LKW v. HJXJ

FCMC 14294/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14294 OF 2016

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JUDGMENT
(Maintenance pending suit & interim maintenance)

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1.  In this hearing, this court is asked to determine the application of the respondent (“wife”) by way of her summons dated 30 March 2017 for interim financial provisions in the total sum of $25,000 from the petitioner (“husband”) as follows:

(1) Maintenance pending suit (“MPS”) for the wife herself in the sum of $8,000 per month;

(2) Interim maintenance for the 2 children of the family in the total sum of $17,000 per month ($7,000 for the elder son; $10,000 for the younger son).

2.  It is pertinent to note at this stage that the wife and the sons are, at all material times, living at a rent-free matrimonial home arranged by the husband, which is said to be a small village house owned by his father.

3.  In response to the wife’s application, the husband initially offers to pay $10,000 per month, which is less than the ad hoc interim maintenance of $15,000 that he has been paying since the court order of 23 January 2017. During the hearing, he revises his offer to continue paying $15,000 per month for the wife/the sons. His suggested apportionment is $5,000 to the wife; $4,000 to the elder son and $6,000 to the younger son.

4.  The main issues of this case, as seen by this court in many other MPS/interim maintenance applications, are the ability of the husband to pay and the reasonable needs of the wife/sons.

Brief Background

5.  The husband was born Hong Kong in 1981 and is now 35.  He is a vehicle mechanic. He used to earn about $18,000 per month. Since April 2015, he runs a motor service company limited with his business partner (“Business”). The Business specializes in vehicle repairs and 2^nd hand vehicles trading.

6.  The wife was born in China in 1976 and is now aged 41 years old. She is educated up to secondary school level. She had worked as a part-time maid and a construction site worker in 2013-2014. Other than that, she is basically a housewife.

7.  This is the wife’s 2^nd marriage. She has a son born in 2009 within her 1^st marriage. The son is now 8 years old. There is no dispute that he has been treated by the parties as the elder child of the family. Also of no dispute is that the wife is receiving $3,500 per month from her ex-husband for the maintenance of the elder son.

8.  The parties first acquainted with each other in 2010.  They started to cohabit in 2012, when the wife was still married to her ex-husband. The marriage to her ex-husband was dissolved in 2013. She was later found pregnant in July 2014. About 3 months later, she and the husband held a wedding banquet. They finally registered their marriage in January 2015. Their son, ie the younger son of the family, was born in March 2015, He is now about 2.5 years old.

9.  The relationship between the parties turned sour shortly after their marriage. The husband claims that the wife indulges in gambling and leaves the sons to the care of the maid. The wife, however, attributes the poor marital relationship to the husband’s improper association with a woman (who is now his girl-friend).  In the end, the husband moved out of the matrimonial home in/about October 2016, and they separated ever since. By then, their marriage is less than 2 years long. If their cohabitation period is to be counted, their relationship lasted for about 4 years.

10.  On 20 October 2016, the husband returned to the matrimonial home to pack his belongings and to collect the cash kept in a safe about $200,000). An argument broke out between them, as the wife did not agree he took away the cash. Report was subsequently made to the police. The parties finally agreed to equally share the cash kept in the safe. Each of them received $100,000 (“Incident’).

11.  On month later in November 2016, the husband filed his petition relying on the “unreasonable behaviour” of the wife. It is agreed later that the petition will be amended to the fact of 1-year separation.

12.  At present, the wife is living with the sons at the matrimonial home, while the husband is cohabiting with his girl-friend and her 2 sons.

13.  In the children dispute resolution held before this court on 31 August 2017, the parties have agreed that they shall have joint custody to the sons, with care and control to the wife. The husband shall have reasonable access to the elder son and defined access to the younger son.

14.  Pursuant to the order of 23 January 2017, the husband is paying a sum of $15,000 per month since 1^st February 2017 as ad hoc interim maintenance for the wife and the sons.

Applicable legal principles

15.  Under sections 3 and 5 of the Matrimonial Proceedings and Property Ordinance (“MPPO”), the court has the power to make a maintenance pending suit for a spouse and interim maintenance order for the children of the family.

16.  The relevant legal principles are set out by Hartmann JA (as he then was) in HJFG v KCY [2012] 1HKLRD 95. It is worthwhile to repeat the enlightening words of His Lordship as follows:

“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 judgment of Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 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’, whichis synonymous with ‘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.”

17.  The learned authors of Rayden & Jackson: Divorce and Family Matters (18^th ed) explains at §16.17 the governing principle on this type of application which is also useful to repeat here:

“the court has an unfettered discretion to award such sum as it thinks reasonable. There is no hard and fast rule, and no fixed proportion: each case depends on its own facts. It has been said that the approach to maintenance pending suit should be empirical, and that in the ordinary sort of case the district judges who deal with these applications will have to take a broad view of means on the one hand and income on the other and come to a rough and ready conclusion, or to take a “broad brush approach”. The overall consideration is the actual needs of the parties’ pending suit.”

18.  It is also well established that in the ancillary relief proceedings, including MPS, there is a duty on both parties to make full and frank disclosure of all relevant materials to enable the court to exercise its discretion in making the order. If the court is of the view that the evidence disclosed by a party is deficient, adverse inferences may be drawn against that party (See: C v F (Maintenance Pending Suit) [2006] HKLFLR 41, at para 28). 

The husband’s ability to pay

19.  In the centre place of dispute between the parties is whether the husband has frankly disclosed his financial means, and in particularly, whether he earns merely $25,000 per month, or $50,000 per month (as alleged by the wife in her 1^st affirmation which, without any clue, is reduced to $45,000 per month in her 2^nd affirmation).

20.  According to the husband’s Form E (dated 17 January 2017) and his affirmation in opposition (dated 25 May 2017), he claims that his monthly income is $25,000, but his expenses are $31,814. In his view, it is very unreasonable of the wife to seek MPS/interim maintenance which eats up the whole of his monthly income. Mr Lam, his counsel, submits that the open offer of $15,000 per month is the best that the husband can provide.

21.  In the wife’s case, the Business of the husband is doing good. She refers to his Facebook where he posted various high-end and famous-branded cars that were repaired/serviced by him, such as Porsche, Bentley, Ferrari. She explains that if he collects payment from his clients in cash, he would share it with his business partner right away, and thus the audit account of the Business may not reflect his true income. She refers me to the Incident as the supporting proof that the husband enjoys and keeps cash from the Business.

22.  Her solicitors, Mr Loo, submits that the husband’s allegation of earning $25,000 per month does not sit well with the following evidence/facts:

(1) his claimed monthly expenses of $31,814, not to mention an additional $15,000 per month payable to the wife since 1 February 2017 pursuant to the court order of 23 January 2017;

(2) his offer of paying the wife a sum of $30,000 per month sliding down to $25,000 per month when he proposed to divorce with her in October 2016.[1]

(3) he is able to purchase a Rolex watch which is worth over $200,000 in July 2016;

(4) his BOC credit card spending in the average of $25,000 per month between March – June 2017, which is settled almost in full each month;

(5) he is able to engage counsel to appear in the hearings so far.

23.  Mr Loo further submits that the husband is now cohabiting with his girl-friend and her 2 sons. Since the girl-friend is a housewife, it can be inferred that he is now supporting her and her sons. He would not be able to sustain all these expenses, if his income is merely $25,000 per month.

24.  Upon due consideration and on the affirmation evidence before this court at this stage, I do agree with Mr Loo that the husband’s income is not as low as $25,000 per month and that he has not made frank disclosure of his actual income. I say so due to the following observation/evidence.

25.  First, it cannot be disputed, for it is so written in his own Form E and the audit account of 2015-2016, that the Business has a retained profit of $141,742.44, to which the husband has half share. If added, his actual monthly income would become $30,905.94.

26.  I notice that Mr Lam, counsel for the husband, has not disputed this line of the wife’s submission, but counsel avers that the Business is now running at a loss. According to its audit account (covering 1 April 2016 – 31 March 2017), it suffers a loss of $109,194.92 during the year. Nevertheless, I think counsel has to accept that the husband has not provided a full audit account for the year of 2016-2017 for my consideration. What he has provided is merely a draft account, with only 2 pages and unsigned. The pages so disclosed do not show that they are part of an audited account prepared by recognised auditors. These 2 pages are not even contained in an affirmation, but are provided by way of correspondences only.  I am thus bound to say that I will not place any weight on these 2 pages of alleged audit account of the Business for the purpose of this hearing.

27.  If (just assuming) I was wrong on the above view, I yet would have these to say. When the income statements (of the audit accounts) of the years 2015-2016 and 2016-2017 are compared, one can easily find out that the expenses for 3 items have escalated substantially as follows:

		2015-2016	2016-2017
	Salaries & wages	$0	$44,620
	Staff welfare	$35,337.30	$83,414
	Sundry expenses	$14,091.50	$35,052.70

28.  Materially, all the above 3 items relate to manpower or manpower-related expenses. An increase in such expenses tend to show that the Business is likely to have hired extra manpower in the year of 2016-2017, which does not sit well at all with counsel’s submission/the husband’s allegation that the Business is doing bad and running at a loss. Logically, costs and expenses, such as staff welfare or sundry expenses, should be cut, rather than expanded, in times of difficulty of the Business.

29.  In view of the above and solely for the purpose of this hearing, I do not accept that the Business is running at a loss, in the result of which I have reservation that the husband’s profit (and thus his income) will drop in this interim period.  

30.  Second, even on the husband’s own case as reflected in his Form E, his alleged monthly income ($25,000) is obviously insufficient to cover his claimed expenses of $31,814. [2] As said, he starts to pay the wife $15,000 per month as an ad hoc interim payment since 1 February 2017, which further increases his expenses to $46,814 (or $39,714 if the expenses of the maid ($4,100) and of the sons ($3,000) are carved out to avoid any possible double counting).

31.  If the figure of $39,714 is adopted, he faces a shortfall of $14,714 per month ($39,714 - $25,000), which shortfall cannot be met even when his retained profit is taken into account.

32.  In his affirmation in opposition, the husband has made no attempt to explain how he was able to meet his own alleged expenses and the said $15,000 per month to the wife from February 2017 up to the date of this hearing.  

33.  Moreover, it turns out that the husband is now no longer living by himself (as at his Form E) but is now cohabiting with his girl-friend. According to the 2^nd social investigation report, he tells that he started to cohabit with his girl-friend (and her 2 sons) in an undisclosed address since May 2017. It is a property of 700 sq feet with 3 bedrooms rented in the name of his girl-friend at a rental of $6,000 per month. Mr Lam, counsel for the husband, argues that there is no evidence to support that the husband is now paying the rental of this property, as the girl-friend may have her own financial means to pay for the same. Pending any further evidence to be substantiated by the husband, I would reject this line of submission at this stage.  In my view, if the husband is just living-in without paying any rent, he has abundant opportunity to say so in his affirmation in opposition which is prepared and filed on 25 May 2017.  Yet he chooses to remain totally silent on this point. In such circumstances, this court is perfectly entitled to draw an inference at this stage that he is paying for such rent.

34.  It is also noted that the husband has re-hired the maid who used to work for the parties. When the rental ($6,000) and the maid’s salaries ($4,310) are taken into account, his own expenses and the ad hoc interim payment to the wife are increased to $50,024 per month ($39,714+$6,000+$4,310). It begs the question of how he is able to sustain his living way forward with a mere income of $25,000 per month.

35.  In all fairness to the husband, I take note that he has mentioned in his affirmation that he would substantially cut his living expenses in order to pay MPS/interim maintenance to the wife. But he has not elaborated on how he would be able to do so. Importantly, the aggregate sums of his open offer ($15,000), the rental ($6,000) and the maid’s wages ($4,310) already come up with a total of $25,310 per month, which clearly exceeds his alleged income of $25,000.

36.  It thus becomes clear to me at this preliminary stage that the husband may have either understated his own income or overstated his expenses.

37.  Third, I have gone through the bank accounts and records disclosed by the husband so far, but unable to identify his income-receiving bank account. The only documents that the husband has provided for this argument hearing to substantive his allegation are:

(1) the 2-pages’ unsigned and alleged audit account of 2016-2017 showing the annual director’s remuneration of $600,000 for 2 directors (ie $25,000 per month per director);

(2) an employer’s return for the year of 2016-2017.[3]

38.  For the purpose of this application, I have already refused to place any weight on the unsigned and alleged audit account at this stage. I refuse to place any weight on the employer’s return under the circumstances of this case. It is pertinent to note that the said employer’s return is conveniently signed by the husband himself to prove his own income. As such and unless further substantive evidence is provided, I am not prepared to accept the “mere say-so of the payer as to the extent of his income or resources” (TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263 at 1289).

39.  Fourth, something needs to be said on the husband’s BOC credit card spending and payment. By way of correspondences, he discloses his BOC credit card statements from August 2016 to May 2017.[4] I do bear in mind that since his BOC credit card statements were disclosed only about 2 weeks prior to this argument hearing, the wife has not administered her questionnaire on the same to him, and thus he is yet to have the chance to explain some of his credit card transactions.

40.  However, Mr Loo rightly draws my attention to the statement dated 17 April 2017.[5] The opening balance is that there is unpaid credit card bill of $33,106.60, which was later settled by way of 3 ATM cash deposits made within 2 weeks, namely $5,000 on 22 March 2017, $20,000 on 6 April 2017 and $8,200 on 10 April 2017. The total ATM deposits are $33,200.  It thus begs the question of how the husband is able to have $33,200 to settle his credit card bill within 2 weeks, bearing in mind that his income is allegedly $25,000 per month only.

41.  Mr Lam for the husband attempts to submit that these are reimbursements to the husband by the Business for the vehicle spare parts that he bought for the clients of the Business on the internet. Putting aside the technicality issue that this submission is not supported by affirmation evidence, Mr Lam has to accept that there is no corresponding withdrawal of cash from the Business’s main bank account (BOC) which can match with the aforesaid 3 ATM cash deposits.

42.  Further, I have taken a cursory reading of the BOC account statements of the Business.[6] The said BOC bank account statements (from December 2015 to January 2017) show that the Business would usually make withdrawal or payment by way of cheques, probably in order to keep track of its payment records for tax or accounting purposes. If the Business is to reimburse the husband for such spare parts, it remains unexplained and thus illogical that the Business would depart from adopting its usual way of issuing cheques to cover its payment, including business-related reimbursement to the husband.

43.  I believe that the husband would have a lot to explain in view of the above observation from this court.

44.  As the matter now stand, I think that the composite effect of the above analysis is sufficient for me to conclude at this stage that the husband is unlikely to earn only $25,000 per month, and that he has not fully and frankly disclose his actual earnings. In the alternative, it is likely that he has overstated his own expenses. Doing the best I can on the available evidence, his income (including the profits from the Business) should not be less than $30,905 per month. In any event, this court is entitled to draw an adverse inference against him that he would be financially capable to pay the MPS/interim maintenance order that this court is about to make.

45.  In view of the above conclusion, there is no practical need to address to the other points submitted by Mr Loo on the husband’s ability to pay.

The living standard

46.  Before I consider the reasonable needs of the wife and the sons, I need to determine the marital living standard of the parties.

47.  In the wife’s Form E dated 21 February 2017, she describes that during the marriage, the parties and the 2 sons lived in a village house of about 650 sq feet free of rent. Since or about mid-2015, the family continuously enjoyed the use of an 8-seater car (which cost $123,000) and a maid. On weekends, the family would go to the Peak, Disneyland or Guangdong area for fun. They had VIP card for massage service in Shenzhen massage parlour(s).  She and the elder son enjoyed a 6-day’s tour in Eastern China and 9-day’s tour in Taiwan respectively in 2015 and 2016. In June 2016, the husband bought a Rolex watch which cost $220,000. He also possesses, the wife says, a Gucci wallet and an iPhone 7 plus. Above all, she claims that the husband paid for all household expenses in the total sum of $16,000 per month and gave her $10,000 per month as her pocket money.

48.  The husband vehemently objects to this allegation of the wife. He insists that while he was responsible for the expenses of the maid and the car direct, he paid her $10,000 per month only as household expenses. He never gave her an additional $10,000 as her pocket money.

49.  It is noted that neither party is able to provide any documents to substantiate their respective case on the amount of the household expenses and/or the pocket money.

50.  Since this is merely an argument hearing and no oral evidence is taken, it is impossible for this court to make any conclusive finding on the above dispute between the parties at this stage. That should be left for the determination by the trial judge of the ancillary relief matters. Without any intention to bind the trial judge at all, I do wish to raise the following observation.

51.  According to the wife, the husband literally paid for everything in the household, including her clothing, cosmetics, mobile telephone bill and dining-out expenses.[7] If true, basically most, if not all, of her personal expenses listed out in Form E were covered by the husband, which means that the alleged pocket money of $10,000 could be saved up in whole or in part by her, bearing in mind that it is her own case reflected in her Form E that her personal expenses are $5,589 per month only. This would bring home the question of where she had kept these alleged pocket moneys. Notably, she reports in her Form E (dated 21 February 2017) that her bank reserve is about $4,256 only.  I am sure that upon further discovery by the husband, the wife will have a lot to say on this point.

52.  What is clear to me is that the wife wishes to portrait that the family enjoyed a rather high living standard during the marriage. However, based on the available affirmation evidence, I do not hold such an impression. The evidence shows that the 8-seater car is not of famous and high-end brand. It is merely a Honda car and is purchased with a car mortgage. The wife is not suggesting that the VIP massage card is issued by very reputable clubs which demand substantive membership fees. The younger son has not yet started schooling as at the date of this hearing. The elder son, however, studies in local school only. The places that the wife and the elder son went for holidays, ie Taiwan or Eastern China, are not known as expensive or luxurious holiday destinations. The husband’s so-called luxurious items, even according to the wife’s own case, are of limited number and not plentiful. Part of the fund of purchasing the Rolex watch actually came from the sale proceeds of the husband’s old Rolex watch.

53.  Having considered all the evidence, I am of the view that the living standard of the parties during marriage is of average or slightly above average standard only.

Needs of the wife and the sons

54.  In her Form E and her affirmations, the wife states that her current monthly expenses are $29,982, with breakdowns as follows:

General expenses :	$16,010
Personal expenses :	$5,589
Elder son’s expenses :	$4,533
Younger son’s expenses :	$3,850
Total:	$29,982

55.  It needs to be reiterated that according to the wife, the said sum of $29,982 does not cover accommodation costs. She is now living with the sons in a rent-free village house arranged by the husband.

56.  The husband avers that the said monthly expenses are exaggerated and excessive. His response to her expenses are set out in his affirmation in opposition at §23-24. I will deal with these items in the light of the average or slightly over average living standard during the marriage.

(i)   Maid

57.  Under the heading of general expenses, the major dispute centres around the enjoyment of the service of a maid. Briefly, the husband employed a maid for the family for a short time in 2014 and then since mid-2015 to assist in taking care of the children. The current maid’s contract was due to expire in June 2017. But since the wife is not satisfied with the attitude of the maid (who regarded only the husband as her employer), she terminated her contract in April 2017, after which the husband re-employed the maid to work for him in his household.

58.  The wife is very keen to say that she and the sons should continue to enjoy the service of a maid in order to replicate their living standard during the marriage. On the other hand, Mr Lam, counsel for the husband, submits that the wife is a full-time housewife and thus she has no real need of a domestic helper.

59.  For the purpose of this application, although this court needs to consider the living standard during marriage, this is not to say that the exercise is merely to replicate that standard (see HJFG v KCY (supra) at §37).  And in my view, the overall evidence shows that the parties did not enjoy the service of a maid during the majority time of their relationship from cohabitation (2012) to separation (2016). On the wife’s own evidence, out of the said 4 years, there was a maid in service for about 17 months only.[8] Further and also on her own evidence, a maid was hired in order to release her to work. Here is what she says in her 2^nd affirmation at §5 (in English translation),

“…in mid-2014, upon the discussion between the petitioner and me, we began to hire a foreign helper, so that I can work full-time and the family income can be increased…” (emphasis added)

60.  The wife is not working now. The updated social welfare report confirms that she has no difficulty in taking care of the sons all by herself.  In such circumstances and in an overall impression of the average or slightly over average living standard of this family, I am not inclined to say that at this stage a maid is necessary, when the wife herself is now a full-time mother.

(ii)   Food

61.  The husband says that $10,000 for food is excessive. It is clear to me that $10,000 also covers the food of the maid who was still working for the wife at the material time, but since then left the employment. I have ruled that the maid expenses are not necessary. Hence, the food expenses should be revised to $7,500.

(iii)   Personal expenses of the wife

62.  The husband takes issues with the wife’s claimed expenses of clothing/shoes ($500), personal grooming ($500), entertainment/gifts ($300), holidays expenditure ($500), health products ($600) and mobile fees ($498). Yet, he has not said what the reasonable amount of these items are.

63.  In my view, there is no need for me to address to each of the above items. I only wish to point out that while the husband complains that the wife exaggerates these expenses, his own corresponding expenses double those of the wife in all the said items except personal grooming. The wife is correct in saying that he has applied a double standard which must be rejected by this court in order to achieve fairness. Therefore, the wife’s personal expenses should be allowed in full.

(iv)    Sons’ expenses

64.  In so far as the son’s expenses are concerned, the husband avers that the unreasonable items include extra-curricular activities of the elder son ($1,200), holidays expenditure ($1,000), lunch and pocket money ($720), uniform ($100) and milk powder, diapers, wet tissues and health drinks of the younger son ($2,320). Again, he has not counter-suggested what the reasonable sums should be.

65.  I do not find the sums claimed by the wife in the above items excessive and not commensurate with the average living standard of the marriage. Of the most disputed item, ie the extra-curricular activities of the elder son, the wife is able to provide a letter of proof from the school and to give breakdown of the expenses of each activity in her reply to the husband’s questionnaire.[9] I accept her explanation.  

Summary of expenses

66.  Due to the matters aforesaid and on a broad brush approach, I set out the expenses assessed and allowed by me for the purpose of this application in the following table:

General expenses :	$9,400
Personal expenses :	$5,589
Elder son’s expenses :	$4,533
Younger son’s expenses :	$3,850
Total:	$23,372

67.  The apportionment of expenses would be like these (which I shall round them up or down as the case may be for easy calculation):

Wife :	$8,722 (rounded down to $8,700)
Elder son :	$7,666 (rounded up to $7,700)
Younger son :	$6,983 (rounded up to $7,000)
Total:	$23,400

68.  The husband should take note that the above figure may need to revise up if the free accommodation now occupied by the wife/sons is no longer available. He should also bear in mind that the above figure would need adjustment when the younger sons starts schooling.

The wife’s financial resources

69.  There is no dispute that the wife is receiving $3,500 per month from her ex-husband for the benefit of the elder son, which shall be taken into account when determining the interim maintenance of the elder son.

70.  Counsel for the husband brings up the argument that the husband should not be asked to pay for more than he has offered for the elder son (ie $4,000 per month), because it is unfair to make him pay more than the natural father of the elder son. Counsel suggests that it is open to the wife to make an application to vary the periodical maintenance payable by the natural father of the elder son. I can understand the sentiment expressed. I think it is very likely that the paying ability of the natural father of the elder son would be further examined in the ancillary relief trial. However, until that is decided, the best interest of the elder son should be well taken care of, even if this is to mean that the husband has to buy more than the natural father in this interim stage.

71.  On the other hand, the wife reveals in her Form E and her reply to the husband’s questionnaire that she receives allowances given by the village production community of her hometown in China (村生產隊) from time to time. The allowances are paid into her Shenzhen Rural Commercial Bank. She received 8 deposits in the total sum of RMB38,470.97 (or about HKD44,240) from January 2016 to January 2017,[10] which is averaged out to be about $3,686 per month (say $3,600 per month for easy calculation).

72.  Mr Loo makes the bold submission that these allowances of the wife should not be taken into account when determining her MPS application because it is not fair to do so. If I understand Mr Loo correctly, he seems to suggest that such allowances are not her monthly income and that the husband had not paid regard to such allowances during the marriage when he provided financial support to her.  However, I am not allured to this line of submission. Although it may be the case that these allowances are not received by the wife on a monthly basis, a cursory reading of her Shenzhen Rural Commercial Bank account between 2010 to 2017 will reveal that she has been receiving such allowances quite regularly and sometimes in a substantial amount, eg RMB20,031.76 on 27 December 2012; RMB20,015.23 on 25 December 2013; RMB54,458.02 on 25 December 2015. Clearly, these are her regular financial means which ought to be taken into consideration in her MPS application.

Conclusion

73.  Due to the matters aforesaid, I rule that the reasonable needs of the wife and the sons are $23,400 per month, apportioned as to $8,700 to the wife; $7,700 to the elder son and $7,000 to the younger son.

74.  It is fair that the periodical payment of $3,500 now paid by the natural father of the elder son should be applied to part of his reasonable needs, leaving the balance of $4,200 to be covered by the husband for this interim period. The wife’s allowances given by the village production community of her hometown in China (村生產隊) of about $3,600 per month should be applied to satisfy part of her reasonable needs. The balance of $5,100 shall be borne by the husband, who should also bear the full expenses of the younger son in the sum of $7,000 per month. The total interim financial provision that I would allow is thus $16,300, to be back-dated for convenience to 1 April 2017, which is the following date after the date of the wife’s summons of 30 March 2017.

75.  I stress again that the court is only required to take a broad brush approach at this stage. Any overprovision (or under-provision) can be adjusted at the final hearing of the ancillary relief (See: F v F (Ancillary Relief: Substantial Assets) (1995) 2 FKR 45).

76.  Since neither party’s proposal is accepted by me, I take the view that costs of this application should be in the cause of the ancillary relief matters.

77.  I shall thus make the following order:

(1) the husband shall pay to the wife for her maintenance pending suit in the sum of $5,100 per month, to be backdated to 1 April 2017 and thereafter on the 1^st day of each and every succeeding calendar month until further order of the court;

(2) the husband shall pay to the wife for the interim maintenance of the elder son in the sum of $4,200 per month, to be backdated to 1 April 2017 and thereafter on the 1^st day of each and every succeeding calendar month until further order of the court;

(3) the husband shall pay to the wife for the interim maintenance of the younger son in the sum of $7,000 per month, to be backdated to 1 April 2017 and thereafter on the 1^st day of each and every succeeding calendar month until further order of the court;

(4) Credit be given to any sums that the husband has paid to the wife from 1 April 2017 onwards; the difference (if any) shall be paid within 14 days from today;

(5) All the above payment shall be paid into the wife’s designated bank account (to be provided in the draft court order);

(6) Paragraph 4 of the order dated 23 January 2017 in respect of interim financial provision to the wife/sons be discharged forthwith;

(7) Costs of this application be in the cause of the ancillary relief matters;

(8) The wife’s own costs be taxed in accordance with Legal Aid Regulations.

78.  This court order shall be drawn up by the wife’s legal team in Chinese.