FCMC 747/2018
[2020] HKFC 21
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES
NUMBER 747 OF 2018
----------------------------
| BETWEEN | | |
| | ZXW | Petitioner |
and |
| | PKP | Respondent |
---------------------------
| Coram: | His Honour Judge I Wong in Chambers (Not open to Public) |
| Date of Hearing: | 27 September 2019 |
| Date of Judgment: | 14 January 2020 |
__________________
JUDGMENT
(Maintenance Pending Suit)
__________________
1. This is an application taken out by the respondent wife/mother for maintenance pending suit (“MPS”) for herself and the two children of the family.
2. In this judgment, I shall refer to the petitioner as “the father”, the respondent as “the mother”, the elder daughter as “H” and the son as “N”.
Introduction
3. Both the father and the mother are currently 31 years old.
4. The father is a Mainlander and the mother a local Chinese. They met in Toronto in around 2009 when they were pursuing tertiary education there and started cohabitation in the same year.
5. The father is from a well-to-do family. His father (“the grandfather”) apparently runs a successful fur trading business with offices in both the Mainland and Hong Kong. The grandfather and his wife (“the grandmother”) have been given the right of residence in Hong Kong through the government’s investment entrant scheme. The father, however, is not covered by the scheme because at the time of the application he was already over 18 years old and so has no right to reside in Hong Kong.
6. The parties were married in May 2013 in Hong Kong. It is not in dispute that at the time of the marriage the mother did not finish her education yet and she ceased her education upon marriage. According to the mother, she was persuaded by the grandfather, who flew all his way to Toronto to meet her, to give up her education so as to get married with the father and following that, the young couple could assist the grandfather in the family business. The grandfather further promised to provide capital for them to establish their business in Hong Kong. This is the J & K Limited (“J&K Limited”) that was subsequently established in Hong Kong with both the father and the mother as directors and shareholders. The father denied there was such a meeting or for that matter, any such representation or promise had been given by the grandfather. For the purpose of this application, I do not think this discrepancy is relevant to the issues to be determined by this court.
7. Two children were born during the marriage. The elder daughter “H” was born in June 2014, currently 5 ½ years old, and the younger son “N”, born in April 2016, is nearly 4 years old.
8. Sadly, the marriage did not last long and the parties separated in around September 2016.
9. On 18 January 2018, the father petitioned for divorce on the ground of desertion. The ground was subsequently amended to one of “one-year separation with consent”.
10. Decree nisi was granted on 20 November 2018.
11. On 25 January 2019, following a successful CDR hearing, it was agreed that the joint custody of the children be granted to both parties, with care and control to the mother and reasonable access to the father. The parties are yet to file a consent summons seeking a formal court order to that effect. At the same hearing, the father also agreed to pay an interim maintenance for the children in the sum of $15,000 per month.
12. The mother was not satisfied with the interim sum and took out the present MPS application on 4 February 2019. At the direction hearing of 24 April 2019, with the consent of the father, he was ordered to pay an interim MPS in the sum of $20,000 per month for the benefit of the children (ie $10,000 each).
Parties’ Open Offer
The mother’s open offer
13. The mother initially sought a total sum of $75,534 of which $9,384 was for herself and the remainder of $66,150 for the children. She also sought to have the MPS back-dated to 18 January 2018, the date of the father’s petition.
The Father’s open offer
14. Shortly before the substantive hearing, the father increased the sum by $5,000, making a total of $25,000. This additional sum is towards the interim maintenance of the mother. The court therefore made an order on 27 September 2019 that the father do pay a monthly sum of $5,000 as interim maintenance for the mother, the 1st payment to commence on 1 October 2019.
15. The father also agreed to undertake to pay all the future medical and dental expenses of the children upon production of receipts by the mother. I shall hold the father onto this undertaking.
16. As regards the back-dating of the MPS, the father agreed to have it back-dated but only to have it back-dated to the date of the application, ie 29 January 2019.
The Mother’s Case
17. The mother, taking the children with her, has since August 2016 moved to live with her mother in a public housing unit in Chai Wan. The mother has not been working since January 2017 and has been taking care of the children with the assistance of her mother. She said she had been living on her savings and borrowings from her mother but these resources had exhausted.
18. The mother said during the marriage, the family enjoyed a comfortable living standard. The family lived in a 2,200 ft2 house in Palm Springs of Yuen Long (“the former matrimonial home”) which, said the mother, was a marriage gift from the grandfather. There was another matrimonial home in Shenzhen, a 6,000 ft2 house, for the family when they were staying there; again, it was a marriage gift from the grandfather.
19. As referred to above, both the father and the mother were the shareholders and directors of J&K Limited which, according to the mother, was established by the father’s family and was part of the fur trading business. The arrangement at that time was both of them received a monthly salary of $20,000 each and the total of $40,000 was given to the mother. Apart from that, the family’s living expenses, including insurance premiums and car expenses, etc, were paid by J&K Limited and another family company in the name of SI International Group Limited.
20. Due to the breakdown of the relationship, the mother ceased to be the director of J&K Limited at the end of 2016 and from then onwards, she has had no income. At about the same time in January 2017, the father also failed to pay any living expenses to the mother and the children. The next month the father went further to terminate the mother’s supplementary credit card, thus entirely cutting off all financial resources of the mother. This remains to be the situation till 25 January 2019 when, upon the court’s enquiry, the father agreed to pay a sum of $15,000 for the benefit of the children.
21. During the marriage, the family had the use of 2 vehicles including a 7-seater vehicle with a Mainland license and was able to afford medical and dental treatment at a first class private hospital in Hong Kong. The father from time to time gave her pocket money and bought her luxurious items and jewelleries as gifts. There were also money gifts from the father’s parents; from May 2014 to November 2016, a total of $700,000 were given to her.
The Father’s Case
22. The father continues to live in the former matrimonial home when he is in Hong Kong and as before, he continues to work in the family business.
23. The father admitted that as from March 2017 he ceased giving any living expenses to the mother. This was way before he petitioned for divorce in January 2018.
24. The father does not dispute liability. As I see it, there is no dispute that during the marriage the family was financially dependent upon him and his family business. The father accepted that J&K Limited was established with the financial support of his parents. Indeed, he goes so far as to say that this company and virtually all the assets and business interests held under his name are in fact not his belongings but his parents’. Hence, whilst the father asserted that the former matrimonial home and the matrimonial home in Shenzhen referred to in [18] above are not as large as the mother described, at the same time he said these properties are not their “matrimonial home” as such because they are in fact his parents’ home and his family were merely allowed to stay there rent-free. That said, without the need to condescend to the minuscule for the present purpose, the standard of living as depicted by the mother in the foregoing paragraphs are largely accepted. The father explained that the family was able to afford a high standard of living was because of the financial support of his parents but such support is non-existent now. The grandfather has not been willing to support him since the breakdown of the marriage. What he now has, as far as financial resource is concerned, is a mere monthly salary of $20,000, and it is only with the borrowings from his parents that the most he could afford is $25,000 per month.
The Legal Principles
25. Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“the MPPO”), 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 presentation of the petition or the making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.
26. The Court of Appeal in HJFG v. KCY [2012] 1 HKLRD 95 summarised the established principles,
33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.
34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing. In the present case, the judge recognised the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.
35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.
36. An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.
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.
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.”
(emphasis added)
27. As for the interim maintenance for the children, the empowering provision is section 5 of the MPPO. It is unnecessary to set out the provision here. In short, whether it is the interim maintenance for a spouse or for a child of the family the test is one of reasonableness in the circumstances, and the court should look at their reasonable needs, and the ability to pay on the part of the father. In doing so, the court should adopt a broad-brush approach.
28. Guided by the above principles, I now turn to the application.
Issues to be Determined
29. There are two issues that are determinative of the application before me:
(1) Whether the father has the ability to afford the MPS at the level requested by the mother; and
(2) What is the amount of MPS that is reasonable, representing those payments necessary to meet the recurring costs of living at whatever standard of living of the mother and the children?
The Father’s Ability to Pay
30. The father’s contention is that while the grandfather was willing to support his family financially in the past, he now refuses to do so due to the breakdown of the relationship between the father and the mother.
31. Counsel agree that in respect of third party assistance, the authority can be found in the Court of Final Appeal judgment of KEWS v NCHC [2013] 2 HKLRD 314. Ma CJ said as follows,
E.2 The identification of the parties’ financial resources
33. Section 7(1)(a) is stated in wide terms. Two points are of note:-
(1) The court is not restricted to taking into account only those assets which in law represent the property of either spouse. Section 7(1)(a) is widely drafted to include “other financial resources” of the parties. These resources will therefore include those assets or resources to which the relevant spouse has or is likely to have access but to which he or she may not have a legal entitlement.
(2) Nor is the court constrained to look only at the present position. The court looks into the financial resources which a party actually has (or should have) at present or which that party is likely to have in the foreseeable future.
E.3 Treatment of financial assistance from third parties under s 7(1)(a)
34. The width of the wording of s 7(1)(a) of the MPPO will include financial assistance made by third parties to the parties to a marriage. Accordingly, such assistance made by a third party to the husband or wife may be taken into account in the computation of that party’s overall financial resources.
35. As stated in para 2 above, such third party assistance may take various forms. The authorities, to which I shall presently turn, show commonly trust situations or where relatives have provided financial assistance. There are of course other factual situations.
36. In every case where third party assistance is involved, there are two critical evidential questions for the court to consider:-
(1) What is the extent of the financial assistance provided by the third party to the husband or wife?
(2) What is the likelihood of such financial assistance continuing in the foreseeable future?
37. It goes without saying that in the fact finding exercise, the court must look at the reality of the situation and have regard to matters of substance and not just form. In looking at reality, the court can take into account not only what a party actually has, but also what might reasonably be made available to him or her if a request for assistance were to be made. In O’D v O’D [1976] Fam 83, which involved the court taking into account the financial support given to the husband by his father, Ormrod LJ said at 90 D-E “In making this assessment the Court is concerned with the reality of the husband’s resources, using that word in a broad sense to include not only what he is shown to have, but also what could reasonably be made available to him if he so wished”.
38. In addition, in looking at what may occur in the foreseeable future, past conduct is often a useful guide: see SR v CR(Ancillary Relief: Family Trusts) [2009] 2 FLR 1083, at 1091 (para 27).
39. Having ascertained the extent of the financial assistance provided by the third party and then finding on the evidence on a balance of probabilities that there is a likelihood of the continuation of such financial assistance in the foreseeable future, the court is then in a position in law first to take this into account in the identification of the financial resources of the parties and secondly, in determining the appropriate ancillary relief to be granted. This is an approach that is entirely consistent with the court’s duty under s 7(1) of the MPPO. Needless to say, the outcome in any given case is inevitably fact-sensitive.
(emphasis added)
32. Thus, the court needs to ascertain the extent of the grandfather’s financial assistance to the father and the likelihood of such assistance continuing in the foreseeable future. In doing so, the court needs to look at the reality of the situation and has regard to matters of substance and not just form. The court could take into account not only what the father actually had, but what might reasonably be made available to him if a request for assistance were to be made.
33. The parties have no argument over the first limb, ie the extent of the financial assistance provided by the third party to the father. It is common ground that the J&K Limited was established by funds from the father’s family and the comfortable life-style enjoyed by the parties and their children could not have been made possible during the relationship if it had not been for the support of the father’s family.
34. As regards the second limb, ie the likelihood of such financial assistance continuing in the foreseeable future, whilst Mr Poon, on behalf of the father, agreed that third party assistance may be taken into account when evaluating the payer’s financial resources if evidence is available and sufficient, he drew the court’s attention to [50] of KEWS v NCHC where Ma CJ said,
50. If the true ambit of “judicious encouragement” is really no more than a restatement of the approach set out in section E.3 and in the previous paragraphs, I have no quarrel with that. However, if the term means a form of pressure on third parties to add to the relevant spouse’s resources which, on the evidence, they would not do or are unlikely to do, I would for my part reject such a concept. It is an approach which is consistent neither with principle nor with the authorities. The approach of the courts should be that as set out in section E.3 above.
35. Mr Poon therefore submitted that unless the court is satisfied on the balance of probabilities that the grandfather would continue to provide financial resources for the father to pay MPS for the mother and the children, the grandfather should not be forced to financially assist the father against his own will by the court.
36. In response, Ms Chong submitted that the father’s resources are not limited to the monthly income of $20,000 that he has alleged. She drew the court’s attention to the father’s Answer dated 29 March 2019 where he said he was not paid any salary due to poor business. Yet, about a month later, in his affirmation of 23 April 2019, which was given in opposition to the mother’s present application, the father admitted that he was then receiving a monthly salary of $20,000. There was no mention of poor business nor was there any explanation of this inconsistency.
37. My attention was also drawn to the WhatsApp messages exchanged between the father and the mother in March 2017 (ie a few months after the parties have separated) where the father said he could give the mother cash of $30,000 per month and a lump sum of $50,000 to $100,000 per year as vacation expense, pay the school fees of the children and provide a 7-seater vehicle for the mother’s use and he was willing to cover 80% of the car expenses.
38. The mother said the grandfather previously promised to pay her $1,000,000 for the birth of N. Apparently, the father did not dispute there was such a promise and even took the initiative to bring up this issue and offer to pay the sum to the mother by instalments of $100,000 to $200,000 per year.
39. Ms Chong further submitted that it is not just the grandfather who gives the father financial assistance, but the grandmother as well. The father’s credit card bills have been settled by the grandmother. It is reckoned that from 9 June 2017 to 18 June 2018 a total of $460,000 was involved for this purpose. To this, the father explained that these were mostly business expenses. Whether this is the case would have to be further examined and determined at trial but at this stage, for the purpose of the present application, it must be correct to bear in mind that it was always the practice of the father and his family to have their family expenses paid out from their family business.
40. To me, what is most telling as regards the father’s ability to pay can be found in the substantive hearing when there were exchanges between the court and Mr Poon on the reimbursement of the children’s medical and dental expenses already incurred by the mother. According to the mother, from April 2017 to November 2018 this amounted to $172,400 and the father in his affirmation of 23 April 2019 did not dispute the genuineness of the expenditure. Upon the court’s inquiry, Mr Poon was able to take instructions from the father who instantly replied that he was agreeable to reimburse the mother without the need to have the hearing stood down for a while so that the father could secure the fund from the grandfather before giving an affirmative reply to the court. The only two inferences that can be drawn are that either he has the funds with him or he continues to have the backing of the grandfather.
41. As said above, the father is essentially saying that in respect of MPS he could only afford to pay whatever amount the grandfather may agree to lend him. Any sum higher than what the grandfather agrees to would be entirely beyond his control and ability. Mr Poon agreed to my comment during the hearing that the ability to borrow is also a financial resource that the court may take into consideration under section 7(1) of the Matrimonial Proceedings and Property Ordinance, Cap 192.
42. In respect of financial assistance given by a third party to the payer, Mostyn QC (as he then was) said the following in TL v ML (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at [125 (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 (M v M).
43. Further, what HH Judge Bruno Chan said in [77] of DX v LN, FCMC 7870/2014 (unreported; 21 September 2015) is apposite:
77. I have earlier in this judgment already expressed my grave doubts over the allegation that his father would seriously cut him off simply because of being told by the Wife of his extra-marital affair, which doubts have been reinforced by all the evidence that were before me that such financial provision has in fact continued up to the presence albeit in various different forms or guises, and hence in the absence of any expressed desire or intention from his parents, in reality the likelihood that such financial assistance would suddenly cease or be withdrawn can safely be put down as virtually nil, and even if the parents were to do so tomorrow, I am unable to think of any valid reason why they would other than as suspected by the Wife to gang up against her in these proceedings which if true is certainly a conduct not acceptable by the court.
44. I agree with Ms Chong that there is no evidence adduced by the father to support his allegation that his family is unwilling to continue giving him money, save for his brief mere say-so in his affirmation: [63] & [65] of his affirmation dated 23 April 2019.
45. On the above analysis, I reject the mere say-so of the father as to the extent of his income or resources and I am prepared to make robust assumptions about his ability to pay. On the evidence before me, I am satisfied that what the father said about his family’s refusal to support him financially or that he has a salary of $20,000 per month only is just a hollow-excuse and unsupported by the evidence before me and that he continues to enjoy the finances that he used to have during the relationship.
What is the Reasonable Amount of MPS?
46. I accept that the mother has no capacity to take on any employment in the meantime given that she has to care for the children, who are both still very young.
47. As referred to in [15] above the father has given an undertaking to be responsible for the children’s medical and dental expenses which, according to the previous records, were on average about $14,542 (around it up to $14,600) per month and has been accepted by the father. I shall return to the medical and dental expenses when I deal with the back-dating of the MPS below. The breakdown of the mother and the children’s expenses are as follows,
Monthly Expenses
General
Item |
Amount (HK$) |
Utilities (electricity, gas, rates, telephone & water) |
2,000 |
Food |
8,000 |
Household expenses |
500 |
Total monthly household expenses |
HK$ 10,500 |
The Mother’s Personal Expenses
Item |
Amount (HK$) |
Meals out of home |
300 |
Transport |
1,000 |
Clothing / Shoes |
300 |
Personal grooming (including haircut and cosmetics) |
300 |
Entertainment / presents |
100 |
Holiday |
1,667 |
Insurance premia |
2,217 |
Total monthly personal expenses |
HK$ 5,884 |
Children
Item |
Amount (HK$) |
School fees |
4,222 |
Extra tuition fees |
1,214 |
School books and stationery |
543 |
Transport to school (including school bus) |
224 |
Medical / Dental |
To be borne by the father |
Extra Curricular Activities |
1,320 |
Entertainment / presents |
600 |
Holidays |
3,333 |
Clothing / Shoes |
500 |
Insurance premia for N |
27,040 |
Lunches and pocket money |
100 |
Other Transport |
412 |
Uniform |
100 |
Others (specify)(including milk and diapers) |
5,000 |
Total monthly expenses for children |
HK$44,608 |
Total Monthly Expenses |
HK$ 60,992 |
48. The father agreed to the quantum of a few items and said the mother and the children need a total sum of $14,574 only.
49. In assessing what is the reasonable sum of maintenance at this interim stage, it is not appropriate for the court to conduct a detailed investigation into the finances of the parties, the analysis on the reasonableness of the amount of maintenance at this stage can be conducted on a ‘board-brush’ basis.
50. I agree with Ms Chong that the figures proposed by the father are largely arbitrary and unreasonably stingy. He was just trying to bring the total amount within $15,000, the sum that he originally offered. In my view, I must have regard to the marital standard of living of the parties. It seems to me quite clear that the mother and the children led a comfortable lifestyle before the breakdown of the marriage. As said, the standard of living as depicted by the mother is not largely disputed. They resided in the former matrimonial home in Hong Kong and a matrimonial home in Shenzhen both of which are said to be spacious and comfortable. In contrast, the mother and the children are now being cramped in a public housing unit of 300 ft2 large. The mother has not claimed any interim maintenance for the setting up of an alternative accommodation which, in my view, is a very reasonable and sensible. Furthermore, the mother used to have cash of $40,000 (ie the $20,000 salary of each of the father and the mother) plus family expenses being footed by the father’s family business.
51. With the father’s agreement to be responsible for the children’s medical and dental expenses, the only other significant item that merits consideration is the children’s insurance premium of $27,040 per month. If $27,040 is excluded, the overall figure would become $33,952, which, in my assessment, is reasonable in the circumstance.
Insurance Payment of $27,000 per month
52. Originally, two insurance policies were involved, one for H and another for N. It is not in dispute that the polices were given as gifts by the grandfather during the parties’ marriage; it was not the mother’s decision to purchase them for the children. During the time when the parties’ relationship was good, the monthly premiums, which was about $18,997 per month for H’s policy and $27,039 per month for N’s policy, were paid out from the family business. The father admitted that the grandfather has refused to pay the insurance premiums as from 2017 and this remains to be the situation. I am told by Ms Chong why the grandfather has not been keeping up with the payments is that the grandfather demands the beneficiary under the policies to be changed from the mother to his name. Mr Poon agreed that this is the case. In his written submission, he said, “… (the mother) needs not worry about the expenses for this item if she is willing to change the name of beneficiary from herself to the (grandfather)”. This unequivocally shows the issue is not one of affordability. I regard the grandfather’s demand or even extortion as utterly unreasonable. At this stage it is not for the court to determine whether the policy holder should remain as it is.
53. H’s insurance policy has now been fully paid up. The monthly premium of $27,040 now being claimed by the mother relates to N’s insurance policy. There is no reason why the father should not have continued to be responsible for this sum.
54. On the above analysis, I accept the mother’s figures. The children’s share of general expenses should be apportioned on 2/3 basis, and so it should be $7,000 ($10,500 ÷ 3 X 2). Adding this $7,000 to $44,608 gives a total of $51,608. I would round it up to $51,700 per month.
55. As for the mother, her sum should be $9,384 (her share of general expenses of $3,500 + personal expenses $5,884). I would round it up to $9,400 per month.
Back-dating
56. The mother asks that the MPS be back-dated to the date of petition, deducting any interim MPS already paid. The father agrees that the MPS be back-dated, but only up to the date of the mother’s application.
57. In my view, the determination of this issue must be guided by fairness and fairness should be judged in the context of the particular facts of each case. After all, each case could be very fact-sensitive. As regards the present case, I am drawn to the following extraordinary features.
58. First, the insurance policies of the children were taken out by the grandfather. It is not in dispute that they were gifts for the children.
59. Secondly, the father and his family had refused to pay the children’s insurance premiums since the parties’ separation, as a result of which the mother was forced to pay around $1,100,000 in 2017 and 2018 in order to safeguard the children’s interest. The mother said she was only able to do so by exhausting her savings and borrowing from her mother. I have no doubt that the father has to refund the monies so expended.
60. Thirdly, I agree with Ms Chong that the father’s refusal to pay any living expenses including the insurance premiums was a tactic deployed by him to bring pressure upon the mother in order to force her to come to his terms in the divorce proceedings. It must be emphasized that this is a deplorable tactic and the father must not be allowed to do so.
61. On the above analysis, I am persuaded that justice of this case requires the MPS to be back-dated to the date earlier than the date of the present application. The father took out the petition for divorce on 18 January 2018. I will therefore make an order that the MPS be back-dated to the 1st day of the following month, ie 1 February 2018.
Orders
62. For the above reasons, I make the following orders:
1. The father do pay the mother a monthly sum of $9,400 being her maintenance pending suit, the 1st payment to be made on 1 February 2020 and thereafter payable on the 1st day of each and every month until further order of the court.
2. The father do pay the mother a monthly sum of $51,700 being the interim maintenance for the 2 children of the family ($25,850 each), the 1st payment to be made on 1 February 2020 and thereafter payable on the 1st day of each and every month until further order of the court.
3. The father do pay the mother
(i) her maintenance pending suit in the sum of $9,400 each month; and
(ii) the children’s interim maintenance in the sum of $51,700 each month
for the period from 1 February 2018 to 1 January 2020 in a lump sum. Credit be given to any sums that the father has paid to the mother as from the CDR hearing, ie 25 January 2019 onwards; the difference (if any) shall be paid in a lump sum within 14 days from today.
4. All the above payments shall be paid into the mother’s designated bank account (to be provided in the draft court order).
Costs
63. I see no reason why the costs should not follow the event. The mother has to come to court before she could get the above orders and therefore, she should have the costs of this application. I make an order nisi that the costs of this application (including all costs reserved) be borne by the father, with counsel certificate; such costs to be taxed on party and party basis if not agreed.
| Mr Jackson Poon and Mr Wong Lok Yu, instructed by Messrs KH Tong & Co, Solicitors, appeared for the petitioner |
| Ms Fiona Chong, instructed by Chiu, Szeto & Cheng, Solicitors, appeared for the respondent. |