HTL v. K,RE

FCMC 1678 / 2013

NUMBER 1678 OF 2013

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J U D G M E N T
(Maintenance pending suit/Interim maintenance)

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Introduction

1.  This is an application by a Respondent husband for maintenance pending suit for himself pursuant to s 3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO). As will be seen he has also applied for interim maintenance for the two children of the family; a girl aged 13 and a boy who will be 8 in August pursuant to s.5 of the same ordinance.

2.  The husband issued his application on the 9 May 2014 and insisted on proceeding with it notwithstanding the fact that these proceedings have been ongoing for a considerable period of time and the trial for final ancillary relief was due to commence on the 8 July 2014 – i.e. only two weeks away from the date of this hearing. The reason for the application initially was that the husband said that he was destitute with no means at all to support himself. Consequently it was directed that the Children’s Dispute Resolution hearing originally scheduled for whole day on the 24 June – be split into two – the idea being that the mps hearing would be conducted in the morning and the CDR hearing in the afternoon. In fact, as things turned out we only had time to deal with the issue of maintenance pending suit. The CDR hearing will either be adjourned to another day – or as is more likely the outstanding issues pertaining to the children will be adjourned for a short trial.

3.  The difficulty in part is that the husband’s situation has now changed in that he was granted CSSA on the 26 May 2014 for a three month period from the 1 June 2014 – 31 August 2014 in the sum of HK$4,225 per month. He also received some funds in April and May. This does not include any provision for the children. In addition the husband was initially granted legal aid, which has since been discharged. The husband intends to appeal that decision. Consequently the ancillary relief trial has been adjourned until November.

4.  The husband seeks HK$9,000 per month for himself and HK$5,800 per month for the children. He also asks for HK$1,000 in order to seek the assistance of a plumber to see what work needs to be done to properly sort out the water problems in the former matrimonial home. He also wishes to be given funds to buy two air conditioning units.

5.  The wife resists the husband’s application. However the difficulty in part is that the arguments advanced by the wife at the maintenance pending suit hearing are the same arguments that she will put forward at the final ancillary relief trial now scheduled for November – at which point the court will have the advantage of hearing from both parties in the witness box.

Background

6.  Suffice it to say that this has been a highly conflicted piece of litigation which began nearly 3 years ago. My sister Judge, Deputy High Court Judge Bebe Chu sets out the background to the marriage and its demise in paragraphs 10 – 20 of her judgment of the 10 September 2012. Reference can be made to that as necessary and I will not repeat the same here.

Each party’s case

7.  The wife works full time as a teacher and earns HK$47,290 per month. She is wholly responsible for the children’s maintenance. She says that she struggles to make ends meet and that she cannot afford to support the husband. She has limited financial resources otherwise.

8.  The husband for his part maintains that he has no money, no other financial resources and no means at all to support himself. He is now not working and says that he has no earning capacity and that he also has significant health issues which make it unlikely that he will be able to earn a living in the future. Thus the issue of the husband’s earning capacity and any other health related issues will be central to the ancillary relief trial. The wife maintains that the husband should be able to maintain himself and does not accept all that has been asserted about his health.    

The law

Maintenance pending suit

9.  The law is well known and not in dispute. Section 3 Matrimonial Proceedings and Property Ordinance Cap 192 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 trial if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of a 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 under section 5 of the same ordinance are approached in the same way. As Rayden points out:-

“…what really matters is the immediate and reasonable requirements of the wife [in this case the husband] balanced against the ability of the husband [in this case the wife] to pay for them, assessed using a broad-brush approach.” (See paragraph 16.17 of Rayden, 18^th edition).

Further

“In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non disclosure. However, if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay. The court can look at the reality of the situation …… Any under provision or over provision in the order for maintenance pending suit can always be corrected when the account comes to be taken at the substantive hearing when there are every opportunity to do fairness by set off ……” (See paragraphs 16.18 of Rayden, 18^th edition).

10.  Likewise the court may look to the assertions made by the payee and take a similar approach when looking at his means and alleged reasonable requirements.  The court should try to look to the reality of the situation, in so far as it can, in relation to bare assertions made by either the husband or the wife.

11.  Reference can also be made to the Court of Appeal decision HJFG v KCY [2012] 1 HKLRD 95 where it was held that:-

“(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. That 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.”

Likewise I am not confined to the mere say so of the payee either.

The wife’s case 

12.  Initially the wife argued that she should not be required to pay maintenance pending suit to the husband because:-

a) He has an earning capacity and should be able to support himself;

b) He has failed to make full and frank disclosure of his financial resources;

13.  In so far as the interim maintenance claim for the children is concerned she argued that given that the husband only sees the children for limited periods of time and that she is wholly responsible for all of their costs, that she should not be obliged to pay this sum either. She agreed, albeit rather reluctantly, to forward HK$1,000 to the husband in order to obtain the advice of a plumber on the water leakage problem.

14.  At the hearing the wife’s solicitor accepted that the issue of the husband’s earning capacity was going to be central to the ancillary relief trial and that it would not therefore be appropriate for me to make any determination on that issue at an interlocutory stage. Consequently that line of argument was not pursued.

15.  The wife’s lawyer did however argue that the husband had not made full and frank disclosure of his assets. Again some of those points will need to be properly ventilated at the trial. It should however be noted that to date the husband has not produced copies of bank and credit card statements as requested. I made the point that this was essential information and that the trial would not be able to proceed without such information. I indicated that I would make a costs order against the husband (which ultimately would come from his share of the assets) in the event that he sought an adjournment at the last minute because those statements had not been produced. No application was made to me in that respect on the 24 June.

16.  Subsequently the husband issued an application to adjourn primarily because his legal aid certificate had been discharged. I asked to see copies of letters with respect to his request inter alia for bank and credit card statements and although some of these were written rather late in the day they have on the face of it been written. Mr Leung for the wife says that some requests are still missing. If that is the case I would expect that matter to be brought to my attention again once the issue of the husband’s legal aid certificate has been resolved. As I have said the husband has sought to appeal the Legal aid decision, a date for which has not yet been provided.   

Interim Maintenance for the children   

17.  The husband claims maintenance for the children notwithstanding the fact that he allegedly only see’s the elder daughter for very short periods of time on a Tuesday and Thursday after school. Although he sees the son for longer periods of time – i.e. for 2 hours on a Tuesday and Thursday and every alternate weekend, that access is also somewhat problematic. The wife has issued a summons seeking to vary the access arrangements. The husband for his part says that his intention is also to apply to the court to vary the custodial and other arrangements for the children.

18.  The husband is asking the wife to pay for all of his alleged expenses for the children plus a contribution towards his general expenses, as if he had care and control of them and they were based with him. This is clearly not the case. I have also noted, although this may not be relevant given the present circumstances, that the legal aid statutory charge is unlikely to attach to maintenance for the children. All in all it seems to me that the husband’s application is misconceived in this respect.     

Maintenance pending suit for the husband 

What are the husband’s reasonable needs?

19.  The husband claims the following expenses for himself and the two children of the family. It should be noted that he is presently living free of charge in the former matrimonial home.

Current Monthly Expenses

4.1  General

Item	Amount
Rent	Nil
Mortgage instalments	Nil
Utilities (electricity, mobile phone)	HK1,100.00
Management fees	Paid by the Petitioner
Food	HK$800.00
Household expenses	HK$500.00
Car expenses	Nil
Insurance premia	Nil
Domestic helper(s)	Nil
Other (specify)	Nil
Total monthly household expenses	HK$2,400.00

Attach copies of the latest rental receipt.

4.2  Personal

Item	Amount
Meals out of home	HK$6,300.00
Transport	HK$300.00
Clothing/shoes	HK$200.00
Personal grooming (including haircut and cosmetics)	HK$200.00
Entertainment/presents	Unable to afford now
Holiday	Unable to afford now
Medical/dental	HK$200.00
Tax	Nil
Insurance premia	Nil
Interim maintenance	Nil
Contribution to parents	Nil
Dependent family members	Nil
Others (specify)	Nil
Total monthly personal expenses	HK$7,200.00

4.3  Children

Item	Amount
School fees	Paid by Petitioner
Extra tuition fees	Nil
School books and stationery	HK$200.00
Transport to school (including school bus)	Nil
Medical/dental	HK$100.00
Extracurricular activities	HK$1,000.00
Entertainment/presents	HK$300.00
Holidays	Unable to afford now
Clothing/shoes	HK$200.00
Insurance premia	Nil
Lunches and pocket money	HK$3,200.00
Other Transport	HK$200.00
Child-minding fees	Nil
Uniform	Paid by the Petitioner
Others (specify)	Nil
Total monthly expenses for children	HK$5,200.00

 

Total Monthly Expenses (4.1 + 4.2 + 4.3)

HK$14,800.00

20.  Of those expenses I accept that the following sums are reasonable:-

Current Monthly Expenses

4.1  General

Item	Amount
Rent	Nil
Mortgage instalments	Nil
Utilities (electricity, mobile phone)	HK1,100.00
Management fees	Paid by the Petitioner
Food	HK$400.00
Household expenses	HK$500.00
Car expenses	Nil
Insurance premia	Nil
Domestic helper(s)	Nil
Other (specify)	Nil
Total monthly household expenses	HK$2,000.00

4.2  Personal

Item	Amount
Meals out of home	HK$2,600.00
Transport	HK$300.00
Clothing/shoes	NIL
Personal grooming (including haircut and cosmetics)	HK$100.00
Entertainment/presents	NIL
Holiday	NIL
Medical/dental	HK$100.00
Tax	Nil
Insurance premia	Nil
Interim maintenance	Nil
Contribution to parents	Nil
Dependent family members	Nil
Others (specify)	Nil
Total monthly personal expenses	HK$2,800.00

In particular I have not allowed the husband’s allowance for meals out of the home in the sum of HK$6,300. I will however allow HK$2,600 – which means that there is a total allowance of HK$3,000 for food. This includes an amount for the children. I accept that the mother is paying for all of the children’s other expenses.

The wife’s ability to pay

21.  The wife is as I have said earning HK$47,290 per month. She says that her outgoings are in excess of this sum at HK$62,978 per month. Although many of her expenses are quite reasonable I do not accept, in the circumstances for example that all of the extracurricular activities for the children are necessary, nor am I of the view that the wife’s obligation towards her parents should take precedence over that of her former husband. The food expenses also seem a little on the high side. I have also noted that the wife’s other financial resources are somewhat limited. She does though have access to some cash savings. In the circumstances it seems to me that the wife should pay the husband HK$4,800 per month with effect from the 1 August 2014. In the event that the husband is found to have other resources available to him then this money may be recouped in any final ancillary relief trial. In the meantime though I am satisfied that this is the absolute minimum that the husband needs to survive – even though I accept that that will also place an additional burden on the wife’s shoulders.

Order

22.  Consequently I shall make an order as follows:-

UPON the Petitioner acknowledging and agreeing that she shall forward to the husband the sum of HK$1,000 within the next 7 days so that the husband is able to seek the assistance of a plumber to ascertain what works are necessary to correct the water leakage problem in the former matrimonial home.

IT IS ORDERED THAT:- 

1) The Petitioner shall pay maintenance pending suit to the Respondent in the sum of HK$4,800 per month the first payment to be made on the 1 August 2014 and thereafter to be paid on the 1^st day of each succeeding month until further order.

2) Costs reserved.