W v. H

FCMC 6420 / 2014

[2018] HKFC 15

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6420 OF 2014

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J U D G M E N T

(Decision)

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Introduction

1.  The petitioner mother (“the mother”) filed a summons on 7 July 2017 for variation of interim maintenance of children of the family against the respondent father (“the father”) for an increase of HK$25,000 from the existing interim maintenance order for the children. In the order dated 14^th February 2012, the father was order to pay HK$14,500 as interim maintenance for the children from 1 December 2011. In a subsequent order dated 8 April 2016 (under FCMC No. 12626 of 2011), the said sum was further increased to HK$16,500. In this application, the mother is asking the father to pay HK$41,500 each month.

2.  The children of the family, two boys, are now 11 and 9 years of age respectively (“the children”).

3.  The mother’s application was premised on the decrease of her own financial resources. She suggested it is viable for the father to further mortgage the matrimonial home for immediate needs of the children. The father opposed, he wished to maintain the current level of maintenance because of limited means. The issue therefore, is whether the children maintenance should be varied upon the mother’s current financial resources vis-à-vis the father’s means.

The legal principles

4.  The applicable legal provision for interim maintenance can be found in section 3 of the Matrimonial Proceedings and Properties Ordinance, Cap 192 (“Cap 192”), the governing principle is that the court shall make such order as it considers reasonable in all circumstances.

5.  In C v L (unrep, FCMC 13605/2013, 10 December 2014), HHJ Melloy summarized the law on interim maintenance in paragraph 5 of her decision:

“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. Applications for interim maintenance for a child under section 5 of the same ordinance are approached in exactly the same way as a maintenance pending suit application under section 3. It is interim maintenance that we are concerned with here.”

6.  For variation of interim maintenance, section 11(7) of Cap 192 states,

“In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates…”

7.  The principles in AEM v. VMF (CACV 261/2011), the court shall also consider the current financial means and circumstance of the parties.

The mother’s reasons for variation

8.  The mother has been a part time foreign language tutor in 2 universities in Hong Kong. She has experience working as a part time foreign teacher in the past in various universities in Hong Kong. Her average monthly income was HK$34,975.10. The mother said the monthly expenses of herself and the children were very high, taking into account HK$16,500 interim maintenance paid by the father, she was still unable to make ends meet. The mother had to use her credit facilities and to take personal loans to settle monthly payments. The current outstanding liabilities of the mother is HK$73,096. Since May 2017, one of the university ceased running foreign language classes and that the mother’s income dropped.

9.  The mother testified she is now living with the children and a domestic helper. The rent from June 2017 is HK$19,500. The school fees and other miscellaneous payments to schools are increasing continuously. In the mother’s 11^th affirmation dated 7 July 2017, she stated the children’s share of costs together with general household expenses amounts to HK$67,938. In an attempt to lower the children’s expenses, the mother had successfully obtained school fee remission from one of the children’s school in year 2017 – 2018 by 75%. The updated costs of the children are therefore revised to HK$59,322.89 per month.

The father’s opposition

10.  The father criticized the mother’s level expenses on the children. He expected the mother shall be more practical in a divorced situation. As the household expenses would increase when she and the children had moved out from the matrimonial home. In circumstance of limited resources of both parties, the father blamed the mother had not taken his advice to have enrolled the children in local schools but private / international schools. The mother having said she has insufficient means, she has planned 4 overseas trips with the children. The father said he has done his best in providing interim maintenance of the children at HK$16,500.

Analysis

11.  I accept what the father has said on the issue of practicality on mode of expenses when one family was spilt into two. The parties shall pay heed to the available resources they have had. In this application, both the mother and the father have generally accepted their other side’s respective Form E, more particularly, the income, liability and monthly expenses. It is evident that the total expenses had already exceeded the parties’ aggregate means.

12.  To answer the father’s complaint on the mother’s choice of school, as at today, the children have been studying in respective private /  international schools for some years already, I do not think it is appropriate here to say whether this was a correct decision. It is impracticable for the children (and not to their best interest) to change schools at this stage, where they have already adapted to the existing one.

13.  Nevertheless, on the mother’s complaint of insufficient funds for daily expenses, including food, the mother has planned for overseas trips with the children in the forthcoming year. I see this might be somehow extravagant when the mother complained her income together with the father’s interim maintenance could not sufficiently cover the monthly expenses. Although part of the travelling expenses will be paid by her mother or brother, the mother had to pay for, at least, some part of it.

14.  I have reservation on the mother’s financial ability. In situation of tight resources, it is costly for the mother to keep a domestic helper and has insisted on working on a part time basis.  The mother testified that she has to settle the food bills by way of credit card, in her  11^th affirmation filed on 7 July 2017. She deposed she had possessed a doctorate degree, with a view to enabling her to find jobs in Hong Kong, she had enrolled herself studying a master degree in February 2017 and a course for master degree in 2018. I would expect at least, at this stage, she would have put her effort in looking for jobs rather than allocating funds for further studies.

15.  It is not in dispute that the value of the matrimonial home has gone up, the net value (less mortgage) worth over HK$7 million. The mother asks the father to refinance by way of taking out further mortgage application on the matrimonial home. I am not with the mother. I am alerted to the fact that the father has liabilities, no evidence is placed before me whether such application would be successful given the father has refinanced in the same manner in mid-2016. Nevertheless, at this interim stage, unless with the consent of the father, I do not see this is a proper way to assess the means of the father by taking into account of the net value of the matrimonial home.

16.  The father is working as a sales manager, he stated in his Form E filed on 25 November 2016 that his monthly salary is HK$54,392. He has current liabilities of over HK636,706. It is not in dispute that the father is paying HK$11,500 monthly mortgage repayment and HK$16,500 interim maintenance. The father said he has (HK$54,392 – HK$11,500 – HK$16,500) HK$26,392 left for his daily expenses. Let alone the essentials parts, being utilities HK$1,855, management fees HK$2,788, food HK$5,000, transportation HK$1,000 and insurance premium HK$1,389, the father has around HK10,000 left for other daily expenses. The other expenses include clothes, shoes, personal grooming, entertainments, presents and holidays. It is reasonable for the father to reduce some of the said expenses and to allocate a portion of HK$10,000 for the increasing living costs of the children.

17.  I am of the view that the mother’s application for variation for interim maintenance from HK$16,500 to HK$41,500 is on the impracticable. Premised on the governing principle that interim maintenance shall be reasonable in all circumstances and determination in form of a broad brush approach without a detail examination of the parties’ means, I find the father could have paid an extra HK$3,000 per month for the interim maintenance of children.

18.  The mother also requested for an order to backdate the interim maintenance for children to 1 June 2017. I am given to understand any underpayment or overpayment can normally be rectified at a final ancillary relief hearing, I no reason that the variation of interim maintenance should not be backdated to the date of issuance of the mother’s summons.

Conclusion

19.  I therefore make the following order:

(i) The Order dated both 14 February 2012 and 8 April 2016 be varied as “the Respondent (the father) do pay the Petitioner (the mother) HK$19,500 per month as interim periodical payment for the children of the family.

(ii) The payment of this order be backdated to 1 July 2017.

(iii) The Respondent (the father) do pay the sum of HK$21,000 reflecting the backdated sum after variation within 28 days hereof.

(iv) The first payment be paid on the 1^st day of February 2018 and subsequent payments on the 1^st day of each succeeding month, until further order of the court.

(v) Both the backdated amount in sum of HK$21,000, the first and subsequent payments shall be credited directly into the Petitioner’s (the mother’s) designated bank account.

(vi) There be no order as to costs of the mother’s summons filed on 7 July 2017.

(vii) The mother’s own costs be taxed in accordance with the Legal Aid Regulations.

(viii) The parties do jointly apply to court for restoring the 1^st appointment hearing of this petition within 14 days hereof.