LYSC v. MSN

FCMC 13330 / 2017

[2020] HKFC 130

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13330 OF 2017

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J U D G M E N T
(Maintenance Pending Suit/Interim Maintenance)

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Introduction

1.  This is an application by a Petitioner wife for maintenance pending suit pursuant to section 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the only child of the family, a little girl B, who was born on the 13 September 2010, and is now 9 years old, under section 5 of the same ordinance.

The main issues

2.  The only issue to be determined, at this stage, is how much should the husband pay to the wife for her interim provision and that of B?

3.  The wife seeks HK$15,000 per month as interim maintenance for B and a further HK$6,000 per month for herself, up from the HK$5,000 per month she originally sought. She also asks that these amounts be secured, although she has not explained what is meant by this or how the security might be arranged. She also asks that these sums be backdated to January 2018. 

4.  The husband for his part proposes as follows:  

a. Respondent continues to pay school fees and current extracurricular activities, including text books, uniforms and other school related mandatory charges, up to the amount of 4000 HKD/month.

b. Respondent continues to pay 3000 HKD/month Child maintenance contribution to Petitioner, until Child reaches the age of 18.

c. Respondent pays 14,000 HKD in 14 monthly instalments of 1,000 HKD each, as back dated Child maintenance contribution to Petitioner, for June, July, Nov. and Dee. 2018, where payments were missed due to impending employment and working visa uncertainties, and Jan. - Mar 2019, where income was insufficient to cover anything beyond school and extracurricular activities.

d. Respondent pays 600 HKD/month maintenance to Petitioner, until petitioner remarries or starts to live with a partner or Child reaches 18, whichever comes first.

e. Cost of the proceedings if any be split between Petitioner and Respondent.

Background

5.  The focus until recently has been on the arrangements for B and staying access in particular had become a sticking point. On the 21 November 2019 I handed down a judgment in that regard. At paragraph 10 and 11 of that judgment I set out a brief background to the parties’ relationship as follows:

Background to the marriage

10.     The parties met in the United Kingdom and on the XX September 2009 they married in Glasgow, Scotland. The only child of the family, B was born in the United Kingdom a year or so later. The mother is Hong Kong Chinese and in 2012 the parties relocated to Hong Kong, which is where the mother is from originally. Although the mother is ethnically Chinese, she has studied and spent significant periods of time in the UK. She is now aged 42 years old and she is a freelance dance teacher. Generally, therefore, she works after school hours and over the weekends. Her parents provide child care support when required and they live close by. The father for his part is Bulgarian. He is now aged 45 years old and he is an Electronical Engineer. He has also spent significant periods of time in the UK. 

11.     Sadly, unhappy differences developed between the couple and on or about the 26 August 2016 the wife moved out of the matrimonial home, leaving B in the primary care of the father, although it is her case that she continued to visit the child every other day. This situation continued until October 2017, when there was an incident which eventually led to the father moving out of the matrimonial home and the mother resuming full time care of B. Shortly thereafter, on the 13 October 2017, the mother issued a divorce petition based on one-year separation with consent. On the 4 January 2018 the decree nisi was granted and as indicated above a further order was made on the 19 April 2018 for joint custody, with care and control to the mother and interim defined access to the father. …

6.  It is of note that I ultimately found that the father did not pose a significant risk to B and consequently that he should have regular overnight staying access to her, to include holiday access.

The law

Maintenance pending suit

7.  The law is well known and not in dispute. Section 3 MPPO Cap192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently, applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing.

8.  Reference may also be made to the Court of Appeal decision in HJFG v KCY (CACV 127/2011, 28 October 2011, where the following principles were reiterated with respect to maintenance pending suit/interim maintenance applications:

a.     The sole criteria to be applied in determining the application is “reasonable” which is synonymous with “fairness”.

b.     A very important factor in determining fairness is the marital standard of living.

c.     In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long term expenditure, more aptly to be considered on a final hearing.

d.     Where the affidavit or form E disclosure by the payer is obviously deficient, the Court should not hesitate to make robust assumptions about his ability to pay.  The Court is not confined to the mere say-so of the payer as to the extent of his income or resources.  In such situation, the Court should err in favour of the payee.

How much maintenance should the husband pay to the wife as maintenance pending suit for herself and interim maintenance for B?

The reasonable needs of the wife

9.  The wife says that she needs in the region of HK$30,500 per month broken down as follows:

Part 4 Current Monthly Expenses

4.1 General

Item	Amount
Rent	HK$ 15,000
Mortgage instalments	-
Utilities (electricity, gas, rates, telephone & water)	HK$ 800
Management fees	-
Food	HK$ 1,500
Household expenses	HK$ 500
Car expenses	-
Insurance premia	-
Domestic helper(s)	(HK$ 500)
Other (specify)	-
Total monthly household expenses	HK$ 18,300

4.2 Personal

Item	Amount
Meals out of home	HK$ 3,000
Transport	HK$ 1,000
Clothing / Shoes	HK$ 500
Personal grooming (including haircut and cosmetics)	HK$ 600
Entertainment / presents	HK$ 500
Holiday	(HK$ 500)
Medical / Dental	HK$ 800
Tax	HK$ 100
Insurance premia	HK$ 506.77
Interim maintenance	-
Contribution to parents	(HK$ 1,000)
Dependent family members	(HK$ 500)
Other (specify) Expenses of pet turtle	HK$ 200
Total monthly personal expenses	HK$ 9,207.77

4.3 Child

Item	Amount
School fees	-
Extra tuition fees	-
School books and stationery	HK$ 200
Transport to school (including school bus)	-
Medical / Dental	HK$ 300
Extra-Curricular Activities	-
Entertainment / presents	HK$ 600
Holiday	(HK$ 400)
Clothing / Shoes	HK$ 300
Insurance premia	HK$ 114.75
Lunches and pocket money	HK$ 350
Other Transport	HK$ 200
Child-minding fees	-
Uniform	(HK$500)
Other (specify) Diapers	-
Total monthly expenses for child	HK$ 2,964.75
Total monthly Expenses (4.1+4.2+4.3)	HK$ 30,472.52

10.  In so far as the general expenses are concerned, the husband queries the rental payment, pointing out that the wife and child are living in a unit that was previously the matrimonial home and that this is owned by the wife’s parents. It is not disputed that the wife’s parents own two properties in the same estate. They live in a three bedroomed unit and they have historically rented out the smaller two bedroomed unit to the parties. After the breakdown of the marriage the husband ultimately moved out and the wife now resides in this unit with B. The husband confirms that he and the wife historically paid rent for this unit, but he queries the rental receipts from his former father in law when compared with the actual money transfers and suggests that this is a fictitious money transfer. The wife for her part says that her father rents her this unit at approximately 20% undervalue and that if she does not receive suitable financial support from the husband that she may need to apply for public housing. At present the two units are on the same estate and in close proximity to each other and the grandparents assist the wife in taking care of B, when she is working and B is not with the father.

11.  On a brief perusal of the wife’s bank accounts it is clear that a direct debit of HK$15,000 leaves her account most months. Pending any further investigation on this point, the rental appears on the face of it to be reasonable and will be allowed. All of the other expenses, save for the reference to the domestic helper expenses, seem reasonable. Thus I accept that the wife has general expenses of just under HK$18,000 per month. It is of note that the husband’s general expenses in Hong Kong are similar save that he is currently repaying two loans. He also has expenses associated with the purchase of a small flat in Scotland and the maintenance costs of another partially owned property in Bulgaria.

12.  The wife also states that she has personal expenses of just over HK$9,000 per month. This includes a contribution to her parents of HK$1,000 per month and an additional HK$500 per month for her grandmother, who has sadly passed away. It seems to me that neither of these amounts should be allowed. I will also deduct the reference to holidays given the current situation with the Coronavirus global pandemic. It also seems to me that her other expenses are capable of being trimmed a little. Therefore, I shall allow the wife HK$7,000 per month for her own personal expenses.  

13.  In so far as B’s actual expenses are concerned, it is of note that the wife has not included the school fees or any ECA’s or extra tuition and it seems to be accepted that these are generally paid for by the husband directly. In so far as the remaining costs are concerned, I will once again, and on an interim basis only, deduct the allowance for holidays. In addition, HK$500 per month for school uniform seems to be a little on the high side and in any event this is an expense that the husband has agreed to meet. On a broad brush basis therefore I accept that the wife is currently spending approximately HK$2,200 on B’s additional expenses when she is in her care.   

14.  Thus in total I accept that the wife has total expenses of approximately H$27,200 per month.

The wife’s earning capacity      

15.  This is a matter of some debate. The wife says that on average she earns in the region of HK$13,000 per month spread out over the year, as a part time dancing teacher. In general, she works about 10 hours per week, after school or during the weekends. The husband argues, and with some justification it seems to me, that the wife should be able to increase her earning capacity. He does not accept that the wife’s stance in this respect is reasonable. Further he is of the view that the wife may actually be earning more than she claims in any event. He says that on an analysis of the wife’s bank accounts her actual income is between HK$19,300 – HK$25,400 per month. On a brief perusal I would also accept that on the basis of the bank statements provided, that the wife’s income does appear to exceed the HK$13,000 per month claimed. However, I would also accept that there will be periods of time when her income will drop quite considerably – particularly during the so called “slow months”. It is also not known what effect COVID-19 is likely to have had on the wife’s income levels. For the purposes of this application therefore I shall accept that the wife is earning a little more than claimed – say HK$15,000 per month.  As a general comment however, it seems to me that the wife will need to fully maximize her earning capacity going forward.

The husband’s ability to pay

16.  According to the husband’s submission he currently has two sources of income – a) his salary in the sum of HK$41,200 per month (up from just under HK$40,000 in his Form E) and b) the rental of the flat in Scotland which amount to a further HK$5,700 per month gross. In addition, the husband took out two loans in September 2019, which greatly increased his monthly outgoings. Both are repayable over two years. It is not entirely clear why the husband did this, save that he said that this was for “contingencies”. It is also accepted that he has had brief periods of unemployment since the divorce petition was issued and a number of other unexpected expenses. However, these remaining funds are also a financial resource currently available to the husband on an interim basis.

17.  Generally, it is of note that the husband says that his outgoings exceed his income as follows:

Part 4.1 General

Item	Amount (HK$)
Rent	16,500
Mortgage instalments	1,405
Utilities (electricity, gas, rates, telephone & water)	470
Management fees	0
Food	7,000
Household expenses	200
Car expenses	0
Insurance premia	4,458
Domestic helper(s)	0
Other (specify) Loan (HSBC and Public Finance)     10,085 HKD/month Property management & tax, Bulgaria      (15GBN/month) Property Factors management, UK     (74GBP/month) British Gas Insurance, UK     (46 GBP/month)	11,349
Total monthly household expenses	HK$41,382.00

Attach copies of the latest rental receipt.

4.2 Personal

Item	Amount (HK$)
Meals out of home	0
Transport	1,200
Clothing / Shoes	300
Personal grooming (including haircut and cosmetics)	150
Entertainment / presents	300
Holiday	1,500
Medical/Dental	0
Tax	5,950
Insurance premia	0
Interim maintenance	3,000
Contribution to parents	0
Dependent family members	0
Other (specify) Bluehost webpage/domain hosting            20 Sports/Fitness                                         250	270
Total monthly personal expenses	HK$12,670

4.3 Children

Item	Amount (HK$)
School fees	2,130
Extra tuition fees	0
School books and stationery	90
Transport to school (including school bus)	0
Medical I Dental	25
Extra Curricular Activities	1,500
Entertainment I presents	300
Holidays	0
Clothing / Shoes	300
Insurance premia	0
Lunches and pocket money	0
Other Transport	70
Child-minding fees	0
Uniform	80
Others (specify) X Child Trust Fund, UK (mandatory)      (75 GSP/month) books                                                     (100) activity hall/pool/court bookings               (50)	912
Total monthly expenses for children	HK$5,580

Total Monthly Expenses(4.1 + 4.2 + 4.3)

HK$59,632.00

18.  This situation is untenable longer term and would be easier without the loan repayments. However, I also accept that the little extra capital is also of assistance at present and is an additional financial resource that is currently available to the husband. In addition, some of the other expenses could be trimmed down a little and as with the wife some expenses such as the allowance for holidays can be removed from the schedule entirely for the time being. I accept that the husband has been paying for the school fees and in the main for B’s extra-curricular activities. The other expenses for the child are fairly minimal.

Conclusion 

19.  In some cases where the parties are earning a similar amount it is reasonable for the parties to split the expenses for a child on a more or less equal basis. However, in this instance the wife is earning about ¼ of the total monthly income of the family, with the husband earning the remainder. In such circumstances I accept that the husband should be responsible for approximately ¾ of B’s expenses when she is living with the mother. This amounts to HK$ 6,750 for B’s share of the general expenses (i.e. HK$18,000 divided by 2 = HK$9,000 x 75% = HK$6,750). In so far as B’s other expenses are concerned, both parties shall be responsible for her expenses when she is in their care. In addition, I will hold the husband to his undertaking as set out in paragraph 4 (a) above, i.e. to continue to pay for B’s school fees and current extra-curricular activities and other related educational costs including text books, uniform and other school related mandatory charges up to a total of HK$4,000 per month.  

20.  The wife’s expenses amount to HK$9,000 for her share of the general expenses and HK$2,250 for her contribution towards B’s general expenses. In addition, she has personal expenses of about HK$7,000 per month plus other expenses for B when she is staying with her i.e. an additional HK$2,300 per month or HK$20,550 in total (HK$9,000 + HK$2,250 + HK$7,000 + HK$2,300 = HK$20,550). It is clear that she may struggle on an interim basis and therefore I shall order that the husband contribute an additional HK$3,000 towards her expenses as maintenance pending suit for the wife. I accept that this is less than the wife says she needs and more than the husband says he can afford. In such circumstances both sides will need to make further adjustments to their finances as is necessary.

21.  In conclusion then I will make an order that in total the husband do pay the wife HK$3,000 per month, as maintenance pending suit for herself plus HK$6,750 per month as maintenance for B plus he will undertake to continue to pay for A’s school fees and other expenses as set out in paragraph 4 (a) above. I shall not order the payment to be backdated as it seems to me that this could place an intolerable burden on the husband’s shoulders at this time. Neither do I accept that these payments can or should be secured in any way.  

Costs

22.  Neither party has been wholly successful in this application. I am also cognizant of the fact that the parties are currently representing themselves. Consequently, I shall exercise my discretion and make an order nisi that there be no order as to costs, such order to be made absolute in 28 days’ time.

Order

23.  Consequently I shall make an order as follows:

UPON determining this matter by way of a paper disposal

AND UPON the Respondent undertaking to continue to pay for B’s school fees, extra-curricular activities and other related educational costs including the cost for text books, uniforms and other school related mandatory charges up to HK$4,000 per month.

IT IS ORDERED THAT:

1)     The Respondent shall pay maintenance pending suit to the Petitioner for herself in the sum of HK$3,000 per month, the first payment to be paid on the 1^st day of July 2020 and thereafter to be paid on the 1st day of each succeeding month until further order.

2)     The Respondent shall pay interim maintenance to the Petitioner for the child of the family B, in the sum of HK$6,750 per month, the first payment to be paid on the 1^st day of July 2020 and thereafter to be paid on the 1st day of each succeeding month until further order.

3)     The First Appointment hearing shall be adjourned to the 16 September 2020 at 9:30 am.

4)     Both parties do personally attend that hearing.

5)     There shall be an order nisi to be made absolute in 28 days’ time that there be no order as to costs.