FCMP 32 / 2018
[2018] HKFC 176
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FAMILY COURT
MISCELLANEOUS PROCEEDINGS NO. 32 of 2018
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| | IN THE MATTER OF L-M, UYR, a boy born on the XX August 2010 (“the Minor”) |
| | and |
| | IN THE MATTER OF Section 10 of the Guardianship of Minors Ordinance. Cap. 13 |
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| BETWEEN | | |
| | LHY | Applicant |
| | and | |
| | ME | Respondent |
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| Coram: | Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) |
| Date of Hearing: | 20 August 2018 |
| Date of Judgment: | 12 October 2018 |
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J U D G M E N T
(Interim maintenance, litigation funding and further directions
in relation to Questionnaires, discovery and generally)
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Introduction
1. This is an application by an Applicant mother for interim maintenance for the only minor child of the relationship, a boy now aged 8 years old, who I will refer to as U, pursuant to section 10 of the Guardianship of Minors Ordinance, Cap 13.
2. In the mother’s originating summons dated the 8 February 2018 she sought the following:
1. The Respondent to pay the Applicant the following:-
(a) Maintenance for the Minor child in the sum of HK$175,000 per month until June 2018 and HK$221,000 per month starting July 2018 or such sum as the Court thinks it;
(b) The maintenance for the Minor child to be secured against the property and/or asset held by the Respondent;
(c) Lump sum for relocation; and
(d) Carer’s allowance in the sum of HK$90,000 starting July 2018
2. Leave for the Applicant to remove the Minor from the jurisdiction of Hong Kong to the U.S.;
3. This summons was followed by several others including a summons dated the 3 May 2018, in which the mother asks for substantial further discovery. In her summons of the 10 May 2018 the mother also asks for interim financial provision as follows:
1. An interim maintenance to be provided for U’s school, housing, food, extra-curricular and carer’s expenses starting from 1 July 2018 till a Final Order rendered by this Court, including:
a. Compel the Respondent to fulfil his duty to follow the Court Order on 12 April 2018 to pay U’s school tuition before 15 May 2018, the deadline set up by A, TWS.
b. Setting aside a 8-12 months fund for renting an apartment in New York City comparable to the standard of U’s current and past 7 years housing standard in the US and Hong Kong, e.g., XX Road, Happy Valley, Hong Kong; food, medical, extracurricular activities and transportation at HKD214,027 per month;
c. A car purchase or rental expenses;
d. Lump sum relocation assistance at HKD 84,000;
2. Adequate and comparable carer’s allowance;
3. Interim litigation funding for Applicant to continue the GMO application in Hong Kong Family Court because the Respondent reneged his proposal to mediate after the parties exchanged financial disclosures, including engagement Applicant’s former legal representatives, travel expenses from NY to HK to attend hearings, qualified 24 hour child care for U while Applicant is traveling back to HK to attend court hearings and room and board while she stays in HK to attend Court hearings and other litigation matters.
4. Such other directions as the Court, deems fit; and
5. Costs be provided for.
It is this last summons that the court is largely concerned with in this judgment.
4. The parties are now agreed that the mother and U may relocate to New York. The relationship between the couple has broken down and the father has recently remarried. He has also brought his new wife and three young children to Hong Kong to live. The mother decided to return to New York, which is where she was living and working when she met the father. She intends to rebuild her career as a lawyer after a break of ten years or so. However, in order to do this, she requires some financial support. She accepts that she cannot make a claim against the father in her own right, but she is concerned that the father makes proper financial provision for U and that he also provides appropriate financial security for him.
5. The father has offered to pay for U’s schooling in New York plus a sum of US$7,500 per month (HK$58,500 per month) for his other expenses. In addition, he has agreed to pay HK$120,000 for the relocation costs plus US$5,000 per month (HK$39,000 per month) for a 6-month period as the mother’s carer’s allowance. In general terms his case is that he is prepared to pay whatever the court reasonably asks him to pay. He is though concerned about the lack of any proper evidence to support the mother’s claim and he asks that she keep a full record of her expenses in New York going forward (i.e. receipts and other evidence).
6. He also had some concerns with respect to U’s care and his ability to have meaningful contact with him after he had relocated to New York. In his counsel’s submission he asked for the following:
24. …
a) Father and son can spend time together before she leaves;
b) U’s residential address in New York is disclosed;
c) Arrangements are in place for telephone / Skype access;
d) Planned care arrangements for U are disclosed;
e) Details of M’s income at CKR are disclosed and
f) Details of M’s work routine at CKR are disclosed.
7. The mother said that she could agree with all of these requests save for b). I should add that it would be very unusual for a father not to know where his child was living and I will expect this issue to have been resolved by the time this case comes back to court in December.
8. The mother says that the father’s financial offer is not sufficient. She is particularly concerned at this stage about the cost of renting a suitable apartment in New York for herself and U and how that might be achieved and the size of the carer’s allowance. In her skeleton argument she summarized her position thus:
This Court should decide for M on her interim relief application, including:
1. A security fund for 8-12 months or as long as this proceeding takes to reach a final result for housing in NYC, food, medical and transportation at HK$214,000 per month. A 15-20 days hotel stay at a minimum 4 star hotel in NYC from 25 August 2018 while M locates an apartment for rental. In the alternative, set aside a security fund in the amount sufficient to support and maintain U until he finishes his tertiary education or as long as his ability allows;
2. A Car purchase expenses to be set aside;
3. Payment of back due of May -August of U’s support and maintenance at HK$187,177. There is now shown to me a copy of the calculation of the back due expenses chart marked as Exhibit HL-25-e, 2018 Expense report of U and Household.
4. An interim funding at HK$100,000 per month for M to retainer her litigation solicitor back; and to pay for her travel, lodging and cost of 24 hours qualified caretaking for U when M needs to travel back to HK to attend hearing.
5. An adequate carer’s allowance in the sum of HK$90,000 per month for 6-12 months starting from August 2018 and thereafter a market rate carer’s allowance for a nanny for U.
9. Generally, it is the mother’s case that the father has not made full and frank disclosure of his means. She says that the father has an income of over HK$8 million per month and an asset base of approximately HK$117 million. She says that he can well afford to pay what she is seeking and to maintain the reasonably high standard of living enjoyed by U whilst living in Hong Kong.
The main issues
10. The main issues to be determined then are as follows:
a) how much should the father pay to the mother as interim maintenance for the minor child, U? In particular, what arrangements should be made for housing and how much should the father pay as a carer’s allowance?
b) Should the father also pay a monthly sum as litigation funding and if so how much should that be?
c) Should there be any backdating of these sums?
d) Should any provision be made for the purchase of a car at this stage?
e) What further directions should be given in relation to the draft questionnaires and other related matters?
Background
11. The parties are not married. They met in New York and initially formed a relationship there. U was born in August 2010 and in or about 2013 the parties came to Hong Kong to live. The mother is now 50 years of age and she is of Chinese descent. She is a lawyer by profession and has a licence to practice in New York. The father is a French businessman and he is now 69 years of age.
12. Putting it as neutrally as possible it seems that the relationship was not a sexually exclusive one and the father has had other relationships and chose not to reside with the mother and U on a full time basis. In particular, it seems that the father was also living with another woman in France who has since become his wife. The father has had two further children with her and they are now aged 2 ½ and nearly 11 months old respectively. He has also adopted a further child who was his wife’s child by an earlier relationship. She will be 7 years old in January. He also has other grown up children and I am told that he has 7 children in total. I am not sure if that includes his adopted child.
13. It does not appear to be disputed that the father fully supported U and the mother whilst living in Hong Kong. They lived in top end accommodation on Hong Kong island and the last rental was for HK$100,000 per month. In addition, the father paid for U’s schooling at a well known international school plus his extra-curricular activities, of which there were many. He covered the other related housing costs (utilities, domestic helpers etc) and the mother had an Oliver’s card for the purchase of food and other related expenses. There was also medical coverage and holidays. The mother also received an income of HK$40,000 per month from one of the father’s companies and she says that she used this money to largely cover her own personal expenses. She also drove a BMW car provided by the father.
14. In the mother’s affidavit dated the 8 February 2018 she sets out the expenses for herself and U whilst in Hong Kong as follows:
23. As a summary, I set out below in detail the current average monthly household expenses, personal expenses, and expenses in relation to U. These are actual expenses computed from credit card statements bank records and receipts which I have kept for the past 2-3 years.
General expenses
| Item | Amount (HK$) |
| Rent of the B Residence | 100,000 |
| Utilities (electricity, gas, rates, telephone & water) | 7,000 |
| Management fees | Inclusive |
| Food | 11,000 |
| Household expenses | 3,689 |
| Car expenses (including insurance, licensing maintenance and repair) | 5,000 |
| Insurance premium (including U and me, for health insurance without deductibles) | 9,815 |
| Driver and Gasoline | 23,600 |
| Other (specify) – Government Rates | Inclusive |
| Total monthly household expenses | 172,104 |
Personal expenses
| Item | Amount (HK$) |
| Meals out of home | 7,500 |
| Transport | 1,000 |
| Clothing / Shoes | 5,000 |
| Personal grooming (including haircut and cosmetics) | 2,000 |
| Entertainment / resents | 3,000 |
| Holiday | 10,000 |
| Medical / Dental (deductibles not covered under insurance) | 1,000 |
| Tax | 7,200 |
| Insurance premium (annual fee of 12,480) | |
| Other (specify) – Government Rates | Inclusive |
| Total monthly personal expenses | 44,740 |
Child expenses
| Item | Amount (HK$) |
| School fees at the ABC International School | 9,520 |
| Extra Tuition (fees private tutor) | 5,700 |
| School books and stationery | 300 |
| Transport to school (by driver) | Included in part (a) |
| Medical / Dental (form deductibles not covered under insurance) | 1,100 |
| Extra-curricular Activities | 14,927 |
| Entertainment / presents | 1,000 |
| Holiday | 10,000 |
| Insurance premium | Included in part (a) |
| Lunches and pocket money | 3,000 |
| Uniform | 1,000 |
| Total monthly expenses for U | 48,547 |
24. Currently, E [the father] is paying for all of the above expenses either by paying the costs directly such as rent, helper, driver, medical insurance, school fees etc, or by reimbursement to me, except for holidays which I sometimes contribute for part of the costs. The monthly salary of HK$40,000 provided to me by E’s company is for my own personal expenses such as for personal grooming and entertainment. E has paid for the majority of my personal expenses such as food and living while I am in Hong Kong. Starting from 2015 till October 2017, I have covered my own expenses on food when I travel for work and personal expenses such as clothing and grooming.
This amounts to HK$268,391 per month in total.
15. The mother then sets out her anticipated expenses in New York as follows:
28. I have also calculated the anticipated costs of living in the U.S. for U and myself based on past experience and general estimates which are listed as follows:
General expenses
| Item | Amount (HK$) |
| Rent | 80,000 |
| Utilities (electricity, gas, rates, telephone & water) | 6,240 |
| Management fees | (15,600) |
| Food | 24,960 |
| Household expenses | 3,900 |
| Car expenses (including insurance, licensing maintenance and repair) | 7,800 |
| Insurance premium (including U and me, for health insurance without deductibles) | 9,812 |
| Gasoline | 3,900 |
| House keeper and Nanny | 39,000 |
| Other (specify) – Government Rates | 0 |
| Total monthly household expenses | 175,612 |
Child expenses
| Item | Amount (HK$) |
| School fees at Avenue Starting September 2018 | 36,725 |
| Extra Tuition fees (private tutor) | 0 |
| School books and stationery | 500 |
| Transport to school | 6,052 |
| Medical / Dental (form deductibles not covered under insurance) | 1,100 |
| Extra-curricular Activities | 14,927 |
| Entertainment / presents | 2,000 |
| Holiday | 15,000 |
| Clothing / Shoes | 5,000 |
| Insurance premium | Included in part (a) |
| Lunches and pocket money | 4,000 |
| Uniform | 2,000 |
| Total monthly expenses for U | 87,116 |
29. Apart from the monthly ongoing expenses, I anticipate that there will be some one-off costs associated with the relocation, such as moving/shipping costs, costs of purchasing a new car and setting up of a new home:
a. The estimated cost of moving is around the HK$120,000 based on the moving cost in 2013 when we moved to HK from Greenwich CT. There is now shown and produced to me a copy of the receipt of the moving costs back in 2013 marked as Exhibit “HL-5. I would ask a contribution from E for 70% of this cost, which equates to HK$84,000 moving cost as the items will be less. I am asking this contribution because U and I moved here solely for E.
b. I will need a vehicle of comparable quality and value to the BMW which E has provided me and U to use for the past few years, for U’s benefit. Taxis are expensive in New York, and I would like to be able to drive U to school and his activities every day for his safety and convenience. I estimate the likely purchase price to be in the region of HK$650,000 – 670,000 for the same model BMW X5 car, not including tax. There is now shown and produced to me a copy of an email from a car sales agent marked as Exhibit “HL-6”. For sales tax, registration and plate licensing fee cost, it would be roughly in the range of HK$30,000 – 40,000. The total anticipated expense for a car would be HK$680,000 – 710,000.
c. I will also need to purchase a TV and other necessary furniture when I set up a new home for me and U in the U.S. For furniture replacement and new purchases, this will be dependent upon whether E will allow us to bring our necessary items back to the US with us. If so, I anticipate that we would need, at the minimum, to purchase replacement of some essential items, such as 2 TV sets, 1 DVD sets and 1 sound stereo. An average TV costs USD1,500 each set and two TVs cost roughly USD3,000 which is roughly HK$23,340. For furniture, we would try to use the old ones. However, in case we need replacement of damaged furniture and kitchenware, I would ask for a USD10,000 (HK$ 78,000) to replace them.
16. In summary she says that
In summary, I ask that E provides the monthly sum of HK$175,150 (rounded off to HK$175,000) for U’s maintenance while he is still living in Hong Kong, with an undertaking by E that he will continue to pay school expenses, extra-activities by direct deposit or by a check/wire transfer; and HK$221,090 (rounded off to HK$221,000) starting from July 2018 once we have moved to the U.S. This sum covers a notional 2/3rd of the general expenses (excluding the costs which are incurred purely for the benefit of U namely, helper and driver in Hong Kong, and nanny and car expenses in the U.S.) and the costs of U’s education and living expenses in full. I also seek a lump sum for moving, car, furniture and miscellaneous expenses as described above.
The law
Interim maintenance
17. The law is not in dispute and can be found in the Guardianship of Minors Ordinance, Cap 13. However, for completeness sake I have set out in full the relevant sections below.
10. Orders for custody and maintenance on application of either parent
(1)
(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. (Replaced 80 of 1997 s. 78)
(13)(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) …
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.
18. In addition, reference can also be made to the useful summary to be found in LCTK v TKKPFCMP 173 of 2009, unreported dated 25 June in which HH Judge Chu (as she then was) summarized the legal principles thus:
THE LEGAL PRINCIPLES
5. The Court has power under s.10(2) of the Guardianship of Minors Ordinance (“GMO”) to make various forms of financial provision for a child, which includes periodical payments towards such child’s maintenance.
6. There are no equivalent statutory matters as those set out in s. 7 of the Matrimonial Proceedings and Property Ordinance which the Court has to have regard to in exercising its discretion in making financial orders for a child under the GMO and the test is simply what is reasonable having regard to the means of the parent on whom the requirement is imposed (s. 10(2)(b)).
7. Under s. 13 (3) (a) of the GMO, the Court has the power to make an interim order, but such interim order shall only have effect for 3 months from the date of the order, and shall cease to have effect on the making of a final order or on the dismissal of the application.
8. Our GMO is based on the UK Guardianship of Minors Act which is now incorporated in Schedule 1 of the Children Act 1989. Paragraph 9 of Schedule 1 relates to interim orders. However, there is now no 3 month limitation for an interim order in the UK provisions. Why there still remains in our legislation this limitation is not quite clear, but there seems to be nothing to stop the Court to make a further interim order, upon the cessation of the first one.
9. There is no dispute between the parties as to the general legal principles. This being an interim application, and not having had the benefit of seeing the parties in the witness box with their evidence tested, the Court will have to adopt a broad brush approach. The Court will not take a long term view and what matters is the immediate and reasonable financial needs of the Child.
With respect it seems to me that that remains the position now.
19. In the mother’s submission she also includes a summary of the law from Keith Hotten’s “On family Law” website as follows:
29. The Courts in Hong Kong have adopted the principles and guidelines set out in the English cases, particularly Re P (Child: Financial Provision) [2003]2 FLR 865, in considering what financial orders are reasonable for the benefit of a child born out of wedlock. In the Re P case, Judge Bodey set out the relevant considerations on an application for financial orders for children born out of wedlock and they are:
• The welfare of the child, although not paramount, is naturally a very consideration as one of “... all the circumstances of the case.
• 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.
• one of the financial needs of the child’ 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.
• 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, ‘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
• the latter concept lends itself to demands going potentially far wider than those reasonably necessary to enable the mother properly to support the child and it is necessary 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
• 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 a 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);
• such income provision is reviewable from time to time, according to the changing circumstances of the parties and child;
• the overall result achieved by orders under Schedule 1 should be fair, just and reasonable taking into account all the circumstances.
Again I agree with this general summary notwithstanding the fact that it largely references statues and case law from England and Wales. Nevertheless, I accept that Hong Kong has also endorsed the concept of a carer’s allowance and the general approach identified here.
How much should the father pay to the mother as interim maintenance for the minor child, U? In particular, what arrangements should be made for housing and how much should the father pay as a carer’s allowance?
20. As a general point it seems to me that it is very difficult for a court in Hong Kong to accurately assess the cost of living in an overseas jurisdiction – especially if, as here, the judge has had no or very little contact with the overseas jurisdiction in question. Thus I accept as a general proposition that if this case is to remain in Hong Kong, that the mother will need to keep an accurate record of her expenses with documentary evidence in support as appropriate.
The reasonable needs of U
Housing
21. I accept that U has been housed in very good accommodation in Hong Kong. I also accept that he should be housed in similarly good accommodation in New York. It also seems sensible for him to live close to his school, as that will save on other related costs such as the cost of the school bus or other transport. More than that however, it is not possible for the court to say. In particular, the court is not in a position to comment on the size of the apartments or on the facilities that they may or may not have. The mother has produced some real estate particulars and says that she is willing to accept an apartment in the US$8,000 – US$9,000 per month price range. She accepts that the apartments in question are not of the same standard as the Hong Kong apartments that she and U have been used to living in, but she says that they are good enough. She argues that a reduction of about 1/3 is reasonable. In contrast the father says that it is possible to rent a suitable two bedroomed apartment, in an acceptable area for between US$2,995 – US$4,400 per month. On a very broad brush basis I am inclined to accept what the mother says in this respect, especially given the standard of accommodation enjoyed by U in Hong Kong. Thus I will allow US$8,000 per month for rent.
22. There is also a further problem in that the mother says that she may have some difficulty in renting an apartment as she does not currently have a steady income. In that respect it is of note that in the father’s Court note of the 19 June 2018 he said inter alia as follows:
6. F made his financial proposals some time ago.
i. Before M leaves the present financial arrangements will continue.
ii. F will also make a one-off payment of HK$120,000 to assist relocation process and give a financial cushion.
iii. He has paid school fees of the school the M chose and will pay for extra curricular activities approved by him after they settle down.
iv. F is prepared to assist with the Rental deposit in New York provided it is refunded to him on expiry and he is consulted on the amount in advance.
v. He will pay USD7,500 per month to M for U as per the Court Order dated 29th March 2018. M is planning to continue working as an IP lawyer in New York. Her website claims a significant important practice but her Form E asserts a loss. She has made changes to her website exposure since starting these proceedings. Her profile has been removed from the Apogee website.
vi. M has failed to renew her practising certificate in New York since January of this year, all this need to be resolved by her.
It is not clear whether or not the father is willing to stand by his proposal at (iv) above. It would though seem to be sensible in the circumstances. I will therefore include it as a direction at the end of the court order.
Carer’s allowance
23. It seems to me that there is some confusion over the accurate legal basis for including a carer’s allowance in the computation of expenses. The mother’s approach has been to request funds for a nanny/other domestic support in order to enable her to go back to work full time. She says that she will not need this level of support forever, but that she does require it for the next 6 – 12 months. Thus she has concentrated her efforts on researching into the cost of a full time nanny. However, it is clear from the analysis of the law in paragraphs 17 – 19 above, that it is also possible for a carer’s allowance to be provided for a mother so that she herself is able to take on the role of a full time carer. There is also a dispute over the quantum of the carer’s allowance. The father offers US$5,000 per month or HK$39,000 per month and the mother asks for a staggering US$11,540 or HK$90,000 per month. This seems like an extraordinarily high figure especially given the fact that U is 10 years old and will not require a full time carer in any event. The mother says that she needs this because she intends to go back to work and that it will take her some time to build up her practice again. She will be starting from scratch and it may take her a little time. Whilst I accept this and the fact that the mother may not need this assistance on a long term basis, nevertheless the quantum claimed seems impossibly high. Consequently, on a broad brush basis I will allow US$7,500 per month as a carer’s allowance to include the cost of a part time Nanny and other domestic support and as a contribution towards the mother’s expenses pending her return to full or part time employment.
Other expenses
24. The mother shall be responsible for her own expenses and her share of the general expenses initially from her savings and the carers allowance and longer term from her own income. This then leaves only a contribution from the father towards the general household expenses for U and U’s actual expenses.
25. As indicated above at paragraphs 14 and 15 the mother says that she anticipates that the general expenses in New York will amount to just over HK$175,000 or US$22,435 per month. As indicated above I have allowed US$8,000 per month for housing or HK$62,400 per month and US$7,500 per month or HK$58,500 per month for the carer’s allowance. In so far as the other expenses are concerned it is almost impossible for the court to comment on these save that the cost of food seems very high indeed at almost HK$25,000 per month. The mother says that she spends HK$11,000 per month in Hong Kong. I will allow this sum or say US$1,400 per month. I will also allow the other expenses save for the management fees – which again seem to be very high – even if it does include the possibility of provision for club facilities within the apartment block. Thus on a very broad brush basis the general expenses will be as follows:
| General expenses | |
Item | Amount |
| Rent | 62,400* |
| Utilities (electricity, gas, rates, telephone & water) | 6,240* |
| Management fees | 0 |
| Food | 11,000* |
| Household expenses | 3,900* |
| Car expenses | 0 |
| Insurance premia | 10,000* |
| Carer’s allowance | 58,500 |
| Other | |
Total monthly household expenses | HK$152,040 |
26. Of these expenses the father shall be responsible for the carer’s allowance and for half of the remaining costs being U’s full share. Once the mother starts earning an income she will be expected to also contribute towards U’s share of the general expenses. At present U’s share of this amounts to HK$46,770 + 58,500 = HK$105,270. (Add up those items marked with an * and divide by 2).
U’s actual expenses
27. The mother also sets out U’s anticipated expenses in paragraph 15 above. The father has already undertaken to pay for U school fees, so that expense will be taken out of the computation. Likewise, the reference to the school bus given that it is anticipated that U will walk to school. The mother claims the following expenses in addition:
| 4.3 Children |
Item | Amount |
| School fees | N/A |
| Extra tuition fees | 0 |
| School books and stationery | 500 |
| Transport to school (including school bus) | N/A |
| Medical / Dental | 1,100 |
| Extra-Curricular Activities | 14,927 |
| Entertainment / presents | 2,000 |
| Holidays | 15,000 |
| Clothing / Shoes | 5,000 |
| Insurance premia | See above |
| Lunches and pocket money | 4,000 |
| Uniform | 2,000 |
Total monthly expenses for children | 44,527 |
28. Of those expenses I will take out of the equation the reference to entertainment/presents and holidays. Each party shall be responsible for their own presents for U and in the longer term for other entertainment costs and holidays when each parent is with him. The other major anticipated expense is for extra-curricular activities at just under HK$15,000 per month. This seems to be based on the amount previously spent in Hong Kong. I will reduce this to HK$5,000 per month in the short term. It is of note that concerns have been expressed about the number of ECA’s that U attended in Hong Kong and that it might be a good idea for this to be reviewed in any event. I have also reduced the uniform cost to HK$1,000 and clothing and shoes to HK$3,500.
29. Thus in total I accept that the actual costs for U, without including the carer’s allowance or school fees and related expenses amounts to approximately HK$15,000 per month as follows:
| 4.3 Children |
Item | Amount |
| School fees | N/A |
| Extra tuition fees (included in ECA’s) | N/A |
| School books and stationery | 500 |
| Transport to school (including school bus) | N/A |
| Medical / Dental | 1,100 |
| Extra-Curricular Activities | 5,000 |
| Entertainment / presents | N/A |
| Holidays | N/A |
| Clothing / Shoes | 3,500 |
| Insurance premia | See above |
| Lunches and pocket money | 4,000 |
| Uniform | 1,000 |
Total monthly expenses for children | 15,100 |
Conclusion on the level of maintenance
30. Consequently, I shall order that the father pay the mother HK$120,000 per month for U, rounded down with effect from the 1 September 2018, credit to be given for any sums paid from that date. Although this order is for a three-month period, I will nevertheless expect this sum to be paid pending further order of the court. In addition, I will hold the father to his undertakings to pay for U school fees.
Should the father also pay a monthly sum as litigation funding and if so how much should that be?
31. The mother also asks for litigation funding of HK$100,000 per month. The difficulty with this is that it is not clear what that figure is based on. She is not currently legally represented and she has not broken this down in any way save that she did refer to some outstanding legal costs that are still to be paid to her former lawyers.
The law on litigation funding
32. The law on litigation funding is set out in Currey v Currey [2006] EWCA Civ 1338, which continues to be routinely applied in Hong Kong. This states inter alia that:
“the conditions for a ‘costs allowance’ are as follows:
(1) That the applicant spouse has no assets, or none that can reasonably be deployed (at para [19], [20]).
(2) That she can provide no security for borrowing, or none which can reasonably be offered (at paras [19], [20]).
(3) That she cannot reasonably obtain legal services by offering a charge on the outcome of the litigation (at para [20] and see Sears Tooth, per Wilson J).
(4) That she cannot secure publicly funded legal help ‘at a level of expertise apt to the proceedings’ (at para [20])”
There is also a requirement to undertake an overarching enquiry
At para [20], Wilson J held that the initial, overarching enquiry should be into whether the applicant for a costs allowance could demonstrate that she cannot reasonably procure legal advice and representation by any other means. Therefore, to the extent that an applicant has assets (as in C v C), she has to demonstrate that they cannot reasonably be deployed (whether directly or as the means of raising a loan) in funding legal services …… Other factors may well come into play. The subject matter of the proceedings would always be relevant, as would the reasonableness of the applicant’s stance in the proceedings.
33. In this instance it is clear that the Applicant has only limited resources including a small flat in New York. I accept that she can provide no security for borrowings and that she is unlikely to be able to obtain legal services by offering a charge on the outcome of the litigation. I do not know whether she has applied for Legal Aid or whether this is indeed an option. It is doubtful on the face of it that she would satisfy the means test.
34. The difficulty however is that the mother has not always taken a reasonable stance with respect to disclosure or other aspects of the litigation. As I have said above it is also unclear how the figure of HK$100,000 per month has been arrived at. Consequently, the court is not minded to grant any form of litigation funding at this stage. Consequently, paragraph 3 of the mother’s summons dated the 3 May 2018 shall be adjourned sine die with liberty to restore.
Should there be any backdating of these sums?
35. I do not intend to further backdate the maintenance amount. Although the summons is dated May 2018, I believe that the mother did not relocate to New York with U until late August 2018. The mother’s case with respect to other amounts that she says are outstanding for the period when she was in Hong Kong can be considered again at a later date.
Should any provision be made for the purchase of a car at this stage?
36. I do not intend at this stage to allow any provision for a car. I accept that not many people are likely to have a car in central New York and that this is also an issue that may be revisited later.
What further directions should be given in relation to the draft questionnaires and other related matters?
37. The mother has also issued a summons dated the 3 May 2018 seeking significant further disclosure. She is now invited to withdraw that summons within the next 14 days. In the event that she chooses not to do so, this summons shall in the first instance be adjourned to the 3 December 2018 for further directions.
38. The court has also reviewed the mother’s draft questionnaire and a copy of the amended document will be sent to the parties under separate cover, together with an order relating to the time table for the filing of that document and the subsequent answers.
Costs
39. Although the mother has not been wholly successful, she has nonetheless beaten the open offer made by the father. She also had no option but to issue the summons given the fact that the father was seemingly unwilling to make any other proposal. In such circumstances costs shall follow the event in the normal way. Thus I shall make an order nisi to be made absolute in 14 days’ time that the father do pay the wife’s costs of and occasioned by her summons dated the 10 May 2018 to be taxed on a party and party basis if not agreed.
Order
40. The order shall read as follows:
UPON the Respondent father undertaking to continue to pay for U’s school fees;
IT IS ORDERED THAT
1) The Respondent shall pay interim maintenance to the Applicant for the minor child, U in the sum of HK$120,000 per month, the first payment to be made on the 1 September 2018 and thereafter to be paid on the 1st day of each succeeding month until further order.
2) Paragraph 3 of the Applicant’s summons dated the 10 May 2018 shall be adjourned sine die with liberty to restore.
3) There shall be an order nisi to be made absolute in 14 days’ time that the Respondent do pay the Applicant’s costs of and arising out of the summons dated the 10 May 2018 on a party and party basis to be taxed if not agreed.
IT IS FURTHER DIRECTED THAT
4) The Applicant do keep a full record of her expenses in New York going forward including receipts and other evidence as appropriate.
5) The Respondent shall provide the Applicant with a rental deposit in New York on the premise that it be refunded to him at the end of the rental agreement and that he is consulted in advance on the amount in question.
| | ( Sharon D. MELLOY ) |
| | District Judge |
The Applicant appeared in person
Mr. Neal Clough instructed by Yip, Tse and Tang for the Respondent