Idc v. Ssa

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 158 OF 2011

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BETWEEN

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J U D G M E N T
(Financial Provision for a Child of Unmarried Parents)

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1.This is the Applicant Mother’s application under s 10(2) of Guardianship of Minors Ordinance, Cap 13 (GMO) for the maintenance and benefit of her daughter Z, now 3 ½ years old born out of her cohabitation with the Respondent Father which ended in August 2010. The Mother is essentially seeking the provision of a property to be purchased by the Father for about HK$32 million to be held in trust for Z until she is adult, or in the alternative to be held for occupation by Z until she reaches the age of 18 or completes full time education, plus a lump sum towards furnishing and equipping such a property and for purchasing a car, as well as a monthly sum of just over K$174,000 for Z’s maintenance including her carer’s allowance, on the basis of what the Mother claims to be an extremely lavish lifestyle when the parties lived together and that the Father is financially well capable of making those provisions.            

2.The Father, who has relied on the ‘millionaire defence’ that he can meet the highest claim of the Mother so as to avoid a lengthy and expensive discovery process of his means other than filing his Financial Statement (Form E) and producing some of his credit card statements, accepts that he should make appropriate and reasonable financial provision for his daughter but objects to what he claims to be attempts by the Mother to inflate her claims to a figure far beyond any reasonable level of maintenance which he says just kept going up throughout the proceedings.     

3.In addition the Father also takes issue with the Mother over the court’s power under section 10(2) of GMO to make the kind of lump sum order which she seeks for the purchase of a property as the provision of accommodation for Z, which turns on the question of how that section relevant to the Mother’s claim should be construed.           

Background

4.Both parties are British, with the Mother now aged 33 and the Father 39. After the Mother completed her university studies, she worked as a fashion model and travelled around the world on her jobs. In 2003 she married a film director from Thailand with whom she gave birth to a daughter N in 2004. Two years later she divorced N’s father and obtained N’s custody. By then she was dating the Father who had moved from London to Hong Kong in the 1990s where he had set up his fashion accessories business.    

5.Upon finalizing her divorce with N’s father in September 2006 the Mother moved with N into the Father’s apartment at Convention Plaza Apartments, and it seems that he had then assumed financial responsibility for N during his relationship with her mother. On 8^th March 2009 the Mother gave birth to Z.

6.That relationship ended in August 2010 but on amicable terms when the Father rented a 2-bedrooms apartment at Convention Plaza for the Mother and her two daughters, and continued to meet their expenses including allowing the Mother to continue to use his American Express credit card. However, what remained of that relationship came to an end in May 2011 after an incident when the Father removed both children to his apartment without the Mother’s consent which required the intervention of the police before the children were returned to the Mother.

7.Following the Father’s subsequent cancellation of her credit card and ceasing to be involved with N, and allegedly had her followed by his private investigators over some period of time, the Mother moved from the Convention Plaza Apartments in July 2011 with the children and her 2 domestic helpers to her current 3-bedrooms apartment in Bel-Air, Pokfulam under a 2-years lease at a monthly rent of HK$76,000. The Father was then paying her HK$67,000 per month calculated at HK$47,000 being the rent which he paid for her former Convention Plaza Apartment and HK$20,000 as maintenance for Z plus direct payments for her school expenses, extra-curricular activities and the salary of the helper, of which the Mother claims to be grossly insufficient and was forced to meet her monthly deficits with her savings and later borrowing from her father and sister.

8.Almost immediately after her move to the Bel-Air apartment, the Mother launched these proceedings seeking custody of Z and financial provision for her during her minority. In support of her case she then filed an affidavit of more than 400 pages including exhibits setting out the history of her relationship with the Father with such details which I find mostly unnecessary, immaterial or irrelevant, and which served no useful purpose but certain to provoke tensions and hostilities between the parties, not to mention inflating legal costs. Clearly a practice that should not find favour with the court.

9.In his Form E filed on 1^st November 2011 in response to the application, the Father disclosed his interests through various companies holding 6 properties at Convention Plaza Apartments including his present residence and a factory unit in Cheung Sha Wan, some jointly with his mother and some on his own, as well as a property in London in his sole name, plus various directorship and/or shareholding interests in 11 companies including some of those holding the above properties, bank savings and other personal items including arts and watch collections, with a total net worth which he put at over HK$35 million before taking into account of his shareholding interest in his business. He also disclosed an average monthly income of almost HK$100,000 including housing allowance plus the use of motor car provided by his main company which as noted above is a fashion accessories manufacturer and which also pays for his domestic helper, with a monthly expenditure of just over HK$185,000 including his various payments for Z.   

10.The Mother of course does not accept any of those figures accurately reflect the true wealth of the Father, and in any event on 6^th March 2012 she obtained an order for interim maintenance at the rate of HK$120,000 per month including for her rental expenses, and for the Father to continue with those direct payments for Z’s schooling as before without prejudice to their respective case at the trial.

11.The issues that eventually came before the court at the trial starting on 10^th September 2012 were those of joint custody and access of Z as well as financial provision for her. While there was never any dispute that her care and control should remain with her, the Mother sought her sole custody while the Father asked for joint custody and unsupervised access. Fortunately before the trial commenced, they were able to reach agreement to have joint custody on certain terms, of which it is not necessary to go into here, and for the Father to have certain staying access on weekends and holidays, which were subsequently incorporated in an order of the court on 14^th September 2012, with the remaining issue on her financial provision to be determined at the trial, during which the Mother was represented by Ms Francis Irving, while the Father by Mr Russell Coleman SC.

12.It would be relevant to set out here the Mother’s open proposal at the trial (CB: 622):

13.As noted above, the Mother also seeks additional sums of HK$700,000 for decorating and furnishing the property to be purchased, and HK$500,000 for purchasing a car.

14.The Father’s open proposal is in his solicitors’ letter dated 20^th August 2012 (CB2: 569) which can be summarised as follows:

(a)  that he will pay a monthly maintenance for Z partly direct to the Mother, and partly in direct settlement of expenses, in the total sum of HK$76,500 – 78,500 per month comprising of the following:

(i) Rent and utilities :	HK$38,000
(ii) Local travel :	HK$1,000
(iii) Food :	HK$2,000
(iv) Clothing, toys and presents :	HK$2,500
(v) Carer’s allowance :	HK$10,000
(vi) School fees including lunch :	HK$12,634
(vii) School bus :	HK$980
(viii) Ballet classes :	HK$3,500
(ix) Medical insurance :	HK$2,000
(x) Domestic helper’s salary :	HK$5,800

(b) that he will pay for 2 economy class round-trip tickets per year and HK$600 per day for Z’s daily expenses on holiday for up to 2 weeks per trip as his contribution towards her holiday expenses;

(c)  that he will provide annual passes for Ocean Park and Disneyland to be shared with the Mother for their use during their respective time with Z;

(d) That he is willing to pay directly the reasonable costs of any additional extra-curricular activities that Z requires or would like to enrol in including Mandarin lessons.           

15.It must be mentioned that the Father’s proposed figure for rental and utilities of HK$38,000 was made on his belief that the Mother was then cohabiting with her boyfriend who should be contributing his share towards those expenses, but if the court finds that that is not the case, he says he would be prepared to raise his rental payment up to HK$50,000 directly to the landlord, thus bringing his proposal to a total sum of HK$88,500 to $90,500 per month.       

16.Still the gulf between the parties’ proposal was wide enough to ensure that a trial was inevitable over what is essentially the reasonable needs of a small child for now and the near future having regard to the means of the Father. However, before proceeding to consider the issue and the evidence before the court, I must say that it seems insane to me that the parties would see fit to incur total legal costs in excess of HK$6 million between them, a staggering sum even by the Father’s standard, and which would have been more than sufficient to meet the Mother’s claim for Z’s monthly maintenance at the highest for more than 3 years.                       

Applicable Principles

17.The Mother’s application is as noted above made under section 10(2) of GMO, and there is no dispute that it is a discretionary jurisdiction with the test being what the court thinks ‘reasonable’ having regard to the means of the Father, but given the legal issue between the parties over the court’s jurisdiction to make the kind of lump sum order sought by the Mother, it would be relevant to first set out the relevant subsection in full:

“(2) The court may as regard 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 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 parent, 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.

18.It is under subsection (2)(a) that the Mother seeks an order for the provision of a property for Z, as it is Ms Irving’s submission that the lump sum order stipulated there can be used for the provision of housing, and that once housing is provided, the need does not recur. Alternatively, she submits that under (2)(e) the court can order that a property be purchased on trust for Z during her minority reverting to the Father, and not necessarily just a property that he already owns.   

19.That last point is significant in that the Mother has made it abundantly clear that she would not consider any of the existing properties at Convention Plaza Apartments in which the Father is interested as she does not want to live that close to him, and that she prefers the same type of property in which she is now renting at Bel-Air.

20.In support of her argument Ms Irving relies on the definition of the word “property” in Matrimonial Causes Ordinance, Cap 179 (MCO) and Matrimonial Proceedings and Property Ordinance, Cap 192 (MPPO) as follows:

“property” means any real or personal property, any estate or interest in real or personal property, any money, or negotiable instrument, any prescribed instrument within the meaning of section 137B of the Banking Ordinance (Cap 155), debt or other chose in action, and any other right or interest whether in possession or not.

Ms Irving argues that while there is no such interpretation in the GMO, logically the same interpretation prevails.  

21.She further submits that while the English legislation in relation to financing for children, the Children Act 1989, is somewhat different from the Hong Kong legislation, the wording in the English Act Schedule 1 relied on for providing funds for the purchase of a property in trust is not materially different from the GMO, which is as follows:

“(1) On an application made by a parent or guardian of a child, or by an person in whose favour a residence order is in force with respect to a child, the court may –

(a)… make one or more of the orders mentioned in sub-paragraph (2);

…

(2) The orders referred to in sub-paragraph (1) are –

(a) an order requiring either or both parent of a child –

(i)  to make to the applicant for the benefit of the child; or

(ii)  to make to the child himself,

such periodical payments, for such term, as may be specified in the order;

(b) an order requiring either or both parents of a child –

(i)  to secure to the applicant for the benefit of the child; or

(ii)  to secure to the child himself,

such periodical payments, for such term, as may be so specified;

(c)  an order requiring either or both parents of a child –

(i)  to pay to the applicant for the benefit of the child; or

(ii)  to pay to the child himself, such lump sum as may be so specified;

(d) an order requiring a settlement to be made for the benefit of the child, and to the satisfaction of the court, of property –

(i)  to which either parent is entitled (either in possession or in reversion); and

(ii) which is specified in the order;

(e)an order requiring either or both parents of a child –

(i) to transfer to the applicant, for the benefit of the child; or

(ii) to transfer to the child himself, such property to which the parent is, or the parents are, entitled (either in possession or in reversion) as may be specified in the order.

22.With the above 2(d) as the relevant provision for settlement of property, Ms Irving submits that the difference in wording from section 10(2)(d) of GMO is of no substance, as both talk of  “ … settlement … for the benefit of the child/minor … of property … to which either parent is entitled.”  

23.In support of her argument, Ms Irving relies on the judgment of HH Judge Chu in the case of H v S (Financial Provision for a Child of Unmarried Parents) [2012] HKFLR 236, where the father had agreed to purchase the child’s accommodation, the mother nonetheless asked that the property be held in trust to revert to the father when the child reached 18 or ceased full-time education, and since the father was prepared to purchase the property in his name and give certain undertakings as to the future arrangements, which was acceptable to the court and hence eliminated the need for a trust fund.

24.Ms Irving submits that in H v S there was no challenge to the court’s jurisdiction to order that a trust fund be set up for the child for provision of accommodation, to which Judge Chu said in para104 of her judgment “I therefore find F’s proposals reasonable and do not see the need of a separate trust being set up for T.” Ms Irving submits that had there been no jurisdiction, the learned judge would have so stated in her judgment.

25.As for the lump sum order under s 10(2)(a) of GMO, Ms Irving also relies on Judge Chu’s judgment in H v S, following the leading English case on financial provision for children in Re P (Child : Financial Provision) [2003] 2 FLR 865, when she said in para167 that this provision should be “broadly construed whether as backdating or to meet the liabilities or expenses reasonably incurred for maintaining T before the making of the order.”

26.In Re P an unmarried mother applied for financial provision for a very young child under Schedule 1 to the Children Act 1989 from the father who was an immensely successful businessman who described himself as fabulously wealthy and conceded that he could pay a lump sum of £10 million if ordered to do so. The mother was awarded, inter alia, £450,000 for a house, £30,000 for furnishings and periodical payments of £35,360 per annum to be reduced by £9,333 on the child’s seventh birthday. She was also awarded backdated maintenance of £7,500 for 26 months of shortfall.  On appeal her award was increased to £1 million for the housing fund, £100,000 for internal decoration and £70,000 per annum for periodical payment mainly on the basis of the scale of the father’s fortune and of his chosen way of life.

27.Mr Coleman for the Father however argues that there is no equivalent provision of a lump sum to meet the child’s housing needs in our GMO as its subsection (2)(a) expressly refers to “the immediate and non-recurring needs of the minor” which does violence to the ordinary language of the statute to suggest that Z in this case has an “immediate need” to the provision of housing by the provision of a lump sum with which to purchase a property.

28.He submits that it is the plain fact that Z is actually currently housed through the payment of the Father of an amount to include rent for the property in which she and the Mother reside, so that there is no unmet immediate need for that at all, but that even if one were to leave that fact aside, a need for housing is an on-going and recurring need which cannot be described as “immediate and non-recurring” within the plain language of the section.      

29.He further argues that the Mother’s reference to the English legislation does not assist her case, as was pointed out in by Judge Chu in H v S supra, whilst some guidance can be found in the principles and guidelines set out in the English cases, there are differences in legislation in that the English legislation which provides the power to order a lump sum has no limiting words as are in the Hong Kong legislation, as evidenced by paragraph 2(c) of Schedule 1 of Children Act 1989 referred to above by the Mother, where the English statute permits the English Court to order lump sum for any purpose, while the Hong Kong Court is limited by the terms of the governing statute to ordering lump sums for the specific purposes identified. That difference in statute, he argues, will explain any relevant difference in the approach of the different courts.

30.As to section 10(2)(e), Mr Coleman submits that the Mother has missed the point of the Father’s argument in that he points to the words “being property to which such parent or either of such parents is so entitled.” On its face, he argues that the section deals only with property to which the relevant parent is entitled. It does not deal with a putative property, which is by definition one to which a parent might become entitled but is not one to which the parent is entitled.

31.I have no difficulty agreeing with Mr Coleman’s interpretations of both subsections (2)(a) and (2)(e), and I shall start with the plainly more straightforward (2)(e) which in my view clearly and expressly refers to a property to which the parent, in this case the Father, is so entitled, i.e. a property already owned by him that can be properly identified or specified in the pursuant order. It cannot therefore mean, in my judgment, that the court can order the Father in effect to purchase a property either for the benefit of Z or to settle it in her favour as suggested by the Mother. The property to be so ordered must already be owned by the Father or to which he is so entitled, either in possession or reversion, so as to be specified in the order.          

32.As for the jurisdiction for lump sum provision under subsection (2)(a), it would be relevant to undertake a more detailed examination of Judge Chu’s judgment in H v S supra, where she very helpfully summarised the historical developments of the legal principles on financial provisions for children of unmarried parents at 248D:

“[33] Previously in Hong Kong, the power of the courts to make maintenance orders for children born out of wedlock was provided in the Affiliation Proceedings Ordinance, which was based on the Affiliation Proceedings Act 1957 in England.

[34] In England, over the years, the treatment of children of unmarried has moved towards equality of treatment with children of married parents. In A v A (A Minor: Financial Provision) [1994] 1 FLR 657 at 659, Ward J (as he then was) has set out the history of the powers of the courts in England to make provision for the children of unmarried parents. Initially these were very limited and governed by the Affiliation Proceedings Act 1957. Latter, the criteria for assessing periodical payments were assimilated to those of other children in the Domestic Proceedings and Magistrates Courts Act 1978. But jurisdiction for lump sum provision was limited, and otherwise there were no powers to make capital settlements. These limitations were eventually removed and a wider range of orders was provided for in the Family Law Reform Act 1987, following two Law Commission Reports on illegitimacy. The object of those reports was to remove the differences in the legal positions of children, the underlying principle being that children should not suffer just because their parents had, for whatever reason, not been married to one another (see J v C (Children: Financial Provision) [1999] 1 FLR 152, at p 155).

[35] The Children Act 1989 then came into effect and s.15 of the Children Act enables the court to make financial orders for children, with paragraph 4(1) of Schedule 1 defining the criteria which the court has a duty to have regard to when making such orders. Paragraph 4(1) of Schedule 1 of the Children Act 1989 sets out as follows:

“In deciding whether to exercise its powers under paragraph 1 or 2, and, if so in what manner, the court shall have regard to all the circumstances including –

the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph 4 [either parent] has or is likely to have in the foreseeable future;

the financial needs, obligations and responsibilities which each [parent] has or is likely to have in the foreseeable future;

the financial needs of the child;

the income, earning capacity (if any), property and other financial resources of the child;

any physical or mental disability of the child;

the manner in which the child was being or was expected to be educated or trained.”          

[36] Paragraph 4(1) is, however, slightly different from s 25(3) of the Matrimonial Causes Act 1973, as set out by Ward J in A v A (A Minor: Financial Provision), at p. 660, in that:

“(1) Under the Matrimonial Causes Act, the court’s first consideration is for the welfare of the minor child. Whilst welfare is the paramount consideration for the court on any question with respect to the upbringing of the child, upbringing does not include maintenance payments: see the Children Act 1989, s.105.

(2) The standard of living enjoyed by the family is not a fact listed in Schedule 1, no doubt because it is recognised that mother and father may never have lived together as a family.

(3) The physical or mental disabilities of the parent are not expressly in issue under the Children Act though I do not easily understand why that omission is made.”

[37] As to the reason for the omission of the requirement to treat the child’s welfare as the first consideration, Hale J (as she then was) in J v C (Child: Financial provision), had this to say at p. 156:

“The reason for the omission of the requirement to treat the child’s welfare as the first consideration is probably that these provisions apply in cases where the adult parties are, or were, married to one another, and therefore, the court will usually be faced with claims for some provision for the adults as well as for the children. In such cases it makes sense to provide that the children’s welfare should come before that of the adults in determining those claims.

Nevertheless, in cases under the Children Act 1989 the welfare of the child concerned, even if neither the paramount nor the first consideration, must be one of the relevant circumstances to be taken into account when assessing whether and how to order provision.”

[38] Then the Child Support Act 1991 was introduced which applies to “maintenance orders”, meaning the making or securing of orders for periodical payments. Notwithstanding the Child Support Act 1991, the courts in England retain their jurisdiction to make orders for lump sums and transfer and settlement of property for children under section 15 of the Children Act 1989.

[39] Re P (Child: Financial Provision) [2003] 2 FLR 865 is the leading case where the Court of Appeal in England undertook a review of the principles underlying Schedule 1 cases, namely what constituted reasonable provision in Schedule 1 cases …

[42] I will now turn to the position in Hong Kong. The Affiliation Proceedings Ordinance in Hong Kong was repealed in 1997. The power for the courts to make financial orders for children born out of wedlock now appear in s.10(2) of the GMO, which was amended in 1997 to provide a wider range of orders which the court is empowered to make.

[43] S.10(2) of Guardianship of Minors Ordinance (“GMO”) now reads as follows …

[44] Furthermore in 1997, s.12A of GMO was introduced to extend the duration of the financial orders for children to beyond the age of 18 in certain circumstances, in line with the provisions in Matrimonial Proceedings and Property Ordinance (“MPPO”).

[45] In the case of a child of the family in matrimonial proceedings, s.7(2) of MPPO sets out the factors to which this Court shall have regard in exercising its discretion in making financial orders for the child. However, no factors, whether along the lines of s.7(2) of MPPO or paragraph 4(1) of Schedule 1 of the Children Act 1989, have been incorporated into our GMO.

[46] I would further point out that paragraph 1(1) and (2) of the Schedule 1 of the Children Act 1989 are in fact slightly different from our 10(2) of the GMO. Paragraph 1(1) and (2) of the Children Act 1989 read as follows …

[47] The only test set out in s.10(2) of GMO appears to be what the court thinks is reasonable having regard to the means of the parent against whom an order is being sought.

[48] Further, the power to make orders regarding lump sums in Hong Kong appears to be different from that in England. In Hong Kong, the Court only has power is to order a lump sum 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 under s.10(2)(a0 of GMO. However, under paragraph 1(2)© of Schedule 1 of the Children Act 1989, the court can make an order for ‘such lump sum as may be so specified”. Therefore there is power to order a lump sum generally, in addition to the power in paragraph 5(1) of Schedule 1, which states that an order for a lump sum may be made for the purpose of enabling any liabilities or expenses incurred in connection with the birth of the child or in maintaining the child and reasonably incurred before the making of the order to be met. There also appears to be power for the courts in England to make more than one lump sum (paragraph 1 (5)(a), Schedule 1), which is not the case in Hong Kong.”

33.There in paragraph 48 the Learned Judge identified the main difference between the English Children Act 1989 and our GMO in terms of the court’s power to make lump sum order in that ours is limited for those purposes stated under s 10(2)(a) only instead of generally, and the fact that she did not find it necessary to deal with the question of her jurisdiction to make lump sum order for housing in that case does not in my view imply, as suggested by Ms Irving, that she would accept that there was jurisdiction for her to do so under s 10(2)(a). I agree with Mr Coleman that a lump sum to purchase a property for a child simply does not come within the ordinary meaning of those stated purposes, as a need for housing cannot be said to be non-recurring but instead an on-going everyday needs.

34.I also agree with him that the stated purposes, i.e. “for the immediate and non-recurring needs of the minor” should be read together to mean for the purpose of meeting the immediate or urgent needs of the minor on interim basis before the court is in a position to make those other orders under s 10(2)(b) to (e), and that it could not be the intention of the legislation for (2)(a) to cover such long term or recurring needs as housing or accommodation of the minor, which can be more appropriately dealt with under (2)(b) to (e).

35.Why is it that our legislation has not followed up with those changes in UK which led to their Children Act 1989 as identified by Judge Chu in respect of the court’s powers under GMO to make financial provision for a minor, in particularly for lump sum or sums generally is beyond me, all the more I think unacceptable when the legal disabilities associated with illegitimacy of minor children have since been greatly reduced by the Parent and Child Ordinance, Cap 429, any difference in financial treatments of those children is in my view manifestly unfair and unjust, and clearly has no place in our society.                       

36.However, until that situation is rectified by legislature, as it now stands I do not believe s 10(2)(a) empowers me to make the kind of lump sum order as suggested by the Mother. Hence her claim for a lump sum to purchase a property for Z under the current section in GMO must fail for lack of jurisdiction.

37.As for the sole statutory criteria under s 10(2) of GMO for the court to make such financial provision as it thinks reasonable for a minor, it is accepted that some useful guidance can be found on the principles and guidelines set out in Re P supra, upon which Ms Irving for the Mother has placed significant reliance, where Thorpe LJ set out the approach in cases where one or both of the parents ‘lie somewhere on the spectrum from affluent to fabulous rich’ as follows:

“[45] Before coming to the details of the present case I would like to offer my opinion as to the method by which a judge should determine a case similar to this, in that one or both of the parents lie somewhere on the spectrum from affluent to fabulously rich. Such cases may be more likely to be litigated, partly because where the parents are of more modest means financial liabilities will be conclusively settled by the administrative process under the Child Supportive Act 1991, to which the judicial process is only supplementary, and secondly, because the affluent and the very rich may be less deterred by the costs of litigation. The starting point for the judge should be to decide, at least generically, the home that the respondent must provide for the child. The value, the size, and the location of the home all bear upon the reasonable capital cost of furnishing and equipping it as well as upon future income needs, directly in the case of outgoings but also indirectly in the case of external expenditure such as travel, education, and perhaps even holidays. The home will ordinarily be transiently required during the child’s minority or until further order. The appropriate legal mechanism is therefore a settlement of property order. Since the respondent is entitled to the reversion, which in certain circumstances may fall in before the child’s majority, the respondent must have some right to veto on unsuitable investment.

[46] Once that decision has been taken the amount of the lump sum should be easier to judge. For the choice of home introduces some useful boundaries. In most cases the lump sum meets the cost of furnishing and equipping the home and the cost of the family car.

[47] Those issues settled the judge can proceed to determine what budget the mother reasonably requires to fund her expenditure in maintaining the home and its contents and in meeting her other expenditure external to the home, such as school fees, holidays, routine travel expenses, entertainments, presents, etc. In approaching this last decision, the judge is likely to be assailed by rival budgets that specialist family lawyers are adept at producing. Invariably the applicant’s budget hovers somewhere between the generous and the extravagant. Invariably the respondent’s budget expresses parsimony. These arts have been developed in Matrimonial Causes Act 1973 claims, particularly where the budget is advanced to found the calculation of the price of the clean break. But it is worth emphasising the trite point that, by contrast, an order for periodical payments is always variable and will generally have to be revisited to reflect both relevant changes of circumstances and also the factor of inflation. Therefore, in my judgment, the court should discourage undue bickering over budgets. What is required is a broad common-sense assessment. What the court first ordains may have a comparatively brief life before a review is claimed by one or other party.

[48] In making this broad assessment how should the judge approach the mother’s allowance, perhaps the most emotive element in the periodical payments assessment? 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 as 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 carer (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. 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.”              

38.Given the Mother’s apparent reliance on the parties’ relationship during their cohabitation in particularly certain promises allegedly made by the Father towards her and her 2 children, and the parties’ dispute over the standard of living to which Z should be entitled to enjoy, it would be useful to also refer to Bodey J’s summary of the considerations in Schedule 1 claims in the same case at paragraph76:

(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) [1999] 1 FLR 152 at 154B.

(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) 1 FLR 62 at 66C; and A v A(A Minor) (Financial Provision) [1994] 1 FLR 657 at 665G.

(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 …’ – per Hale J in J v C (Child: Financial Provision) [1999] 1 FLR 152.

(v)   However, at 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) [1999] 1 FLR 152.

(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 of all the circumstances.” 

39.It is with these guidance and principles in mind that I shall now turn to consider the evidence, starting first with what was the standard of living during the parties’ relationship which Z was able to enjoy, and what is the current lifestyle of the Father, as it is such standard against which the Mother argues that her claims for Z should be measured.

Standard of Living

40.According to the Mother the parties had lived together in an extremely lavish lifestyle with expensive holidays, fancy cars and boats, and luxurious restaurant and shopping, but which she argues that the Father had sought to conceal the extent of this from the court by producing what he said were credit card statements redacted to exclude business expenses or the expenditure of his family members, which she argues as clearly untrue once those statements were finally produced and the Father had been taken through them in his oral evidence that many of the redactions had in fact been expenses for their family that he would have preferred the court not to have had sight of, which were jewellery purchases for her, expensive car hires for them while on holidays in the US, and clothes and holiday expenses for the family, all of which can be seen were of the most lavish standard (CB2: 647).

41.While she accepts that fashion being the Father’s business and so on any holiday there would be some purchases for his company as samples to copy, the Mother’s evidence is that many of the expenses shown on the credit card were purely personal, and there would be unlimited spending on clothing and jewellery as both were very interested in fashion and wanted to look good and dress well with expensive clothes not only for themselves but also for the 2 girls, and while in Hong Kong they would treat the Grand Hyatt Hotel as their local coffee shop with almost daily expenditure there. She believes that the Father has deliberately camouflaged these spending as part of his business so as to mislead the court of their high standard of living and to defeat her claims for their daughter.

42.The Father does not dispute that the lifestyle enjoyed by him and the Mother when they were together was indeed to a high standard, but even the Mother’s own review in her evidence in chief of the un-redacted statements was mainly to identify sums spent by the Father on himself or on her or on both which have nothing to do with expenditure on Z, which he says was in fact minimal and not surprising bearing in mind that she was less than 18 months old when the parties separated, and just over 2 years old when these proceedings commenced.

43.The fact is that, Mr Coleman for the Father argues, travel is and was an important part of his business for buying samples around the world for the business, and that many of the expenses are clearly either entertaining business expenses or for their own pleasure which were completely mixed, and as the Father’s business is fashion, that the Mother had a modelling background, so it was part of their life that they shopped for pleasure which suited the business, but which can have nothing to do with Z, and at her age she could not really have benefited from his restaurants expenses, and mush less on any clothing.

44.While I accept that there may well be some truth in the criticisms levelled at both parties as to their credibility on their spending pattern, with a tendency to exaggeration on one side and understating it on the other, and while some of the expenses shown in the Father’s un-redacted statements such as travelling, hotels and purchasing samples may indeed be related to his business, there is no question in my mind that the lifestyle enjoyed by them when they were together was to a high standard, as evidenced for instance by their local entertaining and restaurants expenses, while the Father’s personal shopping may indeed not have all been included in the disclosed credit card statements as the Mother has suspected, as those luxurious brands favoured by him referred to in those magazine articles about his high lifestyle (PB1: 168 - 171) do not seem to be well represented in those statements, or if they were, then they may indeed have been for their personal use rather than for his business samples as alleged, which is after all a manufacturer of accessories such as bags, hats, scarves, gloves and belts instead of clothing or shoes, as evidenced by the company’s official profile (Exhibit “R-4”).

45.It would also be relevant to refer to the Mother’s description in one of her affidavits (PB1: 99) of his apartment at the Convention Plaza where Z had lived during her first 18 months and still lives during her father’s staying access on weekends and holidays, when she said this at para29:

“The Respondent still lives in our former apartment which is located at Flats XXX and YYY, Convention Plaza, 1 harbour Road, Wanchai, Hong Kong. It was 3,400 sq ft with 2 bedrooms, and, at that time, a third room which had been turned into a cinema. A typical wealthy man’s “bachelor pad” rather than a family home. As part of his promises to me and to get me to live with him the Respondent bought the apartment below to create a duplex adding an extra 1,000 sq ft so as to create an extended and large kitchen for our ‘family’. The apartment is ornately decorated with marble floors, mirrors and glass space. It has been featured in Home Magazines and there is now produced and shown to me marked …”

46.Perhaps a more neutral and certainly much more revealing description of the Father’s apartment and lifestyle can be found in the mentioned magazine article (PB1: 175 – 185) in which he talked about how he loved and enjoyed his high lifestyle, of how he was clearly into having fun, and was about to take delivery of an Aston Martin Vantage Roadster the day after the interview, and so on. It is this standard of living the Mother argues that Z shall be entitled to be brought up in, or to which shall bear some sort of relationship as stated by Hale J in the case of J v C (Child: Financial Provision) [1999] 1 FLR 152, and endorsed by Thorpe LJ in Re P supra, at para40:

“Fourthly, Hale J stated that the child in question was entitled to be brought up in circumstances which bore some sort of relationship to the father’s current resources and the father’s present standard of living. That proposition was preceded by an acknowledgment that the court must 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.”

47.The parents in that case however had never cohabited or shared a common household, unlike the case in F v G [2005] 1 FLR 261where there had been a period of cohabitation, the standard of living enjoyed by a child is specifically addressed by Singer J as follows:

“[34] In some cases, but not this, the standard of living enjoyed by child (and mother) during lengthy pre-separation cohabitation lasting say, into the child’s early teens could, I suggest, promote the standard of living so long enjoyed by the child to the position of an important, if not the dominant, feature of the case. Here the duration of cohabitation lasted far less long, but during their relationship both before and after the birth of S the parents lived in a way where little expenses was spared and generous indulgence were frequent.

[35] To the extent that this approach may run contrary to the factor isolated by Bodey J at para [76] of his judgment in Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 WLR 865, [2003] 2 FLR 865 (that ‘consideration 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’) I suggest that the justification may be that the extent to which the unit of primary carer and child have become accustomed to a particular level of lifestyle can impact legitimately on an evaluation of the child’s needs, reasonably to be viewed against his or her history.

[36] The factual matrix of Re P (Child: Financial Provision) was that those parents had never shared a common household, nor cohabitated: see para [27]. No question of shared living standards accordingly arose in that case, where the disparity of the means individually available to the parents was even starker than here. This father cannot be described as ‘fabulously wealthy’. But nothing which I discern from reading that authority suggests to me that, in an appropriate case, it must as a matter of law be irrelevant that the parents lived to a standard which is now beyond attainment by the child who is the object of the maintenance/accommodation fund unless that standard is to some extent to be reflected in the measure of the relief awarded. On the contrary, this proposition chimes well with the concentration, which Thorpe LJ at paras [38] and [44] approved, upon the child’s welfare (not expressly referred to in para 4(1) of Sch 1 either). He indeed amplified the passage to that effect from the decision of Hale J (as she then was) in J v C (Child: Financial Provision) [1999] 1 FLR 152, stressing that :

‘welfare must not be just “one of the relevant circumstances” but, in the generality of cases, be 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.’

[37] At paras [40] and [41] Thorpe LJ also endorsed the following proposition, summarised from the judgment in J v C (Child: Financial Provision) of Hale J, which he formulated thus :

‘ … the child in question was entitled to be brought up in circumstances which bare some sort of relationship to the father’s current resources and the father’s present standard of living. That proposition was preceded by an acknowledgment that the court must 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.’

[38] I am, therefore, anxious that my award should, to an extent which I regard as reasonable in all the circumstances of the case, mitigate the disparity which inevitably will remain between the father’s spending power and that of the household where S will grow up. I can do that by adopting a level of award which should enable the mother to provide S with a fabric of home life not too brutally remote from that which the father’s hard work enable him to sustain.”  

48.I agree with both views expressed above, which are essentially similar, and propose to adopt a level of award which should allow the Mother to provide Z with a home life not too remote from what she used to be able to enjoy with her parents when they were living together, and what her father is currently enjoying, not just by himself but also by her when she stays with him at his home during his weekly and holidays access.      

49.I shall next consider the issue over the position of N in relation to the Mother’s claim for her carer’s allowance.

The Position Regarding N

50.While the Mother accepts that she has no claim against the Father for direct payment for N, she argues that in reality N is Z’s sister and lives and grows up with her together in the same family and household, and it would be absurd if one takes to the view that N is not to benefit from what is provided for Z, and in terms of provision for housing, N’s existence as Z’s sister cannot be ignored, as it is in Z’s interests that she and her half-sister can grow up together.

51.This point was addressed by Hale J in J v C supra at p 160E :

“The other point made on behalf of the father is that he is not responsible for T’s two half-sisters. Of course I accept that. However, T does need to live with them. In practical terms she needs to live with her mother and her mother has to provide for them and so I have to take that into account. In human terms she needs to grow up with her sisters. It would clearly be greatly to her benefit for her to do so. In taking that view I draw some support from A v A where there were two other children who were not the responsibility of the father. Ward J held that this was immaterial because their needs did not greatly affect the cost of keeping a roof over the head of the relevant child and her carer.

It is not quite as simple as that in this case because the mother wants to obtain a four-bedroomed house so that the girls can each have their own bedroom and its associated privacy as they grow up. She would also like to have two rooms downstairs so that they can get away from one another. She points out that the age gap means that T’s potential for interfering with, aggravating and annoying her sisters is considerable. She also points out that T is a poor sleeper who tends to wake up in the night and also is not yet ‘dry’ at night and, therefore, there may be wet beds and other things that need attention.

For those reasons it would be quite reasonable to expect Y to have her own bedroom and it would be wrong, from her point of view, to treat her so much more favourably than the other children in the household. I think, therefore, that it is quite a reasonable requirement for T to live in a four-bedroomed house. I do not mean a luxurious four-bedroom house; I mean a four-bedroomed house where there are small bedrooms of the sort detailed in some of the agents’ particulars which the mother has produced.

For all of these reasons, I consider, in principle, that the father should be making provision of the sort for which the mother is asking and the only question is how much that should be.”

52.Other than indirectly in terms of accommodation, Hale J did not, and obviously could not, order the father in that case to make any financial provision for T’s half-sisters to whom he had no responsibility. In her present proposal, the Mother appears to be asking the court to take into account of a monthly need of HK$30,000 for her to provide for N to include clothes, travel and extra-curricular activities with Z when assessing the carer’s allowance, as the Mother’s needs as a carer for Z inextricably includes the expenses she bears for her half-sister.

53.The Father does not dispute when it comes to accommodation, the court will take into account of the fact that the Mother has another child, N, even though he is not her father, but it also needs to take account of the fact that there is someone in addition to the Mother who is legally responsible for the maintenance of N, namely her own father, Mr W who is said to have come from a wealthy, prominent family in Bangkok and that himself a prominent film director, and that contrary to the Mother’s evidence, Mr W had indeed made financial provisions for N including her school fees and cash payments to the Mother for her maintenance, as evidenced respectively by his e-mails (PB7: 2582) and the surveillance report produced by the Father (PB6: 1886).

54.Importantly, Mr Coleman argues that on the evidence before it, the court should accept that N’s father not only has a legal obligation to support his daughter, but that he has at least to some extent done so, and will continue to do so in future, as he has made the point in his statements, and especially when he is enjoying access with N, which makes more likely he will honour his financial obligations to her too.

55.Furthermore, he submits, these statements could obviously be used by the Mother in any court proceedings she felt necessary to ensure that proper support is provided for N by her father. There is therefore no proper basis, in the relevant jurisdiction, as a matter of law or on the facts, for the Mother to seek to increase the maintenance for Z, whether through a carer’s allowance, or howsoever to include any expenses for N.

56.On the evidence before the court, while I accept the reality of Z living and growing up with N as her half-sister in her mother’s household cannot be ignored, I agree with the Father that there is no reason or basis, at least under the circumstances, to take into account of N’s needs and expenses when deciding on the Mother’s claim for carer’s allowance, at least not in the current situation with N, who is after all some 5 years older than Z with her own different needs which are the responsibility of her own parents.         

Accommodation

57.As noted above there is the issue as to whether the boyfriend of the Mother has been cohabiting with her in her current apartment whom the Father argues should be responsible for at least 1/3 share of the rental and utilities. The Mother denies cohabitation but accept her boyfriend did stay over at her place on occasions, but that in any event they have since broken off their relationship. Upon hearing the evidence of both the Mother and the boyfriend, I accept that whatever the case with their living arrangement in the past, given that their relationship has now ended, so is no longer the issue over the boyfriend’s contribution as far as the Mother’s present claim for accommodation expenses for Z is concerned.       

58.The reality that Z is going to live and grow up with N mentioned above is certainly one of the matters the court will have to take into account in determining what sort of housing or accommodation which will be reasonable for Z, but given my view that the court has no power to make a lump sum order for the purchase of accommodation under s 10(2)(a) of GMO, nor is there any claim by the Mother for an order for the transfer or settlement of any of the Convention Plaza Apartments in which the Father is interested for the reason she has given, the short point here is that she and Z as well as N will for the time being continue to reside in her present apartment in Bel-Air at the current rent of HK$76,000 per month but for which the Father is willing to contribute what he thinks reasonable at only HK$50,000 per month.

59.To be fair to him, the Father has stated that he would be willing to consider the purchase of a property for the benefit of Z and to allow the Mother and Z to reside in that property, but there is the issue of timing and suitability of the property purchased, and that as it would remain as his asset and would revert to him completely, it is not inappropriate for him to wish to decide the ‘investment’ timing. Accordingly the question for me now must be whether the current apartment is a reasonable accommodation for Z in the circumstances of the case.

60.On this issue the Father believes that the Mother moved out of the Convention Plaza apartment without conferring with him or giving advance notice to a substantially larger 3-bedroom apartment at Bel-Air, at exactly the same time when she commenced these proceedings, was plainly trying to present the court with a fait accompli and to reset the rental benchmark against which she hoped her application would fall to be judged, which action he argues should not be condoned or to be rewarded. The Mother of course denied it, claiming that the Father had intended to move them to a bigger flat at the Convention Plaza after decoration, but she just did not want to live as his neighbour.

61.He further argues, if the Mother wants to stay within the Pokfulam region, there are 3-bedroom apartments at Bel-Air or Baguio Villa at rents around HK$50,000 or just above (Exhibit “R-3”), hence in his opinion the rent for her current apartment at HK$76,000 is excessive and unreasonable.

62.All three types of apartments shown in “R – 3” were of the size of 1,469 sq ft with 3 bedrooms in Bel-Air asking for rental between HK$47,000 and HK$50,000 per month. This is the type of apartments that the Father says is suitable and reasonable for Z and her mother. The Mother on the other hand argues that that size of 1,469 sq ft in fact gives only just over 1,000 sq ft in usable area according to her Exhibit A – 3 and is too small for her household of 4 including N and the helper.

63.The kind of housing the Mother prefers is in Exhibit A – 4, also in Bel-Airs with 3 bedrooms but of somewhat bigger size about 1,800 sq ft. There is however no indication of rental amount but it is believed that they would be about the range of her current flat, hence a difference of some HK$26,000 per month between the parties.

64.Compared with the Father’s residence, the Mother’s current or proposed apartment is less than half in size, no doubt much less lavishly decorated or furnished, and certainly nowhere near as high standard, but should in my view bear some sort of relationship thereto or provide Z with some fabric of home life not too remote from that which her father is enjoying, and given his means I do not find the rental requirement for the Mother’s present apartment excessive or unreasonable in the circumstances. It is certainly something he can well afford. I shall next turn to consider her claim for the general expenses of such household.

General Household Expenses

65.As noted above the Father takes issue with the quantum of most of the items of the general household expenses of HK$85,250 put forward by the Mother as highly inflated or exaggerated, and mostly unsupported by documentary evidence.

66.Of the biggest item of these expenses, HK$25,000 for food, Mr Coleman submits that the Mother’s basis for this amount was gauged from her conversations with the Father during their relationship and that that was how they lived, of which he argues as simply guesswork, and that it was at best a very rough figure relating to a different time when the parties were together. The real issue, he argues, is the maintenance required for Z’s current lifestyle and not the parties’ previous and historical lifestyle. In the absence of receipts to the contrary, he submits that the food expenses for a small child like Z cannot be great, and that the Father’s proposal of HK$4,000 for her food expenses is only fair and reasonable.

67.As referred to above, the standard of living during the parties’ relationship and the Father’s current lifestyle are clearly relevant to what would be the reasonable needs of Z including her food expenses, but whatever the total amount of the parties’ food expenses in the past, I am dealing only with Z’s share, and even on the basis of the Mother’s figure for the entire family at the time of cohabitation and no doubt included the costs for adult food such as wine and drinks, I find it excessively high and I agree with the Father that a sum of HK$4,000 would seem a reasonable sum for a child of 3 ½ years, in particularly of the fact that her lunch during school days are already included in her school fees paid for directly by her father.

68.As for the utilities of HK$5,000 and household expenses of HK$10,000, I believe that the Father has no real issue with the former, but the latter does seem to me again on the high side in the absence of document support. Taking a broad brush approach I would allocate a sum of HK$2,000 for Z’s share. I also agree with the Father’s proposed sum of HK$5,800 for the domestic helper subject to production of contract as more appropriate, that he will be directly responsible for Z’s insurance payment, and for her mobile phone expenses when she is old enough to need one. This leaves the items of HK$14,000 for car and HK$20,000 for Mandarin Governess as the remaining major issues in this category, of which I believe should be more suitably dealt with below under Z’s personal expenses.

Personal Expenses of Z

69.Of the personal expenses of Z put forward by the Mother at HK$13,884 per month in total, excluding for the time being the 2 items mentioned above, being essentially HK$4,000 for clothing/shoes, HK$5,000 for entertainment/presents, and HK$4,584 for holidays at HK$55,000 per year including air fares and hotel, while all her school expenses, extra tuition and curricular activities, school bus and insurance amounting to more than HK$20,000 per month now being paid for by the Father directly, she suggests that he should continue to do so.

70.While the Father agrees to continue with his direct payment of all of Z’s school and education expenses, he finds some of the other personal expenses such as clothing, entertainment and holidays too high for her age, and proposes a somewhat lower amount of HK$3,000 for clothing and toys, and HK$2,000 for restaurant and entertainment, plus 2 economy class round-trip tickets per year for holiday and HK$800 per day for her daily expenses limited to 2 weeks per trip.

71.The main dispute the Father has over Z’s expenses is in fact whether she needs a full-time Mandarin governess at HK$20,000 per month claimed by the Mother. She says that it was by agreement with the Father during their relationship that the children would need this support to keep up at their schools, and that the governess would be there after school from 2:30 pm to 9:30 pm and all day on weekends and holiday talking to the children in Mandarin and assisting them with their studies, as the Mother herself does not speak Mandarin, hence it is otherwise impossible for the children to maintain this at home.

72.The Father has offered to pay a reasonable cost for Mandarin lessons for Z, but argues that there is no reasonable basis to require a full-time Mandarin governess, nor is there any justification for such an employee in addition to a domestic helper while the Mother says that she is a full-time mother, and that it seems to him another attempt to benefit N when, if she requires Mandarin lessons, they would fall to be paid by her father.

73.It seems a valid point to me in the Father’s argument that the Mother requires the Mandarin Governess not just to tutor Z but also N, which is perhaps the reason why she had put this item amongst her general expenses rather than Z’s personal expenses, which if true is of course again not the Father’s legal responsibility as far as N is concerned, but even for Z, the question must be whether it is reasonable or necessary for her to learn Mandarin in the manner proposed by the Mother?

74.On her own admission the Mother does not speak Mandarin, and while it is not clear whether the Father does, his mother tongue is clearly English, and while both believes it is in Z’s interests to learn Mandarin and for her to receive additional tuition so as to keep up at school, it seems to me unjustified to have a Mandarin tutor for her everyday after school from 2:30 pm to 9:30 pm and on the whole of weekends and holidays under the circumstances and at her present age. After all, it is a language still very much less commonly spoken in Hong Kong, and probably none at all in either household of the parties. It also looks suspiciously a case to me that the Mother in fact needs the Mandarin Governess on weekends and holidays to help her to look after the children when her domestic helper would be on her day off. Accordingly I agree with the Father that Z does not require a full-time Mandarin Governess at HK$20,000 per month, but instead just normal private lessons the charges for which he would be responsible.

75.As to the remaining issue over transportation for Z, the Mother asks for a sum to purchase a car, suggesting HK$500,000 for a Mercedes given the type of cars driven by the Father, and HK$14,000 per month for its maintenance, gas and repairs as well as for taxi fares on the occasions when she is not driving.

76.The Father does not believe that there is any necessity at this stage to provide a car for Z, that it is at best premature which may be addressed in a few years time, in particularly when the Mother herself has not driven for years, nor does she have experience driving in Hong Kong, as she does not even have a driving licence here. He does accept that there will be some incidental taxi expenses, but insists that the Mother’s proposed figure is plainly vastly exaggerated.

77.It appears to me that at the present stage and in the circumstances referred to above there is indeed no necessity to purchase a car for transporting Z when most of her weekdays transportation will have already been taken care of by her father paying for her school bus fares, while for weekends and holidays when realistically she will be spending part thereof with the Father. It is simply not justified or practical to me to purchase a car for her at this stage, let alone spending HK$500,000 for it. The Father’s proposal of HK$1,000 for her taxi fares mainly for her extra-curricular activities and on those weekends when she would be with her mother seems to me a reasonable sum under the circumstances.                                         

78.Otherwise it seems to me that the difference between the respective proposal for Z’s other expenses is in reality not substantial, as clearly the Father has always totted Z and would no doubt be willing to be flexible and generous on her personal expenses such as clothing and presents when she stays with him during his access, hence I would allocate the sum of HK$13,000 to cover her expenses while under her mother’s care including her food, her share of the household expenses, local travel, clothing/shoes, toys, gifts and presents, and restaurant meals. I shall next turn to one remaining claim of the Mother that the Father says has given rise to the ‘tension’ anticipated in the authorities, her carer’s allowance.

Carer’s Allowance

79.Having been a model previously, the Mother says that the decision taken by her and the Father to have Z together means that she can no longer return to modelling, as she has been out of the industry for years, is older and no longer has the connections she used to have, plus the fact that she has no work visa in Hong Kong and so even if offered work, she could not do so here, and with 2 young daughters, she says she cannot go overseas to take jobs elsewhere save for perhaps in nearby Macau, where she agrees she had done some work earlier.

80.It appears to be accepted that she has no earning capacity, as there is no evidence that she is qualified for any other employment, and hence she finds the Father’s proposal that she receives HK$10,000 per month as a carer’s allowance insulting and simply impossible to meet either her general monthly household expenses of HK$85,250, or her personal expenses in excess of HK$75,500.

81.The Mother justifies such spending as normal and reasonable by arguing that her Amex credit card spending as disclosed during the relationship supports her case that she was not restricted in her spending, as a schedule drawn up and produced as Exhibit A-2 shows an average spending on that card of almost HK$45,000 per month from January 2010 to May 2011 when the card was cut off, while there was always cash available which she says was kept in the safe of the Father’s apartment, and that other expenses such as household, transport/car, education and extracurricular activities, holidays and dining out were all paid by the Father as evidenced by his own credit card statements, which are in line with the schedule of expenses produced by her on PB8: 2916 and with the standard they had during their relationship.    

82.Ms Irving further submits that this is such a case where both parties by their conduct during their relationship, the Mother’s continuing commitment to Z and the standard of living enjoyed during the relationship and by the Father still, that a generous allowance should be made for the Mother, as the authorities direct that a carer’s allowance reflect the commitment, responsibility and sacrifice of the Mother as carer, as it was said in Re P supra, at para49 that ‘(the carer) should not beburdened with unnecessary financial anxiety or have to resort toparsimony when the other parent chooses to live stylishly’.

83.Mr Coleman however argues that the Mother’s claim to personal spending reads like an ancillary relief claim in a divorce case, with items such as clothing/shoes and personal grooming were admitted by her just on the historical basis when she was in the boyfriend/girlfriend relationship with the Father which he argues is not a proper basis for such a claim, but rather should be reached on a more analytically correct basis, and certainly cannot possibly be anything as high as is claimed.

84.The evidence before the court is that the Mother used to earn between HK$20,000 - $30,000 per month before she gave birth to Z. While she is certainly not entitled in law to claim her carer’s allowance on the same basis of a wife for ancillary relief, it would not be inappropriate in my view instead to use her former average income as the basis for assessing her allowance as the primary carer, which as Thorpe LJ said in Re P above, and using his words here, may be checked but not diminished by the absence of any direct claim in law, and that in order to discharge this responsibility as the primary carer of Z, she must have a budget that reflects her position and the position of the Father both social and financial, as she should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the Father chooses to live lavishly.

85.In the circumstances the Father’s proposed HK$10,000 is in my view wholly inadequate and inappropriate, but at HK$25,000 I do not see why the Mother would not be able to budget her general household expenses as well as her own needs at a more realistic and workable level, certainly not at the standard as before or of the Father, but not brutally remote therefrom either.      

Conclusion

86.As Bodey J has stressed in Re P supra, no mathematical formula can provide a solution to what is essentially a discretionary exercise to be adopted broadly, and no doubt with common sense on the part of the judge. Accordingly, for all the reasons given above, and adopting a broad commonsense assessment and having regards to the means and lifestyle of the Father, and using the words of Singer J in F v G supra, I believe the following monthly sums will enable the Mother to provide for Z with some fabric of home life not too remote from what the Father has been able to enjoy, and is reasonable in the circumstances of the case:

(a) Rent and Utilities :	HK$80,000
(b) Maintenance for Z :	HK$13,000
(c) Mother’s Carer Allowance :	HK$25,000
Total :	HK$118,000

87.This is on the basis that the Father shall continue to be directly responsible for Z’s school fees, school bus charges, current ballet and music classes, medical insurance, reasonable costs of additional extra-curricular activities such as piano, arts and crafts, and Mandarin lessons, as well as provision for holidays including 2 economy class round-trip tickets and daily expenses and others as set out in his open proposal. I would also allow the Mother’s request for the maintenance to be dated back to the date of her application and to be set off against payments already made by the Father.   

88.As for the question of costs, given my understanding that further negotiation between the parties had taken place since the trial, I shall reserve it so that a hearing can be fixed to hear argument. Last but not least, it remains my wish to express my gratitude to both counsel for their valuable assistance rendered to the court.

Ms Frances Irving instructed by M/S Oldham, Li & Nie for the Applicant.

Mr Russell Coleman SC instructed by M/S Mayer Brown JSM for the Respondent.

Please refer to CACV91/2013 for the relevant appeal(s) to the Court of Appeal.