WNW v. LH

FCMC 11350 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11350 OF 2012

----------------------------

----------------------------------------------------------------

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

----------------------------------------------------------------

Introduction

1.  This is an application by a Petitioner wife for maintenance pending suit pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the only child of the family, a little girl who was born in May 2009 under s.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 mortgage on the former matrimonial home, utility bills including management fees, government rent and rates, the child’s school fees and all school/educational related expenses including the fees for her extracurricular activities. In addition he offers HK$6,000 per month. The wife for her part seeks HK$11,000 per month for herself and the child in addition to the undertakings set out above. She also asks that this sum be backdated to August 2012 which is when the divorce petition was issued.

Background 

3.  The parties married in November 2008 and separated in May 2012. This was then a relatively short marriage. The divorce petition was issued on the 6 August 2012 and was initially defended. Sensibly the parties agreed to compromise the divorce itself. By virtue of a court order dated the 29 October 2012 that aspect of the case has since proceeded on an undefended basis. Unfortunately there have been other issues including disagreements with respect to the arrangements for the parties’ daughter.

4.  The husband is a 30 year old airline pilot and the mother is presently a 29 year old full time housewife. She previously worked in several different capacities, but has not worked since the birth of the child in May 2009.

5.  The parties have been at loggerheads with respect to a number of different aspects of the case, which have led to the legal costs being totally disproportionate to the issues in dispute. It is suggested that the parties give proper consideration to this. This is a case that can and should be settled.

The law

Maintenance pending suit

6.  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.

7.  The wife’s solicitor has referred to the Court of Appeal case 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.

8.  In so far as this particular case is concerned the reference to the marital standard of living previously enjoyed by the parties and the ability of the husband to pay is particularly pertinent. 

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

9.  In essence the wife’s case is that the husband should continue to pay HK$11,000 per month because that is what he had been paying prior to leaving the former matrimonial home. She complains that he simply stopped paying anything at all from May until October 2012 whereupon he began paying HK$6,000 per month.

10.  The husband for his part maintains that the HK$11,000 per month included costs associated with him also living at the former matrimonial home; he accuses the wife’s expenses of being inflated and maintains that HK$6,000 per month is a more reasonable figure. Lastly he says that he cannot afford to pay the wife HK$11,000 per month especially given that he is now paying for his own additional rental, HK$20,000 per month for legal costs and other additional expenses for the daughter when she is with him.

11.  I have some difficulty with much of what the husband has said. Although there is probably some truth in the notion that the sum of HK$11,000 per month originally covered the costs associated with all three members of the family living at the former matrimonial home, I accept that on a broad brush basis that this is a good place to start. The wife points out, quite reasonably it seems to me, that this sum does not include the extra monies that the husband would spend on her and the child on a regular basis, including the cost of meals out and other extraneous expenses for clothes, toys, monies spent at Christmas and Chinese New Year etc. Indeed even on the husband’s own case it seems that the margins in dispute are very small. In his lawyers submissions he argues as follows:

18. The husband used to pay HK$11,000 to the wife prior to the separation.  It is however misleading for the wife to submit that it is the living standard enjoyed by her and PT (the child) during the marriage as clearly HK$11,000 was the amount paid by the husband as the household expenses for three persons including the husband himself.

19. The wife mainly relies on the monthly maintenance from the husband (depositing into her HSBC account XXX-X-XXXXXX (“the HSBC Account”)) to maintain the household expenses.  The withdrawals from the wife’s HSBC Account generally represent the actual monthly expenses for the family.  A copy of the wife’s HSBC Account passbook between 24 May 2011 and 4 July 2012 which has been exhibited to her Form E is attached hereto again as Appendix II for the Court’s easy reference.  Together with a copy of the wife’s HSBC Account passbook from 5 July 2012 onwards (HB p.90-94), it shows the full picture of the wife’s spending both before and after the separation.

20. A detailed examination of the wife’s HSBC Account reveals that the monthly expenses for the whole family including the husband is less that HK$10,000 prior to the separation whereas the monthly expenses for the wife and PT (the child) (excluding the husband) after separation was more than HK$11,000.

21. The husband believes the actual expenses prior to the separation reflect the true picture of the standard of living enjoyed by the wife and PT (the child).

12.  The husband does not appear to have included any additional payments that he may have made for or on behalf of the wife and child, whilst they were living under the same roof, into the equation. I also find the suggestion that the wife’s expenses are inflated to be without merit. The breakdown of the wife’s expenses show a fairly minimal level of expenditure. This is especially so when compared to the husband, who is paying a great deal more on himself. He is also paying HK$8,000 per month to his parents.

13.  Lastly I do not accept that the husband cannot afford to presently pay the wife HK$11,000 per month – especially given the fact that his base salary has now gone up by HK$11,180 per month and that he is receiving a fixed allowance of a further HK$12,800 per month. This took effect from the 1 January 2013. The husband made great play of the fact that despite what he had said in his Form E about other additional payments including a holiday pay adjustment, hourly duty pay, outport allowance and bonus, that these were not guaranteed or fixed sums and therefore should not be included. I accept his assertion that he may not receive a bonus this year. However, even if payments are not guaranteed or fixed it does not mean that the court should simply ignore them. Consequently I stood the matter down so that the husband could calculate what he says is his likely gross monthly salary. I was subsequently informed that on the husband’s case he should be receiving a figure of just under HK$92,000 per month. It is accepted that the husband was earning less than this prior to the 1 January 2013 and that his finances were probably a little tighter immediately following the separation, notwithstanding his part time job as a Traffic Controller Simulator Operator.      

14.  Even if I were to accept the husband’s submissions with respect to his outgoings (which for the avoidance of doubt I do not) and putting the husband’s case at its highest, his outgoings would be just under HK$76,500 per month, including those expenses that he has undertaken to pay for and on behalf of the wife and daughter. Clearly he can now afford to pay HK$11,000 per month.

15.  I will therefore make an order that going forward that the husband pay the HK$11,000 per month sought – HK$6,000 per month as maintenance for the wife and HK$5,000 per month as maintenance for the child.

Should this sum be backdated?

16.  At the 11^th hour the husband tried to introduce new evidence in his solicitor’s submissions. He claimed that the sum of HK$56,000 paid by him to the wife’s parents on the 2 May 2012 was meant to be for the wife’s maintenance. Although reference had been made to this sum of money before nowhere had this been alleged previously – not in the husband’s affidavit, his Form E nor it would seem in inter solicitor correspondence. The wife had not had an opportunity to properly respond to this allegation. I therefore attach very little weight to this statement at this juncture.

17.  The husband paid nothing at all to the wife from May 2012, other than this alleged sum of HK$56,000, until October 2012 when he started to pay HK$6,000 per month. He should have done so. But I am cognizant of the fact that the husband’s financial situation would have been much tighter at that stage. Notwithstanding that he should have paid something. I will therefore accept that he should have paid at least HK$6,000 per month from August – December 2012. Maintenance payments of HK$6,000 will therefore be backdated to August 2012, which is when the divorce petition was issued. Thus the sum of HK$12,000 will be paid to cover the period for August and September 2012 (HK$6,000 x 2) and a further HK$20,000 will be paid to cover the period from January to April 2013 (HK$5,000 x 4), following the husband’s pay rise. Thus in total the husband shall pay an additional HK$32,000 for the maintenance of the wife and the child, such sum to be paid by instalments of HK$4,000 per month for 8 months or until payment is made in full. Even on the husband’s own figures, which as I have said I do not necessarily accept, he should be able to pay this sum.  

Costs

18.  Given that the wife has been more successful than not, that she has had no option but to make this application and that she is legally aided I shall order that the husband shall pay the wife’s costs 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

19.  Upon the Respondent’s undertakings as set out in paragraph 2 above

1) The Respondent shall pay maintenance pending suit to the Petitioner for herself in the sum of HK$6,000 per month, the first payment to be made on the 1 May 2013 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 in the sum of HK$5,000 per month the first payment to be made on the 1 May 2013 and thereafter to be paid on the 1^st day of each succeeding month until further order.

3) The Respondent shall pay the sum of HK$32,000 as back payments for maintenance by instalments of HK$4,000 per month with effect from the 1 May 2013 for the next 8 months or until payment is made in full.

4) The Respondent do pay the Petitioner’s costs on a party and party basis to be taxed if not agreed. The Petitioner’s own   costs to be taxed in accordance with Legal Aid Regulations.