C, KT v. G, T

FCMC 16278 / 2018

[2020] HKFC 152

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16278 OF 2018

________________________

________________________

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J U D G M E N T
(Maintenance Pending Suit/Interim Maintenance)

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Introduction

1.  This is an application by a Respondent mother for maintenance pending suit pursuant to section 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the only child of the family, a little girl M, who was born on the XX July 2014, and is now nearly 6 years old, under section 5 of the same ordinance. The mother also told the court originally that she was seeking litigation funding, although this was not specifically pleaded in the summons. In any event she is not now pursuing this part of her application as she is currently legally aided (the legal aid certificate having been issued on the 12 March 2020). In addition, the mother also seeks security for these payments, which she asks to be deposited into court. The original summons was dated the 29 November 2019. This was amended on the 12 May 2020. In the amended summons she seeks the following:

3. The Petitioner do pay into Court for the benefit of the Respondent and M within 3 days of the date of the Health Alert in Hong Kong being stood down such sum as the Court thinks fit in the circumstances.

As will be seen, and as discussed during the hearing, I have some difficulty with this aspect of the summons, given that the court has no power to make an interim lump sum order. It is also of note that no enforcement proceedings have been issued. However, it is accepted that a court may backdate an order for MPS/interim maintenance and that this may result in an accumulated amount of maintenance being available to a litigant.      

2.  The initial summons was issued following the return of M to Hong Kong from Germany. On the 24 December 2018, the father issued divorce proceedings in Hong Kong. Almost a year later, on the 12 November 2019, the mother returned to Hong Kong with M. For the purposes of this summons I do not intend to go into the detail of The Hague proceedings in both Germany and Hong Kong, but suffice it to say that this appears to be highly emotive, time consuming and expensive litigation.

3.  On the 26 July 2019 the German court made a “safe harbour” order, which according to the mother stated that the father be required to do as follows:

a.  to prove that no criminal investigation has been conducted against me [the mother] in Hong Kong;

b.  to submit to the following formal obligation (which is readily enforceable in Hong Kong)

i.  K [the father] shall provide a furnished apartment with a location and facilities comparable to the previous marital home with approx. 80 sqm living area, bedroom, nursery and garden – Flat ABC - for me and M to use free of charge;

ii.  K shall pay me a monthly financial contribution of 1, 500 euros to increase my part-time income as a flight attendant and to finance my job-related flights to Germany until a court decision of the Hong Kong court responsible for the divorce proceedings and subsequent matter states otherwise;

iii.  K shall fully cover M’s school and living expenses.

4.  On the 9 August 2019 the father entered into an undertaking in Hong Kong which broadly followed the German court order. This states as follows:

I, C, KT, of Hong Kong, the Petitioner herein, DO HEREBY UNDERTAKE to this Honorable Court and to the Respondent that I will:

(1)  provide a furnished accommodation for the Respondent and our daughter, CML, a girl, born on XX July 2014 (“M”) at a location and standard similar to Flat ABC, with approximately 80 sqm living area and 2 bedrooms, by the date when the M returns to Hong Kong until further Order of the Court or otherwise agreed between me and the Respondent.

(2) Pay Euro 1, 500 per month of financial support to T, [the mother] inclusive of the costs of her flights to Germany, until further Order of the Court.

(3)  Be responsible for all of M’s living expenses and school fees until further Order of the Court.

5.  As will be seen, it is the mother’s case that the father has never fully complied with either the German court order or his undertaking. In particular, she maintains that he had rented a flat pursuant to his undertaking, which was largely uninhabitable. She says that it was dirty with substandard furniture and without even clean linen and towels. This is denied by the father. In any event she subsequently booked into a hotel and then moved to stay with a friend and then, finally, rented a small serviced apartment in Hung Hom. In addition, she says that the father has never fully paid the Euro1,500 per month and that he has not paid for M’s living expenses. Thus on her case the father owes her HK$223,371. This is broken down as follows:

Date Due	Cost of rental HK$ (German Order)	Amount due to me (HK$) (German Order, supplement income Euro 1,500*)	Amount due for me (HK$) (Requested in MPS application)	Amount due for M (HK$) (German Order living expenses and requested in MPS application)	Total due from K (HK$)	Total amount received (Euro)*	Deficit (HK$)
12 Nov 2019	25,666 +2,973	12,600	4,900	7,900	54,039	1,470 (HK$12,348)
12 Dec 2019	20,900	12,600	4,900	7,900	46,300	1,500 (HK$12,600)
12 Jan 2020	20,900	12,600	4,900	7,900	46,300	0
12 Feb 2020	20,900 +2,000	12,600	4,900	7,900	48,300	800 (HK$6,720)
12 Mar 2020	21,200	0	0	5,900	27,100	0
12 Apr 2020	21,200	0	0	5,900	27,100	0
12 May 2020	0	0	0	5,900	5,900	0
Total	135,739	50,400	19,600	49,300	255,039	3,770
Total in HK$	135,739	50,400	19,600	49,300	255,039	31,668
							223,371

As will be seen I also have some difficulty with this schedule. In particular, under the German order the mother was to be provided with suitable accommodation and maintenance for herself of Euro’s 1,500 per month plus funds to cover all of M’s expenses including the costs of her education. However, it seems to me that there is some double accounting in the schedule, with the wife claiming Euro1,500 per month plus accommodation and additional maintenance for herself. Thus on the face of it these figures are not accepted.

6.  On the 29 November 2019 the mother effectively submitted to the jurisdiction of the Hong Kong courts and a consent summons was filed in which the interim stay of the proceedings was uplifted. On the 5 November 2019 the court had also made an order, in anticipation of M’s arrival in the territory, which stated that M could not be removed from the jurisdiction of Hong Kong, unless with the written consent of both parties or leave of the court. Both parties also filed undertakings in which they agreed not to apply for additional passports for the child.

7.  On the 12 February 2020 the mother issued a summons seeking leave to remove M temporarily back to Germany. This was at a time when the COVID 19 pandemic seemed to be centred in China and a great many parents had decided at that time to remove their children to places of perceived greater safety. On the 14 February 2020 I granted the mother an order in the following terms:

D  AND UPON the Respondent providing her signed undertaking to the Court and to the Petitioner:-

(a)  to return the child of the family namely C, ML, a girl born on XX July 2014, (“M”) to the jurisdiction of Hong Kong no later than 7 days after the Hong Kong Government entirely stands down its Health Alert in respect of coronavirus in Hong Kong;

(b)  not to make any application in Germany to resist the return of M to the jurisdiction of Hong Kong in accordance with Recital D(a) above;

(c)  not to leave Germany with M whilst she is temporarily residing there;

(d) to comply with Paragraph 5 of the Order dated 26 July 2019 from the Higher Regional Court Munich in the event she breaches this Order and the German mirror order to pay Euro 25,000 fine;

(e)  to apply for a mirror order of this Order in the appropriate Court in Germany;

(f)  to provide the Petitioner with daily video and/or photograph of M by WhatsApp, text or email or other electronic means;

(g)  to provide the Petitioner the weekly report of M.

E.  AND UPON the Court recording Ms. Linda Catherine Heathfield’s undertaking made in the course of the hearing that she will immediately apply for a mirror order in Germany and she will instruct Messrs. Stefani & Tichy to do that on the Respondent's behalf forthwith.

IT IS HEREBY ORDERED THAT:

1.  Leave be granted to the Respondent to temporarily remove the child of the family namely C, ML, a girl born on XX July 2014, (“M”) from the jurisdiction of Hong Kong to reside with the Respondent in Marquartstein, Germany no later than 17 February 2020, and to return M to the jurisdiction of Hong Kong in accordance with her undertaking referred to above.

2.  The Petitioner shall have daily remote access by FaceTime or alternatively by telephone or by other electronic means at a time between 7:30am-8am (German time) or 3pm-3:30pm (German time) on Mondays to Fridays; and between 9am-9:30am (German time) at weekends.

3.  The Petitioner shall have direct access to M~ in Germany, either in Marquartstein, Germany or within an area of 30 minutes from Marquartstein, Germany: -

a.  31 March 2020: 10am - 5pm (day access)

b.  1 April 2020 - 2 April 2020: 10am on 1 April 2020 to 10am on 2 April 2020 (1 overnight)

c.  4 April 2020 - 5 April 2020: 10am on 4 April 2020 to 10am on 5 April 2020 (1 overnight)

d.  6 April 2020 - 8 April 2020: 5pm on 6 April 2020 to 10am on 8 April 2020 (2 overnights).

IT IS FURTHER ORDERED that the Petitioner shall provide to the Respondent his contact details during this access period to include address and mobile telephone number and the Respondent shall have daily FaceTime contact with M whilst she is in the Petitioner’s care at the same times as set out in Paragraph 2 above.

4.  There shall be no order as to costs of this application

As I understand it the mother left Hong Kong with M that evening. She had been in Hong Kong for approximately three months at that stage.

8.  Although the father subsequently sought the child’s return and initially at least seemed engaged in the process, I am told that he has now effectively abandoned the litigation. He filed Notice of Acting in Person on the 11 May 2020 and he did not appear in court on either the 12 May 2020 or the 9 June 2020. Further he did not file his affidavit in relation to this matter as he had been ordered to do. I am told that he is no longer having remote access to M and he has not responded to any other part of the litigation.   

The issues

9.  The issues then are these:

a)  How much maintenance should the father be ordered to pay for M whilst the child is in Germany? Should this sum be backdated at all?

b)  How much maintenance should the father be ordered to pay for the mother and M in the event that they return to Hong Kong? Should this sum also be backdated? In particular, should this sum be backdated for the three-month period that the mother and M spent in Hong Kong from the 12 November 2019 – 14 February 2020?

c)  Is it possible for security to be provided for these payments?   

The mother’s proposal

10.  The mother seeks HK$5,900 per month as interim maintenance for M whilst she is living in Germany. She does not seek any financial support for herself as she continues to receive some salary from her employer – a German airline.

11.  On her return the mother initially sought HK$17,500 per month as maintenance pending suit for herself and HK$7,900 per month as interim maintenance for M, plus provision for housing in the sum of HK$23,600 per month. This equates to HK$49,000 per month. In addition, she asked for an additional HK$13,317 to cover the cost of travel between Germany and Hong Kong. In her 9^th and last affidavit dated the 5 May 2020 she explains it thus:

30. I would respectfully ask the court to consider my application on an urgent basis and in the best interests of M so that I have access to funds paid into court to meet accommodation costs, living expenses for myself and living expenses for M before we return to Hong Kong after the Emergency Health Alert has been stood down and subject always to the Legal Aid Regulations. The total amount I have calculated for the three-month period is HK$393,688 made up as follows:

Expense (three months)	HK$
Accommodation	70,800
M’s living costs	23,700
My living costs	52,500
Travel costs to and from Germany	13,317
Total	160,317
Unpaid maintenance (see exhibit TG9-2 for breakdown)	233,371
Grand Total	393,688

The father’s proposal 

12.  As I have said the father is currently not participating in the litigation and he has not made any proposals with respect to maintenance pending suit or otherwise. I understand that he is not currently supporting M financially.

Background

13.  It seems that this was a fairly brief and rather turbulent marriage between the mother, who works as a part time flight attendant for a German airline and the father who is a pilot, currently working for a Hong Kong airline. It seems that they met in or around 2011, when the mother was in Hong Kong on a layover. They then embarked on a long distance relationship in multiple locations which included Germany, the mother’s home country and Hong Kong, where the father then resided. From the papers it appears that they frequently broke up and then reconciled. M was born on the XX July 2014, but the parties did not marry until the XX December 2017. It seems the marriage was over within a few months.

The law

Maintenance pending suit

14.  The law is well known and not in dispute. Section 3 of the MPPO Cap192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently, applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing.

15.  Reference may also be made to the Court of Appeal decision in HJFG v KCY (CACV 127/2011, 28 October 2011, where the following principles were reiterated with respect to maintenance pending suit/interim maintenance applications:

a.  The sole criteria to be applied in determining the application is “reasonable” which is synonymous with “fairness”.

b.  A very important factor in determining fairness is the marital standard of living.

c.  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.

d.  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 situation, the Court should err in favour of the payee.

How much maintenance should the father be ordered to pay for M whilst the child is in Germany? Should this sum be backdated at all?

16.  As I have said the mother seeks HK$5,900 per month for M whilst she is living in Germany. In support of that position the mother refers to exhibit TG9-3, which in turn was originally attached to her first affidavit in support of her maintenance pending suit application at TG5-8. This states, inter alia, as follows:          

Child

Item	Amount
School fees – GSIS	tbc
Extra tuition fees	tbc
School books and stationery	250
Transport to school (including school bus)	tbc
Medical / Dental	2000
Extra-Curricular Activities	tbc
Entertainment / presents	2000
Holiday	tbc
Clothing / Shoes	1000
Insurance premia	tbc
Lunches and pocket money	tbc
Other Transport	500
Child-minding fees	tbc
Uniform	150
Other (specify)	tbc
Total monthly expenses for child	HK$5,900 ++

17.  I have some difficulty with this document as it seems to have been prepared on the basis of Hong Kong expenditure as opposed to German expenditure and none of it is substantiated by receipts or other proof of payment etc. Whilst that may have been understandable from a Hong Kong perspective, it seems to me that the mother must have been aware of her expenses for the child in Germany and these should have been included. Doing the best that I can therefore I shall allow HK$5,000 per month. The original application was made on the 29 November 2019 and the mother was in Hong Kong until the 14 February 2020. This sum shall therefore be backdated to the 15 February 2020, the day after the mother left Hong Kong for Germany and shall thereafter be paid on the 15 day of each month pending further order. The next sum is due on the 15 August 2020 and 5 months is currently outstanding. Therefore, the outstanding amount equates to HK$25,000.

How much maintenance should the father be ordered to pay for the mother and M in the event that they return to Hong Kong? Should this sum be backdated at all? In particular, should this sum be backdated for the three-month period that the mother and M spent in Hong Kong from the 12 November 2019 – 14 February 2020?

18.  In addition to the above estimate for M’s actual expenses, the mother calculates her general and personal expenses in Hong Kong as follows:

Part 4 Current Monthly Expenses

4.1 General

Item	Amount
Rent	20,978
Mortgage instalments	7,076
Utilities (electricity, gas, rates, telephone & water)	1337
Management fees	2631
Food	8000
Household expenses	500
Car expenses	1198
Insurance premia	764
Domestic helper(s)	tbc
Other (specify)	tbc
Total monthly household expenses	42484 ++

4.2 Personal

Item	Amount
Meals out of home	6000
Transport	1500
Clothing / Shoes	1000
Personal grooming (including haircut and cosmetics)	3000
Entertainment / presents	2000
Holiday	tbc
Medical / Dental	2000
Tax	tbc
Insurance premia	tbc
Interim maintenance	0
Contribution to parents	0
Dependent family members	0
Other (specify) Hong Kong legal fees (average since March 2019 Translation costs (average monthly)	108000 3000
Total monthly personal expenses	HK$126,500 ++

19.  In so far as the mother’s accommodation costs are concerned, I accept that going forward it would be sensible for the mother to rent a serviced apartment and that the likely cost will be in the region of HK$24,000 per month. I also accept that this is an expense that can be properly attributable to M. There is however an argument with respect to the provision of the previous accommodation and although on the face of the evidence before me at present I tend to accept what the mother says in this respect, it seems to me that it may not be appropriate for the court to backdate this sum, when the father has also paid for the mother’s allegedly substandard accommodation and may still be liable for a rental payment. It is also not, in my view, possible for the court to order security by effectively ordering that the provision for rental be paid as a lump sum in advance. The mother seeks HK$70,800 as three months advanced rental, such sum to be paid into court as security. As indicated during the hearing I do not believe that the court has the jurisdiction to make such an order.

The other general expenses and the mother’s personal expenses

20.  The fee for the serviced apartment will most likely include utilities and management fees. I also accept that the mother will be able to cover her costs in Germany from her own income (including her mortgage and other loan, utilities in Germany, car expenses etc). The mother does not own a car in Hong Kong. That leaves provision for food and other household expenses under the General expenses heading in Hong Kong to be provided for. I will allow HK$4,800 per month for the mother’s share of those expenses (HK$4,250 = her share of the food and household expenses and the remainder being a small contribution towards her personal expenses).

M’s share of the general expenses and her own expenses

21.  In addition to provision for housing in the sum of HK$24,000 per month, I also accept that the father should pay an additional HK$4,250 per month as a contribution towards M’s share of the food bill and other household expenses, plus HK$5,000 per month for her other expenses. For the avoidance of doubt this does not include school fees, school books and stationery, school bus fees, ECA’s etc etc. This currently amounts in total to HK$33,250 per month.

Should these sums be backdated?

22.  As indicated above I am not of the view that the rental component of this calculation should be backdated. In so far as the maintenance for the mother in the sum of HK$4,800 per month and the maintenance for M (other than the rental amount) in the sum of HK$9,250 per month (i.e. HK$33,250 – the rental component of HK$24,000 = HK$9,250), I accept that both of these amounts should be backdated for the three-month period that the mother and M were in Hong Kong – due credit to be given for payments already made by the father. This amounts to HK$42,150 (i.e. (HK$4,800 per month x three months) = HK$14,400 + (HK$9,250 per month x three months) = HK$27,750, which totals HK$42,150).

23.  On the mother’s own calculation the father paid HK$31,668 whilst she and M were in Hong Kong. Thus it seems to me that approximately HK$10,500 remains outstanding (i.e. HK$42,150 – HK$31,668 = HK$10,482).     

The mother’s earning capacity   

24.  I accept that the mother only has a limited earning capacity, especially at present, and that her financial circumstances are currently very strained. However, she acknowledges that she currently earns enough to cover her own expenses and a share of M’s expenses, whilst they are living in Germany and I have approached this application on that premise. When she returns to Hong Kong she will need sufficient funds to rent an acceptable apartment for M and she cannot do that from her own financial resources. This was acknowledged in the original German order and is clearly still the case today.

The father’s ability to pay

25.  The father’s current financial position is largely unknown. When he was participating in this litigation he said that his financial circumstances were also strained, but it is interesting to note that this is seemingly not what he told the authorities in Germany. The mother also believes that he has other financial resources at his disposal. In his Form E he states that he has an income of just over HK$48,500 per month. However, Mr Barnes on behalf of the mother was able to show that in reality he was paid in the region of HK$848,475 for the calendar year 2019 – or HK$70,700 per month. There are no pay slips nor any contract of employment produced by the father. Further, he has elected not to file an affidavit in response to the mother’s affidavit. In such circumstances I accept that I am able to draw some adverse inferences. It is the mother’s case that the father enjoyed a reasonable standard of living during their relationship and that he had other sources of income available to him. She also says that he had previously worked as a racing pilot and had held other positions within his own mother’s company. An analysis of the father’s credit cards also shows that he enjoys a reasonable standard of living. In such circumstances I am satisfied that he should be able to pay what is ordered. This is especially so given that this is in keeping with the German order and the undertaking given by him subsequently in these proceedings. In other words, he accepted at the time that the German order was made that he would financially support M and the mother when they were in Hong Kong. Longer term it is also expected that he will contribute towards M’s educational costs, again as was originally anticipated by the German courts and as agreed to by him. If he chooses not to comply then that is something that will need to be taken into account when considering the mother’s application for permanent relocation.      

Is it possible for security to be provided for these payments?  

26.  Finally, and for the avoidance of doubt, I shall not order that security be provided for the payments. As discussed with counsel and as indicated during the hearing, I am not of the view that the court has the jurisdiction to make the orders as originally sought by the mother. However, I shall backdate the payments as appropriate and I shall also make an order that these payments be made ahead of the Mother and M’s anticipated return to the jurisdiction.    

Costs

27.  I accept that the mother had no alternative but to make this application and although she has not been completely successful, she has certainly been more successful than the father. Further the father has not complied with court orders, he has avoided service and has generally made life far more difficult than it should have been. Consequently, I shall exercise my discretion and make an order nisi to be made absolute in 14 day’s time, that the husband do pay the mother’s costs of and arising out of the original summons dated the 29 November 2019 and the amended summons dated the 12 May 2020 forthwith, such costs to be taxed if not agreed on a party and party basis. The mother’s own costs to be taxed in accordance with Legal Aid Regulations. There shall be certificate for counsel.

Order

28.  Consequently I shall make an order as follows:

IT IS ORDERED THAT:

1)  The Petitioner father shall pay interim maintenance to the Respondent mother for the child of the family M, in the sum of HK$5,000 per month, with effect from the 15 August 2020 whilst the child resides in Germany and until the mother and child return to Hong Kong, whereupon the sum shall be increased to HK$33,250 per month, the first payment to be made 3 days after the Hong Kong Government stands down its health alert in respect of the coronavirus in Hong Kong. Such sum to be paid on a monthly basis thereafter, until further order. This sum shall be deposited with the Respondent’s solicitors.

2)  The Petitioner shall pay maintenance pending suit to the Respondent for herself in the sum of HK$4,800 per month, the first payment to be made 3 days after the Hong Kong Government stands down its health alert in respect of the coronavirus in Hong Kong. Such sum to be paid on a monthly basis thereafter, until further order. This sum shall be deposited with the Respondent’s solicitors.

3)  As set out in paragraphs 17, 22 and 23 above, these sums shall be backdated and payment shall be made in full 3 days after the Hong Kong Government stands down its health alert in respect of the coronavirus in Hong Kong. This sum shall be deposited with the Respondent’s solicitors.

4)  The Petitioner shall also pay the sum of HK$14,000 as a contribution towards the cost of flights from Germany to Hong Kong for the mother and M. Again this sum shall also be made in full 3 days after the Hong Kong Government stands down its health alert in respect of the coronavirus in Hong Kong. This sum shall be deposited with the Respondent’s solicitors.

5)  The First Appointment hearing shall be adjourned to the 12 November 2020 at 9:30 a.m.

6)  Both parties do personally attend that hearing.

7)  There shall be an order nisi to be made absolute in 14 day’s time that the Petitioner do pay the Respondent’s costs of and arising out of the summons dated the 29 November 2019 and the amended summons dated the 12 May 2020, such costs to be taxed if not agreed on a party and party basis and shall be paid forthwith. There shall be Legal Aid taxation of the Respondent’s own costs. There shall also be a certificate for counsel.

8)  Liberty to apply on an urgent basis.