C, N v. L, W

FCMC 3765/2022

[2024] HKFC 62

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 3765 OF 2022

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J U D G M E N T
(Master’s Appeal on Interim Maintenance)

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1.  This is a hearing of the Respondent Father (“the Father”)’s appeal against the interim maintenance order of Master Yeung of the Family Court on 26 October 2023 (“the IM Order”), in which the learned Master ordered the Father to pay HK$18,000 per month as interim maintenance (“IM”) for the 2 children of family with costs.

2.  The Petitioner Mother (“the Mother”) opposed the appeal.

3.  After considering the parties’ submissions, I order that the IM order of Master Yeung dated 26 October 2023 to be replaced by the following orders:

(1)  The Father shall pay interim maintenance for the 2 daughters of the family at the rate of HK$13,000 per month (HK$6,500 each) payable on the 1^st day of every month starting from 1 November 2023 until further order of the court;

(2)  Such payment is to be made into the Mother’s HSBC account; and

(3)  There shall be no order as to costs, including the costs of this appeal, costs before the learned Master and other reserved costs, if any.

4.  These are my reasons.

Brief Background

5.  The parties were married in the year of 2012. Within wedlock, 2 children were born:

(1)  Elder Daughter (“M”), now aged 6; and

(2)  Younger Daughter (“L”), now aged 4.

By an order made by HH Judge Elaine Liu on 15 December 2023, both daughters are now under the interim sole care and control of the Mother with interim defined access to the Father.

6.  On 20 May 2022, the Mother issued the present petition for divorce based on behaviour, with a decree nisi of divorce being granted on 5 March 2024.

7.  On 22 May 2023, the Mother issued a Form 8 which was treated as an application for IM for the 2 children of family, which was subsequently fixed for argument before Master Yeung on 26 October 2023. After hearing submissions, Master Yeung ordered the Father to pay HK$18,000 per month as IM for the 2 children, payable on 1^st day of every month starting from 1 November 2023, and with costs.

8.  On the same day, the Father issued his Notice of Appeal against Master Yeung’s IM order, asking for the IM of the 2 children to be set at HK$8,000 per month. The Father’s appeal was fixed before this court for argument.

Master’s Appeal

9.  Master’s appeal before a Judge is by way of re-hearing, and the Judge treats the matter as though it came before him for the first time: O.58 r.1 The Rules of the District Court, Cap. 336H and Hong Kong Civil Procedure 2024 §58/1/2.

Legal Principles on IM

10.  In HJFG v KCY[1], Hartmann JA, at paragraphs 37 and 38 of the judgment, gave a succinct summary of the law in this area by referring to the judgment of Mostyn QC, sitting then as a Deputy Judge of the High Court in England, in TL v ML [2006] 1 FLR 1263, 1289:

“37. The principles that have been 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 assumption 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 application for interim maintenance, when the amount to be paid is for a limited period only and not all 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.”

11.  Therefore, the overriding considerations for such applications are reasonableness and fairness. In order to achieve these objectives, the Court has to balance the reasonable needs of the applicant and the ability to pay of the respondent on an interim basis: LJ v LWHH [2003] 3 HKC 455 at 461D.

12.  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.

The financial circumstances of the Mother and interim reasonable needs of the Children

13.  In the Mother’s latest Form E dated 9 November 2023, she stated her occupation as a Senior Operation Manager in an investment company with a monthly income of HK$72,875. She has cash of about HK$317,587.10 in bank. She also has some other assets for a few hundred thousand dollars but they are in the form of insurance policies or pension/MPF which are not readily realisable.

14.  For the Mother’s expenses, they include:

Current Monthly Expenses

General

Item	Amount
Rent	HK$19,000
Utilities (electricity, gas, rates, telephone & water)	HK$2,500
Food	HK$7,000
Household expenses	HK$2,000
Domestic helper	HK$5,200
Total monthly household expenses	HK$35,700

 

Personal Expenses

Item	Amount
Meals out of home	HK$2,500
Transport	HK$1,200
Clothing/shoes	HK$500
Personal grooming (including haircut and cosmetics)	HK$500
Entertainment/presents	HK$300
Holiday	HK$2,000
Medical/Dental	HK$200
Others: Gym HK$895             Pension/MPF HK$1,500	HK$2,395
Total monthly personal expenses	HK$9,595

 

Children

Item	Amount
School fees (elder daughter: HK$142,813/year)               (younger daughter: HK$135,906/year)	HK$23,226.58
Extra tuition fees	HK$300
Transport to school (MTR)	HK$400
Extra Curricular Activities	HK$7,000
Entertainment / presents	HK$1,000
Holidays	HK$5,000
Clothing / Shoes	HK$800
Lunches and pocket money	HK$1,456
Other Transport	HK$200
Uniform	HK$250
Total monthly expenses for children	HK$39,632.58

Total Monthly Expenses

HK$84,927.58

15.  From the above tables, the Mother is having a monthly deficit of about HK$12,052.

The financial circumstances of the Father

16.  In the latest Form E of the Father dated 25 April 2023, he stated his occupation as “freelance” and he was “self-employed” with an average monthly income of HK$29,000. He had net assets in the sum of HK$2,881,466.75 being made up of:

	Assets	Value
(1)	Matrimonial Home (former)	HK$3,988,157
(2)	Various bank accounts	HK$440,040.1
(3)	Value in stocks	HK$530,017.26
(4)	Value of insurance policies	HK$496,940.75	HK$5,455,155
	Liabilities
(5)	Borrowing from relative	HK$630,690.39
(6)	Credit card	HK$63,176.15
(7)	Loan from parents	HK$1,877,685.06
(8)	Another credit card	HK$1855.46
(9)	Another credit card	HK$281.3	HK$2,573,688
		Net Assets:	HK$2,881,466

17.  For his expenses:

Current Monthly Expenses

General

Item	Amount
Rent	HK$22,000
Mortgage instalments	HK$9,110       HK$10,481.90
Utilities (electricity, gas, rates, telephone & water)	HK$1,200
Management fees	HK$300
Food	HK$4,000
Household expenses	HK$500
Insurance premia	HK$2,407.43
Total monthly household expenses	HK$49,999

 

Personal Expenses

Item	Amount
Meals out of home	HK$2,400
Transport	HK$500
Clothing/shoes	HK$500
Personal grooming (including haircut and cosmetics)	HK$500
Entertainment/presents	HK$800
Holiday	HK$1,000
Medical/Dental	HK$500
Contribution to parents	HK$11,384     (10,000 RMB)
Total monthly personal expenses	HK$17,584

 

Children

Item	Amount
School fees	HK$8,154.5
Extra Curricular Activities	HK$2,500.5
Holidays	HK$1,000
Clothing / Shoes	HK$400
Insurance premia	HK$1,916
Other Transport	HK$300
Others: Gift	HK$500
Total monthly expenses for children	HK$14,771

Total Monthly Expenses

HK$82,354

18.  In court, the Father supplemented by saying that his income has been considerably reduced due to the fact that he had suffered a stroke and the worsening of trade relationship between China and the west. He said his parents were helping him to pay the mortgage. He could not pay the IM at HK$18,000. As could be seen from his Notice of Appeal, he requested the IM to be set at HK$8,000 per month.

Discussion

19.  Despite the Father’s claim that he has been suffering from serious medical conditions (a stroke causing him to have hearing problem), I note that he could produce no medical evidence in this regard. The same could be said of his income. Moreover, if one should look at his expenses, there were 2 items of mortgage payment. One was for the former matrimonial home in Shanghai. The other is for, according to the Mother and which was not denied by the Father, an apartment which was registered in the names of the Father’s parents. In other words, the Father was paying the mortgage payments for his parents as well. I am not satisfied that the Father was in such a precarious financial situation as depicted by him. I am minded to treat him to have at least a monthly income of HK$29,000.

20.  But even with this income of HK$29,000, it is unlikely that he could afford to maintain a life style with expenses at HK$82,354, whilst at the same time, accumulate assets in the form of buying the former matrimonial home in Shanghai and the other investments in stocks. It is likely that the Father was receiving financial assistance from his relatives, most probably from his parents. That is be why he stated he owed some loans to a relative and his parents in his Form E.

21.  I do not accept the table of expenses put forward by the Father is reasonable. As I said, there was no way he could have afforded a life style with monthly outgoings at HK$82,354. Some of the items must have been inflated or unnecessary. For example, if the Father is renting an apartment at HK$22,000 per month, he should not keep the former matrimonial home in Shanghai, which could be sold with proceeds being utilized towards the maintenance of the 2 children. Equally, the payment on insurance could be saved if the Father is claiming that he has difficulty in paying children maintenance. The contribution to parents is also disingenuous. Obviously, the Father was receiving contribution from his parents, and not the other way round. The part on school fees could also be saved because they are now covered by the Mother’s budget. All in all, I do not accept the table is giving a true picture of the Father’s monthly expenses.

22.  As to the Father’s ability to pay, I will take into account that he did offer to pay HK$30,000 per month as children maintenance by his solicitors’ letter dated 18 January 2023, which was reduced to HK$13,000 shortly afterwards on 6 February 2023. Both figures were offered not that long ago and were well above the Father’s current offer of HK$8,000 per month.

IM to be paid

23.  After balancing the needs of the 2 daughters and both parties’ income and financial resources, I am mindful to grant an IM order in the sum of HK$13,000 per month. By this sum, the Mother will have about HK$85,000 per month as disposable income, which should be enough to cover the family’s expenses at least in the interim period. As for the Father, it is within his ability to pay, but even if not, I am sure that his parents would certainly provide assistance, as they have always done in the past.

Conclusion and Order

24.  Based on the above discussion, I now order that the IM order of Master Yeung granted on 26 October 2023 to be replaced by the following orders:

(1)  The Father shall pay interim maintenance for the 2 daughters of the family at the rate of HK$13,000 per month (HK$6,500 each) payable on the 1^st day of every month starting from 1 November 2023 until further order of the court; and

(2)  Such payment is to be made into the Mother’s HSBC account.

Costs

25.  I note that both parties are acting in person and the Father is successful only in part of this appeal. The costs order before Master Yeung is set aside. There shall be no order as to costs, including the costs of this appeal, costs before Master Yeung and other costs previously reserved, if any.

Representation: