N P Y J v. S M R C

FCMC 9098 / 2018

[2019] HKFC 163

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9098 OF 2018

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J U D G M E N T

(Interim Maintenance and Maintenance Pending Suit)

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1.  There are three summonses before the Court:

(a) A summons dated 26 February 2019 taken out by the Respondent Husband (Father) against the Petitioner Wife (Mother) for:

(1) Legal cost provision and general maintenance pending suit;

(2) An injunction to restrain the Mother from dissipating or charging in any way without the prior written consent of the Father or further order of the court on the securities portfolio or other accounts with JP Morgan Chase Bank in account number XXX63 and Interactive Brokers Account number UXXXX719 and UXXXX003 (“the Chase Accounts) and a property located in Aberdeen;

(b) A summons dated 13 April 2018 taken out by the Mother for an order for the Father to pay interim maintenance in the total sum of HK$80,020.00 per month for the children of the family until determination of the parties’ claims for ancillary relief or further order of the Court; and

(c) A summons dated 17 August 2018 taken out by the Mother for:

(1) An order to restrain the Father, his servants, agents or otherwise from disposing of, assigning, transferring, selling, pledging or otherwise dealing with the Individual Debenture issued by [the Children’s school] and registered under the name of the Father for the benefit of A (the Debenture) or any part thereof until further order of the Court;

(2) Directions in respect of updating expert reports for the forthcoming custody trial scheduled to commence on 25 June 2019.

Background

2.  These proceedings were originally intituled FCMC 6134/2017. The present case number was allotted following an agreement to amend the grounds of divorce in respect of the main suit. There has been a number of judgments in FCMC 6134/2017 where the Court has already set out the background.

3.  The parties were married in Hong Kong on 31 August 2008. There are 2 children of the family, a girl (A) born on 10 September 2008, who is going to be 11 in September this year and a girl, S, born on 18 January 2011, aged 8. The Mother also has a daughter (F) from a previous marriage. F is now 22 years old and is attending University in Hong Kong.

4.  Subsequently, the relationship between the parties deteriorated. There was no dispute that there was an argument in 2013. Matters came to a head in summer of 2016. There were frequent quarrels as the Father suspected that the Mother was having an affair. There was also no dispute that the Father began checking the Mother’s telephone.

5.  In August 2016, the Mother was diagnosed to have Adjustment Disorder with depressive symptoms. She was referred to social workers and marriage counselling.

6.  On 9 September 2016, the Mother says that there was a dispute in the former matrimonial home. The Mother alleged that the Father banged her head on the wall and threw her to the floor as a result of which she suffered injuries. Although the Mother produced a medical report stating that she was suffering from a head injury, the Father denied her allegations. To the contrary, he stated that they were very affectionate and intimate on that day.

7.  On 13 September 2018, the parties had a consultation with a psychiatrist, Dr. Kwan. There appears to be no dispute that this consultation was not fruitful from the perspective of either of the parties.

8.  The Mother further stated that there was another dispute at the former matrimonial home on 16 or 17 September 2018 in the presence of the children. She alleged that the Father scolded her with foul language and threw a glass and a large ceramic basin at her and injured her ankle, as a result of which the children were terrified.

9.  Both parties agree that there was a physical altercation between them in the early hours of 21 September 2018 and that this incident was very distressing for the 2 children. There were cross allegations of assault. The police were called and both parties were eventually arrested and charged with assault. The parties appeared before the Eastern Magistrate’s Court on the following day. The matter was adjourned to November 2016. They were both granted bail on the condition that they had to live in separate addresses. The Mother stayed away from the former matrimonial home whilst the 2 children continued to live with the Father in the former matrimonial home. In November 2016, the prosecution withdrew the charges against the parties. 

10.  The Mother has not returned to live in the former matrimonial home on a long term basis since September 2016. It is agreed that between November 2016 and April 2017, the Mother was given staying access to the children from Friday after school to Sunday morning at her sister’s home. She would return to the former matrimonial home to see the children during the week, sometimes staying overnight with the children (although the extent of the parties’ involvement with the care of the children is in dispute). She only stopped staying overnight at the former matrimonial home in February 2017.

11.  At Christmas 2016, the Father took the children to the United Kingdom for a holiday. Over Chinese New Year and Easter in 2017, the parties went on holiday with the children together. They each have different explanations as to why they went on holiday together. However, there appears to be no dispute that this was upon the insistence of the Father. The Mother described the holidays as disasters, resulting in the children crying every day. This is denied by the Father, who thought that the holidays were uneventful. There was no dispute that at least, the atmosphere was tense during these holidays. There was yet another argument in the children’s presence on the last day of one of the holidays.

12.  According to both parties, there were many other confrontations between late 2016 and May 2017, either in the presence of the children or involved them. Their respective allegations are set out in their Affidavits and I do not propose to repeat them here. Suffice it to say that the Court is not in a position to make any findings of fact at this stage of the proceedings.

13.  On 16 May 2017, the Mother petitioned for divorce and also brought an ex part application for the children not to be removed from Hong Kong without the leave of Court. She informed the children of her decision on the same evening when they were having dinner together. The children wanted to stay with the Mother that night and the Father was informed. The Father agreed but asked that the children be returned to the former matrimonial home the next morning.

14.  In the morning of 17 May 2017, the Mother was driving S to the school bus stop. There was yet another argument in S’s presence as to whether S should be driven to school by the Mother. Thereafter, the Mother was advised by her social worker to take the children to a child psychiatrist as soon as possible to deal with the stress arising out of the tension within the family. The Mother made an appointment with Dr. Chan, their family doctor and Dr. Kot, a psychiatrist. Dr. Chan discovered that the children had insect bites all over their body (which the Mother says was caused by the Father’s storage of carton boxes in the former matrimonial home). Dr. Chan also told the Mother that the children had lost weight over the past 2 months when they should have been gaining weight. Whilst they were waiting to see Dr. Kot, the Father arrived. There was another argument at the clinic and the police were called. The Father left the clinic when the police arrived. The Mother was then advised to not to return to her residence. She was arranged to stay at a temporary shelter with children.

15.  On 18 May 2017, the Mother took out an ex parte summons on notice [A17-19] for an order that:

(1) The Mother be granted interim custody, care and control of the children;

(2) The Father, whether by himself, his servants or agents or otherwise be restrained from:

(a) Assaulting, molesting, harassing, threatening or communicating with the Mother and the children in an abusive, destructive or otherwise inappropriate manner;

(b) Entering or coming within 250 metres of:

(i) The Mother’s residence;

(ii) The Mother’s workplace;

(iii) The children’s schools

(3) Leave for the Mother to take the children to attend psychologist Dr. Kot for a psychological assessment and any necessary therapy;

(4) Leave to serve the order on the children’s respective schools;

(5) An authorization to arrest;

(6) Leave to serve a copy of the order on the Commissioner of Police;

(7) A penal notice to be attached to the order; and

(8) Costs to be provided for

16.  The matter came before this Court on 19 May 2017. Upon hearing Counsel for both parties and upon mutual undertaking by the parties that they will not:

(a) Assault, molest, harass, threaten or communicate with each other and the children in an abusive, destructive or otherwise inappropriate manner;

(b) Entering or coming within 250 metres of:-

(i) Each other’s residence; and

(ii) Each other’s respective offices;

it was ordered that the Mother be granted interim interim care and control of the children. The Father be granted supervised access to the children, such access shall be supervised and arranged by the social work officer of the Social Welfare Department. Directions were given for the filing of Affirmations, a social investigation report and single joint child psychologist report in preparation for argument of the Mother’s application for interim custody, care and control. The parties were also ordered to jointly appoint a child psychologist within 7 days for the purpose of providing treatment and necessary therapy to the children [A1/42-44]

17.  The Court further directed that the children may not be removed from the jurisdiction by either party without the leave of the Court until they attain the age of 18 years respectively but provided that if either parent does give a general written undertaking to the Court to return the children or either of them to Hong Kong when called upon to do so, and unless otherwise directed with the written consent of the other parent, that parent may remove the children or either of them from Hong Kong for any period specified in such written consent [A46-47].

18.  This was followed by a dispute in respect of a psychological report prepared by Dr. Kot and filed by the Mother. That report was subsequently withdrawn [A70-71].

19.  The Father then filed his Answer and Cross Petition on 6 June 2017. He admitted that the marriage had irretrievably broken down but alleged that the break down was caused by the Mother’s adultery. He also prayed for joint custody, sole care and control to him with reasonable access to the Mother, as well as ancillary relief for himself and the children [A73-80]. Subsequently, the main suit was resolved by consent.

20.  By a summons dated 6 November 2017, the Father applied for variation of access. This was followed by a number of reports, including social investigation reports and a report from the single joint expert, Dr. Lora Lee. Dr Pandora Ng was jointly appointed to provide treatment and therapy for the children. In addition, by consent, the Father was granted face-to-face access to be supervised by the social worker or the Parent-Child Contact Centre (the PCCC) under the Hong Kong Family Welfare Society, with the understanding that the arrangement of the supervised face-to-face access depended on the children’s readiness and subject to the Investigating Officer’s professional judgment and availability of the social worker. The matter was then adjourned to 17 August 2017 for argument.

21.  The 1^st Social Investigation Report was filed on 30 June 2017. An updated Social Investigation Report was filed on 3 July 2017. There was then a further dispute as to the Affirmation of Dr. Kot and the appointment of a child psychologist to provide treatment to the children.

22.  On 3 July 2017 and by consent, parts of Dr. Kot’s Affirmation was withdrawn. Dr. Pandora Ng was appointed as the Single Joint Expert to provide treatment and necessary therapy to the children. Dr Lora Lee was directed to prepare a psychological assessment report on the children to be filed at least 7 days before the nest hearing. The Court further directed an expedited social investigation report to be filed at least 2 days before the next hearing. In addition, by consent, the Father was granted face-to-face access to be supervised by the social worker or the Parent-Child Contact Centre (the PCCC) under the Hong Kong Family Welfare Society, with the understanding that the arrangement of the supervised face-to-face access to not depend on the two children’s readiness and subject to the Investigating Officer’s professional judgment and availability of the social worker. The matter was then adjourned to 17 August 2017 for argument.

23.  Dr. Lora Lee’s 1^st report was filed on 11 August 2017 [A242-331]. The 3^rd Social Investigation report was filed on 15 August 2017.

24.  On 17 August, upon hearing Counsel for both parties and upon both parties acknowledging and agreeing that they have a joint parental responsibility towards the children and that the children have a right to maintain a continuing relationship with both parents after divorce and upon the parties each undertaking to the court ad each other:

(i) That they support the recommendations of the Single Joint Expert appointed by the Court, namely Dr. Lora Lee and will use their best efforts to co-operate in implementing her recommendations set out in her report dated 11 August 2017;

(ii) That they will arrange an appointment with the parties and Dr. Lora Lee and the children to explain the proposed transitional arrangements set out in the order;

(iii) That they will attend family therapy for parents and the children to reduce the conflict between the parties;

(iv) That they will jointly appoint a Trained Professional referred by Dr. Pandora Ng to accompany the children during access with the Father until further Order and agree a reasonable access schedule in conjunction with the Trained Professional’s availability;

(v) Neither party will make disparaging remarks about the other parent while in the presence of the children, nor shall a party allow others to do so;

(vi) They will actively and positively encourage the children to spend time with the other parent; and

(vii) They will facilitate indirect contact between the children and the other parent whenever the children are in his or her care. 

It was ordered that:

(1) The Mother shall continue to have interim interim care and control of the children;

(2) The Father shall have interim defined access to the Children on Mondays and Wednesdays between 6:30 and 8:30 pm, such access to be accompanied by the Mother’s domestic helper until a Trained Professional is appointed in accordance with the order;

(3) The Father to have interim access to the children each Saturday at the PCCC until a Trained Professional is appointed in accordance with the order;

(4) Both parties’ solicitors are to work out a schedule, subject to the advisory of the professionals;

25.  The matter was further adjourned to 29 September 2017 for argument. The Court further directed that an updated report from Dr. Lora Lee was to be filed on or before 22 September 2017. This updated report was filed on 25 September 2017.

26.  On 29 September 2017, upon hearing Counsel for both parties, this Court ordered that:

(1) The Mother shall continue to have interim interim care and control of the children;

(2) The Father shall have interim interim access to the children each Monday, Wednesday from 6:30 to 8:30 pm to be supervised by a Trained Professional jointly appointed by the parties;

(3) The Father to have one additional day interim access to the children each alternate Friday or Saturday at the PCCC;

(4) By consent, both parties to be assessed by a jointly appointed psychologist and psychiatrist who are to file their reports at least 3 days respectively before the next hearing. The case was then adjourned to a Children’s Dispute Resolution hearing on 8 January 2018.  

27.  The single joint psychologist report from Dr. Jim Bierman was filed on 3 January 2018. The Father was unhappy with the order dated 29 September 2017. By a summons dated 12 October 2017, the Father applied for leave to appeal against that order.

28.  By a summons dated 6 November 2017 [A2/398-400], the Father applied for an order that:

(1) Paragraph 2 of the order dated 29 September 2017 where, inter alia, the Father was granted interim interim supervised access to the children, with such access to be supervised by a Trained Professional jointly appointed by the parties to be varied to the effect that the Father do have supervised access to the children as follows:

(i) Mid-week access at the former matrimonial home or such other outside venue, twice per week on Mondays and Wednesdays during school term, collecting the children from school until 8:30 pm;

(ii) During school holidays, for two full days from 9 am to 9 pm during the week and one half day from 9 am to 3 pm;

(iii) One full day access each Sunday from 9 am to 8:30 pm;

(iv) The above access to be subject to the availability of a Supervisor and, save for the mid-week term access where the Father and the Supervisor will collect the children from school, the children will be collected by the Supervisor from the Mother’s home and then returned by the Supervisor to the Mother’s home;

(2)  Access to be supervised by an experienced Supervisor from In Safe Hands who need not be the same supervisor for each access and need not speak Cantonese.

29.  The parties appeared before this Court for a CDR on 8 January 2018. The Court was informed that the parties did not think that a settlement would be possible and that they refused to hear anything that the Court had to say at the CDR. The CDR was then declared a failure. Directions were given in respect of the Father’s summons for variation of access. In addition to the filing of evidence, the parties were ordered to be assessed by the single joint psychiatrist, Dr. Barry Connell.

30.  The Father’s application to this Court for leave to appeal was heard and dismissed on 8 November 2017. He then applied to the Court of Appeal for leave to appeal. His application was dismissed on 5 January 2018. The Court of Appeal emphasized that the order dated 29 September 2017 was interim in nature and that this Court was the appropriate forum to vary such an order. The Father interpreted the Court of Appeal’s reasons as encouragement for him to make an application for variation of interim care and control and access. Since that time, this Court has been bombarded with applications.

31.  The Father’s application for variation was dismissed. The children became increasingly resistant to access. Despite the assistance of the Social Welfare Department and the Parent and Child Contact Centre (PCCC), access was unsuccessful. There were repeated applications for variation of access. In addition, there were disputes as to removals for holidays, supervisors and pick up points for access. All of these disputes were brought to Court and the Court has had to adjudicate on most of them.

32.  The custody trial has now been fixed for a 10 day trial commencing on 25 June 2019.

Assets

33.  There appears to be little, if any dispute as to the size of the matrimonial pot.

34.  The Father is the sole registered owner of the former matrimonial home (the FMH) in the Southern district. The Father estimates that this property is now worth HK$40,000,000. The Mother says that the market value of this property is about HK$42 million. There is now a mortgage in the sum of about HK$16.3 million on the property (net equity value of HK$23.7 million to 25.7 million).

35.  The Father is also the sole registered owner of 2 car parking spaces, and 11 motor cycle parking spaces at the FMH. The car parking spaces are valued by the Father at HK$1,750,000 each and the motor cycle car parking spaces at HK$880,000 each. On the other hand, the Mother thinks that the two car parks are worth HK$8 million and the motor cycle parking spaces are worth a total of HK$550,000 (value of a total of HK$4,380,000 to HK$8.55 million). 

36.  There are also two properties in London (Chelsea and Belgravia). The property in Chelsea is registered under the Father’s sole name. It is estimated by the Father to be worth HK$10,860,000 and is mortgage free. The Mother estimates that the current market value of this property is £1.35 million. However, it has been charged as security for the property in Belgravia. The Father has not given a figure on the amount of the security. According to the Mother, there is a legal charge of £2.5 million, only £350,000 of which is outstanding (According to the figures given by the Mother, the net equity is about £1 million).

37.  The property in Belgravia is held by a company called PCI Ltd, in which the parties each hold 50% interest. The value of the property in Belgravia is estimated by the Father at about HK$43.44 million and by the Mother at about £4.9 million. There is a mortgage in the sum of about HK$18.9 million (net equity value HK$24.54 million to about £3 million).

38.  According to the Father’s Form E, the total balance in his bank accounts come to HK$510,823. He has stocks which he estimates to be worth HK$2,000. The receivables from the Legal Aid Department for his practice amount to about HK$3.34 million. His paintings and porcelain are said to be worth about HK$170,000. He also has gold jewelry, antique furniture and stamps on which no estimated value has been given. He is also the registered owner of a school debenture. This debenture was estimated to be worth HK$1.25 million at the time of his Form E. There are also various utility deposits of just under HK$8,000. The Father has four pension funds. Except a pension fund with Scottish Widows (which is realizable in 2020) with a current value of just over £68,000, no estimated value has been given for the other 3 pension funds. According to his Form E, the Father has other liabilities amounting to just over HK$3.36 million.

39.  Apart from her 50% registered shareholding in PCI Ltd the Mother is the sole registered shareholder of a company called AECA Limited. This company is the registered owner of a property in Aberdeen. This property is used by the Father as his private office. The Mother estimates that this property is worth about HK$4 million, whilst the Father says it is worth about HK$4.5 million. There is a mortgage of about HK$1.35 million on this property (net equity value 2.65 million to HK$3.15 million).

40.  The total balance in the Mother’s bank accounts as at the date of her Form E was just over HK$161,000. She owns shares in two other companies, GMEC Ltd and BFA Ltd. Only the management accounts of GMEC Ltd are available and the Mother says that BFA Ltd is dormant. The Mother also has a number of stock accounts, the value of which was estimated to be around HK$23.3 million. There is also an insurance policy with a surrender value of just over HK$618,000. She has a car which was purchased in 2006 and estimated to be worth about HK$50,000 and jewelry estimated to be worth about HK$100,000 Her Mandatory Provident Funds are only realizable in 2033, the current value of which totals about HK$1.37 million. She says that she has other liabilities totaling about HK$2.29 million.

41.  In conclusion, according to the Father’s Form E, he has assets in excess of HK$53 million. Whilst the Mother says her assets amount to HK$65.6 million, they include the FMH, the car parking spaces, the motor cycle parking spaces and the Chelsea property. In other words, the assets under her control only amount to about HK$26.46 million.

Income

42.  The Father is a barrister-at-law. According to his Form E, his gross income was estimated at about HK$1.35 million for the 2016-2017 financial year (i.e. about HK$112,000 per month). He also receives rental for the car parks, the motor cycle parking spaces and the London properties totaling about HK$154,000 per month.

43.  At the time of her Form E, the Mother was employed by a management consultants company, with an average annual income of just under HK$2.2 million. In addition, she received a discretionary bonus of just over HK$183,000 in May 2017. She also had medical insurance worth about HK$3,500 per month for herself and her dependents. Unfortunately, the Mother lost her job on 23 April 2018 and has since been unemployed. She has been living on her savings to defray all the general, personal and children’s expenses as the Father has stopped paying for the expenses. Since January 2018, she has also been paying for the Children’s treatments with Dr. Pandora Ng (which have now ceased). Since the end of February 2018, she has been paying the mortgage repayments, management and air-conditioning costs of the Aberdeen property (which the Father is using as his chambers).

Events since the Commencement of these Proceedings

44.  On 9 November 2017, the Mother registered charges against the FMH and the two car parking spaces. On 8 December 2017, the Father complained about the charges and requested the Mother to lift them to enable him to take out a loan of HK$5 million against those properties to pay for his legal and living expenses. On 15 December 2017, the Mother refused to lift the charges and asked the father to provide information about the loans he has drawn against those properties in the last 2 years. She also asked him to vacate the Aberdeen property. On 30 January 2019, the Father asked the Mother for a capital advance of HK$4 million, being HK$ 2 million for payment of arrears of legal costs and anticipated legal costs for the next 6 months and HK$2 million for living expenses for the next 12 months, to be paid out of the sale proceeds of the Mother’s shares in her securities portfolio. On 1 February 2018, the Mother counter proposed to sell the two car parking spaces at the FMH and suggested that the sale proceeds be divided between the parties after repayment of outstanding mortgages and expenses incidental to sale.

45.  On 7 February 2017, the Father claimed that he could not obtain further loans against the two London properties and the likelihood of a sale of the Aberdeen property was remote as he was still using it as his office and the building was very old. He did not agree to the sale of the car parking spaces as he claimed that it would reduce the value and amenity of the FMH. He insisted on the Mother giving him a capital advance of HK$2 million within 14 days and an agreement to a further capital advance of HK$2 million within 60 days.

46.  On 9 February 2019, the Mother proposed to sell the London Properties and asked to divide the sale proceeds after deduction of the outstanding mortgages and expenses incidental to sale. On 26 February 2018, the Father filed his application for Maintenance Pending Suit, asking the Wife to pay him HK$750,000 per month for the next 6 months as legal costs contribution and living expenses. On 28 February 2018, the Father threatened that he would cease to pay for:

(1) A’s school fees;

(2) The Mother’s shares of invoices issued by Nanny Experts;

(3) Dr. Pandora Ng’s invoices;

(4) Mediation fees;

(5) Dr. Barry Connell’s fees;

(6) Balance of any mortgage payments in relation to the London properties; and

(7) Mortgage payments and management fees of the Aberdeen property

47.  On 2 March 2018, the Father informed the school that he would stop the autopay for A’s school fees. On 5 March 2018, he informed Dr. Pandora Ng that he would stop paying her invoices. On 7 March 2018, the Mother informed the Father that Dr. Pandora Ng would stop treatment of the Children until all invoices were settled. On 9 March 2018, the Mother suggested sale of the Aberdeen property and the car parking spaces at the FMH to generate funds for the parties. She also suggested selling the London properties as the Father has threatened to cease paying the mortgage payments. She proposed that the net proceeds be divided equally between the parties.

48.  On 12 April 2018, the Father agreed to sell the car parking spaces and the Aberdeen property only on condition that:

(1) The Mother to provide him with a capital advance of HK$2 million from liquid assets within 7 days; and

(2) The mother to undertake not to dissipate or charge the securities portfolios or other accounts with JP Morgan Chas Bank and Interactive Brokers Account, save as to provide the capital advance of HK$2 million to him.

49.  The Mother then repeated her proposals to sell the Aberdeen property, the car parking spaces and the London properties and to divide the net proceeds equally. She also suggested leasing out the FMH which can generate about HK$90,000 rental income per month.

50.  On 17 April 2018, the property management company of the Aberdeen property notified the Father that he has to settle payment of outstanding management fees, improvement/renovation work fees and air conditioning fees. On 7 May 2018, the Mother was informed by the property management company that unless the outstanding fees were settled, the management company will take legal action against the owner.

51.  On 19 June 2018, the Father informed the Court that he intended to sell the school debenture for A to raise funds unless the other agrees to pay him a capital advance of HK$4 million or purchase the debenture from him. The Mother asked the Father to give an undertaking not to sell the debenture to avoid any disruption to either child’s education. However, this was refused by the Father. He informed the Mother that he already had a buyer lined up.

52.  On 10 July 2018, the Father entered into a Sale and Purchase Agreement in respect of the sale of the school debenture for a consideration of HK$3.6 million. He would receive HK$1.55 million from the sale and the school will take the balance. He received a deposit of HK$ 1 million from the purchaser. On 24 July 2018, the Father indicated that he has already sold the school debenture in his 22^nd Affidavit.

53.  On 31 July 2018, the Mother received 2 emails from the administrative manager of the school confirming that the school has received the debenture transfer application from the Father. She also highlighted that the consequence of the transfer was that all the rights of the registered holder shall cease immediately and the nominated child shall not be entitled to continue his or her study at the school. She also told the Mother that it usually took about a month for the Foundation to consider whether the transfer application would be approved or not. The date of the Foundation’s meeting was yet to be fixed.

54.  On 1 August 2018, the Mother asked the Father for an undertaking not to proceed with the sale of the school debenture. On 3 August 2018, the Father refused to give the undertaking unless the Mother would give him HK$3.6 million within 3 days, of which HK$1 million would be repaid to the purchaser.

55.  On 17 August 2018, the Mother sought an injunction against the sale of the school debenture. On 21 August 2018, the Father provided a copy of the Sale and Purchase Agreement of the debenture to the Mother. Two days later, he indicated to that he was prepared to ask the purchaser to terminate the Sale and Purchase agreement on condition that the Mother will:

(1) Advance the necessary HK$1 million that he has previously received as the deposit from the purchaser;

(2) Further advance the balance of the sale proceeds in the sum of HK$2.6 million to him if an agreement can be reached with the purchaser.

56.  Between 24 and 30 August 2018, the parties’ solicitors engaged in discussions about a joint letter to the school stating that the debenture is subject to litigation. A few days later, only the Mother’s solicitors sent a letter to the school on her behalf.

57.  The parties appeared before the Court for a pre-trial review on 21 August 2018. The parties asked the Court to fix trial dates for the custody dispute in consultation with Mr. Richard Todd Q.C.’s diary. The Father through leading counsel informed the Court that “there is no question of trial counsel not being ready. [The Father] will instruct Mr. Richard Todd as his counsel, and CRB will come back on record”. The Court pointed out that the Father’s application for legal cost contribution had not yet been heard and pointed out that the result of that application will impact on the trial dates. However, the Father’s senior counsel stated that “You do not have to worry, as you have been just told there will be no prospect that trial counsel will not be ready. CRB and Mr. Todd will be here. If there is no legal costs contribution, [the Father] just has to raise it”.

58.  It was upon that representation that 10 days were fixed for trial in consultation with Mr. Todd’s diary. At the hearing of the Father’s maintenance pending suit application, he was represented by Mr. Robin Egerton and CRB.

Applicable Legal Principles

59.  Section 3 of the Matrimonial Proceedings and Property Ordinance (MPPO) provides for maintenance pending suit:

“On a…

a) Petition or joint application for divorce; or

b) Petition for nullity of marriage or judicial separation,

 The court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition or making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.”

60.  The sole criterion in determining an application for maintenance pending suit application is “reasonableness” or “fairness”. This was succinctly summarized by His Honour Judge Bruno Chan in C v F HKFLR 41:

“Although the sole statutory guideline in considering maintenance pending suit is that the award should be ‘reasonable’; the court will nevertheless bear in mind all the factors drawn to its attention relating to the marriage and the parties to it, and perhaps the two most outstanding matters in every case, as in this one, are the standard of living of the parties, and the ability of the husband to pay.”

61.  In relation to “reasonableness”, paragraphs 11.77-11.78 of Rayden and Jackson on Relationship Breakdown, Finances and Children 19^th Edition stated:

“The court has an unfettered discretion to award such sum as it thinks reasonable. There is no hard a fast rule, and no fixed proportion: each case depends on its own facts. It has been said that the approach to maintenance pending suit should be empirical, and that in the ordinary sort of case the district judges who deal with these applications will have to take a broad view of means on the one hand and income on the other and come to a rough and ready conclusion, or to take a “broad brush approach”. The overall consideration is the actual needs of the parties’ pending suit.”

62.  The general principles on maintenance pending suit are trite and are set out in HJFG v KCY [2012] 1 HKLRD 95 in which Hartmann JA, citing from TL v ML (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263 per Deputy High Court Judge Mostyn QC (as he then was) at 1289 that:

“a. The sole criterion to be applied in determining the application is “reasonableness”, which is synonymous with “fairness”

b. A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

c. In every MPS application, there should be a specific MPS budget that excludes capital or long term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration;

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 a situation, the court should err in favour of the payee”.

63.  The principles for legal costs provision are found in Currey v Currey (No.2) [2007] 1 FLR 946. The principles of Currey were succinctly summarized in H v H (unreported) FCMC 1969 of 2007 by His Honour Judge Bruno Chan:

“1) That the applicant has no assets, or none that can reasonably be deployed;

2) That s(he) can provide no security for borrowing, or none which can reasonably be offered;

3) That s(he) cannot reasonably obtain legal services by offering a charge on the outcome of the litigation;

4) That s(he) cannot secure publicly funded legal help at a level of expertise apt to the proceedings.

64.  In other words, legal costs provision shall be given only when a party clearly has no other resources or means to obtain funding for the divorce proceedings and there are sufficient assets within the matrimonial pot to pay for the legal expenses. The Currey test is used to ensure that a party is not significantly deprived of having a level playing field (i.e. legal representation) throughout the proceedings.

65.  I shall now apply the above principles to the applications before me.

Legal Costs Provision

66.  There can be no dispute that the bulk of the assets are under the Father’s control. Not only is he a barrister-at-law with substantial earning capacity, he has substantial income from rental of properties. His income includes his gross earnings from his practice of an average of HK$112,273 per month for the financial year 2016-2017, rental income from the car parking spaces at the FMH and the two London properties of just under HK$154,000 per month. Since he made the application and according to his 22^nd Affidavit dated 24 July 2018, the rental income of the Belgravia property has even increased to £10,542.57 per month and the rental for the Chelsea property has gone up to £740 per week.

67.  In his 7^th Affidavit dated 26 February 2018, the Father explained that his assets were very illiquid. He was not able to secure any further loans against the FMH and the car parking spaces as a result of the lis pendens registered by the Mother. Further, he could not obtain further loans against the London properties and the likelihood of a sale of the Aberdeen property was remote. He alleged that the only liquid asset is the securities portfolio (worth HK$23 million) with JP Morgan in the Mother’s name and under her sole control.

68.  The Father stated that he is in dire financial circumstances. In his 14^th Affidavit, the Father further explained that his income as a barrister-at-law had significantly decreased as a result of these proceedings. His income as a landlord of the London properties does not generate any surplus as the rent has been used to defray mortgages and costs. He was unable to secure loans against the landed properties. Apart from expenses, he has outstanding debts, such as loans from family and friends, unsecured loans and legal fees. Receivables from the Legal Aid Department totaling HK$592,250 are still outstanding. He is also faced with anticipated legal costs for these proceedings. In his 22^nd Affidavit, the Father updated the Court on recent development. His chambers has disbanded and he is now using the Aberdeen property as his chambers. In other words, he is not in a position to sell it. He has received no offers for the car parking spaces. Although he received HK$1 million from the sale of the school debenture, those funds have already been exhausted. He used it to pay for his orthodontic treatment, HK$250,000 to instruct solicitors and counsel for the present application and proposed repayment of a debt in the sum of US$45,000 to his friend. He estimated that he needs to pay up to HK$5.89 million as legal fees, including his outstanding legal fees and estimated fees for the 10 day custody trial.

69.  The Father stated that it is in those circumstances that he has made an application for maintenance pending suit. He asked for a payment of HK$750,000 per month for a period of 6 months, i.e. HK$4.5 million as legal costs provision and living expenses or for a voluntary release of capital in the sum of HK$4.5 million.

70.  By the first day of this hearing, the Father’s Counsel informed the Court that based on his latest Form H, the Father’s legal costs were up to HK$3 million, of which almost HK$1.3 million was outstanding. His estimated costs of trial are HK$4.6 million. In other words, his total legal costs up to the custody trial are up to HK$7.6 million. This is because the Father wants to instruct Mr. Richard Todd Q.C. to represent him at the trial.

71.  After the first hearing (which went part heard), the Father made an open offer on 6 November 2018:

(1) The Mother to provide him with a capital advance of HK$4 million (to be accounted for upon the final determination of ancillary relief);

(2) To sell the Aberdeen property but with the implication that all net proceeds of sale would be paid solely to him;

(3) To sell the London properties without any proposal as to how the net proceeds would be distributed;

(4) The Mother to lift the charges against the FMH and car parking spaces so that he can borrow against them with an undertaking from the Father not to dispose of those properties.

72.  At the hearing on 15 January 2019, the Father appeared in person and informed the Court that:

(1) He has reluctantly agreed to put the London properties and the Aberdeen property on the market for sale but he refused to divide the proceeds equally or have the net proceeds paid into Court;

(2) In his opinion, the landed properties are not assets that are reasonably deployable as it is unreasonable to expect him to sell them;

(3) He is unable to secure further loans against the FMH as a result of the Mother’s registration of the lis pendens;

(4) He is unable to secure any loans against the Aberdeen property as it is not in his name or in the name of a company he controls;

(5) The Mother has a securities portfolio that can be liquidated but she has refused to do so;

(6) The Mother has caused these proceedings;

(7) The Mother has forced him to take out unsecured loans which are more expensive;

73.  At the hearing, he sought the Mother’s agreement to sell the Aberdeen property as well as an undertaking not to sell the same property. He confirmed that he was prepared to sell this property if all the net proceeds were paid to him.

74.  The Mother’s position is that the Father is unable to satisfy the first 3 principles of the Currey test as he has assets which can be reasonably deployed and means to raise funds. The Father asserted that his application was to provide him with an equality of arms. The Mother was represented by senior junior counsel (she is now acting in person), whereas the Father wants to instruct one of the most prominent and expensive matrimonial silks in the common law world to represent him.

75.  Even assuming that the Mother’s previous legal representation had continued, the Father’s application was not to provide him with a level playing field. He was in fact asking for legal representation that would tip the playing field in his favour.

76.  The Father stated that he was unable to raise further loans against the London properties. He has produced some emails in support of that allegation [A2/306-307]. However, those emails in fact show that he had made an attempt to raise further loans against the London properties in 2016 and his request was turned down. Firstly, his attempt to raise money against those properties were made 2 years prior to the commencement of these proceedings (these proceedings were commenced in 2018). There was nothing to demonstrate that he has made any attempts to raise finance against these properties to fund the legal costs in these proceedings. It was unclear what amount he was trying to raise in 2016. Obviously, if he was attempting to raise an amount that was in excess of the net equity value of the properties, his request would be turned down.

77.  The Father says that he has reluctantly agreed to place the car parking spaces on the market for sale. However, according his own evidence, he had placed the car parking spaces on the market at a price tag over the market price of HK$1.75 million. There was also no disclosure as to what the asking price was. It is wholly unreasonable to market the car parking spaces at a price over the market value. Obviously, there will be no offers. The alleged attempt to sell it at such a price is merely creating an impression that the car parking spaces cannot be sold.

78.  The Father also said that he has reluctantly placed the Aberdeen property on the market for sale. However, he explained that a sale was remote as the building is very old. This is wholly contrary even to his own evidence. According to his own evidence, a property next to the Aberdeen property was sold in January 2018 for a consideration of HK$4.438 million. It is clear that it is possible to sell the Aberdeen property. The Court agrees with Counsel for the Mother, the only question is price. Although the Father says that he is amenable to sell the Aberdeen property, there is no evidence that this has been put in action. There is also no information as to the price at which this property was marketed.

79.  As for the two London properties, there is again no evidence that the Father has made any attempts to sell any of them and no disclosure of the asking price.

80.  At the hearing on 21 August 2018, the Father was represented by Leading Counsel. There is a dispute as to whether Counsel stated that the Father could find the funds to instruct Mr. Richard Todd Q.C. or whether he stated that he would use his best endeavours to do so. In fact the exact wording of that sentence does not matter. Leading Counsel informed the Court that:

“There is no question of trial counsel not being ready. [The Father] will instruct Mr. Richard Todd as his counsel, and CRB will come back on record.

81.  When the Court queried whether trial dates should only be fixed after the application for maintenance pending suit has been decided, the Father’s Leading Counsel informed the Court:

“You do not have to worry, as you have just been told, there will be no prospect that trial counsel will not be ready. CRB and Mr Todd will be here. If there is no legal costs contribution, he just has to raise it”

82.  It was implicit from Leading Counsel’s assurance to the Court that whatever the result of this application, Mr. Richard Todd will be appearing for the trial. In other words, the Father has other resources to raise the funds.

83.  In the light of all the above mentioned circumstances, the Father has not satisfied the criteria under the Currey test. His application for legal costs provision is dismissed.

Maintenance Pending Suit

84.  The Father also applied for maintenance pending suit to pay for his living expenses. He estimated that his living expenses are HK$2 million for the next 12 months. He says that his earnings have decreased as a result of these proceedings. With respect to the Father, if his income has decreased, he is the author of own wrong. After the Court granted interim interim custody to the Mother, he has bombarded the Court with an avalanche of applications, many of which were repetitive. When the Mother wanted to take the children on holiday, he indicated that he was agreeable to the proposal in principle but then turned up in Court to oppose it.  After the Mother agreed to take the Children to Japan pursuant to the Father’s suggestion, he objected to the destination. In addition, he has bombarded the Mother’s former solicitors with hundreds of emails. Further, he made applications for transcripts of most, if not every hearing. Whilst the Court understands that he is very upset at the Children’s refusal to see him, the Court has repeatedly urged him to focus on bringing the matter to trial, instead of wasting time, energy and money on interlocutory matters. Unfortunately, the Court’s pleas fell on deaf ears.

85.  According to the Father, his average monthly income from his practice for the tax year 2016-2017 was HK$112,273. This was reduced to about HK$50,000 and is allegedly now about HK$35,000 per month. Despite the allegation of a downturn in the property market in the UK as a result of Brexit, his rental income has increased. His rental income from the real properties is about HK$180,000, but he says that such income is exhausted on the repayment of mortgages and costs. 

86.  There is no dispute that the Father has only paid for A’s school fees but no other living expenses for the Children since April 2017. He sold the school debenture for A and has ceased to pay for A’s school fees since March 2018. The Father failed to pay for any of the experts or for the therapies for the Children. Access has not been successful and there are no longer any child minding fees or entertainment fees for the children. The Father’s previous chambers have disbanded and he is now using the Aberdeen property as his chambers. He has not paid for the mortgage or management fees of this property and the Mother has been forced to shoulder those expenses. The Mother lost her job in April 2018. Despite her efforts to find work, she is still unemployed. Not only is she solely responsible for the Children’s expenses, her rental has increased. Despite that, she has tried to reduce her expenditure. She has been living on her savings alone for the past year. On the other hand, despite having an income (albeit allegedly reduced, but still in excess of HK$200,000) and being in control of the bulk of the assets, the Father has refused to reduce his expenses or use any of the capital assets under his control. Instead, he is seeking to exhaust the Mother’s capital.

87.  As stated above, “reasonableness” is synonymous with “fairness”. In my judgment, the Father’s requests are wholly unreasonable and unfair. The Mother has always been willing to and has agreed to the sale of all or any of the real properties. The Father’s alleged needs are unreasonable. His application is hence dismissed. 

Interim Maintenance for the Children

88.  The Mother recognizes that she has a substantial earning capacity and is not asking for any maintenance pending suit for herself. She is only asking the Father to contribute to half of the Children’s expenses, which (despite a significant raise in the rental) has been reduced HK$64,314.16 for each child.

89.  The Father criticizes the Mother for not presenting him with updated bank statements for his detailed analysis. He also says that the Mother’s budget is inflated. It is trite law that the Court decides such applications on a broad brush basis and that there will be no detailed analysis of documents.

90.  The Father has also given some of the figures in respect of the Children’s expenses in his Form E:

Children’s expenses	HK$37,507
School Fees for A	HK$12,340
Entertainment/presents	HK$4,167
total:	HK$54,014

91.  The Father’s figures do not include the school fees for S (HK$11,100), their share of the rental (HK$53,500/4 x 2 = HK$26,750, their share of the general household expenses, extra-curricular activities, school books and stationary, transport to school, medical and dental expenses, holidays, clothing and shoes, lunches and pocket money, school uniform. If those expenses were included and are compared to the Father’s figures, the Mother’s figures are wholly reasonable. For example, the Mother’s total household expenses only amount to HK$34,550 for 4 persons, i.e. HK$8,637.50 per person (i.e. utilities HK$5,550, food HK$12,000 and household expenses HK$16,000). The Father’s own household expenses are alleged to be HK$18,851 for him and his helper (i.e. HK$9,425.50 per person). It is difficult to see how the Mother’s budget is exaggerated.

92.  The Father still has an income whilst the Mother has been unemployed for over a year. The bulk of the assets are under the Father’s control. The Father is now legally represented whilst the Mother is not. The Mother has already shouldered most, if not all the Children’s expenses for close to 2 years. It is wholly unfair to ask the Mother to exhaust her capital whilst the Father holds on to the assets and pays nothing.

93.  The Court finds that the amount requested by the Mother is reasonable and the Father does have the resources to pay it.

Injunction

94.  The Father is seeking to restrain the Mother from disposing of the securities portfolio and the Aberdeen property. Firstly, according to the Mother, the securities portfolio is not liquid. There is not a shred of evidence to suggest that these assets are at risk. The Mother is unemployed. She was solely responsible for the Children’s expenses. The Father’s application is not to protect the assets from risk of dissipation but to exert financial pressure on the Mother. His application is wholly without merit and must be dismissed.

Orders

95.  Accordingly, I make the following orders:

(1) The Respondent’s summons dated 26 February 2018 is dismissed;

(2) The costs of and incidental to this application (including all costs reserved) shall be borne by the Respondent, to be taxed if not agreed;

(3) The Respondent shall pay a sum of HK$64,000 per month to the Petitioner as interim maintenance for the two Children of the family until further order of the Court, to be backdated to the date of her application;

(4) Costs of and incidental to the Petitioner’s summons (including all costs reserved) shall be borne by the Respondent, to be taxed if not agreed;

(5) There shall be certificate for counsel for the Petitioner for both summonses;

(6) There shall be immediate taxation