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S v S

Judgment Cited in Precedent Map Related
Vincent
Judgment Date14 March 2005
Year2005
Judgement NumberFCMC6574/2003
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC006574/2003 S v. S

FCMC 6574/2003

THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6574 OF 2003

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BETWEEN

S Petitioner
And
S Respondent

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Coram: Deputy Judge C.K. Chan in Chambers

Dates of Hearing : 21-25 February 2005

Date of Judgment : 14 March 2005

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J U D G M E N T

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1. This is a trial originally fixed for the hearing of the issues of custody and ancillary relief.

2. At the beginning of the trial, it has become clear that custody is no longer a live issue and after some further negotiation between the parties, the issue of access was also agreed. According to the parties’ agreement, joint custody of the only child of the family, C, will be granted to both the petitioner wife and the respondent husband (hereinafter called “the wife” and “the husband” respectively) with care and control to the wife. As to access, the parties agreed that the husband shall have generous access to the child. Their agreement on custody and access was embodied in a consent summons of which I have granted an order in terms. Therefore, the matters of custody and access are no longer the subjects of this trial.

3. The wife is also content with a nominal maintenance for herself and so what really remain for the court’s adjudication are the maintenance for C and the division of the capital assets between the parties.

Background

4. The parties are Swedish nationals aged 32 (wife) and 43 (husband) respectively. The parties met in 1997 when the wife had just completed her university education and started working in Stockholm as an analyst in a stock broking firm. At that time, the husband had just finalized his divorce with his former wife. In about March 1999, the husband sold his apartment and moved in to live with the wife at the apartment which was purchased by her sometime earlier.

5. The husband was and still is a senior executive of a well known company in Sweden (hereinafter called “the Company”). Shortly after cohabitation, the husband was offered by the Company to work as the Finance Manager in the Far East, which means that he has to come to station in Hong Kong.

6. The appointment was accepted by the parties and they got married on 14 August 1999. They were relocated to Hong Kong in September 1999 as a family.

7. As an expatriate staff, the husband was offered rather attractive terms of remuneration. The salary he received can not be described as astronomical, but the perks went with the job were rather generous. The last salary he received before leaving Hong Kong in September 2004 was about HK$60,000. However, he was given free housing of a flat of 2,500 sq. ft. in size in Repulse Bay, full payment of all household utilities by the Company, full reimbursement of school fees, free return tickets for the whole family for holidays in Sweden each year and a monthly sum of about HK$6,000 in traveling allowance. The rental payment for the Repulse Bay flat by the company was HK$80,000 a month. So the total monthly remuneration package for the husband amounted to something more than HK$160,000.

8. As far as the wife is concerned, she initially did not look for employment in Hong Kong. She was quite content just to do some voluntary work for the Swedish community here.

9. On 16, January 2001, C was born. A domestic helper was hired so that C could have the full attention of the wife.

10. Things started to turn sour for the parties after C’s birth for reasons which I think are not material to this trial. It suffices to say that things came to a stage in 2003 that the parties were convinced that the marriage could no longer be maintained and they separated in the summer of 2003.

11. As far as the employment of the husband was concerned, the initial arrangement was for him to work in Hong Kong for 2 years. In 2001, his employment in Hong Kong was extended on a yearly basis. By June 2003, the continuation of the husband’s employment was in doubt because overseas secondment was not supposed to be on a permanent basis and the company was considering to transfer the husband back to Sweden. Despite the separation, the parties thought it might be better for C to continue her living and education in Hong Kong and so it was decided that the husband would try to ask for further extension of his contract here.

12. There is dispute on the exact contents of the agreement reached at that time. On one hand, the wife said both parties simply agreed that they would stay and if further extension of the contract was not possible, the husband would seek alternative local employment so that the whole family could stay. The wife said the husband had breached the agreement in that he had not tried his best endeavours to find local employment after his application for further extension was turned down by the Company. On the other hand, the husband said the agreement being that he would try to arrange an extension of his employment in Hong Kong but in the event that it was not possible and he had to return to the Company’s employment in Sweden, all of them would go because it would be best for C to have the whole family kept in one place. He equally alleged that the wife to have reneged her promise to go back to Sweden in a family.

13. After the wife and C had moved out of the matrimonial home at Repulse Bay, she moved to a flat in Pokfulam and they stayed there with the domestic helper since then.

14. As far as financial support was concerned, the parties agreed that the husband would pay a sum of HK$30,000 per month which represented roughly about half of his monthly net income at that time. The wife managed to find some part time work and eventually she was able to secure a full time job in Hong Kong. Her present salary is HK$21,500 per month.

15. For the husband, he was able to secure an extension of his contract in Hong Kong for another year from September 2003. However, further extension beyond 2004 was impossible because he had already been transferred to Hong Kong for 5 years and it was company policy that someone else should be given the chance to work overseas. He also failed to find alternative local employment and so he had to return to Sweden, which he did in September 2004.

16. It was from here that the matter turned from bad to worse. The first major problem was the physical separation of the husband from C. When the husband was still working in Hong Kong, although he was separated from the wife, he was able to exercise very generous access to C. But now the parties are living in different continents, the access to C is necessarily very restricted. This has prompted the husband to take out an application to have the care and control of C so that she could live with him in Sweden. That application is of course no longer pursued now as the parties have finally agreed on the question of custody, care and control and access.

17. The second problem is the financial support for C. As the wife has now obtained full time employment in Hong Kong, she does not need any financial support from the husband. But for C, the financial support from the husband has to continue as the income of the wife alone can not support both of them to live in Hong Kong. However, the financial position of the husband has changed dramatically after his return to Sweden. He is no longer serving on expatriate terms. Worse still, the rate for income tax is significantly higher in Sweden than in Hong Kong. There is evidence (and I think there is no dispute from the wife on this) that the income tax rate in Sweden is about 46% as far as the husband is concerned. There is evidence (and again I think there is no dispute on this by the wife either) that the net take home income of the husband is now SEK 30,685 (Swedish Currency) per month which is equivalent to about HK$33,753 if we adopt an exchange rate of SEK 1 : HK$1.1. It is simply impossible for the husband to continue the kind of financial support that he has been giving to C when he was still working in Hong Kong. One of the issues now is how much he should pay for C’s support in view of his much lowered income.

18. As far as capital assets are concerned, the parties have kept a number of individual and joint bank accounts during their marriage. In addition, the husband is also entitled to 5 pensions, including state and private pensions at his retirement. The parties can not agree on their division and so an order from this court is also needed.

Maintenance for the Child, C

19. I will deal with the financial support for C first.

The Law on Financial Support for Children

20. In considering financial provision for children, the court has to take into account S.7 (2) of the Matrimonial Proceedings and Property Ordinance, Cap. 192 which is as follows:

“ (2) Without prejudice to subsection (3), it shall be the duty of the court in deciding whether to exercise its powers under section 5, 6 or 6A in relation to a child of the family and, if so, in what manner, to have regard to all the circumstances of the case including the following matters, that is to say-
(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;
(e)
...

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