Lltj v. Srj

FCMC 2950/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 2950 OF 2013

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J U D G M E N T

(forum non conveniens)

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1.The parties in this case are both French who came to live in Hong Kong in 2008 on the Husband’s job assignment, where the Wife also set up her own business and enrolled their only child, a daughter, to the French International School. In January 2012 the parties started to live apart and one year later on 8^th March 2013 the Wife issued a petition in these proceedings for divorce, joint custody with care and control of their daughter and general ancillary relief. Shortly thereafter in April 2013 she left Hong Kong for Paris to take on a new job, with the daughter joining her 2 months later in June 2013 where they have since made their home.

2.On 30^th July 2013, the day before the court was to pronounce the decree nisi of divorce to her petition, the Husband issued a summons for an order that the petition be dismissed on the ground that France rather than Hong Kong is the forum conveniens for proceedings relating to the matters arising from the parties’ marriage and the child of the family with both the Wife and daughter having departed Hong Kong, and with him soon to follow upon the conclusion of his job assignment here, which is the matter now before me for determination.

Background

3.Both parties were born in France, and were educated up to tertiary education in France. The Husband is now 48 and a manager of the French/Swiss bank Bank A in Hong Kong, while the Wife is 42 and a media executive now working as a director of Company A in Paris. They first met in about 1993 in Paris where they subsequently commenced cohabitation in 1999, and eventually registered their marriage in 2002.

4.In 2005 they moved to Dubai when the Husband was offered a job at Bank B there, and where the Wife also found employment in management consultancy until November 2007 when she became pregnant and subsequently gave birth to the daughter on 7^th March 2008.

5.In Autumn of the same year the parties moved to Hong Kong when the Husband was offered the job as the head of private banking at Bank B Hong Kong, where the Wife also set up her interior design business, enrolled their daughter into a nursery school, and made their home at Red Hill Peninsula, Tai Tam, Hong Kong.      

6.In September 2011 the Husband changed job to become the head of Asia Securities at Bank A, Hong Kong. A few months later in January 2012 the parties as noted above separated when the Wife and daughter moved out of the matrimonial home at Red Hill Peninsula, Tai Tam to reside at Chung Hom Kok, Hong Kong. Both parties have since formed new relationships, with the Wife having met her boyfriend in Paris, while the Husband’s girlfriend has moved in with him together with her own children.  

7.In about January 2013 the Wife was offered the said job in Paris which was to commence in April 2013, and on 8^th March 2013 she issued her petition for divorce against the Husband based on some mild allegations of his unreasonable behaviour, who was then personally served with the divorce papers by her solicitors on 21^st March 2013, but he never returned the Form 4 (Acknowledgment of Service) to court to indicate his views on the proceedings.  

8.On 9^th April 2013 the Wife left Hong Kong for France to take up her new employment. On the same day her solicitors filed a summons with the Husband’s signature and consent for an order for joint custody of their daughter with care and control to the Wife and generous access to the Husband, and for leave to the Wife to permanently remove the daughter out of Hong Kong to France upon completing her last school term at the French International School on 30^th June 2013, which were subsequently made an order of the court, and as aforesaid the daughter has since joined the Wife in Paris.

9.At the 1^st Appointment of FDR hearing on 27^th May 2013, the Husband failed to appear, and the hearing was adjourned to 15^th July 2013 for the parties to file and exchange their Financial Statement (Form E) by 24^th June 2013. Meanwhile the Wife proceeded to apply for directions to put her petition in the undefended list for pronouncement of decree of divorce. 

10.The Husband again failed to appear at the adjourned 1^st Appointment on 15^th July 2013, which had to be adjourned to 9^th September 2013, and he was ordered to attend the next hearing and to file his Form E within 21 days, with a penal notice attached to the order.

11.The Husband eventually filed his Form E on 5^th August 2013 disclosing an average monthly income of HK$313,833 including bonus and other allowances, some bank savings of about HK$500,000, a pension in France of undeterminable current value, some personal items including a boat in France valued at HK$100,000, with no other capital or landed property but with various bank and credit card loans in excess of HK$1.1 million, thus giving him a negative net worth of minus HK$427,818 (P1 : 58, 71).

12.In her Form E filed on 15^th August 2013 (P1: 229) the Wife disclosed a much smaller income of HK$80,168 per month from her new job in Paris, but otherwise she was in similar situation as the Husband with little savings and no landed properties or other assets of substance, with a net worth of less than HK$400,000 but claimed to require more than HK$150,000 per month to meet her needs and those of the daughter including renting an apartment in Paris. No doubt the Husband may well take issue with some of those needs or their quantum, however there can be no question in my mind that he would be required to make financial provisions for the Wife and the daughter upon their divorce, which is I believe the only real dispute between the parties arising from their divorce proceedings whether in Hong Kong or France.               

13.As noted above, before the court was to proceed to pronounce the decree nisi of divorce scheduled on 31^st July 2013, the Husband on the day before, i.e. on 30^th July 2013 issued the said summons returnable on the same day before me, and as a result, the pronouncement of the decree nisi was therefore adjourned pending the determination of the forum issue upon the Husband’s undertaking not to commence any divorce proceedings in France for the time being.     

14.Both parties have since filed several affidavits in support of their respective case in respect of the Husband’s present application and on the issue of forum including their expert evidence on French law. The Husband’s case is essentially that their family is very much a French one, with strong French ties living only transiently in Hong Kong during which they have continued to maintain strong links with France where they spent most of their holidays, while their daughter was educated at a French school in Hong Kong and has maintained her roots and the French culture as they have always seen France as their home.                  

The Principles

15.The underlying principles applicable to a stay application on question of forum are well established as stated in leading authorities such as Spiliada Maritime Corporation v Cansulex Limited [1987] 1 AC 460, 477E and Louvet v Louvet [1990] 1 HKLR 670, 674I – 675D:

“1. The single question to be decided is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of an action i.e. in which the action may be tried more suitably for the interests of all the parties and the ends of justice?

2. In order to answer this question, the applicant for the stay has to establish that first, Hong Kong is not the natural or appropriate forum (“appropriate” in this context means the forum had the most real and substantial connection with the action) and second, there is another available forum which is clearly or distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal.

3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong.

4. If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. Deprivation of one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court’s satisfaction that substantial justice will be done in the available appropriate forum.”   

16.Applying these principles, the first stage of the enquiry is to determine whether Hong Kong is not the natural or appropriate forum, and that France is clearly and distinctly the more appropriate forum, with the onus of proof on the Husband.

The More Appropriate Forum

17.It is relevant to first note that there is no dispute between the parties that jurisdiction has been found by the Wife in Hong Kong as pleaded in her petition on the basis that both she and the Husband had been habitually resident throughout the period of 3 years immediately preceding the date of her petition under section 3(b) of the Matrimonial causes Ordinance, Cap. 179, which in fact only requires either of the parties to be so, and has clearly therefore commenced these proceedings in Hong Kong as of right, which is a factor that must be given proper recognition and should not be lightly dislodged: Spiliada supra at 477E and DGC v SLC (nee C) [2005] 3 HKC 293 at 298H.  

18.As to Hong Kong being the appropriate forum, there is also a number of factors pointing to that direction: that both parties had lived and worked in Hong Kong for almost 5 years since Autumn 2008, as had their daughter who also attended school here, and that the Husband will continue to do so or at least according to him up to 2014. While the parties do not seem to have any assets of substance in Hong Kong save for some bank savings, there is no question that the major source of financial support for the family has been mainly from the Husband’s income earned in Hong Kong.     

19.On the other hand, there are no doubt also important factors connecting the case to France, in that both parties are French with strong family ties there, that they were both educated in France to tertiary level, that they met in France, got married there and lived there together until 2005 when they moved to Dubai before coming to Hong Kong, where their daughter was educated at a French school, and that they spent most of their holidays in France including all long summer holidays.

20.Furthermore, it is significant that when the Wife issued her petition in March 2013, she had already decided to leave Hong Kong permanently to return to France having secured employment in Paris with her current employer, and that the parties had also agreed that their daughter would only stay in Hong Kong until the end of the 2013 school year and then leave Hong Kong permanently to move to France to be with her mother in Paris, as evidenced by the consent summons to that effect filed on the same day the Wife left Hong Kong on 9^th April 2013, and in which it was acknowledged that the habitual residence of the daughter would be France and not Hong Kong.

21.Given the parties’ agreement over the future arrangement of their daughter in France, as noted above the remaining issues to be determined will no doubt relate to finance, and Mr. Egerton for the Husband argues that they are inevitably all connected with France in particularly of the following:

(a) The costs of living including rental in France;

(b) Government allowances for single-parents and child-care expenses in France;

(c) Tax and taxation system in France;

(d) Social security contribution in France;

(e) Pension provisions by the state in France;

(f) Costs of French public schooling in France;

(g) Public health care, private coverage and level of reimbursements in France.

22.Even compared to neighbouring countries in Europe such as the UK, Mr. Egerton submits that these elements are very specific to France, and that a judge in Hong Kong would have difficulty in accurately determining between different evidence by each party on them, and may well require expert evidence to assist in the process, hence additional costs which can be avoided if the matter was heard in France.

23.So far as the Husband’s employment is concerned, Mr Egerton submits that his contract which is dated 10^th May 2011 also shows the following connecting factors with France or Europe:

(a) The contract is in French with Bank A Suisse’s office in Geneva and that the Husband was only assigned to Hong Kong for an initial period of only 2 years;

(b) His home passage specifies Paris;

(c) His French pension is continued during his assignment in Hong Kong;

(d) The law applicable to his contract and the interpretation of the assignment is that of Switzerland.

24.The Husband’s evidence as to his future employment situation is that in June 2013 he made a request with his employer in Paris for an internal transfer to Europe upon completing his current secondment in Hong Kong, and that he has been looking for an opening in Europe or Dubai for which he has been arranging for interviews, and has produced email correspondence evidencing the same exhibited to his 4^th affidavit (P2 : 668, 675, 688- 695), as well as a letter from his solicitors dated 26^th November 2013 confirming that he too is expecting to leave Hong Kong for good sometimes in 2014.

25.I agree that these are all strong and important factors connecting the case to France, and in my judgment thus make France clearly and distinctly the more appropriate forum for the matters arising from the inevitable divorce of the parties which are practically and invariably all related to their financial disputes.     

26.The Wife of course does not believe that the Husband has any genuine intention to leave Hong Kong, arguing that his job is just too exciting here for him to leave and that he absolutely loves the expatriate lifestyle offered to him by his employer in Hong Kong, or so soon after he has just arranged for his girlfriend and her 2 children to join him in Hong Kong, now that they seem to have well settled here with the children enrolled in the French International School. She submits that it simply defies common sense and belief that his girlfriend would quit her job in France to come to Hong Kong with her children just for a short term.        

27.If this argument is valid, that the Husband never intends to leave Hong Kong, those emails produced by him with recruiting consultants looking for openings in Europe and interviewing arrangements must then be deliberately created or fabricated to mislead the Wife and the court for the purpose of his present application, which then begs the obvious question of why would he insist that their divorce proceedings should take place in France? The Wife believes that it is to deprive her of certain personal and in particularly juridical advantages if her proceedings in Hong Kong is be stayed and that proceedings were to take place in France, which is the next stage of the court’s enquiry.           

Personal or Juridical Disadvantage

28.The onus for this is on the Wife, and Mr. Wingfield submits on her behalf that she will suffer the following disadvantages if divorce proceedings were to be issued in France instead of in Hong Kong:

(a) Even if proceedings were to start in France at the beginning of 2014, it might be as long as two and a half years before the parties are divorced;

(b) Under the community of property regime which appears applicable, the Husband’s debts would be discharged from community assets;

(c) Under the French system, the question of “fault” could affect a party’s entitlement to financial provision in circumstances which would not be regarded as “gross and obvious” misconduct by a court in Hong Kong;

(d) After divorce, the court in France would have no power to grant a wife continuing maintenance;

(e) It appears that maintenance for the child would be based more on a formula than on her actual need;

(f) The power of the court in France to order discovery of documents appears to be limited and there is no sanction if a party fails to make full disclosure, nor is there power to subpoena third parties to produce documents;

(g) A maintenance order made in France would not be enforceable in Hong Kong.

29.On the other hand, Mr. Wingfield submits, the Husband would suffer no legitimate personal or juridical disadvantage from the proceedings continuing in Hong Kong, and since he is living in Hong Kong with his girlfriend and her children, it would be in the interests of both parties that there be an early dissolution of their marriage and resolution of financial matters.

30.He submits therefore there is no real advantage of fresh proceedings being commenced in France and any advantage that there might be in France as a forum is clearly outweighed by the disadvantages that the Wife would suffer from a change in forum at this stage, and that the ends of justice clearly require that the proceedings in Hong Kong are permitted to continue.

31.As noted above both parties have obtained expert evidence on relevant French law, from Dr Delphine Eskenazi for the Wife (P2 : 647, 667) and Dr Alexandre Boiche for the Husband (P2 : 518, 527), and as expected both experts are in agreement on many of the relevant points including the following as summarized in Mr. Wingfield’s Skeleton Submission:

(a) Divorce proceedings in France consist of two hearings, at the first of which, the conciliation hearing, the judge will rule on temporary measures including financial support for a spouse and any child of the family;

(b) At the second hearing, the judge will rule on the divorce itself;

(c) The first hearing will take place between 2 to 4 months from the date on which the divorce petition is lodged;

(d) The second hearing could be between 1 and 2 years after the first hearing;

(e) After the divorce is final, a spouse has no further right to spousal support;

(f) In cases of financial disparity between the parties, the judge may order the payment of a lump sum, usually in a single payment, but otherwise in instalments for a limited period;

(g) When determining financial provision for a spouse, the judge may take the conduct of a party into consideration if the breakdown of the marriage is the fault of that party;

(h) Maintenance for a child is payable both during the proceedings and after divorce at the same rate. The judge would fix that rate by reference to a Table for Child Alimony and by reference to the means of the parties and the needs of the child;

(i) The French court would have jurisdiction in relation to both the divorce and parental responsibility in relation to the child in this case as both parties have French nationality and the child is habitually resident in France;

(j) At the first hearing, the judge needs a good overview of the financial circumstances of the parties. Each spouse must disclose their income and expenditure before the hearing. The parties will also have to provide the judge with information about their standard of living and expenditure when they last cohabited;

(k) At the hearing, the judge may appoint a notary or other expert to assist in determining a final settlement proposal;

(l) The power of the judge to order interrogatories is very limited as the proceedings are generally conducted on paper. There is no provision for the issue of subpoenas in French law.            

32.As already noted above, there is no question that the main dispute between the parties will be on financial provisions for the Wife and the daughter, and in particularly over what the Husband can spare from his substantial income but with equally substantial expenses and liabilities as disclosed in his Form E and in his affidavit in response to her maintenance pending suit application, and Mr. Wingfield argues that proper investigations will therefore have to be carried out of his financial situation to be followed by extensive cross-examination of him in a trial, but given the French law on financial provisions and the limited power of the French judge referred to above, the Wife would no doubt be deprived of the obvious juridical advantages that she would be entitled to in the Hong Kong court.     

33.Mr. Egerton on the other hand submits that in reality there is little difference in the law on maintenance between the two jurisdictions, and that in any event it would not be unfair to the Wife in the circumstances to deprive her of the advantage, if any, of seeking from the Hong Kong court maintenance which she might not obtain from a French court, as it was held in De Dampierre v De Dampierre [1988] 1 AC 92, a case where the parties were also French nationals who married in Paris in 1977. In that case the husband came from a family which owned an estate producing cognac. In 1979 they moved to London, where the husband was involved in marketing the cognac, and took up residence. The child of the family was born in London in 1982. In 1984 the wife opened a business in New York where the husband had family and business interests. In March 1985 the wife took the child to New York, and in April she refused the husband’s request to return to London. Thereupon he commenced divorce proceedings in France and subsequently the wife filed a petition for divorce in London. The husband applied for a stay of the wife’s petition but was refused by the High Court on the ground that under the French proceedings she might receive less favorable financial provision if it were found that she was solely to blame for the breakdown of the marriage. On appeal by the husband the Court of Appeal dismissed the appeal.

34.The House of Lords however allowed the appeal and held that when considering the balance of fairness and convenience to determine whether properly constituted matrimonial proceedings should be stayed, the court should adopt the same approach as that adopted at common law in cases of forum non conveniens where there was a lis alibi pendens, and that accordingly the court should not, as a general rule, be deterred from granting a stay of proceedings merely because the plaintiff would be deprived of a legitimate personal or juridical advantage from the English court, provided that the court was satisfied that substantial justice would be done in the appropriate forum overseas; that in the circumstances it was impossible to conclude that, objectively considered, justice would not be done if the wife was compelled to pursue her remedy for financial provision in France, which provided, most plainly, the natural forum for the resolution of the present matrimonial dispute, as Lord Templeman said in the judgment at p102F:

“In my opinion it is not unfair to this wife in the present circumstances to deprive her of the advantages of seeking from an English court maintenance which she might not obtain from a French court. The wife’s connection with England were tenuous and she voluntarily severed all connection with England before instituting her English divorce proceedings. The wife is French; she was married in France, she can litigate in France as easily as in England and she can obtain from the French court all the redress to which she is entitled under French law. The wife cannot sever her direct French connections derived from ancestry, birth, nationality, education, culture and marriage laws, or her indirect French connections through her husband and child. On the one hand it is logical and not unfair to the wife to treat her as a French wife entitled to the rights conferred by French law on divorced wives. On the other hand it would be unfair to the husband to treat the wife as if she were an English wife entitled to the rights conferred by English law on divorced wives when, in truth, the wife is a French wife, resides at present in the United States and has no connection with England.

If it is not unfair to confine the wife to her rights under French law with regard to maintenance, then a stay of the English proceedings must be ordered. It is too much to hope that the problems of the husband and the wife and Aymar can be solved amicably. The French court will almost certainly be involved in the assessment and payment of maintenance and other financial support for the wife and Aymar and with any difficulties which arise over Aymar’s education and custody or over the arrangements for access in France. If an American court also becomes involved, the views and co-operation of the French court will be of assistance to the American judge, whereas the view of a judge of the English court would be largely uninformed and irrelevant and the decisions of the English court could only be enforced against the sum of £174,000 detained in England. The costs of the English proceedings would inevitably fall on the husband in addition to any costs he incurs in France and any costs for which he may become liable in America. The English proceedings were only designed to improve the wife’s right to maintenance and to bring pressure to bear on the husband. It would be unfair to allow the wife to effect any such improvement and her action must therefore be stayed.

35.Lord Goff of Chieveley agreed and echoed in the same judgment at p109E:

“ … Here it is beyond dispute that there are very strong factors connecting the case with France, whereas now there are practically none connecting the case with England. Neither party suggests that New York is the appropriate forum. It follows that prima facie the courts of France clearly provide the appropriate jurisdiction for the resolution of the dispute, so that a stay should be granted unless justice requires otherwise. In considering the question, the President did indeed invoke the authority of one of the earlier authorities on the inherent jurisdiction, relying as he did on the much-quoted dictum of Lord Diplock in MacShannon v Rochware Glass Ltd. [1978] A.C. 975, 812. He recognised the undoubted “Frenchness” of the marriage and the spouses, but considered that the wife’s absence from what he described as the “harsh” French regime and her presence in the more “benevolent” regime which prevails here, plainly adopted a juridical advantage to her and that, following Lord Diplock’s approach, this must outweigh the “Frenchness” of the marriage of the spouses and point to the conclusion that England was the more appropriate jurisdiction for the dissolution of the marriage. In the Court of Appeal, Dillon LJ was critical of the approach of the President, considering that he gave too much weight to the juridical advantage of the wife, and that he did not have regard to the question (expressed in Lord Diplock’s speech in The Abidin Daver [1984] A.C. 398, 411) whether justice required that a stay should be granted despite the fact that there was another prima facie more appropriate forum for the resolution of the dispute overseas. Dillon LJ, having addressed himself to that question, concluded however that it would be unjust to deprive the wife of her advantage in continuing her application for financial provision in England. He did not, however, give any reasons for reaching that conclusion; and, with all respect, I can find in the facts of the case no basis for it.

The weight to be given to what has been called a ‘legitimate personal or juridical advantage” was considered by your Lordships’ House in the Spiliada case [1987] A.C. 460, 482-484. The conclusion there reached was that, having regard to the underlying principle, the court should not, as a general rule, be deterred from granting a stay of proceedings simply because the plaintiff in this country will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the appropriate forum overseas. Reference was made, in particular, to cases concerning discovery where, as is well known, there is a spectrum of systems of discovery applicable in various jurisdictions; and the opinion was expressed that, generally speaking, injustice cannot be said to be done if a party is compelled to accept one of these well recognised systems of discovery in another forum. If I follow that approach in the circumstances of the present case, I find that French matrimonial law contains provisions for “compensation” which, unlike our own, place emphasis upon the question whether the breakdown of the marriage was due to the exclusive fault of one of the parties, providing (subject to an important exception) that a party so at fault is deprived of the right to an award of compensation. Such an approach is no longer acceptable in this country, though it bears a close resemblance to the principles applicable here not so long ago. But it is evidently still acceptable in a highly civilised country with which this country has very close ties of friendship, not least nowadays through our common membership of the European Community; and I find it impossible to conclude that, objectively speaking, justice would not be done if the wife was compelled to pursue her remedy for financial provision under such a regime in the courts of a country which provide, most plainly, the natural forum for the resolution of this matrimonial dispute.”

36.On the basis of the opinion of both experts, I am inclined to agree with Mr. Egerton that there seems to be no real difference in law or in practice on maintenance between the 2 jurisdictions, and even if it is true that the power of a French judge on interrogatories or disclosure may be somewhat limited compared to ours, given the Husband’s undertaking to issue divorce proceedings in France based on no-fault separation between the parties as soon as he is allowed to do so, and with little personal or community assets available between the parties, and with the relatively straightforward aspect of their respective income which are well-documented or evidenced, it is unlikely that any remaining issues over disclosure will be complicated or time-consuming whether in Hong Kong or France, hence those first several personal or juridical disadvantages that Mr. Wingfield argues that the Wife will suffer in France can in my view no longer stand on firm ground, while her entitlement to financial provisions whether by way of periodical payments or lump sum upon the divorce based on her needs and more so on financial disparity seems to me no less in France than in Hong Kong given their similar approach and underlying principles, hence I fail to see how the Wife would suffer any real juridical disadvantage if she was to pursue her financial claims in France.     

37.As for her concern that any maintenance order made in France would not be enforceable in Hong Kong given that France is not a designated country under the provisions of the Maintenance Orders (Reciprocal Enforcement) Ordinance, Cap 188, and that there are currently no arrangements for the enforcement of a French maintenance order in Hong Kong, the short answer to that is that it must of course premise on the Husband still being in Hong Kong by then, which is not his evidence, nor is there a real risk in my view that enforcement will become an issue given his close connection with France and the circumstances of this case.        

38.In conclusion, and for the reasons given above, I am unable to find, objectively speaking, that justice or fairness will not be achieved if the Wife is compelled to pursue her remedy for financial provisions in the courts of her home country in France, which as I have found provides quite plainly and distinctly the more appropriate and natural forum for the resolution of the matrimonial disputes between these parties.

Order

39.My order is therefore as follows: Upon the Husband undertaking to commence divorce proceedings in France as soon as possible on the ground of the parties’ separation only, the Wife’s petition be stayed pending the resolution of the proceedings in France, and to be dismissed upon the granting of divorce by a French court in that proceedings.

40.As for the question of costs, given my finding of the Wife’s entitlement as of right to issuing her proceedings in Hong Kong, and the apparent financial disparity between the parties, whilst the Husband is successful with his application, it seems appropriate to me that there should be no order as to costs, which is an order nisi to be made absolute at the expiration of 14 days. Lastly, my gratitude of course to both counsel for their valuable assistance to the court throughout the hearing. 

Mr. Ian Wingfield instructed by M/S Withers for the Petitioner.

Mr. Robin Egerton instructed by M/S Hampton Winter & Glynn for the Respondent.