Mjt v. Avib

FCMC 6980 / 2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6980 OF 2015

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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 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the only child of the family, a boy N who was born on the XX June 2004, under s 5 of the same ordinance.

The main issues

2.The only issue to be determined at this hearing is how much should the husband pay to the wife for her interim provision and that of the child of the family? The husband has, as at the day of the hearing, offered to undertake to continue to pay for the government rent and rates, electricity, gas, water, septic tank expenses, home phone, internet/Now TV, rental of the wife’s garden and partial home security amounting to an estimated HK$9,334 per month (the utility expenses). The mortgage on the former matrimonial home, in which the wife and child live, has recently been paid off so there is currently no issue relating to the provision of housing. In addition the husband will continue to pay for the child’s school fees and all school/educational related expenses including the fees for his extracurricular activities. Further the husband pays for the hire purchase agreement for the wife’s car and other related expenses, but not for her petrol and parking costs. In addition he offers HK$27,000 per month (i.e. HK$30,000 less a reduction of HK$3,000 for alleged overspending on a credit card). The wife for her part now seeks HK$81,634 per month for herself and N inclusive of provision for holidays in addition to the undertakings set out above. In the wife’s summons she also sought litigation funding. Ms Rattigan confirmed on her behalf during the hearing that she was not pursuing that aspect of her application at the present time.

The wife’s summons

3.In the wife’s summons dated the 4 March 2016 she set out her claim as follows:

1.  the Petitioner do pay maintenance pending suit for the Respondent, including an amount to meet her legal costs, at such rate and for such period as the Court thinks fit;

2.  the Petitioner do pay maintenance for the child of the family at such rate and for such period as the Court thinks fit;

3.  an Undertaking from the Petitioner to pay the school fees, school related expenses, extra-curricular activities and tuition fees of the child of the family until further order of the Court;

4.  an Undertaking from the Petitioner that he will pay the mortgage instalments (if any), all utilities, the land rent, the monthly expenses in respect of the Kowloon Cricket Club, the car registration & insurance and any repair costs in respect of the Porsche car, the costs of the septic tank cleaning expenses for the TWV property; and

5.  mutual undertakings from the Petitioner and the Respondent not to sell, dispose of or dissipate any of the family assets pending determination of the Respondent’s claim for ancillary relief. [This part of the summons was also not pursued at the hearing]

Background 

4.The parties married on the XX May 2000 having cohabited for a period of time prior to marriage and they separated in May 2015. The divorce petition was issued shortly thereafter on the 4 June 2015 based on mild unreasonable behaviour particulars. The parties have one child N who is now 12 years of age. A second child, a twin unfortunately died shortly after birth. Unfortunately there have been ongoing issues with respect to the arrangements for N, although sensibly the parties have entered into an interim agreement with respect to some aspects of the dispute and there will be a further call over in this respect on the 15 September 2016.

5.The husband is a 46 year old senior airline pilot and the wife is presently a 48 year old full time housewife. She previously worked in the same airline as the husband, but has not worked since the birth of N over 12 years ago. It does not seem to be disputed that the wife has formed another relationship with a third party.

The law

Maintenance pending suit

6.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 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.

7.Both counsel 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.

8.In so far as this particular case is concerned the reference to the marital standard of living previously enjoyed by the parties and the ability of the husband to pay is particularly pertinent.

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

9.In essence the wife’s case is that the husband should pay what she seeks because she says that is in keeping with the standard of living enjoyed by the parties during the marriage and that the husband can afford to pay that sum. She says that the husband unilaterally imposed the figure of HK$30,000 (less the HK$3,000 per month) on her when he sent her an e-mail dated the 11 January 2016. This sum was not agreed. She says that she has survived to date by relying on the net proceeds of sale from another property previously owned by the parties which has been recently sold; the net proceeds of sale having been divided between the parties.

10.The husband for his part maintains that HK$30,000 per month is in keeping with what the wife spent historically during the marriage. He says that the wife’s expenses are inflated and he accuses her of gross overspending. Consequently he has cancelled the wife’s supplementary American Express and her Fubon credit card and he has refused to continue to make some other payments. Further he says that he simply cannot afford to pay the wife c HK$81,600 per month as claimed, in addition to the other expenses that he has agreed to pay. He also argues that the wife should return to work and that she should sell the Porsche that she currently drives. He also maintains that his earning capacity is in question because of some health issues.

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

The wife’s needs

11.In her affidavit dated the 18 March 2016 the wife set out her budget as follows:

I am seeking HK$45,633 (on top of the HK$30,000 which he is paying) as follows:-

Item	HK$
General
Utilities	9,334
Food	16,000
Household expenses	5,167
Car expenses excluding car loan of HK$10,000 as budgeted	10,333
Insurance premia	500
Helper	5,500
Kowloon Cricket Club	4,000
Personal expenses*
N
Clothing & shoes	2,083
Lunches & pocket money	2,750
Other transport	1,000
Meals out of home	1,000
Total	HK$75,633
Less HK$30,000	HK$45,633

* Excluding holidays of HK$10,000 to be provided separately by Petitioner

The husband for his part says that the wife’s actual expenses are as follows:

6.  The rest of her expenses are just as over inflated.  Her actual average expenses are as follows:

Item	HK$
Land tax/GVT rates	3,000
Car maintenance	500
Petrol	2,500
Road tax	1,000
Management fee	1,800
Food	7,000
Domestic Helper	4,300
Insurance	500
KCC membership	1,200
Expenses for Nathan (clothes and lunches)	2,000
Personal expenses	7,100
Total	30,900

12.In addition he says that his monthly expenses are as set out below:

11.  My monthly expenditure is as follows:

Item	HK$
General
Rent	95,000
Mortgage instalments	24,000
Utilities	5,000
Management fees	1,800
Food	7,000
Household expenses	2,000
Car and motorbike costs	18,871
Insurance	800
Interest on overdraft	2,400
Domestic Helper	6,100
	162,971
Personal
Meal out of home	5,000
Transport	2,000
Clothing/Shoes	1,000
Personal grooming	500
Holidays	13,065
Medical/Dental	100
Tax	28,166
	49,831
Children
School fees	3,000
Extra tuition	1,600
School books	200
Transport	2,000
Medical/Dental	100
Extra-curricular activities	5,000
Entertainment	1,000
Holidays	6,000
Clothing/Shoes	1,500
Insurance	100
Lunches/Pocket money	1,200
Other transport	1,000
Child minding fees	4,100
	26,800
Total	239,602

The wife’s expenses and the items in dispute

13.The husband has now accepted what the wife says about the utility expenses as broadly defined and as set out above and he has agreed to pay for those items directly in the total sum of HK$9,334 per month. In addition he has agreed to pay for the school fees, the school bus fees and for N’s extracurricular activities. I queried in court the cost of these items and the exact figures could not be provided at that time. It is though accepted that the husband receives an educational allowance which he is required to top up and that he is also responsible for paying for N’s school bus and extracurricular activities and that he will continue to do so.   

Food

14.There is a dispute about the cost of food. The wife asks for HK$16,000 per month and the husband says that the costs should be no more than HK$7,000 per month. I have noted the fact that the husband’s original estimate was for HK$16,000 per month for his household and that his budget should be significantly different from that of the wife given that he is generally out of town flying for half of each month. There is little difference in each party’s claim for eating out – the husband claims H$5,000 per month and the wife HK$4,000 per month.  I was taken to receipts and credit card statements during the course of the hearing which do not fully support the wife’s case for HK$16,000 per month – although I would accept that some of her food expenses are paid for in cash. Thus on a broad brush basis I will allow the wife HK$10,000 per month for food, which is in keeping with the general card expenditure and allows for a generous amount in addition for market and other cash items.

Household expenses

15.The wife seeks HK$5,167 per month; the husband offers nothing on the premise that there is no evidence offered in support of this claim. I will allow HK$2,500 per month on a broad brush basis and on the premise that it defies commons sense to suppose that the wife has no household expenses and that some provision should be allowed for this.

Petrol and parking

16.The wife seeks HK$6,000 per month for petrol and HK$600 per month for parking. I will allow both. The wife lives in Sai Kung and she drives the son to school each morning and will need to drive otherwise. I do not consider either of these estimates excessive.

Insurance premia and domestic helper 

17.The wife’s position in respect of both of these expenses is reasonable and I will allow each. In particular I accept that in addition to the minimum wage for the domestic helper it is also necessary to provide a food allowance and a flight home at least once every two years. I will allow the wife’s estimate of HK$5,500 per month for the domestic helper and HK$600 per month for the insurance premia.

The Kowloon Cricket Club   

18.The husband maintains that this is an extravagance given that neither of the parties uses this facility very often and he would like to give the membership up. The wife would like to retain it for the time being and points out that club membership’s of this nature can be difficult to come by and that the cost is not that high in the overall scheme of things. In such circumstances I will allow the sum for the monthly sub only in the sum of HK$1,200 per month. Any costs for using the club will need to come from each party’s budget from other areas i.e. for food, entertainment etc.

The wife’s personal expenses 

19.Below is a table setting out each party’s respective position on the wife’s own expenses.

B.  Respondent’s Personal expenses

Item	W’s claim	H’s position
Meals out of home	4,000
Transport	1,000
Clothing/shoes	6,000
Personal Grooming	6,500
Entertainment/presents	4,000
Medical/Dental (covered by CX	1,000
Insurance premia	800
Total	23,300	7,100

20.This table does not include holiday expenses. The wife seeks an additional US$100 per day for herself for the months of July and August and US$100 per day for N for the month of July when he is holidaying with her.

21.To put this in context and as can be seen in paragraph 12 above the husband seeks HK$21,665 for his own personal expenses (i.e. HK$49,831less HK$28,166 for tax = HK$21,655) which includes a staggering HK$13,065 per month for holidays for himself only.

22.I have now had an opportunity to look through the party’s credit card expenses, which do not it seems to me, generally support the wife’s case in relation to many of these items. In any event I will allow each party HK$15,000 per month for their own personal expenses. Each side will need to budget accordingly.  

Holidays

23.It seems that holidays are a particular bone of contention between the parties. The husband seeks HK$6,000 per month provision for N on top of the HK$13,065 per month for himself referred to above. As I have said the wife seeks US$100 per day for N in addition to the normal monthly allowance, for the month of July. This amounts to HK$24,180 (US$100 x 31 = US$3,100 (x 7.8) = HK$24,180. This also seems very high. Consequently cutting through this as best I can and on a broad brush basis I will allow each side an additional HK$6,000 per month to cover all holiday expenses – i.e. their own expenses and those for N.  

N’s other expenses

24.Again on a broad brush basis I will allow an additional HK$5,000 per month for N’s expenses. This is on the premise that he will be spending a significant amount of time with his father and that the same amount should be allowed for the husband for similar types of expenses.

25.In summary then the following sums shall be provided to the wife and N by the husband.

a)  The husband’s undertaking to pay for the utility expenses in the sum of HK$9,334 per month (the utility expenses to include Government rent and rates, electricity, gas, water, septic tank charges, the home phone bill, Internet, Now TV, rental of the wife’s garden and home security costs);

b)  The husband’s undertaking to pay for the school fees, extra tuition costs (if any – there are none at present), the cost of extracurricular activities and the school bus. In the absence of any precise figures and based on the husband’s own figures HK$10,000 per month will be budgeted for in this regard;

c)  The husband’s undertaking to continue to pay for the hire purchase agreement on the wife’s car in the approximate sum of HK$12,000 per month and other car expenses not including petrol and parking costs in the estimated sum of a further HK$3,000 per month.

d)  In addition the husband shall pay maintenance pending suit/interim maintenance in the total sum of HK$52,400 per month. This is made up as follows:  

Item	HK$
General
Utilities	u/t
Food	10,000
Household expenses	2,500
Car expenses – petrol and parking costs	6,600
Insurance premia	600
Helper	5,500
Kowloon Cricket Club	1,200
Personal expenses	15,000
Holiday expenses for the wife and N	6,000
N’s expenses	5,000
Total	HK$52,400

Can the husband afford to pay this sum on top of the other costs that he has agreed to pay?  

26.In total the husband has either undertaken or will be ordered to pay a total sum of HK$86,734 per month. In coming to this decision it should be noted that I have accepted a lot of the wife’s challenges to the husband’s estimate of his expenses as set out in her 2^nd affidavit dated the 15 June 2016 and as argued by her counsel during the hearing. In particular it is of note that the mortgage on the matrimonial home has now been paid off and the husband’s rental is deducted at source. I accept that his rental payment is inclusive of government rent and rates, water and internet charges. Thus the utility charges at HK$5,000 per month seem to be a little on the high side. I will allow HK$2,500 per month. Although the cost for cars and motorbikes seems high I will not interfere with this for the time save to deduct the HK$12,000 for the wife’s hire purchase agreement which is now included above under the husband’s undertaking. I accept that he also has his own petrol and other expenses to pay when he is in Hong Kong. It is though of note that he does not employ a domestic helper in his own name and the amount allowed for that should be deducted. Thus the husband has the following general expenses:

Item	HK$
General
Rent	Deducted at source
Mortgage instalments	0
Utilities	2,500
Management fees	Included in the rental
Food	7,000
Household expenses	2,000
Car and motorbike costs	6,871
Insurance	800
Interest on overdraft	2,400
Domestic Helper	0
	21,571

27.As indicated above I will allow both sides an additional HK$15,000 per month for their personal expenses plus a further HK$6,000 per month to cover the cost of holidays. In addition the husband has asked that the sum of HK$28,166 per month be allowed as a form of tax saving. Thus I will allow a total of HK$49,166 per month for the husband’s personal expenses and tax provision.

28.In so far as N’s expenses are concerned it is accepted that the husband tops up the school fees, pays for the school bus (N comes home on the school bus) and that he pays for extra tuition and extracurricular activities as set out above. I accept that N is not currently having any extra tuition and that he currently enjoys playing the piano and learning how to sail. I will likewise allow the husband HK$5,000 per month to pay for N’s expenses when he is in his care (i.e. clothing and shoes, lunch and pocket money, other transport and meals out of the home). I accept that the husband should not have child minding fees to pay and I await further clarification of the exact financial arrangement between himself and his lodger with respect to the domestic helper and generally. Other minor expenses such as HK$200 for school books and HK$100 for medical/dental, HK$100 for insurance and entertainment etc should be included in the provision of HK$5,000 per month. 

29.Thus in addition to those items set out in paragraph 25 above the husband will need to provide for the following items for himself:

e) The husband’s general expenses at c HK$21,600 per month;

f) The husband’s personal expenses and tax savings at c HK$49,200;

g) N’s expenses in the sum of HK$5,000 per month.

In total this amounts to an additional HK$75,800 per month.

The husband’s income

30.It is clear that the husband should be able to afford these amounts. There is some dispute about his actual income and that will need to be left to a final ancillary trial if there is no agreement in the meantime. However from the pay slips provided for the last ten months it is clear that his net income varies from between HK$333,285 in December (which included double pay and a proportion of the education allowance) down to just under HK$140,000 in November 2015. His normal salary, which I accept includes additional hourly pay or overtime, is generally in excess of the amount that he will need to find each month – i.e. a total figure of HK$162,534 per month. Thus it seems to me that the husband should be able to afford to pay these sums and to budget accordingly.   

Conclusion 

31.I will therefore make an order that going forward the husband shall pay HK$52,400 per month in addition to his undertakings as set out above in paragraphs 25 (a), (b) and (c).

Costs

32.Given that the wife has been more successful than not and that she has had no option but to make this application I shall make an order nisi to be made absolute in 14 days time that the Petitioner husband shall pay the Respondent’s wife’s costs of and occasioned by this application on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

Order

33.Upon the Petitioner’s undertakings as set out in paragraph 25 (a), (b) and (c) above:

1)  The Petitioner shall pay maintenance pending suit to the Respondent for herself in the sum of HK$31,200 per month, the first payment to be made on the 1 August 2016 and thereafter to be paid on the 1st day of each succeeding month until further order.

2)  The Petitioner shall pay interim maintenance to the Respondent for the child of the family in the sum of HK$21,200 per month the first payment to be made on the 1 August 2016 and thereafter to be paid on the 1^st day of each succeeding month until further order.

3)  There shall be a further First Appointment hearing on the 15 September 2016.

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

Mr Peter Barnes instructed by Messrs Withers for the Petitioner

Ms Mairead Rattigan instructed by Stevenson Wong & Co for the Respondent