Children & Cohabitees

6th June 2014 IDC v SSA CACV 91 of 2013 – child maintenance unmarried mother – the Court of Appeal ruled (para 36) that the court ‘does have jurisdiction under Section 10(2)(e) [GMO Cap 13] to order a settlement of a sum of money to be held on trust for the purchase of a property to cater for the accommodation need of a child with a reversion to the paying parent. The judge was wrong in dismissing the application under Section 10(2)(e) for want of jurisdiction.’ – see discussion on background to the legislation in the judgment at para 23ff.  On the facts of this case the CA declined to order the father to purchase a property and otherwise held the maintenance provision of the court below. See a full summary of this important case by Johnathan Mok in the Hong Kong Lawyer

 

3rd March 2014 – the appeal in IDC v SSA FCMP 158/2011 (above) will reach the Court of Appeal on 8th May 2014 – this is an important case that raises questions upon the proper construction of s.10(2)(a) and (e) of the Guardianship of Minors Ordinance (Cap 13) and the level of maintenance for a child of unmarried parents generally. The background to this appeal is helpfully set out at some length by Cheung CJ in HCMP 3453/ 2013 which otherwise deals with the admission (which was granted) of a London silk to argue the case on behalf of the mother.

IDC v SSA FCMP  158/2011 (unreported) HHJ Bruno Chan, 22nd January 2013. Mother’s application under s 10(2) of Guardianship of Minors Ordinance, Cap 13 (GMO) for the maintenance of her daughter. This is an important Family Court judgment if only because it is one of only a handful on this legal issue. It remains to be seen whether the judgment will be challenged in the Court of Appeal – but it covers the situation where an otherwise dependent mother was cohabiting with an enormously wealthy father – who ran the ‘millionaire’s defence’ on full disclosure of assets – the child (now 3.5 years) was born out of that 4-year cohabitation. The parties enjoyed a lavish lifestyle – but after separation father was willing to support the child but mother was now no more than an ‘ex-girlfriend’.

Held: ‘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

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.’

H v S FCMP 70/2008; [2010] HKFLR 236

Family Law — Maintenance — Children born out of wedlock — Whether Hong Kong courts should be guided by principles and guidelines set out in English cases — Practice Direction 15.11 — Guardianship of Minors Ordinance (Cap 13) s 10

F v G (Child: Financial Provision) [2005] 1 FLR 261, Singer J

Re P (Child: Financial Provision) [2003] 2 FLR 865 CA

Phillips v Peace [1996] 2 FLR 230), Johnson J

J v C (Child: Financial Provision) [1999] 1 FLR 152), Hale J

A v A (A Minor) (Financial Provision) [1994] 1 FLR 657), Ward J

Family Law Week Article  (2006)