Siu Cheung Ying v. Siu Shim Kun

HCMC000059/1969

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 59 OF 1969

-----------------

-----------------

Coram: B.L. Jones, Assistant Registrar, Supreme Court, in Chambers.

Date of Judgment: 15th June, 1970.

-----------------

DECISION

-----------------

1. This is an application for maintenance by the Petitioner for herself and the four children of the family.

2. A Decree Nisi was granted to the Petitioner on the 25th October, 1969 on the grounds of cruelty which was made absolute on the 24th February, 1970. The proceedings were not defended by the Respondent.

3. The question of maintenance was adjourned at the hearing to the Registrar.

4. Custody of the four children was awarded to the Petitioner at the hearing but by arrangement the younger children are at present being looked after by the Respondent's mother. However, it has been ag reed that after a maintenance order has been made the children will return to the Petitioner.

5. The two elder children are boarding at St. Timothy's Hostel, Kowloon.

6. Two affidavits of means dated the 7th April, 1970 and 30th May, 1970 were filed by the Petitioner and an affirmation of means dated the 28th May, 1970 was filed by the Respondent.

7. The Petitioner did not work during the marriage but is at present employed as a seamstress at a monthly income of $250. The Petitioner has no other source of income. It is her intention to cease work when a maintenance order is made in order that she may devote all her time to caring for the children.

8. The monthly expenses of the Petitioner amount to $256 which includes rent $65, food $100, board and lodging for the two elder children $80, school fees $6 and telephone charges $5.

9. The Respondent has been employed as a laundryman on board various ships of the Norddeutscher Lloyd Bremen West Germany since the 28th August, 1962, On the 10th May, 1969 the Respondent entered into a contract of employment with his employers for a period of two years at a monthly minimum gross wage of approximately $770. In addition to this sum the Respondent in evidence said he received tips amounting to $100 per month. As a result of receiving some documents relating to the proceedings for ancillary relief when he was in London in December, 1969, the Respondent requested leave of absence from his employer so that he could return to Hong Kong. At his own request the Respondent was discharged in Hong Kong from his ship on the 28th February, 1970. Since that time the Respondent has been unemployed and according to his evidence he is now being supported by his step-father.

10. It is not in dispute that the Respondent took no steps to discharge himself from his employment to defend the divorce proceedings and I cannot a ccept that the Respondent had reasonable grounds voluntarily to give up his employment merely for the purpose of contesting the proceedings for maintenance. The Respondent has now been out of work for three and a half months and states that he will be employed as soon as a vacancy arises on a ship, but is unable to say when this will occur. It is clearly the Respondent's fault that he is unemployed and I shall make an order based on the hearings of the Respondent at the time when he was employed.

11. I shall not take into account the Petitioner's earnings or her potential earning capacity in view of the fact that she did not work during the marriage and will not be working when she has to look after the two younger children. Rose v. Rose 1950 2 All E.R. p.311.

12. During the year 1969 the Respondent's employer certified that the Respondent earned approximately $1,373 per month. The Respondent said his tips would amount to $100 per month but this is perhaps on the conservative side. However, I accept for the purpose of these proceedings that the Respondent should be able to earn at a minimum figure the sum of $1,500 per month. The Respondent whilst at sea will have no expenses to meet for he is entitled to free accommodation and meals.

13. Accordingly, I shall make an order for the Respondent to pay to the Petitioner during their joint lives or until further order maintenance at and after the rate of $200 per month to be payable monthly, the first payment to be made on the 15th July, 1970 and for each of the two eldest children, Siu Wai Ming and Siu Wai Kwan maintenance at and after the rate of $175 per month to be payable monthly, the first payment to be made on the 15th July, 1970 and for each of the two younger children, Siu Wai Yin and Siu Wai Ho maintenance at and after the rate of $125 per month to be payable monthly, the first payment to be made on the 15th July, 1970. The total payment per month will therefore be $800.

14. The costs of and incidental to these proceedings will be paid by the Respondent and will be taxed in accordance with the Legal Aid (Scale of Fees) Regulations Cap. 91.

15. There will be a certificate for Counsel.

Dated the 15th June, 1970.

Representation: