Idc v. Ssa

FAMV No 54 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 54 OF 2014 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO 91 OF 2013)

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BETWEEN

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REASONS FOR DETERMINATION

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Chief Justice Ma (Delivering the reasons of the Appeal Committee):

1.In this application for leave to appeal (which we dismissed after hearing counsel for the applicant[1]), we were only concerned with the mother’sapplication under the Guardianship of Minors Ordinance Cap 13 (“the GMO”) for a lump sum payment by the father to purchase a property for the use of their daughter who is now 5 years old.  It was accepted that if an order was made to enable a property to be purchased, such property would revert to the father in due course.  The father and mother were not married to one another.

2.The original application under the GMO was dismissed by His Honour Judge Bruno Chan who took the view that there was no jurisdiction to make any such order, essentially because under s10(2)(a) of the GMO, a court could only order “… such lump sum … for the immediate and non-recurring needs of the minor” and housing was not an one off or non-recurring need.  Instead, he ordered periodic payments by the father sufficient to rent an equivalent apartment.  I shall refer to the position of a parent such as the father in the present case in proceedings under the GMO as “the paying parent”.

3.On appeal, reversing the decision on lack of jurisdiction, the Court of Appeal[2] held that while the court did not have a discretion under s 10(2)(a) to order a lump sum payment to purchase a property for the accommodation of the child, mainly because an order for a lump sum was not appropriate where the intention was to reserve a reversionary interest, there was jurisdiction under s 10(2)(e) of the Ordinance.However, on the facts, the Court of Appeal declined to make any such order.

4.The mother applied for leave to appeal.  It was said that questions of great general or public importance were involved.  The questions were set out as follows in the Notice of Motion:-

“The Court of Appeal erred in its exercise of discretion in respect of the application of the provisions under Sections 10(2)(a) and (e) of the Guardianship of Minors Ordinance as to the jurisdiction and the application of the discretion by the Court having regard to the English authorities.

This approach does not accord with the application of a comparative approach of fairness, under the Matrimonial Proceedings and Property Ordinance and the Guardianship of Minor Ordinance, when considering the position of a child/minor to ensure that as a matter of principle and as a matter of law there is no discrimination between children of a married family and children of an unmarried family.

The Court of Appeal, having correctly interpreted the statute, then failed to explain how it should be applied.

There should not be as a matter of principle and as a matter of law any discrimination between children of a married family and children of an unmarried family. By declining to make an order to settle a sum for the purchase of a property, the Court of Appeal did so discriminate and failed at paragraph 22 of the judgment dated 6^th June 2014 to apply a comparative approach of fairness by failing to consider the position of the child of a family under the Matrimonial Proceedings and Property Ordinance, as compared to sections 10(2)(a) and (e) of the Guardianship of Minors Ordinance, which apply to both children of unmarried and married families. In their disposal of the appeal (and exercise of their discretion), by failing to direct a settlement in an obvious case, the Court of Appeal (a) effected a discriminatory outcome against the child of unmarried parents since this would not have been the outcome in a divorce case where the court is considering the needs of the children of the union and (b) wrongly published the message that the jurisdiction is only to be exercised sparingly or in exceptional cases (and the reason this is an obvious case is because of (1) the unconstrained resources available to the Respondent and (2) the fact that the family when together has always lived in owned accommodation).

The Court of Appeal gave no guidance as to in what case the jurisdiction might be exercised, if it was not to be exercised in this case, when they are all of the factors present that will engage the exercise of discretions under the English authorities, being the resources, the history of living in owned accommodation and a long “investment period”. So, if not in this case, then which case?”

5.We wish to point out that the way that these so-called questions of great, general or public importance were framed was completely unacceptable. Such  identified questions ought to be set out clearly and concisely, and not be in the tendentious and argumentative form they were in the present case.  In future, and bearing in mind the provisions of Practice Direction 2.4[3], the Registrar may refuse to accept a Notice of Motion which fails in this regard.

6.The questions said by the applicant to be of great general or public importance (contained in the Notice of Motion) amounted in substance and at its highest to no more than a complaint that the Court of Appeal had wrongly exercised its discretion.[4]

7.In paras 37 to 48 of the judgment of the Court of Appeal, the court explained why in the exercise of its discretion, no lump sum should be ordered.  No question of great, general or public importance is involved in the exercise of their discretion.  Before us, Mr Pointer identified a question said to be of importance along the following lines: should the Hong Kong courts adopt as guidelines the principles contained in the English authorities dealing with equivalent statutory provisions?  It was contended that the Court of Appeal failed to identify any guidelines.  In our view, far from failing to explain the legal basis for the exercise of discretion, the court did (in paragraphs 43 and 48) refer specifically to principles set out in the very cases relied on by the applicant. 

8.Additionally, Mr Pointer advanced an argument that there was a principle that where the paying parent could so afford, a court would usually make an order for a property to be purchased to provide for the accommodation needs of a child.  Reliance was placed on certain passages in the judgment of Thorpe LJ in Re P[5]. These passages do not make out the proposition advanced and that case certainly does not contain any analysis of the critical question in the present case: were the accommodation needs of the child met better by the purchase of a property or by the provision of rented premises?  On this question, the answer in any given case would depend on the facts and circumstances of the case, always bearing in mind what is reasonable having regard to the means of the paying parent.[6]  The applicant’s position here was all the more odd given that her counsel seemed to accept this in the Court of Appeal.

9.In any event, the decision of the Court of Appeal was plainly right.  Briefly stated, it was noted that the child had lived in the same rented property for 3 years (buying a flat would presumably require moving) and the existing housing arrangement provided to the child was held to be reasonable by the learned District Judge and accepted to be so by Mr Pointer in the Court of Appeal.  The Court of Appeal was satisfied on the evidence that there would not be any problem about the father paying the rent(or the increased rent) in the future.  Moreover, the mother was considering permanent re-location out of Hong Kong.[7]  As the Court of Appeal noted, it was said in one of her affidavits that she could not exclude the idea of relocation.  It is to be observed that the applicant is in Hong Kong only on a tourist visa. Also the father was concerned about the timing of investing into the property market in Hong Kong.[8]

10.It was also contended by Mr Pointer that the Court of Appeal had somehow discriminated between a child born within and one born outside wedlock.  There was no basis for this.  Quite the contrary, the court pointed out in para 22 of their judgment that their decision removed any concern about discrimination against children of unmarried parents, this arising from the requirement that the lump sum payment should cover “immediate and non-recurring needs”.[9]

11.The “or otherwise” grounds repeated the essential complaint that the Court of Appeal had wrongly exercised its discretion.  Mr Pointer submitted that the decision was plainly wrong.  For the above reasons, we do not agree.

12.The application was without merit and it was right to be dismissed with costs.

Mr Martin Pointer QC and Ms Frances Irving, instructed by Oldham, Li & Nie, for the applicant

Mr Russell Coleman SC, instructed by Mayer Brown JSM, for the respondent