FCMP147/2012

FCMP147/2012

A A FCMP 147/2012 [2020] HKFC 161 B B IN THE DISTRICT COURT OF THE C C HONG KONG SPECIAL ADMINISTRATIVE REGION D MISCELLANEOUS PROCEEDINGS D NUMBER 147 OF 2012 E E ---------------------------- F F IN THE MATTER OF an G G Application under Section 10 of the Guardianship of Minors Ordinance, H Cap 13 H AND I IN THE MATTER OF the minor, G I BETWEEN J J QMY Applicant K K and L L M GSS Respondent M N --------------------------- N O Coram: His Honour Judge I Wong in Chambers (Not open to Public) O Dates of Hearing: 24 - 26 April, 2 - 3, 6 May, 17 - 18 December 2019, P P 14 January and 8 April, 2020 Q Q Date of Judgment: 17 July 2020 R R __________________ S S JUDGMENT ( Maintenance – Guardianship of Minors Ordinance ) T T __________________ U U V V  -2- A A B 1. This is a trial on the mother’s application against the father B for financial provisions for the benefit of their daughter, who was born C C out of wedlock, pursuant to section 10(2) of the Guardianship of Minors D Ordinance, Cap 13 (“the Ordinance”). D E E 2. In this judgment I shall, for ease of reference, refer to the F F applicant and the respondent as “the mother” and “the father”. I shall G refer to the daughter as “G”. G H H Parties Background I 3. The mother is now 47 years old. She was born and grew up I in the Mainland and virtually has had no connection with Hong Kong. J J K 4. The father, now 56 years old, is a Hong Kong permanent K resident. At the material times the father was working in Guangzhou as L L the Regional Director for South China of a Hong Kong listed company. M M N 5. The mother first met the father in the Mainland through N work in about 1997. They developed an intimate relationship in about O O 2000 or 2001 despite the fact that the father was already married and had P a family of 2 children in Hong Kong. P Q Q 6. In October 2001, with the financial support of the father, the R mother went to the Switzerland for a one-year diploma course. Upon R completion of her studies in August 2002, the mother returned to the S S Mainland and worked in the same company of the father. T T U U V V  -3- A A 7. In about 2006, the mother got pregnant. They decided to B keep G, after previously having had several abortions in respect of which B the father admitted having accompanied the mother for the operations. C C The father paid for the mother to come to Hong Kong to give birth to G in D D August 2007. E E 8. In October 2007, the mother brought G back to Guangzhou F F and two of them had been living there until August 2017 when the mother G and the daughter emigrated to Toronto, Canada. At the time of the G commencement of the proceedings, G was 5 ½ years old. She is now H H almost 13. I I 9. In April or May 2008 when G was about 8 months old, the J J mother resigned from her job. She has since assumed the role of a full- K time mother and has not been in any gainful employment. K L L 10. The parties’ relationship took a turn for the worst when it M was made known to the father’s wife. They eventually broke up in M N August 2008. N O O 11. In 2012, the mother applied to emigrate to Canada with G P for which she had to pay CAD 120,000 into certain Canadian investments. P Her application was successful and accordingly, she and G relocated to Q Q Toronto in August 2017. The mother therefore had to fly all the way R from Ontario for the purpose of attending this trial. Due to the restriction R imposed upon her as an immigrant, the mother was not able to leave S S Canada from August to November 2019 so this case had to be part-heard T with 6 months’ apart. Unfortunately, the proceedings further went into T quandary due to the outbreak of the COVID-19. U U V V  -4- A A B Procedural Background B 12. The mother’s application was taken out on 12 July 2012. C C Regrettably it has taken a detour of nearly 5 years for this case to come to D trial. This was due to the father’s challenge on this court’s jurisdiction to D E deal with the application. The father took the view that courts in Hong E Kong had no jurisdiction to hear the mother’s claim as G was not F F ordinarily resident or physically present in Hong Kong and in any event, G the People’s Court of Siming District in Xiamen City (廈門市思明區人 G 民法院) of the Mainland (“the Siming Court”) should be the more H H appropriate forum to deal with the claim. The challenge took its full I I course to go all the way to the Court of Final Appeal which ultimately J determined in favour of the mother. J K K 13. As things turned out, the father has been determined to fight L on all possible fronts he could and, for that matter, at all costs. L M M 14. In order to put the mother’s claim and the father’s defence in N proper context, it is useful to summarise the relevant procedural N background. O O P 15. On 6 September 2012, the father commenced a separate set P of proceedings in the Siming Court seeking the custody of G as well as Q Q payment of maintenance by the mother for G. R R S 16. On 24 September 2012, the father applied to have the present S proceedings stayed on the ground of forum non conveniens in favour of T T the Siming Court. U U V V  -5- A A B 17. On 21 January 2013, the Siming Court dismissed the father’s B claim for custody and maintenance. C C D D 18. On 21 February 2013, in addition to his application for stay, E the father applied to challenge Hong Kong’s jurisdiction on the ground E that G was not ordinarily resident or physically present in Hong Kong. F F G 19. On 3 March 2013, the father appealed to the Intermediate G People’s Court of Xiamen against the judgment of the Siming Court but H H his appeal was rejected on 28 October 2013. I I 20. On 27 May 2013, a judgment by myself was handed down J J dismissing the father’s challenge on the jurisdictional point and on forum K non conveniens: see QMY v GSS (Forum: Maintenance for Child under K GMO) [2013] HKFLR 336. L L M 21. Meanwhile, on 28 November 2013, the father commenced M N yet another claim concerning the custody and maintenance of G in N another court in the Tianhe District of Guangzhou (“the Tianhe Court”). O O P 22. On 18 March 2014, the Tianhe Court dismissed the father’s P claim for custody, but determined that the father should bear the financial Q Q responsibility for G in the sum of RMB10,000 per month (“the Mainland R Maintenance Order”). The father appealed against the custody decision R but was rejected on 12 August 2014. S S T T U U V V  -6- A A 23. Turning back to Hong Kong, the father appealed to the Court B of Appeal against my decision and he succeeded on a point not raised by B him before me: see QMY v GSS, [2015] 4 HKLRD 641. C C D D 24. The mother then appealed to the Court of Final Appeal E which, by a judgment dated 21 June 2017, finally determined that Hong E Kong courts have jurisdiction to deal with the mother’s claim under the F F Ordinance and the Hong Kong Family Court is a more appropriate forum: G see QMY v GSS, (2017) 20 HKCFAR 303. G H H 25. It was after this judicial odyssey that the main application I returned to the Family Court for adjudication. I J J Present Situation of the Parties K 26. Due to the passage of time G is now a teenager. Apart from K this, a lot has happened since the last 5 years or so. L L M The Present Situation of the Mother and G M N 27. The mother has been the primary carer of G since her birth. N As said, the mother and G have since August 2017 settling in Toronto. O O As before, the mother is not working and continues to take care of G on a P full-time basis. However, shortly after landing on their new homeland, P the mother was diagnosed to have breast cancer. She is now in remission Q Q but still has to attend follow-up at rehabilitation centre. R R 28. The mother and daughter are living in a leased apartment. G S S is attending an international school nearby. T T The Present Situation of the Father U U V V  -7- A A 29. The father is living with his wife with whom he married in B 1989 in a property at the Discovery Bay that was purchased in his sole B name. His two children have grown up, aged 25 and 20 respectively. His C C wife and the two children emigrated to Australia in the early years and D D the children received tertiary education there. The elder son is working E for an investment bank in Sydney and the younger daughter is attending a E university there. F F G 30. The father left his top-managerial job with the Hong Kong G listed company in November 2016 due to the company’s privatization. H H On the father’s version, he was being laid-off after 18 years’ service. I From October 2017 to April 2018 he was employed as the vice-president I of a non-state-run company (民企) in the Mainland with a net monthly J J salary of RMB70,000. He has not been in any gainful employment since K May 2018. He said currently he has been prevented from taking up any K L meaningful employment because he has to take care of his wife who was L diagnosed to have classical Hodgkin lymphoma, stage 2, in January 2019 M M and has undergone radiotherapy and chemotherapy. N N The Parties’ Case O O 31. It is a relief that neither party has ever tried to argue that a P court of Ontario is a more appropriate forum to deal with the mother’s P claim. Q Q R 32. The mother’s case is straightforward. The father should be R held solely responsible for the maintenance of G until she reaches the age S S of 18 or finishes full-time education. Despite the fact that he has left his T previous employment, the father has the financial ability, both in terms of T the wealth and his earning capacity, to support G. U U V V  -8- A A B 33. On the part of the father, parentage and liability are never in B dispute. Yet, I must confess it is not an easy task to grasp his case. C C D 34. From the father’s affirmation evidence and the way in which D E his case was presented in the Opening Submissions, initially it was E thought the father would rely on the agreement that he alleged he had F F made with the mother regarding the joint investments when the parties G were in a relationship to support his contention that he had already G provided more than sufficient financial security for G well before the H H mother took out the present proceedings. I I 35. The father said as from 25 August 2003 to 6 April 2008, he J J had given a total of RMB 2,645,584 and $1,540,000 to the mother who K made use of substantial part of these monies into the purchase of 3 pieces K of property in Guangzhou in her sole name. Except the last property in L L the Ersha Island, the other 2 properties have already been sold with M profits. The father claimed there was an agreement between them that M N these properties were to be jointly owned and that any profits generated N by these investments would be used for further investments and any gains O O would be shared equally. He further claimed that subsequently after the P arrival of G there was an agreement that the rental income of their jointly P owned properties would be used to meet the monthly expenses of G and Q Q that each of them would have ¼ share of the joint investment and that G R would be entitled to the other half. R S S 36. Whilst accepting there were such money gifts, the mother T denied there was ever any agreement as alleged, whether on the joint T investment, the purchase of properties or the maintenance of G. U U V V  -9- A A B 37. As a matter of fact, apart from the legal proceedings B concerning G that the father commenced in the Mainland, he also C C commenced a separate set of proceedings in Guangzhou claiming D D beneficial interests in the said 3 pieces of property and the return of them E by the mother. I shall refer to these proceedings as the “Mainland E Restitution Proceedings”. His claim was substantially successful in the F F first instance but met with failure on appeal. G G 38. I shall deal with the alleged agreement and the Mainland H H Restitution Proceedings in the latter part of this judgment. I I 39. During his opening, Mr Lin clarified that it was not the J J father’s intention to invite the court to come to any findings of fact as to K whether or not there was any agreement over the joint investment or the K maintenance of G as alleged by the father. Mr Lin adroitly emphasized L L that the monies were provided to the mother in contemplation of the M parties to maintain G. He submitted that the court should take all these M N transfers of funds and purchases as part of the circumstances of the case N into consideration when determining whether or not the father should pay O O any further maintenance and if the answer is in the positive, how much P the father has to pay. P Q Q 40. In addition, the father is now unemployed and, in any event, R the mother is financially better than him. R S S 41. Lastly, the mother has failed to give a full and frank T disclosure of her financial situation; specifically, she has parked T substantial assets with her sister. U U V V  - 10 - A A B The Mother’s Open Offer B 42. The mother is seeking: - C C (1) a periodical payment of CAD 11,900 per month with effect D D from August 2017 when the mother and the daughter E relocated to Canada; and E (2) a carer’s allowance at the rate of CAD 2,800, also with effect F F from August 2017 until G reaches the age of 15. This will G be the time when G finishes her junior high school. G H H 43. As for the period before the relocation, at the beginning of I the trial the mother was seeking a periodical payment of RMB 42,000 and I a carer’s allowance of RMB 10,000 per month from July 2012 (the date J J of the application) to August 2017. The mother subsequently reduced the K figures to RMB 40,000 and RMB 9,700 respectively. K L L 44. The mother is willing to give credit to RMB 350,000 already M paid by the father pursuant to the Mainland Maintenance Order. M N N The Father’s Open Offer O O 45. It is not in dispute that the father had paid a monthly sum of P RMB 10,000 pursuant to the Mainland Maintenance Order from P November 2013 to October 2016, making a total of RMB 350,000. The Q Q father was willing to continue to pay after October 2016 but he was R prevented from doing so because the mother’s bank account had been R closed. S S T 46. Before trial, the father had never given any open offer. It T was upon the court’s repeated inquiry during the opening that, Mr Lin, on U U V V  - 11 - A A behalf of the father, confirmed that notwithstanding it is the father’s case B that he has already provided more than sufficient for the upbringing of G, B he agrees to provide an undertaking to the court that he shall continue to C C pay RMB 10,000 or alternatively, he is agreeable to an order of RMB D D 10,000 to be made against him; so the father is essentially saying that the E mother is not entitled to any maintenance out of the present proceedings. E With respect, it has remained a mystery as to how the father would have F F come up to a figure of RMB 10,000. It has to be remembered that when G the Mainland Maintenance Order was awarded by the Tianhe Court, the G mother and G were living in Guangzhou but they have since moved to H H Toronto. One wonders whether in the eyes of the father RMB 10,000 is a I magical figure that shelters him against all circumstances. I J J Exchange Rates K 47. This case involves three currencies and spreads over a K couple of years. I shall adopt the broad-brush and pragmatic approach L L proposed by Mr Yim to which I understand Mr Lin has no objection. M M N 48. For the exchange rate of Reminbi to Hong Kong dollars, N according to Mr Yim’s calculation, it is RMB 1 to $1.184. O O P 49. For the exchange rate of Canadian dollars to Hong Kong P dollars, it is CAD 1 to $5.8896. Q Q R 50. As for Canadian dollars to Reminbi, I adopt the rate of R 1:5.35. S S T Issue Estoppel T U U V V  - 12 - A A 51. Before I embark on dealing with the mother’s claim, there is B a preliminary issue that needs to be cleared. B C C 52. It is to be recalled that clearly as a response to the mother’s D D present application, the father instituted a separate set of proceedings in E the Mainland in respect of the custody and maintenance of G. His first E attempt at the Siming Court met with failure but his renewed application F F at the Tianhe Court of Guangzhou was accepted. As far as the Tianhe G Court proceedings are concerned, it would appear that the parties have G chosen to refer to and have adduced in the present proceedings those H H judgments that are in their favour only. What are before me are the 1 st I instance judgment of 18 March 2014 by the Tianhe Court (“the Tianhe I Court Judgment”) and the final judgment of 14 August 2017 by the J J Intermediate Court (“the Intermediate Court Judgment”). Whilst by K the Tianhe Court Judgment, the Tianhe Court found it had jurisdiction K over the matter, it dismissed the father’s application for the custody of G. L L Instead, the Tianhe Court awarded G’s custody to the mother and made M the Mainland Maintenance Order. As confirmed by counsel during the M N Closing, subsequent to the Tianhe Court Judgment, there were further N applications by both parties including an application by the mother for re- O O hearing of the matter and eventually the proceedings came to a P conclusion when the Intermediate Court refused the mother’s application P and confirmed the Tianhe Court Judgment. Q Q R The Father’s Case R 53. Mr Lin relies heavily upon the Intermediate Court Judgment, S S which is ‘final and conclusive’ on the maintenance issue, to argue that the T judgment gives rise to an “issue estoppel” and the mother is thus estopped T U U V V  - 13 - A A from seeking to re-litigate the same issue (namely, the maintenance of G B in Guangzhou) and that such an attempt would be an abuse of process. B C C 54. It is also Mr Lin’s submission that in any event, comity D D would require a foreign order should be recognized and respected. E E 55. He referred to §18/19/10 of the Hong Kong Civil Procedure F F (2010) where it reads, G “where a matter becomes subject of adjudication, the court G requires the parties to put forward their whole case and will not (except under special circumstances) permit them later to H H reopen matters which might have been brought forward as part of already concluded litigation … This applies equally to I matters that were resolved or dismissed in oversea proceedings I but which the same party attempts to raise afresh in a Hong Kong action.” J J K 56. Mr Lin argues that the 3 requirements set out in DSV Silo- K und Verwaltungs-Gesellschaft MBH and Owners of the Sennar [1985] 1 L L WLR 490, [1985] 2 All ER 104 at 499A for issue estoppel to apply are M M met in this case. The first requirement is the judgment in the earlier action N relied on as creating an estoppel must be (a) of a court of competent N Jurisdiction, (b) final and conclusive and (c) on the merits. The second O O requirement is that the parties (or privies) in the earlier action relied on as P creating an estoppel, and those in the later action in which that estoppel is P raised as a bar, must be the same. The third requirement is that the issue Q Q in the later action, in which the estoppel is raised as a bar, must be the R same issue as that decided by the judgment in the earlier action. R S S 57. It is therefore Mr Lin’s contention that as far as the issue of T G’s maintenance in Guangzhou is concerned, be it as regards to liability T U U V V  - 14 - A A or quantum, it has been finally determined and the mother is barred from B re-litigating the same. B C C Legal Principles D D 58. I have not long ago dealt with this issue in the context of a E relocation case in which I referred to Rayden and Jackson on E Relationship Breakdown, Finances and Children and Hale J (as she then F F was)’s judgment in Re B (Minors) (Care Proceedings: Issue Estoppel) G [1997] Fam 117, [1997] 1 FLR 285: see RM v SRM (Security for Costs: G Child Relocation) [2019] 2 HKLRD 1094, [2019] HKFLR 145, [2019] H H HKFC 93. Rayden and Jackson on Relationship Breakdown, Finances I and Children has the following commentary on this subject, I [32.1083] J J There are a number of exceptions to the general rule as to how a fact is to be proved. In some cases, evidence can be K treated as if it has already been formally proved before the K court: L … L Issue estoppel. In civil proceedings, the doctrine of issue M estoppel can prevent a party from contesting an issue which has M already been determined in a previous set of proceedings. If N engaged, it could permit a finding previously made to stand in N evidence without requiring further proof. It is only engaged if three conditions are met: (i) the issue was determined by a O court of competent jurisdiction in relation to the party who is to O be estopped and is to be final and conclusive on its merits; (ii) the parties to those proceedings must be the same as those in P P which issue estoppel is pleaded; and (iii) the issue must be the same in both sets of proceedings. In civil proceedings, fresh Q evidence or fraud can constitute exceptional circumstances Q which would permit previously decided issues to be relitigated. However, the quasi-inquisitorial nature (sic) family R R proceedings, particularly proceedings concerning children, means that unlike in other forms of civil proceedings, there S is no 'strict rule' of issue estoppel. Rather the court, in the S exercise of its discretion, has to consider the relevance of a previous finding, and, if admissible but not accepted by the T T party against which it was made, whether it will permit the issue to be tried again. In financial remedy proceedings, U U V V  - 15 - A A issue estoppel is used more frequently, including to prevent a party reopening an issue already determined by a court B overseas. In this context, findings of fact made overseas can in B certain circumstances be conclusive evidence of the fact found C or sufficient proof of the fact in question, in determining C whether an overseas divorce, annulment or legal separation should be recognised under Family Law Act 1986, ss 46 and 47. D D (emphasis added) E E 59. Hence, in short, it is because of the court’s inquisitorial duty F to investigate into what is in the best interests of the children that the F doctrine is not strictly applicable. G G H H 60. In Re B (Minors) (Care Proceedings: Issue Estoppel), supra, I the questions that Hale J (as she then was) had to consider were the scope I and application of the doctrine of issue estoppel and the power of the J J court to control the evidence to be called in proceedings concerning K children. The father in that case was found in an earlier separate K proceeding to have sexually abused two children under his care. Before L L the trial on the care of another 2 children took place, the proceedings M were transferred to the English High Court on a preliminary issue. The M issue before Hale J was whether the father was bound by this finding in N N another proceedings relating to other children. After having reviewed the O approaches taken in previous authorities, Her Ladyship came to a O conclusion that the father was “not necessarily” bound by the previous P P finding of sexual abuse. Her Ladyship concluded at 128B-129C, Q Q It seems to me that the weight of Court of Appeal authority is against the existence of any strict rule of issue estoppel R which is binding upon any of the parties in children's cases. R At the same time, the court undoubtedly has a discretion as to how the inquiry before it is to be conducted. This means S S that it may on occasions decline to allow a full hearing of the evidence on certain matters even if the strict rules of T issue estoppel would not cover them. Although some might T consider this approach to be a typical example of the lack of rigour which some critics discern in the family jurisdiction, it U U V V  - 16 - A A seems to me to encompass both the flexibility which is essential in children's cases and the increased control exercised B by the court rather than the parties which is already a feature of B the court's more inquisitorial role in children's cases (and C beginning to gain ground in other litigation as shown in the C Woolf Report on Access to Justice). D Hence, if the applicant in one set of proceedings wishes to D rely on findings made in previous proceedings in order to prove a case, the court will have to consider how this should E be done. Frequently, although such findings are not necessarily E accepted by the party concerned, that party will accept that a F challenge to them in later proceedings will be futile. The court F may then simply rely upon the findings made earlier. Sometimes, the party concerned or some other party will G wish to challenge them. In such an event, it seems to me, the G court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were H H based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh. There are no I doubt many factors to be borne in mind, among them the I following. J (1) The court will wish to balance the underlying J considerations of public policy, K (a) that there is a public interest in an end to litigation—the K resources of the courts and everyone involved in these proceedings are already severely stretched and should not L be employed in deciding the same matter twice unless there L is good reason to do so; M (b) that any delay in determining the outcome of the case is M likely to be prejudicial to the welfare of the individual child; N but N (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have O O been erroneous; and (d) the court's discretion, like the rules of issue estoppel, as P P pointed out by Lord Upjohn in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853, 947, Q "must be applied so as to work justice and not injustice." Q (2) The court may well wish to consider the importance of the R previous findings in the context of the current proceedings. If R they are so important that they are bound to affect the outcome one way or another, the court may be more willing to consider S a rehearing than if they are of lesser or peripheral significance. S (3) Above all, the court is bound to want to consider whether T there is any reason to think that a rehearing of the issue will T result in any different finding from that in the earlier trial. By U this I mean something more than the mere fact that different U V V  - 17 - A A judges might on occasions reach different conclusion upon the same evidence. No doubt we would all be reluctant to allow a B matter to be relitigated on that basis alone. The court will want B to know: C (a) whether the previous findings were the result of a full C hearing in which the person concerned took part and the D evidence was tested in the usual way; D (b) if so, whether there is any ground upon which the accuracy of the previous finding could have been attacked E E at the time, and why therefore there was no appeal at the time; and F F (c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings. G It follows that the answer to the question posed is "not G necessarily."… (emphasis added) H H I 61. While Re B (Minors) was a care proceedings case, the I principles enunciated by Hale J were followed in the financial remedies J J case of MB v KB [2007] EWHC 789 (Fam), [2007] 2 FLR 586. In that K case the parties were able to come to a compromise in the ancillary relief K proceedings pursuant to which a consent order was granted. After that, L L the wife applied for a settlement of property order and/or a lump sum M under the Children Act 1989, Schedule 1. The husband’s application to M strike out the wife’s application on the ground that the question of N N housing needs had already been determined by the courts was rejected by O Baron J who said, O P [25] The concept of issue estoppel simpliciter is not, to my P mind, appropriate in matrimonial cases, particularly when dealing with the developing needs of a child. The Q requirements of children, as they grow, in turn require the Q court to preserve its jurisdiction for the protection of the child. No adult compromise can oust that jurisdiction. In R R the case of Re B and Another (Minors) (Care Proceedings: Evidence) [1997] 3 WLR 1, [1997] 1 FLR Hale J, as she then S was, said, at 11 and 295 respectively: S 'It seems to me that the weight of Court of Appeal T authority is against the existence of any strict rule T of issue estoppel which is binding upon any of the parties in children's cases.' U U V V  - 18 - A A [26] I agree with that simple maxim. Clearly, no mother or father can seek to oust the court's jurisdiction when it B relates to their child. In this case, in addition, the 'fourth B requirement', as it was referred to in the case of K v P, may call C for the court to give fresh consideration to orders that have C been previously made. (emphasis added) D D 62. It should be noted that the Hong Kong equivalence of an E E application under Schedule 1 of the Children Act 1989 is an application F under section 10(2) of the Ordinance, the very section that the mother F relies upon in the present application. G G H 63. In Hong Kong, the principles in Re B (Minors), supra, were H considered and applied in the Court of First Instance case of JEK v LCUP, I I HCMP 468/2015 (unreported, 8 May 2015) where Chu J, said, J J 29. As seen from the judgment of Hale J, the father’s Queen’s Counsel had traced the history of issue estoppel in family cases K in her submissions on behalf of the father, demonstrating that K the courts had always been reluctant to apply it strictly, and that in divorce cases, it was held subject to the court’s L L overriding duty to inquire into the truth of the allegations made, and in ancillary matters, the courts became increasingly M reluctant to be bound by the grounds for divorce which had M been had established in the divorce suit. In children’s cases, the court’s duty would be to give paramount consideration to N N the child’s welfare, it would be highly unlikely to let the findings in the divorce suit stand in the way of considering all O the evidence relevant to that issues. O P P 64. Hence, it is clear that in considering the question of whether Q the Mainland Maintenance Order constitutes an issue estoppel that bars Q the mother from seeking further maintenance in respect of the period R R when G was living in Guangzhou in the present proceedings, I shall S follow the guidance laid down in Re B (Minors). S T T Discussion U U V V  - 19 - A A 65. This doctrine, under the name of estoppel per rem judicatam, B has two branches: “cause of action estoppel”, which precludes a party B from relitigating the existence of the same cause of action, and “issue C C estoppel,” which precludes a party from denying any matter of fact or law D D necessarily decided by the earlier judgment: see Dicey, Morris & Collins E on the Conflict of Laws (15th Edn) at [14-030]. In advancing their E arguments, counsel have not made a clear distinction between the two F F branches and their arguments apparently cover both. G G 66. I shall now turn to the father’s grounds. For the purpose of H H discussion, I have grouped and numbered the arguments advanced by Mr I Lin into two board areas. I J J Ground No 1 K 67. In light of Re B (Minors), supra, Mr Lin, on behalf of the K father, concedes that the father is not contending that there is any strict L L rule of issue estoppel binding on any of the parties in cases concerning M children, as the welfare of the child is a very relevant consideration as one M N of all the circumstances of the case. Mr Lin further accepts that children N proceedings are inquisitorial in nature and the court has a discretion as to O O how to conducts its inquiry. He however argues that in this case there is P no strong reason for the court to allow the Guangzhou maintenance issue P to be retried after the Tianhe Court has made its final and conclusive Q Q determination. R R 68. Mr Lin submits that, as a starting point, a party to civil S S proceedings is generally not allowed to make an assertion lightly that the T previous essential findings of a court of competent jurisdiction is T incorrect unless further material which is relevant to the correctness or U U V V  - 20 - A A incorrectness of the assertion and could not by reasonable diligence have B been adduced by that party in previous proceedings has since become B available to him: Mills v Copper [1967] 2 QB 459, at 468-469. It has C C been emphasized by Mr Lin that the Mainland Maintenance Order was D D made after a proper trial and appeal procedure and that the courts had E considered the relevant materials from the Hong Kong proceedings. In E the present case, there is no new evidence or information casting doubt F F upon the accuracy of the original findings of the Intermediate Court. In G particular, the mother has not submitted any evidence to suggest that the G assessment made by the Intermediate Court was wrong. H H I 69. Mr Yim, on the mother’s behalf, submits that the father I failed to raise this issue during the course of the trial. The father only J J raised this issue for the first time in Mr Lin’s Closing Submission. To K allow this argument to be advanced at this late stage would be wholly K unfair to the mother, because she was effectively deprived of an L L opportunity to deal with this issue through evidence. If those acting for M the mother had had advanced notice of this argument, they would likely M N have adduced Mainland legal expert evidence on the effect and nature of N the Mainland Maintenance Order, in particular the finality of that Order. O O The father has the burden of establishing that the Mainland Maintenance P Order is “final and conclusive”. However, he has completely failed to P adduce any Mainland legal expert’s evidence in this regard. Q Q R 70. In respect of the argument that there is no new evidence or R information casting doubt upon the accuracy of the original findings of S S the Intermediate Court, it is Mr Yim’s submission that the Intermediate T Court Judgment was made on the basis of evidence submitted unilaterally T and selectively by the father and the Mainland courts never had the U U V V  - 21 - A A benefit of any evidence from the mother when making the decision. B Further, the Mainland Maintenance Order was made on the basis that the B father had a salary of just over $85,000 and owned one joint-name C C property in Hong Kong only. Yet from the evidence transpired in the D D present trial these materials were clearly untrue. As explained in Re B E (Minors), supra, the welfare of a child is unlikely to be served by relying E upon determination of fact which is erroneous. In the present case, the F F court is not asked to grapple with a second application on the same G evidence as that adduced for the purpose of the Mainland Maintenance G Order. Rather, this court is asked to form an independent assessment of H H the amount of maintenance payable by the father based on a different, I updated and more accurate sets of facts. It would be contrary to I substantial justice if the mother and the child are to be precluded by the J J Mainland Maintenance Order from bringing the present application in K Hong Kong, as the amount of maintenance granted, ie RMB 10,000 K clearly was incommensurate with the financial position of the father at L L the time the decision was given. M M N 71. I must say I agree with Mr Yim that issue estoppel is an N issue far too late to be raised. I would go further to say that the father O O should have raised this issue well before the trial. Apart from what Mr P Yim has said, in my view, there is an additional ground that is more P fundamental. It should not be forgotten that Re B (Minors), supra, is a Q Q decision on a preliminary issue. Hale J was tasked to give some guidance R to the trial judge in that case as to how the trial should be conducted in R light of the challenge of the findings of fact by the father. Her Ladyship S S pointed out that whether or not any issue of fact is to be tried afresh T would have to be determined by the trial judge who, in exercise of his T discretion, would have to consider many factors in the balancing exercise. U U V V  - 22 - A A It is therefore clear that whether or not the doctrine of res judicata or B issue estoppel applies would have to be determined prior to trial. Where B a party wishes to rely upon this doctrine he should either apply to have C C the other party’s relevant application or claim to be struck out or seek D D directions from the court as to how the inquiry into the matter is to be E conducted at trial; the court would have to consider whether there should E be a rehearing on any issue or evidence. In doing so, the court would have F F to consider all the relevant factors including those highlighted by Hale J G in the balancing exercise. G H H 72. Thus analysed, what the father should have done before the I trial was to apply to have the mother’s application, insofar as it relates to I the Mainland Maintenance Order, to be struck out or to seek directions J J from the court on whether he may rely upon certain findings of facts K already determined by the Tianhe Court so that the relevant evidence is K not required to be reheard. If such an application had been made, as L L pointed out in Re B (Minors), supra, “the court may wish to be made M aware, not only of the findings themselves, but also of the evidence upon M N which they were based. It is then for the court to decide whether or not to N allow any issue of fact to be tried afresh”. Likewise, in the balancing O O exercise the court would have the consider whether the Mainland P Maintenance Order was determined upon erroneous evidence regarding P the father’s financial situation as asserted. Not only that the issue of Q Q whether there was any erroneous evidence was not raised before the trial, R worse still it was not dealt with in the course of the trial as a result of R which even up to now the court has not been told of the father’s stance. S S As a matter of fact, the relevance of the Mainland Maintenance Order T was vouched in Mr Lin’s Opening Submission as only one of the T circumstances that the court should give regard to when considering what U U V V  - 23 - A A the father’s share of G’s reasonable maintenance should be. As such, it B has been repeatedly emphasized on the father’s behalf that RMB 10,000 B as awarded under the Mainland Maintenance Order was already on the C C very high side. Questions in this regard were put to the mother during D cross-examination and, in the same vein, her and G’s expenditures and D E life-style in Guangzhou were also subject to strict scrutiny. In reality, the E court was invited to and did re-hear the evidence. That being the case, if F F the court has heard the evidence in full; and given that the court is tasked G with an inquisitorial role to give regard to the best interests of G as the G first and paramount consideration, I have no doubt that the father’s H H application comes far too late to be considered. I I Ground No 2 J J 73. It is also argued by Mr Lin that given the mother’s K contention that Hong Kong courts should be the appropriate forum, she K could have applied for an anti-suit injunction in Hong Kong to stop the L L father from proceeding further in the Mainland. Instead, the mother M chose to take part in the Mainland proceedings and argued the substantive M N merits of her case. To distant herself from the Mainland proceedings, the N mother sought to suggest that she did not submit any evidence to prove O O G’s education and living expenses or provide any documents concerning P her financial status. Mr Lin submits that was entirely a matter of her P choice how she intended to handle the proceedings. It is emphasized by Q Q Mr Lin that even the mother has confirmed in her testimony that she R considered the Mainland proceedings have come to an end and there has R not been any further appeal from or any application for a variation of the S S Intermediate Court Judgment. T T U U V V  - 24 - A A 74. On the other hand, it is Mr Yim’s argument that the present B application plainly involves no abuse of process. Critically, it must be B remembered that it was the mother who first commenced her application C C in July 2012. The father chose to disregard the mother’s application and D D initiated a series of proceedings in the Mainland. To allow the father to E rely on any issue estoppel in circumstances thereby precluding the mother E from seeking a proper adjudication form this court will offend any sense F F of justice and fairness. G G 75. I agree with Mr Lin that the mother could have applied for H H an anti-suit injunction at the relevant time. Yet, for the reason that I have I set out above, what the father should have done was to make an I application to have the mother’s relevant part of her application to be J J struck out and if the court accepts his application, it would not be K necessary for the court to rehear the evidence. I have no doubt that this is K an argument that comes too late to have any validity. L L M 76. For the above reasons, I conclude that the father should not M N be allowed to rely upon res judicata or issue estoppel. N O O The Legal Principles P 77. The present application is made under s 10(2) of the P Ordinance. The provision of s 10(2) is as follows, Q Q (2) The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under R R subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following S orders— S (a) an order requiring payment to the applicant by the T parent or either of the parents of the minor of such T lump sum (whether in one amount or by instalments) for the immediate and non-recurring U U V V  - 25 - A A needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in B maintaining the minor before the making of the B order to be met, or for both, as the court thinks C reasonable having regard to the means of that C parent; D (b) an order requiring payment to the applicant by such D parent or either of such parents of such periodical sum towards the maintenance of the minor as the E court thinks reasonable having regard to the E means of that parent; F an order requiring the securing to the applicant by F such parent or either of such parents, to the satisfaction of the court, of such periodical sum G G towards the maintenance of the minor as the court thinks reasonable having regard to the means of that H parent; H (d) an order requiring the transfer to the applicant for I the benefit of the minor, or to the minor, by such I parent or either of such parents, of such property, being property to which the parent is entitled (either J in possession or reversion), as the court thinks J reasonable having regard to the means of that parent; K an order requiring the settlement for the benefit of K the minor, to the satisfaction of the court, of such L property, being property to which such parent or L either of such parents is so entitled, as the court thinks reasonable having regard to the means of that M parent. (emphasis added) M N N 78. As can be seen, the manner in which how the power is to be O exercised by the court is framed in general terms: the court may exercise O the power given under s 10(2) as it thinks reasonable having regard to the P P means of that parent. Q Q R 79. In WGL v ASB (Child Maintenance under the GMO) [2013] R HKFLR 391, Deputy High Court Judge Chu (as she then was) S S compendiously analysed the differences between Hong Kong and T England in terms of the legislative framework and came to the view that, T despite the differences in the statutory framework, courts in Hong Kong, U U V V  - 26 - A A in the exercise of discretion under s 10(2), may give regard to the matters B provided in the English legislation. These matters include the factors set B out in paragraph 4(1) of Schedule 1 of the English Children Act 1989. C C Paragraph 4(1) read as follows, D D “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 E the circumstances including – E (i) the income, earning capacity, property and other F financial resources which each person mentioned in F sub-paragraph 4 [either parent] has or is likely to have in the foreseeable future; G G (ii) the financial needs, obligations and responsibilities which each [parent] has or is likely to have in the H H foreseeable future; (iii) the financial needs of the child; I I (iv) the income, earning capacity (if any), property and other financial resources of the child; J J (v) any physical or mental disability of the child; (vi) the manner in which the child was being or was K K expected to be educated or trained.” L L 80. It is well settled that the principles and guidelines set out in M M the English Court of Appeal judgment of Re P (Child: Financial N Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865 are very helpful N guidance on how the power is to be exercised. In that case, speaking of O O the said paragraph 4, Bodey J gave the following guidance, P [76] In the light of para 4 of Sch 1 to the Children Act 1989 P and the authorities to which we have been referred, the Q following summary can be offered as to the considerations Q applicable to claims under Sch 1: (i) The welfare of the child while a minor, although R R not paramount, is naturally a very relevant consideration as one of ‘… all the S circumstances…’ of the case. S (ii) Considerations as to the length and nature of the T parents’ relationship and whether or not the child T was planned are generally of little if any relevance, since the child’s needs and dependency are the U U V V  - 27 - A A same regardless: J v C (Child: Financial Provision) [1999] 1 FLR 152 at 154B. B B (iii) One of the ‘… financial needs of the child…’ (to which by para 4(1)(c) the court must pay C regard) is for him or her to be cared for by a C mother who is in a position, both financially D and generally, to provide that caring. So it is D well established that a child’s need for a carer enables account to be taken of the caring E parent’s needs: Haroutunian v Jennings (1980) 1 E FLR 62 at 66C; and A v A (A Minor) (Financial F Provision) [1994] 1 FLR 657 at 665G. F (iv) By paras 4(1)(a) and (b) of Sch 1, the respective incomes, earning capacities, property and other G G financial resources of each of the parents must be taken into account, together with their respective H financial needs, obligations and responsibilities. H So ‘… the child is entitled to be brought up in circumstances which bear some sort of I I relationship with the father’s current resources and the father’s present standard of living…’ – per J Hale J in J v C (Child: Financial Provision) [1999] J 1 FLR 152. K (v) However, as this latter concept lends itself to K demands going potentially far wider than those reasonably necessary to enable the mother L properly to support the child, ‘… one has to guard L against unreasonable claims made on the child’s M behalf but with the disguised element of providing M for the mother’s benefit rather than for the child…’ – J v C (Child: Financial Provision) N [1999] 1 FLR 152. N (vi) In cases where the father’s resources permit and O the mother lacks significant resources of her own, O she will generally need suitable accommodation for herself and the child, settled for the duration of P P the child’s minority with reversion to the father; a capital allowance for setting up the home and for a Q car; and income provision (with the expense of the Q child’s education being taken care of, generally, by the father direct with the school). R R (vii) Such income provision is reviewable from time to time, according to the changing circumstances of S the parties and of the child. S (viii) The overall result achieved by orders under Sch 1 T should be fair, just and reasonable taking into T account all the circumstances. U U V V  - 28 - A A [77] From the experience of this case, I would propose three further considerations: B B (i) In considering the mother’s budget, at least in bigger money cases, the court should paint with C a broad brush, not getting bogged down in C detailed analyses and categorisations of specific D items making up opposing budgetary D presentations. Rather, the court should do its best to achieve a fair and realistic outcome by E the application of broad commonsense to the E overall circumstances of the particular case. F (ii) Comparisons with the commercial cost of F providing professional care are unlikely to be of great assistance and may only serve to distract. G G (iii) When setting up a budget for the sort of lifestyle a child should be enabled to have, the court should H H not generally attach weight to the risk that the father may reduce or withdraw his support when I the child comes of age (or ceases education or I training) thereby obliging the child to adapt to a lower lifestyle at that time. J J K 81. Lastly, it should not be forgotten that courts in Hong Kong K are enjoined by section 3 of the Ordinance that in dealing with matters L L concerning a child’s custody and upbringing, the courts shall regard the M best interests of the child as the first and paramount consideration. M N N 82. Guided by the above principles, I now turn to the mother’s O O claims. P P Issues in Disputes Q Q 83. The issues identified by counsel are broadly similar. They R are: R 1. What are the financial resources of the father? S S 2. What are the financial resources of the mother? T T 3. What were/are the reasonable financial needs of G? U U V V  - 29 - A A 4. Whether the father has to make any contribution for the B maintenance of G on the top of the Mainland Maintenance B Order? C C 5. If the answer to (4) is in the positive, what is the amount D D payable by the father? E E 6. There are two subsidiary issues under (5). The first is F whether or not the court should make an award of carer’s F allowance; and the second is whether or not the maintenance G G should be back-dated? H H 84. In respect of issue nos 1 and 2, the court is not tasked with I I the division of assets between the parties, all that is required is a ballpark J J assessment. K K The Father’s Financial Resources L L 85. The mother estimates the father has assets close to M $56,773,000 while the father says his assets have dwindled to about M $12,394,000. This huge disparity is mainly due to 3 reasons. N N O 86. First, since these proceedings the father has made a series of O dispositions of his assets in favour of his family members. Mr Yim labels P P these transactions as dissipations on the part of the father with the intent Q to defeat the mother’s claims. Q R R 87. Secondly, whether the full value of the balances in the 2 S S bank accounts held under the joint names of the father and his wife T should be considered as the father’s monies or only half of the value T should be considered. U U V V  - 30 - A A B 88. Thirdly, a substantial sum of money, reckoned by Mr Yim to B be more than $13,000,000, is being locked up in some insurance and C C annuity plans. D D E 89. In order to put the arguments in their proper perspective, one E has to look at the relevant chronology of events. F F G 90. Before the present proceedings the father had interest in 4 G pieces of landed property. H H (1) A property in the Lai Wan Area of Guangzhou which is I I jointly owned by the father and his wife. I shall refer to this J property as the “Lai Wan Property”. J (2) A Property in Guangzhou which I shall refer to as the “2204 K K Property”. L L (3) Another property in Guangzhou, referred to as the “1102 M Property”, purchased in October 2004. M (4) The former matrimonial home in Shatin (“the Shatin N N Property”) that was owned in the joint names of the father O O and his wife. P P 91. Since the mother’s commencement of the present Q Q proceedings in July 2012 the father has made the following R dispositions/transactions. R S S 92. On 13 March 2013, the father transferred the 2204 Property T to his son. T U U V V  - 31 - A A 93. On 30 July 2016, the father purchased a property in the B Discovery Bay for $18,390,000 as his new matrimonial home. This was B purchased with a mortgage in his sole name. I shall refer to this property C C as the “45C Property”. D D E 94. In August 2016, the father sold the 1102 Property for RMB E 8,700,000 and in about December 2016, he made use of the proceeds of F F sale in the region of $9,730,000 in the purchase of another property in the G Discovery Bay (“the Siena Property”) for $11,000,000 for his daughter. G H H 95. At about the same time, the father and his wife sold the I Shatin Property for $12,380,000. Upon receipt of the proceeds of sale, I the father transferred $10,000,000 to his wife. J J K 96. In October 2016, the father transferred $1,000,000 to his K wife; and in November 2016, he transferred another sum of $400,000 to L L her. M M N 97. From May to July 2018 the father transferred a total of RMB N 2,300,000 in favour of his son. O O P 98. As a result of these exercises, the father currently has interest P in 2 pieces of landed property only, namely, the Lai Wan Property in Q Q Guangzhou of which he has half of the interest and the 45C Property. R R 99. It is highlighed by Mr Yim that the timing of these S S dispositions and purchases is highly suspicious. They all took place T during the currency of the present proceedings. Specifically, the purchase T of the 45C Property and the sale of the Shatin Property took place just U U V V  - 32 - A A shortly after the Court of Appeal had granted leave for the mother to B appeal on the jurisdictional and forum grounds. B C C Disposals of the Landed Properties D D 100. The father gave his explanation for the very first time in his E oral evidence. In essence, all these distributions of assets were done upon E the instructions of his late mother (“the grandmother”) who at the F F relevant time was living in Guangzhou. G G 101. The father testified that in the fall of 2011, the mother paid a H H visit to the grandmother who thereupon learned of his extra-marital I affairs and the existence of G. The grandmother allegedly reacted with I such shock and fury to such an extent that she had to be admitted to J J hospital for medical care. It was during her stay at the hospital that the K grandmother instructed the father to purchase or distribute properties to K each of his wife, daughter and son, since he had already “purchased” 3 L L pieces of property for the mother and G. The 2204 Property was therefore M given to the son, the daughter was given the Siena Property and the wife M N was given the proceeds of sale of the Shatin Property. The grandmother N passed away shortly thereafter. Subsequently, the family had a meeting O O on the grandmother’s “dying” wishes. P P 102. The father’s story seemed spurious. The “dying” wishes of Q Q the grandmother and the family meeting did not feature in any of the R father’s affirmations. There is no reason why the father did not mention R this. Nor any member of his family was called to give evidence regarding S S the family meeting. At the time of the transfer, the father’s son was T merely a 19-year old and was about to graduate from the university. T Likewise, when the father purchased the Siena Property his daughter had U U V V  - 33 - A A just come to the age of majority and was receiving education in Australia. B One wonders why there was such a rush. Common-sense informs us that B probably his daughter, who up to now is still a final year C C finance/marketing student, needs a career more than a piece of property. D D E 103. Be that as it may, whether or not it is a true story, in my view, E it does not have impact on the determination of the issues before me. The F F grandmother’s “dying” wishes is alleged to have been made before the G present proceedings. Obviously, at that time no one would have G anticipated this protracted litigation or indeed any litigation at all. I am H H sure when the father subsequently made all these disposals, this litigation I and the litigations in the Mainland must have been in the forefront of his I mind; yet he consciously decided to go ahead. Whatever the true reason J J is, whether they were gifts or compensations as asserted in his Answers K or they were made upon the instruction of the grandmother as he said in K court, these dispositions no doubt resulted in diminishing his wealth and L L objectively undermining his ability to maintain G. I do not think the M father should be allowed to do so. M N N Disposals of RMB 2,300,000 to the son O O 104. The father’s Form E of 28 August 2017 stated he was P holding a trust fund of RMB 2.3 million for his son. This was an P investment fund purchased in the name of the father from a bank in Q Q Guangzhou from April 2017 to August 2017. The money that was used R in the purchase was from the son and therefore the father had no interest R in it. In evidence, the father explained that at that time he had just lost his S S job, was looking for employment and was not in a good mood; it was T upon the encouragement of his wife and the son that an idea of T purchasing a property in Guangzhou was came up. In about April 2017, U U V V  - 34 - A A the father, his wife and his son decided to pool their resources in the B purchase of a property in Guangzhou for RMB 8.03 million. It was B decided that the wife and the son would contribute RMB 3.75 million and C C RMB 2.3 million respectively and the father’s share would be RMB 1.98 D D million. The purchase however fell through due to the backing out of the E vendor. The son’s money however had not been returned to him at that E point. Instead, at the request of the son the father made use of the money F F in the purchase the trust fund. Subsequently, the said RMB 2.3 million G was returned to the son in 2018. G H H 105. I accept there are aspects of his evidence that are not entirely I satisfactory. The father was ambiguous as to why the family had to pool I their resources in the way they did. Initially, the father explained that at J J that time he did not have sufficient capital so contribution was made from K the three of them. When it was pointed out to him that at that time (April K 2017) he was already paid a retirement fund of $8.866 million in January L L 2017, the father corrected what he meant was he did not have sufficient M money in his Guangzhou account and it was impossible for him to remit M N his money from Hong Kong. Further, the father agreed that the trust fund, N though located in Guangzhou, could be operated online on the internet. O O P 106. That said, I accept the said RMB 2.3 million was originated P from the son’s Mainland account and so prima facie it was the son’s Q Q money. This is supported by the relevant bank statements. I cannot R accept Mr Yim’s suggestion that the subsequent return of the money was R a dissipation. S S T 107. In my judgment, a more relevant question is why the son T would have had such a substantial sum of money? The father said his son U U V V  - 35 - A A graduated from the university in about 2013 or 2014 so when the B contribution was made the son, then aged 23, was either in his final year B of his undergraduate or in the first year of his career. It is hard to imagine C C that the son could have amassed such wealth by his own effort, nor was D D this the suggestion of the father. The undisputed evidence is that the E father was at all times the sole breadwinner of his family. The only E logical conclusion that can be drawn is that the fortune was endowed F F from the father. G G The Balances in 2 Joint Accounts H H 108. The father stated that, in respect of 2 joint accounts that he I has with his wife (one with the HSBC and the other with the Hang Seng I Bank), he owns half of the money in the account only, the other half J J being his wife’s property. K K 109. It is Mr Yim’s submission that notwithstanding the father L L and his wife are the joint holders, the monies in these accounts in fact M belong to the father entirely. He draws upon the following evidence in M N support of his contention. N O O 110. First, all his salaries including the last payment of about P $558,000 upon the termination of his employment, the retirement fund of P $8,866,000 and the sale proceeds of his properties were all deposited into Q Q the HSBC account. R R 111. Secondly, on 23 July 2016 the father withdrew $5 million S S from this joint account for the purchase of his 45C Property and all the T monthly mortgage payments have been paid out from this joint account. T U U V V  - 36 - A A 112. Thirdly, on 29 October 2016 and 10 November 2016 from B this account the father transferred respective sums of $1 million and B $400,000 to his wife. He said these were reimbursement of expenses that C C the wife had paid on his behalf, specifically for the costs of renovation D D and furniture of the 45C Property that was purchased in his sole name. E However, as a matter of fact, according to his Answer, the father had E already issued a cheque for $608,212 on 3 August 2016 and 2 cheques in F F the respective sums of $304,106 and $456,159 on 5 December 2016 all of G which he said were for the renovation of the newly purchased property. G Mr Yim contends that if the total of $1,400,000 was really for the H H reimbursement of expenses that his wife had spent on his behalf, it is I inexplicable as to why he repaid the money out of this joint account I which he claimed his wife had half of the interest in it. Effectively, what J J he said was he made use of his wife’s money to repay half of his K indebtedness towards his wife. As I see it, the father does not have any K satisfactory explanation. L L M 113. Fourthly, the money that the father used for the purchase of M N the Siena Property in November 2016 was also drawn from this account. N O O 114. Fifthly, the premiums for the father’s 2 insurance plans in P the region of about $5,560,000 in 2017 and 2018 were drawn from this P account. Q Q R 115. Finally, with the funds from this account the father R purchased a golf-cart and a club-membership for $1,950,000 as a gift for S S the wife. T T U U V V  - 37 - A A 116. In response, Mr Lin submits it is trite law that if there was no B agreement between husband and wife as to mutual rights in a bank B account, equality should apply and a spouse should be entitled to one half C C of the balance in such account. He relies upon the opinion of Lord D D Walker of Gestingthorpe NPJ in Yung Shu Wu v Vivienne Sung Wu (2011) E 14 HKCFAR at [65], E “65. In Jones v Maynard [1951] Ch 572, 575, Vaisey J said F that when a married couple have pooled their resources in a F joint account: … the idea that years afterwards the contents of the pool can be dissected by taking an elaborate account as to G G how much was paid in by the husband or the wife, is quite inconsistent with the original fundamental idea of a joint purse H or common pool….” H I I 117. Mr Lin highlights the fact that either the father or his wife J can operate the joint account singly. The fact that withdrawals were used J for acquiring the father’s insurance plans, or the golf-cart as a gift to the K K wife cannot be treated as evidence for establishing the alleged sole L beneficial ownership of the father in the joint accounts in that each spouse L has the power to draw on the joint account not only for the benefit of the M M spouses but also for his or her own benefit and that money withdrawn N N from a joint account by one account-holder would generally became his O or hers outright. Again, Mr Lin draws support from Yung Shu Wu v O Vivienne Sung Wu, supra, where Lord Walker said, P P “66. The question of withdrawals was squarely addressed in Re Bishop [1965] Ch 450 (in that case the withdrawals were Q used for acquiring an investment in the name of one of the Q account-holders). Stamp J reviewed the authorities and held R that in the absence of circumstances indicating a more limited R purpose, money withdrawn from a joint account by one account-holder became his or hers outright. Stamp J stated the S principle at pp.458–459: S … in the absence of some circumstances or T some evidence of intention that the joint account T was to have a limited operation or was set up U and kept up for some special purpose, each U V V  - 38 - A A spouse has power to draw on the joint account not only for the benefit of the spouses but also B for his or her own benefit.” B C C 118. Yung Shu Wu v Vivienne Sung Wu is a judgment by the Final D Court of Appeal. As such, it is binding upon this court. However, I fail to D E see how these principles could be of assistance to the father. E F F 119. To begin with, there is no evidence of pooling resources. G More importantly, it is trite that in family proceedings in the assessment G of a party’s means to pay the court would look at the reality of the H H situation. The relevant principles were succinctly summarized by HH I Judge Bruno Chan in T v J (Children born out of wedlock), [2009] I HKFLR 67, J J 73. When considering the Father’s means to pay, the court is of K course not bound to have regard only to his actual income, or K his earning capacity as he has readily conceded, but also to take into account of all his mental and physical resources, the L money at his disposal, and his capital position : J-P C v J-A F L [1955] 2 All ER 617, CA; W v W (No.3) [1962] 1 All ER 736; Donaldson v Donaldson [1958] 2 All ER 660. M M 74. It should also not allow itself to be misled by appearances but should evaluate the reality of that party’s circumstances : J- N N P C v J-A F above; Thomas v Thomas [1995] 2 FLR 668, [1996] 2 FCR 544, CA; Browne v Browne [1989] 1 FL:R 291, CA. O 75. Similarly, the court may properly take into account of O overdraft facilities, borrowing powers or abilities of a party: P Donaldson v Donaldson and W v W (No.3) above. P 76. While all these principles were derived from the divorce Q jurisdiction when the courts consider the means of a spouse to Q make financial provisions for the other spouse and/or their children upon the breakdown of their marriage, they should in R my view also apply in other situations like this when the court R is required to consider a parent’s means to maintain his or her S children where there is no other specific statutory guideline. S T T 120. I am satisfied these principles are pertinent to the present U case. It is important to bear in mind at issue is what are the financial U V V  - 39 - A A resources at the disposal of the father so that G’s needs could be met. B The evidence compellingly points to the reality that all the monies in the B 2 joint accounts have been and are at the father’s disposal. C C D D Insurance and Annuity Plans E 121. In May 2017, shortly after he had lost his job, the father E purchased two insurance policies which required premiums of $5,560,000. F F He made use of part of the retirement fund of $8,866,000 for payments. G The policies have a term of 10 years. Upon maturity, he would be G entitled to an annuity. These policies are meant to be for his income H H protection when by the time the policies mature he would be around 60 to I 65 years old. There is another annuity plan that the father purchased with I HSBC. Not much details however are known about this plan. J J K 122. Mr Yim challenges that at the time of the purchase, the K father, being all along the sole bread-winner of the family, had just lost L L his job and had to pay monthly mortgage payments of $46,000 for the M 45C Property and $25,510 for his wife’s property; and on the top of all M N these he had to pay costs for the legal proceedings both in Hong Kong N and in the Mainland. Yet he decided to spend such a large sum of money O O on the insurance plans. Furthermore, at about the same time, on 1 June P 2017 he lent his relative one Mr Fung a sum of RMB 1.3 million. Under P cross-examination, the father conceded that since he had no immediate Q Q use of the retirement fund and was minded to remain economically active, R he therefore decided to spend a large portion of the fund in the way he did. R S S 123. It has been stressed by Mr Yim that as much as $13,000,000 T are being locked up under these plans. I take what he means is that by the T time when these plans come to maturity, funds of this amount would be U U V V  - 40 - A A available. To this, it appears that Mr Lin has not given a response. As B such, I am not sure whether the figure is that much. However, what I am B sure is in a couple of years’ time, the father should be able to receive a C C constant stream of income for his benefit. This is exactly what he said he D D intended to achieve. E E 124. The father’s wife has not been working since they were F F married some 26 years ago. Yet, his wife still had the ability to pool RMB G 3.75 million for the intended purchase of a property in Guangzhou in G April 2017. I accept there is a possibility that the RMB 3.75 million H H might have come from the $10 million given to her out of the proceeds of I the Shatin Property. However, according to the father’s own evidence, I after the mother had commenced these proceedings, his wife purchased J J another property in the Discovery Bay and moved to live there, leaving K the father in the Shatin Property. The father and his wife are now living K in the 45C Property. There is no evidence as to what is the use of the L L wife’s Discovery Bay Property now but seemingly it could be rented out M for some revenues. I accept the father may strongly feel obliged to take M N care of his wife financially and probably for this reason he has been N footing the monthly mortgage payments of his wife’s property. I respect O O that. Nevertheless, all these pieces of evidence suggest the father’s wife P has her own means. P Q Q 125. As said, the task faced by the court is not to distribute the R parties’ assets. It is thus unnecessary to be pedantic; all that is required is R to take a broad view of the reality as to what the financial resources at the S S disposal of the father are. T T U U V V  - 41 - A A 126. In my judgment, at least the joint accounts, the Siena B Property, ½ of the proceeds of Shatin Property and the disposals of $1 B million and $400,000 in favour of the wife should be included for the C C present purpose. The father’s financial resources are therefore as follows, D D E Assets Amount (HK$) E Bank Accounts 3,917,860 F 45C Property 10,520,000 F Lai Wan Property (½ share) 1,750,000 G Add – Dispositions G H 2204 Property 2,368,000 H ½ of the Proceeds of Shatin Property 5,000,000 Siena Property 11,000,000 I Disposal to the wife in October 2016 1,000,000 I Disposal to the wife in November 2016 400,000 J J Total: $35,955,860 (rounded up at $35,956,000) K K 127. The 2204 Property is valued at the time of the purchase in L L about 2003-2004; in all likelihood its current value should be way far M M more than $2,368,000. It should also be borne in mind that the insurance N plans which would provide a considerable stream of income to the father N upon their maturity have not been included. The conclusion that can be O O drawn is that, even where a conservative approach is taken, which is the P case here, the father should have at least about $35,956,000 at his P disposal. Q Q R Earning Capacity of the Father R 128. The father has a bachelor and a master’s degree in S S Engineering and is qualified as a Chartered Engineer in both the T Mainland and Australia. T U U V V  - 42 - A A 129. As mentioned in [30] above, the father was laid off from his B top-managerial job in November 2016. He stated in his Answers of 26 B February 2018 that his monthly salary before leaving his employment C C was $390,000. It is not in dispute that a substantial part of his income D was subject to taxation in the Mainland (“PRC tax”). According to the D E father, the PRC tax was deducted by his employer prior to payment of his E salary ie “the pay as you earn approach” and that his income liable to F F PRC tax would be exempted from taxation in Hong Kong. At trial, the G father was taken to his salary statements and tax returns on what his G actual income was. There is some ambiguity regarding how the PRC tax H H had been paid and what the tax rate was; be that as it may, according to I his tax return filed with the Hong Kong Inland Revenue, his income for I the year 2015/2016 was reported to be $8,995,844, of which 1,723,844 J J was his income from shares option. On the totality of evidence, it seems K quite clear that $390,000 was the net monthly salary he received post- K PRC tax and that his remuneration far exceeded what was stated on his L L Form E. I have no doubt that the father was a high-income earner, and M without seeking to be arithmetically precise, I reckon his average monthly M N remuneration during that year was somewhat close to $500,000 per N month. O O P 130. After leaving his employment, the father got another senior P position with a non-state-run enterprise (民企) in Guangzhou. This gave Q Q him RMB 70,000 post-PRC tax per month. He just worked there from R R October 2017 to early April 2018. Since then, the father has not had any S permanent employment. He said at the beginning he was over-optimistic S about being able to return to top management. That said, he is still T T enthusiastic in returning to gainful employment and so he has been U U V V  - 43 - A A actively involved in the real estate field on voluntary or ad hoc basis. He B has taken up a consultant position with an institution from which he may B receive some income on a case-by-case basis. In such capacity, he C C attended seminars in Hong Kong and Huizhou (惠州) of the Mainland D D and a study tour in the UK. If an opportunity presents itself, he could E work for a few more years. E F F 131. In my assessment, it is true that the father is already 57 years G old but given that he has substantial experience, had been a prominent G figure in the real estate business in the Southern part of the Mainland, in H H particular in Guangzhou for many years, and a member of the Guangdong I Consultative Committee and the Guangzhou Consultative Committee for I a couple of years, I am sure he is valued not by his age or physique but by J J his professional knowledge, impressive experience and most importantly, K social network. As a matter of fact, the undisputed evidence is that he K L continues to spend substantial time in Guangzhou notwithstanding his L claim that he has to take care of his wife and is without a job. He quitted M M his job with the non-state-run enterprise because he was not able to cope N with the work culture; it was unrelated to his competence. Whilst I agree N that it may not be easy for the father to return to a lucrative job as before, O O he should be able to be economically active and financially supportive of P his family in the foreseeable future. P Q Q 132. The father’s Form E of 28 August 2017 stated he needed R $376,900 per month of which $316,800 was general expenses, $30,600 R personal expenses and the remaining $29,500 was the daughter’s S S expenses. T T U U V V  - 44 - A A 133. The bulk of his general expenses were mortgage payments B ($45,800) and insurance premium ($239,000). The father confirmed that B in fact by May 2017 the insurance premiums had been fully paid up so C C $239,000 was gone. D D E 134. The father’s personal expenses also included the RMB E 10,000 (or $11,840) that he had to pay the mother pursuant to the F F Mainland Maintenance Order. G G 135. Further, the father’s daughter will soon graduate from H H university. I I 136. It follows that if the insurance premiums, the daughter’s J J expenses and the Mainland Maintenance Order are excluded, the monthly K need of the father would be just about $96,560, with $77,800 being K general expenses and the rest $18,760 being personal expenses. Of L L $77,800, $45,800 is mortgage payments which are essentially capital in M nature. M N N The Mother’s Financial Resources O O 137. The father says the mother is far wealthier than him. This is P because the father is taking an extreme position by excluding everything P he has disposed of and including every item that he says the mother has Q Q failed to explain satisfactorily, including at least RMB 7,030,000 that the R mother has parked them with her sister. On that basis, the father says the R mother should have at least $33,858,000’s worth of assets. S S T 138. On the other hand, the mother’s case is that during all these T years, in the absence of any financial contribution from the father for the U U V V  - 45 - A A maintenance of G, her assets have depleted rapidly. She had to liquidate B her assets in order to sustain her living. At the moment, she has about B $25,318,000’s worth of assets only; of which about $20,128,000 is the C C value of her only and last piece of property. D D E Background E 139. The mother used to have 4 pieces of property in the F F Mainland. G G 140. The first one, in the Siming City of the Fukien Province H H (“the Siming Property), was jointly owned by the mother and her sister. I This property is unrelated to the dispute where the father alleged the I purchase money was provided by him and the acquisition of it was J J pursuant to the alleged agreements. K K 141. The other 3 pieces of property, all in Guangzhou, were L L purchased in the sole name of the mother. M M N 142. The first in line was purchased, free of mortgage, on 20 N September 2004 for RMB 1,122,070. I shall refer to this property as the O O “305 Property”. The mother said when she purchased it she had to P borrow RMB 400,000 from her sister and she borrowed a further sum of P RMB 80,000 for the renovation of the property. The transfer of the said Q Q RMB 400,000 from the sister to the mother was in fact mentioned in the R judgment by the Intermediate Court. At trial this has not met with R challenge. She agreed the loans should have been repaid before 2008 S S either from the monies given to her by the father or in any event by 2012 T after she had sold the 1201 Property (referred to in the following T paragraph) in July 2009. U U V V  - 46 - A A B 143. The second one, referred to as the “1201 Property”, was B purchased just some 10 days later, on 1 October 2004, for RMB C C 1,115,147 with a mortgage of RMB 780,000. The mother’s evidence is D D that on about the same day the father purchased the 1102 Property E (referred to in [90] above) which was in the same development as the E 1201 Property of which their employer was the developer. The 1102 F F Property was subsequently sold by the father in November 2016 with the G proceeds of sale being used in the purchase of the Siena Property for his G daughter: see [94] above. H H I 144. In the interim, G was born in August 2007. I J J 145. The third and the last one is located on the Ersha Island and K so it is referred to the “Ersha Island Property”. It was purchased on 17 K September 2007 for RMB 5,080,000 with a mortgage finance of RMB L L 2,550,000. M M N 146. The following chronology is helpful in understanding the N mother’s case. O O P 147. In about April 2008, when G was about 8 months old the P mother left her employment for taking care of her. Since then the mother Q Q had to rely upon her savings and cash liquidated from her assets. R R 148. In February 2009, the mother and her sister sold the Siming S S Property for RMB 1,780,000. According to the mother, out of the entire T proceeds RMB 200,000 were applied for the discharge of the Siming T Property mortgage. She accepted that her sister should be entitled to half U U V V  - 47 - A A of the proceeds and on the top of that, the sister’s contribution to the B mortgage payment was more than hers. At that time the sister allowed B her to use the money to meet her financial needs; accordingly, about C C RMB 492,800 were used in the discharge of the mortgage of the 1201 D D Property and the balance in the region of RMB 1,077,200 was used in E support of her and G’s living. The total sum that needed to be returned E was reckoned at RMB 1,100,000. F F G 149. In July 2009, the mother sold the 1201 Property for RMB G 3,590,000. H H I 150. 3 years later in July 2012, the mother commenced the I present proceedings and filed her 1st Form E dated 10 July 2012. J J K 151. In September 2016, the mother sold the 305 Property for K RMB 10,500,000. L L M 152. As of now, the mother still owns the Ersha Island Property M N which is still subject to a mortgage of about RMB 1 million and is N currently being rented out for RMB 20,000 per month. O O P The Mother’s Case P 153. The mother said apart from the money she needed to support Q Q her and G’s living, she also needed money for her application for R emigration to Canada and for settling the legal fees in Hong Kong and the R Mainland. She was required to invest CAD 120,000 in a designated S S project. Her financial problem further aggravated in August 2013 when T the father obtained a freezing order from the Tianhe Court against her T assets in his action for the return of the properties as a result of which she U U V V  - 48 - A A was restrained from dealing with her properties and for a couple of B months was not able to rent them out. Starting from 2014 the mother had B to resort to borrowings from her sister from time to time. C C D D 154. In her Answers dated 11 December 2017 and in oral E evidence, the mother said she had borrowed (1) RMB 2 million from the E sister since 2014 and (2) RMB 1.3 million via the sister from the latter’s F F friend in 2016 and (3) a further sum of RMB 100,000 from the sister on 2 G January 2017. Inclusive of the sister’s share of proceeds of the Siming G Property in about RMB 1.1 million, all these added up to about RMB 4.5 H H million. I I 155. It was not until after the sale of the 305 Property in J J September 2016 that she was able to repay her debts. Upon the receipt of K the sale proceeds of RMB 10.5 million, the mother transferred, in 2 K trances, a total of RMB 9.8 million to her sister’s account. It was out of L L this sum that the indebtedness of RMB 4.5 million were repaid, and the M following sums were returned to the mother: M N Date Amount Returned N 8 November 2016 RMB 500,000 O 15 November 2016 RMB 500,000 O 24 March 2017 $240,000 15 August 2017 $1,320,000 P 15 August 2017 CAD 200,000 P Q Q 156. There was a balance of about RMB 1.87 million which the R sister, a bank manager in the Mainland, has made use of in the purchase R of certain investment products on the mother’s behalf. The statement S S shows that the value of these products has appreciated to about RMB T 2,006,600. T U U V V  - 49 - A A 157. Whilst the father accepts that the mother had to return the B proceeds of the Siming Property to the sister, he does not agree there was B a need on the part of the mother to borrow. It is the father’s case that her C C alleged debts are a sheer fabrication. It is on this basis that the father D D says the mother has substantial undisclosed assets. E E 158. The mother has the onus to prove her allegations. The core F F issue in dispute is therefore whether there were: G (1) a loan of RMB 2 million from the sister; G H (2) a loan of RMB1.3 million that mother borrowed from her H sister’s friend; and I I (3) a loan of RMB 100,000 from the sister. J J K Discussion K RMB 2 million L L 159. The only evidence that the mother produced was the WeChat M messages that she had exchanged with the sister. There was a WeChat M conversation on 17 March 2016 where the mother confirmed she owed N N the sister RMB 1.15 million and on 18 May 2016, according to another O O WeChat message, the amount went up to RMB 1.55 million. Finally, P there was a WeChat message of 18 July 2016 that the mother confirmed P she owed a total of RMB 2 million. Q Q R 160. These self-serving statements naturally attracted criticism R from Mr Lin which, in my judgment, is valid. The mother said the S S monies were loaned to her over time in different trances, yet there was T not a single statement or transfer record adduced in support of her T contention. The mother explained that when she gave her answers in her U U V V  - 50 - A A 3rd Affirmation of 11 December 2017 she had just landed on Canada and B did not have the statements with her; shortly thereafter she was diagnosed B with having cancer. Yet, later on, when being further questioned by the C C father, all those the mother gave in her Answers dated 27 April 2018 were D D the said WeChat messages. In my view, these cannot be said to be E satisfactory or adequate given that on any view RMB 2 million is not a E small sum of money. The mother, who has been acting through her F F solicitors all the time, must have been fully aware of the importance of G adducing evidence to substantiate her case. G H H 161. I am conscious of what the mother said about the father I having made use of the documents that she produced in the present I proceedings in the Mainland proceedings without the leave of the court. J J That was in breach of the father’s implied undertaking given to this court. K That being the case, the mother was hesitant in producing the relevant K statements in particular those of her sister’s. I consider this cannot be a L L ground for justification since relevant application could have been made M to this court to address her concern. M N N RMB 1.3 million O O 162. The mother testified that she borrowed RMB 1.3 million P from her sister’s friend in 2016 and she did not know who that person P was. Apart from these particulars, she could not be more precise. Same Q Q as the loan of RMB 2 million, the mother produced little evidence except R the screenshot of her WeChat message of 2 January 2017 exchanged with R her sister. The WeChat message was simply in one stroke of sentence, S S “Transferred, total 1.3 million” (“轉了，總共 130 萬”). The mother T relied upon this message to support her contention that her sister had T transferred RMB 1.3 million out of RMB 9.8 million on her behalf in the U U V V  - 51 - A A repayment of the loan. As I read it, not only that this message is self- B serving, its meaning is ambiguous as well. It can readily be seen that B there was no reference to any ‘loan’ or any ‘friend’. Even if this message C C is to be read in the context of other messages on the screen, one could D D hardly be able to have an understanding of the meaning intended to be E imported by the mother. In this connection, it is intriguing to note this E RMB 1.3 million message was in fact one of the 2 messages sent by the F F sister at the same time. The RMB 1.3 million message was the second G one and the first one was apparently an image of a transfer slip G confirming that some money had been transferred. A bank statement of H H the mother’s account with the China Merchants Bank showed RMB I 80,000 was transferred from her sister’s account in her favour. The I mother’s explanation was that on the day before (ie 1 January 2017) she J J asked her sister for RMB 100,000. Her sister therefore transferred RMB K 80,000 to her and gave her RMB 20,000 in cash. As one reads it, and this K is the reading adopted by Mr Lin (I agree he is entitled to do so), if the 2 L L messages are read together, it could give a meaning that up to 2 January M 2017 the sister had transferred (in fact, returned) a total of RMB 1.3 M N million to the mother. N O O RMB 100,000 P 163. The mother said in her Answers dated 11 December 2017 P that on 2 January 2017 she returned RMB 100,000 to her sister. The Q Q evidence she purportedly relied upon was the transfer slip and the bank R statement referred to in the foregoing paragraph. It can readily be seen R that the transfer of RMB 80,000 cannot be proof of return of the loan S S because the said RMB 80,000 was a transfer from the sister’s account in T her favour. At that time the sister was keeping her money, so the transfer T was just a transfer of her own money. U U V V  - 52 - A A B Did the mother have the need to borrow from the Sister? B 164. Mr Lin draws my attention to what Chung J said in Star C C Glory Investment Ltd. v. Kai Tuo (H.K.) Technology Co. Ltd. HCA D D No.3523 of 2002 (date of judgment: 13 August 2005) regarding E assessing credibility for the purpose of making a finding of fact, E 12. The assessment of a witness’s credibility and/or reliability F is a task frequently undertaken by the court in litigation (in fact, F very often an essential task). I consider the following to be the appropriate test to adopt:- G G “There are two objective tests for assessing a witness’s credibility regarding a matter to which H H he has testified:- (a) whether that part of his testimony is I inherently plausible or implausible; I (b) whether that part of his testimony is, in a J material way, contradicted by other J evidence which is undisputed or K indisputable (an example often given of K such evidence is contemporaneous documents). L L Further, where it is shown that a witness has been discredited over one or more matters to M which he has testified (using the above tests), M this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had N N to a witness’s motive for deliberately not giving truthful testimony. For example, telling the O truth may prejudice his interest, or a just O determination of the litigation may affect his interest”. P P Q 165. It is in light of the scanty and somewhat inconsistent Q evidence that Mr Lin submits that the mother’s assertion of loans must R R be dismissed. A resounding theme repeatedly emphasized by the father S S is that the mother, having been blessed with 3 pieces of property, T should have been able to live comfortably and did not have the need to T borrow. In my judgment, the question of whether the mother had the U U V V  - 53 - A A need to borrow must be examined against the totality of the evidence B before the court. B C C 166. The mother’s 1 Form E of 27 June 2012 stated she had st D D liquid assets of about $4,415,782 (or about RMB 3,729,500). That was E the position after she had sold the Siming Property and the 1201 Property E from which she received a total of RMB 4,667,000. On a rough estimate, F F it is entirely plausible that after a lapse of about 3 years (ie from July G 2009 the time of sale of 1201 Property to June 2012) she had about RMB G 3,729,500 remained on the date of the Form E. H H I 167. From the date of the Form E (ie June 2012 when G was I about 5 years old) up to her sale of the 305 Property in September 2016 J J (G was about 9 years old) for RMB 10.5 million, the mother testified that K during these 51 months she had roughly a net rental income of RMB K 754,290. Importantly this piece of evidence has not been challenged. It L L means that throughout this period of 51 months the mother would have M had about RMB 4,483,790 at her disposal (ie RMB 3,729,500 + RMB M N 754,290). N O O 168. The unchallenged evidence is that at the relevant time the P mother paid CAD 120,000 (or RMB 642,000) for her emigration to P Canada. She also paid about $820,000 (ie RMB 692,570) for her legal Q Q proceedings in Hong Kong. As for the Mainland proceedings the mother R testified that she spent about RMB 2 million odd; she was not able to be R more precise nor was there any documentary evidence in support. On the S S other hand, the father said he spent about RMB 1 million only but T likewise there was no documentary proof. For the present analysis, I T U U V V  - 54 - A A would err in favour of the father and adopt his figure of RMB 1 million as B the mother’s legal costs in the Mainland. B C C 169. Piecing all these figures together would give a picture that D D the mother would have RMB 2,149,220 left as her living expenses over a E period of 51 months, or on average RMB 42,140 per month. The E breakdown is as follows, F F Items Amount (RMB) Opening balance as at 27 June 2012 3,729,500 G Net rental income 754,290 G Total: 4,483,790 H Less H Emigration to Canada (642,000) I Hong Kong legal costs (692,570) I Mainland legal costs (1,000,000) J J Balance 2,149,220 K K 170. The next question is whether RMB 2,149,220 was sufficient L for the mother. L M M 171. As will be seen in [202] below, G’ reasonable needs when N N she was in Guangzhou is assessed at RMB 34,700 per month. It has to be O borne in mind that a distinction has to be made between actual O expenditure and expenditure that is assessed to be reasonable. For the P P purpose of this exercise, I shall err in favour of the father by adopting the Q reasonable figure. The average figure of the mother’s personal expenses Q in her 2 Form Es is about RMB 11,500. Again, I shall err in favour of the R R father by merely adopting half of this sum, ie RMB 5,750. There are also S some expenses of capital nature eg insurance premium for which I would S lean against the mother and adopt a conservative figure of RMB 10,000 T T in total under her personal expenses (ie RMB 5,750 personal expenses U U V V  - 55 - A A plus RMB 4,250 capital expenses). Adding to this should be the mother’s B share of the general expenses of RMB 8,800. All these give a total of B RMB 53,500; the breakdown of which is as follows, C C Item Amount (RMB) D G’s reasonable expenses 34,700 D The mother’s share of general expenses 8,800 E plus E The mother’s personal expenses plus 10,000 expenses of capital nature F F Total: 53,500 G G 172. On this analysis, over a period of 51 months, the mother H H would need roughly RMB 2,728,500. There would be a shortfall of I about RMB 579,280 (RMB 2,728,500 – RMB 2,149,220). I J J 173. The above analysis demonstrates that the mother had a K shortfall to meet and I so find. This analysis also demonstrates that the K shortfall was not as large as the mother had put it. I asses it at RMB L L 580,000. In other words, RMB 2,820,000 have to be added back. I M M wish to stress that if the court has come to an incorrect figure such that N the shortfall was larger than assessed, the mother may blame no one as N she is the only person who could put the materials before the court. O O P 174. Following the above analysis, the mother’s financial P resources as at April 2019 were as follows, Q Q R Items Amount (HK$) R Canada HSBC (CAD 63,400) 373,400 S Hong Kong HSBC 305,800 S Securities (RMB 969,000) 1,147,300 T Insurance policy 987,800 T Investment held by the mother’s sister 2,375,800 (RMB 2,006,600) U U V V  - 56 - A A Ersha Island Property 20,128,000 (around RMB 17,000,000) B Add Back: RMB 2,820,000 3,338,880 B Total: 28,656,980 C C G’s Financial Needs D D 175. It has been emphasized by Mr Yim that in considering the E reasonable needs of G the court should not be bogged down in detailed E analyses and categorisations of specific items making up opposing F F budgetary presentations. Rather, the court should do its best to achieve a G fair and realistic outcome by the application of broad common sense to G the overall circumstances of the particular case: Re P(Child: Financial H H Provision), supra, at [77(i)] and see [80] above. I I J 176. Mr Yim also refers to the same judgment where Thorpe LJ, J at [40], quoted Hale J (as she then was)’s opinion that: K K “…the child in question was entitled to be bought up in circumstances which bore some sort of relationship to the L L father’s current resources and the father’s present standard of living” M M N 177. Mr Yim urges upon the court to give some regard to the N standard of living of the father’s family: see: Re M-M (Schedule 1 O O Provision) [2014] EWCA Civ 276, [2014] 2 FLR 1391, at [34]. P P 178. On the strength of the above authorities, it is Mr Yim’ Q Q submission that the court should assess the financial needs of G in light of R her living standard and lifestyles as well as those of the parties by R applying broad common sense to the overall circumstances. S S T 179. I will begin this subject with some general observations. T U U V V  - 57 - A A 180. Mr Lin questions whether the mother’s emigration was B necessary for the welfare of G and suggests that the mother used it as an B excuse to significantly boost up her claim for the maintenance of G. C C D D 181. I am not impressed by this submission. I must say I am E impressed by the dedication of the mother towards the care and E upbringing of G. The mother has since the birth of G assiduously F F assumed the role of her sole-carer. Everything the mother has been doing G is with the well-being and best interest of G in the forefront of her mind. G Again, since the birth of G, whether in Guangzhou or in Toronto and H H whether in terms of G’s physical, emotional and spiritual enrichment the I mother has been doing her utmost to give the best she could to her I daughter. All her time and effort have been unreservedly devoted to the J J daughter. K K 182. When filling out G’s application form for her school in L L Canada, the mother stated she was a manager of a Mainland property M management company but in fact she was not. Her explanation was she M N wanted to increase G’s chance of being admitted. The mother did not fill N out the personal particulars regarding the father on the form. Her initial O O explanation was she was not able to contact the father. Under cross- P examination she agreed that was not the case. She then gave the P explanation she did not fill out the particulars because she reported Q Q herself as “single” on her application for emigration. She did not R consider it necessary to provide any information regarding G’s father. R Given that the parties were unmarried and they had already separated, I S S can understand why the mother made the application in the way she did. T I extrapolate that in her eyes, rightly or wrongly, G is very much an T abandoned child. U U V V  - 58 - A A B 183. I gather that the mother has had plans for G since her infancy. B I recognise the school fees in Guangzhou and in Toronto are not very C C affordable. It was after the mother’s careful consideration that she placed D D G in a co-educational school and so she chose the International School E that G attended when they were in Guangzhou. Even when they had E landed on Canada where G was entitled to enrol in a public school which F F was free, the mother continued to enrol G in an International School. I G accept it was a decision consciously made for the sake of nurturing G’s G talents and potentials that she chose to emigrate to Canada and H H specifically she chose Toronto as their home notwithstanding its I punishing weather in the winter rather than the more approachable I Vancouver in the Pacific Coast. The renowned violin tutor that G J J admired is in Toronto and the Royal Conservatory of Music where G may K further her music talents is also in the city. Of course, all these are not K free; they come with pricey charges by the tutor and the Royal L L Conservatory; so do the charges by the Music Festivals and the M Swimming Club. She testified that she has plans of moving to Boston for M N G’s high school, paving the way for fulfilling G’s ambition of getting into N the Harvard College. O O P 184. With these observations, I cannot agree with nor do I find P any merit in Mr Lin’s contentions that the emigration was a scheme Q Q engineered by the mother for the purpose of jacking up the maintenance R to be payable by the father. R S S 185. At this point, I have to say, not without some regret, that the T mother’s dedication towards G is in great contrast to that of the father as T impressed upon me at trial. U U V V  - 59 - A A B 186. A theme that has been repeatedly stressed by the father is B that G’s expenses at all times were and are excessive, exaggerated and C C unreasonable. It has been argued by Mr Lin that there is no objective D D evidence showing that the extensive extracurricular activities are in fact E beneficial to G. Leaving these criticisms aside for one moment, it is E significant to note, especially from his Closing Submission when by the F F time it was prepared the father had already heard the mother’s evidence, G that apart from these criticisms there is virtually no suggestion or input G from him, at least in respect of some of the items, as to what G’s H H reasonable needs should be in terms of her best interests notwithstanding I that the mother’s financial resources and expenses, whether in respect of I those in Guangzhou or in Toronto, have been meticulously scrutinized J J akin to an auditing exercise. In other words, I do not see any proposal K from the father on how the childcare plan of his daughter could be K enhanced. I am conscious that because of the animosity between the L L parties the father did not know much about his daughter but it is exactly M because of this that, in my view, the father should have taken hold of the M N opportunity to ensure G’s interest is best served. This is what the trial is N intended for. Take G’s extracurricular activities in Toronto as an O O illustration. It is true that in his affirmation of 26 February 2018 the P father has made a number of critical remarks about the extracurricular P activities that the mother arranged, so much so that the mother is alluded Q Q to be a “monster parent” (怪獸家長). Apart from the criticism that G has R been attending activities including learning piano, violin, mathematics R and swimming that are more than necessary and overly expensive, at trial S S there was virtually no inquiry from the father on what interests, potentials, T strengths and weaknesses G has and what her aspirations are so that a T suggestion may be put to the mother as to whether some activities should U U V V  - 60 - A A be given priority and whether some could be scaled down or dropped B with a view to keep those expenses within an affordable scope while at B the same time G’s talents could continue to flourish. Another example is C C notwithstanding the father mentioned in his affirmation of 5 November D D 2012 that certain prestigious non-state-run private schools (民辦學校) in E Guangzhou could have been a choice for G, at trial this was not put to the E mother for her response nor any evidence about the likely fees was F F adduced. In my view, it is irrelevant as to who ultimately has to pay the G money. It is question of how, within a limited budget, G’s upbringing G could be arranged in terms of her best interest. H H I 187. It is because of the stance so taken by the father that even up I to this day, after having heard the mother’s evidence in full, he has fallen J J short of suggesting any figure, not even a ballpark one, on the overall K sum or at least in respect of some specific items, that he considers as K L reasonable for the maintenance of G. If there is not a reasonable figure in L his mind or in the absence of some reasoned assessment, one wonders on M M what basis the father could be able to claim with a degree of confidence N that the financial well-being of G has been and will be well taken care of N without the need of his further contribution apart from the magical sum of O O RMB 10,000 per month under the Mainland Maintenance Order and this P is an outcome that is fair to both parties? This absurdity is, in my view, P too obvious when the mother and G have now moved to Toronto where Q Q the circumstances are entirely different from those in Guangzhou. R Equally, in the absence of any reasoned assessment one wonders on what R basis the father could be able to claim any further contribution on his part S S would have serious impact on his financial situation or beyond his means T and on what basis the father is able to say the mother should be able to T manage? A further question is if there is not a reasonable figure in his U U V V  - 61 - A A mind, how could he ensure the so called ‘agreement’ that he aspires G is B to be entitled to half of their joint investments is to be achieved; and for B that matter, what does it really mean? Does the father mean at the end of C C the day when G comes of age she should be given half of the investments D or does he mean half of the investments are to be spent on G’s living D E expenses? E F F 188. With all these observations in mind, I now turn to G’s G financial needs. G H H Financial Needs in Guangzhou I 189. Back in Guangzhou, the mother and G initially lived in the I Ersha Island Property. They subsequently moved to a leased apartment. J J G started to attend an international school in Guangzhou at the age of 3. K That was the only school that she attended before her departure for K Toronto. L L M 190. G’s monthly needs, which include half of the general M N expenses as her share, are said to be RMB 39,577 or round it up RMB N 40,000. This is an average figure obtained from the figures disclosed by O O the mother in her Form Es of 27 June 2012 and 28 September 2017. P There appears to have no dispute over the arithmetic. P Q Q 191. Mr Lin draws my attention to the International Social R Investigation Report dated 5 December 2012 where it was reported that R according to the mother her daily living expenses were merely about S S RMB 5,000 per month. G’s extra tuition fees were about RMB 7,000 per T month and her school fees together with miscellaneous expenses were T RMB 201,554 per year. U U V V  - 62 - A A B 192. I am aware of what was said by the Tianhe Court about how B the award of RMB 10,000 was arrived at. Each case has its own facts. In C C this regard, it should be noted that G’s school fees of about RMB 14,700 D D per month was already way above RMB 10,000. Further, G is quite E unlike the majority of the children in Guangzhou. For the reason that she E was arranged to be born in Hong Kong, she did not have a ‘household F F registration’ (“Huji” 戶籍) in the Mainland; her choice of schools in G Guangzhou was limited; and her status also disallowed her to have access G to public health and other social benefits; all of these mean higher costs H H of living. On any view, even by Hong Kong’s standard, the father in this I case was a high income earner with properties in Guangzhou and Hong I Kong. The father’s daughter attended an international school while in J J Hong Kong. Obviously, it was under the arrangement of the father that K his family emigrated to Australia in about 2000s. Both of his children K L received university education there. L M M 193. Mr Lin focuses his complaints on G’s extra tuition fees N which were said to be RMB 5,153 and RMB 11,240 respectively in the 2 N Form Es and which the father considers to be “very expensive”. O O Specifically, he highlights the fact that at some stage G’s violin lessons P alone already costed RMB 5,200; this sum of money was already half of P the amount considered in the International Social Investigation Report to Q Q be sufficient to provide for a high standard of living for families in R Guangzhou. R S S 194. The mother explained this head of expense consists of the T fees for G’s piano lessons (RMB 500 per lesson, one lesson per week), T violin lessons (RMB 5,200 per month), swimming lessons (RMB 1,800 U U V V  - 63 - A A per month), Chinese calligraphy lessons (RMB 1,680 for 15 lessons) and B French lessons (RMB 200 per lesson). B C C 195. I reckon the average sum is about RMB 8,197 per month D D ((RMB 5,153 + RMB 11,240) ÷ 2). It has been highlighted by Mr Lin E that at the age of 5, G was required to learn, amongst other activities, E piano, French, music, ballet and Kumon maths. I acknowledge that F F according to the mother G has talents in music and sports. This has not G been questioned by the father. Yet, looking at the figure and the variety G of the subjects objectively and considering that during that period G was H H merely 5 to 10 years old, I think there is some validity in the criticism that I the mother was spending too much on this head. I J J 196. With all the observations I have in mind, I take the view that K the mother should have been more selective in the choice of activities. In K the absence of any assistance from the father and doing the best I can, I L L would assess this item at RMB 5,000 per month (or $5,920) over this M period of 5 years. My experience informs me that $5,920 as extra tuition M N fee should be within the range of reasonableness for a child of similar age N from an upper-middle class background in Hong Kong. I think I am also O O entitled to take judicial notice that broadly speaking the cost of living in P Guangzhou at the relevant time was lower than that in Hong Kong. RMB P 5,000 should be adequate for G. Q Q R 197. The burden rests squarely on the mother to prove her claims. R Her other items of expenses however have not met with serious challenge S S from the father. T T U U V V  - 64 - A A 198. The mother said back in the Mainland she and G went for B trips during the 3 term breaks every year. They had been to Japan, B Australia, Singapore, Malaysia, Thailand, Bali and Inner-Mongolia. The C C mother also took G to a music summer camp in Tsingtao. D D E 199. The mother and G had moved home a couple of times. In E order to economise, the mother had sold her car and opted for public F F transportation. Needless to say, G’s outgoings, notably school fees, extra G tuition fees, transportation to school and other expenses also varied G during the years when they were in Guangzhou. H H I 200. The father is not a stranger to Guangzhou. His extended I family is there and he virtually has had his entire career there. According J J to his affirmation of 5 November 2012 in support of his forum non K conveniens application, he had spent a large portion of his time in K Guangzhou, at least for nearly 2 decades when he was working for his L L former employer. Even after he has left his last employment in April M 2018 the father admitted he has been spending much time there. It has to M N be remembered that the father’s speciality is on real estate development N in the Mainland and he used to have properties in the city. I have no O O doubt the father should be well familiar with the situation and the living P standard of Guangzhou. On that view, it telling that by and large the other P items of living expenses have not met with serious challenge from the Q Q father. R R 201. I bear in mind that when G was still in Guangzhou, save for S S the last few months her father was a high-income earner. It is impossible T nor is it necessary to be arithmetically precise on each and every item by T U U V V  - 65 - A A capturing every change and making appropriate adjustments. All that is B required is to paint with a broad brush. B C C 202. The mother is not claiming any of her personal expenses to D D be paid by the father. All she asks for is half of the general expenses to E be attributed as part of G’s expenses, which, in my view, is a reasonable E way of dealing with this matter. Doing the best I can and taking a board F F brush approach, G’s financial needs in Guangzhou are assessed at RMB G 34,700 and the breakdown is as follows. The figures are rounded to their G nearest RMB 100. H H I Monthly Expenses I General J Amount (RMB) J Item (½ share) K Rent (RMB 10,300) 5,150 K Utilities (electricity, gas, rates, telephone & water) 500 L (RMB 1,000) L Management fees (RMB 500) 250 M Food (RMB 4,000) 2,000 M Household expenses (RMB 800) 400 N N Car expenses (RMB 1,000) 500 O Total 8,800 O G’s Personal Expenses P Item Amount (RMB) P School fees 14,300 Q Q Extra tuition fees 5,000 R School books and stationery 400 R Transport to school (including school bus) 400 S S Medical / Dental 400 Extra-Curricular Activities 1,000 T T Entertainment / presents 300 U U V V  - 66 - A A Holidays 2,800 B Clothing / Shoes 200 B Insurance premia 400 C C Lunches and pocket money 300 D Other Transport 200 D Uniform 200 E E Total 25,900 F F Total Monthly Expenses RMB 34,700 G G Financial Needs in Toronto H 203. The mother and G are now living in a 2 bed-room leased H apartment. She has acquired a BMW SUV by hire-purchase, mainly for I I taking G for activities. She says she currently needs CAD 11,900 for the J maintenance of G of which CAD 9,089 is attributable to G’ personal J K expenses and the rest is her share of the general expenses. As far as G’s K personal expenses are concerned, the major items are school fees (CAD L L 2,870), extra tuition fees (musical instruments and swimming) (CAD M 3,125) and the costs for summer camps (CAD 800). The mother is in M receipt of Child Tax Benefit in the sum of CAD 580 from the Provincial N N Government for the benefit of G. O O 204. It is pointed out by Mr Lin that according to the information P P obtained by the father on the internet, the annual expenditure of a normal Q overseas student in Canada would be at most around CAD 30,000 (ie Q CAD 2,500 per month), which is 80% less than what the mother is now R R claiming. It is therefore unrealistic and unfair if the court is to approach S G’s reasonable financial needs in such an extravagant way as claimed by S T the mother. Mr Lin however declines to say whether CAD 2,500 per T month is the bottom-line or the maximum amount that G needs. U U V V  - 67 - A A B 205. A recurring complaint on the part of the father is the B extracurricular activities and tuition of G, as claimed by the mother, are C C overly expensive. D D E 206. Mr Lin submits that while there may be benefits to allow E G to gain exposure through extracurricular activities and tuition, it is F F not in her interests or “needs” for her to be burdened with numerous G extracurricular classes. The mother has chosen an elite violin tutor or G swimming club without giving due regard to the costs involved. The H H annual overseas summer music camps in Tsingtao and in Germany, the I swimming competitions and the chamber music are all needed to be I paid for. The extent of extracurricular activities that G has been doing J J is entirely disproportionate or unnecessary to her needs or the financial K capacity of either parent. The amount and frequency which G attends K these classes must be relative to the financial ability of her parents. L L The mother has not been working for the past 10 years while the father M is also no longer in employment. Mr Lin stresses that neither party has M N any immediate prospects of resuming employment. N O O 207. Mr Lin refers to the comments given by Deputy District P Judge Tse Ching (as she then was) in CWYW v CCH, FCMC 124/2013 P (unreported, 19 August 2016), Q Q 193. Extra-curricular activities for young children do change from time to time. It would be unrealistic for the Respondent to R R pay the providers directly. However, the Applicant appears to have no sense of priorities or proportion. Despite her assertion S that TS was fragile, TS’s speech and motor delays and social S anxiety, she enrolled her in 3 playgroups at the same time and expected her to learn several foreign languages. Her T expectations for TS are wholly unrealistic. She seems to only T follow what “other parents” are doing, in total disregard of U U V V  - 68 - A A TS’s needs and abilities. In fact, the parents that she referred to are not normal or sensible parents, but what is in Hong Kong B commonly referred to as “monster parents (怪獸家長). It is B also obvious to this Court that the Applicant is making C unreasonable claims on TS’s behalf but with the disguised C element of providing for her own benefit, rather than for the child. The cost of extracurricular activities should be paid by D reimbursement. Such reimbursement should be supported by D receipts.” E E 208. In my view, the comments made by the learned judge must F F be seen within the context of that particular case or to be more specific, G within the context of that particular child and his or her parents. G H H 209. In her 3rd affirmation, the mother described the lives and I schooling of G in both Guangzhou and Toronto. It is mentioned that back I in Guangzhou G was strong in academic. She had been the students’ J J representative for a couple of times and had been chosen to represent the K school in the Mathematical Olympiad. G is also described to have had a K L profound interest and talents in music and sports; hence, she started L learning violin and piano in her tender age. She was able to make herself M M the principal violinist of the Guangzhou schools’ orchestra and had been N nominated by the school to perform together with the Vienna Boys’ Choir. N G is also said to be strong in swimming. She had been for a couple of O O times nominated to represent her school in swimming contests. On the P part of the father, he said in his affirmation of 26 February 2018 that he P was happy to learn of G’s talents. Q Q R 210. The mother further detailed G’s learning in Toronto in her R 4th affirmation of 27 April 2018. G is said to have a great passion for S S swimming, piano and violin. The child dedicates her time in training and T practice by getting up early out of her own volition. As from 2018, G has T been admitted to the Young Artist Programme of the Royal College of U U V V  - 69 - A A Conservatory and was awarded a scholarship covering up to 50% (about B CAD 4,685) of the tuition fees. B C C 211. When being questioned by Mr Lin as to the choice of D D extracurricular activities in Toronto, the mother was able to return a E sensible answer. By way of illustration, when being asked why the E mother cancelled the Super-maths activity offered by the school and F F enrolled G to a private Mathematics course, the mother’s reply was that G according to G, the school course was something like a reception class; it G was too rudimentary for her. H H I 212. The decision by the mother to put G into an expensive I private international school rather than in a public school attracts J J criticism too. It was suggested by Mr Lin in cross-examination that the K mother and G should have moved to a better school zone so that G could K enrol herself in a public school. L L M 213. As I said, the school fees are not very affordable. The mother M N accepted that G could have changed to a public school. She had discussed N this issue with G who preferred to stay. Another reason is that G is strong O O in academic. Her academic performance is on the top amongst her peers. P When G was in Grade 6, her mathematics was already up to Grade 10. G P is going to represent her school in a nationwide mathematics competition. Q Q Unlike public schools where everyone is following the same curriculum, R the mother said G’s school could make appropriate adjustments in order R to further her academic potentials. S S T T U U V V  - 70 - A A 214. G’s aspiration is to get into the Harvard College. For this B reason, she took G to Boston to see some high schools. This has not been B challenged by the father. C C D 215. I have listened carefully to the mother’s evidence. I accept D E G is an outstanding child with talents. I can see the reasons behind what E the mother has been doing as regards G’s schooling and extracurricular F F activities. G G 216. The mother and G had been to Whistler in the British H H Columbia, Ottawa, Niagara Falls and Boston and the Mainland for I holidays. I J J 217. I accept there should be medical insurance to cover G since K the public medical service does not cover dental treatment. However, K there is no evidence that G requires any psychologist consultation now. L L M 218. As far as ahead the eye can see, her monetary needs would M N increase as she grows and her needs are changing. It is in my view N wholly inappropriate to budget by way of prescribing how many classes O O per week for a particular activity or whether a particular activity should P continue. I have no doubt that what should be strived for is to achieve a P fair and realistic outcome by the application of broad commonsense to the Q Q overall circumstances of this case. R R 219. It should be recognized that this case is never a “billionaire S S defence” case – not even when the father was having his high-income job. T In Hong Kong’s context, with all respect to the father, I think he cannot T be regarded as overly rich. The evidence before me is that the lifestyle of U U V V  - 71 - A A the father and his family was never lavish or opulent but rather typifies B that of upper middle class families in Hong Kong – living in decent but B not overly exclusive locality and children receiving international and C C overseas tertiary education. There was no frequent dining at high-end D D restaurants, travelling on business class and staying in 5-star hotels on E vacation. While for its own reasons it is more and more common in Hong E Kong for professionals and upper middle class families to put their F F children to international schools I am sure the same cannot be said for G their counterparts in Canada. The reality is that the father is approaching G his retirement age and in all likelihood would not be able to return to a H H job as lucrative as before. At the same time, though neither party has I adduced or attempted to adduce any relevant evidence before me, I think I it must be right to say that the cost of living in Toronto is much higher J J than that in Guangzhou and again, in broad terms, it is somewhat K comparable to that of Hong Kong, except perhaps for the cost of housing K which Hong Kong should be way higher. In real terms it means the L L living standard that was enjoyed back in the days in Guangzhou could not M be replicated in Toronto. M N N 220. G’s current personal expense alone is said to amount to CAD O O 9,089, which means roughly $53,530. Inclusive of her share of the P general expenses, it would mean CAD 11,900 or $70,086. With all the P above considerations in mind, I am convinced that overall speaking G’s Q Q personal expense is on the high side. While I can see there are reasons R for G to remain in her school and continue with her learning in music and R swimming, the same have to be kept within a reasonable budget which S S essentially means prioritizing which courses are to be preferred or which T to be scaled down. A reasonable budget would also mean that when more T money is spent on G’s education and learning there would be less money U U V V  - 72 - A A available for other expenses. By way of examples, where it is decided B that the Summer Music Camps in Tsingtao and Germany should continue B there would necessarily be fewer trips of other nature. Where G is to C C continue to stay in the present school then whether or not she is living in D D a good school zone is not a significant factor. Consideration could be E given to move to a less expensive area thereby saving a few hundred E dollars (Canadian) or spend less on dining out or other expenses. The list F F is non-exhaustive. I believe there are numerous ways of doing this. G Doing the best I can, I assess the reasonable needs of G at CAD 9,200 (or G $54,184). The breakdown is as follows. H H I Monthly Expenses I General J Amount (CAD) J Item (½ share) K Rent (CAD 3,100) 1,550 K Utilities (electricity, gas, rates, telephone & water) 95 L (CAD 190) L Food (CAD 700) 350 M Household expenses (CAD 150) 75 M Car expenses (CAD 900) 450 N N Total 2,520 O G’s Expenses O Item Amount (CAD) P School fees 2,800 P Extra tuition fees 2,000 Q Q School books and stationery 100 R Medical / Dental 100 R Extra-Curricular Activities 50 S S Entertainment / presents 80 Holidays 150 T T Clothing / Shoes 100 U U V V  - 73 - A A Insurance premia 300 B Lunches and pocket money 100 B Uniform 50 C C Summer Camp and Music Festival 700 D School Trips 50 D Extra school-related expenses 100 E E Total 6,680 F F Total Monthly Expenses 9,200 G G 221. A sum of CAD 580, being the Child Tax Benefit, should be H deducted from CAD 9,200; this gives a net sum of CAD 8,620 (or H $50,768). I I J What is the maintenance payable by the father? J 222. I shall deal with this ultimate question in 2 parts. First, K K whether the father has to make any contribution for the maintenance of G L on the top of the Mainland Maintenance Order? Secondly, if the answer is L in the positive, what is the amount payable by the father? M M N Whether the father has to make any contribution for the maintenance of G? N 223. This issue calls for the consideration of the father’s O O allegation that he had an agreement with the mother on the maintenance P of G. P Q Q Alleged Agreement for the Maintenance of G R R 224. As I mentioned in [37] above, as a parallel to the Mainland S proceedings for the custody of G, the father also commenced the S Mainland Restitution Proceedings claiming for the return of all the 3 T T pieces of property. The father failed in his claim. U U V V  - 74 - A A B 225. I agree with Mr Yim that the father’s claim is inconsistent B with the agreement so alleged by him. I have read the Mainland C C judgments. The Mainland court in the first instance seemed to have D D agreed with the father that the monies provided to the mother were not E gifts and that there was a joint investment agreement as alleged by the E father; and accordingly, its decision was based on the sources of F F contribution of the funds for the purchase and mortgage payments of the G properties. On appeal, my reading of the judgment is that the appellate G court (ie the Intermediate Court) overturned the findings by the first H H instance court that there was a joint investment agreement. The appellate I court went so far as to say that there was virtually no evidence in support I of the allegation as contended by the father. That being the case, the J J father’s stance that he is not inviting this court to come to any findings of K fact regarding the alleged agreement is not a surprise at all. If he had K done so, he would be trying to have a second bite of the cherry. L L M 226. Even if there were an agreement between her parents when M N G was merely an infant, MB v KB, supra, referred to in [61] above is the N clear authority that no adult compromise can oust the jurisdiction of the O O court. The requirements of children, as they grow, in turn require the P court to preserve its jurisdiction for their protection. P Q Q 227. At trial, both parties were taken to the relevant events. To me, R these matters are relevant to how G’s living expenses should be borne and R shared by her parents. S S T 228. The father affirmed that beginning from about 2004 they T started to invest jointly. The father transferred monies to the mother from U U V V  - 75 - A A time to time so that she could invest jointly on their behalf. Such B investments included time deposit, stocks and finally landed properties. B The mother subsequently purchased 3 pieces of property in Guangzhou. C C Although the properties were purchased in the mother’s sole name, it was D D agreed between them that the profits generated by the investment would E be used for further investment and any gains would be shared between E them equally. F F G 229. The father said after the birth of G, in order to improve the G living environment of G, he funded the mother to purchase the Ersha H H Island Property in 2008. That was the 3rd and the last property. I I 230. The father said after their relationship was made known to J J his wife in about mid of 2008, their relationship ended but they continued K to have discussion over the care and upbringing of G. At that time, the K father proposed the monthly income generated by their joint investment L L should first be used to meet the monthly expenses of G. He also M suggested to the mother that they should each hold a ¼ share of the joint M N investment and that G be entitled to a ½ share. The father said the mother N did not raise any objection to the suggestion. He added that the mother O O should have had more than sufficient income from the joint investment to P meet the monthly expenses of G. On this point, it is rather perplexing to P note the father was reported to have mentioned to the Social Investigation Q Q Officer that since the mother was perennially out of work he worried that R in the long run the mother might not be able to manage financially: §28 of R the Report. S S T 231. The father, in his affirmation of 5 November 2012, said he T had detailed discussion with the mother in one summer night of 2008. He U U V V  - 76 - A A proposed to give priority (優先) to the living of G in the use of the rental B B income of the properties; and the properties would be owned by them, C with G having half of the share. The mother did not raise any objection at C that time. He repeated the same in his affirmation of 26 February 2018. D D E 232. The mother denied there was ever any agreement as alleged. E She accepted that there were money gifts in the region of RMB 4 million F F but all the purchases were her own decisions and for her own benefit. G G Discussion H H 233. At the time when the father said he had the final discussion I with the mother, the mother was jobless without any income and G was I about one-year-old. It is true that the mother owned 3 pieces of property J J but the 1201 Property and the Ersha Island Property each was subject to a K mortgage and the mother and G were residing in the Ersha Island K L Property which was undoubtedly the most expensive one. The mother L later on had to economise by moving out from the Ersha Island Property M M and have it rented out. The mother said after deducting the mortgage N payments and the outgoings the net rental income from the 2 properties N was just RMB 14,790 per month. In fact, according to the findings by the O O Mainland courts, during the period from November 2004 to May 2014, P the mother received a total rental income of RMB 1,952,560 but she had P to make mortgage payments of RMB1,868,489. As such, there was only Q Q a surplus of RMB 84,070 over the course of 115 months (around 9.5 R years). This gives a monthly sum of just RMB 731 for the use of the R mother. S S T 234. The father said in his affirmation that he was surprised to T learn of the mother’s sale of one of the properties in the present U U V V  - 77 - A A proceedings. In my assessment, there was no reason for this response. B The father was admittedly well familiar with the real estate situation in B Guangzhou. What is more, at least one of the properties was a project of C C the father’s company in which I have no doubt he was greatly involved. D D It was also in part due to the reason that he was familiar with the situation E in Guangzhou that his family members made the suggestion of pooling E their monies into buying a property in Guangzhou. He agreed he was F F aware of the situation regarding mortgage payments and rental receipts G when he discussed with the mother in the summer of 2008. In fact, the G father had to accept that the rental receipts could not have been sufficient H H for the mother and G’s living and so the mother unavoidably had to sell I some of the properties for making their ends meet. As I see it, this fact is I as plain as the nose on one’s face. The mother and G were living in the J J most expensive property, ie the Ersha Island Property. It was however K not the father’s evidence that there were discussions there and then K regarding whether the mother should be prepared to economise by L L moving out. If the meeting was meant to be a serious one – it must have M been because by that time the parties had already separated and they were M N planning for the care of their daughter in the years ahead - it is hard to N believe there was no discussion on which property is to be used as a place O O of abode and which were to be leased out, how the mortgage payments P were to be met and most importantly, given that the mother was not P working, how the living expenses of G could be met. Q Q R 235. Further, if some or even all of the properties eventually have R to be sold for G’s livings, one wonders how G could be given half of their S S interests. It is significant to note that in the father’s very first Mainland T proceedings in the Siming Court seeking the custody of G, he also sought T a monthly maintenance of RMB 2,000 to be payable by the mother which U U V V  - 78 - A A on any view was a humble sum. Again, one wonders if there were such B an agreement as alleged, why the father would have sought such an B insignificant sum. C C D 236. Thus analysed, the father’s assertion regarding the D E agreement is clearly untenable. This is the stance consistently maintained E by the mother. I have also demonstrated that even if there were such an F F agreement it would not be a bar against the court’s jurisdiction. Once this G issue is cleared and with the conclusions I have reached regarding the G financial resources of the parties and G’s reasonable needs, in my H H judgment, it is beyond doubt that the father has to make contribution to I the maintenance of his daughter. I J J 237. I now turn to the subsidiary issues. K K Carer’s Allowance L L 238. The mother is claiming for a carer’s allowance payable by M the father until G reaches the age of 15. The burden rests on her to satisfy M N the court that she is entitled to it. N O O 239. It is well settled that the court may augment the periodical P payments order for a child to include an allowance for the mother, P especially if the mother has to give up work or is unable to work because Q Q she has to look after the child: Haroutunian v Jennings (1980) 1 FLR 62; R WGL v ASB (Child Maintenance under the GMO) [2013] 1 HKFLR 391, R at [194]; see also, K v W (Children – Removal from Jurisdiction) [2006] 2 S S HKFLR 292, T v J FCMP 38 of 2007 (unreported, dated 26 August 2008); T H v S FCMP 70 of 2008 (unreported, dated 29 April 2009) and IDC v SSA T [2013] HKFLR 61. U U V V  - 79 - A A B 240. On the approach to be adopted, Thorpe LJ said the following B in Re P (Child: Financial Provision), supra, C C [48] In making this broad assessment how should the judge D D approach the mother's allowance, perhaps the most emotive element in the periodical payments assessment? The E respondent will often accept with equanimity elements within E the claim that are incapable of benefiting the applicant (for instance school fees or children's clothing) but payments which F the respondent may see as more for the benefit of the applicant F than the child are likely to be bitterly resisted. Thus there is an G inevitable tension between the two propositions, both G correct in law, first that the applicant has no personal entitlement, secondly, that she is entitled to an allowance as H the child's primary carer. Balancing this tension may be H difficult in individual cases. In my judgment, the mother's I entitlement to an allowance as the primary carer (an I expression which I stress) may be checked but not diminished by the absence of any direct claim in law. J J [49] Thus, in my judgment, the court must recognise the responsibility, and often the sacrifice, of the unmarried K K parent (generally the mother) who is to be the primary carer for the child, perhaps the exclusive carer if the absent L parent disassociates from the child. In order to discharge L this responsibility the carer must have control of a budget that reflects her position and the position of the father, both M social and financial. On the one hand she should not be M burdened with unnecessary financial anxiety or have to resort N to parsimony when the other parent chooses to live lavishly. N 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 O no slack to enable the recipient to fund a pension or an O endowment policy or otherwise to put money away for a rainy P day. In some cases it may be appropriate for the court to expect P the mother to keep relatively detailed accounts of her outgoings and expenditure in the first and then in succeeding years of Q receipt. Such evidence would obviously be highly relevant to Q the determination of any application for either upward or R downward variation. R S 241. The approach was followed in IDC v SSA, supra, where HH S Judge Bruno Chan said, T T 84. The evidence before the court is that the Mother used to U U V V  - 80 - A A 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 B carer’s allowance on the same basis of a wife for ancillary B relief, it would not be inappropriate in my view instead to use C her former average income as the basis for assessing her C allowance as the primary carer, which as Thorpe LJ said in Re P above, and using his words here, may be checked but not D diminished by the absence of any direct claim in law, and that D in order to discharge this responsibility as the primary carer of E Z, she must have a budget that reflects her position and the E position of the Father both social and financial, as she should not be burdened with unnecessary financial anxiety or have to F resort to parsimony when the Father chooses to live lavishly. F G G Guangzhou H 242. The mother gave evidence that during her employment her H remuneration was about RMB 530,000 per annum. After she had left her I I job in about April or May 2008 she was approached by a head-hunter J with the prospect of securing a job of about RMB 1 million per annum J but she turned it down. She chose to remain the carer of G on a full-time K K basis rather than going back to work and hiring a maid. She has been L determined to devote her time to walk with G. L M M 243. The father doubts very much whether the mother would have N been able to obtain a job with a yearly remuneration of RMB 1 million. N The mother has exaggerated her importance and the nature of her duties. O O He relied upon a letter issued by their common employer which stated P that in 2008 the mother’s basic wages was merely RMB 300,000 per P Q annum. Q R R 244. There is however another letter dated 7 January 2008 issued S by the same employer certifying that during her employment the mother S occupied the position of Director of Administration and Personnel (行政 T T 人事總監), Assistant to General Manager (總經理助理) and Assistant U U V V  - 81 - A A General Manager (副總經理). It is plain that the mother was highly B appraised of her performance and had been dignified as “an outstanding B C manager” (“優秀管理者” 光榮稱號). The authenticity of this letter has C not been in doubt and its contents have not been subject to challenge. D D E 245. It should also be noted that while the letter relied upon by E the father stated the mother’s basic wages was RMB 300,000, her F F employment contract clearly provided that on the top of basic wages the G mother was also entitled to half-yearly and yearly bonuses. G H H 246. I accept that apart from what the mother said in court there is I I nothing in support of her claim that she was offered a RMB 1 million job. J I consider it was unlikely that the mother could have had this job. Yet, on J the evidence before me, I incline to accept what the mother said about her K K remuneration of RMB 530,000. L L 247. It has been submitted by Mr Lin that the mother is in a better M M financial position than the father and she has made no effort to economise N and reduce expenses. The father should not be held to ransom under the N disguise of “benefit of the minor”. It is because of her financial resources O O that came from the father that have made it unnecessary for her to work P rather than she had to give up her work opportunity in order to take care P of G. Instead, she lived comfortably in Guangzhou. The mother was not Q Q economical. She could have reduced her expenses rather than asking for R allowance. For instance, while in Guangzhou the mother frequently R S dined in hotels and spent on manicure. S T T U U V V  - 82 - A A 248. When the mother left her job, G was only about 8 or 9 B months old. However comfortable the mother’s lives might have been in B Guangzhou as Mr Lin described, I think it must be right to say that taking C C care of an infant and later a toddler single-handedly is a demanding and D tiring task draining one’s physical and mental strengths around the clock. D E I accept it was a sacrifice on the part of the mother to forgo her career for E the benefit of G for which the father should be grateful. F F G 249. For these reasons, I agree that the mother should be given an G allowance when they were in Guangzhou. H H I 250. The mother is seeking a monthly sum of RMB 9,700. Even I according to the former employer’s information (which is not in dispute) J J the mother’s annual basic wages in 2008 was RMB 300,000, or RMB K 25,000 per month. RMB 9,700 is therefore merely about 39% of her K previous basic wages which I consider is a reasonable sum and I so assess. L L M Toronto M N 251. The mother has remained the sole carer of G after their N emigration to Canada. Except for a couple of months when the sister was O O in Canada assisting the mother while she was receiving treatment for her P cancer, the mother has been taking care of G single-handedly, including P driving G to school and activities. Q Q R 252. Mr Lin raises the point about the mother’s use of a luxurious R S imported SUV. In cross-examination the mother responded by saying S that she was mindful of safety because Toronto is very snowy during T T winter times; she needed a more reliable vehicle and in fact, overall U U V V  - 83 - A A speaking, as a package it was not as expensive as that suggested by Mr B Lin. B C C 253. G is now a teenager. I agree with Mr Yim that given G is D D still in her formative year, it is essential for the mother to remain closely E involved in taking care of her. Given the unforgiving weather in the E winter of Ontario and that public transportation in Toronto may not be as F F extensive and convenient as other places like Guangzhou, I accept that G the mother has to drive G around for the purpose of schooling and G activities. I further consider that even when G comes to the age of 15, H H she would still not be able to drive on her own and thus, would still, to I I some extent, have to rely upon her mother in moving around. On this J view, I consider that the length of the mother’s claim for carer’s J allowance is reasonable. K K L 254. The mother admitted that due to her qualification and low L proficiency in English, she may not be able to find a job with good M M income in Toronto. At the same time, I have not lost sight of the state of N N her health after what anyone would consider a terrible illness. I consider O at most the mother may be able to secure some clerical jobs in business O serving the Chinese community; and, probably because of her health, on P P part-time basis. Her situation in Toronto is therefore very much different Q from that in Guangzhou. It is rather unfortunate that neither party has Q adduced any evidence on the likely earnings that mother may be able to R R achieve in Toronto. For the reasons that I have set out, it is apt to err on S the lower side. Doing the best I can I quantify the carer’s allowance at a S modest sum of CAD 1,000. T T U U V V  - 84 - A A Backdating B 255. The mother seeks to have the maintenance to be backdated B to July 2012 when she commenced the present proceedings. This can be C C done as our statutory framework allows the court to give a lump sum D D order for the immediate and non-recurring needs of a child or for the E purpose of enabling any liabilities or expenses reasonably incurred in E maintaining a child before the making of the order to be met, or for both: F F see Section 10(2)(a) of the Ordinance in [77] above. Significantly, it G should be noted that such a lump sum order could be made in respect of G those liabilities or expenses reasonably incurred even before the H H application was made. That is to say, where appropriate, the maintenance I could be backdated up to the birth of the child. I J J 256. As is the power to give a maintenance order under section K K 10(2) of the Ordinance, backdating is a matter of discretion of the court; L such power to be exercised judicially. Speaking of backdating, HH Judge L Barnett in the English case of H v C [2009] EWHC 1527 (Fam), [2009] 2 M M FLR 1540, [2009] Fam Law 802, had this to say, N [82] Thus I turn to consider how far the order for maintenance N should be backdated. At para 31 of their 'position statement' O filed for the final hearing, the mother's counsel contend for O reasons of simplicity and to take account of any 'extras' paid by the father that the order should be backdated to 15 September P 2003. Mr Marks expressed concern that any sum produced by P backdating could or would be more of a benefit for the mother Q than the children. For example, the carer's allowance generally Q falls to be viewed as an allowance is respect of care to be given in the future. Backdating an order must, therefore, involve R payment in respect of care already given: the children have R been cared for and are doing well without a carer's allowance having been paid. In such circumstances does backdating do no S S more than, at least in part, provide a benefit for the mother? Indeed the mother was cross-examined about what she would T do with any 'lump sum' produced as a result of backdating and, T in particular, whether she would spend the totality of it on the children. As a matter of fact she said she would as she had only U U V V  - 85 - A A been concerned to ensure the children were properly provided for. In a case such as this where, for the reasons already B given, the mother has had to fight tooth and nail over many B years and in the face of material non-disclosure to get C proper maintenance for the children, I find this a deeply C unattractive argument. Two points should be made. Firstly, when assessing maintenance it is proper for a court to D include, to whatever extent may be appropriate, a carer's D allowance, and secondly, there is undoubted power to E backdate any order made. If the combination of those two E clear and uncontroversial propositions is that the mother is, as it were, to be 'compensated' for care already given, then F I am more than happy that it should be so… F (emphasis added) G G 257. When the mother made her application G was already 5 H H years old. Prior to this, the mother had supported G on her own. In my I I view, it is reasonable for the mother to have asked for the maintenance to J be backdated as from the date of her application. The present case bears J some resemblance to H v C, supra, where both of the mothers have had to K K fight tooth and nail over many years for a relief on behalf of their child. L Further, I am in agreement with the learned judge. I do not see anything L wrong or unjust even if the backdated order contains an element of M M compensation. N N O What is the amount payable by the father? O 258. For the last 12 years the mother has been exhausting her P P assets. Being the full-time carer of G, she has not been able to work. Q Even when she could be released of some of her duties when G is older Q and that she is able to get a job, I believe she would continue to rely a R R great deal upon her assets to keep her going. The mother has only one S piece of property left, ie the Ersha Island Property. This property is still S subject to an outstanding mortgage with monthly instalment of around T T RMB 19,000 to RMB 20,000. The outstanding mortgage loan was U U V V  - 86 - A A roughly RMB 1 million at the time of the trial. The rental income and the B monthly mortgage payment would therefore offset each other. B C C 259. Mr Yim refers me to what Thorpe LJ said in Hill v Morgan D D [2007] 1 WLR 855 (CA) at, E “51. However, whilst in principle any order under section 15 E should not include a benefit for the recipient otherwise than F qua applicant, there is no rule or principle which obliges the F applicant to contribute her own capital. The disparity between her present and likely future fortune and the second G father’s is so great as to be almost incalculable. Under the G judge’s order she forfeits her share in the equity of her home. I H consider that the judge was entirely justified in his refusal to H set off the debts against the value of her flat. The flat was her only appreciating asset and its liquidation would destroy her I only financial security…” (emphasis added) I J J 260. I agree with Mr Yim that given the mother’s age, her health K K condition, the fact that she, as a single parent, has been out of the L workforce since 2008 and she has to take care of G, she should be L afforded a chance to keep this property instead of liquidating it, in order M M to afford her a degree of financial security and provide for her future. N N O 261. The father is liable to pay an agreed cost of $2.95 million on O the Jurisdictional Proceedings at the Court of Appeal and the Court of P P Final Appeal. On the top of that, the father is also liable to pay the costs Q of the Jurisdictional Proceedings in the Family Court the quantum of Q which is yet to be agreed or taxed. At present, the figure being claimed R R by the mother amounts to about $427,700. In addition, it has been S stressed by Mr Lin that the father has paid his own legal costs in respect S of the Jurisdictional Proceedings in the total sum of $2,422,800. This T T does not include his costs in respect of the maintenance issue which are U U V V  - 87 - A A estimated at about $1.6 million. It is Mr Lin’s submission that the court B should take these liabilities into account when considering the father’s B share of his responsibility. He even goes so far as to suggest that the C C mother’s assets should increase correspondingly upon receipt of the D D payment. E E 262. It is true that the mother would recover costs from the father F F out of the Jurisdictional Proceedings but these costs are assessed on party G and party basis. I am told the mother’s own bill amounts to $3,518,000. G The mother has paid her solicitors $820,000 only so the bulk, if not all, of H H the payment would go to her solicitors to cover the deficit. It was the I father’s own conscious decision to use his money in fuelling all these I J litigations. I take the view that little weight should be given to these J liabilities. To do otherwise would be unfair to the mother, compensating K K the father for his costs at the expenses of the mother. L L 263. During most of the time when G was in Guangzhou her M M father was a high income earner. This fact should carry weight when it N N comes to how much the father should be held to be responsible because O that is what he should have paid at that time. To do otherwise would be O unfair to the mother and in some ways penalizing the child. I am P P conscious that the father lost his job some 9 months before G and her Q mother left for Canada for good but at the same time it should not be Q forgotten that the father had not paid any maintenance before the R R commencement of the proceedings. S S T 264. I am conscious that the father is no more a high-income T earner. Yet, the assets at his disposal are assessed to be at least U U V V  - 88 - A A 35,956,000 and further that, the father should be able to be economically B active and financially supportive of his family. Apart from those in the B nature of capital his monthly outgoings are not substantial. It should also C C not to be forgotten that in a couple of years’ time he would have a stream D D of income from his heavily invested insurance and annuity plans. While E the father is older than the mother, his overall financial situation is better. E F F 265. At the same time, I acknowledge that the mother is not a G person without any means. It should be recognised that the objective G facts are a great portion of her wealth was originated from the father and H H she has been making use of these financial resources providing G with a I I quality living and education. On that view, the father cannot be said to J have not made any contribution albeit an indirect one. J K K 266. Considerations have to be given to the fact that the mother L has been confining her claim to the maintenance of G since her L application and she has not claimed any costs incurred in setting up a M M home or on relocation to Canada. N N O 267. The exercise of assessing a child’s needs and determining O how the needs are to be shared is never an exact science. Looking at this P P matter in the round, I consider that across the board the father should be Q responsible for 60% of G’s needs. Q R R 268. I have assessed G’s net current needs at CAD 8,620 so it S S means the father should be responsible for CAD 5,172. On the top of this T is the carer’s allowance of CAD 1,000. This totals at CAD 6,172 and T U U V V  - 89 - A A should be backdated from September 2017 to July 2020 (a total of 35 B months). This gives a total of CAD 216,020 or $1,272,271. B C C 269. When G reaches the age of 15, the monthly sum payable by D D the father shall be reduced to CAD 5,172. E E F 270. G’s reasonable needs in Guangzhou are assessed at RMB F 34,700 per month; so the father has to be responsible for RMB 20,820 G G plus carer’s allowance of RMB 9,700, hence a total of RMB 30,520. This H should be backdated from August 2012 to August 2017 (a total of 61 H months). I reckon this is RMB 1,861,720 or $2,204,276. I I J J 271. Credit should be given to RMB 350,000 (or $414,400) K previously paid by the father. However, since as of now, the Mainland K Maintenance Order is not enforceable in Hong Kong, the sum payable by L L the father under that order would not be deducted from the orders made in M this judgment. M N N 272. The back-dated sums are therefore $3,062,147 O O (($1,272,271+ $2,204,276) - $414,400). I would give a round figure of P $3,062,000. This is well within the father’s affordability. P Q Q Orders R 273. For the reasons aforesaid, I make the following orders: R S 1. The respondent shall pay the applicant a lump sum of S $3,062,000 within 28 days of this order. T T U U V V  - 90 - A A 2. The respondent shall pay the applicant CAD 6,172 per B month as periodical payments for the benefit of G, the first B payment to be made on 1 August 2020 and thereafter on the C C st 1 day of each and every month until 1 September 2022 D D when the sum payable shall be reduced to CAD 5,172 per E month. This order shall be in force until G reaches the age E of 18 years or ceases full time education, whichever is the F F later. G G Costs H H 274. The mother’s financial resources and expenses, whether in I respect of those in Guangzhou or in Toronto, have been meticulously I scrutinized. Yet, apart from the bashing of the expenses as being J J exaggerating, excessive and unreasonable, there was virtually no analysis K on the part of the father on how much G would reasonably need given her K current age and station in life. The father was never able to give any L L figure, not even a ballpark one, as to what he thinks should be reasonable M and sufficient for the maintenance of her daughter. At all times, he insists M N that as far as this application is concerned, the mother is not entitled to N anything. O O P 275. On the other hand, the mother has succeeded substantially P with her claims. Normally, costs should follow the event. I make an Q Q order nisi that the respondent do pay the applicant the costs of these R proceedings, including all costs reserved and with counsel certificate, to R S be taxed if not agreed on party and party basis. S T (I. Wong) T District Judge U U V V  - 91 - A A B Mr Eugene Yim and Mr Timothy Lam, instructed by Christine M Koo & B Ip, Solicitors, appeared for the applicant C Mr Kenny Lin and Mr Lincoln Cheung, instructed by Lo, Wong & Tsui, C Solicitors, appeared for the respondent D D E E F F G G H H I I J J K K L L M M N N O O P P Q Q R R S S T T U U V V