Read the full judgment text of FCMC 14525/2005 on BabelCite. This Family Court judgment was delivered on 7 October 2011 before HH Judge Bruno Chan.
Matrimonial law – Variation of maintenance order – Full and frank disclosure – Change of circumstances – Credibility of evidence – Non-disclosure of assets – Application dismissed. The Respondent Husband applied to vary a consent order made on 28th November 2006 which required him to pay periodical payments of HK$14,000 per month for his former wife and son. He claimed his financial circumstances had deteriorated due to business failures and low income in China, seeking a reduction to nominal amounts of HK$1.00 per annum for the wife and HK$100 per month for the son. The Wife opposed the application, alleging the Husband had never fully or truthfully disclosed his means and had fabricated changes to avoid financial responsibilities towards her and their son. The Court examined the history of enforcement proceedings, including multiple judgment summons and garnishee orders, noting the Husband's pattern of defaults followed by payments to discharge the summons. The Court found the Husband failed to make full and frank disclosure of his means at the time of the divorce settlement, specifically regarding his interests in two Hong Kong properties known as Metro Town Property and The Legend Property, and a Taiwan property purchased through a third party. The Court held that the Husband's evidence regarding the Taiwan property was unreliable as the alleged beneficial owner, Madam Chiu, refused to attend court for cross-examination, depriving the Wife of her right to challenge her declarations. The Court further found discrepancies in the Husband's income claims and asset transfers, concluding he had not discharged the onus of proving a material change in circumstances. The Court applied the principles from AEM v VFM and Garner v Garner, noting that while the jurisdiction to vary is unfettered, a material change in circumstances is usually required. The Court rejected the declarations from Madam Chiu due to lack of cross-examination and inconsistencies in the Husband's evidence regarding the purchase and sale of the Taiwan property. The Court found the Husband's evidence on income and assets insufficient to justify the variation, noting he had agreed to orders he claimed he could not afford. The Court dismissed the application and awarded costs to the Wife with a certificate for counsel to be taxed on Legal Aid Regulations. The Court emphasized that the Husband's conduct of agreeing to orders he could not afford, then defaulting, was viewed with suspicion and indicated a lack of credibility. The Court found the Husband's failure to disclose assets at the time of the divorce settlement was a significant factor in rejecting his application. The Court concluded that the Husband had only himself to blame for the lack of sympathy given the discrepancies in his affirmations and testimony. The Court noted the Husband's transfer of shares in RBS Building Materials to Madam Chiu at nominal value was suspicious. The Court found the Husband's claim of earning RMB4,500 per month was inconsistent with his ability to agree to payment terms. The Court held that the Husband had not proven he had no beneficial interest in the Taiwan property. The Court found the Husband's explanation for the sale of the Taiwan property in his sole name was incredible. The Court concluded the application was dismissed due to the Husband's failure to make full and frank disclosure.
Legal issues: Variation of maintenance order · Full and frank disclosure · Credibility of financial evidence
Outcome: Husband's application for variation of maintenance order dismissed.