Srg v. Zmn

FCMC 4794 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4794 OF 2007

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not Open to Public)

Date of Hearing: 15 August 2008

Date of Judgment: 26 August 2008

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J U D G M E N T

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Introduction

1.This is an application by a respondent wife for an upward variation of an order for maintenance pending suit.  She makes the application to cover her living expenses and she also seeks a contribution towards her litigation costs.  Originally the wife also sought an order to cover debts allegedly incurred since the petition for divorce was filed.  This part of the application was not pursued at the hearing.

Background

2.The parties married on the 8 June 2002 and separated a few years later. There is some dispute over the actual date of separation. The wife claims that they separated in May 2007 and the husband claims that they separated a couple of years earlier. In any event the divorce eventually proceeded on the basis of one-year separation with consent, the date of separation being cited as “before May 2007”. This is then a short marriage probably of some 3-5 years duration.  Unhappily the marriage broke down in unfortunate circumstances and the husband has since formed a relationship with the wife’s sister.  There are no children of the family.

3.At the end of the First Appointment hearing, on the 8 April 2008, the wife applied for maintenance pending suit.  I have read the transcript of that hearing.  The wife had not made a formal application previously.  There were no papers before the court (i.e. summons and affirmation in support).  Form E’s had however been filed by both sides.  The reason given by the wife’s barrister for the late application was that a) she was dealing with a young respondent (I have since taken judicial notice of the fact that the wife is 30 years of age and therefore is not in truth very young) and that b) she only received instructions late.  The Financial Dispute Resolution was set down for the 12 June 2008.  The Judge then immediately gave the following oral Ruling:

Now for the application of maintenance pending suit, I allow a sum of $5,000 from the Petitioner to the Respondent.  First payment to be made on the 15 April 2008, and thereafter on the 15^th day of each and every month.  Such payments are to be paid into a designated bank account of the Respondent until further order.  The order is made on the basis that the Respondent do have some basic needs for a living, but I also take into account that she should find a job.

4.I interpret this as what might be termed as an interim interim order i.e. one that was simply designed to get the parties to the Financial Dispute Resolution hearing.  Clearly everyone hoped that settlement could be achieved at that hearing. Unfortunately that was not the case.

5.Mr Pickavant, for the husband, says that the wife’s application amounts to an appeal.  I do not agree.  There was no argument of any length or substance before the Judge at that hearing.  From the transcript it seems that the exchange, including the directions for the Financial Dispute Resolution, took some 11 minutes.  I do not accept that the matter was fully aired, although limited submissions were made.  It seems to me that the order was a practical response by a Judge to an application which was made very late in the day.

6.The matter now returns to court, an application having been made by the wife to vary the maintenance order on the 14 July 2008.  Further affirmations have been filed.

Issues

7.The main issues to be determined then are as follows:

(i)    Should the husband pay an increased amount as maintenance pending suit for the wife’s own living expenses?

(ii)  If so how much should the husband pay?

(iii)    In the event that an increase is ordered what date should the order take effect from?

(iv)    Should the husband also pay a contribution towards the wife’s litigation costs as maintenance pending suit?

The law

Maintenance pending suit

8.The Matrimonial Proceedings and Property Ordinance, Cap 192, states that the only governing principle when determining maintenance pending suit, is that the court shall make such order, as it considers reasonable in the all the circumstances.  (See s.3 MPPO Cap. 192).  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.

Litigation costs

9.In so far as the law on the funding of litigation costs is concerned, the recently reported case in England, Currey v Currey [2006] EWCA Civ 1338, is of some assistance.

10.In Currey v Currey [2006] EWCA Civ 1338,

“the conditions for a ‘costs allowance’ are as follows:

(1)   That the applicant spouse has no assets, or none that can reasonably be deployed (at para [19], [20]).

(2)   That she can provide no security for borrowing, or none which can reasonably be offered (at paras [19], [20]).

(3)   That she cannot reasonably obtain legal services by offering a charge on the outcome of the litigation (at para [20] and see Sears Tooth, per Wilson J).

(4)   That she cannot secure publicly funded legal help ‘at a level of expertise apt to the proceedings’ (at para [20]).”

There is also a requirement to undertake an overarching enquiry.

Variation of maintenance

11.In so far as variation is concerned, the wife’s application for the variation is made pursuant to section 11(7) of the Matrimonial Proceedings and Property Ordinance Cap. 192, which provides that :

“(7)   In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any or the matters to which the court was required to have regard when making the order to which the application relates ……”

12.It is accepted that in considering a change of circumstances, I may look at the case de novo.  In other words the court is not necessarily fettered by the existence of a previous order – although this is often a question of weight (see the recent unreported Court of Appeal decision HCTT v TYYC [2008] HKEC 1105).  I may look at the situation afresh and make an order based on the parties’ current circumstances.  (See Ch 3.131 Jackson’s Matrimonial Finance and Taxation, 7^th edition).

13.The court has a very wide power, including a power to discharge, suspend and to backdate the original order.  However in

“practice, orders are not usually backdated to a date prior to the notice of the application to vary unless the justice of the case so demands”.

(See AEM v VFM Civil Appeal No 261 of 2006, dated 10 January 2008, unreported).

14.However, there is normally a trigger date from which the anticipated variation could rightly be said to flow.

15.The overall objective is to achieve a fair outcome (see M v M, FCMC 4070 of 1990, dated 12^th May 2006, unreported).

Discussion

16.I must now turn to consider the issues, the law, and the parties’ evidence as set out in their affirmations and Form E’s, together with the submissions made by their lawyers.

Should the husband pay an increased amount as maintenance pending suit for the wife’s own living expenses?

The wife’s needs

17.The wife is seeking HK$16,450 per month to cover her basic living expenses.  In the main I have no difficulty with these expenses, which on the whole seem reasonable. It was suggested that the wife might not be able to travel outside of Hong Kong because of her immigration status, in which case she should not be claiming holiday expenses.  This issue was not resolved.  In any event, on a broad-brush basis, I accept that the wife’s reasonable expenses are presently in the region of HK$16,500 per month.

18.The wife is working part time. She earns approximately HK$4,000 per month.  The husband maintains that she should be able to work full time and earn HK$8,000 per month.  Clearly there is an issue about the wife’s earning capacity. This may need to be resolved at trial, if common sense does not intervene in the meantime and settlement is not achieved. I accept for the time being that the wife is earning in the region of HK$4,000 per month.  Thus on a broad-brush basis the wife needs an additional HK$12,500 per month on which to live.

The husband’s ability to pay

19.According to the husband’s Form E, he is presently earning HK$97,000 per month.  He lists his expenses as HK$92,463.20 per month.  This includes the sum of HK$28,000 for dependent family members.  Of this he admits to paying HK$10,000 per month to the three children of his partner.  Clearly they do not have a prior claim to that of the wife.

20.In these circumstances I am satisfied that the husband is able to pay the wife HK$12,500 per month as maintenance pending suit.

In the event that an increase is ordered what date should the order take effect from?

21.The wife issued her application on the 14 July 2008. She seeks an increase in maintenance from April 2007, which is when the husband issued the divorce petition. The husband stopped paying the wife maintenance from that date, although he did continue to pay her rent until the end of January 2008. I will not make an order in the terms sought by the wife. It was always open to her to come to court and to seek the court’s assistance. She chose not to do so. On her own evidence she relied on her own savings, borrowed from friends and worked spasmodically. She received maintenance pending suit from April 2008. I will therefore backdate the payments to the 15 July 2008, which is a day after she issued her application. The original order states that payments should be made on the 15^th of each month. Credit shall be given for payments already made.

Should the husband also pay a contribution towards the wife’s litigation costs as maintenance pending suit?

The Currey test

22.It seems to me that the wife does not satisfy the 4^th point in the Currey v Currey test in that she should be able, on the face of it, to avail herself of Legal Aid.  When I queried this with the wife’s barrister I was told that the she had not yet made the application, although she may be eligible to do so.  It seems that the wife’s main concern is that she may not be able to choose the lawyer that she wants to represent her.  Apparently Ms Lai, barrister for the wife, speaks her dialect.  Ms Lai is not on the Legal Aid panel.

23.Mr Pickavant, for the husband submitted that this was not a sufficient reason to order the husband to pay a contribution towards the wife’s legal costs, pointing to the fact that the Legal Aid department have many excellent interpreters.  I agree.

Overarching enquiry

24.In making an overarching enquiry I have also noted that no bills were produced in support of the wife’s claim.  There was no estimate of costs going forward.  If a party is seeking a contribution towards their legal costs then they must, at the very least be able to substantiate it.  This has not been done.  The wife simply states that she has legal costs in the region of HK$130,000 and that a substantial amount remain unpaid. Consequently I will not allow the wife this part of her claim.

Costs

25.Although neither party has been wholly successful, it seems to me that the wife had no alternative to make the application that she did, in so far as seeking a more realistic contribution towards her monthly expenses is concerned.  Thus I will make a decree nisi that the costs of this summons shall be to the wife to be taxed if not agreed, such order to be made absolute upon the expiration of 14 days.  There shall be a certificate for counsel.

26.Consequently having read both sides Form E’s and other affirmations filed in support and having read and heard the submissions from both parties’ lawyers, I will make an order in the following terms:

1) The Petitioner husband shall pay the Respondent wife maintenance pending suit for herself in the sum of HK$12,500 per month, the first payment to be made on the 15 July 2008 and thereafter on the first day of each succeeding month until further order. Credit to be given for payments already made.

2) There be an order nisi to be made effective in 14 days that costs be to the wife, to be taxed on a party and party basis if not agreed. Certificate for counsel.

Mr. Pickavant of Messrs John M. Pickavant & Co. for the Petitioner

Ms. Ody Lai instructed by Messrs Raymond TY Chan, Victoria Chan & Co. for the Respondent