SJH v. RJH

CACV 280/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 280 OF 2011

(On Appeal from FCMC No. 4209 of 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Cheung CJHC:

1.  I agree with the reasons given by Cheung JA for dismissing the appeal and for refusing leave to appeal respectively.

Hon Cheung JA:

Procedural history

2.  The parties are husband and wife.  On 1 April 2011   the wife (petitioner) presented a divorce petition in the Family Court based on the husband’s (respondent) conduct.  She also asked for the joint custody of two children of the family aged under 18 and ancillary relief.  On 13 April 2011, the husband filed the acknowledgement of service (Form 4) stating, amongst other things, that he intended to defend the case.  The husband then filed an answer to the petition on 31 May 2011 denying that the marriage has irretrievably broken down.  He asked for the wife’s application to be dismissed.

3.  On 16 September 2011, the wife filed her Financial Statement (‘Form E’) in respect of her ancillary relief application in a sealed envelope pursuant to a consent order dated 24 June 2011.  The husband did not file his Form E and obtained a further order dated 30 September 2011 for extension of time to file his Form E within 21 days.  On 20 October 2011 one day before the deadline for the filing of his Form E, the husband issued a summons (‘the stay summons’) seeking a stay of the petition on the ground of forum non-conveniens.  He claimed that the South Korean Family Court in Seoul is a more appropriate forum.  He also asked for a transfer of the proceedings from the District Court where the Family Court is based to the High Court.

4.  On 15 December 2011 H H Judge C K Chan dismissed the stay summons with costs to the wife.

5.  On 13 March 2012, the husband issued another summons seeking leave to file an amended answer and a cross petition (‘the amendment summons’).  By the attached amended answers and cross petition, the husband admitted that the marriage has irretrievably broken down and asked for a divorce based on the wife’s adultery.

6.  On 15 March 2012, the Judge dismissed the amendment summons with costs to the wife.  The Judge refused to grant leave to appeal against the dismissal of the amendment summons.

7.  The husband appealed to this Court against the order dismissing his stay summons and renewed his application for leave to appeal against the dismissal of the amendment summons.  This Court heard both applications and dismissed them with costs to the wife.  I now give my reasons.

Background of the parties

8.  The background of the parties can be briefly stated.  The parties are Koreans.  They married in Seoul in 1990 when the husband and wife were aged 24 and 21 respectively.  There are three children of the family (a daughter born in 1992, two sons born in 1995 and 2004 respectively).  In 1997 the parties moved to live in the USA where the husband studied in a law school.  Between 2000 and 2005 the husband worked for several American law firms in the USA.  In early 2005 the family moved to Hong Kong on the husband’s transfer to work in the local office of his law firm.

Appeal against the dismissal of the stay summons

9.  In my view the stay summons was correctly dismissed for the following reasons:

1)  As can be seen from the background of the parties, when the wife presented her petition, she was entitled to do so as of right in terms of the habitual residence or substantial connection requirement under the jurisdictional provision of section 3 of the Matrimonial Causes Ordinance (‘MCO’) (Cap. 179).

2)  Rule 3 of the Matrimonial Causes Rules (‘MCR’) provides that the Rules of the High Court (‘RHC’) (Cap 4 sub. leg.) shall apply with the necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceedings pending in the Court of First Instance or in the District Court.

3)  Order 12, Rule 8(2) of the RHC provides that a defendant who wishes to argue that the court should not exercise its jurisdiction in the proceedings on one or more of the grounds specified in paragraph (2A) shall also give ‘notice of intention’ to defend the proceedings and shall, within the time limited for service of a defence, apply to the court for —

(a) a declaration that in the circumstances of the case the court should not exercise any jurisdiction it may have, or

(b) an order staying the proceedings, or

(c) -.

4)  Amongst the grounds specified in paragraph (2A) is the following provision in (a) namely, considering the best interests and convenience of the parties to the proceedings and the witnesses in the proceedings, the proceedings should be conducted in another court.  This is the statutory recognition of the forum non-conveniens challenge.

5)  Rule 15(1) of the MCR provides that a ‘notice of intention to defend’ is a reference to an ‘acknowledgement of service’ in Form 4.  For all intents and purposes, an answer filed in a divorce proceeding must be treated in the same basis as a defence filed in a High Court proceeding.  Without an answer, the petitioner may proceed to obtain a divorce decree just like a plaintiff in a High Court action may proceed to obtain a judgment in default of defence.  Likewise an answer or a defence filed will turn the proceedings into contested proceedings.  Under Order 12, Rule 8(2) of the RHC as modified by Rule 3 of the MCR, if the husband wished to raise the challenge that the Hong Kong Court is not the proper forum, he must do so before he filed his answer.

6)  The Court of Final Appeal in Re Resource 1 (2000) 3 HKCFAR 187 dealt with Order 12, Rule 8(1) which enables a defendant to challenge the jurisdiction of the Hong Kong Court.  This provision also required the challenge to be raised ‘within the time limited for service of a defence’ which is the same limitation found in Order 12, Rule 8(2).  The Court of Final Appeal upheld the time limitation provision.  Sir Anthony Mason NPJ held at 213 that,

‘ A power to regulate by rules the practice and procedure in actions generally in a superior court must extend to the prescription of time limits within which, and procedures by which, objections on various grounds, including jurisdiction, are to be made. Indeed, in the case of jurisdictional objections, there are powerful reasons for thinking that they should be resolved, as far as possible, at an early stage of an action. It is not right that a court should be venturing upon the merits or substance of an action without determining at the threshold of the action, if it can conveniently do so, that there is jurisdiction to proceed. The prospect of a defendant raising a jurisdictional objection at a very late stage of an action, perhaps after a lengthy hearing and just before the delivery of judgment, is one not readily to be contemplated. Accordingly, in the absence of any compelling contrary consideration, there are strong grounds for holding that the rule making power extends to prescribing a time and method by which a jurisdictional objection is to be taken, at least an objection of the type raised here, in default of which jurisdiction will be exercised.’

7)  On this basis, the husband having filed his answer, was clearly too late to challenge the jurisdiction of the Hong Kong court.

8)  Mr. Manzoni SC (with Ms Bonnie Cheng) argued for the husband that there should be a distinction drawn between the husband filing his answer and his Form E.  While by filing the answer, the husband may be barred from challenging the jurisdiction on granting a divorce, he has not filed his Form E, and hence he should be allowed to challenge the jurisdiction of the Hong Kong Court to deal with ancillary relief.

9)  Reliance was made of the following two cases: W v W (Financial Relief: Appropriate Forum) [1997] 1 FLR 257 and Dil v. Pensa (Decision dated 13/3/1998) (All England Official Transcripts (1997-2008)).

(a)  In W v W Holman J stayed the husband’s ancillary relief application pending in the English court in favour of an application brought by the wife in Canada on the ground of forum non-conveniens.  The husband had by then already obtained a decree absolute in England.

(b)  Holman J held that,

‘ In reality, issues of the divorce decree per se and of finance are in separate and discrete compartments.’

10)  In Dil, Connell J stayed the wife’s ancillary relief application in England in favour of the Italian court on the ground of forum non-conveniens.  By then the English court had ordered a decree nisi of the marriage and the husband had filed his Form E.  Connell J followed W v W and held that,

‘ (f) The proceedings for a divorce and the proceedings for financial relief in my view are not inextricably linked. Although the application for a stay was made after the proceedings here had been under way for seven months, and although that application probably represented a shift of ground by the husband, the fact is that the English court has made no substantive orders on the wife’s application. It has pronounced a decree nisi, but I agree with Holman J that in reality the issues of the divorce decree per se and of finance are in separate and discrete compartments. See and compare W v W [1997] 1 FLR 257, [1997] 2 FCR 659 page 272 of the former report.’

11)  Mr. Manzoni had not referred us to any provision on time limitation in respect of jurisdictional challenge in England similar to that of our Order 12, Rule 8(2), hence the issue must be decided in Hong Kong on the terms of the RHC. In my view it will give an unnatural meaning to the term ‘answer’ under Rule 18 of the MCR if it is to be separately construed as meaning an answer to the petition and an answer (by way of Form E) to the ancillary relief application.  The document for the purpose of applying the time limitation must simply mean the answer to the petition.  Any challenge to the ancillary relief application is raised in the answer.  Form E merely sets out the financial positions of the parties.  Hence any challenge to the Court’s jurisdiction on ancillary relief must also be raised within the time frame of the RHC.

12)  In my view the time limitation provision clearly justifies the Judge’s dismissal of the husband’s challenge on jurisdiction by reason of delay.

13)  Mr. Sussex SC (together with Ms Mairead Rattigan) for the wife also argued the husband had submitted to the jurisdiction of the Hong Kong Court by taking steps in the proceedings including the filing of Form 4 and the answer.  In my view the filing of Form 4 cannot be construed as a submission to jurisdiction or a waiver of the husband’s right to challenge jurisdiction because under Order 12, Rule 8(2) he must file his Form 4, which is the equivalent of the notice of intention to defend under the RHC, in order to invoke the jurisdictional challenge.  On the other hand the filing of the answer must be construed as a submission to jurisdiction.  However, in light of my decision on Order 12, Rule 8(2) of the RHC it is not necessary to deal with this issue further. 

10.  It is to be noted that there are parallel proceedings in Korea taken by the wife to restrain the husband from disposing his Korean assets.  The wife has also taken out an anti-suit injunction in Hong Kong against the husband’s Korean proceeding.  The Judge reserved his judgment on this application.  None of this, however, has any relevance in respect of my view on the time limitation provision.

Leave to appeal against the dismissal of the amendment summons

11.  In my view the Judge was also correct to dismiss the husband’s amendment summons.

1)  The husband said that he discovered in August 2011 the wife had committed adultery.  He filed for divorce in Korea on the ground of the wife’s adultery on 14 October 2011. Thereafter he issued on 20 October 2011 the stay summons which was dismissed on 15 December 2011.  The husband only informed the wife, through his solicitors, that he intended to amend the answer and file a cross petition on 8 March 2012. He explained that the purpose was to ensure consistency in his position in both the Hong Kong proceeding and the Korean proceeding.  The amendment summons was issued on 13 March 2012.

2)  An answer that has been served may only be amended with leave of the Court.  Rule 24 of the MCR adopts in respect of amendments to an answer, the same provisions relating to amendment of a petition under Rules 16 and 17.  Rule 16(4) provides that the Court may order an application for leave to be supported by affidavit.  Rule 20 of the MCR further provides that no pleading shall be filed without leave after directions have been given. 

3)  In this case directions for trial have already given.  The trial of the divorce is scheduled to be heard in August 2012.  No affidavit explaining the delay was filed by the husband at the time of his application for amendment.  An affidavit was only filed after the dismissal of the amendment summons.  In it the husband explained that the time taken after the discovery of the wife’s adultery was to challenge the Hong Kong jurisdiction and after the dismissal of that application, counsel’s advice was sought on conflict of law issues.

4)  Delay and lack of explanation for the delay are clearly relevant considerations when the Judge exercised his discretion.  But more importantly, after the Civil Justice Reform, the Courts in Hong Kong must be able to and should exercise their case management jurisdiction in a manner which is consistent with achieving a speedy resolution of the dispute of the parties and ensuring that justice is done to the parties.

5)  In this case the husband had on 9 June 2011 made an offer to the wife to have a divorce based on the mild behaviour grounds which had been pleaded in the wife’s petition and identified by the husband in his offer.  The wife’s response was that she was willing to do so provided that there was a global settlement on custody of the children and ancillary relief as well.  The husband argued that because the wife had made a counter proposal, no agreement had been reached.  Further the correspondence on the offer was without prejudice save as to the costs and they should not be looked at by the Court.  The correspondence was placed before the Judge and was not removed by either of the parties before the hearing.

6)  Irrespective of whether there was an agreement reached on the proposal, which was not pressed upon by Mr. Sussex and which I do not need to determine, the proposal by the husband to agree to a divorce belies his true intention to apply for a divorce based on the wife’s adultery.  The husband’s current stance lacks conviction.

7)  In any event, even if the without prejudice proposals should not be placed before the Judge and this Court should ignore the husband’s proposal, the fact is that the wife had on 21 September 2011 made an open offer to the husband seeking a divorce based on the identified mild behaviour grounds.  As both parties are now of the same view that the marriage has been irretrievably broken down, the Court in exercising its divorce jurisdiction in a modern setting, will be loathed to allow the parties to use valuable court time to litigate on a matter which has no impact whatsoever on the divorce itself and which should be dissolved as quickly and painlessly as possible.  As Ormrod LJ observed in Grenfell v Grenfell [1978] 1 All ER 561 at 566 that,

‘ There is no point, as I see it, in a case like this in conducting an enquiry into behaviour merely to satisfy feelings, however genuinely and sincerely held by one or other of the parties. To do so would be a waste of time of the court and, in any event, would be running, as I think, counter to the general policy or philosophy of the divorce legislation as it stands today. The purpose of Parliament was to ensure that where a marriage has irretrievably broken down, it shall be dissolved as quickly and as painlessly as possible under the Act, and attempts to recriminate in the manner in which the wife in this case appears to wish to do should be, in my judgment, firmly discouraged.’

8)  (a)  In that case the wife petitioned for divorce based on the husband’s behaviour.  The husband filed an answer denying the wife’s allegation and cross petitioned for divorce based on five years’ separation.  The wife admitted the parties had been separated for five years but opposed the cross petition on the ground that she would suffer grave hardship as provided for by section 5 of the Matrimonial Causes Act 1973 in that, because of her religious belief, ‘her conscience would be affronted if the marriage were to be dissolved other than for grounds of substance whereby the true cause of the breakdown of the marriage would be determined by the Court...’.  The Court struck out the wife’s petition.

b)  The English Court of Appeal dismissed the wife’s appeal against the striking out.  Ormrod LJ emphasized that there is only one ground in which the court has power to dissolve a marriage, namely, the marriage has broken down irretrievably and there are five separate facts, one of which has to be established in order to prove that the marriage has broken down irretrievably.  On the facts of the case there was nothing further to inquire other than the fact that the parties had been living apart forfive years.

c)  While it is true that in Grenfell there was common ground that the parties had been separated for five years, which is not the situation here if the proposal by the husband is to be ignored, the discussion by Ormrod LJ on the underlining principle of a modern divorce is instructive and apposite, if not more so, 35 years after that decision to modern Hong Kong.

9)  The issue of behaviour i.e. the wife’s adultery also has no impact on the more substantial dispute of the parties namely, the question of custody of the children and ancillary relief.  Specifically in respect of ancillary relief, the Court of Final Appeal has in LKW v. DD (2010) 13 HKCFAR 537 at 540 stated that,

‘ Conduct, or more accurately, negative conduct, is therefore only to be regarded as a material factor if it is “obvious and gross” in the sense explained in Wachtel v Wachtel or, which comes to the same thing, if it is such that it would in the opinion of the court be inequitable to disregard it.’

10)  I am of the view that the same reasoning would apply to the issue of custody as well.  The adultery by the wife, which is denied by her, cannot amount to anything like gross misconduct which may affect the husband’s position on these two issues now that the divorce, custody and ancillary relief applications will be addressed in Hong Kong and not elsewhere.

11)  The husband’s claim that the purpose of the proposed amendment is to ensure consistency between the Hong Kong and Korean proceedings is not sustainable on analysis.  It is the husband’s case that the wife’s adultery may affect her position in respect of ancillary relief in Korea.  The amendment summons is more of an attempt to improve the husband’s position in Korea. 

12)  The Judge stated that if the wife is unable to satisfy the Court that the marriage has irretrievably broken down on the mild behaviour grounds, then the husband can apply for divorce based on the wife’s adultery.  While all disputes between the parties should in general be determined at the same time, in the context of this case, I am not convinced that the Judge had erred on principles.

13)  As there is no reasonable prospect of success in the husband’s proposed appeal, I would not grant leave to appeal.