Wkd v. Yl

cacv 58/2003

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 58 of 2003

(on appeal from FCMC NO. 6411 of 2000)

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BETWEEN

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Before: Hon Rogers VP, Le Pichon JA and Burrell J in Court

Date of Hearing: 16 June 2005

Date of Judgment: 16 June 2005

Date of Handing Down Reasons for Judgment: 24 June 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.I agree with the reasons for judgment of Le Pichon JA.

Hon Le Pichon JA:

2.This is an appeal from the judgment and order dated 31 December 2002 of HH Judge Gill made in proceedings for access and ancillary relief following contested divorce proceedings.  The appeal by the wife was limited to the maintenance order made for her in the nominal sum of $1 per annum.  As will become apparent, at the conclusion of the appeal, this court varied the order below relating not to the nominal sum awarded but to another part of the order.  Written reasons were to be handed down later which we now do. 

3.Before turning to the facts, it should be mentioned that the court was somewhat at a loss as to why it has taken 2½ years for this appeal to be heard.  Circumstances may well have changed during this period of time and if that were the case, an application to vary the original order supported by evidence rather than an appeal would have been the appropriate course. 

4.Mr Wu who appeared for the wife informed the court that the legal aid certificate was issued in July 2003.  Legal advice was sought but that was not forthcoming until March 2004.  The original hearing date fixed for January 2005 was, with the consent of the wife, rescheduled due to the unavailability of counsel for the husband.  I pause to observe that it seems surprising that a party challenging the nominal maintenance order on the basis that inadequate provision had been made for her should so readily agree to a six-month postponement of the appeal hearing.

The facts

5.The parties married in 1996.  The marriage was short lived: it lasted only four years.  Currently, the husband is 46 and the wife 38.  The wife has custody of the only child of the marriage, a son born in December 1998.  During the course of the marriage, the husband met all the family’s outgoings.

6.The husband is an assistant professor with monthly earnings including consultancy fees totalling approximately $140,000.  A gratuity of about $330,000 was due to be paid in December 2003 but as from January 2004, his housing allowance of $26,580 per month was to cease.  He is the owner of seven properties which at the time of the hearing were worth just over $7.5 million but approaching $7 million was owing on mortgages.  His mother who is 79 and blind is wholly dependent on him for support.  Shortly before the hearing below, the husband revealed a relationship with his wife-to-be, that a child had been born of that union in March 2002, that both were supported by him and living in an apartment he owned in Zhuhai.  His expenses including mortgage repayments of about $70,000 a month were put at $154,100 which, it is to be noted, exceeded his income by some $14,000.  

7.The wife who came to Hong Kong in 1990 became the director of a family company in 1994.  The judge found that she had no equitable interest in that company: she was paid $15,000 a month and a further $15,000 on an ex gratia basis.  Prior to that she had undertaken various jobs in Hong Kong.  The company has since ceased trading. 

8.At the outset of the trial, the parties agreed that the son should complete his primary education in Tianjian, that the wife would make her family seat at Tianjian City their home for the next few years but that the summer and winter school holidays would be spent in Hong Kong during which time the husband would have access (including staying access) to the son. 

The order below

9.The wife sought maintenance at $35,950 for herself and $12,500 for her son per month.  In the course of the hearing, the husband undertook to pay for the cost of flying the wife and the son to and back from Hong Kong twice per year and to meet the cost of such courses the son might be enrolled in whilst in Hong Kong during the holidays.

10.On the basis of the undertakings mentioned above, the judge ordered the husband to pay to the wife nominally $1 per annum and $10,000 per month for the son until his 18th birthday or cessation of full-time education whichever is the later.  As regards access, he ordered that there be access to the husband including staying access during the two long holidays of the school year, that the husband make available to the wife during these visits accommodation at her election either at 5G Fu Shing Court or Hong Kong Garden where the husband resides, sharing the accommodation with him. 

11.As noted above, the appeal was limited to the nominal maintenance payment.  At the conclusion of the hearing, the order below was varied to the following extent: the husband was ordered to pay the wife an allowance of $10,000 per month for the duration of her visits to Hong Kong with the son up to a maximum period of three months on a pro rata basis.  It was also ordered that there be no order as to costs save that the wife’s own costs be taxed in accordance with Legal Aid Regulations. 

This appeal

12.The maintenance sought by the wife before the judge was based on her estimated monthly expenditure which included fees of the medical school in which she was intending to enroll of $3,000, a contribution of $10,000 to support her parents, medical expenses for herself and her child of $3,000, insurance of $8,000 and air travel averaging $3,000. 

13.The husband’s undertaking had effectively taken care of the air travel costs sought by the wife.  As regards the other items of prospective expenditure, the judge found that the wife had no obligation to provide support for her parents whom he found to be financially independent.  There was ample evidence in support of that conclusion which is not challenged on this appeal.  The judge considered the wife’s claim to be “considerably overstated”, commenting (at paragraph 37) that:

“if she chooses to return to school that is over to her; but it is not an expense for the husband.  Nor is insurance, excessive in the circumstances.  I have already commented on the support she wants to pay her parents.  She has earned in the past.  My order is based on her capacity to continue to do so, or otherwise bear the consequences herself.”

14.Mr Wu who appeared for the wife took issue with the judge’s approach: he submitted that the judge failed to pay sufficient regard to the matters set out in section 7(1) of the Matrimonial Proceedings and Property Ordinance, Cap. 192, that it was wrong for him not to have provided for the wife’s basic needs since throughout the marriage the husband had met all the family expenses and had given the wife an allowance although the exact amount was disputed.  But under section 7, the parties only get what they need.  In making his order, the judge first considered the husband’s financial resources and commitments.  He came to the conclusion that the husband could make economies, that it was incumbent on him to cut back on certain expenditure such as relinquishing his membership of a private club, selling his car and calling upon his elder brother to assist in the support of their mother.  The judge plainly accepted that the husband had to prune back his expenses in order to provide the support to be paid under the order the judge was proposing to make. 

15.Whilst having reservations as to whether the evidence of both parties was sufficiently full and frank, the judge did accept that the husband did not have ‘spare’ income for otherwise the need for him to prune his expenses would not have arisen.  The husband was ordered to pay maintenance for the son of $10,000 per month, and in this regard, it has to be borne in mind that the evidence was that the wife “got by” on $8,000-$9,000 per month for herself and her son during the 11 months spent in Tianjian from May 2000 to April 2001 which had been funded by the wife’s father.  Although the sum of $10,000 per month was earmarked for the son, given his tender years, it is a fact that certain expenditure incurred for the maintenance of the son would necessarily also benefit the wife who had custody of the son.  In those circumstances the judge considered that the wife, being in her thirties, could earn her own living.  After all, she had worked at different jobs whilst living in Hong Kong and although the family company had ceased to trade, there was no reason to believe that she could not deploy her skills elsewhere.  For my part, I do not consider that the judge’s approach has been shown to be wrong.  In my view, he was perfectly entitled to take the view that the wife was capable of earning her own living.

16.As noted above, it is now 2½ years since the order was made.  Matters would have stabilised during this period.  Circumstances may well have changed.  If, indeed, the wife has been unable to procure work in Tianjian, that would be a circumstance that might support an application to vary the order.  But that is not a matter for this court. 

17.There is, however, one matter that causes some concern.  The arrangement for access requires the wife to come to Hong Kong with the son twice a year for up to a total period of three months during the school holidays.  Whilst provision has been made for her accommodation and additional fees for the son in terms of courses in which he might be enrolled, no provision has been made for the additional expense the wife will inevitably have to incur during her stay in Hong Kong given the disparity in the cost of living between Hong Kong and the mainland.  In this respect, the judge appeared to have overlooked the need to provide for this additional expenditure.  In all the circumstances, an allowance of $10,000 per month up to a maximum of three months on a pro rata basis during the period the wife is with the son in Hong Kong would be appropriate. 

18.I would only add that the variation made is very much an interim measure since it would appear that circumstances may well exist that would merit an application to vary the order made below.  Given the relatively short duration of the relationship, a clean break may be preferable if the current financial circumstances, such as the extent of equity the husband now has in the 7 properties he owns, enable that to be achieved.  But whether or not an application to vary be made is, ultimately, a matter for the wife and her legal advisers.

Hon Burrell J:

19.I agree.

Mr Russell Coleman, instructed by Messrs Edward Lai & Co., for the Petitioner/Respondent

Mr Paul K N Wu, instructed by Messrs Tsun & Partners, for the Respondent/Appellant