Cps v Wmk

CourtFamily Court (Hong Kong)
Judgment Date10 Jun 2019
Neutral Citation[2019] HKFC 148
Judgement NumberFCMC2080/2018
SubjectMatrimonial Causes
FCMC2080/2018 CPS v. WMK

FCMC 2080 / 2018

[2019] HKFC 148

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2080 OF 2018

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BETWEEN
CPS Petitioner
and
WMK Respondent

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 9 May 2019

Date of Judgment: 10 June 2019

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J U D G M E N T

(Maintenance pending suit/Interim maintenance)

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Introduction

1. This is an application by a Petitioner wife for maintenance pending suit for herself pursuant to section 3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and interim maintenance for the two children of the family, two daughters now aged 8 and nearly 5 years old respectively, pursuant to section 5 of the same ordinance.

The main issues

2. In broad terms there is only one issue to be determined namely how much maintenance should the husband pay to the wife for herself and the girls on an interim basis.

3. The wife seeks an order in the sum of HK$48,000 per month i.e. HK$10,000 per month for herself and HK$38,000 per month (or HK$14,000 per month per child) for the girls. At present the husband is contributing HK$30,000 per month as interim support (up from HK$25,000 per month last year) and he asks that that continue. Thus in reality the parties are only arguing over HK$18,000 per month. I asked for an indication during the hearing of the amount that the parties had spent on this application and the wife’s solicitors undertook to file a Form H, although I have not had sight of that to date. According to the husband’s Form H, the cost for this hearing alone comes to just under HK$75,000. It is likely that the wife’s costs will not be less than that. Thus the parties have most probably spent in the region of at least HK$150,000, which could have been spent on the girls. This equates to over 8 month’s worth of maintenance at the level requested by the wife. Suffice it to say that it seems to me that this is a matter than can and should have been compromised.

Background

4. The parties married on the XX September 2010 and separated in or about June 2015, although they initially continued to live under the same roof but in different bedrooms. The husband, who is Australian, is now 45 years of age and he works as senior actuary. The wife, for her part, has worked both as an administrator in a hospital and as a piano teacher, but she is not working at present. She is 41 years of age and is of Chinese descent. The wife issued a divorce petition on the 15 February 2018 on the basis of two year’s separation and the decree nisi was pronounced on the 19 September 2018. Unfortunately, the parties were unable to reach full agreement with respect to the girls, although joint custody was agreed. The husband is seeking an order for shared care, whereas the wife wishes to have a more traditional arrangement, with care and control being granted to her and reasonable access to the husband. A trial is now scheduled for September in that respect. In the interim the husband enjoys access to the girls on Tuesday and Thursday’s and on alternate weekends. The school holidays are split equally between the parties.

The law

Maintenance pending suit and interim maintenance

5. The law is well known and not in dispute. Section 3 Matrimonial Proceedings and Property Ordinance Cap 192 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 a set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing. Applications for interim maintenance under section 5 of the same ordinance are approached in the same way. As Rayden points out

…what really matters is the immediate and reasonable requirements of the wife balanced against the ability of the husband to pay for them, assessed using a broad-brush approach. (See paragraph 16.17 of Rayden, 18th edition).

6. Reference has also been made by each side to the Court of Appeal decision in HJFG v KCY [2012] 1 HKLRD 95 where it was held inter alia that:

“(a) The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

(b) A very important factor in determining fairness is the marital standard of living. That is not to say that the exercise is merely to replicate that standard.

(c) 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.

(d) 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.”

The husband’s ability to pay

7. In this instance, although the husband says that he is now spending more than he is earning, in broad terms there is no dispute that he has the ability to pay. He is currently earning over HK$200,000 per month (inclusive of a discretionary bonus and a small dividend payment) and he has significant liquid assets at his disposal (i.e. over HK$5.6 million as at the 12 April 2019 – the date of his second Form E, which is an increase from c HK$5.335 million as at the 9 April 2018, which is the date of his first Form E).

8. Under the terms of a previous court order the husband undertook to pay for the costs of a Parental Co ordinator and also for the therapy costs of the children. He says that this has increased his expenditure by just under HK$50,000 per month. However, on a closer examination of the invoices provided to the court under cover of a letter dated the 8 May 2019, it seems that the costs are somewhat lower than that. On average the costs for the Parental Co ordinator amount to just over HK$31,600 per month. The play therapy for the children has also been temporarily suspended, on the recommendation of the Play therapist herself and the husband’s own therapy is HK$2,800 per session. Although I accept that the children will require some support going forward, it seems to me that even on these figures the husband should not be required to pay more than HK$40,000 per month. I am also concerned that the Parental Co ordinator’s fees seem very high. It seems to me that attempts should be made to reduce these to a more manageable level. In addition, the husband includes HK$60,000 per month for legal costs (while the wife is not claiming any provision for herself). If the legal costs provision is put to one side for a minute (on the premise that if necessary it can come out of savings) and the costs for the litigation support are reduced, even on the husband’s own figures, the husband would clearly be able to live well within his means. To that end please see the schedule of expenses for the husband below, taken from his most recent Form E. The court has placed in parenthesis those items which have been placed to one side for a minute and has also marked with an * those items which have...

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