N v. W
Read the full judgment text of FCMC 5026/2015 on BabelCite. This Family Court judgment was delivered on 8 September 2017 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Maintenance Pending Suit – Maintenance Pending Suit Ordinance (Cap 192) s.3 – Reasonable and fair – Joint and several liability – Children's expenses – School fees – Therapy costs – Costs – Petitioner wife unemployed starting business – Respondent husband claims debt – Court orders parties to share major expenses equally given 50:50 care arrangement – No order as to costs – Application by Petitioner wife for maintenance pending suit to cover reasonable living costs of Petitioner and children including school fees and play therapy costs – Petitioner claims liquidated assets and unemployed while setting up new business C Ltd – Respondent husband claims Petitioner has access to significant funds and he is in debt but admits paying for children when in his care – Court notes previous orders for joint custody and shared care on 2/2/5/5 basis – Court applies Section 3 MPPO Cap 192 principle that order should be reasonable in all circumstances – Court finds parties have earning capacity and should maximize it to provide for children – Court orders parties jointly and severally liable for children's expenses including school fees, medical dental expenses, therapy costs, school trips and camps – School bus costs to be borne by party with children in their care – Husband undertakes to pay half of children's school fees – No order as to costs made absolute in 14 days
Legal issues: Maintenance pending suit application · Costs of application
Outcome: Application dismissed in part; parties jointly and severally liable for children's expenses; no order as to costs.
Cites 2 cases
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FCMC 5026/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 5026 OF 2015 ----------------------------
---------------------------- Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Date of Hearing: 7 August 2017 Dates of letters received from the parties’ solicitors as requested by the court: 14, 21, 29 and 30 August and 4 September 2017 Date of Judgment: 8 September 2017 ----------------------- JUDGMENT ----------------------- Introduction 1.This is an application by the Petitioner wife dated the 13 September 2016 as follows:
2.This application was eventually heard just four days after the 1st Intervener’s application to transfer up to the High Court, the Respondent husband’s section 17 application dated the 7 April 2016 to set aside the transfer of 490 shares from the Petitioner wife to the 1st Intervener. Although the subject matter is different I have therefore decided to hand down both the ruling on the transfer up and this judgment on maintenance pending suit, together. 3.As indicated in the Ruling I have set out the background to this case in my judgment on litigation funding dated the 29 August 2016. In addition, reference can and should also be made to the judgment on the arrangements for the children dated the 28 April 2017. In that judgment I made an order inter alia as follows:
4.In addition, it was recommended that elder child S have ongoing weekly therapy to help her deal with “moderate to severe levels of emotional distress”. I also further commented as follows:
5.It is the wife’s case that she has been responsible for all of the major expenses for the children since 2011. She has produced documentary evidence in support of what she says in exhibit LCN3-2 attached to her 3rd affidavit dated the 23 January 2017. Although the schedules produced also include other general expenses, such as rent and utilities etc, it is of note that they fully itemize the wife’s payment of school fees and for the cost of the children’s Nanny during the period that she was employed and latterly for payment of play therapy for the children with Dr P. I accept that she was wholly responsible for these costs as indicated. 6.It is the wife’s case that she has liquidated all of her available assets and that she is currently unemployed, although she has also said that she has recently set up a new business – C Ltd, with funds allegedly borrowed from an independent source in Pasadena USA. She intends to operate her business from home – which is similar to the business model that her brother describes in his affidavits. In any event she anticipates that it will take at least two years to get this new business up and running. Consequently, she has written to the husband’s solicitors in an e-mail dated the 1 August 2017 as follows:
7.The wife remains convinced that the husband has significant undisclosed assets at his disposal and refers to his disclosure to date as being “opaque”. She also refers to the husband’s significant earning capacity. However, on the evidence currently before the court there is no evidence that the husband has any undisclosed assets. On the face of it I would though accept that he has a potentially higher earning capacity than the one that he currently appears to enjoy. 8.The husband for his part also repeats his case on the shares and the section 17 application. He also remains convinced that the wife has access to very significant funds and that she has likewise failed to make full and frank disclosure of her means. Again, there is no concrete evidence to support the husband’s contention in this respect. Simply repeating his case on the section 17 application is not sufficient. Needless to say this is vigorously opposed by the wife in any event. In the husband’s updated Form E dated the 13 July 2017 he says this of the allegation that he has not contributed properly to the children’s expenses:
9.In other words, it is accepted by the husband that he has provided for the children when they are in his care, but implicit in that acknowledgment is the fact that historically he has not paid for the children’s school fees or for their other major expenses. 10.He also maintains his view that the wife is still working for her brother. He further says that he has no money and that he is significantly in debt. He adds that he had been wholly responsible for all of the household expenses, including the expenses for the children, in the earlier part of the marriage. Whilst that may be true, the court is now concerned with how the children are going to be provided for going forward. 11.As before, and as I pointed out in the judgment on litigation funding dated the 29 August 2016, I am in no position to form a definitive view with respect to the many allegations and counter allegations that exist in this case. I am though able to form a view with respect to how the children’s expenses should be funded going forward, and this is regardless of what has happened historically. In a nut shell I am of the view that the parties shall be jointly and severally liable for those expenses. The law 12.I set out the law on Maintenance pending suit and litigation funding in my previous judgment, but for the avoidance of doubt I repeat that 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. This is particularly pertinent given the circumstances of this particular case. 13.Reference has been made 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:
Discussion 14.At the hearing the husband offered to pay for half of C’s school fees. He also confirmed that he had paid for half of S’s school fees up to the 1 January 2018. Ms Rattigan confirmed that her client would continue to pay for half of the children’s school fees going forward and that he was prepared to give an undertaking to this effect. Consequently this shall be included as an undertaking in the preamble of the order. The husband did not agree to pay for half of the school bus fees, or for medical and dental expenses, save that he agreed that he would pay for the children’s expenses when they are in his care. He did not agree to pay for half of the medical insurance policy or for the cost of therapy/counselling save for half of the cost of the therapy with M. I subsequently queried the situation further and the matter was further clarified in the letter from Withers dated the 4 September 2017, when they stated on behalf of the husband as follows:
Consequently, and for the avoidance of doubt there shall also be an acknowledgment in the preamble to the order to the effect that both parties have paid for half of the costs associated with C’s second Superflex program. 15.It is further directed that the parties shall be jointly and severally responsible for any fees associated with the psycho assessment of C with Dr O. I also accept that the cost of medical/dental expenses with Dr T and S shall be divided equally. Given the alleged financial position of each party I accept that it may not be feasible for the parties to have health insurance for the children. This is a matter of significant regret and some concern. However, given the fact that both children have been struggling significantly, as set out in the children’s judgment, it seems to me that it is imperative that S in particular receives ongoing therapeutic support regardless and that the cost for this shall also be split equally between the parties. 16.Going forward it seems to me that both parties shall be equally responsible for the children’s other major expenses which shall include the cost of school trips, school camps and any major items such as a computer for school purposes. In so far as the school bus is concerned, as I understand it when the children are with the husband he arranges for their transport to and from school and he is responsible for the cost associated with that. Likewise, the wife shall also be responsible for the cost of transporting the children to and from school when they are in her care. 17.Given that both parties are caring for the children more or less on a 50:50 basis it follows that they should be more or less equally responsible for the children’s expenses. The wife’s arguments with respect to her historical contribution will need to be dealt with at trial, in the event that the parties are unable to reach agreement in the meantime. Both parties have an earning capacity of sorts. I accept that on the face of it the husband’s earning capacity is greater than that of the wife’s. Notwithstanding that it is incumbent upon both parties to maximize their earning capacity so that they are each able to properly provide for their children from a financial perspective pending the final outcome of this litigation. Order 18.Other than as set out above I will therefore dismiss the mother’s summons dated the 13 September 2016. There shall be an order nisi to be made absolute in 14 days’ time that there be no order as to costs.
Mr Robin Egerton instructed by Robertsons for the Petitioner Ms Mairead Rattigan instructed by Withers for the Respondent | ||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 5026/2015