TKM also known as WTKM v. WHG

FCMC 5723 / 2021

[2023] HKFC 189

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 5723 OF 2021

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DECISION
(Discovery)

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Introduction

1.  This is an application taken out by the petitioner (“the wife”) by way of a summons filed on 3 March 2023 for an order for specific discovery against the 1^st respondent (“the husband”).   

2.  On 10 February 2023, I have handed down my decision on joinder of parties, I now quote the background of this petition as per paragraph 3 – 7 of therein.

“Background

3. The husband and wife were married in 2017 with one son now aged two. On 11 June 2021, the wife petitioned for a divorce on ground of unreasonable behaviour. The marriage is a relatively short one. Decree nisi was granted on 5 July 2022. Joint custody was granted to parties with care and control to the wife. As far as ancillary relief issues are concerned, the parties have not yet reach FDR stage.

4. Prior to the petition, the family had lived in a flat, sized around 2,000 square feet, wholly owned by the husband’s parents. In or about 2020, when the wife was pregnant, the husband’s parents suggested the family to live in another flat also wholly owned by them in the same tower. This was meant to be their new matrimonial home. Unfortunately, as the relationship between the husband and wife deteriorated, the husband moved out to a rented apartment in the vicinity leaving the wife and the child staying in the new matrimonial home. However, in June 2021, the wife moved out with the child to a rented apartment.

5. During marriage, the wife had worked as a sales director in the husband’s company earning HK$28,000 per month. She ceased to work after moving out with the child.

6. Without going into details, the wife gave a brief account of the well-off lifestyle of the husband whom has been well supported financially by his parents, including but not limiting to, providing the husband with funds to start a restaurant, supporting him financially to start his own business, and transfering handsome amount of funds to his account in millions dollars as gift.

7. To the contrary, the husband claimed to have earned HK18,000 per month as a merchant only and with a negative net value of asset and liabilities of - HK$4.054 million.”

The wife’s application & updated development

The outstanding documents

3.  The documents requested by the wife are set out in the schedule of the summons, those involved discovery of various items from the husband and his family business companies. The husband has provided most of the items therein save as except the following:

i.  Item A1 - various personal bank account statements from 1 June 2018 to June/July 2019;

ii.  Item 4 - audited accounts and management statements of Hong Kong WXXXXX Limited (“HKWL”) for years ended 31 March 2021 and 31 March 2022; and

iii.  Item 5 – bank account statements of three other companies from January 2019 to date, namely, AXXXX RXXXXX Limited (Hong Kong) (“ARLHK”); AXXXX RXXXXX Limited (Macau) (“ARLM”) and GXXXXXX Company Limited (“GCL”) (collective referred to “the Family Business Companies”).

4.  The husband has already acceded to the wife’s requests by providing financial disclosure from 2019 onwards (which is 2-year pre-Petition). I am given to understand the husband has answered 4 questionnaires, explained 121 transactions down to every $10,000 spent. The husband’s opposition is premised on the disproportionality, he said the wife’s discovery application is a fishing exercise, she should not be entitled to a “carpet search” on his finances. The outstanding items needed not be disclosed.

The legal principles

5.  The applicable law on discovery is stated in Order 24, rule 7 of the Rules of High Court, Cap 4A; Hon Ng J has succinctly set out the principles  in Jade’s Realm Ltd v. Director of Land (unrep., HCA No. 1509/2012, 10 June 2014) at para 21, that

“21. I shall first remind myself of the principles which are germane to the present application.

(1) There is no jurisdiction to make an order for specific discovery under RHC O 24 r 7 unless there is sufficient evidence or prima facie case that: (a) the documents or classes of documents exist which the other party has not disclosed; (b) the documents relate to a matter in issue in the action; and (c) the documents are in the possession, custody or power of the other party.

(2) Once it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order discovery.

(3) The Court will not make an order unless the discovery sought is necessary either for disposing fairly of the cause or matter or for saving costs.

(4) The order must identify with precision the documents or categories of documents which are required to be disclosed, for otherwise the person giving discovery may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure.

(5) Where discovery is sought in relation to a class of documents, it is important that the class should not be defined or described too widely, and should not be defined so as to include documents which are not relevant.

(6) Despite the Peruvian Guano test for relevance, “fishing” is not allowed, and discovery should not be oppressive.

(7) Statements in a party’s affidavit of documents are conclusive e.g. on the question whether he has or has had any documents other than those disclosed, as to their relevancy or as to the grounds stated in support of a claim for privilege from production.

(8) The respondent may answer an application for specific discovery by an affidavit stating that he does not have the documents, and this will be conclusive at the interlocutory stage.

See: Hong Kong Civil Procedure 2014 Vol. 1 para. 24/7/1; Berkeley Administration Inc v McClelland [1990] FSR 381 at 382-3; Lee Nui Foon v Ocean Park Corp (No 1) [1995] 2 HKC 390 at 391-3; Paul’s Model Art GMBH v UT Ltd [2006] 1 HKC 238 at paragraphs 24 & 32; Tai Fook Futures Ltd v Cheung Moon Hoi Jeff [2006] 4 HKC 81 at paragraphs 33 to 35.”

6.  It is helpful to revisit Rayden and Jackson on Relationship Breakdown, Finances and Children (July 2016) at para [13.104],

“In financial remedy proceedings, disclosure and discovery begins with service of the Form E and the documents which are required to be attached to the Form E, and any other documents necessary to explain or clarify any of the information contained in the Form E. Thereafter, disclosure and discovery is by means of a questionnaire served in advance of the First Appointment and considered by the court at that appointment, and, if the court gives permission, by further questionnaire at a later stage of the proceedings. Questionnaires can, like interrogatories, request information as well as seek production of documents. As part of its case management role, the court should regulate the extent of the discovery of documents so that the exercise is proportionate to the issues in question, and to ensure that the discovery process does not become a fishing expedition approved by the court.”

7.  Broadly, the above covers the general principles in a matrimonial context.

Issues to be determined

8.  In light of the outstanding items referred above, the issues to be determined are as follows:

i.  Item A1 - Whether the period for discovery of the husband’s bank statements shall start as early as June 2018 in this short marriage?

ii.  Item 4 - whether the husband shall disclose audited financial accounts and management accounts of Hong Kong WXXXXX Limited (“HKWL”)

iii.  Item 5 - whether the husband shall disclose bank account statements of the Family Business Companies?

Issue (A1) - husband’s bank statements

9.  The parties are married in 2017, the wife petitioned for divorce in 2021. Time line is of significance because their marriage had only lasted for 4 years. The wife insists disclosure of the husband’s personal bank statements should begin from June 2018 which is one-year post marriage; the husband said he had already agreed to disclose his bank statements for a period exceeded 12-month period, which starts from June 2019.

10.  It appears to the be case that the husband has led a lavish life and has been continuously supported by his parents financially. The wife has knowledge, in or about 2018 – 2019, the husband’s parents had transferred 1 million Euro to him as a gift. On this, the husband has denied in his 10^th affirmation that he did not receive this sum as gift from his parents.

11.  The present argument goes to whether the source of income of the husband had come from (wholly or partly) from his parents, this is crucial to the wife’s ancillary relief claim because the wife entire case rests with the husband’s financial relation with his parents. Notwithstanding receipt of  handsome amount of money, the husband claims to be indebted in sum of HK$4 million.

12.  On the facts, I accept the wife that a prima facie of her ancillary claim on third party assistance.

13.  The next step is for me to weigh whether those bank account statements are relevant and necessary in containing information directly or indirectly enable the wife to advance her own case and damage the other’s case.

14.  In my view, yes. The test of relevance is satisfied because by looking at the pattern of money deposited and withdrawn from the bank accounts and/or expenditures during marriage, the husband’s real income would surface. I am not with the husband that the wife’s application here is fishing by seeking an order to investigate the “extent and likelihood of on-going third-party financial resources for the purpose of her ancillary claim”.

15.  On this point, whilst disclosure remains a discretion, I accept the wife’s submission that such disclosure warrants disposing the issue of the matter fairly. I have no doubt the bank statements from June 2018 to June 2019 existed and they are within the possession, custody and power of the husband. The disclosure of the husband’s the bank statements from June 2018, at a time during marriage, is justified.

Item (4) – HKWL

16.  The husband is both a director and a shareholder of HKWL whereas the wife has been shareholder and director of the company until October 2022. On this item, the husband has only produced audited financial accounts for the year ended March 2020.

17.  The refusal of disclosing audited accounts for financial year 2020 – 2021 and 2021 – 2022 came from the board of directors. The husband explained, the wife is now a potential competitor in the industry, the board of directors came to the view that the audited accounts should not be disclosed to the wife. The husband suggested the wife should have sought third party discovery from HKWL.

18.  It is clear to me, when the wife has once been a director of HKWL, the value of the company is relevant and necessary to her in the ancillary relief application. Audited accounts are vital for a party to assess the value of the company. The husband, being a shareholder and director must have the possession, custody and power of such accounts. I am satisfied such audited accounts existed and the ought to be disclosed. When the husband has possession, custody and power of such documents, it is unnecessary for the wife to apply for third party discovery.

19.  The wife is also seeking disclosure of management accounts from HKWL. The general principles of disclosing management accounts of a company are well settled. In B v. B [1979] 1 All ER 801, Dunn J held (at 810C-E) that audited accounts of companies of which a party is sufficient with full disclosure of all the husband’s personal financial records unless there is evidence from the accounts or other experts that the published accounts of the company cannot be relied on. This principle is broadly accepted in A v. B (FCMC 9824 of 2015, 25 January 2017, unrep) by HHJ Melloy; LKY v. YLP (FCMC 4352 &18284 /2013, unrep., 30 September 2016 by HHJ CK Chan and FCP v. CJLY (FCMC 6202/2012, unrep., 3 January 2014 by HHJ Bruno Chan).

20.  The wife’s request of management account must fail or at least it is premature to apply for those when all the audited accounts of HKWL have not be canvassed.

21.  Under this head, I order the husband to disclose audited accounts of HKWL for financial year 2020 – 2021 and 2021 – 2022 only.

Item (5) – bank statements of Family Business Companies

22.  The wife, in her submissions, stated the disclosure of documents as follows:

	Audited financial statements	Management accounts	The wife’s request for management accounts
ARLHK	Yes, up to December 2020; year ended 2021 and 2022 will be produced.	Not disclosed.	From Jan 2019 – to present
ARLM	No.	Yes, disclosed from 2019 – 2022 only[1].	From Jan 2019 – to present
GCL	Yes, up to 31 Dec 2020	Management accounts of 2021 - 2022	From 18 Sep 2020 to present

23.  While the court bears a duty to safeguard documents disclosed should be proportional to the issues the wife has raised. Unless the wife can demonstrate the audited accounts are deficient, the Court should not have ordered the husband to disclose management accounts of companies. (B v. B (supra))

24.  The wife disagreed the husband is suffering from negative liability of HK$4 million, she says the audited accounts produced are insufficient and cannot be relied on, the Court should go behind the companies’ audited financial accounts to ascertain the husband’s true financial status.

25.  The wife is able to name 3 instances that the transfer of funds between the husband and the Family Business Companies are unclear. First, on 26 March 2021, the husband deposited HK$18,500 from his personal account to the ARLHK account for wines purchased from client; secondly, on 9 July 2021, a cheque in the amount of HK$28,865 was deposited into the husband’s personal bank account where the husband explained the same will be transferred to ARLM; and thirdly, on 21 April 2023, HK$13,450 deposit was explained by the husband as receipt of price paid by a person for purchase of goods from ARLHK.

26.  There are other amounts deposited to the husband’s personal accounts being reimbursement from ARLHK[2] and payments for ARLM and/or GCL[3].

27.  Apart from that, the audited accounts of ARHK for the year ended 31 December 2020 recorded an amount due to director in sum of HK$1,694,221. This is unexplained.

28.  In this case, I pay attention to the husband’s resourceful paternal family, it is still uncertain that how the husband could incur HK$4 million liabilities. I see there are inklings that the husband’s financial resources intermeddled with the Family Business Companies. However, I am unable to rely only on few instances of transactions to allow discovery without expert evidence that those published accounts cannot be relied on (See A v. B (FCMC 9824 of 2015, 25 January 2017, unrep) per HHJ Melloy) or they are deficient (See LKY v YLP per HHJ CK Chan, FCMC 4352 & 18284 of 2013, 30 September 2016, unrep). Unless the wife can demonstrate with expert opinion, discovery of Family Business Companies shall be limited to audited  accounts only.

29.  Save and except those agreed to be disclosed by the husband, the wife’s application for the bank statements of the Family Business Companies be dismissed.

Costs

30.  The wife did not succeed in all items in this discovery application, when all documents disclosed are relevant to the ancillary proceedings, I make an order nisi that the costs of the wife’s summons (including costs of all agreed items) be in the cause of the ancillary relief, with certificate for counsel, to be taxed if not agreed. The order nisi be made absolute in absence of application to vary by summons within 14 days from date of judgment.

31.  The wife’s costs be taxed in accordance with the Legal Aid Regulations.

Orders

32.  With reasons of the foregoing, I make the following orders:

i.  The husband shall produce his personal bank statements as per those stated in paragraph 1 of the schedule of the summons from June 2018 within 28 days hereof.

ii.  The husband shall produce the audited accounts of HKWL for financial year 2020 – 2021 and year 2021 – 2022 to the wife within 28 days hereof.

iii.  Paragraph 4 of the schedule of the wife’s summons on discovery of management accounts of ARLHK and GCL be dismissed.

iv.  Paragraph 5 of the schedule of summons, on discovery of bank statements of ARLHK, ARLM and GCL be dismissed.

v.  For avoidance of doubt, upon the husband’s compliance of the wife’s discovery requests, I make no order as per paragraphs 2, 3, 6, 7 and 8 of the schedule of the wife’s summons.

vi.  The costs of the wife’s summons (including costs of all agreed items) be in the cause of the ancillary relief, with certificate for counsel, to be taxed if not agreed. The order nisi be made absolute in absence of application to vary by summons within 14 days from date of this judgment.

vii.  The wife’s own costs be taxed in accordance with the Legal Aid Regulations.

FCMC 5723 / 2021

[2023] HKFC 41

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 5723 OF 2021

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JUDGMENT
(Access)

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A.  INTRODUCTION

1.  This is the trial on access arrangements for the only child of the family (“Child”), a boy born in July 2020 and is now 2 ½ years old.

2.  The Petitioner (“Mother”) and the Respondent (“Father”) got married in June 2017. Father is a businessman with business interests in Hong Kong, Macau and Portugal. Marital discord arose in about 2020. On 11 June 2021, Mother presented the petition for divorce. She also moved out with the Child from the matrimonial home.

3.  By the Order dated 25 November 2021, joint custody of the Child was granted to the parties, care and control of the Child was granted to Mother.

4.  Father first has interim access of the Child by the Order dated 23 August 2021, which was followed by various subsequent variations, mainly to increase Father’s access (See Section B below).

5.  Both parties agreed that Father’s access is to be increased gradually and progressively. The dispute is on how and when. At the trial, Father also asked the Court to grant a shared care order. Mother disagreed.

6.  In addition to the evidence of the parties, the Court heard the evidence of the Clinical Psychologist (“Clinical Psychologist”) who filed a report dated 20 July 2022 (“CP Report”), and the evidence of the Social Work Officer (“SWO”) who filed an Updated Social Welfare Report dated 21 July 2022 (“Updated SIR”).

B.  HISTORY OF ACCESS ARRANGEMENTS

7.  By an Order made on 23 August 2021 by DDJ R Chow, Father has an interim access of the Child in the following terms:

(1)  Day access: from 25 August 2021, every Wednesday and Saturday from 12 noon to 4 pm to be held at Flat 33A.

(2)  Pick up and drop off arrangements: by Father at Mother’s home; and

(3)  Mother shall accompany the Child but she shall remain in a separate room at Flat 33A and shall not interrupt Father’s access with the Child.

8.  On 25 November 2021, DDJ R Chow granted the joint custody of the Child to the parties with care and control to Mother. Father’s interim access was varied as follows:

(1)  The time for day access on every Wednesday be changed to 10 am to 2 pm.

(2)  The time for day access on every Saturday be increased to 10 am to 4 pm.

(3)  Mother’s domestic helper was to accompany the Child during access on certain specified dates.

(4)  After 4 December 2021, neither Mother nor her domestic helper shall accompany the access, and the access shall not be confined to take place in Flat 33A.

(5)  Pick up and drop off arrangements: by Father and/or his domestic helper, and/or his parents at Mother’s home.

9.  On 8 February 2022, DDJ R Chow ordered a 1 night staying access every two weeks and varied the time for day access as follows:

(1)  Commencing from 14 February 2022, staying access of one night every two weeks from Saturday evening at 6 pm to Sunday morning at 10 am.

(2)  Day access on every Saturday from 10 am to 4 pm on the weeks when there was no staying access.

(3)  Day access on every Wednesday from 10 am to 4 pm.

(4)  Pick up and drop off arrangements: by Father and/or his domestic helper and/or his parents inside the lobby of Mother’s residence.

10.  The parties also agreed to a special access arrangement for the Child’s attendance of village ceremony held by the paternal extended family. This agreement was embodied in an Order dated 8 February 2022 as follows:

“AND UPON the parties acknowledging and agreeing that it is in the best interests of the child of the family, namely [name], a boy born on 3 July 2020 to take part in his paternal family tradition of attending a village ceremony in Yuen Long in the coming years after 2022 unless with good reasons to the contrary.”

11.  There was an order for an extension of 2 hours (i.e. from Saturday 6 pm to Sunday 12 noon) for the bi-weekly staying access made by DDJ J Chow on 12 May 2022. The day access and pick up arrangements set out in the Order dated 8 February 2022 continued to be in force.

12.  To match with the Child’s schedule when he starts pre-school, there was a variation of Father’s access pursuant to the Order of DDJ J Lee dated 28 July 2022 as follows:

(1)  When the Child starts pre-school,

(a)  Day access: every Monday and Wednesday from 10 am to 1 pm. If the Child is transferred to morning class, then Monday and Wednesday from after school to 4 pm.

(b)  Pick up and drop off arrangements: at the Child’s pre-school, where appropriate, otherwise, at the inside of Mother’s residence lobby.

(c)  If the Child attends afternoon session of pre-school, Mother is responsible for picking up the Child from school on the days on which Father has day access. If the Child is transferred to morning class, Father is responsible for picking up the Child from school on the days when he has day access.

(2)  If Father is not in Hong Kong, Father do have video access with the Child during his regular access times. Such video access shall take place at Mother’s residence and be facilitated by Father’s parents.

13.  In July 2022, the SWO recommended the following access arrangements[1]:

(1)  One to two nights per week of staying access on weekends or public holidays.

(2)  Two days of day access per week on weekdays.

(3)  Access on long school holidays be gradually increased from three days in Christmas 2022 to 50% basis from Summer 2023 onwards when the Child reached 3 years old.

(4)  The Child exchange points could be inside of Mother’s residence lobby or the Child’s school as appropriate.

(5)  Video access be arranged when Father was away from Hong Kong.

14.  On 30 September 2022, upon Father’s undertaking to complete a co-parenting course offered by Kids First of no less than 6 hours before the trial, this Court ordered further variation of Father’s interim access to allow weekly staying access, instead of bi-weekly, as from 22 October 2022. The time for the staying access is from Saturday 6 pm to Sunday 12 pm. The Saturday day access was cancelled. The other access arrangements in force at that time continued to be in force.

15.  Having heard the evidence of the two experts at trial, both parties revised their open proposals and narrowed down their differences.

16.  At the end of the trial, upon agreement of the parties on the access arrangements during Christmas holidays in 2022, an order was made on Father’s access in the following terms:

(1)  Day access on Monday (26 December 2022) and Wednesday (21 and 28 December 2022) from 10 am to 1 pm.

(2)  2 consecutive nights staying access from Friday 23 December 2022 at 6 pm to Sunday 25 December 2022 at 10 am.

(3)  1 night staying access from Saturday 31 December 2022 at 6 pm to Sunday 1 January 2023 at 8 pm.

C.  RELEVANT LEGAL PRINCIPLES

17.  It is not in dispute that the paramount consideration is the best interests of the Child. Section 48C of Matrimonial Causes Ordinance (“MCO”) expressly provided that section 3 of the Guardianship of Minors Ordinance (“GMO”) applies in relation to any order for custody care or supervision which may be made under MCO or Matrimonial Proceedings and Property Ordinance.

18.  Section 3 of GMO provides that:

“3(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property—

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court—

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to —

(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.”

(emphasis in bold added)

19.  The “welfare checklist”[2] was commonly used as a guideline or aide-mémoire in considering the custody care and control of minor child. This is not a compulsory nor exhaustive checklist. It is not a list to be mechanically went through to dictate the outcome. (H v N [2012] 5 HKLRD 498 [29] – [31], endorsed by the Court of Appeal in ZJ v XWN, supra [25]).

20.  The factors set out in the “welfare checklist[3]” are:

(1)  the ascertainable views of the child concerned (considered in the light of the child’s age and understanding);

(2)  the child’s physical, emotional and educational needs;

(3)  the nature of the relationship of the child with each of the child’s parents and with other persons;

(4)  the likely effect on the child of any change in the child’s circumstances;

(5)  the child’s age, maturity, sex, social and cultural background and any characteristics of the child that the court considers relevant;

(6)  any harm that the child has suffered or is at risk of suffering;

(7)  any family violence involving the child or a member of the child’s family;

(8)  how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;

(9)  the practical difficulty and expenses of the child having contact with a parent, and whether that difficulty or expenses will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(10)  the range of powers available to the court under [this Ordinance] in the proceedings in question;

(11)  any other fact or circumstances that the court considers relevant.

21.  Access to a parent is the basic right of a child rather than a basic right of the parent. The Child should be given the opportunity to live and share his time with both parents in a manner that best suits the developmental and psychological needs of the Child: H v N, supra, [43] – [44].

D.  DECISION

D1.  The Child’s relationship with the parents

22.  The Child is currently 2 ½ years old. The SWO described him as “a cheerful and smart boy with satisfactory physical development”[4]. He is obviously too young to express any view in this matter.

23.  Mother is the primary carer. The SWO observed that a close emotional bonding and attachment had been developed between Mother and the Child.[5] The Clinical Psychologist observed that the Child enjoyed the companion of Mother. Mother was responsive to the Child and was able to provide guidance and comfort when needed.[6]

24.  The SWO described Father as “an affectionate father who maintained to have regular access including staying access with [the Child]”. The father-son relationship was observed to be “satisfactory with secured bonding between them. Their interaction was spontaneous and natural”.[7] The Clinical Psychologist was of the view that “[t]hough [the Child] seemed to be more attached to the paternal, it was impressed that [the Child] related well with [Father] who was generally attentive and responsive to the needs of [the Child]. With more time spending with [the Child] and under the continuous support of the paternal grandmother, the father-son bonding could be further strengthened.”[8]

D2.  Both parents’ involvement in the care of the Child

25.  The parties accepted that both parents shall be involved in the Child’s development and growth. This is in line with the recommendations in the Updated SIR and the CP Report.

26.  The SWO concluded in paragraph 28 of the Updated SIR that:

“28. Roles of both parents were complimentary and equally important to [the Child’s] upbringing. For the best interest of [the Child], a continuous and regular access with the non-residing parent would help to maintain a good parent-child relationship and bonding which conducive to the normal growth and development of the child.”

(emphasis in bold added)

27.  The Clinical Psychologist concluded in paragraph 26 of the CP Report that:

“26. Psychologically, it is essential for young children to have enough time and frequent contacts with both parents in order to develop bonding with them. When [the Child] was growing up and with his easy temperament, it is believed that he would be more able to adjust to two homes and get used to a temporary separation from his primary caregiver, i.e. [Mother]. From the observation of parents’ interaction with the child, [the Child] seemed to have satisfactory relationship with both parents and they were loving to [the Child]. [The Child] related well with [Father], together with the support of paternal grandmother who had good bonding with the child, frequent physical contacts between [Father] and [the Child] is thus recommended. However, given the young age of [the Child], he is still recommended to mainly stay with [Mother], his primary caregiver for the time being. Details of the access plan are suggested to be defined as clear as possible.”

(emphasis in bold added)

D3.  Consistent and predictable routine

28.  The Clinical Psychologist and the SWO emphasized the importance of maintaining a consistent and predictable routine for the Child. It was stated in the CP Report that:

“24. For [the Child], as a 2-year-old child, he is still sensitive to changes between homes. Consistent and predictable daily routines and nighttime rituals between two homes will provide stability and a sense of security for [the Child] to adjust. It seemed the mood and behavioural change of the child after access as reported by the mother was related to disruption of the routine of the child during access. Parents are therefore advised to align the caretaking routines and to specify and communicate clearly through text, email, or by exchanging daily journals over transitions between homes.”

(emphasis in bold added)

29.  On the assessment of the suitability to have an equal sharing of the Child’s care and a step up of Father’s access, the Clinical Psychologist stressed that one has to consider the following 3 factors:

(1)  The child’s temperament;

(2)  The parents’ communication;

(3)  The child’s adjustment.

30.  Both parties accepted that there shall be a consistent and predictable routine for the Child. It is conducive to the Child’s adjustment if the same pattern of daily routine is adopted during access.

D4.  Communication between the parties

31.  There is however a need for better and more effective communication between the parties. Both parties do not trust each other. Communication between the parties on matters relating to the Child was ineffective. This caused disruption to the Child’s routine and created stress for the Child.

32.  The Clinical Psychologist strongly advised the parties to maintain effective communication for the developmental and psychological needs of the Child:

“21. [Mother] stated 4 concerns regarding to the increase in access time, including (1) the childcare quality of [Father], (2) his involvement in access, (3) his intention of increasing access and (4) the perceived anxiety and mood change of [the Child] caused by the separation from [Mother]. Though [Mother] recognized the importance for [the Child] to maintain a relationship with the father, she seemed to be ambivalent in facilitating the father-son relationship.

22. It appeared to me that [Father] had a low trust level towards [Mother] in view of the unresolved grievances and continuous conflicts among them.

23. Communication seemed to become very challenging for [Mother] and [Father]. Parents are strongly advised to maintain effective communication for the developmental and psychological needs of the child. Both need to be aware of and put aside their own agenda, i.e. it would be helpful for [Mother] to lower her expectation on [Father], and [Father] to lower his guard and handle his grievances towards [Mother], in order to fully attend to [the Child’s] needs. Seeking help from mediator, parenting coordinator or counselor to help resolve their differences and to facilitate their decision making could be considered.”

(emphasis in bold added)

33.  The same sentiment was expressed by SWO in the Updated SIR:

“28. … With the interim access order made on 8 February 2022 and that varied on 12 May 2022, the disputes of the parents on access were greatly narrowed down. With respect to the previous struggle in child exchange of access, the parents were encouraged to let go their unresolved marital conflict and establish effective direct communication with each other so as to facilitate them in working out appropriate arrangements for [the Child] continuously in the future for co-parenting purpose and the best interest of the child.”

“30. … The investigating officer appeals to the parents’ further peaceful cooperation that allows a flexible access arrangement in order to match the changing needs of [the Child] in different developmental stages.”

(emphasis in bold added)

34.  By now, both parties have attended co-parenting course. In their testimony at the trial, they have expressed their views and feeling on topics relating to their communication problem, for example, Father’s tone and attitude towards Mother, and the use of Chinese by Mother in text messages after Father complained that Mother’s English is not good. It is hoped that the parties would have a better understanding of the other side’s concerns and feeling in these matters, and would be able to establish a more effective mode of communication on matters relating to the Child.

35.  The Court was informed at the beginning of the trial that a parental coordinator was appointed. It is expected that the parental coordinator will assist the parties in their communication with respect to the welfare of the Child. Nonetheless, the parties’ efforts and ability to establish an effective communication remains vital for the growth of the Child, and is one of the factors to consider in determining the Child’s care and access.

D5.  Staying access

36.  In terms of staying access, the Clinical Psychologist’s view is that:

“27. Regarding the staying access, given the developmental stage and easy temperament of [the Child], he demonstrates the ability to have more staying access with the father. Noted that the staying access is believed to be beneficial only when the parents are able to communicate effectively and work together for the easier adjustment of [the Child] between homes, e.g. maintaining consistent and predictable routines within and between households; responding to the child’s emotional needs by offering comfort and soothing, particularly, an environment that is free of parental tension. When [the Child] shows better adjustment between homes and has stronger bonding with the father, a gradual step up of staying access is recommended.”

(emphasis in bold added)

37.  Given the young age of the Child, a 3 consecutive days staying access is considered by the Clinical Psychologist to be aggressive. She opined that when a child is young, frequent day access is generally better than staying access. Normally, an elder child can tolerate better with separation with primary carer. The SWO considered that it is normally not suitable for a child under 3 years old to have more than 3 consecutive nights staying access.

38.  I find Father’s proposal of having 3 consecutive nights staying access in Christmas 2022, 4 consecutive nights staying access in Chinese New Year in 2023, 5 consecutive nights staying access over Easter holiday in 2023 and 6 to 7 consecutive nights staying access during 2023 summer holiday is aggressive and inappropriate.

39.  Time is needed for the Child to adjust a new environment and a new pattern of routine with the non-primary carer. Any change has to be carefully considered with reference to the Child’s temperament and adjustment as well as the effectiveness of the parents’ communication and flexibility in accommodating the needs of the Child. Father’s proposal does not allow sufficient time for the Child’s adjustment, nor for a review of the Child’s reaction to the change. It is also contrary to the experts’ opinion on the suitable duration of staying access for a young child.

D6.  Support from paternal grandmother

40.  The Child’s attachment with the paternal grandmother and her support helps in building up the father-son relationship and may help the Child’s adjustment at Father’s home.

41.  The significance of Father’s role in taking care of the Child and his interaction with the Child cannot be overlooked. The Clinical Psychologist reminded the importance of “skin to skin” interaction with the Child who is at such a young age. I agree.

D7.  Father’s travel

42.  Father needs to travel overseas for business. The Clinical Psychologist warned that frequent travels away from Hong Kong is not conducive to the building up of father-son relationship. When someone is “out of sight”, he will be “out of mind”. The Child needs “skin to skin” interaction.

43.  Father proposed that the access arrangements be maintained while he travels outside Hong Kong in order to keep a consistent routine for the Child. The Child will be taken care of by paternal grandmother who will facilitate video access with Father.

44.  Mother agreed that the Child may continue to visit paternal grandmother for lunch or dinner or even during Father’s regular access time. However, she considered that there shall not be staying access when Father is not in Hong Kong.

45.  The arrangement for video access would maintain a regular contact between Father and the Child when Father is not in Hong Kong. Given the young age of the Child, the duration of video access should not be long. According to the experts, around 5 minutes is appropriate, and each call should not be longer than 15 minutes. I agree.

46.  The roles of Father and the paternal grandmother are different. There is no evidence on the frequency and duration of travels that Father is likely to have in the coming years. Assuming Father’s overseas travel will be occasional, I am prepared to make an order to allow access at the home of Father’s parents during Father’s travel save that there shall be no staying access, and the Child shall be returned to Mother’s residence by 8 pm. Video access with Father during this period is to be facilitated by paternal grandmother at her residence. This arrangement will be reviewed 12 months later.

D8.  Child’s participation in paternal family traditions

47.  Father asked for access to allow the Child’s participation in paternal family traditions, including dinners and ceremonies on specified days. I do not see Mother has any objection in principle.

D9.  Shared care

48.  Co-parenting is the goal encouraged by the SWO. The Clinical Psychologist considered it ideal if the parties and the Child can achieve the same. The parties agreed to work towards building a co-parenting relationship as a goal.

49.  Counsel for Father, Mr Azan Marwah submitted that this is a case of parallel parenting and is apt for a shared care order. Mr Marwah referred to S, V v M, S [2020] HKFC 197 [17] where the following passages in PJM v GPN (FCMC 4999/2014, [2018] HKFC 65) on the topic of shared care order was cited:

“14. Given that the parties are agreed that they shall have joint custody I intend in this judgement to concentrate on the terms care and control and shared care. I touched upon this in SEB v ZX (Custody) [2007] HKFLR 165 and in SKP v Y, ITT (Legal Terminology to be Used in Relation to Children’s Arrangements) [2012] HKFLR 422. In the latter, I said as follows when discussing the concept of joint care and control and shared care:

Joint care and control

21. Consequently, joint care and control denotes a situation where the parties are sharing the day to day practicalities of raising a child. It will normally mean that the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. However, the time shared is likely to be more significant than in a standard custody/access type order and will probably mean that the child is spending at least 35% of his time based with each of this parents. One would expect that both parties are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parents. Consequently, one would normally expect an order for joint custody and joint care and control to be made by consent. In the language of the social scientists an order for joint custody and joint care and control would probably be reflective of a cooperative co-parenting scenario.

So how does this compare with the concept of shared care?

22. The concept of shared care as an alternative to joint care and control has developed over time. I referred to this recently in a case that may be going on appeal and is presently unreported namely TAC v VDC nee VDM FCMC 16497/2010. In that case I referred to H v H (unreported, 6 September 2002, CACV 42 of 2002, where the Court of Appeal first upheld an order for shared care. This judgment has been referred to by counsel for the father in this hearing. What is interesting is that in that case an order was made for sole custody and shared care. This approach was then followed by myself in SEB v ZX (Custody) [2007] HKFLR 165 referred to above and more recently in RWS v KCC, FCMC 9661 of 2010 unreported. In each of these cases and for a variety of different reasons it was felt appropriate for the ultimate decision making power to vest in only one parent. Thus orders were made for sole custody. However, the court was anxious to ensure that the child/ren involved should continue to spend significant amounts of time with both parents in a way that was more reminiscent of a joint care and control order. In order to recognise this and the fact that the non-custodial parent continues to have a great deal of practical control in the child’s day to day life, the phrase shared care was coined. Again in social science terms this is perhaps more reflective of a parallel parenting regime i.e. where there is a very high level of conflict between the parents which makes cooperative co-parenting virtually impossible, but where it is in the child/ren’s best interests to spend significant periods of time with both parents. It would be normal in a situation like that to set out very clearly how the child/ren’s time is to be split between both parents. There is no order for access per se. I made such an order in RWS v KCC, FCMC 9661 of 2010 commenting as I did that:

‘I have given a great deal of thought to the appropriate order to be made in this case. As I have said it is not possible for me to make a “parallel parenting” order as such. However, I would like to make an order that supports the concept of parallel parenting. Consequently, it seems to me that it would be more appropriate to make an order for shared care as opposed to a traditional order for care and control and access. This will make no difference at all to the practical arrangements that I intend to put in place. They would have been the same in either event. However, the concept of shared care seems to me to echo that of parallel parenting and I would urge the parties to adopt that approach … I will therefore make an order for shared care, following the format of the order in H v H i.e. that the care of the children shall be shared between the parents as follows:

[Detailed arrangements were then set out accordingly.]

A similar approach will be taken in this case.”

50.  I agree with the SWO and the Clinical Psychologist that the parties and the Child have not yet reached the stage suitable for a 50/50 care arrangements. I do not consider a shared care order shall be granted in this case.

51.  The growth of the Child at his age can be very rapid. His needs may vary in a short period of time. In the case where the parties’ cannot establish an effective communication, a longer term arrangement without flexibility is unlikely to match the Child’s developmental and psychological needs.

52.  The Clinical Psychologist considered that when the Child has good adjustment, there is good communication between the parties with minimum stress caused to the Child, and the Child developed relative equal attachment with Father and Mother, the parties can start discussing shared residence and/or 50/50 care arrangements. Usually, 50/50 care arrangement is more appropriate when a child starts primary school, or at the age of around 8 and 9.

53.  The Child is 2 ½ years old. Mother is his main attachment figure. The weekly 1 night staying access only started in late October 2022. There was a 2 consecutive nights staying access in Christmas 2022. It is yet to see how the Child get adjusted.

54.  I have not lost sight of the evidence of both parties on their conduct during marriage and after separation. Many of these evidence is contested. I do not intend to repeat them. I do not consider the finding of these disputed facts would make a difference on my decision. During cross examination, the SWO was asked whether she will maintain her recommendation if Mother has not been honest with her about the care of the Child, for example she was not a full time mother. The SWO said that she trusted Mother’s words. Even if Mother has not been honest with her in these matters, she maintained her recommendation because she placed more emphasis on the Child’s behaviour and emotion gathered from her observation.

55.  I further invite the parties to focus more on the welfare and care of the Child, and less in the legal label which would have no significant bearing in the welfare of the Child.

E.  ORDER

56.  I order that Father has the following access with the Child:

(1)  Term time day access:

(a)  if the Child is attending an afternoon class at school, every Monday and Wednesday from 10 am to 1 pm;

(b)  if the Child is transferred to a morning class at school, every Monday and Wednesday from after school to 4pm.

(2)  Term time staying access: Weekly staying access from Saturday 10 am to Sunday 10 am.

(3)  Long holiday access:

(a)  Ching Ming Festival and Easter (4 April to 16 April 2023:

(i)  2 consecutive nights staying access from 4 April 2023 at 10 am to 6 April 2023 at 10 am;

(ii)  2 consecutive nights staying access from 9 April 2023 at 10 am to 11 April 2023 at 8 pm

(iii)  1 night staying access from 14 April 2023 at 10 am to 15 April 2023 at 3 pm.

(b)  Summer holidays (16 July to 31 August 2023):

(i)  Subject to the access arrangement on the Child’s birthday in sub-paragraph (6) below, summer holidays to be shared on an equal basis with changeover to take place to enable staying access of not more than 3 consecutive nights in July, and staying access of not more than 4 consecutive nights in August.

(ii)  The handover time is at 10 am on the first day and 10 am on the last day unless the parties agree otherwise. The exact dates are to be agreed between the parties with the assistance of parental coordinator.

(c)  Christmas 2023/ New Year 2024 and Chinese New Year 2024: to be shared between the parties on an equal basis. Details to be agreed by the parties with the assistance of the parental coordinator.

(4)  Single day public holidays other than Ching Ming and Chung Yeung Festival (i.e. Labour Day, Buddha’s Birthday, Dragon Boat Festival, HKSAR Establishment Day, Day after Mid-Autumn Festival, National Day of the PRC for 2023/2024): these are to be shared between Father and Mother on an alternate basis, with exact arrangements to be agreed by the parties with the assistance of parental coordinator. Father’s access time is from 10 am to 8 pm.

(5)  Parent’s birthday:

(a)  If Father’s birthday falls on a school day, access from after school until 8pm.

(b)  If Father’s birthday falls on a non-school day and not one of Father’s access days, access from 10 am to 8 pm.

(c)  If Mother’s birthday falls on a date of Father’s access, Father’s access on that day is cancelled with no made up.

(6)  Child’s birthday: in 2023 and all odd years thereafter, Father has access of the Child on his birthday; in 2024 and all even years thereafter, the Child will spend his birthday with Mother.

(7)  Father’s day: Father has access from 10 am to 8 pm.[9]

(8)  Ching Ming festival and Chung Yeung festival: Father has access from 10 am to 8 pm.

(9)  Paternal family traditions (i.e. attendance of village ceremony in Yuen Long, and a village dinner on 初十五 in January / February and天后誕 in April): Father has time with the Child for participation in these events provided that not less 7 days advance notice of the details be given by Father to Mother.

(10)  Travel time access:

(a)  If Father is not in Hong Kong during access time but paternal grandmother is in Hong Kong, the Child spends the usual access time at the residence of Father’s parents until 8 pm of the day. Father has video access with the Child of not more than 15 minutes each at the residence of Father’s parents to be facilitated by paternal grandmother. For the avoidance of doubt, there is no staying access during the time when Father is not in Hong Kong.

(b)  If Father and paternal grandmother are not in Hong Kong, Father has video access facilitated by Mother not more than 4 times per day, and not more than 15 minutes for each video access.

(c)  For the avoidance of doubt, there is no made up access on the days when Father travels outside of Hong Kong.

(11)  Made up access: subject to the above, if Father’s access is cancelled, the parties shall agree on the reasonable dates and time for made up access with the assistance of parental coordinator.

(12)  Pick up and Drop off arrangement: same as paragraph 5 of the Order dated 30 September 2022.

57.  The access arrangement is to be reviewed after 12 months. There be a supervision order for 12 months. An updated social investigation report be lodged into the court on or before the expiry of the 11^th month of the supervision order.

58.  This is a matter concerning a child’s welfare. I make no order as to costs on a nisi basis. Variation application shall be made within the next 14 days, otherwise, the above order will become absolute at the expiration of 14 days. Mother’s own costs be taxed in accordance with Legal Aid Regulations.

FCMC 5723/2021

[2022] HKFC 83

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 5723 OF 2021

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_______________________________________

DECISION

( Maintenance Pending Suit/ Interim Maintenance )

_______________________________________

BACKGROUND

1.  This is an application by the Petitioner Wife for maintenance pending suit (“MPS”) and interim maintenance (“IM”) against the Respondent Husband (“H”).

2.  W and H were married in 2017 with one child (“the Child”) born in 2020.

3.  W petitioned for divorce on 11 June 2021 on ground of H’s unreasonable behaviour. W was granted interim care and control of the Child with defined access to H at the First Appointment hearing.

4.  By a summons filed on 17 August 2021, W applies for HK$100,805 per month being HK$53,832 as MPS for herself and HK$46,973 as IM for the Child.

5.  By the Order made on 23 August 2021, upon H’s undertaking to continue to pay for the Child’s playgroup fees each month, H was ordered to pay W a sum of HK$30,000 each month on an interim interim basis pending determination of W’s application for MPS and IM.

6.  It is the case of H that the claim by W is excessive and not supported by documentation. H suggested that the order for MPS and IM should maintain at the level of HK$30,000 under the Interim Interim Order in addition to H’s paying of the Child’s playgroup fees.

LAW

7.  Section 3 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) for maintenance pending suit provides that the court may make an order for such periodical payments for maintenance and for such term it thinks reasonable.

8.  It is trite law that such applications are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a full ancillary relief hearing when there is then the opportunity to achieve fairness by means of set off. If there is any overpayment or underpayment, it can be rectified at a final ancillary relief hearing.

9.  Section 5 of the MPPO applies to interim maintenance for the Child, the factors set out in section 7(2) are to be considered. Again, a broad-brush approach should be adopted. (LAML v TCCY, (unrep.; CACV 75/2004, 13 September 2004))

10.  The following principles were set out in the Court of Appeal decision in HJFG v KCY [2012] 1 HKLRD 95 with respect to maintenance pending suit/interim maintenance applications:

a.  The sole criteria to be applied in determining the application is “reasonable” which is synonymous with “fairness”.

b.  A very important factor in determining fairness is the marital standard of living.

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 situation, the Court should err in favour of the payee.

REASONABLE NEEDS OF W AND THE CHILD

Marital Standard of Living

11.  The reasonable needs of W and the Child should be considered taking into account of the living standard of the family during the marriage.

12.  H is now aged 41 and a merchant in wine and beverages trade. He has shareholding and directorships in no fewer than 7 companies. He has a basic income of HK$18,000 per month from the company (“AR”) of which he is the sole shareholder and director.

13.  W is now aged 35 and a housewife. She used to work as a sales director of AR with a salary of HK$28,500 per month. She tendered her resignation in June 2021 shortly after her filing of the divorce petition. She decided to look after the Child full-time as he was still little. She currently has only limited income from teaching short courses.

14.  It is the case of W that the family enjoyed a very comfortable standard of living during the marriage. H’s parents provided free accommodation, food, household expenses and utilities. Until December 2020, the family lived in a 1,800 sq ft duplex penthouse (“Flat A”) owned by H’s parents in Mid-Levels, Hong Kong. W and the Child later moved to another single storey flat (“Flat C”) owned by H’s mother in the same building in December 2020 after renovation. H, however, did not move into Flat C with W and the Child.

15.  H and W have a joint bank account where H would make regular deposit and W was allowed to freely make withdrawal.

16.  Until around September 2020, H and W received a monthly sum of HK$25,000 as the net rental income of Flat C deposited into the joint account of H and W from H’s mother.

17.  W had a supplementary credit card from H with a credit limit of HK$50,000 that has now been cancelled.

18.  Having considered the Form E and evidence respectively filed by parties, my overall impression is that the family enjoyed a very comfortable living standard during their marriage.

General Expenses

Rent

19.  W moved out of Flat C and moved to a 2-bedroom serviced apartment in Hung Hom with the Child in June 2021 shortly after filing of the Petition. W now claims HK$23,000 for rental of a flat in Kornhill or a child friendly neighbourhood.

20.  W explained in her affirmation that she moved out of Flat C because H had repeatedly reminded her that her stay at Flat C was at the generosity of H’s mother. She moved to the serviced apartment only as a temporary measure. Based upon her research, market rental for a 600-700 sq ft flat in Taikoo or Hung Hom would be around HK$24,000-26,000. The rental of H’s flat was higher in the sum of HK$26,500 in Mid-levels.

21.  H submitted that it was W’s decision to move out when she could have chosen to stay at Flat C. As the rent for W’s present accommodation was HK$16,700, that should reflect her current accommodation need.

22.  It is true that expenses on rental could have been saved if W decided not to move out of Flat C, but looking from another perspective, Flat C could be rented out to generate income. According to W’s research, the market rental of Flat C should be about HK$32,000. When Flat C was rented out in the market before December 2020, there was a rental of HK$25,000 paid to H and W by H’s mother, there is no evidence that similar arrangement cannot be made again by H’s mother.

23.  In regard to financial assistance given by a third party, 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).”

24.  Alternatively, H could move to Flat C saving him the rental of HK$26,500 per month.

25.  Considering Flat C as the accommodation for W and the Child during the marriage, I accept that W’s stay at the serviced apartment is only a temporary measure and it is not unreasonable for W to have an accommodation at a budget of HK$23,000. Should there be any overpayment, adjustment can be made at the trial of ancillary relief. I would accept the claimed amount as reasonable.

Utilities

26.  This claim of HK$3,000 includes electricity, gas, rates, telephone & water. W clarified that the expenses on utilities was about HK$2,000 per month at the serviced apartment that included only electricity, telephone and water. Since I have accepted that W and the Child should be entitled to move from the serviced apartment to a long-term accommodation, I consider the estimate of HK$3,000 to be reasonable.

Food

27.  W claims a total sum of HK$18,600 for food with breakfast for HK$4,000, lunch for HK$6,200, dinner for HK$7,600 and fruits for HK$800.

28.  H submitted that the figures are exaggerated and unsupported by receipts. H made reference to credit expenses of W for the first six months of 2021 in supermarkets, the expenses amounted to only HK$6,833.50 not counting possible cash or octopus payments.

29.  I agree with H that the amount claimed to be excessive, there is also no clear documentation for such level of expenditure on food from W. W explained that the Child has skin allergies to certain ingredients and she would buy healthy and organic food for the Child. Even so, I still think the claim for HK$18,600 is excessive, I accept the sum of HK$8,000 to be reasonable.

Household Expenses

30.  H’s comment on this item is that there is no breakdown and should be included in the rental for the serviced apartment. Given that I have accepted W’s claim on rent, W is entitled to claim this item and I consider the claim of HK$2,000 to be reasonable.

Car Expenses

31.  W claims HK$7,000 consisting of HK$3,500 for car park rental, HK$1,250 for car insurance, HK$500 for car wash, HK$1,250 for petrol fees and HK$500 for tunnel and parking fees.

32.  H said W should be seldomly driving this car and there was lack of documentary proof of expenses.

33.  While W does not have all the receipts to support the amount claimed, the breakdown for this item is quite normal. I consider the HK$6,000 to be a reasonable sum for this item.

Insurance Premia

34.  W has produced statements for 3 insurance policies that she identified in her Form E in support of this claim of HK$1,600. I would allow this item.

Domestic Helper

35.  W’s claim for this item is HK$6,000, however, salary of W’s domestic helper is HK$5,100 per month only. W said the additional HK$900 per month is for miscellaneous fees such as agency fees, air tickets and holiday/extra work bonus. These fees are either not recurring or not supported, I would allow HK$5,100 only for this item.

Others

36.  This item comprises of services of Netflix, Spotify, Now TV, domestic helper’s insurance and WiFi. H complains that no receipts have been provided. In my view, these services are common nowadays, however, I consider HK$600 to be reasonable as opposed to the claimed amount of HK$800.

Personal Expenses

Meals Out of Home

37.  The amount claimed here is HK$6,400 based on 2 days per week/ 8 days per month. H’s comment on this item is that it is unsupported by documents.

38.  According to H’s analysis based on W’s credit card statements in the past 6 months, it is concluded that the spending on this item should be about HK$3,600 per month only. H further suggested that the meals out should be work related, since W is not currently working now, the budget for this should be substantially lower. This item could also overlap with the item of Food under General Expenses.

39.  While I do not think I can make any conclusion on H’s comments at this stage based on the materials before me, I am of the view that the claimed amount is excessive, a more reasonable sum should be HK$4,000 per month.

Transport

40.  This claim of HK$2,500 is composed of taxi fare and MTR travel by W and the domestic helper.

41.  I do not think W has supplied sufficient proof to justify the amount claimed, I consider HK$1,500 to be reasonable.

Clothing/Shoes

42.  H said there was no proof by W in support of her claim of HK$3,000. I consider HK$2,500 to be reasonable for this item.

Personal Grooming

43.  W gave a breakdown of this item of HK$3,800 to include haircut, facial treatment, manicure and pedicure and eyelash treatment.

44.  While as H said there was no proof in support of this claim, I consider the amount of HK$3,800 to be reasonable.

Entertainment/Presents

45.  W’s claim for this item is HK$3,000. I agree with H that W has not shown why she should be entitled to this amount. I consider HK$1,000 to be reasonable.

Medical/Dental

46.  W said this item of HK$2,000 was for Chinese medicine and flu etc. W only produced Chinese medicine doctor proof of HK$1,500 per month for Chinese medicine for treatments following her giving birth of the Child. I am ready to allow only HK$1,500 for this item.

Insurance Premia

47.  H argued that insurance policy with saving element should not be allowed. I do not share the same view. I would allow the claimed amount of HK$1,632 here.

Others

48.  This item is for nutrition products. The claimed amount of HK$500 is not unreasonably high, I am prepared to accept this amount.

Child Expenses

School Fees

49.  Under the Order made on 23 August 2021, H made undertaking to continue to pay for the playgroup fees each month for the Child.

50.  H does not dispute the amount of HK$6,284 claimed by W. H expressed that there is no dispute that the cost of the Child’s ongoing playgroup will be met by H and this item is therefore not necessary.

51.  However, for avoidance of doubt I still consider it better that the item of HK$6,284 be covered in an order as H has not expressly offered to make a fresh undertaking.

Transport to Playgroup

52.  The calculation for this item is based on 8 days per month by taxi/private care. H suggested a lower sum by travelling by MTR.

53.  I accept it is reasonable for the Child’s travelling by taxi especially during the pandemic. I therefore allow HK$520 for this item.

Medical/Dental

54.  H argued that there were no recurring expenses on this item. W explained that the Child has allergy towards certain ingredients and had fever before. The Child has prescribed face cream from his pediatrician for HK$380 per month.

55.  Having considered W’s explanation, the sum of HK$2,000 per month is still considered to be too high. I would allow HK$800 per month.

Entertainment/Presents

56.  W claims HK$1,000 while H considers HK$500 to be enough. I accept HK$1,000 to be reasonable.

Clothing/Shoes

57.  H has not made comments on this item. However, based on the figure provided by W in her answer to H’s questionnaire, only HK$1,000 per month was incurred. I allow the sum of HK$1,000.

Insurance Premia

58.  H disputes the need of 2 insurance policies for the Child. However, as the claimed amount of HK$669 is not excessive, I will allow this amount.

Others

59.  This item consists of milk powder, diaper and snacks. W claims HK$4,000, H considers HK$2,000 to be more appropriate. My view is HK$3,000 per month should be reasonable.

Summary

60.  For ease of reference, the items I have allowed are summarised as follows:

General Expenses

Rent	HK$23,000
Utilities	HK$3,000
Food	HK$8,000
Household Expenses	HK$2,000
Car Expenses	HK$6,000
Insurance Premia	HK$1,600
Domestic Helper	HK$5,100
Others	HK$600
Total	HK$49,300

Personal Expenses

Meals out of home	HK$4,000
Transport	HK$1,500
Clothing/Shoes	HK$2,500
Personal Grooming	HK$3,800
Entertainment/Presents	HK$1,000
Medical/Dental	HK$1,500
Insurance Premia	HK$1,632
Others	HK$500
Total	HK$16,432

Children’s Expenses

Schools Fees	HK$6,284
Transport to Playgroup	HK$520
Medical/Dental	HK$800
Entertainment/ Presents	HK$1,000
Clothing/Shoes	HK$1,000
Insurance Premia	HK$669
Others	HK$3,000
Total	HK$13,273

61.  On a broad-brush approach, I apportion half of the General Expenses to W and half to the Child. For W, her share of the General Expenses allowed is HK$24,650 and the Child’s share is HK$24,650.

62.  MPS for W should therefore be HK$41,082 (ie. HK$24,650+HK$16,432) to be round up to HK$41,000.

63.  IM for the Child should be HK$37,923 (ie. HK$24,650+HK$13,273) to be round up to HK$38,000.

W’S ASSETS AND EARNING CAPACITY

64.  H submitted that W has asset of over HK$1 million in her bank account and over HK$1 million in her securities account and she has earning capacity and should be working. W should be responsible for her own expenses and contribute to the Child’s expenses.

65.  W decided not to work as she wanted to take care of the Child full-time in the meantime, considering the young age of the Child, I am unable to say that her decision was unreasonable. Although she used to work at AR, she had only 2 working days and flexible hours as AR was run by H. It is unlikely that W would be able to find another job with such flexibility to let her spend enough time with the Child.

66.  It is further H’s case that W has not made full disclosure on her new solely owned business set up only 3 months before she resigned from AR and the company owned by her friends of which she was once a director. H submitted that W was not truthful about her having no plan to work as alleged.

67.  W explained that her new business had no business activity and that her friends made her a director for her advice in the liquor trade and to set up the company with no remuneration.

68.  What H has is just suspicion, there is simply no solid evidence to support H’s allegations. I am unable to reach any conclusion or draw any adverse inference against W at this stage.

H’S ABILITY TO PAY

69.  H asserted in his affirmation that the 2 households need to be supported by his salary of HK$18,000 when W refused to work.

70.  H purported to have loans over HK$1 million from his father for his 20% shareholding in one of the companies.

71.  While H purported that the current value of his shareholding in various companies is in negative value of over HK$7.5 million, all these companies are limited companies. It is not said that any of these companies are going to be wound up anytime soon. Before further assessment, it is yet to be seen how they are personal liabilities of H.

72.  It is W’s case that H had not made full disclosure of his spending and substantial amount of deposits from family, premium wine collection, family trust fund and properties held by companies of which H has shareholding. Nonetheless, W conceded that this is not the time to ask this Court to resolve this matter at this stage.

73.  H admittedly has over HK$1 million in his bank accounts and over HK$3.36 million in his securities accounts as disclosed in his Form E, he should have enough liquid assets to pay MPS and IM.

74.  H’s total monthly expenses as reported in his Form E were the sum of HK$112,933 per month (including an interim maintenance of HK$25,000 and child expenses of HK$12,800). His lifestyle and standard of living are clearly not compatible with someone who ought to be in financial difficulties.

75.  Based on the materials before me, I am satisfied that H has the ability to pay MPS and IM.

BACKDATING

76.  W asks that MPS and IM be backdated to the date of the Petition.

77.  The court has a very wide power, including a power to backdate the order for an award. The overall objective is to achieve a fair outcome.

78.  The application date on 17 August 2021 for MPS and IM is close to the date of the Petition on 11 June 2021. There is little prejudice that W should have suffered, my view is that the fair outcome is that the present order should take effect only from the date of W’s Summons on 17 August 2021.

ORDER

79.  In the present application, neither party is considered totally successful as their respective proposed figures were not accepted by me. By reason of the foregoing, I make the following orders:

(a)  The Respondent shall pay maintenance pending suit to the Petitioner in the sum of HK$41,000 per month and Interim Maintenance to the Petitioner for the Child of the Family in the sum of HK$38,000 per month to be backdated to the 1^st day of succeeding calendar month following 17 August 2021 and to be paid on the 1^st day of each calendar month thereafter until further order;

(b)  Credit be given to any sums that the Respondent has paid to the Petitioner from 17 August 2021 onwards; the difference (if any) shall be paid within 14 days from the day of this Order;

(c)  There shall be an order nisi to be made absolute in 14 days that costs of the Petitioner’s Summons filed on 17 August 2021 be in the cause of the claim for Ancillary Relief.

Ms. Bonnie Y.K. Cheng instructed by Chaine, Chow & Barbara Hung, Solicitors for the Petitioner

Mr. Peter Barnes instructed by Withers, Solicitors for the Respondent