child: financial provision)  [1998] 3 FCR 79 at 81.

(iii) 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.

(iv) By paras 4(1)(a) and (b) of Sch 1, the respective incomes, earning capacities, property and other financial resources of each of the parents must be taken into account, together with their respective financial needs, obligations and responsibilities. So ‘the child is entitled to be brought up in circumstances which bear some sort of relationship with the father's current resources and the father’s present standard of living’: J v C (child: financial provision)  [1998] 3 FCR 79 at 87 per Hale J.

(v) However, as this latter concept lends itself to demands going potentially far wider than those reasonably necessary to enable the mother properly to support the child, ‘one has to guard against unreasonable claims made on the child's behalf but with the disguised element of providing for the mother’s benefit rather than for the child’: J v C (child: financial provision)  [1998] 3 FCR 79 at 87.

(vi) In cases where the father’s resources permit and the mother lacks significant resources of her own, she will generally need suitable accommodation for herself and the child, settled for the duration of the child’s minority with reversion to the father; a capital allowance for setting up the home and for a car; and income provision (with the expense of the child’s education being taken care of, generally, by the father direct with the school).

(vii) Such income provision is reviewable from time to time, according to the changing circumstances of the parties and of the child.

(viii) The overall result achieved by orders under Sch 1 should be fair, just and reasonable taking into account all the circumstances.

56. Bodey J then went on to say in Re P that from the experience of that case, he would propose three further considerations:

‘(i) In considering the mother’s budget, at least in bigger money cases, the court should paint with a broad brush, not getting bogged down in detailed analyses and categorisations of specific items making up opposing budgetary presentations. Rather, the court should do its best to achieve a fair and realistic outcome by the application of broad common sense to the overall circumstances of the particular case.

(ii) Comparisons with the commercial cost of providing professional care are unlikely to be of great assistance and may only serve to distract.

(iii) When setting up a budget for the sort of lifestyle a child should be enabled to have, the court should not generally attach weight to the risk that the father may reduce or withdraw his support when the child comes of age (or ceases education or training) thereby obliging the child to adapt to a lower lifestyle at that time.’

57. In Hong Kong, this court’s jurisdiction is discretionary. No factors having been set out in legislation, the only criteria in s 10 (2) of our GMO is what the court deems “reasonable” having regard to the means of the parent to whom the application is directed, which in the present case is the Father. In exercising discretion, this court will have regard to all the circumstances of the case, and in my view, these should include those matters as provided in the English legislation.”

The Application

26.The Mother seeks an order that the Father pay maintenance in the sum of HK$5,000 per month “or at such sum as the Court shall deem fit and just”. 

Needs

27.In her (2^nd) Affirmation in support of the Summons, she estimates her monthly expenditure relating to the Child as follows

Items	Amount (HK$)
Food	2,000
School fees	Nil
Extra tuition fees	2,500
School books and stationery	About 100
Transport to school (including school bus)	Nil
Medical/Dental	40
Holidays	200
Clothing/Shoes	150
Personal grooming (including haircut)	Nil
Pocket money/snacks	300
Uniform	90
Total	5,380

28.One of the exhibits to her 2^nd Affirmation is a copy of her HK Savings Account Passbook.  This confirms she withdraws most if not all of the CSSA of HK$6,100 every month.  In her Form J the Mother describes some of the extra-curricular activities as involving twice weekly “Non Chinese zoom class”, and maths and gardening classes on Sundays.  I am prepared to accept that $2,500 is not an excessive sum to cover extra-curricular activities including out-of-school tuition, but the Mother should have specified in her 2^nd Affirmation (or her 4^th Affirmation in reply) the exact costs of these classes, and preferably have exhibited receipts for them. 

29.Nonetheless, I consider the sums are not exaggerated, and I find that the expenses attributable to the Child are approximately HK$5,000 per month. 

Capacity

30.As noted, the Mother is not working, and receives CSSA of $6,100 per month. 

31.The Father’s Affirmation (dated 23 September 2022) is, to say the least, a modest document providing a minimum of information.  It it short enough to quote the substantive paragraphs in full:

“3. Since 2018 I have been working as a security guard with [name of company] earning an average monthly salary of HK$14,500.

4. As I was earning a stable income I was able to make monthly contribution towards the child of the family in the sum of HK$2,000 per month.

5. Since the Order made by Deputy District Judge P. Barnes dated 22^nd April 2022, I have made regular monthly contributions commencing from 1^st May 2022 up to September 2022 (totaling 5 months).

6. My Security Personnel Permit expired on 30^th August 2022 and my Construction Workers Registration card expired on 3^rd September 2022.

7. As my extension of stay application is still under process and has not yet been approved by the Director of Immigration, my Security Personnel Permit and my Construction Workers Registration Card cannot be extended any further.

8. In the circumstances I am now unable to work in Hong Kong any further and have no source of income.  As such I am not in a position to make any ancillary relief payment and/or maintenance payment to the Respondent and/or the child of the family.”

32.There are no exhibits to this Affirmation. There should be.  The Father should have exhibited his payslips or other employment record showing his income, and he should have explained why in the Form J he said it was $15,500 per month and in his Affirmation $1,000 less per month.  He should also have exhibited his Security Personnel Permit and Construction Workers Registration Card.  Documents evidencing his dependent visa and the expiration of it should have been exhibited or at the very least he should have stated/affirmed exactly when it expired, when he applied to extend it, and the present status of his application to the Immigration Department instead of just saying that it is “pending”.  It is reasonable to conclude that the Father is not entitled under current Immigration Department Guidelines to an extension of his dependent visa, the Mother having withdrawn her sponsorship.  This is all the more reason for the Father to explain the basis on which he is seeking to remain in Hong Kong, and under whose sponsorship e.g. an employer, if any. 

33.Finally, the Affirmation is deficient in that it says nothing about the Father’s financial position – his assets, including bank savings from which he might be able to meet an order for ongoing maintenance. The Mother exhibited her bank account to her 2^nd Affirmation in support of the CM Summons.  The Father must have known he should do the same (he is legally represented, after all).

34.The Mother, in her reply Affirmation (her 4^th) is, understandably, very critical of this lack of documentary evidence.  She says that it can be inferred from the fact that the Father is remaining in Hong Kong that he must have other means of support and possibly other income. 

35.The Father has stopped payment of the interim maintenance of $2,000 per month with effect from 1 October 2022 (Respondent’s 4^th Affirmation, para 3).  He has done so without making any application to vary the interim order. 

36.It may be the case that the Father has ceased work, possibly connected to the expiration of his dependent visa, and the expiration of his licences to continue to work as a security guard which may not be able to be renewed without a visa extension.  The lack of supporting documents and details of his current financial position is most unsatisfactory.  It is a well-established principle that where a paying party fails to provide adequate information to enable the Court to assess his or her financial position and consequently the ability to pay, the Court is entitled to draw inferences adverse to that party – the Court is not bound by bare statements or assertions. 

37.The Father must have known that more than bare assertions on his part was required.  When faced with uncertainty arising out of deficient disclosure, the Court is entitled to infer that the resources of the paying party are sufficient or such that the proposed award of maintenance is a fair and reasonable outcome The Court has a duty to ensure that the paying party does not achieve a better result than that which would have been ordered had he complied with his duty of disclosure: Rayden and Jackson on Relationship Breakdown, Finances and Children (issue 17), §13.101.  

38.In my judgment, the Father has the capacity to pay a reasonable amount towards the Child’s expenses. 

39.The Mother can meet some of those expenses from the CSSA, but the Father should contribute to the Child’s support.  The Order I intend to make is that payments of maintenance increase to HK$3,500 per month to commence on 1 January 2023 and to continue on the first of each calendar month thereafter.  For the avoidance of any doubt, up to that date the Father is to pay in accordance with the interim Order dated 22 April 2022, including for the months he has missed i.e. 3 x HK$2,000 per month = HK$6,000. 

40.The Mother is granted her costs of the Summons.

Conclusion and Order

41.The Order on the IM Summons is as follows:

(1)  The Applicant do pay to the Respondent periodical payments of maintenance for the benefit of the Minor in the sum of HK$3,500 per month, with effect from 1 January 2023 and on the 1^st day of each calendar month thereafter until further Order.

(2)  Payments up to 1 December 2022 do continue to be made in accordance with the interim Order dated 22 April 2022.

(3)  All payments be made by direct deposit into the Respondent’s bank account. 

(4)  The Applicant do pay to the Respondent the costs of the Summons. 

(5)  The Applicant’s and Respondent’s own costs be taxed in accordance with Legal Aid Regulations. 

(6)  Penal notice to be endorsed hereon.

Mohnani & Associates, solicitors for the Applicant

Massie and Clement, solicitors for the Respondent