Read the full judgment text of CACV 000075/2004 on BabelCite. This Court of Appeal judgment was delivered on 13 September 2004 before Hon Woo VP and Hon Cheung JA.
Civil Appeal – Maintenance Pending Suit – Matrimonial Proceedings and Property Ordinance (Cap. 192) – Assessment of Income – Child Maintenance – Appeal Allowed – Each Party Bears Own Costs – Petitioner wife (LAML) applied for maintenance pending suit for herself and two children against Respondent husband (TCCY) – Judge dismissed wife’s application but ordered husband to pay each child $10,000 per month – Husband appealed on grounds that income assessment was erroneous – Court held judge erred in assessing husband’s income at $35,000 per month – Basic salary confirmed at $24,090 per month – Reimbursements for entertainment, travel and telecommunication expenses excluded as business out-of-pocket costs – Overtime and hardship allowances included – Company profits from E-Tonex Company and Cantech Holdings Ltd considered but depreciation and expenses deducted – Tax demand supported assessable income of $380,601 for year 2002/2003 – Income re-assessed at $30,000 per month – Husband’s expenditure assessed at $14,350 per month – Wife’s income $41,910 per month with expenditure $37,466 per month – Court applied broad brush approach for interim provision – Total available income for children maintenance calculated at approximately $20,000 per month – Maintenance reduced to $8,000 per child per month – Daughter living with grandfather in Toronto, son living with mother in rented accommodation – Costs order varied to each party bear own costs of appeal and hearing below – Principles under section 3 and section 5(1) of Matrimonial Proceedings and Property Ordinance (Cap. 192) applied – Factors under section 7(1) and section 7(2) considered including income, needs, standard of living and contributions – Authorities cited include Rayden & Jackson on Divorce and Family Matters 17th Ed. Vol. 1 Para. 21.6, Yung v. Yung (Civil Appeal No. 201 of 1985) and Wong Wai Chi Susanna v. Kim Min Sup Mark (CACV 263/98) – Court emphasized that unless judge was plainly wrong, discretion would not be interfered with – Re-assessment required as income figure not supported by evidence – Husband’s available income after expenditure supports $16,000 per month for children – Wife’s available income contributes to total – Children’s total maintenance reduced to avoid undue hardship – Parties married in 1983 in Toronto, Canada – Returned to Hong Kong in 1990 to 1991 – Divorce proceedings pending – Custody of daughter given to wife – Daughter studying in Toronto – Son aged 13 living with mother – Husband employed as Assistant Sales Manager – Wife employed as planning manager – Both university graduates – Court noted that conduct factors under section 7(1) unusual to find in maintenance pending suit applications – Focus on reasonable needs and ability to pay – Interim provision not requiring detailed investigation of financial positions – Judgment delivered by Hon Cheung JA giving judgment of the court – Heard by Hon Woo VP and Hon Cheung JA in Court – Date of Judgment 13 September 2004
Legal issues: Assessment of Husband's Income · Maintenance Pending Suit for Children
Outcome: Appeal allowed; maintenance for children varied from $10,000 to $8,000 per child per month.
Cited by 8 cases