IT v. LWYG

FCMC 18087/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 18087 OF 2013

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and

FCMP 276/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEIOUS PROCEEDINGS

NUMBER 276 OF 2013

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(Consolidated by Order of Her Honour Judge Melloy dated 17 July 2014)

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JUDGMEN
(Interim Maintenance)

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Introduction

1.  This is an application by a petitioner mother for interim maintenance for the only child of the family, S, pursuant to s 5 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO). The mother does not seek maintenance pending suit for herself.

The issues

2.  This is a high conflict case which began with the father’s wrongful removal of S from the mother and has continued with allegations by the mother against the father of physical abuse of S. These allegations were not proven and amounted to little more than an unfortunate accident. Perhaps not surprisingly however, given this context, access between the father and son was somewhat difficult for a while. The parties have joint custody of S. The mother has care and control. In so far as access is concerned the parties split the weekends and the father has overnight access on Friday thru to Saturday. The father also see’s S on Thursday’s after school. School holidays are split more or less equally. Agreement on these matters was finally reached at a CDR hearing on the 24 September 2015. A progress report is due to be filed next month.      

3.  The issue to be determined now is that of interim maintenance - namely how much maintenance should the father contribute towards S’s general and specific expenses on a short term basis pending final resolution of the parties ancillary relief matters. The wife seeks a half share of the child’s expenses which on her case amounts to approximately HK$13,000 per month. According to the husband’s affidavit which was only filed the day before the hearing, he is prepared to pay HK$4,000 per month. It is the wife’s case that the husband has failed to contribute towards the child’s expenses since separation despite her requests for the same.  

Background

4.  The parties married on the XX September 2009 in Japan. The mother is Japanese and the father is from Hong Kong. They have one child, S, a boy who was born on the XX June 2010 and who is now nearly 6 years of age. The parties separated from about October 2012 and on the 17 December 2013 the wife issued proceedings for divorce. Prior to that there were the other miscellaneous proceedings.

5.  Both parties work for a well known airline. Counsel confirmed their lay clients salary during the hearing – HK$38,338.57 per month for the husband (say HK$38,400) and HK$32,768.52 per month for the wife (say HK$32,800). Although the husband earns slightly more than the wife, the wife is content for the husband to contribute towards half of S’s expenses.         

The law

6.  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”

7.  The only governing principle is that the court will make such order, as it considers reasonable. Thus interim maintenance for a child is approached in exactly 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.

8.  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”.

9.  Here then we are looking at the reasonable requirements of S the ability of the father to pay.

Discussion

10.  The wife set out her claim for interim maintenance for S in both her updated Form E and in her affidavit evidence filed in support of her application. The difficulty was that it proved difficult – certainly at first flush to work out the basis for some of her figures and the reasoning behind them. As indicated during the hearing, on a broad brush basis I accept that half of the general household expenses should be attributable to the mother directly. The remainder, being costs associated to caring for S, should then be split between the parties’ in an equitable manner. On occasion this may be a 50:50 split – or alternatively it can be a percentage based on the relative earnings of each party, or sometimes simply a reasonable amount in the circumstances. On this occasion notwithstanding the fact that the father earns slightly more than the mother I accept that it would be appropriate for each parent to contribute an equal amount towards S expenses whilst he is in the mother’s care. I do not accept that the father should then be able to deduct those expenses that he says he spends whilst S is with him. Given that he earns a little more than the mother in any event, it does not seem to me that that would be fair or equitable in the circumstances.  

11.  In so far as the mother’s general expenses are concerned she said in her updated Form E that they amounted to HK$26,513 per month. Of that HK$12,862 was for the mortgage on the former matrimonial home and HK$5,074 was for the domestic helper. Putting those two things to one side for the moment the remainder amounts to HK$8,577 per month. None of the other expenses seemed over stated and I will allow them in full. Each party shall be responsible for half of S’s half share of those expenses or HK$2,144.25 per month rounded up to say HK$2,150 (ie HK$8,577 divided by 2 = HK$4,288.50. HK$4,288.50 divided by two = HK$2,144.25). The mother did not seek maintenance pending suit for herself and given that the mortgage is a capital expense I will not include it as part of S’s costs. However given that the domestic helper is hired in order to help care for S I will include that expense in the child’s direct expenses.

12.  The mother said that S’s direct expenses amounted to HK$7,795 per month. The difficulty however was that she failed to come up to proof on some of those expenses including the cost of the extracurricular activities which eventually came down from HK$1,066 per month to HK$400 per month. I will also take out the cost of entertainment and holidays – as both parties shall be responsible for their own expenses in that respect. The other expenses amount to HK$3,867 per month. If one adds in the cost of the domestic helper the entire costs amount to HK$8,941 per month – or rounded up to say HK$9,000 per month. Each party shall be responsible for half of those costs or HK$4,500 per month. In total then the father shall contribute HK$6,650 per month towards S’s expenses (ie HK$4,500 + HK$2,150 = HK$6,650).                           

13.  It seems to me that with a little economizing the father should be able to afford this sum. I also accept that the father has chosen to take out an insurance for S and that he pays for other expenses whilst he is in his care.

14.  I am told that the father has not contributed towards the child’s maintenance since the separation. This is not acceptable. I will not however backdate the maintenance figure now. This is though something that may be revisited at an FDR hearing or at trial if there is no agreement in the meantime.  

Costs

15.  I can see no reason why costs should not follow the event in this instance. The mother appears to have had no alternative but to make an application to the court and although the final award is a lot lower that that requested – it is also more than that offered by the husband. I have also taken on board the fact that the husband’s offer appears to have come so late in the day that it ceased to have any real effect. I shall therefore make an order nisi that the husband do pay the costs of and occasioned by this application on a party and party basis to be made absolute in 14 days time.              

16.  Given the above I will therefore make an order as follows:

1) The Respondent father shall pay the Petitioner mother interim maintenance for the child of the family in the sum of HK$6,650 per month the first payment to be made on the 1^st June 2016 and thereafter to be paid on the first day of each succeeding month until further order.

2) There shall be an order nisi that the father do pay the mother’s costs of and occasioned by this application to be taxed if not agreed on a party and party basis, to be made absolute in 14 days time.

3) The First Appointment hearing shall be adjourned to the 29 July 2016 at 9:30 am

4) Both parties do personally attend that hearing.