M M M also known as M, MJ v. OCC also known as C, OC JR

FCMC 4555/ 2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4555 OF 2016

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JUDGMENT
(Interim Maintenance)

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Introduction

1.  This is an application by a petitioner wife for interim maintenance for the four children of the family pursuant to s.5 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO). 

The issues

2.  There is only one issue to be determined, namely the appropriate level of interim maintenance to be paid for the four children of the family going forward. The wife seeks HK$18,000 per month or HK$4,500 per month per child. The husband says he cannot afford to pay, given that he has a number of outstanding loans to settle. He is currently paying interim interim maintenance of HK$8,000 per month or HK$2,000 per month per child pursuant to the court order dated the 4 July 2016.

Background

3.  The parties married on the XX October 1997 in the Philippines. They are both Filipino nationals although the Respondent husband also had Hong Kong residency when they met. They have four children who are now aged 18, 16, 11 and 5 years old respectively. The parties finally separated in May 2015, although the relationship had been fairly turbulent for a number of years and there had been periods of separation previously with allegations of infidelity on both sides. On the 15 April 2016 the wife issued proceedings for divorce based on unreasonable behaviour. Prior to that there had been some discussions between the parties and the hope had been that the matter could proceed by agreement on the basis of one year separation with consent. At that stage the suggestion by the husband was that he would pay HK$12,000 per month as maintenance for the children. Unfortunately negotiations seemed to stall and the wife’s unreasonable behaviour petition followed. On the 4 July 2016 the parties agreed that there should be an order for joint custody of the children with care and control to the wife and reasonable access to the husband. This order was made by consent. The decree nisi was pronounced on the 17 November 2016.    

4.  The parties both work in the hospitality business. The wife is 44 years old and she is currently a Bar Captain in a restaurant earning approximately HK$16,000 per month. She also works part time as a waitress and she earns a further HK$2,000 – HK$3,000 per month from this source. She previously worked as a restaurant manager earning a slightly higher salary of HK$24,000 per month. 

5.  The husband for his part is 40 years of age. He works as an executive chef for a well known restaurant chain and according to his Form E he currently earns HK$48,000 per month.

6.  The real issue here is the husband’s ability to pay given his alleged high level of indebtedness. The husband appeared in person and did not have the benefit of legal representation at the hearing, although he had been represented by lawyers previously. Consequently I gave him additional time to provide the documents and other information previously sought by the wife’s solicitors. The wife’s solicitors wrote to the court on the 2 December 2016 enclosing documents that had been forwarded to them by the husband.

The law

7.  Applications of this nature are governed by s.5 MPPO Cap 192 which state that the court may make orders requiring one party in a marriage to pay maintenance to the other, for the benefit of the children of the family.

“(a) before or on granting the decree of divorce …… or at any time thereafter”

8.  The only governing principle is that the court will make such order, as it considers reasonable.  Thus interim maintenance for children is approached in the same way as maintenance pending suit for adults.  Consequently applications such as this are approached on a broad-brush basis.  A detailed examination of the parties’ means will be left to a later date at a full ancillary relief hearing, that is, if there is no agreement in the meantime. Any over or under payment may be dealt with then.

9.  Regarding the principles that under pin an application such as this, paragraph 16.17 of Rayden, 18th edition, is also of some assistance.

“The court has an unfettered discretion to award such sum as it thinks reasonable. There is no hard and fast rule, and no fixed proportion: each case depends on its own facts. It has been said that the approach to maintenance pending suit should empirical, and that ‘in the ordinary sort of case the district judges who deal with these applications will have to take a broad view of means on the one hand and income on the other and come to a rough and ready conclusion, or to take a ‘broad brush approach’’. The overall consideration is the actual needs of the parties’ pending suit”.

Here then we are looking at section 5 and the reasonable requirements of the children and the ability of the husband to pay.

The Evidence

10.  I must now turn to consider the issues, the law, and the parties’ evidence as set out in their affirmations and Form E’s filed together with the submissions made by the wife’s lawyer and the husband.

What then is the appropriate level of interim maintenance to be paid by the husband for the four children going forward?

11.  The wife is seeking HK$18,000 per month for the children. As indicated during the hearing, on a broad brush basis I accept that a certain percentage of the general household expenses should be attributable to the wife directly. The remainder, being costs associated with the children, should then be split between the husband and wife in an equitable manner. On occasion this may be 50:50 – or alternatively it can be a percentage based on the relative earnings of each party, or simply a reasonable amount in the circumstances.

12.  Originally the wife said that the actual expenses for the children including a contribution towards rent and the other general expenses together with their direct expenses came to approximately HK$22,550 per month. This was based on the wife sharing a residence with the children and her mother and sister. Since then the wife has moved into a cheaper apartment with the children and her mother. Consequently the list of expenses has now changed. On a broad brush basis she asks for HK$18,000 per month. She says that she is struggling and that she needs the husband to make a greater financial contribution towards the family than he is currently paying. She says that he previously contributed about HK$38,500 per month towards the household expenses.       

What can the husband reasonably afford to pay?

13.  The husband says that he cannot afford to pay because he has a number of loans that he took out in order to pay for family expenses. Although the wife accepts that the husband took out a loan for HK$150,000 previously she does not accept his assertion that he is approximately HK$400,000 in debt.

14.  The husband has since produced a number of loan agreements most for relatively small amounts of money – i.e. HK$40,000 in July 2013, HK$40,000 in June 2014, HK$60,000 in November 2014 and HK$85,000 in August 2016. However in September 2015 he took out an additional loan for HK$300,000. This is only 3 or 4 months after the wife moved out of the matrimonial home and before the divorce proceedings were issued. It is not clear why the husband thought it was necessary to borrow such a large sum. The wife did not benefit from this in any way and it is not clear how the funds were used. There is some concern that the husband borrowed this money in order to make it appear that his indebtedness was higher than it should be. No doubt this will be subject to further investigation by the wife in due course. In addition the husband has produced copies of e-mails from his employer which seem to suggest that he also owes a significant amount of money to them. It is not clear if this is current or historical. In any event I have no doubt that this will also be the subject of further enquiry.

15.  The husband clearly has an obligation to make a proper financial contribution towards his children’s expenses. He also has the ability to borrow money. It seems to me that the wife’s request is on the reasonable side. I will though reduce it a little to HK$4,000 per month per child. The husband originally offered to pay HK$12,000 per month. It seems to me that with a little economizing he should be able to pay slightly more. Likewise I am hopeful that this will assist the mother in making ends meet.      

Costs

16.  I can see no reason why costs should not follow the event in this instance. The wife made a reasonable proposal and the husband refused to enter into sensible negotiations in order to settle the matter. She appears to have had no alternative but to make an application to the court. Consequently I shall make an order nisi that the husband do pay the costs of and occasioned by this application, to be made absolute in 14 days time.

17.  An order will be made in the following terms:

1)   The Respondent husband shall pay the Petitioner wife interim maintenance for the four children of the family in the sum of HK$16,000 per month i.e. HK$4,000 per month per child until further order, the first payment to be made on the 1^st January 2017 and subsequent payments to be made on the first day of each succeeding month until further order.

2)   There shall be an order nisi that the husband do pay the wife’s costs of and occasioned by this application to be taxed on a party and party basis if not agreed and to be made absolute in 14 days time. The wife’s costs shall be taxed in accordance with Legal Aid Regulations.

3)   There shall be a further First Appointment hearing on the 17 February 2017 at 9:30 am.

4)   Both parties do personally attend that hearing.