Lcsa v Ap

CourtFamily Court (Hong Kong)
Judgment Date18 Apr 2019
Neutral Citation[2019] HKFC 105
Judgement NumberFCMC2295/2014
SubjectMatrimonial Causes
FCMC2295A/2014 LCSA v. AP

FCMC 2295/2014

[2019] HKFC 105

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 2295 OF 2014

________________________

BETWEEN

LCSA Petitioner
and
AP Respondent

________________________

Before: Deputy District Judge R So in Chambers (Not open to public)

Dates of Hearing: 24, 25, 28 August 2017, 11, 13, 14, 15 December 2017 and 15 February 2018 (half day)

Date of Judgment: 18 April 2019

________________________

J U D G M E N T

(ANCILLARY RELIEF)

________________________


Index

Preliminaries

Background and salient facts of the case

The Wife’s case and her open proposal

The Husband’s case and his open proposal

The issues in dispute

The legal principles

Step 1: Ascertain the financial resources of the parties

(i) How much of the Wife’s pension should be included

(ii) Whether the Wife’s share of the inherited properties be included

(iii) About MAL

- Whether there is no full and frank disclosure

(iv) Other matters

- In relation to which bank balance be considered

- In relation to whether the gain in selling the shares be included

- In relation to the liabilities of the parties

(v) Earning capacity

- Earning capacity of the Wife

- Earning capacity of the Husband

- Conclusion of the value of the matrimonial assets

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

- Financial needs of the Wife and of the Children

- Financial needs of the Husband

Step 3: Whether this is a “needs based” case or sharing case

Step 4: Whether departure from the equal sharing principle

- Consider the s.7(1) factors

- Consider conduct and all circumstances

Step 5: Deciding the outcome

Observation

Costs

Orders

Preliminaries

1. This is the ancillary relief trial between the Petitioner Wife (“Wife”) and the Respondent Husband (“Husband”). The Wife claims for ancillary relief for herself and the 2 children of the family (“Children”) after a failed Financial Dispute Resolution hearing.

2. The trial had been fixed for 4 days. Unfortunately, there was typhoon on the 1st day and the trial commenced on the next day. At the commencement of the trial, the Husband produced some new documents mainly about the education expenses of the Children. With the consent by the Wife, the trial commenced, agreeing for those new documents to be produced.

3. The case could not finish within 3 days and was adjourned part-heard to December 2017. At the part-heard hearing on 11 December 2017, the Husband produced further new documents, explaining that they were updated financial documents of the Husband and also produced an updated Table of Assets and Liabilities dated 8 December 2017 (details referred to paragraph 91 below). Counsel for the Husband, Mr. Surman, explained that as the Husband was to continue giving evidence, he was under a duty to explain his updated financial situation (mainly about updated bank statements and his finance) and it was necessary to provide the documents for the Court’s consideration for ancillary relief matters.

4. With Counsel for the Wife, Mr. Egerton, consented as to the producing of those documents, the trial continued. However, the issue arose as to different cut off dates of the assets and liabilities of the parties, which was eventually agreed and resolved.

Background and salient facts of the case

5. It is fair to describe this case as a high conflict case, especially in relation to the access issues of the Children.

6. At the commencement of the trial, the Wife is 55 years old. She is a civil servant, earning a monthly salary of about HK$109,670 per month. She was born in Hong Kong and pursued her university degree in the United Kingdom.

7. The Husband is 54 years old at the commencement of the trial. He was born in the United Kingdom and he graduated from a university in the United Kingdom.

8. The parties met each other in 1982 while attending a university in the United Kingdom. They were married in July 1988 in Hong Kong. Two Children were born in the wedlock in 2000 and 2001 respectively. At the commencement of the trial, the elder daughter is 17 years old and the younger daughter is 16 years old, both studying at an international school in Hong Kong.

9. After the parties having completed their education at a university in the United Kingdom, the Wife returned to Hong Kong in 1985 to receive training provided by the Hong Kong government. The Husband began his PhD studies in the United Kingdom.

10. In September 1988, the Wife moved to the United Kingdom to live with the Husband, after she had completed her training with the Hong Kong government.

11. In about January 1989, the Wife got a job as a geotechnical engineer, while the Husband got a job as a metal analyst. In November 1989, they purchased a flat in Northampton in their joint names (“Northampton Flat”) and took out a 25-year endowment mortgage.

12. In 1990, the Husband joined a mining company in the United Kingdom as a mineral exploration geologist.

13. In September 1994, the Wife returned to Hong Kong to work as a geotechnical engineer with the Hong Kong government. She has been employed by the Hong Kong government since then.

14. In December 1994, the Husband resigned and relocated to Hong Kong.

15. In January 1995, the Husband began working for a major Australian mining company based in Hong Kong exploring for minerals in China. In March 1996, the Husband started part-time lectureship at the Department of Earth Science at the University of Hong Kong. He also began working for a Hong Kong based engineering geology/drilling company on a part-time basis.

16. In August 1996, the parties purchased a flat at Tower 23A (“T23A”) as their matrimonial home at the price of HK$3.95 million and took out a mortgage of HK$3.765 million.

17. In March 1997, a limited company (“PL”) was incorporated by the Husband, which undertook consulting work mainly in China, IndoChina and Mongolia.

18. In March 2000, the parties purchased another flat at Tower 18 (“T18”) at the price of HK$5.38 million, and it became their matrimonial home since then. Parties paid HK$600,000 in cash and took out 2 separate loans, one with a mortgage of HK$3.166 million from a bank and the second one of HK$1.614 million from the Hong Kong government.

19. In April 2000, the elder daughter was born and in May 2001, the younger daughter was born.

20. In December 2001, the Northampton Flat was sold. Proceeds were used towards family expenses and the endowment policy. In November 2014, the endowment policy on the Northampton Flat matured and the proceeds of the endowment policy were subsequently divided between the parties in June 2015.

21. In 2002 or 2003, the Husband carried out consultancy work for a Canadian company, looking for mining opportunities in Mongolia, and he was paid with shares of that company.

22. In 2003 of 2004, the Husband established a mineral exploration company (“EAM”) registered in Hong Kong with partners from Canadian major mining company and began travelling extensively for his business, mostly to Mongolia. In March 2005, EAM was listed on the Toronto Stock Exchange.

23. In October 2004, the Wife and her siblings acquired the legal ownership of a property on Caine Road (“Caine Road Property”) and another property at Garfield (“Garfield Property”) from their father, with each holding 25% ownership.

24. In April 2005, the mortgage on T23A was fully paid off and it became mortgage free. The government loan on T18 was eventually paid off in July 2007. Both T18 and T23A are now mortgage free.

25. In November 2005, the Husband set up a limited company (AL), which is a company focusing on mineral exploration in Madagascar. The Husband began regular travel to Madagascar after seed funding of HK$1 million from founding directors and also Hong Kong and UK friends, and family investors.

26. According to the Husband, in mid 2007, he raised the subject of relocating from Hong Kong to the United Kingdom, which the Wife had considered but did not commit.

27. In July 2008, the Husband had an emotional breakdown whilst working in Madagascar, triggered by work load, work stress and global financial crisis impact preventing fund raising on AL.

28. In August 2008, a psychiatrist was consulted and the Husband was diagnosed with anxiety and depression. His medical treatment began. The Husband returned to work for AL as CEO in September 2008. He stopped working again due to relapse of depression in January 2009. He did not work until about July 2010. Since 2008, the Husband has taken anti-depressant and sleep pills.

29. In October 2009, a property in the United Kingdom (“SP”) was purchased in parties’ joint names, which was fully funded by the sale proceeds generated from the sale of the Husband’s EAM shares. According to the Husband, SP was bought with the intention to relocate the family to the United Kingdom.

30. In November 2009, the Caine Road Property was sold. After payment of HK$600,000 to the Wife’s father, the sale proceeds were divided between the Wife and her siblings and the Wife obtained HK$1,085,174.50.

31. The Wife took 6 months off in 2010, from February to August, with no salary and no pension, to take care of the Husband during his relapse.

32. In July or September 2010, the Husband was asked to take over AL and resume the role of CEO. He invested US$250,000 into AL to keep the company afloat, until a strategic Australian investor was found in March 2011. The investor paid US$2 million for 25% in AL’s shareholdings, and assisted in the preparation for the listing of AL on the Australian Securities Exchange. Eventually, in November 2011, AL is listed on the Australian Stock Exchange as AZK (“AZK”).

33. In April 2012, the Husband resigned from AZK and stopped working again.

34. In August 2012, a mutual friend of the...

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