TS v. AJ

FCMC 7928/ 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 7928 OF 2011

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RULING

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The Application

1.  By her Re-amended Summons, the Respondent (wife) is asking for leave to appeal to set aside the Consent Order dated 27^th September, 2011 and the Decree Absolute made on 14^th November, 2011. 

2.  When the parties came before me on 24^th January, 2013, it was meant to be for arguments.  However, the course took a turn and at the end of the day, Ms Lau, counsel for the Respondent, applied to have the Re-amended Summons adjourned sine die with liberty to restore and on the other side, Mr. Surman, for the Petitioner (husband), applied to have the Re-amended Summons dismissed.

Background

3.  Before I come to how this happened, I need to go briefly into the background of this case.

4.  The Petitioner and the Respondent are Indian nationals.  They married in Hong Kong in April, 2006 and the union gave birth to two children, the elder is a son, now aged 8 and the younger a daughter, now aged 3.

5.  On 15^th June, 2011 the Petitioner petitioned for divorce on the ground of one year separation with consent.

6.  The Form 4 (Acknowledgement of Service) together with the Respondent’s Certificate as to Mediation, both dated 16^th June, 2011 and were apparently signed by the Respondent, were filed on 22^nd June, 2011. 

7.  At the same time, a Consent Summons dated 22^nd June, 2011, which also apparently bore the Respondent’s signature, was filed.  By the consent summons, the Respondent agreed that the cause be proceeded on undefended basis and the parties agreed that the custody, care and control of the two children be given to the Respondent with reasonable access to the Petitioner, that the Petitioner do pay the Respondent nominal maintenance at the rate of $1.00 per annum and that the Petitioner do pay the Respondent $2,000 per month as maintenance for the two children ($1,000 each).

8.  The Decree Nisi and a consent order was granted on 27^th September, 2011 (“the Consent Order”) pursuant to the Consent Summons and on 14^th November, 2011 the Decree Absolute (“the Decree Absolute”) was granted. 

9.  Then on 1^st December, 2011, the Respondent, acting on her own, applied for leave to appeal against the Decree Nisi and the Decree Absolute.

10.  Subsequently, both parties were granted legal aid and the Summons was re-amended to its present form. 

11.  The Respondent’s case is based on fraud on the part of the Petitioner.  In brief, she alleges that she was deceived into signing the Form 4 and the Consent Summons by the Petitioner in one morning when she was rushing to work.   She thought what she was signing was for the purchase of a plot of land in India. 

FCMC 12016/2010

12.  I need to mention that in the interim, there was a judgment by Her Honour Judge Chu (as she then was) in another case, being CFF v. ZWJ, FCMC 12016/2010 (“the said Judgment’) dealing with the same subject matter, i.e. leave to appeal out of time against decree absolute.  In the said Judgment, the learned judge carefully analysed the relevant provisions and authorities and came to the conclusion that it is not quite certain as to whether the Family Court has the power to grant leave to appeal out of time against the decree absolute:  Para 20 of the said Judgment.

13.  I gathered from the notes and it was confirmed by Ms. Lau that in the mention hearing of the present proceedings on 3^rd September, 2012, Her Honour Judge Chu drew the parties’ attention to the said Judgment and as a result, the Re-amended Summons was adjourned sine die with liberty to restore.  The parties’ legal representatives were urged to consider the said Judgment before restoring the hearing.

14.  I would add that from the said Judgment, it is clear that the parties in that case would be asking the Court of Appeal to clarify as to (i) whether the Family Court has the power to grant leave to appeal out of time against a decree nisi; (ii) whether the Family Court has power to grant leave to appeal out of time against a decree absolute, without the applicant having first obtained leave to appeal out of time against the decree nisi, or whether the application should be to seek a declaration. 

15.  Then on 19^th November, 2012, the Respondent’s Solicitors restored the application for argument before me.

The Hearing of 24^th January, 2013

16.  Against this background, at the commencement of the hearing, I made it clear that I expected counsels to address me on the jurisdictional point.  I expressly invited counsels to address me on the legal issues raised by the learned judge in the said Judgment.  To my surprise, the reply was that when Ms. Lau was preparing for the hearing, she was labouring on the belief that the jurisdictional point had been resolved.  Obviously, it was not the case as otherwise the application would not have been adjourned sine die. 

17.  As can be seen from the skeleton submissions of the counsels, it seems to me that the jurisdictional point has been left out.  I drew the parties’ attention to 2 Court of Appeal judgments, being L v. L, CACV 98/2010 (date of judgment:  2^nd June, 2010) and LCM v. CYY, CACV 445/2002, (date of judgment:  3^rd June, 2003) which might be of assistance. 

18.  I then stood the case down for the parties to consider the jurisdictional point.  When the hearing resumed, Ms. Lau applied to have the application adjourned sine die.  She took the view it is arguable that the Family Court has no power to grant the leave required as regards the Decree Absolute and the Respondent could go straight to the Court of Appeal.  She therefore asked to have the whole Re-amended Summons adjourned sine die.  Since the Court of Appeal might take a different view, in order to play safe, she did not apply for leave to withdraw.

19.  On the other hand, Mr. Surman applied for a dismissal.  He argued that if the application is dismissed, legal aid would come to an end.  If the Respondent re-applies for legal aid, the Director of Legal Aid may take the view that there is no merit in the application and it is a waste of public money since the parties would have divorce on the ground of two years separation anyway.  Further, if the Respondent’s application in the Court of Appeal is unsuccessful, she can always ask for a variation of the maintenance order. 

20.  I accept that the jurisdictional point is not an easy one but it is exactly for this reason and for the reason that there is a pending appeal in another case that the present application was adjourned sine die.  Before the Respondent decided to restore the application, she should have satisfied herself that the jurisdictional point had been resolved and be prepared to assist the court in the hearing, but unfortunately, it was not the case.

21.  In my view, what the Respondent should have done and what she should do now is to wait for the outcome of the pending appeal.

22.  Having said that, I do not think the application ought to be dismissed.  The Respondent’s ground is fraud on the part of the Petitioner.  This is a serious allegation which, if successful, would undermine the foundation of the proceedings.   I am not going to deal with the fact-sensitive issues since I have not heard counsels’ arguments on these.  Suffice for me to say is that, in my view, the Respondent should be given a chance to argue on the merits of her case.

Order

23.  I will therefore allow the Respondent’s application to have the Re-amended Summons adjourned sine die with liberty to restore. 

Costs

24.  Mr. Surman asked for costs of the hearing. 

25.  Ms. Lau argued that the proper costs order should be no order as to cost for the reasons that first, both parties are legally aided and secondly, the Petitioner also agreed to have the hearing restored.  After having read the parties’ correspondences, I do not think the Petitioner should be taken to have agreed to the Respondent’s stance regarding the jurisdictional point.  In any event, according to Her Honour Judge Chu’s order dated 3^rd September, 2012, either party has the liberty to restore the hearing.  Further, as I said, the Respondent, as the applicant, should have prepared to deal with the jurisdictional point.

26.  On reflection, as both parties are legally aided, I am of the view that the proper costs order should be no order as to costs.  However, for the reasons that I have set out, I have no doubt that the hearing is unnecessary and the application should not have been restored.  I will therefore give legal aid taxation to the Petitioner only.  I order that there be no order as to costs in respect of the hearing and that the Petitioner’s own costs to be taxed according to the Legal Aid Regulations.