S v. L

FCMC 12848/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 12848 OF 2005

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BETWEEN

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Before : HH Judge Bruno Chan in Chambers.

Date of Hearing : 16^th – 18^th January and 19^th February 2009.

Date of Judgment : 11^th March 2009.

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J U D G M E N T

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1.This is the Respondent Wife’s application for ancillary relief for herself and the 2 younger children of the family, V who was born to her previous marriage and is now aged 19 but still a student, and M now aged 11, against the Petitioner Husband upon the dissolution of their marriage, her second and his third. She is a 48 year old American housewife now residing with the children in San Jose, California, while he is a 59 year old British doctor who is said to have just retired from his medical practice in Hong Kong and moved to live in Queensland, Australia for health/medical reasons since late October 2008.

Background

2.The Husband came from UK to Hong Kong in 1979 for his medical practice and had since made his home here after divorcing his first wife. He married his 2nd wife in 1980 and had 3 sons born from that marriage, all of whom are now over 18 but the youngest son, A, is still studying in the medical school in Glasgow, Scotland. His 2^nd wife now also lives in the UK since their divorce.

3.The Wife had her first marriage in the US in 1984 and moved with her then husband Mr. L to Hong Kong 2 years later where they had 2 daughters J and V born respectively in 1985 and 1990. In 1991 the Wife applied and obtained a decree nullifying that marriage after discovering that her husband was in fact already married to another woman at the time of their marriage. She was also granted the custody of both daughters in that proceedings.

4.At about this time the parties started a relationship and in 1994 the Wife brought J and V to live with the Husband after he had apparently separated from his 2nd wife, during which M was born in 1997. Prior to that the Husband’s medical practice on the Peak had been thriving and he was able to support not only his own family but also the Wife and her daughters, and it would be fair to say that it was a fairly high standard of living at that time, including residence in spacious 3,000 sq. ft. apartments in the Mid-Levels with domestic helper, the enjoyment of club memberships, fine restaurant dining and expensive cars, with holidays in Europe and Asia as well as private international schools for the children. The Husband was also a keen golfer and had expensive wine collections.   

5.However the Asian financial crisis in 1997 and 1998 had seriously impacted on his practice when many of his patients left Hong Kong, and at the same time the Wife developed breast cancer while there was a time when he also became sick with some stomach problem and was unable to work or work full time, resulting in a severe debts burden of allegedly over $5 million at one time.     

6.In 1999 his 2^nd wife filed for divorce in Hong Kong and subsequently reached an overall financial settlement with him in which, inter alia, he was to transfer to her 3 properties in Scotland and the benefits of 2 assurance policies with a total worth of more than British Pound Stirling 1.2 million, and to pay monthly maintenance for her and their 2 younger sons until the completion of their full-time education. The Husband’s case is that he had given up virtually all the matrimonial assets under that settlement and kept nothing for himself except his medical practice, a claim which the Wife does not seem to dispute.

7.In any event, the parties were then free to formalise their relationship, which they did on 2^nd March 2001 by registering their marriage at the Cotton Tree Drive Marriage Registry. Sadly things started to go downhill when the Wife developed a severe case of depression after having undergone a mastectomy about a year earlier, and began to exhibit emotional and behaviour problems including alcoholism and addiction to pain killers, causing constant conflicts with the Husband and emotional stress to the children at home.

8.It would be relevant to point out that, while totally unrelated to the Wife’s said behaviour, it was at about the same time that the Husband was diagnosed to be suffering from rheumatoid arthritis, a destructive and inflammatory disorder that attacks the diarthroidal joints resulting in pain, swelling and morning stiffness in his joints, and which required regular medical care and medication.

9.In September 2004 J left Hong Kong for university in UK, but the situation at home continued to deteriorate and things finally came to a head in late 2004 when the Wife accused the Husband of having an affair with one of his staff, and demanded him to leave their matrimonial home, which he did, but thereafter she would constantly cause disturbances to him and his practice by calling his phone numerous times each day screaming at him, barging into his office making a scene by taking his patients’ files and hitting one of his staff on one occasion, and when she was prevented from entering, she would bang at the door and scream obscenities, scaring his staff and his patients, and resulting in police interventions on a few occasions.

10.In late April 2005 the Husband went to United Kingdom for medical examination and treatment of his ischemic heart disease which he developed in 2004 and which was believed to be associated with his rheumatoid arthritis. During his absence an incident occurred between the Wife and the 2 younger children which required the police intervention. The Wife was subsequently hospitalized for chronic depression and alcoholism, while the children were arranged by the Husband to stay with the Wife’s sister H in San Jose, California where they have since made their home, with regular remittance from him for their support.

11.Upon the Husband’s return to Hong Kong in May 2005, the Wife continued to cause disturbances at his clinic whenever she was drunk or had a dispute with him over money matters, which led to the Husband applying for and obtaining injunctive relief against her from the court under the Domestic Violence Ordinance (“DVO”).

12.However the disturbances would persist and on one occasion descended into a particularly violent incident on 27^th October 2005 when the Wife assaulted the clinic’s office manager one Ms SM who suffered a broken foot as a result and whom I shall refer to again for reasons will be apparent later in the judgment, for which the Wife was arrested by the police and was subsequently charged and convicted for assault occasioning actual bodily harm, and was bound over for 12 months. She was later also found by another court for contempt for breaching the injunction order obtained by the Husband earlier under the DVO proceedings and was given a one-month suspended sentence. 

13.It was under these circumstances that not surprisingly the Husband filed for divorce in these proceedings on 10^th November 2005 against the Wife based on her behaviour, and in his petition he also sought custody of M and legal costs.

14.The decree nisi of divorce was subsequently granted unopposed on 10^th March 2006 with the questions of custody and ancillary relief adjourned pending the usual social investigation report in view of the Wife’s expressed intention to contest the custody of M. By then J was already over the age of 18 and studying in an university in UK and hence is not relevant in these proceedings.

15.In August of the same year the Wife, with financial assistance provided by the Husband, travelled to California to visit the children but afterwards decided to stay behind with them there without returning to Hong Kong, and I have been given to understand that her sister H subsequently left San Jose to return to her home town in Arizona.

16.Eventually the parties were able to agree to have joint custody of M with care and control to the Wife and leave for M to remain out of the jurisdiction of Hong Kong. It was also agreed that the Wife was to have sole custody of V without prejudice to the Husband’s said contention that she was not a child of the family. An order was then made in terms of this agreement on 13^th February 2007.

17.There was however to be no agreement on the Wife’s claims for ancillary relief for herself and M, who were in the meantime maintained by the Husband with voluntary monthly payment of HK$18,000 for the former and US$1,000 for the latter. He also paid for the premium of the Wife’s medical insurance of about $4,500 per month. In July 2008 the ancillary relief was then set down for trial for 4 days in January 2009.

18.However in late October 2008 the Husband closed down his medical practice allegedly for health reason after paying off all his debts and moved to reside in Queensland with the said Ms SM with whom he allegedly started a relationship after his separation with the Wife. By then he claimed to have no income or assets save for only about HK$461,000 then in his bank accounts, his MPF of HK$108,000 and the balance of his tax certificates of HK$130,000 for his tax liability upon the close of his practice, but also had liabilities of some HK$750,000 in arrears of maintenance due to his 2nd wife and son under his previous divorce.

19.Shortly thereafter the Husband through his solicitors informed the Wife’s of the same and offered to pay her HK$4,500 per month for her maintenance for a limited period only, and US$1,000 per month for M until she reaches 18, which was all he said he could afford given his poor health and that he could no longer work as a doctor as he intended to study to be a medical counsellor in Australia.

20.He first entered Australia on a tourist visa but has since changed to a student visa after enrolling into an university for a 2-year course to retrain as a medical counsellor, as he claims to be unable to work as a medical doctor in Australia as the visa for that would require him to work full-time which he says would be too demanding on his health. He now lives with Ms SM in her house allegedly jointly owned with her husband, and claims to be financially relying on her. 

21.His offer was not surprisingly unacceptable to the Wife as she believes that he left Hong Kong for Australia not for health reasons but to be with Ms SM, and that he should still be able to work in order to support her. So the matter proceeded to trial after both parties had updated their Financial Statement (Form E) and travelled back to Hong Kong for their evidence.

22.At the trial the Husband maintained his said offer for M with fund from his MPF which he proposes to place with his lawyers in Hong Kong to make the monthly remittance to her, but claims now that he is to study for the next 2 years during which he would not be able to work full-time, hence he would not be able to pay any maintenance other than a nominal one for the Wife whom he argues should find a job to support herself, and that he should not be responsible for V whom he disputes as a child of the family, as by then almost all of what remained of the HK$460,000 in his bank accounts had also been exhausted.

23.Needless to say, this proposal was even more unacceptable to the Wife who counter-proposed in her open offer at the trial that the Husband should pay her periodical payments at the rate of HK$24,000 per month for M until she reaches 18 or completes full time education, and HK$12,000 per month for herself to be increased to HK$24,000 when M’s maintenance ceases, and that he should also pay her a lump sum representing half of all his savings and other matrimonial assets in line with the recent Court of Appeal’s decision in DD v LKW [2008] HKLRD 523.

24.Therefore the main issues for the court’s determination are clearly the needs of the parties and their earning capacity which also involve the Husband’s health factors and their impacts, the extent of the matrimonial assets and if any their division, but also whether the Wife’s post-separation conduct as aforesaid should be taken into account when determining her claims, and finally whether V was a child of the family for whom the Husband should be financially responsible.

25.That last issue can be easily dealt with and disposed of here and now in that I have no difficulty concluding that V was indeed treated by the parties as a child of the family during the marriage, as Mr. Clement for the Wife has demonstrated at the trial that the Husband did in fact refer to her as one of the children or his step-daughter in his petition as well as his affidavits (A:1, B:109, 111, C:368), and that he has conceded, under cross-examination, that he only raised that issue because he was upset when he discovered that the Wife’s sister was receiving payments from both him and Mr. L for V without informing him.

26.This issue has also resolved itself when the Wife subsequently abandoned her claim for V as she is now said to be working to put herself through college and no longer requires any maintenance from the Husband. The other issues are of course not so simple and will have to be resolved by applying the following principles. 

The Principles

27.In deciding whether to exercise its powers over the Wife’s claims, the court is of course required to have regard to all those matters as set out in section 7 of Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”) including the conduct of the parties and all the circumstances of the case, with the over-arching objective to reach a fair outcome between the parties by applying the three elements or strands of principle identified by the English House of Lords in White v White [2002] 2 FLR 981 and Miller v Miller and McFarlane v McFarlane [2006] 2 WLR 1283 as financial needs, compensation and sharing.

28.In endorsing these principles, the Court of Appeal in DD v LKW set out as follows how they should be applied : 

‘In the majority of the cases where the parties only have limited financial resources, the focus of the inquiry on fairness is to divide the assets of the parties so as to make provision for their housing and financial needs. It may be necessary to augment the available assets by making orders for periodical payments (Miller [11][12]).

Where there are assets which are available beyond satisfying the immediate housing and financial needs, equality in division of the assets should be made unless there is a good reason to the contrary (Miller [16], Charman [65]). This approach is not confined to ‘big money cases’ but to cases where the assets are available beyond satisfying the needs of the parties. (Rayden and Jackson on Divorce and Family Matters Vol 1(1), para 16.26).

The inquiry should be conducted in two stages :

First, computation of the available assets of the parties such as property, income (including earning capacity) and other financial resources which the parties have and are likely to have in the foreseeable future (Charman [67]).

Second, distribution of the assets by reference to the three principles of need (generously interpreted), compensation and sharing. These principles can be gleaned from section 7(1) and each of the matters set out in section 7(1)(a) – (g) can be assigned to one or another of the three principles (Charman [68]).

The principle of need requires consideration of

1)  the financial needs, obligations and responsibilities of the parties (section 7(1)(b));

2)  the standard of living enjoyed by the family before the breakdown of the marriage (section 7(1)©);

3)  the age of the parties (section 7(1)(d)); and

4)  any physical or mental disability (section 7(1)(e)) (Charman [70]).

The principle of compensation relates to, among others,

1)  the prospective financial disadvantage which upon divorce some parties face as a result of decisions which they took for the benefit of family during marriage.

2)  In short marriage the financial disadvantage a party suffered, if any, on entering into the marriage.

3)  Any loss of possible pension rights : section 7(1)(g) (Charman [71]).

The relevant factors for the principle of sharing are,

1)   the contribution of each of the party to the welfare of the family (section 7(1)(f)).

2)   The duration of the marriage (section 7(1)(e)).

3)   Conduct of the parties which it would be inequitable to disregard (Miller [65]; Charman [72]).

29.With these principles in mind, I shall start the inquiry with the Wife’s situation first which is somewhat less controversial.

The Wife’s Earning and Earning Capacity

30.The Wife is unemployed and has not worked since she commenced her relationship with the Husband in 1991. Her last job was as a receptionist. There is no dispute that she has no particular skill or qualification to enable her to find any gainfully employment other than menial ones such as working in the supermarket, for instance, but her evidence is that even those jobs would be hard to come by in her neighbourhood. Given the current financial crisis and high unemployment rate in the US, coupled with her present age and health and the fact that she has been out of the job market for almost 20 years, I agree that even if her earning capacity may not be said to be virtually nil, it would in my judgment be extremely limited, and with M clearly not mature enough to be on her own after school, there is no question of the Wife working on a full-time basis even if she is able to find a suitable job.

31.Furthermore, where a wife has not been gainfully employed during the marriage and has no particular skill, as is apparently the case here, the court has generally regarded it as unjust to expect her to go out to work in order to reduce the husband’s liability to maintain her : M v M (Financial Provision) [1987] 2 FLR 1, A v A (Financial Provision) [1998] 2 FLR 180.

32.The Husband’s case here is somewhat different in that the Wife should find employment to support herself out of necessity as he himself is unable to work and has no means to support her, which is of course the underlying issue between the parties and which I will no doubt have to investigate more fully when I come to consider his situation, but in the meantime it is common ground that the Wife has no assets of any value other than her personal belongings and her share of the furniture and household items from their former matrimonial home which the Husband has sent to California before he left Hong Kong for Australia, and which he agrees are realistically of no significant values.

The Wife’s Needs

33.As aforesaid the Wife now lives with V and M in a rented apartment in San Jose, and has set out the current monthly expenditure for herself, her household and M in her updated Form E at the equivalence of HK25,722.90 (B : 197-8) as follows :

34.The Wife’s household of course consists of V as well, and as pointed out by Ms Irving for the Husband, her share of the household expenses should therefore be excluded from the equation and reduced accordingly by 1/3 or about US$800, bringing the Wife’s total expenses down to US$2,520 or the equivalence of just below HK$20,000 per month for herself and M.   

35.The Wife however claims that these are only for the minimum basic necessities, certainly not representative of the standard which she used to enjoy in Hong Kong prior to the breakdown of the marriage, and that usually by the middle of each month she would have exhausted the interim maintenance from the Husband and would have to turn to V for help. She therefore seeks a total sum of HK$36,000 per month for herself and M to cover their reasonable expenses as well as her own health/medical insurance in the proportion referred to above.

36.She claims to also need additional funds to pay for her medical insurance and to purchase a car to drive M around and in particularly for her daily shopping including at the supermarket which she can now only do on foot, and which explains why sometimes she has to take multiple trips to the supermarket as shown in her bank records because she is unable to carry a big load without a car. 

37.The Husband does not dispute that the standard of living and lifestyle which the family used to enjoy was much higher during the marriage, but argues that given his inability to work and earn, and with the financial predicaments now faced by the parties, the Wife should cut down on her expenses by leaving San Jose, according to him one of the most expensive places in the US, and to move back to her home town in Arizona which is much cheaper to rent and where she can get support from her family and siblings to look after M while she works.

38.He also suspects that she may still be an alcoholic and therefore still wastes her money on alcohol as her bank records show her sometimes shopping at some wine shop and hence her monthly food expenses should accordingly be reduced to exclude alcohol, which is denied by the Wife who insists that she has now stopped drinking and was only buying cigarettes at that shop on those occasions.

39.While there is no question of the Wife’s alcoholism and its associated problems in the past, without the assistance of independent evidence, I am unable to tell whether today she still drinks or, as suspected by the Husband, is still an alcoholic, although I am mindful of the fact that it is normally not easy at all for alcoholics to kick the habit or addiction without professional helps. On the other hand, while the Wife was no doubt angry, bitter and argumentative at times at the trial, I find her evidence in the main clear, spontaneous, firm and assertive, and there was no attempt whatsoever to hide her past alcoholic problems in her evidence.

40.Whether the Wife still drinks or not, and even if she still does, I do not think it would have impacted much on her food and household expenses, and the figures put forward by her for a household of 3 are not in my judgment excessive or unreasonable at all. In fact I agree with her that many of her expenses appear to be just basic minimum, and there are not even provisions for other normal expenses such as meals out of home, clothing for herself, entertainment/holiday expenses for the family or her medical insurance, all of which if properly included should bring her total monthly needs to US$3,000.

41.Regarding the argument that she should leave San Jose to move back to Arizona to save on her rental and other expenses, while there is no doubt of the practical benefits of living in her home town and close to her family, the fact that she now lives in San Jose is because that was where the children ended up with after leaving Hong Kong, and where they seem to have settled down and doing well both at home and at school for the past almost 4 years.

42.If therefore it cannot be shown that the Wife’s decision to remain in San Jose is wrong or unreasonable, I believe it is no business of the court or the Husband where she wants to live her life after the divorce, especially when it may mean uprooting the children again and moving them to a new place and environment where they will have to adjust again to new schools and friends, the repercussions of which were never properly investigated at the hearing.

43.Furthermore, while it is generally accepted that living in California is more expensive than in Arizona, there is no evidence of any data or figures before me to show the kind of savings that the Wife would be able to make to justify such a move given the impacts on the children. In any event, there is no evidence that the Wife has the financial means to undertake such a move, nor is there any offer of assistance from the Husband, whose financial position is what I now come to consider.

Husband’s Earnings and Earning Capacity

44.There is no dispute as to the Husband’s past earning capacity as he had been a medical doctor for 30 years with a mostly successful private practice with an annual revenue of HK$8 - 9 million at its peak. While his practice did suffer financially after 1997 with loss of patients, that he was forced to move his practice from the Peak to Central in 2003 where he sublet office space, and that he had been in serious debts after having over-extended his lifestyle during the marriage, it appeared that his business did pick up again in recent years, as his business accounts from 2004 to 2007 (C : 251-254, 546-547, 732-733) and his tax assessments for similar periods (C: 274-278, 543-545) show a healthy annual gross fees intake of between HK$6 - 7 million, which provided him with at least HK$1.5 million in income, allowances and benefits, and from which he was able to regularly pay more than HK$30,000 per month for the maintenance of the Wife and M for the past 4 years without any problem.

45.It is quite clear that the major dispute is over his decision to close his practice and to retire since last October, and whether he should continue to work to earn to support the Wife, which are as aforesaid the most contentious and controversial issues between the parties, as the Wife believes that he should still be able to work in Hong Kong, but instead he just wanted to follow Ms SM to Australia.

46.The Husband has put forward the deterioration of his health condition as the sole reason for his stop practicing and moving to Australia, and produced a total of 5 medical reports in support of his contention (C : 700 – 716) from his own physician for the past 13 years as well as several rheumatologists including 2 experts from the US whom he consulted in the summer of 2008.

47.According to these reports, the Husband appeared to have a long medical history of various ailments since the 1980s, but his current main problems are no doubt his rheumatoid arthritis and its associated or secondary problems including interstitial lung disease and coronary artery disease, for which he explained in details in his last Form E of 15^th December 2008 his reasons for his retiring and leaving Hong Kong for Australia (B : 226) :

“(The Husband) has suffered from ill-health since 2002. He has rheumatoid arthritis, and coronary artery disease plus interstitial lung disease. His health problems are compounded by hypertension (elevated blood pressure) and early type II diabetes. He takes 13 different medications on a daily basis. Life expectancy is reduced and quality of life is seriously impaired. Atmospheric pollution causes respiratory distress. He has therefore been forced to close his medical practice and leave Hong Kong. He has finally managed to pay off all his debts. Due to his age it is well nigh impossible for him to continue to work as a medical doctor in another jurisdiction. If he goes to UK, he will have to retrain and become a GP Registrar. This would involve night calls and a heavy full time work load. He is not fit to do that. If he goes to other countries, he must do examinations and internship, once again requiring a full time commitment which he is not fit to do. He must slow down. Counselling may be the answer but first he needs a qualification. He will attend university for 2 years to obtain MSc in clinical counselling which will permit him to take up work again as a qualified counsellor and he then intends to work as long as he can to provide for himself and to do what he can to fulfil his legitimate responsibilities to his daughter M and son A.” 

48.The Husband’s concerns about his health and his decision to leave Hong Kong are clearly supported by these medical reports, and it would be of particular assistance to refer to 2 of them here.

49.Dr. John Simon, an internal medicine specialist and honorary professor of Hong Kong University, concluded in his report as follows (C : 701) :

“In essence this man has many medical problems. Of concern is his aggressive rheumatoid disease with interstitial lung disease (ILD) causing significant respiratory impairment……This ILD is likely to be progressive and I would most certainly strongly recommend that he moves from Hong Kong which is a city of heavy air pollution to move to a place where the air is much purer as pollution is likely to be significantly detrimental.”     

50.Dr. K.H. Chan, a consultant rheumatologist gave the following impression of the Husband’s medical conditions and his prognosis in his report (C : 703-704) :

“Dr S has chronic progressive Rheumatoid Arthritis for 8 years. Although there has been no significant joint deformity, x-ray showed erosive damage. He has both rheumatoid factor and anti-CCP antibodies, both of which are risk factors of joint damage. His arthritis has so far failed to go into clinical remission despite the various medications and injections received. He may need to consider newer biological treatment such as Humira (Adamulimab) or Mabthera (anti-CD20 monoclonal antibodies) if his joints remain symptomatic. There is no doubt all these newer biological treatments have a higher chance of inducing a remission in his arthritis but these drugs are potent and carry potential side-effects. Careful monitoring is therefore necessary. He will need life-long treatment for his arthritis.

His lung function has been compromised by the presence of Fibrosing Alveolitis (Interstitial Lung Disease) secondary to rheumatoid arthritis, causing difficulty in his breathing even with minor activities. Although there is no radiological evidence of active inflammation in his lungs at the moment, this may occur as long as his arthritis fail to go into remission. Infections, such as bronchitis or pneumonia, which he is at higher risk, may aggravate his lung function and breathing. Though he does not have asthma, he finds pollution a problem and feels better with his breathing in cleaner environment when he travels. Vigorous exercise should be avoided.

It is now known that active rheumatoid arthritis can be associated with an increased risk of coronary artery disease. He does not have the usual risk factors of coronary artery disease such as smoking or hyperlipidemia. It is likely his arthritis may have contributed to his severe coronary artery disease. Good control of his arthritis may benefit his heart condition. His coronary artery disease also contributes to his reduced exercise tolerance. Coronary artery bypass graft operation (CARG) needs to be considered seriously if further cardiac assessment indicates poor myocardial perfusion.

Recent study has shown that monocytes, a type of white cell, can produce pro-inflammatory cytokine TNFa being one of the major target of current treatment of arthritis. It is difficult to determine how much stress contributes to arthritis activity in each individual but stress reduction is likely to help.

Dr S has expressed his intention of retirement in view of his various medical problems and deteriorating health. I think this deserves serious consideration and support from a medical point of view.”

51.None of the makers of these reports were called by the Wife at the trial, and none of the reports were seriously challenged by her by either cross-examination or by her own medical evidence. But Mr. Clement for the Wife argues that neither have any of these reports ever suggested that the Husband is unable to continue to practice medicine, or that he must leave Hong Kong for Australia. He suggests that it was the Husband who raised the questions of retirement and leaving Hong Kong with them, and they just went along with his suggestions.

52.While that is certainly one possibility that cannot be completely ruled out in the absence of any testimony from those doctors, but given the severity and multiplicity of the Husband’s medical problems, and the number of reputable experts involved as well as the general consistency of their findings in all the reports, I am more inclined to accept that they arrived at their conclusions based on their own assessments and observations. Of course there must have been discussions with the Husband during the consultations about his future plan, but I do not believe that they had been so improperly influenced.

53.It is true that the medical evidence before me never suggested that the Husband could no longer practice medicine or that he must leave Hong Kong for Australia, but they also show abundantly clear that his condition has been deteriorating the past few years to the extent that not only was there no remission in his arthritis despite aggressive medication, it has now caused serious associated disorders in both his lungs and his heart which, according to Dr Kevin Brown of National Jewish Medical and Research Centre in Colorado in his review on rheumatoid lung disease (C : 700), would often lead to shortened life expectation and excess mortality.

54.In the same article Dr Brown described rheumatoid arthritis as a common, functionally disabling disease with genetic and environmental contributors, which adversely affects quality of life, functional status and survival, with pulmonary and cardiovascular involvements, which have both occurred in this case, responsible for the majority of rheumatoid arthritis-related deaths.  

55.Faced with this prospect, the Husband explains that his decision to leave Hong Kong was due to the effects of pollution on his interstitial lung disease by aggravating its symptoms including difficulty in breathing, affecting his ability to do even simple exercise such as walking, and exposing him to car exhausts on his way to work in his clinic in Central.

56.Mr. Clement however argues that the effects of pollution on interstitial lung disease have not been established, while the evidence on Hong Kong pollution level published by the Environmental Protection Department’s hourly readings taken at general and roadside stations (Exhibit R4) show that the adverse health effects of air pollution usually only come about after long exposure at roadside, which is not the case for the Husband given the nature of his work.

57.Furthermore, Mr. Clement argues that the statistics from R4 show that over a 2-year period from 2007-2008 in the relevant general stations in Central, there were only 37 hours with pollution levels where “people with existing heart or respiratory illness may notice mild aggravation of their health conditions” compared with 17,483 hours where they would not, which he says does not go to support the Husband’s case of his leaving Hong Kong for health reason because of its heavy pollution.

58.Those statistics and the effects of pollution set out therein must be just a general statement applying to the general population in Hong Kong, they do not and cannot in my view apply to all the individuals equally, as each person’s situation including health condition must be different, and so must be the effects on each of them. Such effects on a young person with asthma, for example, will certainly not be the same as someone much older with a severe case of heart and respiratory illness, as the Husband here.

59.The question to ask must therefore be this : Given his circumstances including his age and medical conditions, and the level of air pollution in Hong Kong, was it unreasonable of the Husband to retire from his practice and to leave Hong Kong? 

60.As stated in the medical reports, he has many medical problems, and apart from those mentioned, also hypertension, sleep apnoea, obesity and irritable bowel syndrome, for which he gave detailed evidence at the trial on the consequences of these conditions, their prognosis, and how they and the associated medications affect his daily life.

61.They include breathlessness because his heart does not function efficiently which causes him to be quickly fatigued and to suffer cold hands and feet. His sleep apnoea runs the risk of a fatal heart attack and requires him to sleep with a continuous positive airways pressure mask to enhance oxygen flow, while the rheumatoid arthritis causes daily problems of stiff joints for 1 ½ hours in the morning before he could go to work.

62.Furthermore, his medication also causes all sorts of side effects such as cramps, mental fatigue, frequent urination, sexual dysfunction, with risks to kidney and liver damage, and above all, as pointed out by some of the reports, the effect of bringing about impaired immunity to infections such as pneumonia and tuberculosis, a risk particularly apparent to him as a doctor, which is another reason, according to the Husband, for his decision to change job.

63.While many of these risks and side-effects would no doubt still be there whether he was to live in Hong Kong or elsewhere, it is also clear in Dr Simon’s view that the pollution level in Hong Kong would be detrimental to the Husband’s health, while Dr Walter Chen recommended a change in lifestyle including regular exercise, avoidance of air pollution, stress reduction, weight loss and better control of hypertension if he was going to survive longer.

64.Furthermore, it would certainly not have been an easy decision for the Husband to walk away from an annual HK$6.5 million business if he was not genuinely concerned about his health and well-being and felt that he had no other alternative, and I do not believe it was done to avoid the Wife’s claims, which Mr. Clement has rightly refrained from raising in his arguments either.   

65.For these reasons I agree with Ms Irving that any person under the circumstances of the Husband would, not surprisingly, take his doctors’ warnings seriously and to take serious steps to deal with his health problems to avoid his own premature demise, and accordingly I am unable to say it was wrong or unreasonable of the Husband to decide to retire and to leave Hong Kong.

66.It does not of course necessary follow that there would be no controversial in his decision to settle in Australia where, Mr. Clement argues, he would be facing so much uncertainty to his future status and earning.

67.The Husband’s evidence, which was only disclosed at the trial, is that he had initially been granted a Subclass 422 Medical Practitioner (Temporary) Visa for 12 months by the Australian government and worked as a general practitioner (GP) for a brief period in Australia late last year upon meeting various criteria including the health, during which he saw 15 to 20 patients a day at a charge between AU$20 to AU$68 each, hence about AU$400 or so a day, the equivalence of about HK$2,000.

68.However he claims to have subsequently stopped that work as he found it too stressful and too demanding for the long periods of travel from home to work, and hence his decision to undertake the 2-year course on medical counselling, for which he claims to have already made the initial payment by borrowing from Ms SM.

69.Mr. Clement is however sceptical about practicality of the Husband’s immediate and future plans in Australia, and questions their feasibility by first pointing out that the job of a counsellor advising people with medical and matrimonial problems is itself as mentally stressful as practising as a GP.

70.Secondly, he points out that for the Husband to obtain his student visa in order to undertake the 2 year-course, he would first have to satisfy the Australian authorities that he can support himself during his period of stay in Australia, as well as to meet the health requirements again. Given his claims to have no income or other financial resources, and that there has been no disclosure of any supportive documents by the Husband, Mr. Clement questions whether he can simply just rely on Ms SM for accommodation and financial support to meet the requirements for the student visa.

71.For the reasons I am going to elaborate below, I admit that I do share Mr. Clement’s suspicion about the Husband’s proposed plan in Australia and that his disclosure thereof has been far from satisfactory, in particularly as to his alleged reliance on Ms SM.

72.Very little is known about Ms SM other than the fact that she used to work at the Husband’s clinic as the office manager earning HK$18,000 per month, and that she is now living in Australia in a big house recently built on a 14 acres land in Queensland owned jointly by her and her husband who now happens to be working in Hong Kong.

73.There is absolutely no information or evidence of her present financial situation to show that not only that she has the means or resources to support the Husband for the next 2 years, but that she is also able to help him with his school fees for his course which in my understanding was not insubstantial. It is not known whether she has a job in Australia or is independently well off, which seems unlikely given her last job and income in Hong Kong, and if she is still being maintained by her husband, how much, and is he aware of her present arrangement with the Husband, and would he continue to support her if and when he finds out about their relationship? There are simply too many questions which have not been answered at all or satisfactorily but which I believe that the Husband should have and could have done so easily.

74.While I accept his explanation that although he has put in his latest Form E his living expenses at HK$57,000 per month, his present situation is that he just lives off Ms SM at her home and that they seldom go out for meals or entertainment, but there are still substantial personal expenses that he would have to meet out of pocket, including his medication of HK$14,000 per month, the balance of the fees of his 2-year course, as well as his proposed monthly maintenance of US$1,000 for M, the total amount of which would require more than HK$700,000 during the next 2 years when he is supposedly mainly studying, which begs the obvious question : How is he going to meet all these payments? 

75.The Husband has of course offered to cash in his MPF fund of about HK$104,000 and to place it with his solicitors in Hong Kong to meet M’s monthly maintenance, but clearly that would only be sufficient for one year at most, and while he claims that he would do whatever job that he could find to support M, even menial jobs such as washing dishes in reply to Mr. Clement’s question, given his medical conditions, I have serious reservation whether this is feasible, and I just wonder whether he has told the court everything about his future financial plan.

76.The same can be said about his reply to another significant point raised by Mr. Clement in cross-examination as to how he proposed to meet the financial criteria of the Australian authorities for the student visa for his 2-year course, when he said he would get Ms SM to transfer her money into his bank account as proof of his financial resources, which begs the obvious question : What money, and what account?

77.Which brings me to the next matter that has admittedly troubled me as well : the timing of the Husband’s decision to close down his clinic and to leave Hong Kong for Australia which I find equally questionable.

78.The Husband’s evidence is that it was upon his consultations of the various medical experts in 2008 and on their advice that he reached his decision to retire. It would therefore be of significance to look into the sequence of these consultations and reports as well as other relevant events as follows :

(a)  consulted Dr Roy Kaplan in California for his report dated 1^st May 2008;

(b)     consulted Dr Marc Cohen in Colorado on 7^th May 2008 for his report dated 19^th June 2008;

(c)     fixed date for this trial by solicitors in Hong Kong on 22^nd July 2008 for 4 days to start on 13^th January 2009;

(d)     consulted Dr John Simon in Hong Kong for his report dated 22^nd September 2008;

(e)  consulted Dr K.H. Chan in Hong Kong for his report dated 28^th September 2008;

(f)   consulted Dr Walter Chan in Hong Kong for his report dated 20^th October 2008;

(g)     informed the Wife by his solicitors’ letter dated 29^th October 2009 that he had closed his medical practice and left Hong Kong permanently.

79.Of these medical reports, the one by Dr Simon expressly recommended the Husband to move from Hong Kong, while Dr K.H. Chan’s supported his retirement. Both reports were given in late September 2008. While it is possible that the other experts might have also made the same recommendations albeit only during consultations, it seems to me that it was these 2 reports that caused the Husband to finally make up his mind, and that could not be earlier than late September 2008.

80.Still, the Husband saw fit to obtain one last report dated 20^th October 2008 from Dr Walter Chen, his physician for the past 13 years, which must be just a few days before he was to close his clinic and leave Hong Kong permanently for Australia according to the said letter from his solicitors. This must beg the inevitable question : Why the urgency to leave when in particularly that the trial in Hong Kong was only 2 months away?

81.While there is no question that the Husband’s medical condition has been getting worse and might even be said to have become literally a matter of life and death to him in the long run, but there is no medical evidence at all to suggest that he would be in immediate mortal risk or danger if he did not leave Hong Kong right away.

82.All that the medical reports recommended was that he should move from Hong Kong as pollution is likely to be significant detrimental to his conditions and that he should seriously consider retiring and changing his life style if he wants to survive longer. There is simply nothing there that could properly explain why the Husband left in the manner that he did, and I can understand why the Wife is suspicious that it might have been an pre-emptive strike to her imminent ancillary relief application.

83.There is no denial of the parties’ mutual loathing and disgust for each other, it was there for all to read in their affidavits and to see at the trial, and the Husband has repeatedly said in his evidence that he had already supported the Wife and her 2 daughters born to her former marriage long enough and well beyond his normal obligations towards them, that he felt that it was time for the Wife to find a job to support herself on her own.

84.There was therefore clearly great reluctance on his part to pay her any more maintenance, in particularly after what she did to him after their separation, which might well form his motive to retire and to leave Hong Kong at that stage before the trial, as otherwise I am unable to find any valid or logical reason behind the Husband’s action.

85.For someone like the Husband who had lived in Hong Kong for almost 30 years in a fairly high standard of living and with a once thriving medical practice which grossed HK$9 million in annual fees at its peak, and more than HK$6.5 million even in its last year, I just find it difficult to believe that he would just leave Hong Kong in such a rushed manner to settle in Australia without absolutely any financial resources but to rely on a married woman whose financial means are far from clear.

86.If indeed the timing of the Husband’s departure and the trial was just a coincidence, and that his plan to retire and to settle in Australia had in fact been properly considered and well thought out for a considerable period of time, which seems to be the case since he claimed to have pay off all his debts and liabilities which stood at more than HK$3.5 million according to his accounts in 2007, and sent the family furniture and household items to the Wife in US before he left Hong Kong, and had presumably also carried out all the necessary steps to close down his practice such as transferring his patients’ files, laying off his staff, settling their statutory payments, and terminating the lease of his clinic, all of which no doubt would have taken much more than a few days, one cannot help to wonder why he seemed to have failed to carry out the most important step : to make proper financial provision for himself during his 2-year course in Australia including his all important medical expenses as well as his school fees when he would be without income?

87.In fact, for a caring and responsible father, which I have no doubt of the Husband, it is also beyond me as to why he seemed to have made no financial plan or secured provision for M before he decided to retire until at the trial when he offered to cash in his MPF fund which, as aforesaid, was barely sufficient for only one year at the rate of US$1,000 per month.

88.The very facts that the Husband was able to pay off all his debts of more than HK$3.5 million as well as settling any financial liabilities of his practice, his clinic and his staff, presumably from his income and within such a relatively short time show that if necessary he could have carried on earning somewhat longer for say another 6 – 12 months to save up enough money for his daughter’s maintenance as well as his own necessary expenses for the next 2 years until he completes his course and starts earning as a counsellor, if indeed that was his plan. This is in my view not only a sensible and logical thing any reasonable person in his circumstances would have done, but more so in this case when his daughter is thousand of miles away from him. 

89.With all the evidence before me and in particularly those I have discussed above, and for all the reasons given, I am inclined to believe that the Husband must have already put in place some resources to meet his various expenses and obligations in his foreseeable future in Australia. I of course do not have any details of what they are or their amount or extent, but it would be naïve to think that they would be of the bare minimum given the financial background of the Husband.

90.Furthermore, even if I were wrong about his financial resources, there is still the evidence of what he could earn as a GP on a temporary working visa during his early stay in Australia, and on part-time basis later on a student visa, which show that he is not totally without any earning capacity, and with free room and board provided by Ms SM, I firmly believe that he is capable of making the kind of financial provisions discussed above not just for M as he has undertaken to do, but also for the Wife.

91.I believe I have already dealt with all the other relevant matters concerning the Husband including his needs above as well as the remaining those under section 7 of MPPO which are in the main uncontroversial, save for one last point raised by the Husband in his closing submission : the Wife’s contributions, or rather the lack thereof according to him, to the welfare of the family as a result of her said conduct.

Conduct and Contribution

92.The Husband’s argument is that the contributions made by the Wife towards the care of M were minimal as she was mainly looked after by their domestic helper while she spent a lot of time drunk, that she refused to cooperate in living within a budget when they were in financial difficulties and overspent recklessly, and above all, that she made no contribution to the development of his career, and that in fact the opposite is true given her conducts in harassing him and his staff at his office and interfering with his professional duties that they should not be ignored in determining her claims.

93.The Wife of course does not agree with the Husband’s case in respect of her contributions towards the care of M, and while the Husband may have the support of a letter from the domestic helper (C : 385) as well as an affidavit filed earlier for the custody hearing, she was never produced as a witness as that matter was subsequently resolved, hence the Wife was never given the opportunity to challenge her evidence at this trial.

94.The evidence also show that the Wife only started to abuse alcohol after she became depressed with various emotional and psychological problems in about 2002 as a result of her cancer and the subsequent mastectomy, which may explain why she appeared to have to rely more on the helper to look after M. This should not however take away her contributions towards M and for that matter the 2 elder daughters as well prior to her health and emotional problems, which went back to 1994 when the parties started their cohabitation, during which she must have properly discharged her duties towards the care of the children up to the time of their marriage in 2001 and after.

95.Similarly, it would also be unfair in my view to put all the blame of the family’s financial difficulties entirely on the Wife, when the evidence suggest that both parties had indulged themselves during the marriage with the Husband perhaps being equally extravagant on his hobbies such as wine collecting and golfing, while it was his own evidence that the economic downturn in 1997 and the consequent losses of his patients were in fact the major contributing factors of his financial foes.    .

96.On the other hand, there is no question in my mind about the Wife’s post-separation conducts chronicled above, in particularly her harassment of the Husband at his office, which are well supported by ample evidence not just from the Husband in his various affidavits earlier filed for the custody of M, but also from many other witnesses exhibited to those affidavits as well as in the trial bundle (C : 422 – 424) whose evidence appear beyond reproached, and indeed had these conducts of the Wife been allowed to continue unchecked, they would have no doubt caused the collapse of his practice and ruined his career altogether.

97.However, and fortunately, that did not happen not because the Wife had finally come to her senses but because the Husband had threatened to cut off his maintenance unless she stopped her harassments, otherwise I agree that the Husband would have a very strong argument that such conducts should be taken into account to deprive or at least reduce her claims over the family assets.

98.As the matter now stands, where there are no surplus assets to be distributed between the parties, Ms Irving has conceded at the trial, quite rightly in my view, that the Husband would not press the issue of the Wife’s conduct when the main consideration for the court in the present case is clearly over the principle of her needs.

Conclusion

99.For all the reasons aforesaid, I have come to the conclusion that the objective of fairness between the parties cannot and will not be achieved by giving the Wife a merely nominal sum of HK$1.00 per annum as proposed by the Husband, as clearly she has demonstrated, as I have found above, to have a reasonable need of US$3,000 per month for herself and M, and while accepting that the Husband’s current earnings and earning capacity have been greatly eroded by his medical conditions, I am nevertheless convinced that he still has the financial abilities and resources to meet those needs at least for the time being, in particularly if the recent changes in his living environment will indeed bring improvements not only to his health as he has so forcefully argued, but also to his financial position as well when he eventually becomes qualified to be a counsellor.

100.Lastly, as to the question of costs, although it can be said that the Wife is successful with her application, given the Husband’s current condition and the Wife’s conduct at the early stage of these proceedings, I propose to make no order as to costs of the application, which is an order nisi to be made absolute at the expiration of 21 days. 

101.My order is therefore as follows :

(a)  The Petitioner shall pay the Respondent US$2,000 per month for her maintenance, commencing from 1^st January 2009 with credit to be given for any payment already made, and payable thereafter on the 1^st day of each month until she dies or remarries, or until further order;

(b)  The Petitioner shall pay the Respondent US$1,000 per month for the youngest child of the family M, commencing from 1^st January 2009 with credit to be given for payment already made, and payable thereafter on the 1^st day of each month until she reaches the age of 18 or completes full-time education whichever is later, or until further order;

(c)  The Petitioner shall within one month pay the Respondent a lump sum equivalent to his MPF fund as his contribution towards the purchase of a suitable vehicle for her use and for the benefit of M;

(d)  In the event of the Respondent failing to purchase such a vehicle within 3 months of her receipt of the said lump sum, the Petitioner shall be entitled to set off his future maintenance payments under (a) and (b) above against the lump sum;

(e)  There be no order as to costs of and incidental to the ancillary relief application save that the Respondent’s own costs to be taxed if not agreed in accordance with the Legal Aid Regulations. This is an order nisi to be made absolute at the expiration of 21 days;

(f)  Section 18 Declaration.

Ms F. Irving instructed by M/S Oldham, Li & Nie for the Petitioner.

Mr R. Clement of M/S Massie and Clement for the Respondent.