CMT v. ADS

FCMC 4383/2016

[2021] HKFC 49

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4383 OF 2016

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J U D G M E N T

(re. Variation of costs )

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1.  On the 14 September 2020 I delivered judgment in respect of an application for interim maintenance for 3 children; the reported Judgment bears the citation [2020] HKFC 187 which orders that:

i)  Interim Maintenance to be paid in the sum of HK$10,000 per month from the 1 October 2020 and thereafter on the first of each successive month until further order;

ii)  The Interim Maintenance to be backdated from the 27May 2020; approximately four months June, July, August and September 2020 in the total sum of HK$40,000; and

iii)  The Husband do pay the Wife’s costs of and incidental to the application on a party and party basis and that the Wife’s own costs be taxed in accordance with the Legal Aid Regulations such nisi order to become absolute 21 days from the 14 September 2020.

2.  By his summons of the 29 September 2020 the Husband seeks to vary the costs order nisi to the extent that there be no order as to costs as between the Husband and the Wife.

3.  By the order of Her Honour Judge Melloy dated 9 December 2020 it was directed that the application to vary the costs order be dealt with by me by way of paper disposal.

The basis of the Husband’s application to vary costs

4.  By his Counsel’s written submissions dated the 11 January 2021 the Husband inter alia makes the following points :

i)  The Wife had sought an order for HK$10,000 per month to be backdated to the date of Petition namely 18 April 2016;

ii)  By reason of the backdating of four months the Wife failed in her backdating claim as she had sought 54 months namely from April 2016 to September 2020; and

iii)  By seeking a backdating of 54 months the Wife caused the Parties to incur unnecessary costs and that in any event a claim for backdating for such a long period of time was unreasonable and without merit.

5.  By her Solicitors’ submissions dated the 11 January 2021 the Wife makes following points:

i)  Prior to the Trial the Husband had made no offers of settlement. I note from the affirmation of the Wife’s solicitors that there has an exchange of ‘without prejudice save as to costs’ correspondence however by reason of the offers it does not impact the order as to costs. 

ii)  The Husband’s open position was that the interim maintenance should be HK$5,000 a month.

iii)  The Wife accepts that the issue therefore is the question of how relevant is the period of backdating in terms of the costs order.

6.  Both Parties have referred to me various authorities as to the discretionary nature of the determination of costs.

7.  The Husband has specifically referred me to Order 62 and in particular rule 5:

“6. Order 62 rule 5 mandates the court in exercising its discretion as to costs to take into account special matters set out therein. It provides that:-

“5(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as many be appropriate in the circumstances, take into account –

…

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes -

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

…”

and in addition the Judgment of To J in Waxman & Anor v Li Fei Yu & Anor.

8.  At the Trial the Husband had proposed that the interim maintenance for the 3 Children be HK$5,000 per month from the date of the order to be made; notwithstanding the fact that as referred to at paragraph 8 of my Judgment the Husband had previously proposed HK$6,000 per month (HK$2,000 per month per child to commence from the date of decree absolute).

9.  I also recorded in the Judgment the following at Para 13 vi) and vii):

“vi) The Husband complains that between August 2016 to September 2019 the Wife prevented him from having physical access to the Children despite his requests. The Husband states:

“I was so angry with the Respondent using the children against me which was one of the reasons that I did not give her money during the period of December 2018 to December 2019”;”

10.  It is important for Parties’ embroiled in Family Litigation to appreciate, recognise and respect that matters of financial support and care/access of children are separate.  It is quite wrong for a parent ‘to link’ financial support to access.

Conclusion

11.  Whereas I accept the Wife was not successful in backdating the interim maintenance to the date of the Petition I note that the Husband was not prepared to pay interim maintenance until the pronouncement of Decree Absolute and at a figure half that awarded.

12.  If the Husband had in fact paid interim maintenance at the level he had proposed in his Petition namely HK$6,000 per month he would have had a respectable argument as to costs; unfortunately he chose not to pay interim monthly maintenance and in event proposed that it be paid from the pronouncement of the Decree Absolute, a proposition which is without logical and is quite simply nonsensical. 

13.  In the circumstances balancing the positions and conduct of the Parties and having considered the submissions and the applicable Ordinance and case law I decline to vary the costs order.

14.  The Husband’s summons of the 29 September 2020 shall stand dismissed. I see no reason why the Husband should not pay the Wife’s costs of and incidental to the summons of 29 September 2020 on a party and party basis and that her own costs be taxed in accordance with the Legal Aid Regulations and I so order.

FCMC 4383/2016

[2020] HKFC 187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4383 OF 2016

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Judgment

( re. Interim Maintenance of Children)

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Introduction

1.  The Parties are both aged 34 and were married in the Philippines on the 24 July 2005.

2.  There are three children of the family: B, a girl born on the 13 October 2005, E, a boy born on the 6 November 2008 and J, a boy born on the 15 February 2012 (“the Children”).

3.  The Petitioner Husband (“the Husband”) says the Parties separated in July 2012; the Respondent Wife (“the Wife”) says the separation did not take place until February 2016.

4.  The Petition was filed on the 18 April 2016; it is undefended, the Decree Nisi has yet to be pronounced.

5.  The Wife has a legal aid certificate which was granted on the 22 January 2019.

Application before the Court

6.  By her Summons dated the 27 May 2020 the Wife seeks an order that the Husband do pay Maintenance Pending Suit of HK$10,000 per month to be backdated from the date of the Petition namely the 18 April 2016, although in fact she is seeking interim maintenance for the Children.

7.  In his Counsel’s submission the Husband proposes that the “interim maintenance for the Children” should be no more than HK$5,000 per month and to be only payable from the date of the order.

8.  It is of note that in his Petition in 2016 the Husband proposed periodical payments of HK$6,000 per month (HK$2,000 per month per child) to commence from the date of the Decree Absolute.

Relevant law

9.  There is no dispute that the applicable law is set out in Section 3 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (the “MPPO”) that:

“3. Maintenance pending suit in case of divorce, etc.

On a—

(a)petition or joint application for divorce; or

(b)petition for nullity of marriage or judicial separation,

the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition or making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.”

10.  The approach to be adopted by the Court is a “broad-brush” one and as Hartmann JA succinctly stated in HJFG v. KCY [2012] 1 HKLRD 95:

“38. Finally, it is to be noted that 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.”

The Evidence filed in relation to the application

11.  In her affidavit of the 19 May 2020 the Wife inter alia deposes to the following:

i)  After the Husband formed a new relationship the Parties have lived apart since February 2016, the Husband living in Hong Kong and the Wife and Children initially living in the Philippines;

ii)  In April 2018, the Wife and the Children moved to Hong Kong “to handle these proceedings”;

iii)  The Wife states the Husband has paid the following maintenance since 2016:

Year	Payments (HK$)
2016 (No maintenance paid from April to July)	17,524
2017	38,173
2018	28,049
2019	Nil
2020	18,000
Total	101,746

iv)  The Wife states the Children’s and her current expenses to be:

Item of Expense	Amount (HK$)
My share of rent	2,000
Food	3,000
Insurance premia	185
Domestic helper(s)	2,500
Clothing	300
Other (specify) Repayment of loan I borrowed for starting my business, disclosed in my Financial Statement	3,813
The Children
School fees	598
School books and stationary	896
Transport to school (including school bus)	2,500
Entertainment / presents	493
Clothing / Shoes	1,800
Lunches and pocket money	1,798
Total	19,883

v)  Prior to resigning her employment as a receptionist in December 2019, her basic income was HK$20,000 a month;

vi)  The Wife started her own business in December 2019 selling beauty and wellness products. However, the business has not prospered and the Wife is now looking for employment;

vii)  The Wife complains that the Husband regards the liabilities of his partner as his own liabilities and that he is responsible for paying for domestic helper(s) and the down payment of a further property which he purchased in the Philippines in March 2017. The Wife states that the Husband informed her that he had withdrawn his MPF to purchase “the new properties in the Philippines”. 

12.  According to his Form E the Husband’s monthly income is HK$32,619.12.

13.  In his affirmation of the 2 July 2020, the Husband inter alia deposes to the following:

i)  The Wife’s parents live in Hong Kong, running two domestic helper agencies;

ii)  The Wife has acquired Hong Kong residency, is able to work in Hong Kong and visits Hong Kong on a regular basis;

iii)  The Parties initially lived in Hong Kong until December 2008, when the Wife and then the two children moved to the Philippines against the Husband’s wishes;

iv)  The Husband does not accept the Wife’s account of the maintenance paid as set out above.  It is the Husband’s case that he has paid money “to the Respondent and her younger brother S and M upon her direction for the benefit of her and the children since 1^st January 2015”. The Husband has set out such payments in a schedule exhibited as CMT-3 (“the Schedule”);

v)  The Husband also sets out in the Schedule payments to his Mother and siblings for their living expenses and his Mother’s medical expenses since the 1 March 2016;

vi)  The Husband complains that between August 2016 to September 2019 the Wife prevented him from having physical access to the Children despite his requests. The Husband states:

“I was so angry with the Respondent using the children against me which was one of the reasons that I did not give her money during the period of December 2018 to December 2019”;

vii)  The Husband also states he did not provide support was because:

“the Respondent and the children have the full financial support from the Respondent’s parents while they stay with them in Hong Kong”;

viii)  The Husband states that the Wife is supported by her parents and he does not accept that the Wife is required to share expenses of rent and the domestic helper;

ix)  The Husband states that the Wife’s business is in fact started by her and her boyfriend R;

x)  The Husband states that the Rosaryhill School and Sir Ellis Kadoorie’s Primary School do not charge school fees for the grades the Children are currently attending;

xi)  The Husband states that the Wife has a bank account with the Metro Bank in the Philippines which she did not disclose in her Form E;

xii)  The Husband has set out his expenses for March, April and May 2020 in exhibit CMT-5, these amount to HK83,917.92. The exhibit identifies certain expenses which the Husband shares with his partner L; for example the rent is HK$12,000 for which there Husband lists his expense/contribution at HK$6,000;

xiii)  I note that while the Husband has suggested that the Wife may be eligible for CSSA.  However, on an interim basis, this does not preclude his obligations to be responsible for and contribute to the Children’s expenses;

xiv)  The Husband exhibits at CMT-6 copies of his salary payment record for March, April and May 2020 from which it appears his salary (excluding MPF) is as follows:

Month	Salary excluding MPF (HK$)
March 2020	26,884.28
April 2020	24,658.20
May 2020	27,620.45

xv)  The Husband states that he and L are financially independent and share their common expenses equally, and that L’s own salary is “about HK$28,000”; and

xvi)  The Husband states he withdrew HK$214,340.22 (about PHP 1 million) from his MPF with HSBC in April 2017 to finance the purchase of two properties in the Philippines and to cover his monthly expenses when he was unemployed.

14.  In her reply Affidavit of the 13 July 2020 the Wife inter alia deposes to the following:

i)  It is incorrect that she and the two older children moved back to the Philippines in December 2008 against the wishes of the Husband;

ii)  Two payments were made by the Husband to M in January 2015, but the Wife did not direct the Husband to pay any other maintenance through M;

iii)  The Wife has no knowledge of the transactions made to S referred to in exhibit CMT-3 and has not directed the Husband to pay maintenance through S. In April 2015 S lent money to the Husband to pay expenses due under the Social Security System for the Former Matrimonial Home;

iv)  The Wife did not retain receipts for the money remitted to her by the Husband and cannot recall the details of each and every remittance. At ADS-4 the Wife provided a breakdown of her record of what she had received, which can be summarised as follows:

Period	Amount received (HK$)
April to December 2016	17,524
2017	38,173
2018	28,049
2019	0
10 January 2020 (one payment)	18,000
Total	101,746

v)  The Wife disputes the fact that her parents are financially supporting her. At ADS-5 the Wife exhibits messages showing that she was asked to and did pay part of her family’s household expenses;

vi)  That in 2018 there was a dispute between the Wife and Husband in respect of the title deeds of the Former Matrimonial Home. The Wife states that the Husband threatened her that if she did not provide him with the title document he would withhold maintenance for the children for December 2018;

vii)  The Wife exhibits at ADS-7 messages from the Husband demonstrating that it was the Husband who turned down his daughter’s request to see him;

viii)  The Wife also exhibits at ADS-9 evidence that the Husband suggested the Wife that she should apply to the Hong Kong Government for support; and

ix)  Wife puts in issue the Husband’s financial disclosure, and that he has to make means to pay HK$10,000 per month. 

15.  From the above it is clear there are very substantial issues of fact which can not be determined on paper and without oral evidence, however it is of note that:

a.  This is an application for interim maintenance

b.  The Husband does not dispute the fact that he should pay interim maintenance

c.  The issues are whether it should be HK$5,000 per month or HK$10,000 per month and whether or not it should be back dated and if so from when

16.  The Husband’s proposal in paragraph 31 of his Counsel’s submissions are as follows:

In summary, it is Husband’s case that monthly maintenance in the sum of HK$5,000 is sufficient to meet the reasonable needs of the Children.

Item	What W claims	What H says to be reasonable
School fees	HK$598	HK$230
School books and stationery	HK$896	HK$650
Transport to school	HK$2,500	HK$2,292
Entertainment/ presents	HK$493	Nil
Clothing/ shoes	HK$1,800	Nil
Lunches and pocket money	HK$1,798	HK$1,200
Uniform	Nil	HK$435
Total	HK$8,085	HK$4,807 But say HK$5,000”

17.  By reason of the disputed issues and the fact that the Husband has paid interim maintenance in the past it would not be appropriate to backdate the maintenance to the date of Petition (April 2016) although whether the Husband has or has not paid for the Children may be a matter that is revisited at the substantive ancillary relief proceedings in the event of no settlement.  However, in the context of only one payment in 2020 (HK$18,000) the interim maintenance will be backdated to the date of the summons namely 27 May 2020.

18.  The Husband’s proposal does not include a contribution to the Wife’s general expenses in particular share of rent of HK$2,000 and food HK$3,000.  Taking a broad brush approach I propose to appropriate @ HK$1,000 for rent and $1,500 for food = HK$2,500.  I also note the Husband make no provision for :

Entertainment / present	HK$493
Clothing / shoes	$1,800
	HK$2,293

19.  Having considered the above I calculate the reasonable and fair figure for interim maintenance for the Children to be the HK$5,000 as proposed by the Husband with the following additions:

Rent	HK$1,000
Food	$1,500
Entertainment / presents	$493
Clothing / Shoes	$1,800
	HK$4,793
A total of $9,793 which will be rounded up to HK$10,000

Costs

20.  The Wife was obliged to make the application which was successful and therefore I see no reason why costs should not follow the event.

21.  The Order is therefore:

a.     The Petitioner do pay the Respondent, HK$10,000 per month by way of interim maintenance for the Children to commence from 1 October 2020 and thereafter on the 1^st of each successive month until further order.

b.     The interim maintenance payable under (a) be backdated from 27 May 2020, approximately 4 months, to the effect that the Respondent do pay backdated interim maintenance of HK$40,000, being HK$10,000 per month for June, July, August and September.

c.     The Petitioner do pay the Respondent’s costs of and incidental to the application on a party and party basis; the Respondent’s own costs be taxed in accordance with the Legal Aid Regulations.  This order shall be nisi and will become absolute 21 days from today unless there is an application to vary such nisi order.