LWSE v. LPT

FCMC 15829/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MATRIMONIAL CAUSES NO.15829 OF 2015

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

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1.  This is a hearing of the respondent’s (hereinafter called “the husband”) application for variation of interim maintenance for the petitioner (hereinafter called “the wife”) and the child (hereinafter called “the daughter”) pursuant to sections 3 and 5 of the Matrimonial Proceedings and Property Ordinance (Cap.192)(hereinafter called “MPPO”).

Brief History

2.  The parties were married on 24^th April 2005.Within wedlock, they have a 9 years old daughter and she is now studying in primary school.

3.  The wife filed the petition for divorce on 11^th December 2015 based on two years separation. A cross-petition had been filed by the husband on 7^th July 2016, based on the wife’s unreasonable behaviours.

4.  The husband moved out from the matrimonial home on or about 5^th December 2015. Currently, the husband is living in his mother’s residence, which is within walking distance from the matrimonial home, and the daughter is now living with the wife in the matrimonial home.

5.  Soon after the filing of the wife’s Petition for divorce, the wife applied for an ex parte injunction pursuant to section 17 of MPPO, prohibiting the husband from dealing with HK$1,468,196.70 from his HSBC account (hereinafter called “the Injunction order”) 

6.  At present, there is an interim maintenance order which was made by Deputy District Judge A. Yim on 27^th January 2016, by which it was ordered that the husband shall pay HK$2,000 and HK$8,000 as interim maintenance for the wife and the daughter respectively.

7.  On 5^th May 2016, the husband issued the present summons for variation of interim maintenance and was adjourned to 31^st August 2016 for argument.

8.  Now, the husband sought to suspend the interim maintenance of HK$2,000 per month for the wife, and vary the interim maintenance of HK$8,000 per month for the daughter to HK$7,000 per month or alternatively, undertake to pay the daughter’s school fees, the fees for the extra-curricular activities plus the insurance premiums for the daughter.

9.  Both parties had filed and exchanged their respective affirmations and Form E Financial Statements. Questionnaire had been filed and exchanged.

The Law on Interim Maintenance

10.  The power to order maintenance pending suit is set out in section 3 of MPPO whereby the court may order a party to make to the other such periodical payments for his or her maintenance and for such term beginning not earlier than the date of the presentation of the petition and ending on the date of the determination of the suit, as the court thinks reasonable.

11.  It is clear that under this provision there is no power to make an order for an interim lump sum or an interim order for sale or transfer of property, but otherwise the court has an unfettered discretion in the matter subject to the result being reasonable: F v F (maintenance pending suit) (1983) 4 FLR 382.

12.  As for the matters which the court should consider in assessing an application for maintenance pending suit, Rayden and Jackson on Divorce and Family Matters, 18^th Edition, said these as follows:

“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 be 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 take a ‘broad brush’ approach. The overriding consideration is the actual needs of the parties pending suit. Although the provisions of s 25 of the MCA 1973 are expressed to arise only when the court is deciding whether to exercise its powers under s 23, 24 or 24A, the court may nonetheless have regard to the criteria listed in s 25 on an application for maintenance pending suit.

13.  The following principles quoted in the case of HJFG v KCY (CACV 127/2011, 28 October 2011, should be noted when considering 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.

14.  In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non disclosure.

15.  However if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay.

16.  The court can look at the reality of the situation and take into account voluntary funding from third parties. Any under provision or over provision in the order for maintenance pending suit can always be corrected when the account comes to be taken at the substantive hearing when there is every opportunity to do fairness by set-off…”

17.  I do not think the above general principles are in dispute.

Thehusband’s Case

18.  The husband is now aged 42 and has been working as night-shift taxi driver for over 10 years. The husband’s case is that owing to the drop in his incomes, the husband sought for the variation of existing interim maintenance order.

19.  The husband disputed that he paid the wife not less than HK$15,000 per month for herself and for the daughter previously.

20.  It is also submitted by the husband that the wife had not made full and frank disclosure as to her salary. The husband also asked the Court to draw adverse inference against the wife that she had means to support herself.

21.  It is also submitted that the maintenance claimed by the wife for herself and the daughter was excessive and unreasonable.

22.  During the trial, counsel on behalf of the husband, Ms. Ng conceded that there would be no issue of ability to pay by the husband, on condition that the amount of variation asked for by the husband could be provided for in the Injunction order, if the husband’s application was refused eventually.

23.  The substantive hearing for the discharge of the Injunction order was scheduled to be heard on 6^th September 2016. Counsel for the wife, Mr. Yip also conceded that the amount of variation asked for by the husband could be provided for in the Injunction order.

24.  I had indicated to the parties that the ruling of this application will be given after I had determined the application for the discharge of the Injunction order.

The wife’s case

25.  The wife’s case is that the items and amount as stated in the Form E are all reasonable and are not excessive.

26.  Mr. Yip submitted that the husband was paying at least HK$15,000 per month to the wife for herself and for the daughter previously. Given that the husband was paying not less than HK$15,000 per month to the wife as living expenses for both the wife and the daughter, the husband was now asking to reduce that amount for more than half.

27.  Mr. Yip submitted that the husband was in fact seeking to reduce a net of HK$3,000 per month to be paid as interim maintenance to the wife and the daughter.

Issues of the case

28.  The following issues arise for my consideration:

(a) How much maintenance should the husband pay to the wife as reasonable maintenance pending suit for herself and the daughter? (issue 1)

(b) Can the husband afford to pay the sum? (issue2)

Issue 1

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

The wife’s Financial Position and needs

30.  It is worth noting that the wife in this case had based her reasonable needs on the standard of living in which she claimed to have been provided by the husband prior to the divorce petition.As to the monthly outgoings for the wife and the daughter, the figures quoted in her Form E were $33,623 and they were made up of the following items:

General
Rent	$2,439
Utilities	$1,400
Food	$4,500
Household expenses	$1,500
	$9,839
Personal
Meals out of home	$3,500
Transport	$1,500
Clothing/Shoes	$800
Personal grooming	$2,000
Entertainment/presents	$500
Holidays	$333
Medical/Dental	$233
Contribution to parent	$1,450
Others	$1,050
	$11,366
Daughter
School fees	$420
Extra tuition fees	$2,700
School books and stationery	$525
Medical/Dental	$400
Entertainment/presents	$1,000
Holidays	$333
Clothing/Shoes	$667
Insurance premium	$2,076
Lunches and pocket money	$480
Other Transport	$150
Child care expenses	$1,500
Uniform	$117
Others (extra-curricular activities)	$2,050
	$12,418
Grand Total:	$33,623

37.   In so far as this particular case is concerned the reference to the reasonableness of the expenses of the wife and the daughter is particularly pertinent.

38.   The amount of the previous sum given to the wife was one of the indicators, though not a conclusive one, for me to consider what amount should be reasonable and fair in the circumstances.

39.   It was the wife’s contention that the husband was paying at least HK$15,000 per month to the wife for herself and for the daughter (see bundle A page 174 para.4). The wife stated that the husband had income at least HK$40,000 per month previously excluding rental income from taxi.

40.   The husband disagreed and said that the wife ought to know that his income rarely exceeded HK$11,000 per month.  The husband stated that his income during good years was only at the range of HK$13,000 per month.

41.   The husband stated that there was a significant drop of income. In the year of 2015 to 2016, the husband said that his income dropped to less than HK$8,000 per month.

42.   It seems that one of the issues needed to be taken into account is whether the husband was paying at least HK$15,000 per month to the wife for herself and for the daughter previously.

43.   According to the Trading & Profit & Loss Account for the year ended 31^st March 2014 of the husband, the husband received HK$243,000 as fare receipt by him as night shift taxi driver. His working days in that year was 324 days and he adopted HK$750 as his average daily fare receipt in that year.

4.   According to the Profit & Loss Account for the year ended 31^st March 2015 of the husband, the profit for the year was HK$156,005.66. For accounting and tax purposes, the husband was entitled to deduct the item of depreciation for the sum of HK$45,667.

45.   However, to ascertain the actual money he could use for that year, my view is that the said sum of HK$45,667 needed to be added back to the profit for that year, because no actual money was spent for that item. Therefore, the husband should have at least HK$201,672.66 to spend for that year, which means on average he had HK$16,806 to spent. My view is that the husband had the ability to pay HK$15,000 per month in that year, as the husband said that the wife required him to give all his income to her.

46.   Ms. Ng submitted that the Profit & Loss Account of the husband was a conclusive piece of evidence to show how much the husband earned for that particular year. I do not agree.

47.   My view is that this piece of evidence could not be conclusive evidence of how much the husband earned for that particular year. I am of the view that while it could show at least how much he earned, other evidence could also be adduced to prove to the contrary that the husband had other means to pay for the family expenses.

48.   Ms. Ng submitted that as revealed by the Tax Returns and Notice of Assessment, the annual incomes of the family for the years 2014-2015 and 2013-2014 were around HK$270,000 and HK$170,000, and the husband could have afforded to pay to the wife HK$16,500 and HK$8,000 for the respective years.

49.   Ms. Ng submitted that it is inherently improbable for the family to have monthly expenses as high as HK$33,623 as claimed by the wife.

50.   According to the wife’s Form E, she stated that the total monthly expenses for herself and the daughter was HK$33,623 per month.

51.   Although the wife had salary, she said that her salary was not stable. Her basic salary was HK$2,500 per month, and the range of her salary per month could be HK$4,000 to HK$11,000, depending on how much commission she could earn in that month.

52.   Both parties did not dispute that the husband transferred HK$560,000 to the wife on 3^rd December 2013, and the wife managed to settle the loan with the bank immediately on 4^th December 2013.

53.   In that case, there would be a surplus of approximately HK$260,000 to be held by the wife in her bank account. The wife said that the surplus of HK$260,000 had been used for the family expenses.

54.   The wife said that the husband gave her HK$15,000 per month and yet that was not sufficient to cover all the family expenses, she said that HK$260,000 was used to cover the family expenses also.

55.   I am of the view that it is not inherently improbable for the family to have monthly expenses as high as HK$33,623 as claimed by the wife, because other than the income of both parties, the family also had other means to pay for the expenses.

56.   In addition, to determine the martial standard of living, apart from the income of both parties that should be taken into account, the assets of the family should also be considered. Mr. Yip submitted that the total amount of assets of the family should be in the region of HK$2.7 million to HK$3 million, and that it would be fair to say that this is not a family without means which I agree.

57.   While it is important to determine what amount the husband has previously given to the wife, it is equally important to assess whether the present amount of expenditure of HK$33,623 is reasonable.  If the present amount of expenditure of HK$33,623 is unreasonable, then this amount will need to be adjusted.

58.   Then what is maintenance pending suit? By definition, maintenance pending suit is restricted to payments which constitute “maintenance”, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation.

59.   “Maintenance” is a broad concept, and it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living as appropriate.

60.   An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. I remind myself that it is not simply to assume that wealth equates extravagance. Some wealthy married couples live comparatively modesty lives and spend with a discipline born of discretion, while others enjoy consumption on a grand scale.

61.   In the present case, my focus should be ondetermining the “immediate and reasonable needs” of the wife and the daughter.

62.   Ms. Ng submitted that the wife claimed for food in the sum of HK$4,500 and meals out of home for HK$3,500, totally HK$8,000, and that this sum was an exaggerated sum. She submitted that a sum of no more than HK$3,000 for both items should be reasonable.

63.   My view is that for food under the general expenses, HK$3,000 is reasonable, which means HK$100 per day for breakfast and dinner for the family. Whereas for meals out of home, my view is that HK$2,000 is reasonable, which means HK$50 per day for lunch for 24 days and HK$200 per day for 4 weekend dining out.

64.   Ms. Ng submitted that the sum claimed by the wife for household and utilities expenses is excessive. She stated that the husband’s calculation for the total sum of these two items is HK$1,339, and the said amount should decrease after the husband’s moving out from the former matrimonial home. She therefore suggested that HK$900 is reasonable for the said two items.

65.   Ms. Ng submitted that the water bill should be HK$60 per month, the towngas bill should be HK$300 per month, the electricity bill should be HK$500 per month, the internet fees and the wife’s mobile phone fees should be HK$289 and HK$189. Therefore, the total amount for “household expenses” and “utilities” should be HK$1,338. Ms. Ng submitted that this amount was supposed to have decreased after the husband’s moving out from the former matrimonial home.

66.   The husband moved out the matrimonial home on or about 5^th December 2015. Save and except the water bill, all the other bills produced were bills of expenses incurred after the husband had moved out the matrimonial home. My view is that the utilities expenses for the sum of HK$1,300per month should be considered as reasonable.

67.   Ms. Ng stated in her written submission that the wife said that “household expenses” included utility, food, tutorial fee of the daughter, rent, entertainment fee of both herself and the daughter (see the wife’s 2^nd Answer, Answer 1b(3)). The household expenses that the wife referred to was not the same as the miscellaneous household expense referred to in her Form E.

68.   Miscellaneous household expenses shall cover groceries for the people living in the matrimonial home. My view is that HK$1,000 per month should be reasonable, taking into account that the husband had moved out.

69.   Ms. Ng submitted that it was not reasonable for the wife to claim HK$800 for clothing and HK$2,000 for personal grooming. She stated that the husband accepted a sum of no more than HK$1,000 for both items.

70.   My view is that these two items needed to be considered together as these items were expenses for one’s outlook and appearance. The wife is a working woman, I considered that HK$1,500 should be reasonable for these two items.

71.   As regards to transport, the wife claimed HK$1,500 under this head. Ms. Ng submitted that on the basis that the wife had to commute to work (from Tsz Wan Shan to Tsim Sha Tsui) 24 days per month, a figure of HK$600 is reasonable (i.e. HK$25 per day). The husband accepted that a sum of no more than HK$700 under this head.

72.   My view is that HK$1,000 is reasonable under this head, as other than working days, there shall be expenses during weekend. Further, it is not reasonable just to confine the expenses for HK$25 per day during working days without any flexibility and buffer.

73.   I also consider that the entertainment/present and holiday expenses should be treated together because it reflects the leisure activities one enjoys inside and outside Hong Kong. For these 2 items, the wife’s expense was $833,and Ms. Ng submitted that HK$300 should be reasonable for the wife on these two items. My view is that the wife’s expenses on these 2 items is reasonable, I will allow HK$833 for these 2 items.

74.   As regard to medical/dental expenses, the wife claimed HK$233 per month and I consider that it is a reasonable sum. As to contributions to parents and other expenses (i.e. continuous education), I consider that they should not be provided for for the present purpose.

75.   As to the daughter’s expenses, Ms. Ng submitted that the wife had grossly inflated the daughter’s expenses.

76.   Firstly, I see no reason why the school fee for the sum of HK$420 and school books and stationery for the sum of HK525 should not be provided for.

77.   Ms. Ng submitted that before the divorce, the daughter only had 3 extra-curricular activities which included tutorial classes for all subjects during weekends, ice-skating and piano (see the husband’s 6^th affirmation), and the monthly fee for these respectively are HK$1,000, HK$868 and HK$798 and hence HK$2,766 in total.

78.   Ms. Ng further submitted that after the divorce, the wife made the daughter enroll private English tutorial classes (Saturdays and Sundays) and English oral classes (Saturdays) and she was now claiming a total of HK$4,750 for tutorial classes and extra-curricular activities, which were about HK$2,000 more than those before the divorce.

79.   The husband was concerned about whether these extra classes were picked up by the wife for the daughter against her own free will. Ms. Ng further submitted that it was doubtful whether these English classes could help improve the daughter’s academic performance, as the wife had failed to provide with the husband the updated school report.

80.   Ms. Ng submitted that in order not to compromise the daughter’s needs, the husband was willing to pay for those extra classes enrolled after the divorce and will review or challenge the amounts of these items at a later stage or at the ancillary relief trial.

81.   My view is that the previous 3 extra-curricular activities should continue and I see no reason why HK$2,700 should not be provided for.

82.   As to the private English tutorial classes and English oral classes, I am of the view that as long as the expenses is reasonable and affordable, there is nothing wrong to enroll the daughter to English language course to improve her language skill. I therefore consider that the extra HK$2,050 per month incurred should be provided for.

83.   These expenses should be supported by receipts and provided to the husband in due course, and if necessary to be adjusted subsequently.

84.   As regards to the medical/dental, entertainment/presents, holidays, clothing, the wife was claiming HK$2,400 in total. The husband complained that the wife had failed to provide any breakdowns and documentary evidence.

85.   The husband said that the daughter did not have any pre-existing illness and the usual entertainment was to go to theme parks in Hong Kong. Ms. Ng submitted that the husband accepted that a sum of no more than HK$800 for these items.

86.   My view is that reasonable expenses for medical/dental should still be provided for, even the daughter did not have any pre-existing illness. HK$200 per month would be reasonable for this item.

87.   As to the expenses for entertainment/presents and holidays,the wife claimed for HK$833. My view is that the wife’s expenses on these 2 items is reasonable. I am of the view that the daughter’s expenses on these 2 items should be similar to the wife’s. Therefore, I will consider that the daughter’s expenses on these 2 items should be HK$833.

88.   As to the clothing/shoes, I consider that a sum of HK$500 per month is reasonable, as young child has a need to replace clothes and shoes on a more frequent basis to cater for the growth.

89.   The husband also complained that the wife failed to provide any documentary evidence in relation to the insurance premium fees for the daughter, and that it was doubtful whether the daughter’s insurance premium was as high as HK$2,076.

90.   However, Ms. Ng submitted that same as the situation as those extra classes enrolled after the divorce, the husband undertook to pay for this item, in order not to compromise the daughter’s need. In that case, I see no reason why the expenses for the insurance for the sum of HK$2,076 should not be provided for.

91.   This expenses should be supported by receipts and provided to the husband in due course, and if necessary to be adjusted subsequently.

92.   As regards to the lunch and pocket money, the wife claimed HK$480 which means HK$24 per day.My view is that the daughter needed to attend school for around 20 days in a month. I consider that HK$480 is reasonable.

93.   As regards to other transport and uniform, the wife claimed HK$150 and HK$117, these two sum are also reasonable. I consider that HK$150 and HK$117 should be provided for.

94.   As regards to child-minding fees, the wife claimed HK$1,500. The husband complained that during the weekends, the wife sent the daughter away to the residence of Brother’s wife’s parents in Shatin, which are far away from the wife’s residence.

95.   The husband said that there is other option, and the wife could have sent the daughter to the residence of the husband’s mother. The wife should explore this option or some other alternative, as such HK$1,500 child-minding fee could be better spent for other expenses.

96.   I accepted the husband’s observation, I,therefore, do not see that this expenses should be provided for, as it was not necessary, and there could be other options.

97.   By reason of the aforesaid adjustments, the monthly outgoings for the wife and the daughter should be the following items and amount:

General
Rent	$2,439
Utilities	$1,300
Food	$3,000
Mis. household expenses	$1,000
	$7,739
Personal
Meals out of home	$2,000
Transport	$1,000
Clothing/Shoes/Personal grooming	$1,500
Entertainment/presents/holidays	$833
Medical/Dental	$233
	$5,566
Daughter
School fees	$420
Extra tuition fees	$2,700
School books and stationery	$525
Medical/Dental	$200
Entertainment/presents/Holidays	$833
Clothing/Shoes	$500
Insurance premium	$2,076
Lunches and pocket money	$480
Other transport	$150
Uniform	$117
Extra-curricular activities	$2,050
	$10,051
Grand Total:	$23,356

98.   By reason of the aforesaid, I am of the view that $23,356 should be a reasonable sum for general and personal expenses of the wife and the expenses of the daughter for the maintenance pending suit purpose for the wife to cover the immediate need of the wife and the daughter.

99.   Next, I need to consider how much the husband should contribute to the maintenance of the wife and the daughter. Ms. Ng submitted that the wife has been working as a part-time saleslady at a jewelry shop at Tsim Sha Tsui for 5 and a half years.

100.   Ms. Ng submitted that the average monthly income of the wife was HK$11,380 based on her 2014-2015 Tax Return Assessment. Ms. Ng complained that the wife should not state in her Form E that her average monthly income was HK$10,000 only.

101.   Ms. Ng said that the wife averred that her salaries in recent months ranged from some HK$4,000 to some HK$11,000. She complained that according to the salary slips of the wife in the year 2012, her monthly salary could be as high as HK$19,419. However, my view is that that was only a previous single incident to indicate that the salary of the wife could be variable. More importantly, it is the average salary of the wife for the recent years that should be taken into account for the present purpose.

102.   In that case, even if I adopt that the wife’s income should have HK$11,380 per month instead of HK$11,000, her salary would not be sufficient to cover the general expenses and her personal expenses, and there will be a shortage of HK$1,925.

103.   The expenses for the daughter after adjustment should be HK$10,051. Even if the husband complained that the insurance premium should not be as high as HK$2,076, the husband is not justified to vary the amount to HK$7,000 for the daughter.

104.   The interim maintenance order which was made by Deputy District Judge A. Yim on 27^th January 2016 required and ordered that the husband shall pay HK$2,000 and HK$8,000 as interim maintenance for the wife and the daughter respectively.

105.   The present hearing is the application by the husband to vary downward the interim maintenance, and the wife only resisted the husband’s application. The wife did not make any application to vary upward the interim maintenance. I see no reason to disturb the interim maintenance order previously made by Deputy District Judge A. Yim on 27^th January 2016.

Issue 2

Can the husband afford to pay these sums?

The husband’s Financial Position

106.   There will be no issue of ability to pay by the husband, as the husband offered to pay HK$7,000 and the remaining HK$3,000 asked for by the husband to reduce could be provided for in the Injunction order which was conceded by the wife. During the hearing, Mr. Yip on behalf of the wife had confirmed that provision could be made for in the Injunction order.

107.   In the written submission of Mr. Yip related to the husband’s application for discharge of the Injunction order, Mr. Yip had stated that the husband be allowed to withdraw HK$3,000 per month, being the purported reduced amount sought to be varied by the husband in the interim maintenance order, from the restrained HSBC account under the name of the husband given that the same are withdrawn to pay to the wife as part performance of the husband’s obligation under the existing interim maintenance order for the maintenance of the wife and the daughter.

108.   By reason of the aforesaid, it does not matter whether the money restrained in the Injunction order represented the fair share of the wife’s entitlement or the money restrained belonged to the husband entirely. The purported reduced amount of HK$3,000 could come from that source, as I had made a separate ruling that the Injuction order should continue and the husband’s application to discharge the Injuncion order be dismissed.

109.   An amount of HK$3,000 will come from the restrained HSBC account, whereas the remaining should be paid by the husband directly to the wife.

Order

110.   It is ordered that paragraphs 2 and 3 of the summons taken out by the husband dated 4^th May 2016 be dismissed.

Costs

111.   I will make a costs order. Costs shall follow the event. I will make a decree nisi that costs of this application shall be to the wife to be taxed if not agreed, and the wife’s own costs be taxed in accordance with Legal Aid Regulations, such order to be made absolute upon the expiration of 14 days. There shall be certificate for counsel.Lastly, I thank both counsels for their assistance.