Wct v. Myh

FCMC 7669/2021

[2021] HKFC 214

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7669 OF 2021

________________________

BETWEEN

________________________

Coram:  District Judge K.K. PANG in Chambers (Not open to public)

Date of Hearing:  21 October 2021

Date of Judgment:  29 October 2021

________________________

J U D G M E N T

(Maintenance Pending Suit)

________________________

Background

1.The parties were married in October 2018. The child of the family (‘the child’)  was born in August 2019. They were separated in October 2019. The Petitioner Husband (‘H’)  filed the petition for divorce on behaviour under FCMC 6099/2020 on 13 July 2020. By the order dated 19 July 2021, leave was granted to H to withdraw the petition under FCMC 6099/2020 and to issue a fresh petition on consent and it was also ordered that H do pay W interim interim maintenance at the rate of HK$10,000 per month for the child of the family, the 1^st payment be payable on 5 July 2021. The petition herein was filed on 2 August 2021.

2.This Judgment is concerned with W’s summons dated 13 July 2021 for an order that:

(1)  H do pay W the sum of HK$32,000 per month as interim maintenance for the child of the family, backdated to the date of the petition filed on 13 July 2020 until further order of the court, or at such sum and for such period as the court thinks fit and reasonable;

(2)  Such order or directions as the court deems fit;

(3)  costs.

Applicable Law

3.W’s application is governed by section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. 

4.The court has a wide discretion in the matter, subject to the result being reasonable: TL v ML & Ors (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1263 per Deputy High Court Judge Mostyn QC (as he then was)  at 1289:

“The sole criterion to be applied in determining the application is ‘reasonableness’ (s. 22 of the Matrimonial Causes Act 1973), which, to my mind, is synonymous with ‘fairness’.”

5.In HJFC v KCY  [2012] HKFLR 27, Hartman JA said at §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.

v. Where the paying party has historically been supported through the bounty of an outsider, and where the payer is asserting that the bounty had been curtailed but where the position of the outsider is ambiguous or unclear, then the court is justified in assuming that the third party will continue to supply the bounty, at least until final trial”

W’s case

6.W contends that the household expenses and the child’s expenses were totally HK$66,299 per month, of which H contributed 50% i.e. HK$33,150 per month during the marriage.

7.W, aged 34, is a bank manager and her income is around HK$53,633 per month. She together with the child of the family are living in the matrimonial home. According to W’s Form E filed on 15 July 2021, apart from her interest in the matrimonial home, she had HK$41,565.41 in bank, stock valued at HK$23,640.44 and MPF valued at HK$555,083. In her submission, she had monthly expenses of HK$63,784, including general expenses of HK$22,596, personal expenses of HK$4,228 (excluding legal aid contribution of around HK$2,800)  and child expenses of HK$36,960 per month.

8.Details of W’s monthly expenses are as follows: -

General

	HK$
Mortgage instalment	17,956
Utilities	600
Management fees	1,000
Food	2,000
Household expenses	500
Insurance	422
Broadband	118
	22,596

Personal

Meals out of home	1,000
Transport	200
Personal grooming	100
Tax	1,338
Contribution to mother	1,500
Mobile	90
	4,228

Child

School fees	6,250
Books and stationery	300
Transport to school	1,429
Medical/ Dental	800
Playgroup, swimming	1,850
Entertainment/ presents	500
Holidays	200
Clothing/ shoes	1,000
Insurance	698
Other transport	300
Child minding (babysitter)	16,800
Uniform	133
Milk powder, diapers etc	4,300
Speech therapy	2,400
	36,960

9.W adopts the sum of HK$64,000 as a reasonable amount of the child’s total monthly expenses. She asks H to share 50% i.e. HK$32,000 per month as MPS for the child and seeks HK$30,000 per month for the purpose of backdating.

10.About H’s ability to pay, W takes the position that:

(1)  He having failed to give full and frank disclosure of his finance, the court can make robust assumptions about his ability to pay;

(2)  In fact, he earns so much more than how much he professes that he is capable of paying MPS for the child at the rate of HK$$32,000 per month;

(3)  He deliberately inflates his monthly expenses to put him in a situation that he cannot pay towards the child’s expenses;

(4)  He has hidden savings.

H’s case

11.According to his Form E filed on 15 July 2020, apart from the interest in the matrimonial home, he had cash in bank of HK$3,957.11, value of stocks of HK$39,565.11, value of interest in insurance policy of HK$18,936.54 and MPF of HK$560,772.05, and he had liabilities of HK$23,015.51.

12.H, aged 38, used to be an employer of a service company that assigned him to work for eBay as Business Development Manager. According to his Form E filed on 15 July 2020, his basic salary was HK$29,400 per month, in addition to commission and allowance, and his total income was averagely HK$41,018 per month based on the last 12 months and his monthly expenses were HK$43,910, including general expenses of HK$14,900, personal expenses of HK$29,010 excluding interim interim maintenance of HK$10,000 per month. His employment contract with the service company ended on 25 August 2021. The service company is negotiating a new contract with him. H asserts that he has no idea whether the service company will enter into a new employment contract with him and if so when and on what terms. He states that, apart from the service company, he does not have any other income as alleged or at all. He contends that he cannot afford to pay any sum at this moment in the absence of any income. He contends that the above monthly expenses are necessary and modest.

13.At the same time, he takes issue on W’s monthly expenses. He takes the position that, overall speaking, the total expenses of the child are around HK$20,000 per month, the household expenses that the child shares being around HK$8,000 per month and the reasonable expenses for the child being HK$12,000 per month.

My view

14.W contends that the household expenses and the child’s expenses were totally HK$66,299 per month. Despite that it seems indisputable to me that the parties lived middle class living standard during the marriage, I take the view that the parties have to face the reality that once the divorce process starts, the parties’ standard of living will drop. Many factors combine to lower the parties’ standard of living after divorce. Expenses will begin to mushroom as soon as the divorce process starts, such as legal fees, new living expenses and myriad other costs that will drain their financial resources. Money previously used to support one household must now stretch to support two.

15.Most of the monthly expenses are flexible. I regard that W should consider cutting down on the child’s expenses on such as extracurricular activities, entertainment/presents, clothing/shoes, milk powder and diapers. After having carefully considered the matter, I take the view that the child’s expenses should be reduced by about HK$ 7,000 per month. Without going to an item by item forensic examination of each and every item of the child expenses, I accept the child expenses at HK$30,000 per month for the present purpose. I assess W’s monthly expenses at $22,596 + 4,228 + 30,000= HK$56,824 per month. W’s income being HK$53,633 per month, it is worthy of noting that, together with the interim interim maintenance of HK$10,000 per month, W’s means are enough to meet her immediate needs.

16.I now turn to H’s monthly expenses. W contends that, while he contributed more than HK$33,000 per month on the family and the child, he used to spend very little for himself, that he exaggerates his current personal expenses to shirk from the responsibility to support the son, as well that his rent will be unnecessary, if he lives with his father and the younger brother. W is also incredulous to H’s claim of being serious disturbed by the divorce and needed to incur expenses on seeking psychiatric treatment. For the present purpose, I accept that H needs a roof over his head. As shown by the duly stamped tenancy agreement produced, the rent is HK$13,000 per month. I have said in the above that the parties have to cut down on expenses. I regard that it is fair to assume that the parties should have similar standard of living. W’s personal expenses being only HK$4,228 per month, even for the purpose of this application accepting his expenses on psychiatric treatment, H’s personal expenses of HK$29,010 is obviously excessive. I regard that he should consider cutting down on meals out of home, transport to work, clothing/shoes, personal grooming and entertainment/presents and holiday. With board brush, I accept his personal expenses at 40% of his claim i.e. HK$11,604. I assess his monthly expenses at $14,900 + 11,604 = HK$26,504 per month.

17.Despite that W takes great exception on H’s representation of his income and ability to pay and takes the position that he has deliberately reduced his income and inflated his expenses, I shall leave the parties’ factual disputes on this respect to be determined at the later stages of the proceedings, inasmuch as W’s income of HK$53,633 per month together with the interim interim maintenance of HK$10,000 per month are enough to meet her immediate needs of HK$56,824 per month.

18.Notwithstanding that H is currently out of job, I take the view that on the evidence it is probable that he will renew the employment with the said service company, and if not, with his marketable experience in online business, it is probable he will move to greener pastures. Looking at the matter in the round, I have little doubt that H has the ability to continue paying W HK$10,000 per month as interim maintenance for the child’s immediate needs.

19.In conclusion, it is ordered that H do continue paying W HK$10,000 per month as interim maintenance for the child of the family pursuant to the order dated 19 July 2021, until further order of the court.

20.I am well aware that it is W’s strong belief that H ought to contribute HK$32,000 per month in support of the child of the family. Whether the court will accept W’s above case depends very much on the outcome of the issue on the parties’ respective financial positions that remains a continuing source of disputes to be sorted out at the later stages of the ancillary relief proceedings. In due course, any under provision or over provision in the interim maintenance order may be set off, so far as it is fair and just so to do.

21.Since broad brush approach is adopted and in view of the parties’ arguments on their respective financial positions are yet to be determined, I make an order nisi that costs of this application be reserved. The order nisi becomes absolute 14 days after this order is made unless a party has applied to the court for varying the same.

Ms. Yanky Lam instructed by Lee Wong & Co. for the Petitioner Husband

Cedric & Co. for the Respondent Wife