PCY v. CYW

FCMC 3630 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 3630 OF 2008

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J U D G M E N T

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Introduction

1. This is an application by a respondent wife for maintenance pending suit for herself pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap. 192 and interim maintenance for four children, her 14-year-old daughter by a former marriage and girl triplets aged 15 months.  The application for the children is made pursuant to s.5 Matrimonial Proceedings and Property Ordinance Cap. 192.

Background

2. The parties married on the 16 May 2003.  The wife is 39 years of age and she is presently a full time mother and housewife.  The elder daughter is in foster care in Hong Kong and the wife lives in a property in Shenzhen, held jointly by the parties, with the triplets.

3. The husband is 49 years of age and he works for the postal service in Hong Kong.  He currently earns in the region of HK$33,000 per month, including over time.

4. The divorce petition was issued on the 3 April 2008, based on the wife’s unreasonable behaviour.   Although the grounds of the divorce are in dispute, the wife accepts that the marriage is at an end.  She filed an Answer and Cross Petition on the 5 August 2008.

Issues

It seems to me that the following issues need to be determined:

1)   How much can the husband afford to pay?

2)   Should the husband pay interim maintenance for the elder child?

3)   If so, in what amount?

4)   How much maintenance should the husband pay for each of the triplets on an interim basis?

5)   How much maintenance pending suit should the husband pay the wife?

6)   Should the husband contribute towards the wife’s litigation costs?

The law

5. Applications of this nature are governed by s.3 and 5 Matrimonial Proceedings and Property Ordinance, Cap. 192, which state that the only governing principle is that the court will make such order, as it considers reasonable.  Consequently maintenance pending suit applications are approached on a broad-brush basis.  A detailed examination of the parties’ means will be examined at a later date at a full ancillary relief hearing.

Litigation costs

6. In so far as the law on the funding of litigation costs is concerned the recently reported case in England, Currey v Currey [2006] EWCA Civ 1338, is of assistance.

7. In Currey v Currey [2006] EWCA Civ 1338,

“the conditions for a ‘costs allowance’ are as follows :

(1)    That the applicant spouse has no assets, or none that can reasonably be deployed (at para [19], [20]).

(2)    That she can provide no security for borrowing, or none which can reasonably be offered (at paras [19], [20]).

(3)    That she cannot reasonably obtain legal services by offering a charge on the outcome of the litigation (at para [20] and see Sears Tooth, per Wilson J).

(4)    That she cannot secure publicly funded legal help ‘at a level of expertise apt to the proceedings’ (at para [20])”

(See Family Law, May 2007, Interim Costs Provision out of Costs Allowance, by David Burrows.  p.427).

8. There is also a requirement to undertake an overarching enquiry.

The parties proposals

9. The wife contends that she needs approximately HK$25,100 for her own expenses and those of the children i.e. HK$10,000 per month for herself, HK$4,000 per month for the elder child and HK$3,700 per month for each of the triplets. 

10. The husband says that he cannot afford to pay this much.   He is willing to pay HK$14,500 per month, broken down as follows:

Mortgage repayments	-   HK$4,000
Child minding fee	-   HK$3,600 – HK$4,000
Diapers and milk powder	-   HK$2,500
Maintenance for the triplets	-   HK$4,000
Total	HK$14,100 – HK$14,500 per month

11. He has however, placed certain conditions on the payments.  He wishes to employ the child minders himself and be directly responsible for their salary.  He wishes to provide diapers and milk powder to the wife and not simply be responsible for the payment of those items.   These conditions are not acceptable to the wife.  

Discussion

12. I must now turn to consider the issues, the law and the parties’ evidence as set out in their affirmations and Form E’s.

How much can the husband afford to pay?

13. As I have said the husband is earning in the region of HK$33,000 per month.  His own general and personal outgoings, as listed in his Form E, amount to HK$9,550 per month, without mortgage repayments.  These do not appear to be in any way remarkable, although the wife argues that the husband can reduce his food costs from HK$2,000 to HK$1,200 per month, meals out of the home from HK$1,800 to HK$1,000 per month and holiday costs from HK$800 to nil.  In this way the wife submits that a further HK$2,400 could be made available to her.  In other words that the husband’s general and personal outgoings can be reduced from HK$9,550 per month to HK$7,150 per month.  In general I accept that some economies can and should be made.  I will allow HK$8,500 as the husband’s general and personal expenses.

14. In February 2008 the husband re-mortgaged a property held in his name, allegedly in preparation for payment of legal fees in the sum of HK$800,000.  This increased his monthly outgoings by HK$7,632.90 per month.  The husband has since confirmed that the monies have not been used for legal fees and at the end of the hearing he undertook to arrange for the sum of HK$650,000 to be deposited into his Hong Kong bank account within three days.  Further he undertook not to dispose of the HK$700,000 held in that account, other that by agreement or court order.

15. With the mortgage repayments the husband has outgoings of approximately HK$20,000 per month (i.e. HK$8,500 + HK$3,980 (Fook Tin Flat) + HK$7,635 (re-mortgage) = HK$20,115).  Therefore on the face of it he should be able to afford to pay the wife something in the region of HK$13,000 per month.  This would increase to approximately HK$20,500 if he chose to redeem the mortgage.  Alternatively there are now funds available in his account, from the HK$700,000 referred to above to assist the wife on an interim basis.  

Should the husband pay interim maintenance for the elder child?

16. The husband does not wish to pay maintenance for the elder child, who is living in a foster home.  The wife alleges that the daughter has been treated as a child of the family, pointing to the fact that she changed her name to that of the husband and that she lived with them as a family during the marriage.  A court order dated the 5 August 2003 was produced, in which the custody of the child was varied from that of her natural father, to that of the wife.  So initially it appears that she was taken care of by her natural father.  It is alleged that she has not seen her natural father since the variation in the order was made and that the husband in these proceedings had promised to support her financially. 

17. Longer term it may be necessary for the mother to trace the father and for an application to be made that he provide for his daughter financially.  In the meantime though, and on a broad-brush basis I accept that it appears that she has been treated as a child of the family and consequently that the husband should contribute towards her maintenance on an interim basis.  If I am wrong in this, any corrections can be made at a final ancillary relief hearing.  

Reasonable needs of the wife and children  

How much should the husband pay for the elder daughter?

18. The wife itemizes the elder daughters expenditure at HK$4,127 per month.  She rounds this down to HK$4,000 per month.  In the main these expenses are not unusual.  Given the tight financial circumstances though I will not allow the extra tuition fees in the sum of HK$450 per month; I will allow half the expenses claimed for school books and stationery (HK$150) and entertainment, holidays and clothes (HK$150 in total).  I will allow the other expenses, rounded down to HK$3,350 per month.  Therefore the husband will pay the elder daughter interim maintenance in the sum of HK$3,350 per month.  

General expenses

19. The husband is presently paying the mortgage on the property in Shenzhen in the sum of HK$3,980 per month.  He is willing to continue to do so.  I will hold him to his undertaking in this respect.

How much maintenance should the husband pay for each of the triplets on an interim basis?

20. In so far as the other general expenses are concerned the wife seeks HK$6,000 per month.  She makes no provision for domestic helpers as other family members are assisting her with the triplets at present.  On the face of it the wife’s expenses do not seem out of the ordinary save for an allowance for food in the sum of HK$4,000 per month, which seems on the high side, given that her elder daughter is not at home and the triplets expenses are provided for elsewhere.  I will allow HK$2,000 per month under this head.  Thus the general expenses are in the region of HK$4,000 per month – HK$1,000 for the wife and HK$1,000 for each of the triplets.

21. The wife originally sought HK$3,700 per month for each of the triplets based on a ¼ each of the general household expenses in the total sum of HK$9,767 (i.e. HK$2,441.75 – say HK$2,500 each) plus HK$1,247 each, i.e. approximately HK$3,700 each in total.  In the wife’s Form E she sought HK$839 for each triplet.  In the circumstances and on a broad-brush basis I will allow HK$1,000 for each triplet, being their actual expenses, plus HK$1,000 being their share of the general expenses.  Therefore the husband will pay interim maintenance of HK$2,000 per month for each of the three triplets. 

Personal expenses 

22. The wife’s personal expenses are also unremarkable save that meals out of the home at HK$1,000 per month and transport of HK$1,000 per month both seem a little on the high side.  I will allow HK$500 each.  Litigation costs will be dealt with below.  Therefore on a broad brush basis the wife’s personal expenses are in the region of HK$2,409.80.  I will allow her HK$2,500 per month.  The husband will pay the wife maintenance pending suit of HK$3,500 per month i.e. HK$1,000 for the general expenses and HK$2,500 for her personal expenses.  

The wife’s earning capacity

23. I accept that the wife cannot reasonably be expected to go back to work at the present time. 

Litigation costs

24. The wife seeks HK$5,000 per month to cover her litigation costs going forward.  It appears that she does satisfy the Currey criteria:

That the applicant spouse has no assets, or none that can reasonably be deployed (at para [19], [20])

25. The wife says that she has no assets save for her share of the Fook Tin flat.  She says that she has used up all her savings and that she has relied on the good offices of family and friends who have lent her money.  It seems to me that the Fook Tin flat could not be reasonably deployed to raise funds at the present time.  The husband alleges that she has other resources at her disposal.  There is no evidence to support that claim, not do I accept the suggestion that I may draw an adverse inference. 

(2)   That she can provide no security for borrowing, or none which can reasonably be offered (at paras [19], [20])

26. I also accept that on the face of it she cannot provide any security for borrowings. 

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(3)   That she cannot reasonably obtain legal services by offering a charge on the outcome of the litigation (at para [20] and see Sears Tooth, per Wilson J).

27. This is also accepted.

(4)   That she cannot secure publicly funded legal help ‘at a level of expertise apt to the proceedings’ (at para [20]).

28. The wife applied for Legal Aid and was turned down.  She has not appealed.  She should do so.  In the interim I accept that she is not eligible for legal aid.

Overarching enquiry

29. In these circumstances it does seem appropriate to me that the husband should pay a contribution towards the wife’s litigation costs going forward.  I will allow her the HK$5,000 per month claimed.  The order will not be backdated.

How much maintenance should the husband pay?

30. It seems to me that the husband should pay maintenance pending suit and interim maintenance as set out above.  I am satisfied that he has the means to do so.  He will need to withdraw funds from the HK$700,000 referred to above.  I will give him leave to do so at a rate of not more than HK$10,000 per month.  This leaves a surplus of approximately HK$5,000 per month for his own litigation costs. 

31. In so far as costs are concerned, given the fact that the wife had no alternative but to make this application I will make an order nisi, to be made absolute in 14 days, that the husband do pay her costs on a party and party basis, to be taxed if not agreed. Leave is given for those costs to be paid out of the HK$700,000 referred to above.

32. Consequently having read the parties respective Form E’s and the other affirmations filed

AND UPON the Petitioner undertaking to pay for the mortgage on the Fook Tin Flat, I will make an order in the following terms:

1) The Petitioner do pay the Respondent maintenance pending suit for herself in the sum of HK$8,500 per month, (inclusive of litigation costs in the sum of HK$5,000 per month), interim maintenance for the elder child of the family in the sum of HK$3,350 per month, and interim maintenance for each of the triplets in the sum of HK$2,000 per month each, first payments to be made on the 1^st September 2008 and thereafter on the first day of each succeeding month until further order.

2) The Petitioner may draw down not more than HK$10,000 per month from the HK$700,000 held in his Hong Kong and Shanghai Bank, as part payment towards his maintenance obligations and his own litigation costs. Leave is also given for funds to be withdrawn for payment of the Respondent’s costs referred to below.  

3) There shall be an order nisi that the Petitioner do pay the Respondent’s costs of and incidental to this application, on a party and party basis to be taxed if not agreed.  The order nisi to be made absolute in 14 days.