WJ v. HSN

FCMC 10520 /2019

[2020] HKFC 214

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 10520 OF 2019

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D E C I S I O N
( Maintenance Pending Suit )

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1.  This is the application of the respondent (“W”) for maintenance pending suit against the petitioner (“H”) by Summons dated 13 May 2020 (“MPS Summons”).

2.  W requested a sum of $68,000.00 as stated in paragraph 1 of the MPS Summons including the amount of maintenance for herself and for the benefits of the two children of the family, namely, HY and HW (collectively “the Children”) respectively aged 18 and 15 both studying presently.

Background

3.  H is 50 years and W is 44 years old.  The parties got married on 8 August 1998 in Hong Kong. 

4.  During the marriage, the parties were residing at the former matrimonial home at Caribbean Coast, Tung Chung, Lantau Island, New Territories, Hong Kong.  H worked at Xiamen, PRC since May 2005 and only came back to the former matrimonial home on a weekly basis.  The former matrimonial home is jointly owned by the parties as joint tenants.  The parties lived there until they separated in March 2017.

5.  H is an aircraft maintenance engineer and/ or General Manger Quality (Project) as stated in H’s Form E and his affirmations. 

6.  W only worked as an accounts clerk for one year after marriage.  Thereafter, she spent her time wholly as a housewife to take care of the family.

7.  During the parties’ marriage, H was paying $30,000.00 to W to meet the family expenses and the Children’s needs since October 2006.  In December 2014, H increased the payment to $55,000.00 for her. H said that he increased the monthly household money from $30,000 to $55,000 as there was a precondition for W to give him her consent to the divorce application.

8.  The parties later separated in March 2017 and H moved out of the former matrimonial home.

9.  After the separation of the parties, H continued paying a sum of $55,000.00 per month until January 2018.  After that, H refused to make any payments to W.

10.  Until the first appointment hearing on 1 June 2020, and by consent, H agreed to pay an interim interim maintenance for the total sum of $45,000.00 per month as follows: -

(a)     $18,000.00 for W;

(b)     $14,000.00 for HY; and

(c)     $13,000.00 for HW

The Law

11.  The Court’s jurisdiction to make an order for MPS for parties to a marriage and interim maintenance for the Children is pursuant to Section 3 and 5 of the Matrimonial Proceedings and Property Ordinance Cap. 192 (“MPPO”) which provide that the Court shall make such order as it considers “reasonable”. 

12.  In determining an application for MPS, the overriding considerations are the immediate and reasonable needs of the parties and the Court has to balance the reasonable needs of the applicant and the ability to pay of the other side on an interim basis (see LJ v. LWHH [2003] 3 HKC 455 (CA) at §35).

13.  In undertaking this balancing exercise, the Court will adopt a broad brush approach, without a detailed investigation of the financial positions of the parties which will be examined at a later date at a full ancillary relief hearing if agreement cannot be reached in the meantime.

14.  In the decision in HJFG v. KCY (unreported, CACV 127/2011, 28 October 2011), the Court of Appeal set out the principles to be applied to applications for maintenance pending suit at §37 :-

(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 pending suit 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.

15.  It is also well established that in ancillary relief proceedings, which include applications for maintenance pending suit, there is a duty on both parties to make full and frank disclosure of the relevant materials to enable the Court to exercise its discretion to make the order, and if it is of the view that the evidence disclosed by a party is deficient, adverse inferences may be drawn against that party (see C v. F) (unreported, FCMC 1701/2000, 20 September 2004) at §28).

Parties’ Pre-separation Living Standard

16.  As regards living standards, H reveals in his Form E that:

“1998-2007 The Respondent and I lived with her parents in an apartment of about 800 square feet (gross floor area) at Telford Garden, no domestic helper. 2007-25/3/2017 the Respondent and I lived in the matrimonial home of 986 square feet (gross floor area), no domestic helper. Since 26/3/2017, the Respondent continued to live in the matrimonial home.”

17.  On the other hand, W states in her Form E that “Size of home: over 900 sq. ft.  The family shall go to holidays once a year.  We led a lifestyle in a typical middle class family.  We enjoyed life and would have outings and dining out in some fine restaurants with our children.”

18.  I consider that although no helper is ever hired, the parties enjoyed a quite comfortable pre-separation standard of living all funded by H.

Reasonable needs of W and the Children

19.  W listed out the details of the living expenses for about $67,000 per month in paragraph 12 of her affirmation filed 13 May 2020 with updates in paragraphs 8 and 9 of her 2^nd Affirmation due to the increase of Hiu Yan’s expenses from around $22,000 to $28,000 after she got the DSE result and decided to study Chinese Medicine in the Chinese University of Hong Kong.

20.  The total sum of living expenses of W and the Children claimed is $72,568.77 ($19,906 + $12,275.04 + $28,000 + 12,387.73) per month but Ms Ching for W confirmed only asking for $68,000.  It is submitted by Mr But for H that the expenses as listed out in W’s affirmations such as household, food, meals out of home, transport, school fees, W’s dental expenses and insurance premium etc are unreasonable and/or unnecessary expenses.

21.  As I will only adopt a broad brush approach, without a detailed investigation which will be examined at a later date at a full ancillary relief hearing and based on the living standard of the parties before separation, I consider that the reasonable needs of W and the Children are as follows:

 

(A)      General	Amount (HK$)
Utilities (electricity, gas, rates & water)	$1,339.00
Food	$8,000.00
Household expenses	$6,000.00
Internet	$267.00
Pet	$1,800.00
Sub-total	$17,406.00 --------------
(B)      W herself
Meals out of home	$1,500.00
Transport	$450.00
Clothing / Shoes	$500.00
Personal grooming (including haircut and cosmetics)	$800.00
Entertainment/ presents	$2,000.00
Holidays	$1,000.00
Medical/ Dental	$2,000.00
Insurance Premia	$181.04
Mobile phone	$144.00
Sub-total	$8,575.04 --------------
(C)      the daughter, HY
School fees and jupas fees	$3,600.00
Extra tuition fees	$0
School books and stationery and supplementary exercise and revision books	$3,000.00
Transport to school	$550.00
Medical / Dental	$750.00
Extra-curricular Activities	$1,170.00
Entertainment / presents	$1,200.00
Holidays	$500.00
Clothing / shoes	$800.00
Insurance Premia	$748.63
Lunch and pocket money	$3,600.00
Uniform	$100.00
Personal grooming	$1,000.00
Mobile	$96.00
Sub-total	$17,114.63 --------------
(D)      The son, HW
Extra tuition fees	$1,300.00
School books and stationery and supplementary exercise and revision books	$1,000.00
Transport to school	$200.00
Medical /Dental	$750.00
Extra-curricular Activities	$1,105.00
Entertainment / presents	$500.00
Holidays	$500.00
Clothing / shoes	$500.00
Insurance Premia	$2,666.73
Lunch and pocket money	$3,000.00
Uniform	$100.00
Personal grooming	$300.00
Mobile	$96.00
Sub-total	$12,017.73 -------------
GRAND TOTAL [(A) + (B) +(C) +(D)	$55,113.40

22.  I round up the figure to $55,200.00 for convenience.

H’s means and ability to pay

23.  H is and was working at the same company for more than 16 years as an aircraft maintenance engineer and/or General Manager (Quality) Project.  Further, H has never expressed that he has any financial difficulty to pay for any MPS and interim maintenance in his affirmations.

24.  In his Form E, it is stated that he is earning $162,559.00 per month.  In paragraph 9 of his Affirmation filed 4 August 2020, he states that “due to the prevalence of COVIT-19 during the past months, I do not enjoy as much bonus and allowance as before.  My monthly income after tax at the present moment is only around HK$120,000.00”.  However, in the statement for April 2020 provided by him, his earnings in that month were $133,650 and Mr But for H failed at the hearing to explain why in the statements for February and March 2020, his earnings in these months were stated $1,748,851.53 and $1,577,350 respectively. H shall be able to produce the statements at least up to July 2020 but he fails to do so.  Apart from the bare assertion, he produces no documentary evidence showing no bonus and allowance paid by his employer.  I should not hesitate to make robust assumptions about his ability to pay and do not accept the mere say-so of H as to the extent of his income or resources.  In such a situation, the court should err in favour of W.

25.  Regarding his monthly expenses for about $80,000 as stated in his Form E, I consider that some of them are excessive, for instance, the food expense for $10,000.  I indeed fail to understand and accept H’s suggested figure for food expense in the sum of $6,000 per month for W and the Children (ie 3 persons) whilst he is spending every month $10,000 for the same item for himself.

26.  In my view, his earning capacity is sound and steady.  In addition, H is the sole registered owner of a unit in Tak Bo Garden which is now vacant and shall be let out for rental income as soon as possible.  In the circumstances, I have no doubt to find that H is able to pay the MPS in the sum of $55,200.00 to W.

27.  Mr But for H also raised that as per W’s Form E at para. 5.1, W sold a car parking space in Tung Chung for $1.06 million in December 2017 which is never accounted for by W in her documents disclosed so far.  Ms Ching for W submitted that the said sum had been used by W to repay the debts due to her family members.  I consider that the court is unable and unnecessary to resolve this issue for the purpose of this application.  Such issue will be dealt with at the trial of ancillary relief if the parties fail to settle the matter later.

Conclusion

28.  I now order that H do pay W a total sum of $55,200 per month as maintenance pending suit for herself and interim maintenance for the benefit of the Children from 2 November 2020 and thereafter on the 2^nd day of each and every calendar month until further order of the Court.  The said sum shall be deposited into the client’s account of W’s solicitors bank account[1].

29.  Regarding the question of costs, since the application is determined on a broad brush approach without going into detailed investigation of the finances of the parties as any under or over payment can be adjusted at the final trial for ancillary relief, I therefore exercise my discretion to make a cost order that costs of this application be reserved save that W’s own costs shall be taxed in accordance with the Legal Aid Regulations.