NKPL v. NSF

FCMC 14532/2019

[2020] HKFC 251

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14532 OF 2019

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D E C I S I O N

( Children’s Interim Maintenance )

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1.  This is the petitioner’s (“W”) application by way of Summons dated 11 August 2020 against the respondent (“H”) for interim maintenance for the 2 children of the family in the total sum of $10,000 per month, each $5,000 per month.

2.  Pursuant to the Order dated 7 August 2020 made by HHJ CK Chan, W has been receiving interim interim maintenance in the amount of $10,000 per month from 1 September 2020 upon W’s undertaking to issue this application, which is directed to be disposed of on paper without oral hearing.

3.  H opposes this application and only agrees to pay $6,500 for interim maintenance for the Children.

Background

4.  Both of W and H are presently 34 years old respectively. 

5.  They were married in Hong Kong in May 2015.  By the time of their separation in early 2017, they had been married for about 2 years.

6.  From this marriage, 2 children were born, a boy who is now about 4 years old, (“Son”), a girl who is almost 3 years old (“Daughter”) (unless otherwise stated, the 2 children shall be collectively referred to as “the Children”).

7.  The Children are now studying and living with W in her parents’ flat in Apleichau.

8.  Further pursuant to the Order of HHJ CK Chan dated 7 August 2020, joint custody be granted to the parties, care and control of the Children were granted to W with reasonable access to H.

The Law

9.  My understanding is that W took out this application for interim maintenance for the benefit of the Children but not for maintenance pending suit for herself under section 3 of the Matrimonial Proceedings and Property Ordinance Cap. 192 (“MPPO”).  The Court’s jurisdiction to make an order for interim maintenance for the Children is pursuant to Section 5 of MPPO which provide that the Court shall make such order as it considers “reasonable”. 

10.  In determining an application for the Children’s interim maintenance, the overriding considerations are the immediate and reasonable needs of the Children and the Court has to balance their reasonable needs and the ability to pay of the payer on an interim basis (see LJ v LWHH [2003] 3 HKC 455 (CA) at §35).

11.  In undertaking this balancing exercise, the Court will adopt a broad brush approach, without a detailed investigation of the financial positions of the parties which will be examined at a later date at a full ancillary relief hearing if agreement cannot be reached in the meantime.

12.  In the decision in HJFG v KCY (unreported, CACV 127/2011, 28 October 2011), the Court of Appeal set out the principles to be applied to applications for maintenance pending suit or interim maintenance at §37 :-

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

(2)  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.

(3)  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.

(4)  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.

13.  It is also well established that in ancillary relief proceedings, which include applications for maintenance pending suit, there is a duty on both parties to make full and frank disclosure of the relevant materials to enable the Court to exercise its discretion to make the order, and if it 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) (unreported, FCMC 1701/2000, 20 September 2004 at §28).

Parties’ standard of living before separation

14.  During the marriage, the parties were used to in a property in Tsuen Wan registered in the sole name of H (“Former Matrimonial Home”).  The marriage is not a long one.   H moved out of the Former Matrimonial home about a month prior to the birth of the Son in November 2016 and the parties started to separate few months prior to the birth of the Daughter in April 2017.  Since then, W has no longer lived therein.  I accept that as the Children especially the Daughter have not really lived in the Former Matrimonial Home during the marriage with H, it is difficult to say that the Children have been enjoying the same standard of living before the parties’ separation.

15.  In my view, based on the incomes of the parties during the marriage, the living standard of the Children is just an ordinary standard.

W’s income and expenses

16.  W is a customer service manager earning $19,000 per month previously and now earns $22,000 per month.  Her monthly personal and general expenses as stated in her Form E are $15,038.83, which are not challenged by H.  She is able to pay such expenses of her own without any maintenance by H.

17.  For the general expenses of $2,000 claimed by W, in particular the utilities such as electricity and water, I think that they should cover 3 persons ie herself and the Children.  I therefore just apportion and assess $1,000 as the Children’s general expenses on board brush basis.

18.  H alleged that he had paid a lump sum of $651,129.04 to W in full and final settlement of her maintenance and ancillary relief claims, which is disputed by W.  I do not think that this issue can be dealt with in this application which concerns the Children’s interim maintenance only, but not W’s maintenance pending suit.

Children’s immediate and reasonable needs

19.  In W’s Form E, the Children’s monthly expenses are stated $12,954.2, which are not challenged by H.  Now, W claims in her affirmation in reply that the updated Children’s monthly expenses are $20,995.2.  The new items are the Children’s school fees, extra tuition fees for the Son ($1,400), school books and stationery ($500) and uniform ($1,000) for the Daughter.

20.  The Children’s school fees are not disputed by H who also agrees to pay the Daughter’s insurance premia whilst W will pay the Son’s insurance premia. 

21.  Ms Kwok for H submitted that according to the official receipts issued by the Daughter’s nursery, the total sums for her summer and winter uniforms are just $870 in a year.  Hence, the reasonable amount for each of the Daughter is $80 per month only, which I accept.  Strictly speaking, H did not challenge the Son’s school uniform, but I would assess $100 per month (ie $1,200 a year) on board brush basis as the expenses for the school uniforms for the Son and the Daughter shall be more or less the same.

22.  H suggests $250 for each of the Children’s school books and stationery expenses. Based on the board brush approach, I accept $500 for each of the Children’s school books and stationery expenses as claimed by W is reasonable.

23.  For the accommodation needs of the Children, I consider that since H is living with his girl-friend in a house of 1,300 sq ft in Yuen Long and claims to pay half share of the rental in the sum of $10,000, it must be reasonable for W and the Children to rent a flat of a size of 200 to 300 sq ft somewhere in Aberdeen or Apleichau as claimed by W.  I do not accept that W and the Children shall continue to reside in her parents’ flat even though there is no evidence about the size of this flat.  As H rents out the Former Matrimonial Home for $14,300 per month, I accept on the board brush approach that the rental of such a flat to accommodate W and the Children is around $14,000 per month as claimed by W. For the share of the Children, I would assess $9,333 (ie 2/3 of $14,000).

24.  Subject to H’s undertaking to pay the Daughter’s insurance premia as agreed, the total amount of the Children’s reasonable needs is $28,454 per month, breakdown of which is set out as follows:

Item	Amount (HK$)  (Son)	Amount (HK$)  (Daughter)
School fees	1,738	4,903
Extra tuition fees	1,400	Nil
School books and stationery	500	500
Rent	9,333
General expenses	1,000
Medical/Dental	400
Entertainment/ presents	1,000
Holidays	1,000
Clothing/shoes	1,000
Other transport	500
Child minding fees	4000
Uniform	100	80
Others (milk powder, napkinis)	1,000
Total	28,454

H’s ability to pay

25.  H is a policeman and has the average monthly salary in 2020 from $38,000 to $40,000 due to overtime work.  Ms Kwok for H submitted that the court should consider $35,180 as his monthly income.  Although H may not have to work overtime all the time, I consider that based on his average monthly salary in 2020, I assess his monthly income to be $38,000 for the sole purpose of this application only. 

26.  H rented out the Former Matrimonial Home for $14,300 per month but he alleged that he holds it on trust for his mother.  The question of the alleged trust cannot be determined in this application.  Even if I take into account of the rental income of the Former Matrimonial Home, the surplus is very little, about few hundred dollars, especially after deduction of not just mortgage instalments but also property tax or other outgoings eg rates and government rent etc.  For the purpose of this application, I would ignore this rental income.

27.  As to his monthly expenses, H claims to be $31,500 to $33,000.  It is against the well-established legal principles to assess his expenses item by item.  I will only choose some of the major expenses to discuss below. 

28.  Although H said that he is paying half of the rent in the sum of $10,000 to his girl-friend, I consider that it is excessive and unreasonable as I cannot accept that H is sharing a house of 1,300 sq ft in Yuen Long with his girl-friend whilst W and the Children is going to share a flat of a size of 200 to 300 sq ft somewhere in Aberdeen or Apleichau.  I accept W’s comments of $7,000 being about half of the rent of the Former Matrimonial Home and assess this sum as H’s rent expense.

29.  For electricity, H claims $1,690 per month which, I think, is unreasonably high when comparing with the utilities expenses claimed by W for just $1,000 covering water, rates etc.  I only allow $800 on the board brush approach.

30.  For the repayment to H’s mother of $2,000, he produced no document such as bank record etc showing such payment.  So I disallow.  For contribution to parents of $5,000, he similarly produced no document such as bank record etc showing such payment.  However, as W makes no objection to it, I fully allow.

31.  For the motor cycle and the private car owned by H, he claims $1,400 for their expenses.  In my view, even if H is working as a marine police officer, he may only require a motor cycle but not a private car nor both for performance of his job.  I allow $800 for such expenses.

32.  On board brush basis, I assess H’s monthly expenses as follows:

Item	Amount (HK$)
Rent (shared with girlfriend)	$7,000
Utilities (shared with girlfriend) -  Electricity -  Gas -  Water -  Internet	$800    $90    $250    $199
Mobile phone	$266
Food/ groceries	$1,000
Household expenses (shared with girlfriend)	$1,000
Car expenses, including petrol and maintenance	$800
Meals out of home	$3,000    (including $1,500 for meals on the boat when H is at work)
Transport	$750
Clothing/ shoes	$400
Personal grooming	$500
Entertainment/ presents	$400
Daughter’s insurance premia	$2,105
Contribution to parents	$5,000
Repayment to mother	Nil
Total:	$23,560

33.  As H has the monthly income of $38,000, I find that he is able to pay $10,000 as claimed by W.  Indeed, $10,000 is less than half of the Children’s reasonable needs as assessed above which is $28,454 per month. 

Conclusion

34.  I now order that upon H’s undertaking to pay the Daughter’s insurance premia as agreed, H do pay W the interim maintenance for the Children in the total sum of $10,000 per month ($5,000 each) from 1 January 2021 and thereafter on the 1st day of the succeeding months, into W’s designated bank account, until further order.

35.  Regarding the question of costs, since the application is determined on a broad brush approach without going into detailed investigation of the finances of the parties as any under or over payment can be adjusted at the final trial for ancillary relief, I make a cost order that costs of this application be reserved to be determined after the ancillary relief trial.