CKKA v. WCLI

FCMC 14230/2016

[2019] HKFC 287

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 14230 OF 2016

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J U D G M E N T

(ANCILLARY RELIEF)

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1.  This is the trial of the Respondent Wife (“Wife”)’s claim against the Petitioner Husband (“Husband”) for periodical payments for the maintenance of her and the Daughter of the family (“Daughter”) after a failed Financial Dispute Resolution hearing.

2.  The major issue in dispute is the amount of periodical payment to be paid to the Daughter and/or to the Wife.  The parties have agreed that there are no assets to be shared or distributed in this case.  Considering the financial needs of the parties and of the Daughter, a clean break in this case is not practical. Order for periodical payments has to be made. 

Background and salient facts of the case

3.  The Husband is 46 years old at the commencement of the trial.  He was born and educated in Hong Kong up to Form 5 level. 

4.  The Husband had all along been working mainly in the cargo industry in the past.  He has changed jobs and has worked in different companies in the past years.  He is now working as a customer service supervisor at the airport.  As stated in his updated Form E, he is now earning a salary of about HK$20,000 per month in average, including an overtime payment of about HK$2,000, which is not guaranteed. 

5.  The Wife is 47 years old at the commencement of the trial.  She was born and educated in Hong Kong.  Between 1995 and 2005, the Wife worked as a customer service officer and earned a monthly salary of HK$15,000 per month.  In 2005, the Wife quitted her work and became a full time homemaker when she was pregnant.  She resumed working in 2014 at about the time when the parties started separation.  The Wife is now working as an assistant, earning a monthly salary of about HK$19,000.

6.  The parties started cohabitation in 1998 and later got married in 2003.  Save and except a flat in Tung Chung which was sold in about 2005, the parties have not bought or owned any real properties.  

7.  The parties had been residing in a rented premises in Fanling (“Former Matrimonial Home”), with the monthly rent of HK$9,000 prior to the breakup of the marriage.  

8.  The Daughter was born in 2006 and is aged 11 at the commencement of the trial, studying at an international school as a Year 7 student.

9.  In January 2014, the Husband left the Former Matrimonial Home and he stopped paying rent since July 2014.  The Daughter has been living with the Wife since then.   In 2014, the Wife resumed working.

10.  On 4 November 2016, the Husband filed a petition for divorce on the ground of 2-year separation.  Decree Nisi was granted on 10 January 2017. 

11.  By the Order dated 10 January 2016, the Wife was granted the custody, care and control of the Daughter, with reasonable access be granted to the Husband. 

12.  After a failed Financial Dispute Resolution Hearing, this case had been adjourned for ancillary relief trial.

The Husband’s case and his Open Proposal

13.  The Husband is 46 years old at the commencement of the trial.  He was born and educated in Hong Kong up to Form 5 level.  The background and work history of the Husband is not in dispute.  Most of the years during the marriage, the Husband had been working as a sales executive at a company in the cargo industry (“CFC”) owned by his elder brother (“Elder Brother”), earning salary of about the range between HK$12,000 and HK$24,000 per month.  Apart from the basic salary received, the Husband had received cash allowance from his Elder Brother, being provided with a car to use and being paid for the car expenses.

14.  After working at his Elder Brother’s company for about 10 years, the Husband resigned.  He worked at another limited company (“FGSA Limited”) in the cargo industry, from 25 January 2015 to 30 November 2016, earning about HK$18,500 per month.

15.  On 12 December 2016, the Husband changed to work for another company (“THK Limited”), which is also in the cargo industry, until 13 April 2017.  He was employed as a cargo manager, with his salary being adjusted upward to HK$25,000 per month and with a year-end bonus equals to one basic monthly salary.  During the time the Husband had been working in THK Limited, he was earning in average about HK$27,000 per month.

16.  The Husband then found another job and has started working at another company (“SHK Limited”) to date.  He is now doing customer service work, working at the airport and earning a basic monthly salary of HK$18,000, with additional overtime payment of about HK$2,000 per month.

17.  It is the Husband’s case that, with his present salary, the maximum he could afford is paying HK$8,000 per month for the Daughter.  He is on legal aid and he has limited means.  His case is that he has always been paying about HK$8,000 for the Daughter, and he is willing to continue to pay that sum for the Daughter. He disagrees to pay any maintenance to the Wife.

18.  According to the Husband, after he had left the Former Matrimonial Home, he has been living with his elder sister and her family (“Elder Sister”), who has supported the Husband financially, including allowing the Husband to stay at her home rent free and paying cash to the Husband so that he could pay for the utilities and expenses of the Wife and of the Daughter.

19.  The Husband does not deny that there has been financial assistance from his family all along, but he explains that the financial assistance from his family would stop after the present divorce proceedings and he could not rely on the unwarranted financial assistance from his family in future.

20.  The Husband’s open proposal is continue paying HK$8,000 per month for the Daughter until she reaches the age of 18 or finishes full-time education, whichever is the later.

The Wife’s case and her Open Proposal

21.  The Wife is 47 years old at the commencement of the trial.  She was born and educated in Hong Kong.  The background and work history of the Wife is not in dispute.  Between 1995 and 2005, she worked as a customer service officer at an airline company limited, earning a salary of HK$15,000 per month.

22.  In 2005, the Wife quitted her work and became a full time homemaker when she was pregnant.  The Daughter was born in 2006.  She resumed working in 2014 at about the time when the parties started separation.  During the marriage and before the parties had separated, the Wife had been financially dependent on the Husband.  The Husband was the one responsible for the expenses of the household and Daughter as well.

23.  The Husband moved out of the Former Matrimonial Home on 22 January 2014.  He paid the rent for the Former Matrimonial Home until about July 2014 and did not renew the tenancy.  The Wife rented another premises for the Daughter and herself.  As the Wife was planning to resume working, she started to employ a maid to take care of the Daughter.

24.  According to the Wife, since the Husband has moved out of the Former Matrimonial Home, the Husband has been paying her an average of about HK$13,000 per month as maintenance for the Daughter.  In addition to that, the Husband has also been paying utilities for her home.

25.  Since about September 2014, the Wife had resumed working and has been employed by a tour company, earning HK$10,500 plus an allowance of HK$300 per month with year-end bonus in the discretion of the company from the outset.

26.  In January 2015, the Wife was promoted to be an assistant manager with a salary raise.  As shown in her updated Form E, she is now earning a monthly salary of about HK$19,000 per month.

27.  It is the Wife’s case that during marriage, she did not know the finance situation of the Husband and how much he earned.  But the monthly household expenses were about HK$40,000 per month, which the Husband was solely responsible for. According to the Wife, she only knew that the Husband had been working for his Elder Brother’s company.  The Wife is of the view that his Elder Brother has been helping the Husband and will continue helping the Husband financially in future.

28.  The Wife’s case is that after parties have separated, the Husband had deliberately chosen to do a job with less salary.  She is of the view that the Husband has much higher earning capacity.  The Wife also suspected that the Husband has a share in his Elder Brother’s company and he could choose to go back to work anytime to earn a much higher salary.

29.  It is also the Wife’s case that after the parties had separated, she has been paid at least HK$13,000 per month and also utilities expenses of her home, which the Husband denies.

30.  The Wife is of the view that the Husband has had financial assistance from his family all along, including the provision of free accommodation and monetary support, which shall continue in future.  She is of the view that the Husband has the ability to pay for the amount she asks for.

31.  The Wife’s open proposal is that :-

(a) The Husband do pay to the Wife periodical payments for the maintenance for the Daughter in the sum of HK$9,500 per month;

(b) The Husband do pay to the Wife periodical payments for her maintenance in the sum of HK$3,500 per month;

(c) The Husband do undertake to continue to pay the utilities expenses of the Wife’s household including electricity, gas, water, internet, mobile phone charges, government rent and rate (if any); and

(d) Each party shall bear his/her own costs, with the Husband’s own costs to be taxed in accordance with Legal Aid Regulations.

32.  The Wife had submitted alternative open proposal as follows :-

(a) The Husband do pay to the Wife periodical payments for the Daughter in the sum of HK$9,500 per month;

(b) The Husband do pay to the Wife periodical payments for her maintenance in the sum of HK$5,000 per month; and

(c) Each party shall bear his/her own costs, with the Husband’s own costs to be taxed in accordance with Legal Aid Regulations.

The legal principles

33.  In deciding on ancillary relief claims between the parties to the marriage, the court is required by section 7(1) of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”) to have regard to the conduct of the parties and all the circumstances of the case including the following matters :-   

(a)  the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)  the standard of living enjoyed by the family before the breakdown of the marriage;

(d)the age of each party to the marriage and the duration of the marriage;

(e)  any physical or mental disability of either of the parties to the marriage;

(f)   the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring of the family; and

(g)in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

34.  Pursuant to section 7(2) of MPPO, the Court should also have regard to all the circumstances of the case including the following :-

(a) the financial needs of the child;

(b) the income, earning capacity (if any), property and other financial resources of the child;

(c) any physical or mental disability of the child;

(d) the standard of living enjoyed by the family before the breakdown of the marriage; and

(e) the manner in which he was being and in which the parties to the marriage expected him to be educated.

35.  In the case of LKW v DD [2010] 13 HKCFAR 537, the Court of Final Appeal has provided out 4 principles as to how section 7 shall be approached, which are stated as follows :- 

(a)  The first is that the implicit objective of a section 7 exercise is to arrive at a distribution of assets which is fair as between the parties.

(b)The second is that the concept of fairness requires the refutation of any gender or role discrimination.

(c)  The third principle is that, with a view to eliminating insidious discrimination and promoting fairness, judges should check their tentative views of distribution against a “yardstick of equal division” which should be departed from only for god, articulated reasons.

(d)The fourth principle is that the court should not countenance any attempt to engage in costly and often futile retrospective investigations of the failed marriage which tend to deplete the parties’ (and the courts) resources and to increase antagonism and discourage settlement.

36.  The Court of Final Appeal has further laid down the following 5 steps as to how the Court should exercise the discretion when considering section 7 as follows :-

(a)  The first step in the exercise is to ascertain the financial resources of each of the parties calculated as at the date of the hearing.

(b)The next step is for the court to assess the parties’ financial needs;

(c)  If surplus assets would remain after the parties’ needs have been catered for, the next step in the exercise should generally be for the court to apply the sharing principle to the parties’ total assets, leaving the “needs” question previously considered to be dealt with under that principle.

(d)The fourth step therefore involves considering whether good reasons exist for departing from the principle of equal division.

(e)  When deciding the outcome, the court is not bound to depart from equality in the division of the parties’ assets even if one or more of the factors considered are engaged on the facts.  The weight to be given to such considerations is a matter of discretion for the court.

37.  In relation to circumstances of this case, as there are no assets to be shared, after consideration of the first two steps, the Court can proceed to decide on the outcome of the case.

38.  It is trite law that parties have to make full and frank disclosure of their respective financial circumstances, so as to enable the Court to rule fairly. Adverse inference could be drawn by the Court if there is no full and frank disclosure.

Issues

39.  After hearing evidence and submissions of the parties, I am of the view that the following are issues for the court’s determination :-

(a)  What are the financial resources of the Husband and of the Wife, in particular, whether the Husband can get financial assistance from his family?

(b)What is the earning capacity of the Husband and of the Wife?

(c)  What are the reasonable financial needs of the parties and of the Daughter, in particular, whether the Daughter should continue studying at international school?

40.  The earning capacity of the parties will be considered under Step 1 below.  The reasonable financial needs of the parties and of the Daughter will be considered under Step 2 below.

Step 1: Ascertain the financial resources of the parties

41.  There are hardly any assets of the parties in this case.  They do not have any landed properties.  By looking at the parties’ respective updated Form E, the only valuable assets are some bank balance and mandatory provident fund (“MPF”).  The bank balance of the Husband and the Wife as stated in their respective updated Form E are HK$21,630 and HK$29,320.  As MPF can’t be utilized until the parties reach the retirement age, I agree that in this case, as submitted by parties in the closing submissions, no assets are to be distributed amount the parties for this ancillary relief trial. 

Financial resources of the Husband

42.  The financial resources of the Husband are highly in dispute.  The Wife is of the view that the Husband has been receiving financial resources and support from his family, mainly from his Elder Brother.  There are different sub-issues suggested in the Wife’s case :-

(a) The Husband has a share in his Elder Brother’s company (CFC), and the Husband can choose when to get back to work at CFC

(b) The Husband’s family can provide him with accommodation other than the place at his Elder Sister’s home

(c) The Husband can get financial resources and support continuously from his family, especially from his Elder Brother

43.  It is the Wife’s stance that the Husband’s Elder Brother is very rich and he could continue providing the Husband with financial support.  The Husband agrees that his Elder Brother owns landed properties, has his own company CFC and with children studying overseas.  I agree that having a rich sibling does not mean an obligation has to be placed to help the less wealthy sibling.  The facts and circumstances of the case has to be analysed in view of the legal principles of third party assistance. 

44.  The legal principles in relation to third party financial assistance is not in dispute.  It is agreed that the width of the wording of s.7(1)(a) of the MPPO will include financial assistance made by third parties to the parties to a marriage.  Accordingly, such assistance made by a third party to a husband or a wife may be taken into account in the computation of that party’s overall financial resources. 

45.   It is the application of the legal principles that is in dispute.  Solicitors for the Husband, Ms Wong, submitted that the cases cited and relied on by the Wife are not applicable to our case, as those cases relied on usually involve trust, family businesses or financial support from very wealthy families, which is factually different from our case.

46.  I am of the view that simply relying on the comparison that the husband in other cases are factually wealthier than the Husband in our case is not conclusive. Evidence and circumstances of the case have to be considered and analysed before a conclusion could be made.

47.  It is not in dispute that in considering whether there is third party assistance involved, there are two critical evidential questions for the court to consider, as stated in KEWS v NCHC [2013] HKLRD 314 :-

(1) the extent of the financial assistance provided by the third party to the husband or wife

(2) the likelihood of such financial assistance continuing in the foreseeable future

48.  I will analyse the 3 major areas of financial assistance of the Husband as alleged by the Wife in turn, considering the two critical evidential questions.

(a)  Whether the Husband has a share in his Elder Brother’s company and he can choose when to get back to work at CFC

49.  The Wife has suggested and she is suspicious that the Husband has a share in his Elder Brother’s company and therefore the Husband can choose when to get back to work there, so that he could get financial assistance from either the company or from his Elder Brother.  Such financial assistance includes cash allowance, being provided with a car to use and being paid the relevant car expenses. 

50.  The Husband is of the view that the Wife’s suggestion is groundless.  According to the Husband, he does not have any share in his Elder Brother’s company and he only got financial assistance from his Elder Brother when he worked at his company back those years.  After he had stopped working at his Elder Brother’s company in about early 2015, all sort of financial assistance from his Elder Brother stopped. 

51.  There are no documents or evidence to support the Wife’s allegation that the Husband has any share in his Elder Brother’s company, and there is no basis to conclude that he could choose to go back to anytime the Husband chooses.

52.  From the evidence before me, the Husband agrees that his Elder Brother had provided financial assistance to him, in the form of cash allowance given to him, the provision of a car for him to drive and being paid the relevant car expenses, when the Husband worked in the company.  After the Husband had stopped working at his Elder Brother’s company, from the evidence before me, I cannot conclude that there is still the provision of a car and being paid the relevant car expenses.

53.  In relation to whether there is still financial assistance by way of cash from the Elder Brother, I will consider in later paragraphs.

(b)  Whether there is free accommodation provided to the Husband

54.  It is not in dispute that the Husband has been living at his Elder Sister’s home since he has moved out of the Former Matrimonial Home.  The Wife is of the view that the Husband could have lived at his parents’ home or a property to be provided by his Elder Brother.

55.  The Wife explains that the flat the Husband’s parents is now living had always been the Husband’s residence before he got married.  There are 3 rooms in it and the Husband could move back to live with his parents anytime. 

56.  The Husband explained that the flat his parents are now living is a public housing.  A few years ago, the Husband’s Elder Brother and one of his sisters had purchased the ownership of the flat.  As the Husband does not have any legal or beneficial title to live in that property, and it is not convenient for him to live with his elderly parents who have different waking up and sleeping time from his, the Husband is of the view that he could not move back and live with his parents, and his parents are not obliged to provide him with free accommodation in future.

57.  About a property to be provided by the Husband’s Elder Brother, the Wife explains that as the Husband’s Elder Brother is very rich and he had offered the Husband a place to live in the past, he could provide the Husband with free accommodation.

58.  The Husband explained that sometime during the marriage and when he was still working at his Elder Brother’s company, his Elder Brother had once offered a place for the family to live in, back in about 2009.  But the family had not taken up the offer at that moment and his Elder Brother had never provided a property for the family or for the Husband to live in.

59.  From the evidence before the Court, I am not convinced that the Husband’s parents or his Elder Brother had provided him with free accommodation in the past, and I am not convinced that his parents or his Elder Brother is likely to provide him with free accommodation in the future.

60.  About the accommodation provided by his Elder Sister, from the evidence before me, the Husband has been living at his Elder Sister’s home since he started separation with the Wife.  According to the Husband, he does not have to pay rent or utilities to his Elder Sister, but he would sometimes pay for some items, like order delivery of food or to share some of the household expenses. It is the Husband’s stance that there is no certainty of whether that provision of free accommodation will continue, as when the son of his Elder Sister finishes education, the Husband now has to sleep in the living room.  It is also the Husband’s evidence that the assistance from his Elder Sister would end after the conclusion of these proceedings.

61.  From the evidence before the Court, it is the Husband’s case that his Elder Sister has been helping him not only in providing him with free accommodation, but also helping him, together with the Husband’s mother helping sometimes, to give the Husband money or to pay the utilities and expenses of the Wife and the Daughter, when the Husband is short of money. 

62.  I also notice that in the Husband’s updated Form E, there is no indication that he estimates any increase in his future expenses, including rental expenses.  It is also the Husband’s evidence that his family loves the Daughter very much and is willing to assist the Husband when he is short of money to be paid to the Wife, be it payment of several thousand dollars to be paid to the Wife or to pay for the Wife’s utilities. 

63.  From the Husband’s evidence, the son of his Elder Sister has already finished education.  He sometimes lives at the elder Sister’s home and he sometimes stays elsewhere.  The daughter of the Elder Sister has also finished education and she lives at home from time to time.  There is no evidence, other than what is alleged by the Husband, that his Elder Sister would not continue providing him with free accommodation.

64.  With the evidence before the Court, on balance of probabilities, I accept that in the foreseeable future, free accommodation will continuously be provided by the Husband’s Elder Sister.  

(c)  Whether there is financial assistance and support provided to the Husband

65.  It is the Wife’s stance that the Husband has always get financial assistance from his family, which is unlikely coming from his mother or Elder Sister, but coming from his Elder Brother.

66.  The Husband disagrees.  His position is that after he had stopped working at his Elder Brother’s company, he has no longer received any financial assistance from his Elder Brother.  The financial assistance he now has is from either his mother or his Elder Sister.

67.  The credibility of the witnesses has to be considered in view of the evidence and the supporting documents produced.

68.  The Wife’s evidence is clear and direct and her evidence is not shaken under cross-examination.  I accept that the Wife is a truthful witness.  But it is the Wife’s position that she was not aware of the detailed financial position of the Husband during the marriage and after separation.  Therefore, I have to consider carefully whether the view of the Wife that the Husband has financial assistance from his family and the extent of financial assistance received is well founded and supported by evidence.

69.  In relation to the evidence of the Husband, I have reservation as to whether the Husband had been telling the truth or the whole truth.

70.  During cross examination, when the Husband was asked how much he had been paying for the expenses of the family during marriage, the Husband did not agree that he had been paying as much as about HK$40,000 per month for the family expenses. However, after further cross examination and after the Husband had agreed to (a) he was the only breadwinner of family during the marriage; (b) he was the one paying for all the expenses of the family during the marriage; and (c) the individual items of expenses during the marriage, when added together amounted to about HK$40,000 per month, the Husband then agreed that the total family expenses he was responsible for during the marriage was about HK$40,000 per month.

71.  With the tax returns provided by the Husband, it is his evidence that the monthly income when he worked at his Elder Brother’s company was only between HK$12,000 and HK$24,000.  When asked about how he could manage to pay for the monthly family expenses of about HK$40,000, the Husband explained that his Elder Brother had been providing cash allowance to him, instead of paying him the salary.  Therefore, the actual amount he received was more than the income as reported to the Inland Revenue Department. 

72.  If no criminal intention is involved in defaulting the Inland Revenue Department in giving an inaccurate income information and to evade tax payment, the only reasonable explanation is that the Elder Brother had been financially providing to the Husband out of love. 

73.  According to the Husband, his Elder Brother supported him financially as he knew that the Husband has always been the only breadwinner of the family and therefore he would like to help him and his family.  After the Husband had stopped working at the company, all the financial assistance stopped.  I accept that for the provision of the use of a car, which according to the Husband was sometimes used by him to meet client and it may also be work related, the Husband is no longer provided with the use of the car when he stopped working there.

74.  However, in relation to the monetary assistance provided by his Elder Brother, there is the possibility that such monetary assistance still continues after the Husband had stopped working for the company.  Whether this is the case, evidence and supporting documents have to be looked into.

75.  Considering the financial circumstances as stated in the Husband’s updated Form E, his expenses are more than his monthly income, and it is not stated in his updated Form E or his affirmation that he has been receiving financial assistance from his family.  In the consideration of the financial circumstances of the parties, the Court should be provided with the full picture and the Court expects full and frank disclosure before a fair and just decision could be made.  Without full and frank disclosure as to the extent of continuous financial assistance from the family, the Court can draw adverse inference.

76.  It is submitted by the Wife that the only reasonable explanation that the Husband can survive with means not meeting his ends is that he gets financial assistance from his family, which is most likely to be from his Elder Brother, who has always been helping him financially.

77.  I notice that in the Husband’s affirmation and his updated Form E, apart from admitting that his Elder Sister is providing free accommodation for him, he did not mention or explain about the form and extent of financial assistance his family has provided to him.

78.  In paragraph 9 of the Husband’s Affirmation, he explains that he “had all along after I left the previous matrimonial home been paying the Respondent [Wife] an average of around HK$10,000 to HK$13,000 a month so as to help her with her monthly expenditure and education of the child”.  During cross examination, the Husband clarified that he used to give that sum of around HK$10,000 to HK$13,000 to the Wife when he earned more, but since about 2016, he has only been paying HK$8,000 per month.

79.  The Husband’s position is that as he is earning HK$18,000 per month now, without taking into account about HK$2,000 to HK$3,000 additional overtime payment per month he may get, the Husband’s offer to provide HK$8,000 to the Daughter is the maximum he could afford.

80.  The Husband’s evidence that he only pays HK$8,000 to the Wife since 2016 is contradicted by contemporary documentary evidence.

81.  During cross-examination, when the Husband was asked whether he has always been provided with at least HK$13,000 to the Wife and the Daughter and has been paying for the utilities for the Wife’s home, the Husband disagreed and insisted that he has been paying only HK$8,000 at the material times.

82.  The Wife explained, with reference to the parties’ bank statements, that the amounts of HK$13,000 or more given by the Husband were usually done in 2 or more different sums in a month, such as HK$8,000 and HK$5,000, or HK$9,000 and HK$4,000, or HK$10,000 and HK$3,000, or HK$11,000 and HK$2,000.  The evidence as shown in the bank statements of the parties, which had been gone through during cross examination, is attached in this Judgment as Schedule 1.  It had been summarised by the Wife’s Counsel, Mr. Chong, in the Closing Submissions for easier reference.

83.  During cross examination, when the Husband was asked about the sums he paid, with reference to these patterns as shown in parties’ respective bank statements, the Husband then agreed that his impression was he only gave the Wife HK$8,000. For other sums of several thousand dollars, which made up to about HK$13,000 per month, the Husband explained that the money came from his family.  It should be the case that he either transferred money to the Wife’s account direct or he withdrew money from his bank account and he deposited money into the Wife’s account, and his family would later pay the Husband back.

84.  During cross examination, the Husband further clarified that the financial assistance from his family were either from his mother or his Elder Sister, paid to him by cash.  The Husband also confirmed that his Elder Sister also helped him by giving him about HK$2,000 per month to pay for the Wife’s utilities.

85.  From the evidence and the supporting documents, it could be shown that the monthly sum paid to the Wife is added up to about HK$13,000 or slightly more than that. I accept that the amount of payment to the Wife is about HK$13,000 per month all along.  Taking the Husband’s case that he has been paying for HK$8,000 from his own ability, I accept that the extent of the financial assistance provided by the Husband’s family, whether from his Elder Brother, his Elder Sister or his mother, was about and at least HK$5,000 per month, including the payment of some of the utilities of the Wife’s home.

86.  The next issue is whether the likelihood of such financial assistance will continue in the foreseeable future. 

87.  The Husband submitted that there is no certainty that the financial assistance from his family would continue in the future.  It is also not fair to rely on uncertain assistance from his family.

88.  I agree with the submissions from Mr. Chong, Counsel for the Wife, that when doing the fact finding exercise to consider whether there is the likelihood of such financial assistance continuing in the foreseeable future, the court must look at the reality of the situation and have regard to matters of substance and not just form.  In looking at the reality, the court can take into account not only what a party actually has, but also what might reasonably be made available to him or her if a request for assistance were to be made.  In considering what may occur in the foreseeable future, past conduct is often a useful guide.

89.  With the documentary evidence before the Court, as shown and with reference to Schedule 1 attached to this Judgment, I can see the consistent pattern from October 2016 to September 2017.  From the Husband’s oral evidence, the financial support from his family stills continues, but will end at the conclusion of these proceedings. 

90.  From the evidence before the Court, I accept the following :-

(a) The Husband’s family, especially his mother and his Elder Sister, loves the Daughter very much.  Since the Husband had started separation with the Wife, when there is need or financial requests from the Daughter, the Husband’s family would assist the Husband for such requests for payments.

(b) The past financial assistance provided to the Wife and the Daughter can largely be shown and is summarised in Schedule 1, which largely supports the Wife’s case of at least HK$13,000 per month has been provided to her.

(c) The Husband’s family, especially his mother and Elder Sister has been helping the Husband financially since the Husband had started separation with the Wife.  There is no evidence that such financial assistance would end, except with the Husband’s oral evidence during cross-examination that such assistance may end. The Husband’s family, especially his mother and his Elder Sister had not been called to give evidence to rebut the Wife’s allegations, especially in view of the documentary evidence showing the amount of financial assistance.

(d) The Husband did not state in his updated Form E or his affirmation about the monetary assistance he has been receiving from his family, especially from his mother and his Elder Sister, which the Husband should have done so.

(e) There is no evidence that the Husband’s family is unable financially to continue supporting him or supporting him to make payment to the Wife and the Daughter.

91.  Considering all the evidence before the Court, circumstances of the case and parties’ submissions, I accept that, on balance of probabilities, that there is likelihood of the continuation of such financial assistance in the foreseeable future.

92.  As a result, I am in a position to take into account the sum of at least HK$5,000 as financial resources of the Husband.

Financial resources of the Wife

93.  According to the submissions of the Husband, he suggested that the Wife might have a sum of HK$450,000, which could be used to support the expenses of the Daughter. 

94.  As correctly pointed out by the Wife’s Counsel, the Husband’s solicitors did not raise the issue and did not run the case as to the Wife having financial resources, including the said HK$450,000.  In fact, parties have confirmed that the bank balance of the parties, which is relatively negligible, are not to be distributed amongst the parties.  

95.  During cross examination of the Wife, the Husband’s Solicitors only asked the Wife to confirm the amount of bank balance as at different dates.  The Wife was asked and she confirmed that, as shown in her bank statement, she had HK$353,417.44 in March 2015, AUD$28,184 in September 2015 and her bank balance decreased to HK$54,175 in February 2017.  The Wife was not cross-examined in relation to the reasons of the difference of bank balance.  It was not put to the Wife that she had dissipated the difference in bank balance and it was not put to the Wife that the Husband suspects that she still has the amount of HK$450,000 to be used.

96.  I agree with the submissions of Mr. Chong, Counsel for the Wife, that simply stating the difference in bank balance on different dates of the Wife’s bank statement would not advance the Husband’s case.  Besides, in re-examination, it is the Wife’s evidence that after the Husband had moved out of the Former Matrimonial Home, the Wife and the Daughter had moved home for 2 times, and there was the changing of maids for a few times, and there were medical expenses incurred. It is reasonable to have expenses incurred in moving home, agency fees paid when a new maid is employed and any shortfall of family expenses after the Husband had left the Former Matrimonial Home.

97.  Having considered the evidence before the Court and the submissions, and also the current bank balance of the Wife, I am not of the view that there are financial resources of HK$450,000 now available to the Wife, as alleged by the Husband.

98.  Another aspect the Husband raised is the financial assistance from the Wife’s brother. The Husband criticises that the Wife has financial assistance from her brother to pay for legal costs, instead of helping her with the alleged shortfall in paying for family expenses and helping in the school fees of the Daughter.

99.  The Wife admits that her brother has paid for the legal costs for these proceedings.  I notice that the Wife had not been cross examined about whether her brother has been providing financial assistance to her all along. Therefore, there is no basis to conclude that such financial assistance could continue in the future.

100.  But practically, in view of the amount of costs involved, with the Wife’s brother helping the Wife to pay the legal costs, I accept that there is the possibility that if the Wife needs help in future, she could turn to his brother for help.

Earning capacity of the parties

101.  Current income of the parties is not in dispute, which is summarised in paragraphs 4 and 5 above.  The Husband does not raise issues about the earning capacity of the Wife.  It is the Husband’s earning capacity that is disputed by the Wife.

102.  About the foreseeable earning and earning capacity of the Husband, the Wife has suspicions as to (a) whether the Husband could choose to resume working at his Elder Brother’s company; (b) why the Husband changed jobs after moving out of the Former Matrimonial Home; (c) why the Husband’s had chosen not to continue working in the cargo industry, which he earned more than the present job.

103.  In relation to whether the Husband could choose to resume working at his Elder Brother’s company, analysis had been made above and I am not going to repeat.  The Husband explained that the business and market of the cargo industry could fluctuate greatly. 

104.  The Wife is sceptical of the reason why the Husband had changed jobs quite frequently since after moving out of the Former Matrimonial Home and had chosen not to continue working in the cargo industry.  With the evidence before me, I do have reservation as to why the Husband had changed to customer service work, instead of being a salesperson in the cargo industry, which he has much experience in.  The Husband had explained during cross-examination that the cargo industry is not doing well, but I do not see substantiated evidence in that regard, except the Husband’s oral evidence.

105.  However, at the same time, I accept that the reasons of the Husband changing jobs are not implausible.  Considering also his education and background, I am of the view that if the Husband continues working in the cargo industry, which he had much experience in, he could have a relatively better prospect in terms of earning capacity.

106.  Even if the Husband has chosen to work now in the customer service field of work, with basic salary of HK$18,000, it is his evidence that he could get an additional overtime payment of about HK$2,000 per month.  According to the Husband, the extra overtime payment is not guaranteed, but I accept the Husband’s evidence during cross examination that if given the opportunity, he would choose to work more and earn more for the better provision for the Daughter.  From the evidence before me, and with reference to the Husband’s updated Form E, I accept that the Husband’s income is about HK$20,000 or more per month in average.

107.  According to the Wife, the Husband had been earning much more when he worked at his Elder Brother’s company.  Considering the documents provided by the Husband, including the tax returns, and his evidence, and also with reference to my analysis above, I am of the view that the additional allowance given by his Elder Brother was helping the Husband out financially, but not because of the Husband’s own work performance or earning capacity.  I am of the view that the Husband’s salary is more objectively reflected when he subsequently worked at 2 other companies not owned by his Elder Brother in the cargo industry.

108.  With the evidence before the Court and with the Husband’s background, I am of the view that his earning capacity may be a little higher than what he is earning now, but I am not prepared to rule that there should be substantial increase in his earning capacity, given his educational background, previous work history and previous income.

109.  For both parties, I would say, in general, the Court can expect, with increased experience in their respective jobs, it is likely that they could expect a general increase in salary, but may not be to a very great extent, subject also to other factors and circumstances.

Other relevant matters to consider under section 7 of MPPO

110.  I have considered the financial resources, income and earning capacity of the parties in the above paragraphs.  Financial needs of the parties and of the Daughter will be considered below under Step 2.

111.  H is 46 years old and the Wife is 47 years old at the commencement of the trial.  The parties had started co-habitation in 1998 and they got married in 2003.  They separated in 2014.  Both agree that this is a long marriage.

112.  The parties and the Daughter are in relatively good health.  There are no physical or mental disability of any one of them.

113.  The marital standard of living is not in dispute.  The Former Matrimonial Home the family used to live at was about 400 square feet in size.  No domestic helper had been employed during the marriage.  According to the Wife, the family had vacation overseas at least once every year.  The Daughter had her own room and she participated in a number of extra-curricular activities.  There was a car for the family to use.  It is the Wife’s stance that the family had a comfortable standard of living.

114.  About contributions of the parties, the Husband had been the breadwinner of the family, while the Wife had been a housewife during the marriage.  I am of the view that both parties had contributed towards the welfare of the family.

115.  About conduct of the parties, I am of the view that there is no evidence regarding conduct that would affect my decision in the amount to be awarded. 

116.  The financial needs of the parties and of the Daughter will be considered below. The manner in which the Daughter was being and in which the parties expect the Daughter to be educated will also be considered below under Step 2.

Step 2: Financial needs of the parties and of the Daughter

Financial needs of the Husband

117.  The financial needs of the Husband could be shown in his updated Form E.  During evidence, the Husband had explained some updates of some of the items.  His expenses are recited below :-

 For general expenses:-

Item	Amount HK$
Rent	3,000
Food	4,500
Miscellaneous household expenses	500
Insurance	1,320
Total:	9,320

 For personal expenses:-

Item	Amount HK$
Meals out of home	1,500
Transportation	1,500
Clothing / Shoes	500
Personal grooming	500
Holiday	1,500
Tax	1,000
Others (MPF contribution)	1,000
Total:	7,500

 For child expenses:-

Item	Amount HK$
Maintenance for the Daughter	8,000
Total:	8,000

118.  The Wife commented on some of the expenses of the Husband.  She is of the view that as the Husband is living at his Elder Sister’s home rent free, there is no need at all for him to pay for rent in the sum of HK$3,000.  With my analysis above regarding the accommodation provided to the Husband, I agree that rent of HK$3,000 should not be considered.

119.  In relation to food expenses, the Husband states that he spends HK$4,500 for food under general expenses and an additional HK$1,500 for meals out of home under personal expenses.  I agree with the observation of the Wife that the total sums seem to be exaggerated.  I rule that a total of HK$3,000 for these 2 items are reasonable, with reference to the expenses for food for the Wife and the Daughter.

120.  I accept miscellaneous household expenses of HK$500 and insurance of about HK$1,320.

121.  For personal expenses, as the Husband is now working at the airport, I accept that transportation costs about HK$1,500.  With reference to the marital living standard and also the amounts claimed by the Wife, I am of the view that the amount spent on holiday is excessive and I rule that HK$500 is a reasonable sum.  I accept clothing/shoes in the sum of HK$500 and personal grooming in the sum of HK$500 is reasonable.  I also accept tax in the sum of about HK$1,000 and MPF contribution in about HK$1,000.

122.  As a result, apart from the amount to be paid for the maintenance for the Daughter, the total expenses of the Husband is about HK$10,000 per month.

123.  With my ruling above about the financial resources of the Husband and the financial assistance he could obtain from his family, I am of the view that the Husband is able to meet his financial needs and to provide maintenance to the Daughter.

Financial needs of the Wife and of the Daughter

124.  The financial needs of the Wife and of the Daughter could be shown in the Wife’s updated Form E, which is recited below :-

 For general expenses:-

Item	Amount HK$
Rent	9,500
Food	1,800
Miscellaneous household expenses	200
Domestic helper	4,310
Others (insurance for domestic helper)	35
Total:	15,845

 For personal expenses:-

Item	Amount HK$
Meals out of home	1,200
Transportation	800
Clothing / Shoes	500
Personal grooming	500
Holiday	500
Medical / Dental	300
Total:	3,800

 For child expenses:-

Item	Amount HK$
School fees	10,242
Transportation to school	800
Medical / Dental	150
Extra curricular activities	1,000
Holiday	500
Clothing / Shoes	250
Lunches and pocket money	500
Others (hair-cutting)	50
Total:	13,492

125.  The Wife provided some updates of the expenses.  My understanding of the Husband’s position is that the expenses of the Wife and the Daughter are not generally disputed, except the expenses for school fees.  During cross-examination, the Husband questioned whether the Daughter should continue studying at the existing international school, which costs more than HK$10,000 per month.  The Husband’s stance is that he does not oppose to the Daughter continue studying at the existing school.  His position is that as he could not afford paying that much, he is of the view that the Daughter should change to a local school.  The Husband’s view as stated in the submissions is that continue studying at the existing international school is a luxury.

126.  The Husband does not dispute the facts that the Daughter has always studied at international school, which costs more than a local school, and that it was the joint decision of the parties that the Daughter studies at international school.  The Husband does not dispute the fact that the Daughter speaks Chinese, but could not read or write Chinese, which I understand would be quite an obstacle in changing to a local school.

127.  From the evidence before me, I accept that the parties have always expected the Daughter to study at an international school.  As the Daughter has always studies at an international school, and with the background of the Daughter and the case, I am of the view that the expenses spend on school fees are reasonable financial needs of the Daughter. 

Conclusion

128.  I am reminded of the legal principles as stated in LKW v DD that when considering the outcome of the trial, I need to step back and look at the overall impact of the factors found to be relevant.  Considering all the circumstances of the case, evidence and submissions of the parties, I must have the principles of fairness in mind, when considering the needs of the parties.

129.  I have considered the parties’ submissions, including the Husband’s submissions that the amount of HK$8,000 he is now paying is about half of his income.  The Husband submits that, with the Wife’s own income, together with the HK$8,000 paid by the Husband, the Wife and the Daughter is in fact keeping more or less the same standard of living as before, while the Husband’s standard of living could not be kept.  According to the Husband, that is the maximum amount he could afford and therefore he refuses to pay more than HK$8,000.

130.  I have to point out that the Court should look at substance and not form, and the court is guided by legal principles before making rulings and in the consideration of evidence.  In the circumstances, with the evidence before the Court, I have ruled that the Husband has financial assistance from his family, which is a form of financial resources, of at least HK$5,000 per month of monetary assistance.

131.  Regarding the financial needs of the Husband, as analysed above, I have considered and ruled that the Husband does have support from his family, not only in terms of monetary assistance, but also in relation to accommodation.  At the same time, I also ruled that the Husband has assistance and support from his family, and he will be able to support his own expenses.

132.  I have to point out that when the Court considers the reasonable needs of the parties, with reference to the marital standard of living, it is not to replicate the standard of living.  When parties divorce, one household will generally be divided into two, and inevitably, more expenses will be incurred and it is practical to expect some compromise.

133.  According to the Wife, she has already made compromise in the expenses, such as cutting some of the extra-curricular activities that the Daughter used to join in the past.  At the same time, it is the Husband’s case that his standard of living has been much compromised as well.

134.  I have also considered the financial needs of the Wife and of the Daughter.  I have to emphasise that there is no absolute right or wrong in whether the Daughter should or whether it is more beneficial for the Daughter to continue studying in an international school.  The Court has made a ruling based on the evidence before me, and that I accept it is reasonable for the Daughter to continue studying at international school, which follows that the school fees stated by the Wife are reasonable expenses. 

135.  When or if in future it comes to a stage where the family could not afford to pay for the school fees of the Daughter studying at an international school, the Daughter may then have to change to a local school.  But with the circumstances and background of this case, and the evidence before the Court, I have ruled that the Husband receives financial assistance from his family, which I believe at the moment, can support the Daughter to continue with her education at the same school.

136.  Regarding the amount to be paid for the Daughter, having considered all the circumstances and background of the case, evidence and submissions of the parties, and with the principles of fairness and justice in mind, I am of the view that a sum of HK$13,000 is reasonable. 

137.  I notice in the Husband’s submissions, Ms Wong asks the Court to consider granting an order of maintenance upon a long term perspective, but not of a short term nature, so as to avoid variation that needs to be made at a later stage where unnecessary costs could be saved.  Ms Wong further points out that that if the ruling of the Court relies on third party assistance, the parties might need to come back to Court from time to time applying for variation if that third party assistance no longer exists.  

138.  I can see the concern from the case management point of view.  However, I cannot agree entirely with the submissions of Ms Wong.  While agreeing that the Court should grant an order with a long term perspective, it may be inevitable that application of variation may have to be made in future, if the need arises. The Court should not and would not make a ruling based on convenience or simply for the avoidance of future applications. 

139.  From the evidence before me, I am of the view that the Husband has financial resources and financial assistance from his family in the sum of at least HK$5,000 per month, in addition to the HK$8,000 he confirms is affordable.  

140.  About the maintenance to the Wife, considering all the circumstances and background of the case, evidence and submissions of the parties, and with the principles of fairness and justice in mind, I am of the view that the Husband would not have the ability to pay for the Wife’s maintenance, after paying HK$13,000 to the Daughter. 

141.  However, considering the background of the case, especially in view of the fact that the Wife has always been financially supported by the Husband throughout the marriage, and the fact that the Wife had been granted the custody, care and control of the Daughter, I am of the view that it is fair to order nominal maintenance to the Wife.

Orders

142.  The Court will make the following orders :-

(1) The Husband do pay periodical sum of HK$13,000 to the Wife as maintenance of the Daughter, commencing on 1 December 2019, and on the 1^st day of each subsequent month, until the Daughter reaches the age of 18 or finishes full time education, whichever is the later.  The payments are to be made to the designated bank account of the Wife.

(2) The Husband do pay nominal maintenance to the Wife, which is to commence at the grant of Decree Absolute until the joint lives of the parties or the remarriage of the Wife, whichever is the earlier.

143.  Lastly, I would also give the section 18 Declaration.

Costs

144.  Costs should follow the event.  In view of the orders I have given, I order that the Husband do pay the costs of the Wife for the ancillary relief matters, including all costs reserved.  The Husband’s own costs are to be taxed with Legal Aid Regulations.  This is a costs order nisi which shall be made absolute within 14 days.

SCHEDULE 1