PYS v. CDY

HCMP 3/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3 OF 2010

(ON AN INTENDED APPEAL FROM FCMC NO. 7365 OF 2007)

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BETWEEN

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HCMP 987/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 987 OF 2010

(ON AN INTENDED APPEAL FROM FCMC NO. 7365 OF 2007)

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BETWEEN

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J U D G M E N T

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Hon Yeung JA (giving the Judgment of the Court):

1.  The husband and wife married on 30 July 1988 and they have a son A, who was born on 28 January 1996.

2.  The husband petitioned for a divorce and the decree absolute was issued on 24 April 2009. In the course of the divorce proceedings, the judge in charge of the case, Judge Melloy in the District Court, made many orders.

3.  Under a consent order made on 19 September 2008, the parties agreed to sell a property at 48 Mount Kellett Road, with the net proceeds to be shared between the parties as to 45% each, with the remaining 10% being held in a joint account pending the final determination of the ancillary relief application (Order 1). Messrs F Zimmern & Co represented the wife when the order was made.

4.  Another consent order dated 2 October 2008 was made pursuant to a “Custody and Parenting Agreement” executed between the parties on 29 September 2008. The parties agreed that they would have joint custody of A, but the husband would have sole care and control (Order 2). Messrs F Zimmern & Co also represented the wife in the preparation of the Custody and Parenting Agreement as well as making of the consent order. In the Custody and Parenting Agreement, the wife had agreed to work together with her therapeutic counselors in the hope that she could gain a better insight and understanding of A’s situation and well-being.

5.  On 13 October 2008, the wife filed a notice to act in person. There were then various orders made in connection with the matrimonial assets and A’s care and control.

6.  Between November 2008 and February 2009, the wife filed a number of notices of change of solicitors and notices to act in person. There were also repeated legal aid applications. In the meantime, the judge, on 19 December 2008, granted the husband’s application to sell a matrimonial property at the Sunshine Villa.

7.  The judge also made an order suspending the wife’s right of access to A until 16 January 2009 for the wife to come up with a constructive therapeutic counseling plan to deal with her psychiatric condition. The order was made because the wife had acted erratically, resulting in the withdrawal of the Senior Pastor, the Assistant Pastor and a church member from participating in the supervised access by the wife to A at the Union Church. There was suggestion that A’s welfare and physical safety might be jeopardized if such access arrangement continued.

8.  On 16 January 2009, the judge granted the husband’s application for general leave to take A out of Hong Kong for holidays and education –related trips, and as the wife had failed to engage in any therapeutic counselling, her access to A was suspended until further order (the Access Suspension Order).

9.  On 6 March 2009, the judge made an order in relation to the distribution of matrimonial assets between the parties (Order 3).  The order was made in the absence of the wife as she refused to take part in the hearing. In a detailed judgment, the judge set out the background of the case and the factors she took into consideration. The judge essentially split the family assets on a 50-50 basis after making provision for A.

10.  On 12 March 2009, the judge continued a non-molestation injunction order against the wife granted on 16 April 2008 (Order 4). The injunction order had expired on 12 April 2010.

11.  The wife objected to the sale of the property at Sunshine Villa and refused to move out, resulting in an order to commit her to jail for four days so that the sale of the Sunshine Villa could be completed.

12.  The wife then made repeated attempts to have access to A, in breach of the non-molestation injunction, resulting in the extension of authorization of arrest against her.

13.  On 9 June 2009, pursuant to applications by the husband, the judge made a number of costs orders against the wife as well as orders in connection with the wife’s share of the matrimonial assets (Order 5).

14.  The wife sought leave from the judge to appeal against Orders 1-5. The judge refused her application on 21 December 2009. The wife then applied to a single judge of the Court of Appeal for leave to appeal out of time (HCMP 3/2010). On 9 March 2010, Hartmann JA refused her application.

15.  The wife renewed her application for leave to appeal against Orders 1-5 before us.

16.  The wife also applied, out of time, for leave to appeal against the Access Suspension Order (HCMP 987/2010) made on 16 January 2009.

17.  The wife had sought leave from the judge to appeal against the order, but the judge refused her application on 2 February 2009 on the basis that the wife had no realistic prospect of success.

18.  The judge pointed out that “many of her complaints lie with her legal advisors of whom there have been many and the standard of the translation provided in the court. She also complains of not being heard when no formal applications have been made to this court.”

19.  The wife then sought leave to appeal out of time again, but the judge refused the application on 19 May 2010.

20.  Pursuant to Order 1, the matrimonial home at Mount Kellett Road was sold on 27 March 2009 for $56 million and the wife had withdrawn about $13 million. The wife claimed that the matrimonial home was her sole property and that she had never agreed to sell it. She said that the husband had defrauded her, and that her solicitors had misled her and sold the property without any authority. She alleged that there was a general conspiracy to act against her interest.

21.  It appeared at the wife, having agreed to sell the Mount Kellett property, had a change of mind, resulting in a court order allowing the husband to sign papers on behalf of the wife as she was then refusing to co-operate in the transfer to title in the property to the purchaser.

22.  Clearly the Mount Kellett property had been sold in accordance with court orders and the wife’s subsequent change of mind simply cannot be a valid reason to annul the sale, which took place almost two years ago. Hartmann JA had reviewed the wife’s case and had given full reasons for refusing her leave to appeal against Order 1. We agree with those reasons.

23.  Order 2 was also made with the wife’s consent. In any event, it being an order relating to the custody, care and control of a child of the family, the court must have the best interest of A in mind and must take into consideration any changed circumstances. We agree with Hartmann JA’s conclusion that if the wife wants to rebuild a relationship with A, she should make a fresh application to the Family Court.

24.  Order 3 concerns the distribution of the matrimonial assets. In her 43-page judgment, the judge gave detailed reasons for making the clean break order despite the fact that the wife refused to attend the hearing. The judge clearly had taken into consideration all relevant matters, in particular the parties’ ages and earning capacity, and their conduct. After making provision for A, the judge distributed the matrimonial assets equally between the parties. The wife’s complaint that she is the victim of a conspiracy is unfounded. On the evidence before the judge, Order 3 is a reasonable order.

25.  Order 4, admittedly a harsh order against the wife, was made on the evidence presented by the husband relating to the wife conduct, particularly her various attempts to get access to A. We are unable to say that it was wrong for the judge to make the order. In any event, the order had since expired and no purpose will be served by re-opening the issue.

26.  Order 5 is a costs order. The judge had been in charge of the case throughout. There had been repeated applications, many of them caused by the unreasonable conduct on the part of the wife. In the exercise of her discretion, the judge was entitled to make the costs order against the wife. The Court of Appeal will not interfere with such exercise of discretion.

27.  The Access Suspension Order was made over 12 months ago. It was clearly in the interest of A that the husband should be allowed to take him out of Hong Kong for holidays and education-related trips. The order was made against the husband’s undertaking to ensure A’s safety and to return A to Hong Kong at the end of each trip. 

28.  The judge suspended the wife’s access to A because of the wife’s conduct, in particular her refusal to engage in any therapeutic counseling to deal with her psychiatric condition. The judge was entitled to take the view that in view of the wife’s conduct, it would not be in the interest of A to allow her to exercise her right of access to him.  On the evidence, the judge was right to do so.

29.  At one stage of the hearing, we took the view that an indefinite suspension of the wife’s access right might not be beneficial to A and could be perceived as being unfair to the wife when she clearly wanted to re-establish contact with A.

30.  We were hoping to engage the Director of Social Welfare to provide such assistance as might be necessary and that the wife would co-operate with him, including submitting herself to psychiatric assessments that were considered necessary. The wife, whilst agreeing to the intervention of the Director of Social Welfare, had flatly refused to submit herself to any psychiatric assessment.

31.  That being the case, we failed to see any need to take the matter further.

32.  There has been substantial delay, which is not explained. And in our view, the wife’s proposed appeals do not have a reasonable prospect of success and there is no other reason in the interests of justice why her appeals should be heard. We therefore refuse the wife’s application for leave to appeal against Orders 1 to 5, and the Access Suspension Order. We also make an order nisi that the wife bears the costs of the applications to be taxed if not agreed.

33.  We wish to add that an ancillary relief order relating to the matrimonial assets, which is not insubstantial, had been made. If the wife persists in making unnecessary and unreasonable applications, there will be costs implication, eroding her share of the matrimonial assets or the reminder of it.

34.  We can understand the wife’s wish to re-establish contact with A. We have no doubt that if the wife can demonstrate that A’s interest will not be adversely affected, she will be allowed to exercise her right of access in accordance with the Custody and Parenting Agreement annexed to Order 2 or in any other form convenient to the parties and in the interest of A.

35.  The wife should come up with a constructive therapeutic counselling plan to deal with her psychiatric condition and then make an application to the Family Court for a renewed right of access to A. It is not constructive for the wife to insist that there is absolutely nothing wrong with her. If she is right in that regard, then the expert will be able to support her. She must accept that the court, just as herself, is deeply concerned with the welfare and interest of A.

36.  As observed by Hartmann JA, if the wife does make an application, the Family Court, in considering her application, will no doubt seek the views of A and the husband, and if necessary, professional assistance to ensure that any order made by the court will be in the best interest of A.

37.  We hope that the wife will act sensibly to avoid further waste of time and costs, at no benefit to any of the parties involved.