LKY v. OCF

FCMC 7215/2021

[2022] HKFC 206

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 7215 OF 2021

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JUDGMENT

(Maintenance pending suit & Interim maintenance)

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Introduction

1.  This is an application taken out by the petitioner (“the wife”) by way of a summons filed on 5 November 2021 for maintenance pending suit (“MPS”) and interim maintenance of two children of the family pursuant to section 3 and section 5 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“the MPPO”).

2.  Then respondent (“the husband”) opposed and is seeking an order to dismiss the wife’s application.

Background

3.  In short, the wife and husband were married in 2014 and are now in their 30s with two daughters aged 7 and 5 respectively. The family had been living in their matrimonial home owned by the husband and his mother. On 24 June 2021, the wife left the matrimonial home with two daughters, they had temporarily stayed in her brother’s home. Owing to limited space, her brother’s home could barely accommodate herself and two daughters, she then moved out with both daughters to a rented premise with monthly rent of HK$10,600.

4.  On 21 July 2021, shortly after the wife had left the matrimonial home, she filed her petition on ground of unreasonable behavior; subsequently by consent, on 8 July 2022, she filed a fresh petition on ground of one-year consent (FCMC 5887 of 2022). As at the date of this judgment, no decree nisi has been granted.

5.  The wife worked as an event planner/organizer with a monthly remuneration of HK$24,000, she left employment to be a full time housewife after the birth of younger daughter in 2017. The husband has been working as a sales representative for his father’s food manufacturing business with a monthly salary of HK$20,000. He is also a shareholder and director of the same company.

6.  In this application, the wife is seeking a total sum of HK$72,908.36, the breakdown being (i) interim maintenance for both daughters at HK$49,500; (ii) MPS for herself at HK$12,808.36; and (iii) rent at HK$10,600. As the case progressed, the husband’s father agreed to pay HK$4,000 for the daughters’ insurance premia, coupled with minor upward adjustment of HK$15 on daughters’ expenses on extra-curricular activities, to give an idea of how much the wife is aiming at now, she is seeking a sum at HK$72,908.36 + HK$15 - HK$4,000 = HK$68,923.36.

7.  Prior to this application, on 4 October 2021, by way of an undertaking, the husband has been paying the wife HK$22,500 per month in which he will pay school fees HK$10,500 to respective schools directly and remaining HK$12,000 to the wife.

8.  To shed some light on the reason why the wife is asking the husband to pay a sum which is alarmingly higher than his salary, the wife says the lifestyle prior to separation shall be maintained. Not to mention the family had lived in a family owned property around 500 square feet, they have enjoyed a comfortable life with use of an Audi A3 Sportback private car, a domestic helper, luxurious meals, branded purchases and overseas vacations. Thus the wife believed what she has asked for are reasonable needs and they should be well paid by the husband on an interim basis.

9.  The husband vigorously denied the wife’s case by saying he has HK$20,000 modest salary only with limited means. He on his part complained out the wife refused to continue with a gainful employment since the birth of the younger daughter, he had to shoulder family expenses with the assistance of his father by paying him HK$25,000 per month. It was because the wife took both daughters away from the matrimonial home in June 2021 unnoticed, the husband’s father ceased to pay the husband HK$25,000. He was left with some HK$77,427.12 in his bank account, the most he could have afforded was HK$22,500 per month.

10.  As the application progressed, the husband’s father is willing to pay for the daughters’ insurance premia at HK$4,000 per month.

11.  The only issue to be determined, at this stage, is whether HK$22,500 + HK$4,000 insurance premia (total HK$26,500) an appropriate sum of the wife’s MPS and children maintenance.

The law

12.  The relevant legislation of maintenance pending suit is stated in section 3 of the MPPO,

".... the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of presentation of the petition or making of the application and ending on the date of the determination of the suit, as the court thinks reasonable."

13.  The principle for interim maintenance for children is best illustrated in BC v. MSH (also known as H, MSO) (FCMC 13741/2019, [2021] HKFC 74), HHJ Melloy summarized in paragraph 9:

“9. The law is well known and not in dispute. Section 5 of the Matrimonial Proceedings and Property Ordinance, Cap 192 states that maintenance for children can be ordered either before or after the granting of the decree for divorce. In the event that an application is made for interim maintenance, the court shall adopt the same approach as when considering an application for maintenance pending suit under section 3 of the same ordinance. Thus 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. This is because there has been no opportunity to hear the parties in the witness box or to make findings of fact with respect to the issues in dispute. The court needs to look to the needs of the children and the ability of the parents to pay for them from a general perspective only. As far as possible the court should try to look at the reality of the situation, as opposed to the bare assertions made by one or other of the parties. A detailed examination of the parties’ means and their ability to pay maintenance for their children will only be examined in full at a later date at an ancillary relief trial, if there is no agreement in the meantime. If there is found to be any over or indeed any under payment, that can normally be rectified at a later stage.”

14.  The above principles shall be considered with reference to HJFG v KCY [2012] 1 HKLRD 95, where Hartmann JA held at paragraphs 37 and 38:

“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:

a. The sole criterion to be applied in determining the application is 'reasonableness', which is synonymous with 'fairness'.

b. 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.

c. In every maintenance pending suit application there should be a specific maintenance 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.

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 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. ”

My view

Generally

15.  With a broad brush approach, the court’s duty is to take into account the parties’ standard of living, to determine a reasonable and fair level of the expenses of both the wife and the children in the circumstance. The amount is to be cross checked with the husband’s ability to pay. In doing so, I shall refrain from a detailed investigation on the parties’ financial means. It is appropriate to err in favour of the wife when overpayments can be adjusted at time of the ancillary relief hearing.

Is HK$26,500 an appropriate sum for both MPS for the wife and interim maintenance for both daughters?

Lifestyle

16.  Both parties spent substantial effort to demonstrate the standard of living prior to separation, the wife portrayed a comfortable life whereas the husband downplayed their standard with purchases from Taobao and meals at fast-food shops.

17.  There have been may allegations and counter allegations made by the parties on their lifestyle which I do not intend to go into here in detail but at least, I tend to accept the lifestyle of the family prior to separation was comfortable because a large portion of expenses was provided for by the husband’s father. The paternal family who has been carrying on business food manufacturing in Hong Kong is clearly resourceful. It is in both parties’ evidence which I have no doubt to conclude the husband’s father has provided them with accommodation; funded them to travel; children activities and other daily needs.

The reasonable needs of the wife & children

General needs of both wife and children -

18.  Taking into account the family had enjoyed a comfortable lifestyle, the next question is to determine the quantum of reasonable needs of the wife and both daughters.

19.  In support of this application, the wife stated the following as the general needs of herself and both daughters in her Form E[1].

General

Item	Amount
Rent	---
Utilities	Telephone bill $457
Food	$10,000
Household expenses	$3,000
Total:	$13,457

20.  The wife updated the general needs in her supplemental affirmation filed on 31 May 2022:

General

Item	Amount
Rent	$10,600
Utilities	$800
Food	$3,000
Household expenses	$1,500
Total:	$15,900

21.  With a modest rental payment of HK$10,600, I accept the updated expenses of HK$15,900 is a reasonable sum for all three of them in a separate household. In other words, the general expenses of each shall be HK$15,900 / 3 = $5,300.

The wife’s expenses -

22.  The wife’s personal expenses as those in her Form E follows:

Item	Amount
Meals out of home	$4,000
Transport	$1,000
Clothing/shoes	$2,000
Personal grooming	$1,000
Entertainment / presents	$500
Holiday	$1,000
Medical / dental	$500
Insurance premia	$2,817.26
Contribution to parents	$5,000
Total:	$17,817.26

23.  Subsequently, the wife updated in her supplemental affirmation (same as above) that her current needs as follows:

Item	Amount
Meals out of home	$2,000
Transport	$1,500
Clothing/shoes	$200
Personal grooming	$200
Entertainment / presents	---
Holiday	$200
Medical / dental	$600
Insurance premia	$2,808.36
Total:	$7,508.36

24.  I also accept her personal expenses is within a reasonable range as I see she has revised it downwards from what she has stated in her Form E.

The daughters’ expenses -

25.  In respect of the daughters’ expenses stated in the wife’s Form E, she stated the following:

Item	Amount for elder daughter	Amount for younger daughter
School fees	$7,000	$3,500
Extra tuition fees	$12,000	$7,000
Books and stationery	$500	$500
Transport to school	$1,500	$2,370
Medical / dental	$500	$500
Extra-curricular activities	$6,000	$2,100
Entertainment / present	$2,500	$2,500
Holidays	$3,000	$3,000
Clothing / shoes	$3,000	$3,000
Insurance premia	$2,000	$2,000
Lunches / pocket money	$2,000	$2,000
Other transport	$500	$500
School uniform	$200	$200
Child care	$2,000 for both
Total:		$71,870

26.  The wife likewise revised the daughters’ expenses for the purpose of this application as follows:

Item	Amount for elder daughter	Amount for younger daughter
School fees	$7,000	$3,500
Extra tuition fees	$9,400	$4,160
Books and stationery	$500	$500
Transport to school	$1,000	$2,370
Medical / dental	$500	$500
Extra-curricular activities	$5,985	$5,360
Entertainment / present	$1,500	$1,500
Holidays	$1,500	$1,500
Clothing / shoes	$2,120	$2,120
Insurance premia	$2,000	$2,000
Lunches / pocket money	$2,000	$2,000
Other transport	$300	$300
School uniform	$200	$200
	$34,005	$26,010
Total:		$60,015

27.  The wife has cut costs where she can, on the other hand, I agree with the wife that the children’s needs should be taken care of, both of them are enrolled in two prestigious primary school and kindergarten, they have actively participated in extracurricular activities (“ECAs”) including fencing, swimming, chess, music instrument training. Not surprisingly, the daughters needed intensive tuition to upkeep their academic standards. Under this head, the wife submitted the husband has spent as much as HK$31,350 per month for both tuition and ECAs in May 2021 (one month prior to separation) and she has now only asking for HK$24,905[2]. I believe the wife has sensibly withheld some of the activities or tuition but they she may need to cut down further in the short term. Though it is difficult to do so, I leave it to the wife to decide what is best for the daughters. The wife might have to juggle with other expenses. For easy calculation, I will allow HK$4,000 per month for each of the daughter’s tuition fees and HK$4,000 per month for ECA fees during this interim stage.

28.  In addition, the expenses on entertainment, holidays, clothing and shoes shall further be reduced. The reasonable expenses of both daughters are as follows (for easy reading, the amount revised are shown in italic):

Item	Amount for elder daughter	Amount for younger daughter
School fees	$7,000	$3,500
Extra tuition fees	$4,000	$4,000
Books and stationery	$500	$500
Transport to school	$1,000	$2,370
Medical / dental	$500	$500
Extra-curricular activities	$4,000	$4,000
Entertainment / present	$1,000	$1,000
Holidays	$1,000	$1,500
Clothing / shoes	$1,000	$1,000
Insurance premia	$2,000	$2,000
Lunches / pocket money	$1,500	$1,500
Other transport	$300	$300
School uniform	$200	$200
	$24,000	$22,370
Total:		$46,370

29.  To summarize, the aggregate expenses of all three of them shall be:

(i) the wife:   (HK$5,300 + HK$7,508.36)	HK$12,808.36
(ii) two daughters:   ($5,300 + $5,300 + HK$46,370)	HK$56,970.00
	HK$69,778.36 ==========

30.  It is of note that the wife has no income since the birth of the younger child, it does not appear to be seriously disputed that the wife has limited working capacity now when she has to take care of both daughters on her own. On a regular school day, the wife has given herself a hectic schedule to bring and pick up both daughters to and from schools. I accept she literally has no room to achieve steady earning of any kind. In other words, she has no choice but to seek financial support from the husband.

Husband’s ability to pay

31.  The husband provided salary proof of HK$20,000 per month working in the family business, to meet the expenses, his father would usually subsidizing him HK$25,000 per month to pay for his family needs but such financial support has ceased after separation. The husband said he has had with him cash in bank of some HK$77,000, he is unable to pay the sum that the wife has requested for. The husband is able to maintain HK$22,500 to the wife at this interim stage.

32.  The wife argued the husband has not disclosed his true financial status. The wife spent some effort to substantiate the husband’s financial status by saying: (i) he is both a director and shareholder of the family business company; (ii) he is a joint registered owner of the former matrimonial home; (iii) he is a sole registered owner of an industrial unit in Hong Kong; (iv) he is the registered owner of two private vehicles, namely, one Audi and one Mercedes Benz. Premised on the above ownerships, HK$20,000 monthly salary is nowhere a realistic income of the husband.

33.  The husband replied by saying (i) he derives no income other than HK$20,000 from the family business; (ii) he has no beneficial ownership on the landed properties and the two private vehicles of which he had held in trust for his father.

34.  I refer to the husband’s Form E file on 25 November 2021, he confirmed the value of the assets he claimed he has held on trust for his father as follows:

(i)  50% share of former matrimonial home valued at HK$8.1 million free from mortgage (the husband’s share valued at HK$4.05 million);

(ii)  100% ownership of the industrial unit valued at $6.5 million (subject to HK$1.32 million mortgage);

(iii)  One Audi A3 Sportback 2015 valued at HK$80,000; and

(iv)  One Mercedes Benz V260 AMG Exclusive Long Facelift valued at HK$650,000.

35.  Broadly, the aggregate of the above (HK$4.05 million + HK$5.18 million[3] + HK$80,000 + HK$650,000) has reached HK$9,960,000. By an order dated 30 June 2022, the husband’s father has been joined as an intervener for the beneficial ownership of both landed properties and the Mercedes Benz. It is still premature to say all the above are held on trust for and on behalf of the husband’s father.

36.  Whether it is true he has held on trust of his parents the landed properties and private vehicles shall be determined at a later stage. The court shall avoid detailed investigation as to the finances of a party, but at least I agree with the wife that the husband is more affluent than her and the husband has financial ability to provide her maintenance at this interim stage.

37.  My finding is reinforced by the husband’s spending pattern, it serves as a good indicator of the level of resources that he has now. In the Form H signed by both the husband and this legal representative submitted to court on 5 July 2022, there stated the husband has deployed HK$470,000 on legal costs[4] as at 30 June 2022, a sum which precariously high and disproportionate to his current income. I do not think this sum could be met by a person solely earning HK$20,000 per month. It is a pity that the husband has chosen to incur legal fees to this level rather than paying the daughters’ expenses.

38.  Secondly, I reject the husband’s saying that he has only HK$25,000 financial support from his father in support of the family expenses. The reason being an aggregate sum of $45,000 (HK$20,000 + HK$25,000) could not cover the daughters’ expenses on school fees, tuition fees and ECAs expenses prior to separation. There must be some sources of income that the husband has had in support of the standard of living of the family prior to separation. As the husband has indicated his father had ceased to provide him with HK$25,000 I tend to believe the other expenses was well covered by the husband’s family prior to separation and of which HK$25,000 is not a realistic figure.

39.  I pay special attention to the overwhelming disparity of financial position of the wife and the husband, at this interim stage, I find the husband has under play his ability to make a proper financial contribution for the wife and the daughters. His position to preserve HK$22,500 to the wife and daughters, during the interim stage, is blatantly unreasonable and unfair.

40.  KEWS v NCHC (2013) 16 HKCFAR 1 is an authority on point on issue of financial assistance was provided a third party. The fact of this case is not identical to the present one but the parents of KEWS (the husband petitioner) was found to provide continuous financial support to KEWS. Ma CJ stated in the judgment at paragraph 37 that it is a fact finding exercise in which “the court must look at the reality of the situation and have regard to matters of substance and not just form. In looking at reality, the court can take into account not only what a party actually has, also what might reasonably be made available to him or her if a request for assistance where to be made”.

41.  The same principle is applicable here. I find the likelihood of such financial assistance by the husband’s father in the foreseeable future. In the evidence, the husband explained his father was unsettled with the wife taking both daughters away from the former matrimonial home, he was further outraged when access of both daughters was not smooth. Because of this, the husband’s father then ceased to give financial support to the husband (and the wife). In this regard, I find the husband actually has means or resources from his father to satisfy payments to the wife during the interim stage where such financial support can be maintained and can be continued at least up to the ancillary relief trial. In conclusion, I shall order the husband to pay what I have found to be reasonable for the wife and daughters in the abovementioned paragraphs.

Backdating

42.  The wife seeks an order to backdate the commencement of her MPS and interim maintenance for the daughters from June 2021, at a time she has left the matrimonial home. I accept there may be a case of backdating but I do not intend to make such order. I understand the wife’s means are tight but she could survive with borrowings. It is appropriate to canvass the issue on backdating at the ancillary relief trial in due course.

The outcome

43.  I shall not disturb the husband’s undertaking to pay the school fees of both daughters (being HK10,500) to both schools directly. Upon further undertaking by the husband to pay the daughters’ insurance premia (being HK$4,000) to the insurance company directly as well.

44.  For the wife’s MPS and interim maintenance of both daughters, less school fees and insurance premia, shall be:

(i)  HK$12,808.36 per month as the wife’s MPS; and

(ii)  HK$46,370 – HK$10,500 school fees – HK$4,000 insurance premia for both daughters = HK$31,780 interim maintenance for both daughters.

Costs

45.  The husband’s stance is seeking an order to dismiss the wife’s summons and to maintain an undertaking to pay HK$22,500. The husband did not succeed in opposing the summons. I see no reason costs should not follow the event. I shall exercise my discretion to make an order nisi on costs, to be made absolute in 28 days’ time, that the husband do pay the wife’s costs of her summons dated 5 November 2021 on a party and party basis, with certificate for counsel, to be taxed if not agreed. The wife’s own costs be taxed in accordance with the Legal Aid Regulations.

Orders

46.  With reasons of the foregoing, I make the following orders:

(i)  The undertaking dated 4 October 2021 be varied as follows:

“(1) There be an undertaking by the respondent (the husband) to the Court and the petitioner (the wife) that he shall pay the school fees of both children of the family in sum of HK$10,500 to respective schools directly until further order.

(2) There be an undertaking by the respondent (the husband) to the Court and to the petitioner (the wife) that he shall pay the insurance premia of both children of the family in sum of HK$4,000 per month to relevant insurance company directly until further order.”

(ii)  The respondent (the husband) do pay the petitioner (the wife) maintenance pending suit in sum of HK$12,808.36 from the 1^st day of October 2022 and subsequent payment on 1^st day of each succeeding month until further order of the court.

(iii)  The respondent (the husband) do pay the petitioner (the wife) interim maintenance of two children of family in sum of HK$31,780 from the 1^st day of each calendar month commencing from 1 October 2022 and subsequent payments on 1^st day of each succeeding month, until further order of the court.

(iv)  Both the sum of maintenance pending suit and interim maintenance be credited directly into the petitioner’s (the wife’s) designated bank account.

(v)  There be a costs order nisi that the respondent (the husband) do pay the costs of the petitioner (the wife) of the summons filed on 5 November 2021 on a party to party basis, with certificate for counsel, to be taxed if not agreed.

(vi)  The costs order nisi shall be made absolute in absence of application to vary by way of inter parte summons within 28 days from the date of this judgment.

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