Cross-border maintenance disputes

22 September 2020, Family Law, Legal Alert by Paul Kwan, Cecilia Lau, Mandy Pang

Following a divorce or separation, it is not uncommon for former couples to live in different jurisdictions. This may lead to disputes in relation to where any court applications, such as applications for maintenance for children, should be made. In QMY v GSS, FACV 11/2016, Hong Kong’s Court of Final Appeal (CFA) held that the Hong Kong Family Court had jurisdiction under the Guardianship of Minors Ordinance (GMO) to deal with the mother’s claim for maintenance against her former boyfriend for their child (born out of wedlock), even though the child (born in Hong Kong) was neither ordinarily resident nor physically present in Hong Kong at the time of the application, since the father (a Hong Kong permanent resident) had been served and had acknowledged service of the application in Hong Kong. Had the couple been married, the Court would have had jurisdiction under the Matrimonial Proceedings and Property Ordinance.

Background

QMY v GSS involved a child (G) born in Hong Kong out of wedlock to a Hong Kong permanent resident father (who is married to someone else) and a mother who is a Mainland citizen with  no connections with Hong Kong. G is a Hong Kong permanent resident.  Shortly after G’s birth in Hong Kong, the mother returned with G to live in Mainland China. The mother gave up her employment and became G’s full-time carer. The mother and father ended their relationship when G was a year old.

In 2012, when G was nearly 6 years old, the mother applied to the Hong Kong Family Court under section 10(2) of the GMO against the father for (a) maintenance for G and (b) a carer’s allowance (Main Application). This Main Application took a detour, as the father fought the case on all possible fronts. He applied to dismiss the Main Application on the grounds that the  Hong Kong Court had no jurisdiction to deal with the application, since G was neither ordinarily resident nor physically present in Hong Kong, or alternatively, on the grounds of forum non conveniens, arguing that a Mainland China court was the more appropriate forum. The father had applied to court in Mainland China for custody of G and for maintenance from the mother.

The father’s challenge to the Main Application went all the way up to Hong Kong’s CFA. In the Mainland proceedings, custody was awarded to the mother and the father was ordered to pay maintenance for G of RMB10,000 a month (Mainland Maintenance Order).

In 2017, the mother and G emigrated to Canada.

Court of Final Appeal Ruling - Jurisdiction and Forum Non Conveniens

The CFA determined that the Hong Kong courts did have jurisdiction to deal with the mother’s claim under the GMO and that the Hong Kong Family Court was the appropriate forum for resolution of her claim. The CFA held that jurisdiction was established as of right when the father was served and acknowledged service within the jurisdiction. It said that on a true construction of the GMO, the fact that the child in respect of whom a maintenance order is sought is not ordinarily resident or physically present in Hong Kong would not preclude the Court from making an order for maintenance. This construction was supported by s.26 of the GMO, it said, which expressly provides that the Hong Kong courts have jurisdiction, even if any party to the proceedings is not domiciled in Hong Kong. Hence, the Main Application returned to the Family Court for adjudication. 

Family Court Ruling (FCMP 147/2012) - Child Maintenance, Carer’s Allowance and Backdating

By the time the case came back before the Family Court, G was 13 years of age. She was still living in Canada with her mother, who continued to be her primary carer. The mother had been diagnosed with cancer, but was in remission. The father was now in his late 50s, living in Hong Kong and no longer working, as he was taking care of his wife who had also been diagnosed with cancer. 

As mentioned above, in Mainland proceedings instituted by the father, custody of G had been granted to the mother and under the Mainland Maintenance Order, the father had been ordered to pay maintenance for G. The mother considered the amount ordered to be paid insufficient to maintain G.

The father argued that the Mainland Maintenance Order was “final and conclusive” and that the mother was estopped from, and could not re-litigate, the same issue. However, the Court stressed that in cases involving children, it is the court’s duty to investigate what is in the child’s best interests. After considering the parties’ respective financial resources and G’s needs, the Judge ordered the father to pay monthly maintenance for G, well above the amount payable under the Mainland Maintenance Order. Credit was given for the aggregated sum that he had already paid under the Mainland Maintenance Order, but since the Hong Kong order was backdated to the date of the mother’s application (in 2012), a considerable sum was ordered to be paid by the father, within 28 days of the order. 

As G is still in her formative years, the Family Court also ordered the father to pay the mother a modest sum each month as a Carer’s Allowance, until G reaches the age of 15. An order nisi was also made that the father pay the mother’s costs of the proceedings.

Comment

This case shows that the Hong Kong courts can have jurisdiction to allow applications for financial provision for the benefit of children, even if the subject child or any party to the proceedings is not domiciled domiciled (or even ordinarily resident or physically present) in Hong Kong. As there are more children being born out of wedlock, it is worth noting that carer’s allowances have been ordered in favour of the parent who is the child’s caregiver. Further, in the best interests of a child, the Hong Kong courts can also make and backdate maintenance orders, albeit there are existing maintenance orders in other jurisdictions.