K, KM v. K, H

FCMC 6816 / 2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6816 OF 2016

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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 wife for maintenance pending suit pursuant to s 3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the two children of the family, twin boys who turned four years of age in January, under s 5 of the same ordinance.

The main issues

2.  The main issue to be determined is how much should the husband pay to the wife for her interim provision and that of the children? The husband’s open offer as of the 19 January 2017 states as follows:

Despite your client’s action in seriously jeopardizing his ability to earn an income and pay MPS, our client is prepared to pay the following:

1. He will pay for the children’s school bus (HK$1,240 per month according to your client’s Form E) directly to the school/school bus company.

2. He will pay for the children’s school uniform costs (HK$416 per month according to your client’s Form E) directly to the school/school uniform shop.

3. He will be responsible for all of the children’s school books and stationery (HK$200 per month according to your client’s Form E) and will pay for these directly.

4. There are two mortgages on the Former Matrimonial Home – Account Numbers AA0006XXXX and AA0006XXXX.  He will transfer HK$2,530.04 to your client’s Hang Seng Bank Account Number 2XX-3XXXXX-8XX by the 10^th of each month which will cover the Mortgage Account No. AA0006XXXX which is paid out of your client’s Hang Seng Bank Account around the 13^th of each month.

5. Our client will purchase the food for the cat and dog and will arrange for this to be dropped off at the gates of the Former Matrimonial home on a weekly basis.  Your client has not given a breakdown of this monthly expenses in her Form E and has included it as part of her food expenses of HK$7,000 per month.

On our client’s offer, he will therefore be responsible for HK$4,386.04 per month plus the cat and dog food.

The wife for her part now seeks HK$30,960 per month for herself and the children. Initially she sought HK$19,400 per month.

The wife’s summons

3.  In the wife’s summons dated the 5 October 2016 she set out her initial claim as follows:

1. The Petitioner do pay to the Respondent interim maintenance for the benefit of the Respondent and the children of the family, namely AKK, a boy born on XX January 2013 and ZKK, a boy born on XX January 2013 in the sum of HK$19,400 per month or such other sum as deemed fit by the Court;

Background 

4.  The parties married on the XX February 2004 and separated in October 2015. The divorce petition was issued shortly thereafter, on the 3 June 2016, based on fairly mild unreasonable behaviour particulars. Notwithstanding that the wife cross petitioned on the basis of the husband’s alleged unreasonable behaviour and adultery. Thankfully that part of the case now appears to have been resolved and the wife’s Answer and Cross petition was amended on the 8 December 2016. It is hoped that the parties will now be able to proceed with the divorce itself on a more consensual basis.

5.  The main thrust of the dispute between the parties relates to the twin boys. Given the sensitive nature of that dispute I do not intend to dwell on the details surrounding their birth in this particular judgment. Suffice it to say that the level of conflict between the parties is extremely high and that access arrangements have been very problematic.  

6.  The husband is 37 years old and the wife is 39 years old. Until recently both were employed as part time interpreters for various Government departments including the Judiciary, the Police and the Duty Lawyer Convention Against Torture Office (CAT). It seems that the husband and his new partner are presently being investigated by the ICAC for alleged bribery. It is the husband’s case that the wife has instigated this complaint and that it will have a serious effect on his ability to earn going forward, certainly in the immediate to short term. He has been told for example that he will not get any work from CAT until the investigation has been concluded. He fears that other government departments may follow suit. I accept that his concerns in this respect are valid. It has been suggested that the husband should be able to get work in the private sector – although this is a possibility I accept that historically that has not been the case and that in any event a shift of this nature is likely to take some considerable time.  

The law

Maintenance pending suit

7.  The law is well known and not in dispute. Section 3 MPPO 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 hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing.

8.  Both sides have referred inter alia to the Court of Appeal decision in HJFG v KCY (CACV 127/2011, 28 October 2011, where the following principles were reiterated with respect to maintenance pending suit/interim maintenance applications:

a. The sole criteria to be applied in determining the application is “reasonable” which is synonymous with “fairness”.

b. A very important factor in determining fairness is the marital standard of living.

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.

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 situation, the Court should err in favour of the payee.

How much maintenance should the husband pay to the wife as maintenance pending suit for herself and interim maintenance for the twins?

9.  In essence the wife’s case is that the husband should pay 50% of the twins costs. In her affidavit dated the 23 November 2016 she states as follows:

20. I have requested many times for the Petitioner to take responsibility for at least 50% of the children’s expenses, the mortgage and his own student loan, but he has unreasonably refused.  The Petitioner has repeatedly told me that he will not pay for any of the children’s expenses nor the mortgage or any of the household expenses because he no longer spends long period of time with the children and that he does not live in the former matrimonial home.

Given that the wife is working and that she is receiving some financial support from her family, I intend to concentrate on the reasonable needs of the twins in this judgment. Save for a couple of caveats it seems to me that the wife should be responsible for her own personal expenses and her share of the general household expenses. This also seems to be a sensible approach given that the wife is legally aided.

10.  The husband for his part maintains that he can only afford what he has proposed in paragraph 2 above. This offer was made after the recent complaint was made to the ICAC.

The reasonable needs of the parties and the husband’s ability to pay

The reasonable needs of the twins

11.  In her Form E dated the 23 November 2016 the wife set out her budget as follows:

Part 4 Current Monthly Expenses
4.1    General

Item	Amount (HK$)
Rent	N/A
Mortgage instalments	10,600
Utilities (electricity, gas, rates, telephone & water)	4,080
Management fees	1,300
Food (2 adults, 2 children, a dog and a cat)	7,000
Household expenses	5,000
Car expenses	3,000
Insurance premia (car HK$250 per month and house insurance HK$167 per month)	417
Domestic helper(s)	4,210
Other (specify)	N/A
Total monthly household expenses	HK$35,607

Attach copies of the latest rental receipt.

4.2    Personal

Item	Amount (HK$)
Meals out of home	880
Transport (MTR and bus/cab)	1,585
Clothing / Shoes	2,000
Personal grooming (including haircut and cosmetics)	500
Entertainment / presents	500
Holiday (two trips a year approximately HK$4,000 each time)	666
Medical / Dental	300
Tax	0
Insurance premia	N/A
Interim maintenance	N/A
Contribution to parents	N/A
Dependent family members	N/A
Other (specify) credit card instalments for AKK’s loan through my credit card for his student loan	1,975
Total monthly personal expenses	HK$8,406

4.3    Children

Item	Amount (HK$)
School fees	N/A – Government subsidy
Extra tuition fees	N/A
School books and stationery	200
Transport to school (including school bus)	1,240
Medical / Dental	500
Extra Curricular Activities	100
Entertainment / presents (Jumping Gym, Ocean Park, Disneyland)	3,000
Holidays	N/A
Clothing / Shoes	2,000
Insurance Premia	N/A
Lunches and pocket money	N/A
Other Transport	500
Child-minding fees	N/A
Uniform	416
Others (specify):	N/A
Total monthly expenses for children	HK$7,956
Total Monthly Expenses (4.1 + 4.2 + 4.3)	HK$51,969

12.  The husband for his part sets out his expenses in his Form E of the same date as follows:

Part 4 Current Monthly Expenses
4.1    General

Item	Amount
Rent	7,800
Mortgage instalments	N/A
Utilities (electricity, gas, rates, telephone & water)	1,000
Management fees	N/A
Food	2,000
Household expenses	500
Car expenses including petrol	5,000
Insurance premia	N/A
Domestic helper(s)	N/A
Other (specify) Loan repayments	4,426.70
Mobile phone	220.00
Total monthly household expenses	HK$20,946.70

Attach copies of the latest rental receipt.

4.2    Personal

Item	Amount
Meals out of home	2,500
Transport (in addition to car expenses)	500
Clothing / Shoes	1,000
Personal grooming (including haircut and cosmetics)	200
Entertainment / presents
Holiday
Medical / Dental
Tax
Insurance premia
Interim maintenance
Contribution to parents
Dependent family members
Other (specify)
Total monthly personal expenses	HK$4,200.00

4.3    Children

Item	Amount
School fees (average paid October – November 2016)	1,025
Extra tuition fees	N/A
School books and stationery	N/A
Transport to school (including school bus)	N/A
Medical / Dental	N/A
Extra Curricular Activities	1,000
Entertainment / presents (spent during my access)	1,600 *
Holidays	*
Clothing / Shoes	1,000
Insurance premia
Lunches and pocket money
Other Transport	(included in car expenses)
Child-minding fees
Uniform
Others (specify):
Total monthly expenses for children	HK$4,625.00
Total Monthly Expenses (4.1 + 4.2 + 4.3)	HK29,771.70

The wife’s general household expenses

Mortgage instalments

13.  The parties own the matrimonial home as joint tenants. However, the husband has not contributed towards the mortgages for a considerable period of time. In the circumstances it seems to me that longer term the parties should each contribute towards half of this expense. Notionally therefore I accept that the husband should pay HK$5,300 per month to cover his half share of both mortgages. In the short term though this payment shall be suspended pending the outcome of the ICAC investigation.

The husband’s student loan

14.  Likewise I also accept that the husband should reimburse the wife for his student loan in the sum of HK$1,975 per month. However, I will also suspend this payment pending the outcome of the ICAC investigation. At the end of the day this payment may become a capitalized sum that should be paid to the wife as part of any final agreement or order on ancillary relief. 

The wife’s other expenses

15.  Although the husband challenges some of the other general expenses, in the main these seem fairly reasonable. I will though reduce the household expenses to HK$3,000 per month. I will also take out the domestic helper expenses and place this item under the children’s expenses column. In total then the remaining general expenses of the wife amount to just under HK$18,800 per month. Of that one third will be directly attributable to the wife and she shall be responsible for her own share of the household expenses in the sum of HK$6,265 per month. The remaining two thirds being the general expenses for the twins shall be split equally between the parties equally.

The twin’s direct expenses

16.  In the submission from the wife’s counsel she said as follows about the children’s school expenses:

19. The Wife wishes to clarify that although her Form E states that the school fees are covered by the government subsidy, in fact the Children’s school fees are $665 per child per month.  The Children’s expenses should therefore, be $9,286 not including their share of accommodation / general expenses.

17.  Thus the up to date table for the children’s expenses should read as follows:

4.3    Children

Item	Amount (HK$)
School fees	1,330
Extra tuition fees	N/A
School books and stationery	200
Transport to school (including school bus)	1,240
Medical / Dental	500
Extra Curricular Activities	100
Entertainment / presents (Jumping Gym, Ocean Park, Disneyland)	3,000 *
Holidays	N/A *
Clothing / Shoes	2,000
Insurance Premia	N/A
Lunches and pocket money	N/A
Other Transport	500
Child-minding fees	N/A
Uniform	416
Others – Domestic helper	4,210
Total monthly expenses for children	HK$13,496

18.  Of those expenses I will take out of the equation the reference to entertainment. Each party shall be responsible for their own entertainment costs with the children. Likewise, holidays – as and when that becomes a relevant consideration. (I will mark those items with an * in the table). I also accept that the figure for clothes and shoes is a little on the high side and I will reduce that to HK$1,500 per month.  In total then I accept that the cost for the children, including the cost of the domestic helper amounts to just under HK$10,000 per month as follows:

4.3    Children

Item	Amount (HK$)
School fees	1,330
Extra tuition fees	N/A
School books and stationery	200
Transport to school (including school bus)	1,240
Medical / Dental	500
Extra Curricular Activities	100
Entertainment / presents (Jumping Gym, Ocean Park, Disneyland)	N/A *
Holidays	N/A *
Clothing / Shoes	1,500
Insurance Premia	N/A
Lunches and pocket money	N/A
Other Transport	500
Child-minding fees	N/A
Uniform	416
Others – Domestic helper	4,210
Total monthly expenses for children	HK$9,996

19.  I accept that each party should be responsible for half of those costs – or HK$5,000 per month. Thus the husband shall pay HK$2,500 per month each for the children’s actual expenses. This payment shall not be suspended. In total then the husband shall pay HK$11,000 or HK$5,500 per child per month (i.e. HK$6,265 + HK$5,000 = HK$11,265 say HK$11,000).  

Can the husband afford to pay this sum?   

Each party’s income

20.  There is some dispute about the husband’s actual income especially since the ICAC investigation began. According to his solicitor his current monthly income, prior to the investigation was HK$33,852.50 per month. The wife disputes this and maintains that he has an earning capacity of at least HK$65,000 per month and referred to his tax bill for 2014/15 in that regard. According to her own counsel’s submission however his actual income since separation is put at a similar figure of HK$33,822 per month. Thus in broad terms I accept that prior to the ICAC investigation the husband was able to earn at least HK$33,800 per month. In the short term I also accept that the husband’s ability to earn may be hampered by the current access arrangements, which includes access on Tuesday and Thursday afternoons.    

21.  The wife’s own income is also not agreed. Counsel for the wife put her income over the same period as the husband at HK$23,800 per month ((November 2015 – December 2016). The husband maintains that she can earn more. In addition, the husband’s lawyers have reiterated the fact that the wife appears to have received some financial support from other family members.

22.  It seems to me that the investigation by the ICAC is very unfortunate to say the least. If it is later found that the wife did report the husband, and that this report was without substance, then this is something that the court is likely to take a very dim view of. It may also have ramifications with respect to costs and generally.

23.  In the meantime I am proceeding on the premise that each party has the ability to earn a reasonable salary and that each may have other financial resources at their disposal. They have ultimately chosen to have two children together. They must therefore do everything within their power to ensure that the children’s basic financial needs are met. I also accept that the husband may be able to make other arrangements for his accommodation which in turn may be more cost effective. The wife believes that he is living with his new partner and not his father as alleged. In such circumstances and on a broad brush basis I can see no reason why each party should not be equally responsible for the costs of the children whilst they are in the wife’s primary care.        

Conclusion 

24.  I will therefore make an order that going forward the husband pay HK$ 7,275 per as maintenance for the wife, HK$5,300 being his contribution towards the mortgage and HK$1,975 being his student loan plus HK$5,500 per month per child as maintenance for the twins. As indicated above the maintenance for the wife and the repayment of the student loan shall be suspended pending further order.

Costs

25.  Given the controversy surrounding the allegation that the wife has reported the husband and his new partner to the ICAC, I shall reserve costs for argument. There shall be legal aid taxation of both parties own costs. There shall also be certificate for counsel.

Order

26.  I shall therefore make an order as follows:

1) The Petitioner shall pay maintenance pending suit to the Respondent for herself in the sum of HK$7,275 per month, such payment to be suspended pending further order.

2) The Petitioner shall pay interim maintenance to the Respondent for the two children of the family in the sum of HK$5,500 per month per child the first payment to be made on the 1 March 2017 and thereafter to be paid on the 1^st day of each succeeding month until further order.

3) Costs shall be reserved for argument. Both party’s own costs shall be taxed in accordance with Legal Aid Regulations. There shall be certificate for counsel.

4) There shall be liberty to apply in relation to order 1).

5) The First Appointment hearing shall be adjourned to the 24 May 2017 at 9:30 am.

6) Both parties do personally attend that hearing.