Brian Lawrence King v. Julie Carol King
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1. The parties were married in April 1977 in England. Shortly after this, they moved to Hong Kong. Mr. King is an airline pilot with Cathay Pacific and Mrs. King is a state registered nurse. It is common ground between the parties that initially the marriage was a happy one. In September 1934 or thereabouts, Mr. King left the matrimonial home in Sai Kung and shortly thereafter, commenced cohabitation with a Mrs. Thompson who is named as the 2nd respondent in Mrs. King's petition. At the time whe
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HCMC000005B/1986 -------------------- Headnote -------------------- Divorce - maintenance. - Implications of substantial solicitor and own client costs. Where such costs have necessarily been incurred they should be taken into account when apportioning assets between the parties. - Considerations which are relevant when one of the parties has a contingent interest in a Provident Fund. IN THE SUPREME COURT OF HONG KONG HIGH COURT DIVORCE JURISDICTION NO. 5 of 1986 ________ BETWEEN
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_________________ Coram: The Honourable Mr. Justice Mayo in Chambers Date of Hearing: October 21, 23-24, 27-31, 1986 & November 3-7, 10-11, 1986 Date of Delivery of Judgment: 26 NOV 1986 ___________ JUDGMENT ____________ 1. The parties were married in April 1977 in England. Shortly after this, they moved to Hong Kong. Mr. King is an airline pilot with Cathay Pacific and Mrs. King is a state registered nurse. It is common ground between the parties that initially the marriage was a happy one. In September 1934 or thereabouts, Mr. King left the matrimonial home in Sai Kung and shortly thereafter, commenced cohabitation with a Mrs. Thompson who is named as the 2nd respondent in Mrs. King's petition. At the time when Mr. King left the matrimonial home, Mrs. King was in England. She was giving birth to Francesca the second child of the marriage. Mrs. King then returned to Hong Kong to continue living in the home in Sai Kung. 2. Mrs. King filed a petition seeking a judicial separation on the 17th of August 1985 which was based upon Mr. King's adultery with Mrs. Thompson. On the 19th of August, Mr. King in turn filed a petition for divorce which was based upon Mrs. King's alleged misbehaviour. Mr. King claimed that the marriage had broken down irretrievably and that Mrs. King had behaved in such a way that he could not reasonably be expected to live with her. Mr. King filed a supplemental petition on the 29th of April 1986 and at the commence ment of the proceedings before me, I granted leave for him to file a further supplementary petition. These two supplementary petitions contained allegations of further acts of misbehaviour by Mrs. King. To complete the picture, Mrs. King amended her petition shortly before the hearing and the substance of her amendment was to seek to pray for the dissolution of the marriage rather than for a judicial separation. 3. When the proceedings started, Mr. Payne for Mr. King informed me in open court that he was prepared to discontinue Mr. King's petition for divorce if Mrs. King was willing to give an undertaking that if she obtained a decree nisi of divorce on her petition, she would at the expiration of six weeks make an application to the court for the decree nisi to be made absolute. Mr. Payne advised me that the reason for making this offer was that Mrs. Thompson was expecting a baby in January 1987 and that Mr. King was most anxious that this baby should be born in wedlock. It was his intention to marry Mrs. Thompson as soon as he was free to do so. Mrs. King was not prepared to give any such undertaking. Mr. Poll who was representing her submitted to me that Mr. King's petition was ill conceived and without foundation. He went on to suggest that the charges made by Mr. King in the petition were trumpted up charges and that the petition was bound to fail. He did not see any reason why Mrs. King should be blackmailed into a situation whereby she would be implicitly condoning Mr. King's conduct in prosecuting a petition in this manner. 4. In view of the fact that it might be impossible for Mr. King to marry Mrs. Thompson before the birth of the baby, it was necessary for him to proceed with his petition. I would say immediately that this was a most unfortunate and unhappy situation., It is agreed by the parties that they do not possess great wealth. The consequence of Mr. King having to proceed with his divorce petition which was strenuously opposed, was to substantially inflate legal costs. Indeed the proceedings before me took 14 days which meant that both parties' costs have swallowed up the assets which are available for distribution between the parties. I was told at the conclusion of the hearing before me that the husband's costs were in the region of half a million dollars and that the wife's were about two hundred thousand dollars. I regard this as being a tragedy. 5. While Mrs. King was being cross-examined. by Mr. Payne on the 11th day a short adjournment was sought. When the hearing resumed, Mr. Payne repeated his offer not to proceed with his client's petition if a satisfactory form of undertaking along the lines I have indicated was forthcoming. Mr. Poll then informed me that he had instructions to give such an undertaking. Mr. Payne did not then continue with his petition. 6. In addition to the petitions for divorce, I also had to consider an application by Mrs. King for ancillary relief and an application by Mr. King for reasonable access to the two children of the marriage; Gemma aged 8 and Francesca aged 2. It will be appreciated. from what I have already said in connection with the costs which had been incurred that it is imperative for me to form some views concerning the defended divorce proceedings. 7. Mr. Poll maintained his stance that Mr. King should never have commenced divorce proceedings based upon Mrs. King's misbehaviour. He argued that he should have either waited two years or five years after the separation depending upon whether Mrs. King's agreement was forthcoming before commencing action. The consequence of Mr. King proceeding in the way he had was to incur enormous costs which were entirely unnecessary. If I understood him correctly he suggested that such expenditure amounted to a dissipation of the family assets. I was referred to Martin v. Martin(1) as authority for the proposition that where a party has since the breakdown of a marriage dissipated family assets, this should be taken into account in determining the manner in which the remaining assets will be appropriated between the parties. I accept that this is good law and is applicable to the circumstances-of this case. This being so, it is necessary for me to weigh and consider the evidence adduced before me in the divorce proceedings in an endeavour to determine whether or not Mr. King was justified in incurring the very substantial legal costs which have arisen. It is not even quite a simple as this. I must also consider matters which do not necessarily fall within the parameters of the divorce itself. I refer to the substantial costs which also arose in connection with Mr. King's endeavours to obtain access to Gemma and Francesca during the intervening period from the separation up to the present date. 8. I am faced with a rather difficult task. Mr. King was able to present all of his case prior to the undertaking being given. Mrs. King was not in such a happy position. She gave her evidence in chief and had been subjected to cross-examination for approximately two days. It is accordingly essential for me to bear in mind that Mrs. King did not have a full opportunity of presenting her side of the case. Fortunately the position is not quite as difficult as this as I did have a very good opportunity of observing her in the witness box over a considerable period of time and was able to make a fairly good assessment of her as a witness. Also it is strongly my view that any other witnesses she may have decided to call would have been of peripheral importance having regard to the main issues requiring determination. I am satisfied that there was sufficient material before me to enable me to have a good idea what would have been the probable outcome of the divorce petition presented by Mr. King. 9. The two main witnesses on Mr. King's petition were himself and his mother. I generally find Mr. King to be a fairly truthful person. I regret, however, that I definitely formed the impression that on a number of occasions he did tend to exaggerate his evidence. I also came to the conclusion that on several occasions he presented a distorted view of what I think must have transpired. This, however, is understandable in the context of matrimonial proceedings. 10. I also derived considerable assistance from the testimony of Mrs. King senior. She was an excellent witness. She is an impressive person who has had considerable experience of life. Her husband, Mr. King's father, was also an airline pilot with Cathay Pacific. She therefore had a very good idea of the demands and stresses which are likely to arise in the life of an airline pilot. Mrs. King senior did in my view attempt to give her evidence fairly. She agreed that she is deeply devoted to her son and I think accepted that this could lead to some bias on his behalf. She was not wholly critical of Mrs. King. She agreed that in the early days of the marriage, it had been very successful and that she and her bushand had become very fond of Mrs. King. It was only in the latter part of the time when the parties were living together that the situation deteriorated and her feelings towards Mrs. King had become less warm. 11. Mrs. King junior was not in my opinion such a good witness. It was definitely my impression that on several occasions, she deliberately gave false evidence. Having said this I would hasten to add that I had no hesitation in believing a great deal of the evidence she gave. On several occasions, I was prepared to accept her testimony where it was in conflict with Mr. King's. 12. I will now address myself to the main complaints which are made in the petition and the two supplemental petitions. There is a general complaint that Mrs. King was of a jealous disposition and was constantly suspicious of Mr. King. There is also an allegation that she was a very indiscreet person who was in the habit of discussing intimate family matters with all the neighbours. One particular incident was specificially referred to in support of the allegation of jealousy. This occurred shortly after the parties started living in Hong Kong in 1977. Mr. King gave evidence that he returned from a flight and proceeded to go to the Aeroclub where he had a drink with some of his friends and colleagues. Mrs. King had telephoned him on a number of occasions requesting him to come home. He had not immediately done so. Mrs. King had then telephoned on yet another occasion and threatened him that if he did not come back within half an hour, she would lock the door and prevent him from entering the home. He had not immediately returned. 13. When he did go back, he found that Mrs. King had implemented her threat and had locked the door. She had refused to answer the door when he had rung the bell. He then tried to gain entry to the house by climbing a drain pipe which ran up to the bathroom window which had been left open. When he had climbed to the level of the window and was attempting to enter, Mrs. King had attempted to prevent him from doing so, thus placing him in considerable jeopardy because there was a definite risk that if he had fallen, he could have sustained serious injuries as there was a wall below the pipe. 14. Having heard Mrs. King's evidence on this, I came to the conclusion that' Mr. King had definitely exaggerated his evidence. What is more important though is to attempt to understand this incident in an overall context. It is not difficult to imagine the apprehension and concern of a wife who knows that her husband is drinking at a Bar with his friends and has to drive a motor car back home to an area such as Sai Kung. It is very understandable that she would be concerned that he would not be in an intoxicated condition when he drove home. I have little doubt that Mrs. King was angry over the incident and did not immediately agree to allow Mr. King to enter the home. I do not though believe that she attempted to prevent him from entering the bathroom window in the manner described by Mr. King. 15. I will now deal shortly with one of the other incidents which is referred to in the petition. This occurred on Christmas day 1981, The Kings were throwing a party which was attended by a number of guests. Mr. King agreed that he had had a few drinks. When he was in the garden facing the fence he commenced urinating. Mrs. King saw this and became agitated. She went across and pushed him so that he fell down the slope and came into contact with the barbed wire at the base of the slope. He sustained some scratches and his clothing was torn. Following this, Mrs. King administered a tetinous injection. Mr. King claimed that she deliberately caused the injection to be made in such a way as to be very painful to him, Mrs. King denied having pushed him down the slope. She claimed that she put her hand on his shoulder and that he was in such a drunken state that he then fell down the slope of his own volition. 16. So far as this incident is concerned I prefer the evidence of Mr. King to the evidence of Mrs. King. I think that Mrs. King did push Mr. King down the slope. I do not though believe that she did it maliciously. I think it much more likely that she lost her temper when she saw him urinating in the presence of guests. I do not think that she had any intention of causing him injury. I also do not believe that she deliberately administered the tetinous injection in such a way as to cause him pain. It is much more likely that her anger would have subsided by this time and I am not prepared without much more convincing evidence to conclude that a state registered nurse would deliberately cause a person pain when giving an injection. Over and above all of this, it would seem to be common ground that all was well with the marriage at this time and I find it hard to believe that Mrs. King would deliberately occasion him pain. 17. I will make a fear observations also concerning the allegations relating to Mrs. King's indiscretions. I think that these allegations have to be seen in the context of the evidence to the effect that the Cathay Pacific Pilots and their families living in the Sai Kung area form a close knit community. I have no doubt that some of the wives would indulge in a certain amount of indiscreet gossip. I think in all likelihood Mr. King himself may have indulged in such a manner. On the evidence which was before me I am not prepared to accept that Mr. King's allegations in this respect have been sustained. 18. There are also allegations in the petition that Mrs. King did not adopt a friendly attitude towards Mr. King's parents. I do not think that there were any serious problems in this respect in the early part of the marriage. I do though accept that the relationship between Mrs. King and her in-laws did at some stage deteriorate. 19. The parties went to England for the purpose of attending Mr. King's brother's wedding. On this occasion, arrangements were made for Mr. and Mrs. King senior to stay at the parties house in England at the time of the marriage. A few days before the wedding, Mr. King and his father made arrangements to fly together at Liverpool Airport in a private light aircraft. There was only one car available to the extended family. Mrs. King wanted to use car to go shopping and to have her hair done. An argument then took place as to who should have the use of the car. Mr. King decided that he and his father would use the car and would get back in time so that Mrs. King could have it for the afternoon. This did not please Mrs. King at all. When Mr. King and his father were leaving the house, she shouted at them either 'you selfish bastard' or 'you selfish bastards'. There was some conflict as to whether she made the remark in the singular or plural. This was a particularly unfortunate thing to have been said. Mrs. King knew that Mr. King senior was very sensitive on the topic of illegitimacy. He had himself been born illegitimate at a time when a certain amount of social stigmata attached to illegitimacy. Mr. King junior claimed in his evidence that the remark was addressed to Mr. King senior and was deliberately intended to be wounding. Mrs. King senior in her evidence supported this interpretation of the matter. 20. Having heard Mrs. King junior's evidence on this, I do not think that it was her intention to deliberately cause hurt to Mr. King senior. I think it much more likely that she shouted out the words in anger without reflecting upon the consequence of her words. 21. Mrs. King senior gave evidence concerning three occasions when Mrs. King had been offensive to her. The first occurred when Mrs. King senior telephoned her from New Zealand to her home in England while she was on one of her visits without Mr. King. Mrs. King senior had said that she had been on the telephone to Mr. King and had come to the conclusion that he had problems with his work and was lonely without Mrs. King. She had then telephoned and suggested that Mrs. King should immediately return to be with Mr. King. Mrs. King had then told her to mind her own bloodly business. 22. Mrs. King agreed in evidence that she had said this but excused herself on the grounds that she had a cold at the time and had been in bed when she had received the telephone call. In any event, I do not regard the incident as being particularly serious. 23. The other two occasions were much more serious. On each of these occasions, Mrs. King had used vulgar and abusive language and had sworn at Mrs. King senior. However both occasions occurred after the separation between the parties. What must be borne in mind is the fact that on these occasions doubtless Mrs. King junior had formed the impression that Mrs. King senior's allegiances were to her son and Mrs. Thompson. It is therefore understandable that Mrs. King junior would not feel amicably disposed towards her mother-in-law. I do not consider that the behaviour in the context I have referred to amounts to unreasonable behaviour such as is required to justify the allegations made by Mr. King. 24. There is no doubt in my mind that Mrs. King senior used her best endeavours to try and assist her son and daughter-in-law with their marriage. In 1981 Mrs. King was in the United Kingdom on one of her extended stays. When she returned to Hong Kong she discovered that Mr. King had formed an association with a woman called Charleen and had committed adultery. This had all been patched up and Mr. King had apologised for his conduct. Mrs. King had then contacted Mrs. King senior in New Zealand who on the pretext of her husband's ill-health had arranged with Mr. and Mrs. King for them to have a holiday in New Zealand. This had all gone very well and Mrs. King senior had taken the opportunity of advising Mrs. King that she should not in future leave her hsuband for protracted periods. At that time, Mrs. King had accepted this advice. I have no doubt that the advice which was given was excellent advice and it is quite possible that had it been heeded the parties might still be happily married together. 25. This brings me naturally to what I regard as being by far the most serious allegation in the petition itself. Mr. King produced as evidence a schedule which showed that Mrs. King had been away from him on holidays mainly to the United Kingdom for 385 days from 1978 until the middle of 1983. Mr. King complained that while his wife was away he was lonely and missed her company. One of the effects of this was to diminish the love he felt for his wife. 26. I have found it to be necessary to scrutinize this part of the case with considerable care. There is an essential conflict of evidence between the parties. Mr. King alleges that his wife well knew the distress which he was occasioned by her absences. He added that it was only with the greatest reluctance that he consented to her being away for substantial periods. Mrs. King's evidence was very different. She said that rather than it just being agreed that she should stay in England when she did Mr. King had insisted that she should make these visits. 27. The reason Mrs. King gave for this was that various matters had had to be attended to in England. Also it was, in both her and Mr. King's opinion, desirable that Gamma should establish roots with her English cousins and generally become acclimatized to life in England which may have been in due course their home after Mr. King ceased working for Cathay Pacific. 28. I have had difficulty in accepting fully the testimony of either Mr. King or Mrs. King. I think that it is necessary to analyse the purposes of each of the visits which occurred after 1980. There were two long visits. The first was in 1981 and the second in 1984. 29. In 1981, it had been agreed that they should purchase a house in England. It would appear that the discussions and negotiations in this respect were somewhat protracted and that delays occurred in completing the transaction. Also it needs to be borne in mind that Mrs. King had. a lot of matters to attend to as she arranged for furniture to be acquired and for the house to be made into a home. 30. Over and above all of this, one of Mrs. King's best friends had died of cancer during this visit. Mrs. King had assisted in nursing her friend who seems to have had a protracted death. Trying to consider the circumstances as fully as possible I have come to the conclusion that Mrs. King has justified this visit and I believe that it was fully in accordance with Mr. King's wishes and intentions. 31. The other long visit was the 1984 visit when she had gone to England to give birth to Francesca. Due to her pregnancy it had been necessary to proceed to England at least two months prior to her confinement. Also, of course, it was necessary for her to recuperate after giving birth to Francesca. I consider that Mrs. King has fully justified this long visit to the United Kingdom. The reason she gave for going to England to give birth to Francesca was that Mr. King was concerned that Francesca should be born in England so that she would automatically acquire British nationality. Mr. King had been concerned about this as he himself had been born in Hong Kong. I am satisfied that Mrs. King has fully justified this visit. 32. There were three other occasions when Mrs. King made visits to England during the relevant period. She was away in 1982 for 65 days, in 1983 for 23 days and 18 days at the beginning of 1984. No compelling or satisfactory reasons have been given for these visits. I do not though think that Mr. King ever remonstrated with Mrs. King and told her how much distress her absences occasioned him. By the same token I am not prepared to believe Mrs. King's evidence that any of these visits were made at Mr. King's insistence. I have given the whole subject of Mrs. King's absences in United Kingdom the most careful thought. I have come to the conclusion that her conduct has not been sufficiently serious to justify Mr. King in founding a petition upon it. Prior to the separation Mrs. King was essentially a good wife. I also reject the allegations to the effect that she was not a good mother to her children. 33. I now deal with her post separation behaviour. The circumstances surrounding the separation were very unhappy. As I have said earlier Mrs. King was in England giving birth to Francesca. She realised that all was not well when her husband visited her shortly after Francesca's birth. He was not dressed in the usual type of clothes that he wore and she became suspicious that he had been associating with some woman. Notwithstanding this when Mr. King returned to Hong Kong they parted in amicable circumstances. Mr. King had seemed to be extremely happy about Francesca's birth. She had then assumed that everything would be alright. 34. Following his return to Hong Kong Mr. King had spoken to her on a number of occasions over the telephone. It had definitely been her impression that when he had spoken to her he had been under the influence of alcohol. He had been abusive during these calls and had suggested that she should defer her return to Hong Kong. However, it was only very shortly before her return to Hong Kong that she had been told that if she returned her husband would move out of the matrimonial home. 35. She decided to return to Hong Kong with her father so that he could assist her with her difficulties. When she had arrived. back Mr. King had been away on his flying duties. She was met at the airport by Mrs. King senior who was staying in the matrimonial home. It was on this occasion that there was an unhappy exchange between herself and her mother-in-law which had resulted in her basically ordering Mrs. King senior out of the house. 36. She had at this time realised that a very serious situation existed and that her husband had been committing adultery with Mrs. Thompson. She had attempted to persuade her husband to return to the matrimonial home without success. There is no doubt in my mind that there was very considerable bitterness between the parties at this juncture. 37. At about this time Mrs. King telephoned Captain Dyball Mr. King's superior and made a number of allegations concerning her husband. She attempted to justify her action by saying that she had received a telephone call from Mrs. Thompson's ex-flatmate complaining that Mrs. Thompson and Mr. King had removed various articles of hers from the flat. If the articles were not returned she intended to go to the police. Mrs. King said that it was forestall this that she telephoned Mr. Dyball and she was attempting to protect Mr. King's interests. I do not accept this for one moment. I have no doubt that Mrs. King was actuated by malice and deliberately attempted to cause as much damage as possible to Mr. King. 38. There was a further incident at Christmas 1984 which reinforces this view of the matter. A few days before Christmas Mrs. King prepared a poster in a decorative manner including photo graphs of both children. The poster was styled as being a 'santa appeal' which appealed for the children's father to return to them for Christmas. Mrs. King got one of Mr. King's colleagues, a Mr. Wordsworth to display this poster in a prominent position in the Checking room which is normally only accessible to Cathay Pacific pilots and crew in the airport. In her evidence, Mrs. King said that her motive in doing this was to prick her husband's conscious so he might return to the family over Christmas. I have no doubt that her motive in displaying the poster in the manner she did was a calculated attempt to cause Mr. King as much embarrassment as possible in front of his colleagues. 39. On the subject of causing embarrassment it is also worth referring to a letter which Mrs. King wrote to Mrs. Thompson's solicitors in October 1985. Mr. Payne asked Mrs. King a number of questions in cross-examination about this letter. Mrs. King said that after the short reconciliation which I will later be referring to, she found a letter in one of her drawers from Mrs. Thompson's solicitors which made reference to possible custody proceedings in relation to Gemma and Francesca. She read the letter notwithstanding the fact that it was not addressed to her. She then felt that it was necessary for her to write to the solicitors herself. A copy of Mrs. Thompson's letter to the solicitors is included amongst the agreed documents. That reads as follows:
40. It is certainly difficult to view this letter in any other way then as a deliberate attempt to malign her husband. It does not require an excess of imagination to envisage the untoward consequence: which could have flowed from this letter. 41. Both parties gave evidence of the various incidents which occurred after the separation. On at least three occasions when Mr. King attended at the matrimonial home there were undignified scuffles attended with a measure of violence. I do not think it is profitable to consider each of these incidents in detail. Needless to say Mr. and Mrs. King both gave very different versions of what transpired. Suffice it to say that in general terms I preferred the evidence of Mr. King. I believe that when he attended at the matrimonial home there were very unpleasant incidents and generally it was Mr. King who was defending himself against assaults by Mrs. King rather than vice versa. It would seem that these attacks were fuelled by Mrs. King's hatred of Mrs. Thompson and her husband. 42. The situation was not, however, entirely bleak. In September 1985 there was a period of one week when Mr. King did return to the matrimonial home in the hope of effecting some form of reconciliation. Again, there is conflicting evidence concerning this. According to Mr. King, he only returned because of his concern for the children. He claimed that he had received telephone calls from Mrs. King when she had threatened to commit suicide. He was also concerned whether the children were being properly looked after. Mrs. King however claimed that it was a genuine reconciliation. She said that after his return her husband had apologised for his previous conduct and had promised to turnover a new leaf. They had also considered moving to another home so that they could make a fresh start. 43. During this period they had had sexual relations on a number of occasions. Mrs. King also said that the circumstances surrounding his departure were particularly distressing. She had taken Gemma out to a swimming lesson one afternoon leaving Mr. King at home. When they returned they found that he had packed up and gone. This had been particularly distressing to Gemma who was deeply attached to her father. Where there are conflicts between Mr. and Mrs. King's evidence relating to the reunion I am inclined to accept Mrs. King's evidence rather than Mr. King's. I believe that it was a genuine attempt at reconciliation and quite possibly Mr. King's motive in painting the situation in a different light was to play this down so far as Mrs. Thompson was concerned. Be that as it may the reconciliation was not a success and perhaps this added to the overall bitterness between the parties. 44. The final matter I will refer to in Mr. King's petition are two incidents referred to in the supplemental petitions. Mr. King alleges that on two occasions he had conversations with Mrs. King concerning the divorce. On these occasions Mrs. King had said she intended to screw him to the ground financially because she wished to have revenge. She said that she did not care if all the family monies were dissipated as she wanted the satisfaction of screwing her husband. 45. On one of the occasions when she said this she was at the Aeroclub and Mr. King was with colleagues there. At the conclusion of the conversation Mrs. King had poured a glass of beer over his head. 46. The other matter I would refer to is a telephone conversation which' occurred in July 1986. According to Mr. King, Mrs. King said that she hoped that the child which Mrs. Thompson had would be born with no hands and that it would be a spastic child. I believe Mr. King's evidence that Mrs. King said these things. 47. That would seem to me to encompass all of the more serious matters which are alleged in the Petition and supplemental petitions. The next questions which I have to consider is whether the post separation behaviour would be sufficient to enable me to grant a decree of divorce to Mr. King. 48. Before making a determination on that issue it is essential to have regard to all the circumstances. I have no doubt whatever that there was a very substantial degree of provocation. I have described the circumstances surrounding the separation between the parties. It must have been particularly distressing to Mrs. King that all of this took place while she was giving birth to Francesca. It was not simply a question of her husband committing adultery. What was involved was a complete threat to her life style. It must have been a devastating blow to her particularly as she was faced with the prospect or having to bring up two young children by her own efforts. It is easy to see how Mrs. King would have felt. 49. What has to then be considered is whether there was a reasonable excuse for the conduct I have referred to. I have come to the conclusion that. while Mrs. King's conduct is understandable it cannot be excused. While I have great sympathy for her I am satisfied that in all probability had Mr. Payne proceeded with Mr. King's petition and supplemental petitions almost inevitably I would have had to grant a decree nisi on the grounds of Mrs. King's behaviour. 50. This is of importance as the consequence of such a finding is that Mr. King was almost certainly justified in expending the large sums of money he did on legal representation. I have also borne in mind the unhappy situation which has prevailed concerning the lack of access Mr. King has had to the children. 51. Efforts in arranging satisfactory access arrangements have been frustrated as a result of Mrs. King's intransigence and insistence that the children should not go to the flat at Po Shan Mansions where Mr. King cohabits with Mrs. Thompson. In the light of my findings concerning the violent incidents which occurred when Mr. King visited the matrimonial home, it is hardly surprising that he has seen little of his children. 52. Mr. Poll was on a number of occasions critical of the very substantial amount of legal expenses incurred by Mr. King. I have borne in mind the fact that the fees which had been incurred were solicitor and own client fees. I do not consider that it is any part of my function as a trial judge to attempt to place myself in the shoes of a taxing master. I do not think that it has been established that the legal expenses are excessive. Having regard to the view I have taken of this matter I have come to the conclusion Mr. King's legal expenses were properly incurred. This being the case the expenditure cannot be said to come within the definition of dissipation referred to in Martin v. Martin. Accordingly I propose dealing with the family fortunes on the basis that the debts due to the solicitors are a valid liability. 53. During the course of the proceedings numerous commendable efforts were made to settle the financial arrangements between the parties. Unfortunately these were to no avail. I consider that it is desirable for me to give particulars of an open offer which was made by Mr. King's solicitors on the 7th of November. The letter reads as follows:
54. Mr. King made a further offer to pay removal expenses and provide monies for a rental deposit. This offer was conditional upon Mrs. King agreeing to apply to the Court to abridge the time between the grant of the decree nisi and the decree absolute. Mrs. King was not prepared to accept this offer. 55. If I understood, Mr. Poll correctly the main bone of contention between the parties was whether it would be possible for Mrs. King to continue to live at the Sai Kung property. Mrs. King made a counter offer on the basis that she should have the Sai Kung property transferred to her. 56. What was proposed was that Mr. King should sell the property to her. She would utilise the $200,000 referred to in Hampton Winter and Glynn's letter as a deposit and she would then obtain from Wayfoong Finance a mortgage for the balance of the purchase price at a valuation of a million dollars. 57. Inquiries which had already been made of Wayfoong indicated that there should be no problem in organising this. Of course, one effect of this proposal was that the payment of the $200,000 referred to in Hampton Winter and Glynn's letter would be accelerated by three years to the present time. ” Mr. Poll did not think that this should create any difficulty. He referred to Mullard v. Mullard(2) as authority for the proposition that generally it was not right that the claims of a wife should be put behind those of the creditors at large. Mr. Poll submitted that if this course was adopted and repayment of the mortgage was stretched out over ten years the monthly payments of principal and interest would amount to a sum slightly in excess of $7,000 per month. If this was taken in conjunction with the expenses Mrs. King incurs, which are referred to in her affidavit of means, it should be possible for her to repay the mortgage and live in a reasonable manner. 58. I have no doubt that the principals laid down in a Mullard v. Mullard are generally speaking valid. The difficulty though is that some creditors may not be prepared to wait for payment. I have in mind particularly the tax assessment of $139,000. There is no doubt in my mind that if that liability is not discharged timeously disastrous consequences will ensue. What has to be borne in mind in the present case is the necessity of Mr. King maintaining a relatively liquid position. 59. Were any of his major creditors to decide to proceed against him for immediate payment there would be nothing to stop them from taking action. If their claims were not satisfied within a reasonable period of time there is always the risk that they may file a bankruptcy petition against him. Mr. King stated in evidence that if he is adjudicated bankrupt this would automatically entitle his employers, Cathay Pacific, to terminate his employment with them. 60. This is an ever present risk and it is obvious that if this happened it would effectively mean that he would not be in a position to discharge his responsibilities to Mrs. King whatever order I make. The rule in Mullard v. Mullard is by no means and inflexible rule and it is clearly incumbent upon me to have regard to the overall situation. I am satisfied that this is not a case where the principle should be applied. 61. The other main stumbling block in reaching agreement along the lines proposed by Mr. King was the question of his Provident Fund with Cathay Pacific. Mr. Poll agrued that there was ample authority for making an order which would effectively enable Mrs. King to acquire a beneficial interest in the fund. He referred me in particular to Milne v. Milne(3) where consideration was given to making such provision. In that case, an order was made. 62. Mr. Poll suggested that in the present case it would be fair to apportion to Mrs. King an interest equivalent to three years' purchase in the Provident Fund. This would mean that when Mr. King left his employment with Cathay Pacific some capital monies would be available to her. 63. I have given anxious consideration to this submission. I have no doubt that I must treat the Provident Fund as a substantial asset which will accrue to Mr. King. I consider however that the correct approach to this problem is to endeavour to conceptualise the underlying purpose of the Provident Fund. The intention is to place Mr. King in a position that when his employment ceases, which cannot be later than when he attains the age of 55, he will have available to him sufficient funds to enable him to continue to maintain the life style he has enjoyed as an airline captain. I consider that the permanent nature of the commitment to continue making maintenance payments of a substantial part of his salary is of such a nature that it is not fair at this stage to make specific provision of a capital nature. What particularly weighs in my mind is the fact that Mr. King is presently aged 33. If Mr. King remains in the employment of Cathay Pacific until the age of 55 that would be 22 years hence. If the period had been substantially shorter, I might well have been disposed to treat this problem in a different way. There is also the question of the short duration of the marriage. Priest v. Priest(4) is authority for taking into account both the length of the marriage and the nature of the contingent interest in determining the extent of the amount if any which should be ordered. 64. As I have indicated, I have not been persuaded by the able submissions which were made by Mr. Poll. I think that it is therefore necessary to consider in more detail the implications of the open offer made by Mr. King. Mr. King called as a witness, Mr. Malcouronne who is a Chartered Accountant with Messrs. Peat Marwick Chartered Accountants. Mr. Malcouronne prepared three statements as schedules. The first showed his assets and liabilities. The second showed his financial position if Mr. King's open offer of 7th of November was accepted. The third set out particulars of his income and expenditure predicated upon the same premise. I think that it would be of value to extract these three schedules and produce them here in this judgment.
PRESENT FINANCIAL POSITION OF BRIAN LAWRENCE KING __________________ (Extracted from sworn affidavit of 18th October, 1986) ASSETS
LIABILITIES
FINANCIAL POSITION OF BRIAN LAWRENCE KING AFTER SETTLEMENT ON TERMS OFFERED ______________________________________ (Extracted from Hampton, Winter and Glynn letter of 7th November, 1986) ASSETS
LIABILITIES
MONTHLY INCOME AND EXPENDITURE STATEMENT FOR BRIAN LAWRENCE KING AFTER SETTLEMENT ON TERMS OFFERED (assuming 2 Bayview Villas, Sai Kung sold to pay Inland Revenue and part of legal fees) INCOME
DEFICIT OF INCOME OVER EXPENDITURE BEFORE ALLOWANCE FOR: (a) REPAYMENT OF HONGKONGBANK AND PARENTAL LOANS TOTALLING $241,090 (b) ANY PROVISION FOR $200,000 PAYMENT IN 1989 OR BEFORE 0 MRS. KING $ 6,636 ========== 65. It will be appreciated that some adjustments have been made to the figures in these schedules. The first and must obvious point being that legal expenses have been an ongoing commitment since the time when the schedules were prepared. I was told that the expenses for Mr. King were running at approximately $22,000 per day. Other adjustments were necessary in the statement of income and expenditure to reflect what the position would be if the various assets which can be realised are realised in good time. 66. Mr. Malcouronne was cross-examined by Mr. Poll on Schedule C. I am satisfied that if a settlement was concluded along the lines indicated Mr. King's income and expenditure would be fairly evenly balanced. The only factor which would not be provided for would be the necessity for Mr. King to put aside a monthly amount to enable him to effect payment of the capital sum of $200,000 in. three years' time. This would involve a commitment of somewhere between five and six thousand dollars per month. 67. Mr. Malcouronne obtained his data on the parties's expenditure from the respective affidavits of means which were filed. I have examined these in some detail. I am satisfied in overall terms that both parties have put forward expenses which could fairly be described as reasonable. I accept in each case that relatively minor economies could be effected. It is also clear that for both parties to live within the expenses referred to would necessitate a substantial diminution in the life styles they enjoyed while they were living together. 68. Mr. King's expenses have been provided for or a more generous basis than Mrs. King's. However, if Mr. King does in fact marry Mrs. Thompson, which he has stated is definitely his intention, he will have to take on substantial commitments including supporting Mrs. Thompson's two children. I would think that the additional commitments Mr. King will be taking on will be such that inevitably he will have to move to less luxurious accommodation than the Po Shan flat he is presently occupying. However the scope for savings is rather less than would be apparent at first sight as the lion's share of the rent is borne by Cathay Pacific in accordance with Mr. King's contract of employment with. them. 69. It is my understanding of the relevant legislation and case law that I am required to have regard to the overall situation and surrounding circumstances. I have given very careful thought to all matters which seem to me to be relevant. I have come to the conclusion that subject to the observations I will be making the offer contained in Hampton Winter and Glynn's letter of the 7th of November did constitute a fair and reasonable offer for provision for Mrs. King. I am mindful of the principles propounded in Wachtel v. Wachtel(5). In general terms, a lump sum payment should not be ordered unless a husband is of substantial means. Having regard to the observations I have already made concerning Mr. King's financial position I do not think that he can be regarded as a wealthy man. His only substantial asset at the present time is his very considerable earning capacity. 70. I consider that it is only fair to have regard to his net position rather than his gross position. The culminative effect' of all his liabilities, including his legal expenses, is essentially to swallow up all his assets. 71. Although the Sai Kung property is only in Mr. King's name I think that it is only realistic to proceed upon the assumption that Mrs. King does in fact have an interest in the equity by virtue of her assistance to Mr. King during the early part of the marriage. The only fair way of considering the two properties is to consider them together. 72. It will be noted under the proposals set out in Messrs. Hampton Winter and Glynn's letter, Mr. King would transfer to Mrs. King the United Kingdom property. I appreciate that the UK property is less valuable than the Sai Kung property even after deducting the mortgage charge on the property. It would be a fair settlement of the arrangements between the parties for Mrs. King to have the UK property and for Mr. King to have the Sai Kung property. I also consider that this fairly represents their respective equities. I would add that I think that it is fair that Mrs. King should be required to vacate the Sai Kung property by the 31st of January 1987. 73. I realise that making this order will have the unfortunate consequence of uprooting Mrs. King and the children. I do not see any alternative to making such an order. I do though consider it to be fair that a small lump sum should be payable to Mrs. King to meet moving expenses and any deposit of rent she is required to pay when arranging to live in alternative accommodation. I would accordingly order that Mr. King should pay in addition the sum of $30,000 on or before the 31st of January 1987 to meet this contingency. 74. The only major matter that remains outstanding is the payment of the capital sum of $200,000 referred to in the letter. I have decided that a substantial payment has to be made so as to compensate Mrs. King for the loss of the substantial benefits which would have accrued to her directly or indirectly under the Provident Fund. I think having regard to all the circumstances that the payment of $200,000 in three years' time would be a sufficient sum to compensate her for this. I accordingly order that this term of Hampton Winter and Glynn's letter should also be embodied in the order that I will be making. I further order that the Trustees of the Provident Fund be notified of Mrs. King's interest and such action as is necessary or possible be taken to charge the interest. I think that it is right that she should also get the Telstar Motor Car referred to in par. 2 of the letter and the rights and benefits referred to in par. 3, 4, 6 and 12. 75. This in effect means that I am adopting as my order, the terms set out in the said letter. I also order the payment of the sum of $30,000 for the removing expenses etc. when she vacates the Sai Kung property. The only term of the letter that I would not incorporate is the undertaking referred to in par. 11. There is no application before me for an order that Mrs. King should be prevented from interferring with Mr. King in respect of his employment with Cathay Pacific. Although I do not make an order in this connection, I hope that Mrs. King will see the good sense of not interferring in any way with Mr. King in his employment. 76. Fortunately, the parties were able to agree the terms of Mr. King's access to Gemma and Francesca. Accordingly it is not necessary for me to spell these provisions out in this judgment. Subject to any submissions which may be made by the parties, I would order that each party should bear their respective costs.
(1) [1976] FAM 335 (2) [1981] 3 FLR 330 CA (3) [1981] Times, 6 February, CA (4) [1978] C.A. 189 (5) [1973] FAM 72 Representation: Mr. Ian Payne inst'd by Hampton Winter & Glynn for Husband and 2nd Respondent Mr. Michael Poll inst'd by Robertson, Double & Boase for Wife | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||