Lmy v. Tmf
Read the full judgment text of FCMC 5603/2018 on BabelCite. This Family Court judgment was delivered on 23 July 2019 before Deputy District Judge R So.
Matrimonial Causes – Maintenance Pending Suit – Reasonable Expenses – Ability to Pay – Back-payment – District Court – LMY v TMF – Wife claimed maintenance for herself and son – Husband opposed – Court applied broad brush approach – Marital standard of living considered – Wife's expenses adjusted – Husband's ability to pay confirmed – Maintenance for Wife dismissed – Maintenance for Son increased to HK$11,000 per month – No back-payment ordered – No order as to costs reserved.
Legal issues: Reasonable expenses for the Wife and the Son · Ability to pay of the Husband · Sum(s) to be ordered · Back-payment
Outcome: Maintenance pending suit for Wife dismissed; Maintenance pending suit for Son increased to HK$11,000 per month.
Cites 1 case
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FCMC 5603/2018 [2019] HKFC 189 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO 5603 OF 2018 ________________________
________________________ Before: Deputy District Judge R So in Chambers (Not open to public) Date of Hearing: 25 June 2019 Date of Judgment: 23 July 2019 ________________________ J U D G M E N T ________________________ The Application 1.This is the application taken out by the petitioner wife (“Wife”) against the Respondent Husband (“Husband”) on 19 September 2018 for :-
2.The Husband opposed to the application. 3.The following affirmations had been filed for the present application :-
4.The Wife filed her Form E on 4 July 2018 and the Husband filed his Form E on 2 November 2018. Both parties have filed questionnaire and answer to the questionnaire. 5.The Husband is of the view that no maintenance pending suit should be granted to the Wife. In relation to the Son, the Husband disagreed to the sum the Wife claimed. During the hearing, Mr. But, Counsel for the Husband submitted that the Husband agreed to pay to the Son maintenance pending suit in the monthly of about but less than HK$8,500. Background of the case 6.The Wife was born in December 1985 and is now 33 years old. As stated in her Form E, she is now employed as a special care teacher, earning a monthly salary of HK$28,985. During the hearing, the Wife confirmed that her present monthly salary is HK$31,000. 7.The Husband was born in September 1982 and is now 36 years old. As stated in his Form E, he is now employed as a primary school teacher, earning a monthly salary of HK$46,420. 8.The parties were married in April 2017. The Son was born in their wedlock in February 2018, who is now one year old. 9.During the marriage, the parties used to live at a rented property in Tai Wo Hau from April 2017 to July 2017. In August 2017, the family moved to and started living at a property in Yuen Long (“Former Matrimonial Home”) until 11 April 2018. The Former Matrimonial Home was bought by the Husband in March 2016 under his sole name. 10.The Wife left the Former Matrimonial Home together with the Son on 11 April 2018. 11.The Wife filed the Petition for divorce on 10 May 2018 based on unreasonable behaviour of the Husband. The Husband disputed the main suit and had filed Answer and Cross-Petition, alleging unreasonable behaviour of the Wife as the ground of divorce for his Cross-Petition. 12.As the parties dispute the main suit, no decree nisi have been granted yet. 13.At the 1st Appointment Hearing on 3 December 2018, by consent, it was ordered by Deputy District Judge E Yim that interim interim maintenance for the Son be in the sum of HK$9,000 per month, without prejudice to adjustment made at the maintenance pending suit argument hearing. 14.During the same hearing, interim defined access of the Son had been granted to the Husband. The legal principles 15.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. Under section 5 of MPPO, maintenance pending suit could be ordered for the children of the family. 16.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:-
The Wife’s case 17.In gist, it is the Wife’s case that as the Husband has a much higher salary than her, and that he has 2 landed properties in his sole name, he is in a much stronger financial position to support the Wife and the Son, and he has the ability to pay the amounts now claims by the Wife. 18.The Wife is of the view that the amounts she now claims as maintenance pending suit are reasonable and not exaggerated. 19.According to the Wife’s Form E filed on 4 July 2018, the total monthly expenses were HK$45,213, with the details as follows :-
20.In paragraph 9 of the Wife’s Affirmation in support filed on 20 September 2018, she explained the regular monthly expenses for herself and the Son, which I quote as follows :-
21.In paragraph 5 of the Wife’s Affirmation in reply filed on 31 December 2018, which was in less than 4 months’ time from the filing of the Affirmation in support, she further updated the amount of expenses. The detailed table of expenses in paragraph 5 therein is not in the format of Form E, but simply listing out in 4 pages the different items of expenses for the Son, including a part indicating whether the expenses were already incurred or to be incurred, and a part indicating whether the expenses were one time purchase or recurring expenses. 22.During the hearing, upon request by the Court to assist the better understanding of the Wife’s case, Mr. Mak, Solicitor acting for the Wife, clarified the position of the Wife in relation to those expenses as listed out in paragraph 5 of the Wife’s Affirmation in reply, and summarised the information and the Wife’s stance. The total monthly expenses are now HK$47,073.25, with details as follows :-
23.It is the Wife’s view that the amounts she claims are reasonable, with reference to the standard of living parties had enjoyed during the marriage. 24.Further, the Wife is of the view that some of the answers provided by the Husband in his Answer to Questionnaire is insufficient and the Wife asks the Court to make a robust assumption of the Husband’s finance and order the amounts of maintenance pending suit the Wife now requests. The husband’s case 25.The Husband’s case, in essence, is that the expenses as stated by the Wife has been exaggerated. Besides, the Husband is of the view that as the parties had separate finance during marriage, the Husband should not be responsible for any financial support for the Wife for maintenance pending suit. 26.According to the Husband’s Form E filed on 2 November 2018, the total monthly expenses were HK$54,339, with details as follows :-
27.According to the Husband, there is full and frank disclosure by him. No adverse inference or robust assumption of his ability to pay should be drawn. It is the Husband’s case that in addition to his monthly income of HK$46,420, he has monthly rental income of HK$9,800. Taking into account his monthly expenses, it was submitted by Mr. But that the Husband has the financial ability to pay about $2,000 per month. For any amount in excess of $2,000, the Husband has to squeeze and economize further. Issues of the case 28.Counsel for the parties have agreed the following to be the issues for the court’s determination :-
Discussion What are the reasonable expenses for the Wife and the Son? (Issue 1) 29.The Husband does not dispute the Wife’s expenses on rent (HK$13,000), household expenses (HK$1,500), helper (HK$4,410), food allowance for helper (HK$800), clothing / shoes for the Wife (HK$600), personal grooming for the Wife (HK$400), entertainment / presents for the Wife (HK$500) and holiday for the Wife (HK$500). 30.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 Son, 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. 31.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. 32.Regarding the marital standard of living, I notice that the parties used to live at a rented property in Tai Wo Hau of about 400 square feet for the first few months of the marriage. From August 2017 to April 2018, the family lived at the Former Matrimonial Home, which is a self-owned private development flat of 2 bedrooms and 1 living room, and of about 430 square feet. 33.According to the Wife, the parties had a comfortable standard of living, including living in a private flat of about 430 square feet in a private housing estate with club house membership, and were able to have 1 or 2 buffets/meals at restaurant(s) every month. A domestic helper was employed and the Wife had about HK$20,000 for the family’s living expenses. 34.The Husband disputed the Wife’s version in relation to the standard of living. The Husband pointed out that the domestic helper was only employed after the Wife had moved out from the Former Matrimonial Home. According to Mr. But’s written submissions, “the living style of their married life was simple and frugal, mainly dined at home, resting at home during weekends, seldom shopping, no holiday travelling, or big amount of spending, no domestic helper and no club house membership. During the marriage, W had stable income, self-sufficient, not dependent on H for living, H gave no maintenance or living expenses to W.” 35.From the evidence before me, despite some disagreements between the parties, I am of the view, based on the non-disputed facts, that the family had enjoyed an average standard of living during the marriage. 36.There are 2 matters that I have noticed and considered when making the ruling for the disputed items. First, it is undisputed fact that the Wife moved out from the Former Matrimonial Home in April 2018, shortly after the Son was born in February 2018. Therefore, not much spending pattern on the Son could be seen when the parties were living together. Second, as indicated in the Wife’s Form E, she is now living with the Son, the maid, the Wife’s mother, and sometimes her Aunt may stay at her present home. (a) General expenses 37.For general expenses, the Husband disputes the items of utilities and food. (i) Utilities 38.After clarification at the hearing, Mr. Mak clarified that the sum of about HK$500 for utilities and cleaning items for the Son should be put and considered under general expenses, therefore making utilities under general expenses about HK$1,000. The Husband disagrees. He is of the view that HK$900 is reasonable. 39.In view of the place and the size of the property the Wife is now living in, and in view of the documents of utilities provided, I am of the view that HK$900 is a reasonable sum under this head. (iii) Food 40.The Wife asks for HK$4,500 under this head. It was submitted that the sum was for the household, including the Wife and her mother. 41.The Husband disagrees. He is of the view that as there is a separate item of meals outside home under personal expenses for the Wife. Mr. But made no submissions for this item and he asked for the Court’s determination. 42.I will consider these 2 items together. Under personal expenses, the Wife asks for HK$2,000 for food. The Husband disagrees and is of the view that HK$1,000 is reasonable. According to the Husband, as it is the Wife’s stance that she works in Yuen Long, she sometimes goes back home for lunch and therefore she does not need that much for meals outside home. 43.With a broad brush approach, considering parties’ submissions and evidence before the Court, I rule that the reasonable expenses for food under general expenses is HK$4,500 and the reasonable expenses for food under personal expenses is HK$1,500. (b) Personal expenses of the Wife 44.For the personal expenses of the Wife, the Husband disputes the items of meals out of home, transportation, medical / dental, insurance premia and contribution to parents. (i) For meals out of home 45.I have considered and ruled in paragraph 43 above that the reasonable sum for meals out of home is HK$1,500. (ii) For transportation 46.The Wife asks for HK$600 under this head. The Husband disagrees. He is of the view that HK$300 is reasonable given the fact that the Wife lives and works in Yuen Long. 47.While agreeing that living and working in Yuen Long can save much money, one cannot deny some transportation expenses have to be spent even if living and working in the same district unless the distance is within walking distance. With a broad brush approach, I am of the view that HK$500 is reasonable. (iii) Medical / dental 48.The Wife asks for HK$1,500 under this head. Mr. But made no submissions in relation to the reasonable sum and he asked for the Court’s determination. But he submitted that as the Wife has medical insurance coverage, she does not need that much under this head. I will consider this item together with the next item of insurance premia together. (iv) Insurance premia 49.The Wife asks for HK$3,487 under this head. She had provided supporting documents attached to her Form E. As there are documents showing the insurance premia, with a broad brush approach, I am of the view that the sum of HK$3,487 is reasonable. It should be noted that with the amount of insurance premia paid each month, it amounts to more than 1/10 of the Wife’s monthly income. Some, if not all the medical /dental expenses should be covered. Without providing further documents in relation to the amount of medical / dental expenses the Wife claims and without detailed investigation of the insurance policy terms, I am of the view that HK$500 per month is a reasonable sum with a broad brush approach. (v) Contributions to parents 50.The Wife asks for HK$4,500 under this head. The Husband disputes, but he claims for HK$13,000 for contribution to parents in his Form E. While acknowledging contributions to parents is a virtue, in matrimonial proceedings, while parties are short of money and are in dispute as to the amount to be paid for maintenance pending suit, I am of the view that, unless evidence shows otherwise, contributions to parents should not be included at this stage of maintenance pending suit. I disallow any sum under this head. (c) Expenses for the Child 51.For expenses for the Son, the Husband disputes the items of medical / dental, entertainment / presents, holiday, clothing / shoes, insurance premia, food and transportation. The only item that the Husband agrees to is the sum of HK$500 for the Son’s share of utilities and cleaning items, which had been included in the utilities under general expenses. (i) Medical / dental 52.The Wife asks for HK$700 under this head, which the Husband is of the view that HK$300 is the reasonable. The reason is as there is medical insurance coverage, the sum the Wife claims is excessive. As this head is related to the item of insurance premia, I’ll consider these 2 items together in paragraphs 55 to 57 below. (ii) Entertainment / presents (iii) Holiday (iv) Clothing / shoes 53.I will consider these 3 items together. The Wife asks for HK$500, HK$200 and HK$500 for these respective heads. The Husband disputes. He is of the view that HK$250 should be sufficient for entertainment / presents and HK$250 for clothing / shoes, as the Son is young and does not need that much for these items of expenses. Mr. But made no submissions in relation to holiday and he asked for the Court’s determination. 54.I have considered parties’ submissions and the circumstances of the case. Even the Son is of young age, I am of the view that some reasonable expenses have to be spent for these items. With a broad brush approach, I rule that the reasonable sum for entertainment / presents is HK$400, for holiday is HK$200 and for clothing / shoes is HK$400. (v) Insurance premia 55.The Wife asks for 876.25 under this head. The Husband disagrees and is of the view that the reasonable sum is HK$560, as there are some insurance including investment, which should not be reasonable and immediate needs of the Son. 56.For the medical / dental expenses for the Son, I am of the view that even insurance policy had been provided, some medical or dental expenses may not be recovered fully. With a broad brush approach, I am of the view that HK$600 is reasonable per month under the head of medical / dental. 57.For insurance premia, Mr. But submitted that with the amount of insurance premia for the Son in the sum of HK$1,750, it includes not only medical, but also saving and other elements, which the Husband is of the view that it is not necessary. According to the Husband, the insurance premia of hospitalisation protection for the Son should be HK$560 per month. I agree with Mr. But’s submissions and I rule that the sum of HK$560 is a reasonable sum under this head at this stage. (vi) Food 58.The Wife asks for HK$4,500 under this head. She had provided detailed breakdown and receipts. According to the Wife, the sum includes milk powder, biscuits and other food for the Son. The Husband disagrees and is of the view that the reasonable sum is HK$2,000. 59.While it is understandable that the Wife takes care of the Son, and wishes to provide for the best for him, I have to consider and rule the reasonable sum under this head. I notice that as stated in the Wife’s Form E, which was filed in July 2018, a total sum of HK$3,500 was stated for milk powder, diapers and baby items. In the Wife’s Affirmation in support filed on 20 September 2018, which was about 2 months later, the Wife’s version of milk powder is HK$2,000, for diapers being HK$750, for “disinfecting/cleaning expenses for milk thistles, clothes, toys and place” being HK$1,500, for “milk thistles, clothes, bandage, towels, batteries, tissue paper, wet wipes, toys, bed mattress, quit, etc” being HK$1,200 to HK$1,600 (details referred to paragraph 20 above). 60.I have also considered the Wife’s updated expenses as stated in her Affirmation in reply, and as submitted and clarified by Mr. Mak at the hearing (details referred to paragraph 22 above). 61.With the age of the Son and in view of the income and background of the parties, including the amount they spend on food for themselves, I am of the view that HK$2,000 is a reasonable sum under this head with a broad brush approach. (vii) Transportation 62.The Wife asks for HK$500 under this head. The Husband disagrees. According to the Husband, as the Son is of young age, he hardly needs any expenses on transportation. The Wife explains that as the Son is young, transportation expenses is needed for adults to take him to places. I accept the Wife’s view and I rule that the reasonable sum is HK$400 under this head. 63.As a result, for this maintenance pending suit hearing, I rule the reasonable expenses of the Wife and the Son are HK$37,657 (with monthly repayment of loans not yet taken into account, with details about the loans explained in paragraphs 75 to 77 below), with details as follows :-
What is the ability to pay of the Husband? (Issue 2) 64.In view of the Husband’s income, he is now earning HK$46,420 per month. Together with the rental income of HK$9,800 per month, he has disposable income of a total of HK$56,220 per month. 65.During the hearing, Mr. But asked the Court to pay attention to Part 5.5 in the Husband’s Form E, in which the Husband had stated therein that as he is now under employment of a one-year contract as a primary school teacher (from 1 September 2018 to 31 August 2019) and he has not yet passed the probation, he may not get the contract renewed. 66.The Court has taken that into consideration, but at the same time, the Court has to emphasise that the Court should not be over-cautious of the risk that the Husband may not have the employment contract renewed as stated in his Form E filed on 2 November 2018. Besides, the Court is entitled to look at parties’ earning capacity when necessary and if the Husband is out of work, his monthly expenses will have to be reviewed and adjusted substantially. 67.The Husband has provided his monthly expenses breakdown in his Form E, with details summarised in paragraphs 26 above. 68.Mr Mak criticised 2 items in the Husband’s expenses, being contributions to parents of HK$13,000 and repayment to the Husband’s mother of HK$10,000. 69.As I explained in paragraph 50 above in relation to contribution to parents, I will rule out the sum of HK$13,000 under this head for this maintenance pending suit hearing. In relation to the repayment to the Husband’s mother in the sum of HK$10,000 per month, the Wife disputes whether these are genuine. There is no formal loan agreement signed. In relation to the pattern of the loan repayment as alleged by the Husband, the Wife alleges that there is no fixed repayment sum or fixed payment date. I am of the view that even if they are genuine loans from the Husband’s mother, they are soft loans in nature. 70.The Husband has ability to borrow from his mother. It is trite law that the ability to borrow could be considered as financial resources. 71.Having considered all the evidence before the Court, I am of the view that the Husband has the ability to pay any reasonable sum the Court is to order as maintenance pending suit at this stage. 72.Further, I have to point out that the submissions by Mr. Mak both in his written submissions and during the hearing alleging that there is no full and frank disclosure of the Husband is not substantiated. I am not of the view that the disclosure of the Husband is obviously deficient. What is/are the sum(s) to be ordered (Issue 3) 73.From the evidence before me, especially in view of the Wife’s own version as in paragraph 3 of her Affirmation in reply, it seems that the Husband had not been supporting her financially during the marriage. According to the Wife, both parties had been contributing to the family expenses. I accept that the parties had been quite financially independent during the marriage. 74.Besides, from the documents before me and from the submissions by Mr. Mak, I have not been explained clearly the basis of the Wife asking for maintenance pending suit in the monthly sum of HK$7,000. After consideration of all the circumstances of the case, I am of the view that no maintenance pending suit should be awarded to the Wife. 75.In relation to the maintenance pending suit to the Son, I have to consider the overall financial situation of the parties. In relation to the expenses of the Wife, although she has not stated expressly in her Form E about the repayment of loan in the monthly sum of HK$11,000, I notice that she had explained in her affirmations and had provided documentary evidence in support. It is not in dispute that the loans in the total sum of HK$400,000 had been taken out by the Wife. 76.From the documents provided by the Wife, I notice that 2 loans had been taken out, in the total sum of HK$400,000, namely the loan in the sum of HK$200,000 taken out on 20 March 2018, which is to be repaid in 36 instalments of HK$6,035 each instalment, and the loan in the sum of HK$200,000 taken out on 1 August 2018, which is to be repaid in 48 instalments of HK$4,706 each instalment. 77.The Husband disputed about the whereabouts of the money, and submitted that the Wife must still have had a reasonable sum for disposal. I have considered Mr. But’s submissions. Even if that is the case, the fact is that with the loan of HK$400,000 taken out, monthly repayment in the total sum of HK$10,741 (HK$6,035 + HK$4,706) has to be made. 78.Mr. Mak disputed Mr. But’s submissions. He pointed out that the Husband had not been paying any maintenance since the Wife left the Former Matrimonial Home in April 2018 and until December 2018 when the Court ordered interim interim maintenance, which is not disputed by the Husband. 79.Having considered the background, standard of living, financial resources 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 Husband should pay for the expenses of the Son, including a share of the Son’s share of general expenses. I rule that the sum rounded up to HK$11,000 is a reasonable sum for the Son as maintenance pending suit (which comprises of HK$6,277, about 1/4 share of the total general expenses that the Son should share and HK$4,560, being expenses for the Son). 80.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. Whether there should be back-payment (Issue 4) 81.I notice that there are a number of factual disputes, including mainly :- (a) the allegation of whether the Husband had lent (or given) certain sums of money to the Wife; and (b) the whereabouts of the loan in the sum of HK$400,000 taken out by the Wife. 82.In view of all the factual disputes and the background of the case, I am of the view that it is fair not to order back-payment at this stage. Observation 83.During the hearing, I have expressed my concern about costs for this case. I notice that the main suit is disputed, although parties have indicated that they agree to divorce and the date of separation is 11 April 2018. The Court has inquired and the parties are yet to confirm whether there are any preliminary issues in relation to the properties involved. Custody matters are disputed. Parties are now arguing the maintenance pending suit. 84.In view of the parties’ financial resources and income, this is the type of case that the parties should seriously consider further mediation in order to save costs for both parties, and which will be in the interests of the parties and the Son. Orders 85.I make the following orders :-
Costs 86.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. Considering the background of the case, all the evidence before the court and the parties’ stance, especially about how the hearing had been conducted, 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. The Wife’s own costs will be taxed in accordance with Legal Aids Regulations. This is costs order nisi, which shall be made absolute within 14 days.
Mr. Mak of Messrs. Kenneth W. Leung & Co., for the Petitioner Mr. But Sun Wai, counsel, instructed by Messrs. FONGS, for the Respondent | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment