Matrimonial Causes1986

BRIAN LAWRENCE KING v. JULIE CAROL KING

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CACV159/1986BRIAN LAWRENCE KING v. JULIE CAROL KING

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29939-EN-1998-02-02

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HCMC000005A/1986

1986, No. DJ5

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

(DIVORCE JURISDICTION))

--------------------

BETWEEN
	BRIAN LAWRENCE KING	Petitioner/Applicant

	AND

	JULIE CAROL KING	Respondent

------------

BETWEEN
	JULIE CAROL KING	Petitioner

	AND

	BRIAN LAWRENCE KING	1st Respondent
	CHRISTINE LESLEY THOMPSON	2nd Respondent

----------------

Coram : Deputy Judge Hartmann in Chambers

Date of hearing : 8 January 1998

Date of ruling : 2 February 1998

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RULING AS TO COSTS

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1. In December 1996, Brian Lawrence King, the Applicant, instituted proceedings against his ex-wife, Julie Carol King, in terms of which he sought the variation of an order of maintenance which had originally been made in 1987. His summons was couched in the following terms :-

"The order of the Honourable Mr Justice Mayo (as he then was) dated 4th day of May 1987 be varied so far as it relates to the making of the periodical payments by the Husband to the Wife on such terms as the court shall think fit."

2. Regrettably, there were various delays in bringing the matter to court and it was not tried until November 1997. On 11th December 1997, I handed down judgment. As to costs, my order stated that, in the absence of agreement as to costs, there be liberty to apply. There was no agreement reached. As a result, the parties returned to argue the matter.

The basis of Applicant's substantive claims

3. The Applicant sought to vary the existing order on four grounds. These were detailed in his supporting affidavit as follows :-

"(i) The relevant Order does not differentiate between maintenance payable to my ex wife and maintenance payable to the two children of the family. I am advised that this is wrong.
(ii) My eldest daughter, Gemma, was 18 years of age on the 21st of July 1996 and is not currently attending any further education establishment nor has she been since before her 18th birthday.
(iii) My ex wife has been working in regular employment for several years and has a regular income although I am unaware of the amount thereof.

(iv) My ex wife is cohabiting with a Mr. George Salamon and has been for some time."

4. In respect of the first ground, the ex-wife, that is, the Respondent, agreed at the commencement of the hearing that the original order was too general in nature and needed to be broken down into its constituent parts. That original order had been phrased in the following terms; namely, that the Applicant :-

"..... do pay or cause to be paid to the Wife and children (Gemma and Francesca) periodical payments at the rate of HK$20,000 per month payable monthly in advance during joint lives until the Wife's remarriage or until further order, such periodical payments to be increased annually in accordance with the Cathay Pacific cost of living index."

5. In the orders made under my judgment, I did proceed to break down the original maintenance order into its three constituent parts, isolating and then quantifying the maintenance due for each child and also that which, in my opinion, was still due and payable to the Respondent.

6. In his address concerning costs, Mr Erving, who appeared for the Applicant, argued that the Applicant had been forced to come to court to obtain a rectification of the original order and to that extent, therefore, he had been substantially successful. He argued that there had been no clear and rational proposal made by the Respondent prior to the hearing which would have enabled this rectification at least to have been made by agreement. That may be so but, in my opinion, it would be wrong to think the Applicant had sought nothing more than the re-phrasing of an order which, by reason of the effuxion of time, had become unworkable. It is apparent from the Applicant's affidavit cited supra that the re-phrasing of the order was only one of the matters that he sought. Indeed, the original letter written to the Respondent on behalf of the Applicant identified just two areas of concern. That letter dated 12th November 1996 read inter alia :-

" We are instructed that your daughter Gemma has now reached the age of majority and you are thus not entitled to further payments of maintenance in respect of Gemma.
Further, we have established that you are now cohabiting with one George Salamon and have been for some time, so that these circumstances entitle our client to apply to vary downwards the existing maintenance order."

7. I have read the other correspondence handed to me during the argument on costs and while, of course, the matter of rectifying the wording of the original order was made a central issue in that correspondence, in reality and in substance the Applicant was seeking much more. He was seeking an order that he deal directly with his eldest daughter, Gemma, concerning all her educational and living expenses and an order that he cease paying any maintenance to his ex-wife, the Respondent.

8. In my judgment, in such circumstances, while obviously it is a matter I have considered in the Applicant's favour, I do not believe that an agreement to re-word the original maintenance clause in a way that kept the maintenance at its current level (as I so ordered) would have met all of the Applicant's desires and would, thereby, of itself, have prevented further proceedings.

9. What must be remembered is that the Applicant sought to prove that the Respondent had entered into an arrangement of settled co-habitation with another man and accordingly that she was no longer be entitled to maintenance. In addition, the Applicant sought to show that the Respondent was sufficiently affluent to be able to support herself without the need for further maintenance. In these matters the Applicant was not successful.

10. I do agree, on the papers handed to me, that the Respondent appears to have done little to isolate issues and attempt to settle them without court proceedings. But, with respect, the Applicant is not entirely free of culpability in this regard either.

The Respondent's case

11. It is, in broad sweep, the Respondent's case that, while there may have been a technical restructuring and while the matter of the Applicant's responsibility for meeting Gemma's university costs and subsistence may have been formalised, my judgment supported her in respect of the substantive issues. Accordingly she should be entitled to her costs. There is merit in this argument but in family matters costs do not simply follow the cause. There are other matters to consider.

12. One of those matters is the need for both parties to make full and frank disclosure of their respective financial positions and to act always with candour. In this regard, however, I was critical of the wife. More particularly, on page 6 of my judgment, I wrote as follows :-

"In family law matters of this kind it is axiomatic that the parties must show candour in revealing their true financial positions and exercise a high degree of exactness in ensuring the accuracy of what they reveal. The Respondent in this matter has not assisted her cause by failing to meet those standards of candour and accuracy. However, that being said, it is the task of this Court to seek out the true position even if one or both of the parties have failed to reveal it."

13. In my judgment, this lack of candour on the part of the Respondent is not a matter which I can ignore. The need for candour goes to the heart of ancillary relief proceedings. This is summed up in the words of Lincoln J. in Desai v. Desai (1983) 13 Fam Law 46 :-

"His Lordship said that the husband's lamentable reticence in discovery had struck at the very heart of the proceedings which depended on the candour of the parties. He was directed by s.25 of the Matrimonial Causes Act 1973 to take into account the conduct of the parties and all the circumstances of the case, and the husband's lack of candour and inadequate disclosure of his financial situation was conduct of the gravest importance which should be taken into account."

The law

14. The award of costs is, of course, at the discretion of the court. However, in family matters, as I have said, costs do not simply follow the event. It has been said that there must be the need for some starting point and that must be that costs prima facie follow the event. But that statement of principle may be more easily displaced in family than in other civil matters. In short, in matters such as the one I am now considering, the court has a wide discretion. In the leading case of Gojkovic v. Gojkovic [1992] 1 All ER 275 Butter-Sloss LJ said :-

"If the application is contested and the applicant succeeds, in practice in the divorce registries around the country where most ancillary relief applications are tried, if there is money available and no special factors, the applicant's spouse is prima facie entitled to, and likely to obtain, an order for costs against the Respondent. The behaviour of one party, such as in material non-disclosure of documents, will be a material factor in the exercise of the court's discretion in making a decision as to who pays the costs."

15. In exercising its discretion in family matters, the court, in my judgment, is entitled also to pay some heed to the respective financial positions of the parties. In the case before me, it is not disputed that the Applicant is a man of considerable affluence. He is a senior pilot with Cathay Pacific with additional responsibilities for training. He admits a monthly gross income of about $250,000 per month. He has property and an excellent retirement scheme provided by Cathay Pacific. The Respondent, on the other hand, while she does have the interest in her home (which will provide some security for her in later years), works as a real estate agent for an employer and, at the time of the hearing at least, was earning on average monthly salary of $23,500.

The parties' proposals concerning costs

16. The Applicant has conceded that there should be no order as to costs despite the contention that he has been substantially successful and to achieve this success was forced to come to court. The Respondent, however, has argued that the Applicant should pay her costs as well as his own.

My Order

17. In exercising my broad discretion, I have taken into account all those matters to which I have already referred. While it is not a major factor, I cannot ignore the very material discrepancy in the financial position of the two parties nor the fact that, on a day-to-day basis, the Respondent still has the youngest daughter at home with her as well as Gemma during university holidays. Neither child should be prejudiced, even if only indirectly.

18. Against this, I cannot ignore the Respondent's failure at the outset to make full and frank disclosure. Nor can I entirely disregard the Respondent's apparent failure in the correspondence that I have seen to attempt at least to agree what could be agreed and thereby narrow the outstanding issues. From what I have read, the Applicant appears to have made a more concerted effort in this regard.

19. This has not been an easy matter to resolve. However, in the exercise of my broad discretion, I believe the equities dictate that the Applicant should pay his own costs and fifty percent (but no more) of the Respondent's costs. That is the Order I will make.

The Order

20. The Applicant do pay fifty percent (50%) of the Respondent's costs, to be taxed if not agreed.

(M.J. Hartmann)

Deputy Judge of the
Court of First Instance

Representation:

Mr Erving, inst'd by M/s Erving Brettell, for Applicant

Mr Firmin, inst'd by M/s Fairbairn Catley Low & Kong, for Respondent

29938-EN-1997-12-11

BRIAN LAWRENCE KING v. JULIE CAROL KING

HTML content

HCMC000005/1986

1986, No. DJ5

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

(DIVORCE JURISDICTION)

----------------------------

BETWEEN
	BRIAN LAWRENCE KING	Petitioner/Applicant

	AND

	JULIE CAROL KING	Respondent

---------------------

BETWEEN
	JULIE CAROL KING	Petitioner

	AND

	BRIAN LAWRENCE KING	1st Respondent
	CHRISTINE LESLEY THOMPSON	2nd Respondent

--------------------------------

Coram : Deputy Judge Hartmann in Chambers

Date of hearing : 19 November 1997

Date of judgment : 11 December 1997

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J U D G M E N T

----------------------

1. I have before me an application by Brian Lawrence King, whom I shall call the Applicant, seeking variation of an order of this Court dated 4th May 1987 in terms of which he has been obliged to pay periodical sums of maintenance to the Respondent, Julie Carol King, his ex-wife. The maintenance payments have been for the support of both the Respondent and the two children of the marriage.

A brief background

2. The parties were married to each other in England in 1977 and shortly thereafter settled in Hong Kong where both now permanently reside. Two daughters were born of their marriage. They are Gemma, who was born on 21st July 1978, and Francesca, born on 8th September 1984. In or about August 1985, a year after Francesca's birth, unhappy differences resulted in divorce proceedings. These were at times acrimonious and were not finally concluded until mid 1987. In the result, the Respondent was given custody of the two daughters while the Applicant enjoyed rights of access to them. As concerns property, an agreement was reached which enabled the Respondent to purchase a home for herself and the girls in Sai Kung. That residence, known as 2 Bayview Villas, Tso Wo Hang, Sai Kung, is still occupied by Respondent and the daughters although the elder daughter now spends a good part of the year at university in the United Kingdom.

3. As concerns maintenance, in February 1987 it was ordered by this Court that the Applicant :

".....do pay or cause to be paid to the Wife and children (Gemma and Francesca) periodical payments at the rate of HK$20,000 per month payable monthly in advance during joint lives until the Wife's remarriage or until further order such periodical payments to be increased annually in accordance with the Cathay Pacific cost of living index."

4. In his affidavit of 5th February 1997, the Applicant stated that, as a result of the annual increases, he was then paying a sum of $34,731 per month in terms of the order. It is this order which the Applicant now seeks to vary. His application is not based upon inability to pay, that much he has made clear in his affidavit. It is based rather on four factors.

5. First, the original order did not differentiate between maintenance due to the Respondent and that due to each daughter. When the daughters were younger and (with their mother) constituted a single household that was not a problem. But now, with the daughters that much older, it is argued that the need to differentiate has become critical.

6. Second, the Applicant contends that his eldest daughter is now nineteen years of age, turning twenty in the summer, and is attending university in the United Kingdom. He is funding her university expenses and contends that there should be recognition of the fact that for a material part of the year Gemma is no longer at home with her mother (the Respondent) but is living independently in the United Kingdom on moneys provided by him. He further contends that he should be entitled to deal directly with Gemma in respect of her university moneys rather than having to channel it through the Respondent.

7. Third, it is argued by the Applicant that the Respondent has been working for a number of years and has been earning more than she is prepared to admit.

8. Fourth, it is the Applicant's contention that the Respondent has been and continues to cohabit with a gentleman. This, it is argued, is a relevant factor to be considered in assessing an equitable sum of maintenance as that gentleman, the cohabitee, must be making some financial contribution to the Respondent's household expenses.

The Applicant's present financial position

9. The Applicant has now re-married. There are, however, no children born of the present union. I am advised that his new wife assists in the management of a property company on Lantau Island; the Applicant used to have a financial interest in that company but no longer does so.

10. When he first came to Hong Kong, the Applicant was employed as a pilot by Cathay Pacific. He remains in that employment and now holds a position of considerable seniority with the airline. He presently earns a gross monthly salary of around $250,000 (including housing allowance) from which, of course, there are regular deductions for medical insurance and the like. His long term future is secured with a provident fund that, in another ten years or so, should provide him with retirement capital of around $20,000,000. He owns a residence on Lantau Island in which (subject to fluctuations in the market) he has an equity of some $15,000,000. There is also a holiday home in Australia.

11. In fairness, of course, as I have said, the Applicant does not dispute his present affluence. But in considering any application for variation of a maintenance order, the present financial position of the parties is a fundamental factor for consideration. This is especially so as both daughters are entitled to expect, as far as circumstances allow, the same standard of living as if the Applicant and Respondent had never divorced and had both honoured their financial obligations to them.

12. In considering an application for variation, I am not required to proceed from the starting point of the original order but must look at the matter de novo although obviously any material change in the matters to which the Court was required to have regard when the original order for maintenance was made are of relevance. In my judgment, therefore, in matters of this kind I should adopt the approach approved in Flavell v. Flavell [1997] 1 FLR 353 (at 357G); namely, to look first at the present situation, examine the basis of the original order, consider events since that order was made and decide what is fair in the light of those matters.

The Respondent's present financial position

13. The Respondent's present financial position was a matter of central dispute. It was alleged by the Applicant that, on Respondent's own figures as revealed in her affidavit and her various exhibits, the probabilities indicate that she has been in receipt of a greater income than she has been prepared to divulge.

14. In her affidavit of 28th February of this year, the Respondent stated that she had worked for several years as a property negotiator, being employed in the Sai Kung area by an organization called Town and Country Properties. She indicated in her affidavit that she earned $10,500 per month as a basic salary but, with commissions added, her average monthly earnings were increased to $15,500. However, when asked to supply a copy of her relevant income tax forms for the year ended 31st March 1997, her employer's return of remuneration stated that she had earned a basic salary of $128,000 and commissions of $154,792, making a total income during that tax year of $282,792. This would have averaged $23,566 per month, a figure of $8,066 more than her stated monthly earnings. The Respondent accepted that she had, for the period of that tax year at least, miscalculated her earnings.

15. Perhaps of more concern to the Applicant was the Respondent's stated list of monthly expenses. In her affidavit of 28th February the Respondent set these expenses at around $87,900 per month. These were the expenses, she said, that were incurred by her on behalf of the household, herself, her two daughters and the infant child of her eldest daughter, a boy named Jack. As a result of such outgoings, the Respondent stated that she was left with a shortfall each month. Indeed, it would be a most substantial one. Calculating matters on the basis of her revised earnings of $23,500 per month and allowing for the Applicant's maintenance of $34,731, it would leave a monthly deficit of approximately $29,500; an annual shortfall in excess of $350,000.

16. In the course of cross-examination, having been shown summaries of her bank statements for the past eighteen months which revealed an average monthly withdrawal of just $61,669, even making allowance for certain credit card bills, the Respondent was constrained to accept that she had, in fact, originally miscalculated her monthly expenses, setting them at too high level. Those figures, she said, had not been double-checked before being enshrined in her sworn document. In fairness to Respondent, she did submit a revised schedule of expenses which totalled $67,255 per month, a figure much closer to her proven monthly withdrawals from her bank. The revised schedule, however, on her own admission, did not include what might loosely be called 'extras' which would, to a degree, increase those average expenses.

17. With an accepted monthly income averaging $58,250, the Respondent said that she did her best to cope with her expenses which were in excess of her income by having recourse to overdraft facilities and credit card spending. It was suggested to her, however, that the figures had to indicate an undisclosed source of income, one to which she would make no admission. Specifically, it was put to her that the extra moneys had to come from the gentleman with whom she was having an affair, moneys that he paid towards the household expenses because he was cohabiting with her. This was denied by Respondent. She did not live with that man, she said. At best he stayed over for a night or two when he was on business in the region. He paid for the occasional dinner and brought her the odd gift but there was no contribution to household expenses.

18. How then do I approach the matter? In family law matters of this kind it is axiomatic that the parties must show candour in revealing their true financial positions and exercise a high degree of exactness in ensuring the accuracy of what they reveal. The Respondent in this matter has not assisted her cause by failing to meet those standards of candour and accuracy. However, that being said, it is the task of this Court to seek out the true position even if one or both of the parties have failed to reveal it.

19. Family law courts are regularly faced with the situation where parties attempt to minimise their incomes and maximise their expenses. It is trite to say that, within the bounds of rationality, any list of expenses can be creatively expanded or contracted to meet any need. Too often parties detail their monthly out-goings not on the basis of what prudence and reality have dictated but rather on the basis of what they believe they should be entitled to spend. Hence, as was said in Moon v. Moon[1989] 1 FLR 115 per Waterhouse J :

" The Divisional Court has said over and over again, in considering appeals from magistrates, that it is essential, whether one is considering the wife's maintenance or a child's maintenance, to take as the starting point the actual earnings of the parties in gross terms and to make basic calculations on that footing without being unduly influenced by detailed calculations of the outgoings on either side. Outgoings are not wholly irrelevant but the primary calculation and the essential starting point is the gross earning capacity or actual earnings on the one hand of the father and on the other hand of the mother.

When one adopts that approach one sees how surprising it is that a man with an earning capacity in excess of 4,000 per annum gross should contribute only 3 a week each to the maintenance of his two dependent children."

20. I have considered Respondent's evidence with care. I have studied her various exhibits. Having done so, despite her initial lack of candour, I am satisfied that it would be wrong to draw an inference that her monthly expenses are, in fact, in the region of $87,000 per month. I am further satisfied that it would be wrong to draw any inference that the Respondent is in receipt of an undisclosed income from the gentleman with whom she has been conducting an affair. In my judgment, the reality of the Respondent's financial position is more accurately reflected by stating that, due regard being had to the volatility of the Hong Kong property market, she earns an average of about $23,500 per month and has monthly expenses at this time of about $59,000 - $60,000 per month. This leaves her with a shortfall of approximately $35,000 per month, a sum which the Applicant accepts that he is well able to pay.

21. I accept, of course, that the figures have been calculated historically and I accept that Gemma now spends a good part of the year at university in England, a significant extra expense which is being met by the Applicant. But it must be remembered that Gemma still uses the Respondent's home as her home during vacation time and all the household 'basics' must therefore remain in place for when she is back in Hong Kong. It must further be remembered that, although there has been an annual cost of living increase in the maintenance, there has not at any time been a re-assessment of the maintenance taking into account, for example, the fact that both daughters are now young women and that much more expensive to maintain. In such circumstances I do not think it would be equitable at this time to cut back on Respondent's total maintenance by reason of the fact that Gemma attends university.

Respondent's alleged co-habitation

22. The Respondent has denied any form of settled co-habitation with the gentleman with whom she has admitted a love affair. That man lives in England, she said, and does no more than stay for short periods of time when he is passing through Hong Kong on business. She has admitted going on holiday with him but does not admit any contemplated relationship of a permanent nature. The Applicant himself (who, in my judgment, gave his evidence without exaggeration in the fairest manner) accepted that the evidence in his possession of settled co-habitation was at best oblique. In all the circumstances I am satisfied on the probabilities that there is not at this time (nor has there been in the recent past) any state of settled co-habitation between Respondent and that man.

23. It is clear in our law that mere acts of sexual intercourse are not sufficient to deny a woman periodical payments of maintenance. See, for example, Stead v. Stead [1968] 1 All ER 987. Of course, when a woman conducts a settled sexual relationship falling short of cohabitation it may be that the sense of justice of the reasonable man and reasonable woman would be offended if the same were not taken into account when determining the woman's award of periodic payments, notwithstanding that the woman derives little (if any) financial benefit from the relationship. But there is no settled principle on the matter. As was emphasised by Thorpe J. in Atkinson v. Atkinson [1995] 2 FLR 356 :

"....... it seems above all that the court should strive to discern the realities in determining what weight to give to the factor of cohabitation."

24. In S. v. S. [1986] 3 All ER 566 the Court was called upon to consider a similar situation to the one under consideration in this present case; namely, where the ex-wife accepted that she had a lover who was occasionally generous to her by way of presenting gifts and the like but where she made it clear that she had no intention of allowing the relationship to develop into one of settled co-habitation. Waite J. (at page 573) said :

"The husband's counsel cited a number of cases in which judges have been called on to deal with the impact on a husband's maintenance liability of relationships maintained by particular claimants, in varying degrees of intimacy or dependence, with a third party. No principle is in my judgment to be deduced from them, nor, with respect, do I see how such issues can ever be concluded by authority. In a jurisdiction as discretionary as this one, such relationships are certainly to be taken into account as one of the many factors to which the court is bound to have regard, but in the delicate weighing process which the discretion involves of one factor against another, they are not entitled to any advance marking on the scales."

25. In discerning the realities of the relationship between the Respondent and her gentleman friend, I am satisfied that it would be wrong at this time to make any finding that impacted adversely on the wife's entitlement to reasonable periodical maintenance from the Applicant. I understand, of course, that the Applicant does not wish to pay maintenance which will be used in part to support the living of another man. Very few men would be happy with such a situation. But I am satisfied on all the evidence presented to me that this risk does not presently exist.

The Respondent's need to be self-sufficient

26. As one of the reasons for urging that the Applicant's continuing maintenance payments to the Respondent should cease, the Applicant's counsel has urged upon me that the Applicant is entitled to know that there will be some finality in the matter. As he put it, it was only a seven-year marriage and if maintenance payments continue until the year 2002 then Respondent will have received maintenance for a period of time double the length of the marriage.

27. That may be so but it must be remembered that two daughters were born of the marriage and they have been in the Respondent's custody. The youngest daughter is still going to school here in Hong Kong and to a degree, the Respondent must set the pattern of her life around the educational and social needs of that daughter.

28. While ideally the courts seek a situation in which both parties are self-sufficient this can only be achieved when circumstances allow. At this time the Respondent's expenses are inextricably bound up with those of her children and in my judgment the circumstances are therefore not right for a finalisation of maintenance payments to her. I accept that Respondent owns her own home in Sai Kung in which at this time she has a free equity of some $6,000,000. But, with both daughters using it as their residence too, I do not see how Respondent can be pressed into selling the home.

Payment of Gemma's university expenses

29. The Respondent has raised no objection to the Applicant dealing direct with Gemma concerning her university fees and expenses. It does, in fact, in the circumstances, appear to be the ideal solution. The Respondent emphasises, however, that during university vacation Gemma returns to Hong Kong and during those several months she lives at home. This naturally adds to utility charges, food bills and the like. The Respondent seeks some assistance with these extra costs. I consider it to be a reasonable request.

30. As to the quantum of that support, reduced to a monthly figure, in my judgment a sum of $2,500 would be appropriate.

31. At this juncture let me say that the Applicant must be commended for the forthright manner in which he has accepted his financial responsibilities to both of his daughters. He has, for example, for some time now been providing extra moneys to both girls.

Orders

32. Accordingly, my orders are as follows :

33. The Applicant (the husband) having undertaken to be responsible for payment of all fees and other reasonable expenses, including subsistence allowance and travel costs, to enable the daughter, Gemma (born 21st July 1978) to complete her tertiary education and having undertaken to deal directly with the institute of learning and with Gemma in respect of such fees, expenses and allowances;

Now therefore it is ordered :

1. That the order of this Court dated 11th February 1987 be and is hereby varied as concerns the payment of periodical payments of maintenance to the Respondent (the wife) and the two children of the marriage, Gemma and Francesca, so that such order shall now be as follows :

a. That in addition to those moneys payable in terms of his undertaking, the Applicant (the husband) shall pay to the Respondent (the wife) as and for the maintenance and support of Gemma the sum of $2,500 per month, the first such payment to be made on 3rd January 1998 and thereafter on 1st day of each month until Gemma shall have completed her tertiary education or be in full-time employment whichever shall be the sooner.

b. That the Applicant (the husband) shall pay to the Respondent (the wife) as and for the maintenance and support of Francesca the sum of $12,500 per month, the first such payment to be made on 3rd January 1998 and thereafter on 1st day of each month until Francesca shall have completed her full-time education or have attained the age of 21 years whichever shall be the latter.
c. That the Applicant (the husband) shall pay to the Respondent (the wife) as and for her maintenance and support the sum of $20,000 per month, the first such payment to be made on 3rd January 1998 and thereafter on 1st day of each month until the Respondent's death or marriage or until further order.

d. That in respect of each order of maintenance, each shall separately be increased annually in accordance with the Cathay Pacific cost of living index.

2. In the absence of agreement as to costs, liberty be and is hereby given to either party to apply.

(M.J. Hartmann)

Deputy Judge of the Court of First Instance
High Court

Representation:

Mr C.P. Erving, inst'd by M/s Erving Brettell, for Applicant

Mr Pilbrow, inst'd by M/s Fairbairn Catley Low & Kong, for Respondent

31777-EN-1986-11-26

BRIAN LAWRENCE KING v. JULIE CAROL KING

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HCMC000005B/1986

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Headnote

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Divorce - maintenance.

- Implications of substantial solicitor and own client costs. Where such costs have necessarily been incurred they should be taken into account when apportioning assets between the parties.

- Considerations which are relevant when one of the parties has a contingent interest in a Provident Fund.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

NO. 5 of 1986

________

BETWEEN

	BRIAN LAWRENCE KING	Husband

	and

	JULIE CAROL KING	Wife

__________________

BETWEEN

	JULIE CAROL KING	Wife

	and

	BRIAN LAWRENCE KING	Husband

	and

	CHRISTINE LESLEY THOMPSON	2nd Respondent

_________________

Coram: The Honourable Mr. Justice Mayo in Chambers

Date of Hearing: October 21, 23-24, 27-31, 1986 & November 3-7, 10-11, 1986

Date of Delivery of Judgment: 26 NOV 1986

___________

JUDGMENT

____________

1. The parties were married in April 1977 in England. Shortly after this, they moved to Hong Kong. Mr. King is an airline pilot with Cathay Pacific and Mrs. King is a state registered nurse. It is common ground between the parties that initially the marriage was a happy one. In September 1934 or thereabouts, Mr. King left the matrimonial home in Sai Kung and shortly thereafter, commenced cohabitation with a Mrs. Thompson who is named as the 2nd respondent in Mrs. King's petition. At the time when Mr. King left the matrimonial home, Mrs. King was in England. She was giving birth to Francesca the second child of the marriage. Mrs. King then returned to Hong Kong to continue living in the home in Sai Kung.

2. Mrs. King filed a petition seeking a judicial separation on the 17th of August 1985 which was based upon Mr. King's adultery with Mrs. Thompson. On the 19th of August, Mr. King in turn filed a petition for divorce which was based upon Mrs. King's alleged misbehaviour. Mr. King claimed that the marriage had broken down irretrievably and that Mrs. King had behaved in such a way that he could not reasonably be expected to live with her. Mr. King filed a supplemental petition on the 29th of April 1986 and at the commence ment of the proceedings before me, I granted leave for him to file a further supplementary petition. These two supplementary petitions contained allegations of further acts of misbehaviour by Mrs. King. To complete the picture, Mrs. King amended her petition shortly before the hearing and the substance of her amendment was to seek to pray for the dissolution of the marriage rather than for a judicial separation.

3. When the proceedings started, Mr. Payne for Mr. King informed me in open court that he was prepared to discontinue Mr. King's petition for divorce if Mrs. King was willing to give an undertaking that if she obtained a decree nisi of divorce on her petition, she would at the expiration of six weeks make an application to the court for the decree nisi to be made absolute. Mr. Payne advised me that the reason for making this offer was that Mrs. Thompson was expecting a baby in January 1987 and that Mr. King was most anxious that this baby should be born in wedlock. It was his intention to marry Mrs. Thompson as soon as he was free to do so. Mrs. King was not prepared to give any such undertaking. Mr. Poll who was representing her submitted to me that Mr. King's petition was ill conceived and without foundation. He went on to suggest that the charges made by Mr. King in the petition were trumpted up charges and that the petition was bound to fail. He did not see any reason why Mrs. King should be blackmailed into a situation whereby she would be implicitly condoning Mr. King's conduct in prosecuting a petition in this manner.

4. In view of the fact that it might be impossible for Mr. King to marry Mrs. Thompson before the birth of the baby, it was necessary for him to proceed with his petition. I would say immediately that this was a most unfortunate and unhappy situation., It is agreed by the parties that they do not possess great wealth. The consequence of Mr. King having to proceed with his divorce petition which was strenuously opposed, was to substantially inflate legal costs. Indeed the proceedings before me took 14 days which meant that both parties' costs have swallowed up the assets which are available for distribution between the parties. I was told at the conclusion of the hearing before me that the husband's costs were in the region of half a million dollars and that the wife's were about two hundred thousand dollars. I regard this as being a tragedy.

5. While Mrs. King was being cross-examined. by Mr. Payne on the 11th day a short adjournment was sought. When the hearing resumed, Mr. Payne repeated his offer not to proceed with his client's petition if a satisfactory form of undertaking along the lines I have indicated was forthcoming. Mr. Poll then informed me that he had instructions to give such an undertaking. Mr. Payne did not then continue with his petition.

6. In addition to the petitions for divorce, I also had to consider an application by Mrs. King for ancillary relief and an application by Mr. King for reasonable access to the two children of the marriage; Gemma aged 8 and Francesca aged 2. It will be appreciated. from what I have already said in connection with the costs which had been incurred that it is imperative for me to form some views concerning the defended divorce proceedings.

7. Mr. Poll maintained his stance that Mr. King should never have commenced divorce proceedings based upon Mrs. King's misbehaviour. He argued that he should have either waited two years or five years after the separation depending upon whether Mrs. King's agreement was forthcoming before commencing action. The consequence of Mr. King proceeding in the way he had was to incur enormous costs which were entirely unnecessary. If I understood him correctly he suggested that such expenditure amounted to a dissipation of the family assets. I was referred to Martin v. Martin⁽¹⁾ as authority for the proposition that where a party has since the breakdown of a marriage dissipated family assets, this should be taken into account in determining the manner in which the remaining assets will be appropriated between the parties. I accept that this is good law and is applicable to the circumstances-of this case. This being so, it is necessary for me to weigh and consider the evidence adduced before me in the divorce proceedings in an endeavour to determine whether or not Mr. King was justified in incurring the very substantial legal costs which have arisen. It is not even quite a simple as this. I must also consider matters which do not necessarily fall within the parameters of the divorce itself. I refer to the substantial costs which also arose in connection with Mr. King's endeavours to obtain access to Gemma and Francesca during the intervening period from the separation up to the present date.

8. I am faced with a rather difficult task. Mr. King was able to present all of his case prior to the undertaking being given. Mrs. King was not in such a happy position. She gave her evidence in chief and had been subjected to cross-examination for approximately two days. It is accordingly essential for me to bear in mind that Mrs. King did not have a full opportunity of presenting her side of the case.

Fortunately the position is not quite as difficult as this as I did have a very good opportunity of observing her in the witness box over a considerable period of time and was able to make a fairly good assessment of her as a witness. Also it is strongly my view that any other witnesses she may have decided to call would have been of peripheral importance having regard to the main issues requiring determination. I am satisfied that there was sufficient material before me to enable me to have a good idea what would have been the probable outcome of the divorce petition presented by Mr. King.

9. The two main witnesses on Mr. King's petition were himself and his mother. I generally find Mr. King to be a fairly truthful person. I regret, however, that I definitely formed the impression that on a number of occasions he did tend to exaggerate his evidence. I also came to the conclusion that on several occasions he presented a distorted view of what I think must have transpired. This, however, is understandable in the context of matrimonial proceedings.

10. I also derived considerable assistance from the testimony of Mrs. King senior. She was an excellent witness. She is an impressive person who has had considerable experience of life. Her husband, Mr. King's father, was also an airline pilot with Cathay Pacific. She therefore had a very good idea of the demands and stresses which are likely to arise in the life of an airline pilot. Mrs. King senior did in my view attempt to give her evidence fairly. She agreed that she is deeply devoted to her son and I think accepted that this could lead to some bias on his behalf. She was not wholly critical of Mrs. King. She agreed that in the early days of the marriage, it had been very successful and that she and her bushand had become very fond of Mrs. King. It was only in the latter part of the time when the parties were living together that the situation deteriorated and her feelings towards Mrs. King had become less warm.

11. Mrs. King junior was not in my opinion such a good witness. It was definitely my impression that on several occasions, she deliberately gave false evidence. Having said this I would hasten to add that I had no hesitation in believing a great deal of the evidence she gave. On several occasions, I was prepared to accept her testimony where it was in conflict with Mr. King's.

12. I will now address myself to the main complaints which are made in the petition and the two supplemental petitions. There is a general complaint that Mrs. King was of a jealous disposition and was constantly suspicious of Mr. King. There is also an allegation that she was a very indiscreet person who was in the habit of discussing intimate family matters with all the neighbours. One particular incident was specificially referred to in support of the allegation of jealousy. This occurred shortly after the parties started living in Hong Kong in 1977. Mr. King gave evidence that he returned from a flight and proceeded to go to the Aeroclub where he had a drink with some of his friends and colleagues. Mrs. King had telephoned him on a number of occasions requesting him to come home. He had not immediately done so. Mrs. King had then telephoned on yet another occasion and threatened him that if he did not come back within half an hour, she would lock the door and prevent him from entering the home. He had not immediately returned.

13. When he did go back, he found that Mrs. King had implemented her threat and had locked the door. She had refused to answer the door when he had rung the bell. He then tried to gain entry to the house by climbing a drain pipe which ran up to the bathroom window which had been left open. When he had climbed to the level of the window and was attempting to enter, Mrs. King had attempted to prevent him from doing so, thus placing him in considerable jeopardy because there was a definite risk that if he had fallen, he could have sustained serious injuries as there was a wall below the pipe.

14. Having heard Mrs. King's evidence on this, I came to the conclusion that' Mr. King had definitely exaggerated his evidence. What is more important though is to attempt to understand this incident in an overall context. It is not difficult to imagine the apprehension and concern of a wife who knows that her husband is drinking at a Bar with his friends and has to drive a motor car back home to an area such as Sai Kung. It is very understandable that she would be concerned that he would not be in an intoxicated condition when he drove home. I have little doubt that Mrs. King was angry over the incident and did not immediately agree to allow Mr. King to enter the home. I do not though believe that she attempted to prevent him from entering the bathroom window in the manner described by Mr. King.

15. I will now deal shortly with one of the other incidents which is referred to in the petition. This occurred on Christmas day 1981, The Kings were throwing a party which was attended by a number of guests. Mr. King agreed that he had had a few drinks. When he was in the garden facing the fence he commenced urinating. Mrs. King saw this and became agitated. She went across and pushed him so that he fell down the slope and came into contact with the barbed wire at the base of the slope. He sustained some scratches and his clothing was torn. Following this, Mrs. King administered a tetinous injection. Mr. King claimed that she deliberately caused the injection to be made in such a way as to be very painful to him, Mrs. King denied having pushed him down the slope. She claimed that she put her hand on his shoulder and that he was in such a drunken state that he then fell down the slope of his own volition.

16. So far as this incident is concerned I prefer the evidence of Mr. King to the evidence of Mrs. King. I think that Mrs. King did push Mr. King down the slope. I do not though believe that she did it maliciously. I think it much more likely that she lost her temper when she saw him urinating in the presence of guests. I do not think that she had any intention of causing him injury. I also do not believe that she deliberately administered the tetinous injection in such a way as to cause him pain. It is much more likely that her anger would have subsided by this time and I am not prepared without much more convincing evidence to conclude that a state registered nurse would deliberately cause a person pain when giving an injection. Over and above all of this, it would seem to be common ground that all was well with the marriage at this time and I find it hard to believe that Mrs. King would deliberately occasion him pain.

17. I will make a fear observations also concerning the allegations relating to Mrs. King's indiscretions. I think that these allegations have to be seen in the context of the evidence to the effect that the Cathay Pacific Pilots and their families living in the Sai Kung area form a close knit community. I have no doubt that some of the wives would indulge in a certain amount of indiscreet gossip. I think in all likelihood Mr. King himself may have indulged in such a manner. On the evidence which was before me I am not prepared to accept that Mr. King's allegations in this respect have been sustained.

18. There are also allegations in the petition that Mrs. King did not adopt a friendly attitude towards Mr. King's parents. I do not think that there were any serious problems in this respect in the early part of the marriage. I do though accept that the relationship between Mrs. King and her in-laws did at some stage deteriorate.

19. The parties went to England for the purpose of attending Mr. King's brother's wedding. On this occasion, arrangements were made for Mr. and Mrs. King senior to stay at the parties house in England at the time of the marriage. A few days before the wedding, Mr. King and his father made arrangements to fly together at Liverpool Airport in a private light aircraft. There was only one car available to the extended family. Mrs. King wanted to use car to go shopping and to have her hair done. An argument then took place as to who should have the use of the car. Mr. King decided that he and his father would use the car and would get back in time so that Mrs. King could have it for the afternoon. This did not please Mrs. King at all. When Mr. King and his father were leaving the house, she shouted at them either 'you selfish bastard' or 'you selfish bastards'. There was some conflict as to whether she made the remark in the singular or plural. This was a particularly unfortunate thing to have been said. Mrs. King knew that Mr. King senior was very sensitive on the topic of illegitimacy. He had himself been born illegitimate at a time when a certain amount of social stigmata attached to illegitimacy. Mr. King junior claimed in his evidence that the remark was addressed to Mr. King senior and was deliberately intended to be wounding. Mrs. King senior in her evidence supported this interpretation of the matter.

20. Having heard Mrs. King junior's evidence on this, I do not think that it was her intention to deliberately cause hurt to Mr. King senior. I think it much more likely that she shouted out the words in anger without reflecting upon the consequence of her words.

21. Mrs. King senior gave evidence concerning three occasions when Mrs. King had been offensive to her. The first occurred when Mrs. King senior telephoned her from New Zealand to her home in England while she was on one of her visits without Mr. King. Mrs. King senior had said that she had been on the telephone to Mr. King and had come to the conclusion that he had problems with his work and was lonely without Mrs. King. She had then telephoned and suggested that Mrs. King should immediately return to be with Mr. King. Mrs. King had then told her to mind her own bloodly business.

22. Mrs. King agreed in evidence that she had said this but excused herself on the grounds that she had a cold at the time and had been in bed when she had received the telephone call. In any event, I do not regard the incident as being particularly serious.

23. The other two occasions were much more serious. On each of these occasions, Mrs. King had used vulgar and abusive language and had sworn at Mrs. King senior. However both occasions occurred after the separation between the parties. What must be borne in mind is the fact that on these occasions doubtless Mrs. King junior had formed the impression that Mrs. King senior's allegiances were to her son and Mrs. Thompson. It is therefore understandable that Mrs. King junior would not feel amicably disposed towards her mother-in-law. I do not consider that the behaviour in the context I have referred to amounts to unreasonable behaviour such as is required to justify the allegations made by Mr. King.

24. There is no doubt in my mind that Mrs. King senior used her best endeavours to try and assist her son and daughter-in-law with their marriage. In 1981 Mrs. King was in the United Kingdom on one of her extended stays. When she returned to Hong Kong she discovered that Mr. King had formed an association with a woman called Charleen and had committed adultery. This had all been patched up and Mr. King had apologised for his conduct. Mrs. King had then contacted Mrs. King senior in New Zealand who on the pretext of her husband's ill-health had arranged with Mr. and Mrs. King for them to have a holiday in New Zealand. This had all gone very well and Mrs. King senior had taken the opportunity of advising Mrs. King that she should not in future leave her hsuband for protracted periods. At that time, Mrs. King had accepted this advice. I have no doubt that the advice which was given was excellent advice and it is quite possible that had it been heeded the parties might still be happily married together.

25. This brings me naturally to what I regard as being by far the most serious allegation in the petition itself. Mr. King produced as evidence a schedule which showed that Mrs. King had been away from him on holidays mainly to the United Kingdom for 385 days from 1978 until the middle of 1983. Mr. King complained that while his wife was away he was lonely and missed her company. One of the effects of this was to diminish the love he felt for his wife.

26. I have found it to be necessary to scrutinize this part of the case with considerable care. There is an essential conflict of evidence between the parties. Mr. King alleges that his wife well knew the distress which he was occasioned by her absences. He added that it was only with the greatest reluctance that he consented to her being away for substantial periods. Mrs. King's evidence was very different. She said that rather than it just being agreed that she should stay in England when she did Mr. King had insisted that she should make these visits.

27. The reason Mrs. King gave for this was that various matters had had to be attended to in England. Also it was, in both her and Mr. King's opinion, desirable that Gamma should establish roots with her English cousins and generally become acclimatized to life in England which may have been in due course their home after Mr. King ceased working for Cathay Pacific.

28. I have had difficulty in accepting fully the testimony of either Mr. King or Mrs. King. I think that it is necessary to analyse the purposes of each of the visits which occurred after 1980. There were two long visits. The first was in 1981 and the second in 1984.

29. In 1981, it had been agreed that they should purchase a house in England. It would appear that the discussions and negotiations in this respect were somewhat protracted and that delays occurred in completing the transaction. Also it needs to be borne in mind that Mrs. King had. a lot of matters to attend to as she arranged for furniture to be acquired and for the house to be made into a home.

30. Over and above all of this, one of Mrs. King's best friends had died of cancer during this visit. Mrs. King had assisted in nursing her friend who seems to have had a protracted death. Trying to consider the circumstances as fully as possible I have come to the conclusion that Mrs. King has justified this visit and I believe that it was fully in accordance with Mr. King's wishes and intentions.

31. The other long visit was the 1984 visit when she had gone to England to give birth to Francesca. Due to her pregnancy it had been necessary to proceed to England at least two months prior to her confinement. Also, of course, it was necessary for her to recuperate after giving birth to Francesca. I consider that Mrs. King has fully justified this long visit to the United Kingdom. The reason she gave for going to England to give birth to Francesca was that Mr. King was concerned that Francesca should be born in England so that she would automatically acquire British nationality. Mr. King had been concerned about this as he himself had been born in Hong Kong. I am satisfied that Mrs. King has fully justified this visit.

32. There were three other occasions when Mrs. King made visits to England during the relevant period. She was away in 1982 for 65 days, in 1983 for 23 days and 18 days at the beginning of 1984. No compelling or satisfactory reasons have been given for these visits. I do not though think that Mr. King ever remonstrated with Mrs. King and told her how much distress her absences occasioned him. By the same token I am not prepared to believe Mrs. King's evidence that any of these visits were made at Mr. King's insistence. I have given the whole subject of Mrs. King's absences in United Kingdom the most careful thought. I have come to the conclusion that her conduct has not been sufficiently serious to justify Mr. King in founding a petition upon it. Prior to the separation Mrs. King was essentially a good wife. I also reject the allegations to the effect that she was not a good mother to her children.

33. I now deal with her post separation behaviour. The circumstances surrounding the separation were very unhappy. As I have said earlier Mrs. King was in England giving birth to Francesca. She realised that all was not well when her husband visited her shortly after Francesca's birth. He was not dressed in the usual type of clothes that he wore and she became suspicious that he had been associating with some woman. Notwithstanding this when Mr. King returned to Hong Kong they parted in amicable circumstances. Mr. King had seemed to be extremely happy about Francesca's birth. She had then assumed that everything would be alright.

34. Following his return to Hong Kong Mr. King had spoken to her on a number of occasions over the telephone. It had definitely been her impression that when he had spoken to her he had been under the influence of alcohol. He had been abusive during these calls and had suggested that she should defer her return to Hong Kong. However, it was only very shortly before her return to Hong Kong that she had been told that if she returned her husband would move out of the matrimonial home.

35. She decided to return to Hong Kong with her father so that he could assist her with her difficulties. When she had arrived. back Mr. King had been away on his flying duties. She was met at the airport by Mrs. King senior who was staying in the matrimonial home. It was on this occasion that there was an unhappy exchange between herself and her mother-in-law which had resulted in her basically ordering Mrs. King senior out of the house.

36. She had at this time realised that a very serious situation existed and that her husband had been committing adultery with Mrs. Thompson. She had attempted to persuade her husband to return to the matrimonial home without success. There is no doubt in my mind that there was very considerable bitterness between the parties at this juncture.

37. At about this time Mrs. King telephoned Captain Dyball Mr. King's superior and made a number of allegations concerning her husband. She attempted to justify her action by saying that she had received a telephone call from Mrs. Thompson's ex-flatmate complaining that Mrs. Thompson and Mr. King had removed various articles of hers from the flat. If the articles were not returned she intended to go to the police. Mrs. King said that it was forestall this that she telephoned Mr. Dyball and she was attempting to protect Mr. King's interests. I do not accept this for one moment. I have no doubt that Mrs. King was actuated by malice and deliberately attempted to cause as much damage as possible to Mr. King.

38. There was a further incident at Christmas 1984 which reinforces this view of the matter. A few days before Christmas Mrs. King prepared a poster in a decorative manner including photo graphs of both children. The poster was styled as being a 'santa appeal' which appealed for the children's father to return to them for Christmas. Mrs. King got one of Mr. King's colleagues, a Mr. Wordsworth to display this poster in a prominent position in the Checking room which is normally only accessible to Cathay Pacific pilots and crew in the airport. In her evidence, Mrs. King said that her motive in doing this was to prick her husband's conscious so he might return to the family over Christmas. I have no doubt that her motive in displaying the poster in the manner she did was a calculated attempt to cause Mr. King as much embarrassment as possible in front of his colleagues.

39. On the subject of causing embarrassment it is also worth referring to a letter which Mrs. King wrote to Mrs. Thompson's solicitors in October 1985. Mr. Payne asked Mrs. King a number of questions in cross-examination about this letter. Mrs. King said that after the short reconciliation which I will later be referring to, she found a letter in one of her drawers from Mrs. Thompson's solicitors which made reference to possible custody proceedings in relation to Gemma and Francesca. She read the letter notwithstanding the fact that it was not addressed to her. She then felt that it was necessary for her to write to the solicitors herself. A copy of Mrs. Thompson's letter to the solicitors is included amongst the agreed documents. That reads as follows:

"Dear Messrs. Nortcliff,

        I am writing to you concerning a Mrs. Thompson of 31B Po Shan Mansions, 12 Po Shan Road, Hong Kong.

        This lady has been co-habiting with my husband - a Mr. B.L. King and prior to co-habiting with him, she lived with a Mr. C. Wink for 2 years.

        My husband walked out on a new baby and a 6 years old nearly a year ago and up to this date we are not even legally separated. I get very little finances to live on as my husband is in tremendous financial difficulties having to finance Mrs. Thompson and her children.

        My husband is a very irresponsible man who has in fact entered into a relationship a few years ago and lead the lady on. He returned home last week and we lived as 'man and wife' again, however Mrs. Thompson telephoned him and behaved distraught so my husband flitted back to her. When he'll drift back here again I don't know.

        His company Doctor saw him one week ago and my husband has a history of confused states and depressions so according to Mr. King, the Doctor suggested he see a psychiatrist which I don't know if my husband has done so yet.

        As regards Mr. King becoming a guardian to Scott & Katie Thompson, I feel this would be a very bad decision at this time.

        His bizarre and irresponsible behaviour is reflecting on his position as an airline Captain and I do not know his job is or will be in jeopardy if he continues to live in this manner.

        As I said this letter (your letter of 13th September) was left here whilst my husband was in residence and it upset me deeply as we were reconciling our differences.

Yours sincerely,
J.C. King SRN (Mrs.)"

40. It is certainly difficult to view this letter in any other way then as a deliberate attempt to malign her husband. It does not require an excess of imagination to envisage the untoward consequence: which could have flowed from this letter.

41. Both parties gave evidence of the various incidents which occurred after the separation. On at least three occasions when Mr. King attended at the matrimonial home there were undignified scuffles attended with a measure of violence. I do not think it is profitable to consider each of these incidents in detail. Needless to say Mr. and Mrs. King both gave very different versions of what transpired. Suffice it to say that in general terms I preferred the evidence of Mr. King. I believe that when he attended at the matrimonial home there were very unpleasant incidents and generally it was Mr. King who was defending himself against assaults by Mrs. King rather than vice versa. It would seem that these attacks were fuelled by Mrs. King's hatred of Mrs. Thompson and her husband.

42. The situation was not, however, entirely bleak. In September 1985 there was a period of one week when Mr. King did return to the matrimonial home in the hope of effecting some form of reconciliation. Again, there is conflicting evidence concerning this. According to Mr. King, he only returned because of his concern for the children. He claimed that he had received telephone calls from Mrs. King when she had threatened to commit suicide. He was also concerned whether the children were being properly looked after. Mrs. King however claimed that it was a genuine reconciliation. She said that after his return her husband had apologised for his previous conduct and had promised to turnover a new leaf. They had also considered moving to another home so that they could make a fresh start.

43. During this period they had had sexual relations on a number of occasions. Mrs. King also said that the circumstances surrounding his departure were particularly distressing. She had taken Gemma out to a swimming lesson one afternoon leaving Mr. King at home. When they returned they found that he had packed up and gone. This had been particularly distressing to Gemma who was deeply attached to her father. Where there are conflicts between Mr. and Mrs. King's evidence relating to the reunion I am inclined to accept Mrs. King's evidence rather than Mr. King's. I believe that it was a genuine attempt at reconciliation and quite possibly Mr. King's motive in painting the situation in a different light was to play this down so far as Mrs. Thompson was concerned. Be that as it may the reconciliation was not a success and perhaps this added to the overall bitterness between the parties.

44. The final matter I will refer to in Mr. King's petition are two incidents referred to in the supplemental petitions. Mr. King alleges that on two occasions he had conversations with Mrs. King concerning the divorce. On these occasions Mrs. King had said she intended to screw him to the ground financially because she wished to have revenge. She said that she did not care if all the family monies were dissipated as she wanted the satisfaction of screwing her husband.

45. On one of the occasions when she said this she was at the Aeroclub and Mr. King was with colleagues there. At the conclusion of the conversation Mrs. King had poured a glass of beer over his head.

46. The other matter I would refer to is a telephone conversation which' occurred in July 1986. According to Mr. King, Mrs. King said that she hoped that the child which Mrs. Thompson had would be born with no hands and that it would be a spastic child. I believe Mr. King's evidence that Mrs. King said these things.

47. That would seem to me to encompass all of the more serious matters which are alleged in the Petition and supplemental petitions. The next questions which I have to consider is whether the post separation behaviour would be sufficient to enable me to grant a decree of divorce to Mr. King.

48. Before making a determination on that issue it is essential to have regard to all the circumstances. I have no doubt whatever that there was a very substantial degree of provocation. I have described the circumstances surrounding the separation between the parties. It must have been particularly distressing to Mrs. King that all of this took place while she was giving birth to Francesca. It was not simply a question of her husband committing adultery. What was involved was a complete threat to her life style. It must have been a devastating blow to her particularly as she was faced with the prospect or having to bring up two young children by her own efforts. It is easy to see how Mrs. King would have felt.

49. What has to then be considered is whether there was a reasonable excuse for the conduct I have referred to. I have come to the conclusion that. while Mrs. King's conduct is understandable it cannot be excused. While I have great sympathy for her I am satisfied that in all probability had Mr. Payne proceeded with Mr. King's petition and supplemental petitions almost inevitably I would have had to grant a decree nisi on the grounds of Mrs. King's behaviour.

50. This is of importance as the consequence of such a finding is that Mr. King was almost certainly justified in expending the large sums of money he did on legal representation. I have also borne in mind the unhappy situation which has prevailed concerning the lack of access Mr. King has had to the children.

51. Efforts in arranging satisfactory access arrangements have been frustrated as a result of Mrs. King's intransigence and insistence that the children should not go to the flat at Po Shan Mansions where Mr. King cohabits with Mrs. Thompson. In the light of my findings concerning the violent incidents which occurred when Mr. King visited the matrimonial home, it is hardly surprising that he has seen little of his children.

52. Mr. Poll was on a number of occasions critical of the very substantial amount of legal expenses incurred by Mr. King. I have borne in mind the fact that the fees which had been incurred were solicitor and own client fees. I do not consider that it is any part of my function as a trial judge to attempt to place myself in the shoes of a taxing master. I do not think that it has been established that the legal expenses are excessive. Having regard to the view I have taken of this matter I have come to the conclusion Mr. King's legal expenses were properly incurred. This being the case the expenditure cannot be said to come within the definition of dissipation referred to in Martin v. Martin. Accordingly I propose dealing with the family fortunes on the basis that the debts due to the solicitors are a valid liability.

53. During the course of the proceedings numerous commendable efforts were made to settle the financial arrangements between the parties. Unfortunately these were to no avail. I consider that it is desirable for me to give particulars of an open offer which was made by Mr. King's solicitors on the 7th of November. The letter reads as follows:

"This is an open letter in which we will repeat the offer which was made to your client yesterday. The offer which our client made and still makes is as follows:

1.	To pay your client $20,000 per month for herself and the children, such maintenance to be increased annually in accordance with the Cathay Pacific cost of living index. This will allow your client to rent a good sized family home in the Sai Kung area.
2.	To give your client the Telstar Ford motor car currently valued at $35,000.
3.	To give your client the choice of membership of either the USRC or the Aero Club on the understanding that if your client should leave the club of her choice our client will take over the membership.
4.	To provide the children with medical insurance, travel and education through his employment with Cathay Pacific. Our client will provide your client with a return economy fare ticket Hong Kong/England for Christmas 1986. The children of course will use their travel allowance.
5.	To transfer to your client the house in the United Kingdom to enable her to pay off her costs or to do with the net proceeds of sale whatever she choses. Our client to pay the cost of the transferring of that property into your client's name.
6.	Your client to retain the contents in the house in the United Kingdom and the house in Sai Kung except for personal belongings of our client, for example, books and other personal effects of little value, it being agreed that a member of your firm would be present when our client attended to collect the items which would belong to him under the terms of this offer.
7.	Our client will pay your client a lump sum of $200,000 on or before 7th November 1989.
8.	Your client will vacate the Sai Kung property on or before 31st January 1987.
9.	Your client to return to our client her Golf Club card.
10.	Your client return the family movie films which she at present possesses.
11.	Your client will give an undertaking to the Court not to interfere with our client's employment or to do anything to jeopardize that employment with Cathay Pacific.
12.	Our client, if the above terms were acceptable, would cease to be responsible for paying the utilities on the United Kingdom property and the house in Sai Kung within a reasonable time.
13.	Our client would cease to guarantee the IDD telephone facility at the Sai Kung property in accordance with the telephone regulations.

The above mentioned terms are offered in full and final settlement of all your client's income and capital claims against our client or our client's estate.

Yours faithfully,

HAMPTON WINTER AND GLYNN"

54. Mr. King made a further offer to pay removal expenses and provide monies for a rental deposit. This offer was conditional upon Mrs. King agreeing to apply to the Court to abridge the time between the grant of the decree nisi and the decree absolute. Mrs. King was not prepared to accept this offer.

55. If I understood, Mr. Poll correctly the main bone of contention between the parties was whether it would be possible for Mrs. King to continue to live at the Sai Kung property. Mrs. King made a counter offer on the basis that she should have the Sai Kung property transferred to her.

56. What was proposed was that Mr. King should sell the property to her. She would utilise the $200,000 referred to in Hampton Winter and Glynn's letter as a deposit and she would then obtain from Wayfoong Finance a mortgage for the balance of the purchase price at a valuation of a million dollars.

57. Inquiries which had already been made of Wayfoong indicated that there should be no problem in organising this. Of course, one effect of this proposal was that the payment of the $200,000 referred to in Hampton Winter and Glynn's letter would be accelerated by three years to the present time. ” Mr. Poll did not think that this should create any difficulty. He referred to Mullard v. Mullard⁽²⁾ as authority for the proposition that generally it was not right that the claims of a wife should be put behind those of the creditors at large. Mr. Poll submitted that if this course was adopted and repayment of the mortgage was stretched out over ten years the monthly payments of principal and interest would amount to a sum slightly in excess of $7,000 per month. If this was taken in conjunction with the expenses Mrs. King incurs, which are referred to in her affidavit of means, it should be possible for her to repay the mortgage and live in a reasonable manner.

58. I have no doubt that the principals laid down in a Mullard v. Mullard are generally speaking valid. The difficulty though is that some creditors may not be prepared to wait for payment. I have in mind particularly the tax assessment of $139,000. There is no doubt in my mind that if that liability is not discharged timeously disastrous consequences will ensue. What has to be borne in mind in the present case is the necessity of Mr. King maintaining a relatively liquid position.

59. Were any of his major creditors to decide to proceed against him for immediate payment there would be nothing to stop them from taking action. If their claims were not satisfied within a reasonable period of time there is always the risk that they may file a bankruptcy petition against him. Mr. King stated in evidence that if he is adjudicated bankrupt this would automatically entitle his employers, Cathay Pacific, to terminate his employment with them.

60. This is an ever present risk and it is obvious that if this happened it would effectively mean that he would not be in a position to discharge his responsibilities to Mrs. King whatever order I make. The rule in Mullard v. Mullard is by no means and inflexible rule and it is clearly incumbent upon me to have regard to the overall situation. I am satisfied that this is not a case where the principle should be applied.

61. The other main stumbling block in reaching agreement along the lines proposed by Mr. King was the question of his Provident Fund with Cathay Pacific. Mr. Poll agrued that there was ample authority for making an order which would effectively enable Mrs. King to acquire a beneficial interest in the fund. He referred me in particular to Milne v. Milne⁽³⁾ where consideration was given to making such provision. In that case, an order was made.

62. Mr. Poll suggested that in the present case it would be fair to apportion to Mrs. King an interest equivalent to three years' purchase in the Provident Fund. This would mean that when Mr. King left his employment with Cathay Pacific some capital monies would be available to her.

63. I have given anxious consideration to this submission. I have no doubt that I must treat the Provident Fund as a substantial asset which will accrue to Mr. King. I consider however that the correct approach to this problem is to endeavour to conceptualise the underlying purpose of the Provident Fund. The intention is to place Mr. King in a position that when his employment ceases, which cannot be later than when he attains the age of 55, he will have available to him sufficient funds to enable him to continue to maintain the life style he has enjoyed as an airline captain. I consider that the permanent nature of the commitment to continue making maintenance payments of a substantial part of his salary is of such a nature that it is not fair at this stage to make specific provision of a capital nature. What particularly weighs in my mind is the fact that Mr. King is presently aged 33. If Mr. King remains in the employment of Cathay Pacific until the age of 55 that would be 22 years hence. If the period had been substantially shorter, I might well have been disposed to treat this problem in a different way. There is also the question of the short duration of the marriage. Priest v. Priest⁽⁴⁾ is authority for taking into account both the length of the marriage and the nature of the contingent interest in determining the extent of the amount if any which should be ordered.

64. As I have indicated, I have not been persuaded by the able submissions which were made by Mr. Poll. I think that it is therefore necessary to consider in more detail the implications of the open offer made by Mr. King. Mr. King called as a witness, Mr. Malcouronne who is a Chartered Accountant with Messrs. Peat Marwick Chartered Accountants. Mr. Malcouronne prepared three statements as schedules. The first showed his assets and liabilities. The second showed his financial position if Mr. King's open offer of 7th of November was accepted. The third set out particulars of his income and expenditure predicated upon the same premise. I think that it would be of value to extract these three schedules and produce them here in this judgment.

Schedule A

PRESENT FINANCIAL POSITION OF

BRIAN LAWRENCE KING

__________________

(Extracted from sworn affidavit of 18th October, 1986)

ASSETS

			HK$
5 Vernon Avenue valued at less mortgage	£ 34,500 (20,000) £ 14,500	@ $11.3 HK$/£	$163,850
2 Bayview Villas, Sai Kung Agreed value less mortgage	$1,075,000 (649,000)		426,000
Surrender value of life policies Tyndall International Cooperative Insurance Society Phoenix International Clerical, Medical andGeneral	$ 88,098 72,988 50,552 10,660		222,298
Cathay Pacific shares Hongkong and Shanghai Banking Corporation savings account Cars: Ford Telstar Daihatsu Charade	$ 35,000 6,000		38,150 1,190 41,000 $892,488 ===========

LIABILITIES

Hongkong and Shanghai Banking Corporation :

Overdraft

Loan account

Lloyds Bank plc, Prenton overdraft : £4,[email protected] HK$/£

Visa card account

Loan from parents

Inchroy Finance

Inland Revenue

Legal fees to date of Messrs. Hampton Winter and Glynn

NET WORTH OF B. L. KING BEFORE SETTLEMENT

$ 20,000

22,000

$ 42,000

53,981

35,411

60,000

36,114

139,090

468,000

$ 834,596

============

$ 57,892

===========

Schedule B

FINANCIAL POSITION OF BRIAN LAWRENCE KING

AFTER SETTLEMENT ON TERMS OFFERED

______________________________________

(Extracted from Hampton, Winter and Glynn letter of 7th November, 1986)

ASSETS

HK$

2 Bayview Villas, Sai Kung with vacant possession from 1st February, 1987

Surrender value of life policies

Cathay Pacific shares

Hongkong and Shanghai Banking Corporation savings account

Diahatsu Charade car

426,000

222,298

38,150

1,190

6,000

__________

$693,638

=========

LIABILITIES

Hongkong and Shanghai Banking Corporation :

Overdraft

Loan account

Borrowing to pay legal fees

$ 20,000

22,000

468,000

_______

$510,000

Lloyds Bank plc, Prenton : Overdraft

plus : Stamp duty and conveyancing costs on 5 Vernon Avenue

Visa card account

Loan from parents

Inchroy Finance

Inland Revenue

Lump sum offered payable on or before 7th November, 1989

$4,777

863 £5,640 @11.3 HK$/£

63,732

35,411

60,000

36,114

139,090

200,000

__________

$1,044,347

=========

NET INDEBTEDNESS OF B. L. KING AFTER SETTLEMENT ON TERMS OFFERED

$350,709

===========

DEFICIT

Schedule C

MONTHLY INCOME AND EXPENDITURE STATEMENT FOR

BRIAN LAWRENCE KING AFTER SETTLEMENT ON TERMS OFFERED

(assuming 2 Bayview Villas, Sai Kung sold to pay Inland Revenue and part of legal fees)

INCOME

Net monthly salary after tax as per affidavit of 18th October, 1986

HK$

$45,623

=========

EXPENDITURE

Expenses in connection with 31B Po Shan Mansion as per list in sworn affidavit of 26th May, 1986

including Inchroy and Visa account debt repayments

Less: Funds previously transferred to UK every month

Rent deducted at source from monthly salary

$ 46,477

(7,475)

(19,000)

20,002

UK expenses: Professional insurance

Tyndall and Phoenix premiums

Repayment of Lloyds Bank plc overdraft at 5% of outstanding balance

CIS insurance premium

£ 15

250

282

£ 638

@11.3 HK$/£

7,209

plus : expenses no longer met by Mrs. Thompson expecting child per sworn affidavits: HK$2,200 + 1,375

3,575

Hongkong Bank interest at best personal overdraft rate of 9% per annum on:

Current account balance

Loan account balance

Balance of legal fees:

$ 20,000

22,000

Hampton, Winter and Glynn

Inland Revenue

Less: Sai Kung proceeds

$468,000

139,090

(426,000)

181,090

$223,090

=======

Monthly maintenance offered

@9% = 20,078 P. a.

1,673

20,000

$52,459

=========

DEFICIT OF INCOME OVER EXPENDITURE BEFORE ALLOWANCE FOR:

(a) REPAYMENT OF HONGKONGBANK AND PARENTAL LOANS TOTALLING $241,090

(b) ANY PROVISION FOR $200,000 PAYMENT IN 1989 OR BEFORE 0 MRS. KING

$ 6,636

==========

65. It will be appreciated that some adjustments have been made to the figures in these schedules. The first and must obvious point being that legal expenses have been an ongoing commitment since the time when the schedules were prepared. I was told that the expenses for Mr. King were running at approximately $22,000 per day. Other adjustments were necessary in the statement of income and expenditure to reflect what the position would be if the various assets which can be realised are realised in good time.

66. Mr. Malcouronne was cross-examined by Mr. Poll on Schedule C. I am satisfied that if a settlement was concluded along the lines indicated Mr. King's income and expenditure would be fairly evenly balanced. The only factor which would not be provided for would be the necessity for Mr. King to put aside a monthly amount to enable him to effect payment of the capital sum of $200,000 in. three years' time. This would involve a commitment of somewhere between five and six thousand dollars per month.

67. Mr. Malcouronne obtained his data on the parties's expenditure from the respective affidavits of means which were filed. I have examined these in some detail. I am satisfied in overall terms that both parties have put forward expenses which could fairly be described as reasonable. I accept in each case that relatively minor economies could be effected. It is also clear that for both parties to live within the expenses referred to would necessitate a substantial diminution in the life styles they enjoyed while they were living together.

68. Mr. King's expenses have been provided for or a more generous basis than Mrs. King's. However, if Mr. King does in fact marry Mrs. Thompson, which he has stated is definitely his intention, he will have to take on substantial commitments including supporting Mrs. Thompson's two children. I would think that the additional commitments Mr. King will be taking on will be such that inevitably he will have to move to less luxurious accommodation than the Po Shan flat he is presently occupying. However the scope for savings is rather less than would be apparent at first sight as the lion's share of the rent is borne by Cathay Pacific in accordance with Mr. King's contract of employment with. them.

69. It is my understanding of the relevant legislation and case law that I am required to have regard to the overall situation and surrounding circumstances. I have given very careful thought to all matters which seem to me to be relevant. I have come to the conclusion that subject to the observations I will be making the offer contained in Hampton Winter and Glynn's letter of the 7th of November did constitute a fair and reasonable offer for provision for Mrs. King. I am mindful of the principles propounded in Wachtel v. Wachtel⁽⁵⁾. In general terms, a lump sum payment should not be ordered unless a husband is of substantial means. Having regard to the observations I have already made concerning Mr. King's financial position I do not think that he can be regarded as a wealthy man. His only substantial asset at the present time is his very considerable earning capacity.

70. I consider that it is only fair to have regard to his net position rather than his gross position. The culminative effect' of all his liabilities, including his legal expenses, is essentially to swallow up all his assets.

71. Although the Sai Kung property is only in Mr. King's name I think that it is only realistic to proceed upon the assumption that Mrs. King does in fact have an interest in the equity by virtue of her assistance to Mr. King during the early part of the marriage. The only fair way of considering the two properties is to consider them together.

72. It will be noted under the proposals set out in Messrs. Hampton Winter and Glynn's letter, Mr. King would transfer to Mrs. King the United Kingdom property. I appreciate that the UK property is less valuable than the Sai Kung property even after deducting the mortgage charge on the property. It would be a fair settlement of the arrangements between the parties for Mrs. King to have the UK property and for Mr. King to have the Sai Kung property. I also consider that this fairly represents their respective equities. I would add that I think that it is fair that Mrs. King should be required to vacate the Sai Kung property by the 31st of January 1987.

73. I realise that making this order will have the unfortunate consequence of uprooting Mrs. King and the children. I do not see any alternative to making such an order. I do though consider it to be fair that a small lump sum should be payable to Mrs. King to meet moving expenses and any deposit of rent she is required to pay when arranging to live in alternative accommodation. I would accordingly order that Mr. King should pay in addition the sum of $30,000 on or before the 31st of January 1987 to meet this contingency.

74. The only major matter that remains outstanding is the payment of the capital sum of $200,000 referred to in the letter. I have decided that a substantial payment has to be made so as to compensate Mrs. King for the loss of the substantial benefits which would have accrued to her directly or indirectly under the Provident Fund. I think having regard to all the circumstances that the payment of $200,000 in three years' time would be a sufficient sum to compensate her for this. I accordingly order that this term of Hampton Winter and Glynn's letter should also be embodied in the order that I will be making. I further order that the Trustees of the Provident Fund be notified of Mrs. King's interest and such action as is necessary or possible be taken to charge the interest. I think that it is right that she should also get the Telstar Motor Car referred to in par. 2 of the letter and the rights and benefits referred to in par. 3, 4, 6 and 12.

75. This in effect means that I am adopting as my order, the terms set out in the said letter. I also order the payment of the sum of $30,000 for the removing expenses etc. when she vacates the Sai Kung property. The only term of the letter that I would not incorporate is the undertaking referred to in par. 11. There is no application before me for an order that Mrs. King should be prevented from interferring with Mr. King in respect of his employment with Cathay Pacific. Although I do not make an order in this connection, I hope that Mrs. King will see the good sense of not interferring in any way with Mr. King in his employment.

76. Fortunately, the parties were able to agree the terms of Mr. King's access to Gemma and Francesca. Accordingly it is not necessary for me to spell these provisions out in this judgment. Subject to any submissions which may be made by the parties, I would order that each party should bear their respective costs.

(Simon Mayo)

Judge of the High Court

(1) [1976] FAM 335

(2) [1981] 3 FLR 330 CA

(3) [1981] Times, 6 February, CA

(4) [1978] C.A. 189

(5) [1973] FAM 72

Representation:

Mr. Ian Payne inst'd by Hampton Winter & Glynn for Husband and 2nd Respondent

Mr. Michael Poll inst'd by Robertson, Double & Boase for Wife