V F G-G v. R W A G-G

FCMC 13050 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13050 OF 2009

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JUDGMENT
(Interim Maintenance)

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Introduction

1.  This is an application by a petitioner wife for interim maintenance for the two children of the family pursuant to s.5 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO). 

The issues

2.  There is only one issue to be determined, namely the appropriate level of interim maintenance to be paid for the two children of the family going forward. The wife originally sought HK$14,175 per month and then amended that figure to HK$20,000 per month at the hearing (i.e. HK$10,000 per month per child). The husband offered HK$7,700 per month – or AU$1,100 (i.e. HK$3,850 per month per child).

Background

3.  The parties married on the XX November 2001 in Australia. They are both Australian nationals. They have two children, O, a girl born on the XX January 2004 who is therefore 6 years of age and M, a girl born on the XX May 2008 who is now just 2 years of age. O attends an ESF primary school and M is at kindergarten/playgroup. The parties separated in mid 2009 and the husband returned to Australia in order to seek employment there. On the 16 October 2009 the wife issued proceedings for divorce. The petition contains mild unreasonable behaviour particulars. The wife seeks orders for joint custody, with care and control to herself and access to the husband.  

4.  The wife is 39 years old and is a Vice President of X. She has a base salary of HK$105,000 per month. 

5.  The husband is 45 years of age. He works for a University as a Manager. His exact net salary was subject to some debate during the hearing but appears to be somewhere between the equivalent of HK$56,417 per month (on the wife’s case) and HK$52,214 per month (on the husband’s case).

6.  Longer term the wife will be seeking a 50% contribution towards the children’s expenses. On her case HK$20,000 is still less than 50% of the children’s current costs. The husband for his part is willing to make a reasonable contribution towards the children’s expenses but asks that I take into account a number of factors including the cost of ensuring that the children have frequent contact with him. The actual cost of that has yet to be quantified in any precise way.

The law

7.  Applications of this nature are governed by s.5 MPPO Cap 192 which state 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.  As both lawyers rightfully acknowledge the only governing principle is that the court will make such order, as it considers reasonable.  Thus interim maintenance for children is approached in the same way as maintenance pending suit for adults. Consequently, again, 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”.

Here then we are looking at s.5 and the reasonable requirements of the children and the ability of the husband to pay.

The Evidence

10.  I must now turn to consider the issues, the law, and the parties' evidence as set out in the affirmations and Form E’s filed together with the submissions made by their lawyers.

What then is the appropriate level of interim maintenance to be paid by the husband for the girls going forward?

11.  The wife is seeking HK$20,000 per month for the girls. She sets out in her affidavit payments that have been received from the husband to date. She received fairly regular sums (but no set sum) between September and December 2009 and then nothing at all until July. (Her application was issued on the 16 July 2010). Overall the amount she has received equates to HK$6,388 per month.

12.  So what are the wife’s reasonable expenses for the girls? I had some difficulty with the wife’s approach to the general household expenses. As indicated during the hearing, on a broad brush basis I accept that a certain percentage of the general household expenses should be attributable to the wife directly. The remainder, being costs associated to the girls, should then be split between the husband and wife in an equitable manner. On occasion this may be 50:50 – or alternatively it can be a percentage based on the relative earnings of each party, or simply a reasonable amount in the circumstances.

13.  The husband for his part accepted most of the general expenses, although he did challenge the need for two domestic helpers. Given the fact that the wife is working full time, that she needs to travel on occasions for work and the fact that the children are very young, I accept that prima facie two domestic helpers is an acceptable expense. The husband also maintained that the wife had promised to meet the rental costs and therefore that this expense should be taken out of the equation. Even if that had been the case, clearly the rental is an ongoing expense that the wife has to meet for both her and the girls. It therefore needs to be included as a legitimate expense for the wife going forward.     

14.  In so far as the girl’s actual expenses were concerned some of those were agreed as follows:

School fees	10,000
Extra tuition	3,000
School books etc	300
Transport to school	2,940
Insurance	400
Subtotal	16,640

15.  Other expenses were not agreed as follows:

	Wife's estimate	Husband’s estimate
Medical/dental	2,000	1,500
Entertainment/presents	3,600	2,000
Holidays	5,000	0
Clothing/shoes	1,800	1,500
Lunches/pocket money	1,600	200
Other transport	1,200	0
		(included in transport to school)
Child minding fees	2,000	0
Others	750	2,500
Subtotal	17,950	7,700

16.  Although the parties had agreed school uniform at HK$1,200 per month I had queried this, given the ages of the children.

17.  Going forward and taking a broad brush approach I will accept the husband’s estimates for the following:

Medical/dental	1,500
Entertainment/presents	2,000
Clothing/shoes	1,500
Subtotal	5,000

18.  In addition I will allow the following:

Child-minding fees

2,000

19.  The wife has explained that she employs a nanny in addition to the domestic helpers when she is required to travel over weekends. I accept again, that given the ages of the children, that this is a legitimate expense. However this is something that the parties may wish to discuss further going forward – i.e. how realistic is it to employ two full time domestic helpers and a part time Nanny bearing in mind the parties relative incomes. Prima facie however I will accept this for the time being.

20.  Having considered both parties submissions in relation to the remainder of the expenses I will allow the following:

Uniform	500
Lunches/pocket money	500
Other transport	1,000
Subtotal	2,000

21.  The only remaining item relates to holidays. The wife asks for an allowance of HK$5,000 per month. Given that most of the holidays going forward, and certainly in the short term, also seem to relate to access, I will not allow this expense for the time being. However the issue of how the access is to be paid for is very much a live issue. During the hearing I queried whether it would be possible for the parties to agree to divide the costs of the access related travel for the girls equally. Unfortunately given the fact that the husband was not present at the hearing this could not be explored further.

22.  Subsequent to the hearing I received a letter from the husband’s solicitors dated the 16 August 2010 in the following terms:

We refer to the hearing on 28 July 2010 of the Petitioner’s Summons for interim maintenance. One of the issues was the costs of the current and projected trips to Australia.  One such trip has been arranged for November this year.  At the conclusion of the hearing the Petitioner, through her solicitor, indicated that she was prepared to offer to pay all of the international costs associated with the children’s travel to and accommodation in Brisbane, on the basis that the Respondent pays for internal travel.

We have taken instructions from our client.  Our client has agreed and now confirms that he will pay for internal travel from Brisbane to Sydney, for their expenses relating to the Sydney stay, and, in addition, the costs associated with returning them to Hong Kong at the conclusion of their stay.

23.  This seems to me to be an eminently sensible compromise. Thus I will proceed with this application on the basis that each side will continue to make a reasonable contribution towards the costs associated with access in the short term.

24.  Thus in broad terms the actual expenses relating to the children amount to approximately HK$25,700 per month. In addition the husband should be contributing towards the children’s share of the general household expenses.

What can the husband reasonably afford to pay?

25.  As indicated above there was some dispute during the hearing over the husband’s actual salary and in particular whether or not he was making a voluntary contribution towards his superannuation funds over and above the mandatory 9% required by Government. No doubt this point will be subject to further discovery. In the meantime however, based on his recent pay slip, produced during the hearing, I accept that his present income stands at approximately HK$52,200 per month (rounded down). This is approximately 50% of the wife’s current salary.

26.  The wife argues that the husband’s outgoings based primarily on his own evidence should amount to approximately AU$4,659 per month (or HK$32,613 per month). She has accepted most of the expenses listed save that she challenges his credit card expenditure, food costs, clothing allowance and computer/technology allowance. She asks that only half of the estimated amount be allowed for his credit card expenditure and food, 2/3 for his clothing allowance and nothing at all for the computer/technology allowance. Given, as Mr Barnes has pointed out that the husband has not made any allowance for things like medical, dental or holiday or other entertainment, I will allow the husband AU$2,000 per month (HK$14,000) on the basis that this should cover all other estimated expenditure including the cost of some travel for both him and the girls. I accept the other figures provided by the wife. Therefore in total the husband’s expenditure should amount to approximately AU$5,509 rounded down to AU$5,500 or HK$38,500 per month. Thus it seems to me that the husband can certainly afford to pay in the region of HK$13,700 per month, without any further economizing. The wife was originally seeking HK$14,175 per month. This seems to me to be a perfectly reasonable figure in the circumstances and one that the husband should be able to meet. I accept that this does not cover 50% of the children’s actual costs plus a full contribution towards the children’s share of the general household expenses – but it is probably as much as the husband can reasonably afford to pay at present.

Costs

27.  I can see no reason why costs should not follow the event in this instance. The wife made a reasonable proposal which was not accepted by the husband. She appears to have had no alternative but to make an application to the court. I shall make an order nisi that the husband do pay the costs of and occasioned by this application, to be made absolute in 14 days time.              

28.  Consequently having read the affidavit from the wife dated the 16 July and the affidavit from the husband both dated the 27 July and both parties Form E’s together with the submissions from both parties’ lawyers, I will make an order in the following terms:

1) The Respondent husband shall pay the Petitioner wife interim maintenance for the two children of the family in the sum of HK$14,175 per month i.e. HK$7,087.50 per month per child until further order, the first payment to be made on the 1^st September 2010 and thereafter on the first day of each succeeding month until further order.

2) There be an order nisi that the husband do pay the wife’s costs to be taxed if not agreed, to be made absolute in 14 days time.