MLYE v. LOS

FCMC 11335 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11335 OF 2008

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J U D G M E N T

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Introduction

1. This is an application by a petitioner wife for interim maintenance for the child of the family pursuant to s.5 Matrimonial Proceedings and Property Ordinance Cap. 192. She also seeks reimbursement for expenses already incurred on behalf of the child.

Background

2. The parties married on the 19 September 1992.  The wife is 49 years of age and is presently working as a Manager for the APG. She earns HK$30,000 per month.

3. The husband is 57 years old and he is said to work as a Company Director for a fashion wear company. He puts his total income at HK$40,540 per month. 

4. The divorce petition was issued on the 23 September 2008, based on the husband’s unreasonable behaviour. It has been amended and re amended. The husband contests the divorce. A trial of the defended petition will be heard in March of next year. It has been set down for three days.  

5. There is one child of the family, a son, M, who is now 14 years of age. The present dispute centres on the educational and financial arrangements for M pending a final order. 

The law

6. Applications of this nature are governed by s.5 Matrimonial Proceedings and Property Ordinance, Cap 192. Interim maintenance orders are considered in the same was as maintenance pending suit orders for adults. In other words the governing principle is that the court will make such order, as it considers reasonable in all the circumstances of the case.  Consequently maintenance pending suit/interim maintenance applications are approached on a broad-brush basis. A detailed examination of the parties’ means will be considered at a later date at a full ancillary relief hearing, if agreement is not reached in the meantime.  Any over payment or under payment may be dealt with then.

The parties proposals

The wife’s case

7. The wife says that her case is simple. She says that it was originally agreed between the parties that the son would go to boarding school in the States. Previously he was educated at the XX International School in Hong Kong. She says that by agreement M was enrolled and has commenced High School in K school in Connecticut on the East Coast of America. He started studying there in September of this year. The wife says that in breach of their agreement the husband has failed to pay 50% of the school fees and other expenses, which has led to her exhausting her own savings and borrowing from others. In essence she now seeks to enforce that agreement.

The husband’s case

8. The husband’s position, put simply, is that he cannot afford to pay such high costs. Initially he said that he was willing to pay 50% of the school fees. There then appeared to be some confusion over whether he had agreed to pay for 50% of the fees or 50% of the total educational costs. Either way he now says that he cannot afford to pay the amount sought by the wife. 

The Issues

9. In broad terms there are only two issues to be determined, namely how much should the husband pay the wife as interim maintenance for M? Should the interim maintenance be backdated and if so to what date?

Discussion

10. I must now turn to consider the issues, the law and the parties’ evidence as set out in their Form E’s and other affidavit evidence.

How much should the husband pay the wife as interim maintenance for M?

11. The difficulty with the wife’s case is that even on her own evidence the parties are unable to fund the son’s expenses from income. The fees alone stand at approximately HK$570,000 per annum. In addition there are other expenses including flights back to Hong Kong etc. The husband states in his Form E that he has an income of HK$25,540 plus a rental income of HK$15,000 making a total of approximately HK$40,540 per month and outgoings of HK$116,436 per month. It is not clear at first blush how the husband is managing to keep afloat. There are other family assets, but none that are relevant for the present purposes. The wife maintains that the husband operates and controls a company called A and that he is the beneficial owner of that company. I await further disclosure on this point with interest.

12. The wife also alleges that the husband has not made full and frank disclosure of his means and that consequently I can take a broad and robust view when considering her application. Although this is of course true, there is nothing on the face of the evidence currently before me to support the wife’s contention to the extent that I am comfortable to proceed on the basis that the husband has the means to pay a lot more than he is currently offering. The wife seeks HK$23,026.50 per month plus reimbursement of sums already paid.

13. There is of course a broader question here, namely whether or not M should be attending boarding school in the States in any event. I tend to agree with the comment made in the Respondent’s solicitor’s letter of the 4 May 2009

…Our client has already made it clear that the child should only go to boarding school if his parents are financially able to support such arrangement.

I also note the Respondent’s allegation that some of the expenses are exaggerated. I accept some of what the Respondent says in that respect.   

14. The Respondent has offered to pay HK$180,000 per annum or HK$18,000 x 10 months. If the HK$180,000 was paid over 12 months then the Respondent’s offer stands at HK$15,000 per month. The wife says that to date the husband’s contribution has been HK$19,750 per month. The Respondent says that he is also responsible for the son’s PCCW calling card, has provided his credit card for other necessities at the Boarding school and that he has also paid for the child’s air ticket. On the premise that the husband has made some of these additional payments and on a broad brush basis I intend to order that the Respondent pay HK$20,000 per month as interim maintenance for M, the first payment to be made on the 1 January 2010 and thereafter payment to be made on the first day of each month until further order. This is broadly speaking more or less what he has been paying historically. If I am wrong on this – and in any event, the issue of underpayment (or indeed overpayment) may be considered at a full ancillary relief hearing, if common sense has not intervened in the meantime and the parties have not reached agreement. 

Should the interim maintenance be backdated and if so to what date?

15. The wife seeks reimbursement of fees and expenses. She issued her application on the 14 September 2009. M started High School in September 2009. On that basis the interim maintenance shall be backdated to the 1 September 2009.

Costs

16. Given that neither party can be said to have entirely won nor entirely lost I will make an order nisi that there be no order as to costs, to be made absolute in 14 days.