Whh v. Lby
Read the full judgment text of FCMC 5496/2020 on BabelCite. This Family Court judgment was delivered on 19 August 2021 before Deputy District Judge D. To.
Matrimonial law – Maintenance Pending Suit – Specific Discovery – Financial Disclosure – Reasonableness – Marital Standard of Living – Interim Maintenance – Ability to Pay – Costs – Husband ordered to pay interim maintenance of HK$15,000 per month backdated to 1 October 2020 – Respondent entitled to costs of Specific Discovery Summons
Legal issues: Maintenance Pending Suit amount · Costs of Specific Discovery Summons
Outcome: MPS granted HK$15,000/month backdated to 1 Oct 2020; Discovery costs awarded to Respondent
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FCMC 5496/2020 [2021] HKFC 167 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 5496 OF 2020 -----------------
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---------------------------- DECISION ---------------------------- 1.There are two Summonses taken out by the Respondent/Wife:
Relevant Background 2.The Wife is 53 years old. The Husband is 54 years old. They have a son aged 19 (“Son”), studying in the Chinese University of Hong Kong (“CUHK”). 3.During the marriage, the family lived comfortably. The former matrimonial home is a 3-bedroom flat measuring 941 sf (“FMH”). They had a domestic helper and the use of a family car. They went on holidays at least once a year to places such as USA, Canada, Thailand, Japan as well as short trips to Macau and China. 4.During the marriage, family expenses and the Husband’s personal expenses were funded by the Husband’s father (“Father”) and the metal ware company which the Husband had 50% shareholdings (“Company”). The Husband also received salary from the Company in the sum of HK$28,000 per month. 5.The Husband asserted that the said advancements and funding are loans owed to the Father and have to be repaid when he has the ability to. This allegation of loans will be discussed in paragraphs 16 and 17 below. 6.The parties married in 1996. Relationship turned sour in about 2006/2007, and they separated in July 2012. The Wife continued to reside in the FMH while the Husband moved to live with the Father in the same building. 7.Following the parties’ separation in July 2012, the Husband had continuously for 8 years up to October 2020 pay the Wife maintenance in the sum of HK$21,000 per month. He also paid or procured the payment of all utilities, management fees, government rates and rent on the FMH, car park, and other expenses of the Son, including clothing, shoes, toys and electronics. 8.In the lead up to and within days of their separation, the Husband disposed of the following assets under his name :
9.The Wife has applied to join the Father as well as the Husband’s elder sister who is now the sole shareholder and director of the Company (“the Elder Sister”) in these proceedings in respect of the disputed beneficial ownerships of various assets. This is a matter for ancillary relief and not an issue for the present applications. 10.Divorce proceedings were commenced in July 2020. In October 2020, the Husband stopped paying the Wife. He said he was out of funds and the Company has since November 2020 reduced his monthly salary from HK$28,000 to HK$15,000. 11.On 28 October 2020, the Wife received a letter from the Company requesting her to move out of the FMH by 15 December 2020. No further action was taken and the Wife up to date is still residing there. Applicable Legal Principles 12.The legal position for MPS should not be controversial. An application for MPS is governed by Section 3 of the Matrimonial Proceedings and Property Ordinance (Cap. 192). In such an application,
13.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: HJFG v. KCY (MPS)(supra) at §38. Affidavit Evidence 14.The following affidavit evidence has been filed under the MPS Summons.
The Husband’s Financial Ability & Resources 15.The Father said given the Wife’s dishonest and false accusations about the true ownership of his business, and that the Wife has considerable savings of her own, he would not financially maintain the Wife or the Son anymore. 16.The Father has throughout the years continued to render financial support and make advancements to cover the Husband’s needs in the round, and there is no evidence that the Father has ever demanded repayment. Only now the Father took issue loans was never repaid therefore he would not continue to financially support the Husband. 17.The Husband alleged in his Form E that the loans from the Father from 2014 to April 2020 are in the sum of HK$977,646. I do not accept that these are loans as alleged. I find that the alleged loans are in fact the Father’s advancements to maintain the Husband and his family, and are never expected to be repaid. 18.The Elder Sister said since the Company suffers from a lack of cash flow, there are no liquid assets available to continue to maintain the Husband, the Wife or the Son. 19.She also said since the Company’s business has dropped in recent years, the Husband’s salary has to be reduced to HK$15,000 per month. Coincidentally, this sum of HK$15,000 matches the figure HK$14,882 which the Husband declared in his Form E to be his monthly personal expenses, hence leaving nothing for interim maintenance of the Son. 20.It is noteworthy that on one hand the Elder Sister decided to make a salary reduction of 46.5% of an immediate family member who has devoted to working for the Company for 30 years; and on the other hand the Father said he would cease all financial support. It is hard to believe these “opportune” acts are not litigation driven. 21.The Wife asks the Court to draw robust assumptions as to the Husband’s ability to pay because he has fallen far short of his duty to give full and frank financial disclosure. She also invites the Court to make assumption that the Father will continue to maintain the Wife or the Son. 22.There is no justification to make the said assumption. The facts of this case has to be distinguished from the case of M v Mbecause the position of the Father is not ambiguous or unclear. The Father has made his stance clear that he would not financially maintain the Wife or the Son anymore. 23.However, there is justification to assume the Father and/or the Company would continue to provide for the Husband’s personal needs.
24.By reason of the aforesaid, in the case where the Husband has to apply his monthly salary of HK$15,000 or part thereof to maintain the Son pending suit, his personal needs or shortfalls would be looked after. The Son’s Reasonable Financial Needs 25.When the Wife filed her Form E, the Son has not yet started university life. Therefore, the Wife in her Affirmation in support updated the Son’s expenses to HK$37,095 per month. 26.On general expenses, since utilities expenses of HK$2,500 and HK$1,695 for management fees of the FMH are currently being paid by the Company, they should be excluded. The sum of HK$6,000 for food and HK$1,000 for household expenses (of which the Son’s half share should be HK$3,500) is reasonable. 27.On the claim of the Son’s personal expenses in the sum of HK$29,400 per month, the Husband challenged the following items as being unreasonable or excessive.
Extra Tuition Fees 28.The Wife said the Son is currently preparing for the LRSM Piano Performance diploma examination; and he takes piano lessons at an advanced level every week for at least 1.5 hours at an hourly charge of HK$1,000. 29.As the Wife said, the Son must have taken much effort to have come so far in his piano achievements. I agree that, as long as circumstances permit, the Son should be encouraged and/or supported to pursue further. This item for HK$6,500 is not unreasonable. Entertainment 30.The Wife said the Son has entered University and it is time to build up his social life and network in preparation for entry into the workforce. I think the Son no doubt needs some money to spend whilst hanging out socially with his peers; however, he does not have to spend HK$3,000 per month in order to build up relationship and network.The reasonable sum for this item is HK$1,000 per month. Lunches and Pocket Money 31.HK$4,500 per month for lunches and pocket money is not at all excessive. Clothing and Holidays in the total sum of HK$3,000 32.The reasonable expenditure on clothing for a student ought not exceed HK$1,000 per month. 33.Under the COVID-19 pandemic, it is uncertain when will overseas travel resume. A sum of HK$500 per month for local vacation is reasonable. 34.The reasonable sum for these two items is therefore HK$1,500. Dormitory 35.It is not unreasonable the Son took up a place in the hostelof CUHK starting from September 2021. Hostel life is an integral and meaningful part of university life; it is important for getting independent, building up relationship and social network. 36.Hostel charge is approximately HK$6,463.5 per term. There are also additional charges including dinner meal at HK$1,870 per term and utilities and laundry fee at HK$250 per month. There are around 3.25 months per term, so the monthly dormitory expenses add up to around HK$2,800 per month. Exchange Programme & Summer Camp 37.The Son has been selected to join a virtual exchange programme organized by the Weizmann Institute of Science in Israel ("Exchange Programme") and the Dr. Bressie F. Lawrence Virtual International Summer Science Institute from 11 July to 5 August 2021 ("Summer Camp"). The fee is around HK$27,300 per year. 38.The Son is expected to attend at least 1-2 exchange programmes each year at a similar price range which would cost about HK$50,000 per year i.e. HK4,167 per month. The Wife only asks for HK$2,500 per month. 39.The Exchange Programme and Summer Camp are good ventures to enrich one’s life experience; the Son’s participation should be supported. The monthly sum of HK$2,500 is reasonable; I agree it is being calculated on the low side. 40.The above assessment has been made with reference to the marital standard of living. The Son’s personal expenses are HK$26,800, representing the following:
41.To summarize, the Son’s reasonable expenses is HK$30,300 per month (HK$3,000 being half share of general expenses and personal expenses of HK$26,800). Wife’s Financial Ability 42.The Wife earns about HK$25,000 per month working in a bank. As disclosed in her Form E, she has cash savings of over HK$1.7 million and stocks valuing over HK$390,000. 43.Rather disproportionate to her income, the Wife has been spending too freely, in particular on personal grooming and meals out of home. However, even if the Wife’s personal expenses are cut down to a reasonable level, her income is still far from being sufficient to maintain both herself and the Son. It is inevitable that she has to dip into her savings in order to cover the shortfalls and to pay for legal expenses. 44.As discussed in paragraphs 23 and 24 above, since the Father’s financial support for the Husband’s personal expenses is available, there is no reason why the Husband cannot apply his salary to pay for the Son’s interim maintenance. It is fair only if the Husband and the Wife contribute equally to the Son’s interim maintenance. 45.The Husband should pay for the Son’s interim maintenance in the sum of HK$15,000 per month. Since there is no justification the Husband ceased maintenance payment in October 2020; such monthly payment of HK$15,000 should be backdated. Specific Discovery Summons (costs only) 46.The Husband has provided the information and documents sought in the Specific Discovery Summons. The relevance of the information and documents sought do not appear to be disputed. 47.The Husband submits that no costs order should be made against him. He argues that the Specific Discovery Summons represents “pre-action discovery” for the intended TL v ML proceedings, under the disguise of discovery for the Wife’s ancillary relief claims. He further suggests that the Wife should have but failed to send a pre-action letter before issuing the Specific Discovery Summons. I disagree. 48.The information and documents sought do not only relate to the TL v ML proceedings. They were in the Husband’s possession, custody and control and he was/is under an ongoing duty to make full and frank financial disclosure of his financial circumstances. 49.The Wife has specifically asked for these information and documents by way of Questionnaire. It was only upon the Husband’s refusal to provide proper answers that the Wife had no choice but to take out the Specific Discovery Summons. 50.The purpose of the Specific Discovery Summons is achieved. The Wife is entitled to costs. Order MPS Summons 51.The Petitioner do pay the Respondent interim maintenance for the child of the family in the sum of HK$15,000 per month on the first day of each month, backdated to 1 October 2020. 52.There be a costs order nisi that costs of the Summons filed on 5 November 2020 be in the cause of the ancillary relief proceedings. 53.Unless an application to vary is made within 14 days, the nisi costs order shall become absolute. Specific Discovery Summons 54.Leave for the Respondent to withdraw the Summons filed on 19 January 2021. 55.The Petitioner do pay the Respondent’s costs of the Summons, to be taxed if not agreed. No certificate for counsel.
Messrs S. W. Wong & Associates for the Petitioner/Husband Ms Vivien Leung instructed by Messrs Chaine, Chow & Barbara Hung for the Respondent/Wife |