Ip Chow Shiu Ping v. Ip Chi

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO.43 OF 1971.

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BETWEEN

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Coram : Huggins, J.

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J U D G M E N T 

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1. The Applicant was granted a decree nisi of divorce by me on 11th October 1971. The Respondent had entered notice of appearance but did not oppose the petition and he was not present at the hearing. The present application is for an order that there shall be entered in the Court Minutes a statement recording that it is impracticable for the Petitioner to make arrangements for the care and upbringing of the child of the marriage. That application is made under rr.33A and 54(1) of the Matrimonial Causes Rules which were in force on 15th March 1972. These Rules have, of course, been replaced from the beginning of this month but the new Rules have no bearing upon the present application. Rule 33A provided:

“ Where at the hearing of proceedings for divorce ..... it appears that there is a child of the family who has not attained the age of sixteen years and -

(a) the judge is satisfied as respects every such child that arrangements have been made for the care and upbringing of the child and that those arrangements are satisfactory or are the best which can be devised in the circumstances, or that it is impracticable for the party or parties appearing before the court to make any such arrangement;

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there shall be entered in the court minutes a statement recording the matters in regard to which the judge is satisfied under paragraph (a) of this rule ......”

I am satisfied on the evidence before me that the child is in the custody of the Respondent and that the Petitioner has no means of making arrangements for the care and upbringing of the child. The question which I raised at the first hearing of this summons was as to the proper interpretation of the words “for the party or parties appearing before the court”. The word “appearance” can, in some contexts, mean “the act of entering an appearance”. The Respondent having here entered an appearance, although not appearing physically before the court, it appeared to me on a possible interpretation that this particular Rule had no application. It has been submitted to me that that is not the correct interpretation and the argument that has been advanced is, as I understand it, in effect merely one of practical convenience. However, I think that the matter is effectively covered by the decision of the Court of Criminal Appeal for New South Wales in Reg. v. Gilbert(1). That was a case under the Motor Traffic Act 1909-1956 and it was held there that the words “if such person does not appear before the court” meant “does not appear personally before the court”. The circumstances were, of course, not identical with the present case but I think the principle which underlies that decision is equally applicable to the present case and, therefore, that I am not concerned to consider whether it is impracticable for the Respondent to make arrangements for the care and upbringing of this child.

2. In view of what I have said, there will be an order that a statement be entered in the Court Minutes recording the fact that I am satisfied it is impracticable for the party appearing before the court to make arrangements for the care and upbringing of the child of the marriage.

20th April, 1972.

(1)  1958 S.R. (N.S.W.) 114.