G, Dv also known as Dl.V v. G, Vna also known as Vna. G
Read the full judgment text of FCMC 7518/2017 on BabelCite. This Family Court judgment was delivered on 16 January 2018 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Maintenance pending suit – Interim maintenance – Quantum – Costs – District Court – Matrimonial Proceedings and Property Ordinance Cap 192 s.3 and s.5 – HJFG v KCY – Wife unemployed, husband earns HK$33,900 – Court applies broad-brush approach – Maintenance pending suit HK$1,000, interim maintenance for son HK$1,000, interim maintenance for daughter HK$500 – Husband contributes 30% of wife's costs – First Appointment adjourned to 8 June 2018
Legal issues: Quantum of maintenance pending suit and interim maintenance · Costs contribution
Outcome: Maintenance pending suit and interim maintenance granted. Costs order made.
Cites 2 cases
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FCMC 7518/ 2017 [2018] HKFC 5 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 7518 OF 2017 ----------------------------
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--------------------------------- J U D G M E N T --------------------------------- Introduction 1.This is an application by a Petitioner wife for maintenance pending suit for herself and interim maintenance for the two children of the family, an elder boy now aged 13 and a six-year old girl, pursuant to sections 3 and 5 of the Matrimonial Proceedings and Property Ordinance Cap 192. 2.The parties currently have joint custody of both children, with the wife having care and control of the son and the care of the daughter being shared between the parties on an interim basis. The daughter currently spends two nights per week with the mother from after school on Thursday until Saturday evening at 8:00 pm. She is based with her father for the remainder of the time. The main issues 3.The main issue to be determined is how much should the husband pay to the wife as maintenance pending suit and interim maintenance for the two children of the family? The wife seeks a round figure of HK$20,000 per month. She has not broken this down further. Background 4.The parties, who are both Filipino, married on the XX May 2005 and separated in July 2014. This was then a marriage of about 9 year’s duration. The elder child was born a little before the parties married and therefore the relationship must have been in existence for some time before then. The divorce petition was issued by the wife on the 8 June 2017 based on two year’s separation. According to the wife’s Form J she has a new boyfriend, but it is not clear if there are any financial implications arising out of this new relationship. The wife is currently relying on CSSA for herself and the son. She does not receive CSSA for the daughter. The wife is not presently working in any capacity and maintains that this is difficult given her child caring responsibilities. She says that she would like to work part time. 5.The husband is 36 years old and he works as an Architectural Draughtsman. As I have said the wife is currently unemployed. She is 35 years old. The law Maintenance pending suit 6.The ordinance 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 and their ability to pay may be dealt with at a later date at a full ancillary relief hearing if there is no agreement in the meantime.
Interim maintenance 7.Similarly the law on interim maintenance for children is well known and not in dispute. Section 5 of the Matrimonial Proceedings and Property Ordinance, Cap 192 states that maintenance for children can be ordered either before or after the granting of the decree for divorce. In the event that an application is made for interim maintenance, the court will adopt the same approach as when considering an application for maintenance pending suit under section 3 of the same ordinance. Thus 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 also approached on a broad-brush basis. 8.In addition reference can be made 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:
How much maintenance should the husband pay to the wife as maintenance pending suit/ interim maintenance? The party’s income 9.The husband earns a salary of HK$33,900 per month. There was some dispute about his earning capacity and whether or not he had other financial resources at his disposal including additional sources of income. The husband dealt with the queries raised by the wife during the course of the hearing and in the main his responses were believable. Although I accept that this matter is likely to be the subject of further enquiries, for the purposes of this application I am proceeding on the premise that the HK$33,900 per month is currently his only income. I also accept, subject to the production of further discovery, that it is not reasonable to expect the husband to try to rent out the former matrimonial home in the Philippines, which he says is in a poor structural condition due to termites. 10.The wife is not currently working. According to the Form E she previously worked as a part time restaurant server. The wife suggested during the hearing that it would make more sense for both children to be cared for by her on a full time basis and for the husband to take on the traditional role of wage earner. For the avoidance of doubt it is not appropriate for this matter to be approached in this way. There was also an issue concerning the wife’s earning capacity longer term and the affect that any court order might have on her entitlement to CSSA. The reasonable needs of the wife and the children when they are in her care and the husband’s ability to pay 11.In her Form E dated the 21 July 2017 the wife sets out her expenses as follows:
Attach copies of the latest rental receipt.
She says that these expenses are for herself and the son. She asks that the maintenance be rounded up to HK$20,000 per month to account for the money she also has to spend on her daughter when she is in her care. 12.The husband for his part sets out his expenses in his Form E of the 3 October 2017 as follows:
Attach copies of the latest rental receipt.
General point 13.As a general point it seems to me that this is one of those very unfortunate cases where on the face of it there is simply insufficient money to go around. Longer term both parties will need to maximize their earning capacity. This will mean the wife returning to work, at least on a part time if not on a full time basis. The husband will also need to consider his options. It is the wife’s case that the husband earnt more previously. The wife’s expenses 14.Although this was not raised during the hearing, I understand from the husband’s letter to the court dated the 20 November 2017 that he queries inter alia whether or not the wife is actually paying rent. This will no doubt also be subject to further discovery in due course. It is of note that the wife has only produced a typed up rental agreement which appears to record the fact that she is paying rent of HK$4,500 per month to her boyfriend. I accept that on the face of it this does not appear to be believable. As things stand at present however all of the wife’s other expenses appear to be reasonable save that I do not accept that the shared care arrangement of the daughter is likely to lead to additional cost to the wife of over HK$3,000 per month. This is especially given the fact that the father is responsible for most, if not all, of the daughter’s actual expenses. Also given the present circumstances I don’t accept that provision of HK$500 per month for the son and the wife (i.e. HK$1,000 per month in total) for holidays is an acceptable expense. Thus on a broad brush basis I accept that the wife is likely to have expenses in the region of HK$10,200 per month as follows:
Attach copies of the latest rental receipt.
What can the husband afford to pay? The Domestic helper 15.The wife argues that this is an expense that the husband can ill afford especially as the daughter is now with her from Thursday after school until Saturday evening. The husband for his part says that he needs the assistance of a domestic helper not only to take care of his daughter when she is with him, but also to help him with his domestic chores. I have some sympathy with both sides on this point. Ultimately though I am persuaded that there is really no alternative but for the father to dismiss the services of the full time domestic helper at this time. I accept that he will need to employ a part time helper and I will allow him HK$2,000 per month for that purpose. The matrimonial home 16.As indicated above I also do not think it reasonable for the husband to rent out the former matrimonial home, if what he says about it is true. It is accepted that the husband is responsible for the mortgage repayments. The credit card debt 17.The wife also suggested that there may be some doubling up of the husband’s food costs and his credit card expenses. The husband strenuously denies this but I accept that this may be the case. I will therefore reduce the husband’s food and household expenses by HK$2,000 per month. The credit card repayments shall remain the same. Overall 18.Longer term it seems to me that the husband will need to make further adjustments to his outgoings. For example, he may need to reduce his rent, currently fixed at HK$9,100 per month. As with the wife I will also remove the reference to provision for holidays for the time being. Consideration should also be given to either reducing payment on insurances or taking a “holiday” from the monthly payment. Other than that it seems to me that there is very little room for the husband to reduce his outgoings further. I accept that he currently has essential expenses of at least HK$31,200 per month as follows:
Conclusion 19.Consequently I shall make an order on a very broad brush basis that the husband do pay maintenance pending suit to the wife for herself in the sum of HK$1,000 per month, interim maintenance for the son also in the sum of HK$1,000 per month and interim maintenance for the daughter in the sum of HK$500 per month. I think with a little juggling the husband should be able to pay this sum. Costs 20.The wife has been largely unsuccessful in her application, but it is also of note that the husband did not make any offers at all. Consequently, she had no alternative but to issue an application otherwise it is likely that she would not have received any form of maintenance from the husband on an interim basis. I am also mindful that the wife is legally aided. Consequently, I have decided to exercise my discretion and to make an order nisi to be made absolute in 28 days’ time that the husband do contribute 30% of the costs of and arising out of the wife’s summons dated the 27 July 2017 in so far as it relates to maintenance pending suit/interim maintenance only. The wife’s own costs shall be taxed in accordance with Legal Aid regulations. Order 21.Consequently I shall make an order as follows:
Ms Rebecca Chiu of Chiu & Co appeared for the Petitioner The Respondent appeared in person |
Cases cited in this judgment
Further hearings and rulings under FCMC 7518/2017