KS v. YP

FCMC 2649 / 2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2649 OF 2016

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J U D G M E N T
(Maintenance for Adult Children)

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Introduction

1.  This judgment follows a half day trial to determine what financial provision the Petitioner father should make for the two children of the family, a 20-year-old boy and an 18-year-old girl. Both of the children are currently in full time education and both are residing in Thailand.   

2.  The wife asks that the husband pay HK$5,000 per month for the son and HK$6,000 per month for the daughter. The husband for his part offers to continue to pay HK$1,000 per month per child.

The issues

3.  Thus the only issue relates to the level of maintenance to be paid by the husband to the wife for the support of the two children and whether or not any of those payments should be backdated. The wife also originally sought nominal maintenance for herself, but this was not pursued at trial.     

Background

4.  The parties married on the XX February 1994 in Hong Kong. They are both Thai. They had the two children, referred to above, both of whom were born in Thailand. The son was born on the XX January 1997 and will be 21 years old in January. He is currently studying the second year of a two year course in Mechanical Power Technology. The wife said in the witness box that he may wish to continue his studies for a further two years, but no additional evidence was adduced in that respect. The daughter was born on the XX May 1999 and she has just started a 4 year course in Food Science. Again no evidence was produced to confirm that.

5.  It seems that unhappy differences arose between the couple and according to the husband they separated in 2000, whereas it is the wife’s evidence that they separated in February 2002. In either event the parties have now been separated for a considerable period of time (i.e. for nearly 16 years even on the wife’s case) and the husband has since remarried.

6.  It is the wife’s case, and this does not appear to be seriously disputed, that she has been primarily responsible for supporting the children throughout the period of the separation. She says that she cannot do so any longer. She is worried about her health and in any event the costs are now beyond her ability to pay. Consequently, she asks that the husband be responsible for all of the children’s expenses going forward. It is of note that the wife did not issue proceedings herself and that there does not appear to have been any request by the wife until now for financial assistance.  

7.  The husband, for his part, issued proceedings for divorce based on two year’s separation on the 10 March 2016. The decree nisi was pronounced on the 6 October 2016.

8.  On the 27 September 2017 the wife issued a Notice of Intention to Proceed with an Application for Ancillary Relief. In that application she sought a periodical payments order for the children.

9.  The husband now accepts that he has an obligation to pay maintenance for the children, but he is concerned that that should be in accordance with his ability to pay. Consequently, he offers to continue to pay HK$2,000 per month. An interim order in this amount was ordered on the 16 March 2017. He says that he has paid some money previously but it is clear that he has never paid maintenance regularly or in a very great amount. The wife maintains that his contribution has been minimal.    

The law

10.  Applications of this nature are governed by section 5 Matrimonial Proceedings and Property Ordinance, Cap 192 which states that the court may make orders requiring one party in a marriage to pay maintenance to the other, for the benefit of the children of the marriage:

“(a) before or on granting the decree of divorce …… or at any time thereafter”

11.  It is generally accepted that maintenance for children should be paid until they reach the age of 18 years or cease full time education i.e. when they have finished their first degree or its equivalent. 

Discussion

12.  The wife is 49 years old and she works as a waitress for a Thai restaurant; she earns in the region of HK$12,000 per month plus some tips. The husband is also nearly 49 years of age. He is a chef and it is accepted that he earns approximately HK$21,000 after his MPF has been deducted. The husband has some debts and he explained in the witness box that he had originally taken out a loan to assist his family in Thailand. Although he has remarried he does not live with his wife on a permanent basis as she is employed as a domestic helper. He denied that he owns property in Thailand and complained that the wife had improperly accessed his Facebook account.

How much maintenance should be paid for the two children of the family?

13.  It is generally understood, when considering the issue of maintenance for children, that both the children’s direct and indirect expenses should be shared between the parties in an equitable way. The appropriate amount is generally based on the financial resources of each party. On occasion this may be on a 50:50 basis – especially if the parties are earning a similar amount. Alternatively, it may be a percentage based on the relative earnings of each party, or simply a reasonable amount in the circumstances. In this instance it is the wife’s case that it would be fair for the husband to take up all of the financial responsibility for the children going forward, given that he has failed to properly contribute in the past and that she has been largely responsible up until now. 

14.  There were though a number of difficulties in the way that the wife’s case was presented. Firstly, there was very little evidence to support her case on the children’s expenses or indeed to confirm that the children were currently in full time education. This is especially important given the fact that in her first Form E dated the 11 November 2016 which was filed before she was legally represented, she said that the children’s direct expenses amounted to only HK$4,050 per month. In her later Form E dated the 27 January 2017 and filed less than two months after the first one, she put the children’s direct expenses at just over HK$10,000 per month. This is a significant difference. In her narrative affidavit dated the 25 July 2017 this figure increased to a total of HK$11,876 per month to account for an increased amount following the daughter’s start at university. These expenses are set out in her affirmation as follows:

Since June 2017, the Daughter has entered X University and the Children’s expenses have changed as follows:

	Son	Daughter
Item	Amount (HK)	Amount (HK)
School fees	1,011.00	1,250.00
Extra tuition fees	340.00	558.00
School books and stationery	443.00	435.00
Transport to school (including school bus)	420.00	220.00
Medical/Dental	30.00	30.00
Clothing/Shoes	160.00	140.00
Insurance premia	46.50	46.50
Lunches and pocket money	1,573.00	1,573.00
Uniform	93.50	177.50
Others (specify: The Daughter’s accommodation fee at the place of my brother during school holidays)		1,000.00
Mobile	250.00	132.00
Internet	240.00	227.00
Dormitory	786.00	512.00
Personal grooming (including haircut and cosmetics)	113.00	69.00
Total =	5,506.00	6,370.00	=11,876.00

9. In addition, due to my Daughter’s entry into the university, there are additional expenses as follows:

	Daughter
Item	Amount (HK)
Computer	2,172.00
Calculator	444.00
Scanner and mouse	1,056.00
Total =	3,672.00

15.  Although the husband chose not to cross examine the wife, I nevertheless have some concern with a few of these estimates including HK$1,000 per month for the daughter to stay with the wife’s brother during the university holidays. There was also no evidence of the university fees themselves or indeed many of the other expenses save for the cost of the insurance premium for the son and the top up expenses for the internet. There was also one bill said to be for the daughter’s dormitory expenses. Thus on the face of it, it seems to me that some of these expenses are likely to have been exaggerated a little.  

16.  I also queried with the wife whether or not the children were eligible for any form of financial assistance from the Thai Government. The wife replied in the affirmative but said that the husband could afford to pay and therefore that she and the children had not applied. I do not know if they are entitled to a grant or a loan. No evidence was produced in that respect. I also asked whether or not the children would be able to work part time – at least in the university holidays. The wife said that this would not be possible and that the children cannot find part time work. It was not clear to me why this should be so.   

17.  This is especially given the fact that it seems to me that this is one of those very unfortunate cases where there is simply not enough money to go around. I accept that the wife’s salary is low at HK$12,000 per month and that it is simply impossible for her to fully maintain the children on her own. However, it also seems to me that the children and the mother should fully avail themselves of any financial assistance that may be available to them from the Thai government and that further the children should also try to find some form of work to help support themselves. In addition, I do not accept all of the cost estimates and rather suspect that some of them may have been inflated a little. 

18.  The husband for his part says that he has the following monthly outgoings:

4.1   General

Item	Amount
Rent	$3,000
Mortgage instalments	$0
Utilities (electricity, gas, rates, telephone & water)	$1,000
Management fees	$0
Food	$4,000*
Household expenses	$2,000
Car expenses	$0
Insurance premia	$0
Domestic helper(s)	$0
Other (specify) Loan	$4,200
Total monthly household expenses	HK$14,200

Attach copies of the latest rental receipt.

4.2   Personal

Item	Amount
Meals out of home	$1,000*
Transport	$0
Clothing / Shoes	$1,000*
Personal grooming (including haircut and cosmetics)	$300
Entertainment / presents	$2,000*
Holiday	$1,200*
Medical / Dental	$800
Tax	$
Insurance premia	$0
Interim maintenance	$0
Contribution to parents	$0
Dependent family members	$0
Other (specify)	$0
Total monthly personal expenses	HK$6,300

4.3   Children

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

Total Monthly Expenses (4.1 + 4.2 + 4.3)

HK$20,500

19.  I have marked with an * those items that Ms Chiu sought to challenge. It is of note that the husband confirmed inter alia that he liked to gamble on the football and on horse racing and that he would spend about HK$2,000 per month on this and sometimes more if he won anything. This is the item referred to an “Entertainment/presents”. He was also challenged on the amount that he spent on food – i.e. a total of HK$5,000 per month, especially given the fact that he received at least one meal a day at work. Ms Chiu also suggested that HK$1,200 per month on holidays was excessive, as was HK$1,000 on clothes. All in all, I agree with Ms Chiu that there is certainly room here for the husband to cut down a little on his monthly expenses so that he is able to make a more proper contribution towards the children’s expenses.

20.  Consequently I will make an order that the husband do pay HK$2,000 per month per child. It seems to me that with a little economizing that the husband should be able to pay this sum. In particular, the husband should be able to economize on the cost of food, eating out, clothing and shoes, holidays and his gambling habit. I will not backdate that order. I appreciate that this is less than the mother says that the children need, even taking into account a reduced amount for the children monthly expenses. In such circumstances it may be that there is no alternative but for her to seek Government assistance and for the children to consider some part time work – especially during the holidays. Finally, I am conscious of the fact that the son’s course is only supposed to be for another year. In such circumstances the husband will be liable to pay until the son completes that course.

Costs    

21.  The wife is legally aided. She had no option but to issue this application and although she has not been completely successful, she has nonetheless beaten the offer made by the husband. In such circumstances I can see no reason why costs should not follow the event in the normal way. Consequently, I will make an order as set out below.

Order

22. 1) The Petitioner do pay to the Respondent periodical payments for the maintenance of the two children of the family in the sum of HK$2,000 per month per child such sum to be paid from the 1 January 2018 and thereafter to be paid on the 1st day of each succeeding month until each child ceases their full time education or until further order.

2) The Petitioner do pay the Respondent the costs of and arising out of her Notice of Application dated the 27 September 2016 on a party and party basis to be taxed if not agreed. The Respondent’s own costs to be taxed in accordance with Legal Aid Regulations.  

3) Section 18 Declaration to issue.