G, DV also known as DL.V v. G, VNA also known as VNA. G

FCMC 7518/ 2017

[2018] HKFC 5

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7518 OF 2017

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J U D G M E N T
(Maintenance pending suit/Interim maintenance)

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Introduction

1.  This is an application by a Petitioner wife for maintenance pending suit for herself and interim maintenance for the two children of the family, an elder boy now aged 13 and a six-year old girl, pursuant to sections 3 and 5 of the Matrimonial Proceedings and Property Ordinance Cap 192.   

2.  The parties currently have joint custody of both children, with the wife having care and control of the son and the care of the daughter being shared between the parties on an interim basis. The daughter currently spends two nights per week with the mother from after school on Thursday until Saturday evening at 8:00 pm. She is based with her father for the remainder of the time.

The main issues

3.  The main issue to be determined is how much should the husband pay to the wife as maintenance pending suit and interim maintenance for the two children of the family? The wife seeks a round figure of HK$20,000 per month. She has not broken this down further.

Background 

4.  The parties, who are both Filipino, married on the XX May 2005 and separated in July 2014. This was then a marriage of about 9 year’s duration. The elder child was born a little before the parties married and therefore the relationship must have been in existence for some time before then. The divorce petition was issued by the wife on the 8 June 2017 based on two year’s separation. According to the wife’s Form J she has a new boyfriend, but it is not clear if there are any financial implications arising out of this new relationship. The wife is currently relying on CSSA for herself and the son. She does not receive CSSA for the daughter. The wife is not presently working in any capacity and maintains that this is difficult given her child caring responsibilities. She says that she would like to work part time.

5.  The husband is 36 years old and he works as an Architectural Draughtsman. As I have said the wife is currently unemployed. She is 35 years old.  

The law

Maintenance pending suit

6.  The ordinance 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 and their ability to pay may be dealt with at a later date at a full ancillary relief hearing if there is no agreement in the meantime.

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 also paragraphs 16.17 of Rayden, 18^th edition).

Interim maintenance

7.  Similarly the law on interim maintenance for children 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 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 also approached on a broad-brush basis.

8.  In addition reference can be made to the Court of Appeal 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.

How much maintenance should the husband pay to the wife as maintenance pending suit/ interim maintenance?

The party’s income

9.  The husband earns a salary of HK$33,900 per month. There was some dispute about his earning capacity and whether or not he had other financial resources at his disposal including additional sources of income. The husband dealt with the queries raised by the wife during the course of the hearing and in the main his responses were believable. Although I accept that this matter is likely to be the subject of further enquiries, for the purposes of this application I am proceeding on the premise that the HK$33,900 per month is currently his only income. I also accept, subject to the production of further discovery, that it is not reasonable to expect the husband to try to rent out the former matrimonial home in the Philippines, which he says is in a poor structural condition due to termites.

10.  The wife is not currently working. According to the Form E she previously worked as a part time restaurant server. The wife suggested during the hearing that it would make more sense for both children to be cared for by her on a full time basis and for the husband to take on the traditional role of wage earner. For the avoidance of doubt it is not appropriate for this matter to be approached in this way. There was also an issue concerning the wife’s earning capacity longer term and the affect that any court order might have on her entitlement to CSSA.       

The reasonable needs of the wife and the children when they are in her care and the husband’s ability to pay

11.  In her Form E dated the 21 July 2017 the wife sets out her expenses as follows:

Part 4 Current Monthly Expenses 4.1 General
Item	Amount
Rent	4,500
Mortgage instalments
Utilities (electricity, gas, rates, telephone & water)
Management fees
Food	3,500
Household expenses	2,000
Car expenses
Insurance premia
Domestic helper(s)
Others
Total monthly household expenses	HK$10,000

          Attach copies of the latest rental receipt.

4.2 Personal
Item	Amount
Meals out of home	600
Transport	1,500
Clothing / Shoes	400
Personal grooming (including haircut and cosmetics)	100
Entertainment / presents
Holiday	500
Medical / Dental
Tax
Insurance premia
Interim maintenance
Contribution to parents
Dependent family members
Others	250
Total monthly personal expenses	HK$3,350

4.3 Children
Item	Amount
School fees
Extra tuition fees	300
School books and stationery	290
Transport to school (including school bus)
Medical / Dental
Extra Curricular Activities
Entertainment / presents
Holidays	500
Clothing / Shoes
Insurance premia
Lunches and pocket money	1000
Other Transport
Child-minding fees
Uniform	100
Others (specify) Mobile Personal grooming(including haircut)	98 80
Total monthly expenses for children	HK$2,368

She says that these expenses are for herself and the son. She asks that the maintenance be rounded up to HK$20,000 per month to account for the money she also has to spend on her daughter when she is in her care.

12.  The husband for his part sets out his expenses in his Form E of the 3 October 2017 as follows:

Part 4 Current Monthly Expenses 4.1 General
Item	Amount
Rent	9,100
Mortgage instalments	2,600
Utilities (electricity, gas, rates, telephone & water)	900
Management fees
Food	4,000
Household expenses	2,500
Car expenses
Insurance premia	1,500
Domestic helper(s)	4,350
Other (specify) PCCW Now TV/Internet	758
Total monthly household expenses	HK$25,708

          Attach copies of the latest rental receipt.

4.2 Personal
Item	Amount
Meals out of home	1,800
Transport	400
Clothing / Shoes	500
Personal grooming (including haircut and cosmetics)	120
Entertainment / presents
Holiday	500
Medical / Dental
Tax	1,000
Insurance premia	500.40
Interim maintenance
Contribution to parents Mother
Dependent family members
Others (specify) Credit card debt	3,000
Total monthly personal expenses	HK$7,820.40

4.3 Children
Item	Amount
School fees
Extra tuition fees	163.63
School books and stationery	300
Transport to school (including school bus)	950
Medical / Dental
Extra-Curricular Activities	100
Entertainment / presents
Holidays	500
Clothing / Shoes	300
Insurance premia
Lunches and pocket money	370
Other Transport
Child-minding fees
Uniform	125
Others (specify) Vitamins and church offerings	230
Total monthly expenses for children	HK$3,038.63

General point

13.  As a general point it seems to me that this is one of those very unfortunate cases where on the face of it there is simply insufficient money to go around. Longer term both parties will need to maximize their earning capacity. This will mean the wife returning to work, at least on a part time if not on a full time basis. The husband will also need to consider his options. It is the wife’s case that the husband earnt more previously.

The wife’s expenses

14.  Although this was not raised during the hearing, I understand from the husband’s letter to the court dated the 20 November 2017 that he queries inter alia whether or not the wife is actually paying rent. This will no doubt also be subject to further discovery in due course. It is of note that the wife has only produced a typed up rental agreement which appears to record the fact that she is paying rent of HK$4,500 per month to her boyfriend. I accept that on the face of it this does not appear to be believable. As things stand at present however all of the wife’s other expenses appear to be reasonable save that I do not accept that the shared care arrangement of the daughter is likely to lead to additional cost to the wife of over HK$3,000 per month. This is especially given the fact that the father is responsible for most, if not all, of the daughter’s actual expenses. Also given the present circumstances I don’t accept that provision of HK$500 per month for the son and the wife (i.e. HK$1,000 per month in total) for holidays is an acceptable expense. Thus on a broad brush basis I accept that the wife is likely to have expenses in the region of HK$10,200 per month as follows:

Part 4 Current Monthly Expenses 4.1 General
Item	Amount
Rent	0
Mortgage instalments
Utilities (electricity, gas, rates, telephone & water)
Management fees
Food	3,500
Household expenses	2,000
Car expenses
Insurance premia
Domestic helper(s)
Others
Total monthly household expenses	HK$5,500

           Attach copies of the latest rental receipt.

4.2 Personal
Item	Amount
Meals out of home	600
Transport	1,500
Clothing / Shoes	400
Personal grooming (including haircut and cosmetics)	100
Entertainment / presents
Holiday	0
Medical / Dental
Tax
Insurance premia
Interim maintenance
Contribution to parents
Dependent family members
Others	250
Total monthly personal expenses	HK$2,850

4.3 Children
Item	Amount
School fees
Extra tuition fees	300
School books and stationery	290
Transport to school (including school bus)
Medical / Dental
Extra-Curricular Activities
Entertainment / presents
Holidays	0
Clothing / Shoes
Insurance premia
Lunches and pocket money	1000
Other Transport
Child-minding fees
Uniform	100
Others (specify) Mobile Personal grooming(including haircut)	98 80
Total monthly expenses for children	HK$1,868

What can the husband afford to pay?   

The Domestic helper

15.  The wife argues that this is an expense that the husband can ill afford especially as the daughter is now with her from Thursday after school until Saturday evening. The husband for his part says that he needs the assistance of a domestic helper not only to take care of his daughter when she is with him, but also to help him with his domestic chores. I have some sympathy with both sides on this point. Ultimately though I am persuaded that there is really no alternative but for the father to dismiss the services of the full time domestic helper at this time. I accept that he will need to employ a part time helper and I will allow him HK$2,000 per month for that purpose.

The matrimonial home   

16.  As indicated above I also do not think it reasonable for the husband to rent out the former matrimonial home, if what he says about it is true. It is accepted that the husband is responsible for the mortgage repayments.

The credit card debt

17.  The wife also suggested that there may be some doubling up of the husband’s food costs and his credit card expenses. The husband strenuously denies this but I accept that this may be the case. I will therefore reduce the husband’s food and household expenses by HK$2,000 per month. The credit card repayments shall remain the same. 

Overall

18.  Longer term it seems to me that the husband will need to make further adjustments to his outgoings. For example, he may need to reduce his rent, currently fixed at HK$9,100 per month. As with the wife I will also remove the reference to provision for holidays for the time being. Consideration should also be given to either reducing payment on insurances or taking a “holiday” from the monthly payment. Other than that it seems to me that there is very little room for the husband to reduce his outgoings further. I accept that he currently has essential expenses of at least HK$31,200 per month as follows:

Part 4 Current Monthly Expenses 4.1 General
Item	Amount
Rent	9,100
Mortgage instalments	2,600
Utilities (electricity, gas, rates, telephone & water)	900
Management fees
Food	3,000
Household expenses	1,500
Car expenses
Insurance premia	1,500
Domestic helper(s)	2,000
Other (specify) PCCW Now TV/Internet	758
Total monthly household expenses	HK$21,358

Attach copies of the latest rental receipt.

4.2 Personal
Item	Amount
Meals out of home	1,800
Transport	400
Clothing / Shoes	500
Personal grooming (including haircut and cosmetics)	120
Entertainment / presents
Holiday	0
Medical / Dental
Tax	1,000
Insurance premia	500.40
Interim maintenance
Contribution to parents
Dependent family members
Others (specify) Credit card debt	3,000
Total monthly personal expenses	HK$7,320.40

4.3 Children
Item	Amount
School fees
Extra tuition fees	163.63
School books and stationery	300
Transport to school (including school bus)	950
Medical / Dental
Extra-Curricular Activities	100
Entertainment / presents
Holidays	0
Clothing / Shoes	300
Insurance premia
Lunches and pocket money	370
Other Transport
Child-minding fees
Uniform	125
Others (specify) Vitamins and church offerings	230
Total monthly expenses for children	HK$2,538.63

Conclusion

19.  Consequently I shall make an order on a very broad brush basis that the husband do pay maintenance pending suit to the wife for herself in the sum of HK$1,000 per month, interim maintenance for the son also in the sum of HK$1,000 per month and interim maintenance for the daughter in the sum of HK$500 per month. I think with a little juggling the husband should be able to pay this sum.

Costs

20.  The wife has been largely unsuccessful in her application, but it is also of note that the husband did not make any offers at all. Consequently, she had no alternative but to issue an application otherwise it is likely that she would not have received any form of maintenance from the husband on an interim basis. I am also mindful that the wife is legally aided. Consequently, I have decided to exercise my discretion and to make an order nisi to be made absolute in 28 days’ time that the husband do contribute 30% of the costs of and arising out of the wife’s summons dated the 27 July 2017 in so far as it relates to maintenance pending suit/interim maintenance only. The wife’s own costs shall be taxed in accordance with Legal Aid regulations.

Order

21.  Consequently I shall make an order as follows:

1)   The Respondent shall pay maintenance pending suit to the Petitioner in the sum of HK$1,000 per month the first payment to be made on the 1 February 2018 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 elder child of the family in the sum of HK$1,000 per month, the first payment to be made on the 1 February 2018 and thereafter to be paid on the 1^st day of each succeeding month until further order.

3)   The Respondent shall pay interim maintenance to the Petitioner for the younger child of the family in the sum of HK$500 per month, the first payment to be made on the 1 February 2018 and thereafter to be paid on the 1^st day of each succeeding month until further order.

4)   There shall be an order nisi to be made absolute in 28 day’s time that the husband do pay 30% of the wife’s costs of and arising out of the summons dated the 27 July 2017 in so far as it relates to maintenance pending suit/interim maintenance only. The Petitioner’s own costs to be taxed in accordance with Legal Aid Regulations.

5)   The First Appointment shall be adjourned to the 8 June 2018 at 10:30 am for a callover.

6)   Both parties do personally attend that hearing.