T, IT D v. M, LS

FCMC 11038 / 2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11038 OF 2016

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

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Introduction

1.  This is an application by a Respondent wife for maintenance pending suit pursuant to s 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the only child of the family, a boy R who was born on the XX May 2013, under s 5 of the same ordinance.

The main issues

2.  The only issue to be determined at this hearing is how much should the husband pay to the wife for her interim provision and that of the child of the family? The husband is currently paying interim maintenance pending suit for the wife in the sum of HK$15,000 per month and interim interim maintenance for the child of the family in the sum of HK$14,500 per month. In addition, he undertakes to continue to pay for the utilities of the former matrimonial home plus the management fees, government rent and rates and R’s school fees. There is currently a dispute about the driver, but under the terms of the court order dated the 14 November 2016 he also undertook to pay directly to a person or institution involved, the driver’s salary and therapy charges for R within 7 days after production of receipts. He also undertook to reimburse the wife for her domestic helper’s salary, R’s medical and dental expenses and for the cost of a holiday in Thailand in the sum of HK$35,000.

3.  The wife now seeks HK$137,499 per month for herself and R in addition to the undertakings set out above. The husband offers to continue to pay in accordance with the interim interim order and he asks that the wife’s summons be dismissed with costs to him. The wife also asks for her costs.

Background 

4.  The parties married on the XX November 2012 after a short relationship, having met in July 2012. The only child of the marriage, R was born on the XX May 2013 and therefore he has just turned 4 years of age. The wife is 44 years old and is of Vietnamese descent. Her family run a chain of restaurants in Hong Kong and she is a shareholder of various family companies from which she receives a passive income. It is the husband’s case that the wife is actively involved in the management of the family companies – something that she denies. Prior to marriage she also worked as a costume designer in the movie industry. The husband for his part is a 63-year-old medical Doctor. It is not disputed that the husband also has a large property portfolio which provides him with a passive income in addition to his earnings as a medical doctor. It seems that the marriage was short lived and certainly on the husband’s case was a largely unhappy one. In any event the parties separated in July 2016 when the husband moved out of the matrimonial home. He is now cohabiting with a third party. The divorce petition was issued shortly thereafter and on the 29 August 2016 the wife issued proceedings based on fairly mild unreasonable behaviour particulars.

The law

Maintenance pending suit

5.  The law is well known and not in dispute. Section 3 MPPO Cap 192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently, applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing.

6.  Counsel for the wife has referred inter alia 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.

7.  In so far as this particular case is concerned the reference to the marital standard of living previously enjoyed by the parties is of particular relevance.

How much maintenance should the husband pay to the wife as maintenance pending suit for herself and interim maintenance for R?

8.  In essence the wife’s case is that the husband should pay what she seeks because she says that this is in keeping with the standard of living enjoyed by the parties during the marriage and that the husband can afford to pay that sum. In particular, she says that the husband paid her HK$20,000 per month during the marriage and that this sum was for food and other household expenses. In addition, she claims that the husband reimbursed her for her personal expenses and that he would also pay for other items when they went out together. The wife maintains that her spending was never challenged and that there was never any concern about financial matters.

9.  The husband for his part maintains that he gave the wife an allowance of HK$20,000 per month during the marriage and that it was a matter for her what she spent it on. He said that this sum included provision for her personal expenditure. He vehemently denies reimbursing the wife for additional personal expenditure – especially in the amount claimed and he says that this is not in keeping with what the wife spent historically during the marriage. He says that the wife’s expenses are inflated and he challenges most of them.

The car

10.  There is a further disagreement over the provision of a car and a driver. It seems that the parties historically shared the services of a driver, who would take R to and from school and to his other activities. In addition, the husband would use the driver after 5 pm on weekdays and on Saturday afternoons and on Sundays. Since the husband moved out of the matrimonial home tension over the use of the car and driver has arisen, which led ultimately to the husband retaining the car and driver for his own use. In response the wife has bought a new car on hire purchase and she now seeks the provision of a driver for the sole use of herself and R. It seems that the wife only has a provisional licence. In any event it is the wife’s case that she cannot drive for medical reasons – something that is hotly disputed by the husband.

The reasonable needs of the parties and the husband’s ability to pay

The wife’s needs

11.  The wife’s budget is summarized in counsel’s submission as follows:

	W’s Ask	W’s Ask if H complies with undertaking
GENERAL
Rent	N/A
Mortgage	3,630 W pays
Utilities	4,000
Management Fees	5,000
Food	15,000	15,000
Household expenses	5,000	5,000
Car expenses	30,708	30,708
Insurance premia	N/A
Domestic Helper	4,500
Maintenance	2,500	2,500
Driver	16,250
	82,958	53,208
PERSONAL
Meals out of home	5,000
Transport	N/A
Clothes Shoes Handbags	20,000
Personal grooming	3,000 W pays
Entertainment / Presents	600
Travelling	8,333
Medical Dental (+ therapy)	10,000
Tax	1,917 W pays
Insurance premia	4,050
Contribution to parents	6,500 W pays
Others: Telecom	1,000
	48,983	48,983

The wife agrees to pay for the mortgage on a recently acquired property, her own personal grooming, tax and for the contribution to her parents from her own resources. Further she asks that the husband comply with his undertakings including the provision of a car and driver in the sum of an additional HK$30,708 plus HK$16,250 per month.

12.  In addition the wife seeks interim maintenance for R as follows:

CHILD
School Fees	20,000
Extra Tuition Fees	N/A
Books and DVD	3,000	3,000
Transport to School	N/A
Medical Dental (+ therapy)	11,000
ECA	9,500	9,500
Entertainment / presents	4,100	4,100
Holidays	8,333	8,333
Clothing / Shoes	5,000	5,000
Insurance premia	500	500
Meals on Weekend	3,000	3,000
Other Transport	N/A
Child minding fees	N/A
Uniform	500	500
Others:
2 playhouse annual membership fee	650	650
Disney Gold card membership	275	275
Ocean Park annual membership	300	300
School trip	100	100
	66,258	35,258

The items in dispute

13.  In broad terms I will continue to accept the husband’s undertaking as set out in the order dated the 14 November 2016 namely that he will continue to pay for the utilities of the former matrimonial home plus the management fees, government rent and rates and R’s school fees. In addition, he will continue to pay directly to the person or institution involved, the therapy charges for R within 7 days after production of receipts. He will also reimburse the wife for the domestic helper’s salary (whether that is for a full time or part time helper) and for R’s medical and dental expenses. He will be released from his undertaking to pay for the driver’s salary.

14.  In so far as the expenses for the car are concerned I made the point during the hearing that if the wife chose to buy a brand new and expensive car for herself and R that was really a matter for her and that the court was not bound in any way by her actions in that respect. I strongly suggested that the parties should revert to sharing the services of the car and driver and I also suggested that they should try to reach an agreement on the matter. The husband was of the view that R should get the school bus. I accept however that given that R is only small, has some attachment issues and that he is used to being driven to school, that it might be a little unreasonable in the short term. In such circumstances I will make an allowance for the car in the alternative. In the event that common sense has intervened and that the parties are now sharing the car so that R is able to be driven to and from school and to his other activities, there will be no allowance for the car. In the alternative I will allow HK$15,000 per month as a contribution towards either the car expenses or to the wife’s and R’s travel costs generally. It will be for the wife to decide whether or not she should keep the car or sell it. If she decides to keep it and to employ a driver, then she will need to pay for the remainder of these expenses from her own resources.  

Food

15.  There is a dispute about the cost of food. The wife asks for HK$15,000 per month for herself and one small child. She says that R only eats good quality food. The husband says that the costs is excessive. I tend to agree. Thus on a broad brush basis I will allow the wife HK$10,000 per month for food for herself and R.

Household expenses

16.  The wife seeks HK$5,000 per month; the husband offers nothing on the premise that again this is an unreasonable amount. I will allow HK$2,500 per month on a broad brush basis and on the premise that it defies commons sense to suppose that the wife has no household expenses and that some provision should be allowed for this.

The wife’s personal expenses 

17.  The wife has put forward an argument that the husband reimbursed her on a regular basis for her own personal expenses. The difficulty however is that even on the wife’s own case, any alleged repayments were spasmodic and not paid on a monthly basis. The husband for his part says that this cannot be proved in any event – although his arguments with respect to his own historical credit card expenditure for the wife and R do not appear to be supported by copies of the actual credit card statements. Consequently, doing the best that I can I will allow the wife an additional HK$25,000 per month to cover all of her own personal expenses.        

R’s other expenses

18.  Again on a broad brush basis I will allow an additional HK$10,500 per month for R’s expenses plus the costs for R’s extracurricular activities/tuition costs which should not exceed HK$9,500 per month. I agree that some of the other items listed seemed excessive including membership for both Disney and Ocean park etc etc. The husband has offered to pay for R’s school uniform and school trips directly and these undertakings should also be included in the order. In round figures then the husband shall contribute HK$20,000 per month towards R’s other expenses.  

Can the husband afford to pay this sum on top of the other costs that he has agreed to pay?   

19.  There does not appear to be a serious dispute about the husband’s current ability to pay. It is reasonably clear that the husband should be able to afford these amounts. There is some dispute about his actual income and if necessary this will need to be debated further at a later date. However, there is no doubt that the husband has a successful medical practice and that he also receives a significant passive income from his property portfolio. Counsel for the wife has suggested that his income is probably in the region of approximately HK$330,000 per month. Other estimates put it closer at HK$400,000 per month. Even on the husband’s own case he has an income of approximately HK$300,000 per month.  Consequently, it seems to me that with a little economizing that he should be able to pay the sums ordered. I should add that the wife’s income is also in dispute and that she claims that her previous income from the family business of approximately HK$40,000 per month is likely to go down because the business is not doing so well at present. Again the truth or otherwise of this assertion will need to be considered in due course. For the purposes of this application I accept that the wife has historically received a regular income of about HK$40,000 per month from her family businesses.    

Backdating

20.  The wife complains that the husband has failed to pay for some items as undertaken by him previously. On a broad brush basis then I will backdate this order to the 14 October 2016, which is the date of the application, due credit to be given for all payments made to date.

Costs

21.  I accept that neither party has been wholly successful in the stance taken by them in this application and that some of the wife’s claims do appear to have been somewhat excessive. Likewise, it is of note that the husband made no other proposal to the wife and that she really had no option but to make this application. Consequently, I shall make an order nisi to be made absolute in 14 day’s time that the Respondent husband shall pay half of the Petitioner wife’s costs of and occasioned by this application on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

Order

22.  Upon the Respondent’s continued undertakings as set out in paragraph 4 (a) – (c) of the court order dated the 14 November 2016 save for the reference to the provision of a driver in b (i) and further upon the Respondent’s undertaking to reimburse the Petitioner within 7 days for payment of R’s school uniform and for repayment of any school trips, upon production of the appropriate receipts.

IT IS ORDERED THAT:

1)   Order 8 contained in the court order dated the 14 November 2016 shall be varied to the extent that the Respondent shall pay maintenance pending suit to the Petitioner for herself in the sum of HK$37,500 per month, in the event that the parties are now sharing the car and driver and HK$52,500 per month otherwise, such payment to be backdated to the 16 October 2016 and thereafter to be paid on the 1st day of each succeeding month until further order.

2)   Order 9 contained in the court order dated the 14 November 2016 shall be varied to the extent that the Respondent shall pay interim maintenance to the Petitioner for the child of the family in the sum of HK$20,000 per month such payment to be backdated to the 16 October 2016 and thereafter to be paid on the 1^st day of each succeeding month until further order.

3)   There shall be a further First Appointment hearing on the 1 August 2017 at 9:30 a.m.

4)   There shall be an order nisi to be made absolute in 14 day’s time that the Respondent do pay half of the Petitioner’s costs of and occasioned by this application on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

5)   There shall be liberty to apply.