R, E also known as M, E v. P, OPM also known as P M, OPR

FCMC 1658/2020

[2021] HKFC 115

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 1658 OF 2020

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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 three children of the family, who are now aged 11, 10 and 8 years of age respectively, 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 the children?

3.  The wife currently seeks HK$51,337 per month with retrospective effect, plus HK$50,000 per month as litigation funding (although no application has been made for litigation funding in any of the summonses filed by the Petitioner to date). For the avoidance of doubt and as set out in order 1 contained in the court order dated the 25 January 2021, the Petitioner’s applications made or attempted to be made by affirmation dated the 29 July 202, by summons dated the 12 August 2020, (with an affidavit in support) and further by a summons for interim interim financial support dated the 22 January 2021, have all been withdrawn. Thus, the court is only concerned with the wife’s summons dated the 9 December 2020 in which she seeks maintenance pending suit. For the purposes of this application, I have treated the wife’s summons broadly, as though it was an application for both herself and the children. I have not however considered the issue of litigation funding in addition, although some reference will be made to this at the end of the judgment.

4.  The husband for his part has set out his proposal in his undertaking dated the 7 May 2021, which states as follows:

UNDERTAKING OF THE RESPONDENT

I, P, OPM also known as P-M, OPR, of XXX say as follows:-

A.  WHEREAS the Petitioner has applied for maintenance pending suit / interim maintenance by way of Summons dated 22 January 2021;

B.  AND WHEREAS the Respondent is currently in Thailand and unable to return to France and report to work due the resurgence of COVID-19.

C.  AND WHEREAS the Respondent intends to return to Europe and report to work as soon as practicable, subject to the pandemic situation in Europe.

AND I, P, OPM also known as P-M, OPR, do hereby undertake to this Honourable Court and to the Petitioner as follows:-

1.  I shall continue to pay to the Petitioner, for the benefit of the children of the family, the sum of HK$5,400 per month until further Order of the Court;

2.  I shall forthwith inform the Petitioner upon the receipt of any monies from my employment with Q LKC Hydraulic Machinery.

Dated the 7^th day of May 2021.

Background

5.  By way of background, this is a highly conflicted case, where each party has taken an extreme position, with respect to their financial position and generally. There is a great deal of ‘he said, she said evidence” which is difficult for the court to assess so early on in the proceedings. However, for the avoidance of doubt, suffice it to say that on the papers I do not find either side to be wholly credible at present.

6.  In short, the parties came to Hong Kong in 2016 in order to explore various business opportunities. The husband is French and the wife is a Danish citizen who spent much of her childhood in Ecuador. As I have said, they have three children who are now aged between 11 and 8 years of age. The children have joint French and Danish citizenship.

7.  It is the husband’s case (and as things stand I tend to accept what he says in this respect) that he and the wife operated businesses together during the course of the marriage. Whereas it is the wife’s case that she has always been a full time wife and housewife. I also note that the wife’s family appear to have had a number of business interests historically and that initially the business in Hong Kong was a “family business”. This company employed the husband on a work visa and the wife and the children were on related dependant visas.

8.  It seems that the parties enjoyed a comfortable but not overly lavish lifestyle in Hong Kong and that they had also discussed leaving Hong Kong in June 2018 (i.e. only two years or so after they had arrived) in order to explore business opportunities in Costa Rica. In any event this did not transpire and the parties remained living in Hong Kong.

9.  In or about May 2019 the marriage broke down following the husband’s discovery of the wife’s alleged infidelity. Shortly thereafter in January 2020, the Covid Pandemic took hold in Hong Kong. There is some difference in each sides account at this point. It is the husband’s case that the parties both agreed that the family should move back to Denmark and that this was to be a permanent move. The move took place quickly because of the perceived threat of Covid-19, but nonetheless he believed that it was the common intention of the parties for the wife and children to reside in Denmark on a permanent basis.

10.  Not so says the wife. It is her case that they returned to Denmark on a temporary basis in order to seek refuge from the pandemic and that she had always intended to return to Hong Kong with the children in due course. She says that she enrolled the children in school in Denmark, because the situation went on for longer than they had originally anticipated.  

11.  Other difficulties then ensued with respect to a potential divorce in Denmark, which led to two petitions being filed. There was also an incident in which the wife forged the husband’s digital signature (something that she later admitted to and apologised for). But, in any event, at the end of the day, the court’s in Denmark declined to accept jurisdiction, as set out in a judgment from the Danish courts dated the 8 December 2020.

12.  In June 2020, prior to the handing down of the Danish judgment, the wife returned to Hong Kong with the children. She says that the husband failed to maintain them whilst they were in Denmark. The husband, for his part, says that the move took place without his consent. It is the wife’s position that the husband should now support both her and the children in Hong Kong, whereas the husband says that they should return to Denmark where the cost of living is much lower. He says that the wife has returned to Hong Kong because she wishes to gain some form of financial litigation advantage. He is particularly concerned that she is seeking maintenance for herself, whereas he says that they had previously agreed that this would not be the case.

13.  In the meantime, the husband has secured a job, which is based in France, but he is currently living in Thailand. He says that he cannot take up his new position, which is effectively a sales position, until travel within France becomes easier. He says he is relying on his savings in the short term and that he cannot afford to pay the wife any more than he has offered.

14.  The wife for her part says that she needs significant and immediate financial support from the husband. Although there was initially some concern about the wife’s visa status, I am now told that she has obtained a work visa through another company owned by her father and that she is currently being paid a small salary from this company. The children are also on dependant visas attached to her work visa.

15.  There is also a significant issue with respect to the children’s schooling and how this should be financed going forward. The children were originally attending the X International School (French stream) and they also spent a short period of time at a school in Denmark. Whilst in Hong Kong, they were beneficiaries of a ‘Bourse’, which as I understand it is rather like a scholarship. It is hard to see how the school fees can be met for the next academic year, without some form of outside assistance. It is not currently known whether this will be forthcoming from the French authorities.

The law

Maintenance pending suit

16.  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. As Rayden points out

…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 paragraph 16.17 of Rayden, 18^th edition).

It adds:

In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non-disclosure.  However, if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay.  The court can look at the reality of the situation and take into account voluntary funding from third parties. Any under provision or over provision in the order for maintenance pending suit can always be corrected when the account comes to be taken at the substantive hearing when there are every opportunity to do fairness by set off ……”

     (Ref paragraphs 16.18 of Rayden, 18^th edition).

17.  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.

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

The reasonable needs of the wife

18.  By the time that this matter came on for hearing, the wife was in receipt of an income of just over HK$48,000 per month – i.e. HK$40,000 per month from her father’s company which had also sponsored her work visa, plus c HK$8,000 per month (on average) from her position with a real estate company. The wife says that she needs in the region of just over HK$51,000 per month in addition, in order to cover the other expenses. Given that, I accept that she has funds to cover her own expenditure, which will need to be reduced a little in any event, plus her share of the children’s expenses. This application is therefore only concerned with the children’s remaining expenses.

19.  The husband’s offer appears to be premised on the amount that he would be required to pay if the wife and the children were resident in Denmark. Although I accept that there is a difficult and conflicted history here, the fact remains that the parties are not currently living in either Denmark or France and that it is seemingly not currently possible for either side to issue Divorce proceedings in Denmark in any event. Rightly or wrongly the wife and the children are currently in Hong Kong and the children require proper financial support here. I am therefore approaching this matter on the premise that the parties shall be equally responsible for the children’s share of the general expenses and for their actual expenses, save for their school fees.       

The children’s share of the general expenses

20.  In the wife’s Form E dated the 12 March 2021 she sets out her general expenses as follows:

Part 4 Current Monthly Expenses

4.1 General

Item	Amount
Rent	HK$ 18,000
Mortgage instalments	N/A
Utilities (electricity, gas, rates, telephone & water)	HK$ 2,400
Management fees	N/A
Food	HK$ 8,000
Household expenses	HK$ 1,500
Car expenses	N/A
Insurance premia	N/A
Domestic helper(s)	HK$ 4,700
Other (specify) Dog	HK$ 700
Total monthly household expenses	HK$ 35,400

21.  These expenses seem very reasonable and I accept that the wife has largely cut costs where she can. I also accept that she needs a domestic helper, in a situation where she has three children and she has to work. Consequently, I will place the cost of the domestic helper under the children’s direct expenses. Thus, in total the wife has general expenses of approximately HK$30,700 per month (i.e. HK$35,400 less HK$4,700 = HK$30,700). Of this I accept that the husband shall be responsible for half of the children’s share i.e., HK$30,700 x ¾ x ½ = HK$11,512.50 – or say HK$11,500 per month.

The children’s direct expenses

22.  In addition, the wife estimates the children’s direct expenses as follows:

4.3 Children

Item	Amount
School fees	HK$26,621
Extra tuition fees	-
School books and stationery	HK$ 750
Transport to school (including school bus)	HK$ 1,500
Medical / Dental	HK$ 1,000
Extra-Curricular Activities	HK$ 6,590
Entertainment / presents	HK$ 2,000
Holiday	HK$ 3,000
Clothing / Shoes	HK$ 3,000
Insurance premia	HK$ 4,875
Lunches and pocket money	HK$ 1,500
Other Transport	-
Child-minding fees	-
Uniform	-
Other (specify) Domestic Helper	HK$ 4,700
Total monthly expenses for child	HK$ 55,536

23.  If one puts the children’s school fees to one side for a minute, the other expenses amount to HK$28,915 per month. Of those expenses, the husband has challenged in particular the estimate for ECA’s and other discretionary expenditure. At paragraph 20 of his 3^rd affirmation he says inter alia as follows:

20.  On a broad-brush approach and without engaging in a line-by-line assessment on E’s [the mother’s] claimed expenses, I believe that most, if not all, of E’s expenses are exaggerated, or simply non-existence. For example, E claimed HK$6,000 for the children’s ECA expenses. To the best of my knowledge, E has not arranged any ECA for the children since they returned to Hong Kong in June 2020. Further, I do not believe that E spent HK$3,000 per month (as stated in her Affirmation dated 1 February 2021) on the children’s clothing / shoes. I had to buy clothes for my elder daughter, I, in December 2020 and then again in February 2021 as she told me that E did not buy her any clothes. In addition, I also bought iPhones, laptops and iPad for the children, paid for the repair costs when they broke their phones’ screens, as well as topping up their Nintendo accounts.

24.  Given that finances are very tight I also accept, in any event, that some of the discretionary expenses will need to be cut down further in the short term. Consequently, I will allow HK$3,000 per month for ECA’s (HK$1,000 per month per child), nothing for holidays at present and HK$1,500 per month for clothes (HK$500 per month per child). Thus, the children’s direct expenses less the school fees are just under HK$21,000 per month as follows:   

Children

Item	Amount
School fees	(HK$26,621)
Extra tuition fees	-
School books and stationery	HK$ 750
Transport to school (including school bus)	HK$ 1,500
Medical / Dental	HK$ 1,000
Extra-Curricular Activities	HK$ 3,000
Entertainment / presents	HK$ 2,000
Holiday	-
Clothing / Shoes	HK$ 1,500
Insurance premia	HK$ 4,875
Lunches and pocket money	HK$ 1,500
Other Transport	-
Child-minding fees	-
Uniform	-
Other (specify) Domestic Helper	HK$ 4,700
Total monthly expenses for child	HK$ 20,825

Of this I accept that the husband shall be responsible for half of the children’s share i.e., HK$21,000 x ½ = HK$10,500 per month – or say HK$3,500 per month per child.

The children’s school fees

25.  This is a significant issue. On the 25 January 2021 I made an interim interim order as follows:

ORDER

UPON the Petitioner’s application by way of Summons filed on 9 December 2020 (the ‘Schooling Summons’);

AND UPON the Petitioner and the Respondent acknowledging and agreeing that the three children of the family, namely MIV, a girl born on XX September 2009; MDP, a boy born on XX July 2011; and MPA, a boy born on XX April 2013 (collectively the ‘Children’) shall attend the X International School (French Stream) in Hong Kong (the ‘XIS’) as soon as possible.

AND UPON the Petitioner and the Respondent further acknowledging and agreeing that the Petitioner shall apply for and that the Respondent shall consent to the enrollment of the Children at the XIS.

AND UPON the Respondent’s undertaking to apply for a bourse to cover the Children’s school fees at the XIS AND his undertaking to contribute the sum of HK$80,000 towards the school fees of XIS by paying the same directly to the school upon the children’s successful enrollment AND the Respondent’s undertaking that she shall pay for the remaining balance of the school fees for the remainder of school year.

IT IS HEREBY ORDERED that:-

1. The Petitioner’s Schooling Summons be adjourned sine die, with liberty to restore; and

2. Costs be reserved; and

3. Liberty to apply.

26.  It is not clear if the children will be entitled to a bourse next year. It is though clearly important for the parents to apply for one on their behalf and I shall make a direction to that effect at the end of this judgment. However, if that financial aid is not forthcoming it is not currently clear how the parties can afford for the children to remain at the FIS. In the short term I will direct that the husband shall be responsible for these fees, but I accept that the parents may need to look at other cheaper schooling options in the medium to longer term. 

The husband’s ability to pay

27.  As with every other aspect of this case there is significant dispute over the husband’s ability to pay and his financial resources generally. The wife claims inter alia that he sold a YouTube account, which generated significant income, to a friend at an undervalue and that he did this deliberately in order to under play his ability to make a proper financial contribution for the children. Time will tell whether this is true or not. There is also controversy concerning a Polish company and whether the husband still owns and receives an income from it. In addition, he has some significant health concerns and does not appear to have begun his new job in France. He says that he is currently relying on his savings, although according to his Form E he doesn’t really have any savings, although there are some funds that are due and owing to him. In any event the husband is clearly a bright and resourceful man. He has both a legal and moral responsibility to make a proper financial contribution towards his children’s expenses. It is accepted, therefore, that both parties shall contribute equally to their children’s general and direct expenses pending further order. Thus I intend to order that the husband shall pay approximately HK$22,000 per month for the children’s maintenance or say HK$7,350 per month per child (HK$11,500 + HK$10,500 = HK$22,000 per month). Just as with the husband’s own interim funding, this will need to come from “savings” if need be.      

Backdating

28.  I accept that there may be a case here for backdating, but I do not intend to make that order now. This is something that can be considered again at a later date. It seems to me that the mother has survived to date in Hong Kong and that any issues surrounding her wider financial resources and her alleged borrowings, can be looked at again when the court has the ability to hear from the parties in the witness box (if a sensible compromised agreement has not been reached in the meantime).

Litigation costs

29.  The wife did not originally make an application for litigation funding. She does not explain on what basis she seeks HK$50,000 per month now save that she notes that the husband must also be paying for legal representation for himself. She is not currently legally represented in any event. In such circumstances I do not intend to take this aspect of her submission any further.

Costs

30.  Neither party has been wholly successful in this application, although I accept that given the husband’s stance the wife had little choice but to proceed with her application. Consequently, I shall exercise my discretion and 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 9 December 2020 on a party and party basis to be taxed if not agreed.

Order

31.  Consequently, I shall make an order as follows:

1)  The Respondent shall pay interim maintenance to the Petitioner for the three children of the family, in the sum of HK$7,350 per month per child, the first payment to be paid forthwith and thereafter to be paid on the 1st day of each succeeding month until further order.

2)  The First Appointment hearing shall be adjourned to the     16 September 2021 at 9:30 am.

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 arising out of her summons dated the 9 December 2020 on a party and party basis to be taxed if not agreed.

IT IS FURTHER DIRECTED THAT

4)  The parties shall apply for a bourse in order to help contribute to the cost of the children’s educational costs at the XIS in Hong Kong. The Respondent shall continue to be responsible for the children’s school fees in the short term and pending further order.