JKH v. AH also known as AC LL

FCMC 279 / 2017

[2018] HKFC 58

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 279 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 Respondent wife for maintenance pending suit pursuant to section 3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the only child of the family, a little boy, L who was born on the XX January 2012 and is now 6 years of age, under section 5 of the same ordinance.

The main issues

2.  The main issue to be determined is how much should the husband pay to the wife for her interim provision and that of the child? The husband has offered to undertake to continue to pay for the child’s basic educational costs and all other ESF invoiced fees or other related expenses.  In addition, he currently pays interim interim maintenance of HK$7,500 per month pursuant to the court order dated the 10 April 2017 i.e. HK$3,000 per month for the wife and a further HK$4,500 per month for L. The wife for her part now seeks HK$31,000 per month in total for herself and the child, in addition to the undertakings set out above. She also asks that this sum be backdated to the 9 January 2017 which is when the divorce petition was issued.

Background to the litigation 

3.  The parties married on the XX February 2010 in Los Angeles and separated in December 2016. The divorce petition was issued by the husband very shortly after the separation on the 12 January 2017. At the same time he issued non molestation and ouster proceedings and an application for interim care and control of L. Both parties maintain that the other has been physically violent towards them. It is the wife’s case that the husband was physically and emotionally abusive towards her. Similarly the husband cites a number of incidences where he maintains that the wife was physically violent towards him. In any event the parties entered into mutual non molestation undertakings on the 6 February 2017 and they have lived separate and apart since December 2016, the wife first seeking refuge with L in a shelter.

4.  On the 3 April 2017 the wife issued a number of applications including an application for maintenance pending suit/interim maintenance (which was initially dealt with on an interim interim basis), an application for sole custody and care and control of L and leave not to disclose her residential address and contact details to the husband.

5.  As matters currently stand the petition is still defended, notwithstanding the fact that it is clear that the marriage is at an end and the parties have been separated for over 12 months. I would urge the parties to at least seek consensus on this aspect of the case before they return to court on the 3 August 2018.    

6.  In so far as the parties themselves are concerned, the husband is a 39 year old airline pilot and the wife is a 36 year old part time Flight Attendant. The husband also has an interest in climbing and mountaineering and he previously had a small limited company, which has since been struck off the Companies register. The husband is American and the wife is Chinese and her family are based in Taiwan. It is also of note that the wife is well educated and it is not disputed that she holds both an undergraduate and a Masters degree in education.

7.  The parties continue to be at loggerheads with respect to a number of different aspects of the case including on occasion the arrangements for L.

The law

Maintenance pending suit

8.  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.

9.  Reference should also be made to the Court of Appeal decision namely 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 L?

Increase in rent

10.  A lot of the wife’s case hung on a proposed increase in her rent. She is currently paying HK$11,000 per month for a small unit in Tung Chung. She says that she has been told that the Landlord intends to increase her rent to HK$15,000 per month at the end of her lease in May of this year. It is of note that no evidence was produced in that respect. In any event she wishes to move to Discovery Bay so that L can be closer both to his school i.e. X College and to his class mates, most of whom live in Discovery Bay. Some of the difficulty with the mother’s case however, was that it did not fully come up to proof. For example, she did not produce evidence of rentals close to X College and it soon became clear – and was acknowledged at such in court - that it would be possible to rent a small unit in Discovery Bay for less than the HK$20,000 per month claimed.

11.  The father for his part wishes the mother to continue to live in Tung Chung, which is where he lives. He does not accept the mother’s arguments in this respect and points out that both parties are currently on the school bus route for X College.

12.  At the end of the day it is a matter for each party to choose where they each wish to live. It is of note that the father is currently paying just over HK$16,000 per month for the mortgage instalments on his present flat. Although the mother did not produce any evidence in support of her case with respect to a raise in her rental costs, I nevertheless tend to accept what she says in this respect. I will therefore allow a sum of HK$15,000 per month for her rental and not the HK$20,000 per month claimed. I am of the view that if the mother chooses to live in Discovery Bay that she should be able to find a small unit for this sum. Alternatively, she can choose to stay where she is currently residing in Tung Chung.

13.  Mr Firmin argued that in addition to the increase in rent that the mother would also need HK$65,000 to cover an increased rental deposit and agency fees. In fact given that I am only allowing an increase of HK$4,000 per month, the amount needed for the rental deposit in addition to the current deposit sum is only HK$8,000. If she moves there may also be moving costs and agency fees to pay. I will allow HK$27,000 in that respect (i.e. HK$15,000 for the agency fees and HK$12,000 for removal costs) or HK$35,000 in total.

The mother’s expenses

14.  The mother sets out her expenses in her updated Form E as follows:

Part 4 Current Monthly Expenses

4.1 General

Item	Amount
Rent	11,000
Mortgage Instalments	N/A
Utilities (electricity, gas, rates, telephone & water)	1,600
Management fees	N/A
Food	6,000
Household expenses	500
Car expenses	N/A
Insurance premia	N/A
Domestic helper(s)	6,000
Others (specify)	N/A
Total monthly household expenses	HK$25,100

4.2 Personal

Item	Amount
Meals out of home	300
Transport	500
Clothing / Shoes	300
Personal grooming (Including haircut and cosmetics)	200
Entertainment / presents	200
Holiday	No holidays at present, given the lack of financial support from the Petitioner
Medical / Dental	200
Tax	167.16
Insurance premia	N/A
Interim maintenance	N/A
Contribution to parents	500
Dependent family members	N/A
Others (specify)	N/A
Total monthly personal expenses	HK$2,367.16

4.3 Children

Item	Amount
School fees	Paid for by the Petitioner, with the assistance of the education allowance provided by his employer
Extra tuition fees (and interest classes)	500
School books and stationery	100
Transport to school (not including school bus)	150
Medical /Dental	368
Extra Curricular Activities	Paid for by the Petitioner
Entertainment / presents	200
Holidays	No holidays at present, given the lack of financial support from the Petitioner
Clothing / Shoes	300
Insurance Premia	N/A
Lunches and pocket money	915
Other Transport	100
Child-minding fees	N/A
Uniform	100
Others (specify) School Fair / School Trip / PTA Fee / School Art Class Materials / Music / Sports / Art Try-Out Classes	300
Total monthly expenses for children	HK$3,033

Total monthly expenses (4.1+4.2+4.3)

HK$30,500.16

15.  Most of these expenses seem reasonable. I will up her rent to HK$15,000 per month and reduce the allowance for the domestic helper slightly to HK$5,000 per month. Thus her general expenses amount to approximately HK$28,000 per month. She has minimal personal expenses, but in any event she should be able to meet those expenses from her own income. Likewise, L’s actual expenses are low at just over HK$3,000 per month. As indicated above the husband is responsible for L’s direct educational expenses and he receives an educational allowance in that respect, which covers about 90% of the school fees.

The wife’s earning capacity

16.  The husband maintains that the wife has a much greater earning capacity than the c HK$14,000 – 15,000 per month that she currently receives, inclusive of the per diem being the allowance provided by the airline when she travels. Infact, her net income is closer to HK$12,000 per month. I accept that this is quite low and that she will need to maximize her earning capacity if she wishes to increase her standard of living and that of L. The husband says that she has taken this job for a variety of reasons including the fact that it means that she can travel to Taiwan on a frequent basis to see her family. I do not criticize the wife for this, if indeed that is the case. In the immediate to short term however I am proceeding on the basis that she is currently earning approximately HK$12,000 per month.

17.  It was not immediately clear what the husband’s current income is. Unfortunately, he did not provide an update of his income and outgoings in his affidavit evidence and in the interest of saving costs I had not ordered the parties to file updated Form E’s. Consequently, I asked for more information and that was provided as directed on the 29 March 2018. I did not give leave for the husband’s solicitors to file a further note in that respect and it was inappropriate for them to have done so without seeking further leave from the court. Consequently, I have not read this note as it is not for the parties to seek to further argue their case after the event and without giving the otherside an opportunity to respond.

18.  From the actual documents provided it seems that the husband has a base income, which fluctuates a little, of just under HK$83,000 per month. In addition, he receives other payments and allowances and his net income fluctuated during the three month period from December – February 2018 from HK$131,890 to HK$102,934 per month. According to his latest tax demand he had a taxable income for the year 2016/17 of HK$1,408,539 or HK$117,378 per month. This will have included the education allowance.

19.  On a broad brush basis therefore and if one relies simply on the wife’s net income of approximately HK$12,000 per month and the husband’s base salary of approximately HK$83,000, then the husband is earning just over 87% of the parties’ joint income and the wife earns the remainder. I will use this as a starting point when considering an appropriate amount for maintenance pending suit/interim maintenance going forward. In doing so I am cognizant of the husband’s undertaking as set out above.  

How much should the husband pay as interim maintenance for L?

20.  In so far as the wife’s general expenses are concerned I accept that these will amount to HK$28,000 per month as set out in paragraph 14   above. Of that 50% will be attributable to the wife as her general expenses – or HK$14,000 per month. Of the remainder the husband will be notionally responsible for 87% of these costs or HK$12,180 per month and the wife will be responsible for HK$1,820 per month.

21.  In so far as L’s actual expenses are concerned in the sum of approximately HK$3,000, the husband will similarly be responsible for HK$2,610 per month and the wife will be responsible for the remainder.

Can the husband afford to pay this sum?

22.  In total then it is suggested that the husband contribute just under HK$15,000 per month towards L’s expenses. The husband maintains that he cannot afford to pay more than he is currently paying. According to his Form E dated the 7 April 2017 – just over a year ago, the husband had the following outgoings:

Part 4 Current Monthly Expenses

4.1 General

Item	Amount
Rent (Government Rent, Government Rate)	670
Mortgage Instalments	16,169
Utilities (electricity, gas, rates, telephone & water)	1,588
Management fees	1,573
Food	2,470
Household expenses	590
Car expenses	3,760
Insurance premia	916
Domestic helper(s)	6,500
Others (specify): Home Maintenance	500
Total monthly household expenses	HK$34,736

4.2 Personal

Item	Amount
Meals out of home	2,270
Transport	890
Clothing / Shoes	950
Personal grooming (Including haircut and cosmetics)	550
Entertainment / presents	540
Holiday	760
Medical / Dental	330
Tax	15,707
Insurance premia	3,407
Interim maintenance	0
Contribution to parents	0
Dependent family members	0
Others (specify): Professional Development Retirement and Short-term Savings Business Investment	10,510 *   8,323 *   2,030 *
Total monthly personal expenses	HK$46,267

4.3 Children

Item	Amount
School fees	6,167
Extra tuition fees (and interest classes)	0
School books and stationery	110
Transport to school (not including school bus)	0
Medical /Dental	0
Extra Curicular Activities	650
Entertainment / presents	220
Holidays	750
Clothing / Shoes	510
Insurance Premia	580
Lunches and pocket money	130
Other Transport	940
Child-minding fees	0
Uniform	110
Others (specify): Toys and educational supplies	350
Total monthly expenses for children	HK$10,517

Total monthly expenses (4.1+4.2+4.3)

HK$91,520

23.  Just as with the wife I will cut down the cost of the husband’s domestic helper to HK$5,000 per month. In total then I accept that he has general expenses of approximately HK$33,000 per month. According to his last tax demand, his HK taxes amounted to just under HK$185,000 or just under HK$15,500 per month. I accept most of his other personal expenses save that it seems to me that in the short term it will not be possible for him to save for his retirement nor will it be possible to make other business investments. I will also reduce the amount that he pays for professional development to HK$5,000 per month. Thus I accept that he has personal expenses of approximately HK$36,000 inclusive of tax. I have not been taken to any definitive evidence in relation to his US taxes. In so far as L’s expenses are concerned I accept that there is a balance to pay for L’s school fees. In addition, I accept that there are other costs associated with caring for L. Thus according to the husband’s evidence he has outgoings of approximately HK$73,950 as follows:

Part 4 Current Monthly Expenses

4.1 General

Item	Amount
Rent (Government Rent, Government Rate)	670
Mortgage Instalments	16,169
Utilities (electricity, gas, rates, telephone & water)	1,588
Management fees	1,573
Food	2,470
Household expenses	590
Car expenses	3,760
Insurance premia	916
Domestic helper(s)	5,000
Others (specify): Home Maintenance	500
Total monthly household expenses	HK$33,236

4.2 Personal

Item	Amount
Meals out of home	2,270
Transport	890
Clothing / Shoes	950
Personal grooming (Including haircut and cosmetics)	550
Entertainment / presents	540
Holiday	760
Medical / Dental	330
Tax	15,500
Insurance premia	3,407
Interim maintenance	0
Contribution to parents	0
Dependent family members	0
Others (specify): Professional Development Retirement and Short-term Savings Business Investment	5,000    0    0
Total monthly personal expenses	HK$30,197

4.3 Children

Item	Amount
School fees	6,167 *
Extra tuition fees (and interest classes)	0
School books and stationery	110
Transport to school (not including school bus)	0
Medical /Dental	0
Extra Curicular Activities	650
Entertainment / presents	220
Holidays	750
Clothing / Shoes	510
Insurance Premia	580
Lunches and pocket money	130
Other Transport	940
Child-minding fees	0
Uniform	110
Others (specify): Toys and educational supplies	350
Total monthly expenses for children	HK$10,517

Total monthly expenses (4.1+4.2+4.3)

HK$91,520

24.  Thus even on the husband’s figures and without relying on his additional income, he has a surplus of approximately HK$9,000 per month. It seems to me that if one takes into account the husband’s actual income, notwithstanding his contribution towards L’s education fees and the other costs associated with his care, he should be able to contribute HK$15,000 (rounded up) per month towards his son’s expenses.

Should the husband contribute towards the wife’s expenses?

25.  At present the husband is contributing HK$3,000 per month towards the wife’s actual expenses. I do not intend to alter this sum. The wife has a net income of HK$12,000 per month. I accept that she has a greater earning capacity than this and that even in the short term she should be able to increase her salary a little, especially as she now has a full time domestic helper and L is in full day school. I accept that she will have expenses of just under HK$33,500 per month, of which the husband will be contributing HK$18,000 and paying for all of L’s educational costs. There is a shortfall of HK$3,500 per month plus the additional sum of HK$35,000 referred to in paragraph 13 above. In the wife’s affidavit she suggested that this sum be spread out over a 12-month period. If one were to take that approach she would require an additional sum of approximately HK$2,900 per month. It seems to me that it is within the wife’s current earning capacity to earn a further HK$6,400 per month, in addition to her actual income.         

26.  I will therefore make an order that going forward that the husband pay the HK$15,000 per month as interim maintenance for L and HK$3,000 per month as maintenance pending suit for the wife.

Should this sum be backdated?

27.  The wife asks that this sum be backdated to the date of the petition. Given that the husband has paid the interim interim maintenance as ordered and that much of the present application hangs on the mother’s plans to move, which is a future expense that has not yet materialized, I will not make that order. It seems that such an order would place an intolerable burden on the husband’s shoulders. 

Costs

28.  Neither party has been wholly successful here. However, given that it appears that the wife had no option but to make this application and that she is legally aided I shall nevertheless make an order nisi to be made absolute in 14 days’ time, that the husband shall pay half of the wife’s costs of the maintenance pending suit application on a party and party basis to be taxed if not agreed, the wife’s own costs to be taxed in accordance with Legal Aid Regulations.

Order

29.  Upon the Petitioner’s undertakings as set out in paragraph 2 above

   IT IS ORDERED THAT

1)   The Petitioner shall continue to pay maintenance pending suit to the Respondent for herself in the sum of HK$3,000 per month, the first payment to be made on the 1 May 2018 and thereafter to be paid on the 1st day of each succeeding month until further order.

2)   Order 3 contained in the court order dated the 10 April 2017 shall be varied to the extent that the Petitioner shall pay interim maintenance to the Respondent for the child of the family in the sum of HK$15,000 per month the first payment to be made on the 1 May 2018 and thereafter to be paid on the 1^st day of each succeeding month until further order.

3)   There shall be an order nisi to be made absolute in 14 days’ time that the Petitioner do pay half of the Respondent’s costs on a party and party basis to be taxed if not agreed. The Respondent’s own costs to be taxed in accordance with Legal Aid Regulations.

4)   The defended suit, Children’s Appointment and First Appointment hearing shall be adjourned to the 3 August 2018 at 9:30 am.

5)   Both parties do personally attend that hearing.