Tpkl v. Cmcy

FCMP 3/2021

[2022] HKFC 53

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3 OF 2021

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Coram:  HH Judge C.K. Chan in Chambers (not open to public)

Mode of Hearing:  By way of written submissions

Date of Respondent’s Written Submissions:  26 January 2022

Date of Applicant’s Written Submissions:  9 February 2022

Date of Handing Down Judgment:  18 March 2022

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J U D G M E N T

(Interim Maintenance for Child)

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1.This is a hearing of the Respondent Mother (“the mother”)’s application for interim maintenance for the son (aged 3) in the monthly sum of $46,600 against the Applicant Father (“the father”). She also asks for a lump sum being reimbursement of the interim maintenance between September 2018 and 3 May 2021 (the date of the summons), i.e. for a period of 33 months.

2.The father objects to the application as he is only prepared to pay $5,000 per month, a sum of which he has already been paying by consent since the last hearing on 14 May 2021.

3.As I see it, the issues are quite strict forward and therefore, I am going to give a very succinct judgement on the merits of the application.

Brief Background

4.The mother is now aged 41. She works in investment services earning a basic salary of $142,500 per month.

5.The father is aged 50. He works as a personal assistant in a health care company earning $40,000 per month.

6.The son was born outside wedlock. He is aged 3 and is currently under the care of the mother. The mother asks for interim maintenance of $46,600 per month representing half of the monthly needs of the son. She also asks for the order to be backdated to September 2018.

7.The father said he could only afford $5,000 per month as the son’s interim maintenance.

Discussion

8.After considering the parties’ submissions and all the relevant circumstances of the case, I am satisfied that the interim maintenance of the son should be set at $5,000 per month. This decision is reached based on the following considerations:

(1)  There is no dispute that in approaching the issue of interim maintenance, the court will only adopt a broad brush approach, without going into any detailed investigations into the disputed facts. Any over or under payment by way of interim maintenance could always be adjusted at the final hearing after a full investigation into the needs of the child and the financial capabilities of the respective party.

(2)  The quantum as claimed (at $46,600 per month) is not reasonable. The son is only 3 years of age. Half share at $46,600 means that his total monthly needs are set at $93,200. After taking into account of the parties’ financial resources, I do not accept that the amount claimed is reasonable. On the contrary, the father’s submission that the son’s total monthly expenses to be set at about $45,000 sounds more reasonable.

(3)  One of the contentious issues is the father’s ability to pay. The mother contends that the father chose to resign from his high paying job (at about $120,000 per month) between 2017 and 2020 meaning that he should have much better earning capacity than his current income of $40,000 per month. The father denies this. My view is that the father may or may not be utilizing his full earning capacity, but this is certainly not an appropriate occasion to conduct a detailed investigation into the father’s earning capacity.

(4)  On the other hand, there is no dispute that the mother is having a well-paid job. She has a basic monthly salary of $142,500, suggesting that her average income should be higher than that.

(5)  In her Form E, the mother stated that she had net assets of $16,549,299.99 (B/129), including:

A flat in Causeway Bay	$7,742,000.00
Cash in banks	$3,602,898.46
Stocks and other investments	$11,238,125.98
Pensions	$1,167,679.43
	$20,147,805.41
Less
Liabilities	$3,598,505.42
Net:	$16,549,299.99

(6)  The mother’s monthly passive income (B/131) includes:

Rent	$20,475
Dividends from mutual fund (HK$)	$29,761
Dividends from mutual fund (US$)	$1,847 (HK$14,370)

This is more than enough to cater for the son’s interim reasonable needs at $45,000 per month.

(7)  The above has not taken into account the fact that the mother is an indirect owner of her current residence in Southern District, as she claims that her indirect shareholdings therein are held on trust for her father. But even if the Southern-District property really belongs to her parents beneficially, which is not a subject to be investigated into at this stage, the mother’s signing of a tenancy agreement with a company owned by her parents seems to be rather disingenuous.

Orders

9.I have ruled that the son’s interim maintenance payable by the father should be set at $5,000 per month, and I so order. Such payment is to be made on the 1^st day of every month starting 1 April 2022, until further order of the court. The mother’s claim for reimbursement or a backdated order is dismissed.

Costs

10.The mother fails in her application. I have thought of making an adverse costs order against her. But at the end of the day, I note that the father does not ask for costs. Therefore, I shall make no order as to costs in respect of the mother’s application, including all costs previously reserved.

Representation:

Ms. Phyllis Lee, Barrister-at-law, instructed by Messrs. Ho & Tam, solicitors for the Applicant

Ms. Agnes Kwong, Barrister-at-law, instructed by Messrs. Pansy Leung Tang & Chua, solicitors for the Respondent