Kwcw v. Kpi
Read the full judgment text of FCMC 9801/2017 on BabelCite. This Family Court judgment was delivered on 10 May 2019 before Deputy District Judge R So.
Matrimonial Causes – maintenance pending suit – Matrimonial Proceedings and Property Ordinance Cap. 192 s.3 – reasonable expenses – ability to pay – legal costs – District Court – Wife claimed HK$67,500 per month – Court ruled reasonable expenses HK$80,500 excluding Husband's direct payments – Husband has ability to pay but savings limited – Legal costs application declined due to lack of detailed breakdown – Maintenance pending suit ordered at HK$66,000 per month – No order as to costs reserved.
Legal issues: Reasonable expenses for the Wife and the Children · Husband's ability to pay · Legal costs application
Outcome: Maintenance pending suit ordered at HK$66,000 per month. Application for legal costs declined.
Cited by 1 case · Cites 2 cases
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FCMC 9801/2017 [2019] HKFC 124 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO 9801 OF 2017 ________________________ BETWEEN
________________________ Before: Deputy District Judge R So in Chambers (Not open to public) Date of Hearing: 15 March 2019 Date of Judgment: 10 May 2019 ________________________ J U D G M E N T (Maintenance pending suit) ________________________ The Application 1.This is the application taken out by the petitioner wife (“Wife”) for maintenance pending suit (a) for herself and for the two children of the family (“Children”); and (b) for legal costs against the respondent husband (“Husband”) by way of summons (“Summons”) dated 8 May 2018. In the Summons, the Wife did not specify the amount claimed against the Husband. 2.The Wife filed her 2nd Affidavit dated 7 May 2018 (“Affidavit in support”) and specify the amounts she claimed, in paragraph 35 therein, as follows :-
3.The Husband opposed to the application and filed the 4th Affidavit dated 2 October 2018 (“Affidavit in opposition”). 4.The Wife then filed her 3rd Affidavit dated 5 November 2018 (“Affidavit in reply”) and updated the amount she claimed to be HK$67,500 per month for herself and the Children, in addition to the Husband continues paying the amounts directly for his share of the Children’s expenses. Background of the case 5.The parties were married in October 2009. There are 2 Children born in their wedlock, namely the elder daughter (“Daughter”) born in 2010, now 9 years old and the younger son (“Son”) born in 2014, now 5 years old. Both are studying in Hong Kong. 6.The Wife is now 41 years old. She has stated in her Form E that she is a self-employed property account manager. 7.The Husband is now 41 years old. He is a pilot working at a local airline. 8.During the marriage, the family used to live at a rented house in Sai Kung (“Former Matrimonial Home”), and the rent was paid by the Husband’s company. 9.The Wife filed the Petition for divorce on 28 July 2017 based on one year separation with consent. 10.According to the Wife, as she is only working part-time, she has been “lack of income” since September 2017. 11.On 21 August 2017, the Husband took out ex parte application. It was granted by Deputy District Judge A N Tse Ching that interim custody, care and control of the 2 Children be to the Husband, and an ouster order was granted against the Wife. 12.The Husband was directed to take out an inter parte summons and on the return date on 11 September 2017, by way of consent, it was ordered (“Consent Order”), inter alia, that :-
13.In the Consent Order, there were various undertakings made by parties, including :-
14.In the week of 9 October 2017, the Husband and the children moved into a new place for a monthly rental of HK$67,000, with the entirety of the rental subsidised by the Husband’s employer. 15.By the joint application of the parties, it was ordered on 26 February 2018 (“Custody Order”) that joint custody and shared care and control of the Children be granted to the parties, and that the Children Dispute Resolution hearing is no longer needed. Detailed care arrangement was included in the order, which I am not going to repeat here, save to repeat that it was agreed that, inter alia, the Children shall spend about half of their time with each parent (to be exact, apart from holidays, the parties have agreed that the Wife will spend 55% of the month with the Children, while the Husband will spend 45% of the month with them), but there is no fixed schedule in view of the job nature and work hour of the Husband. 16.On 14 June 2018, it was ordered that interim interim maintenance in the monthly sum of HK$50,000 be paid by the Husband to the Wife. 17.Decree Nisi was granted on 18 September 2018. 18.The Wife subsequently moved into the current place, with a monthly rental of HK$43,000. There are different allegations by the parties against each other, including the non-compliance of undertaking that the Husband had cut the 2 existing credit cards that the Wife can use and the Wife had not maintained the spending patterns. As parties could not reach agreement on the sum of interim maintenance, the maintenance pending suit was adjourned for argument hearing. The legal principles 19.Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”), the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of presentation of the petition or the making of the application and ending on the date of the determination of the suit, as the court thinks reasonable. 20.The legal principles governing any maintenance pending suit application require the court to balance the reasonable needs of the applicant spouse (and the concerning children where applicable) against the paying spouse’s ability to pay by using a broad brush approach. In HJFG v KCY [2012] 1 HKLRD 95, the Court of Appeal has summarised the established principles as follows:-
21.In relation to legal costs, it is trite law that the court has the power to include an element for the contribution towards a spouse’s legal costs in an order for maintenance pending suit under section 3 of MPPO. The legal principles governing this area are stated in Currey v Currey [2006] EWCA Civ 1338, which have been adopted by the Hong Kong Court of Appeal in HJFG v KCY [2012] 1 HKLRD 95. 22.Her Honour Judge Grace Chan has succinctly summarised the conditions for costs allowance in LSDS v BX (FCMC 8189 of 2017, 22 December 2017), as follows :-
23.In the case HJFG v KCY (supra), Hartmann JA (as he then was) reiterated the need to have a sufficiently detailed breakdown of the anticipated costs. He said in the Judgement, inter alia, the following :-
Issues of the case 24.Counsel for the parties have agreed the following to be the issues for the court’s determination :-
The Wife’s case 25.It is the Wife’s case that the Husband has always been the breadwinner of the family. He has been maintaining the family financially, while the Wife has been focusing on taking care of the household and the Children. Although the Wife has work both before and after she got married, it is the Wife’s case that none of her work experiences after she got married was intended to generate an income to support the family. According to the Wife, she has no income since September 2017. 26.According to the Wife’s Form E filed on 16 October 2017, the total monthly expenses were HK$195,584, with the breakdown as follows :-
27.In the Wife’s Affidavit in support, she said she had reduced the monthly expenses. The total monthly expenses were HK$128,815, with the breakdown as follows :-
28.In the Wife’s Affidavit in reply, she further updated and reduced the amount of expenses. The total monthly expenses were HK$100,133, with details as follows :-
29.In paragraphs 82 to 85 of the Wife’s Affidavit in reply, she summarised her position in relation to maintenance pending suit. In gist, the Wife noticed that after making adjustments to the expenses, her and the Husband’s total monthly expenses were about HK$100,133 and HK$178,530 (with HK$178,530 being the reasonable total monthly expenses of the Husband according to the view of the Wife) respectively. With the Husband’s total monthly income of about HK$243,401, this family needs an additional HK$35,262 per month (HK$100,133 + HK$178,530 – HK$243,401). The Wife suggested that both parties have to make a joint effort to further adjust the expenses and she proposed that the shortfall of HK$35,262 per month be shared equally between the parties (ie. by reducing HK$17,631 each), so that the Wife’s expenses will be HK$82,502 (ie. HK$100,133 – HK$17,631). 30.The Wife further explained in paragraph 84 therein that her “earning capacity cannot be higher than HK$15,000 per month in the foreseeable future (although the reality may still be much less as reflected by my lack of income since September 2017)”. Therefore, the Wife is willing to accept maintenance pending suit in the monthly sum of HK$67,500 for herself and the Children (ie. HK$82,500 – HK$15,000), provided that the Husband keeps paying directly for his share of the Children’s expenses. 31.It is the Wife’s view that the amounts she claims are reasonable, with reference to the comfortable standard of living parties had enjoyed before the Husband and Wife separated. 32.The Wife is of the view that with the Husband’s current income and financial resources, he has the ability to pay the sum of HK$67,500 the Wife now asks for. On the contrary, as the Wife does not have any income from work now and she has depleted her savings, she has been borrowing money from her friend, who now asks for repayment and interest, and the Wife is unable to borrow further. The Wife’s position is that she is lack of resources for legal fees and has to apply for legal funding. The husband’s case 33.The Husband’s case, in essence, is that the expenses as stated by the Wife has been exaggerated, and she has not produced documentary evidence in support of her purported expenses in her Affidavit in support. The Husband is of the view that, given the background and work experience of the Wife, she has much earning capacity. During marriage, when the Wife worked, she did not contribute to the family expenses, and the Husband has always been the breadwinner of the family. According to the Husband, during marriage, he did ask the Wife to contribute to the family expenses, but the Wife refused, which was one of the reasons leading to the failure of the marriage. 34.The Husband is a pilot working in a local airline. According to the Husband’s Form E, he earns HK$271,697.31 in average per month, which includes :-
35.In the Husband’s Affidavit in opposition, he earned on average HK$227,525.95 per month from April to September 2018, which was less than the amount he stated in his Form E. The Wife had suggested that the Husband had been deliberately working less to earn less, which was denied by the Husband. 36.Leaving aside the factual dispute of whether the Husband had been deliberately working less, in the Husband’s Form E dated 25 September 2017, he was earning a monthly income of about HK$271,697.31. The Husband explained that the total monthly income has included non-cash items such as housing allowance and education allowance which is to be paid for the Children. Therefore, taking the figures in the Form E as an example, by deducting housing allowance of HK$65,000 and education allowance of HK$14,950.42 in average per month, he could only take home HK$191,746.89. Therefore, it is unfair for the Wife to view the amounts for housing allowance and education allowance as the disposable income of the Husband. 37.According to the Husband’s Form E dated 25 September 2017, the total monthly expenses were HK$192,294.34 (excluding the rent and part of the Children’s school fees paid by his company), with breakdown as follows :-
38.In the Husband’s Affidavit in opposition, he had updated the amount of total expenses, which was increased to HK$252,211.44 per month, with details as follows :-
39.It is the Husband’s case that he has always been financially supporting his family and his is willing to do so, which is what he is doing now, with interim interim maintenance in the sum of HK$50,000 to the Wife and the Children. The Husband is of the view that the Wife has been unreasonable financially. She has rented a place where she knows she cannot afford the rent. According to the Husband, the Wife had been over-spending money and deliberately not working or contributing her income to the family expenses. The Husband also criticised that the Wife had chosen to pay a sum of HK$750,000 shortly before and after the commencement of the present divorce proceedings, allegedly to be repayment of loans to her family. 40.According to the Husband, as he is now earning less than the amount he stated in is Form E, in the table as submitted by Counsel for the Husband, his disposable income (excluding rental and education allowances) is HK$144,500. 41.In view of the actual sum of cash that the Husband takes home, and in view of the fact that the Husband is paying and will continue to pay the expenses for the Children in the sum of HK$33,000 per month, the Husband is of the view that a monthly sum of HK$50,000 is reasonable as maintenance pending suit for the Wife and the Children in the circumstances. Discussion 42.Before moving on to the 3 issues agreed by the parties, there are 2 aspects I would like to consider and address, one is the Wife’s earning capacity and secondly, the important factual scenario of the case. The earning capacity of the Wife 43.It is the Husband’s case that the Wife has earning capacity and she should resume working and earning to help the finance of the family. 44.The Wife has not denied she has earning capacity all along. In fact, in her Affidavit in reply, she has explained in detail her earning capacity, work experience before marriage and after she got married, including the freelance work she has. 45.What is in dispute factually is whether the Wife can be in gainful employment now, in view of the Children care arrangement, and how much the Wife can earn and contribute to the family. 46.With reference to the case law that Counsel had drawn my attention to, which is not in dispute, I am of the view that earning capacity of the Wife can be considered at this stage. However, if there are factual disputes as to how much she should be earning, it is not appropriate for the court to have factual determination at this stage without considering the credibility of the witnesses at cross-examination. 47.The Wife has already stated in her Affidavit in reply that she is willing to resume work, but she needs some time to get herself ready in the industry and it is not easy with the shared care arrangement of the Children. Without making factual determination at this stage, from the evidence before me, at least, I will take it that the Wife has the ability to work and has earning capacity. I will take this factor into account when considering the overall fairness and reasonableness of the amount of maintenance pending suit to be awarded. The important factual scenario of the case 48.It is not in dispute that the Husband cannot take home the whole of his income, as there are parts of his income being paid directly by his company, such as housing allowance in the sum of about HK$67,000 and education allowance in the sum of about HK$15,564.92. 49.It is also agreed that the Husband has been paying some of the Children’s expenses, and he will continue doing so in future. According to the Husband, the amount he is now paying and willing to continue to pay for the Children is HK$30,775.83 per month, as shown in his updated expenses in his Affidavit in opposition (see paragraph 38 above). It was submitted by Counsel for the Husband that the increases in school fees, levy, school trips, lunches and the additional expenses for the lunch for the Son in the coming school term will add a further HK$2,390 to the figures of HK$30,775, making it a sum of over HK$33,000 per month. 50.The Wife disputed the sum of HK$30,775 or HK$33,000, but the Wife has agreed, in paragraph 40 of her Affidavit in reply, that some amounts have been paid by the Husband, such as school fees, the Son’s school levy, extra tuition fees and transport to school. In paragraph 64 therein, the Wife has explained that, in her view, the amount she sees as reasonable to be spent by the Husband on the Children is HK$43,887. Having deducted the sum of HK$15,564.93 subsidized and paid by the Husband’s company, the Wife is of the view that the reasonable sum the Husband spends on the Children is HK$28,322.07. 51.It is in this factual scenario that I consider the 3 issues in this case, having in mind at the same time, the marital standard of living. What the reasonable expenses are for the Wife and the Children (Issue 1) The Husband does not dispute the Wife’s claim on home insurance (HK$200), life insurance (HK$700), taxi fares and other transport (HK$1,500), clothing and shoes (HK$2,000), personal grooming (HK$2,000), books and stationery for the Children (HK$200), haircuts for the Children (HK$200) and meals out/lunches and pocket money for the Children (HK$1,000). 52.I will go through the disputed items in turn. I have to make it clear that at this stage, the Court has to balance the reasonable needs of the Wife and the Children, and also the ability of the Husband to pay on an interim basis. I have to emphasise that it is not the case that any amount claimed without receipts or supporting documents cannot be considered. At the same time, any amount claimed with receipts does not automatically mean they are justifiable and reasonable. Some analysis will be conducted by the Court on a broad brush approach. 53.In undertaking this balancing exercise, the Court will adopt a broad brush approach and not a detailed investigation of the financial positions of the parties, and at the same time, bearing in mind the marital standard of living of the parties. 54.Regarding the marital standard of living, I notice that the parties used to live at a house in Sai Kung, with the rent paid by the Husband’s company. The parties went for holiday several times in a year, which is understandable with the occupation of the Husband. Considering the standard of living of the parties as explained in their respective Form E, I am of the view that the family has enjoyed a comfortable standard of living during the marriage. 55.There are 2 other matters that I have considered when making the ruling for the disputed items. First, from the evidence before me, the Wife had hired a “part-time house cleaning assistant”, as she stated in paragraph 28 of her Affidavit in support. That means the helper must be non-live in. Therefore, when I consider the amount of expenses for the general expenses, I only take into account the Wife and the 2 Children. Second, with the Children care arrangement agreed by the parties, the Children are now spending roughly half of their time (to be exact, apart from holidays, the parties have agreed that the Wife will spend 55% of the month with the Children, while the Husband will spend 45% of the month with the Children) with the Wife. (a) General expenses 56.For general expenses, the Husband disputes the items of rent, utilities, food, household expenses, car expenses and helper. (i) Rent 57.The Wife asks for a monthly sum of HK$43,000, which is the currently monthly rental. The Husband disagrees. He is of the view that a monthly sum of HK$25,000 is reasonable, although he made undertaking to the Court as embodied in the Consent Order that he shall pay the Wife a monthly sum of HK$30,000 for accommodation. 58.The Husband explained that the Wife has moved to an expensive place, knowing that she could not afford to pay. The Husband also criticised that the Wife did not discuss or inform him before moving to the current place the Wife is now living. 59.The Wife explained the reason why she has to move to the current place with the monthly rental of HK$43,000. The Wife is of the view that with the sum of HK$30,000 promised to be given by the Husband for accommodation, it is not sufficient to find a place comparable to that of where the Husband is living now. 60.The Wife is of the view that the Children are now comparing between parents and notice that the Husband is the wealthier parent. She would like to rent a place which is of not much difference to that of the Husband. 61.Having considered the background of the case and parties’ submissions, I cannot agree to the stance of the Wife. Parties have to be practical and realise the reality in that the Husband’s rent is paid directly by his company. It could neither be paid out from cash or divided into 2 tenancies. With the sum of HK$67,000 provided by this company, the Husband is entitled to rent a place which is reasonably comfortable and large in size. After parties have separated into 2 households, it is inevitable that the Wife could not enjoy the place that the Husband is living in now. 62.It is not the Husband’s intentional act not to provide the Wife with a place as large as the one the Husband is now living in. With the limited resources of the parties, it is neither practical nor reasonable to rent a place similar to that of the Husband, which was paid by his company. 63.Without going into the factual dispute as to whether the Wife was unable to find any suitable place with a lower rent than HK$43,000 per month, I am of the view that the monthly rent of HK$43,000 per month is on the high side, especially in view of the fact that the Wife was well aware of the undertaking by the Husband in the Consent Order that only HK$30,000 is provided by him for the Wife’s accommodation. 64.However, at the same time, I notice that the Wife has entered into a tenancy agreement already, and that is the sum she has to pay every month. If she is now to move to another place with lower rent, costs will be involved in moving and agency fees etc, and disruption to the Children’s life will be resulted as well. Housing is an immediate and recurring needs. I will take into account the monthly rental of HK$43,000 for this maintenance pending suit hearing, but adjustments will have to be made in the long run. (ii) Utilities 65.The Wife asks for HK$3,000. There is no documentary document or breakdown to justify the sum of HK$3,000. The Husband disagrees. He is of the view that HK$2,000 is reasonable. 66.In view of the place and the size of the property the Wife is now living in, comparing to that of the Husband’s, and considering the parties’ proposal of the other side’s reasonable sum for utilities, I am of the view that HK$2,500 is a reasonable sum under this head. (iii) Food 67.The Wife asks for HK$6,000. She explains that HK$6,000 equates to only HK$200 per day for herself and the Children, and that was less than what they spent during the marriage. The sum was only sufficient to cover the grocery expenses when they eat at home. 68.The Husband disagrees. He is of the view that HK$5,000 is a reasonable sum. 69.For food, I notice that apart from claiming HK$6,000 under general expenses, the Wife also claims HK$3,414 for herself for meals out of home and also HK$1,000 for meals out/lunches and pocket money for the Children. Having considered the evidence and circumstances as a whole, for the overall expenses for food for the family, I am of the view that less than HK$200 per day is sufficient, and I rule that HK$5,000 under this head is reasonable. I also rule that HK$2,500 under the personal expenses of the Wife for food is reasonable, having considered the overall circumstances of the case. (iv) Household expenses 70.The Wife claims HK$3,000. The Husband disagrees. He is of the view that HK$1,000 is reasonable. 71.The Wife does not provide breakdown in figures or supporting documents under this head. She explains that this item includes maintenance and repairs that come up from time to time, as well as purchase of household necessities and appliances. 72.I accept the purchase of household necessities and expenses for maintenance and repairs. But the purchase of appliances is not recurring costs of living. I accept the replacement of some items with wear and tear, and the replacement of old and damaged household items, but not the purchase of appliances of a capital nature. 73.With a broad brush approach, I rule that the reasonable amount is HK$2,000 under this head. (v) Car expenses 74.The Wife asks for HK$9,821 under this head. The Husband disagrees. He is of the view that HK$2,500 is reasonable. She explains that this includes petrol, parking, auto toll, vehicle licence and registration, car cleaning, car repairs/maintenance and car insurance, but there are no supporting documents to justify the sum the Wife claims. 75.With the Wife agreeing that a reasonable sum under this head is HK$3,500 for the Husband, I cannot understand why the sum of HK$9,821 is justified for the Wife. The Wife explains that her car is an old car, which needs much repairs, while the Husband’s car is a new car. Even taking that into consideration, I am of the view that this items is exaggerated. With the Wife not working at the moment, there is no need to drive to work, I can’t see why the reasonable sum claimed by the Wife is much greater than the sum she deems reasonable for the Husband. 76.With a broad brush approach, I am of the view that the reasonable sum under this head is HK$3,500. (vi) Helper 77.The Wife asks for HK$5,973 and she explains that she requires a helper to help her with the housework. The Husband disagrees. He is of the view that as the Wife is not working now, there is no need to hire a helper. 78.I tend to agree with the Husband if the Wife is not working at the moment. There is no supporting document to substantiate this item of expenses and I do not see the need of the Wife having to hire a helper when she is hardly working at all, as it is her position that she has no income since September 2017. However, if the Wife is to work and earn an income, she is justified to hire a helper. With a broad brush approach, I am of the view that a sum of about HK$5,000 is reasonable under this head. (b) Personal expenses of the Wife 79.For the personal expenses of the Wife, the Husband disputes the items of meals out of home, entertainment & presents, holiday, medical insurance, and medical and dental costs not covered by insurance. (i) For meals out of home 80.I have considered and ruled in paragraph 69 above that the reasonable sum for meals out of home is HK$2,500. (ii) For entertainment and presents 81.The Wife asks for HK$2,000 under this head. The Husband disagrees. He is of the view that HK$1,000 is reasonable. His expenses under this head is HK$1,000, which the Wife agrees. Considering the circumstances of the case and the evidence before me, I am of the view that the sum of HK$1,000 under this head is reasonable. (iii) Holiday 82.The Wife asks for HK$5,000 for holiday for herself and HK$5,000 for holiday for the Children. The Husband disagrees. He is of the view that HK$3,000 is reasonable for the Wife and HK$2,000 is reasonable for the Children. 83.The Wife explains in the Affidavit in reply that she needs HK$60,000 per year (ie. HK$5,000 per month) to cover her flights, accommodation and spending money for about 1 long haul trip and 2 short haul trips. As the Husband will no longer be able to sponsor her flights expenses via his employer after the divorce, the Wife needs the sum under this head. The Wife further explains that the Husband has told her that he will not put her in the “friends” category in the staff flight discount list after the divorce, meaning that the Wife will not be able to continue to enjoy the 90% flight discount after the divorce. If she flies with a full fare ticket and the Children fly with discounted staff tickets (which are stand-by tickets), it is very likely that the Children will not be able to get on the same flight with her. In reality, the flight expenses will be higher as the Wife will have to purchase full fare tickets for the Children as well. 84.As the Wife explains in her Affidavit in reply, there is no chance for the Husband to reply whether or not he has refused to let the Wife use the staff flight discount list under the “friends” category, I am not going to make a finding of facts in this regard. In view of the background of the parties and the circumstances of the case, I am of the view that asking for HK$5,000 for the Wife and HK$5,000 for the Children is excessive for holidays. 85.With a broad brush approach, I am of the view that under this head, HK$3,000 for the Wife and HK$2,000 for the Children is reasonable. (iv)Medical insurance and medical & dental costs not covered by insurance 86.I will consider these 2 items together. The Wife claims HK$1,000 for medical insurance and HK$200 for medical and dental costs not covered by insurance. The Husband disagrees. He is of the view that the reasonable sum for medical insurance should be HK$700, and there should not be any sum for medical and dental costs not covered by insurance. 87.The Wife explains that medical insurance is necessary as she will come off the Husband’s medical insurance cover provided by his employer after the divorce. It is also important to provide for some of the expenses which cannot be claimed under the medical insurance. 88.I agree that these 2 items are necessary. However, there are no supporting documents provided by the Wife to justify the sum claimed. With a broad brush approach, I am of the view that HK700 is a reasonable sum for medical insurance, and HK$200 for the medical and dental costs not covered by insurance. (c) Expenses for the Children 89.For expenses for the Children, the Husband disputes the items of school uniform, extra-curricular activities, medical & dental, entertainment & presents, clothing & shoes and holiday. The Wife has agreed that the items of school fees, the Son’s school levy, extra tuition fees and transport to school are paid by the Husband, and I do not need to go through. (i) School uniform 90.The Wife asks for HK$300 under this head, which the Husband is of the view that none should be provided. Under this head, the Husband’s expenses are HK$300, which the Wife has agreed. 91.In view of the Children arrangement that both parties are to share the care of the Children, and in view of the fact that the Husband’s work schedule as a pilot will be taken into account for the dates the parties shall stay with the Children, inevitably, the Children will spend some of the school days with the Wife and some with the Husband. I am of the view that another set of school uniform be bought and placed at the Wife’s home is reasonable, and I allow HK$300 under this head. (ii) Extra curricular activities 92.The Wife asks for HK$3,000 under this head. The Husband is of the view that none should be provided, as the Husband has provided for HK$3,100 under this head. 93.The Wife agrees that at present, the Husband pays directly for the Children’s extra curricular activities. However, the Wife is of the view that if the Husband should continue to be solely in charge of the Children’s extra curricular activities, and if this item is not covered by the maintenance, she may not be able to arrange any extra curricular activities for the Children in future. 94.I could understand the Wife’s worries. However, in view of the Children care arrangement the parties have agreed, they have to communicate in any event in order to work out the extra curricular activities for the Children. Besides, there is no evidence to suggest that the Husband will not be paying directly the extra curricular activities that the Wife shall arrange for the Children in future. I do not allow this item. (iii) Medical & dental 95.The Wife claims HK$400 (ie. HK$200 for each child), which the Husband is of the view that none should be provided under this head. 96.I understand that the Children are covered in the Husband’s insurance provided by his company. However, I accept that while the Wife is with the Children, there could be occasions that some of the expenses not covered by the Husband’s insurance policy. I am of the view that the amount of HK$400 claimed under this head is reasonable. (iv) Entertainment & presents and clothing & shoes 97.I will consider these 2 items together. The Wife claims HK$1,000 for entertainment & presents and HK$1,000 for clothing & shoes, while the Husband is of the view that HK$500 for each of the items is reasonable. 98.Without further breakdown or supporting documents to justify the sum claimed, and in view of the background and circumstances of the case, age of the Children and the fact that the Children are spending about half of their time with each of the parties, I am of the view that HK$800 for entertainment & presents, and HK$800 for clothing & shoes are reasonable. (v) Holiday 99.For holiday expenses for the Children, I have considered and ruled in paragraphs 82 to 85 above that HK$2,000 per month for the Children is reasonable under this head. 100.As a result, for this maintenance pending suit, I rule the reasonable expenses of the Wife and the Children are HK$80,500, with details as follows :-
Can the husband afford to pay the sum? (Issue 2) 101.The Husband has provided his monthly expenses breakdown in his Form E, which was later revised in his Affidavit in opposition. In his Form E, his total monthly expenses are HK$192,594.34, which was later increased to HK$252,211.44 in his Affirmation in opposition (with details summarised in paragraphs 37 to 38 above). 102.Counsel for the Wife criticised the Husband having exaggerated his expenses. In paragraph 64 of the Wife’s Affidavit in reply, she has commented about the Husband’s expenses, and indicated that the total reasonable expenses of the Husband should be HK$95,965.07 (excluding HK$50,000 interim interim maintenance), with breakdown as follows :-
103.I have reservation as to whether the Husband’s reasonable monthly expenses should be adjusted to the amount as submitted by the Wife. Counsel for the Husband had submitted a summary table stating that the essential spending of the Husband each month is HK$56,897, in addition to the amount of HK$33,000 to be paid for the Children’s expenses. In that case, the Husband has hardly anything left for his personal expenses. Without going into details to each and every item of the Husband’s expenses, it is clear that some of the items of expenses of the Husband have to be adjusted, in view of the circumstances of the case. 104.By adding up the Wife’s total expenses as ruled above and the Husband’s total expenses (which parties disagree in the amount), it could be seen that the expenses will use up most of, if not all, or even not enough to be covered by, the Husband’s income. 105.The Wife is of the view that the Husband has the ability to pay. Counsel for the Wife submitted that the Husband can use up his bank saving. Alternatively, he could sell or mortgage or re-mortgage his properties in Japan or Australia. 106.With the financial resources of the Husband as shown in his Form E, he does have assets and properties in Japan and Australia. However, it is not in dispute that the Husband is only a co-owner of those properties jointly owned with his family and his friends. I am of the view that it is not practical to expect the Husband to sell or mortgage or re-mortgage his jointly owned properties in Japan or Australia. 107.I notice that if the income is not enough to cover the expenses, the Husband has to use up his bank saving to pay for the expenses, which is the case explained by the Husband. The Husband explained in his Affidavit in opposition that he no longer has saving of about HK$3 million. The updated total bank balance as at the filing of the Affidavit in opposition is about HK$1.8 million. With the financial resources available, I am of the view that the Husband has the ability to pay at this interim stage, but it should be noted that the amount of bank saving of the Husband is limited and is very likely to be used up very soon if the expenses continue to exceed the Husband’s income. Amount to be awarded 108.In relation to the amount to be awarded, I have considered the Wife’s position as stated in paragraph 84 of her Affidavit in reply. I also refer to my consideration in paragraphs 43 to 47 above. 109.Having considered the background, standard of living of the parties and all the circumstances of the case, including the principle of fairness and reasonableness, and also the evidence before the Court and parties’ submissions, I am of the view that the sum of HK$65,000 is a reasonable sum for the Wife and the Children as maintenance pending suit. 110.I have to emphasise that the maintenance pending suit ordered is only an interim measure pending the substantive hearing, and that the amounts awarded could be reviewed retrospectively, so that any over or under-provision as a result of the maintenance pending suit order could always be rectified at the substantive ancillary relief trial. About legal costs 111.It is submitted by the Wife’s Counsel that the Wife asks for legal costs in the sum of HK$50,000 per month up to the FDR, if there is no “preliminary issues” trial, but would ask for at least HK$70,000 per month if there is preliminary issues trial. Mr. Marwah submitted that he also relied on the Form H. Parties subsequently confirm that there are no preliminary issues to be dealt with in this case. 112.It is not provided in the Wife’s Affidavit as to the breakdown of the sum of HK$50,000 per month that she asks for. She has stated in paragraphs 29 and 30 of her Affidavit in support the following :-
113.Ms Irving for the Husband submitted that no sufficient budget had been provided by the Wife for her legal costs going forward, which I agree. I am of the view that the anticipated costs should be provided with a sufficiently detailed breakdown by way of Affidavit. Form H should not be accepted as a replacement for affidavit evidence. Besides, the information in Form H is not sufficiently detailed enough. 114.Even if I am wrong in this point, with the evidence before me, I am not satisfied that the Wife cannot reasonably procure legal advice and representations by other means, such as her friends or her family. 115.I decline the Wife’s application for legal costs provision in this application. Observation 116.This is not the type of case where the Husband is very wealthy and he is depriving the Wife of the reasonable maintenance while saving money for him to live in a luxurious life style. Some of the expenses are covered by the Husband’s company is a matter of fact, such as the rent. 117.In view of the factual scenario and background of the parties, it is practical for both parties to cut down on expenses, and at the same time for the Wife to resume gainful employment. 118.I notice that in the Husband’s Affidavit in opposition, the sum of average monthly legal fees from March to August 2018 is HK$75,000, which is the most expensive item out of all the items of expenses for both parties. It is even more than the sum of HK$67,000 rent, which is paid by the Husband’s company. From reading the Form H of the parties, I am of the view that the legal costs involved have gone out of proportion in view of the parties’ financial resources. This is a typical case whether parties should seriously consider mediation as soon as practicable, in order to save costs and resources for the Children, the family and for the parties themselves. Orders 119.I make the following orders :-
Costs 120.The Wife has to come to court before she could get the maintenance pending suit that the court now orders. However, the Wife does not succeed in all her claims for maintenance pending suit. Interim interim maintenance had been ordered on 14 June 2018 and no legal costs funding is allowed. Considering the background of the case, all the evidence before the court and the parties’ stance, especially in view of my observation about the rental expenses of the Wife (see paragraphs 57 to 64 above), I am of the view that it is fair to order no order as to costs, including all costs reserved for the application of maintenance pending suit. This is a costs order nisi, which shall be made absolute within 14 days.
Mr. Shaphan Marwah, counsel, instructed by Messrs. Gall, for the Petitioner Ms Frances Irving, counsel, instructed by Messrs. Withers, for the Respondent |
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