MWK v. HYK

FCMC 5989/2021

[2022] HKFC 69

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 5989 OF 2021

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JUDGMENT

(Maintenance Pending Suit and interim maintenance)

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Introduction

1.  The petitioner (“the wife”) applies for maintenance pending suit (“MPS”) and interim maintenance for two children of the family (who are now age 14 and 5) pursuant to section 3 and section 5 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“the MPPO”).

The application

2.  The wife originally sought HK$20,000 MPS and HK$55,000 interim maintenance for both children in her summons filed on 30 August 2021, subsequent to this, she changed her mind by elevating the amount of MPS for herself to HK$49,000 in her amended summons filed on 3 December 2021. The amount of interim maintenance remains the same.

3.  In this application, the wife also seeks an order (i) to reside in the matrimonial home with the children and (ii) the respondent (“the husband”) to pay monthly mortgage payments promptly until determination of the ancillary relief.

4.  The issue here is to decide on the quantum of MPS for the wife and interim maintenance for the children; and also on the arrangement on accommodation.

Background

5.  The husband and wife are in the early 40s who had worked in a husband’s family-owned company for some time before their marriage on 16 June 2007. They have two boys, now age 14 and 5; the elder son is studying in a direct subsidy secondary school whilst the younger son (with Aarksog syndrome[1]) is studying in an international kindergarten. On 30 August 2021, Deputy District Judge R. Chow granted joint custody of children to both the wife and husband; care and control to the wife; reasonable access (with some defined access) to the husband.

6.  The family has been living in a property owned by the husband located in a luxurious area in Shatin (the matrimonial home). The husband claimed in his Form E[2] that the matrimonial home belongs to his mother (“Ms K”) which he had held on trust for. As at this application, I am given to understand the family are still living under the same roof.

7.  Since last year, the wife says the husband stayed out for a number of nights during the week. At a time around 1 June 2021, the husband had begun to sleep on the sofa. The marriage has broken down following the wife’s discovery of the husband’s infidelity. On 18 June 2021, the wife filed a petition for divorce on ground of unreasonable behavior. The marriage lasted for 14 years. The husband chose not to defend in the main suit, as at date of this judgment, decree nisi has not been granted yet.

8.  In respect of career, the parties had worked in the husband’s family-owned company carrying on business in high-end and high-tech healthcare products (“AL Company”). The ownership of AL Company was largely belonged to the husband’s family, seemingly in the annual return of AL Company filed on 14 June 2021, the husband himself and his mother, Ms K are having 11% and 39% shareholding (total of 50%) respectively. The husband is also a director of the same company receiving an income of HK$40,850 per month. Without evidence to identify the relationship of both the husband and Ms K with other directors, I tend to agree the husband and Ms K have at least significant control of the said company.

9.  The wife was then a business manager of AL Company earning $33,000 per month, nonetheless, her employment was terminated by AL Company shortly after she had filed this petition. She became unemployed for a month or so and after that, she was able to find a job with a beauty products company earning HK$28,000 per month. Later the day, in September 2021, she had found a more gainful job with a non-governmental organization earning HK$39,360 per month.

10.  The wife was unsettled not only because her job was terminated by AL Company, she complained her expenses (and also the children’s) were not duly paid by the husband which she and the children had been enjoying. She was embarrassed to face the boys’ school chasing her for outstanding school fees. The wife was particularly concern of the payment of children expenses when her monthly income could not make ends meet. In one incident around December 2021, she discovered she was deprived of using her American Express credit card (provided by the husband) to pay for purchases. The wife for her part says she needs immediate financial support from the husband.

11.  On 25 November 2021, Deputy District Judge R. Chow ordered the husband to pay HK$35,000 interim interim maintenance for the children (i.e. $17,500 each) commencing on 3 December 2021 on a monthly basis.

12.  It is the husband’s case that he agreed to pay for the children’s expenses but not the wife because he says the wife has a stable income with monthly income higher what she had earn previously in AL Company. The husband had more than once confirmed in his affirmations of this application that the children’s needs will be taking care of, I tend to accept this is what he has had in mind.

13.  It seems the parties were able to keep a comfortable but not overly lavish lifestyle during their marriage with resources mainly from the paternal family. It transpires in the husband’s Form E that apart from his fixed salary of HK$40,850, he has been enjoying other tangible income from his mother, Ms K who has continuously paying the mortgage payments of the matrimonial home and apparently all expenses of the children including school fees.

14.  What the wife has stated somehow tallied with husband’s evidence, she specifically omitted in Part 4 of her Form E (i) the mortgage payments in general expenses; and (ii) the amount of school fees/tuition fees for the children. She was only required to pay for the children’s other expenses (transport, medical/dental, extracurricular activities, entertainment and clothing) in an amount of HK$11,350 per month.

15.  In other words, at least the major expenses of the mortgage payments of the matrimonial home and school fees of the children were being taken care of by the paternal family, very likely than not, by Ms K, the husband’s mother during their marriage.

The law

16.  The law is trite. In this MPS application, the wife has the burden to prove her financial needs which must be immediate, reasonable, and of a recurring nature. Secondly, she has the onus to prove the husband’s ability to pay what she has asked for. The Court is to take a broad brush approach, not be required to look into the detailed finances of the parties.

17.  The relevant legislation is stipulated in section 3 of the MPPO,

".... 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 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."

18.  The factors to be considered by the Court in respect of a MPS application has been summarized by HHJ B Chan in C v F [2006] HKFLR 41 at para 14:

“Although the sole statutory guideline in considering maintenance pending suit is that the award shall 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.”

19.  It is trite law that the proper approach to MPS is set out by the Hong Kong Case presided by Hartmann JA in HJFG v KCY [2012] 1 HKLRD 95 at paragraphs 37 and 38:

“37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it.

For present purposes, it is sufficient to cite the relevant principles without citing the judge's reference to the source of those principles:

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 maintenance pending suit application there should be a specific maintenance budget which 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.

38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a 'broad brush' basis. ”

My view

Generally and evidence to be considered in this application

20.  For reason a broad brush approach will be adopted in this MPS application, all evidence contained in parties’ affirmations, Form Es and answers to questionnaires will be canvassed. For avoidance of doubt, written submissions of either parties without evidential basis will not be considered.

21.  With such broad brush approach, the court’s duty is to determine what is reasonable and fair in the circumstance and not to embark on detailed investigation on the parties’ financial means. It is appropriate to err in favour of the wife when overpayments can be adjusted at time of the ancillary relief hearing.

Accommodation needs

22.  I first deal with this item. The wife seeks an order to “allow her and the children to stay in the matrimonial home” until determination of the ancillary relief of this petition. In revisiting section 3 and section 5 of the MPPO, the court is empowered to grant order of periodic payment and/or lump sum to the party applying for MPS and to the children. In other words, the wife’s wish to maintain status quo by staying in the matrimonial home with the children is beyond the ambit of section 3 and section 5 of MPPO.

23.  To solve the problem, as the wife has been granted care and control of both children, she would have to take care of both of them anyway. In absence of alternative accommodation plan proposed by either parties, I suggest both of them to decide on an arrangement by consent and to seek appropriate order by way of an undertaking in the forthcoming 1^st Appointment hearing on 30 June 2022.

How much should the husband pay to the wife as MPS and interim maintenance for the children?

The reasonable needs of the wife

24.  In support of this application, the wife stated in Part 4 of her Form E (filed on 11 October 2011) under current monthly expenses – general as follows:

Item	Amount
Utilities	$4,000
Management fees	$4,400
Food	$8,000
Other: petitioner’s mother for taking care of the children	$12,000
Total monthly household expenses:	$28,400

25.  In respect of personal expenses, she stated as follows:

Item	Amount
Meals out of home	$2,000
Transport	$2,000
Clothing / shoes	$150,000 per year
Personal grooming	$20,000 per year
Entertainment	$10,000 per year
Medical/dental	$1,000 per year
Tax	$38,000 per year
Insurance premia	$6,000 per year
Contribution to parents	$10,000 per year
Total monthly personal expenses:	$19,583.33[3] ($23,583.33)

26.  The aggregate sum of the above (HK$28,400 + HK$23,583.33) is HK$51,983.33. By the time of this matter came for paper disposal, the wife was in receipt of a monthly income of HK$39,360. I shall take the wife’s case as she needs more or less HK10,000 to cover her other expenses.

27.  However, the wife failed to discharge her burden to demonstrate her needs. The quantum of her needs (general and personal) in Form E are inconsistent with the amount stated both her two affirmations in support of MPS. In her 1^st affirmation filed on 30 August 2021, she says the aggregate expenses of herself and the children is HK$146,608[4] which is precariously more than what she has stated in her Form E. Subsequently on 3 December 2021, in her supplemental affirmation, she claimed a very different sum of HK$49,000 which I cannot see how it could be arrived at. Even if the wife’s change of stance appears to be premised on the husband’s conduct of delaying paying maintenance to herself and the children, she should have put forward proper justification on the amount of MPS sought. Owing to this, at this stage, I prefer to accept the amount of expenses stated in her Form E as her expenses.

28.  Secondly, I do not see the wife could establish as much as HK$49,000 per month. The general household expenses should be shared between all persons living in the household and at least, sum should be shared by herself and both children. The respective share shall be (HK$28,400 ÷ 3) HK$9,466.70. The wife’s best case is therefore (HK$9,466.70 + HK23,583.33) HK$33,050.03. I am satisfied the wife has funds to cover the expenses from her monthly salary and thus MPS for her is unnecessary.

29.  Apart from this, the husband categorically argued he should not be responsible for the payment of HK$12,000 per month to his mother in law (the wife’s mother) solely for taking care of the children. With assistance of a domestic helper, most of the daily needs of the children are well handled. The wife argued on the other hand by saying the husband was far from a hands-on parent. It is always the wife’s mother who has been paying attention to the children, her assistance cannot be replaced solely by a domestic helper.

30.  Somehow I tend to agree with the wife here. The younger son is one with special needs, without full medical evidence before me, the wife’s mother by giving her helping hand is of value. On a broad brush manner, I adopt the sum of HK$12,000 put forward by the wife. This is meant to maintain stability of the children’s daily living, in event I have erred in favour to the wife, any overpayment will be adjusted at final determination of ancillary relief.

The children’s general expenses & direct expenses

31.  The wife stated the children’s expenses in her Form E as follows, as I see them, the expenses seem very reasonable.

Item	Amount
Transport to school	$3,700
Dental/medical	$3,000 per year
Extracurricular activities	$3,900
Entertainment/presents	$2,500
Clothing/shoes	$1,000
Total monthly children expenses:	$11,350

32.  Apart from the table of children’s expenses above, general expenses in sum of (HK$9,466.70 x 2) HK$18,933.40 should be added to the expenses of both children.

33.  The wife asserts in her supplemental affirmation she was the one to submit an autopay debit authorization with the school(s) for settlement of school fees. I see this is practicable and acceptable when the wife is granted with care and control of both children. The wife says the amount of school fees for the elder son and the younger son in sum of HK$10,116 and HK$8,500 respectively making a total of HK$18,616.

34.  In other words, children expenses (including school fees) shall be HK$18,933.40 + HK$11,350 + HK$18,616 = HK$48,899.40 and to be precise, HK$24,449.70 per child. I shall round up the figure to HK$48,900 for both children (and HK$24,450 per child) accordingly.

Husband’s ability to pay

35.  In the husband’s affirmation, he stated all along he is the one maintaining the children financially, whether on his own or with the assistance from the paternal family, he will and shall continue to maintain the children currently arranged[5]. The husband’s willingness to pay has demonstrated his ability to do so, I am satisfied he has means to pay more than HK$35,000 interim interim children maintenance.

36.  On evidence, the husband is a shareholder holder of AL Company, he is also the registered owner of the matrimonial home. The family (prior to petition) was provided to live in the matrimonial home with all children expenses (including school fees) were shouldered by the paternal grandmother, Ms K. In other words, Ms K’s financial support shall be considered as part of the husband’s resources, his monthly income HK$40,850 derived from AL Company is nowhere a real pointer. In this MPS application, I should avoid detailed investigation of the husband’s financial ability, I try not to mention here whether the husband’s Form E was deficient or whether he has fully disclosed his financial status, but at least, I am certain the husband must have more than sufficient means to pay interim maintenance to both children.

37.  I recall the husband was only ordered to pay interim interim maintenance for both children in sum of HK$35,000 per month. I see no reason the husband should not make up the shortfall of the amount as decided above accordingly and such sum shall be raised to HK$48,900.

Costs

38.  Neither party has been wholly successful here, I accept the wife has financial difficulty after commencing this petition which bring her to proceed with this application. I shall exercise my discretion to make an order nisi to be made absolute in 28 days’ time in absence of an inter parte summons to vary, that the husband do pay the wife’s costs of her summons and amended summons respectively filed 30 August 2021 and 3 December 2021 on a party and party basis, to be taxed if not agreed.

Orders

39.  With reason of the foregoing, I make the following orders:

(i)  Paragraphs 1 and 3 of the petitioner’s (the wife’s) summons filed on 3 December 2021 be dismissed.

(ii)  The respondent (the husband) do pay the wife (the petitioner) interim maintenance of two children of the family in sum of HK$48,900 (i.e. HK$24,450 per child) from the 1^st day of each calendar month commencing from 1 May 2022 and subsequent payment on 1^st day of each succeeding month, until further order of this court.

(iii)  The sum of interim maintenance of both children of the family shall be credited directly into the petitioner’s (the wife’s) designated bank account.

(iv)  The order of interim interim maintenance for the children made by Deputy District Judge R. Chow dated 25 November 2021 be discharged.

(v)  There be a costs order nisi that costs of the petitioner’s (the wife’s) summons and amended summons filed on 30 August 2021 and 3 December 2021 be paid by the respondent (the husband) to the petitioner (the wife) on a party to party basis, to be taxed if not agreed.

(vi)  The costs order nisi shall be made absolute in absence of application to vary by way of inter parte summons within 28 days from the date of this judgment.