FM v. HK

FCMC 16350 / 2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16350 OF 2016

----------------------------

----------------------------

----------------------------------------------------------------

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

----------------------------------------------------------------

Introduction

1.  This is an urgent application by a Petitioner wife for maintenance pending suit pursuant to s 3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the two children of the family, two girls now aged 10 and 13 years, under s 5 of the same ordinance.

The main issues

2.  The main issue to be determined is how much should the husband pay to the wife for her interim provision and that of the children? The husband is presently paying HK$17,500 per month pursuant to an interim interim order of the court dated the 17 March 2017. He now proposes that he pay HK$5,000 per month in total i.e. HK$2,500 per child per month.

3.  The wife for her part now seeks HK$82, 866 per month in total for herself and the children.

Background 

4.  I am dealing with this matter on an urgent basis as I recognize that the present situation is untenable and that some sort of interim provision for the wife and the children is required immediately.

5.  The husband is said to be a well-known tennis coach who was recently employed by one of the private member’s clubs in town. It does not appear to be disputed that his employment was terminated because he was having an affair with a colleague. The wife believes that the affair is ongoing. The husband is of the view that his dismissal was orchestrated by the wife, something that she vehemently denies. In any event the parties separated in December 2016 and the husband’s employment came to an end on the 14 January 2017. Under the terms of his contract the husband was not permitted to work for a rival club until after the 14 April 2017. It is of note that that period has now come to an end.

6.  It is the wife’s case that the husband unilaterally terminated the lease on the former matrimonial home, which was a rental property and that since then she and the girls have been living with a friend who has kindly provided them with a room for their own use. The domestic helper is also staying with them.

7.  The wife is also a tennis coach – but it is her position that she is not as well known or as highly sought after as the husband and that she mainly has a Japanese clientele. The wife is Japanese and the husband is Canadian.

8.  It is the husband’s case that there is no alternative but for the wife and the two girls to relocate to Canada, where they own three properties between them and where schooling can be provided free of charge. It seems that the wife wishes to remain in Hong Kong. Whether that is feasible longer term will need to be explored at a later date. In the meantime, it is important that the wife and children are properly provided for in the interim. As things stand the wife is earning in the region of HK$25,000 per month in her own right and even with the maintenance of HK$17,500 per month she is struggling to make ends meet. She says that the husband was the family’s breadwinner and that historically he provided for most of their monthly expenses.

9.  The husband disputes the wife’s earning capacity and says that she should be able to earn more. As for the husband the wife says that he previously earned approximately HK$111,000 per month inclusive of rental allowance etc., whereas the husband puts his previous income at just over HK$80,000 per month. In any event he says that he can no longer earn what he did before as he has been suffering from a major depressive episode and that he has other chronic injuries which make coaching longer term difficult.   

10.  The parties married on the XX December 1999 and as I have said they separated in December 2016. The divorce petition was issued shortly thereafter, on the 15 December 2016, based on the husband’s unreasonable behaviour. The petition was originally defended. Hopefully that part of the case is now resolved and the divorce itself should now proceed on a more consensual basis.

The law

Maintenance pending suit

11.  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. As Rayden points out:-

“…what really matters is the immediate and reasonable requirements of the wife balanced against the ability of the husband to pay for them, assessed using a broad-brush approach.” (See paragraph 16.17 of Rayden, 18^th edition).

  Further

“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 …… 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 are every opportunity to do fairness by set off ……” (See paragraphs 16.18 of Rayden, 18^th edition).

How much maintenance should the husband pay to the wife as maintenance pending suit for herself and interim maintenance for the two children of the family?

12.  The wife is asking that the husband pay for all of the general household expenses and for all of the children’s expenses. She will be responsible for her own expenses, which according to her Form E amount to just under HK10,000 per month. However, given that the wife is working it seems to me that the wife should be responsible for her own personal expenses and for a share of the general household expenses and a share of the children’s expenses.

13.  The husband for his part maintains that he can only afford HK$5,000 per month. This is seriously questioned by the wife.

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

The reasonable needs of the children

14.  In her affirmation dated the 10 February 2017 the wife set out her proposed budget as follows:

Part 4 Current Monthly Expenses

4.1 General

Item	Amount (HK$)
Rent	22,000
Utilities (electricity, gas, rates, telephone & water)	1,500
Food (2 adults, 2 children)	12,000
Household expenses	2,000
Domestic helper(s)	5,500
Total monthly household expenses	HK$43,000

    Children Expenses

Item	For S (Age 14)	For K (Age 10)
School Fees	10,000	9,000
Extra Tuition	2,000	-
School books and stationery	250	250
Transport to and from school and tennis training	350	250
Medical Dental	133	133
ECA	6,800	3,000
Entertainment / presents	600	600
Holidays	1,500	1,500
Clothing / Shoes	1,000	500
Lunches / pocket money	1,050	300
Uniform	125	125
Others – haircut	200	200
	24,008	15,858
	Total: 39,866

15.  The husband challenges these expenses and suggests instead that the following amounts are more reasonable:

    Part A – General Monthly Expenses

Item	Previously paid by the Respondent (the father)	Current Amount (HK$)
Rent (Sub-divided flats)	√	15,000
Utilities	√	1,500
Food	√	10,000
Household expenses		1,000
Domestic helper	√	2,000
	TOTAL:	29,500
	2/3 of the TOTAL	19,666

    Part B – Monthly Expenses for Children

Item	Previously paid by the Respondent (the father)	Current Amount (HK$) up to June 2017
		For S (aged 13)	For K (aged 10)
School fees	√
Extra tuition fees (for Mathematics tuition)	√
School books and stationery	√	250	250
Transport to school and to tennis training	√	350	350
Medical / Dental	√	133	133
Extra-Curricular Activities (for tennis training)		0	0
Entertainment / presents	√	200	200
Holidays (twice a year, to Canada and Japan)		0	0
Clothing / Shoes (for tennis training)		300	200
Lunches and pocket money		1,050	300
Uniform		125	125
Others - haircut		100	100
Subtotal:		2,508	1,685
TOTAL for children:		4,193

Notwithstanding the fact that he accepts, even on his own case that the children’s share of the household expenses comes to HK$19,666 per month, he makes no proposal in that respect. It is not clear how he expects the wife to fund these expenses

The General Household Expenses 

16.  Although the husband challenges some of the other general expenses, in the main these seem fairly reasonable. I will though reduce the rental to HK$18,000 and the food to HK$10,000 per month. I will also take out the domestic helper expenses and place this item under the children’s expenses column. In total then the remaining general expenses amount to HK$31,500 per month as follows:

4.1 General

Item	Amount (HK$)
Rent	18,000
Utilities (electricity, gas, rates, telephone & water)	1,500
Food (2 adults, 2 children)	10,000
Household expenses	2,000
Total monthly household expenses	HK$31,500

Of that one third will be directly attributable to the wife and she shall be responsible for her own share of the household expenses in the sum of HK$10,500 per month. The remaining two thirds or HK$21,000 shall be split with the husband being responsible for ¾ of that expense – or HK$15,750 per month and the wife being responsible for ¼ or HK$5,250.      

The girl’s expenses

17.  Of those expenses, as set out in paragraph 14 above, I will reduce extra tuition to HK$1,000 per month and I shall take out of the equation the reference to entertainment. Each party shall be responsible for their own entertainment costs with the children. Likewise, holidays – as and when that becomes a relevant consideration. I also accept that the figure for clothes and shoes is a little on the high side and I will reduce that to HK$500 per month each. The two big items remain the school fees and the extra-curricular activities. The wife has taken the youngest child out of her present international school and has tentatively placed her in a local school. Longer term I accept that the parties will need to give serious consideration to the cost of schooling going forward and whether or not it is feasible for the children to remain in the international sector or indeed whether they will be able to remain in Hong Kong. In the short term though it seems to me that this cost must be found. Similarly, although the extra-curricular costs are high, I accept that these children are also gifted tennis players and that much of this cost is attributable to extra tennis lessons, training etc etc. For the time being I will reduce this by 50%.  In total then I accept that the cost for the children, including the cost of the domestic helper amounts to just under HK$35,000 as follows:

    Children Expenses

Item	For S (Age 14)	For K (Age 10)
School Fees	10,000	9,000
Extra Tuition	1,000	-
School books and stationery	250	250
Transport to and from school and tennis training	350	250
Medical Dental	133	133
ECA	3,400	1,500
Entertainment / presents	0	0
Holidays	0	0
Clothing / Shoes	500	500
Lunches / pocket money	1,050	300
Uniform	125	125
Others – haircut	200	200
Domestic helper	5,500
	Total: 34,766

Again the husband should be responsible for ¾ of this expense or HK$26,250 per month and the wife for ¼ or HK$8,750 per month.  

18.  In total then the husband shall pay HK$21,000 per child per month (i.e. HK$15,750 + HK$26,250 = HK$42,000 or HK$21,000 per child per month).  

The reasonable needs of the wife

19.  Generally I accept that the wife should be responsible for her own personal expenses, a share of the general household expenses and a share of the children’s expenses. In addition, though the wife has pointed out that one of the properties in Canada is presently untenanted. Until such time as a new tenant is found she is responsible for paying the mortgage in the sum of HK$5,576 per month plus CAD 500 (or HK$2,870) for an insurance policy for the husband. In such circumstances I shall order that the husband do pay the wife an additional sum of HK$8,500 to cover the cost of both of these expenses until such time as a new tenant is found or other arrangements are made.

Can the husband afford to pay this sum?   

20.  The husband says quite simply that he is unable to pay more than a total of HK$5,000 per month. The difficulty with that assertion is that it does not take into account the significant financial resources that he has had at his disposal over the last few months. Ms Kwan has analysed the situation from his bank accounts which shows inter alia that he received cheques totalling HK$540,173 from his former employer which were paid into his account on the 13 January 2017. The husband took HK$459,063 out in cash on the 18 January 2017. With respect this is quite an extraordinary thing to have done.

21.  There are also significant issues surrounding silver and gold. It seems that the parties kept significant amounts of both and that they used this as a form of savings. It does not appear to be in dispute that originally the parties held in the region of 7,415 – 7,500 ounces of silver/gold. Following the injunction proceedings issued by the wife on the 6 April 2017 it seems that there is only 2,186 ounces left. On the face of it the husband has had access to the remainder, which on Ms Kwan’s calculation amounts to a further HK$752,730. In part the husband’s case seems to be that some of the silver has been given to his mother as an allowance of some kind. For the avoidance of doubt, even if this is a genuine transaction, which seems unlikely in the circumstances, the needs of the husband’s mother do not take precedence over the legal and moral needs of his children and the Petitioner  

22.  In such circumstances it seems to me that the husband should have the financial resources at his disposal to pay the sums ordered. I am also proceeding on the premise that each party has the ability to earn a reasonable salary, but that the husband has the ability to earn more than the wife. In such circumstances and on a broad brush basis it seems to me to be totally reasonable to expect the husband to pay ¾ of the children’s expenses. The wife shall be responsible for about ¼ of the children’s expenses plus her share of the general expenses and her own outgoings. I accept that she may need to cut down on the latter in order to be able to afford her share of the expenses.   

Conclusion 

23.  I will therefore make an order that going forward that the husband pay HK$21,000 per month per child as interim maintenance for the two children of the family and HK$8,500 per month as maintenance pending suit for the Petitioner.

Costs

24.  Given that the wife has been more successful than not and that she has had no option but to make this application I shall make an order nisi to be made absolute in 14 day’s time that the husband do pay the wife’s costs on a party and party basis to be taxed if not agreed.

Order

25.  I shall therefore make an order as follows:

1) The Respondent shall pay maintenance pending suit to the Petitioner in the sum of HK$8,500 per month the first payment to be made on the 1 May 2017 and thereafter to be paid on the 1^st day of each succeeding month until further order.

2) The Respondent shall pay interim maintenance to the Petitioner for the two children of the family in the sum of HK$21,000 per month per child the first payment to be made on the 1 May 2017 and thereafter to be paid on the 1^st day of each succeeding month until further order.

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