TKY v. KPTP

FCMC 12517/ 2021

[2022] HKFC 281

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12517 OF 2021

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BETWEEN

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

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Introduction

1.  According to the Summons taken out by the Petitioner wife on 1 September 2022 and amended on 7 November 2022, she is making an application for maintenance pending suit (“MPS”) pursuant to section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”).

2.  The contents of her affirmation filed on 1 September 2022, however reflected that she is indeed applying for interim maintenance for the only child of the family, a boy, now aged 5, under section 5 of the MPPO.

3.  The wife now seeks HK$49,570 per month as the child’s interim maintenance. The wife also asks the court to backdate the payment from 1 January 2022.

4.  The wife’s counsel submits that the wife would accept the husband to bear 85% of the requested sum, i.e. HK$42,135 as interim maintenance, as the husband acknowledges that he had contributed to 85% of the household expenses during the marriage and 90% of the child’s clothing, toys and daily necessities before separation.

Background

5.  The wife is now 39 and is a construction consultant. The husband is now 42 and is a civil engineer. They were married in November 2016 and separated in December 2021.

6.  On 22 September 2022, by consent of the parties, His Honour Judge S. Lo granted joint custody to both the wife and the husband, care and control to the wife with defined access to the husband. The husband is ordered to pay HK$15,000 as interim interim maintenance of the child from 1 October 2022.

The issues

7.  The issues are these:

(a) How much interim maintenance should the husband be ordered to pay for the child?

(b) Should this sum be backdated at all?

The law

Interim maintenance

8.  Section 5 of the MPPO states that maintenance for children can be ordered either before or after the granting of the decree for divorce. The court shall adopt the same approach as when considering an application for maintenance pending suit under section 3 of the MPPO.

9.  In HJFG v KCY [2012] 1 HKLRD 95, Hartmann JA, at paragraphs 37 and 38 of the judgment, gave a succinct summary of the law in this area by referring to the judgment of Mostyn QC, sitting then as a Deputy Judge of the High Court in England, in TL v ML [2006] 1 FLR 1263, at 1289.

10.  Consequently, the overriding considerations for such applications are reasonableness and fairness. In order to achieve these objectives, the court needs to look to the needs of the child and the ability of the parents to pay from a general perspective only. As far as possible the court should try to look at the reality of the situation, as opposed to the bare assertions made by one or other of the parties. See: BC v MSH (also known as H, MSO), [2021] HKFC 74 at [9].

11.  Applications are approached on a broad-brush basis. If there is any overpayment or underpayment, normally it can be rectified at the ancillary relief hearing.

The wife’s proposal

12.  The wife submits that the husband is earning a monthly income of HK$93,751 on average, therefore he certainly has the ability to pay HK$42,135 as interim maintenance.

13.  The wife says since the parties separated in December 2021, the husband has failed to pay any periodical payment. As at the date of the filing of her Form E on 31 January 2022, the monthly expenditure of the child is in the total sum of HK$55,260. After deducting her share from the general expenses, and adjusting for various expenses items, mainly the difference in extra tuition fees, the costs of raising the child is HK$49,570 per month.

The husband’s proposal

14.  According to the husband’s affirmation filed on 20 October 2022, he says throughout the marriage, he was responsible for 70% to 85% of the overall household expenses. He is now 100% responsible for mortgage repayments of the matrimonial property.

15.  The husband criticises the wife for having over exaggerated the child’s financial needs. He proposes to share the child’s expenses on 6:4 ratio, as he earns a monthly income of HK$82,500, while the wife earns $53,380 per month.

16.  The husband offers to pay HK$10,784.50 as interim maintenance.

How much interim maintenance should the husband be ordered to pay for the child?

Standard of living

17.  I find on the totality of evidence that the living standard of this family in Hong Kong is above an average working class standard, far from being luxurious.

18.  It is trite that when a marriage breaks down and the parties begin to live in two separate households it is not possible, generally speaking, to maintain the same standard of living as before. There has to be, of necessity, some form of adjustment. This case is no exception.

The child’s general expenses and personal expenses

19.  The wife in support of her position says the child requires HK$46,500 before September 2022 and HK$49,570 from September 2022 onwards as interim maintenance, she states, inter alia, as follows:

Child

General expenses	Amount (HK$)	The husband’s objections and proposed amount (HK$)
Rent	17,300	4,325 only, as the property is occupied by 4 persons, i.e. the wife, the child, maternal grandmother and the domestic helper.
Utilities	2,000	500, as the property is occupied by 4 persons
Food	5,000	4,250 instead of 7,000 as proposed by the wife. The child’s portion should be 1,062.50.
Household expenses	2,000
Domestic helper	7,000	6,000, since the domestic helper serves three persons, the child’s portion should be 2,000
Helper’s expenses when working for the family	800	The sum of 800 should be divided by 3, the child’s portion should be $266.66
Sub-total	34,100	8,154.16
Personal expenses
School fees	4,420 From September 2022, 4,640	4,420
Extra tuition fees	1,700 From September 2022, 4,770	1,700
School books and stationary	1,500	1,000
Transport to school (including school bus)	1,800	1,800
Medical/Dental	100	100
Extra-Curricular Activities	300	300
Entertainment / Presents	4,000	Nil
Holidays	4,000	Nil
Clothing/shoes	1,000	Nil
Insurance premia	246	Nil
Other transport	600	Nil
Uniform	1,100	100
Miscellaneous (formula, diaper, masks)	400	300
Sub-total:	21,166 From September 2022: 24,456	9,720
Total	55,266 From September 2022: 58,556	17,874.16

20.  As the child’s accommodation costs are concerned, I accept the wife’s case that the maternal grandmother does not reside in the property. The Social Welfare Report also did not state that the maternal grandmother resided in the property. I consider a fair approach is to divide the general expenses by 2 instead of 3 as proposed by the wife.

21.  As for the salary of the domestic helper, I hold the view that the domestic helper needs to spend substantial portion of her working time in taking care of the child, yet she also provides her service to the wife, I consider that the wife should bear 1/4 of the domestic helper salary as her general expenses.

22.  The wife entered into the tenancy of the property on 27 November 2021. The husband only paid interim interim maintenance from 1 October 2022. In such circumstances, this order shall be backdated to 1 January 2022.

23.  Having considered the previous standard of living of the parties, I hold the view that some of the claimed expenses are excessive for a child in the age of 5, hence I make some downward adjustments accordingly.

24.  Doing the best I can and taking a broad brush approach, I assess the child’s needs as follows:

General expenses	Amount (HK$)
Rent	8,650
Utilities	1,000
Food	2,000
Household expenses	500
Domestic helper	5,250 (being ¾ of 7,000)
Helper’s expenses when working for the family	600
Sub-total	18,000
Personal expenses
School fees	4,420 From September 2022: 4,640
Extra tuition fees	1,700 From September 2022, 4,770
School books and stationary	1,500
Transport to school (including school bus)	1,800
Medical/Dental	100
Extra-Curricular Activities	300
Entertainment / Presents	I will only allow 1,000 for these items in total.
Holidays
Clothing/shoes	500
Insurance premia	246
Other transport	300
Uniform	500
Miscellaneous (formula, diaper, masks)	300
Sub-total:	12,666 From September 2022: 15,956
Total	30,666 (say 30,700) From September 2022: 33,956 (say 34,000)

The wife’s earning capacity

25.  The wife is a construction consultant and is earning a monthly income of $53,380 (after deduction of MPF). According to her Form E filed on 31 January 2022, she has HK$1,542,837 in her bank accounts.

26.  The wife claims that her monthly general and personal expenses is HK$74,100, however her general expenses should be reduced by half. Since the wife does not ask for MPS, I assume that she currently earns enough and has sufficient assets to cover her own expenses.

The husband’s ability to pay

27.  The husband earns a monthly income of HK$82,500 (after deduction of MPF) and according to his Form E filed on 2 April 2022, he has HK$2,310,104.34 in his bank accounts.

28.  In his Form E, he states that his personal and general expenses are HK$104,531.56, of which he included HK$7,500 as the domestic helper expenses.

29.  On the face of it, his monthly income is unable to cover his alleged monthly expenses. However, it is not the husband’s case that he has no ability to pay. In any event the court notes that the husband has other financial resources at his disposal, including some cash, shares and Rolex watches.

Should the interim maintenance be backdated?

30.  As indicated above I am of the view that the interim maintenance should be backdated.

Should the parties each contribute towards the child’s expenses?

31.  It is not in dispute that the husband was responsible for paying initially 70% to 85% for the overall household expenses and the husband and his parents have been paying not less than 90% of the child’s clothing, toys and daily necessities. The wife therefore consider that the husband should responsible for 85% of the child expenses.

32.  I consider that given the parties’ respective financial position, the wife should also contribute to the expenses of the child on a 2:8 bases, i.e. the wife needs to bear HK$6,140 of the child’s expenses, while the husband bears HK$24,560. From September 2022, the wife needs to bear HK$6,800, while the husband bears HK$27,200.

Costs

33.  Neither party can be said to have entirely won nor entirely lost in this application, I have considered the husband’s general approach to this application and the fact that the wife really had no alternative but to seek the assistance of the court.

34.  I will make an order nisi to be made absolute in 14 days’ time that the husband do pay the wife’s costs of this application on a party and party basis to be taxed if not agreed. There is no certificate for counsel in view of the simple nature of this application.

Conclusion

35.  Consequently, I order as follows:

(1) The husband shall pay interim maintenance to the wife for the child of the family, in the sum of HK$24,560 per month, the first payment to be backdated to 1 January 2022 and thereafter on a monthly basis until 31 August 2022.

(2) The husband shall pay interim maintenance to the wife for the child of the family, in the sum of HK$27,200 per month, from 1 September 2022 and thereafter such sum to be paid on the 1st day of each succeeding month until further order of the court.

(3) There shall be an order nisi to be made absolute in 14 days’ time that the husband do pay the wife’s costs of this application (with no certificate for counsel), such costs to be taxed if not agreed on a party and party basis.

(4) For the avoidance of doubt, the costs order made by Deputy District Judge J. Cheung on 16 November 2022 do stand.