WL v. LWT

FCMC 17483 /2012

[2019] HKFC220

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 17483 OF 2012

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D E C I S I O N

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Background

1.  The Petitioner was the Wife (“W”) and Respondent was the Husband (“H”).

2.  On 27 November 2012, W represented by Messrs. Chan Chun Tin & Co., solicitors, filed a petition for divorce based on the fact of “One Year Separation and Consent”.  It was stated in the Petition that the parties separated from each other since June 2011 and that there was no child born out of the marriage.

3.  On 21 March 2013, the Decree Nisi (“DN”) was granted. The Court also granted a declaration that there are no children of the family to whom Section 18 of the Matrimonial Proceedings and Property Ordinance, Cap.192 applies.

4.  On 3 May 2013, W’s then solicitors filed an application for the Decree Nisi to be made absolute.

5.  On 13 May 2013, the Court granted the Certificate of making the Decree Nisi Absolute (“DA”) on 10 May 2013.

The Wife’s Application

6.  On 10 December 2018, W through her present solicitors Messrs. Wong, Fung & Co., issued a Summons seeking for an Order that W be granted the custody, care and control of a minor, namely, LP with reasonable access to be granted to H.  In the Summons, W also sought for a social investigation report be called for; if so advised, and that there be no Order as to costs.

7.  W filed her affirmation in support of the Summons to explain the circumstances leading to the pregnancy of the minor LP.  She deposed of having sexual relationship with H during the period of separation with the hope that the marriage could be salvaged.  She produced the birth certificate of the minor LP as Exhibit “C” which shows that H is the natural father of the minor.  The minor LP was born on 15 May 2013 which is 2 days after the date of the Certificate for making the Decree Nisi absolute.

8.  The Summons came before this Court on 25 February 2019 for the 1^st hearing.  H was absent and service of the Summons was effected on him by post at his last known address in Mainland China.  This address in Mainland China was stated in the Petition and also hand-written under Question No.2 of the Acknowledgement of Service (Form 4) but not under the space “Address for service” within the Form 4.  The hearing was adjourned for W’s solicitor Mr. Tommy Wong to file further submissions and authorities, if any, to substantiate W’s application.

9.  At today’s hearing, Mr. Tommy Wong referred me to the English case of Caller v. Caller [1968] L.R. (Probate Division) p.39.  This is an English case where the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 was considered.  At Karminski J at p.44C said :-

“… I have to ask myself further in this case whether the word “child”  is applicable to a child not yet born.  I am myself of the opinion that a child can exist en ventre sa mere just as much as a child who has in fact been delivered.”

10.  It is Mr. Wong’s submission that section 16(1) of the English Matrimonial Proceedings (Magistrate’ Courts) Act 1960 is almost identical to Section 2 of the Matrimonial Proceedings and Property Ordinance, Cap.192 in Hong Kong.

11.  Mr. Wong conceded that this is the only authority on the point of whether a child en ventre sa mere could be accepted as a child of the family.  There are no other cases and authorities on such point, be it in Hong Kong or elsewhere.

The Court’s Views

12.  The Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) is the piece of legislation which empowers the Court to make orders affecting parties to a marriage dissolved in Hong Kong.  It also contains provisions for making custody orders on children, whether they are born by the parties within the marriage or being treated by the parties to the marriage as a child of their family.

13.  Section 2 of the MPPO (which is the “Interpretation” section) provides, inter alia :-

“child (子女), in relation to one or both parties to a marriage, includes an illegitimate or adopted child of that party or, as the case may be, of both parties;

child of the family (家庭子女), in relation to the parties to a marriage, means –

(a) a child of both those parties; and

(b) any other child who has been treated by both those parties as a child of their family;”

14.  As can be seen, a child en ventre sa mere is not defined under the interpretation section of the MPPO.  As a matter of fact, there is no reference to a child en ventre sa mere anywhere in the MPPO.  There are only 3 statutory enactments where a child en ventre sa mere was included in the Interpretation section.  They are the Intestates’ Estates Ordinance, Cap.73[1], the Perpetuities and Accumulations Ordinance, Cap.257[2] and the Inheritance (Provision for Family and Dependants) Ordinance, Cap.481[3].

15.  Section 2(3) of the Intestates’ Estates Ordinance, Cap.73 provides, inter alia :-

“References in this Ordinance to a child or issue living at the death of any person include a child or issue en ventre sa mere at the death.”

16.  Section 2(1) of the Perpetuities and Accumulations Ordinance, Cap.257 provides, inter alia :-

“in being (在世的) means living or en ventre sa mere.”

17.  Section 2(1) of the Inheritance (Provision for Family and Dependants) Ordinance, Cap.481 provides, inter alia :-

“child (子女) includes –

(a) a child whose father and mother were not married to each other at the time of its birth;

(b) a child en ventre sa mere at the death of the deceased;

(c) a child of a union of concubinage;

(d)   a child adopted in Hong Kong in accordance with Chinese law and custom before 1 January 1973;”

18.  In my decision, it is clear that the legislative intent is that a child en ventre sa mere should not be considered or accepted as a child or a child of the family in the context of matrimonial proceedings, say, under the MPPO.  Had it been the legislative intent to include a child en ventre sa mere in matrimonial proceedings, the legislation would have included it explicitly in the interpretation section of the MPPO in a way same as in the other 3 Ordinances.  It seems to me that the common feature where a child en ventre sa mere was considered is where intestacies and inheritance are somehow involved.

19.  Since this Court’s powers to make custody orders are statutory, there is no room for departure from the MPPO when a child en ventre sa mere was not embraced within the statutory definition of “child” or “child of the family” in the MPPO.

20.  Looking from the procedural perspective, W’ present application on 10 December 2018 is even worse for the following reasons :-

- the divorce proceedings had been ended by the Decree Absolute which was dated 10 May 2013 (as per Certificate dated 13 May 2013) whereby the Court’s jurisdiction to make fresh custody orders ceased, save and except for variation of pre-existing custody and financial orders; 

- there is the Registrar’s Certificate dated 26 February 2013 in place that there are no children of the family to whom Section 18 of the MPPO applies; and

- the Section 18 Declaration dated 21 March 2013 granted by this Court.

21.  As for the case of Caller v. Caller (supra), it is readily distinguishable from the facts of the present case.  In Caller, the husband knew and had prior to the marriage expressed his willingness to accept the child (being pregnant by another man) as a child of the family.  Even though he then deserted the wife 3 weeks before the child was born, he was found to have had accepted the child en ventre sa mere as the child of their family.

22.  In the present case, even though paternity is not an issue since the information within the birth certificate can be accepted as sufficient proof of paternity unless proved to the contrary, there is no direct evidence from H as to when he had accepted the minor LP to be the child of the family.  In my decision, the earliest time for such an acceptance would only be the date of registration as the father of the minor LP as shown on the birth certificate, which is 28 May 2013.  Thus, such date is well after the date of the Decree Absolute (that is, 10 May 2013) when the Court’s jurisdiction under the MPPO to make fresh custody orders completely ceased (save and except for variation of pre-existing custody or financial orders).

23.  Mr. Wong’s submission that the provisions under Section 16(1) of the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 to be almost identical to Section 2 of the MPPO is a complete non-starter. In my view, identical in statutory provisions could not enlarge the statutory definition of “child” and “child of the family” in the MPPO to cover a child en ventre sa mere.

24.  Taking Mr. Wong’s submissions to the highest that the decision in Caller should be applied by the Hong Kong Courts, in so far as determining a child en ventre sa mere in the context of matrimonial proceedings is concerned, I still fail to see how the explicit statutory definition of “child” and “child of the family” under the MPPO should give way to the court’s interpretation of another statutory enactment upon a case where the facts of it are readily distinguishable.

Conclusion

25.  For all the reasons herein, I decided that W’s application must fail.  W’s Summons must be dismissed.

Costs

26.  Since H had been absent throughout this application and thus the hearings are conducted somehow “ex parte”, I decided that there will be no Order as to costs of this application.

27.  However, I noticed that W was publicly funded by the Legal Aid Department for this application.  The legal aid certificate was granted for “the purpose of claiming custody of LP” and, as in most cases, without stating how the application should be brought. As such, it is for the assigned solicitor to consider and decide how best the application should be made and in a costs effective and efficient manner.  This is one of the objectives under the Civil Justice Reform (“CJR”) which practitioners must always bear in mind.  Court’s resources and public funds are valuables which should not be unnecessarily wasted, especially in a plain and obvious case.

28.  There are altogether two hearings, namely, 25 February 2019 and 11 July 2019.  For the hearing on 25 February 2019, I made no order as to costs save and except W’s own costs be taxed in accordance with Legal Aid Regulations.  For the hearing on 11 July 2019, I reserved costs entirely.

29.  Given my reasons for the dismissal of W’s application, I am mindful to say the present application made under the MPPO is completely devoid of merits. 

30.  I believe it is fair and reasonable not to grant any W’s own costs for the application and also the hearing on 11 July 2019.  Had W’s own costs order for the hearing on 25 February 2019 (hearing time from 12:09 pm to 12:25 pm) not been sealed and perfected, I am mindful not to grant any common fund costs as well for that hearing.  Since the costs order of 25 February 2019 had now been sealed and perfected, my “no-costs” decision would only cover W’s application and the hearing on 11 July 2019.

31.  I wish to add that such “no-costs” decision is not to penalise the assigned solicitor or the solicitors firm.  This is warranted to uphold the objectives under the CJR.   

Orders

32.  I now make the following Orders :-

(a) W’s application dated 13 November 2018 be dismissed;

(b) There be no order as to costs of W’s application including costs reserved;

(c) There be no order as to W’s own costs of the application and the hearing on 11 July 2019 under the Legal Aid Regulations; save and except W’s own costs for the hearing on 25 February 2019 (from 12:09 pm to 12:25 pm) which had been previously ordered.

33.  This is a costs order nisi which would become absolute if no application to vary the same is filed within 14 days from the date of this Decision.

Other Matter

34.  I direct the Registrar to forward a copy of this Decision to the Legal Aid Department for their attention.