W, AA v. C, GO

FCMC 14239 / 2018

[2019] HKFC 206

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14239 OF 2018

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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 pursuant to section 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the only child of the family, a little boy BA, who was born on the XX December 2015, and is now 3 years old, under section 5 of the same ordinance.

The main issues

2.  The only issue to be determined, at this stage, is how much should the husband pay to the wife for her interim provision and that of BA? The husband said, at the hearing, that he had made payments for BA when the wife had presented him with receipts and that he had paid for food and for his medical and kindergarten fees. He said that he was willing to continue to support the child financially.     

3.  The wife seeks a total of HK$20,000 per month i.e. HK$7,000 per month for herself and HK$13,000 per month for BA. In her Form E dated the 3 January 2019 she sets out her expenses as follows:

Part 4 Current Monthly Expenses

4.1 General

Item	Amount
Rent	HK$ 8,800
Mortgage instalments	-
Utilities (electricity, gas, rates, telephone & water)	HK$ 1,500
Management fees	-
Food	HK$ 4,500
Household expenses	HK$ 1,000
Car expenses	-
Insurance premia	-
Domestic helper(s)	-
Other (specify)	-
Total monthly household expenses	HK$ 15,800

4.2 Personal

Item	Amount
Meals out of home	HK$ 500
Transport	HK$ 1,000
Clothing / Shoes	HK$ 500
Personal grooming (including haircut and cosmetics)	HK$ 500
Entertainment / presents	HK$ 300
Holiday	-
Medical / Dental	HK$ 500
Tax	-
Insurance premia	-
Interim maintenance	-
Contribution to parents	-
Dependent family members	-
Other (specify) Expenses of pet turtle	HK$ 500
Total monthly personal expenses	HK$ 3,800

4.3 Child

Item	Amount
School fees	-
Extra tuition fees	-
School books and stationery	-
Transport to school (including school bus)	-
Medical / Dental	HK$ 300
Extra-Curricular Activities	-
Entertainment / presents	HK$ 500
Holiday	-
Clothing / Shoes	HK$ 500
Insurance premia	-
Lunches and pocket money	-
Other Transport	HK$ 500
Child-minding fees	HK$ 3,000
Uniform	-
Other (specify) Diapers	HK$ 200
Total monthly expenses for child	HK$ 5,000
Total monthly Expenses (4.1+4.2+4.3)	HK$ 24,600

4.  It is of note that the husband has not filed his Form E, nor an affirmation in reply to the wife’s affirmation in support of her summons dated the 25 February 2019, despite orders being made to that effect. I will come to this again later.

Background 

5.  The parties married on the XX July 2015 having cohabited for a period of time prior to that. BA was born on the XX December 2015 and the parties separated on the 21 January 2018, when the wife moved out of the matrimonial home with BA on a permanent basis. Prior to that there had been occasions when she had moved out to a shelter with the child, only to return to the matrimonial home again after a period of time. This was then a relatively short relationship that produced one child. The wife filed a divorce petition on the 8 November 2018, based on unreasonable behaviour particulars. The wife maintains that the husband has a drinking problem and that he can be both violent and verbally abusive, especially when under the influence of alcohol. The husband gave a non-molestation undertaking on the 26 February 2019 and he also undertook not to enter any dwelling in which the wife and child currently reside. There are also ongoing issues with respect to access and the husband currently has supervised access to BA once a week for about 2 hours on each occasion.       

6.  The wife is 31 years old and she works as a freelance face painter. Given the lack of disclosure by the husband it is unclear what his age is, although according to the wife he is now 54 years of age. She also says that he previously had a small business doing webpage designing and that he has also worked as a photographer and editor. However, it is not clear if the husband is working at present.   

The law

Maintenance pending suit

7.  The law is well known and not in dispute. Section 3 MPPO Cap192 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.

8.  Reference may also 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.

9.  In so far as this particular case is concerned the reference to “obviously deficient disclosure” at sub paragraph d) is particularly pertinent.

How much maintenance should the husband pay to the wife as maintenance pending suit for herself and interim maintenance for BA?

The reasonable needs of the wife

10.  I accept that the wife’s stated needs for both herself and BA, as set out in paragraph 3 above, are very reasonable and are not really capable of significant reduction. During the hearing the husband tried to argue that HK$3,000 per month for child minding fees was high and he suggested that he look after the child whilst the mother was working, in the presence of the child minder, who he would then pay. As things stand at present however, and on a broad brush basis, I accept that the wife needs support in looking after BA when she is working. It is of note that in her affirmation she says that the child minder has capped her fees to HK$2,500 per month. Consequently, I will allow that sum. Thus in total I accept that she has expenses of approximately H$24,000 per month.

The wife’s earning capacity      

11.  The wife says that on average she earns in the region of HK$8,000 per month. As a general comment it seems to me that both parties will need to fully realize their earning capacity going forward. In the meantime, however, I will accept this figure from the wife. On a broad brush basis therefore and given that I have accepted the wife’s figure of HK$24,000 per month, it seems that she needs in the region of HK$16,000 per month in order to cover the remainder of her expenses.

12.  I accept that the husband should be wholly responsible for BA’s expenses. This amounts to HK$7,900 for BA’s share of the general expenses (i.e. HK$15,800 divided by 2 = HK$7,900) and HK$4,500 for his actual expenses – say HK$12,500 rounded up in total.

13.  The wife’s expenses amount to HK$7,900 for her share of the general expenses and HK$3,800 for her personal expenses or HK$11,700 in total. Of these, she shall be responsible for HK$8,000 of her own expenses, from her stated income and savings. The husband shall contribute the balance of say HK$3,500 per month (rounded down).

The husband’s disclosure         

14.  The husband has not made full and frank disclosure of his finances, despite being ordered to do so. The situation is summarized in paragraphs 26 and 27 of the wife’s solicitor’s submission dated the 26 June 2019 when it was stated as follows:

26. The Respondent has failed to make any disclosure as to his financial position: up to the date hereof, he has not filed his Form E despite repeated orders with penal notices endorsed, [77;93] nor has he filed his affirmation in opposition to the Petitioner’s application. The orders have been served on the Respondent [95-98; 118-120] and the Respondent had repeatedly been reminded to file his Form E by a letter issued by the Petitioner’s solicitors on 2 May 2019 [239] and a follow-up letter issued on 23 May 2019 [244], the Respondent has been warned of the consequences of non-compliance of court orders.

27. Notwithstanding the Respondent’s Form J filed herein on 7 May 2019, which was not served on the Petitioner or her solicitors, the Petitioner as well as her solicitors are still kept in the dark in relation to his earning capacity as well as financial means given that the monthly income and assets in Part 5 of the Form J are merely stated as “TBA” [71].

15.  I accept what is said in these paragraphs. There have been five court appearances to date. The husband was absent at the First Appointment hearing on the 28 January 2019 when an order was made that he do file and serve his Financial Statement Form E within 28 days. A penal notice was endorsed on that order. An affirmation of personal service dated the 25 February 2019 has confirmed that the husband was personally served. He was subsequently in court on both the 26 February 2019 and the 16 April 2019 when orders were made inter alia with respect to the future litigation concerning BA. He was absent on the 29 April when the court gave the husband an extension of time to file his Form E and he was ordered to file an affirmation in response to the wife’s affirmation concerning this application. Again a penal notice was endorsed on the order. The clerk attempted to personally serve the husband again but experienced difficulties. Consequently, the wife confirmed that she passed the order to him on the 20 June 2019. Consequently, I have no doubt at all that the husband was fully aware of his obligations to file both a Form E and an affirmation in response to the wife’s affirmation, but that he deliberately chose not to do so. In a letter to the court dated the 18 July 2019 the husband provided a medical discharge slip from X Hospital that confirmed that he had been admitted to hospital on the 28 May 2019 and discharged on the 4 June 2019. He said that he hoped that this would explain his recent absences from the court. With respect it does not. Infact this document confirms that he was not in hospital when he was absent from court. Further it does not explain his non-compliance with the court orders and the fact that he has not made full and frank disclosure of his means – or indeed made any disclosure at all. In such circumstances the court has no alternative but to draw an adverse inference against him given that he has seemingly gone to great lengths not to tell the court what his financial situation actually is.       

The husband’s ability to pay

16.  What then can be said about the husband’s ability to pay? According to the wife, the husband has three sources of income – a) the rental income from properties on Lamma of approximately HK$20,000 per month, b) funds contributed to him by his mother of various amounts and c) his own earning capacity. She says that he was wholly responsible previously for the family’s expenses and that he used to give her HK$20,000 per month to pay for the rent and other outgoings. Although the parties did not have an overly lavish standard of living it is clear that the husband was able to provide fully for the wife and BA at that time. The husband stopped providing this financial support in May 2017 and since then the wife has relied on her own income and savings including compensation of HK$100,000 that she received for a work related injury.

17.  Given all of the above I am satisfied that the husband has the ability to pay the wife the sum of HK$16,000 per month. In particular, I accept that he has a passive income of at least HK$20,000 per month and that he has the ability to earn a reasonable income in addition to this. As with the wife he will need to fully realize his earning capacity going forward.       

Conclusion 

18.  Consequently I shall make an order that going forward the husband shall pay periodical payments of HK$16,000 per month i.e. HK$3,500 per month for the wife and HK$12,500 per month for BA.      

Costs

19.  The solicitors for the wife ask that I order that the husband pay the wife’s costs of and arising out of this application on an indemnity basis. In doing so they point to the husband’s deliberate non-compliance with court orders and to the non-disclosure of his financial position. The wife is also legally aided. There is no reason at all why the public purse should be responsible for any of her legal costs given the husband’s litigation conduct to date. Consequently, I shall make an order nisi to be made absolute in 28 day’s time that the husband shall pay the wife’s costs of and occasioned by this application on an indemnity basis to be taxed if not agreed. There shall be Legal Aid taxation of the wife’s own costs.

Order

20.  Consequently the order shall read as follows:

Upon hearing the solicitor for the wife and the Respondent in person IT IS ORDERED THAT:

1)  The Respondent shall pay maintenance pending suit to the Petitioner for herself in the sum of HK$3,500 per month, the first payment to be paid within the next 7 days and thereafter to be paid on the 1st day of each succeeding month until further order.

2)  The Respondent shall pay interim maintenance to the Petitioner for the child of the family BA in the sum of HK$12,500 per month, the first payment to be paid within the next 7 days 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 28 days’ time that the Respondent do pay the Petitioner’s costs of and occasioned by this application on an indemnity basis to be taxed if not agreed. The Petitioner’s own costs shall be taxed in accordance with Legal Aid regulations.