Ysl v. Tkc
Read the full judgment text of FCMC 9234/1997 on BabelCite. This Family Court judgment before Her Honour Judge Chu.
Matrimonial Causes – Variation of Maintenance Order – Attachment of Income Order – Matrimonial Proceedings and Property Ordinance s.7 and s.11(7) – Financial circumstances – Earning capacity – Non-compliance with consent order – Parties divorced 2000 – Consent Order 1999 required maintenance of HK$4,000 per month – Respondent reduced payments to HK$500 per month – Court finds Petitioner has earning capacity – Court allows reduction to HK$2,000 per month total – Attachment of income order made for arrears and future maintenance – No costs order due to legal aid.
Legal issues: Variation of maintenance order · Attachment of income order
Outcome: Application for variation of maintenance order allowed; Attachment of income order made.
Cites 1 case
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FCMC 9234 of 1997 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 9234 OF 1997 _________________ BETWEEN
_________________ Coram : Her Honour Judge Chu in Chambers (Not Open to Public) Date of Hearing : 22nd December 2005, 24th March 2006, 13th April 2006 Date of Parties' Closing Submissions : 13th April 2006 Date of Petitioner's Supplemental Closing Submissions : 24th April 2006 Date of Handing Down of Judgment : 19th May 2006 _________________ J U D G M E N T _________________ INTRODUCTION 1.This is the Respondent's application for variation of the maintenance order. Although the parties have already been divorced for some time, I shall call the Respondent “H” and the Petitioner “W” in this judgment, for easy reference. 2.The parties were married in 1972, and have a daughter, now 33, and a son, now 28. Their daughter is mentally handicapped, and she is partially dependent on W. Their son is now self-supporting. 3.In 1997, W petitioned for a divorce. It would appear from the W's petition that since about 1987, the parties had led separate lives although they were living under the same roof. In June 1998, W was granted a decree nisi of divorce, which was eventually made absolute in February 2000. 4.During the marriage, the parties had resided in the ground floor of a property, which is a village house on Lot 931 in D.D. 194, although they moved out about a year before W's petition. This property consisted of 3 floors (“1st Property”) and is held in H's name. W was receiving the monthly rental from all three floors of the 1st Property as household maintenance, until about October 1997. 5.During the marriage, H also had interest in the following properties :
6.On 27th May 1999, there was an order by consent whereby :
7.About a month after the Decree Absolute was issued, H remarried. He and his new wife, Madam Tang, have a daughter who is now 5 years old. 8.In 2001, H allegedly sold his interest in the 2nd Property to his brothers for HK$200,000. 9.Between May 2002 and November 2002, H only paid a total of HK$4,200 towards maintenance. In December 2002, W issued the 1st Judgment Summons for arrears of maintenance. Further, H failed to effect the transfer of legal title of the 2nd floor of the 1st Property to W, although he has allowed W to have the exclusive right to the use of the 2nd floor since the Consent Order, including the right to rent out the premises and to receive rent. It would thus appear that for all intents and purposes, W has held the beneficial interest in the 2nd floor since the Consent Order, although H has continued to pay for rates and / or Crown rent. 10.By January 2003, when H had not yet transferred to W the legal title of 2nd floor of the 1st Property, W took out a summons for this to be complied with. The 1st Property was originally granted to H at a concessionary premium. There is a restriction on alienation in the Special Conditions of the New Grant to H and there will be an administrative fee and additional premium payable before the restriction can be removed. The parties and their respective solicitors should be fully aware of this at the time when the Consent Order was entered into, but unfortunately, there was no mention in the Consent Order as to who was to pay the premium. According to a letter dated 2nd July 2004 from the District Lands Office (“the Letter”), the estimated amount of the administrative fee and the additional premium as at 29th June 2004 were a total of about HK$864,500. H now says he does not have the means to pay the additional premium. 11.Since May 2002, H reduced unilaterally the maintenance payments to W to HK$500 per month. In May 2003, after such reduction, W applied and obtained social welfare assistance of HK$6,300 per month, which was later reduced to HK$4,080 per month in May 2004. In February 2004, W issued a 2nd Judgment Summons. 12.Eventually on 5th March 2004, H issued a summons for a downward variation of maintenance. 13.On 21st June 2004, when the 2nd Judgment Summons came up for hearing, H undertook to repay the arrears of maintenance by 17 monthly instalments of HK$1,600 each, commencing from July 2004, with a final instalment of HK$800. H further undertook to continue to pay maintenance of HK$4,000 per month. W's public assistance then ceased. 14.Subsequent thereto, H did not comply with the Consent Order or his undertakings, and W had to take out a 3rd Judgment Summons. 15.On 18th February 2005, when the question of the transfer of the legal title of the 2nd floor came before this court, this court made an order, inter alia, that W was to clarify the amount of premium payable, and H was to enquire whether he could obtain a mortgage of the 1st Property in order for the premium to be paid. This court was subsequently informed that H had approached various banks and finance companies but he was not able to obtain any financing. Thus, at present, the legal title of the 2nd floor of the 1st Property remains un-transferred to W. 16.The present trial concerns only H's application for variation downward of the maintenance payments for W and the daughter, and W's application for an attachment of income order. 17.H says he has all along been willing to transfer the legal title of 2nd floor of the 1st Property to W, but he has not been able to pay for the premium for the alienation. In his Form E filed about 2 weeks before the December hearing, H said that he and his present wife Madam Tang would be willing to look after the daughter, if W is not able to, but if the daughter did not wish to stay with them, H's then proposal was to pay HK$500 per month for the daughter, and HK$500 per month for W. However, during the December hearing, H's proposals were to pay HK$1,000 per month for the maintenance of the daughter, and HK$1,000 per month for the maintenance of W. For the arrears, H said that he would be willing to pay them off by monthly instalments of HK$1,500 each. 18.On 28th February 2006, W further issued a notice of intention to seek an attachment of income order. LEGAL PRINCIPLES 19.In exercising its power of variation, this court is required by s. 11 (7) of the Matrimonial Proceedings and Property Ordinance (“MPPO”) to have regard to :
20.All the matters mentioned in s. 7 of MPPO are to be considered for the purposes of s. 11 (see Jones v. Jones 1971 3 All ER 1201, and also CCS v. LSB CACV 126 / 2004). 21.S. 7 (1) and (2) provides as follows :
H'S FINANCIAL CIRCUMSTANCES 22.From 1993 onward, H was working for a seafood restaurant, and in early 1999, he was a captain earning about HK$11,900 per month. H also started to receive the rental from all 3 floors of the 1st Property after W filed the petition, which was HK$24,500 per month in November 1997. In April 1998, the tenant of the ground floor moved out after failing to pay the rent for the month of March 1998 and the premises were vacant for awhile. H later moved into the ground floor. H was thus receiving about HK$16,000 per month rental from the 1st and the 2nd floor of the 1st Property from March 1998 onward, and such rental was later reduced to HK$13,500 per month from July 1998. In his Witness Statement prepared for this trial, H said his income at the time of the Consent Order was HK$11,900 per month, but this was, however, not correct. According to a letter from H's then employers, the seafood restaurant, which was produced by H in his affirmation filed in 1999 before the Consent Order, H's job as a captain was terminated on 1st March 1999. It now appears that although his job was terminated, H was invited back by the same seafood restaurant to take on a part time job there as a stand-in waiter earning about HK$900 to HK$1,000 per month. During this trial, H explained that he was earning about HK$1,000 per month as a stand-in waiter for about 6 months, and then he was re-employed by the same seafood restaurant on a full time basis, earning about HK$11,900 per month until he was laid off at the end of April 2002. The seafood restaurant closed down on 1st May 2002. 23.At the time of the Consent Order, H was only receiving rental of HK$6,000 per month from the 1st floor of the 1st Property, and the 2nd floor was vacant. The 2nd Property and the 3rd Property were occupied by H's brothers and their family members and H received no income therefrom. 24.It therefore appears that H's total income at the time of the Consent Order from his part time job as a stand-in waiter and the rental from the 1st floor was only about HK$7,000 per month. Notwithstanding this amount, H, however, did agree to pay HK$4,000 per month for W and the daughter which he did pay for about 3 years, from the date of the Consent Order until April 2002, when he was laid off. 25.Thereafter, H was unemployed for about 5 months, and eventually in October 2002, he found a job as a watchman, earning initially HK$6,000 per month, increasing to HK$6,500 after 3 months, and to HK$6,700 in February 2004. H is still working as a watchman for the same company, and his present salary remains HK$6,700 per month. 26.H has continued to reside with his new family on the ground floor of the 1st Property, and has been renting out the 1st floor. The rental income of HK$6,000 per month at the time of the Consent Order was later reduced to HK$4,200 per month in about February 2003. There were a number of tenants, and in between tenants, the premises would be vacant. The rent was eventually reduced to HK$3,500 per month in about May 2004. This tenant moved out at end of April 2005. The premises were vacant for about 3 months and eventually let in August 2005. The rent has been HK$4,500 per month since 20th August 2005. 27.H's assets in May 1999, i.e. shortly before the Consent Order, primarily consisted of :
28.H's present assets consist of mainly the following :
29.As above mentioned, H said he sold his interest in the 2nd Property to his brothers on 16th January 2001 for HK$200,000. H said that the amount was paid to him in cash, and he kept the cash at home. W has challenged this alleged sale, which was below market value. According to a valuation report, the value of the 2nd Property at the date of the alleged sale was HK$380,000. I do, however, believe that notwithstanding what the valuation report says, it may not be easy for H to sell his 1 / 5 interest to an outsider when the rest is controlled by H's family members, and there is no income. Also the valuation was only based on external inspection. W's Counsel, Mr. Leung, has further submitted that it would be very unlikely for H not to deposit all this cash into a bank account, and that H must have another undisclosed account. H said in his Witness Statement that the money was used to pay off W's legal costs of HK$95,000 and his own legal costs of HK$80,000, incurred up to the Consent Order, and also for taxes, which he paid a total of HK$126,870 during the period from 1999 to 2000. All this amounted to about HK$301,870. However, in the same Witness Statement, H said he was paying off W's legal costs of HK$95,000 by monthly instalments between 15th March 2000 to 14th March 2002. I agree with Mr. Leung that H's evidence in relation to the alleged sale and the whereabouts of the $200,000 was not satisfactory and it does appear that H may not have made full disclosure of all his bank accounts or accounts held by others of which he has control of or has an interest in. 30.H had claimed that his two brothers had 2/3 interest in the 1st Property and that he held the 1st Property in trust for his brothers. This was his case even prior to the Consent Order. The village house on the 1st Property was built with contribution from H's late father, and H said that his father's intention was to build the house for H and his two brothers, i.e. each son would get one floor. In fact, H said that one of his brothers had wanted to pay for the premium in early 1997 so as to effect the alienation process, and H had instructed his solicitors to apply for alienation, but W objected to this, and thus the alienation was not carried out. W denied that this was the case and said the objection letter was written by both H and her. In his 7th affirmation, filed before the Consent Order, H had also exhibited a copy of his younger sister's bank passbook to show that the rental of the 2nd floor of the 1st Property from February 1998 to March 1999 was in fact transferred into his younger sister's bank account. Under cross examination in the present trial, H said that this was for his younger sister to save up the money for him to pay for his legal costs, but previously in his affirmations filed in 1999, he was saying that the rent was paid to his younger sister as he needed to account to his brothers their share of the rental. The rental for the 2nd floor during that period amounted to about HK$112,500. H now said the said amount had been repaid to him in cash by his sister, and that he had also used the money to pay for his legal fees and the property taxes. H said he had to pay back property taxes for rental collected for about 5 years from 1995 to 2003, which he said totalled over HK$200,000. 31.When giving evidence on 22nd December 2005, H had said that the above trust no longer existed, but then later on 24th March 2006, H appeared to have forgotten what he had said in December 2005, and maintained that his brothers still have 2/3 interest in the 1st Property. It also appears from the Closing Submission of his solicitor, Ms Chan, that H still regards that he is holding the Ground Floor and 1st floor of the 1st Property for his brothers, although Ms Chan, during Mr Leung's cross examination of H on the alleged trust, had said that she thought the issue of the trust no longer needed to be dealt with, as H had agreed to transfer the 2nd floor, namely 1/3 interest to W. Anyway, in H's Form E, he did not state that he was holding the 1st Property in trust for his brothers. H had clearly not been consistent in his evidence in relation to this alleged trust or his brothers' alleged interest, and I am satisfied that there is no sufficient evidence that H is holding any part of the 1st Property in trust for his brothers, or that his brothers have any interest therein. 32.H remarried on 2nd March 2000. His present wife, Madam Tang, is about 40 years old. Madam Tang is from the Mainland, and H met her when she was sightseeing in Hong Kong. At that time, according to H, she was working in a hotel in Mainland China earning about RMB 500 per month. Madam Tang was educated to junior high school level. After they married, Madam Tang was initially only coming to Hong Kong on a two-way permit, and therefore not allowed by law to work. Thereafter, according to H, Madam Tang has not been able to work as she has to take care of their daughter, taking her to and from school. H says that she wants to find some part time work, but has not been able to find one, as she could only work about 3 hours a day, and she would also need to work near where they live. Assuming that she is able to find part-time work for about 3 hours a morning, H says she could only earn about HK$20 to HK$30 per hour, which is about HK$1,000 per month. 33.H claims that he now has the following expenses :
34.H is now paying HK$500 per month towards the maintenance to W, and is also paying her HK$1,600 per month towards the arrears, totalling HK$2,100 per month. This, plus the above HK$11,065, will give a total of HK$13,615. Further, H says in September this year, his 5 year old daughter will start primary school, and there will be additional interest class and tuition expenses of another HK$900 per month. H said in his evidence that to make ends meet, he had to receive financial assistance from his younger brothers and younger sister. H had, however, not listed such financial assistance in his Form E as liabilities. I find that there was no sufficient evidence that there was indeed such financial assistance. W'S FINANCIAL CIRCUMSTANCES 35.At the time of the Consent Order, W had about HK$10,000 in her bank accounts, and some jewellery and watch worth a total of about HK$ 13,000. She said at that time she owed her siblings HK$80,000. 36.At present, W has little assets in her name, except about HK$7,300 in her bank accounts. Although the legal title of the 2nd floor of the 1st Property has not yet been transferred into her name, as I have said earlier in this judgment, since the Consent Order, W has in effect held the beneficial interest of the 2nd floor. W claims that she now owes her siblings a total of about HK$110,000 which was money lent to her due to the fact that H only paid HK$500 monthly maintenance instead of HK$4,000. However, I find that there was no sufficient evidence to support the alleged loans. 37.Before October 1997, W was receiving the total rental of all 3 floors of the 1st Property, amounting to about HK$24,500 per month, for the family's household expenses. W had said she also was working in a garment factory, earning about HK$720 per month. 38.In July 1998, W was receiving maintenance pending suit of HK$9,000 per month plus a social welfare/disability allowance for the daughter of HK$1,260 per month. (D : 269) 39.Thereafter under the Consent Order, she received HK$4,000 per month from H for about 3 years, plus some rental from the 2nd floor. 40.According to W, she is now receiving only HK$500 per month from H, and for the daughter, disability allowance of HK$1,120 per month. The daughter is now working at McDonald's and earns a salary of about HK$3,292.92 per month, but such income is not steady. 41.As for the 2nd floor of the 1st Property, after the Consent Order, W did receive some rent for a while and later, the parties' son and his wife had lived there for a period of time, but they moved out in December 2002. When asked whether she received any money from the son while he and his wife were living there, W's answer was rather ambiguous, saying that the son had a lot of expenses. Later, after the son and his wife moved out, apparently there was water leakage and the 2nd floor needed some renovation work, and therefore W claimed she was not able to rent it out. W said that a decorator friend of hers helped her to renovate and partition the 2nd floor into two sections. One of the two sections is now occupied by the son of W's decorator friend, and the other section is now occupied by the son, who moved back there in November 2005, after his divorce. W says she is receiving a low “licence fee” of HK$2,000 per month from the friend's son for his occupation, as she is trying to pay off the friend the renovation money, but there was no supporting evidence produced by her in relation to any outstanding renovation money. W says that the son is not paying her any rent or any licence fee. He is presently out of a job. Previously, he was earning about HK$6,000 to HK$7,000 per month. 42.W claims her present expenses are as follows :
OTHER S.7 MATTERS 43.H is now about 56, and W about 55. Their marriage was not a short one, although it appears that the parties started to lead separate lives in about 1987. After the 1st Property was built in 1980, the parties moved in to live on the ground floor, and they rented out the 1st floor and the 2nd floor. From 1980 until 1997 when W filed the divorce petition, W had collected the rental from the 1st floor and the 2nd floor of 1st Property. Before the filing of the petition, the parties and the children had moved out of the ground floor, and during that period, the ground floor was also rented out, and the rental was also collected by W. All the rent collected was used by W towards the family expenses. 44.W claims she is now suffering from back pains, depressive disorder and chest pains which require regular treatment. During the marriage, W was mainly a housewife, although she did work as a factory worker for short periods. H alleged that W had spent a lot of money on gambling and travelling, which she denied. 45.The parties did lead a reasonably comfortable life during the marriage, with H's salary and the monthly rental from the 1st Property. 46.H is in good health, and he expects to work until he is 65, provided he is fit. 47.In relation to H's present wife, she is only 40, and thus much younger than W. 48.Counsel for H, Mr Leung, has submitted that H told many lies and asked the court to take into account H's conduct. He has referred this court to J (H.D.) v J (A.M.) [1980] 1 WLR 124. Although it appears H may not have made full disclosure of bank accounts, I find that there is no sufficient evidence before me to believe that H's income has not been what he said. CONCLUSION 49.It is H's case that W should work. Although W is suffering from various complaints, such as adjustment disorder, depression, chronic back pain and sciatica, and that she was attending regular follow up treatment regularly at the Tuen Mun Mental Health Clinic, there is no medical evidence that her various illnesses now affect her ability to work. She did receive disability allowance for awhile but that had stopped. I do accept that W did not have any regular full time job during the marriage, and her skills are limited. However, with the current low unemployment rate in Hong Kong, I believe W has some earning capacity. The daughter, who is autistic, is able to earn about HK$3,300 per month working only part-time, and in my view, W herself should be able to earn a similar amount. I accept that the daughter's job may not be steady, but between W and the daughter, I think they should be able to bring in a total of at least HK$3,000 per month. 50.I am also of the view that the 2nd floor should bring in more income. There is no reason why the son should not contribute, and there is also no reason why the decorator friend's son should continue to live there indefinitely paying only HK$2,000 per month. The rent from the 1st floor is HK$4,500 per month, and the rent from the 2nd floor should be at least the same, since previously the rental from the 2nd floor was always higher than the 1st floor. W claimed that the room which is occupied by the son still has some water leakage, but there is no sufficient evidence to support this and no independent report was produced. Thus, with an increase in the rental to say HK$4,500 per month, and the daughter's disability allowance, plus, what in my view is W's earning capacity and/or the daughter's earning capacity, W's monthly shortfall would be just under HK$2,000, based on the monthly expenses of HK$10,500 claimed by her. 51.As mentioned earlier, although I find that H may not have made full disclosure of his bank accounts or accounts of which he has control or interest in, there is no sufficient evidence that he is in receipt of any additional income other than those disclosed by him. H's present total income is about HK$11,200 per month, and his monthly expenses are about HK $11,065, plus HK$2,100 to W. Although H's income is higher now than at the time of the Consent Order, I accept that his expenses have increased since. There were also periods when he received no rent from the 1st floor. I am of the view that Madam Tang should be able to find some part time work, which would help to pay for some of the expenses and as H himself had said, he could manage to pay HK$2,000 per month as maintenance for W and the daughter. 52.Having considered all the circumstances including the reasonable needs of W and the daughter, I find the proposals made by H at the hearing in December 2005 and set out in his solicitor Ms Chan's Skeleton Argument to be reasonable, and I would allow H to reduce the maintenance payments to W and the daughter of a total of HK$2,000 per month, namely to pay W HK$1,000 per month for her maintenance, and to pay HK$1,000 per month for the maintenance of the daughter as from the time of his application. 53.In the past, H did not comply with the Consent Order and unilaterally reduced the payments to HK$500 per month. There was no reasonable excuse for this. I will therefore make an attachment of income order, as requested by W. ORDER 54.The effect of my order is as follows :
55.As both parties are under legal aid, I make no order as to costs, including all costs previously reserved. This is an order nisi, which shall be made final after 21 days.
Mr A Leung instructed by m / s Kitty So & Tong for Petitioner Ms H Chan of m / s Thomas Li & Yu for Respondent | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment