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FCMC 7099 /2017
[2018] HKFC 209
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES NO 7099 OF 2017
________________________
| BETWEEN |
|
|
| |
NKT |
Petitioner |
and |
| |
CYMC |
Respondent |
________________________
| Before: |
Deputy District Judge R So in Chambers (Not open to public) |
| Date of Hearing: |
19 July 2018 |
| Date of Judgment: |
27 November 2018 |
________________________
J U D G M E N T
(Maintenance pending suit)
________________________
Preliminaries
1. By the summons dated 30th August 2017 and filed on 1st September 2017, the respondent wife (“the Wife”) applied for herself and for the child of the family who is now 3 years old (“the Son”), against the respondent husband (“the Husband”):-
(a) for interim maintenance in the monthly sum of HK$35,000 for the Son;
(b) for interim maintenance in the monthly sum of HK$13,000 for the Wife; and
(c) costs.
2. The Husband opposed to her application.
3. The Husband and the Wife had filed their Form E on 30th August 2017 and 13th September 2017 respectively. The following affirmations had been filed for the present hearing :-
(a) the Wife’s 4th Affirmation dated 30th August 2017
(b)the Husband’s 3rd Affirmation dated 17th October 2017
(c) the Wife’s 6th Affirmation dated 31st January 2018
(d)the Husband’s 4th Affirmation dated 6th April 2018
(e) the Wife’s 7th Affirmation dated 25th June 2018
4. On 19th September 2017, when both parties were legally represented, it was ordered by consent that the Husband do pay interim maintenance pending suit in the monthly sum of HK$18,000.
5. At the beginning of the argument hearing, as an open offer, the Wife proposed that the Husband do pay a monthly sum of HK$30,000 for the Son, and a monthly sum of HK$10,000 for her. The Husband insisted that he could only continue to pay HK$18,000 per month for the Son. He did not agree to pay any maintenance pending suit to the Wife.
6. Towards the end of the argument hearing, the Wife clarified that she did not ask for any maintenance pending suit for herself. Instead, she asked for a monthly sum of HK$40,000 for the Son (with HK$30,000 being expenses directly for the Son and HK$10,000 for the Son’s share of general expenses).
Background of the case
7. The Husband is now 41 years old. He works as an Information Engineer and now earns a basic monthly salary of HK$72,000. In addition, he receives bonus of about HK$7,750 per month in average, making a total monthly income of HK$79,750.
8. The Wife is now 39 years old. She works as a Risk Manager and according to her Form E, she earns HK$44,000 as basic salary, together with bonus in the sum of HK$13,333 and housing allowance of HK$16,000, making a total monthly income of HK$73,333.
9. The parties were married in July 2012. The Son, now 3 years old, was born in March 2015.
10. Before the parties were met, in about 2004, the Husband bought a property in Tuen Mun (“Tuen Mun Property”) in his sole name. In about 2011, the Husband transferred 50% interest of the Tuen Mun Property to the Wife. There are different versions between the parties as to the reason of why there was a transfer of 50% interest of the Tuen Mun Property to the Wife, which are irrelevant for my consideration for this application.
11. In about December 2010, before the parties were married, the former matrimonial home (“Former Matrimonial Home”) was bought in the joint names of the parties. There are different versions between the parties as to the beneficial ownership of the Former Matrimonial Home, which are also irrelevant for my consideration for this application.
12. In about February 2014, the Tuen Mun Property was sold and the sales proceeds had been kept in a Bank of China account of the joint names of the parties (“Joint Account”).
13. In about September 2014, the Wife withdrew HK$2.3 million from the Joint Account. It is the Husband’s case that the Wife’s withdrawal was without any notification and/or permission from him.
14. In February 2015, the Husband withdrew a sum of HK$60,925.46 from the Joint Account. It is the Wife’s case that the Husband’s withdrawal was without any notification and/or permission from her.
15. In about March 2015, shortly before the Son was born, the Wife left the Former Matrimonial Home.
16. The Husband initiated divorce proceedings on 6th June 2017 on grounds of unreasonable behaviour. The Wife filed Defence and Cross Petition on 18th August 2017, relying on the grounds of 2-year separation. Parties had subsequently agreed that the Husband’s petition be withdrawn and parties to proceed to applying for decree nisi based on the 2-year separation as stated in the Wife’s Cross Petition.
17. At the 1st appointment hearing on 19th September 2017, it was ordered by consent that :-
(a) the custody, care and control of the Son be granted to the Wife (access issue was adjourned and subsequently on 25th January 2018, defined access was ordered by consent during the Children’s Dispute Resolution hearing).
(b)the Husband do pay interim maintenance pending suit in the monthly sum of HK$18,000.
The legal principles
18. Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“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 the making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.
19. The legal principles governing any maintenance pending suit application require the court to balance the reasonable needs of the applicant spouse (and the concerning children where applicable) against the paying spouse’s ability to pay by using a broad brush approach. In HJFG v KCY [2012] 1 HKLRD 95, the Court of Appeal has summarised the established principles as follows:-
“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.
34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital rebalancing. In the present case, the Judge recognised the long-established approach of looking to the ‘immediate and reasonable needs’ of the wife and son.
35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.
36. An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.
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 Judge, in TL v ML [2006] 1 FLR 1263, 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 pending suit 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.”
Issues of the case
20. For the present application, the following are the issues for the court’s determination :-
(a) What are the reasonable needs of the Wife and the Son? (Issue 1)
(b)What is the income of the Husband and what is his ability to pay? (Issue 2)
(c) What is the reasonable sum of maintenance pending suit to be paid to the Son? (Issue 3)
The wife’s case
21. The Wife now earns a monthly salary of HK$73,333, inclusive of bonus and housing allowance.
22. It is the Wife’s case that the Husband is earning much more than he had stated in his Form E. According to the Wife’s understanding, she believed that the Husband’s bonus is quite handsome and she estimated that it is in the region of about HK$100,000 per year.
23. According to paragraph 8 of the Wife’s 6th Affirmation, she believed that the Husband’s monthly salary is above HK$80,000. It is the Wife’s stance that the amount that she claimed against the Husband in the total sum of HK$48,000 “is only 60%” of the Husband’s monthly salary, “which is entirely reasonable”. Not to mention the investment profit from the Husband’s securities account, which according to the Wife, if included, will further make the amount the Wife claims to “even 50% or less” out of the Husband’s monthly salary.
24. It is the Wife’s stance that she has financial difficulties and health concern, and as a result, she had taken out a loan of HK$800,000 on 16th May 2018 (“Loan”). The financial difficulties the Wife now face and how the HK$800,000 had been used and would be used are explained in paragraphs 54 to 64 of her 7th Affirmation. As stated in paragraph 60 therein, “there is around HK$400,000 remaining from the Loan”, which the Wife needs “to set it aside to settle future medical bills”.
25. The Wife further explained in paragraph 61 therein that from her recent body check, “the lab results show that my cancerous cell index has been increasing, and I have undergone more lab tests to confirm whether or not I have cancer. I am worried that I will need to spend much more in the future on medical treatment if it is confirmed that I am suffering from cancer.”.
26. About the HK$2.3 million that the Wife had withdrawn from the Joint Account in about September 2015, as stated in her 6th Affirmation, she “withdrew the same to pay for expenses for [the Son]”. Since about early 2015, the Wife had “started to rely on the said fund to pay for [the Son’s] birth and to put a roof over [the Son] and myself and pay for other expenses that might come along”. In the Wife’s 6th Affirmation filed on 31st January 2018, paragraph 29, the Wife further explained that “due to unforeseeable expenses, the fact that I had to move houses several times ……, re-hire new domestic helpers, and the health needs of [the Son] and myself and other unforeseeable expenses, the sum of HK$2.3 million has been all depleted by now”, and there was a real need for maintenance from the Husband.
27. The expenses the Wife stated in her From E had been updated in and supplemented by her 6th Affirmation and 7th Affirmation, which are summarised as follows :-
For general expenses:-
| Items |
Amount HK$ |
| Rent |
19,200 |
| Utilities |
2,000 |
| Mortgage instalments |
5,320 |
| Food expenses |
7,000 |
| Household expenses |
1,200 |
| Domestic helper |
5,000 |
|
| Total: |
39,720 |
For personal expenses:-
| Items |
Amount HK$ |
| Meals out of home4,786 |
| Transportation |
1,204 |
| Clothing / Shoes |
1,816 |
| Personal grooming |
2,115 |
| Entertainment/presents |
1,350 |
| Holiday |
2,000 |
| Medical / Dental |
6,158 |
| Tax |
1,740 |
| Contribution to parents |
11,916 |
| Others |
4,845 |
|
| Total: |
37,930 |
For children expenses:-
| Items |
Amount HK$ |
| School fees |
4,938 |
| Transportation |
6,000 |
| Medical |
14,260 |
| Extra curricular activities |
5,550 |
| Entertainment/presents |
4,000 |
| Holiday/parties |
4,300 |
| Clothing |
1,400 |
| Food expenses |
7,760 |
| Other expenses |
2,500 |
|
| Total: |
50,708 |
28. The updated total amount of expenses for the Wife and the Son is HK$128,338 (HK$39,700 + HK$37,930 + HK$50,708).
The husband’s case
29. The Husband’s case is that he is only willing to pay HK$18,000 per month, as that is the sum that he can afford and he is of the view that this is a reasonable and adequate sum to pay.
30. According to the Husband, it is untrue and unreasonable for the Wife to allege that he earns much more than he had stated in his Form E. In his Form E, his basic salary is HK$69,997, with bonus of HK$7,750 in average. At the hearing, the Husband updated the recent salary raise. His updated basic monthly salary is now HK$72,000. Adding the bonus of HK$7,750 in average, which according to the Husband is not guaranteed, the total monthly income of the Husband is HK$79,750.
31. It is also the Husband’s stance that as the Wife had withdrawn the sum of HK$2.3 million in about September 2014, there is simply no basis for her now to claim that she does not have the requisite financial capability to support herself and the Son, and the Husband is of the view that there is no urgency to the present application.
32. The Husband’s expenses, as stated in his Form E and updated during submissions, are summarised as follows :-
For general expenses:-
| Items |
Amount HK$ |
| Mortgage instalments |
10,500 |
| Utilities |
1,970 |
| Management fees |
1,901 |
| Food |
600 |
| Household expenses |
500 |
| Car expenses |
4,100 |
| Domestic helper |
500 |
|
| Total: |
20,071 |
For personal expenses:-
| Items |
Amount HK$ |
| Meals out of home |
8,000 |
| Transportation |
800 |
| Clothing / Shoes |
2,500 |
| Personal grooming |
250 |
| Entertainment/presents |
3,000 |
| Holiday |
3,300 |
| Tax |
9,000 |
| Contributions to parents |
10,000 |
| Others |
4,112 |
|
| Total: |
40,962 |
33. The updated total amount of expenses for the Husband is HK$61,033 (HK$20,071 + HK$40,962).
34. In addition, it is the Husband’s case that his expenses have increased rapidly since September 2017, as he “was diagnosed depression and had to have psychiatric treatments regularly.”, as explained in paragraph 44 of his 4th Affirmation.
35. As stated in the latest affirmation of the Husband, ie. the 4th Affirmation, in paragraph 9 therein, he had taken out a tax loan in the sum of HK$120,000 from Bank of China (Hong Kong) on December 2017 (“Tax Loan”).
What are the reasonable needs of the Wife and the Son? (Issue 1)
36. The Husband does not dispute the Wife’s claim on rent (HK$19,200), utilities (HK$2,000), domestic helper (HK$5,000) and clothing including school uniform (HK$1,400).
37. I will go through the disputed items in turn. I have to make it clear that at this stage, the Court has to balance the reasonable needs of the Wife and the Son, and also the ability of the Husband to pay on an interim basis. I am to emphasise that it is not the case that any amount claimed without receipts or supporting documents cannot be considered. At the same time, any amount claimed with receipts does not automatically mean they are justifiable and reasonable. Some analysis will be conducted by the Court on a broad brush approach.
38. In undertaking this balancing exercise, the Court will adopt a broad brush approach and not a detailed investigation of the financial positions of the parties, and at the same time, bearing in mind the marital standard of living of the parties.
39. Regarding the marital standard of living, I notice that the parties used to live with the standard as middle class in Hong Kong. However, it is noted that the Son was born after the Wife had moved out of the Former Matrimonial Home, and there is hardly any record or reference as to how much had been spent on the Son before the parties separated.
40. For general expenses, the Husband disputed the items of mortgage instalments, household food expenses and household expenses.
41. For mortgage expenses the Husband is of the view that there is no need for the Wife to pay half of the monthly mortgage in the sum of HK$5,300, as he is now paying the monthly sum of HK$10,500. I agree with the view of the Husband. According to the Husband, the Wife has only been paying half of the monthly mortgage since about February 2015. There is simply no need to pay half of the mortgage by the Wife when the Husband is paying HK$10,500 per month all along, especially at this stage when the Wife is in need of money and applying for maintenance pending suit.
42. For household food expenses, the Husband is of the view that the sum of HK$7,000 is too high and he thinks HK$6,000 is a reasonable sum. I notice that the Wife had provided a breakdown of how the amount of HK$7,000 is calculated in her Form E and had made further explanation in her affirmations. I am of the view that buying Chinese soup for 26 days in a month and buying fish for 24 days in a month can be cut down to be reasonable. So are the amounts claimed for buying Chinese soup, fish and ordinary dishes and meals. With a broad brush approach, I agree with the Husband that HK$6,000 (ie. about HK$200 per day) is a reasonable sum for this item.
43. For household expenses, the Wife claims HK$1,200, while the Husband only agrees to HK$800. The Wife has provided breakdown in her Form E, including :-
(a) Cleaning supplies (detergent, laundry powder, Dettol, baby bottles washer, tissue, sponges and tools etc), HK$300
(b)Electrical appliances (video/audio systems, iron, vacuum cleaner, air/water purifiers, dehumidifiers, lamps, blender etc), HK$1,000
(c) Household items (hardware like ladder, hammer, tools, hangers, lightbulbs etc), HK$180
(d)Kitchenware (cooking utensils, knives, chop board etc), HK$200
(e) Online shopping delivery cost, HK$100
44. Without going in details into each of the items and to investigate the exact sum to be spent, the Court is of the view that the amounts should be cut down. For example, for electrical appliances in the sum of HK$1,000 per month is far too much. However, the Court accepts that some amount would be spent on repair or replacement of such electrical appliances or parts of these appliances. On a broad brush approach, I rule that the reasonable household expenses to be HK$1,000.
45. For the personal expenses of the Wife, Husband criticised mainly about :- (a) the meals out of home in the sum of HK$4,786 (which the Husband is of the view that the reasonable sum should be HK$2,500); (b) the medical/dental in the sum of HK$6,158 (which the Husband thinks the reasonable sum should be HK$600 to HK$700, as the Wife has medical insurance cover and he queried why the Wife spent so much on items like pain relief massage etc); (c) contribution to parents in the sum of HK$11,916; and (d) others, including “professional membership (un-reimbursed by employer), continuing education & exam fee, computer/tablet for study, mobile phone and monthly fee and church donation” as explained in the Wife’s Form E in the sum of HK$4,845.
46. On a broad brush approach, without going into detailed examination of each of the items, I am of the view that there should be some adjustments in the items like meals out of home, medical/dental, contribution to parents and others with reference to the standard of living of the parties and with consideration of the background and circumstances of the case. I rule that the reasonable total sum for the personal expenses of the Wife is HK$30,000.
47. For the Son’s expenses, the Wife asked for HK$4,938 for school fees, while the Husband thought that under HK$1,000 is a reasonable sum. The Wife explained in her affirmations and she had produced receipts of school fees, as in Exhibit “CC-15” of her 6th Affirmation, which are in the sums of HK$3,700, HK$970 and HK$2,730. The Husband was of the view that under HK$1,000 is a reasonable sum, and he questioned why the Wife did not apply for government subsidy (學卷).
48. The Wife explained that not all kindergartens could get the government subsidy. For the school that the Son got admitted, no such government subsidy is available. I notice there is dispute of fact as to why there is no government subsidy for the Son, which I could not resolve at this hearing.
49. At this stage, I accept that the Son is now studying at a school, which the Wife did pay for school fees. From the documents available at this stage, I accept that school fees are in the range of about four thousand Hong Kong dollars each month. I also accept that apart from paying the school fees, there are other reasonable fees such as payment for tea or snack for the Son. I therefore rule, on a broad brush approach, that the sum of school fees, which is rounded up to HK$5,000, is a reasonable sum.
50. About transportation for the Son, the Wife asked for HK$6,000 per month. She had provided breakdown and explanation in her affirmations and had produced taxi receipts. The Husband disagreed with the sum the Wife claimed. He is of the view that HK$2,400 is a reasonable sum.
51. I notice that a very large portion of the transportation fees the Wife claimed comprised of taxi fare. I notice the Wife explained that if not taking taxi, the time to and from different centres and school for the Son will become much more.
52. It is understandable that the Wife may hope to provide for the best for her Son to make her Son reasonably comfortable and to shorten the transportation time as much as possible. However, transportation fees in the sum of HK$6,000 is excessive, in view of her income of HK$73,333 per month. A cheaper means of transportation, though more time is required, is expected. With a broad brush approach, I accept that HK$2,400 per month, by taking public transportation, is a reasonable sum.
53. About medical expenses of the Son, the Wife claimed HK$22,000 per month in her 6th Affirmation, which had been reduced to HK$14,260 per month in her 7th Affirmation, which comprises of :-
(a) Occupational and developmental therapy (HK$625 per session, twice a week), HK$5,000
(b)Developmental and emotional stability classes (HK$120 per session, once a week), HK$480
(c) Membership fee to various therapy training centres (HK$900 per year), HK$75
(d)Speech therapy (HK$300 per session, once a week), HK$1,200
(e) Private tutor on speech training (HK$200 per hour, 4 hours a month), HK$800
(f) Phonics (HK$180 per session, once a week), HK$720
(g)Chinese medicine, HK$3,360
(h)Eye drops (HK$3,000 for 3 months), HK$1,000
(i) Body or eye check or examination or dental expenses with insurance shortfall, HK$1,000
(j) Glasses (HK$2,500 per pair, with 3 new pairs per year), HK$625.
54. I have considered the Wife’s concern of the Son’s health. The Wife position is that in view of the Son’s situation, he needs urgent attention about speech assessment, speech therapy, developmental training and eye examination.
55. The Husband disagreed. The Husband was of the view that a reasonable sum should be HK$2,000 to HK$3,000. He was of the view that the Son’s expenses should be covered by either his or the Wife’s medical insurance.
56. At this stage, before detailed examination of whether or which part of the Son’s medical expenses could be covered by the Wife’s or the Husband’s medical insurance policy, the Court could only ascertain the reasonable medical expenses of the Son on a broad brush approach. During the hearing, the parties had agreed that if there is more communication in future between the parties, the Husband could try to see if some of the medical expenses of the Son could be covered in his medical insurance.
57. About the situation of the Son, the Court had been provided with some documents from the Wife. There is a diagnosis of the Son in the form of Assessment Summary by a specialist in Developmental-Behavioural Paediatrics of the Hong Kong Developmental Paediatrics Centre, as shown in Exhibit “CC-3” of the Wife’s 4th Affirmation, but before a more thorough and detailed medical report is obtained, it is very difficult, if not impossible, with the documents before the Court, of what treatments are necessary thus rendering the expenses of those treatments reasonable.
58. From the documents before the Court, I learn that the Son had been diagnosed of “borderline developmental delay, speech delay and attention problem” as shown in exhibit “CC-3” of the Wife’s 4th Affirmation. But whether or not all the sessions as claimed by the Wife are reasonable and necessary is subject to cross-examination. I also have further observation that apart from those sessions of lessons as stated under “medical expenses” for the son, the Wife also arranged different classes for the son to participate. In view of a 3-year old boy, I have concern of the time schedule of the Son to attend all the sessions arranged by the Wife, in addition to the regular school hours.
59. For the sum under medical expenses of the Son, I do have reservation, for example, about Chinese medicine in the monthly sum of HK$3,360 and of whether 3 pairs of glasses, instead of just one or 2 pairs are necessary. With a broad brush approach, I rule that medical expenses in the sum of HK$10,000 is reasonable.
60. About extra-curricular activities of the Son, the Wife claimed HK$7,000 per month as explained in her 6th Affirmation, which was reduced to HK$5,550 in her 7th Affirmation, which comprises of :-
(a) Music teacher (HK$450 per session, around 6 times per month), HK$2,700
(b)Swimming class (HK$175 per session, once a week), HK$700
(c) Basketball class (HK$200 per session, once a week), HK$800
(d)Maths class (HK$225 per session, around 6 times a month), HK$1,350
61. The Husband disagreed. He is of the view that HK$1,500 is a reasonable sum, as he agrees only to swimming class and basketball class. I am of the view that with the Son now aged 3, even with his special needs, it has to be considered whether it is reasonable for the Son to attend so many lessons, in view of the sessions of treatment the Wife had already arranged. I have reservation of whether Maths class for a 3-year old, in view of the busy schedule, is reasonable. For other classes, it seems that once a week is reasonable. With a broad brush approach, I rule that the reasonable expenses for extra-curricular activities to be HK$3,300.
62. For entertainment/presents for the Son, including weekend outing expenses, the Wife asked for HK$8,000 per month in her 6th Affirmation and was reduced to HK$4,000 per month in her 7th Affirmation. As explained in paragraph 43(5) of the 7th Affirmation of the Wife, she “arrived at this figure as there are around 8 weekends per month, and I budget HK$500 to spend per weekend on tickets to theme parks, movie tickets, entrance fee for playroom etc. The Petitioner only has access to [the Son] in the Former Matrimonial Home for 3 hours every other weekend. I still need to plan activities for [the Son] every weekend.”.
63. The Husband disagrees and says that the reasonable sum is HK$1,000 per month. Even if the Wife can add up the figure of how HK$4,000 is calculated, I notice that the amount the Wife claimed under this head for the Son has far exceeded the amount the parties estimated for their own entertainment/presents. In the circumstances, I am of the view that the reasonable sum for entertainment/presents for the Son is HK$1,500.
64. For holiday/parties for the Son, the Wife claimed HK$4,000 per month, explaining that there is the need of the Son to travel abroad to visit the Wife’s family and relatives, and there is the need to spend on parties either held by others or hosted by the Wife. The Husband is of the view that HK$500 is sufficient. Again, the amount the Wife claimed under this head for the Son has exceeded the amount the parties estimated for their own holiday/parties. I notice that the Wife had included her expenses for holiday overseas under this head. However, I am of the view that it is not reasonable to include the maid for these holiday to visit the Wife’s family. The expenses could and should be cut down. Besides, the amounts spent on buying presents for the Son’s classmates could and should be cut down as well. I rule, on a broad brush approach and considering all circumstances of the case, that HK$1,500 is a reasonable sum under this head.
65. For food expenses for the Son, the Wife claimed HK$7,760 per month. The Husband is of the view that it is an excessive sum, and the Husband thinks that HK$3,000 is a reasonable sum. The Wife explained, in paragraph 43(2) of her 7th Affirmation that the sum comprised of :- (a) 4 cans of baby formula per month of HK$400 per can, making it HK$1,600 per month; and (b) remaining sum of HK$6,160 (ie. HK$7,760 – HK$1,600) was for food for the Son of around HK$205 per day. The Wife further explained that the sum comprises of “purchase organic food for [the Son] whenever possible”, “buy food and drinks for [the Son] when he needs a snack or when we need to take a break from walking on the street”, “as [the Son] is growing up, his appetite has also noticeably increased. He often drinks up to 4 bowls of soup and eats 1.5 bowl of rice per meal”.
66. Leaving aside whether buying organic food can ease the Son’s allergic condition, I am of the view that the soup and the rice the Son consumes might well have taken into account under the head of food of general expenses. Even if additional food, including baby formula, has to be bought for the Son’s consumption, taking into account all the circumstances of the case and with a broad brush approach, I am of the view that HK$4,000 per month is a reasonable sum.
67. For the other expenses for the Son, the Wife claimed for HK$4,700 in her 6th Affirmation, which was reduced to HK$2,500 in her 7th Affirmation. The Wife explained in paragraph 43(8) of her 7th Affirmation that the sum included “diapers”, “baby furniture, such as beds, tables, seats, utensils, mattresses, linen etc.”, “books, haircut and toys”. The Husband disagreed to the sum requested. He is of the view that some of the items of expenses, such as baby furniture, need not be incurred monthly and he proposed the reasonable sum to be HK$1,750. I have considered the parties’ submissions. While I agree that as the Son is growing up and baby furniture has to be replaced, I disagree that baby furniture has to be replaced as frequently as twice every year. Besides, I am of the view that the amount claimed for baby furniture and haircut is excessive. On a broad brush approach, I am of the view that the reasonable sum is HK$1,800.
68. As a result, to summarise what I have analysed above, I rule the reasonable expenses to be as follows :-
For general expenses:-
| Items |
Amount HK$ |
| Rent |
19,200 |
| Utilities |
2,000 |
| Mortgage instalments |
- |
| Household food expenses |
6,000 |
| Miscellaneous household expenses |
1,000 |
| Domestic helper |
5,000 |
|
| Total: |
33,200 |
| For personal expenses:- |
Amount HK$ |
| Total: |
30,000 |
For children expenses:-
| Items |
Amount HK$ |
| School fees |
5,000 |
| Transportation |
2,400 |
| Medical |
10,000 |
| Extra curricular activities |
3,300 |
| Entertainment/presents |
1,500 |
| Holiday/parties |
1,500 |
| Clothing |
1,400 |
| Food expenses |
4,000 |
| Other expenses |
1,800 |
|
| Total: |
30,900 |
69. With the above individual items added together, the total sum is HK$94,100 (HK$33,200 + HK$30,000 + HK$30,900), which I rule are reasonable expenses.
What is the income of the Husband and what is his ability to pay? (Issue 2)
70. According to the Husband’s Form E, he works as an Information Engineer and earns a basic monthly salary of HK$69,997, together with the bonus of HK$7,750 in average per month, which is not guaranteed, making the average total monthly income to be HK$77,417. At the beginning of the hearing, the Husband had updated the Court that his monthly basic salary had been raised to HK$72,000, adding the bonus of HK$7,750 in average per month, which is not guaranteed, the average total monthly income is now HK$79,750. The Husband stated in his Form E that the total monthly income has not yet taking ORSO, which is a pension scheme that the Husband has to pay 5% contribution each month, into account yet.
71. The Wife disputed the Husband’s income. She alleged that the Husband is earning much more than he alleged. According to paragraph 8 of the Wife’s 7th Affirmation, “from his tax return in 2016/17 and 2015/16, it can be seen that the Petitioner earned HK$920,008 and HK$955,856 respectively (ie. A monthly income of HK$76,667.33 and HK$79,654.67 respectively) The Petitioner has also admitted to receiving a bonus of HK$93,000 in 2017.”. Further, the Wife alleged that the Husband is earning additional income from his investment, which if taken into account, according to the Wife, the Husband should be earning about HK$80,000 per month.
72. The Husband explained that it is untrue to alleged that he is earning much more than he has stated. The Husband explained that the bonus he received is discretionary and refer to Exhibit “NKT-1” of his 4th Affirmation, showing for the month of May 2016 and May 2017, he had been paid “prior year cash bonus” of HK$40,000 and HK$93,000 respectively. There is factual dispute as to the exact monthly income of the Husband, which can only be resolved under cross-examination and possibly further disclosure about the Husband’s investment of stock and the return from stock.
73. For the purpose of this application, with the Court taking a broad brush approach, I notice that when the Husband filled out Form E in August 2017, he had used the bonus he received in May 2017 of HK$93,000 to calculate the bonus he received in average per month to be HK$7,750. Also from the evidence provided by the Husband, the annual bonus he receives is not a fixed sum.
74. About the return and income from stock investment, a conclusion cannot be formed without detailed investigation of the extent of investment and the level of return or profit to be made. From the evidence before the Court now, I do not see any allegation that the Husband is doing investment in stock as a job or profession. The Husband has a full-time job, but at the same time, he has stock investment, and the amount of stock he has is stated in his Form E, which amounted to HK$603,922.50 in total.
75. My understanding is that, with the buying of stock, the price may rise or fall. I am not prepared, at this stage, to conclude how much the Husband is earning from stock and to include that in his average monthly income, without detailed investigation, cross-examination of witnesses to test the credibility of the evidence and the provision and scrutiny of the relevant supporting documents. Having said that, with the amount of stock in the sum of HK$603,922.50 as stated in Form E, which is relatively easily liquidated, I am of the view that those are the financial source of the Husband at the moment.
76. Regarding the Husband’s expenses as summarised in paragraph 33 hereinabove, the updated total amount of expenses for the Husband is HK$61,033 (HK$20,071 + HK$40,962).
77. For the Husband’s general expenses, the Wife does not dispute the utilities (HK$1,970), management fees (HK$1,901), food (HK$600) and household expenses (HK$500). For the Husband’s personal expenses, the Wife agreed to Clothing (HK$2,500) and personal grooming (HK$250).
78. For the disputed items, I’ll consider them in turn. I have already considered the issue about the payment of mortgage, which I have explained in paragraph 41 above. I am of the view that a sum of HK$10,500 be paid by the Husband as mortgage instalments.
79. About domestic helper, I agree that having a domestic helper to help, with a monthly expenses of HK$500, is reasonable.
80. For the car expenses in the sum of HK$4,100 and the transportation in the sum of HK$800, the Wife disagreed and stated that the Husband should not have spent on car expenses and the total amount to be spent on transportation should be HK$1,000 in total. I have considered parties’ submissions and the circumstances of the case. The Wife did not dispute that the Husband had driven during the marriage, which reflected the standard of living of parties. On a broad brush approach, I am of the view that the car expenses in the monthly sum of HK$4,100 is reasonable.
81. For the Husband’s personal expenses, the Wife disputed about (a) meals out of home in the sum of HK$8,000; (b) entertainment/presents in the sum of HK$3,000; (c) holiday in the sum of HK$3,300; (d) tax in the sum of HK$9,000; (e) contribution to parents in the sum of HK$10,000; and (f) others, including medicine to father, fitness, subsidies to niece and cigarette) in the total sum of HK$4,112.
82. Without detailed investigation of each of the items, which should best be tested under cross examination, I am of the view that the amounts for meals out of home, entertainment/presents, holiday, contribution to parents and under the head of others should be adjusted and reduced. On a broad brush approach, I am of the view that the reasonable monthly personal expenses of the Husband should be HK$30,000 in total.
83. As a result of the analysis above, I am of the view that the reasonable expenses of the Husband is HK$50,071 (HK$20,071 + HK$30,000).
84. I am aware of the fact that the Husband had taken out the Tax Loan in the sum of HK$120,000 in December 2017 and he has to repay HK$6,761.34 per month. The necessity to take out the Tax Loan is disputed by the Wife, which I cannot resolve at this stage without cross-examination of witnesses.
85. But I notice that the genuineness of having taken out the Tax Loan is supported by documents exhibited in the Husband’s 4th Affirmation, in Exhibit “NKT-2”.
What is the reasonable sum of maintenance pending suit to be paid to the Son? (Issue 3)
86. Taking into account the Wife’s position, with her income of about HK$73,333 (and like the Husband, taking into account the OSCO of 5% contribution), and I have ruled that the reasonable expenses to be HK$94,100, the Wife is falling short of about HK$24,000 to HK25,000.
87. When considering what the level of reasonable sum of maintenance pending suit is to be ordered to be paid to the Son, I also have to consider whether the Wife is in urgent need of money. It is the Husband’s allegation that with HK$2.3M the Wife had withdrawn, she has money and there is no need for her to take out the present application.
88. I have considered the Wife’s explanation as to how the total sum of HK$2.3 million had been depleted (paragraph 26 hereinabove refers), which is disputed by the Husband. This is a material factual dispute, which could only be resolved at trial. At this stage, for the present application, I can only take a broad brush approach and do some analysis based on the facts before the Court.
89. In view of the parties’ income, I accept that HK$2.3 million is not a small sum. Simply explaining as the Wife now did with a few paragraphs in the affirmation, without providing a detailed breakdown of how such a large sum of HK$2.3 million had been depleted completely is hardly satisfactory, which calls for further explanation and the provision of supporting documents in order to convince the Court. According to the Husband, this attracts much suspicions as to whether the Wife had been telling lies and whether the said sum or a part of the sum had been concealed or not.
90. If the Wife is telling the truth, ie. the whole sum had been depleted as at the date she so alleged in her 6th Affirmation filed on 31st January 2018, that means from the time she withdrew it in September 2015 until the whole sum is completely depleted, it took only about 2 years and 4 months. In that case, even greater suspicion is raised as to whether the Wife had been spending money extravagantly and urgent attention would seem to be required for the Wife to review how she spent money. As these are factual disputes, these matters will have to be canvassed in trial. As at today, as shown in the documents provided by the Wife, it seems that HK$2.3 million had been depleted, and the Wife could not afford the shortfall and there is the need to apply for maintenance pending suit.
91. Regarding the Husband’s ability to pay, even if the Husband’s finance might be tight, in view of his present situation as alleged, I am of the view that with the stock the Husband now has, which could be relatively easily liquidated, he has the financial resources to pay and can meet the reasonable sum to be paid. It has to bear in mind that the ability to borrow loan is also viewed as a means of financial source that the Court could take into account.
92. I have to emphasise that the maintenance pending suit ordered is only an interim measure pending the substantive hearing, and that the amounts awarded could be reviewed retrospectively, so that any over or under-provision as a result of the maintenance pending suit order could always be rectified at the substantive ancillary relief hearing.
Conclusion
93. I make the following orders :-
(a) Paragraph 1 of the Order dated 19th September 2017 be discharged forthwith.
(b)The Husband do pay the Wife maintenance pending suit for the Son in the sum of HK$25,000 per month, with the 1st payment to be made on 1st December 2018 and thereafter on the 1st day of each and every month until further order of the court.
(c) The above payments are to be deposited into the Wife’s designated BOC bank account.
Costs
94. It is a general principle that costs should follow the event. In this case, the Wife has to come to court to get maintenance pending suit. The amount ruled by the Court to be reasonable is HK$25,000 per month, which is more than the interim maintenance pending suit of HK$18,000. However, it is much less than the amount the Wife asked for, which was HK$48,000 as stated in the summons and was reduced to HK$40,000 at the hearing. I am of the view that both the Wife and the Husband is neither the winning party.
95. Having considered all the circumstances of the case, I am of the view that the fair costs order is no order as to costs, including all costs reserved for the maintenance pending suit application. This is a cost order nisi, which shall be made absolute after the expiry of 14 days from the handing down of this judgment.
|
(Rita So) |
|
Deputy District Judge |
The Petitioner, acted in person
The Respondent, acted in person
|