Trh v. Kcs

FCMC 8704/2023

[2024] HKFC 12

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8704 OF 2023

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

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

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

D E C I S I O N
(DVO INJUNCTION)

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

1.On 13 November 2023, the Respondent mother (‘the mother”) issued an ex-parte summons (on notice) asking for various injunctive reliefs against the Petitioner father (“the father”) to restrain him from:

(1)  assaulting, molesting, harassing and/or threatening the 2 children of the family, now aged 11 and 8 respectively;

(2)  making disparaging remarks about the children themselves and/or the mother;

(3)  discussing and/or disclosing information contained in these proceedings to the children and/or any third parties until further order.

2.At the urgent hearing on 14 November 2023, this court, after hearing the mother’s counsel (Ms. Yip SC leading Ms. Yu for the mother) and the solicitor for the father, ordered a return date of 12 January 2024, i.e. today, for an one hour hearing. At the same time, the court also granted an interim injunction restraining the father from:

(a)	(i)	Non-stop ringing the doorbell and the home phone of the Former Matrimonial Home (“FMH”);
	(ii)	photographing, filming or recording the mother and/or the children without their consent;
	(iii)	guilt-tripping, threatening, insulting, bullying, blackmailing, intimidating, or interrogating the children;
	(iv)	frustrating or obstructing the communication (including electronic forms) between the children and the mother;
	(v)	frustrating, disturbing or blocking the mother’ and the children’s entry to the FMH;
	(vi)	tracking or following the mother’s whereabouts or exact locations.
(b)	Making disparaging remarks about the children themselves and/or the mother; and
(c)	discussing and/or disclosing information contained in these proceedings to the children and/or any third parties, except legal advisors and other professionals involved in these proceedings.

3.Subsequent to the hearing, the father’s affidavit in opposition was filed on 5 December 2023, refuting the mother’s allegations.

4.At today’s hearing, an important preliminary point arises and that is the mother has not filed and serve an inter-partes summons for her application for the DVO injunction. According to Ms. Yip, there is no order by the court at the last hearing for an inter-partes summons to be issued by the mother. She even cited para 29/1/34 at p. 818 of the White Book and quoted the second last paragraph:

“Where an injunction was obtained ex-parte with notice, and was opposed by the enjoined party but no evidence was filed on his behalf, it is unsatisfactory for that party to pursue an appeal at that stage. Instead, the plaintiff’s original motion should be stood over to a subsequent inter-partes hearing when the evidence of both parties will be before the court of first instance (Hunter & Partners v. Wellings & Partners [1987] FSR 83, 88 (CA) (May LJ).”

5.First of all, this passage concerns mainly with whether the enjoined party should appeal against an ex-parte injunction or the case should be stood down for an inter-partes hearing. It is not authority to say that an inter-partes summons is not necessary for an application for an interlocutory or final injunction.

6.I am of the view that an inter-partes summons is necessary for an application for a final injunction (it is to be noted that the mother’s application is for a final injunction under DVO). This is clear by reading paragraph 29/1/50 at p. 822 of the White Book:

“Ex parte applications – The starting-point is that application for interlocutory injunctions should be made inter-partes after the commencement of proceedings. It is contrary to the principles of natural justice that any judicial order adversely affecting a party’s interest should be made without the party being given a reasonable opportunity of being heard. Derogations are only permitted in certain limited and exceptional circumstances, the most obvious of which concerns matters of such extreme secrecy or urgency where there is no time to warn the defendant of what is proposed, or where the purpose of the injunction will or may well be frustrated if the defendant is informed of what is proposed, or where the defendant simply can not be found.

…

Where an interlocutory injunction is obtained ex-parte, there will be marked in the order a “return date” for an inter-partes hearing (Para.33(2)). Detailed provisions concerning the listing and hearing of such inter-partes summons for interlocutory injunctions are now contained in Practice Direction 5.3, which is reproduced at para. PD5.3/1, and Practice Direction 5.4 which is reproduced at PD 5.4/1. While it is necessary duly to serve a respondent out of jurisdiction in accordance with procedural rules, instead of fixing a return date for the inter-partes summons at a later date to enable due service to occur, it will often be a better approach to fix an early return date for the inter-partes summons and to notify the respondent by using other modes of communication such as email, short message service or fax (Tiong King Sing v Sam Boon Peng Yee [2011] 5 HKLRD 651).”

7.It may be true to say that in the interim injunction order dated 14 November 2023, the court did not order the mother specifically to issue an inter-partes summons for the court’s consideration of her final injunction application, but as the mother was represented by such an experienced firm of solicitors in family litigation, it was naturally assumed that they know the requirement of issuing an inter-partes summons failing which  the court would not be in a position to grant a final injunction order basing only on their ex-parte application, even on notice.

8.Ms. Yip also mentioned that the lack of an inter-partes summons is a technical point. I agree with Mr. Cheng’s submission that an injunction is a draconian measure. The court has to be careful in its deliberation and the lack of an inter-partes summons cannot simply be regarded as a technical default.

9.As for the way forward, Ms. Yip submitted that the mother’ ex-parte summons should be adjourned for argument with one day reserved. She also asked for the interim injunction to continue (the mother’s primary stance) or an interim injunction in terms of the ex-parte summons (the mother’ alternative stance).

10.Since the mother had the opportunity, but failed to issue a proper inter-partes summons before me, I do not think it right to adjourn the ex-parte summons for argument. The mother asked for the continuation of the interim injunctions. But the issue is until when? An interim injunction is granted to hold the fort, so to speak, pending the determination of a party’s substantive application. There is no proper substantive application before me. I am not convinced that an interim injunction should continue in such a vacuum.  

11.Of course, the court is mindful of the fact that we are talking about the welfare of 2 young children. But as I see it, even though the process of negotiation might have been very difficult, the parties could in fact come to some forms of mutual undertakings of non-molestation. Those undertakings, if agreed, would provide enough safeguards to the interest of the children. But the obstacle, as I was told, was that the mother is now asking for costs. In respect of children matters, we always say that it is not easy to determine who the winner is. Therefore, I would urge the parties to re-consider on resolving this aspect of their disputes by way of mutual undertakings. Of course, that is a matter entirely up to the parties with proper advice from their counsels. The unfortunate alternative would be for the mother to issue a proper inter-partes summons on DVO, which would be costly and time consuming.  This will not serve the best interests of the children, nor those of the parties.

12.Based on the above considerations, I hereby make the following orders:

(1)  The mother’s ex-parte summons (on notice) is dismissed.

(2)  The interim injunction granted on 14 November 2023 to be discharged.

(Re: Discussion on costs)

13.Although the father is successful in resisting the ex-parte application of the mother, it is obvious from the correspondence that the mother (as well as the father) did try very hard to reach some form of agreement on mutual undertakings. We all know that the court has very wide discretion on costs, especially in children matters. Under these circumstances, I have decided that this is not a proper case to order the mother to pay costs. There shall be no order as to costs, including all costs reserved.

Representation:

Mr Cheng Huan SC, leading Mr. Jeffrey Li and Ms. Elizabeth Lee, Barristers-at-law, instructed by Messrs Hugill & Ip, solicitors for the Petitioner

Ms Anita Yip SC, leading Ms Lily Yu, Barristers-at-law instructed by Messrs. Withers, solicitors for the Respondent