LKM v. LWC

FCMC 6076/2022

[2023] HKFC 124

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6076 OF 2022

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J U D G M E N T

(MPS and Interim Maintenance for the Child)

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Introduction

1.  This is an application by the Petitioner (“the Wife”) for maintenance pending suit for herself pursuant to section 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and interim maintenance for the only child of the family (“the Child”), now aged 4, pursuant to section 5 of the same ordinance. By virtue of the summons dated the 13 July 2022, the Wife seeks as follows:

a. The Respondent (“the Husband”) do pay to the Petitioner by way of maintenance pending suit periodical payments in the sum of HK$12,500 per month to be backdated to the date of the Petition in this suit or such sums and for such term as the Court deems fit and to continue thereafter until further order by the court;

b. The Husband do pay the Wife on behalf of the Child by way of interim maintenance periodical payments in the sum of HK$27,200 per month to be backdated to November 2020 or such term as the court deems fit and to continue thereafter until further order by the court;

c. Costs of this application be to the Wife, to be taxed if not agreed; and

d. The Wife’s own costs be taxed in accordance with the Legal Aid Regulations.

2.  By an Order dated 31 October 2022, the Husband was ordered to pay a monthly sum of HK$15,000 per month being interim maintenance for the Child[1]. Since then, the Husband has been paying monthly maintenance of HK$15,000 as ordered.

Background of the family

3.  The parties married on 17 December 2017. The Child was born on 14 December 2018 (i.e. currently 4 years and 5 months old). The parties were separated on 3 February 2021. The Wife petitioned for divorce on 13 July 2022. The marriage lasted slightly more than 3 years.

4.  At present, the Husband’s monthly income is around HK$61,000 per month. Although the Wife became a full-time mother in or around April 2019, she was gainfully employed again shortly after the Petition (and more than half a year after separation) since September 2021[2].

5.  The Wife’s monthly income since August 2022 has been HK$29,000.

The Laws

6.  Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“the MPPO”), the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of presentation of the petition or the making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.

7.  The Court of Appeal in HJFG v. KCY [2012] 1 HKLRD 95 summarised the established principles,

“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.

34. By definition, therefore, 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. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing. In the present case, the judge recognized the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.

35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.

36. 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. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the judge’s reference to the source of those principles:

i. The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

ii. A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

iii. 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. That budget should be examined critically in every case to exclude forensic exaggeration.

iv. 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 a situation, the court should err in favour of the payee.

38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad-brush’ basis.”

8.  Further, Rayden and Jackson on Relationship Breakdown, Finances and Children (Lexis Nexis), said the following:

“[11.78] There is no hard and fast rule, and no fixed proportion: each case depends on its own facts. 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 the MCA 1973, s 25 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.

[11.79] 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. 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. The court can look at the reality of the situation and take into account voluntary funding from third parties (see TL v ML above).

9.  As for the interim maintenance for the children, the empowering provision is section 5 of the MPPO. In DX v LN (Maintenance Pending Suit) (FCMC 7870/2014; 21 September 2015), Bruno Chan DJ said:

“27. As the Wife’s present application is not just for her own reasonable needs but also those of the 2 children of the family whose care and control has earlier been granted to her, it would also be relevant to note that s 5 of MPPO gives the court much wider powers in dealing with financial provision for children both in terms of both the time for making orders which is before (hence maintenance pending suit) or on granting the decree of divorce, and the range of orders that the court can make including periodical payment, secured periodical payment, as well as a lump sum for the benefit of the children or for the purpose of enabling any liabilities or expenses reasonably incurred by or on behalf of the children before the making of the application, and that the court may exercise such orders from time to time, and to make further orders from time to time.

28. Furthermore, when considering such application albeit interim on behalf of the children, s 7(2) of MPPO requires the court to exercise those powers as to place the children, so far as it is practicable and just to do so, in the financial position in which the children would have been if the marriage had not broken down and each of the parties had properly discharged his or her financial obligations and responsibilities towards them. This would in my view be particularly relevant when the court comes to consider the standard of living which the children used to be able to enjoy and the parties’ proposed financial provisions for them.”

10.  Guided by the above principles, I now turn to the present application.

Discussion

Wife’s reasonable needs

11.  In respect of Wife’s household general expenses, the Husband only disputed the items of food. The Wife said she and the Child spent $4,500 per month on food, while the Husband said $2,000 would suffice. I am of the view that $4,000 each month is a reasonable amount spent on food for both the Child and Wife. It is of note that Husband stated that he spent $3,000 per month on food for himself only.

General expenses

Item	Amount (HK$)
Rent	13,800
Utilities (electricity, gas, Internet, telephone & water, laundry)	800
Food	4,500 4,000
Other household expenses	1,500
Total monthly household expenses	HK$20,100

Wife’s personal expenses

12.  As the Wife’s solicitor submitted that the Wife usually stayed home for dinner, I therefore marked down the amount spent on “Meals out of home” from $5,000 to $3,000. Regarding the item of Transport, the Wife said that she sometimes needed to take taxi when bringing the child to school in the morning which I do not consider to be a reasonable need, especially the Husband is now willing to pay the salary of a helper. I therefore deducted $500 from $1,500 as suggested by the Wife in respect of Transport. I have also cut down the amount of expenses of clothing, grooming and entertainment as marked below, given it is an application for maintenance pending suit which I should consider the need of the Wife on a short term basis. Lastly, I have deleted the expenses on holiday, medical and contribution to parent, as these are not items of immediate need in my view. For Medical and Dental expenses, the Husband is willing to pay the medical insurance and therefore I do not see the need for the Wife to be paid extra on the same.

	Meals out of home	5,000  3,000
	Transport	1,500 1,000
	Clothing/shoes/ accessories	2,000  1,000
	Personal grooming (haircut and cosmetics)	3,000  1,500
	Entertainment and presents	2,000  1,000
	Holiday	4,000  0
	Medical/Dental	2,000  0
	Insurance Premium	3,262
	Contribution to parents	6,000  0
	Total (Personal)	10,762

Child’s expenses

13.  In respect of Child’s expenses, I have cut down the extra tuition fees, books and stationery, entertainment and clothing as stated in the table below. In respect of Child-minding, instead of hiring a part-time local carer I consider a full-time helper from overseas is the norm for a family in Hong Kong.

Item	Amount (HK$)
School fees	1,420
Extra tuition fees	5,500  4,500
School books and stationery	1,000  500
Medical and dental	0
Extra-curricular Activities (“ECAs”)	2,000
Entertainment / Presents	2,000  1,500
Holidays	0
Clothing / Shoes / Accessories	1,500 1,000
Insurance premium (Life Insurance)	1,730
Lunches and pocket money	600
Other transport	500
Child minding	7,800  6,000
Uniform	200
Total monthly expenses for children	19,950

Husband’s ability to pay

14.  The Husband has never raised any issue about his ability to pay maintenance. He should have none, with his steady income continuing to increase from HK$38,000.00 at the time of marriage[3] to HK$56,000.00 in early 2019[4] and to over HK$60,000.00 currently. The Husband has been paying HK$15,000.00 for the Child’s monthly interim-interim maintenance since 1^st November 2022.

15.  Currently, the Husband spends HK$16,500.00 on rent, HK$14,000.00 on contribution to parents, $4,300 on entertainment and around $10,000 on food including meals out of home. I consider that those can be reduced to a certain extent in case the Husband said that he had difficulty to pay $6,000 odd dollars more to Wife per month.

Wife’s financial resources

16.  At the time of this application, the Wife earned HK$21,000.00 per month[5]. Subsequently, she took up employment as administration officer with Olympus Hong Kong and China Limited (‘Olympus’) in August 2022 with a monthly salary of HK$28,000. After the end of probation, her monthly salary increased to HK$29,000[6].

17.  Unfortunately, The Wife’s employment with Olympus was terminated in late April 2023. Having said that, for the purpose of the present application, the Wife is willing to adopt HK$29,000.00 as her monthly salary.

18.  The Husband alleged that the Wife earned more than she said and that the she possessed various financial means [7]. The Wife has also provided calculation of the sum of HK$50,129.03 received from Olympus on 22^nd September 2022 (salary for August and September 2022 plus conditional compensation) and produced relevant documents[8].

19.  In respect of the Wife’s previous property, she has explained the usage of the proceeds from the sale of her previous property, which took place on 2^nd November 2017 before her marriage with the Husband, and produced relevant documents[9]. The Wife has also provided the whereabouts of the valuable personal items which the Husband alleged that the Wife had possessed and gave the reasons for selling or giving away those personal items which she no longer kept[10]. It is unknown how the Husband came up with the estimation of the current values of those items in the absence of calculation or documents from him. In any event, the Wife submitted that given the insufficient amount of money and the way in which the Husband paid the maintenance, she had to use both the sale proceeds and those personal items to meet the financial needs the Child that she had been facing which I accept.

Marital living standard

20.  It is not much disputed that the family had a reasonably comfortable standard of living during marriage[11]. The Former Matrimonial Home is about 500 square feet comprising two bedrooms, a living room and a balcony. They also had access to a clubhouse. After getting married, the Wife and the Husband travelled to the United Kingdom on honeymoon. In daily life, the Husband also drove the family around in private cars, usually 7-seaters[12].

21.  On the evidence, it seemed that the Wife and the family had been enjoying a reasonable good standard of living[13]. The Child was also provided with good quality food, clothes, books, toys and attended playgroups, not to mention visits to Disneyland[14]. In fact, the Wife and the Husband did travel to Xiamen and Singapore during their marriage[15]. The Wife herself also went on a trip to Thailand[16]. The Wife’s trip to Japan with her younger sister was only cancelled after the Wife became pregnant[17]. Another trip for the family was planned in 2020 but was cancelled because of the pandemic[18].

22.  However, as said above, I consider travelling during holiday should not be considered as an immediate need and the expenses of this items would not be added in this application. The travelling expenses should only be dealt with at a later stage of the proceedings, if necessary.

Backdating

23.  It is undisputed that the Husband had stopped paying maintenance to Wife since November 2020. It is also common ground that the Wife lived at Husband’s mother’s place from November 2020 to April 2022 during which the Wife did not need to pay rent and Child’s milk powder and diapers. The Wife only insisted that she needed to buy her own food, which the Husband said the opposite. The Wife was employed again from September 2021 onwards.

24.  Husband’s Counsel admitted in court that the Husband should have paid the Child’s interim-interim Maintenance from April to October 2022 after Wife moved out from his mother’s place.

25.  Given the provision by Husband’s mother before April 2022 and that the Wife had started working again since September 2021, I consider the Husband should pay the interim maintenance to the Child and the Wife from April 2022 onwards.

Conclusion

26.  In short, the Wife’s and the Child’s total monthly expenses as I calculated above should be $20,100+$19,950+ $10,762=$50,812.

27.  The Wife’s income together with the interim-interim maintenance for the Child currently paid by the Husband is $29,000+$15,000=$44,000.

28.  The Wife therefore has a shortfall of $6,812 per month since the last order of interim-interim maintenance for the Child and I now order the Husband to pay a monthly MPS of $6,812 to the Wife to meet her reasonable and immediate need between 1 November 2022 to 1 July 2023.

29.  The Interim maintenance for the Child remains unchanged, being $15,000[19] per month.

Orders

30.  Having analysed as the above, I now order that:

(a)  The Husband do pay the Wife a monthly sum of HK$6,812 (‘the MPS’) being periodical payment for the maintenance pending suit of the Wife by sending to the Wife’s solicitors a cheque payable to ‘Director of Legal Aid’ on or before the 1^st day of each and every calendar month commencing from 1 July 2023 until further order of the Court. The Wife’s interest in the MPS be subject to the First Charge of the Director of Legal Aid;

(b)  The Husband do pay the Wife the backdated MPS for the period from 1 April 2022[20] to 30 June 2023 in a sum of HK$102,180 [HK$ 6,812 × 15 months] by sending to the Wife’s solicitors a cheque payable to ‘Director of Legal Aid’ within 28 days from the date of the Order to be made herein. The Wife’s interest in this sum be subject to the First Charge of the Director of Legal Aid;

(c)  The Husband do pay the Wife the backdated Interim Maintenance for the period from 1 April 2022 to 31 October 2022 in a lump sum. The difference in a sum of HK$ 105,000.00 [HK$15,000.00 × 7 months] be paid in a lump sum directly into the Petitioner’s designated bank account (account number 585-223860-292) within 28 days from the date of the Order;

(e)  No order as to costs (This being an Order Nisi, subject to any party’s objection within 7 days after handling down of this judgment);

(f)  The Wife’s own costs be taxed in accordance with the Legal Aid Regulations.