MJB v. RB

FCMC 7911/ 2017

[2019] HKFC 244

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NUMBER 7911 OF 2017

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NUMBER 106 OF 2017

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(Consolidated pursuant to the Order made by HH J. Melloy dated 29^th August 2017)

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J U D G M E N T
(Interim maintenance)

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Introduction

1.  This is an application by a Petitioner wife for interim maintenance for the only child of the family, a little girl, N who is now aged 5 years, pursuant to section 5 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO).

The main issues

2.  The main issue to be determined is how much should the husband pay to the wife as interim maintenance for N? The wife originally sought HK$27,000 per month, but at the hearing she increased her claim to HK$30,250 per month, mainly because her rental had also gone up by HK$3,500 per month. In addition, she asked for a further sum of HK$6,000 being half of the cost of N’s bed and other age appropriate furniture. The husband for his part offers HK$3,000 per month i.e. a reduction from the interim interim order dated the 5 January 2018 of HK$6,500 per month. It is of note that the husband has not made a formal application in that regard.

Background 

3.  The parties married on the XX February 2013 in France and N was born in France the following year. The husband works in the hotel industry and the parties lived in the Middle East before relocating to Hong Kong in late 2016. The marriage broke down in quite spectacular fashion the following year with the wife making very serious allegations against the husband with respect inter alia to domestic violence and sexual assault against N. It is of note that no findings have been made with respect to those allegations and that the situation in the Family Court was essentially compromised with the husband providing a non molestation undertaking. Notwithstanding that criminal proceedings did ensue and the husband was convicted of common assault and assault occasioning actual bodily harm. The wife initially issued proceedings under domestic violence legislation and subsequently filed for divorce on the 21 June 2017. The decree nisi was granted on the 24 November 2017. On the 1 June 2017 the wife was granted interim custody and care and control of N. This became a final order on the 12 April 2018. It is of note that the husband does not currently have any contact with N. A Clinical Psychologist’s Report filed in January 2018 and a Multi Disciplinary Case Conference held in August 2018 were both inconclusive with respect to the wife’s allegations against the husband with respect to N.

4.  In so far as the finances are concerned, on the 5 January 2018 the court ordered the husband do pay interim interim maintenance of HK$6,500 per month with effect from the 1 February 2018. In part this was in recognition of the fact that the husband’s employment in Hong Kong had come to an end in June 2017 and that he was unemployed for a period of time thereafter. Consequently, the wife’s summons seeking interim maintenance for N, dated the 5 February 2018, was adjourned sine die with liberty to restore. The wife for her part began to work as a Clinical Assistant. She had also previously worked as a part time model. The wife’s summons for substantive maintenance for N was restored on the 21 February 2019.  

5.  The current situation is that the husband, who is now 42 years of age and of Dutch origin, has found new employment in London. The wife, who is 35, continues to live and work in Hong Kong with N.

6.  Whilst living in Hong Kong the parties enjoyed a fairly typical ex-patriate life style. They lived in a nice rental property in Midlevels with club facilities and they had a domestic helper. It is the wife’s case that they also enjoyed a reasonably high standard of living including regular travel and entertainment in high end establishments. The husband for his part maintains that this was only because of his position as an ex-patriate in the hotel industry and that this lifestyle could not have been afforded otherwise.

7.  There is a lot of information on the papers with respect to two rental properties in France, namely a property in Callas, which was purchased after the party’s marriage and is held in their joint names and a property in Nice that was purchased by the husband before the party’s marriage and is held in his sole name. It is the husband’s case that the net value of these properties is minimal. This is seemingly challenged by the wife. In any event it is the wife’s case that the outgoings for these properties were always covered historically by their rental. This is now disputed by the husband who insists that the wife should be responsible for half of the costs associated with both of these properties. There appears to be a lot of shenanigans surrounding the management of the properties and it is difficult to ascertain what is or is not the reality of the situation. Given the possible minimal value of these properties in any event, I would strongly suggest that a sense of proportion be adopted with respect to them going forward. In so far as this application is concerned and given that it is impossible for the court to come to a clear view with respect to them and the possible net income achieved from them, if anything, I intend to proceed on the basis of the parties earned income only.

The law

Interim maintenance

8.  The law is well known and not in dispute. Section 5 of the Matrimonial Proceedings and Property Ordinance, Cap 192 states that maintenance for children can be ordered either before or after the granting of the decree for divorce. In the event that an application is made for interim maintenance, the court will adopt exactly the same approach as when considering an application for maintenance pending suit under section 3 of the same ordinance. Thus 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 and their ability to pay maintenance for their children will only be examined in full at a later date at an ancillary relief trial if there is no agreement in the meantime either at a Financial Dispute Resolution hearing or otherwise. If there is found to be any overpayment or underpayment then that can normally be rectified at that time.   

9.  In addition, reference should be made to the Court of Appeal’s decision in HJFG v KCY (CACV 127/2011, 28 October 2011, where the following principles were reiterated with respect to 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.

10.  In this instance I accept that it will not be possible to replicate the ex patriate life style enjoyed by the parties previously. Further it is also of note that there are difficulties in the evidence produced with respect to the properties in France.  

How much maintenance should the husband pay to the wife as interim maintenance for N?

The parties’ income

11.  The husband earns a gross salary of GBP80,000 per annum or the equivalent of approximately HK$48,000 net per month after tax and other deductions. Although, as I have said, there is some dispute about whether or not he receives additional income from the rental properties in particular, for the purposes of this application I am proceeding on the premise that this is currently his only guaranteed income. The wife for her part currently earns approximately HK$32,000 per month net. Consequently, the parties earn in the region of HK$80,000 per month between them. Very broadly speaking the wife earns approximately 40% of that amount and the husband 60%.           

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

The reasonable needs of N

12.  In her updated Form E dated the 14 March 2019 the wife sets out her budget as follows (which has also been further updated during the hearing: see the item marked with an *):

Part 4 Current Monthly Expenses

4.1  General

Item	Amount
Rent	21,000.00*
Mortgage instalments	0
Utilities (electricity, gas, rates, telephone & water)	1,850.00
Management fees	0
Food	12,000.00
Household expenses	1,000.00
Car expenses	0
Insurance premia	164.00
Domestic helper(s)	0
Other (Printing + scanning + public washing machine etc)	750
Total monthly household expenses	HK$36,764

Attach copies of the latest rental receipt.

4.2  Personal

Item	Amount
Meals out of home	1,600.00
Transport	1,200.00
Clothing / Shoes	0
Personal grooming (including haircut and cosmetics)	500.00
Entertainment / presents	0
Holiday	0
Medical / Dental	4,727.20
Tax	3,011.00
Insurance premia	283.00
Interim maintenance	0
Contribution to parents	0
Dependent family members	0
Others
Total monthly personal expenses	HK$11,321.20

The wife’s general household expenses

13.  The husband challenges nearly all of the wife’s general expenses. Unfortunately, this is one of those cases where both parties will now need to cut their clothe according to the funds available, which will mean that of necessity both sides will need to make further economies to their estimated monthly budgets. Consequently, although many of the wife’s expenses are in the reasonable range, they will now need to be reduced further and some more than others. For example, I do not accept the estimate for food of HK$12,000 per month, for one adult and a 5 year old child. I will allow HK$7,000 for food. In addition, I will also reduce the other outgoings, including utilities to HK$1,000 per month; household expenses and “others” to HK$500 per month each. In total then the general expenses come to approximately HK$30,164 as follows:

Part 4 Current Monthly Expenses

4.1  General

Item	Amount
Rent	21,000.00*
Mortgage instalments	0
Utilities (electricity, gas, rates, telephone & water)	1,000.00
Management fees	0
Food	7,000.00
Household expenses	500.00
Car expenses	0
Insurance premia	164.00
Domestic helper(s)	0
Other (Printing + scanning + public washing machine etc)	500.00
Total monthly household expenses	HK$30,164

14.  I will round these down to HK$30,000 per month. Of that one half shall be directly attributable to the wife and she shall be responsible for her own share of the household expenses in the sum of HK$15,000 per month. The remaining half shall be split between the parties on a 60:40 basis i.e. 60% x 15,000 = HK$9,000. The husband shall be responsible for this share of the general household expenses and the wife shall be responsible for the remainder.

N’s actual expenses

15.  The wife set’s out N’s expenses in her Form E as follows:

4.3  Children

Item	Amount
School fees	2,712.00
Extra tuition fees (obligatory school trips and activities)	141.00
School books and stationery	940.00
Transport to school (including school bus)	675.00
Medical / Dental	1,762.00
Extra Curricular Activities	4,387.00
Entertainment / presents (no money to buy toys)	300.00
Holidays (I can’t afford)	0
Clothing / Shoes	1,200.00
Insurance premia	1,029.00
Pocket money (ice-cream, bubbles, carousel etc)	600.00
Other Transport	800.00
Child-minding fees	5,000.00
Uniform	430.00
Others (meals out of the house, presents for attending birthday parties etc)	600.00
Total monthly expenses for children	HK$20,576.00

16.  Again I accept that although most of these expenses seem reasonable, they will also need to be reduced where possible. In particular, it seems to me that it is possible for the allowance for extra- curricular activities to be reduced. I shall allow HK$2,000 per month. Likewise, I shall also reduce the cost for school books and stationery. Given that N has not even started school yet – HK$940 seems very high. I will allow HK$500 per month. Similarly, the cost of school uniform at HK$430 per month is also very high. I shall allow HK$200 per month and a further HK$500 per month for other clothing and shoes. The father also complains about the child minding fees, although clearly the mother does need someone to help take care of N when she is working and she does not appear to have a domestic helper. Consequently, I shall allow this sum in full. However other costs shall be reduced. I shall allow HK$500 for other transport and HK$300 each for pocket money and others as follows:

4.3  Children

Item	Amount
School fees	2,712.00
Extra tuition fees (obligatory school trips and activities)	141.00
School books and stationery	500.00
Transport to school (including school bus)	675.00
Medical / Dental	1,762.00
Extra Curricular Activities	2,000.00
Entertainment / presents (no money to buy toys)	300.00
Holidays (I can’t afford)	0
Clothing / Shoes	500.00
Insurance premia	1,029.00
Pocket money (ice-cream, bubbles, carousel etc)	300.00
Other Transport	500.00
Child-minding fees	5,000.00
Uniform	200.00
Others (meals out of the house, presents for attending birthday parties etc)	300.00
Total monthly expenses for children	HK$15,919.00

17.  In total then I accept that the cost for N amounts to HK$15,919 say HK$16,000 per month. The father shall be responsible for 60% of those expenses or say HK$9,600 per month.    

18.  In total then the husband shall pay HK$18,600 per month or say 18,500 per month for N’s expenses.      

Can the husband afford to pay this sum?   

19.  The husband maintains that he simply cannot afford to pay more than HK$3,000 per month. As will be seen I do not accept that to be the case.

20.  The father sets out his updated expenses in his latest Form E dated the 18 March 2019. I have put the expenses relating to the French properties in italics and as indicated above I shall not include them in my deliberations further. I have also placed an * against those expenses that although arguably reasonable are nevertheless capable of reduction. These include the cost of meals out of the home at GBP480 per month, clothing at GBP200 per month and holidays at GBP100 per month. In addition, I accept the wife’s criticism of the loans and in particular the loan repayment to the husband’s parents of GBP500 per month. At best this should probably be regarded as a soft loan.

4.1  General

Item	Amount
Rent The Respondent lived in Marylebone, London from November to December 2018 and the rent as GBP1,200 per month.  Please refer to Attachment 4.1 regarding the contract for reference. However, the landlord subsequently refused to fix the water leakage problems and therefore it was agreed that I could move out early.  The current accommodation arrangements are only temporary arrangements.  It is expected that the Respondent will move to a new place of residence in around April/May 2019.  Please see Part 4.4 below for the anticipated increase of his rental expenses.	HK$9*,108 (=GBNP900) Inclusive of the utilities and management expenses Note: This is the deal reached between the Airbnb landlord and the Respondent.  If the Respondent rents the Airbnb through the Airbnb website, he would need to pay GBP1,539 per month at a rate of about GBP51 per day.  Please refer to Attachment 4.1
Mortgage instalments *This is the monthly mortgage repayment for the Nice Property since it is no longer rented out and the Respondent has been paying the mortgage from his income	HK$7,456.06* (=EUR847.28)
Utilities (electricity, gas rates, telephone & water) of the Nice Property	HK$2,834.83 (EUR322.14)
Management fees of the Nice Property	HK$1,376.740 (=EUR156.41)
Food	HK$1,518 (GBP150)
Household expenses	HK$1,012 (GBP100)
Car expenses (The Respondent may elect to take the car from the company in the future and if he chooses to do so, he will incur car expenses.	HK$0
Insurance premia	HK$0
Domestic helper(s)	HK$0
Other (specify) – Monthly average of the expenses of the Callas Property inclusive of mortgage repayment and utilities expenses	HK$38,867.02 (=EUR4,416.71) [EUR53,000.48/12months]
Total monthly household expenses	HK$62,172.31

Attach copies of the latest rental receipt.

4.2  Personal

Item	Amount
Meals out of home	HK$4,857.60 (=GBP480)*
Transport *This is in addition to the GBP7,000 annual car allowance that the Respondent receives.	HK$1,012.00 (=GBP100)
Clothing/Shoes	HK$2,024.00 (=GBP200)*
Personal grooming (including haircut and cosmetics)	`HK$506.00 (=GBP50)
Entertainment/presents	HK$404.80 (=GBP40)
Holiday	HK$1,012.00 (=GBP100)*
Medical / Dental	HK$303.60 (=GBP30)
Tax	HK$0
Insurance premia	HK$0
Interim maintenance	HL$6,500.00
Contribution to parents	HK$0
Dependent family members	HK$0
Other (specify) The total amount of HK$6,570.61 includes the following payment: -– 1.   Repayment of the Respondent’s personal loan with Royal Bank of Scotland for the payment of the tax of the Callas Property in the monthly sum of GBP149.27; and 2.   Repayment of the Respondent’s loan owed to his parents for the payment of the mortgages and utilities of the Callas and Nice Property as well as the child maintenance in the monthly sum of GBP500.	HK$6,570.61 (=GBP649.27)
Total monthly personal expenses	HK$23,19.61

4.3  Children

Item	Amount
School fees	HK$0
Extra tuitions fees	HK$0
School books and stationery	HK$0
Transport to school (including school bus)	HK$0
Medical / Dental	HK$0
Extra Curricular Activities	HK$0
Entertainment / presents	HK$0
Holidays	HK$0
Clothing / Shoes	HK$0
Insurance premia	HK$0
Lunches and pocket money	HK$0
Other Transport	HK$0
Child-minding fees	HK$0
Uniform	HK$0
Other (specify)	HK$0
Total monthly expenses for children	HK$0

Total Monthly Expenses (4.1+4.2+4.3)

HK$85,362.92

21.  Thus it seems to me that the husband should be able to rearrange his financial affairs in the short term so that he is able to make proper financial provision for his daughter. I have also taken on board the point that he may also be able to borrow in order to make provision for her and that this analysis does not take into account the fact that he may also receive a bonus at the end of the year, although I accept that this is not guaranteed. The wife has also suggested that he consider re mortgaging the properties so that they are interest only. Although this may be an option in the longer term, it seems to me that this may be difficult in the short term and certainly prior to any Financial Dispute Resolution hearing.

Conclusion on the level of maintenance

22.  Consequently, I shall order that the husband pay the wife HK$18,500 per month for N with effect from the 1 October 2019.

23.  I have considered ordering the husband to backdate this payment to the date that the wife’s application was restored in February 2019 – i.e. a period of 6 or 7 months. However, it seems to me that this is likely to place an intolerable financial burden on the husband’s shoulders at this time. Neither party has any savings to speak of and the only assets are the two French properties referred to above. Consequently, whilst acknowledging that the wife has been almost solely responsible for N’s expenses since these proceedings began, I shall nevertheless not backdate these payments at this time. Nor will I direct that the husband pay her the additional HK$6,000 sought for furniture etc. This is something that may be considered again either at the Financial Dispute Resolution hearing or during other settlement negotiations.

Costs

24.  The wife has not been wholly successful with respect to quantum, but nevertheless I accept that she has had no option but to restore this application given the husband’s rather uncompromising stance. Consequently, I shall make an order nisi to be made absolute in 28 days’ time, that the husband do pay the wife’s costs of and arising out of her summons dated the 5 February 2018, such sum to be paid on a party and party basis to be taxed if not agreed. The wife’s own costs shall be taxed in accordance with Legal Aid Regulations.

Order

25.  Consequently I shall make an order as follows:

1)  The Respondent shall pay interim maintenance to the Petitioner for the child of the family in the sum of HK$18,500 per month, the first payment to be made on the 1 October 2019 and thereafter to be paid on the 1^st day of each succeeding month until further order.

2)  There shall be an order nisi to be made absolute in 28 days’ time that the Respondent do pay the Petitioner’s costs of and arising out of this application on a party and party basis to be taxed if not agreed. The wife’s own costs to be taxed in accordance with Legal Aid Regulations.  

3)  The First Appointment hearing shall be adjourned to the 5 November 2019 at 9:30 a.m.

4)  Both parties do personally attend that hearing. The husband shall give consideration to making an application for any future hearings to be conducted remotely.