Ypts v Tss

CourtFamily Court (Hong Kong)
Judgment Date27 Feb 2012
Judgement NumberFCMP228/2006
SubjectMiscellaneous Proceedings
FCMP228/2006 YPTS v. TSS

FCMP 228 / 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 228 of 2006

_________________

IN THE MATTER of TKY, THY and TSC, minors
and
IN THE MATTER of Section 10 of the Guardianship of Minors Ordinance, Cap. 13
and
IN THE MATTER of The Married Persons Status Ordinance, Cap. 182
_________________

BETWEEN

YPTS Applicant

and

TSS Respondent
_________________

Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing : 14 – 16 July 2009, 12 March 2010, 20 - 21 January, 22 February, 14 March, 2 June 2011, and 4 January 2012.

Date of Judgment : 27 February 2012.

_________________

J U D G M E N T

_________________

(Children’s maintenance)

1. On 30th November 2006 the Applicant Wife issued an originating summons against the Respondent Husband for a declaration under Married Persons Status Ordinance, Cap. 182 that she is the sole beneficial owner of and is entitled to possession of the 1/F and Roof of a 2-storey village house at Ian Court ( Phase 1), San Wai Tsuen, Yuen Long, New Territories, Hong Kong (“Yuen Long Property”) now being occupied and enjoyed solely by the Husband. She estimated at that time that the house as a whole was worth about HK$1.2 million.

2. In the same originating summons she also sought, under s. 10 (2) of Guardianship of Minors Ordinance, Cap. 13, an order for custody of their 3 children of their marriage then 15, 14 and 8, that the Husband do pay her monthly sums of HK$740, HK$1,460 and HK$2,440 respectively for the children’s maintenance, and for the transfer of his interest in the G/F and garden of the Yuen Long Property to her in trust for the benefits of the children, or that it be sold or secured to meet their children’s past and future maintenance.

3. The case is somewhat unusual in that the parties had actually already emigrated to the U.S. with their children, 2 girls and a boy, more than 10 years ago and made their home there until about 2004 when the Wife filed for divorce in their home state in California, but upon the Husband subsequently returned to Hong Kong by himself in the midst of their divorce proceedings in 2005 without any further participation, and when he failed to comply with certain maintenance orders subsequently obtained by the Wife from the U.S. divorce court, she therefore launched these proceedings in 2006 through her Hong Kong lawyers against the Husband for those reliefs mentioned above.

4. While the Husband may argue that the said property is actually worth quite a bit more at HK$4.8 million, the claims do appear relatively modest and straightforward, but sadly the case had somehow dragged on for far too long, partly for the obvious reason that the Wife was residing out of the jurisdiction, but also because the Husband had during the proceedings raised serious issues over her care arrangement for the children which necessitated investigation by the relevant social welfare organisation, and that at some stage the 2 elder daughters now aged over 18 appeared to be against or at least unsupportive of their mother’s claim against the said property, or so according to the Husband.

5. Matters were further compounded when his mental capacity was at some stage of the proceedings called into question when it emerged that he had been receiving psychiatric treatment/consultation at Castle Peak Mental Hospital and other out-patient clinics thus necessitating the Official Solicitor to step in to consider representing him in the proceedings which at last turned out to be unnecessary when his latest psychiatric report showed that he is mentally capable of representing himself unaided in the remaining proceedings.

6. Nevertheless and as noted above, by the time the matters finally proceeded to trial the 2 daughters were already over the age of 18 and whom the Husband believes to have been working part-time to support themselves and hence no longer need his financial assistance, and that he was also ready to concede on the custody care and control of the son to the Wife and on her entitlement to sole beneficial interest in 1/F and Roof of the Yuen Long Property, but claimed that he barely earns enough to support himself as a garage worker, and has offered to let out the garden of the his property in order to pay HK$2,000 per month for the maintenance of the son, but insisted that he needs the G/F of the Property for his home, hence it should not be sold or otherwise dealt as sought by the Wife in her application. These propositions were however not acceptable to the Wife and so the questions of the children’s needs and the Husband’s means to pay remain the main issues between the parties.

Background

7. The parties were married in 1989 in Hong Kong out of which 3 children were born : daughter TKY on 30th October 1991 and now as aforesaid aged 20, daughter THY on 16th October 1992 and now aged 19, and son TSC born on 4th August 1998 now aged 13. During the marriage the parties ran some trading business in electronic components together and purchased various properties at different times including the said Yuen Long Property which became their matrimonial home in Hong Kong. For some technical reasons not necessary to go into here, the 2 storeys of the said Property carry separate titles in that G/F was registered in the Husband’s name while 1/F was in the Wife’s. It was by all account a comfortable but modest standard of living for the family.

8. In 2000 they emigrated to San Francisco, California after disposing of their business and properties save for the said Yuen Long Property. They rented an apartment in San Francisco as their home and sent their children to the local schools. The Wife then worked as a merchandiser while the Husband worked as a driver/delivery man.

9. In about 2002 the Husband met a traffic accident and while no details thereof have been provided, it is not in dispute that he did receive serious injuries in particularly to his elbow, and was off work for 2 years for which he was subsequently awarded damages in the sum of US$80,000.

10. Unfortunately their marriage started to unravel thereafter mainly over financial matters, and in September 2004 the Wife instituted divorce proceedings in San Francisco whereupon the Husband moved out of their apartment, and after attending court on 23rd and 25th August 2005 initially trying unsuccessfully to oppose the divorce, he left the U.S. a few days later to return to Hong Kong to their Yuen Long Property without any further involvement in the U.S. proceedings.

11. On 29th September 2005 the U.S. divorce court ordered that the Husband shall pay US$495 per month as interim child support, that the Yuen Long Property be sold forthwith, that his share of the sale proceeds be used to pay off the outstanding mortgage, that the remaining funds be paid into a trust account held by the Wife’s lawyers from which withdrawn may be made to meet child support, that the parties shall return to court at a later date for further adjudication regarding the disposition of the remaining funds in the trust account, and that the Husband be restrained from disposing his jeep or to travel outside the U.S. without leave of the court (PB1 : 55 – 60). By then, as mentioned above, the Husband had already returned to Hong Kong and, as I understand it, had also sold the jeep, presumably before his departure.

12. Upon his return to Hong Kong, the Husband initially started a company known as US Dakons Limited dealing in frozen meat presumably with the compensation obtained from his accident in the U.S., but the business turned out unsuccessful and the company was eventually folded in about 2007. Thereafter he was allegedly unable to hold down any full-time job, relying on his elder sister and doing odd jobs such as bringing computers or other electronic goods to China for sale and earning meagre income, until about 2009 when he claimed to have found a more regular job working in some garage as a repairman allegedly earning only HK$7,000 per month which he says were barely enough to support himself.

13. Meanwhile the Wife was granted her divorce by the U.S. court on 5th December 2005 together with an order for custody of the 3 children and for the Husband to pay her US$663 per month for child support (PB1 : 62 – 67).

14. When neither of the said U.S. orders regarding the children’s maintenance or the sale of the Yuen Long Property had been complied with by the Husband, the Wife instituted these proceedings in Hong Kong on 30th November 2006 by issuing the said originating summons against him for those reliefs mentioned above, followed later by an action for essentially the same claims under District Court Civil Action No. 1666 of 2009, for which she subsequently obtained judgment in default of defence in the sum of US$33,746.46 plus accrued interest of US$28,733.17 and costs (PB2 : 493).

15. As noted above, what appeared to be a relatively straightforward parental disputes over what can only be described as a fairly limited amount of children’s maintenance, and the Wife’s interest in what was their former matrimonial home before their departure for the U.S. and which seemed wholly noncontroversial at least on the face of it as far as the legal title is concerned, it is unfortunate that the proceedings had taken far too long to trial, due not just to the fact that it had to be scheduled at the convenience of the Wife to enable her to travel to Hong Kong after making proper arrangement for the children in the U.S., but also because the Husband, who appeared in person throughout, had raised the issue of custody after allegedly receiving e-mails and letters from the 2 elder daughters which he said had caused him great concern over the welfare...

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