Wmw v. Cych
Read the full judgment text of FCMC 10906/2015 on BabelCite. This Family Court judgment before Deputy District Judge D. Cheung.
Maintenance Pending Suit – District Court – Matrimonial Causes – Quantum of Maintenance – Ability to Pay – Effective Date – Marital Standard of Living – Wife’s Rental Surplus – Husband’s Business Assets – MPS Ordered – No Order as to Costs – The court determined the reasonable maintenance pending suit for the wife and four children. The wife's rental surplus was considered a resource. The husband's ability to pay was assessed based on assets and business income. The order takes effect from August 2016. The husband undertakes to pay specific direct expenses including mortgages, school fees, and car expenses. No order as to costs made as neither party succeeded entirely.
Legal issues: Quantum of Maintenance Pending Suit · Husband's Ability to Pay · Effective Date of Order
Outcome: Maintenance pending suit granted.
Cites 1 case
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FCMC 10906/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 10906 OF 2015 ------------------------
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----------------------- J U D G M E N T ( Maintenance Pending Suit ) ------------------------ 1.This is a hearing of the petitioner wife’s (hereinafter called “the wife”) application for her maintenance pending suit (“MPS”) against the respondent husband (hereinafter called “the husband”). Brief History 2.The wife is now aged 41 and the husband is now aged 52. The parties were married in January 2000. 3.Within wedlock, they have 2 daughters and 2 sons, now 15, 13, 10 and 5 respectively, and all of them are students. The husband is a businessman in trading through a limited company (“GUL”), and this business is the primary financial source of the family, as well as their investment in properties. 4.The wife became a full time mother and homemaker since the birth of their third child in 2006. 5.The wife and the husband have been separated in March 2015. By consent order dated 3rd February 2016, the husband was to pay interim maintenance of HK$28,000.00 to the wife. By a subsequent order made on 16th March 2016, the husband also paid an additional of HK$8,000.00 for the children. 6.On 16th March 2016, the wife was granted care and control of all the children, and the parties agreed for them that the husband would move out the matrimonial home, whereas the children and the wife would stay at the matrimonial home. 7.The present hearing related to the Summons filed on 5th February 2016 which is the application for maintenance pending suit taking out by the wife for the support of the wife and the children such maintenance pending suit/interim maintenance, and the application was adjourned to today for argument. 8.Both parties had filed and exchanged their respective affirmations and Form E Financial Statements. Questionnaire had also been filed and exchanged. The Law on Interim Maintenance 9.The power to order maintenance pending suit is set out in s 3 of Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) whereby the court may order a party to make to the other such periodical payments for his or her maintenance and for such term beginning not earlier than the date of the presentation of the petition and ending on the date of the determination of the suit, as the court thinks reasonable. 10.It is clear that under this provision there is no power to make an order for an interim lump sum or an interim order for sale or transfer of property, but otherwise the court has an unfettered discretion in the matter subject to the result being reasonable: F v F (maintenance pending suit) (1983) 4 FLR 382. 11.As for the matters which the court should consider in assessing an application for maintenance pending suit, Rayden and Jackson on Divorce and Family Matters, 18th Edition, said these as follows:
12.The following principles quoted in the case of HJFG v KCY (CACV 127/2011, 28 October 2011, should be noted when considering maintenance pending suit/interim maintenance applications:
13.In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non disclosure. 14.However if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay. 15.The court can look at the reality of the situation and take into account voluntary funding from third parties. Any under provision or over provision in the order for maintenance pending suit can always be corrected when the account comes to be taken at the substantive hearing when there is every opportunity to do fairness by set-off…” 16.I do not think the above general principles are in dispute. The wife’s Case 17.The wife’s case is thatduring the marriage, the family of 6 and 2 domestic helpers lived in a self-owned home of 1200 square feet, travelled by private car and taxis, had access to club houses, dined at decent restaurants, had 3 vacations every year living at 5 star hotels. 18.The children all attended international school with a wide selection of extra-curricular activities, and were expected to complete their tertiary education overseas. 19.The wife’s counsel submitted that before separation, the husband provided the following resources to cover the wife’s needs (including the household, her personal expenses and children’s expenses), namely :-
20.The wife in her 2nd affidavit dated 16th May 2016 paragraph 26 stated that she required a monthly sum of HK$141,231 to run the family household and cover her personal and the children’s needs. 21.She further stated that the said sum of HK$141,231 did not include the items she expected the husband to continue to make direct payments as those detailed in her 2nd affidavit at paragraph 27 (see A1/302 para 36 skeleton submission), namely :
22.The sub-total of the above, based on the figure provided by the husband was HK$98,922.10 according to the table produced by the wife’s counsel. The said figure did not include the expenses of items (v) and (vi). 23.The total amount stated in the said table was HK$239,927.10, which after deducting HK$98,922.10 should be HK$141,005. To round up the figure, the wife’s case was that she required at least a monthly sum of HK$141,000 for her to run the family household and cover her personal and the children’s needs if the husband continued to be responsible for the payment of the expenses of the items listed at paragraph 21 hereinabove. 24.It was submitted that with the agreed date to move out by 31st July 2016, the husband would not be around in the matrimonial home and would not be residing with the children, and it therefore made sense for the wife to be put in funds to run the household. 25.Counsel for the wife also submitted that the husband had taken a wrong approach to trawl through the family credit cards to calculate family expenses and arbitrarily allocated portions from credit card expenses to wife and/or children. It was further submitted that a broad brush approach looking at the reasonable needs of the wife should be adopted, instead of an analysis of past expenses over 24 months in the absence of a fact finding hearing. 26.The wife’s case was that the husband owns his business and his company finances was in fact managed by the husband, and a lot of household expenses were already covered by the company. 27.Counsel for the wife submitted that it was well within the husband’s ability to pay what the wife was asking for. The husband’s case 28.The husband’s case rests both on the issue of quantum of maintenance pending suit and his ability to pay. 29.The husband also argued that the wife deliberately increased her spending since about October 2014. The husband stated that the wife did not use to spend extravagantly. The husband further stated that the family never led expensive lifestyles, and the wife certainly did not use to spend at the level she now claims to. 30.The husband’s position to the wife’s present application was that while the husband would provide the undertaking stated in paragraphs 117-118 and 138 of the husband’s affidavit, the husband said that on top of these undertakings, if expenses for a separate household is to be considered, the total expenditure of the wife and the children should be HK$60,921. Out of which, the husband said the wife’s monthly personal expenses in the past is HK$22,050. 31.The husband also said that the wife had a surplus of HK$11,560 per month from the rentals received by her on her 2 properties, and this sum should be taken into account when considering the wife’s present application. 32.The husband stated in his affidavit that he was content to give the undertakings to continue to pay directly to various schools and service providers for the children, and he believed that his original maintenance pending suit offer of HK$38,000 was more than sufficient. (see A1/233 para 157) 33.The husband further stated that if the court deems fit that some household and children expenses should be paid to the wife to enable her to run the household after he moved out the MH, he would ask the court to adopt for MPS for the wife and the children at the sum of HK$60,921.74 per month. (see A1/233 para 159) 34.The husband said that he had income of around HK$317,000 per month (see A1/232 para 153), and he would not be able to afford the amount asked by the wife in the present application which he also considered as wholly excessive and exorbitant. Issues of the case 35.The following issues arise for my consideration:
Issue 1 How much maintenance should the husband pay to the wife as reasonable maintenance pending suit for herself? The wife’s Financial Position and needs 30. It is worth noting that the wife in this case has based her reasonable needs on the standard of living in which she claims to have been provided by the husband prior to the divorce petition. 31. She stated that before the breakdown of their marriage, she was provided with very comfortable financial provisions by the husband to cover all the general household expenses, his own personal expenses and children’s expenses (save and except school fees and some of the school-related expenses as well as those payments made via autopay, which were settled direct by the husband). 32. She stressed that the husband had never challenged her on her spending. She stated that she had no worry about the availability of money throughout the marriage. 33. My view is that the the availability of money throughout the marriage is different from the pattern of actual amount of money spent which reflected the actualmartial standard of living they enjoyed. 34. Therefore, in so far as this particular case is concerned the reference to the reasonableness of the expenses of the wife and the children is particularly pertinent. 35. The husband stated that apart from the children’s international school education, his family consistently lived modestly. He explained that due to their family background, coupled with their Christian belief, and their hope for all their children to receive international schooling, he and his wife had always chosen to lead frugal lives. 36.The wife agreed that she and the husband had never utilized fully the credit cards limit, and she stressed that she had no need to worry about money throughout the marriage. 37.I am of the view that the amount of the previous sum given to the wife was one of the indicators, though not a conclusive one, for me to consider what amount should be reasonable and fair in the circumstances. 38.Then what is maintenance pending suit? By definition, maintenance pending suit is restricted to payments which constitute “maintenance”, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. 39.“Maintenance” is a broad concept, and it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living as appropriate. 40.An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. I remind myself that it is not simply to assume that wealth equates extravagance. Some wealthy married couples live comparatively modestly and spend with a discipline born of discretion, while others enjoy consumption on a grand scale. 41.In the present case, my focus should be ondetermining the “immediate and reasonable needs” of the wife and the children. 42.Counsel for the wife had stressed that before the separation, the husband had provided the resources mentioned therein her skeleton submission (para 19) to cover the wife’s needs (including the household, her personal expenses and children’s expenses). 43.Counsel for the wife referred me to the wife’s affidavit (A1/117, para 8-14 and A1/288 para 10). The wife stated that before separation and with financial provision provided by the husband, she was responsible to make arrangement for payment of almost all family expenses, which included but not limited to expenses on the 2 domestic helpers, general household expenses, her own personal expenses and children’s expenses (save and except school fees and some of the school-related expenses as well as those payments made via autopay, which were settled direct by the husband). 44.Of the resources that the wife referred to, she stated that for more than 10 years, the husband used to putting approximately HK$10,000 cash (in form of HK$500 bank notes) in the drawer of the master bedroom of the matrimonial room every 6 or 7 days for the household expenses (i.e. approximately HK$40,000 cash per month) (A1/10). 45.The wife also stated that the husband used to put at least HK$40,000 cash (which sometimes ran up to about HK$60,000) every month in the drawer of the master bedroom of the matrimonial home (A1/118). 46.The husband, however, stated that he used to habitually put HK$30,000 into the drawer in their master bedroom every 3 weeks, amounting to HK$40,000 a month, and he further stated that the said sum was for general household, some children and personal cash expenses. He denied that he had given HK$60,000 per month and that the family had ever spent HK$60,000 cash a month. 47.The husband said that both of them rarely withdrew cash from ATMs. The husband stated that the money in the drawer apart from paying the household and children expenses, there would be surplus, and both of them would use the remaining cash for their daily personal expenses. 48.The breakdown of the use of the money in the drawer given by the wife and husband are different. There is no need for me to determine which version is correct. 49.Suffice to say that the money in the drawer was part of the resources to cover the household, the wife and the children expenses. 50.In addition to the aforesaid sum, the wife also stated that the husband used to pay her about HK$15,000 every month for her own and discretionary use without accounts to the husband (in the form of two cheques with one cheque of fixed sum of HK$8,550 and the other of fluctuating amount, usually around HK$7,000) (A1/10). 51.The wife also stated that apart from paying her cash for payments of the household expenses, the husband had provided her with 3 supplementary credit cards. She stated that the husband imposed no limit for her to use the said 3 supplementary credit cards, and she used to spend about HK$20,000 on the supplementary credit cards every month for herself as the Respondent pays for most of the other expenses (A1/10). 52.She also stated that a sum of HK$300,000 in about March of every year (in form of cheque) would be given to her (A1/10). 53.Of the aforesaid 4 resources, she admitted that for the 10 years, the husband used to put approximately HK$40,000 cash in the drawer which sometimes ran up to about HK$60,000. 54.She also stated that she recalled that the husband had put up to HK$60,000 in the drawer in January, March, July and September of 2014. Based on the wife’s case, the money in the drawer would be HK$560,000 for 2014, and it would be approximately HK$46,666 per month, after divided HK$560,000 into 12 months. 55.She also stated that on average a sum of HK$300,000 was given to her in about February/March every year. After dividingthe said sum by 12 months, she could have HK$25,000 per month to spend. 56.Adding up the aforesaid 4 resources, she could be able to use approximately HK$100,000 per month. However, I am of the view that she would not use up all of the aforesaid resources, otherwise she would not be able to accumulate approximately HK$2.4 million cash in her bank accounts. 57.She stated that the cash in the drawer was to defray most of the family and children’s expenses, and the cash was largely used by her and for the household and the children. 58.She stated that she had sole discretion to use the sums from the cheques without accounting to the husband. Normally, she would use the sums to meet some of her personal expenses, the children expenses and sometimes the household items as well as for savings (A1/296 para 20). 59.She also stated that the annual payment was never intended for use on family expenses and that it was definitely intended for her own personal use. She further stated that she would save up the annual payment for her personal investment and spending (A1/297 para 21). 60.By reason of the aforesaid,I am of the view that the wife’s version of the marital standard of living of the wife and the children previously enjoyed before separation in term of money would be not more than HK$100,000 plus the direct payment made by the husband previously. 61.This is, of course, not the husband’s version of the martial standard of living previously enjoyed by the wife and the children. The husband’s case is that they had always chosen to lead frugal lives. He stated that based on his calculation, he believed that the wife only had personal expenses of about HK$22,050.81 per month. 62.He further stated that even if the MPS were to include household and children’s expenses (excluding those direct payments made by him), the total sum would only be HK$60,921.74 per month. 63.What were the items previously paid by the husband directly? The husband stated that prior to the separation, their family used to be run monthly by (i) HK$40,000 cash, (ii) credit card expenses, (iii) two cheques to the wife, and (iv) some direct payments by him through GUL. 64.The husband stated that the only family expenses he paid directly from GUL were children’s school fees and other school chargeable expenses at the International Christian School (A1/210 para 83). 65.The husband further stated that the holidays expenses were reflected in both his credit card statements and that the expenses for overseas camps would be paid directly when the need arises. 66.According to the wife’s 1st affidavit, she stated that she expected that the husband to continue to make direct payment to the following (A1/122 para 26):-
67.According to the wife’s 2nd affidavit, the only different is that she expected the husband to continue to make direct payment of mortgage for the MH. These undertakings, if converted into money value, is estimated to be around HK$98,922.10, based on the wife’s calculation. 68.Nevertheless, the wife did not admit HK$98,922.10 was accurate, as some of the figures was provided by the husband. On the other hand, the husband arrived at a figure of HK$102,270.10 being the money spent on those items of undertakings. 69.For the purpose of ascertaining how much the wife had spent on her own expenses and the children expenses, the actual money value of the said undertakings is not important, because in any event, the wife did not need to pay any money on those items previously. 70.It is only relevant when it comes to consider the overall ability to pay by the husband, when he was required to pay MPS including the undertakings and also his own personal expenses. 71.As to the monthly outgoings for the wife and the children, the figure quoted in her Form E were $245,104. This figure had also included those items which the husband should undertake to pay. 72.In the wife’s 2nd affidavit paragraph 25, she had revised the figure and asked for HK$141,231 and they were made up of the following items:
73.Counsel for the wife had also provided me a revised schedule under cover letter dated 7th July 2016. In this schedule, there were some minor adjustments of the aforesaid figure of HK$141,231. 74.During the trial, counsel for the husband had conceded 3 items (i.e. Insurance Premia (home protection) under the General expenses, Transport and Insurance (Life) under the Wife Personal expenses) and that the total sum of these 3 items was HK$1,880. 75.Other than the aforesaid 3 items, during the trial, counsel for the husband submitted that the rest of the items the husband considered unreasonable and would challenge each of them. 76.The husband asserted that food under General expenses should be $10,833 instead of $15,000. Meals out of home for the wife and the children should not be provided for. 77.My view is that meals at home and out of home should be considered together, as they are just expenses incurred at the different places. While the elder child is only around 16, the rest of the children were quite young, I would expect that the wife would accompany the children to dine out. On the other hand, there may be occasions that the wife dines out alone or with friends. 78.I am also aware that pocket money included lunch expenses for the 2 daughters and the 3rd son. 79.For the item of Food at home, if using HK$12,000 to be divided by 30 days, it will be HK$400 per day for 7 person, and 3 of them will not have lunch at home during school days, therefore I am of the view that HK$12,000 per month should be reasonable. 80.I would expect the wife will accompany the 4 children to dine out. I consider that 8 times per month and each time $500 for 5 person and each person HK$100 should be reasonable in this case i.e.HK$3,200 under the children’s expenses. 81.For the wife to dine out alone or with friend, I consider that 8 times per month and each time HK$300 for herself is reasonable in this case. Therefore, HK$2,400 plus HK$800 when she accompanied the children to dine out. As a result, the wife’s personal expenses on meals out of home should be HK$3,200. 82.The total money spent by them on meals whether at home or out of home will be HK$18,400. 83.For the household expenses, the wife asked for HK$6,000 whereas the husband said that HK4,167 would be sufficient. I consider that HK$5,000 should be sufficient and reasonable. 84.For the domestic helper expenses, the wife asked for 2 helpers and for the sum of HK$10,525 whereas the husband said that 1 helper would be enough and the expenses should be HK$4,900. I am of the view that the status quo should not be changed and 2 helpers are needed and that HK$10,525 is reasonable. 85.Under the General expenses “Others”, it included shuttle bus ticket of HK$1,845 and Lai See expenses. This item was contested by the husband, and he said that the reasonable sum should be HK$1,000 for the shuttle bus and no Lai See expenses should be included. 86.I agree that the expenses of Lai See should be excluded for the present purpose. I also agree that the reasonable expenses for shuttle bus should be HK$1,000 (i.e. at least 2 times per day to Ma On Shan and to Shatin), as the wife could also drive the children and the domestic helpers. 87.The husband conceded that the expenses for transport under the wife Personal expenses as reasonable. For the pocket money for the children, the wife asked for HK$4,526 whereas the husband said that HK$3,600 would be sufficient. I consider that HK$4,526 is reasonable. 88.I am of the view that the aforesaid items (i.e. food at home, household expenses, expenses for domestic helpers, expenses for shuttle bus, transport and pocket money) should be come from the money which previously placed in the drawer, as these items basically are cash items expenses. The total sum of these expenses is HK$39,451 (i.e. HK$18,400 + HK$6,000 + HK$10,525 + HK$1,000 + HK$600 + HK$4,526) 89.For petrol and car expenses, the wife asked for HK$5,200 whereas the husband said that this should not be provided for, as this item would be a duplicate to the car expenses that he undertook to pay. My view is that they are not duplicates. 90.The undertaking provided by the husband covered the license fees, insurance and repair/maintenance costs, whereas the car expenses claimed by the wife covered the daily expenses incurred i.e. petroleum, carpark, tunnel fees and cleaning and repair. 91.In that case, I will consider the reasonableness of the sum of HK$5,200 claimed by the wife. I consider that the said sum is reasonable. 92.The insurance premia (home protection) for the sum of HK$530 is conceded by the husband during the trial. 93.By reasons of the aforesaid, the sub-total of the General expense should be HK$35,255 instead of HK$40,255. 94.As to the wife personal expenses, meals out of home for her should be HK$3,200 (i.e. HK$2,400 + HK800), and transport for the sum of HK$800 is conceded by the husband during the trial. 95.The wife asked for HK$5,000 for the item of clothing and shoes and HK$10,000 for personal grooming. In fact, these two items represent the total expenses one had spent on the personal outlook, appearance and outfit. 96.The wife is a full time home maker and has to take care of 4 children, 1 of them only aged 5 and the wife even needed 2 domestic helpers to assist her to run the household. I would expect that the wife will not be required to be dressed in expensive or formal clothing on frequent basis. 97.In addition, I would expect that the wife would use credit card to purchase these items. She stated that she used to spend about HK$20,000 on the supplementary credit cards every month for herself. I am of the view that HK$2,000 would be more than sufficient and reasonable for clothing and shoes. 98.As to personal grooming, the wife asked for HK$10,000 which I would consider excessive. My view is that HK$5,000 should be sufficient and reasonable. 99.I consider thatthe entertainment and holiday expenses should be treatedtogether because it reflects the leisure activities one enjoys inside and outside Hong Kong. For these 2 items, the wife’s expense is HK$5,000 and HK$4,500, whereas the children’s expense is HK$3,600 and HK$18,000. 100.The wife also stated that occasionally she would buy expensive jewellery. For the present purpose, the expenses for jewellery should not be included. Since the value of the jewellery should form part of the family assets. In that case, family assets are simply transferring from one hand to the other, if MPS be provided for this item. In any event, the wife has sufficient cash in the bank for her to buy jewellery if she wanted to. 101.The recent holiday expenses for the children during Easter vacation had been paid by the husband already. The wife and the children had gone to Australia during Easter this year. The tour fees was HK$20,900 per head excluding fees for tour guide, self-own expenses and spending etc, the husband had paid the wife a lump sum of HK$90,000 for the children for the Australia trip, therefore the expenses under this item should be adjusted accordingly. 102.My view is that the wife’s expenseon these 2 items i.e. entertainment/present and holidays are not reasonable. I am of the view that a reasonable sum for the expenses of entertainment/present should be HK$2,000 and holidays expenses should be HK$3,000 per month. 103.Likewise, the children’s expense on these 2 items should be slightly lower than the wife’s expenses on those items. Therefore, I consider that the children’s expense on entertainment/present for the sum of HK$3,600 for 4 children is reasonable. Further, my view to the children’s expenses on holidays should be HK$6,000 per month for 4 children. 104.I consider that the wife’s expenses on Medical/Dental, insurance (Life) and (Medical) are reasonable and necessary. Whereas for the item “Others”, the wife stated that it included the expenses for mobile phone and donation. 105.The wife should cover her own expenses on donation, I therefore consider that only the expenses of mobile phone is a reasonable item, and I find that the sum of HK$420 is reasonable. 106.By reasons of the aforesaid, the sub-total of the amount under the wife personal expenses should be HK$18,120. 107.For the children’s expenses, the amount asked for by the wife for the expenses of the school uniform and stationery are reasonable. As to extra tuition fees and extra curricular activities fee, the husband stated that some of the activities are not necessary. 108.These 2 expenses the wife asked for is HK$19,770. In fact, the 1st child required HK$5,796, the 2nd child required HK$1,008, the 3rd child required HK$6,604 and the 4th child required HK$6,362. 109.I consider that the extra tuition fees and extra curricular activities fee for each child are reasonable. These expenses should be supported by receipts and provided to the husband in due course, and if necessary to be adjusted subsequently. 110.I have already dealt with the children’s expenses on entertainment/present, meals out of home and holidays at paragraphs 79 and 101. 111.The children’s expenses for meals out of home should be HK$400 for 4 person, and 8 times per month, therefore it should be HK$3,200. 112.I accepted that the children expenses for clothing/shoes/accessories should be HK$4,000 for 4 children instead of HK$3,000 as suggested by the husband. 113.The wife’s breakdown of the pocket money and lunch money for the 2 elder daughters are of the amount of HK$50 per week per child and HK$200 per week per child, respectively. I am of the view that this is reasonable and that the total for the 4 children in the amount of HK$4,526 would be reasonable. 114.I accept that the expenses for medical/dental and Insurance (medical) as suggested by the wife are both necessary and reasonable, and I would also allow the expenses under the item “Others” being mobile phone for the 2 daughters. 115.By reason of the aforesaid adjustments, the monthly outgoings for the wife and the children should be the following items and amount:
116.Counsel for the husband also argued that the wife has a surplus of HK$11,560 from the rentals received by her on 2 properties (A1/216 para 100), and that the surplus should be used by the wife to cover her expenses. 117.However, Counsel for the wife submitted that the surplus from the rentals should not be taken into account as suggested. The wife further stated that the rental income generated from the properties was used for the monthly mortgage loan repayments. After paying the mortgage loans, she would save up the surplus as a buffer to cover the expenses of the properties such as maintenance, repairs, renovation, etc (A1/294 para 15(d) and A1/299 para 24). 118.It is well settled that 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. 119.I am of the view that the expenses for the maintenance, repairs and renovation of the two properties should more appropriately be considered at the final hearing, as these expenses are capital or long term expenditure, if the expenses incurred are substantial. 120.Whereas if the said expenditure is not substantial, I am of the view that the wife would not have any difficult in meeting those expenses, and no hardship would be caused to her as she has substantial funding in her bank accounts. 121.I therefore consider that the surplus of the rental should be taken into account as one of the resources that the wife could utilize. I see no reason why the recurring rental surplus could not be treated as a part of financial resources available to the wife. 122.After taking into account of the surplus of the rental i.e. HK$11,560, it should be HK$91,865 and to round up the MFP figure, I am of the view that $92,000 should be a reasonable sum for MPS for the wife to cover the immediate need of the wife and the children, particularly, the wife has substantial amount of cash in her bank account and stock value of around HK$400,000. 123.Currently, the husband is already providing a sum of HK$36,000 to the wife per month. By reason of the aforesaid, can the husband afford to pay an extra sum of HK$56,000 together with the undertakings he suggested? Issue 2 Can the husband afford to pay these sums? The husband’s Financial Position 124.Counsel for the husband submitted that in the husband’s 2nd Form E dated 15th March 2016, it was stated that the husband was receiving monthly rentals at HK$90,200 from 3 properties. The rental income generated from the properties was used to defray the mortgage loans (repayments). After paying the mortgage loans, there will be a surplus of HK$8,685. 125.The husband also has a monthly salary of HK$9,000 and average monthly bonus/drawings from GUL at HK$166,000 totaling HK$175,000 (A1/169). 126.The husband stated that his business had drastically deteriorated lately, affecting his future money income as a great proportion of his monthly income comes from the said bonuses and dividends (from the public listed stocks and shares) received (A1/175, A1/183 para 13). 127.It was further submitted on behalf of the husband that the director’s bonus had been reduced to HK$500,000 per year under “Director Fee” (A1/309), and the annual “Net Income” of GUL as at year ended 31st December 2015 has reduced to HK$581,791 (A1/310). 128.In addition, it was submitted that the husband received dividends in the average monthly sum of HK$52,000 from his investments in the public listed shares as from January to December 2015 (A1/170), and that with the global economic downturn, such income will be reduced substantially for the time to come. 129.It is admitted that the husband was a sole beneficial owner of GUL, and I am of the view that GUL finances are in fact managed by the husband. The husband had cash in his own bank account of around HK$2.8 million, and stock value of around 16.5 million and no liability. GUL is not a business running at a loss and there is a substantial amount of cash in the company’s bank account. 130.Without going into details of all the income and expenses of the husband, and for maintenance pending suit, the husband’s resources may include the husband’s ability to provide money by overdrafts or through loans. 131.Therefore, even if counsel for the husband submitted that the husband had income for around HK$317,200 and had monthly expenditure at HK$313,630, I am of the view that the husband is financially capable of paying an extra amount of HK$56,000 on top of the amount of HK$36,000 he had paid together with the undertakings he suggested. 132.In fact, I am not convinced that the ability to pay by the husband should be confined to all his personal income only. My view is that the revenue of GUL should be one of the resources that could be utilized by the husband to meet the expenses of the family household. 133.After taking into account of the husband’s ability to provide money by overdrafts or through loans,I am prepared to make robust assumptions about his ability to pay. I am not confined to the mere say-so of the payer as to the extent of his income or resources. 134.Of all these available or potential sources aforesaid mentioned, I am of the view that the husband is able to pay the wife HK$92,000 together with the undertakings he suggested as maintenance pending suit. 135.After considering all the circumstances of the case and the evidence received so far, I am prepared to make an interim maintenance order for the wife. 136.The General expenses of the wife for the sum of $35,255 should be divided by 5, which is $7,051 for each person. The wife maintenance should be 1/5 of the General expenses (i.e. $7,051) plus her Personal expenses (i.e. $18,120) which equals to a total sum of $25,171. 137.Currently, the husband is paying HK$28,000 to the wife, I see no reason to disturb this arrangement, which in effect, provide an extra HK$3,000 as a buffer to her in case she required to undertake any urgent maintenance to the 2 properties as suggested by her. 138.As to the maintenance pending suit for each child, the children expenses as assessed by me is HK$50,050 for 4 children. As each child has different level of expenses on extra tuition fees & ECA fees, the sum of HK$19,770 should be deducted by HK$50,050 first. After the said deduction, the amount should be HK$30,280 and to be divided by 4. 139.As a result, 1st child’s MPS should be HK$20,417 (HK$7,051 + HK$7,570 + HK$5,796). 2nd child’s MPS should be HK$15,629 (HK$7,051 + HK$7,570 + HK$1,008). 3rd child’s MPS should be HK$21,225 (HK$7,051 + HK$7,570 + HK$6,604). 4th child’s MPS should be HK$20,983 (HK$7,051 + HK$7,570 + HK$6,362). 140.Previously, I am of the view that the surplus of the rental i.e. HK$11,560 should be taken into account. I first divide HK$11,560 by 4, and arrive at a sum of HK$2,890. 141.This sum of HK$2,890 shall be deducted from MPS of each child. I am therefore of the view that 1st child MPS should be HK$17,527 (HK$20,417 – HK$2,890). To round up the figure, 1st child MPS should be HK$18,000 per month. 142.2nd child MPS should be HK$12,739 (HK$15,629 – HK$2,890). To round up the figure, 2ndchild MPS should be HK$13,000 per month. 143.3rd child MPS should be HK$18,335 (HK$21,225 – HK$2,890). To round up the figure, 3rd child MPS should be HK$18,000 per month. 144.4th child MPS should be HK$18,093 (HK$20,983 – HK$2,890). To round up the figure, 4th child MPS should be HK$18,000 per month. 145.I am of the view that the MPS for the total sum of HK$95,000 together with the undertaking suggested by the husband is affordable by the husband. Issue 3 In the event that an amount is ordered what date should that part of the order take effect from? 146.Counsel for the wife submitted that the maintenance pending suit be backdated to the Summons in February 2016 with appropriate adjustment for amount already paid for interim maintenance by the husband. 147.I am not prepared to backdate the aforesaid sum to the date of February 2015. My view is that the interim maintenance of the wife had been provided by the husband since 3rd February 2016 by consent, and I find that the present arrangement of HK$28,000 provided by the husband should not be disturbed. 148.As to the children maintenance, since the husband and the wife separated in March 2015. The husband had taken over the wife’s role to pay all the household and children expenses, instead of leaving money to be handled by the wife. 149.The husband will move out the MH by 31st July 2016, under the new arrangements, the husband and the wife will have separate household.Therefore, I am of the view that the increase of the children’s interim maintenance should take effect from August 2016. Order 150.Upon the husband undertaking to the court and to the Petitioner continues to pay the following expenses until further order :
151.It is ordered that
Costs 152.Since both parties do not succeed entirely in their case, I will make a decree nisi that no order as to costs of this summons, such order to be made absolute upon the expiration of 14 days. Lastly, I thank both counsels for their assistance.
Representation: Ms. Thelma Kwan instructed by Messrs. Chaine Chow & Barbara Hung for the Petitioner Ms. Annie Lai instructed by Messrs. Yu Sun Yau Mak & Lawyers for the Respondent | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment