CLCJ v. JIF

FCMP 186/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 186 OF 2015

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R U L I N G
(Interim maintenance)

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Introduction

1.  This is an application by an applicant wife under Section 29AD of the Matrimonial Proceedings and Property Ordinance for interim maintenance for both herself and the child of the family, J, a daughter, who I believe turns 20 years old today. The wife has since confirmed that she is only seeking maintenance for J and she asks that the respondent husband pay for half of her tuition costs, approximately €5,175 per annum, and half of her living expenses in the sum of HK$7,000 a month. The wife is not pursuing any maintenance claims for herself.

2.  The wife makes her application under the new Section 2A provisions, which allows an application for ancillary relief where proceedings for divorce have been concluded elsewhere.  In this instance, the parties separated in 2001/2002, but only formally divorced in the UK on the 14 May 2015 (see the decree absolute of the same date). The wife is originally from Hong Kong and she still has family in the territory.  The husband is British but has resided in Hong Kong for a long period of time. I gave leave for the wife to make this application on 5 October 2015.

3.  It is the wife’s case that the husband has taken a “catch me if you can” attitude, in that he has largely refused to participate in either the proceedings in the United Kingdom or in Hong Kong. On 24 July 2014, the wife’s application for financial remedy in the United Kingdom was adjourned generally with liberty to restore.  In other words, in our legal parlance, her application was adjourned sine die with liberty to restore.  It seems that this was because the husband had not turned up to the Financial Dispute Resolution hearing.

4.  The husband has, however, been given every opportunity to participate in these proceedings and he did attend court on 9 December 2015, after being personally served with the papers.  He has not attended since.  He has not filed an affidavit in support of his position as ordered.  It is, however, clear that he is aware of these proceedings and the hearing on 18 March, because he e-mailed the court a long letter on the day before (ie on 17 March).  It goes without saying that this cannot be given the same weight as an affidavit.

5.  It is not disputed that the wife received most of the assets from the marriage (ie the former matrimonial home in the UK and other items).  This property has since been sold and it is the wife’s case that she and J have been living off the net proceeds of sale. The wife is now living in Hong Kong with her sister and it is her intention to go back to work as quickly as possible and to maintain her own living.  The issue is that she is unable to support J without some sort of contribution from the husband.

J

6.  It seems that J and her father are estranged.  She has, until recently, been studying in Spain at the X Design Academy.  She has done well there and has successfully completed the foundation course and the first year of a three years’ Bachelor of Arts programme in Graphic Design.  She has suspended her studies because the applicant could not afford the second year’s fees.  She has two more years to go and hopes to return to the academy in September 2016.  She will need to confirm her intention to return and presumably her ability to pay the fees before 10 June of this year.  In the alternative, she has also applied for similar courses in the United Kingdom and has received offers from a number of universities and colleges. J is a UK national and in the event that she returns to the UK to study, she would be eligible for a number of loans. However, this would also be an expensive option, as she would need to effectively start her undergraduate course again.  It would also be difficult, as the mother has now relocated to Hong Kong and J would not have a home based in the UK. J is not eligible for any loans in Spain, but the cost of living is cheaper and the overall costs would be less than the UK option.

The Law

7.  Insofar as the law is concerned, I would just like to refer to Section 29AD of the MPPO on interim orders for maintenance.  This states as follows:

If leave is granted under Section 29AC for the making for an application for an order for financial relief and it appears to the court that the applicant or any child of the family is in immediate need of financial assistance, the court may make an order requiring the other party to the marriage to make to the applicant or to the child any periodical payments the court thinks reasonable.  The periodical payments may be for a term that the court thinks reasonable, but the term must not begin earlier than the date of the grant of” the “leave and must end on the date of the determination of the application for an order for financial relief”.

Discussion

8.  I will make the order that the wife seeks. It seems to me that it is encumbent upon both parties, both parents, to contribute towards their child’s education and I accept that the husband was aware of the fact that J had applied to do the course in Spain and that he has said that he would contribute towards the expenses, although, to be fair, this did also seem to be premised on her contacting him direct.

9.  The husband describes his present financial circumstances in graphic detail in his letter dated 17 March 2016. I accept, however, that little weight can be attached to this letter, given that it is not in affidavit form and that there is no documentary evidence to support what the husband says in this respect. For example, I do not know for a fact that his businesses are failing and that he has no ability to support J.  These are bare allegations on his part.  He also says he is now based in the UK and he infers that his relationship with his cohabitant and the mother of his younger daughter has broken down.  I do not know whether that is true or not.  He also complains of ill health. On another occasion, he says that he is now based in China.

10.  The wife, for her part, has referred to a Form E filed by the husband in the UK proceedings in 2014, where the husband says, on his own evidence, that he is earning £35,000 per annum, and that his youngest daughter is attending a school which costs £15,000 per annum.  The wife says that she attends the very prestigious Y school.  The husband also sent the wife a tax demand note issued on 12 March 2014, where the Inland Revenue in Hong Kong asked that the husband pay tax of HK$93,450.  This presupposes that one of his companies, C International Limited, was making money historically.  The wife asks that I draw an adverse inference that the husband has funds to assist J going forward. In the circumstances, I am willing to make that adverse inference.

Order

11.  I will therefore make an order that the husband do pay interim maintenance for J in the sum of HK$7,000 per month with effect from 1 April 2016 until such time as she completes her full-time education. In addition, he shall pay the sum of €5,175 on 1 May 2016 and 1 May 2017 respectively.  These sums shall be paid to the wife and she will then be responsible for making all necessary payments to the X School of Design direct. An undertaking to this effect shall be included in the court order.

12.  Costs, including all costs reserved, shall be to the wife. I asked for a summary assessment of costs to be prepared. An extremely conservative document was submitted to the court for my consideration.  The wife seeks HK$16,625 for her costs, which includes counsel’s fees of HK$12,000. As I have said, I consider this to be very reasonable and I will allow that sum in full.