B G S v. B D G

FCMC 11006 / 2019

[2020] HKFC 103

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11006 OF 2019

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BETWEEN

________________________

________________________

J U D G M E N T
(Maintenance pending suit)

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Application

1.This is an application on 2 January 2020 by the Respondent Wife for maintenance pending suit pursuant to section 3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the children of the family, under section 5 of the MPPO.

2.By an Order of Court dated 28 February 2020, the application was directed to be determined by paper disposal.

Issues

3.The issue to be determined is how much should the Petitioner Husband pay to the Wife and the children.  However, of the two children, only the elder daughter S is now residing with the Wife, while the younger son A is living with the Husband. The Wife’s supporting affirmation contained expenses for both children; but for the purpose of this decision, I will just be focusing on the daughter for reasons hereinafter provided.

4.The Wife asked for the Husband to pay for: 

i.  rent, utilities, maintenance of the accommodation occupied by the Wife and S at the former matrimonial home, being rented premises at Room X, XX^th Floor, W Mansion, No.38-40 Granville Road, Tsim Sha Tsui, Kowloon (“former matrimonial home”);

ii.  S’s school fees;

iii.  reasonable interim maintenance for herself and the children.

Background

5.The parties were married in India on XX May 2005.  They moved to Hong Kong in February 2013. There are two children, elder daughter S is now age 11, and the younger son A now age 6. 

6.The Husband initiated proceedings for divorce on 12 September 2019 shortly after he took A away from the matrimonial home on 6 August 2019, without the prior knowledge or consent of the Wife, and brought him to India.  After successfully applying for legal aid, Wife filed her Answer and Cross Petition in November 2019, issued Summons for custody care and control of the children on 13 December 2019 and this present Summons on 2 January 2020.

7.By consent, the parties amended the Petition to mild behaviour in March 2020.  However, no Questionnaires have yet been issued after the Form Es were submitted respectively on 17 December 2019 (for Wife) and 15 January 2020 (for Husband).

8.The Husband has his own businesses, of which he is the sole shareholder and director, although he declared that he only received salary and allowance therefrom.  The Wife was initially a homemaker; during the marriage, the husband paid her $8,000-$10,000, but later unilaterally reduced to $7,000.  She also had use of a credit card which was cancelled by Husband when they separated.  It was her case that as the Husband did not give her enough maintenance, she was under pressure to go find work to supplement the household income.  As from November 2017, she started work as an office assistant.

9.There were allegations both ways on behaviours, but their strife came to a head when the Husband removed A from the matrimonial home, and took him to India and left him to be looked after by his parents.  It was only after an Order made by HHJ Melloy on 8 January 2020 to bring the child back to Hong Kong whereupon the Husband complied.  A is now residing with the Husband in another rented premises, while S resides with the Wife at the former matrimonial home.

The Law

10.In an application for maintenance pending suit under section 3 of the Matrimonial Proceedings and Property Ordinance, the court is empowered to:

“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 the presentation of the petition or making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.”

11.The legal principles arising therefrom are clear; on such a claim, the court needs to look at the applicant’s financial needs, which needs to be reasonable; and the respondent’s ability to pay.  

12.Mr Justice Hartmann in the often-quoted Court of Appeal decision in HJFG v. KCY [2012] 1 HKLRD 95 summarised the principles as follows,

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

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

36.  An important factor in determining fairness is a consideration of the marital standard of living.  In this regard, each case must be considered according to its own circumstances.  It is not simply to be assumed that great wealth equates to great extravagance.  Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

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

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

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

iii.   In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing.  That budget should be examined critically in every case to exclude forensic exaggeration.

iv.   Where the affidavit or form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay.  The court is not confined to the mere say-so of the payer as to the extent of his income or resources.  In such a situation, the court should err in favour of the payee.

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

13.Against the backdrop of applying this broad-brush approach, the court reminds itself also that any under provision or over provision can be corrected at the final ancillary relief trial by appropriate set off.

Wife Reasonable Needs

14.W has submitted expenses in her affirmation in support which was echoed in her Form E. 

General
Rent	($15,000 Paid by Husband’s company)
Utilities (including management fees)	(Approximately $2000 for utilities and $1089 for management fees. Paid by Husband’s company)
Food	$3,000
Household expenses	$500
Car expenses	0
Domestic Helper (Used to engage before the separation and paid for by the Husband)	0
Miscellaneous	$500
Sub-total:	$4,000
Personal
Meals out of Home	$1,000
Transport	$800
Clothing / Shoes	$1,300
Personal Grooming	$1,000
Entertainment / presents	$500
Holiday	$500
Medical / Dental	$500
Tax	0
Insurance	0
Others: Mobile Phone Others: MPF	$200 $525
Others: Internet charges	Paid by Husband
Sub-total:	$6,325
Daughter
School Fees	($1,980 Paid by the Husband, although full remission has been obtained in the meantime)
Extra Tuition	$2,000
School books and stationery	$300
Transport	$500
Medical /Dental	$300
Extra-curricular activities / school activities	$600 Husband has paid $400 in November
Entertainment / Presents	$500
Holidays	$500
Clothes / Shoes	$500
Insurance premium	0
Lunches and pocket money	$1,000
Other transport	$200
Child minding	0
Uniform	$500
Milk biscuits and snacks cakes brownies	$1,000
Sub-total:	$7,900

For Wife

15.From the submission of counsel representing the Husband, it seemed that there is no dispute as to Husband having previously paid for the rent, utilities and management fees of the former matrimonial home, and S’s school fees; and shall continue to do so.

16.Via a letter from the Husband’s solicitors dated 1 April 2020, the Husband had undertaken to:

a.  Pay the rent and management fees of the former matrimonial home until 20 June 2020

b.  Pay the utilities of the former matrimonial home until 20 June 2020

From 21 June 2020, when the lease to the former matrimonial home expires, and upon the Wife’s move to a “residential unit of a comparable size to the former matrimonial home and in the vicinity of the former matrimonial home and/ or near the Wife’s workplace and / or near S’s school” (“alternate accommodation”).:

c.  Pay for the rent and management fees of the alternate accommodation pending final determination of the suit.

d.  Pay for the utilities of the alternate accommodation pending final determination of the suit.

17.By the same letter, Husband had also undertaken to pay for S’s school fees, provided that the school is either a government school, an aided school, or a school under the Direct Subsidy Scheme.

18.I am of the view that the Wife’s claim for general expenses were more than reasonable.  Food at home and meals outside totalling $4,000 is not excessive, and also when considered in the light of the Husband’s claim for $5,000 for the same items in his Form E.

19.Her personal expenses were mostly within reason although for the purpose of the MPS, I am of the view that her clothing and grooming expenses could be pared down in the interim. She is making a net income of $9,975, which should be sufficient to cover some form of adjusted personal expenses and leave some balance to be applied towards her contribution to household and S’s expenses.

20.Bearing in mind the Wife’s version of events wherein Husband has cancelled her use of credit card and mobile phone sim card, I would therefore add that the Wife could source an economical internet service provider and absorb this into her own expenses, instead of relying on the Husband to pay for this item. 

21.The request for $5,000 for a child-minding fee appeared in her submission and did not appear in her two affirmations.  Nor is there evidence before me as to how S is being taken care of when the Wife is working.  It was not in dispute that a helper was engaged during the marriage and up to the separation when there were two children at home and she had to work.  In view of S’s young age, I will allow the wife an extra $2,500 so she can engage some part time help to care for S. This is one item of expense which should be revisited as and when the issue of A’s care and control comes before this court.

For S

22.I intend to hold the Husband to his undertaking as above mentioned with regard to S’s school fees. In the past, this was paid by direct debit from his bank account.

23.Wife had explained in her reply affirmation that S took the bus to school and incurred $216 per month, she further asked for $500 for transport to various school or social activities and for weekends, this was a bit on the high side and I shall allow only $300 for other transport. 

24.I am of the view that the tuition fees for mathematics and Chinese had been supported by the receipts provided by the Wife and allow the $2,000 as claimed.  As for extra-curricular activities, she also claimed $600 in addition to the $400 supposedly paid by the Husband, this amounts to a total of $1,000; given the present circumstances, I would reduce this to $600, and ask that the Wife be selective in terms of the activities S engages in, and make the necessary adjustments.

25.I have also cut down expenses for clothes and shoes, and entertainment and presents to $400 respectively.

26.I will not allow the items on milk, biscuits and snacks, cakes brownies, and am of the view that this should fall under her claim for lunch and pocket money. I am of the view that S can bring lunch to school, and for the item “lunches and pocket money” I shall reduce to $800.

27.I accept that the rest of the numbers for school books and stationery, medical and dental, holidays and uniform are reasonable amounts.

28.Therefore the adjusted expenses for S will be as follows:

Daughter
School Fees	Paid by the Husband, although full remission has been obtained in the meantime
Extra Tuition	$2,000
School books and stationery	$300
Transport	$216
Medical /Dental	$300
Extra-curricular activities / school activities	$600
Entertainment / Presents	$400
Holidays	$500
Clothes / Shoes	$400
Insurance premium	0
Lunches and pocket money	$800
Other transport	$300
Child minding	$2,500
Uniform	$500
Milk biscuits and snacks cakes brownies	0
Sub-total:	$8,816

Wife’s earning capacity

29.The Wife is currently employed as an office assistant, earning $10,500 per month, and net of MPF is $9,975.  The Husband argued that she should have more earning capacity, but the Wife had been out of the work force for quite some time and only recently secured this employment.  For the purpose of this application, and in the light of the present economic conditions, I am prepared to accept that her income is $9,975.

Husband’s ability to pay for interim maintenance

30.H declared his take home income, paid by the business which he owns, to be $22,000, being $15,000 salary and $7,000 allowances.  He also relied on his salaries tax demand notes as evidence of his decreasing income. 

31.It has not escaped my observation that the Husband’s salary, as reflected in his bank statements, had dropped from $20,500 (from February to June 2020 seen from statements provided) to $15,000 in early July 2020 and onwards; and he had moved the family from a 800-900 square feet apartment to one which is 380 square feet in July 2020; and then Husband took the son A away home on 6 August 2020 and brought him to India.

32.Furthermore, it could be gleaned from the Husband’s bank account statements that there had been constant securities transactions which payments were made into his personal account. The Wife’s affirmation in reply had also identified various deposits into his personal account which have yet to be explained.

33.Looking at the Husband’s operating business company accounts attached to his Form E, the Husband had in February 2017 increased his paid-up share capital by $8,900,000.  There were also substantive reserves which could be seen from the company accounts, and to which he probably had full access.

34.Without taking a deep dive into these numbers, I draw the inference that the Husband has more income and / or resources than he has declared so far.

35.With regard to his expenses as stated in his Form E:

General
Rent	$5,500
Utilities (including management fees)	$350
Food	$3,000
Household expenses	$1,000
Car expenses	0
Domestic Helper	0
Miscellaneous	0
Sub-total:	$9,850
Personal
Meals out of Home	$2000
Transport	$800
Clothing / Shoes	$400
Personal Grooming	$400
Entertainment / presents	0
Holiday	$400
Medical / Dental	$300
Tax	0
Insurance	$115
Contributions to parents	$6,000
Others: Language class	$600
Sub-total:	$11,016
Children
School Fees	0
Extra Tuition	0
School books and stationery	0
Transport	0
Medical /Dental	0
Extra-curricular activities / school activities for daughter	$400
Entertainment / Presents	0
Holidays	0
Clothes / Shoes	0
Insurance premium	0
Lunches and pocket money	0
Other transport	0
Child minding	0
Uniform	0
Others	0
Sub-total:	400
Total monthly Expenses	$21,265

36.Other than his rental, his larger expense items were Food and Meals out of Home totalling $5,000.  He had complained that his Wife’s claim for $4000 was too high for herself and S, when his own claim for himself and A, was more.

37.The Husband had declared he paid $6,000 as contribution to parents (which was 27% of his declared income of $22,000).  While no such item of payment appeared in his HSBC account prior to August 2019, he appeared to have paid between $6,000 to $10,000 to them between August to December 2019.  His counsel advanced the argument (unsupported by the Husband’s affirmation) that these were also to cover expenses for the son who was in India at that time.  The Husband should be reminded that his income and resources should be applied towards his own family and the support of two households, in priority over contributions to his parents.  From these numbers, he clearly had $6,000-$10,000 to spare.

38.For completeness, I would add that the Husband had said in his affirmation that “the son’s needs do not fall to be decided pursuant to the Order of this Honourable Court of 8 January 2020”.  By his own evidence, he said he only had $725 left after deducting his declared expenses from his declared income, it is unclear how he could support his son with this leftover amount.  Husband had not put forward any numbers with regard to how much he is paying in respect of A’s expenses, I am therefore unable to take this factor into account in this decision.  I reiterate here that the son’s needs should be revisited as and when his care and control is being determined.

How much the Husband should pay as maintenance pending suit to the Wife and interim maintenance to S

39.Through his counsel’s submission, Husband has offered to pay $2,000 for Wife and S.  While he had made some counter suggestions on numbers, I do not find his proposals to be realistic.

40.Based on the analysis above and on a broad-brush basis, I shall make an Order for Husband to pay the Wife $3,000 as maintenance pending suit; and pay Wife for maintenance of S $6,000 per month as interim maintenance.  With regard to payment for S, I am conscious that this is 68% of the adjusted expenses I have made; but I am mindful that the H is also bearing the expense of A (despite lack of evidence as to amount) who now resides with him. 

Cost

41.The Husband had walked out on the Wife, and although he had continued to pay for rent and utilities and the daughter’s school fees, he had left her with only her own income to fend for the livelihood of herself and their daughter, therefore necessitating this application.  The Husband had only offered to pay $2,000 to the Wife via the Submission made by his counsel on 18 March 2020, this came too little and quite late.

42.The Wife is legally aided.  I make the Order for the Husband to pay for the cost of this maintenance pending suit and interim maintenance application.

Remark

43.I take note of the fact that both sides have added information into their respective submissions which did not come from the parties’ affirmations in the first place.  This is not the way to introduce new evidence, and I have not taken this additional information into account.

THE ORDER

44.On the basis of undertakings of the Husband to pay himself or through his company the rental, management fees, and utilities of the former matrimonial home at Room X, XX^th Floor, W Mansion, No.38-40 Granville Road, Tsim Sha Tsui, Kowloon, or of such other alternate accommodation if applicable; and S’s school fees:

It is ordered that:

1)  The Petitioner shall pay maintenance pending suit to the Respondent for herself in the sum of $3,000 per month, the first payment to be made from 1 May 2020 and thereafter to be paid on the 1^st day of each succeeding month until further order.

2)  The Petitioner shall pay interim maintenance to the Respondent for S in the sum of $6,000 per month, the first payment to be made from 1 May 2020 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 cost to be taxed if not agreed. The Respondent’s own costs to be taxed in accordance with Legal Aid Regulations.

Benjamin Chan Kui Pang instructed by Jal N. Karbhari & Co for the Petitioner

B. Manek & Co for the Respondent