NSK v. LWCJ

FCMC 4241/2021

[2022] HKFC 77

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 4241 OF 2021

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JUDGMENT

(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 9 November 2021 for interim maintenance of the child of the family, a 9-year-old boy, in sum of HK$14,000 per month pursuant to section 5 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“the MPPO”). The wife is also seeking an order to backdate the commencement of interim maintenance from May 2021.

2.  The respondent (“the husband”) opposed by saying the wife’s application should be dismissed with costs.

Background

3.  The wife and husband are now in their 40s with a 9-year-old son. The family had been living in their matrimonial home in Ma On Shan, a property jointly owned by the husband and his father (“Mr L”). The son was studying in an international school not far away from the matrimonial home. Their marriage was celebrated on 26 February 2006 which has lasted for 15 years followed the wife’s discovery of the husband’s ex-martial affairs. Their relationship further deteriorated when the husband withholding paying monthly maintenance to the wife since November 2020. Coupled with an unwanted account of physical encounter during a heated argument in early 2021, the wife took the son with her to move in a rented property in Pak Shek Kok with her mother in early May 2021. A petition on ground of unreasonable behavior was filed on 6 May 2021. As at this judgment, no decree nisi has been granted.

4.  Very limited access of the son was made available to the husband since separation. On 19 July 2021, which was 3 months after the wife left the matrimonial home, Deputy District Judge R. Chow granted interim joint custody to both the wife and husband, interim care and control to the wife and interim defined access to the husband.

5.  Workwise, the husband had run a toy shop in a shopping mall with a monthly income of HK$25,000. Whilst business did not prosper, around 2015, he changed the mode of business to an online shop. The husband stated in his Form E that he has a monthly income of HK$10,000 with a net profit of online sales in sum of HK$37,940[1]. The wife, on the other hand, was a housewife but since April 2019, she secured an employment with a tertiary institution in Hong Kong earning a monthly income of HK$19,500. The aggregate income of the family was $67,440 per month.

6.  I am given to understand the husband is still living in the matrimonial home after separation. The matrimonial home is a 395 square feet flat which was purchased in early 2004 in joint names of the husband and Mr. L. The down-payment was paid up by Mr L. As at this application, the matrimonial home is subject to HK$44,518 monthly mortgage repayment. The husband stated in his Form E that the matrimonial home was subject to some HK$3.4 million outstanding mortgage with current market value around HK$6.5 million.

7.  School fees for the son is around HK$10,000 per month. With no disrespect, one would notice the family has tight financial arrangement when the income (and also net profit) of both the wife and the husband could barely cover mortgage repayments, school fees of the son and other household / personal expenses. It is not surprising that someone has shouldered at least some of the expenses. Both parties agreed it was Mr L who have paid a substantive portion of mortgage payments and school fees of the son continuously during their marriage.

8.  Mr L is a tailor who specializes in making men’s suit and uniform for large companies. Mr L has his own shop in Tsim Sha Tsui for decades. At times during marriage, both the wife and husband had helped Mr L to run the business. In turn, Mr L will pay money by way of cheques to the wife to settle the family’s expenses on a regular basis, seemingly school fees for the son. The last payment made by Mr L to settle the family’s expenses was made on 28 September 2020[2]. The husband explained no further payment was made was due to social unrest in 2019 which has caused Mr L’s business to decline, Mr L was required to make borrowings from financial institutions.

9.  The husband gave a brief historical account of maintenance paid to the wife prior to separation as follows[3]:

(i)  Since 2018, the husband was responsible to pay HK$15,000 mortgage payment monthly;

(ii)  From 2006 to 2021, the husband was responsible to pay all household expenses;

(iii)  From 2016 to 2018, the husband was responsible to pay school fees of the son; with assistance from Mr L to top up the difference.

(iv)  The husband paid a portion of school fees of the son in sum of HK$15,000 and HK$9,500 during the period from 2018 – 2019 and 2019 to the end of 2020.

10.  On the other hand, the wife says during marriage the husband had been paying her a sum between HK$6,500 to HK$15,000 per month to cover household expenses, son’s expenses and school fees. She has no worry of paying management fee bills, general household expenses because the husband was responsible. Nonetheless, the wife says the husband had since November 2020 refused to pay her maintenance, be it she did not explain how the household expenses could be settled in her affirmation[4], she claimed this has driven her to borrow money from her friends and relatives. The current liability due as at the time when this application was taken out was as high as HK$218,000.

11.  It is therefore a situation that the paternal family was responsible for the major outgoings during marriage, including school fees of the child. The evidence tallies between the evidence of the wife and the husband.

12.  The wife must have applied her salary HK$19,500 to pay off daily expenses after the husband has ceased to pay her maintenance since November 2020. In the circumstance, the wife earning modest income is now in financial difficulty to pay all the son’s expenses on her own, seeing her savings depleting, she now seeks an interim maintenance order for the son.

13.  The husband disagrees to pay interim maintenance to the son because he himself could not make ends meet. He submitted his total monthly expenses, including mortgage payment, as at the date of separation (i.e. May 2021) was as high as HK$47,576[5]. He further claimed his online toy business is suffering a loss and he had only some HK$45,000 savings remained in his bank account. The accusation against the wife continued by saying the wife has taken valuable jewelry with her when leaving the matrimonial home. He reckons the wife is now in a better financial position than him, the wife should be responsible for settling the son’s expenses. In other words, the husband sees the wife is more solvent than him and that was why he opposed to this application.

The issue

14.  The only issue to be determined, at this stage, is how much should the husband to pay the wife for interim maintenance of the child.

The law

15.  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.”

16.  The relevant legislation, in section 3 of the MPPO, states

".... 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."

17.  The above principles shall be considered with reference to HJFG v KCY [2012] 1 HKLRD 95 where it was 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

18.  With such 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 child expenses in the circumstance and whether the husband has ability to pay. I shall not embark on 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.

How much should the husband pay to the wife as interim maintenance for the son?

The reasonable needs of the son

19.  In support of this application, the wife stated the following as the general needs of herself and the son in her Form E[6].

General

Item	Amount
Rent	$10,500
Utilities	$1,500
Food	$6,000
Household expenses	$500
Total:	$18,500

20.  For easy reading, I reproduce the wife’s personal expenses as those in her Form E follows:

Item	Amount
Meals out of home	$1,500
Transport	$650
Clothing/shoes	$500
Personal grooming	$200
Entertainment / presents	$500
Holiday	$500
Medical / dental	$100
Insurance premia	$759
Others: face masks & mobile phone	$278
Total:	$4,987

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

Item	Amount
School fees	$9,700
Extra tuition fees	$3,711.50
Transport to school	$1,300
Medical / dental	$100
Extra-curricular activities	$3,614.50
Entertainment / present	$500
Holidays	$500
Clothing / shoes	$500
Lunches / pocket money	$100
Other transport	$300
School uniform	$125
Others: Eye examination; student photo & face masks	$460
Total:	$20,911

22.  Now the wife is only seeking HK$14,000 child’s maintenance from the husband, I can only assume this figure comes within the range of monthly maintenance (between HK$6,500 and HK$15,000) paid by the husband during marriage. In absence of evidence (or written submissions by her legal representative), I am unable to comprehend how this figure is arrived at.

23.  Nonetheless, the sum of HK$14,000 is nowhere excessive. I see from the general expenses of the son is already (HK$18,500/2) HK$9,250; the son’s personal expenses is HK$20,911[7], making a total as high as HK$30,161.

24.  The current position is now the wife is able to generate some sustainable income of HK$19,500 per month, when she has to pay for her monthly expenses (general & personal) HK$14,237[8], she is only able to cover a portion of the son’s expenses.

25.  On the part of the husband, he argued, if he was ordered to pay interim maintenance, he should be paying 1/3 instead of ½ of the son’s general expenses because his mother-in-law (the wife’s mother) is also living in the rented property together. The wife argued otherwise when her mother’s presence is mainly for taking care of the son while she is at work, or else the wife would have to take on a domestic helper which might have incurred more expenses. In short term I agree with the wife. It does not appear the wife has pay extra money to her mother for taking care of the son, being a working mother, incurring expenses to take care of her child is almost inevitable, to reduce costs of living, I accept the wife’s calculation that general expenses for the child should be half of the aggregate general expenses, i.e. HK$9,250. If I had erred in favour of the wife, this amount would be accounted for during determination of ancillary relief.

26.  In general, where parties do have income themselves it is reasonable for them to split the son’s expenses equally or at a proportion to their relevant or financial resources. The wife is only seeking interim maintenance in a sum less than ½ of the son’s total monthly expenses, I find HK$14,000 is more than a fair and reasonable sum to be paid by the husband.

Husband’s ability to pay

27.  I have no doubt in finding the husband has ability to pay HK$14,000 interim maintenance for the son. From the evidence of parties, it is agreeable that household expenses (including school fees for the son) had come from Mr L or at least a substantive portion will be paid by Mr L if not entirely. The situation continued even when Mr L advanced loans from financial institutions as early as 2018. I see from the evidence that Mr L had ceased to pay cheques to the wife for settlement of family expenses since September 2020, it does not alter the husband’s ability to pay when he has deposed the manner of payment that (i) he was responsible to pay for all household expenses until separation; and (ii) a substantive portion of the son’s school fees until end of 2020.

28.  The parties chose to enroll the son in an international school which costs them school fees around HK$10,000 per month, a sum which I have mentioned before is somehow disproportionate to their aggregate income. It would be implausible for one to have planned for this arrangement if he had no sound financial support from other sources. It is highly likely that the husband has some other earnings/profit other than the online toy shop. Having said that, I remind myself I should avoid a detailed investigation of either parties’ financial position here and I trust at time of determining ancillary relief an accurate portrayal of financial position of the husband will surface. At this stage, it is more probable than not the husband has means to settle interim maintenance of the son.

29.  At this instance, when the wife is only earning HK19,500 with a shortfall of more than HK$20,000 to pay for monthly expenses, I accept the husband shall be responsible for the son’s expenses when his income (or relevant financial resources from Mr L) is far more abundance than the wife.

Backdating

30.  The wife seeks an order to backdate the commencement of interim maintenance for the child from May 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. This issue can be canvassed at a later date as it seems to me that the wife is now having a stable income with her alleged borrowings. The wife has had HK$186,662.44[9] savings held in a joint bank account with her mother. Her concern on the backdated amount, if any, could be examined in detail in ancillary relief hearings in due course.

Costs

31.  The wife succeeded in obtaining an order for interim maintenance for the child. In terms of costs, I see no reason the husband should not pay the wife’s costs when he had submitted in his written submissions to (i) dismiss the wife’s application and (ii) to seek MPS against the wife in due course. His stance was firmly articulated and so I agree the wife was left with no room to negotiate. In this regard, I grant a cost order nisi that the husband do pay the wife’s costs of this summons on a party to party basis, to be taxed if not agreed. The said order be made absolute within 28 days from the date of this judgment in absence of party to vary by summons.

Orders

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

(i)  The respondent (the husband) do pay the petitioner (the wife) interim maintenance of the child of family in sum of HK$14,000 from the 1^st day of each calendar month commencing from 1 May 2022 and subsequent payments on 1^st day of each succeeding month, until further order of the court.

(ii)  The sum of interim maintenance of the child of the family be credited directly into the petitioner’s (the wife’s) designated bank account.

(iii)  There be a costs order nisi that costs of the petitioner’s (the wife’s) summons filed on 9 November 2021 be paid by the husband (the respondent), on a party to party basis, to be taxed if not agreed.

(iv)  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.

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