L v. T

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

DIVORCE JURISDICTION

SUIT NO. 3039 OF 1995

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Coram: His Honour Judge de SOUZA in Chambers

Date of Hearing: 6 June 1995

Date of Decision: 6 June 1995

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J U D G M E N T

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1.These proceedings concern a contested application for orders of ouster and non-molestation injunction. The matter first came before me on 8th of May 1995 by way of an ex parte application by which the wife was seeking to oust the respondent husband from the former matrimonial home and for an order to restrain him from assaulting, molesting, threatening or otherwise interfering with her. I acceded to her request for an ex parte non-molestation injunction on that day, and having issued the order sought, I adjourned the matter of the injunction and the ouster application itself to 24th of May 1995. On the return date, the husband appeared in person as he did today, seeking to oppose the continuation of the injunction and the grant of an ouster order. As there was insufficient time to fully ventilate the conflicting issues on that occasion, the matter was adjourned until today for argument.

2.In support of her application, the wife has filed three affidavits, the last being an affidavit of means and the second one being a supplemental affidavit exhibiting a number of photographs demonstrating the extent of the damage to the former matrimonial home as was described in her first affidavit. I shall refer to those affidavits in greater detail in a moment.

3.The husband has filed on simple affidavit of means on 1st June but it was only made available to the Court this afternoon. In it he briefly sets out his employment with the Citybus Company as a bus driver for which he is remunerated in the monthly sum of $11,000.

4.He says that he supports his parents with whom he resides in the sum of $1,500 each month. He also provides maintenance for his two sons now living with him at his parents' home to the tune of $2,500 per month. The affidavit does not explain his position on the matter of the wife's injunction and ouster applications. He has, however, testified as to why the relief sought by the wife should not be granted. I shall first of all deal with the wife's case for the injunctive relief.

5.In her first affidavit the wife deposes that she is the sole registered legal and beneficial owner of the former matrimonial home. Briefly, she says that she alone had financed its purchase, which incidentally had been completed by a final mortgage payment made very recently.

6.In paragraph 4 of that affidavit, the Court is informed that on 26th of May 1992 the parties became separated shortly after the birth of the younger son. That separation was formalised on 26th of February 1993 when a deed of separation was entered into. The deed provides that custody of the children would vest in the wife and that the parties should live separate and apart. The evidence establishes that they have in fact lived separate and apart with the wife remaining with the two children in the former matrimonial home until matters came to a head as particularised in her first affidavit. It would appear that the wife has experienced considerable difficulty as a result of the husband's pestering her at her place of employment. This is covered in paragraph 6 of the same affidavit. As a result of that, she has had to change employment and became a Jardine's Life Assurance Unit Manager.

7.It is also her case that the respondent had on numerous occasions returned to the matrimonial home, causing her difficulties. He would apparently shout and swear outside the premises, demanding to be let in. This, she says, had caused a degree of emotional distress to her and the children, and has also affected the neighbours. The impact on her had been considerable in that it had caused her constant vomiting and eventual collapse on 30th of March 1995 for which she had to be hospitalised for treatment. The wife then goes on to describe a number of incidents beginning with 21st April 1995 and ending with the incident of 5th May 1995. These appear in paragraphs 13 through 18 of her first affidavit.

8.On 21st April 1995 the respondent arrived at the premises and continuously rang the door bell. He was let in in order to avoid further commotion. The wife says that as soon as he entered, he violently swept things on to the floor causing damage. On this particular occasion, he had pressed her neck with his forearm and a struggle ensued during which she said that she sprained her elbow. She became alarmed and frightened. The respondent apparently left after that stage.

9.On 23rd April 1995, the respondent once again appeared at the premises. On this occasion, he caused further damage to a number of items in the premises. He also removed the elder child, TKT from the flat. This was according to the wife against her express wish. However, the child was returned shortly thereafter on 25th April 1995.

10.Again on 28th April, the respondent returned to the premises. He forced open the metal gate and entered the premises. The wife says and I quote :

"In a mad rage, he violently, barbarously and savagely broke the television, the flush toilet, the basin, the bath tub and the mirrors in the sitting-room and the bedroom. The whole premises was left in a mess. This time, I feared for my safety. It appears to me that the respondent was becoming more violent, and his threats were getting worse. I simply cannot stay in the premises anymore". (Paragraph 16 of the first affidavit refers).

11.The wife returned to the premises on 5th May 1995 to discover that the respondent had previously gained access thereto. On this occasion she found that the sofa, the mattress and other items had been removed from the premises. She also noticed further damage in the flat. A number of photographs has been exhibited as CL-7 to her supplemental affidavit. Those photographs make it abundantly clear to the Court that the husband had wreaked severe damage to the premises.

12.The husband does not seek to argue that he did not cause the damage described by the wife in her affidavit and as shown in the photographs. He admits that he had vented his anger by causing the damage to the flat. This he had done as a result of being informed by his son of the wife's alleged infidelity with a tenant. The husband says that despite the damage that he has caused to the flat, there is no basis for the wife to fear for her safety as a result. He describes her as being a registered nurse who is accustomed to dealing with dead bodies in the hospital, the implication being that her fear is exaggerated.

13.When one looks at the evidence, it is quite patent that the husband has behaved in a most violent fashion on the occasions described by the wife. Even if she had committed adultery as he suspected he was not entitled to conduct himself in that manner. I am satisfied that the wife has told me the truth about those incidents. In fact, at the conclusion of her evidence in chief, the husband was invited to cross-examine her on any contentious matters that he would wish to deal with. He specifically said that he accepted the veracity of her testimony as well as the contents of her various affidavits.

14.I am satisfied that the wife is justified in fearing for her safety. It must have been quite a shocking experience to see her husband coming into the flat and acting virtually as a madman, damaging the premises to the extent that he did. If he is capable of so behaving, the wife's fear of him turning his anger on her is well justified.

15.I am satisfied that there has been violence in the flat as described by the wife as well as a real risk of continuing physical danger and violence in the future.

16.The wife's application for a continuation of the non-molestation injunction which I have previously granted is amply justified. I will, therefore, order that the non-molestation injunction shall continue in similar terms until further order.

17.Turning now to the ouster application, it is accepted that such a relief is by nature draconian. The Court is, therefore, very slow to exercise the discretionary power to exclude a spouse from a former matrimonial home.

18.Section 3 (2) of the Domestic Violence Ordinance, Cap. 189 provides as follows :

"In the exercise of its jurisdiction to grant an injunction containing a provision mentioned in sub-section 1 (c) (which is the ouster application in this case) or (d) the District Court shall have regard to the conduct of the parties, both in relation to each other and otherwise, to their respective needs and financial resources, to the needs of any child living with the applicant and to all the circumstances of the case".

19.In the case of Grant v James [1993] 1F.C.R. 850, the English Court of Appeal has ruled that an ouster order cannot be justified unless there is a risk of continuing physical danger or violence. I have found that there is a genuine and real risk of such physical danger and violence in the circumstances of this case.

20.In approaching the question of the ouster application, the Court is not simply to approach the matter from the point of view of housing policy. It is, of course, true that the husband desires to return to the flat with his two sons for the reasons which he gave which are briefly that one of his sons has had to spend much time travelling to school and the difficulty of his aged mother in having to collect him from school.

21.The wife has testified that she is in some difficulty over accommodation because she is now in rented accommodation and is receiving no income from her new employment. It is her case that she desperately needs to return to the flat which has been left vacant since the incidents. She hopes to return with the children to live there. It can be seen that both spouses have completing claims to use the premises for accommodation, and it also seems quite clear that in the present emotional climate it is well nigh impossible for all of them to live under the same roof. Only one spouse can be permitted to reside in the flat.

22.The husband's financial resources permit him to continue to reside with his parents. After deducting his expenses, he has a free balance from his income of $11,000. He is able to remain where he is. He has the choice of continuing to live with his parents or to rent alternative accommodation if he so wishes. The wife, does not, however, have that option because she has no income. If she were to return to the premises, she needs to incur expenses to repair the damage to the property. She estimates that it would cost about $50,000. A loan would have to be raised for that purpose. In short, she says she can barely afford to continue to remain in rented accommodation.

23.It would appear that the wife's claim to return to the former matrimonial home is greater and more pressing because she has custody, by arrangement with the respondent, of the children. But that of course is but one factor to be put into the balance; it is not a persuasive consideration, neither is the housing or welfare need of the children.

24.Having looked at all the circumstances of the case, it is my view that the wife's case for an ouster order has been made out. It is just and reasonable that the order prayed should be made in this case. I accordingly grant an ouster order as well.

25.Section 6 (1) of the said Ordinance provides that an ouster order shall not have effect for a period exceeding three months. In my view, the ouster order that I issue today shall last for three months. Whether or not a fresh application should be brought after that period has expired is a matter for the wife. In the meantime, in my view, an enforced separation flowing from my order would hopefully provide a cooling down period for the parties.