BC v. MSH (also known as H, MSO)

FCMC 13741/2019

[2021] HKFC 74

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 13741 OF 2019

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J U D G M E N T

(Interim maintenance)

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Introduction

1.  This is an application by a Petitioner wife for interim maintenance for the three children of the family pursuant to section 5 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO). In her summons dated the 12 October 2020 the wife seeks an order as follows:

1.  The Respondent do pay interim maintenance for the children of the family, namely GH, a girl born on XX August 2008; EMCH, a boy born on XX April 2010; and JMCH, a boy born on XX June 2015 in the sum of HK$40,000 per month or such other sum as may be ordered by the Court, until further Order of the Court;

2.  The maintenance for the children of the family be backdated to 1 April 2019 with the Respondent to be given credit for any ad hoc payments; and

3.  Costs to be provided for.

2.  In her solicitor’s written submission, the wife reiterates her position as follows:

14. In the premises W seeks the following Orders: -

(1)  H to pay interim maintenance for the children of the family of HK$40,272 per month; or alternatively,

(2)  H to pay HK$25,000 per month for the Children’s expenses plus 50% of the Children’s school fees, extra tuition, and extracurricular activities;

(3) The interim maintenance ordered by the court to be backdated to April 2019, including payment of the school fees of HK$104,123 [A/161/8 and B/270], with credit given for the HK$48,000; and

(4) Costs of this application to W to be summarily assessed and paid forthwith.

3.  Consequently, this application concerns the appropriate level of maintenance to be paid by the Respondent husband for the three children of the family, who range in age from 12 to 6 years old. The parties are both working professionals who each have a significant earning capacity, although it is the husband’s case that he is currently struggling from a financial perspective given that he has recently been mainly involved in the travel industry. Historically the parties each paid a set amount of money into a joint bank account each month, out of which the children’s expenses were largely met. Otherwise it seems to be accepted that they maintained separate finances. It is the wife’s case that the husband’s contribution towards the children’s maintenance has been inadequate since he moved out of the former matrimonial home, whereas the husband says that the wife has inflated the children’s expenses and that his offer is in line with what he paid prior to separation. He offers to pay HK$17,000 per month. This is not accepted by the wife, who complains that in any event the husband has included his own expenses for the children in that computation.

Background 

4.  The parties are both Hong Kong Chinese and they married in Australia on the XX February 2008. It seems that the marriage has been a fairly turbulent one, with each making fairly damaging allegations against the other. In any event, it is accepted that the parties were living separately but under the same roof from about March 2018 and that the husband eventually moved out in about May 2019 following an incident, in which the Police were involved. The parties have lived in separate residences since that time. On the 20 November 2019 the wife issued divorce proceedings based on the husband’s unreasonable behaviour. In that petition she asked that the financial support for the children be split equally save that the husband should pay for the domestic helper expenses in addition. The decree nisi was pronounced on the 25 February 2021 and the First Appointment has been adjourned to the 8 June 2021.  

5.  There are three children of the family, an elder daughter who has been educated in the English Schools Foundation system and who will be 13 years old on the XX August 2001. She currently refuses to have any form of meaningful contact with the husband. There are also two boys, aged 11 years and nearly 6. They are currently being educated in the local system. The father continues to see them on a regular basis. By virtue of a court order dated the 16 October 2020 the parties have joint custody of all three children, with care and control to the wife and reasonable access to the husband. The order also allowed for the appointment of a Parental Co ordinator and ongoing therapy for the daughter.

6.  It is the wife’s case that both parties each contributed about HK$40,000 per month to a joint account prior to separation and that in addition the husband was responsible for the domestic helper’s salary and her related expenses, the children’s Extra Curricular Activities, extra tuition etc, the cost of any family holidays and other ad hoc purchases for computers and other similar items.

7.  In his affidavit in response dated the 18 December 2020 the husband explains inter alia that

2.   FINANCIAL ARRANGEMENTS PRIOR TO SEPARATION

I have not been able to agree with the Petitioner regarding the monthly amount for our children maintenance because the Petitioner and I are using a different approach to calculate the maintenance amount. I have been paying the amount in consistent with what I was paying for the standard of living enjoyed by the family before the breakdown of marriage;

•   My calculation is based on (a) the financial needs of the children; (b) the standard of living enjoyed by the family before the breakdown of the marriage; Thus, I used the data/transactions based on our Citibank joint account for the 2 years (2017 and 2018) before we filed for our divorce. Both the Petitioner and I had been keeping most if not all records in that joint account (with the exception of some dining expenses and our domestic helper’s salaries)

•   The children’s maintenance which the Petitioner has filed suggested the children’s maintenance cost had an inflation rate of ~208% in 2019. I have repeatedly asked for the details and reasons why costs had increased in 2019/2020 (even during COVID 19 days.

3. MONTHLY CHILDREN'S EXPENSES

I have been spending ~ HK$22,893/month for our children. This amount includes an insurance premium of HK$5,874/month which I will cancel as the Petitioner already has purchased insurance for our children and secondly I have just lost my job. Therefore, taking the insurance premium out, I will continue to contribute to ~ HK$17,000/month.

He continued

MONTHLY EXPENSES

…

b.   The Petitioner has claimed that both sides contribute about HK$40k/month on average. Assuming that is the case, that is a total ~HK$80k/month. While she claimed the children’s expenses were HK$64,857 adding HK$31,000 of mortgage/rate = HK$95,857/month.  The question is how does HK$80,000/month cover HK$95,857/month of expenses? … One can conclude that the numbers are exaggerated or intentionally inflated in 2019 & 2020.

The main issues

8.  It is then against this background that I am now asked to consider the issue of interim maintenance for the three children of the family and whether that maintenance should be backdated.

The law on interim financial support

Interim maintenance

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.

10.  Reference has been made by the wife to the Hong Kong Court of Appeal decision in HJFG v KCY [2012] 1 HKLRD 95 where it was held inter alia 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.”

Discussion

11.  It is the wife’s case that she and the children enjoyed an upper middle class standard of living when the marriage was intact, based in part on the significant earning capacity enjoyed by each party. Thus the parties were able to purchase the matrimonial home and both parties were able to accumulate significant savings. The husband originally owned a Ferrari, which has since been sold, and he also held at least two investment properties. The parties also enjoyed regular overseas travel and the children went to good schools and took part in a range of extracurricular activities.

General expenses

12.  In the wife’s last affirmation dated the 12 January 2021, she compares each parties respective position on general expenses as follows:

11.   A comparison of our respective positions is set out below:-

Monthly General Expenses

Item	Total Amount - (HK$)	Mother (1st Aff)	Mother (2nd Aff)	Father
Rent	0	0	0
Mortgage instalments	28,710	0	0
Utilities (electricity, gas, rates, telephone & water) internet, G’s  mobile telephone	4,107	3,080	2,227	-
Management fees	2,394	1,795	2,394	-
Food (including helper) – adjusted according to Answer (07.08.2020), including dining out	30,000	22,500	22,500	4,500
Household expenses, including maintenance and repair	3,800	2,850	2,850	-
Car expenses	0	0	0	-
Insurance premia for home insurance - fire	300	225	225	-
Domestic helper – (salary, insurance, one flight ticket per contract, bonus & gift)	200	150	6,500	5,000*
Other -
Total monthly household expenses	HK$65,711	HK$30,600	HK$36,696	HK$9,500

* Salary including long term service

13.  It is of note that in the wife’s original affirmation she estimated the general expenses, excluding the mortgage instalments on the former matrimonial home, at HK$30,600 per month. The main difference between this estimate and her final estimate being the cost of food, which had originally risen to HK$30,000 per month and then come down to HK$22,500 per month. I should say at the outset that I consider HK$30,000 per month for food, including eating out, to be rather high, whereas the husband’s estimate of HK$4,500 per month is clearly far too low for a household of two adults and three children. I will allow HK$20,000 per month for food. Thus I estimate the general expenses to be in the region of HK$28,000 per month (rounded up) as set out below.

Item	Total Amount - (HK$)
Rent	0
Mortgage instalments	28,710
Utilities (electricity, gas, rates, telephone & water) internet, G’s  mobile telephone	2,227
Management fees	2,394
Food (including helper)	20,000
Household expenses, including maintenance and repair	2,850
Car expenses	N/A
Insurance premia for home insurance - fire	225
(Domestic helper – (salary, insurance, one flight ticket per contract, bonus & gift))	0
Other -
Total monthly household expenses	HK$27,696

I will consider the domestic helper’s costs under the children’s own expenses. I accept that the husband shall be responsible for half of the children’s share of the general expenses i.e., HK$28,000 x ¾ x ½ = say HK$10,500 per month.

The children’s expenses

14.             The wife further compares each parties respective position on the children’s direct expenses as follows:

Monthly Children’s Expenses

Item	Amount - (HK$)	Mother (1st Aff)	Mother (2nd Aff)	Father
School fees	12,904	12,904	12,904	-
Extra tuition fees	4,172	4,172	3,870	1,500
School books and stationery	1,379	1,379	2,227	-
Transport to school (including school bus)	949	949	1,537	-
Medical / Dental (not covered by insurance)	200	200	200	-
Extracurricular Activities	2,524	2,524	7,289	1,500
Entertainment / presents – include children Christmas presents birthday parties	3,500	3,500	3,500	400
Holiday – including flights, holidays and accommodation + spending money	11,750	-	-	-
Clothing / Shoes (including school uniforms & sports gear)	2,400	2,400	3,000	600
Insurance premia (medical)	3,000	3,000	2,625	-
Lunches and pocket money	1,629	1,629	2,658	220
Child-minding fees	0	-	-	-
Others – transport	1,300	1,300	4,146
Others – donation – Save the Children and church donation	440	-	440
Others – G school laptop	300	300	300
M’s meals with children		-	-	1,600
G’s therapy		Paid separately	Paid separately	1,500
Total monthly children expenses	HK$46,447	HK$34,257	HK$43,848	HK$7,520

15.  The wife’s most up to date schedule of the children’s direct expenses amounts to just under HK$44,000 per month. If one adds in the cost of the domestic helper, the total level of expenditure rises to approximately HK$50,000 per month. I have largely accepted the majority of these expenses, reducing only the provision for holidays largely because no one is really going on holiday at present, (unless staycations are accepted as holidays). In any event, it seems to me that all things being equal both sides should be responsible for their own entertainment/presents for the children and for the costs of their own holidays with them in due course. I have also removed the reference to donations and a laptop for the daughter. There is also an argument with respect to the cost of extra tuition fees and ECA’s and I have reduced these to HK$3,000 and HK$4,500 per month respectively i.e. HK$2,500 per month per child. Thus, it seems to me that the children’s actual expenses including the domestic helper’s costs amount to approximately HK$42,000 per month as follows:

Item	Amount - (HK$)
School fees	12,904
Extra tuition fees	3,000
School books and stationery	1,379
Transport to school (including school bus)	1,537
Medical / Dental (not covered by insurance)	200
Extracurricular Activities	4,500
Entertainment / presents – include children Christmas presents birthday parties	0
Holiday – including flights, holidays and accommodation + spending money	0
Clothing / Shoes (including school uniforms & sports gear)	3,000
Insurance premia (medical)	2,625
Lunches and pocket money	2,658
Child-minding fees	0
Others – transport	4,146
Others – donation – Save the Children and church donation	0
Others – G school laptop	0
G’s therapy
Domestic helper	6,000
TOTAL	$41,949

These expense shall be split equally between the parties – i.e. each party shall contribute HK$21,000 per month.

The husband’s ability to pay 

16.  It seems to me that the husband should be able to pay this sum notwithstanding the fact that on his case he is currently unemployed with little prospect of returning to paid employment. The husband was previously involved with a number of business ventures that centred on the on line travel industry. I accept that given the global pandemic that it is unlikely that the husband will be able to earn money through these sort of ventures in the short term. However, there may be some further opportunities in the medium to longer term. In any event the husband is clearly resourceful, with a number of different business interests including a share in a restaurant in Manila and at least two investment properties in Hong Kong. He also had savings in the sum of approximately HK$5 million, as at the date of his first Form E in January 2020. I also note that both parties are approaching this application on the premise that they should each be contributing towards the children’s expenses equally.

Conclusion

17.  In conclusion then I shall order that the husband do pay interim maintenance of HK$31,500 per month, i.e. HK$10,500 per month per child.

Should this sum be backdated?

18.  Whilst I accept that theoretically both parties should be contributing equally towards the children’s expenses, given the husband’s current financial circumstances, it seems to me that to order that this sum be backdated at this stage could place an intolerable burden on his shoulders. Thus, I shall not make this order at this time. I accept that this issue may need to be revisited either at the Financial Dispute Resolution hearing or at trial, in due course.                         

Costs

19.  The wife has been more successful than the husband and she really had no alternative but to issue the current summons. In such circumstances I intend to exercise my discretion and to make an order nisi to be made absolute in 14 days’ time, that the Respondent shall pay the Petitioner’s costs of and occasioned by this application on a party and party basis to be taxed if not agreed. I shall not order that the costs be summarily assessed or that they be paid forthwith.

Order

20.  Consequently, I shall make an order as follows:

UPON considering the Petitioner’s summons dated the 12 October 2020 by way of a paper disposal

IT IS ORDERED THAT: 

1)  The Respondent do pay interim maintenance for the three children of the family in the sum of HK$10,500 per month per child with effect from the 1 May 2021 and thereafter such sum to be paid on the 1st day of each succeeding month until further order.

2)  The First Appointment hearing shall be adjourned to the 8 June 2021 at 9:30 a.m.

3)  Both parties do personally attend that hearing.

4)  There shall be an order nisi to be made absolute in 14 days’ time that the Respondent shall pay the Petitioner’s costs of and occasioned by this application, on a party and party basis to be taxed if not agreed.