Scf v. Vjd

FCMC 9340 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9340 OF 2014

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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 Petitioner 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 girls who were born in May 1996 under s.5 of the same ordinance.

2.This case has shifted as it has progressed. The matter first came before me on the 2 July 2015 on the wife’s summons dated the 20 May 2015 for maintenance pending suit for herself only. It later transpired, during the course of the hearing, that she was also seeking interim maintenance for the two children of the family, E and C. The wife’s stance was that it was clear from her affidavit that this was the case, whereas the husband’s barrister took the view that she had originally been seeking maintenance for herself only. In order to avoid any confusion the matter was adjourned to the 10 August, leave was given for the wife to amend her summons to specifically include a request for maintenance for the girls and both parties were given an opportunity to file further affidavit evidence.

3.In the intervening period the husband has accepted a new job in Singapore with an increased salary.

The central issue

4.The central issue in this case concerns interim interim financial support for the wife. The wife is now aged 51 years of age and the husband will turn 51 years old next month. It is accepted that both parties worked during the course of the marriage, the wife in the field of education and real estate and the husband in publishing and communications and they both contributed towards the family expenses, although there is dispute about the level of each party’s respective contribution. Unfortunately both girls have some psychological issues. E has had difficulties in the past, but not withstanding that began university in September 2014 and is due to begin her second year shortly. C however deferred for a year. She suffers from an eating disorder and is also on medication for depression. She has also self harmed and has some additional anxiety issues. It is the mother’s case that she will need to accompany C in the United Kingdom for at least 3 – 6 months, possibly longer, in order to provide her with the additional emotional support that she needs. Consequently she is seeking maintenance pending suit from the husband in order to assist her financially during this period. She accepts that in due course she will need to return to work. She says that it may take up to a year for her to find an alternative job.

5.The husband for his part says that the wife should only need to go to the UK for about six weeks and that if C needs more support than this then perhaps she is not ready to go to university. He reiterates that the wife has an earning capacity and one that she needs to realize quickly.

6.There are also issues with respect to the financial support provided by the husband in the past and the necessity or otherwise for the wife’s levels of debt. The husband says that he has provided for his family historically and that he will continue to do so in the future. The wife says that this is simply not the case.

7.There is also a sense of urgency with this matter given that the wife hopes to go with the girls to settle them into the United Kingdom on about the 11 or 12 September.

Background 

8.By way of background I should add that the parties married in  August 1997 and separated in September 2009, but continued to live under the same roof until recently when the former matrimonial home was sold. It was agreed that the parties would share the deposit from the sale equally, with each of them receiving just under HK$500,000 each. The wife says that she has since spent that sum and is now in urgent need of financial support for at least the next three months and for possibly up to a year. She also seeks interim financial support for the girls.  

The law

Maintenance pending suit

9.The law is well known and not in dispute. Section 3 MPPO Cap192 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 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, if there has been no agreement before hand. It is of note that this matter is due to come back before me on the 4 September 2015 for a FDR hearing.

10.The husband’s barrister in the first hearing has also referred to the Court of Appeal case namely 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.

11.In so far as this particular case is concerned the reference to the ability of the husband to pay is particularly pertinent. 

Should the wife go to the United Kingdom in September with C? If so how long should she stay for? What would be considered reasonable in the circumstances?

12.I accept that it is entirely reasonable for the mother to accompany both girls when E returns to the UK for her second year of university and C begins her course of study. I accept that this will be a pivotal time for C and that she is likely to need additional support during this period. It will be necessary to ensure for example that she has the assistance of professionals on the ground including a treating psychiatrist and a psychologist who can provide ongoing therapy. Although registering with a “disability service” is a start, as pointed out by the father, it may not be enough. Although it is true that C may not be ready to commence university, it is also true that only time will tell and that at some point it seems sensible for her to attempt to make the transition. In such circumstances I will make an order for maintenance pending suit for the wife. I will expect it to cover the period from now until Christmas and possibly beyond depending on C’s progress and the wife’s ability to find remunerative employment over and above her role in the real estate business   

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

13.The husband has offered to pay the wife HK$20,000 per month until the FDR hearing. In addition he says that he will undertake to pay for the cost of the girls university fees, (between GBP9,000 – GBP12,000 per annum each), their accommodation at university (approximately GBP3,000 per annum each), their flights back to Hong Kong (approximately GBP3,000 per annum each) and HK$4,000 per month each in cash to cover their spending.

14.The wife says that in the past there have been arguments with respect to actual payments made by the husband and that she has had to rely on her sister to make some payments for the girls on her behalf. She says that she has had no option but to get into debt as she has relied on credit cards when income became insufficient. Putting these arguments to one side for the moment, I will accept for the time being the husband’s undertaking to make these payments for and on behalf of the girls. In total this amounts to approximately HK$19,000 per month per child on the premise that the university fees are GBP9,000 each and using an exchange rate of GBP1:HK$12.

15.In addition the wife seeks just over HK$50,000 per month to cover her expenses in the United Kingdom plus an additional sum to cover essential expenses in Hong Kong. In her original estimate of expenses in Hong Kong she said that she needed HK$99,150 per month. The difficulty with that is that there has clearly been some overlap between the two schedules of expenses. I will allow HK$30,000 to cover the essential expenses in Hong Kong – i.e. the rent (HK$19,000), utilities (HK$1,500 rounded down), maid (HK$5,300) and hire purchase agreement for the car (HK$4,000).

16.In so far as expenses in the United Kingdom are concerned I will allow an additional HK$30,000 per month. I have not allowed the wife’s estimate for car hire and petrol (in the circumstance it seems to me that she will need to take public transport), and I have reduced the amount she seeks for other items.    

Can the husband afford to pay this sum?

17.The husband has just begun a new job in Singapore. There was some dispute about his remuneration package. However what is clear is that his base salary is SGD305,000 per annum or HK$1,830,000 per annum = HK$152,500 per month. In addition his housing is paid for and he has received a relocation allowance. I accept that he will not receive any bonus or incentive payment in the short term. Thus he has the sum of HK$152,500 per month available. This is over double his salary from before. In such circumstances it seems to me that the husband should be able to afford to contribute just under HK$80,000 per month in total towards the mother’s expenses and those of the two daughters in the immediate to short term. I accept that this level of contribution should not last for more than a year. I have also taken into account the fact that he also has some cash available from his share of the deposit from the sale of the matrimonial home.

Costs

18.Given that the wife had no option but to make this application and that she has been more successful than the open offer made by the husband I shall make an order nisi that the husband shall pay the wife’s costs of this application on a party and party basis to be taxed if not agreed.

Order

19.Upon the Respondent’s undertakings as set out in paragraph 13 above

1)  The Respondent shall pay maintenance pending suit to the Petitioner for herself in the sum of HK$60,000 per month, the first payment to be made on the 1 September 2015 and subsequent payments to be paid on the 1st day of each succeeding month until further order.

2)  There shall be an order nisi to be made absolute in 14 days time that the Respondent do pay the Petitioner’s costs on a party and party basis to be taxed if not agreed. 

Mr. S Hughes instructed by Oldham, Li & Nie for the Petitioner

Mr. P Barnes instructed by and Mrs Casewell of Boase Cohen & Collins for the Respondent