Lhc v. Khs
Read the full judgment text of FCMC 3343/2015 on BabelCite. This Family Court judgment was delivered on 4 May 2016 before Deputy District Judge I. Wong.
Matrimonial Causes – Interim Maintenance – Adult Child – Section 10 MPPO – Mental Health – Earning Capacity – Discretion – Whether adult child satisfies section 10(3) MPPO – Reasonable needs of child – Ability to pay – Discretion to grant interim maintenance – Application dismissed; interim order set aside; R's undertakings upheld; Costs to P
Legal issues: Whether YY satisfies section 10(3) MPPO · Reasonable needs of YY · Ability of R to pay · Whether Court should give an Order of Interim Maintenance
Outcome: Application dismissed; interim maintenance order set aside; R's undertakings upheld.
Cited by 1 case · Cites 3 cases
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FCMC 3343/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 3343 OF 2015 ----------------------------
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____________________ JUDGMENT ____________________ The Application 1.This is the petitioner wife’s application for interim maintenance for the benefit of the parties’ daughter. 2.In this judgment, I shall refer the petitioner wife as “P”, the respondent husband “R” and the daughter “YY”. 3.By her summons dated 19 February 2016 P is seeking payments of $22,050 per month from R, of which $10,050 are for living expense and the balance of $7,000 as medical expenses for YY. During the call-over hearing dated 1 March 2016 the court made an order that R has to pay $5,000 per month as YY’s interim interim maintenance, commencing from 8 March 2016 and thereafter on the 8th day of each and every month until further order. Background 4.P is now 55 years old and R is aged 64. P was a Taiwan resident and R is a local Chinese. The parties married in Taiwan in 1989 and after that, P moved to Hong Kong to establish their family here. Thus, on record, this is a marriage of about 26 years. P is a housewife and R has retired. 5.There are two grown-up children in the family. The elder is a son. He will soon become 26 years old. He received his university education in UK and is now in gainful employment. He is not involved in the present proceedings. 6.The younger daughter, YY, is the child seeking interim maintenance in this application. She will turn 23 this June. Same as her brother, she was educated in UK. She received a ‘second class, upper division’ bachelor degree in Medicinal and Pharmaceutical Chemistry in 2015. Upon graduation, she continued her study for a master degree in pharmaceutics science at a prestigious university in London in September 2015. However, for reasons that I will deal with below, she suspended her study and returned to Hong Kong in December last year. 7.As of now, the family of four (if I may still call them a family) are still living in the matrimonial home in Lam Tin. 8.P’s first attempt to divorce was in January 2014. At that time, she petitioned her divorce on the ground of two years separation. She alleged that the parties had separated from each other since March 2003. It was strenuously contested. Subsequently, with the leave of the court, P commenced the present divorce proceedings in March 2015 on the grounds of two years separation and the unreasonable behaviour on the part of R. The proceedings are again strenuously contested with a cross-petition from R on the ground of unreasonable behaviour on the part P. At the present moment whether or not the divorce proceedings will become a full-blown litigation is yet to be seen. This was against this bitterly background that the present application was taken out. 9.In her petition, P applies for ancillary reliefs for herself and for YY. Specifically, she seeks payments for the benefit of YY under section 5 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”). 10.Upon her application under the previous divorce proceedings, there was an order on 7 October 2014 that R is to pay P maintenance pending suit in the sum of $18,500 per month. This order is still validly in force. Parties’ Respective Position 11.At the substantive hearing P indicated that she is prepared to accept $15,000 per month instead of $22,050. This was conveyed to R on 11 April 2016. 12.As for R, he is willing to give his undertakings to the court:
The Legal Principles 13.The legal principles are well-settled. 14.The empowering provision is section 5 of MPPO which provides for the maintenance of a child of the family. In considering whether to give maintenance for the benefit of a child the relevant statutory factors that the court needs to consider are set out in section 7(2) of MPPO:-
15.Section 5 of MPPO has to be read together with rule 78 of the Matrimonial Causes Rules, Cap 179A which empowers the court to grant an interim order upon the application for ancillary relief. 16.The Court of Appeal has said that in an application for interim maintenance the principles for the court to consider at this stage are, first, the reasonable needs of the child who ask for maintenance and the other spouse’ ability to pay; and second, this being an interim provision, the court will not make a detailed investigation of the financial position of the parties but will adopt a broad brush approach: per Cheung JA in LAML v TCCY, (unrep.; CACV 75/2004, 13 September 2004), § 13; and LJ v LWHH (Maintenance Pending Suit) [2003] 3 HKC 455, at 461C – 462D. P’s Case 17.P says when the school term commenced in September 2015 YY was stressful in her study and at the same time she had her leg injured which made her more difficult to cope with her lives in London. The situation was further exacerbated by her parents’ divorce proceedings by which YY was emotionally disturbed. So the daughter decided to suspend, or to employ the specific term used by the university, to ‘interrupt’, her study in October and returned to Hong Kong for treatment in December last year. P particularizes YY’s needs as follows:
18.P claims that since she relies solely on the interim maintenance of $18,500 from R, she is not able to maintain YY. R’s Case 19.In his affirmation, R detailed how he cared about the daughter, not only on the financial aspect but also on her emotional and spiritual well-being, while she was receiving her education in UK since the age of 15. Throughout all this period of time up until her sudden return to Hong Kong, the daughter relied entirely upon him for support and guidance. 20.R was never frugal about spending money on the daughter. Throughout all these years since October 2013 he remitted a total of £105,800 for YY’s use. The master degree programme was from September 2015 to June 2016. For this, R had already paid all the tuition fees and half year’s lodging fees, totalling $482,290. R said to his great disappointment, the daughter interrupted her study in October last year, just one month after the commencement of the term without informing him. He has great doubt over whether the interruption was actually caused by the parties’ divorce. He also has doubts over whether YY is actually mentally unwell as claimed. In any event, he has lost his trust on his daughter. Even if YY is really minded to resume her study in this coming September, he is not prepared to support her. 21.Another reason is R’s own financial situation. As a retiree, he is not financially capable of paying another sum of $500,000 for the daughter’s education. YY is already a university graduate with earning capacity. It is high time that she learned to become independent. If she is determined to pursue any higher degree, what she should do is to find a job and save for her education funds. R has no further obligations to maintain YY. Discussion 22.As can readily been seen, the unusual feature in this application is that the child in question is not a minor child. YY is a fully grown-up young lady. She has long attained the age of majority and is in every sense a citizen with full rights and obligations in our community. Thus, under our law, her position is different from that of a minor child. There is an express provision in MPPO, being section 10, dealing with the powers of the court to make orders in favour of such adult children in specified circumstances. The relevant part of section 10 states as follows,
23.In my view, the following issues fall to be considered:-
Whether YY satisfies the said section 10(3) 24.Ms Wong, counsel for P, relies on both limbs in paragraphs (a) and (b) of sub-section (3). She submits that either YY will be receiving instructions at an educational establishment or there are special circumstances. 25.As regards paragraph (a), she refers to YY’s affirmation evidence where she said she will resume her study this September upon significant recovery from her mental illness. 26.In response, Ms Chong, on behalf of R, argues that YY is no longer a ‘child’ of the family under section 10. YY is nearly 23 years old. R has given her the best education within his best ability and she is now a university graduate. Of her own volition she suspended or terminated her master degree studies within the first month. A master degree is optional and not mandatory. R knows of no law that a father would be compelled by law to pay for the school fee and living expenses of his child should the child decide to pursue a master degree overseas. She submits that R has discharged his financial obligations and responsibilities towards YY with regard to her education. In any event, given that YY suspended her studies without first notifying her father and then went out of touch with him, R has lost every confidence in YY and does not believe she would diligently complete her programme should she resume her studies. He also casts doubts on YY’s ability to complete the programme. Ms Chong draws my attention to YY’s own affirmation and her psychiatrist Dr Lum’s report where it is stated that YY had no emotional problem before she embarked on the master degree programme. The stress from the studies exacerbated her medical condition. She had difficulty concentrating on her studies and she could not cope with the stress. It is clear, so submitted by Ms Chong, that YY has no ability to complete her master degree. 27.The letter dated 18 November 2015 issued by the university confirmed that YY had interrupted her studies on 27 October 2015 and the expected end date of interruption was said to be September 2016. For the purpose of the present application, it is not necessary for the court to go into detailed investigation nor is it possible to do so without hearing the parties’ oral evidence. Apart from what she said in her affirmation and the letter, there is no evidence on what she needs to comply with before she is allowed by the university to resume her study. However, since this is an application for interim maintenance, I would err in favour of YY that it is her intention to resume her studies in London in this coming September and it is open to her to do so. I also accept that if YY had continued her study in London, R would still have continued to support her up to this day. I find that YY satisfies the requirement in paragraph (a) that she will be receiving instruction at an educational establishment. 28.With the conclusion that I have come to, strictly speaking, I do not need to proceed to consider whether YY satisfies paragraph (b) as well. Since counsel have made submissions in this respect, I will deal with it briefly. 29.‘Special circumstances’ would include cases of illness or other handicap of a physical or mental nature: see Jackson’s Matrimonial Finance (9th Edition), §10.19. The apparent circumstance in which the court would likely to have exercised it power under this paragraph is when it is faced with a child who is so seriously handicapped that he has to be dependent on his parents for the rest of his life. That said, it must be correct for Ms Wong to say that what constitutes special circumstances would necessarily depend upon the facts of each case. The question is whether YY falls into this category. 30.According to the medical report dated 30 March 2016, her treating psychiatrist Dr Lum diagnosed that YY has been suffering from depressive episode of moderate degree. YY has been receiving treatment from Dr Lum since January 2016. Although she has been showing signs of improvement, she is still vulnerable to the effects of stress. She is advised to continue with the treatment for another 6 to 9 months. 31.The findings in the report have not been subject to serious challenge. I accept that YY has been suffering from the mental problem as described but, as I see it, what is crucial is that there is nothing in the report which says to the effect that YY loses her ability of self-care or earning capacity. On the contrary, she is a capable person with a good honours degree. As can be gathered from her affirmation and from the amounts that she claims to be required on her entertainment and holidays, it is glaringly apparent that she has been leading an active social life. I have no doubt that the ‘special circumstances’ ground is not applicable to her. The Reasonable Needs of YY 32.As said above, P is seeking payments of $22,050 per month, of which $10,050 are for living expense and the balance of $7,000 as medical expenses. The figures given by P have no mention of the daughter’s tuition and lodging fees. Though it is not so expressly stated, on the plain reading of the supporting affirmations, the figures regarding her needs must have been based on the daughter’s expenditure in Hong Kong. The evidence on the daughter’s standard of living is mainly in respect of what she had while in UK. As such, it is of little value for her situation in Hong Kong. The receipts produced by P show that Dr Lum’s consultation fees vary from $1,300 to $1,700 each and according to the report, YY has the need to seek consultation once every 3 to 5 weeks only. On any view, there is simply no basis for P to have claimed a sum of $7,000 as medical expenses. In my assessment, her medical expenses should not be more than $2,000 per month. As for the items on clothing / shoes, entertainment / presents and holidays, in my view, they are on the high side. I incline to think P has exaggerated the figures. This was also my observation when I dealt with P’s application for maintenance pending suit in October 2014. 33.I note that YY went to Taiwan with friends for vacation in February 2016 and with P, again to Taiwan, in March 2016. All these were financed by P. R also specifically mentioned, in his affirmation of 21 March 2016, that YY was away on a trip from 14 March 2016 to 17 March 2016. YY could have easily denied it if it was untrue. Surprisingly, she was silent on this allegation in her affirmation in reply. Another point that strikes me is that on P’s own case, she is entirely dependent on the interim maintenance of $18,500 per month to meet her daily needs. If that is the case, it begs the question of where did P get the money to finance YY? I do not have to come to a definite conclusion that P failed to give a full and frank disclosure of her finance. This has to be dealt with in the trial of the ancillary relief. However, it would be wrong for me if I do not take this observation into consideration in the deliberation of the present application. The Ability of R to Pay 34.Ms Chong submits that R is a retiree and so he is not capable of supporting YY for another year in London. If the daughter is to stay in Hong Kong, as she is now, she should find a job to support herself. 35.In this regard, even on YY’s own version, she said in her affirmation that when she mentioned to her father about her plan of pursuing a master degree programme, R repeatedly mentioned to her that he had no money and was not supportive of her plan. At the end, R conceded to the request and that led to her further education last year. The daughter also affirmed that R was reluctant to attend her graduation ceremony due to financial reasons. 36.That said, Ms Wong draws my attention to R’s Form E dated 10 March 2014 in which R disclosed that he had assets of around $18 million. For the purpose of the present application and taking a broad brush approach, I consider that R should have the financial ability to pay for YY’s living expenses in Hong Kong. As a matter of fact, for the reason that the parties have already agreed on 26 January 2016, by way of a consent order, to have one of the properties sold and to have $1.5 million paid out to each of them from the sale proceeds, it is fair to say that both parties would have the ability to support YY’s living if there is such a need. Whether the Court should give an Order of Interim Maintenance? 37.I now come to the ultimate issue, ie whether or not R has to pay interim maintenance for YY. It is important to remember that even when an adult child is a ‘child’ under section 10(3), MPPO, it remains to be at the discretion of the court as to whether or not to give an order for maintenance. It is also noteworthy that as is evident from how her application is framed, it is clear that P is not seeking maintenance for YY’s education in London; what she is seeking is the daughter’s living expenses while in Hong Kong. 38.It may be that the daughter is suffering from a mental illness but the touchstone is whether this has deprived her of her earning capacity. As I referred to above, Dr Lum did not go so far as to say that YY’s mental condition has affected her earning capacity and further that, all the evidence points to the fact that she has been leading an active social life. It is said by YY in her affirmation that her mental condition has prevented her from working but it is unsupported by Dr Lum’s evidence. There is certainly no mention in any evidence that there were attempts on her part to seek some form of employment, whether on full-time or part-time basis, but these failed because of her illness. Simply put, there is no evidence that she has tried. 39.In my judgment, the facts that YY has already completed her university education and apparently has earning capacity must carry weight in the deliberation of the present application before me. I agree with R that the daughter should be independent or at least try to be so before her departure to UK, if that happens in the future. In my view, it is perfectly realistic that YY seeks employment. It is for her own good: whether for some ready cash, for some valuable work experience or for enhancing her credentials. 40.YY is now living at the matrimonial home and does not need to contribute to any household or utilities expenses. If she is in some form of employment, together with the monthly sum of $4,000 that R has undertaken to pay and the support from P, this should be sufficient for her maintenance. Conclusion and Order 41.With the conclusion that I have reached, I am not minded to grant an interim maintenance at this stage. P’s summons therefore has to be dismissed and I so order. I also set aside the interim interim maintenance order dated 1 March 2016. I will hold R onto his undertakings set out in paragraph 12 above. The undertakings shall form part of the order made in this judgment. Costs 42.R is successful in resisting this application. I consider it is appropriate for R to have the costs of the application. I give an order nisi that the costs of the application be borne and paid by P with counsel certificate, to be taxed if not agreed.
Ms Claris Kwong, instructed by Gilbert Tang & Co, Solicitors, appeared for the petitioner Ms Sezen Chong, instructed by K P Lam & Co, Solicitors, appeared for the respondent | |||||||||||||||||||||||||||||||||||||||
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