How Is Child Maintenance Calculated?

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How Is Child Maintenance Calculated?

Unlike spousal maintenance, the Court has wide discretion to allow maintenance for children at anytime prior to the decree or even if the proceedings are dismissed.

Generally speaking, in all matters relating to children in family proceedings, the welfare of the child/children is the first and paramount consideration of the Court. While each case will depend on its own facts, the Court, in making any determination with regard to financial orders for a child will take into account all relevant factors, which include:

  • the financial needs of the child;
  • the income, earning capacity (if any), property and other financial resources of the child;
  • any physical or mental disability of the child;
  • the standard of living enjoyed by the family before the breakdown of the marriage;
  • the manner in which the child was being (and in which the parties to the marriage expected the child to be) educated;

The Court will generally endeavour to exercise its powers so as to place the child, so far as it is practicable (having regard to the above factors) in the financial position in which the child would have been if the marriage had not broken down and each of the parents had properly discharged his or her financial obligations and responsibilities towards the child. This will be different for every case depending on the parties’ standard of living during marriage, and the financial means of each parent.

Children’s maintenance will usually involve consideration of all expenses that may be incurred by them on a daily/monthly/annual basis, such as food, their share of housing expenses, education, extra-curricular activities, clothing, gifts, and holidays. A child’s financial needs will be interpreted on a generous basis by the Court.

Once the Court arrives at an appropriate figure to reflect the monthly expenses of the child, this will be made into an Order, such that the paying spouse must pay that amount every month going forward, usually until the child reaches 18, or finishes tertiary education, depending on what is prescribed in the Court order.

It is always open to either parent to apply to the Court to vary maintenance of a child (either to increase, decrease or suspend the amount) if there has been a change in circumstance, e.g. the decrease of income of the paying party, or the increase of a child’s expenses. The Court will then consider the matter afresh and revise the sum of maintenance if it sees fit to do so.

Aside from maintenance, the Court may, on an application by either of the parents (or guardian) who has custody of the child – may make any one or more of the following orders (having regard to the means of the paying parent):

  • a payment of a lump-sum to the applicant in one amount or by instalments for the immediate and non-recurring needs of the child.
  • transfer of such property to which either of the parents is entitled or
  • settlement of such property, to the child.

These other forms of financial maintenance for children are covered in separate articles on hongkongdivorce.com

 

 

Moving Forward: Making Mutual Decisions After A Marriage Or Relationship Breakdown

By Special Contributor:  Shanna Quinn

One of life’s most stressful events is separation from a spouse or partner. Although some conflict over parenting and financial issues after the breakdown of a relationship is to be expected, it is not inevitable for disputes to be resolved in a Court of Law.

What Is Family Mediation?

Family mediation is where a professional, trained, impartial mediator helps couples, following a separation, explore options and negotiate a settlement acceptable to both parties.

What Issues Can Mediation Assist With?

 Issues that can be assisted by mediation include, but are not limited to:

CHILDREN

  • Living and care arrangements for children
  • Education
  • Relocation

FINANCES

  • Division of assets including real property, investments, savings, pensions, debts, inheritance, probate matters and house contents
  • Child maintenance
  • Spousal maintenance

DIVORCE

  • Deciding on the divorce process

Benefits Of Mediation

  • Decisions are made by the parties themselves – not by lawyers or by a court
  • It is a faster and cheaper process, avoiding lengthy court proceedings
  • The mediator is neutral and impartial
  • The process provides an informal, confidential and more personalised space to discuss and resolve issues
  • What is said in a mediation is said on a ‘without prejudice’ basis, i.e. whatever is said cannot be used as evidence in a Court. Parties can speak candidly, make and consider concessions and compromises without being worried that they will be used against them later in Court
  • Terms of a mediated agreement may be made into a binding consent order, enforceable at law
  • It can be voluntary or court ordered
  • The process is flexible in terms of whether the parties remain together in the one room or are in separate rooms
  • Legal representation is optional
  • Mutual decision-making encourages ongoing cooperation and helps lower hostility

Who Are The Mediators?

Mediators generally have legal or social science qualifications and substantial professional  experience and have undertaken specialised training. In Hong Kong there is the choice of English, Cantonese or Mandarin speaking mediators. Most mediators have been accredited by the Hong Kong Mediation Council. In Hong Kong parties have the benefit of being able to choose  a mediator, having regard to professional background and experience, cultural and ethnic background, gender and language.

Do I Need A Lawyer?

Legal representation is optional but mediators will encourage parties to seek legal advice prior to signing the Agreement. While the mediator can provide legal information to the parties and reality test parties’ options and their likely consequences, the mediator will not give the parties legal advice.

If lawyers are present it is usual that they adopt a less adversarial and more conciliatory approach in the mediation. If the lawyers do not attend the mediation, parties are free to speak with their lawyer at any time.

How Long Does It Take?

Generally a mediation can be organized within two to three weeks, if not sooner. Factors that impact on the length of time it takes to reach settlement include:

  • Whether the parties have made full and frank disclosure, particularly with respect to financial matters
  • The level of hostility between the parties
  • The number of issues to be resolved
  • The complexity of the issues to be discussed
  • Timeliness of legal advice

 What Is The Process?

While all mediators have their own personal style the process is uniform and involves:

Pre-Mediation

  • The mediator receives the referral
  • Relevant information is given to the mediator
  • The mediator has a confidential, separate preliminary meeting with each party to obtain relevant history, identify the issues and determine the best process, i.e. whether the mediation will involve joint and/or separate meetings with the mediator

The Mediation

Mediators adopt different models, i.e. some mediators prefer to have the preliminary meetings and first session on the same day. Other meditators prefer to separate the processes. Some mediators prefer half day or full day sessions while others operate on an hourly basis.

The Mediation

  • The mediator and parties together identify parties’ respective concerns and issues for discussion
  • An agenda is created to ensure all issues are addressed and prioritized
  • Relevant information is shared
  • Proposals are discussed and options are explored and reality tested
  • Parties reach a mutual agreement

Post Mediation

  • If the Agreement reached in mediation has not already been reduced to writing and signed, the mediator will prepare the written Agreement
  • Parties are encouraged to seek legal advice prior to signing the Agreement
  • Typically, the Agreement is made into a Consent Order, which is prepared by the lawyers and filed in Court.

About Shanna:  Shanna Quinn has built her career on helping individuals and families navigate disputes and conflict in a fair, equitable and conciliatory manner. Her practical approach to your situation, combined with her extensive experience as a Barrister, Mediator and Forensic Social Worker can add significant value to your case.

Shanna has been involved in highly complex and sensitive cases involving family breakdowns, relationship disputes, child protection and domestic violence orders. Shanna is able to quickly comprehend her clients’ needs, is adaptive and can deliver valuable, practical and prompt legal advice, mediation and training.

 

Q&A With Madeleine Booth, Barrister-At-Law (Family Law)

Join us in this insightful discussion with Barrister-At-Law, Madeleine Booth of Bernacchi Chambers in Hong Kong.

Can you tell us a little bit about your background and how you came to be a barrister in Hong Kong?: 

I was born and raised in Hong Kong. I travelled to the UK for my university studies, and then to Beijing for work afterwards for two years. Hong Kong has always been my home, and wherever I went I always intended to bring myself back here with my work, with a hope to contribute through meaningful employment. After Beijing I decided to pursue a career in law. I completed both the Juris Doctor programme and the PCLL at the Chinese University of Hong Kong, after which I was offered a training contract with a law firm.

I had always been on the fence about whether I should become a solicitor or barrister. I explored both options while I was studying, doing both internships with various firms and mini-pupillages at different sets of chambers, every summer and winter holiday.  My time and experience at the firm solidified that I was more suited to the role and work of a barrister than a solicitor. So I decided to join the Bar.

Having two parents who are both lawyers, and having spent some time at a firm, I understand the practical realities of how solicitors operate, and how to be of practical benefit in working together with my instructing solicitors to handle cases in the best possible way, doing the best possible work for our clients.

What is the difference between a solicitor and a barrister in Hong Kong?

Solicitors and barristers are both professional lawyers, but the nature of their work differs. A legal practitioner in Hong Kong cannot be both a solicitor and a barrister at the same time.

Solicitors take on both contentious (i.e. cases that go to court) and non-contentious work (i.e. transactional work such as advising sales and purchases, preparing wills, preparing contracts, forming trusts, etc.). Solicitors have direct contact with clients and play the major role of client care, including providing legal opinions, taking instructions from clients, communicating with the opposing parties and/or their solicitors, case preparation leading up to trial etc.

Barristers previously tended to specialise in contentious litigation work and courtroom advocacy, making submissions in courts on behalf of the client, although their role in modern times has expanded. While advocacy and court-based work remains a fundamental tenet of a barristers’ workload, counsel may also often provide written advice if requested by solicitors, which give an evaluation of a case’s merit or the issues involved. They may also be asked to provide advice on non-contentious questions of law where that particular barrister may have specialist knowledge and understanding.

Barristers are instructed by solicitors to undertake work, whether it’s appearing in court, or providing advice, as may be required.  Barristers may not accept instructions from a client directly without having the solicitor as their first point of contact. The system operates not too dissimilarly to how a general doctor may recommend a client to see a specialist doctor for their particular needs.

Barristers receive payment for their work from the solicitors; they cannot be paid directly by the client. Barristers’ fees are treated as disbursements in the solicitors’ fees, which are charged to the client.

In Hong Kong, barristers have unlimited rights of audience to appear before every court. Although solicitors have rights of audience in (amongst others) the Magistrate Courts and the District Courts, they have no right of audience in the Court of Final Appeal, and only limited rights in the High Court. This is unless a solicitor is granted Higher Rights of Audience by the Higher Rights Assessment Board. This is rare, and indicative of a solicitor’s expertise in his or her field, and calibre as an advocate.

Solicitors are regulated by the Law Society of Hong Kong whereas barristers are regulated by the Hong Kong Bar Association.

What role do you play in a matrimonial suit? What do you, as a barrister, bring to the table?

Barristers are often instructed for important hearings in the course of a matrimonial suit, such as Child Dispute Resolution Hearings, Financial Dispute Resolution Hearings, or trials. This is often because the direction a case takes, and therefore its ultimate outcome, can be significantly impacted by the oral submissions made to the court in such hearings. This is where a barrister’s expertise, knowledge and ability to make submissions to the judge in a compelling and persuasive manner have the capacity to turn the tide of a case.

As a barrister, my role generally is to supplement and contribute to the handling of a case in any way possible to achieve the best possible outcome for the client. This includes not only courtroom work and preparation, settling pleadings and written submissions, but also conferences together with the client and instructing solicitor to make decisions on how the case should properly be carried forward.  A case, and the client, can often greatly benefit from the input and advice contributed by counsel, even from its initial stages.

Generally speaking, solicitors will handle multiple facets of multiple ongoing cases at a time. As a barrister, my sole focus is to give my undivided attention to the preparation and presentation of a case for court, crafting legal arguments and oral submissions to present the case as strongly as possible. Barristers and solicitors work in partnership to handle the case efficiently and effectively to secure the best possible outcome for their client.

Do you think it is important for individuals to employ barristers to assist in their divorce?

Each case will be different and require handling in a different manner, but generally speaking, it certainly never hurts to have another experienced professional assisting a client, who can significantly supplement and add to the support and advice being provided by a client’s solicitors.

As mentioned above, a solicitor’s role is invaluable, but a barrister’s specialisation in courtroom advocacy can be crucial for a case, and has the capacity to hugely affect its outcome in a pivotal manner. A barrister’s experience and knowledge may provide invaluable input as to how the case may best be managed, particularly if it requires specialist knowledge or expertise in a particular field in matrimonial law.

What is the best advice you can give to those individuals who are struggling through a divorce and how to get through it?

Divorces are highly emotional and deeply personal. They are difficult and not at all easy to navigate. No two situations are alike, as no two people are alike, and there is an uncapped spectrum of familial and financial elements that will affect the people involved.

My principle advice is for the parties to attempt to settle if possible. If everything cannot be agreed or settled entirely, then attempt to find a partial agreement with regard to some matters, for instance children, if this is possible. This has the positive benefit of resolving important matters between the parties from the outset rather than having to go through the court process, which can be extremely lengthy and time consuming.  If the issues resolved through the courts are reduced, expenses will also be kept lower for the parties.

It is unfortunate that parties may be forced to enter into litigation against one another if things cannot be resolved amicably, compounding the difficulty of the situation. Parties should strive to remember the bigger picture, and try to not get bogged down in aggressive litigation that is of no benefit to anyone involved. Remember that agreements and settlements can be made at any time in the process, and ideally the parties and their solicitors should be striving to achieve this, if possible, at all times.

My last recommendation is for parties to consider counselling or therapy, for both themselves and any children of the family, as may be appropriate. It is hugely beneficial to have regular conversations and discussions with a qualified professional who may be able to alleviate emotional distress, and provide a healthy outlet for any frustration caused by the divorce process. Therapy can also greatly assist people in taking the steps to rebuild their lives and transition to life after divorce. Studies have also shown that children positively benefit from being able to fully and honestly express their emotions to a person who is not a parent or family member. Allowing a child of the family to meet with a qualified professional could also help family dynamics in the long run, and help protect the child from any negative impact that a divorce may have upon them and their relationships in the future.

About Madeleine: 

Madeleine’s practice encompasses both civil and criminal law, with a particular specialisation in matrimonial work.

In the Family Court, Madeleine has experience in contested financial and child related matters, and family related company and trust cases.

Having represented clients at Financial Dispute Resolution hearings, Children’s Dispute Resolution hearings, as well as at trial for preliminary issues (third party interests/property/companies), financial issues (MPS applications, ancillary relief trials) and child related matters (such as custody disputes, and applications under the Guardianship of Minors Ordinance), Madeleine’s experience is broad.

Madeleine is often called upon to make applications under s.17 of the MPPO, setting aside dispositions or applying for injunctions, on an urgent basis.

Madeleine also has experience in a number of other areas of legal practice, including civil litigation and criminal law. She has assisted senior counsel, and acted as sole legal counsel, in multiple hearings and trials at each level of court in Hong Kong, from its magistracies to the Court of Final Appeal. Madeleine appears in the High Court of Hong Kong regularly with respect to civil litigation matters, including trust related cases, injunctions, summary judgment applications, garnishee orders, as well as bankruptcy proceedings.

Madeleine’s experience extends beyond advocacy to include providing written opinions and legal advice, as well as participating in mediation and arbitration.

Custody Arrangements For Children In Hong Kong

As parents, there is a shared responsibility for children. Courts in Hong Kong encourage a shared duty towards raising children and, where practicable, for parties to try to communicate with one other and make every effort to agree how their children will be raised.

It is the law that a child has a right to regular personal contact with both parents unless there is a very good reason to the contrary (for instance, the Court may deny contact if it is satisfied that the child’s safety is at risk). Denial of contact is very unusual and in most cases contact will be frequent and substantial.

Experience suggests that Court imposed orders are not as effective as agreements voluntarily made between parents. It’s always highly beneficial, for both the children and their parents, if a shared parenting approach can be adopted. This allows for continued communication and cooperation in the parenting of the children to facilitate a healthy and balanced environment for the children’s development.

An agreement may take time to figure out, but the assistance of legal advisors, mediators or social workers, can usually facilitate open dialogue between parties and greatly help parties to reach a workable arrangement in the end.

If the matter cannot be agreed and must go to Court, then it is important for the parties to know that, generally speaking, in all matters relating to children in family proceedings, the welfare of the child/children is the first and paramount consideration of the Court.

While the ultimate decision in each case will depend on its own facts, the Court will be generally mindful of the following factors:

    1. the preservation of the status quo;

    2. the ages of the parents and child;

    3. the personality, capability and character of the parents;

    4. the financial resources of the parents;

    5. the physical and mental health of the parents and child;

    6. the accommodation available to the child;

    7. the child’s own wishes and views, if any;

    8. the benefit of keeping the siblings together with one parent;

    9. the religion and culture of the family;

    10. professional reports such as medical, school, or court welfare officer’s reports (e.g. about the child’s family relationship, living conditions, mental or health elements, etc.).

Custody, Care And Control, Access And Supervised Access

Court orders with respect to the children of the family will involve granting ‘custody’ ‘care and control’ to one or both of the parents, and perhaps also deal with access/supervised access depending on the facts of the case.

Custody refers to the right of a parent to make the larger decisions in a child’s life, e.g. their education, their healthcare, their religion.

Care And Control generally means the more mundane, day-to-day care of the child, e.g. what they eat, what they wear, etc. The child will live with the parent to whom care and control is granted.

It is common for the Court to order joint custody (i.e. both parents have custody of the child) with care and control to one parent. Under this order, both parents are the decision makers for the major decisions concerning the child. Hence both parents should communicate with one another and reach a consensus when making key decisions. This gives them an equal say in the upbringing of the child, although the child may reside primarily with one parent the majority of the time.

It is to be emphasized, however, that even if only one parent is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to or input from the non-custodial parent. A non-custodial parent has the right to be consulted in respect of all matters of consequence that relate to the child’s/children’s upbringing. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered.

Access may be given in lieu of care and control. It allows the parent to whom care and control is not granted to spend a certain amount of time with the child. This may be supervised by a third party or not, depending on the decision of the Court. The amount of time may be stipulated with whatever degree of particularity (i.e. liberal or reasonable access, which is fairly open ended, or access specified down to the number of hours on a particular day of the week), the Court may feel necessary, depending on the circumstances of the case.

Ultimately, the Court will look to the welfare and best interests of the child in determining the amount of access time to be given if the same cannot be agreed between parties. Examples of access periods include weekday access, weekend access, school holiday access and public holiday access.

Ideally, it is best if there can be both joint custody and shared care and control between parties, but the Court will only make this order if it feels it is in the best interests of the children. A high level of cooperation is necessary for a joint custody and shared care and control order to work. The Court is therefore unlikely to grant an order for shared care and control if the divorce is extremely acrimonious and the parties cannot cooperate.

If the parties have joint custody and shared care and control, Parent A may have care of the child/children from Monday – Thursday (i.e. the child/children would reside with Parent A on those days), and Parent B would have care and control of the child/children from Friday – Sunday.

If the parties want to change arrangements involving the children, make sure the other parent agrees. If you cannot agree, go to mediation or try to use a parental coordinator. The final option is Court.

If there is a Court order in place, parties must do what the Court order says, even if they don’t agree with it. If the parties want change the arrangement prescribed in the Court order and cannot agree to do so between themselves outside of Court, then they must apply to the Court to have the order varied or discharged.

Be sure to speak with your solicitor on issues related to children so there is no confusion and you make the most informed decision for you and your family.

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