P, Jm v. I, Ky

FCMC 179 / 2018

[2018] HKFC 81

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 179 OF 2018

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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 section 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the only child of the family, a baby boy E, who was born on the XX September 2016, and is now 20 months old, under section 5 of the same ordinance.

The main issues

2.The only issue to be determined at this stage is how much should the husband pay to the wife for her interim provision and that of E? The husband offered, at the hearing, to undertake to pay for a number of the wife’s expenses and those of E directly. He also made other proposals with respect to a number of the remaining expenses.

3.In summary the husband offered HK$56,103 per month (inclusive of undertakings) plus a small lump sum of HK$23,000 per month in total for both the wife and E. The wife for her part, originally sought HK$95,905 per month i.e. HK$58,437 per month for herself and HK$37,468 per month for E. She also asks that this amount be backdated to January 2018, which is when she issued her application. It is of note that in the wife’s original Form E, dated the 27 February 2018 (i.e. after the date of her application) that she said that her total expenses for both herself and E amounted to HK$43,480 per month. This did not include rent. However, many of the other expenses should not have changed. For the avoidance of doubt her Form E states as follows:

Part 4 Current Monthly Expenses

4.1 General

Item	Amount
Rent	HK$ 0.00
Mortgage instalments	HK$ 0.00
Utilities (electricity, gas, rates, telephone & water)	HK$ 3,000.00
Management fees	HK$ 0.00
Food	HK$ 5,000.00
Household expenses	HK$ 3,000.00
Car expenses	HK$ 0.00
Insurance premia	HK$ 0.00
Domestic helper(s)	HK$ 0.00
Other (specify)	HK$ 0.00
Total monthly household expenses	HK$ 11,000.00

4.2 Personal

Item	Amount
Meals out of home	HK$ 7,000.00
Transport	HK$ 3,000.00
Clothing / Shoes	HK$ 2,000.00
Personal grooming (including haircut and cosmetics)	HK$ 4,800.00
Entertainment / presents	HK$ 500.00
Holiday	HK$ 2,000.00
Medical / Dental	HK$ 500.00
Tax	HK$ 0.00
Insurance premia	HK$ 350.00
Interim maintenance (including rent, utilities and maintenance for the child and the Respondent)	HK$ 0.00
Contribution to parents	HK$ 4,000.00
Dependent family members	HK$ 0.00
Other (specify)	HK$ 0.00
Total monthly personal expenses	HK$ 24,150.00

4.3 Children

Item	Amount
School fees	HK$ 0.00
Extra tuition fees	HK$ 0.00
School books and stationery	HK$ 0.00
Transport to school (including school bus)	HK$ 0.00
Medical / Dental	HK$ 1,770.00
Extra Curricular Activities	HK$ 500.00
Entertainment / presents	HK$ 1,000.00
Holiday	HK$ 1,000.00
Clothing / Shoes	HK$ 1,500.00
Insurance premia	HK$ 0.00
Lunches and pocket money	HK$ 0.00
Other Transport	HK$ 2,560.00
Child-minding fees	HK$ 0.00
Uniform	HK$ 0.00
Other (specify)	HK$ 0.00
Total monthly expenses for children	HK$ 8,330.00
Total monthly Expenses (4.1+4.2+4.3)	HK$ 43,480.00

In her affirmation dated the 24 January 2018 however she said that she needed HK$95,905 per month broken down as follows:

39. Monthly Expenses

1.	E	$19,798
2.	T	$40,767
3.	Accommodation for E and T	$29,900
4.	Domestic Helper	$5,440
	Total:	$95,905

Unfortunately, the breakdown of expenses did not follow the Form E format and therefore it was a little difficult to follow. It is of note however that the estimate for accommodation was based on a rental of HK$26,000 per month.

The wife’s summons

4.In the wife’s summons dated the 25 January 2018 she further sets out her claim as follows:

2.   The Petitioner do pay the Respondent interim maintenance pending suit a total sum of HK$95,905 per month being as to HK$58,437 for the Respondent and as to HK$37,468 for E payable in advance on the 4^th day of each and every calendar month commencing from 4^th February 2018 until further Order;

3.   The Petitioner do reimburse and pay the Respondent HK$95,905 being interim maintenance for the Respondent and E for the month of January 2018;

Background 

5.The parties married on the XX July 2016 having cohabited from early 2013 and they separated on the 25 December 2017, when the wife moved out of the matrimonial home with E. This was then a relationship of approximately 5 years and a marriage of just under 18 months. The husband filed a divorce petition on the 4 January 2018, shortly after the wife moved out, based on mild unreasonable behaviour particulars. Notwithstanding that the petition was originally defended. On the 29 March 2018, at this MPS/interim maintenance hearing, the parties sensibly agreed that the particulars should be amended to a milder form, the intention being that the divorce itself should proceed on an undefended basis. I would strongly suggest that the parties ensure that this is done before they return to court on the 25 July 2018.  As I have said the parties have one child E who is now 20 months old and a Children’s Dispute Resolution hearing is scheduled for the 17 August 2018. There have been some initial difficulties over access, but that now appears to have settled down and the husband is currently seeing E on a regular basis.   

6.The Petitioner husband is a 39 year old banker and the wife is presently a 32 year old full time housewife. She previously worked in sales, but she gave up work prior to conceiving E. E was born on the XX September 2016.  

The law

Maintenance pending suit

7.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.

8.Counsel for the husband has also referred me 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.

9.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 E?

10.In essence the wife’s case is that the husband should pay what she now 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 has paid her nothing since she moved out of the matrimonial home and that she has survived to date by relying on her savings. Her family have also assisted her and initially she moved in with her mother, who resides in a small public housing unit. The husband for his part maintains that the sum of HK$50,000 withdrawn by the wife shortly before the commencement of these proceedings should be regarded as interim financial support and that he has therefore provided fully for her and E. In his 2^nd affirmation dated the 15 March 2018 he explained it thus:

Depleting the Joint Account

46. T and I opened a joint account sometime in late November 2017.  I subsequently put in HK$50,000 at T’s request.

47. T then withdrew the entire $50,000 at the bank counter on 21 December 2017 (4 days before she look E away).  This was done without any prior notice or agreement.  I was not aware of T depleting the joint account until much later in time.  On hind sight, it appeared to me that T started requesting me put assets in her sole name soon before she took E away.

48. I believe that the said HK$50,000 should be considered as maintenance advanced to T.  On my estimation that T’s monthly spending should not exceed HK$13,000 per month, the $50,000 should be more than sufficient to last till the MPS hearing, which is now scheduled on 29 March 2018.

This is not accepted by the wife.   

11.The husband for his part says that the wife’s estimated expenses are inflated. It is of note that he also cancelled the wife’s supplementary credit cards shortly after he issued proceedings and I accept that even on his own case he has not supported the wife and E, other than as set out above.

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

12.In the written submission of husband’s counsel, he helpfully summarized what appeared to be the position of the parties at the hearing as follows:

Summary

49. The following table summarizes the Wife’s claim, the Husband’s Response and the corresponding monetary value.

	T’s Demand (HKD)	Husband’s Proposal (HKD)	Monetary Value (HKD)
Wife’s financial Needs
Accommodation
Rental	18,500	By undertaking	18,500
Utilities	3,000	1,000	1,000
Removal Cost*	6,500	3,000	3,000
Renovation and  Furniture Cost*	100,000	Renovation – nil Furniture – 20,000	20,000
Transportation
Travel Expenses	3,000	500	500
Use of family car	11,000	By undertaking	11,000
Education	4,167	Nil	Nil
Maid	6,000	Nil	Nil
Food (both dine in and eat out)	10,000	3,000	3,000
Contribution to W’s parents	4,000	Nil	Nil
Vacation	2,000	1,000	1,000
Grooming, Clothing and Entertainment	6,800	1,000	1,000
Medical	500	By undertaking or reimbursement	500
Insurance	250	Nil	Nil
E’s Expenses
Education
Playgroup	2,833	By undertaking	2,833
Tuition fees,  school meal fees  etc.	8,000	By undertaking	8,000
Extra-curricular	1,000	By undertaking	1,000
Transportation	2,560	Nil	Nil
Medical	1,770	By undertaking or reimbursement	1,770
Baby Care Products	1,800	1,000	1,000
Food	5,000	2,500	2,500
Clothing, books and toys	2,500	2,500	2,500
Total			56,103 per month + lump sum of $23,000

*Note: Removal costs, Renovation Costs and Furniture costs are one time payments.

I will now refer to the disputed items in turn.

Rental

13.The wife produced a copy of an undated tenancy agreement at the hearing. This confirmed that her proposed rental is HK$18,500 per month and that the lease is due to take effect from the 1 April 2018. The wife’s mother appears to have entered into this on the wife’s behalf. The wife says that she has had to provide 24 post dated cheques to the Landlord in order to secure this property. Consequently, she asks that the husband pay for the rental as part of her maintenance as opposed to accepting his undertaking to pay the Landlord direct. In such circumstances I accept that it may be easier for the wife to receive these monies as part of the maintenance arrangement. This is also subject to the wife’s acknowledgment and agreement that she and E will reside in this property. This should be included in the preamble of the order.

Utilities  

14.The wife seeks HK$3,000 per month and the husband offers HK$1,000 per month. HK$1,000 per month seems a little on the low side, even for a small apartment. I will allow HK$2,000 per month. I would also suggest that going forward that the wife keeps copies of all utility receipts so that it will be easier to ascertain these precise costs later.

Removal Costs/Renovation and Furniture costs

15.This is more of a capital expense and as such it strictly speaking lies outside of the maintenance pending suit/interim maintenance protocol. The husband proposes paying HK$3,000 for the wife’s removal costs plus HK$20,000 for furniture expenses. I will accept both of these sums and I will include this in the order as the husband’s undertaking to pay for both, say within 7 days of the date of the judgment. There was also a discussion during the hearing about dividing up the contents of the matrimonial home. It is further directed that the parties proceed with this as soon as possible. It is of note that the wife’s rental property appears to be completely unfurnished.

Travel expenses

16.The wife originally said that she wanted to hire a car for HK$11,000 per month but later sensibly dropped this request. The husband for his part said that the wife could borrow the family car, but at the same time he was not willing for the car to be kept at the wife’s new apartment or to pay for a second car parking space. This also did not appear to be a serious or a sensible suggestion. I accept that the wife will need to use taxi’s and/or an Uber in order to facilitate the access arrangements alone and that although she may use the MTR at other times that the sum of HK$3,000 per month seems realistic in such circumstances. I will therefore allow that sum.

Education expenses

17.The wife is studying part time for a marketing degree. Although this has been put on hold temporarily she is keen to complete the course. I accept that this is a sensible thing for her to do and that she should be encouraged to resume her studies. The difficulty however is that this is more of a capital expense. There is also no definite time line concerning the wife’s resumption of studies. Consequently I will not make any allowance for this at this time.   

Maid

18.The husband suggested that the party’s original domestic helper, who is still employed by him and residing at the former matrimonial home, should assist the wife. Understandably perhaps the wife was not very keen on this suggestion. The wife for her part wishes to employ her own maid – but was in some difficulty given that she is not currently working. I will therefore allow a sum of HK$4,000 per month so that the wife can employ some local part time help in the short term.  

Food

19.There is a dispute about the cost of food. The wife asks for a total sum of HK$10,000 per month (according to the schedule but HK$12,000 according to her Form E) and the husband says that the costs should be no more than HK$3,000 per month. I have noted in addition that the husband’s original estimate for himself only was for HK$13,000 per month (i.e. HK$3,000 for general food and HK$10,000 per month for meals outside of the home). I was taken to some receipts and credit card statements during the course of the hearing which do not show an overly high standard of living in this respect. In such circumstances I will allow the wife HK$8,000 per month for food for herself and E. 

Contribution to the W’s parents

20.This will not be permitted. I accept that it is not truly an MPS/interim maintenance item.

Vacations

21.I do not accept the basic premise put forward by the husband that this should only cover the wife’s holiday expenses whilst in Hong Kong. It will be open to her to apply for leave to take E out of the jurisdiction of Hong Kong for holidays in due course. I will allow HK$1,500 per month in this respect.

Grooming, Clothing and Entertainment expenses

22.This was an area of significant dispute between the parties, with the wife seeking HK$6,800 per month and the husband offering HK$1,500 in total (HK$1,000 for grooming and clothing and HK$500 for entertainment as opposed to the HK$1,000 per month referred to in the schedule). The wife in support of her case says that the parties enjoyed a high standard of living during the marriage and that this sum is in keeping with that standard. The husband for his part disputes this and says that the parties “led a simple and down to earth lifestyle”. The evidence actually supports something in the middle with the parties sometimes dinning out at nicer restaurants, or buying slightly more expensive clothes. However, they did not do this often or on a very regular basis. Consequently, and on a broad brush basis, I will allow HK$5,000 per month under this heading.

Medical and Insurance Expenses

23.I will accept the husband’s undertaking to continue to pay for medical insurance for himself, the wife and E and to also reimburse the wife for any additional medical expenses not covered by the insurance for both herself and E. This shall also be included as an undertaking in the preamble of the order.

E’s direct expenses.  

24.I will accept the husband’s undertaking to pay for E’s school fees and all other miscellaneous educational costs directly to the school or other provider concerned. Similarly, I will accept his undertaking to pay for E’s agreed Extra Curricular activities. In addition, the husband shall pay a further HK$10,000 per month on a broad brush basis to cover E’s other expenses.

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

25.In total the husband shall pay a total sum of approximately HK$52,000 per month to be divided between the wife and E. In addition, he has undertaken to pay for other items. Consequently, the schedule of expenses will be as follows:   

Wife’s financial Needs
Accommodation
Rental	18,500
Utilities	2,000
Removal Cost*	(3,000*)
Renovation and  Furniture Cost*	(20,000*)
Transportation
Travel Expenses	3,000
Use of family car
Education	Nil
Maid	4,000
Food (both dine in and eat out)	8,000
Contribution to W’s parents	Nil
Vacation	1,500
Grooming, Clothing and Entertainment	5,000
Medical	By undertaking or reimbursement
Insurance	Nil
E’s Expenses	10,000
Education
Playgroup	By undertaking
Tuition fees,  school meal fees  etc.	By undertaking
Extra-curricular	By undertaking
Total	HK$52,000 + undertakings + sum of $23,000

The husband’s income

26.It is clear that the husband should be able to afford these amounts. His basic salary is just over HK$208,000 per month and in addition he receives a bonus which fluctuates depending inter alia on job performance. Last year this provided a further HK$96,355 per month. The husband maintains that he currently has massive outgoings including a provision for legal costs in the sum of HK$200,000 per month. This is a very high figure given the current circumstances. Although I accept that legal fees must be paid for on both sides, it also seems to me that provision for them may need to come out of capital. If one puts this to one side together with the husband’s estimate for US tax at a staggering HK$106,641 per month, then one is left with a figure of approximately HK$80,000 per month for the husband’s own outgoings – which seems like a much more reasonable sum. I would also suggest that the husband provide further clarification with respect to his US tax liability including evidence of actual payments made. I accept that he will also be required to pay Hong Kong tax, but again I can find no evidence of his recent Hong Kong tax liability or the payments made for the last tax year.     

Conclusion 

27.I will therefore make an order that going forward the husband shall pay HK52,000 per month PLUS his undertakings as set out above i.e. HK$21,500 for the wife and HK$30,500 for E. In addition, he will pay HK$23,000 within the next 7 days.  

Backdating

28.The wife’s tenancy agreement commences on the 1 April 2018. In addition, she has had to pay a two-month rental deposit. She issued the summons at the end of January. In such circumstances this order shall be backdated to the 1 February 2018. I do not accept the husband’s contention that it was reasonable to expect her to live on HK$13,000 per month or that the HK$50,000 paid into her account in December should be regarded as a reasonable amount for her interim financial provision.

Costs

29.Neither party was wholly successful when it came to quantum. However, it was clear, given the husband’s stance on any form of interim financial provision, that the wife had no option but to take out this application. Consequently, 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

30.Upon the party’s undertakings and other acknowledgments and agreements as set out above IT IS ORDERED THAT:

1)   The Petitioner shall pay maintenance pending suit to the Respondent for herself in the sum of HK$21,500 per month, the first payment to be backdated to the 1 February 2018 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 E in the sum of HK$30,500 per month the first payment to be made on the 1 February 2018 and thereafter to be paid on the 1^st day of each succeeding month until further order.

3)   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.

4)   It is further directed that the Petitioner do pay the Respondent the sum of HK$23,000 within the next 7 days.

Mr. Colin Wright instructed by Tanner De Witt for the Petitioner

Mr. Melvin Ho instructed by Kitty So & Tong for the Respondent