Tls Nee J v. Rcs
Read the full judgment text of FCMC 1637/2012 on BabelCite. This Family Court judgment was delivered on 4 November 2013 before Deputy District Judge G. Own.
Divorce – Decree Absolute – Section 18 Declaration – Children’s Welfare – Financial Prejudice – Special or Exceptional Circumstances – Matrimonial Proceedings and Property Ordinance Cap.192 – Matrimonial Causes Ordinance Cap.179 – Declaration granted – Decree Absolute expedited – Costs to Petitioner
Legal issues: Section 18 Declaration · Decree Absolute
Outcome: Section 18 declaration granted; Decree Absolute expedited; Petitioner to pay Respondent's costs.
Cites 3 cases
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FCMC 1637/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 1637 OF 2012 ----------------------------
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____________________________ REASONS FOR DECISION ____________________________ Introduction 1.This is the Respondent Husband’s (“Husband”) application by way of Summons dated 19 August 2013 seeking the following orders :-
2.The Husband’s Summons was issued on 19 August 2013 listed for a 15-minute hearing returnable on 10 September 2013. The parties filed a Consent Summons on 6 September 2013 seeking an order to vacate the hearing scheduled on 10 September 2013 and half day be reserved for hearing the Husband’s Summons. A Consent Order was granted by this Court on 9 September 2013, that is, the day before the originally scheduled 10 September 2013 hearing. There are also directions granted upon the Consent Summons for the Wife to file and serve an Affirmation in Opposition 14 days before the substantive hearing. 3.On 12 September 2013, this Court arranged today (i.e. 18 October 2013) for a half day hearing. Thus, the time for the Wife to file her Affirmation in Opposition will be 4 October 2013. The Wife’s 7th Affidavit 4.On 11 October 2013 and without any application for time extension made to this Court, the Wife filed her 7th Affidavit in Opposition (which consists of 120 paragraphs in 26 pages, 16 exhibits containing mainly mobile text messages exchanged between the parties dating back as early as October 2012 until April 2013. The Affidavit together with the exhibits comprises 76 pages in total (page 1328 to page 1404 of Bundle P4). 5.At the hearing, Miss Remedios for the Husband took issue upon the Wife’s late filing and service of her 7th Affidavit with exhibits without leave and on a Friday (i.e. 11 October 2013) before the long week end (which is from 12 to 14 October 2013) leaving the Husband with only 3 days to consider the Wife’s 7th Affidavit and exhibits. Miss Irving for the Wife conceded the absence of leave for the late filing not being 14 days before today’s hearing which the parties had agreed and embodied in a Consent Order. It was, however, submitted that there being no prejudice to the Husband. Had the Husband considered being prejudiced for not having had sufficient time to consider the Wife’s 7th Affidavit, Miss Irving had instructions to seek an adjournment of today’s hearing. Miss Irving’s submission of adjournment was opposed by Miss Remedios for obvious reasons in light of the nature of the Husband’s present application. I should add that the Financial Dispute Resolution (FDR) hearing has already been scheduled for 16 December 2013 (which is just 6 weeks ahead). 6.Some time have been spent by this Court to look into the correspondence between the parties’ lawyers as to the filing of the Wife’s 7th Affidavit. There are the following correspondences in Bundle C4 which I extracted below the relevant contents with page references in brackets. Reference to “W” is Withers for the Wife; “H” is Haldanes for the Husband :- Letter from W to H dated 7 October 2013 (at page 1454)
Letter from H to W dated 16 October 2013 (at page 1525)
Letter from W to H dated 17 October 2013 (at page 1528 to 1529)
Letter from H to W dated 17 October 2013 (at page 1536)
7.It is fair to say the Wife’s 7th Affidavit came in at a late stage. Not to cause any prejudice and delay to the parties, I decided to allow the Wife’s 7th Affidavit and exhibits to be read and considered. Miss Remedios for the Husband then produced an “Appendix 4” containing the Husband’s response to the Wife’s 7th Affidavit which was prepared in the form of narrative statement addressing paragraph by paragraph to both the children’s issues and financial issues raised by the Wife in her 7th Affidavit in opposition. I also allowed this Appendix 4 to be read and considered. 8.Whilst accepting the Wife’s 7th Affidavit, I have a few observations to make after reading the above correspondence. First of all, practitioners should always be aware that whenever a time period is fixed by a court order and when it appears that the time cannot be met, in particular it is obtained by way of consent, proper application for time extension should be taken out unless the written consent of the opposite party for time extension is obtained. The mere fact of notifying the opposite party for the delay without that party positively consenting to the delay would not dispense with the filing of a time Summons. More importantly, in the absence of a proper Summons or good reasons for not issuing the Summons, that party may be running the risks of not having the indulgence of the Court there and then whereby the client’s interests would be jeopardized. Secondly, practitioners should always bear in mind to avoid lengthy letters or protracted correspondence when it is plain and obvious that those costs of correspondence are out of proportion to the costs of issuing a Summons, in the present case which is a simple summons for time extension where the costs of which are minimal. The Husband’s application 9.The Husband’s Summons are necessarily a 2-fold application, namely :
The Law 10.Section 17(2) of the Matrimonial Causes Ordinance, Cap.179 (“MCO”), provides :
11.Section 18(1) of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”), provides :-
The case law 12.Miss Remedios for the Husband referred me to the case of Lau Chu alias Lau Kwok Chu v. Lau Tang Su Ping [1989] 2 HKLR 470 and the Practice Direction dated 19 November 1964 in her written Skeleton Submissions. 13.Miss Irving for the Wife referred me to the case of Wickler v. Wickler [1998] 2 FLR 326 and the case of Re G (Decree Absolute : Prejudice) [2003] 1 FLR 870 in her written Skeleton Submissions. The applicable principles 14.In the case of J v. V [2013] 1 HKLRD 203 which is a Hong Kong case less than a year ago (Judgment Date : 27 November 2012), Hon Poon J having considered various English authorities, including the case of Wickler v. Wickler (supra) cited by Miss Irving, set out the principles governing the Court’s exercise of its discretion whether to grant a decree absolute. 15.I find the following paragraphs in the Judgment of His Lordship particularly useful and instructive :-
16.His Lordship went on to consider the statutory provision under Section 15 (5) of the Matrimonial Causes Ordinance, Cap. 179 and the Matrimonial Causes (Decree Absolute) General Order 1973 reducing the period of 3 months to 6 weeks for a decree nisi pronounced on or after 3 July 1973. His Lordship also considered the procedure under Rule 65 of the Matrimonial Causes Rules for application of decree nisi to be made absolute and the need to file affidavit by the party in whose favour the decree nisi was granted if the application is made over 12 months after the decree nisi accounting for the delay in the application. 17.His Lordship then went on to say :-
18.With these principles and guidance laid down by His Lordship, I will now consider first the Wife’s opposition to the grant of the Section 18 declaration followed by the Husband’s application for the decree absolute to be granted forthwith. Needless to say, if the Wife succeeds on her opposition that the Section 18 declaration should not be granted, the Husband’s application would fall out of consideration. The Wife’s Opposition 19.The Wife in her 26-page 7th Affidavit sets out under different headings on matters outstanding which at present remain unresolved. Those headings are :-
20.Without venturing into each and every detail sets out in the Wife’s 7th Affidavit, it is fair to say the Wife’s contentions rest upon financial issues over herself and the four children of the family, the Husband’s stance on financial disclosure in the ancillary relief proceedings, the Husband’s compliance with interim maintenance order, the Husband’s exercise of interim access over the children, the Husband’s ill-will towards her and her health. In a gist, Miss Remedios in her Skeleton Submissions categorised the Wife’s opposition into :
21.In essence, the Wife is contending that there are prejudices to her and the children if the Section 18 declaration is to be granted at this stage. It is submitted that at present the Court should not be satisfied that arrangements for the welfare of the children have been made and are satisfactory or are the best that can be devised in the circumstances (see section 18 (1)(b)(i) of the MPPO, Cap.192 (supra)). 22.The question thus to be asked is what arrangements, if any, are there at present for the welfare of the 4 children of the family and whether those arrangements are satisfactory per se or are the best that can be devised in the circumstances before the Court ? 23.The 4 children are two sets of twins of the age of 6 and 7 under the care and control of the Wife, who is a stay at home mother and a Chartered Accountant by profession. Interim access had been agreed upon various undertakings and embodied in a Consent Order dated 27 August 2012, which is about 14 months ago. Once there had been a plan for permanent relocation of the Wife with the 4 children to Australia at the conclusion of their Hong Kong 2012/13 school year. The Husband had confirmed his agreement for leave to be given to the Wife on permanent location of the 4 children and such confirmation was embodied in a Consent Order dated 6 December 2012, which is about 2 weeks in advance of the Decree Nisi dated 21 December 2012. Although no Consent Summons on such relocation had ever been signed so far, Miss Remedios at this hearing confirmed the Husband’s position was and still remain the same to consent to the Wife’s relocation with the 4 children of the family to Australia. It is submitted that it was the Wife who had not relocated as per her original plan. 24.The Wife complained that the Husband had only spent 10 hours of access so far in 2013 over the 4 children notwithstanding that there are agreed generous access terms for him. In his 7th Affidavit, the Husband referred to the access arrangement was drafted and agreed by him at the time when the Report of Dr. Lynette Levy dated 24 August 2012 was obtained over the 4 children’s care arrangements relating to their permanent removal, custody, care and control issues and his interim access including staying access and introduction of his partner Miss M to the children. It was against those background that he agreed to the access terms. The Husband stated his position that the insistence of drug testing for both himself and his partner Miss M was misconceived and he had never intended the drug tests on an open ended basis as stated in the wordings of the undertaking within the said Consent Order dated 27 August 2012. 25.At the time of this hearing, custody and access (except interim access) have not been resolved by any Court Order. Miss Remedios drew the Court’s attention that children’s access is a matter which may be changed from time to time. The issue of access being under discussion or need to be resolved in due course before this Court is not a reason for refusing the section 18 declaration. As to custody, the parties have all along been asking for joint custody and it is only recently that the Wife indicated in her Affidavit that she might be seeking sole custody. Miss Irving, in her submissions, referred to the Husband refusing to comply with his undertakings on hair and urine drug testing. As a result, the Husband has not had the children on over-night access and so far only minimal access had taken place. 26.First of all, I am not convinced custody is a live issue on the evidence before me. At paragraph 16 of the Wife’s 7th Affidavit (at page 1330 of Bundle P4), she referred to a letter dated 28 March 2013 (this letter at page 765 of Bundle C3) where she requested for interim sole custody of the 4 children be given to her to which no response was received so far from the Husband. She then went on to say as follows in paragraph 16 of her 7th Affidavit :
27.As a matter of fact, no Summons for sole custody had ever been taken out for the past 7 months up until now since this letter of 28 March 2013. In the absence of full explanation for not so doing, it supports a reasonable inference to be drawn that sole custody does not happen to occur to the Wife as a live issue. The Summons for sole custody was not issued even at the time when the Wife encountered all those problems with the Husband over children’s matter which she now stated in her 7th Affidavit. With the benefit of full legal advice, she still had not done so. Considering objectively, I believe the intended claim for sole custody now appearing in the 7th Affidavit is, if I may be excused for using the word, a ‘threat’ as opposed to a ‘genuine intent’ put forward by the Wife. It is thus my finding that there being no outstanding live issue on custody as the Wife now relied upon as one of her grounds of opposition to the Husband’s application for the Section 18 declaration. 28.As regards access, I accept Miss Remedios’s submission that access over children, defined or otherwise, is always a matter subject to changes and variation and could not said to be ‘finally settled or resolved’. In the present case, there is already an interim access order of this Court. I also accept Miss Remedios’s submission the fact that interim access arrangement would have to be explored further through negotiation or litigation should not stop a decree absolute to be granted. The other fact that the interim access arrangement had not been fully implemented by the Husband would, in my decision, only be a matter for consideration at the access trial since there might be various reasons for the non-implementation. The Court then would have to consider whether such interim access should continue. It is also noted that the present interim access order was granted merely upon the parties’ consent without any investigation or intervention of the Court as to the appropriateness or suitability. With these considerations in mind, I believe the Wife’s contention over the parties’ agreed access arrangement scarcely exercised by the Husband does not assist her case of opposition to any extent. 29.Now I will deal with the Wife’s contention over the Husband’s stance on financial disclosure in these ancillary relief proceedings. At paragraphs 52 to 64 of the Wife’s 7th Affidavit, she referred to instances of her Questionaires not being answered or fully answered, her requests for information treated with ridicule and sarcastic responses, her requests for production of documents was left unattended and the Husband’s non disclosure of assets which he disposed of. 30.Miss Remedios submitted that the real issue before this Court, in so far as to whether a Section 18 declaration should be granted, rests upon whether the Court could be satisfied that arrangements for the children’s welfare having been made and are satisfactory. I agree with Miss Remedios. Putting the Wife’s case to the highest, if I may, the contention on the Husband’s stance on financial disclosure would only succeed in preventing the Court from making the Section 18 declaration if the disclosure, if not fully complied with, would have an impact over the welfare, financial or otherwise, of the 4 children in question. 31.Parties have entered into a Consent Summons dated 22 April 2013 signed by the Husband, the Wife, their respective lawyers and filed with this Court on even date (at pages 1095 to 1099 of Bundle P4). On 24 April 2013, the learned Deputy Judge S. Lo made the following order :-
32.On 29 April 2013, parties submitted a joint letter stating :-
33.On 30 April 2013, the learned Deputy Judge S. Lo made the following orders :-
34.At the hearing on 31 July 2013, I granted an Order in terms of the Consent Summons dated 22 April 2013 with other directions on further conduct of these proceedings. It is unfortunate that at the time of this Decision, my Order granted upon the said Consent Summons had still not been sealed and perfected. This may perhaps explain for the said Consent Summons alone been included in the hearing Bundle P4 without the actual sealed Court Order anywhere in the Bundle. 35.There are comprehensive cross undertakings by both parties under the said Consent Summons dated 22 April 2013 on preservation of family assets including proceeds of sale of overseas properties. In addition, there are various agreements and acknowledgement by the parties touching upon assets either in possession or having been disposed of. 36.Prior to this Consent Summons and back to 21 September 2012, there was another Consent Order granted by me covering interim maintenance for the 4 children of the family along with undertaking of the Husband towards payment of the children’s school fees and school bus expenses. 37.Taking into account of the above, the Wife’s present contention that the welfare of the children had not been made or are not satisfactory as a ground to oppose the Section 18 declaration cannot succeed. There had been financial arrangement for the children all along both in terms of education expenses and living costs. There are substantial family assets which had also been secured by way of parties’ cross undertakings by consent which I will deal with further at the following paragraphs of this Decision when I come to the topic of the parties’ assets and cross undertakings over the family assets. 38.As to the Wife’s contention over the Husband’s compliance with interim maintenance order, she sets out the dates of payment at paragraph 65 of her 7th Affidavit. I accept there are delays and one of which is 7 days late with others varying between 2 to 4 days. The extent of delay is not substantial though this is not to be encouraged. There are also contentions at paragraph 66 of her 7th Affidavit on the Husband’s lateness in meeting school fees which he had undertaken to pay. Given the shortness of time to respond to the Wife’s 7th Affidavit, the Husband was only able to provide the Appendix 4 to answer to the Wife’s contention. The Husband’s answer to the lateness of paying school fees was that it should not be of much concern to complain as the Wife has assets in excess of 12 million. I do not accept such answer of the Husband. The Husband should have performed his undertakings to the fullest extent. Non performance of undertakings would end up with severe sanctions. However, breach of undertakings might lead to contempt proceedings which are not compatible to say that there being no arrangements made for the children’s welfare. There are arrangements but unfortunately not being carried out to the fullest extent. The Husband’s undertaking to pay school fees and school bus expenses per se must be arrangement cater for the welfare of the children. Non performance of the undertakings is a matter for enforcement rather than a ground for refusing the Section 18 declaration. 39.The Wife’s contention over the Husband’s ill-will towards her could only be accepted as a legitimate ground of opposition to the grant of the Section 18 declaration if it can be shown that such conduct, if sufficiently proved by evidence to be ill-will conduct, have an impact over the future welfare of the children in question. The veracities of those matters against the Husband as set out from paragraphs 87 to 101 of the Wife’s 7th Affidavit might have to be tested and proved by evidence. In any event, even if successfully proved, those are conduct in retrospect rather than in anticipation to be supportive of there being no satisfactory arrangement for the children’s welfare and hence the Section 18 declaration should not be granted. As to those matters set out in paragraphs 102 to 103 of her 7th Affidavit, these are considerations relating to the sufficiency of the Wife’s interim maintenance sum rather than whether the Section 18 declaration over the children should be granted. I am not at all convinced such contention would assist the Wife’s case of opposition. 40.The Wife’s other contention related to her personal health. In my decision, this could only be a ground of opposition if it can be shown the arrangements up until present, given the Wife’s alleged health condition but who is still having the de facto and day to day care and control of the 4 children, are not the best that can be devised in the circumstances. There is no such evidence or contention from the Husband nor is this the Wife’s case at all. Any financial prejudices suffered by the Wife ? 41.Now I will turn on to consider whether there are any financial prejudices over the Wife. 42.Miss Remedios in her Appendix 3 attached to her Skeleton Submissions sets out a schedule of assets and liabilities of both the Wife and the Husband. The schedule shows the total net asset value of the Wife is about 12.5 million, and that of the Husband is about 31.8 million. Thus the total net asset value amount to approximately 44.3 million. Miss Irving took no issue on these figures. 43.Further, at paragraph 23 of her Skeleton Submissions, Miss Remedios referred to the cross undertakings of the parties in respect of which 18.8 million had been preserved by the Husband out of his 31.8 million; and that 10.88 million had been preserved by the Wife out of her 12.5 million. Thus the total asset value preserved under the respective cross undertakings amount to some 29.68 million, which is approximately two-thirds (i.e. 67 %) of the total net asset value of 44.3 million. Again Miss Irving took no issue on these undertakings and figures. 44.Taking into consideration the sizeable value and percentage of assets being preserved by the cross undertakings, I am satisfied that the requirement under Section 18(1)(b)(i) of the MPPO, namely, arrangements for the children’s welfare have been made and are satisfactory. It is also my decision that these are the best arrangements that can be devised in the circumstances. The Section 18 declaration will be granted. Section 18 (1)(c) of the MPPO 45.Now I will deal with the Husband’s alternative submission for the declaration to be granted under Section 18(1)(c) of the MPPO. The rationale behind is that the Husband wishes to marry his partner Miss M who is due to give birth to his child between 17 March 2014 and 21 March 2014. Miss M is currently 18 weeks pregnant. The Husband and Miss M is in committed relationship and it is hoped that the child is born within wedlock. Moreover, the Husband in his supporting 6th Affidavit deposed to his wish to formalise his relationship with Miss M. 46.Should the Court be minded to consider the declaration under Section 18(1)(c) as opposed to Section 18(1)(b)(i), Miss Remedios submitted that the Husband is agreeable to give an undertaking under Section 18(2) of the Ordinance to make immediate payment of 5 million into Court. 47.Miss Irving for the Wife submitted that the Husband’s rationale could be easily overcome by an application under the Guardianship of Minors Ordinance, Cap.13, had the child been born out of the wedlock. It was further submitted that Miss M should have known she was having a relationship with a married man and to have the baby is a decided choice. The interests of the 4 children in these proceedings simply should not give way to the Husband’s rationale and position. 48.In my decision, it is not necessary to consider this alternative submission for my decision under paragraph 44 above to grant the declaration under Section 18(1)(b)(i) of the Ordinance. The simple reason is that Section 18(1)(b)(i) or (ii) and Section 18(1)(c) are in alternative and not cumulative. Section 18(1)(c) only comes in for consideration when the Court is unable to make a declaration under Section 18(1)(b)(i) or (ii). This is not the case here. It follows that the Husband’s offer of 5 million as undertaking under Section 18(2) would fall out of consideration for the inapplicability of Section 18(1)(c). 49.For the sake of completeness without affecting my decision in paragraph 44 above, I am prepared to say the Husband’s circumstances are desirable for the decree to be made absolute. Reason being that at paragraphs 24 and 25 of the Judgment in J v. V (supra), His Lordship had already referred to the legislative policy of the statutory regime on decree nisi to be made absolute is to let a failed marriage to be brought to an end formally within a reasonable time so that the parties can move on their life and to remarry if they so wish. This is exactly the case here. His Lordship also stated that it matters not whether the opposing spouse is the Petitioner or the Respondent, he or she has to establish some special or exceptional circumstances (my emphasis) to satisfy the Court it is just not to allow the decree nisi to be made absolute. 50.With these guidance, it now brings me to consider whether the Wife is able to show any special or exceptional circumstances. Any special or exceptional circumstances established by the Wife ? 51.Taking into consideration the evidence of the Wife, in particular the sizeable value of assets secured under the respective cross undertakings, I am not satisfied that a case of special or exceptional circumstances was established by the Wife. There is also insufficient evidence for me to make any finding that the Wife would suffer any real (my emphasis) financial prejudices if the decree nisi is to be made absolute at this stage. 52.I will exercise my discretion in favour of the Husband. Should the decree absolute be expedited ? 53.On the available evidence at present and considering all the circumstances of this case, I am satisfied that it is desirable for the decree nisi pronounced on 21 December 2012, which is over 10 months ago, to be made absolute forthwith. Costs 54.On the question of costs, I am unable to find any basis for departing from the normal rule of litigation for costs to follow the event. Accordingly, I order the Petitioner to pay the Respondent’s costs, including all costs reserved to be taxed if not agreed, with Certificate for Counsel. Orders 55.I now make the following Orders :-
56.This costs order nisi will become absolute unless any party apply to vary the same within 14 days from the date of this Decision.
Miss Frances Irving instructed by Messrs. Withers, Solicitors for the Petitioner Miss Corinne Remedios instructed by Messrs. Haldanes, Solicitors for the Respondent | |||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 1637/2012