THY v. C,HFR

FCMC 11061/2014

[2018] HKFC 10

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 11061 of 2014

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R U L I N G
(Leave to appeal)

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Introduction

1.  This is the Respondent’s third application for leave to appeal and arises out of my Ruling dated the 8 November 2016 when I made what was effectively a case management decision allowing the wife to file a fresh petition for divorce based on two year’s separation. There was no doubt at that time that the parties had been separated for over two years. Indeed, as of the date of this hearing the parties have been separated for nearly four years. Consequently, I made an order inter alia as follows:

1. The Petitioner’s Petition for divorce filed herein on 20 August 2014 be dismissed and leave be granted to the Petitioner to file a fresh petition for divorce on the basis of two years’ separation (“fresh Petition for Divorce”).

2. Immediately upon the filing of the Petitioner’s application for directions for trial of the main suit in the fresh divorce proceedings, the proceedings arising from the original Petition herein be transferred to the fresh Petition for Divorce.

3. The existing Petition filed on 20 August 2014 and the Respondent’s existing Cross-Petition filed on 20 October 2015 be stayed upon the pronouncement of the Decree Nisi of the fresh Petition for Divorce save and except that both parties are at liberty to make applications on access and ancillary relief to the Court for further directions or order should any need arise between the date of the Order to be made herein and the issuance of the fresh Petition for Divorce.

4. All existing orders and documents (including but not limited to the marriage certificate, pleadings, summonses, affidavits, social investigation report and all/any other court documents) under these proceedings FCMC 11061/2014 shall stand and remain valid under and be transferred to the proceedings to be commenced by the fresh Petition for Divorce.

5. Personal service of the fresh Petition for Divorce be dispensed with and service of the fresh Petition for Divorce upon the Respondent’s solicitors or alternatively (if the Respondent is acting in person at the relevant time) upon the Respondent by ordinary post (as the case may be) shall suffice.

2.  I am told that pending the outcome of this hearing the wife has not issued any fresh proceedings and the matter has been in abeyance until now.    

The law

3.  The law remains as before, but for the avoidance of doubt I repeat that reference should be made to the test in section 63A of the District Court Ordinance which states as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.”

4.  It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and, as I have said, that it has a reasonable chance of succeeding.  The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly.  Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

Discussion

5.  In the husband’s Draft Notice of Appeal, he seeks inter alia –

“FOR an Order that the Respondent’s appeal be allowed in that the said Order may be set aside and that the main suit of the proceedings be restored with the Respondent’s Cross Petition filed on 20 October 2015 be heard.

And for an Order that the Petitioner pays to the Respondent the costs of this appeal.

And further take notice that the grounds of this appeal are that:-

1. The Respondent’s rights to defend the suit was wrongfully prejudiced and deprived of on the grounds as follows:-

(1) Pursuant to section 15(1) of the Matrimonial Causes Ordinance (Cap. 179), in any proceedings for divorce it shall be the duty of the Court to enquire, in so far as it reasonably can, into any facts alleged by any part to the proceedings;

(2) The Respondent had properly alleged in the Cross-Petition facts which the Honourable Court is duty bound to enquire.

(3) The issues raised in the Cross-Petition require proper determination by the Court as they may have some bearing on ancillary relief and child custody matters.

(4) By ordering a stay on the Cross-Petition, the Learned Judge has in effect deprived the Respondent of his statutory right to require the Court to exercise its duty under section 15(1) of the Matrimonial Causes Ordinance (Cap. 179) to enquire into the facts properly alleged in the Cross-Petition.

(5) The Court cannot conclude that the Respondent’s case was unlikely to succeed without going through the evidence which the Respondent has possessed.”

6.  In essence the husband wishes to have a trial on his cross petition. He remains convinced that it is more appropriate for the issue of the wife’s alleged adultery to be determined in a defended suit because he believes that this will have some bearing on both the question of ancillary relief and the arrangements for the children. It seems to me that this is fundamentally wrong and I said as much in my Ruling of the 8 November 2016. Reference should be made in particular to paragraph 4 where I said as follows:   

4. The husband put forward a number of arguments concerning the best way to approach the alleged financial misconduct by the wife. I do not accept most of what was said on his behalf. In particular, I do not accept the suggestion that it would be more cost effective to air such matters in a contested divorce suit. With respect it seems to me that such an approach is both outdated and out of touch with social norms.  Further I accept as is stated in the wife’s submissions that:

… The test adopted by the Court to consider the parties’ conduct in relation to the divorce is difference from the tests and principles to be applied when the Court considers whether or not the alleged conduct or misconduct of either party affects a party’s ability to take care of the children and on any financial relief issues.  It is trite law that the divorce and ancillary relief are two separate issues. …

7.  Counsel for the wife made reference to a number of cases including the Court of Appeal decision in SJH v RJH [2011] HKCA 280 and concluded inter alia as follows:

“W respectfully submits that the principles as set out in Grenfell v Grenfell, SJH v RJH and in CKF v LHL shall be applied in this case. Given the parties have already been separated for 2 years and leave has already been granted by this Honourable Court for W to issue a 2 years’ fresh petition, the Court will be loathe to conduct further inquiry into the parties’ allegations of behaviour made against each other in the existing Petition and Cross-Petition. H’s allegations on W’s adultery or improper associations with another man or W’s behaviour as set out in H’s Answer and Cross-Petition (which is categorically denied by W), even if proved by H, cannot amount to any ‘obvious and gross’ misconduct which would affect either party’s positions on the outstanding children issues (access in this case) and ancillary relief. Further, it is trite law that issues of the divorce decree per se and of finance are in separate and discrete compartments. The divorce and the ancillary relief proceedings are not inextricably linked. It is absolutely illogical for H to adopt the position that “the best arena to determine and consider such matters [allegations as raised in his Answer and Cross-Petition] is at the trial of the main suit” simply as he believes “there are certain issues [issues with regard to W’s marital behaviour, conduct, adultery or intimate relationship with another man and alleged reasons leading to the breakdown of marriages] raised in the cross-petition which require proper determination by this Honourable Court which may be have some bearing on ancillary relief and child custody matters” (paragraphs 14 and 15 of H’s 2^nd Affirmation filed on 27 July 2016)(§P/132-133).

With respect I agree. 

Decision

8.  In such circumstances it seems to me that there is no reasonable prospect of this case succeeding on appeal, nor is there any other reason, in the interests of justice why this appeal should be heard. Consequently, the husband’s application for leave to appeal is denied.

Costs

9.  It seems to me that costs should follow the event in the normal way. Therefore, the Respondent husband shall pay the Petitioner wife’s costs of and arising out of the application for leave to appeal on a party and party basis to be taxed if not agreed.