D, LAS nee S, LA also known as LAS v. D, JB also known as JBD

FCMC 11666/ 2016

[2018] HKFC 74

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11666 OF 2016

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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 mother for interim maintenance for the two children of the family, both boys now aged 8 and 10 years old respectively, pursuant to section 5 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO).

2.  This is an extraordinarily high conflict case which centres on the appropriate arrangements for the two children of the family, amid very serious allegations made by the mother against the father, which include inter alia concerns around drug addiction, inappropriate behaviours by the father otherwise including allegations that he has tampered with evidence, that he has engaged in stalking like behaviours and that he has lied on oath. I do not intend to comment on these allegations in this judgment. It is of note however that there is a Fact Finding hearing pending and that the mother has issued proceedings against the father for contempt.

3.  In so far as this application is concerned, the court is asked to determine how much the father should pay to the mother as interim maintenance for the two children of the family.  The mother asks that the father contribute towards 50% of their expenses and seeks an order that he pay the sum of HK$73,541.58 per month (or say HK$73,600) for both children.  At the very least she argues that the father should pay not less than HK$48,000 per month or HK$24,000 per month per child.  The father for his part says that in general he should only pay 40% of the children’s actual expenses as the mother earns more than him. He says that this is a suitable pro-rated amount.  In his affidavit dated the 14 March 2018 he offers HK$37,956 per month for both children – (or say HK$38,000 per month) i.e. HK$19,000 per month per child.  The mother also asks that any sum be backdated. Initially she asked for HK$459,219.58 being her estimated outstanding expenses as at March 2017 (see the letter from the mother’s solicitors dated the 29 March 2017).   

Background 

4.  The parties married on the XX August 2005 and the divorce petition was issued by the mother on the 12 September 2016 based on the father’s unreasonable behaviour.  The decree nisi was granted on the 5 April 2017.

5.  The mother issued her summons for interim financial support on the 9 January 2018 in the following terms:

1.   The Respondent [father] do forthwith pay the Petitioner [mother] the sum of HK$288,000 being the outstanding interim maintenance payments for the two children of the family, namely, D, J B-Junior, a boy, born in Hong Kong on XX September 2007 and D V S, a boy, born in Hong Kong on XX August 2009 (“the Children”) from August 2017 to January 2018 in the sum of HK$48,000 per month;

2.   The Respondent do pay the Petitioner interim maintenance payments for the Children at a monthly sum of not less than HK$48,000 or such other sum as this Honourable Court deems fit from 1^st February 2018 until further Order of the Court; and

3.   The Respondent do pay the Petitioner’s costs of this application.

6.  Prior to this, on the 29 August 2017, the father had also issued a summons seeking litigation funding from the mother in the sum of HK$350,000 per month. The original intention had been to deal with both of these applications together. However, this proved not to be possible, given the fact that the father had not complied with orders in relation to specific discovery. There was also an issue with respect to the late filing of a submission by the father and the inclusion of evidence not previously before the court. Notwithstanding this, and in order not to lose the court date completely, the parties agreed to proceed on the basis of the evidence that has been filed in court to date.

7.  The parties are both American. The mother, who is 52, is the Asian President and Senior Partner of an American Communications and PR firm. She is on expatriate terms. The father, who has just turned 48, is a Director of a company that provides materials to the shipping industry on a global basis. The father appears to still be employed out of Hong Kong, despite originally relocating back to Houston, Texas. He is employed on local Hong Kong terms.    

8.  It does not appear to be disputed that the parties enjoyed a high standard of living whilst living together in Hong Kong. The family lived in a high end property on Hong Kong Island and the boys attended good international schools. The boys have also enjoyed a wide range of Extra Curricular Activities and they receive regular and ongoing additional tuition. There are also two domestic helpers and one driver to assist the family. Historically the parties travelled both locally and back to the States on a regular basis.  

9.  It is the mother’s case, and this does not appear to be disputed, that save for the sum of HK$192,000 deposited into the mother’s account on the 29 June 2017, the father has not contributed anything towards the financial support of the boys since December 2016. The father for his part points to the additional cost to him of access, including the twice weekly urine tests and the cost of supervision, plus the cost of booking suitable hotel rooms etc.

10.  It is of note that during a court hearing on the 6 April 2017 that the father offered, through his then counsel, to pay the mother HK$48,000 per month for the financial support of the boys on an interim basis.  Save for the HK$192,000 referred to above, this sum has not been forthcoming.

The law

Interim maintenance

11.  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 then that an application is made for interim maintenance, then the court shall 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 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. If there is found to be any overpayment or underpayment, then that can normally be rectified at that time.   

12.  In addition, reference can be made inter alia 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.

13.  In this case the court is particularly concerned with the marital standard of living enjoyed by the parties prior to separation and the apparent deficiencies in the father’s disclosure to date.

Budgets

14.  It is of note that the mother’s budget for the interim financial support of the boys originated in a letter sent by her legal team to the father’s solicitors dated the 29 March 2017. The mother seeks to rely on this in preference to the budget in her original Form E. In that letter she sets out her expenses for the boys as follows:

Expenses	Monthly cost	Your client’s 50% share
Accommodation	HK$13,779	HK$6,889.50
Tutoring (including Chinese, Maths, Chess, Guitar and Soccer)	HK$37,883	HK$18,941.50
School books and stationary	HK$600	HK$300
Clothes and school uniform	HK$6,000	HK$3,000
Therapy	HK$14,200	HK$7,100
Food (including school lunches)	HK$15,000	HK$7,500
Helpers and driver	HK$30,958	HK$15,479
Petrol	HK$5,000	HK$2,500
Transportation costs (including Van’s bus fee)	HK$1,500	HK$750
Car Insurance/Registration	HK$1,500	HK$750
Medical Insurance Premiums	HK$1,731.91	HK$865.95
Medical Costs not covered by insurance	HK$2,131.25	HK$1,065.62
Vitamins	HK$1,000	HK$500
Air Purifier	HK$800	HK$400
Holidays	H$7,000	HK$3,500
Children’s entertainment	HK$6,000	HK$3,000
Miscellaneous – one-off costs e.g. renewal of passports, musical instruments	HK$2,000	HK$1,000
Total	HK$147,83.16	HK$73,541.58

15.  The father responded to this claim in his 12th affidavit dated the 14 March 2018. The mother then countered in her affidavit in reply dated the 12 April 2018. It is only at this late stage that she sought to update some of these figures.

16.  I should like to add that the reason in part why Form E disclosure is generally to be preferred, is because the court will often treat “General” expenses differently to “Personal” expenses or to the children’s own expenses. Muddling these items up can unnecessarily cause confusion.

Each party’s income

17.  There was also some difficulty is determining each party’s actual income. Ms Irving attempted to clarify things a little in a schedule prepared by her, which became exhibit P-1. The difficulty however, is that this relied upon disclosure provided by the father at the door of the court and which was not in his affidavit evidence. According to the original evidence filed in court, the father earns in the region of HK$303,750 per month inclusive of a bonus equivalent to HK$60,000 per month. There is much mystery surrounding the father’s bonuses and updated information is expected to be filed in that respect very shortly. It is clear however that this is his GROSS income.

18.  In contrast reference was made to the mother’s net income. This was also difficult to determine. According to the mother’s Form E she has a pre tax income of HK$418,275 per month and her average income after all the deductions and other allowances were taken into account, was HK$148,693 per month. This is set out as follows:

My present basic / average* income per month (pre-tax) is: -

HK$418,275 (US$53,625*7.8)

In addition, I receive: -

Overtime (average per month-based on the last 12 months)	$0
Double pay (average per month)	$0
Bonus (average per month)	Provided on an annual, discretionary basis and varies considerably each year depending on company performance
Commission (average per month- based on the last 12 months)	$0
Tips (average per month-based on the last 12 months)	$0
Housing allowance (directly paid by employer) (average per month)	$118,483 (pre-US tax)
Travel / Transport * allowance (directly paid by employer) (average per month)	HK$7,410 (US$950*7.8) (pre-US tax)
Education allowance (average per month)	HK$22,800 (US$2,923.08/month and US$35,076.90/annum) ·V’s tuition fee ($95,050 per semester *2) ·B’s tuition fee (HK$8,350 x 10 months)
Entertainment allowance (average per month)	$0
Other allowances (specify) (average per month)	$0
The total average per month	HK$148,693

19.  Unfortunately, this is different in part to exhibit P-1 which summarizes the up to date situation thus:

	US Per annum	HK per month
Wife’s basic salary	US$643,500 =HK$5,006,430	HK$417,202
Average bonus	US$170,000 =HK$1,322,600	HK$110,216
Car allowance	US$11,400 =HK$88,920	HK$7,362
Total gross		HK$534,780
Less Tax		(HK$290,000)
Rental Contribution		(HK$14,000)
Total Net		HK$230,780

20.  In court reference was also made to the mother’s “Earnings Statements”. These showed that she receives net a figure of between US$6,000 – US$7,000 every two weeks (or say between HK$46,800 – HK$54,600 x 21 = HK$982,000 – HK$1,146,600 divided by 12 = 81,834 - 95,550 per month). In addition, she receives the rental allowance referred to above and the school fees for the children are covered in full. There is also a car allowance that is included in her salary and an annual bonus which varies. The estimated bonus had however been included in Ms Irving’s figures. There is, however, no dispute that this is her NET income. 

21.  The difficulty that then presents itself is whether or not the mother is infact in a better financial situation than the father? On an interim basis this is difficult to determine absolutely especially given the lack of conclusive evidence about the father’s bonus situation. In broad terms though both parties earn a significant income and both should be able to make a full contribution towards their children’s monthly expenses. On an interim basis therefore it seems to me that this is a case for a 50:50 division of the children’s expenses, including their share of the general expenses. 

How much maintenance should the father pay to the mother as interim maintenance for the boys?

The reasonable needs of the boys and the father’s ability to pay

The reasonable needs of the boys

22.  I have been asked to rely on the mother’s up dated figures in her last affidavit, which in turn are originally based on her budget as set out in the letter of the 29 March 2017. However, it seems to me that it would be helpful if these could be superimposed, as far as that is possible, onto a Form E structure as follows:

Part 4 Current Monthly Expenses

4.1    General

Item	Amount
Rent	14,000 (rounded up)
Mortgage instalments	Not included
Utilities (electricity, gas, rates, telephone & water)	Not included
Management fees	0
Food	15,000.00
Household expenses	Not included
Car expenses Petrol Car insurance/registration Other costs HK$50,212.52	0 5,000 1,330 (updated and rounded up) ?
Insurance premia	0
Domestic helper(s) And driver	32,000 (updated in court)
Other	0
Total monthly household expenses	HK$67,330

23.  I accept that the mother needs considerable domestic support given the nature of her job and that this is in keeping with the standard of living enjoyed by the parties during the marriage i.e. that they had two helpers and a driver. I accept that she needs this level of support because of the boys. Thus it seems to me that it would be more appropriate to include the domestic helpers and driver under the children’s schedule of expenses.

24.  The mother argues that the estimate for food is entirely an estimate for the boys, likewise, the estimate for petrol and other car expenses. This is not accepted. Whilst it may be true that the mother eats breakfast and lunch out, it would be quite extraordinary in the circumstances if she was not at home with the boys most evenings and if some of these expense was not attributable to her. Thus 50% of these costs shall be attributable to the mother. Of the remaining 50% the parties shall divide this equally.

25.  In so far as the rent component is concerned, the mother asks that the father be responsible for the whole of the children’s share as she is providing the lion’s share of the rental through her rental allowance. This is similarly not accepted. The mother shall be responsible for 50% of the HK$14,000 and the remaining 50% shall be divided between the parties equally.

26.  Thus the father shall contribute HK$8,832.50 towards the general household expenses for and behalf of the boys made up as follows:

4.1    General

Item	Amount
Rent	3,500
Mortgage instalments	Not included
Utilities (electricity, gas, rates, telephone & water)	Not included
Management fees	0
Food	3,750
Household expenses	Not included
Car expenses Petrol Car insurance/registration Other costs HK$50,212.52	0 1,250 332.50 ?
Insurance premia	0
Domestic helper(s) And driver	See below
Other	0
Total monthly household expenses	HK$8,832.50

Children’s direct expenses

27.  The following then is an updated schedule of the children’s expenses, including updated figures provided in the mother’s last affidavit and submissions made in court, which in turn were based on the evidence filed to date. 

Item	Amount
School fees	Provided by the wife’s employer
Extra tuition fees and Extra Curricular Activities	37,050
School books and stationery	1,000
Transport to school (including school bus)and related expenses	5,125 (rounded up)
Medical - B Dental - V	2,440 7,400
Entertainment / presents	6,000
Holidays	7,000
Clothing / Shoes including school uniform	6,000
Insurance premia Medical	2,365 (rounded up)
Lunches and pocket money (in food)	0
Other Transport (included above)	0
Domestic helpers and driver	32,000
Therapy	14,200
Vitamins	1,000
Air Purifier	800
Miscellaneous items	2,000
Total monthly expenses for children	HK$124,380

28.  Of those expenses I will take out of the equation the reference to entertainment/presents and holidays. Each party shall be responsible for their own presents for the boys and for other entertainment costs when they are with them. Notionally each shall be responsible for the cost of holidaying with the boys.  

29.  The cost of tuition and Extra Curricular Activities seems a little on the high side to me – even given the fact that the parties have historically enjoyed a high standard of living. The father agrees to pay half of the extra tuition, subject to the production of receipts. He does not agree to pay half of the ECA’s as he says that he has not been consulted on them. Given the extremely high level of conflict here I do not intend to add to the possible areas for dispute by agreeing to the production of receipts as a basis for payment. I will allow the sum of HK$30,000 per month. It is for the mother to budget within this sum.

30.  In so far as therapy is concerned the mother acknowledges that B is currently having therapy once every two weeks at a cost of HK$2,000 per session. Although V is not currently receiving therapy it is anticipated that that will resume shortly. Thus I will allow HK$8,000 for therapy – two sessions for each child per month.     

31.  In total then I accept that the direct expenses for the boys, inclusive of the domestic helpers and the driver amounts to approximately HK$98,130 per month as follows:

Item	Amount
School fees	Provided by the mother’s employer
Extra tuition fees and Extra Curricular Activities	30,000
School books and stationery	1,000
Transport to school (including school bus)and related expenses	5,125
Medical - B Dental - V	2,440 7,400
Entertainment / presents	N/A
Holidays	N/A
Clothing / Shoes including school uniform	6,000
Insurance premia Medical	2,365 (rounded up)
Lunches and pocket money (in food)	0
Other Transport (included above)	0
Domestic helpers and driver	32,000
Therapy	8,000
Vitamins	1,000
Air Purifier	800
Miscellaneous items	2,000
Total monthly expenses for children	HK$98,130

32.  The father shall be responsible for 50% of those expenses or HK$49,065 per month, plus his share of the general expenses in the sum of HK$8,832.50 per month totalling HK$57,897.50 rounded up to say HK$58,000 per month or HK$29,000 per child per month.

Backdating

33.  The mother originally asked that the sum of HK$48,000 be backdated for the period from August 2017 – January 2018 and for this order to take effect from February 2018. For reasons best known to himself the father has not contributed towards the children’s maintenance at all save for the payment of the HK$192,000 referred to above. This is not acceptable. This order shall be backdated to August 2017. Any arguments with respect to the level of payment before then can be revisited at a later date. Thus the father shall pay the mother HK$580,000 being maintenance for the period from August 2017 – May 2018 (10 months in total).          

Costs

34.  The mother has been largely successful with respect to this application. She was willing to accept a sum of not less than HK$48,000 per month for both boys. Further she has had no option but to issue the summons, as it was quite clear that the father was not prepared to make any voluntary contribution towards the boy’s expenses. Consequently, I shall make an order nisi to be made absolute in 28 days’ time, that the father do pay the mother’s costs of and arising out of her summons dated the 9 January 2018, such sum to be paid on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

Order

35.  To conclude, I shall make an order as follows:

1)   The Respondent father shall pay interim maintenance to the Petitioner mother for the two children of the family in the sum of HK$29,000 per month per child, the first payment to be made on the 1 June 2018 and thereafter such sum to be paid on the 1^st day of each succeeding month until further order.

2)   This sum shall be backdated to the 1 August 2017 and the Respondent shall pay the additional amount of HK$580,000 to the Petitioner within the next 28 days.    

3)   There shall be an order nisi to be made absolute in 28 day’s time that the Respondent do pay the Petitioner’s costs on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.