Lkl v. Wml

FCMC 594/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 594 OF 2017

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Coram: His Honour Judge I Wong in Chambers (Not open to Public)

Date of Hearing: 23 October 2017

Date of Judgment: 17 November 2017

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J U D G M E N T
(Maintenance Pending Suit)

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The Application

1.This is the respondent wife’s application for maintenance pending suit for herself and for the child of the family upon her divorce with the petitioner husband. 

2.For convenience, in this Judgment I shall refer the petitioner husband as “P” and the respondent as “R”.

3.P was initially legally represented but is now acting in person.  The summons, the affirmation evidence and the submissions are in English but the argument was conducted in punti.  P apparently has knowledge of the English language since he never expressed to court that he was not able to understand the evidence.  This Judgement is therefore given in English.  Should P would like to have the assistance of the court interpreter on the contents of this judgment, he may contact the court clerk who would arrange interpretation to be made within the District Court building.

The Background

4.The parties were married in December 2006.  At that time, P was 28 and R was 29. They are now 38 and 40 respectively. 

5.There is one child of the family (“the Child”), a boy born in April 2009 and is now aged 8.  He is presently living with R and is attending Year-3 in a local primary school.

6.On 16 January 2017, P applied for divorce on the ground of unreasonable behaviour on the part of R. In response, R filed an answer and cross-petition based on the same ground on 3^rd March 2017.  As of now, no consensus has been reached between the parties for the disposal of the main suit.

7.By a summons filed on 18^th April 2017, R applied for maintenance pending suit and interim maintenance for the benefit of herself and for the Child (“MPS”) with costs against P.  This is the application now before me.

8.During the call-over hearing of 24 April 2017, I gave the following orders:

(a) The custody, care and control of the Child be granted to R with reasonable access to P; and

(b) P is to pay R a sum of $5,000.00 per month as interim maintenance pending suit for the Child and $3,000.00 per month as interim maintenance pending suit for the Respondent commencing from 1^st May 2017 and thereafter payable on the 1^st day of each and every succeeding month until further order (“the Interim Order”);

9.I also gave directions for the parties to exchange their affirmations for the purpose of argument.  However, notwithstanding that P was given two opportunities to file his affirmation in opposition, he failed to do so.  As a matter of fact, not only that he did not file any affirmation in response to the application, he also failed, despite court’s directions, to file his Form E for the purpose of the ancillary relief proceedings.  As such, as of now, he has not given any disclosure of his financial situation.  There is not a single piece of evidence from P.

10.I also need to mention that despite the Interim Order P has not paid a single cent for the maintenance of R and the Child.  Indeed, it is not in dispute that P ceased paying any expenses for the family ever since he left the former matrimonial home (“the Former Matrimonial Home”) in September 2016. 

The Legal Principles

11.The Court of Appeal in HJFG v KCY [2012] 1 HKLRD 95 summarised the established principles,

“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.

34. By definition, therefore, 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. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing. In the present case, the judge recognised the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.

35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.

36. 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. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the judge’s reference to the source of those principles:

i. The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

ii. A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

iii. 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. That budget should be examined critically in every case to exclude forensic exaggeration.

iv. 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 a situation, the court should err in favour of the payee.

38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties.  While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad brush’ basis.”

12.Guided by the above principles, I now turn to the Application.

Discussion

(1) Reasonable Needs

13.To start with, I have to look at the reasonable needs of R and the Child.  This has to be considered in light of the marital standard of living.

14.Both parties were working during the marriage.  P worked as a Project and Sales Assistant Manager in an electronic toys company earning about $31,000 per month.  As for R, she worked and is still working as a Sales Co-ordinator in a paper packaging company earning about $16,500 per month. 

15.The family used to live in the Former Matrimonial Home that was purchased in the sole name of R.  She said the family had overseas trip once in about 1 ½ years. The Child was studying in a traditional elite school and received after-class tuition.  He was active in a variety of extracurricular activities and attended musical instrument classes including piano and Chinese drum.  Overall, the family enjoyed a living standard comparable to that of a lower middle class family in Hong Kong.

16.R’s evidence is that before the breakdown of the marriage P used to pay a substantial part of the family’s general expenses including mortgage payment, management fees, utilities expenses, food and household expenses.  He also paid part of the Child’s expenses.  The total monthly expenses, inclusive of R’s own personal expenses, were about $31,490 for which P contributed $16,960.

17.As said, P ceased paying any living expenses since moving out of the Former Matrimonial Home in September 2016.  As R’s monthly income alone was insufficient to cover all the monthly expenses, she refinanced the Former Matrimonial Home for $180,000 in order to make up for the shortfall for the time being.

18.There has been a change in R’s circumstances since her application.  I was told in the argument that R has been able to rent out the Former Matrimonial Home in September this year for a monthly rental of $13,000.  This stream of income should be able to greatly attenuate her financial predicament; consequently, she is seeking a much lesser sum in the present application.  This, however, is not without a price.  In truth, this is a sacrifice on the part of R and the Child - they had to evict themselves from the Former Matrimonial Home and are now staying at her parents’ home on some days of a week and the rest at her elder sister’s home.

19.The current total monthly expenses of R and the Child with breakdown are as follows:

(a)	General Expenses
	Mortgage Payment	$7,453
	Utilities Expenses	$400
	Management Fees	$854
	Food	$2,500
	Household expenses	$400
	Insurance premia	$35
	Food and accommodation expenses paid to R’s elder sister	$3,000
	Total:-	$14,642
(b)	Personal Expenses
	Meals out of home	$1,000
	Transport	$500
	Clothing/shoes	$450
	Personal grooming	$530
	Entertainment/presents	$500
	Holiday	$500
	Medical/Dental	$300
	Insurance premia	$432
	Contribution to parents	$5,000
	Telephone	$279
	Total:-	$9,491
(c)	Child’s Expenses
	School Fees	$1,800
	Extra Tuition Fees	$720
	School books and stationery	$270
	Transport to School	$281
	Medical/Dental	$300
	Extra Curricular Activities	$603
	Entertainment/presents	$500
	Holidays	$400
	Clothing / Shoes	$350
	Lunches	$422
	Other Transport	$300
	Uniform	$100
	Haircut	$60
	Transport to School (Drop off and Pick Up)	$556
	Drum Class	$527
	Extracurricular Books and Reference Books	$250
	Piano Class	$800
	Schoolbag	$60
	Total:-	$8,299

20.Thus, the total monthly expenses are $32,432 ($14,642 + $9,491 + $8,299). 

21.At the beginning, R sought MPS in the sum of $15,200 per month of which $8,200 was for her maintenance and the remaining $7,000 for the benefit of the Child.  Now with the much-needed rental income of $13,000 together with her income of $16,500, there is only a shortfall of $3,000.  This is the sum that R is seeking to be payable from P pending the determination of her ancillary relief claim.

22.As said, P did not file any evidence, whether as regards his financial situation or the reasonableness of R’s expenses.  There was also no challenge from him on any specific item during the hearing.  When being asked by the court as to whether or not he agreed to pay $3,000 as MPS, initially P quickly agreed but then retreated by indicating that R does not need so much.  Taking a broad brush approach and considering the unchallenged evidence on the parties’ marital standard of living, I find the expenses as claimed by R reasonable.  I must also add that how R has been juggling her means is much appreciated.  She and the Child have made immense sacrifice by moving out of the Former Matrimonial Home thereby rendering themselves virtually homeless.

(2) Ability to Pay

23.I now turn to P’s ability to pay.

24.P fails to make any disclosure of his financial means.  Mr So, on behalf of R, invited this court to draw adverse inferences against P that he has the ability to pay the amount.

25.P said during the hearing that he was unemployed in February 2017.  From mid of February 2017 to mid of April 2017, in order to keep him afloat he worked as an estate agent earning a basic monthly salary of $5,000.  He is back to his trade and is working in an electronic toys company earning about $30,000 per month.  This is a job that he started about 3 months ago.  He, however, added that he had debts of about $160,000 and for this, he is making payment of $20,000 per month.  He is also keeping a car for which he has to pay $3,000 per month. 

26.What P said is unsworn statement unsupported by any documentary evidence.  There is no reasonable explanation from him as to why he failed to give any disclosure of his financial situation.  The only inference that I can draw is he refuses to do so.  I decline to rely on his mere say-so as to the extent of his income or resources.  R said that P now resides in his parents’ public housing unit. This would not have caused him any extra expenditure of significant amount.  In the absence of any evidence from P or any denial from him, I am prepared to assume the fact that he is now living with his parents has no negative implication on his financial situation.  In this connection, it should be noted that during the hearing at no time did P indicate that he is not able to pay $3,000.  

27.In the circumstances, I should not hesitate to make robust assumptions about his ability to pay.

28.I have no doubt that I should order P to pay $3,000 per month as MPS for R and the Child.  Mr So suggested that this sum should be apportioned to $2,000 for R and the remaining $1,000 for the Child.  I agree to his suggestion and this is the order that I am going to give.

29.The next question is when this sum should commence to be payable.  P asked for it to be back-dated to 1 May 2017, the date of first payment of the Interim Order.  I cannot accept this. First, it was only in September 2017 that R was able to have the Former Matrimonial Home rented out.  Secondly, the sum of $8,000 that was ordered on 24 April 2017 to be payable by P was suggested by and agreed to by him.  At that time, there was no mention or indication from him that this amount was unreasonable or excessive or that was beyond his ability to pay.

30.Notwithstanding that R should have been able to receive some rental income by the end of September this year, I consider that she and the Child should be given a small sum of extra money for contingency purpose.  The monthly sum of $8,000 that I ordered on 24 April 2017 should stand up to October 2017.

Orders

31.For the above reasons, I give the following orders:

1. P is to pay R for her maintenance pending suit in the sum of $2,000 per month, commencing from 1 November 2017 and thereafter on the 1^st day of each and every succeeding month until further order of the court.

2. P is to pay R for the interim maintenance of the Child in the sum of $1,000 per month, commencing from 1 November 2017 and thereafter on the 1^st day of each and every succeeding month until further order of the court.

Costs

32.It is abundantly clear that all along P has been trying his utmost to evade his responsibility to the family and his duty to court.  He should recognise that this would inevitably be met with stern disapproval of the court.  On the other hand, R has been reasonable in the conduct of the proceedings and is successful in her application.  There is no reason why costs should not follow the event.  I give an order nisi that the costs of the application, including all costs reserved, be borne and paid by P, to be taxed if not agreed.

The Petitioner appeared in person

Mr C Y So of Chan & Chan, Solicitors, appeared for the Respondent