Lyl v. Cchs

FCMC 5373 / 2022

[2023] HKFC 72

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5373 OF 2022

________________________

BETWEEN

________________________

_________________

REASONS FOR DECISION

( Leave to file Answer to Petition out of time;
to set aside the Registrar’s Certificate )

_________________

1.In this case, the petitioner wife seeks to divorce with the respondent husband, alleging that the latter has behaved in such a way that she cannot reasonably be expected to live with him. The husband files his acknowledgment of service (Form 4) indicating that he wishes to defend the petition. However, he has not filed his Answer to the Petition.

2.On 9 March 2023, the Registrar issued his certificate giving directions for trial, namely this suit may be listed in the undefended Special Procedures List of 13 April 2023. This would mean that decree nisi was supposed to be granted at 9.30 am of 13 April 2023.

3.On 6 April 2023 at 11.55 am, ie merely 2 clear working days before pronouncement of decree nisi, the husband took out a summons for, inter alias, the following relief:

(1)  There be leave for him to file and serve his Answer to the Petition and Cross Petition within 14 days;

(2)  The Registrar’s Certificate dated 9 March 2023 be set aside;

(3)  The pronouncement of decree nisi be stayed;

(4)  This cause be removed from the Special Procedure List;

(5)  The decree nisi hearing fixed for 13 April 2023 at 9.30 am be vacated;

(6)  Costs of the application be in the cause.

4.He also filed a supporting affirmation on the same day (“Affirmation”).

5.His summons was fixed before me for 13 April 2023 at 9.25 am. Upon hearing from both parties, I dismissed his application, with costs to the wife. I reserved the reasons for decision to be handed down. The following are my reasons.

A brief chronology

6.The parties were married in 2007. It is said in the Petition that the wife is a receptionist, and the husband is an area logistic manager. There is no child born within this marriage.

7.The following are the relevant chronology:

Date	Event
24/6/2022	The wife filed the Petition.
13/7/2022	The wife served the Petition on the husband’s solicitors.[1]
14/9/2022	The husband filed his Form 4.
9/12/2022	The wife filed her directions for trial and Form 21.
28/12/2022	The husband’s solicitors wrote to the wife’s solicitors and invited her to amend her Petition by relying on the fact of 1-year separation.
29/12/2022	The wife’s solicitors replied that they did not have instructions to amend the Petition as suggested by the husband, and alerted the husband that they had already applied to set down the Petition in the Special Procedure List.
30/12/2022	The husband wrote to the Case Management Judge[2] requesting the court to withhold the wife’s application for directions for trial.
4/1/2023	The Case Management Judge replied that if the husband wished to defend the Petition, he should seek leave for filing Answer out of time. The court also reminded the parties to solve the dispute in the main suit in a practical manner.
17/2/2023	The husband wrote again to the wife seeking her consent to amend her Petition to 1-year separation.
28/2/023	The wife, once again, rejected the husband’s suggestion to amend her petition, as she had already made an application for pronouncement of decree nisi.
9/3/2023	Registrar’s Certificate and court’s letter informing both parties that decree nisi was going to be pronounced on 13/4/2023 at 9.30 am.
6/4/2023	The husband’s summons to file Answer and Cross Petition out of time.

Applicable legal principles

8.Despite the husband was legally represented in the hearing and had filed a hearing bundle for the hearing, there was no written submission filed for the hearing to assist the court.

9.Nevertheless, I think the general legal principles are well settled, and are succinctly summarised by Cheung CJ (then Cheung JA) in the case of YSP v HFF & Another, CACV 235 of 2003, date of judgment 15 October 2003 as follows:

“The principles

13. The following are the relevant principles gleaned from the authorities on how the court should deal with the delay and extension of time by a party in filing an answer to the petition.

1.  The starting point is that under the special procedure the registrar has certified that the petitioner has proved the contents of the petition and is entitled to a decree : Day v. Day [1979] 2 WLR 681.

2.  This being the position an application for extension of time to file the answer should be dealt with by analogy to the principle governing the former procedure of an application for re-hearing after decree nisi : Day v. Day.

3.  This principle is that the application should have been refused unless there were “substantial grounds for the belief” that the decree would have been obtained “contrary to the justice of the case” : Owen v. Owen [1964] P. 277.

4.  Each case has to be dealt with on its own facts : Rogers v. Rogers [1974] 1 WLR 709.

5.  Broadly speaking, the cases may be divided into two types.  This division is not exhaustive :

(1)  Where the applicant was not served at all and the proceedings took place without his knowledge.  He would get a re-hearing almost immediately.

(2)  The applicant knew of the proceedings but chose not to defend.  He then changed his mind again and asked for time.  He had to satisfy the court that it was more probable that the decree was obtained contrary to the justice of the case.

See Stevens v. Stevens [1965] P. 147 and Nam v. Nam [1985] 2 HKC 144.

6.  The following are examples of some of the factors the court may consider in the exercise of its discretion in favour of granting an extension of time :

(1)  The delay in filing the answer is not due to the fault of the applicant, but, for example, due to the delay in processing legal aid application or the fault of his legal advisers : Nash v. Nash [1967] 1 All ER 535.

(2)  The delay is of relatively short duration such as a few days : Lawlor v. Lawlor [1995] 1 FLR 269.

(3)  Allegation of adultery contains a stigma which a party may wish to defend : Huxford v. Huxford [1972] 1 WLR 210; Collins v. Collins [1972] 2 All ER 658.

(4)  The conduct of the parties is relevant in ancillary relief; where allegation of adultery or unreasonable behaviour is made against a party and if he is precluded from defending the petition he would be estopped in ancillary proceedings from denying such allegations; further he would also be ordered to pay the costs of the divorce suit : Rogers v. Rogers and Edinger v. Edinger [1990] HKCU 222.

14. In considering these principles, in our view, it is also important to bear in mind that a divorce affects the status of a person.  While a petitioner has confirmed the contents of the petition by an affirmation, the allegation against the respondent remains untested in court proceedings.

15. Further, as pointed out in Day v. Day, there are matters which show that a respondent may be in a position of handicap such as the different rules which may give an impression that the answer may be filed at any time before the directions for the trial of the cause had been given despite the other specific rules on time limits.  Further no notice is given by the Registrar to the respondent that he is about to consider the evidence with a view to making his certificate that the petitioner has proved his or her case.  The first time that the respondent knows of what is happening, is the receipt of a notice of the date and place for the pronouncement of the decree, by which the process of adjudication is over.

Delay

10.There is no doubt, and this was also accepted by Ms Roland, counsel for the husband, in this hearing that this is a very belated application.

11.Pursuant to rule 15 of the Matrimonial Causes Rules, Cap 179A (“MCR”), the husband should have his Form 4 filed 8 days after service of petition, inclusive of the date of service, ie by 20 July 2022.  Yet, he did not file his Form 4 until 14 September 2022, which is almost 2 months late.

12.Rule 18(1) of the MCR stipulates the time limit for a respondent to file an Answer to the Petition, which shall be 21 days after the expiration of the time limited for filing Form 4, or may be any time before directions for trial are given:

“(1) Subject to paragraph (2) and to rules 15A, 20 and 49, a respondent or other party to the proceedings who—

(a) wishes to defend the petition or to dispute any of the facts alleged in it;

(b) being the respondent spouse, wishes to make in the proceedings any charge against the petitioner in respect of which the respondent spouse prays for relief; or

(c) being the respondent to a petition to which section 15B(1) of the Ordinance applies, wishes to oppose the grant of a decree nisi on the ground mentioned in that subsection,

shall, within 21 days after the expiration of the time limited for giving notice of intention to defend, file an answer to the petition.

(2) An answer may be filed at any time before directions have been given for the trial of the cause, notwithstanding that the time for filing the answer has expired or that the person filing the answer has not given notice of intention to defend.” (emphasis added)

13.Pausing here, the husband seems to suggest in the Affirmation that although he should file his Answer within 21 days after the expiration date to file his Form 4, the law provides that he has the right to file it before directions for trial are given. On this line of argument, I have the following observation:

(1)  Rule 18(1) of the MCR provides that a respondent “shall” file an answer within 21 days after the expiration of the time limit to file his Form 4. The use of the word “shall” denotes an act which is mandatory;

(2)  A respondent “may” file his answer before directions for trial are given under rule 18(2) of the MCR. The use of the word “may”, in my view, suggests that it is not “as of right” that a respondent may file his/her answer, but implies that leave of the court should be sought beforehand.

14.The Registrar gave the directions for trial in his certificate dated 9 March 2023. Therefore, the husband should have filed his Answer to the Petition either (i) by 10 August 2022, or (ii) by 8 March 2023 (and in my view upon leave from the court). Yet, he did neither. He took out this summons only on 6 April 2023, which means that he was late for about 8 months in scenario (i), or late for about 1 month in scenario (ii). The delay is not of a short duration in either scenario.

15.It is trite to point out that it falls upon the husband to explain his delay. In SJH v RJH (divorce: answer) [2012] 4 HKLRD 308, the Court of Appeal commented that at para 11 of their judgment as follows:

“Delay and lack of explanation for the delay are clearly relevant considerations when the Judge exercised his discretion. But more importantly, after the Civil Justice Reform, the Courts in Hong Kong must be able to and should exercise their case management jurisdiction in a manner which is consistent with achieving a speedy resolution of the dispute of the parties and ensuring that justice is done to the parties.”

16.However, the husband has not expressly given his reasons for delay in the Affirmation. Ms Roland referred me to para 7 to para 11 of the Affirmation which she said set out the time line that explained the delay. From what I can gather, the husband seemed to suggest that:

(1)  He wanted to negotiate with the wife for an amicable settlement before filing his Answer in order to save costs;

(2)  He had all along been mindful of the direction given by the Case Management Judge on 29 December 2022 and 4 January 2023 that the parties should adopt a pragmatic approach and consider different facts of divorce, such as 1-year separation by consent or 2-year separation. He had spent time to repeatedly try to negotiate with the wife to settle the main suit in a pragmatic manner by amending the Petition to 1-year separation by consent, but it was in vain.

17.As a starting point, it has to be reiterated that the husband has been represented by solicitors since the date of service of the Petition. It is not the case that he “was not served at all and the proceedings took place without his knowledge”. He is taken to be fully aware of, and thus should duly comply with, the time limit imposed by the MCR on him to file and serve his Answer to the Petition.

18.Further, it is not mutually exclusive that the husband could have filed his Answer to the Petition within time on one hand, and could have negotiated for an amicable settlement of the main suit on the other hand. After all, the wife had repeatedly through her solicitors by letters of 29 December 2022 and 28 February 2023 told him that she was not agreeable to amending her Petition and that she had already applied for directions for trial.

19.In such circumstances, dragging on the matter and delaying in filing his pleadings, despite that the aforesaid written replies of the wife and despite that he was duly notified well in advance by the Registrar’s Certificate issued on 9 March 2023 that decree nisi was going to be pronounced on 13 April 2023, and thereby triggering the necessity of making this application at the eleventh hour of the pronouncement of decree nisi is certainly not costs-saving at all. 

20.Ms Roland argued in the hearing that since the directions for trial were made by the wife, the husband would not be in the position to know when the directions for trial would be given by the Registrar. I do not accept this line of submission in the circumstances of this case. Importantly, the husband was alerted of the wife’s application for directions for trial as early as 29 December 2022. He was reminded again by the Case Management Judge in her court note of 4 January 2023 that if he wished to defend the Petition, he should file an application for leave to file his Answer. Hence, he should know that the Registrar would give his directions for trial within a reasonable time, such that he should have taken out his application in a timely manner.

21.In any event, he failed to offer any acceptable explanation for his delay to take out this application as soon as the Registrar’s Certificate was issued on 9 March 2023. It is disturbing to note that he chose to file his summons merely 2 clear working days prior to the date of the pronouncement of decree nisi.

22.Ms Roland was adamant in the hearing to rely on the comment of the Case Management Judge that the parties should be practical in resolving the main suit and should consider relying on the fact of separation. First of all, it is my view that such comment must be read against the backdrop that as at either 29 December 2022 or 4 January 2023, directions for trial had not been given by the Registrar, and thus it was not yet clear to the learnt judge that the main suit would be listed in the non-defended Special Procedure List. In such circumstances, the learnt judge was perfectly entitled to remind the parties to try to negotiate for a practical solution to resolve the dispute of the main suit. Further, the comment of the learnt judge is merely her observation which cannot and should not be escalated to overshadow the compliance with rule 18 of the MCR. 

23.It is also pertinent for me to point out that the husband was cherry-picking on the comments made by the learnt judge, for he has conveniently left out the learnt judge’s comment made on 4 January 2023, alerting him to seek leave to file his Answer.  Despite such reminder, he did not take out his summons until 6 April 2023, which is more than 3 months after the learnt judge’s comment. 

24.Upon considering all the matters, I do not accept that the husband has provided sufficient or acceptable explanation for his inordinate delay.

Merits

25.A draft Answer and Cross Petition is attached to the husband’s summons. It is very clear from the draft Answer and Cross Petition that the husband accepts that the marriage has irretrievably broken down.

26.I shall start with the Cross Petition. The husband relies on the fact that both parties have separated for 1 year, ie from 18 February 2022, and that the wife consents to the divorce.  However, as pointed out by he himself in the Affirmation, the wife’s Form E suggests that the separation took place from March 2022 (as opposed to 18 February 2022).  I thus cannot see how the wife would be able to consent to his alleged separation date. The court cannot impose “consent” on the wife.

27.The particulars of the husband’s behaviour pleaded at para 9 of the Petition are summarised as follows:

(1)  in December 2021 when the wife returned from Taiwan to Hong Kong, she found a thread of hair not belonging to her in their bed. She queried the husband if he had an affair, which was denied by him;

(2)  but since then, the husband always left home early but returned home late. He was found to be talking discreetly to a lady over the phone in presence of the wife;

(3)  since March 2022, the husband physically assaulted the wife for 3 to 4 times, causing injuries to her.  The wife reported the assault in June 2022 to the police;

(4)  the wife has sought assistance from the social worker on the physical abuse, but the husband showed no improvement;

(5)  the behaviour of the husband made the wife feel unsafe and she cannot continue to live with him.

28.In response to the aforesaid para 9 of the Petition, the husband gives a general denial thereof at para 6 and para 9 of his draft Answer. He avers his specific response at para 8 of his draft Answer, which can be noted as follows:

(1)  he admits the wife started to suspect that he had an affair with another lady after she returned from Taiwan to Hong Kong. He admits that despite his denial to an affair, the wife continued to exhibit her suspicion which has caused conflicts and/or heated argument of the parties (para 8 (b) and (c));

(2)  he admits that he was late to home at least on 20 March 2022 and 26 April 2022, which caused dissatisfaction of the wife, as he says she yelled and confronted him, and attempted to search his backpack (para 8(c) and (d));

(3)  he has not specifically denied that he was found talking to a lady discreetly over the phone; he merely made a non-specific and general denial at para 6 and para 9 of his draft Answer;

(4)  he has not specifically denied that due to the dispute between them in June 2022, the wife had made a report to the police; he merely made a non-specific and general denial at para 6 and para 9 of his draft Answer;

(5)  he has not specifically denied that due to their dispute, the wife had sought assistance from the social worker, but the husband showed no improvement in his behaviour; he merely made a non-specific and general denial at para 6 and para 9 of his draft Answer.

29.As explained by the Court of Appeal in Li Kao Feng Ning Judy v Li Hung Lit [1983] 1 HKC 111, the correct question to ask under the section 11A(2)(b) of the Matrimonial Causes Ordinance, which involves both a subject and an objective element, is this,

“Would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and the personalities of the parties.” (my emphasis added)

30.From the Affirmation and draft Answer, it is clear that:

(1)  this husband is aware that this wife was very skeptical of him having an extra-marital affair with another lady;

(2)  this husband is aware that this wife was not satisfied that he returned home late on repeated occasions;

(3)  this husband does not deny that he and this wife had repeated disputes, including physical disputes, over his lateness back home since March 2022;

(4)  this husband has not specifically denied that their disputes had led to report(s) being made to the police, and assistance from the social worker(s) being sought, but the situation did not improve.

(5)  above all and of material importance, this husband admits that the marriage had broken down irretrievably.

31.In SJH (supra), the Court of Appeal said at para 11.7 that if both parties acknowledged that the marriage had irretrievably broken down, the court will be loathed to allow the parties to use valuable court time to litigate on a matter which has no impact on the divorce itself:

“As both parties are now of the same view that the marriage has been irretrievably broken down, the Court in exercising its divorce jurisdiction in a modern setting, will be loathed to allow the parties to use valuable court time to litigate on a matter which has no impact whatsoever on the divorce itself and which should be dissolved as quickly and painlessly as possible. As Ormrod LJ observed in Grenfell v Grenfell [1978] 1 All ER 561 at 566 that,

‘There is no point, as I see it, in a case like this in conducting an enquiry into behaviour merely to satisfy feelings, however genuinely and sincerely held by one or other of the parties. To do so would be a waste of time of the court and, in any event, would be running, as I think, counter to the general policy or philosophy of the divorce legislation as it stands today. The purpose of Parliament was to ensure that where a marriage has irretrievably broken down, it shall be dissolved as quickly and as painlessly as possible under the Act, and attempts to recriminate in the manner in which the wife in this case appears to wish to do should be, in my judgment, firmly discouraged.’”

32.Ms Roland attempted to submit that the particulars of behaviour pleaded in the Petition would create a stigma on the husband and might affect his case in the forthcoming hearing of the wife’s application for maintenance pending suit and in the final ancillary relief trial.  I do not accept this is a good reason to give leave to file his Answer out of time for the following reasons.

33.First, it is generally true that issues of the divorce decree per se and of finance are in separate and discrete compartments : W v W (Financial Relief: Appropriate Forum) [1997] 1 FLR 257 per Holman J.

34.Second, not every “conduct”, even if proved, may impact on the determination of ancillary relief claims. I only have to repeat the illuminating words of the Court of Appeal in SJH (supra) as follows:

“The issue of behaviour i.e. the wife’s adultery also has no impact on the more substantial dispute of the parties namely, the question of custody of the children and ancillary relief. Specifically in respect of ancillary relief, the Court of Final Appeal has in LKW v. DD (2010) 13 HKCFAR 537 at 540 stated that,

‘ Conduct, or more accurately, negative conduct, is therefore only to be regarded as a material factor if it is “obvious and gross” in the sense explained in Wachtel v Wachtel or, which comes to the same thing, if it is such that it would in the opinion of the court be inequitable to disregard it.’”

35.Third, the wife’s solicitors have already confirmed in their oral submission that she is not going to rely on the particulars of behaviour in the Petition to argue on the “conduct” of the husband in the application for maintenance pending suit or in the final ancillary relief trial.

36.In view of the above analysis, I do not regard the husband’s draft Answer or Cross Petition has any reasonable prospect of success.

Conclusion

37.The outcome of this application hinges on the discretion of the court. For all the matters set out above, I conclude that this husband has not made out sufficient grounds for me to exercise my discretion in his favour to grant him leave to file his draft Answer and Cross Petition out of time, as he fails to persuade me on the issues of delay and merits. He fails to satisfy the court that it was probable that the decree was obtained contrary to the justice of the case.

38.Accordingly, his application is dismissed, with costs to the wife, to be taxed if not agreed. The wife’s own costs shall be taxed in accordance with the Legal Aid Regulations.

39.The husband shall draw up the Order for approval.

Ms S Cheng of Messrs CL & Co for the petitioner (wife)

Ms R Roland instructed by Wat & Co for the respondent (husband)