NLT v. LYKJ

FCMC 8680 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8680 OF 2012

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J U D G M E N T
(maintenance pending suit and interim maintenance)

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Introduction

1.  This is an application by the Petitioner (“Wife”) for maintenance pending suit for herself and the two children of the family under Sections 3 and 5 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) from the Respondent (“Husband”).  

2.  The parties were married in May 2004.  There are two children of the family, namely, a girl born in November 2004 now aged 9 and a boy born in April 2007 now aged 7.  The Wife issued a divorce petition on 18 June 2012 based on the Husband’s unreasonable behaviour which was defended. The trial of the defended suit took place in October 2013 and a decree nisi for divorce was made on 25 October 2013.

3.  On 21 January 2014, the Wife took out an application for maintenance pending suit for herself and interim maintenance for the said children and pursuant to an Order dated 27 January 2014, the hearing for maintenance pending suit and interim maintenance was set down for hearing on 24 April 2014.

4.  Meanwhile, pursuant to the Order made by Her Honour Judge Melloy on 3 March 2014, the Respondent was ordered to pay the Petitioner $10,000 per month being interim interim maintenance and the Children’s Dispute Resolution Hearing (CDR hearing) initially set down on 16 April 2014 was brought forward to 3 April 2014.

5.  Subsequently, the parties were able to reach an agreement to the interim arrangement of the said children of the family, details of which were set out in the Consent Order dated 11 April 2014.  The CDR hearing was then adjourned to 15 October 2014.  The First Appointment was adjourned to 9 June 2014 together with the argument on the costs of the trial on the defended suit.

6.  Since I am only dealing with the Wife’s application for maintenance pending suit and interim maintenance for the said children, I will not go into the details of the interim arrangements of the said children, save as to note that pursuant to the said Consent Order, the parties agreed that the said children of the family shall both reside with the Wife commencing from 9 April 2014 with defined access to the Husband until further order of the Court.

Main Issues

7.  There are three main issues to be determined, namely:-

a) The amount of reasonable maintenance pending suit for the Wife payable by the Husband;  

b) The immediate and reasonable financial needs of the said children, including accommodation expenses; and

c) The amount of the said children’s immediate and reasonable financial needs payable by the Husband and his ability to pay on an interim basis.

Brief Background

8.  The Wife is aged 36 and trained as a professional dancer at the X.  She is now a full time housewife.    

9.  The Husband is aged 47 and a self-employed businessman. He is the shareholder of two companies engaged in property holding and management.  He also has investments in stocks and shares and previously ran a small taxi company.

10.  The Wife moved out of the matrimonial home in May 2009 after an argument.                     In around May 2011, the Wife moved back into the matrimonial home, apparently pursuant to an agreement between the parties whereby the Husband supported her financially in part and the Wife would take care of the children’s homework.  The Husband in turn cooked and undertook most of the household chores.

11.  I appreciate that both parents may have different views on how to raise their children in their best interest and they may have different values or goals in life.  They are therefore unable to agree on what activities or lessons are beneficial to the said children and hence there is no agreement on the reasonable financial needs of the said children. 

12.  I note that the parties have already gone through a trial on the defended suit where unpleasant accusations were made against each other where much time and money have been incurred.  I trust that they should understand that prolonged litigation and disputes between them would only cause more harm than good in their co-parenting journey ahead. 

13.  I sincerely hope that the parties will take a step back and reflect on how to set aside their differences for the best interest of the said children, respect each other and avoid unnecessary litigation and additional stress to the said children who will have to deal with, if not already facing, loyalty conflict towards both parents, at this tender age.

The Legal Principles

14.  There is no dispute between the parties as to the general legal principles in respect of applications under this nature.

15.  The Court has power under Section 3 of the MPPO to order either party to the marriage to make to the other such periodical payments for his or her maintenance pending suit and for such term, being a term beginning not earlier than the date of the presentation of the petition or making of the application as the Court thinks reasonable.

16.  Section 5 of the MPPO read together with Rule 78 of the Matrimonial Causes Rules, Cap 179 provides power to the Court to make such interim order against a party to the marriage, for financial provisions for the benefit of the children of the family as the Court thinks just and reasonable, having regard to the means of the party to which the order is imposed upon.

17.  The governing principle in such applications is that the court will make such order as it considers reasonable in all of the circumstances of the case.  The overriding principle in applications for maintenance pending suit and interim applications is “reasonableness” which is synonymous to “fairness” as set out in HJFG v KCY [2012] 1 HKLRD 95.

18.  Hartmann JA (as he then was) quoted Nicholas Mostyn QC, sitting then as a Deputy High Court Judge, in TL v ML [2006] 1 FLR regarding the relevant principles in such applications:-

“32. Before turning to the individual grounds of appeal, it is necessary, in order to be able to consider the issues in context, to give some brief consideration to certain uncontentious principles governing applications for maintenance pending suit, principles to which in large measure the judge himself made reference in his Reasons for Decision.

33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap.192. By that section the court is given discretion to make to the other such an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.

34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing. In the present case, the judge recognised the long-established approach of looking into the ‘immediate and reasonable needs’ of the wife and son.

35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’ that is, having regard to the circumstances of the case, that it must be fair.

36. An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline.

37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgement of Nicholas Mostyn QC, sitting then as a deputy High Court Judge in TL v ML [2006] 1 FLR 1263, 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the Judge’s reference to the source of those principles:-

(i) The sole criterion to be applied in determining the application is “reasonableness”, which is synonymous to “fairness”.

(ii) A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

(iii) 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. That budget should be examined critically in every case to exclude forensic exaggeration.

(iv) 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 a situation, the court should err in favour of the payee.

38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties.  While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad-brush’ basis.”

19.  It is therefore a well established principle that maintenance pending suit and similarly interim maintenance applications are approached on a broad-brush basis and a detailed examination of the parties’ respective means will be considered at a later stage in a full ancillary relief hearing if agreement is not reached in the meantime.

20.  Further, any under provision or over provision can always be corrected at the substantive hearing when there will be every opportunity to do fairness by set-off.  In other words, if there is any overpayment or underpayment, the figures can be put right in the final order. (Rayden & Jackson: Divorce and Family Matters (18^th Edition) at para 16.18 and AEL v MRL [2009] HKFLR p.131)

21.  Thus, the court in determining what is the appropriate order for maintenance pending suit and interim maintenance applications under Sections 3 and 5 of the MPPO, will need to consider a) the reasonable and immediate needs of the spouse and the children of the family seeking maintenance; b) the standard of living enjoyed by the parties previously; and c) the paying spouse’s ability to pay on an interim basis, adopting a broad-brush approach to achieve fairness without going through a detailed examination of the parties’ respective means.

22.  A detailed examination of the parties’ means may be considered later at the final hearing, if no agreement is reached in the meantime. If there is any overpayment or underpayment, the figures can be put right in the final order.  [see AEL v MRL [2009] HKFLR 131]

Immediate and Reasonable Needs of the Wife and said children

23.  It is not disputed that the said children has accommodation needs as well as specific needs.   Shortly before this hearing, the parties reached an agreement that commencing from 9 April 2014 the said children shall both reside with the Wife with defined access to the Husband.  Accordingly, the Wife and said children moved out of the matrimonial home in Homantin, Kowloon to an apartment rented by the Wife on Hong Kong Island, which according to the Wife is nearer to the said children’s schools and her own parents’ residence.

24.  It is rather unfortunate that a number of documents which should and could have been produced by the Wife in her affidavit(s) in support of her maintenance pending suit application were not so produced but instead produced in a rather piece meal fashion at the hearing.   

25.  At the hearing, Counsel for the Wife produced a redacted copy of the Tenancy Agreement signed by the Wife for two years from 1 January 2014 to 31 December 2015 at the rental of $23,500 per month. Counsel for the Wife also produced copies of post-dated cheques for rental issued by the Wife’s mother.  It is the Wife’s case that her mother helped her pay four months’ deposit for the said Tenancy and the Wife had paid her mother $23,500 for the March 2014 rental.  [Exhibit P-1 &P-2] 

26.  In response to the Husband’s allegation that he had given $1,000,000 to the Wife in around 2011/2012 and the Wife has failed to account for the same, Counsel for the Wife attached a copy of the bank statement from the Wife’s parents’ account for February 2012 and a statement from ANZ bank dated 15 March 2012 to show that the Wife had transferred $1,000,000 to her parents’ account.  

27.  It is the Wife’s case that the sum of $1 million was in fact the Husband’s payment to the Wife’s mother for share of profit in the Husband’s taxi investment.  Since this is an interim application, I will not go into the details of whether the said $1 million was indeed the Wife’s mother’s investment profit or otherwise.  It is suffice to note at this stage that the Husband had transferred $1 million to the Wife in around January 2012 the Wife has acknowledged that she subsequently transferred the same to her mother.

28.  After the hearing, the Wife’s solicitors also submitted a letter dated 9 May 2014 prepared by R Appraisal Ltd. with the market rental transactions of residential properties in Mid-levels of Hong Kong Island near to where the said children attend school, for the Court’s consideration in respect of the appropriate accommodation expenses.  I do not think it is appropriate for the Wife to produce such evidence after the hearing, and for the purpose of the present application, I will not attach any weight to the figures stated in the said letter produced by the Wife’s solicitors after the hearing.

29.  According to the Wife’s submission, prior to the breakdown of the marriage, the parties lived in a spacious flat in Homantin, Kowloon with good club facilities.  The family had no financial worries and went on overseas holidays at least 3 times a year and stayed in 4-5 star hotels.  The Husband drives a 7-series BMW private car and the family dine out every weekend.

30.  According to the Wife’s updated Form E filed on 27 February 2014, her total monthly expenses were $91,642, the breakdown is as follows:-

i)	General	$32,970
ii)	Personal	$22,862
iii)	Children	$35,810
		$91,642 [Bundle D:77-78]

31.  At the adjourned hearing, Counsel for the Wife submitted that since the said children and Wife moved into their new home in April 2014, the total monthly expenses is about $95,706.98 (ie $39,374.98 +$31,970 + $24,362), with the breakdown set out as Annexure F and G in the skeleton submission dated 2 May 2014 prepared by Counsel for the Wife as follows:-

Children’s update monthly expenses

Item		Amount
School fees and school related activities	(A1 + A3 + B1 + B3) (133.34 + 115.3 + 0 + 82)	$330.64
Extra tuition fees	(A6 i + A6 iv + A6 xiii + B6 i + B6 iii) (1,517 + 1,826 + 888 + 1,517 + 1,826)	$7,574
School books and stationary	(A2 i-iv + B2 i-iv) (387 + 401)	$788
Transport to school	B8 i)	$510
Medical/dental	(A9 + B9) (584 + 584)	$1,168
Extra Curricular Activities	(A5,6 + B5,6) – Extra tuition fees (630 + 10,538.6 + 0 + 6,200 – 7,574)	$9,794.6
Entertainment/presents	(A7i to iii + B7i to iii + A14ii + B14ii) (601 + 601+ 300 + 300)	$1,802
Holidays	(A7 iv + B7 iv) 4,116.66 + 4,116.66)	$8,233.32
Clothing/shoes	(A10 + B10) (618 + 527)	$1,145
Lunches and pocket money	(A4ii + B4ii + A14i + B14i)/12 (1,120 + 1,120 + 65 + 44)	$2,349
Other transport	(A8 + B8ii) (400 + 400)	$800
Child-minding fees	$750	$750
Uniform and school bag	(A2v to vii + B2v to viii) (231.25 + 302.17)	$533.42
Others: personal grooming (haircut)	(A12 + B12) (217 + 87)	$304
Others: eating out	(A4 iv, v) x2 1,000 x2	$2,000
Others: computer and mobile phone	A14 iii	$1,160.5
Others: printing papers and cartilage	A14 iv	$132.5
	Total	$39,374.98

W’s Expense per month (last modified 1 May 2014)

1	Meals	i) Meals at home	$5,000
		ii) Meals out of home	$3,500
2	Travelling		$2,000
3	Clothes		$2,000
4	Daily necessities		$200
5	Glasses and contact lenses		$725
6	Health and body care		$800
7	Beauty and cosmetics		$1,500
8	Medical and dental		$927
9	Hair cut/salon		$600
10	Mobile phone, domestic phone, broadband fee		$770
11	Activities		$1,900
12	Vacation/trip		$6,667
13	Insurance		$500
14	Household detergents/cleaners		$400
15	Household maintenance		$800
16	Special occasions		$1,843
17	Utilities		$1,300
18	Rent		$23,500
19	i) Books, magazines and newspaper		$200
	ii) Computer and phone purchases		$400
	iii) Computer/electrical consumables eg bulbs, cartilage		$800
General Expense	18 + 17 + 1i) + 4 +14 + 15 + 10 + Children meals at home + Children daily necessities 23,500 + 1,300 + 5,000 + 200 + 400 + 800 + 770 + 5,000 + 200		$37,170*
Personal Expense	1ii) + 2 + 3 + 5 + 6 + 7 + 9 + 11 + 12 + 8 + 13 + 16 + 19 3,500 + 2,000 + 2,000 + 725 + 800 + 1,500 + 600 + 1,900 + 6,667 + 927 + 500 + 1,843 + 200 + 400 + 800		$24,362
	Total		$61,532

* corrected to $31,970 by the Wife at hearing due to double counting of meals at home and daily necessities of $5,000 +$200 

32.  Broadly speaking, the Wife’s claim for the said children’s monthly expenses of $39,374.98 can be categorized as follows:-

a) extra-tuition and extra-curricular activities

$17,368.60 per month ($7,574 + $9,794.60)

b) school fees and other expenses

ie children’s school fees and school related activities ($330.64), school books and stationery ($788), school uniform and bag ($533.42), medical/dental ($1,168), lunches and pocket money ($2,349), transport to school and other transport ($510 + $800), and hair cut ($304) totalling $6,783.06 per month. 

c) holiday and other expenses

ie overseas trips ($8,233.32), entertainment/presents ($1,802), clothing and shoes ($1,145), eating out ($2,000), Computer/mobile phone ($1,160.5) printing expenses ($132.5) and child minding fees ($750) totalling $15,223.32 per month. 

33.  The Wife’s claim for general expenses at $31,970 per month include:-

a) accommodation expenses

 $24,800 ie rental ($23,500) + utilities ($1,300)

b) other household expenses

$7,170 ie meals at home ($5,000), daily necessities ($200), mobile phone/domestic phone/broadband fees ($770) household detergents ($400), household maintenance ($800)

34.  The Wife’s personal expenses amount to $24,362 per month which include meals out ($3,500), travelling/taxi ($2,000), clothes ($2,000), glasses and contact lenses ($725), health and body care ($800), beauty and cosmetics ($1,500), medical/dental ($927), hair cut ($600), activities/entertainment ($1,900), vacation/trips ($6,667), insurance ($500), books, magazines and other computer miscellaneous expenses ($1,400) and special occasions/festive parties expenses ($1,843).

35.  Counsel for the Wife submitted that due to the long history of dispute between the parties, it is likely that it would take at least 36 months before this case would reach the final ancillary relief hearing.  Counsel for the Wife also submitted that the Husband has been very mean to the Wife and only paid her $3,000 per month in 2011 which was increased to $5,000 per month prior to the Decree nisi in 2013.  On 3 March 2014, an order was made that the Husband do pay interim maintenance pending suit of $10,000 per month to the Wife.  According to the Wife, she had to rely on the assistance of her maiden family for food and shelter.  [Bundle A:305]

36.  Counsel for the Husband submitted that by reference to HJFG v KCY, a number of categories of expenditure which relate to substantive ancillary relief should not be included in an interim application eg Overseas holidays.

37.  Counsel for the Husband argued that the Wife has inflated the expenses she is claiming and invited the Court to look at the immediate and reasonable needs of the Wife and said children on an interim basis, say for a few months until there is a Financial Dispute Hearing for the ancillary relief. 

38.  At the adjourned hearing, the Husband revised his open proposal as follows:-

a) For the Wife and children, maintenance pending suit of $10,750 per month which was subsequently increased to $15,000 per month;

b) For the said children the Husband to pay direct:-

i) All expenses in relation to the said children’s education including schools and tutors (tutoring to be agreed by the parents in advance in writing); and

ii) Prior agreed in writing extra-curricular activities up to $10,000 per month.

Immediate and Reasonable specific needs of the said children

39.  Counsel for the Husband helpfully informed the Court at the adjourned hearing that the Husband would agree to certain extra-curricular activities for the said children, such as taekwondo ($325 x 2), piano ($1,000), swimming ($2,600 for 2), percussion for daughter ($630 + $233.3), ice-skating ($1,040 x 2), activities examination fees ($333.3 + $100), Guitar lessons for son ($650), other holiday children activities ($42 x 2) and private English tuition ($1,517 x 2) ie Totalling about $11,394.60 per month. 

40.  However, he disagrees to pay the X English half day school and camps ($1,826 + $267 + $267 and $1,826 + $250 + $250), Membership annual fees for activities ($200 x 2) and Maths class for daughter ($888) Totalling $5,974 per month and other activities except those related to the children’s education.    

41.  I agree with the Counsel for the Husband that generally speaking, with reference to HJFG v KCY, maintenance pending suit and interim maintenance claims should be restricted those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate and not the long term needs, which will be properly dealt with the substantive hearing. 

42.  With this approach in mind, I am of the view that the Husband’s revised open offer of $15,000 per month for the Wife and said children, maintenance pending suit for the Wife in addition to the education expenses and agreed extra–tuition and extra-curricular activities of the said children is on the low side, having regard to the overall circumstances and the standard of living to which the family is accustomed to.

43.  On the other hand, I am of the view that the Wife’s claim for total sum of about $95,706.98 is on the high side, one of the reasons being, the Wife has included various categories of claims which relate to the long term and future recurrent needs of the Wife and the said children which should be dealt with at the substantive ancillary relief hearing and not at this interim stage.

44.  I have considered the submissions made by both parties’ Counsel regarding the said children’s extra-tuition and extra-curricular activities including those activities which the Husband has indicated he will agree to, those activities or tutorial lesson he disagreed.  I accept the Husband’s submission that he being capable and willing to help the daughter with her maths.  Although the Wife submits that the daughter would benefit from an extra maths class together with her classmates, it is not necessary at this interim stage to include these expenses.  Similarly, whilst I appreciate that it is quite common in Hong Kong for parents to enrol their children in extra English classes and summer camps to improve their English, and may well enjoy and benefit from these camps, since the said children already have private English tuition, I agree with the Husband not to include these expenses at this interim stage. 

45.  Further, in relation to the Wife’s claim that the said children takes 2 short trips around Asia and one long trip to Europe or other continents every year which costs about $49,000 per annum per child amounting to $8,233.32 per month or $4,116.66 per month per child, I am of the view that this is a matter which should be dealt with in the substantive ancillary relief hearing and not at this interim stage. 

46.  Having regard to the overall circumstances and taking a broad brush approach, with regard to the standard of living to which the family is accustomed to, I am of the view the reasonable and immediate monthly expenses of the said children should be around $21,500 per month or $10,750 per month per child (ie.$17,368.60 - $5,974 + $6,783 + $1,145 + $2,000 = $21,322.66 rounded up to $21,500).  In arriving at this figure, I have discounted the extra-tuition and activities that the Husband challenges as set out in paragraph 40 above and the holiday and other expenses as set out in paragraph 32 (c) above except the clothing and shoes and expenses for dining out.

The immediate and reasonable general expenses (excluding accommodation) of the Wife and said children

47.  In respect of the general expenses claimed by the Wife, I am of the view that the sum of $5,000 per month or $166.67 per day for meals at home for the said children is reasonable, particularly when the Husband in his updated Form E dated 27 February 2014, states that his food and household expenses amount to $8,700 per month and he spends a further sum of $8,000 per month on meals out.  [Bundle A:106]

48.  Taking a broad brush approach, I am of the view that the Wife’s claim for daily necessities ($200), mobile phone/domestic phone/broadband fees ($770) household detergents ($400), household maintenance ($800) totalling $2,170 per month is reasonable, particularly when compared to the Husband’s own food and household expenses as aforesaid.

The immediate and reasonable accommodation expenses of the Wife and said children

49.  I now turn to the immediate and reasonable accommodation needs of the Wife and said children.  There is no dispute that the Wife and said children has accommodation needs and have since April 2014 moved out of the former matrimonial home and resided in a flat located in the Mid-levels near the said children’s schools and the Wife’s maiden family.

50.  The Wife’s case is that the family used to enjoy a relatively comfortable lifestyle, ie a 1,475 sqf 3 bedroom apartment with good clubhouse facilities in Homantin area.  The family had no financial worries and went on overseas holidays at least 3 times a year and often stayed at 4-5 star hotels. The Husband drives a 7-series BMW private car parties and regularly spends large sums of money on entertainment. The whole family used to eat out every Friday and the Wife and said children eat out every Saturday and Sunday afternoon at nice restaurants.

51.  The Wife has produced a tenancy agreement to show that the current rental for their accommodation at the Mid-level apartment is $23,500 per month.  According to the Wife, she has to rent a property near the said children’s school and her maiden family so that the said children’s maternal grandparents can provide support as necessary. 

52.  Having regard to the overall circumstances including available evidence, I am of the view that, on a broad brush basis, the current rental of $23,500 per month and utilities of $1,300 per month is a fair and reasonable sum for the immediate accommodation expenses for the Wife and said children at this interim stage.   

53.  I note that the Husband’s initial claim is that he should only contribute $9,000 per month towards the rental expenses of the Wife and said children until the Wife has fully disclosed the circumstances of the financing of the Tenancy of the current accommodation.  The Wife has subsequently confirmed at the hearing that her mother has paid for four months’ deposit for the said Tenancy and provided post-dated cheques to the Landlord. 

54.  I have considered the overall circumstances including evidence that the Wife is receiving support and financial assistance from her maiden family, and without going into a detailed examination of the parties’ respective financial means and the whether the $1 million transferred from the Husband to the Wife ought to be accounted for or belonged the Wife’s mother as her investment profit from the taxi business with the Husband, I am of the view that the Husband should contribute fully towards the immediate and reasonable accommodation needs of the Wife and said children ie $23,500 + $1,300 per month at this interim stage.  In adopting this broad brush approach, I am mindful of the well established principle that if there is any overpayment or underpayment in the interim order, the figures can always be put right in the final order made at the substantive hearing.

The immediate and reasonable personal expenses of the Wife

55.  The Wife claims personal expenses of $24,362 per month which includes meals out, clothing, travelling, health and beauty products, personal grooming and entertainment etc.  According to the Form E of the Wife dated 27 February 2014, she has no income but her expenses including those for the said children are in the region of $90,000 per month.  Without a detailed examination of the Wife’s financial means, I simply note that she does not appear to have any substantial assets or savings, and she has been receiving financial assistance from her mother to pay for the rental of $23,500 per month including the 4 month’s rental deposit of $94,000.    

56.  Adopting the same principle that maintenance pending suit claims should be restricted to the immediate and reasonable needs of the Wife at whatever standard of living is appropriate without looking at the long term needs, which will be properly dealt with at the substantive hearing, I am of the view that it is reasonable on a broad brush basis to ask the Husband to pay $5,000 per month to the Wife as her personal expenses to cover essential needs, having regard to the fact that accommodation and general expenses totalling $31,970 per month ($15,985 for the Wife and $15,985 for the said children) and the said children’s specific recurrent expenses of $21,500 per month have already been provided for.

57.  In summary, the total amount of immediate and reasonable needs of the Wife and said children on an interim basis are: $5,000 + $31,970 + $21,500 ie $58,470 per month.

58.  I wish to add that having considered all the circumstances and the history of dispute and legal proceedings between the parties, I consider it more appropriate in this case to make an order that the Husband do pay periodical payments to the Wife (rather than to the tutors/organisations directly) to cover the said children’s specific recurrent needs including extra-curricular expenses, so as to avoid unnecessary argument over what activities have been agreed in writing or otherwise.

The financial circumstances of the Husband and his ability to pay in the interim

59.  According to the update Form E of the Husband dated 27 February 2014, he is a shareholder and director of two property holding companies, namely P Management Ltd. and J Ltd. and his net asset is approximately $21.45 million which includes cash in banks of $6,577,000 and stocks of $2,865,000.

60.  The Husband alleges that he has no income but receives director’s emolument estimated at $50,000 per month.  The Wife alleges that the Husband’s assets are substantially more than what he has disclosed in his said Form E.  Counsel for the Wife also highlighted to the fact that the Husband in his Form E dated 5 September 2012 completed in Chinese that he fully owned the former matrimonial property and other landed properties but subsequently in his update Form E changed his ownership to 50%. 

61.  Further, Counsel for the Wife referred to an extract from the Husband’s bank statements to show that the Husband regularly spends thousands of dollars a night at bars for entertainment. 

62.  I note that the Husband declared in his Form E that he has no income except the director’s emolument estimated at $50,000 per month.  However, his monthly expenses amount to $79,000 per month and he has no substantial liabilities and still able to maintain savings of about $6,577,000 and stocks of $2,865,000.  Without going into a detailed examination of the parties’ finances and the audited accounts of the said companies in which the Husband is the major shareholder and controlling director of, I believe the Husband should have access to the financial resources of the said companies and/or other income from the properties owned by him or the said companies to maintain his current living standard.

63.  In the circumstances, I am of the view that having regard to all the circumstances including their respective access to financial resources and their net available income, the Husband has the financial ability to pay maintenance pending suit to the Wife and the said children including accommodation expenses in the total sum of $58,470 per month.

Conclusion

64.  To conclude, I am of the view that, having regard to all the circumstances including the standard of living, education and lifestyle to which the Wife and said children are accustomed, the immediate and reasonable accommodation and general expenses of the Wife and said children are $24,800 + $7,170 per month; the specific recurrent needs of the said children are $21,500 per month or $10,750 per month per child; and the Wife’s personal expenses payable by the Husband are $5,000 per month at this interim stage.

65.  Adopting a broad brush approach and without going into any detailed examination of the parties’ means, which will be dealt with at the substantive hearing, if the matter is not settled before then, I find it fair and reasonable for the Husband to pay a total sum of $20,985 per month (($24,800 + $7,170) ÷ 2 + $5,000)) for the Wife, and $37,485 per month (($24,800 + $7,170) ÷ 2 + $21,500)) for the said children on an interim basis.

66.  Having regard to all the circumstances and evidence available, including the current financial resources of the Husband and his access to the financial resources of the said companies to which he has control of, and his overall net available income, I am of the view that he has the ability to pay the said maintenance pending suit to the Wife and the said children of the family including accommodation expenses in the total sum of $58,470 per month.

67.  My order is thus:-

The Respondent do pay to the Petitioner maintenance pending suit for herself in the sum of $20,985 per month and interim maintenance for the children of the family in the sum of $37,485 per month i.e. $18,742.50 per month per child commencing from 1^st May 2014 and thereafter on the 1^st day of each succeeding calendar month, until further order.  The above payments shall be credited by the Respondent into a bank account designated by the Petitioner.

Costs

68.  Neither party has been wholly successful in this application. Given that the Wife has had no alternative but to make this application and has been more successful than not, I consider it fair and reasonable having regard to the overall circumstances, to exercise my discretion and order the Respondent to pay 50% of the Petitioner’s party and party costs to be taxed if not agreed, with certificate for Counsel.  This is an order nisi which will be made absolute in 14 days.