PEL, by his mother and next friend P AND ANOTHER v. SL
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FCMC 121/2021
[2023] HKFC 167
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FAMILY COURT
MISCELLANEOUS PROCEEDINGS NO. 121 OF 2021
IN THE MATTER OF PEL, a boy born on XX May 2016 (“the Minor”) | |
and | |
IN THE MATTER OF an application under Section 6(1)(a) of the Parent and Child Ordinance, Chapter 429 and Section 10(2) of the Guardianship of Minors Ordinance, Chapter 13 |
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BETWEEN
| PEL, by his mother and next friend P | 1st Applicant | |
| P | 2nd Applicant | |
and | ||
| SL | Respondent | |
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| Coram: | Her Honour Judge Thelma Kwan in Chambers (not open to public) |
| Date of Hearing: | 18 August 2023 |
| Date of Judgment: | 18 August 2023 |
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Ex Tempore Decision
( Maintenance Application )
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1. By an Order made on 12 December 2022, I granted the 2nd Applicant’s application for the Respondent (“R”) to be declared the natural father and in law the parent of the 1st Applicant E, a child born on 10 May 2016, now aged 7.
2. Following that Order, the rest of the Amended Originating Summons applying for E’s maintenance ensues.
3. R has never made his appearance in these proceedings.
4. The Court has been satisfied with the service of these proceedings on the R. Reference can be made to the decision handed down on 12 December 2022. And in particular, it is repeated herein that R has sent an email to the 1st and 2nd Applicants’ solicitors which clearly demonstrates that he is aware of these proceedings, that previous service of documents have reached him; and he chose to be selective in the way he engages in this application.
5. An Unless Order was made on 12 December 2022 for the R to file his Form E and affidavit in opposition to the maintenance claim, failing which the Court shall make a decision based on the 2nd Applicant’s evidence.
6. R was served with this Order on 16 January 2023, neither Form E nor any affidavit has been filed by him.
7. On the return date on 7 June 2023, this Court set down the maintenance application to be heard today, and for submissions to be filed on or before 11 August 2023.
8. R was served with the Order of 7 June 2023 on 23 June 2023. No submission was received and R is absent from today’s Hearing.
Legal Principles
9. Solicitors for the 1st and 2nd Applicants cited some relevant authorities for my consideration of this maintenance application for E.
10. My jurisdiction is based on S.10(2) MPPO and on the Orders that I can made.
11. The case of WGL v ASB [2013] HKFLR 391; and Re P (Child: Financial Provision) [2003] EWCA Civ 837 were cited as to the factors to be taken into the consideration.
12. And in particular: the latter case urges the Court to
“do its best to achieve a fair and realistic outcome by the application of broad common sense to the overall circumstances of the particular case.”
13. I am mindful that I am to use a broad brush approach in my assessment of E’s needs, and that the paramount consideration must be his best interest.
R’s ability to pay
14. As to R’s ability to pay, the Court has no access to any financial information of the R. Despite being given multiple occasions to respond to these proceedings, R has not availed himself of any opportunity to present his case.
15. The 1st and 2nd Applicants’ solicitors have helpfully referred me to the case of Y,M v S,J[2022] HKFC 250 which enable a Court to make robust assumption of a party’s ability to pay when a person has stonewalled an application and ignored Court’s orders.
16. Today at the Hearing, the solicitors further referred to me an excerpt from Rayden and Jackson on Relationship Breakdown, Finances and Children (Issue 26) at paragraph 13.101. Quoting from Moylan J in the case of Moher v Moher [2019] EWCA Civ 1482,
“[88] … the court will, obviously, be entitled to draw such adverse inferences as are justified having regard to the nature and extent of the party’s failure to engage properly with the proceedings.
…
[90] … when faced withuncertainty consequent on one party’s non disclosure … the court is entitled, in appropriate cases, to infer that the resources are sufficient or are such that the proposed award does represent a fair outcome.”
E’s Needs
17. Both the 1st and 2nd Applicants are non-refoulement claimants. Today at the hearing, I seek to ascertain the status of their claims. I was told that they have not yet heard back from these claims which were filed in 2020. At the moment, they receive subsidies from the International Social Services (“ISS”), of which E receives $2,450. E receives free education in HK.
18. In examination in chief today, solicitors for 1st and 2nd Applicants have also made some minor adjustments to the expenses for medical / dental, and clarify the transport expenses.
19. In the absence of fully supported claims with receipts, I have reassessed the numbers on a broad-brush basis:
2nd Applicant’s Claim My assessment Rent 2,000 1,800 Food 2,500 1,800 Transport 500 300 Clothes and daily necessities 1,000 800 Books and entertainment 1,000 500 Medicine Nil
(covered by school)- 7,100 5,200
20. For these numbers, I have taken into account the ISS subsidy of $2,450, which takes E’s total expense in HK to $7,650. The rental amount is E’s share of accommodation of a slightly larger place requested by the 2nd Applicant.
21. The 2nd Applicant has also supplied numbers in the event that she has to return to Indonesia. Today it is clarified that these numbers are only for reference, and I shall not take these into consideration given that the applicants are still in HK indefinitely.
Order
22. I make an Order that the R do pay the 2nd Applicant for the 1st Applicant the monthly maintenance of $5,200. This Order to take immediate effect from 18 August 2023 and thereafter on the 18th day of each succeeding month until the minor reaches the age of 18 or completes 1st degree of tertiary education, whichever is the later.
23. I will make an Order for Costs against the R, and for the 1st and 2nd Applicants’ own costs to be taxed in accordance with Legal Aid Taxation. This to be a cost order nisi to be made absolute after 14 days.
| (Thelma Kwan) | |
| District Judge |
For 1st Applicant: Ms. Evelyn Tsao of Patricia Ho & Associates
For 2nd Applicant: Ms. Evelyn Tsao of Patricia Ho & Associates
Respondent: Acting in person and did not appear