Lysc v. Msn
Read the full judgment text of FCMC 13330/2017 on BabelCite. This Family Court judgment was delivered on 29 June 2020 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Maintenance Pending Suit – Interim Maintenance – Matrimonial Proceedings and Property Ordinance Cap 192 – Reasonable needs – Ability to pay – Marital standard of living – Petitioner wife sought maintenance pending suit and interim maintenance for child B – Court assessed wife's expenses at HK$27,200 per month and income at HK$15,000 per month – Husband's income assessed at HK$46,900 per month with significant outgoings – Court held husband should bear approximately 75% of child's expenses – Husband ordered to pay wife HK$3,000 per month maintenance pending suit and HK$6,750 per month for child B plus school fees up to HK$4,000 per month – No backdating or security ordered – No order as to costs.
Legal issues: Amount of maintenance pending suit and interim maintenance
Outcome: Maintenance pending suit and interim maintenance granted. Husband ordered to pay wife HK$3,000/month and child HK$6,750/month plus school fees.
Cited by 1 case · Cites 1 case
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FCMC 13330 / 2017 [2020] HKFC 130 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 13330 OF 2017 ----------------------------
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---------------------------------------------------------------- J U D G M E N T ---------------------------------------------------------------- Introduction 1.This is an application by a Petitioner wife for maintenance pending suit 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 little girl B, who was born on the 13 September 2010, and is now 9 years 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 B? 3.The wife seeks HK$15,000 per month as interim maintenance for B and a further HK$6,000 per month for herself, up from the HK$5,000 per month she originally sought. She also asks that these amounts be secured, although she has not explained what is meant by this or how the security might be arranged. She also asks that these sums be backdated to January 2018. 4.The husband for his part proposes as follows:
Background 5.The focus until recently has been on the arrangements for B and staying access in particular had become a sticking point. On the 21 November 2019 I handed down a judgment in that regard. At paragraph 10 and 11 of that judgment I set out a brief background to the parties’ relationship as follows:
6.It is of note that I ultimately found that the father did not pose a significant risk to B and consequently that he should have regular overnight staying access to her, to include holiday access. 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.Reference may also be made to the Court of Appeal decision in HJFG v KCY (CACV 127/2011, 28 October 2011, where the following principles were reiterated with respect to maintenance pending suit/interim maintenance applications:
How much maintenance should the husband pay to the wife as maintenance pending suit for herself and interim maintenance for B? The reasonable needs of the wife 9.The wife says that she needs in the region of HK$30,500 per month broken down as follows:
10.In so far as the general expenses are concerned, the husband queries the rental payment, pointing out that the wife and child are living in a unit that was previously the matrimonial home and that this is owned by the wife’s parents. It is not disputed that the wife’s parents own two properties in the same estate. They live in a three bedroomed unit and they have historically rented out the smaller two bedroomed unit to the parties. After the breakdown of the marriage the husband ultimately moved out and the wife now resides in this unit with B. The husband confirms that he and the wife historically paid rent for this unit, but he queries the rental receipts from his former father in law when compared with the actual money transfers and suggests that this is a fictitious money transfer. The wife for her part says that her father rents her this unit at approximately 20% undervalue and that if she does not receive suitable financial support from the husband that she may need to apply for public housing. At present the two units are on the same estate and in close proximity to each other and the grandparents assist the wife in taking care of B, when she is working and B is not with the father. 11.On a brief perusal of the wife’s bank accounts it is clear that a direct debit of HK$15,000 leaves her account most months. Pending any further investigation on this point, the rental appears on the face of it to be reasonable and will be allowed. All of the other expenses, save for the reference to the domestic helper expenses, seem reasonable. Thus I accept that the wife has general expenses of just under HK$18,000 per month. It is of note that the husband’s general expenses in Hong Kong are similar save that he is currently repaying two loans. He also has expenses associated with the purchase of a small flat in Scotland and the maintenance costs of another partially owned property in Bulgaria. 12.The wife also states that she has personal expenses of just over HK$9,000 per month. This includes a contribution to her parents of HK$1,000 per month and an additional HK$500 per month for her grandmother, who has sadly passed away. It seems to me that neither of these amounts should be allowed. I will also deduct the reference to holidays given the current situation with the Coronavirus global pandemic. It also seems to me that her other expenses are capable of being trimmed a little. Therefore, I shall allow the wife HK$7,000 per month for her own personal expenses. 13.In so far as B’s actual expenses are concerned, it is of note that the wife has not included the school fees or any ECA’s or extra tuition and it seems to be accepted that these are generally paid for by the husband directly. In so far as the remaining costs are concerned, I will once again, and on an interim basis only, deduct the allowance for holidays. In addition, HK$500 per month for school uniform seems to be a little on the high side and in any event this is an expense that the husband has agreed to meet. On a broad brush basis therefore I accept that the wife is currently spending approximately HK$2,200 on B’s additional expenses when she is in her care. 14.Thus in total I accept that the wife has total expenses of approximately H$27,200 per month. The wife’s earning capacity 15.This is a matter of some debate. The wife says that on average she earns in the region of HK$13,000 per month spread out over the year, as a part time dancing teacher. In general, she works about 10 hours per week, after school or during the weekends. The husband argues, and with some justification it seems to me, that the wife should be able to increase her earning capacity. He does not accept that the wife’s stance in this respect is reasonable. Further he is of the view that the wife may actually be earning more than she claims in any event. He says that on an analysis of the wife’s bank accounts her actual income is between HK$19,300 – HK$25,400 per month. On a brief perusal I would also accept that on the basis of the bank statements provided, that the wife’s income does appear to exceed the HK$13,000 per month claimed. However, I would also accept that there will be periods of time when her income will drop quite considerably – particularly during the so called “slow months”. It is also not known what effect COVID-19 is likely to have had on the wife’s income levels. For the purposes of this application therefore I shall accept that the wife is earning a little more than claimed – say HK$15,000 per month. As a general comment however, it seems to me that the wife will need to fully maximize her earning capacity going forward. The husband’s ability to pay 16.According to the husband’s submission he currently has two sources of income – a) his salary in the sum of HK$41,200 per month (up from just under HK$40,000 in his Form E) and b) the rental of the flat in Scotland which amount to a further HK$5,700 per month gross. In addition, the husband took out two loans in September 2019, which greatly increased his monthly outgoings. Both are repayable over two years. It is not entirely clear why the husband did this, save that he said that this was for “contingencies”. It is also accepted that he has had brief periods of unemployment since the divorce petition was issued and a number of other unexpected expenses. However, these remaining funds are also a financial resource currently available to the husband on an interim basis. 17.Generally, it is of note that the husband says that his outgoings exceed his income as follows:
18.This situation is untenable longer term and would be easier without the loan repayments. However, I also accept that the little extra capital is also of assistance at present and is an additional financial resource that is currently available to the husband. In addition, some of the other expenses could be trimmed down a little and as with the wife some expenses such as the allowance for holidays can be removed from the schedule entirely for the time being. I accept that the husband has been paying for the school fees and in the main for B’s extra-curricular activities. The other expenses for the child are fairly minimal. Conclusion 19.In some cases where the parties are earning a similar amount it is reasonable for the parties to split the expenses for a child on a more or less equal basis. However, in this instance the wife is earning about ¼ of the total monthly income of the family, with the husband earning the remainder. In such circumstances I accept that the husband should be responsible for approximately ¾ of B’s expenses when she is living with the mother. This amounts to HK$ 6,750 for B’s share of the general expenses (i.e. HK$18,000 divided by 2 = HK$9,000 x 75% = HK$6,750). In so far as B’s other expenses are concerned, both parties shall be responsible for her expenses when she is in their care. In addition, I will hold the husband to his undertaking as set out in paragraph 4 (a) above, i.e. to continue to pay for B’s school fees and current extra-curricular activities and other related educational costs including text books, uniform and other school related mandatory charges up to a total of HK$4,000 per month. 20.The wife’s expenses amount to HK$9,000 for her share of the general expenses and HK$2,250 for her contribution towards B’s general expenses. In addition, she has personal expenses of about HK$7,000 per month plus other expenses for B when she is staying with her i.e. an additional HK$2,300 per month or HK$20,550 in total (HK$9,000 + HK$2,250 + HK$7,000 + HK$2,300 = HK$20,550). It is clear that she may struggle on an interim basis and therefore I shall order that the husband contribute an additional HK$3,000 towards her expenses as maintenance pending suit for the wife. I accept that this is less than the wife says she needs and more than the husband says he can afford. In such circumstances both sides will need to make further adjustments to their finances as is necessary. 21.In conclusion then I will make an order that in total the husband do pay the wife HK$3,000 per month, as maintenance pending suit for herself plus HK$6,750 per month as maintenance for B plus he will undertake to continue to pay for A’s school fees and other expenses as set out in paragraph 4 (a) above. I shall not order the payment to be backdated as it seems to me that this could place an intolerable burden on the husband’s shoulders at this time. Neither do I accept that these payments can or should be secured in any way. Costs 22.Neither party has been wholly successful in this application. I am also cognizant of the fact that the parties are currently representing themselves. Consequently, I shall exercise my discretion and make an order nisi that there be no order as to costs, such order to be made absolute in 28 days’ time. Order 23.Consequently I shall make an order as follows: UPON determining this matter by way of a paper disposal AND UPON the Respondent undertaking to continue to pay for B’s school fees, extra-curricular activities and other related educational costs including the cost for text books, uniforms and other school related mandatory charges up to HK$4,000 per month. IT IS ORDERED THAT:
The Petitioner and the Respondent both represented themselves | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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