B v. B

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 731 OF 2007

_________________

_________________

Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing :  21-23, 27 November, 14 December 2007, 15 January    2008.

Date of Judgment :  15 February 2008.

__________________

J U D G M E N T

__________________

1.This is the Petitioner Wife’s application for ancillary relief against the Respondent Husband for herself and the 3 children of the family upon the dissolution of their 18 years marriage.  She is a 41 years old housewife while he is a commodity trader at the age of 49, and both are expatriates from Australia.  The children, all daughters, are aged 8, 11 and 14 respectively and whose custody has been granted to the Wife with leave to remove them out of the jurisdiction to return to live in Australia after the proceedings so as to enable them to start their new school terms in January 2008. The Husband has in the meantime remained in Hong Kong.

2.It is common ground that the marriage was a relatively lengthy one and a traditional one in the sense that the Wife stayed at home after the birth of the children and the Husband was the breadwinner, and with all the assets of the parties acquired during the marriage, on the face of it, it seems therefore a straightforward case where fairness may well be achieved by a more or less equal division of the assets between the parties, with the children’s future needs in Australia, and possibly the Wife’s to some extent, to be met by some equally straightforward periodical payments from the Husband with his relatively high income.

3.There are however complications as to the extent and identification of such assets in particularly of large sums of bank deposits in various currencies equivalent to more than HK$27 million in total, formerly held in the parties’ joint account in Hong Kong but now in certain bank accounts in Singapore under the name of an off-shore company, which the Wife believes to be part of the family’s savings, but which the Husband insists to belong to his relatives and that he simply followed their instructions to move the funds to Singapore.  This thus formed the major bone of contention between the parties in a trial that lasted 6 days as it inevitably included the Wife’s subsequent s. 17 application to set aside such transfer or disposition.

The Background

4.The parties first met in 1986 in Sydney where they were working and living, with the Wife having dropped out of university to consider her career options and was in between various jobs as a secretary with an advertising company and personal assistant to a director of a bank, while the Husband was then already entrenched in his career as a metals trader.  They later married on 7^th October 1989 and lived in the property purchased by the Husband prior to the marriage in Sydney.

5.Shortly after the marriage the Husband lost his job at AM, a minerals and metals trading house, but was soon able to secure employment with PB in London on a one year contract.  As a result the Wife quitted her job at WA Ltd where she was earning an annual salary of AUD30,000 to accompany him to London during which she did not engage in any full-time employment.

6.At the end of the London posting, the Husband was offered a transfer to the Hong Kong office of PB on expatriate terms, and hence the parties moved to Hong Kong in 1991, where they stayed for the next 2 1/2 years in a serviced apartment above the Conrad Hotel in Admiralty, during which the Wife worked as a secretary / research assistant in a securities firm until the birth of their first child A when she then became a full time housewife and mother, a position in which she has remained up to today.

7.In October 1993 the family returned to Sydney where the Husband soon began working for CM Bank, during which they stayed for sometimes at the house of the Wife’s parents when the Husband became unhappy about them trying to interfere with their life.  Eventually the parties moved away and in late 1994 the Husband accepted a position with JM in Singapore and decided to move his family there.  This decision however greatly upset the Wife’s parents in particularly her father who wanted her and her family to remain in Sydney, so much so that the Wife ended up in an estranged relationship with her father for the next 12 years during which he refused to speak to her.

8.It is the Wife’s case that it had also always been her intention to settle in Sydney where she was born and raised, and to be close to her parents and family in particularly as her mother had suffered from coronary heart disease since 1977 and later also from cancer, and hence she was torn between this and keeping her marriage intact and supporting the Husband’s career, and therefore felt very guilty-ridden leaving her parents again so soon after returning from Hong Kong.

9.The Husband however felt that his decisions to move jobs and locations were always to improve the quality of life and standard of living for his family, but that the Wife’s parents just wanted to run her life and those of his children, and that they could not accept that he was just trying to get a better life for his family.

10.It is this difference between the parties over where their future and those of their children lied, I believe, that sewed the seed for the eventual breakdown of their marriage.  In the meantime, however, the parties stayed in Singapore for some 2 years during which they were able to enjoy a good quality of life due to the Husband’s improved finances, including the use of a 3-story house and a domestic helper, and that where their 2nd daughter N was born in June 1996.

11.In late 1996 the Husband’s employment with JM was terminated after their operation in Singapore was closed down.  The Husband then found a job with ST Bank of South Africa in their Hong Kong office trading metals future.  Hence the parties returned to Hong Kong in December 1996 where they have since stayed up to recently, during which their third child K was born in 1999.

12.The Husband’s employment at ST Bank of South Africa was terminated in June 2002, but he was able to find employment with a French bank NBP in Hong Kong.  In anticipation of their eventual return to Australia by the time A started her high school in 2006, the parties and the children went to Sydney in July 2004 to tour some private girls schools with a view to enrol their children to one of them, and subsequently secured a place for them at the Wife’s alma mater, Pymble Ladies’ College subject to a commitment payment later in October 2004.

13.Despite the trip to Sydney, the parties were unable to agree on when they were to return to Australia, and clear indications of the unravelling of their marriage began to come to the front when the Wife sent the Husband an e-mail on 22^nd September 2004 expressing her unhappiness and disappointment of not being able to return to Australia all these years, and seeking a commitment from him to do so by January 2006 to coincide with their daughters’ schooling.

14.However no such commitment was forthcoming when the Husband replied to express his concern over his employment prospect in Australia and that the children appeared to him to have settled happily in their school in Hong Kong.  So the deadline for the confirmation of enrolment at Pymble Ladies’ College for the children with an AUD15,000 commitment came to pass in October 2004, and the parties’ relationship turned for the worse.

15.It was at this stage, between late September and early October 2004 that the Husband, without informing the Wife, transferred all the funds in their joint account with ANZ Bank in Hong Kong including AUD$3.14 million and US$428,000 into an account in his sole name with ANZ Bank in Singapore, and later into another account with the same bank in the name of a company set up in Belize, Central America known as H Holdings Limited (“H Holdings”) in which he was initially named as a director and shareholder with his mother according to the incorporation documents dated 30^th November 2004. 

16.As aforesaid the Husband’s case is that the funds belong to his relatives which he was then managing for them, and which he says the Wife all along knew as a fact (which she denies), but when his relatives heard about his marital problem, they became concerned that she might make a claim against their money in the event of a divorce, they therefore instructed him to remove the funds out of Hong Kong, which he did without informing the Wife, and that after setting up H Holdings for his relatives to hold the funds in Singapore, he claims to have no further involvement in either the funds or the company.     

17.In May 2006 the Husband resigned from NPB to join the FT Bank in Hong Kong at the invitation of an old colleague which brought him more than HK$250,000 per month in salary, various allowances and bonus, and allowed the parties to move from their 3-bedrooms flat at South Bay Villa in July 2006 to a bigger 4-bedrooms flat at Celestial Garden in Repulse Bay.

18.Despite their improved finance, the parties’ troubled relationship finally came to a head shortly after their move to their new home when the Wife discovered certain text messages on the Husband’s mobile phone from a woman which caused her to suspect an inappropriate relationship between them.  After a confrontation with the Wife over the matter during which he denied any inappropriate behaviour, the Husband moved out of their bedroom to sleep in the lounge room, and began to stay out of the house until late at night.

19.At or around this period of time the Wife discovered that the Husband had set up a post office box in Wan Chai so that most of his mails would no longer be sent to the matrimonial home, and it was in early August 2006 while he was away on a business trip when she broke open his locked bag and discovered certain information on his finance of which she had no knowledge before, including the transfer of funds to the said accounts with ANZ Bank in Singapore and H Holdings, his draft will in which she was not named a beneficiary, and his various insurance polices, tax records and other documents.  Upon his return the Husband removed the bag and all its contents to his office.

20.In December 2006 during her Christmas trip to Sydney, the Wife also discovered that many of the family’s furniture and household goods which were placed in storage in Sydney, including antique furniture, paintings and Persian rugs and carpets, had been removed by the Husband without her prior knowledge, or informed her of their whereabouts thereafter.

21.After seeing a psychologist for counselling but which the Husband refused to participate, and after informing the Husband of her intention to divorce him, the Wife issued a petition for divorce on 18^th January 2007, in which she also sought joint custody of the children with care and control to her, and general ancillary relief for herself and the children.

22.While the petition was unopposed and the decree nisi of divorce was quickly granted on 27^th April 2007, with the questions of custody and ancillary relief adjourned pending the social welfare investigation report and the filing of the parties’ financial statements and affidavits, this unfortunately but not surprisingly opened up the floodgates to a flurry of applications between the parties in the months to come, culminating in contempt proceedings and prohibition orders being taken against the Husband for failing to comply with certain orders for production of financial documents, about which no doubt I will have more to say later in this judgment.

23.One of the first applications was by the Wife for interim custody care and control of the children, maintenance pending suit for them, and for leave to remove the children out of the jurisdiction to Australia for education purpose, which was opposed by the Husband and was therefore adjourned on 3^rd April 2007 for argument and for the social investigation report. In the same application the Wife also sought direction as to appointment of a psychologist to counsel the elder children in view of the stress of the breakdown of the marriage apparently had on them. 

24.In her Financial Statement (Form E) the Wife disclosed of no independent income other than a cash payment of HK$20,000 per month from the Husband plus the use of his credit cards to a limit of HK$40,000 per month, while the rent and the household utilities expenses of their matrimonial home in Repulse Bay, as well as the children’s education expenses were paid directly by the Husband. She also disclosed some bank savings of about HK$400,000, of which HK$380,100 were held in a joint HSBC Premier account with the Husband, but alleged that since 2004 the Husband had systematically isolated her from any knowledge of their other assets in Hong Kong and elsewhere, and expressed  concern over his setting up of the Berlize company and his transfer of their savings to overseas accounts as part of his dissipation of their family assets with a view to frustrate her ancillary relief claims.

25.Although he was then represented by lawyers including Counsel, the Husband’s Form E appeared to be prepared in his own handwriting, and was rather sketchy and lacking details, with some of  the required documents such as bank statements missing or incomplete. Significantly he did not mention anything about the said Berlize company or the funds in Singapore, but did state that there had been reduction in assets during the past 3 years due to sale of their goods and furniture in storage in Sydney to pay for their various family expenses.         

26.On 7^th April 2007 the Wife took out another application for leave to bring the children out of Hong Kong during their summer vacation in July for holiday in Australia, which was again opposed by the Husband. Both applications came before me on 29^th May 2007 and after hearing argument from Counsel for both parties, I granted leave to the Wife to remove the children for holiday in Australia during which the Husband was given staying access to them for 2 weeks, and upon his undertaking to continue to be responsible for the rent, household utilities, car expenses, and all the children’s education related expenses and extra-curricular activities, I also ordered the Husband to pay the Wife HK$30,000 per month as maintenance pending suit for her and the children, and a further sum of HK$10,000 per month as contribution towards her legal costs in these proceedings, which contribution was later necessarily increased by another order to HK$50,000 per month.   

27.On 31^st May 2007, just 2 days after the hearing, the Husband gave notice of early termination of the lease of the former matrimonial home to the landlord to take effect in mid-September 2007 without the Wife’s prior notice or consent, and when she learnt about it by chance from the building manager a week later and demanded that he cancelled his notice, he refused but proposed that they should move to 2 separate but smaller flats as he believed that it would take the stress off the children if they were to live apart from each other.    

28.This proposal to move house was unsurprisingly not acceptable to the Wife who promptly applied and obtained an injunction on 28^th June 2007 restraining the Husband from terminating the lease of the matrimonial home. By then the Husband had decided to move out by himself without revealing his new address, claiming that he had no fixed abode but can be contacted through his then solicitors or his said post office box.

29.Meanwhile at the FDR 1^st Appointment hearing on 15^th June 2007, the Husband, who appeared by Counsel, accepted that his Form E filed earlier on 23^rd April 2007 was incomplete and missing certain information and documents, and agreed to file a properly updated Form E, and also to provide the outstanding information and documents including in particularly copies of bank statements of all bank accounts in which he had an interest from September 2004 to date, as well as copies of all his credit cards statements from the same period of  September 2004 to date, all within the next 14 days.  The reason why it was necessary for the disclosure to go back to September 2004 is obvious, as it was around that time when the Husband started the transfer of funds from Hong Kong to Singapore.

30.However, by 11^th July 2007 when the deadline for him to file his updated Form E and outstanding financial documents had come to pass without any indication when they would be forthcoming, the Wife took out another application for an order to compel the Husband to do so, and it was only on 3^rd August 2007, a few days before the hearing of the Wife’s application, when he filed his updated Form E with a bundle of further financial documents, but certain documents in particularly those relating to the said ANZ Bank accounts in Singapore were still glaringly missing, for which the Husband’s explanation was simply that his requests to the banks for those documents had been ignored.

31.This explanation was of course unacceptable to the Wife who on 16^th October 2007 launched a committal proceedings against the Husband for failing to comply with the said order for disclosure, and a prohibition order was also obtained restraining him from leaving the jurisdiction pending the hearing of the committal proceedings fixed on 7^th December 2007.  Meanwhile the questions of custody of the children and their relocation to Australia remained in dispute as the Husband believed that the Wife was alienating them from him, and that they would be better off to stay with him in Hong Kong, and so the trial was set down for 7 days in November 2007.     

32.On 10^th October 2007 the Husband dispensed with the service of his lawyers, claiming that he could no longer afford them, and after several unsuccessful attempts to discharge the prohibition order on the premises that he was required to take business trips and to visit his ailing father in Australia, he then declared that he had tendered his resignation from his job by what appeared to be an e-mail to his superior, as he felt that he was no longer able to fulfil his obligations in his employment as a result of the prohibition order, and that without a job he would not be able to comply with the order of maintenance pending suit for the Wife or the children, and so he also stopped the said payment to the Wife.

33.However, despite repeated requests from the Wife, there was no further documentary evidence of his alleged resignation from the Husband such as a written confirmation from his employer, which caused the Wife to take out yet another application on 25^th October 2007 for a garnishee order against his sole name HSBC account which he used to receive his monthly salary, thereby freezing the funds in the account, as she suspected that he had not actually resigned from his job and that it was just another of his attempts to frustrate her financial claims. 

34.On 19^th November 2007 the Wife at last issued an application under section 17 of Matrimonial Proceedings and Property Ordinance, Cap.192 (section 17 application) to set aside the Husband’s dispositions of the funds in the said ANZ Bank and the family’s household goods in Sydney.     

35.By 21^st November 2007, the 1^st day of the custody trial, the Husband was finally prepared to let the Wife have sole custody care and control of the children, and to allow her to remove them out of the jurisdiction permanently to Australia upon certain access arrangements given to him in such manner as agreed between the parties. Accordingly an order was made by the court on those terms, and the parties also agreed that the remaining days reserved for the custody trial be used for the hearing of the ancillary relief application as well as the said section 17 application.

36.It was further agreed between the parties that the HK$380,000 in their said joint HSBC Premier account be released to the Wife to meet her relocation expenses to Australia as well as the immediate and setting up expenses for their new home in Sydney for herself and the children, while the outstanding maintenance and various other payments due to her since October 2007, amounting to more than HK$420,000, be partially met by the HK$210,000 in the Husband’s other HSBC account seized earlier by the said garnishee order.   

37.There was however no proposal of any further financial provision from the Husband for the Wife, other than his agreement for her to take all the contents of their former matrimonial home at Repulse Bay to Sydney, including Persian rugs, antique furniture and valuable paintings which he says were already more than half of their family assets, or for the children because of his alleged unemployment and therefore has no means to provide any periodical payments for them, but that if in future he is able to secure employment, he promises that he will provide some form of financial support to them.

38.The family assets referred to by the Husband of course do not include the funds that he had transferred to Singapore which, as aforesaid, was really the main issue between the parties, but before I start examining the evidence over that issue, and to undertake the section 7 statutory exercise, I should mention that at the committal hearing on 7^th December 2007, I did find the Husband in contempt of court for failing to comply with the said order to produce the missing financial documents within the time stipulated, in fact it was not until a few days before the hearing that some of them were finally produced while others were still outstanding at the hearing, and fined him for a sum of HK$50,000 plus an order to pay the Wife’s costs on full indemnity basis.

The Law

39.The statutory exercise that I am required to undertake is of course in section 7 of The Matrimonial Proceedings and Property Ordinance, Cap.192 and, for the benefit of the Husband who is unrepresented, is set out as follows :

and so to exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (1), just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him.   

40.While the section does not explicitly state what is to be the aim of the court when exercising these clearly wide powers, the objective must be to achieve a fair outcome, as stated by the House of Lords in England in the landmark case of White v White [2001] 1 AC 596, [2001] 1 All ER 1, [2000] 3 FCR 555, [2000] 2 FLR 981, HL, and that fairness requires that there should be no discrimination between husband and wife in the respective roles that they played during the marriage. If they both made an equal contribution to the welfare of the family, as opposed to the acquisition of the assets, then it does not matter which party built up the assets.

41.In the more recent House of Lords’ decision in the combined appeals of Miller v Miller and McFarlane v McFarlane [2006] 3 All ER 1, Lord Nicholls expended further the principles which he enunciated in White when he said :

“8. For many years one principle applied by the courts was to have regard to the reasonable requirements of the Claimant, usually the wife, and treat this as determinative of the extent of the claimant’s award.  Fairness lay in enabling the wife to continue to live in the fashion to which she had become accustomed.  The glass ceiling thus put in place was shattered by the decision of your Lordships’ House in the White case.  This has accentuated the need for some further judicial enunciation of general principle.

9. The starting point is surely not controversial.  In the search for a fair outcome it is pertinent to have in mind that fairness generates obligations as well as rights.  The financial provision made on divorce by one party for the other, still typically the wife, is not in the nature of largesse.  It is not a case of ‘taking away’ from one party and ‘giving’ to the other property which ‘belongs’ to the former.  The claimant is not a supplicant.  Each party to a marriage is entitled to a fair share of the available property.  The search is always for what are the requirements of fairness in the particular case.

10. What then, in principle, are these requirements?  The statue provides that first consideration shall be given to the welfare of the children of the marriage.  In the present context nothing further need be said about this primary consideration.  Beyond this several elements, or strands, are readily discernible.  The first is financial needs.  This is one of the matters listed in section 25(2), in paragraph (b); ‘the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future’.

11. This element of fairness reflects the fact that to greater or lesser extent every relationship of marriage gives rise to a relationship of interdependence.  The parties share the roles of money-earner, home-maker and child-carer.  Mutual dependence begets mutual obligations of support.  When the marriage ends fairness requires that the assets of the parties should be divided primarily so as to make provision for the parties’ housing and financial needs, taking into account a wide range of matters such as the parties’ ages, their future earning capacity, the family’s standard of living, and any disability of either party.  Most of these needs will have been generated by the marriage, but not all of them.  Needs arising from age or disability are instances of the latter.

12. In most cases the search for fairness largely begins and ends at this stage.  In most cases the available assets are insufficient to provide adequately for the needs of two homes.  The court seeks to stretch modest finite resources so far as possible to meet the parties’ needs.  Especially where children are involved it may be necessary to augment the available assets by having recourse to the future earnings of the money-earner, by way of an order for periodical payments.

13. Another strand, recognized more explicitly now than formerly, is compensation.  This is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage.  For instance, the parties may have arranged their affairs in a way which has greatly advantaged the husband in terms of his earning capacity but left the wife severely handicapped so far as her own earning capacity is concerned.  Then the wife suffers a double loss: a diminution in her earning capacity and the loss of a share in her husband’ enhanced income.  This is often the case.  Although less marked than in the past, women may still suffer a disproportionate financial loss on the breakdown of a marriage because of their traditional role as home-maker and child-carer.

14. When this is so, fairness requires that this feature should be taken into account by the court when exercising its statutory powers.  The Court of Appeal decision in SRJ v DWJ (Financial Provision) [1999]2 FLR 176, 182, is an example where this was recognized expressly.

15. Compensation and financial needs often overlap in practice, so double-counting has to be avoided.  But they are distinct concepts, and they are far from co-terminous.  A claimant wife may be able to earn her own living but she may still be entitled to a measure of compensation.

16. A third strand is sharing.  This ‘equal sharing’ principle derives from the basic concept of equality permeating a marriage as understood today.  Marriage, it is often said, is a partnership of equals.  In 1992 Lord Keith of Kinkel approved Lord Emslie’s observation that ‘husband and wife are now for all practical purposes equal partners in marriage’: R v R [1992]1 AC 599, 617.  This is now recognized widely, if not universally.  The parties commit themselves to sharing their lives.  They live and work together.  When their partnership ends each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary.  Fairness requires no less.  But I emphasise the qualifying phrase: ‘unless there is good reason to the contrary’.  The yardstick of equality is to be applied as an aid, not a rule.”

42.While the English authorities are no longer binding on our jurisdiction after 1997, they of course remain to be highly persuasive, and our courts have continued to adopt the approaches of or to derive considerable help from the much wider experience of the English courts in particularly in this field : C v C [1990] HKLR 183 and HKCB Finance Ltd v Yuen Yi Wan Sandy and Wong Chiu Mui, CACV 355/2005.

43.In considering the applications now before me, I shall therefore be guided by the following principles as observed from the above authorities :

(a)  The overriding objective in the exercise of discretion under section 7 of MPPO to achieve fairness between the parties;

(b) In construing section 7 we can and should continue to derive guidance and assistance from the wider experience of the English courts;

(c) To attain a fair result, equality of treatment of husband and wife is the more universally applicable concept than equality of division;

(d)   In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles, and whatever the division of labour chosen by them, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering matters relating to their contributions, and there should be no bias in favour of the money-earner and against the home-maker and the child-carer.

44.I shall now start the statutory exercise with the consideration of the most contentious issue between the parties : the extent of their assets and the section 17 application.

The Section 17 Application

45.In the application (PB6 : 1852) the Wife seeks to set aside 4 dispositions by the Husband, of which the first 3 all relate to funds in various currencies either transferred to or were discovered in the ANZ Singapore Bank account no.482372 of H Holdings between September 2004 and November 2006 and totalling the equivalence of more than HK$27 millions, while the 4^th one is over various furniture and household goods in storage in Australia which the Wife believes were removed in late 2006 or early 2007, the value of which is not clear.

46.There is no question as to the parties’ interests in the furniture all of which the Husband says were sold over the past several years to meet the family’s expenses. While this is disputed by the Wife, her major concern is obviously over the funds in the ANZ Singapore account, and whether or not they are the parties’ assets and hence their dispositions should be set aside, it is necessary first to refer to the section which provides that :

“ (1) Where proceedings for relief under any of the relevant provisions of this Ordinance (hereafter in this section referred to as "financial provision") are brought by a person (hereafter in this section referred to as "the applicant") against any other person (hereafter in this section referred to as "the other party"), the court may, on an application by the applicant-

and an application for the purposes of paragraph (b) shall be made in the proceedings for the financial provision in question.

(2) Paragraphs (b) and (c) of subsection (1) apply respectively to any disposition made by the other party (whether before or after the commencement of the proceedings for financial provision), not being a disposition made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any such intention as aforesaid on the part of the other party.

(3) Where an application is made under this section with respect to a disposition which took place less than three years before the date of the application or to a disposition or other dealing with property which is about to take place and the court is satisfied-

(4) In this section-

"disposition" does not include any provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise;

"the relevant provisions of this Ordinance" means any of the provisions of sections 3, 4, 5, 6, 6A, 8, 11 (except subsection (6) ) and 15; and

any reference to defeating an applicant's claim for financial provision is a reference to preventing financial provision from being granted to the applicant, or to the applicant for the benefit of a child of the family, or reducing the amount of any financial provision which might be so granted, or frustrating or impeding the enforcement of any order which might be or has been made at the instance of the applicant under the relevant provisions of this Ordinance.

(5) The provisions of this section shall not apply to a disposition made more than three years before the commencement of this Ordinance.”

47.It is not in dispute that all the dispositions in relation to the funds were made less than 3 years before the Wife’s application, with the earliest, i.e. the transfer from the Husband’s ANZ Singapore account to H Holdings’s between late December 2004 and February 2005, and hence it is for the Husband to rebut the presumption that the disposition was made with the intention to defeat the Wife’s financial claims.

48.However, before deciding whether he has been able to do so, it is first necessary to decide whether those funds are in fact the matrimonial assets, and that would be on balance of probability, and while the Husband has repeatedly argued that since it is the Wife who alleges that the funds are matrimonial assets and therefore it is for her to prove her case, I do not agree with this proposition, as it is common ground that the funds were first in the parties’ joint account and then in the Husband’s sole account before their removal, it is for the Husband to satisfy the court that they are not matrimonial assets, as I have said, on balance of probability.    

49.The Husband’s evidence on these funds was set out in his 5^th Affidavit (PB5 : 1666) in which he said :

“2.   S(the Wife) has told the court that we had several million dollars in our ANZ joint account in 2004 which is not true but S is well aware that this money did not belong to me or her. These funds were placed in our joint account with the ANZ bank so that it would not be mixed in with our own personal funds that were kept in our HSBC joint account.  My relatives in Australia were initially comfortable with this arrangement as they found our relationship to be extremely stable and S to be a trust worthy person.

.

3.      The funds in the ANZ account are savings belonging to my relatives in Australia who many years ago were considering making some investments in Asia and as such placed these funds in our joint  bank account for convenience and ease of investment.  S has clearly stated in her first affidavit that my father spent considerable time in Asia during his working career and as such has always been interested in making some investments in the region.

4. In 2004 S had threatened to take the children to Sydney to live at which time it appeared that S was not happy with our marriage. As a result of this my relatives became extremely worried that she may take their life savings along with the children and disappear to Sydney.”

50.He then went on to describe how he set up H Holdings in November 2004 for his relatives and assisted them in opening the ANZ Singapore account so that they could manage their own finances, that since January 2005 he no longer has any shareholding in H Holdings or any interest in its assets, and that he has merely provided his post office box as the postal address for H Holdings for convenience purpose and only acted under the instructions of the company owners.

51.I find these evidence of the Husband, which he has maintained throughout the trial, inconsistent, contradictory, nonsensical, and at the end wholly unsatisfactory and incredible in what can be said to be an extraordinary way he has conducted this litigation, and how he had shown himself to be contemptuous of his wife, and equally contemptuous of the court, as I have found in details above, with his repeated failure to comply with the various orders on disclosure. There are many more examples.

52.For a start, one of the first things one would expect the Husband to come forward with at the earliest opportunity was the identity of his relatives, a most natural and normal thing to do for most people in his situation in order to substantiate his case. Yet he has steadfastly refused to do so, despite being repeatedly asked by Counsel for the Wife at the trial, without giving any reason, and his answers at a subsequent failed application to lift the prohibition order that he did not even know exactly which relatives who now own the funds, and that he could no longer remember who first placed the funds with him as it happened years ago in  the 1990s are simply unbelievable.

53.In his 5^th Affidavit referred to above, it could be said by implication that the funds were his father’s savings, which might explain why his mother was made one of the shareholders of H Holdings, but if that was indeed the case, it would be all the more puzzling why he was so reluctant to confirm the same at the trial.

54.It is common ground that the Husband has a very good relationship with his parents and siblings, as evidenced by the fact of his mother actually flying into Hong Kong from Australia in mid-2007 to assist him in the parties’ earlier custody dispute in these proceedings including making a fairly substantive affidavit in support of his case and meeting with the social welfare worker in her investigation of the matter, yet when it came to the dispute over these ANZ funds, there was not a single word or note from his parents or any of his family members or relatives in the simplest form of a letter or e-mail, let alone filing an affidavit or coming forward in person, to confirm or verify that they are in fact the owners, as one would have expected them to help the Husband in this his most difficult time, in particularly when he was also facing contempt proceedings and prohibition orders with his liberty clearly at stack. There was simply no explanation or reason offered by Husband.

55.The Wife has proffered a simple explanation : that the Husband is simply lying, that the funds have nothing to do with his relatives, and hence he is unable to name them, fearing that the Wife could easily confront and verify with them, which may also explain why there has been absolutely no documentary evidence whatsoever, such as bank statements, letters or e-mails containing their instructions, his reports over the investments, etc., to connect the funds to the relatives, other than a photocopy of an Instrument of Transfer of H Holdings’s share (PB5 : 1682) allegedly showing the Husband transferring his shareholding on 15^th January 2005 in which the name and other particulars of both the transferee and witness have been blocked out, a document which Ms Irving for the Wife described, and I agree, as worthless in terms of evidential value.

56.In fact, despite his insistence that since January 2005 he no longer has any involvement with H Holdings and has no idea of who the present owners/shareholders are, yet on 20^th October 2006, almost 2 years  later, he gave instructions to the same secretarial company which set up H Holdings for his sister AW to be appointed as a director of the company (PB5 : 1199),  thus contradicting his evidence.  

57.The Husband did try to explain that since the funds were placed with him in the 1990s, it was not possible to obtain the bank statements of his relatives’ accounts to show the original source of the funds as most banks would not normally keep records that go that far back. There is however no other evidence to suggest that that is in fact the case, such as a simple letter from the bank in reply to his request, or even a copy of his request. I just find it incredible that there is no documentary evidence whatsoever of what must have been a long paper trail of the Husband’s management and investments of these funds, such as, as aforesaid his periodical reports to the relatives and their instructions.

58.In his said 5^th Affidavit the Husband explained that he put his relatives’ funds in ANZ Bank because he did not want to mix them with the parties’ personal funds, a proper and necessary arrangement one would be expected to do in similar situation, yet information subsequently obtained by the Wife shows that the ANZ funds were all along placed in the parties’ joint HSBC account as far back as January 2001until late 2004 when they were eventually transferred to the Husband’s sole name account in ANZ Bank, thus again contradicting his evidence. 

59.He also tried to explain in his affidavit (PB5 : 1674-5) that it was not possible for him to have earned and saved that kind of money which the Wife claims to be their family assets by setting out his gross annual income from 1997 to 2006, which amounted to slightly over HK$17.5 million in total but much less than the HK$26 million transferred to the ANZ Singapore, and that is even before taking into account that he had to pay his taxes, the family’s expenses, the children’s education, their accommodation and at least 2 holidays each year from his income, plus the fact that prior to 1998, he had had significant periods of unemployment and there were times he was earning a considerably lower income.        

60.I find this argument too sketchy and simplistic and ultimately unsatisfactory. Firstly, if this argument applies to the Husband’s situation, it would equally apply to his relatives who allegedly placed the funds with him in the first place, yet there was not a single piece of evidence from the Husband that any of his relatives in Australia were capable of having that kind of savings, while the Wife’s evidence that neither of his parents nor his siblings could even come close to doing so  was never challenged by the Husband at the trial.

61.Whatever the Husband’s income situation was throughout the marriage, it is simply not good enough for him to just add up his  income to show that it was not possible for him to save up that kind of money in the ANZ Singapore account, as that cannot be the only way for a person to amass his wealth, especially for someone like him, an obviously  intelligent and experienced metals trader in the international field of banking and finance. Even ignoring the obvious but extreme example of anyone with $20 in his pocket can become a multi-millionaire overnight by winning the lottery, the point is that a person’s savings does not necessarily just come from his income, and that it is not uncommon for someone with the necessary expertise, experience and opportunity like the Husband to achieve his wealth from successful investments.

62.The Husband has of course disclosed very little wealth in either of his 2 Form E, with only about HK$420,000 in savings and virtually no investments save for some life insurance policies, and put the total value of his assets at only HK$632,325.37 in 2007.  He claims that the Wife was well aware of his income and savings situation, which is why she wrote in her said e-mail of 22^nd September 2004 that if he lost his job and they stayed in Hong Kong for 1 year all of their savings would have been used up on living expenses. That means, he submits, she knew that the majority of the funds in their joint accounts were not their assets.

63.The Wife’s explanation can be found in her affidavit of 2^nd April 2007 (PB1 : 41, 57) when she said that she had been isolated from all knowledge of their finances, assets and shareholdings during the last 5 years or so and that the Husband has set up a post office box in Wanchai so that she received very little mail of consequences to the matrimonial home, and therefore, she says, when she wrote her e-mail in 2004, she did not have the full or updated picture of their savings situation.

64.While the Husband has accused the Wife as a liar telling only half truths during the whole proceedings, I am unable to find any basis or reason to agree with him, and quite to the contrary I find her evidence, not just on this issue, but as a whole and in general, lucid, straightforward, consistent, fair, and ultimately satisfactory and truthful, and I accept this explanation of her credible. In fact, 2 actions by the Husband in my view tend to support the Wife’s case.     

65.On 22^nd September 2004 in his reply to the Wife’s said e-mail, the Husband concluded as follows : “ If I lost my job tomorrow we do have enough money to survive in Hong Kong the interest on our deposits would cover rent, school fees and general living expenses….it would not be easy but doable.”

66.On his own evidence, the Husband was then earning more than HK$1.8 million for the year, most all of which no doubt would have been spent on the family’s expenses, but even if one were to take a much lower figure of, say HK$1 million for their family’s expenses, it would require a very substantial bank deposit to generate the kind of interest to meet such expenses : HK$10 millions at the annual interest rate of 10%, or more likely HK$20 million at the then interest rate of 5%.  While it is true that the Husband in his e-mail did not mention for how long the deposits interest could meet their expenses, I do not believe he was merely talking about a short period of a few weeks but instead must be something much longer like several months at the very least, if not for a whole year. The point is that he must have some very substantial deposits in mind at that time, and certainly not the small amount which he subsequently disclosed in his Form E.

67.Furthermore, in his draft will prepared in 2005 (PB4 : 1449) in which he left the Wife totally out of it, the Husband appointed his sister Ann as one of his executrices, trustees and guardians of his 3 daughters, and gave her a legacy of US$250,000 (HK$1.95 millions), and to hold the residue of his estate in trust for his daughters as beneficiaries in equal share when they attain the age of 21  years, with the usual power to inter alia pay for their maintenance, education and benefits during their minority from the capital and income of his estate. At that time his daughters were only 6, 9 and 13 respectively, clearly still a long way to go before they attain their age 21.

68.This begs the obvious question : how much did he then have in his total estate to allow him to be so generous and confident  to first give his sister almost HK$2 million, to know that there would still be sufficient money left to pay for the maintenance and education of his 3 daughters for the next 15 years or so, bearing in mind of their standard of living and no doubt  the expectation of tertiary education for them, and would still have  money left for distribution to them when they reach 21? The answer must again be obvious : very substantial sum indeed. 

69.Above all, because I find the Husband’s evidence extremely vague, evasive, economical, and ultimately unsatisfactory, and because of his reluctance and in many instances persistent failure to produce all the relevant documents relating to these funds and his ANZ Singapore account, for which adverse inferences should be drawn against him, for all the reasons aforesaid, I have no difficulty in rejecting his claim that the funds belong to his relatives, in which case the only logical conclusion that I can reach under the circumstances and with the evidence before me is that they are part of the matrimonial assets of the parties.

70.I shall next consider whether the Husband’s transfer of these matrimonial assets between late 2004 and early 2005 to H Holdings’s accounts were dispositions made with the intention to defeat the Wife’s financial claims. Again given the evidence before the court I find that he has totally failed to rebut that presumption.

71.Firstly, there is no doubt in my mind of his motive, as he has readily admitted in all of his affidavits and his testimony that the funds were transferred out of the parties’ joint HSBC account, almost right after receiving the Wife’s e-mail of 22^nd September 2004 which he said caused him great concern of a possible divorce, eventually out of the jurisdiction to his ANZ Singapore account and ultimately to H Holdings’s account was to keep them away from her claims in the event of the divorce, albeit he said it was to protect the interests of his relatives, one needs just to substitute him for them.

72.Given the obvious facts that these were not dispositions made for valuable consideration to H Holdings, or that H Holdings acted in relation to them in good faith, clearly with knowledge and notice of  the Husband’s intention, and that he now claims to have no job or income and hence no proposal of any financial provision for the Wife or the children, and that clearly if these dispositions were set aside, proper financial provisions would be granted to them, I have no difficulty in reaching my conclusion that these dispositions were made by the Husband to H Holdings which was deliberately set up out of the jurisdiction and 100% owned by him, with the clear intention to defeat the Wife’s claims and hence should be set aside, and I so order accordingly.

73.As for the disposition under item 4 of the Wife’s application, however, the evidence is inconclusive as to whether the furniture and household possessions have in fact been disposed of by the Husband. His evidence, which was just in the form of a vague and sweeping statement, and unsupported by any documents, is that he had sold all of them several years back to meet various family expenses, without giving any details of the sale or the reasons why he needed to do so when he was then earning a good income. There were in fact more than 40 different items ranging from antique furniture, paintings, Persian rugs and carpets down to simple household items which required 2 storages in Australia and would have taken much efforts and time to sell all of them when the Husband was then spending most of his time working in Hong Kong, and would have in any event come to the knowledge of the Wife much sooner.

74.If indeed these furniture have been sold for the purpose as alleged, they must have been for valuable consideration and to parties without knowledge of his intention to defeat the Wife’s claim, and hence cannot be set aside. As aforesaid I have my doubt that they have actually been sold, and given the Husband’s intention to put matrimonial assets out of the Wife’s reach, there is every possibility that they might just have been moved elsewhere by him.

The Assets

75.The Wife has produced a schedule of assets with her opening submission at the trial on 21^st November 2007 which includes the funds in H Holdings’s ANZ Singapore account, the amounts of which were based on the documents from the Husband’s locked bag referred to above, and copied by her and exhibited to her 5^th Affidavit (PB4 : 1168, 1216-1219) which show that there were 4 fixed deposits in July 2006 in the U.S., Australian and Hong Kong dollars in the equivalence of HK$27,073,292, and although the Husband has failed to disclose their latest balance, one can safely assume that this sum will have increased with the interest earned on it since.

76.That schedule also includes the following assets which the Husband either does not dispute, or has failed to account for under cross-examination and which I agree should be treated as part of the matrimonial assets or to be taken into account in their distribution :

77.I do not propose to include the various personal belongings of the parties in the schedule such as the Husband’s gold watch or the Wife’s jewellery due to their personal nature, or items such as Husband’s Standard Chartered bank account due to its unknown balance. 

78.However, it is the Wife’s case that there are other assets that have subsequently come to light upon further disclosure by the Husband at the trial.

79.In his 1^st Form E the Husband disclosed that he used to have a stock broking account known as Boom.com which has already been closed and hence he was unable to provide any details.  That was in April 2007.  From the further documents disclosed at the trial, in particularly a statement from Boom.com which shows that the a sum of HK$80,214 being the sale proceeds of the Husband’s shares was deposited into his HSBC account on 5^th December 2006, the source of which he earlier claimed he could not remember. The Wife therefore argues that this shows that he was then lying and that this sum should be included as part of his assets.

80.However, this HSBC account of the Husband was his running account into which he received his monthly income, chances are that either he had already spent that sum sometimes ago, or that it had been mixed with the other funds in the account, the final balance of which as aforesaid was given to the Wife in December 2007 for her interim maintenance. Either way I do not think it appropriate to include that sum as part the assets. 

81.The same however cannot be said of the AUD$50,000 withdrawn by the Husband from his JB Were account on 9^th November 2006, which he was also unable to account for, but in view of its much more substantial amount and his clear intention to put assets out of the Wife’s reach, it is likely to have gone to the H Holdings’s account and hence should be included as part of the assets.

82.In conclusion, I find the total assets of ascertainable value  amounting to almost HK$29 millions, but some of which have already been given to the Wife before she left, others such as the Husband’s pension is not yet realizable at this stage, with the bulk in the H Holdings account in Singapore of what must now be about AUD4 million taking into account of the bank interest which it has earned. I shall next consider the parties’ financial situation, and to start with the Wife’s which is relatively more simple and straightforward.

The Wife’s Financial Situation

83.As aforesaid she and the children left Hong Kong shortly before the Christmas of 2007 to return to live in Sydney. Her evidence was that she has no immediate plan to find employment in Sydney as her priority will be to settle the children first into a new community and new schools.

84.While it is true that at the time of the marriage she was working as a personal assistant in Sydney, and that at some of the early stage of the marriage she also worked as a secretary/research assistant, it is common ground that after the birth of the eldest child, she had mainly been a mother and homemaker during the marriage until only about September 2004 when she started to work intermittently as a supply teacher’s aid at a kindergarten in Repulse Bay earning a little more than HK$2,000 per month on average up to 2007.

85.On her return to Sydney she claims to be unsure what employment opportunities might be available to her, and I agree with her that for the next several years she is going to be constrained by having the daily care of the children at their age, in particularly with the 2 younger children, as well as by her lack of experience, training and further education.  Her on-going responsibility as the mother of 3 girls will inevitably affect her earning capacity, in particularly when such a role is one which she will likely be left to cope with almost single-handedly in the absence of any plan or intention on the part of the Husband to return to Sydney in the foreseeable future. It will be some 10 years before the youngest child leaves home for university, by which time the Wife will be over 50, and any opportunity to progress in any kind of career at that age, and with the lack of any well-rewarded skills, must be negligible in my view, and if indeed she is able to find employment, it will at best be similar to the line of work that she had before she left Hong Kong, such as part-time teaching assistant in kindergarten. In other words, she will be substantially dependent on the Husband financially for years to come.

86.The Husband however suspects that the Wife is one of the beneficiaries of her father’s trust fund known as S Investment the extent of which she has failed to disclose, and that it is no coincidence that it was closed down by her father at the same time when she started thinking about divorcing him. This however appears inconsistent with his earlier evidence in his affidavit of 15^th May 2007 when he described how badly the relationship was between the Wife and her father and how mentally disturbed and unstable her father was (PB2 : 457, 508-9). In any event I accept the Wife’s explanation that the trust fund was set up years ago, that it was not significant and most of which had been spent on her mother’s medical expenses, and that after her death her father saw no point in maintaining the trust and therefore closed it. I am satisfied that she has already fully and frankly disclosed her means. I now consider her needs and the children’s.    

87.It is not in dispute that the Wife needs to provide a home for the children in Sydney, and there is clearly available assets to enable her to purchase a suitable house and a car for the family, but until she is given the funds to do so, she proposes to initially rent her father’s 3-bedroom townhouse in the interim period.

88.She has produced an exhibit (P-3) showing the price of the properties, mostly 4-bedroom houses ranging from AUD800,000 to 1,500,000 (HK$5.6m – 10m) which she thinks would be suitable for her and the children within a catchment area of their schools. The suitability of these properties did not seem to be challenged by the Husband who agreed that the family had lived in a 4-bedroom flat in Hong Kong before the breakdown of the marriage.

89.With the purchase of the house, she figures that she will have to pay about AUD1,200 per annum for rates and an environment levy, and a sum of AUD75,000 for a suitable car to take the children to school.

90.The Wife has set out her proposed monthly expenses in Australia in details in an exhibit to her Form E (PB1 : 347 – 349) which must of course be based on estimation only, not having actually lived there for a number of years, but with the assistance of her family members in Sydney for their input and information, and come to about AUD5,331 for her general household expenses including the initial expense AUD2,200 for renting accommodation until the purchase of a house, AUD1,945 for her personal expenses, and AUD9,562 for the 3 children including their school fees, making a total amount of AUD16,838 per month, or the equivalence of about HK$117,800. 

91.Despite given ample opportunity to challenge such estimation by cross-examination of the Wife on her various proposed items at the trial, which he was in fact specifically invited to do, the Husband merely complained that she was seeking more than many professional people earn in Australia, and as such those figures may be taken to have been accepted by him, while I also note that the proposed monthly sum is actually much lower than what the Husband claimed in his Form E to have spent on his family while they were in Hong Kong of more than HK$180,000 per month, and that once the Wife has purchased her own home, her monthly expenses will have come down even further when there is no more rental payment.  Either way it should well be within the Husband’s earnings, but he says he is now unemployed, which is the next issue I will have to consider.

The Husband’s Financial Situation

92.As aforesaid the Husband claims to have been forced to resign from his job at FT Bank in November 2007 as a result of the prohibition orders obtained by the Wife restraining him from leaving Hong Kong and thereby unable to undertake business trips as part of his contractual obligations to his employer, but the only evidence that he has produced is a copy of his e-mail to his supervisor JK, a former colleague in London (CB1 : 445), which the Wife argues may or may not have been sent out, or that it has been accepted by the bank, since there is simply no confirmation of his alleged resignation, or any evidence of payment he would have received at the end of his employment, despite her repeated requests, which I agree can be easily obtained, and should in fact be a matter of formality with an major institution such as a bank and given his position therein. I find his explanation that there is no written confirmation from his employer under the circumstances simply incredible.

93.The same can be said about his claim that he is no longer able to work in his industry as a result of his being found guilty of contempt of court as he cannot obtain a license from the regulator with such a conviction. Firstly, there is simply no evidence in support of the Husband’s allegation, which if true could have been easily verified by the production of such regulations governing his industry. Secondly, since his contempt was not the result of any criminal act or offence but rather his private civil and personal matter, I doubt very much that it would have the effect as he claims.

94.Given the Husband’s conduct in these proceedings and his determination to keep as much assets as possible from the Wife, I am not at all surprised that it was yet another example of him making use every opportunity to defeat or frustrate her financial claims.

95.I agree with the Wife that at worst the Husband might have just taken no pay leave from his job for several months in the hope to sit out the prohibition orders before resuming his job as the head of precious base metals at FT Bank earning a gross salary of HK$258,108 per month plus bonus. Even if it turns out that he is indeed out of a job, and I have found no such evidence, on his own admission he has been able to earn on average more than HK$2.1m per year for the past 10 years, or at almost HK$180,000 per month before joining FT Bank, which is, in his own words, much more than an average professional earns in Australia, or if I may add, in Hong Kong.

96.While he has given no information about his present living arrangements after moving out of the former matrimonial home in Repulse Bay, and alleges to be staying with friends and moving around from place to place as he cannot afford a place for himself, the Wife does not believe that that is true and that the Husband was merely trying to mislead the court of his present situation. It is not disputed that under his employment contract with FT Bank, the Husband is entitled to substantial housing allowance with which no doubt he can rent a suitable accommodation for himself in Hong Kong, where he claims he intends to continue to make his home in the foreseeable future, as this is also where he can clearly make the most of his expertise and earning capability.  I have no doubt in my mind that he will be able to continue to work and earn as before to support himself at similar standard as before, as well as to meet the reasonable needs of the Wife and the children. 

The Standard Of Living

97.There is no question that the general standard of living enjoyed by the family before the breakdown of the marriage as a whole was high, when they lived in a 4-bedroom apartment in Repulse Bay for the last year and a half, with a pool and sports and play facilities all of which the children enjoyed. Before that the family lived in a 3-bedroom flat at South Bay, and before that a 4-bedroom apartment for 4 years. The norm has been large expensive accommodations commensurate with the Husband’s status as a high-income earner. The children attended private international schools and a number of extra curricular activities, and the family had annual holidays to Australia, and until 2005 the family also had the assistance of a domestic helper, while the Husband joined the Hong Kong Cricket Club at a cost of HK$73,000 in January 2007. All in all it was a comfortable life style, and while there are now 2 households to maintain, with the Husband’s high income and the available assets, and with the lower expenses of the Wife and children in Sydney, there is no reason why such a life style cannot be maintained for both of the parties and the children in future.

The Contributions made by each of the Parties

98.While this appears to be a typical marriage during the 18 years of which both parties would have made their contributions by properly discharging their respective roles and duties as money-earner and home-maker, the Husband appears to view all contributions to the family as being made by him, giving no credit to the Wife for the role she has played as mother to his children by saying that the children were brought up by the helpers. However the Wife has produced letters from two helpers (PB3 : 1144-1146) which show her as a full-time mother totally focussed and dedicated to the children, and having seen and heard her in evidence throughout the proceedings, I have no reason to doubt such evidence of the helpers about the Wife, that she has been a supportive wife and a caring mother, or for that matter, that the Husband has been an equally responsible father, and a good husband for most part of the marriage.

99.It is also a fact that should be recognised, that despite serious objections from her parents and the hardship caused by the subsequent rift with her father including not being able to see her ailing mother for years, the Wife was willing to move across the world with the Husband in support of his career throughout the marriage until the last years which allowed them to accumulate the vast savings and assets, as should the fact that she will be making on-going contributions in her care and up-bringing of the children, almost certainly exclusively by herself in Sydney, which is no less than the Husband’s on-going financial contribution towards the maintenance of the children for years to come.

Other Factors

100.This has been a relatively long 18 years marriage with the parties now in their 40s and will be in their 50s and even 60s by the time their respective obligations to their children are fulfilled, while there is no suggestion of any mental or physical disability or problem on the part of either party that warrants consideration, it is submitted on behalf of the Wife that the way the Husband has conducted these proceedings, and the difficulties that have been put in the court’s and the Wife’s by his attitude    of failing to provide disclosure as ordered must be taken into account when weighing up his evidence as a whole, as there were deliberate omissions, and not mere oversights, in his effort to mislead the court to his advantage, which Ms Irving argues as gross litigation conduct, as is his dissipation of assets a financial conduct.

101.There is no question in my mind, as has been amply demonstrated above, of the Husband’s various attempts to defeat the Wife’s rightful claims not just for herself but also for the children, which show not only his utmost contempt for her but also for the court, as I have already found throughout this judgment. Such conduct has already been reflected in adverse inferences being drawn against him over various issues between the parties, and will no doubt be reflected accordingly when I come to decide on the question of costs.

Conclusion

102.As I have already indicated above, the Wife should be  provided appropriate funds from the matrimonial assets to enable her to buy a suitable house with enough room and space for the 3 children, and the evidence shows that it would be in the region of AUD1.0 million or so. While it is appropriate and also practical for her to use most, if not all, of those furniture and household goods which she removed from the former matrimonial home when she left Hong Kong, she will need additional funds to set up her new home as well as buying a suitable car to take the children to school. This would probably bring her total capital needs to  AUD1.5m, which is slightly over one-third of the funds in the Halifax account. Does it mean that the balance of AUD2.5m should then be given to the Husband, as would seem to be the case according to the law which is at present governed by the Court of Appeal’s decision in C v C  [1990] HKLR 183 which determined the wife’s share of the matrimonial assets primarily on a quantification of her reasonable needs?

103.Granted that the Wife in this case is also seeking periodical maintenance from the Husband rather than just a clean-break lump sum, that 1990 decision has been found by the recent Court of Appeal in L v C  [2007] HKFLR 334, 382-3 to sit ill not only with the more recent approach adopted in England by the House of Lords in the said landmark cases of White v White and Miller v Miller which “set its face against gender discrimination, against favouring the money earner over the homemaker and child carer and, whilst purportedly eschewing a presumption of equal division, departs from equal division only if good reason is shown for so doing”, but also “with that set in Australia in cases such as Mallet v Mallet [1983-1984] 156 CLR 605 and Figgins v Figgins [2003] 2 FLR 299 which, though insisting on respect for gender equality, rejects equality of division as a starting point, and emphasizes the danger and possible injustice that can result from such an approach. In Figgins it was said in Para 133 that highlights the problem with C v C that :

‘….the lesson to be learned from White is that it is a major error to approach these cases upon the basis that one arrives at a figure that is thought to satisfy the needs of the wife and give the balance to the husband.”

104.While the case of L v C did not directly touch on the issues raised by C v C and by White and the Australian cases, the Court of Appeal agreed that C v C is no longer a satisfactory approach when Stock JA said in Para 108 of the leading judgment :

‘…It is outdated and may well work to the unjust disadvantage of one party or the other, most often in practice the wife. C v C itself recognised that the legislative intent in the context of the Ordinance was to follow developments elsewhere, and the law in this field is peculiarly suited to adaptation with changing concepts of fairness. That is particularly so when the law in this jurisdiction is now much more informed by respect for gender equality than it was at the time of C v C; and by gender equality I mean that the female is not to be put at a disadvantage by reason of the role that wives often perform, a role not directly concerned with wealth development, but indirectly so, making such contributions to the family welfare that are symptomatic of marital partnership. In the exercise of the type of discretion that is conferred by this Ordinance, there is a need ‘to take into account ‘the human outlook of the period in which they made their decisions’ and [a] need to remember that ‘the law is a living thing moving with the times and not a creature of dead or moribund ways of thought.” C v C was a decision before rights-based awareness was solidified by human rights legislation in Hong Kong and by the extension to Hong Kong, as a matter of international law, of the Convention on the Elimination of All Forms of Discrimination against Women, and it seems to me that a current interpretation of the statutory requirement in question must, where possible, accord with Hong Kong’s international obligations as extended to it by the Central Government. Whilst therefore this is not the case in which this court can appropriately embark on an analysis of the contending issues and examine the approaches in England and Australia as one or the other might here be applied to the various factual scenarios which arise in such cases, the nettle must be grasped in the first appropriate case, and there is ample room in my judgment for now distinguishing the present social and rights-based setting from that which prevailed at the time of C v C.’

105.Ms Irving submits that the Wife should be awarded 55% of the total assets as she has to provide a home for the children, while the Husband will have the ability to rebuild his assets, bearing in mind of those assets such as those goods removed by him from storage have a value, and that he cannot be rewarded for his appalling conduct in these proceedings.

106.I agree that the Wife has made her fair contributions to this 18 years of marriage, and is therefore entitled to a fair share of the matrimonial assets, but while she may not have the wherewithal to generate assets for herself in the future, she will continue to receive periodical maintenance from the Husband who also has the continuous and heavy obligations towards the maintenance of his children. It is true that his conduct in the proceedings should not be condoned, I believe it can and will be properly reflected by the costs order against him, which will no doubt have to come out from his share of the assets. Accordingly a more or less equal division of the funds in the H Holdings accounts between the parties would in my judgment be a fair result, with each keeping those assets already in their possession including the furniture and household goods in storage and the former matrimonial respectively and the money given to the Wife before she left Hong Kong. I said more or less equal because as aforesaid the Husband has never produced the latest balance of the H Holdings funds, but taking into account of the interest that would have been earned, I believe AUD2.0m would be a fair and appropriate sum for the Wife to enable her to buy a suitable house and at the same time to provide future security for her, plus a monthly periodical sum of AUD16,840 per month (rounded up from her estimation) for her and the 3 children, being AUD3,280 for herself and AUD4,520 for each child, to be reduced by the sum of AUD2,000 being the difference of the rental expense and the rates once she has purchased her house.

107.Given the Husband’s attitude in the proceedings, I cannot say I have full confidence that he will comply with this order, hence it may be necessary to consider imposing certain security for the periodical payment for the Wife and the children, in particularly when they are in Australia, but since I have not heard any evidence on this matter, I shall leave it for the time being and wait and see. 

108.Lastly, as already indicated above I agree that the Husband should bear all the Wife’s costs of and incidental to her ancillary relief application and the section 17 application to be taxed if not agreed, which is an order nisi to be made absolute at the expiration of the next 14 days.

109.My order on ancillary relief is according as follows :

Ms Francis Irving instructed by M/S Hampton Winter and Glenn for the Petitioner.

The Respondent acting in person.