CLE v. ECE

FCMC 6498 of 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6498 OF 2003

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J U D G M E N T

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1. This is a defended divorce suit.

Brief Background

2. The Respondent has been living in Hong Kong since about 1991.  The parties met when the Respondent was on holiday in Cebu.

3. The Petitioner and the Respondent were married on 15^th July 1999 in Cebu, Philippines.

4. There is one child of the family namely a girl born on 1^st November 1993 out of the Petitioner’s previous relationship with another man.  However, following the parties’ marriage, the Petitioner and the Respondent have treated the girl as a child of the family (“the Child”).  Following the marriage to the Respondent, the Petitioner and the Child moved to Hong Kong on about 23^rd August 1999 to live with the Respondent.

5. Since the parties’ marriage, the Respondent has been solely responsible for the financial support of the Petitioner and the Child.

6. It appears that he parties’ relationship began deteriorating in early 2003, according to the Petitioner, as a result of which, the Petitioner presented a divorce petition on 6^th June 2003 alleging that the marriage has broken down irretrieverably based on the fact the Respondent has behaved in such a way that she cannot reasonably be expected to live with him.

7. Essentially the Petitioner’s petition is based on three areas of complaints : -

(1) The Respondent’s late home coming and frequent absences from home.

(2) The Respondent’s improper conduct with another woman.

(3) The Respondent’s campaign to exert financial pressure trying to drive the Petitioner and the Child back to the Philippines.

(1) and (2) are in a way related.

8. The Respondent represented himself and filed a “Response to the Petition” on 3^rd September 2003 alleging that the petition was without merit and asked for it to be dismissed.  Although in the Response the Respondent said he feared that the marriage has broken down, in Court, the Respondent has denied the same.

9. The Respondent explained, inter alia, that his coming home late and his absences from home were due to his work and there was a lack of communication between the parties since 2002 and his act in sending the Petitioner a note in April 2003 with the words he wanted a divorce was a means of trying to get her attention that something was going wrong with their relationship.  He denied having exerted any financial pressure on the Petitioner.

The law

10. As set out in s. 11 (A) (2) of the Matrimonial Causes Ordinance, “the Court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the Court of one of more of the following facts : -

(a)	that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
(b)	that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
(c)	that the parties to the marriage have lived apart for a continuous period of at least one year immediately preceding presentation of the petition and the respondent consents to a decree being granted.
(d)	that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
(e)	that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition”.

11. As submitted by the Petitioner’s solicitor, Mr Firmin, the burden of proof is on the Petitioner to satisfy the Court, on a balance of probabilities, that the Respondent has behaved in such a way that she cannot reasonable be expected to live with him.  The test is an objective one referable to this particular Petitioner and this particular Respondent.

The parties’ evidence

12. The Petitioner attended Court to give evidence.

13. The Petitioner said that prior to April 2003, the Respondent was paying her $1,500 a week and out of that she was buying food for the Respondent, food for herself and the Child and also some was to cover her personal expenses.  She said the sum of $1,500 per week was not sufficient but on occasions when she needed more money, she would ask the Respondent.  Although the Respondent would give her more money, he would be angry.  She gave evidence that during the period from April 2003 to 19^th July 2003, she only received a total of $2,300, as a result of which she had to apply for Comprehensive Social Security Assistance (“CSSA”) and also instructed her solicitors to apply for maintenance pending suit for her.  This led to a maintenance pending suit order made on 7^th July 2003 by which Respondent has to pay her $7,000 a month.  She is still receiving CSSA and the money paid by the Respondent has to be paid to the Social Welfare Department and also there is a charge thereon by the Director of Legal Aid for her legal costs.

14. The Petitioner said that the Respondent went away on about 9^th May 2003 and returned home only after about one week without telling her where he had been.  He then went away again on about 4^th July 2003, just before the hearing of the maintenance pending suit.

15. The Petitioner gave evidence that since early 2003 the Respondent started to often arrive home late and sometimes would only return home the next morning.  She said that she was not aware of whether he was working since he did not tell her nor did he call her.  When he stayed out overnight, he would return home at about 6 am the next morning and would take a bath, change clothes and would go out again.

16. She said when the parties’ relationship was good, when the Respondent returned home late or early following morning after work, he would spend time at home and would sleep in the morning before going out again but since about April 2003 when the Respondent returned home early morning the next day, he did not appear exhausted and she had the impression that he had already slept elsewhere.

17. The Petitioner claimed that she had seen the Respondent with a Filipina woman on five occasions as follows : -

(i)	The first occasion was when the Respondent was with the woman in ParkN’ Shop at South Horizons, they were spotted by the Petitioner’s friend who telephoned the Petitioner.  When the Petitioner arrived at the ParkN’ Shop, she saw the Respondent with a woman who was a Filipina and was of medium height.  The Petitioner said she was shocked and she walked away as she said that she could not bear to see them.
(ii)	The next occasion was about one week following the first occasion, the Petitioner saw the Respondent waiting downstairs outside the building where the parties live.  She saw the Respondent sitting in his car with the same woman whom she saw at ParkN’ Shop and they were sitting waiting in the car for about half an hour for the Respondent’s friends and eventually his friends appeared and boarded the Respondent’s car.
(iii)	The third occasion was about another week from the second occasion.  The Petitioner said she went to her friend’s flat which is opposite the Newton Hotel in North Point and she saw the Respondent with the same woman outside the Newton Hotel.
(iv)	After this occasion, about a week later, she again went to her friend’s home and again saw the Respondent with the same woman outside the Newton Hotel.
(v)	The final occasion the Petitioner saw the Respondent and the woman was near the Hongkong Bank when she went with her friend Mrs N to the ATM machine where her friend withdrew money to lend to the Petitioner as the Petitioner had no money.  They saw the Respondent and later she and Mrs N followed the Respondent and saw the Respondent’s car parked nearby and inside the car was the same woman.  The woman covered her face with a magazine as soon as she saw the Petitioner and Mrs N.

18. The Petitioner was quite confused in her evidence as to when the above sightings took place.  Her friend Mrs N gave a witness statement the contents of which was agreed by the Respondent.  The Petitioner’s solicitor, Mr Firmin, originally did not intend to call Mrs N but in view of the Petitioner’s confusion he subsequently called Mrs N to attend Court to confirm the contents of her statement.  Mrs N gave evidence that she had lent the Petitioner $500 on three occasions in about May 2003 when the Petitioner was in financial difficulties.  She also helped the Petitioner to apply for CSSA and to find a solicitor.  She accompanied the Petitioner to the Court for the hearing of the maintenance pending suit and confirmed that she was with the Petitioner when they saw the woman in the Respondent’s car which Mrs N said was on 27^th June 2003. 

19. The Respondent on the other hand complained that the Petitioner started to have a bad attitude from about August 1999.  She would get up at about 10 or 11 a.m. on Saturday mornings and when she saw the Respondent and the Child watching television in the sitting-room, she would start to yell or scold them and not talk to them.

20. The Respondent pointed out to the Petitioner that the parties used to have a domestic helper and he was paying the domestic helper $1,000 per week for food for four people namely the parties, the Child and the domestic helper.  After the domestic helper left, the Respondent said he increased the amount of maintenance to the Petitioner to $1,500 per week and that the Petitioner should have more than enough.

21. The Respondent further alleged that the Petitioner was always playing a Filipino card game called “Tongits” and she was spending money on playing this game.

22. On his absences from home, he pointed out that when the Petitioner first arrived in Hong Kong, she would accompany him when he was working late.  The Respondent said he had always had to work long hours due to the nature of his work but the Petitioner said he only did on some occasions.  The Respondent has filed a witness statement from the Head of the School where he works to confirm that he often works non-standard hours.  The contents of this witness statement were agreed by the Petitioner and the witness was subsequently not required to attend Court to give evidence.  The Respondent alleged that he was often working late and that was the reason for his late home comings or absences from home.  He further said that the Respondent had never telephoned him since he had a voice mail at his work place. 

23. The Respondent also complained about another incident about a Family Fun Fair day at the Child’s school which is the same school where the Respondent works and that the Petitioner turned up late for this event because the night before she was playing the card game late into the night and when she did eventually turn up she asked for more money from the Respondent.

24. The Respondent was cross-examined as to why he paid the Petitioner only $2,300 from 8^th April 2003 until the hearing of the maintenance pending suit.  The Respondent claimed he was paying for the Child’s food at school and he also gave the Child money and the Respondent’s explanation was that as he was not eating at home thus the Petitioner could maintain herself with the money provided and although he claimed that there could be savings, he admitted he had no knowledge of the same. 

25. On about 3^rd April 2003, the Respondent handed the Petitioner an undated draft letter apparently prepared by a lawyer in the Philippines with the words written on it to the effect that he wanted a divorce.  The Respondent explained that this was an act done in order to get the Petitioner’s attention since he had tried for a year and half to get the Petitioner to acknowledge that the parties had a problem.  Again this was the same purpose for sending the Petitioner another note on 9^th May telling her that he would be away for one week and that she should be packing so that the Child could start school in the Philippines in June 2003 together with copies of two tickets for the Petitioner and the Child to go back to Philippines.  Again the Respondent said he was hoping to get a response from the Petitioner.  He denied that he was trying to drive the Petitioner and the Child back to the Philippine. 

26. The Respondent had admitted in his affidavit filed in connection with the Petitioner’s application for maintenance pending suit that he had been paying a female friend $2,000 per month and $3,000 per month for the female friend’s family and when cross examined in Court the Respondent said he has been paying these sums since about May or June 2003 until now.  He said he met this female friend in about April 2003.  To his belief, she used to work as a domestic helper in Hong Kong.  They went to the Philippines on 4^th July 2003 but he returned to Hong Kong alone and said his female friend has not been back to Hong Kong since although he has seen her and he further admits that he telephones her weekly.  He denies he was having a romantic relationship with this female friend from April 2003 to June 2003 even though he admitted that it was possible that he was seen by another of the Petitioner’s witnesses Ms K walking hand in hand in Central with a woman on a Sunday afternoon in April 2003.  The Respondent’s explanation to this was that he would walk hand in hand with a lot of women including friends’ wives and appeared to be saying this is a Philippine custom.  As the Respondent has admitted the contents of Ms K’s statement and therefore Ms K was not called by the Petitioner to give evidence in Court.

Findings

27. The particulars in the petition essentially fall into two main categories.  The first category consists of the allegation that the Respondent was coming home late or that he was not coming home at all.  As submitted by Mr Firmin, the essential point was not whether the Respondent was working late or whether the Respondent was coming home late but that the Respondent was not telling the Petitioner or giving any account to her as to where he was and he had not been telling her where he had spent his night.  The Respondent has not denied this.  He said he was at work and the witness statement from the Head of School supported him.  However, if he did not tell the Petitioner, how would the Petitioner know whether he was at work or not.  The Respondent’s case is that the Petitioner should have known since he has always worked long hours.  The Petitioner’s evidence in this respect was, however, quite clear which was that when the parties’ relationship was good, when the Respondent worked long hours he would come home and he would sleep, he would spend some time at home before going out to work again.  However since April 2003 his behaviour had not been the same, he would come home late, sometimes only at 6 a.m. next morning changed, took a shower and would almost immediately leave again.  This coupled with the fact that her friend Ms K saw the Respondent walking hand in hand with another woman in Central on a Sunday in April 2003 led the Petitioner to believe that he had formed an improper relationship with another woman.

28. I do not accept the Respondent’s explanation in this respect and I find that it is most unusual for a married man to go walk hand in hand with another woman without letting his wife know who this other woman is.  Although the Petitioner may be a bit confused over the dates as to when she saw the Respondent with another woman, I accept the Petitioner’s evidence that she had seen the Respondent with a woman on five occasions.  I also accept Mrs N’s evidence that the last occasion, when she was with the Petitioner was on 27^th June 2003.  This was in fact admitted by the Respondent.  The Respondent has also admitted that he has been sending $2,000 per month to a female friend and $3,000 per month to the female’s friend family since about May / June 2003 until now.  Even though the Petitioner’s sightings of the Respondent and the woman may not be before the issue of her petition, her suspicions of the Respondent having an improper conduct with another woman did turn out to be supported by her sightings.  I accept the Petitioner’s evidence that the Respondent was frequently away from home without forwarding her or giving her an explanation afterwards as to what he was doing.  Certainly in his note to her of on 9^th May, there was no indication as to where he was going to for one week or why.

29. In relation to the second category of allegations which concern the Respondent’s campaign to exert financial pressure to drive the Petitioner and the Child back to the Philippines, I find that draft letter delivered to the Petitioner by the Respondent on about 3^rd April 2003 setting out proposals for a separation and with the words “I want a divorce” written by the Respondent to be a clear indication that the Respondent did want a divorce at that time and did want the Petitioner and the Child to go back to the Philippines.  I do not accept the Respondent’s evidence that he was doing this only to get the Petitioner’s attention.  Furthermore, after this draft letter, I find that he did embark on a campaign of financial pressure as he only provided the Petitioner with $2,300 from 8^th April 2003 until after hearing of maintenance of pending suit which was in my view absolutely insufficient to provide maintenance for the Petitioner and the Child.  On 9^th May 2003 the Respondent then sent another note to the Petitioner together with copies of the airtickets.  Again I find this note to be a further indication that he wanted the Petitioner and the Child to go back to the Philippines.  I do not accept his explanation that this was done with an intention to try to get the Petitioner’s attention to realise that they had a problem.  There were other ways that he could have done in order to get her attention that there were difficulties in their relationship, for example he could have written a note to her suggesting mediation, he could have written a note to her as to how the parties could improve communication rather than just sending her first, a draft letter from a lawyer with the financial proposal on a separation saying he wanted a divorce and secondly, a note telling her that she should be packing to return to Philippines with copies of airtickets for her and the Child and then he himself went away for about a week without telling the Petitioner where and with the Petitioner having no means to contact him.

30. I now come to consider whether the marriage has broken down irretrievably.  The Petitioner said in her oral evidence that in her view that the marriage was not broken down irretrievably but it was clear to her that the Respondent considered the marriage was finished.  Mr Firmin asked the Court to consider this statement against the Petitioner’s education background and that the Court is to look at the unhappy state of the marriage for some time, from the Petitioner’s point of view since beginning of 2003 and from the Respondent’s point of view since 2002.  The parties have not been sleeping together, not having meals together, not speaking to each other and they do not go out together and I agree with Mr Firmin’s submission that the state of the marriage is miserable.  Even though the Respondent denies in Court that the marriage has broken down irretrievably, he says in his own Response that he fears the marriage has broken down and he cannot continue to go on living with a person who he alleges does not respect him or treat him with civility caring or a desire to be with him.  The Respondent has clearly not done anything to try to make the marriage work.  In any event, towards the end of the Petitioner’s evidence, when I asked the Petitioner whether she wants a divorce, her answer is clear.  She says that she has no choice and rejected any further marriage counselling.

31. In view of the above and looking at all the circumstances of the case, and having had an opportunity to observe the demeanour of the parties when they were giving evidence and weighing up their evidence.  I am satisfied that the marriage has broken down irretrievably and I am satisfied that the Petitioner has proved on a balance of probabilities that the Respondent has behaved in such a way that she cannot reasonably be expected to live with him.

32. I accordingly pronounce a Decree Nisi of divorce.

33. I shall hear parties on costs and other directions.