C, JPS v . L,CWS

FCMC 13605 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13605 OF 2013

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J U D G M E N T
(Interim maintenance)
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Introduction

1. This is an application by a Respondent wife for interim maintenance pursuant to s.5 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) for the only child of the family, a little boy, M, who was born in October 2011 and is now 3 years of age.

The main issue

2. The main issue to be determined is how much should the husband pay to the wife for the interim provision for the child? The husband has offered to pay HK$7,680 per month (up from HK$5,000 per month originally ordered by the court on an interim interim basis on the 28 July 2014). The wife originally sought HK$25,000 per month, but has since reduced her claim to HK$22,000 per month.

Background 

3. The background to the case is somewhat controversial in that the husband accuses the wife of removing M from HK without his consent. The wife is currently living in Canada with M and her maiden family.  The husband is a pilot and the wife was originally a cabin crew member. She is not working at present and is currently a full time mother. Both parties previously worked for the same airline. The parties married in September 2011 in Hong Kong, shortly before M’s birth and separated approximately six months later on the 1 March 2013. In July 2012 the wife went to Canada with M. The husband understood that this was for a holiday and was on a temporary basis. However the wife has lived there since and the husband has not been able to have reasonable access to M as a result. According to the husband he has not seen M for the last 28 months. This rather unfortunate state of affairs seems to have coloured the present application.

4. The divorce petition was issued on the 23 September 2013 on the basis of mild unreasonable behaviour particulars and has since been amended to one year separation with consent. The wife filed her application for interim maintenance on the 25 July 2014. The original basis of that application seems to be that HK$25,000 per month was a reasonable sum given that the husband had previously paid the wife maintenance of up to HK$35,000 per month during the course of the marriage and that he could afford to pay. The breakdown of figures referred to in the hearing was initially contained in a letter dated the 18 July 2014 and exhibited to the wife’s affidavit as follows:

9.  We are instructed that the monthly expenses of E [i.e. M] are roughly estimated at HK$25,200.  The breakdown of this figure is as follows:

1.	Dwelling	HK$13,000
2.	Utilities	1,500
3.	Food	4,500
4.	Clothing / Shoes	1,500
5.	Entertainment	400
6.	Holidays	1,000
7.	Household	800
8.	Medical / Dental	1,200
9.	School fees (nursery) – will be commencing in Sept 2014	1,000
10.	School miscellaneous – will be commenced in Sept 2014	300
		___________
		HK$25,200
		==========

The law

Interim maintenance

5. The law is well known and not in dispute. Section 3 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. Applications for interim maintenance for a child under section 5 of the same ordinance are approached in exactly the same way as a maintenance pending suit application under section 3. It is interim maintenance that we are concerned with here.

What are the reasonable needs of M?

Dwelling

6. The husband takes issue with the wife’s figures. In particular he takes issue with the wife’s claim for HK$13,000 per month for dwelling or accommodation costs, given that she has chosen to live with her parents and other family members. It is of note that although the wife says that she is living with her parents because of financial difficulties, she has not provided any evidence to support her claim that she is currently paying HK$13,000 per month towards the actual accommodation costs or alternatively that she needs that sum in order to move out of her parents home. Mr Short for the husband says that this amounts to little more than a bare assertion. I accept that to be the case.

Utilities

7. Likewise I accept the husband’s criticisms with respect to the estimate for utilities. On the basis of the bills provided I accept that M’s share cannot possibly be HK$1,500 per month. Given that there are three households living under one roof, I would however accept that it is appropriate to divide the cost between the three households. On the basis of the bills provided it seems that the utility bills amount to something in the region of HK$2,125 per month or HK$708 per household. Even if M’s share was 50% of that it would still only amount to HK$355 odd.

Food

8. The mother estimatesHK$4,500 per month for food for M – which the husband disputes. I also accept that it is hard to decipher what would be a reasonable amount from the receipts provided. The husband offers HK$1,750 per month – which conversely seems to be very much on the low side. On a broad brush basis I will allow HK$3,500 per month.

Clothing and shoes, Entertainment, Holidays, Household, Medical and Dental, School fees (Nursery) and Miscellaneous expenses    

9. The remainder of the expenses seem quite reasonable as they stand and will be allowed on an interim basis. The husband does not object to the majority of them in any event.

10. Thus I will allow the following amounts:

1.	Dwelling	NIL
2.	Utilities	355
3.	Food	3,500
4.	Clothing / Shoes	1,500
5.	Entertainment	400
6.	Holidays	1,000
7.	Household	800
8.	Medical / Dental	1,200
9.	School fees (nursery) – will be commencing in Sept 2014	1,000
10.	School miscellaneous – will be commenced in Sept 2014	300
		___________
		HK$10,055
		==========

This shall be rounded down to HK$10,000 per month – which was the amount that the husband had been paying post separation until the end of 2013.

Can the husband afford to pay this amount?

11. Although the husband pleads poverty I have no doubt that he can afford to pay this sum. From the schedule of payments produced by the wife it is clear that the husband paid maintenance in amounts varying from HK$10,000 to HK$35,000 per month, whilst the parties were married and immediately following the parties’ separation. He stopped paying any form of maintenance in January 2014 and only recommenced payment when ordered to do so on an interim basis with effect from the 1 August 2014. It must however have been clear to him at that stage that he had both a moral and legal obligation to financially support his son, notwithstanding the arguments about M’s removal from Hong Kong. I note that the husband voluntarily began paying an increased amount in September.

12. According to the husband’s Form E he currently has an income of over HK$160,000 per month. Although the husband says that his outgoings outstrip his income I have no doubt that with a little economizing he should be able to pay the interim maintenance. In particular as pointed out by counsel for the wife, it is notable that the husband says he is paying a total of HK$20,000 per month on food alone (HK$15,000 for food in the home and another HK$5,000 for meals out of the home) – i.e. double what I have allowed for all of M’s expenses. The level of household expenses at HK$7,000 per month also seems very much on the high side. I also have concerns about the loans entered into by the husband – especially those raised post separation. This is something that will no doubt be looked at in more detail later. I have also noted that the husband says that he is spending HK$28,000 per month on his daughter by his first marriage – although this includes a historical sum for a summer camp that she enjoyed over the summer.

Should the payments be backdated? 

13. In the circumstances I will order that the payments be backdated to the 1 January 2014, credit to be given for all payments made to date. 

Order

14. Consequently I shall make an order as follows:

1) The Petitioner shall pay interim maintenance to the Respondent for the child of the family M in the sum of HK$10,000 per month, such payment to be backdated to the 1 January 2014, credit to be given for all payments made to date.  Thereafter the Petitioner shall pay interim maintenance of HK$10,000 per month on the 1^st day of each succeeding month until further order.

2) Costs shall be reserved.