XCHRX LAM FUNG LING v. LAM SAI PAK

HCMC 2/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO. 2 OF 1999

(Previously FCMC 6704/96)

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J U D G M E N T

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1. This is an application for ancillary relief transferred from the District Court. The petitioner filed a petition for divorce on 2 August 1996 and obtained custody of the only child of the family on 14 August 1998. By consent, the respondent's interest in the matrimonial home is transferred to the petitioner, subject to a charge of $300,000.00 in respect of the respondent's debt and certain other conditions. The outstanding issue is maintenance for the petitioner and the child.

2. The petitioner gave birth to their child in September 1987. In February 1991, she and the respondent jointly purchased a unit in a Home Ownership Scheme. They both contributed to the down payment, the legal costs, decoration and the costs of appliances. At the time, the respondent worked in China while the petitioner worked in Hong Kong. The child stayed with the respondents' parents during weekdays and with the petitioner during weekends so that the petitioner could maintain her employment.

3. The petitioner and respondents both contributed to the family expenses. At the material time, the respondent earn a monthly salary of $14,000.00 to $15,000.00 and a bonus of $9,000.00. He kept the bonus for his own use. His salary was paid into a bank account from which the monthly instalment of the matrimonial home of about $4,270.00 was paid by direct debit. The petitioner also drew $5,000.00 for the respondent's parents as their pocket money and child minding expenses for their child. From that account was also paid management fees, the respondent's credit card charges and other outgoings of the family. The petitioner earned about $6,500.00 in 1991 which was increased to $12,000.00 in the course of the years. Apart from her personal expenses, her salary was also contributed to the family expenses. It is fair to say that the respective contribution of the petitioner and respondent were 40% and 60% approximately.

4. After November 1994, the respondent ceased contributing to the family expenses as he had to set up a business. The petitioner paid the mortgage instalments from her salary. The monthly payment of $5,000.00 to the respondent's parents ceased. Presumably that was being paid by the respondent personally. The child minding arrangement continued. It is fair to say that since December 1994, the petitioner's contribution to the family expense increased to 70%, after giving credit to the respondent's contribution to child minding expenses. In overall terms, it is fair to say that the parties contributed equally to the family expenses including the matrimonial home. Since December 1998, the child has been living with the petitioner together with the maternal grandmother in the matrimonial home.

5. The petitioner is a merchandiser earning about $12,000.00 per month with year end double pay. Her monthly expenditure is $12,868.00, which includes a mortgage payment of $4,264.00, management fee of $624.00 and rates of $470.00. She contributes $1,200.00 to her mother who lives with her and looks after the child. I am satisfied that the expenses are reasonable and that her present financial condition is tight.

6. The respondent used to earn $25,000.00 a month before he started his own business in 1995. He operated a number of businesses, which according to him, had all closed down after suffering losses. From the bank statements disclosed, it appears that the businesses had good turnover. He is now working under a cooperative agreement with a department store in China earning $5,000.00 per month. Little is known about his actual income. It is doubtful if he has fully disclosed his means.

7. The child is now 11 years old. It is reasonable for both parties to expect that he would be brought up like a member of the middle class family and complete some form of post secondary education. I consider the average cost of maintaining the child with that living standard would be $6,000.00 per month for a seven year period. I bear in mind the welfare of the child as the first consideration. Having regard to that and to the petitioner's and the respondent's earning capacity, I consider a contribution of two-third, i.e. $4,000.00 per month from the respondent appropriate. Accordingly, I order the respondent to pay for the child's maintenance at the rate of $4,000.00 per month with effect from 1 January 2000 until he reached the age of 18 or completion of full time education, whichever the later.

8. The petitioner is self supporting and contributed to the family expenses prior to the divorce. The matrimonial home has been transferred to her, even though she has to pay the mortgage payment. With the respondent sharing in the maintenance of the child, I consider she would be self sufficient and would be able to maintain the standard of living she enjoyed prior to the divorce. Accordingly, I make no order for her maintenance. These orders and the property transfer order happened to have the same effect as maintaining the status quo.

9. I also order that the costs of the proceedings be pay by the respondent to the petitioner and the petitioner's own costs to be taxed in accordance with Legal Aid Regulations.