PBJDD v. KWW

FCMC 6760 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6760 OF 2008

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RULING

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Introduction

1.  This is an application by a respondent wife for maintenance pending suit for herself pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap. 192 and interim maintenance for the child of the family, a little girl, who is now 8 years old, pursuant to s.5 Matrimonial Proceedings and Property Ordinance Cap. 192.  

Background

2.  The parties married on the 26 February 2000.  The wife is 49 years of age and she is an in-flight services manager with X. She is due to retire in 2014 when she turns 55. She is a Malaysian national.   

3.  The husband is 39 years old and he is the Sales Director of a company called SHK Limited. He is Belgium and is presently living with his new partner, called J.   

4.  The divorce petition was issued on the 11 June 2008, based on the wife’s unreasonable behaviour.  The grounds of the divorce are in dispute and wife was given leave to file an Answer, which she did on the 26 September 2008.

5.  It is agreed that the parties separated in August 2007.  The wife will not consent to a divorce based on one-year separation with consent.  Consequently the issue of the divorce itself has been adjourned to the 24 August 2009, by which time the parties will have been separated for two years.  It is envisaged that at that stage the original petition will be withdrawn and a fresh petition will be issued on the basis of two years separation.

6.  There is one child of the family, a girl called L, who was born on the 15 August 2000.  The wife has an elder son by a former relationship who is now at University.  There is an ongoing dispute concerning the arrangements for L and the matter has been set down for a four-day trial in early June.  The husband seeks either joint custody or sole custody with reasonable access to the wife.  The wife for her part seeks sole custody and sole care and control with reasonable access to the husband. 

7.  The real dispute however, lies in the each party’s differing views in relation to the day-to-day care of L.  There are also some unresolved emotional issues.  The husband wishes to share the care of L, given the fact that the wife travels a great deal and both live within easy reach of each other.  He has suggested that the parties liaise and that if the wife is out of town because of her own work commitments with X, that L base herself with him during those periods.  Likewise he has said that he will inform the wife when he is out of town because of his own work commitments.  The husband has employed a domestic helper and has said in answers to a Request for Further and Better Particulars that his new partner does not work. Both parties helpfully gave undertakings at the hearing on the 20 October 2008.  The wife undertook to forward her roster to the husband on the 16th of each month and to inform him in the event that there were any changes to the schedule.  The husband undertook to inform the wife in the event that he is required to go overseas for business purposes and the trip effects any proposed access arrangements. 

8.  The First appointment hearing and the issue of finances generally, apart from the present application, have been adjourned until after resolution of the custody hearing.

9.  On the 12 January 2009 the court made an order for reasonable access to include the following defined arrangements namely that the husband shall have access to L every Saturday from 10:00 am – 9:00 pm and every Wednesday from after school until 8:30 pm.  In addition he has staying access to her on the last weekend of every month from 10:00 am on Saturday until 8:30 pm on Sunday.  Other access is to be by agreement between the parties.

10.  The present application originally came before the court on the 25 February but was adjourned once it became clear that the parties had not exchanged certain relevant documentation.  On that occasion the husband was ordered to pay interim interim maintenance for L pending this hearing in the sum of HK$5,000 per month.  He has continued to pay for the school fees (which are minimal) and for her homework tutor in the sum of c. HK$1,600 per month.  Both parties have medical insurance, which also covers L.                                                 

The law

11.  Applications of this nature are governed by s.3 and s.5 Matrimonial Proceedings and Property Ordinance, Cap 192, which state that the only 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 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

12.  The wife asks for HK$48,000 per month i.e. HK$43,000 for L plus HK$5,000 for herself plus the husband’s continued undertaking to pay the school fees and the school bus fare.

13.  The husband is willing to pay HK$3,500 per month, plus school fees and the provision of medical cover for L.

The Issues

14.  The issues then are:

·  How much should the husband be paying the wife as maintenance pending suit for herself, if anything at all?

·  How much should he be paying as interim maintenance for L?

·  Should those maintenance payments be backdated and if so to what date?

Discussion

15.  I must now turn to consider the issues, the law and the parties’ evidence.

How much should the husband be paying the wife as maintenance pending suit for herself, if anything at all?

How much should he be paying as interim maintenance for L?

16.  The wife makes the present application because she says that at present she has a monthly deficit of HK$35,240.  Therefore she says that she needs help from the husband simply in order to make ends meet and to retain her daughter’s present life style.

17.  The difficulty with the wife’s case is that it doesn’t really stand up to detailed scrutiny.  She points to the fact that her consolidated bank accounts show that she had a balance of HK$819,928 in February 2008 and that this had fallen to HK$578,395 in December 2008.  However, if I were to accept those figures then that would leave a deficit of HK$241,533 over an 11 month period – or c. HK$22,000 per month and not HK$35,240 per month as claimed. 

18.  The husband for his part challenges the wife’s position by pointing to the fact that between February and April 2008 the wife’s consolidated ledger balance remained the same at HK$819,928.  Further between 24 June 2008 and the 23 September 2008 the wife’s closing balance had not reduced by HK$105,000 – which should have been the case on the wife’s figures, but rather had increased by HK$9,000.  He argues, and with some force, that either the ledger balance should have gone down on a monthly basis or that the wife’s figures are not correct.  The wife also accepted that she had transferred HK$60,000 to a separate account in Hang Seng Bank.  This also needs to be taken into account.

19.  All in all I do not accept that the wife has a deficit of HK$35,240 per month.  If one accepts the figures contained in the bank accounts which support an initial deficit of HK$22,000 per month and then take into account the withdrawal of HK$60,000, the deficit is closer to HK$16,000 per month.  The question then becomes what amount is it reasonable for her to claim by way of maintenance pending suit for herself  and interim maintenance for L.

20.  According to the wife her income varies according to how much bonus, back pay, flying hours and other different allowances and benefits are due to her in any given month.  In July 2008 she received HK$49,476, in August 2008 she received HK$46,393, in September 2008 HK$47,566, in October 2008 HK$46,100, in November 2008 HK$51,097.  For her part the wife has pointed out that sometimes she may receive significantly less, for example her salary in May 2008 was HK$39,418.  Her most recent salary slip for March 2009 shows a net payment of HK$51,843.  Taking an average then over these 7 months, overall I am of the view that in the most recent past the wife has been earning something in the region of c. HK$47,400 per month.          

21.  Since the hearing the wife has submitted a further note in which she has pointed out that she, along with other X staff members are being asked to take 14 days special leave (unpaid).  I have noted that at this stage this is simply a proposal put forward by management.  If accepted it will mean a small reduction in the wife’s take home pay.  I do not necessarily accept the figures submitted by the wife, which the husband has not had the ability to properly challenge in any event.

22.  The wife initially claimed that she had outgoings of just over HK$81,000 per month.  In her oral submission she seemed to accept that some of these figures could be amended.  She claimed HK$43,000 as maintenance for L and HK$5,000 for herself. This included HK$4,000 per month for extra mandarin tuition and HK$4,000 per month for L’s extra curricular activities, HK$6,000 for L’s food and a further HK$1,500 for her vitamins and supplements and another HK$650 for school lunches i.e. HK$8,150 for L alone.  In addition she seeks a contribution of HK$8,000 towards the rent – when the total rent is only HK$12,000 per month.  I have also noted that originally the food allowance for the whole household was put at HK$6,000 per month.  I have to say that it seems to me that many of these figures produced appear to be are inflated and without proper foundation.

23.  On a broad-brush basis it seems to me that it is reasonable for the husband to make a small contribution towards the wife’s expenses and more importantly a contribution towards L’s share of the general household expenses and a contribution towards L’s actual expenses. 

24.  The husband has presented his case as a mathematical exercise.  I have some sympathy with his approach, which is based on the premise that as L spends 1/3 of her time with him that he should be asked to contribute half of 2/3 of whatever costs the wife has to meet.  This is not however the way in which the court approaches cases like this and seems to me to fail to take into account the reality of the situation namely the full costs associated with bringing up a child in Hong Kong and the appropriate amount he might then be expected to pay.  The husband puts his income at c. HK$130,500 per month inclusive of a housing allowance and a bonus.  He also has some rental income from investment properties in Belgium, in the net sum of HK$36,500 per month.  Thus in total it appears that he has an income of approximately HK$167,000 per month. He puts his monthly outgoings at c. HK$175,000, although this includes HK$81,959 for mortgage instalments.

25.  The husband also has a new partner with whom he is living. I am a little perturbed by the fact that the husband appears to be fully maintaining her and has said that she has no income and no assets. She is a signatory to one of his credit cards and appears to spend quite liberally on occasions. The husband has no legal obligation to support his partner. He does have a legal obligation to support both his wife and daughter. That obligation takes precedence over any others that he may have chosen to take on.

26.  Having reviewed the evidence it seems to me that the husband does have the means to pay an appropriate amount as maintenance for the wife and L.

Decision

27.  Taking into account all of the factors outlined above and bearing in mind that this is a broad-brushed exercise I will order that the husband pay the wife HK$2,500 per month for herself as maintenance pending suit and a further HK$15,000 per month as interim maintenance for L, such payments to commence on the 1 May 2009.  This is also subject to the husband’s continuing undertaking to pay for L’s school fees and for her homework tutor.  Both parties will continue to provide L with medical insurance, pending a full hearing on ancillary relief. 

Should those maintenance payments be backdated and if so to what date?

28.  The wife asks that the maintenance payments be backdated to August 2007 when the husband left the matrimonial home. She first made that application in her Form E dated the 19 November 2008. In the circumstances I will backdate the maintenance payments to 1 December 2008, due credit to be given for the interim interim maintenance paid from 1 March 2009 to date. Therefore the husband shall pay the backdated maintenance in the sum of HK$95,000 on or before the 1 May 2009. 

29.  Given that neither party has been entirely successful here and that they are both representing themselves I will make an order that there be no order as to costs.