SJH v. AMS

FCMC 5963 / 2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5963 OF 2016

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JUDGMENT
(Interim Maintenance)

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Introduction

1.  This is an application by a petitioner mother for interim maintenance for the only child of the family, A, pursuant to section 5 Matrimonial Proceedings and Property Ordinance Cap 192. The mother does not seek maintenance pending suit for herself. However, she did originally seek an order backdating the maintenance for the child plus other extraneous payments. In the mother’s summons dated the 31 May she set out her claim as follows:

1.   The Respondent do forthwith pay to the Petitioner interim maintenance for the benefit of the child of the family, namely, AJS, a boy, born on XX November 2006 (“A”) at the rate of HK$31,017 per month or another amount as this Honourable Court deems fit until further Order and such maintenance to be backdated to July 2016;

2.   The Respondent do pay forthwith to the Petitioner the sum of HK$50,000 as reimbursement of costs incurred as a result of the Petitioner and A moving out of the Former Matrimonial Home in July 2016;

3.   The Respondent do pay forthwith to the Petitioner the sum of HK$48,000 being 50% of the deposit on the Former Matrimonial Home retained by the Respondent;

4.   The Respondent do pay forthwith the outstanding X School Fees;

2.  The mother’s application for interim maintenance was made on the 31 May 2017 and was done in anticipation of a fully litigated trial on relocation. The mother wished to return to the United Kingdom with A and the father initially resisted that application. Sensibly the parties were eventually able to compromise this issue. Consequently, the mother and A left Hong Kong for the UK shortly after the date of this hearing.

3.  In so far as this application is concerned the immediate difficulty is that neither party had a job as at the date of the hearing. Both parties have historically enjoyed good incomes, the father in the finance industry and the mother as a marketing and business development professional. However, the mother had resigned from her position in anticipation of the relocation and she said at the hearing that her intention was not to work initially in the UK, as her priority was to settle A. It is her intention to return to work in due course. The father for his part was made redundant on the 31 May 2017. I was told that he was looking for another job, but nothing had yet been confirmed.  

4.  Consequently both parties put forward slightly different but nonetheless pragmatic proposals, with a view to ensuring that each had funds available to them in the immediate to short term. These will be set out below. 

Background

5.  The parties married on the XX March 2005 and the mother moved out of the former matrimonial home with A on the 2 July 2016. Shortly prior to that the mother had issued divorce proceedings based on mild unreasonable behaviour particulars. The divorce petition is dated the 18 May 2016. The decree nisi was granted on the 16 August 2016. There is one child of the family, A, a boy who was born on the XX November 2006 and who will therefore shortly be 11 years of age.

6.  There have been a number of issues that have caused the parties to come to court on a fairly regular basis seeking assistance, with particular reference to access and the father’s alleged problems with alcohol. I do not intend to go into any of those issues here.

The law

7.  Applications of this nature are governed by section 5 Matrimonial Proceedings and Property Ordinance Cap 192 which states that the court may make orders requiring one party in a marriage to pay maintenance to the other, for the benefit of the children of the marriage:

“(a) before or on granting the decree of divorce …… or at any time thereafter”

8.  The only governing principle is that the court will make such order, as it considers reasonable.  Thus interim maintenance for a child is approached in exactly the same way as maintenance pending suit for adults.  Consequently, again, and as each side rightly acknowledges, applications such as this are approached on a broad-brush basis.  A detailed examination of the parties’ means will be left to a later date at a full ancillary relief hearing, that is, if there is no agreement in the meantime. Any over or under payment may be dealt with then.

9.  Regarding the principles that under pin an application such as this, paragraph 16.17 of Rayden, 18th edition, is also of some assistance:

“The court has an unfettered discretion to award such sum as it thinks reasonable. There is no hard and 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 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”.

Proposals

General

10.  The parties own a number of insurance/savings plans and it appears to be agreed that the Generali policy no #9XXXXXXX, which matures in December 2017 in any event, shall be liquidated with immediate effect. The parties differ on how these monies shall be utilized.

Mother’s proposal

11.  The mother proposes that the sum of GBP30,000 be put to one side from this fund in order to cover A’s school fees and related expenses for the next academic year and that this be accounted for. She also proposes that the outstanding amounts due to X be paid in the sum of approximately HK$185,000. The father removed the sum of GBP30,000 from a further savings account. The mother asks that a balancing sum of GBP30,000 be paid to her first and that a further sum of HK$90,000 being the rental deposit of the former matrimonial home also be paid to her. Thereafter she proposes that the balance should be split.

12.  In so far as maintenance for A is concerned, she originally proposed that the father contribute HK$31,017 per month, based on the Hong Kong estimates found in her Form E. In her counsel’s submission she subsequently suggested that he contribute GBP2,000 per month. In the event that the husband is not working she proposed that he contribute that sum from his share of the proceeds from the Generali fund. It was also suggested that both parties keep a record of how these funds are utilized generally and not only with reference to A’s school fees and related expenses.

13.  The mother also originally sought an order for the backdating of maintenance to July 2016, which is when she moved out of the former matrimonial home with A, based on the figure of HK$31,017 per month.  

Father’s proposal

14.  The father also proposed that the Generali fund be liquidated. He proposed paying from that:

a) A’s school fees for the next academic year;

b) the school bus fees;

c) the school uniform;

d) Agreed Extra-Curricular Activities; and

e) the monies due to X in the sum of approximately HK$185,000.

15.  In so far as A’s maintenance is concerned he proposed paying GBP1,400 per month. He also argued that the maintenance should not be backdated and that this issue should be considered at the final hearing/Financial Dispute Resolution hearing in the event that agreement cannot be reached in the meantime. He also proposed that the parties each receive HK$200,000 each and that the remainder of the funds from the Generali policy be held pending either final agreement or court order.    

Discussion

16.  There are a number of issues in this case which will need to be determined at a later date. In particular, the mother is claiming that the father has dissipated joint income and that he has spent excessively on bars in Hong Kong. She will be asking that these sums be “added back” later. The father for his part accuses the mother of deliberately making herself illiquid and appears to be putting forward a case on financial misconduct. Given that and the present financial situation of the parties I accept that it would be sensible to put the issue of the backdating of the maintenance for A to one side so that this issue may likewise be considered fully at a later stage in the proceedings.

17.  In so far as the Generali policy is concerned I accept that this should be liquidated with immediate effect. The current value is estimated at GBP233,500. Of that sum I agree that GBP30,000 should be put to one side for A’s school fees, school bus fees, school uniform and agreed ECA’s. It is directed that this sum shall be forwarded to the mother so that she is able to meet these expenses for A for the next academic year. The mother shall keep an account of how these funds are spent.

18.  In so far as X’s outstanding school fees are concerned, although there may be an argument about who is responsible for each part of the outstanding sum due, I agree that on a broad brush basis it would be sensible to ensure that this sum is also paid. It is noted that the parties have agreed to this in any event. Consequently, it is also directed that the sum of approximately HK$185,000 be paid to X from the Generali fund.

19.  I also accept that the mother should receive in addition the sum of GBP30,000 from this fund and thereafter that the remainder be split between the parties on a 50:50 basis. This should provide each party with a financial cushion pending the FDR hearing in the first instance. A direction to this effect is to be included in the court order. It seems to me that this option is preferable to the father’s alternative proposal which might have meant that the mother was left with no visible means of support once the HK$200,000 had been spent.   

20.  In so far as the maintenance for A is concerned, I accept that the mother was only able to provide a very rough estimate of her anticipated expenses in the United Kingdom. I will though expect her to keep a detailed record going forward. Generally speaking, I accept the figures that have been provided are reasonable and I was concerned by the father’s attempts to cut some of these down. For example, the suggestion that the mother would only be paying GBP375 per month on food seemed a little unlikely. Consequently, I will accept the mother’s proposal that the father contribute GBP2,000 per month towards A’s costs with effect from the 1 September 2017.    

Costs

21.  I can see no reason why costs should not follow the event in this instance. The mother appears to have had no alternative but to make an application to the court and although she has not achieved everything that she initially sought, she has been largely successful overall. I shall therefore make an order nisi that the father do pay the costs of and occasioned by this application on a party and party basis to be taxed if not agreed such order to be made absolute in 14 days’ time.

22.  Given the above I will therefore make an order as follows:

1)   The Respondent father shall pay the Petitioner mother interim maintenance for the child of the family in the sum of GBP2,000 per month the first payment to be backdated to the 1^st September 2017 and thereafter to be paid on the first day of each succeeding month until further order.

2)   There shall be an order nisi that the father do pay the mother’s costs of and occasioned by this application to be taxed if not agreed on a party and party basis, to be made absolute in 14 days’ time.

23.  It is further directed that the Generali policy no #9XXXXXXX be liquidated with immediate effect and that payments be made from those funds as set out above.