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FCDJ 8388 of 1993
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES
NUMBER 8388 OF 1993
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BETWEEN
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LCK |
Petitioner |
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WMDGL |
Respondent |
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Coram : Deputy District Judge H F Woo in Court
Date of Hearing : 11th –13th July 2005, 26th July 2005 and 19th October 2005
Date of Delivery of Judgment : 19th December 2005
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J U D G M E N T
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I. Applications in Question
There are 3 applications before me :-
(a) Judgment Summons issued by the Respondent on 8th March 2004 and 11th July 2005 against the Petitioner (to be examined on oath as to his means he has or has had since the date of the Order made herein by Deputy Judge Winston Leung on 18th August 2000 (“the Maintenance Order”)) for payment of maintenance and for showing cause why the Petitioner should not be committed to prison for such default;
(b) Application by the Petitioner on 26th March 2004 for variation of the Maintenance Order of US$4,500 payable to his exwife (“the Respondent”) and his daughter (“G”); and
(c) Application by the Respondent for variation of G’s maintenance upwards on 21st July 2004. However, such Application had been withdrawn before the hearing commenced.
II. Background
1.The Petitioner and the Respondent were married in Hong Kong on 23rd May 1981. They have one daughter, named G who was born on 13th September 1983. She is now 22 years old. In 1990, the Respondent and G immigrated to the United States of America and they are now citizens there. Between 1990 and 1993, the Petitioner visited the Respondent in U.S.A. and in July 1993, the parties decided to live separately and apart from each other. On 20th December 1993, the Petitioner petitioned for divorce on the ground of five year separation since 17th June 1988. The Respondent filed an Answer denying the separation.
2.By consent, it was ordered on 20th October 1995 that the Petitioner do pay a monthly sum of US$3,500 to the Respondent and G as maintenance pending suit.
3.On 23rd November 1995, a property situated at Hong Kong (“the Property”) was purchased under the name of a company called GTHL (“GT”) for a consideration of HK$3,000,000. The shareholding of GT is one share held by the Petitioner and 9,999 shares by his present wife (then his girlfriend), WWF (“R”). The size of the Property was about 560 square feet and was later used as their matrimonial home.
4.The divorce proceedings were withheld for a while, until the said petition was amended to the ground of divorce based on 2 year separation without consent in 1997.
5.The Petitioner in 1997 was in arrears of maintenance payments, judgment summons and application to vary the maintenance order were issued by the respective parties. After hearing, the interim order was retained as it was and the Petitioner was ordered to make up the arrears.
6.On 9th February 1999 the Decree Nisi was pronounced.
7.Upon an application by the Respondent for ancillary relief in the form of periodical payments and lump sum payment, the Petitioner declared in the hearing of the relevant application in 2000 that his average income was about HK$30,000. He claimed that his (then) girlfriend who is now his wife R was very supportive of him both financially or otherwise, and he has never contributed any money to the Property owned by GT of which they were both directors and shareholders. The monthly repayment made by R of the Property was about $20,615. The evidence did not support that the Petitioner has contributed 50% of the mortgage of the Property. Deputy Judge Winston Leung delivering his judgement on 18th August 2000 (“2000 Judgment”) found, inter alia, that :-
(i) The Respondent had failed to prove hidden fund or undisclosed income of the Petitioner. The sources of income came only from SC Clinic and TW Medical Centre. Having taken a broadbrush approach, $50,100 was accepted to be the Petitioner’s average income. The Petitioner should be very generous to have offered to pay US$4,500 (HK$35,100);
(ii) Even if the Petitioner’s gross income as suggested by the Respondent were $63,000 per month, HK$35,100 is still a generous maintenance in the circumstances; and
(iii) US$4,500 per month is all the Petitioner can afford to pay to the Respondent and their daughter, G.
8.The Property was not taken into consideration for various reasons. It was ordered in the Maintenance Order by Deputy Judge Leung, inter alia, that as from 1st September 2000 the Petitioner is to pay the Respondent periodical payment in the sum of US$2,500 per month as maintenance for G until she attains the age of 18 or until she finishes her full-time education, whichever is later and US$2,000 per month as maintenance for the Respondent (“2000 Maintenance Order”).
9.The Decree Absolute was granted on 14th September 2000.
10.On 7th November 2000 the Petitioner married R.
11.It is not disputed that the maintenance of US$2,500 per month for G has not taken into consideration her university school fees. When G was due to be admitted to the university, the Respondent asked the Petitioner to increase the maintenance to provide the school fees but such was refused. As a result, the Respondent claimed that G had to withdraw her admission into the B University a private university and was forced to move to University of CD (“UCD”) a states subsidised university in 2001.
12.R used to be a cabin crew working for JA since 1986. She retired from her employment in May 2002. According to the Petitioner, R has not worked since then except helping the Petitioner at his SC Clinic for a while. In the beginning of 2003, R became pregnant and she gave birth to a boy, named W (“W”) on 25th November 2003.
13.Since the beginning of 2003, the Petitioner has in breach of the Maintenance Order failed to make full payment of the monthly maintenance of US$4,500 for the Respondent and G. As from January 2004, the Petitioner ceased all payments. Up to July 2005, the total amount outstanding was US$104,000. A breakdown of the amount paid and outstanding is set out in “Exhibit R1” by the Respondent and was accepted by the Petitioner to be accurate.
14.On 25th February 2005, the Petitioner entered into a Deed of Separation with R. The Petitioner claimed that since February, he has lived separately and apart from R but would go home from time to time. Under the said Deed, the Petitioner offered to pay R HK$20,000 per month as periodical payment for R and W commencing from 1st March 2005.
15.On 17th June 2005, the Petitioner petitioned for his own bankruptcy. In the Statement of Affairs annexed to the Debtor’s Bankruptcy Petition, the Petitioner claimed to be indebted to Inland Revenue Department for HK$334,659. On 2nd August 2005, he was declared bankrupt. There was no joinder of the Official Receiver, nor any issue raised.
III. The Laws
1. The Law on Enforcement of Maintenance Orders
The enforcement of orders is by way of Judgement Summons issued pursuant to Rule 87 of the Matrimonial Causes Rules (“MCR”). Under Rule 87 (5) of MCR, it was provided that “on the hearing of the Judgment Summons, the Judge may make an order for commitment of the Judgment Debtor if he fails to show cause why he should not be committed to prison”. In other words, if the Court is satisfied beyond all reasonable doubt that the Judgment Debtor, namely the Petitioner in this case, has failed to give any good reason why he has not complied with the Court Order, the Court may commit him to prison.
2. The Law on Variation of Maintenance Orders
The Petitioner’s application for variation of the Maintenance Order was made under Section 11 of the Matrimonial Proceedings and Property Ordinance (“MPPO”). Pursuant to Section 11 (1) and (2) of MPPO, the Court has power to vary or discharge a periodical payment order made in favour of the wife under Section 4 (1) (a) or in favour of the child under Section 5 (2) (a). Section 11 (7) of MPPO provided that “in exercising the power conferred by this Section, the Court shall have regard to all circumstances of the case including any changes in any of the matters to which the Court was required to have regard when making the Order to which the application relates …… ”.
IV. The Issues
1. In respect of the variation downwards of the Maintenance Order, the issues are as follows : -
(i) Whether there should be any variation downwards of the Maintenance Order for the Respondent and G.
(ii) If yes, the amount to be reduced.
(iii) The date from which the said reduction should take place.
2. In respect of the Judgment Summons, the issues are as follows : -
(i) Whether the Petitioner has the ability to pay in full of the Maintenance Order.
(ii) If not, whether he is able to pay in part of the Maintenance Order during the period of divorce.
(iii) If yes, whether the non-payment is deliberate and whether the Petitioner should be committed to prison for acting in breach of the Maintenance Order.
V. The Petitioner’s case
1. The Petitioner claims that he is unable to pay maintenance pursuant to the Maintenance Order on the following grounds :-
1.1 Substantial reduction of his income from his practice;
1.2 Rowena has retired from her employment as a cabin crew and has no income, and therefore, she is not able to assist him in making payment of the maintenance; and
1.3 His expenses increased as a result of the birth of W.
2. He is heavily indebted to the Inland Revenue for additional income tax. As a result, he has petitioned for bankruptcy.
3. He claimed that he did not know that he had to pay maintenance pursuant to the Maintenance Order after he had made application for variation of maintenance downwards.
4. The Petitioner accepted that the Respondent has no income and earning capacity. Although in 2000 he accepted US$4,500 was required for reasonable needs of the Respondent and G, he is now disputing about the necessity for the Respondent and G to live in 2 separate accommodations in the same city.
VI. The Evidence for the Petitioner
1. The Petitioner’s income and earning capacity
1.1 The Petitioner was born on 11th March 1951 and is now aged 54. He is a registered chiropractor practicing in Hong Kong since 1981. He received educational training and qualification as a doctor of chiropractic in LAC College in U.S.A. He started his clinic under the name of Dr CKL at the clinic situated at Hong Kong (“the SC Clinic”) in 1981. In the same year the parties herein were married. The Respondent has been a full time housewife since the marriage and the Petitioner is still running his practice at the SC Clinic.
1.2 Apart from operating the SC Clinic, the Petitioner has operated other clinics. From May 1998 up to November 2003, he worked at NTW Medical Centre in TW (“NTW”) on a profit sharing basis. Pursuant to the consultancy agreement dated 9th November 1999 entered into between CB Limited (“CB”) and GT, the Petitioner is to provide chiropractic services at NTW on Monday, Wednesday and Friday from 10:00 a.m. to 3:00 p.m. and on Tuesday and Saturday from 2:00 p.m. to 6:00 p.m. CB and GT were to share the profits with 55% to GT and 45% to CB. Since 1st December 1999, all the income arising from the Petitioner’s work at NTW were paid to GT.
1.3 From June 2003 to May 2004, he also worked at LH Centre operated by LHM Ltd (“L”).On 29th May 2003, the Petitioner entered into a License Agreement with LHM Limited to operate chiropractic service. His working schedule was Monday, Wednesday, Friday, 9:00 a.m. – 11:00 a.m. and 7:00 p.m. – 9:00 p.m. (by appointment); Tuesday, Thursday, Saturday, 12:00 noon – 3:00 p.m. and 7:00 p.m. – 9:00 p.m. (by appointment); Sunday and Public Holiday, 2:00 p.m. – 5:00 p.m. (by appointment). The Petitioner was to pay 50% of his income as License fees to the management.
1.4 Between June 2003 and November 2003, the Petitioner was operating chiropractic service at three clinics, namely the SC Clinic, NTW and L; and had three sources of income.
1.5 The Respondent’s solicitors has compiled a Schedule of the Petitioner’s income from the three clinics for the period from January 2003 up to June 2005 (Annexure ‘C’ of the written submission of the Respondent’s solicitors and Exhibit R5). This Schedule was prepared according to the evidence and information provided by the Petitioner. The SC income was calculated basing on the amount stated on the patient record availed. The income from NTW was calculated basing on the monthly income statement provided while the income from L was based on the credit note produced and in accordance with the deposit in the Petitioner’s WLB account no. (“LWL A/C”) the account which the Petitioner opened for the purpose of depositing the income from L.
1.6 Although no admission is made that the income stated in the Schedule is the actual income of the Petitioner, its accuracy and truthfulness are not disputed nor otherwise challenged by the Petitioner. This Court will therefore accept the calculation to be accurate and treat the same as the income of the Petitioner during that period of time.
1.7 The total income of the Petitioner for the year 2003 hence was HK$1,002,016.51 i.e. HK$83,501.37 per month, while for the year 2004, the total income was HK$715,676.20, i.e. HK$59,639.68 per month and from January 2005 to June 2005, the total income was HK$287,200.00, i.e. HK$47,866.66 per month.
2. The Respondent’s submission
(i) The Respondent has doubt about the Petitioner’s assertion that since his professional services at L was terminated on 7th May 2004, his only source of income came from the SC Clinic.
(ii) The Respondent questioned the Petitioner : (a) as to his being a very resourceful person of not finding working arrangement with other clinics upon his termination of service with L in May 2004 and doing nothing but to let his income decreases; (b) as to the cheques deposited into LWL A / C after the close down of L in January 2005; and (c) as to his failure of revealing his income by selling NUL products from U Ltd and a new account having been opened to receive income from this source.
(iii) A close analysis of the Petitioner’s income pattern from January 2003 to June 2005 (as set out in Annexure ‘C’), was presented by the Respondent. It is said that the Petitioner’s income from SC Clinic is very steady. He received HK$668,940.00 in 2003, i.e. HK$55,745.00 per month and HK$688,310.00 in 2004, i.e. HK$57,359.00 per month.
(iv) For year 2003 and 2004, the Petitioner has spent half of his time working in NTW and / or L. This means that the Petitioner could earn an average income of HK$55,000.00 to HK$57,000.00 by working half of the time. From the patient record of SC Clinic for the period from June 2004 (when he alleged that he only worked in SC Clinic) up to May 2005 for most weeks of the month, he worked only 1/2 day. Therefore, the Petitioner has in fact a lot of free time to expand his business or to go into side business.
(v) The average income for the year of 2003 and 2004 of the Petitioner was slightly higher than those he was found to have, when the Order was made in 2000. The Respondent said there was no decrease in income / financial resources which warranted a downward variation of maintenance.
3. The Court’s finding/ruling
(a) The income from selling NUL product in this account is minimal. There is no evidence to show that the Petitioner has deliberately hid this account with an intention to use it to receive money which he did not want to disclose. The Court accepts that the Petitioner was a very resourceful person and he grabbed opportunities and took active steps in promoting his business in the past. It was not too long ago that he was working in 3 clinics at one time. Had he tried harder, he would have found other additional sources of income. The Court will allow him 6 months to make arrangement with other clinics for providing services and to augment his income. He is to file an Affidavit by 30th June 2006 showing efforts made in the previous 6 months to achieve this purpose. The Court will then be in a better position to consider and to review his earning capacity and actual income in due course.
(b) Although the Petitioner by working ½ of his time could yield an income of $55,000, it does not follow that his income would have doubled up had he worked full day.
(c) For proper management of his clinic the Court could find no fault of the Petitioner’s arrangement to group his patients to attend his clinic during particular span of time in a day. Furthermore by so doing, he would have more time for side business, if any.
(d) The Court accepts that cheques deposited into the LWL A / C between June 2004 and January 2005 were remittance from the X-Ray Laboratory of referral fees of patients.
(e) From the first 6 months in 2005, the Petitioner had an average income of $47,866 per month showing a decline in his monthly income. The low average was attributed to by the exceptionally low income of $23,800 in February 2005 and $28,800 in June 2005. It is not accepted that the Petitioner could afford deliberately reducing income for a long period of time during which he could otherwise have earned in normal circumstances. The Court however does not exclude the possibility that he might have done so in June 2005 in order to support his application for downwards variation. As such the Court will not include this month’s income for consideration but the low income of $23,800 in February 2005 which may be mainly due to the annual festive seasons.
(f) From January to June 2005 there were 3 months namely January, March and April in which the Petitioner’s monthly income was over $60,000. It cannot be said that the Petitioner’s income had substantially decreased but the Court finds the Petitioner’s average income in the first five months of 2005 to be $52,000 approximately.
(g) According to the Petitioner, his income in 2000 was about HK$30,000.00 and he relied on R for support. The Petitioner alleged that R made about HK$30,000 per month. However, according to the findings of Deputy Judge Winston Leung, his income in year 2000 was in the region of HK$50,000.00
(h) It may be true that there was no decrease in income but R retired from her job as airhostess in May 2002. At the time of her retirement, her monthly income was $26,821. Thereafter she was helping the Petitioner in his SC Clinic, and in return she was paid $6,000 per month. All income from NTW were paid to GT A / C which were and had been used to repay the monthly mortgage of the Property.
4. The Petitioner’s health condition
The Petitioner claimed that he has a medical problem of high blood pressure and diabetes so that he may not be able to work long hours. There is no doubt that he is having such health problem, but there is no medical evidence to support that he is unable to work full time and that his medical condition has affected his earning capacity.
5. The Petitioner’s expenses and outgoings
(a) The Petitioner claimed that his expenses has increased since the Maintenance Order; and therefore he asked for reduction of maintenance. In the 2000 Judgment, Deputy Judge Leung did not make any findings of what the Petitioner’s expenditure was. The Maintenance Order was based more on the needs of the Respondent and G. The Petitioner accepted that the needs of the Respondent and G required US$4,890.00 but offered to pay US$4,500 which the Court found to be what he could afford.
(b) The Petitioner set out his basic expenditure in his 1st Affirmation (dated 25th March 2004) as HK$51,528.00 as follows :
Particulars Amount (HK$)
Household 6,000
Mortgage payment 26,300
Rates 1,750
Management fees 1,188
CLP 500
China Gas 250
Domestic maid (mother) 4,170
Domestic maid for the family 3,270
Baby milk powder 600
Diapers 500
Baby (medical) 500
Baby (miscellaneous) 500
Baby (clothing) 1,0000
Travelling and MTR 2,000
Miscellaneous 3,000
_________________________________________
Total 51,528
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(c) According to the Petitioner, the above were his expenses until he separated with Rowena in February 2005. The Respondent thought that such monthly expenses is highly excessive and does not represent the basic expenditure of the Petitioner. Moreover R should contribute towards most expenses.
(d) The Petitioner claimed financial difficulties and he is living beyond his earnings. It is the Court’s view that some of the expenses claimed should be cut down and money should be used wisely and economically. “The husband must cut his cost appropriately in light of his responsibilities to his first family” (Moon v Moon (1980) 1 FLR 115).
When one could not maintain the same level of living standard due to the financial burden, one should make sacrifices and compromises. The Court will judge according to a reasonable person being placed at the position and situation of the Petitioner. The Court accepts that certain expenses were excessive and not necessary, but to ask R to contribute towards these expenses when she has retired and not been receiving any income would seem to be unfair.
(e) The following calculation is considered by the Court to be reasonable and necessary for the Petitioner and his 2nd family in light of the circumstances before his separation with R.
(i) Household : $6,000 to $3,000
The Petitioner claimed that it represents a $200 daily expenses on food. For a family of two $100 per day on food is reasonable whereas $200 per day may be excessive. But when he separated with his wife in February 2005 and moved to live with his mother, the Court would allow him $2,000 per month for this purpose.
(ii) Mortgage payment : $26,300 to $18,000
It is the duty of the sole-breadwinner of the family to provide accommodation for his family. This Court will not object his paying for the mortgage loan for his wife’s property if he is in a well off financial position.
But to use almost half of his income to pay for monthly instalment of the Property which he claims to be R’s is unjustifiable, especially when he could use only $18,000 or less to rent a flat (with furniture) of equal quality and size.
(iii) Rates, Management Fees and Utilities : $3,680
If the Petitioner lived in a rented flat he would probably though not necessarily have the landlord to pay for the rates and / or management fees, but these expenses were all necessities of living. There are no grounds to refuse such claim.
(iv) Domestic Maid (Mother) $4,170 to $0
The Petitioner’s mother is the registered owner of the flat at OR in TST. Such premises are divided into front and rear portion. Part of the flat could be rented out to generate income. There is no legal duty required of the Petitioner to provide for his mother, and there were no exceptional circumstances which justified such provision to have priority over a maintenance order. This item is accordingly not allowed.
(v) Domestic maid for the family : $3,270 to $0
Rowena has been a housewife after her retirement in May 2002. The Petitioner is paying $6,000 for her helping in his clinic and has engaged a full time maid at home at $3,270 whereas he could have engaged a part time receptionist for less than $3,000 and at the same time the wife could have stayed at home as a full time housewife. The Court sees no necessity of employing a maid in such circumstances.
(vi) Expenses for Baby : $3,100 to $2,300
The Court will allow $1,600 on milk powder, diapers and medical fee, but baby’s miscellaneous and clothing expenses of $1,500 is excessive. It is to be reduced to $700.
(vii) Travelling and MTR : $2,000
This expense would include the maintenance fee of the Petitioner’s car. He may need the car for family travelling also. The Court will allow this sum.
(viii) Miscellaneous : $3,000 to $2,000
$2,000 is allowed for his personal expenses, including meals out of home, clothing, entertainment and etc.
The basic expenditure of the Petitioner should be $30,980 at that time.
(ix) Business Expenditures
As far as the expenditure he incurred in running his business at the SC Clinic, the Court will allow the following items having considered the Petitioner’s evidence
Rent $7,000
Part time helper $2,500
Utilities $2,000
Non medicated $1,800
Substance and
Miscellaneous
__________
Total $13,300
Surplus Income
With an average monthly income of $71,570 for the year of 2003 and 2004, the Court accepts that the Petitioner should have surplus of about $27,290 (US$3,520) per month to pay the maintenance for the Respondent and G. It is the evidence of the Petitioner that he was able to pay US$1,000 during 2004 and after W’s birth.
(f) Deed of Separation
According to the Petitioner, he has been living separately and apart from R since February 2005 and he is living with his mother at her OR property. There is no evidence that he is required to pay rent to his mother. The Petitioner admitted that he had stopped payment of the mortgage repayment, management fees, rates, utilities and gas of the Property as well as the expenses relating to W and the domestic helper of the family but he agreed to pay R HK$20,000 per month from March 2005 onwards under a Deed of Separation. Having fully considered the present situation of the Petitioner, the following expenses on the Petitioner are allowed :
Household / food : $2,000
$2,000 is allowed for this purpose.
Rates / management fee / utilities : $1,500
There was no documentary evidence on the sum incurred as expenses under this heading, however the Court will allow the Petitioner’s $1,500 to account for his share of these expenses.
Domestic maid (mother) : $3,270 to $1,635
A maid was employed for the main purpose of looking after the Petitioner’s aged mother and also to do the house chores. The Petitioner is living with his mother and may have benefited from the service provided by the maid. It is fair for the Petitioner to pay for half of her salary which is $1,635.
Travelling : $1,200
The fact that the Petitioner no longer keeps his car and he is now a bankrupt helps to reduce his expenses in travelling. $1,200 seems to be reasonable under such circumstances.
Miscellaneous : $2,000
The amount allowed under this heading remains unchanged.
The basic expenditures of the Petitioner should now be $8,335.
Business Expenditures
The Court was not made aware of any substantial change in the Petitioner’s business expenditure, which will still be about $13,300.
Surplus Income
Based on his average income of $52,000 for 2005 after deduction of his personal and business expenses, the Petitioner still has the surplus of about $30,365 to be split between his 1st and 2nd family.
6. The Petitioner’s liability towards R and W
(a) The Respondent submitted the principle on remarriage as follows :-
“Remarriage by a person against a person whom an order for periodical payment had been made does not terminate the order or itself entitle that party to a reduction in the amount ordered. On general principle, a spouse (R in this case) must on marriage presume to take the other spouse subject to all existing encumbrances whether known or not; such as an obligation to support the wife and / or child of a prior dissolved marriage”.
It is said when R married the Petitioner, she has full knowledge of the financial obligation the Petitioner has to the Respondent and G and must therefore take him subject to their needs. The Respondent argued that the Petitioner’s liability to her and G should take priority over the second family, the Petitioner should only make payment to R after he has satisfied his obligation under the Maintenance Order for her and G.
(b) Although the Court cannot ignore the just claims of the first wife because the man has taken on himself other obligations (see Cockburn v Cockburn [1957] WLR 1020), the Court has to take into account of other obligations as involving a reduction in the capacity of the man to pay for the upkeep of his first wife. The former wife’s position relating to a bankrupt may be considered in light of Lam Cham Ho HCB 843/98.
(c) Financial resources from
The Court will consider the financial resources of the second wife, R. She used to work as an air-hostess with JA. After she retired in May 2002, she was helping the Petitioner in his clinic part time. According to the Petitioner, she is a hard working person. Since her retirement, she attended courses on computer and French to improve and excel herself. Certificates of these courses were produced. She is 40 years old and 14 years younger than the Petitioner and should be able to work again. The Petitioner claimed that he has not been supporting her in full since separation.
(d) There are no justifiable circumstances for the Court to allow the Petitioner to pay almost 2/5 of his gross income to maintain the 2nd family and with no or little money to account for the maintenance of the 1st family under a Court Order.
(e) The Respondent also submitted that “In some cases, the husband’s income increases after his remarriage. Even the second wife’s income or assets cannot be taken into account as part of the husband’s income or assets, which is valuable for distribution to his former wife and children. However, the Court should take it into account when undertaking the “net effect” calculation so as to determine the residual income of the respective household after payment of the hypothetical order by the husband (Whitfield v Whitfield [1986] 1 FLR 99 – the Court will assume the second wife to make an appropriate contribution from her income to the outgoings of the husband’s household)”.
(f) The Petitioner revealed that after separation R is keeping a domestic helper and his car. She is paying the monthly mortgage instalments on the Property. R was not called to testify. There is no evidence to show whether or not she is currently employed, or how much pension she received upon retirement in 2002 and what the expenses were for her and W after separation.
To be able to maintain such living standard, R should have resources of her own. Undisputably she has the capacity to rejoin the work force. In any event, she should make contribution to the outgoings and the keeping of her family.
VII. The Respondent’s Case
1. The Respondent
The Respondent was born in Macau and she is now aged 54. She was trained to work as a Court reporter but had given up her career after she married to the Petitioner. Since marriage and even after she migrated with G to USA, it is not disputed that she has been totally dependant upon the Petitioner financially. In about 2001, shortly after the Respondent and G settled down in DC, the Respondent often felt sick. The severe pain over her shoulders has affected her daily living and working capacity. As the Petitioner has defaulted in payment of the maintenance, she was deprived of the opportunity to receive proper treatment and could no longer afford the rental of the apartment situated at D. Since March 2004, she has been living in various locations at her relatives’ home.
She has been relying on loans from her nephew, namely ADG (“A”)” and BdDG (“B”), for the support of herself and partly for G. As of May 2005, the Respondent has borrowed a total of US$90,899.12 from A and US$24,000 from B.
The expenses of the Respondent are set out as follows :
Description Amount (US$)
Rental 825
Public Utilities 95.95
Telephone 74.41
TV Fee 57.20
Car Insurance 94.25
Gasoline & Car Maintenance 300
Groceries & Household 800
Clothing 100
Credit Card Payment 445
___________
Total 2,791.81
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but she is prepared to accept US$2,000 per month.
2. G
G is the only child of the parties. She is now aged 22. She is a full-time student with UCD. G was emotionally disturbed by the parents’ dispute and to certain extent her performance at school was affected. She has not been doing well academically. G is due to graduate in December 2005, but she may have to enrol some extra courses if she fails in some courses.
As the Petitioner has not provided any maintenance for her support, G has taken up some part time job. Her income is negligible and the Respondent has not taken issue of the amount. In any event, she should not work but study “full time” to improve her grades.
The expenses of G is set out as follows :
Description Amount (US$)
Rental 815
Public Utilities/Telephone/TV/ 200
Internet charge
Groceries and Household 800
University Fee 629.70
Books & Reference Materials 200
Transportation 100
Clothing 100
Meals out of home 100
Entertainment and Miscellaneous 200
____________
Total 3,144.70
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But the Respondent is prepared to accept US$2,500 per month as G’s maintenance.
3. The Petitioner’s Submissions
The Petitioner alleged that the Respondent was spending freely and living beyond earnings. He challenges the necessity of having to rent 2 separate and nearby accommodations for the Respondent and G.
The Petitioner also takes issue as to whether or not G is under full-time education and whether he is still liable for payment of the maintenance to G.
VIII. The Evidence
1. The Respondent’s earning capacity and health condition
Ever since her marriage, the Respondent is totally dependent upon the Petitioner financially. She is now 54. She has been a full time housewife and continued to depend upon the Petitioner’s support to maintain herself and G.
The Respondent’s complaint that her shoulder pain has affected her working capacity. Like the Petitioner, the Respondent provides no evidence to show how her earning capacity was affected by her medical condition. However, it is accepted without challenge by the Petitioner that the Respondent has not made any earning and no issue is taken.
2. Full time education
The Petitioner questions G’s status as being a full time student with reference to the number of units that she has taken at UCD. Throughout the proceedings, the Petitioner has repeatedly pressed for disclosure of the transcript of G issued by UCD in respect of her school attendance as the Petitioner believes that G may not be a “full-time” student and if so, his liability towards her should cease.
Contents of G’s letter of 25th June 2005 and the 2 pages of Course Catalog indicated that G has fulfilled the title of a full time student. She met the minimum requirements of the campus and will not be subject to academic disqualification. A copy of the official letter issued to G on 5th May 2005 with certification and signature of the University Registrar showed the status of G as a full time student in UCD (Exhibit R6). The official letter also set out the enrolment history with terms attended in the past years.
Apart from the summer optional sessions where G had attended as half time student all other terms were attended in full time. It can be seen that G had not enrolled herself in Spring Quarter of 2004. As according to the Respondent, the Petitioner had stopped paying the maintenance and the Respondent could not raise sufficient fund for G to continue her studies in this University. G’s letter is self-explanatory. No such a break will change the nature of what appears to be a full time education, especially it was directly caused by the Petitioner’s failure to pay.
There is no doubt that G is a full time student and receiving a full time education in this University. Her graduation is expected in December 2005. Until G finishes her full time education, the Petitioner’s duty to pay for her maintenance continues.
3. Reasonableness of the expenses of the Respondent and G
Both of them are living nearby and within the distance of 3.7 miles. To live near campus area is certainly more convenient, but to live 3.7 miles away from the campus would not be inconvenient so as to justify in renting another apartment. There is no good reason for G to move out and live in a separate place, which would obviously and unnecessarily incur extra costs.
The spending of US$800 per month by each of them for groceries and household expenses seem excessive. No receipts were kept by the Respondent and G to indicate how this amount was spent. If they were living together, money spent on this item would be much lower than that on two of them living separately and in different household. In any event, the Court will allow a US$400 each for such expenses incurred and disallow G’s separate claim of rental of US$815.
Credit cards payment of US$445 were for the old debts which had been incurred before year 2000 when the Petitioner did not pay maintenance. In 2000 the Court had already dealt with the Petitioner’s duty on payment of such maintenance in arrears. At present, this Court is not concerned with the Respondent’s liabilities of credit card repayment incurred before 2000.
Under these circumstances, the Court finds that US$1,946.81 and US$1,929.70 are reasonably required by the Respondent and G respectively.
4. The Petitioner’s Income and Means
It is never disputed by the Petitioner that US$4,500 per month are reasonably required by the Respondent and G who were expecting this amount to be received every month until they were put on notice of the Petitioner’s Application for maintenance variation downwards. The Court will only consider whether to reduce the financial responsibility of the Petitioner under this Application and will not order retrospective variation downwards to a date prior to the said Application.
Furthermore, the Petitioner’s total income for 2003 and the first three months of 2004 was $1,205,136.46 i.e. an average of HK$80,342.43 per month. With this income, the Petitioner should have surplus to pay maintenance to the Respondent and G without any deduction.
For the year 2004, the total income of the Petitioner was HK$715,676.20, i.e. an average of HK$59,639 per month. The Petitioner’s reduction in income was due to the termination of the arrangement with other clinics. Although there is no evidence to suggest that after May 2004 the Petitioner did try to find other medical centre for which he could otherwise provide services to increase his income, for the purpose of this hearing, the Court will accept $59,639 to be his average income in 2004.
For the year 2005, the Petitioner’s income basing on the Patient records of SC Clinic was $287,200 being $47,866 per month in average. The decrease of income was a result of the exceptionally low income of $23,800 in February and $28,800 in June 2005. There are 28 or 29 days in February and sometimes with Chinese New Year falling within this month. For the month of June 2005, the possibility that there may be deliberate act to reduce his income for the purpose of the hearing cannot be excluded. His income in June is not treated as his normal income. Although there were three months where his monthly income was over HK$60,000, the Court will take into consideration of his income for the first five months and accept $52,000 to be his average monthly income in 2005. After deduction of the Petitioner’s personal and business expenditure, he can still afford paying partial maintenance to the Respondent and G.
Albeit the suggestion that R should make contribution to the outgoings of her family upon separation, there is no evidence that she is working. On one hand the Court has to take account of the Petitioner’s financial obligations towards his second family, on the other hand, the Court cannot ignore the legal claims of the Respondent and G under the 2000 Maintenance Order which should take priority over other obligations of the Petitioner.
Having also taken into consideration of the Petitioner’s income and earning capacity and his expenditure during the relevant period, i.e. from March 2004 to June 2005, and the reasonable expenses for the Respondent and G and all relevant circumstances, the Court orders the 2000 Maintenance Order to be hereby varied as follows :-
(i) the Petitioner is to pay the Respondent the periodical payment with effect from 1st April 2004 in the sum of US$1,000 per month as maintenance for G, and US$980 per month as maintenance for the Respondent until 31st December 2004;
(ii) the Petitioner is to pay the Respondent periodical payment with effect from 1st January 2005 in the sum of US$1,760 per month as maintenance for G until she finishes her fulltime education, and US$1,760 per month as maintenance for the Respondent;
(iii) for avoidance of doubt, the Petitioner’s obligation to pay maintenance to G shall cease after the expiration of one month from the date of the completion of full time education by G; and
(iv) also provided that after the expiration of one month of the completion of G’s full time education, the Petitioner is to pay US$1,950 per month as maintenance for the Respondent.
5. Judgment Summons
(i) Under the Maintenance Order made in 2000, the Petitioner was ordered to pay US$2,000 for the Respondent and US$2,500 for G until she has reached the age of 18 or has completed full time education.
(ii) As from January 2004 and up to the time of the trial the Petitioner has not paid any maintenance at all save for US$700 he paid after the hearing.
(iii) The Petitioner explained that he stopped payments of all maintenance to the Respondent and G because he believed that once he had applied for variation downwards for the maintenance, his duty to pay the maintenance would suspend pending outcome of the hearing.
(iv) The Petitioner could not possibly have misunderstood his continuous obligation under the Maintenance Order for various reasons. This is not the first time that he has made such an application for maintenance variation. As early as in 1997 when he was in default of maintenance payment a Judgment Summons was issued by the Respondent against him and he applied for variation of maintenance order. He well knows and must have known that as long as the Maintenance Order is in force, he must continue to pay maintenance until it is varied.
(v) Three months before the notice of Application for variation was filed, the Petitioner had already ceased paying maintenance.
(vi) Solicitors for the Respondent also reminded the Petitioner to pay maintenance, after an application for variation of maintenance had been issued.
(vii) It can be seen from the bank statements of the Petitioner and R that the Petitioner has continued to pay for the mortgage of the Property and provided the financial support for R in the year of 2004 and 2005. His priority has been set in making payment for mortgage loan of a property (of which he claims he has no interest), to his second family and his mother’s maid. After deducting all the expenses, the Petitioner said he has about US$1,000 to spare and yet he chose to stop all maintenance payment to the Respondent and G since January 2004.
(viii) It is clear that the Petitioner has deliberately defaulted in payment of the maintenance to the Respondent and G despite he has income to do so. He has not shown cause why he should not be committed to prison. On the evidence before the Court, there is no doubt that the Petitioner could, and has had the means and ability to, pay the maintenance at least in the sum of US$1,000 per month, but he wilfully failed to do so. His failure to pay anything as from January 2004 is a blatant breach of the Maintenance Order.
(ix) The Court is satisfied beyond all reasonable doubt that his conduct is in the nature of a contempt of the Maintenance Order.
The Petitioner has a duty to comply with the Maintenance Order until the said Order is varied. He was to pay US$4,500 per month to the Respondent as maintenance for her and G until 31st March 2004. He was to pay US$1,980 per month to the Respondent as maintenance for her and G from 1st April 2004 until 31st December 2004. He was to pay US$3,520 per month to the Respondent as maintenance for her and G from 1st January 2005.
Total Arrears of Maintenance from March 2003 to March 2004 is US$32,000, from April 2004 to December 2004 is US$17,820, and from January 2005 to December 2005 is US$42,240, less US$700 he made after hearing the present applications.
The Court accepts that this sum of US$91,360 as ordered against the Petitioner cannot be paid and satisfied in one go, but he has the ability and means to make payment by instalments upon release of his duty to pay maintenance to Grace. It is therefore ordered that the Petitioner be committed to prison for 2 months provided that such committal order be suspended for so long as he pays the total sum of the Judgment Debt of US$91,360 by instalments of US$350 per month commencing on 1st day of January 2006, and thereafter on the first day of each and every subsequent and consecutive month, and also provided that after expiration of one month of the completion of G’s full time education, the sum under this term of Order shall be adjusted to US$1,900, payable in the same manner as aforesaid until full payment of the said Judgment Debt under the said Judgment Summons and the Order hereof.
The Petitioner shall file his Affidavit by 30th June 2006 showing any efforts of augmenting his income.
(Parties’ discussion on costs matter)
Costs
There be no order as to costs in respect of the summons for Variation of Maintenance Order. The Petitioner do pay to the Respondent the costs of the Judgment Summons, such costs to be taxed if not agreed. The Respondent’s own costs shall be taxed in accordance with the Legal Aid Regulations.
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(BERNADETTE WOO)
Deputy District Judge |
Petitioner, in person, present
Ms B. Hung, instructed by Messrs Chaine, Chow & Barbara Hung, for the Respondent
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