Thy v. Chfr

CAMP 13/2018

[2018] HKCA 240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 13 OF 2018

(ON AN INTENDED APPEAL FROM FCMC NO 11061 OF 2014)

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REASONS FOR JUDGMENT

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The Court:

1.In this matter, the respondent in FCMC 11061 of 2014 applied for leave to appeal against the order of Judge Melloy (“the Judge”) of 8 November 2016 dismissing the petitioner’s divorce petition issued in these proceedings and granting leave for her to file a fresh petition for divorce on the basis of two years’ separation, and further staying the respondent’s cross-petition, which is to be dismissed upon pronouncement of the decree nisi in the fresh divorce proceedings.  The Judge refused to grant leave to appeal on 26 January 2018.

2.The procedural history of these divorce proceedings has been set out in the petitioner’s 7^th affirmation filed on 13 April 2016.  In short, pursuant to a Judgment given by this Court on 20 October 2015 in CACV 228/2015, the respondent’s then appeal was allowed and he was given leave by this Court to file his answer and cross petition out of time.

3.Subsequently, the respondent’s answer and cross petition was filed on 20 October 2015.  Although he denied the petitioner’s allegations of his unreasonable behaviour, he admitted that the marriage had broken down irretrievably and cross petitioned on the petitioner’s unreasonable behaviour. 

4.It was not really disputed by the respondent that the petitioner moved out of the former matrimonial home on 9 April 2014. Thus, by 9 April 2016, the parties would have lived separate and apart for a continuous period of two years.

5.On 13 April 2016, the petitioner took out a summons and sought leave, amongst other things, to file a fresh petition based on the parties’ separation for two years and this led to the Judge making the order against which the respondent now seeks leave to appeal.

6.The respondent’s main ground of appeal is that his rights to defend the suit was wrongfully prejudiced and deprived of by the Judge ordering a stay on his cross petition and he relied on section 15 (1) of the Matrimonial Causes Ordinance, Cap 179 (“MCO”), arguing that the issues raised in the cross petition require proper determination by the court as they may have some bearing on ancillary relief and child custody matters. 

7.In refusing leave to appeal, the Judge had made reference to Grenfell v Grenfell [1978] 1 All ER 561, which was followed by this Court in SJH v RJH [2011] HKCA 280.

8.Section 15 (1) of MCO sets out that it shall be the duty of the court to inquire, in so far as it reasonably can, into any facts alleged by any party to the proceedings.  This is similar to the then section 1 (3) of the Matrimonial Causes Act 1972 which was relied upon by the wife in Grenfell.  Ormrod LJ had referred to that section and had said, amongst other things, that there was no point in conducting an inquiry into behaviour merely to satisfy feelings , however genuinely and sincerely held by one or other of the parties[1]. 

9.Ormrod LJ’s approach has been followed in the past 40 years and further approved by our Court of Appeal in SJH v RJH [2012] 4 HKLRD 308.  In SJH v RJH, Cheung JA held that as both parties in that case were of the same view that the marriage had broken down irretrievably, the court in exercising its divorce jurisdiction in a modern setting, would be loathed to allow the parties to use valuable court time to litigate on a matter which had no impact whatsoever on the divorce itself and which should be dissolved as quickly and painlessly as possible[2].

10.It is submitted on behalf of the respondent the approach in Grenfell does not sit well with section 15(1). With respect, we do not see any merit in such submission.  Section 15(1), read together with the other parts of that section, only serves to highlight that the court has an independent duty to investigate the allegations of the parties at the hearing of a petition as the dissolution of a marriage concerns status of the persons involved.  We see no inconsistency between such duty and the adoption of the approach in Grenfell when a marriage is to be dissolved on the ground of two year’s separation.  In this connection, we cannot see the relevance of Aurora S Camaclang v Karl-Heinz Schleiter CACV 104/1993, 26 October 1993 where the sole basis for seeking the dissolution of the marriage was adultery. 

11.In the present case, it is further submitted on behalf of the respondent that he is not making this application to vindicate his feelings, and that the Grenfell approach is not entirely applicable as there are certain issues raised in the cross petition which have important bearing on ancillary relief and child custody requiring proper determination by the Judge namely (1) the overall conduct of the petition during the marriage and whether it is appropriate for the care and control of the children to be vested with her; and (2) the financial misconduct of the petitioner during the marriage. 

12.The effect of the Judge’s order is that upon a decree nisi being granted in the fresh proceedings, the respondent’s cross petition will be dismissed.  It is trite the court cannot grant another decree nisi in respective of the same marriage.  However, the Judge has also ordered that all existing orders and documents under these proceedings are to stand and remain valid and be transferred to the fresh proceedings. 

13.Subject to the court’s view on the relevance of the issues concerned in the context of custody or ancillary relief (bearing in mind what was said in SJH v RJH at [11(9) and (10)]), there is nothing to prevent the respondent from ventilating issues which he has raised in his cross petition in the subsequent ancillary relief applications or any application regarding the children. If the court were to come to the view that those issues are of no relevance in the context of those applications, then there is no reason why we should pre-empt such potential conclusion by mandating that there should be a trial on the cross petition.

14.As pointed out by Ormrod LJ in Grenfell, there is a general power in the court in its inherent jurisdiction to stay proceedings or stay pleadings or prayers in circumstances like the present one whenever it is appropriate to do so[3].

15.The Judge has followed the well-established approach in Grenfell and in our view she has exercised her discretion correctly.

16.Having considered the grounds put forward by the respondent, this Court is not satisfied that the appeal has any reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard. 

17.We declined to grant leave.  The respondent’s application was dismissed with costs.  Having considered the statement of costs and submissions from counsel, the petitioner’s costs were summarily assessed at $87,000.

Mr Dan Leung, instructed by Ip & Heathfield, for the petitioner

Miss Joyce Chan, instructed by S W Tai & Co, for the respondent