CYYJ v. CKC

FCMC 6799/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6799 OF 2015

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J U D G M E N T
(Maintenance pending suit and interim maintenance)

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Introduction

1. This is an application by a petitioner wife for maintenance pending suit for herself and interim maintenance for the three children of the family. In the wife’s Notice of Application dated the 25 August 2015 she only refers to maintenance pending suit, which strictly speaking means that she is only entitled to make an application for interim support for herself. Counsel for the husband has referred to this in her written submission and says that consequently the wife may only rely on section 3 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (MPPO) when making this application. Counsel for the husband has countered this and has said that she is referring to both sections 3 and section 5 of the same ordinance. Section 5 deals with interim maintenance for children.

2. For the avoidance of doubt I am approaching this application on the basis that the wife is seeking maintenance pending suit for herself in accordance with section 3 and interim maintenance for the three children of the family in accordance with section 5 of the MPPO. This is self evident from the papers. Indeed the order for interim interim financial support was made on that premise. I will therefore give leave for the wife to amend her Notice of application retrospectively so that there can be no misunderstandings in that respect.    

Background

3. The parties married on the XX May 2009. They are both 34 years of age. They have three children – the eldest daughter M, who is nearly 3 years of age and twin boys who are almost 1 year old. The wife has not worked since the eldest child was born, but previously worked as a merchandiser/secretary. The husband is a fireman. The wife is now a full time mother and housewife. There is therefore no dispute that the only source of income comes from the husband. 

4. The divorce petition was issued on the 2 June 2015, based on the husband’s unreasonable behaviour. This was later amended twice and the parties are now proceeding on a milder form of particulars. There have also been difficulties with respect to the arrangements for the children in part because the children are so small. The respondent is however currently seeing the children on a regular basis. In so far as the interim finances are concerned, by virtue of a court order dated the 21 September 2015 the husband is currently paying the wife a total of HK$30,000 per month (i.e. HK$9,000 per month for herself and HK$7,000 per month for each of the three children) plus he has undertaken to continue to pay for the mortgage on the former matrimonial home in the sum of HK$15,512 per month. In total then the husband is paying HK$45,512 per month by way of interim financial support for the wife and three children.  

5. The wife is now seeking HK$60,512 per month – i.e. HK$45,000 per month in maintenance plus ongoing payment of the mortgage. The husband for his part is offering a total of HK$40,000 per month inclusive of the mortgage. The parties are therefore over HK$20,000 per month apart.

6. I should say at the outset that cases like this are always very difficult to determine. It is clear from both parties Form E’s that historically they have enjoyed a comfortable, but not an overly lavish life style. Now that the parties are living apart and there are three children to support, it is clear that the same lifestyle cannot be maintained.  The difficulty is identifying where exactly economies can be made.  Longer term it seems to me that the parties will need to make some very difficult decisions about how their life style can be sustained, if at all. In the meantime I am asked to make an order on an interim basis designed to see them through to a final hearing or preferably to a final agreement on ancillary relief. 

The law

7. The law is not in dispute (subject to the caveat in paragraphs 1 and 2 above). Applications of this nature are set out in s 3 and 5 Matrimonial Proceedings and Property Ordinance, Cap 192.  The only governing principle is that the court will make such order as it considers reasonable in all the circumstances of the case.  Consequently maintenance pending suit applications are approached on a broad-brush basis.  A detailed examination of the parties’ means will not take place until later in the proceedings. Any over payment or under payment can be dealt with then.

8. Each side referred me to a number of cases and in particular to the Court of Appeal decision in 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.

The Issues

9. In broad terms then there is only one issue to be determined namely how much maintenance should the husband pay to the wife for herself and the three children of the family on an interim basis? In that context there is also a sub issue – namely should the husband be obliged to immediately apply for the Non- accountable cash allowance (NCA)?

Discussion

10. I now turn to each of these issues, the law and the parties’ evidence.

Income and outgoings

11. There is no real dispute that the husband currently earns HK$71,910 per month. The wife has said that she believes that he must have some savings and that he is also entitled to other allowances etc. For the avoidance of doubt I accept, on the face of the evidence before me at present, that the husband’s income is as stated and that the only allowance that he is entitled to is the NCA. I also accept that the husband’s income, as received into his bank account, has fluctuated over the past year because the increase in civil servants pay was backdated and distributed at odd times during that time. There is no evidence that the husband has any savings of any note and indeed it is hard to see how that could be the case, particularly given the fact that the parties borrowed from other family members in order to purchase the matrimonial home at the end of 2014. The wife also borrowed money from her mother in order to give birth to the twins in a private hospital. There is little doubt that money was and is quite tight. The savings that the wife had previously have now dwindled and the parties will need to adjust their lifestyle considerably so that they can live on the husband’s income in the immediate to short term.    

12. I accept that on the face of it that the wife’s budget is quite reasonable. She says she needs a total of HK$69,620 per month for herself, the three children and a domestic helper. The difficulty is that the husband only earns HK$71,910 – so this sum is nearly his entire income. Although I accept that the husband will need in all probability to apply for the NCA in time in order to ease the financial burden of the family, I also accept that he has not done so to date and that it would not be fair or equitable to assume that he can receive those funds immediately. Longer term I would expect the NCA to form part of the financial resources at his disposal. I am therefore proceeding on the premise that the only income available to the husband at present is HK$71,910 per month.

13. The wife’s estimated schedule of outgoings is as follows:

(A)  General
Item	Amount
Rent	N/A
Mortgage instalments	16,000.00
Utilities (electricity, gas, rates, telephone & water)	4,000.00
Management fees	920.00
Food (including milk formula for the children)	*10,000.00
Household expenses	1,600.00
Car expenses	N/A
Insurance premia	*1,200.00
Domestic helper(s) (including salary, air tickets and agency fees)	6,000.00
Other (specify) -   Repair and maintenance, internet, cable TV, mobile phone, domestic helper’s medical expenses etc.	1,000.00
Total monthly household expenses	HK$40,720.00

 

(B)  Personal
Item	Amount
Meals out of home	*1,500.00
Transport	500.00
Clothing / Shoes	*1,000.00
Personal grooming (including haircut, cosmetics and contact lenses)	*1,800.00
Entertainment / presents	*500.00
Holiday	*2,000.00
Medical / Dental	*1,000.00
Tax	N/A
Insurance premia (In-patient)	*1,500.00
Interim maintenance	N/A
Contribution to parents	N/A
Dependent family members	N/A
Others (specify)	N/A
Total monthly personal expenses	HK$9,800.00

 

(C)  Children
Item	Amount
School fees (including compulsory parent fee of HK$120) (for Pre-Nursery commencing September 2015)	3,700.00 (*M only)
Extra tuition fees	N/A
School books and stationery	200.00 (*M only)
Transport to school (including school bus)	830.00 (*M only)
Medical / Dental	*5,000.00
Extra Curricular Activities	*1,170.00 (*M only)
Entertainment / presents	*500.00 (*M only)
Holidays	*500.00 (*M only)
Clothing / Shoes	*1,800.00
Insurance premia (In-patient)	*1,600.00
Lunches and pocket money	N/A
Other Transport (Taxi)	1,000.00
Child-minding fees	N/A
Uniform	400.00 (*M only)
Others (specify) -Daily necessities such as diapers, milk bottles, pacifiers, cleaning cotton, etc.	2,400.00
Total monthly expenses for children	HK$19,100.00
Total Monthly Expenses (A) + (B) + (C)	HK$69,620.00

14. As I have said I accept that overall the wife’s schedule is quite reasonable. She is now living in the former matrimonial home and therefore her accommodation is acceptable (she was previously living with her parents in the aftermath of the separation). The husband has challenged some of the wife’s expenses particularly her expenditure on credit cards etc. I do not intend to go into this in any detail save as to note that in reality the wife’s personal expenses will need of necessity to be reduced substantially in the short term. She may also not be able to afford to retain the insurance premia for herself and the children. Likewise many of the elder child’s (M’s) expenses will need to be reduced. Consideration will also need to be given for the most cost effective way of educating both M and in time the twins. I accept, for example, that the wife and children will need to use government clinics for both medical and dental. I have therefore marked with an * those items that I believe can be reduced.

15. The husband is currently living in a subdivided flat in Causeway Bay. I accept that this is not sustainable longer term. By the same token I do not necessarily accept that he will need to pay rental of HK$13,000 per month just for himself. The husband’s expenses are stated as follows:

General (husband)
Item	Amount
Rent	5200
Utilities	900
Household expenses	900
Car expenses	3000
Insurance premia for the children	*1500
Total monthly household expenses	HK$11,500

 

Personal (husband)
Item	Amount
Food	1000
Meals out of home	2000
Transport	900
Clothing / Shoes	800
Personal grooming (including haircut, cosmetics)	300
Entertainment / presents	*900
Holiday	*1000
Tax	1,255.33
Insurance premia for myself and the Petitioner	*1,500
Contribution to parents	*1,500
Legal costs + pay debts	5,000
Others (specify) Study MSc in Fire and Safety Engineering of PolyU	*2,325
Total monthly personal expenses	HK$18,480.33

16. Again on the face of it these expenses seem quite reasonable. As with the wife however it seems to me that the husband will need to reduce his personal expenditure even further in order to support his wife and children adequately and move into alternative accommodation. He may also not be able to afford to retain the insurance premia for himself and the children. He also says that he is making a contribution to his parents. Unfortunately this contribution cannot take precedence over the needs of the wife and children. I have also noted that he has been refunded for certain courses by his employer. Thus I have again marked with an * those expenses that may need to be reduced.

The order     

17. Bearing all of the above in mind I have decided on a broad brush basis to vary the interim interim order of the 21 September 2015 upwards slightly by HK$5,000 per month. This gives the wife HK$50,510 per month inclusive of the mortgage repayments. The husband is left with HK$21,400 per month. I accept that there is insufficient money here for the parties to live as they had done before. The budget for both sides will be very tight and they will each need to make some difficult choices going forward.

Costs

18. Given that neither party has been entirely successful here although it would be fair to say that the wife has been more successful than the husband, I will make an order nisi to be made absolute in 14 days time that the husband do pay half of the wife’s costs on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.