Ybk v. Clhd

FCMC 456/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 456 OF 2015

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J U D G M E N T
(Interim Maintenance)

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1.This is a hearing of the respondent wife (hereinafter called “the wife”)’s application for the daughter’s interim maintenance against the petitioner husband (hereinafter called “the husband”).

Brief History

2.The parties were married in 2000.

3.Within wedlock, they have a daughter, a secondary school student now aged 15, who is residing with and being looked after by the wife.

4.The parties had a previous litigation on divorce back in 2005 (FCMC 10180/2005) and they were separated as from that time.   The case was eventually dismissed by consent in 2006 but the parties have never resumed cohabitation thereafter.

5.On 12 January 2015, the husband issued his petition for divorce based on 2-year separation.   The wife raised objections to some of the information in the petition upon which amendments were subsequently made by consent.  As at the date of this hearing, the decree nisi of divorce has yet to be made.

6.On 22 July 2015, the wife issued a Notice of Application for Ancillary Relief, asking for an order of maintenance pending suit against the husband. By this, I suppose she meant an order of interim maintenance for the benefit of the daughter. As the parties failed to reach any agreement at the directions hearing, the wife’s application was therefore adjourned to today for argument.

The Law on Interim Maintenance

7.For the interim maintenance of a child, the governing section is s.5 of the Matrimonial Proceedings and Property Ordinance, Cap. 192(“MPPO”) (which provides for the maintenance of a child), to be read together with r.78 of the Matrimonial Causes Rules, Cap.179A (which empowers the Court to grant an interim order upon the application for ancillary relief).

8.The overriding consideration for such applications is reasonableness. 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).

9.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 (per Cheung JA in LAML v TCCY CACV75/2004, 13/9/2004 at pp.7-8).

10.I do not think the above general principles are in dispute.

The Wife’s Financial Position and Her Claim

11.The wife is now aged 59, a Marketing Manager by occupation earning a monthly income of about $61,250. She is now residing with the daughter and a domestic helper at a flat in Causeway Bay (“the Causeway Bay Property”) which was purchased in the joint names of the parties with an estimated net value at about $9,792,701.63.    It is the wife’s case that the equitable interest in the whole of the Causeway Bay Property should belong to her.  In her Form E, the wife has listed out her present assets and liabilities as follows:

Assets	Value
(1)Causeway Bay Property	$9,792,701.63
(2)Cash in banks	$506,912.29
(3)Shareholdings in private company	$1.00
(4)Interest in stockholdings	$29,500
(5)Interest in insurance policies	$554, 061.86
(6)Interest in debts owed to her	$150,000
(7)Valuable personal items	$32,000
(8)Value of pensions	$460,000
	$11,525,176.78
Less
(9)Liabilities	$1,331,089.91
Net Assets:	$10,194,086.87

12.As to her monthly outgoings, the figures quoted in her Form E were about $91,752.79 and they were made up of the following items:

General
Mortgage instalments	$9,985.79
Utilities	$5,847
Management fees	$820
Food	$5,000
Household expenses	$2,000
Insurance premia	$300
Domestic helper	$4,200
Other	$12,000	$40,152.79
Personal
Meals out of home	$3,000
Transport	$2,000
Clothing/Shoes	$2,000
Personal grooming	$2,000
Entertainment/presents	$2,500
Holiday	$3,000
Medical/Dental	$1,000
Tax	$7,000
Insurance premia	$1,800
Others	$1,000	$25,300
Child
School books and stationery	$500
Transport to school	$1,500
Medical/Dental	$600
Extra-curricular activities	$12,000
Entertainment/presents	$500
Holidays	$3,000
Clothing/Shoes	$1,000
Insurance premia	$4,000
Lunches and pocket money	$1,500
Other transport	$200
Uniform	$200
Others (Ref. books and cat food)	$1,300	$26,300
Grand Total:		$91,752.79

13.At today’s hearing, Ms Chong for the wife revised the expense on the daughter’s insurance to $404.90, therefore adjusting the expenses of the daughter down to 22,704.90. It is now the wife’s case that the daughter’s total monthly expenses are $42,781.30 ($20,076.40 (being half of the general expenses) + $22,704.90 = $42,781.30).  

14.The wife further claims that as she only have a monthly income of about $61,250, she is now in a dire financial situation incurring a monthly deficit of about $30,000.00.  It is her case that the husband has stopped paying the daughter’s maintenance since about 2005 and it is now time for him to shoulder his financial responsibilities towards the maintenance of the daughter.  

15.In her oral submission this morning, Ms Chong referred me to a number of the husband’s account statements pointing to the fact that the husband did sell his landed property in October 2014 realising a sum of about $2,600,000 cash.  However, after the said sale, the husband had paid out various sums of money under the pretexts of repaying loans from banks and friends.   It is the wife’s case that as the husband has failed to provide credible evidence to prove those loans and their repayments, the court should draw an adverse inference against the husband by holding that he is currently hiding some of his assets without disclosing the same in this litigation.   Therefore, the wife asks this court to rule that the husband is in a position to pay a monthly sum of $21,400 (being about half of the daughter’s total monthly expenses of $42,781.30) as the daughter’s interim maintenance pending the final adjudication of the wife’s application for ancillary relief against the husband.

The Husband’s Financial Circumstances and His Argument

16.The husband is now aged 69.   According to him, he has been suffering from bad health for quite a long time.  A letter from Dr Shek was produced without objection showing that the husband is currently suffering from Type 2 diabetes, hypertension, atherosclerotic arterial diseases, coronary heart disease, and cerebral stroke for over 10 years.  He has even developed kidney failure and metabolic acidosis recently. Judging from those uncontested medical evidence, I am satisfied that the husband is indeed suffering from very serious health problem and is need of constant medical care.   As a result, I am inclined to accept his assertion that he is not in a position to work and therefore has no income.

17.The husband does not dispute that he has received the sale proceeds of about $2,600,000 in about October and November 2014, but he said most of those proceeds were used to repay the bank loans and previous loans from a friend Mr Wong. Some of the money was also used for his daily living and medical care in the past year or so.  According to his Form E, he now only has about $440,000 in his bank accounts.   

18.As to his assets, there seem to be some inconsistencies in his Form E.  At page A58 of the Bundle, the husband stated that his interest in the Causeway Bay Property is $9,000,000.   However, in the assets and liability schedule at page A66 of the Bundle, he stated his interest to be $5,000,000.   In any event, I think what the husband was trying to say was that apart from the Causeway Bay Property and the cash in bank, he had no other valuable assets.

19.As to the monthly needs of the husband, he stated in his Form E that they amounted to $34,000.  I do not see the wife is raising any serious challenge to those figures and therefore I do not intend to go into the details of the husband’s expenses.  After all, the wife is saying that she is spending about $91,000 per month on herself and the daughter and it would therefore be difficult for her to criticize the husband’s expenses as being unreasonable.

20.As the husband is relying on the cash deposit of $440,000 for his daily living and medical care, coupled with his assertion that there is no urgency in this interim maintenance application, he objects to the making of an interim maintenance order in favour of the daughter at this stage.

My Views

21.After considering all the circumstances of the case and the evidence received so far, I am afraid that an interim maintenance order for the daughter will not be made at this stage.   My conclusion is based on the following reasons:

(1)  For the wife’s application, I think the most important consideration at this stage is the husband’s ability to pay.   According to him, he is suffering from very bad health and his only assets are the $440,000 cash he has in bank which was left from the sale of his landed property back in October 2014.   I understand that the wife is trying to ask this court to draw an adverse inference against him by looking at the rapid diminution of the sale proceeds from his bank account.  As I see it, it may be true that various withdrawals of relatively big sums of money could be seen after the sale, but the husband did give an explanation that those moneys were used to repay the loans he previously received from banks and friends. I cannot rule out this assertion completely without a full trial, only at which the parties’ respective evidence could be fully canvassed.   I am afraid this court is not in a position to draw the adverse inference as requested by adopting a broad-brush approach in this interim maintenance hearing.

(2)  In addition, I really do not see any urgent need for this application for interim maintenance.   I am not saying that the daughter is not in need of maintenance, whether from the husband or the wife.   The issue is whether there is an urgent need of such an order at this stage.  As I have raised with Ms Chong this morning, even according to the wife herself, the husband has not been paying any maintenance for the daughter since 2005. In other words, the wife has been supporting the daughter single-handedly for the past 10 years. That is of course commendable. But the fact remains that the wife has not taken any serious action in asking for maintenance from the husband for almost a decade.  If the husband has not issued the petition for divorce in 2015, I believe this status quo would have simply continued.  This begs the question of why such an order for interim maintenance should be made now, if there was no such need in the past 10 years or so. Furthermore, I do not see justification in making an interim maintenance order when the wife is still having over $500,000 cash in bank. That could last her about 17 months if her monthly deficit is really $30,000.   If the wife has not wasted her valuable time and money in this unnecessary interlocutory application, we could have conducted a FDR hearing today and even if it turns out to be unsuccessful, a full hearing of her ancillary relief application could be completed in the coming 6 to 9 months’ time. Therefore, I firmly believe what the wife should do now is to proceed with her ancillary relief application expeditiously and not to waste any more time and resources in these unnecessary interlocutory applications.

(3)   Even if the court is going to grant any interim maintenance order, which I am afraid is not the case here, I also have some doubts on the quantum of maintenance as requested by the wife.   The daughter is now aged 15, a Form 4 student, I believe. The wife quantified her needs at $42,000 per month which I believe must be on the very high side under the financial circumstances of this family.  We all know that the average monthly salary of even a university graduate is something well below $20,000. I trust the daughter must be a very talented girl and the wife must love her a lot.  The wife is of course entitled to spend whatever sum of her own money she deems necessary on the daughter, but the court will only allow an amount of interim maintenance which is reasonable under the circumstances of the case. In this particular case, if I really have to exercise my brush in a broadly fashion on the daughter’s reasonable monthly expenses, I would say $20,000 to $25,000 would be about right, even taken into account the many talents and diversified interests of the daughter.

Order

22.All in all, I am not minded to grant an interim maintenance order at this stage.   The wife’s application is therefore dismissed.

Costs

23.The husband succeeded in resisting the application. He asked for costs of this application to be costs in the cause.   If that is what he wants, I have no reason to order otherwise.  I therefore order that the costs of this application, including all costs previously reserved, to be in the cause of the ancillary relief application, with certificate for counsel.

24.Lastly, I thank both counsel for their assistance.

Representation:

Ms Zoe Ning instructed by Messrs Lau & Chan, solicitors for the Petitioner

Ms Fiona Chong instructed by Messrs Kenneth Sit, solicitors for the Respondent