LEE CHENG MEI YING v. LEE CHOW HUNG

Headnote

                Order excluding from the matrimonial home former husband who still hold joint interest therein, set aside in the particular circumstance.

                Jurisdiction to make such an order discussed.

                        see Wilde v. Wilde [1988] 2 FLR d3

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REASONS FOR JUDGMENT

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Sir Derek Cons, V.P., delivered the judgment of the court:

1. On the 15th of this month we allowed an appeal by Lee Chow hung ("the husband"),   setting aside, on undertakings given by him through his counsel, an order made by judge Chism on 2nd January. that the husband move out of what had been, until the dissolution of the marriage on the 11th April 1990, the matrimonial home in Hip Wo Street, Kowloon. We said we would hand down our reasons later, which we now do.

2. The husband married Lee Cheng Mei Ying ("the wife") on 24th September 1975. There are two children of the marriage, a boy now fourteen-and-a-half and a girl about thirteen. The flat in Hip Wo Street, which has two bedrooms, a living room and the usual facilities, was purchased in their joint names in May 1984 for Hk$237,300, with the help of a mortgage for Hk$210,000. Following the dissolution of the marriage, and pending the result of proceedings for ancillary relief, the husband and wife continue to reside there with the two children of the marriage, the husband using the spare bedroom as his own. The wife says that she shares the other bedroom with the two children; the husband says that the son sleeps in the living room, which seems more likely in the circumstances and is supported by photographs. The wife has been granted custody of both children. During the day she works as a clerk. The husband is a telephone engineer. He pays the wife Hk$2,000 per month as maintenance for the children, with a nominal HK$1 per annum for herself, and all the outgoings for the flat.

3. On 11th December, i.e. some nine months after the divorce, the wife issued a summons asking that the husband be directed to vacate the former matrimonial home within seven days from the order and be restrained from returning to reside there until further order of the court. Annexed to the summons was a notice that she intended to apply for more permanent relier. We understand from Miss Kwan, who appears for the wife, that in accordance with the practice in the Family Court, the notice was intended and would be understood as merely an application for directions. Indeed that was how the judge dealt with it, by an adjournment pending a valuation of the flat. We note in passing that a valuation report was made on 8th February, but the proceedings have not yet been restored.

4. In her affirmation in support of the temporary relief the wife alleged that it had become impossible for the two children and herself to continue to share the premises with the husband because he returned home every evening after midnight and kept them all awake until about 3 a.m., being noisy about the flat, turning his television set full on or singing to a newly acquired and amplified karaoke system. She complained of headaches and constant exhaustion making it difficult for her to cope with her work. Such nocturnal activities were strongly denied by the husband, who pointed to his heed to leave home for work-at 7:15 in the morning Monday to Saturday and evening duties as vice chairman of the Neighbourhood Mutual Aid Committee. He alleged that even if he did watch television in his tiny bedroom, he put on headphones to avoid being a nuisance, and that he had not purchased a karaoke system with amplifier.

5. The formal order drawn up and filed by the Director of Legal Aid acting for the wife recites only that the judge heard senior legal aid counsel for the wife and counsel for the husband. It does not recite that he read either of their affirmations. We accept from him that in fact he did so before the hearing commenced, together with all the other documents in the court file, and regret that this is another example of lack of care on the part of those responsible for drawing up and approving draft orders.

6. Leave to appeal was refused by the judge on 18th January: granted by a single judge of this court oh 7th February. Nevertheless, not until the very end of the month did solicitors for the husband, in order to comply with Order 59 rule 9(f), write to the judge's clerk asking for:

"the transcript of the official shorthand note, if any, of the order of the court below or, in the absence of such note, the judge's note of his reasons for making the order at your earliest convenience".

7. We do not think that this request can have been passed on to the judge; partly because, if so, it is unlikely in the circumstances that he would have refused to comply, if necessary, with the assistance of Counsel's notes; partly because he would then have been obliged to record his reasons in writing by s. 60 of the District Court Ordinance, Cap. 336; and partly because from the correspondence which ensued it would seem that the request was automatically refused by his staff in reliance upon a letter written by the Registrar of the Supreme Court to the Secretary-General of the Law Society on 28th March 1988 but which, with the greatest respect to the judge's staff, has no relevance to a judge's reasons.

8. Unfortunately counsel were hot able to agree on a note to be submitted to the judge - see Practice Direction 1st June 1983 - but his reasons appear fully from comments he was good enough to supply at our request for the second day of the appeal. He notes that:

"3.         Mr. Lee (for the husband) submitted that there were no reasonable grounds to order (the husband) to leave. I disagreed and said that it was quite obvious that, a year after the decree nisi I had been granted, the parties and the two children should still be sharing a flat of 430 square feet was wholly unsatisfactory"

9. We would respectfully agree with the judge's comment, remarking only that the delay would appear to be due to the wife's lethargy in pursuing her claim for ancillary relief and that in so many instances when marriages break up it is impossible to find permanent, let alone temporary relief that is wholly satisfactory.

10. The crucial reason for his order is to be found in para. 5:

"I was satisfied that (the husband) could afford to get somewhere else and that the time had come for him to move."

Then, although observing that the English practice was to allow 28 days to move out, he felt able to allow a longer period in the instant circumstances, "provided it was finite". In the event he allowed 60 days - subsequently staying his order until the outcome of this appeal- which indicates that he cannot have considered the wife's position "desperate", an adjective used by Ormrod, L.J., in Bassett v. Bassett [1975] Fam. 76 in the course of a judgment which, lime those of Megaw, L.J. and Cumming-Bruce, J., dealt in some detail with the proper approach of a judge in like circumstances. The learned Lord Justice also used the words "impossible" and "intolerable", although he deprecated their continued use a few years later in Walker v. Walker [1978]1 WLR 533 on the ground that they had been "mis-used in argument far too much". He preferred then the approach suggested in the same case by Geoffrey Lane, L.J., as he then was, @ p 536:

11. With respect to the judge below he did not do so. He concentrated only on the husband's ability to pay for other accommodation and the length of time he had already stayed. It is possible he had in mind as well that the husband would eventually be excluded. This is, of course, a proper factor for consideration: Bassett @ p. 82H. But it was in our view an error of principle to take so narrow a view of the situation and one which also led the judge to a plainly wrong conclusion. What was fair, just and reasonable in the circumstances was the ensuring of reasonable peace and quiet in the flat during normal sleeping nours until such time as a permanent decision could be made. That situation could readily nave been obtained, without the drastic act of excluding the husband, by means of appropriate undertakings which, both parties having declined an opportunity which may have enabled a permanent solution to have been found within a few days of our decision, we thought proper to obtain from him then.

12. That conclusion disposed of the appeal and it became unnecessary to decide the question we had raised at the outset, namely, was there jurisdiction to grant the order in the first place.

13. We pause here to acknowledge the swift and able reaction of Miss Kwan to our query and say that we were grateful for her assistance.

14. By s. 21L of the Supreme Court Ordinance, Cap. the High Court may:

"by order (whether interlocutory or final) grant an injunction ... in all cases in which it appears to the High Court to be just or convenient to do so".

There is no similar authority for the District Court, to which matrimonial causes are assigned by s. 10A of the Matrimonial Causes Ordinance, Cap. 179. But s. 48(1) of the District Court Ordinance, Cap. 336, provides:

"The Court, as regards any cause for the time being within its jurisdiction, shall in any proceedings before it -

15. The legislation in England and Wales is effectively identical and in hone of the English Court of Appeal cases to which we have been referred is there any suggestion that the lower court, as such, had no jurisdiction to exclude former spouses who held a joint interest in the matrimonial home. The stumbling block in for example, Waugh v. waugh [1982] 3 FLR 375 and O'Malley v. O'Malley [1982] 1 WLR 244, was the lack of an existing legal or equitable right oh which to founts the injunction. However, where infant children of the marriage still remain, the block can be circumvented by the use of the inherent Jurisdiction: Quinn v. Quinn [1983]  4 FLR 394 where it was said:

16. The judgment of Ormrod, L.J., from which that passage is taken and with which Dunn, L.J., and Sir Sebag Shaw simply agreed, made little reference to authority.

17. In a subsequent case, Wilde v. Wild [1988] 2 FLR 83, Purchas, L.J. felt it:

"necessary to trace the origin of the recognition of the inherent jurisdiction in the court to intervene where children are involved."

and after reviewing the authorities which Ormrod, L.J., must nave had in mind in Quinn, concluded:

"The assumption of an inherent jurisdiction to protect the interest of children ... in the cases cited seems almost certainly to have been based upon the view of the judges originally exercising wardship jurisdiction in the Chancery Division. Although normally wardship suits in Chancery related to minors with property, the inherent jurisdiction was not so confined. This is clear from the judgment of Lord Cottenham LC in Re Spence (1847) Z Ph. 247, at p. 252:

 

'I have no doubt about the jurisdiction. The cases in which this court interferes on behalf of infants are not confined to those in which there is property. Courts of law interfere by habeas for the protection of the person of anybody who is suggested to be improperly detained. This court interferes for the protection of infants qua infants by virtue of the prerogative which belongs to the Crown as parens patriae and the exercise of which is delegated to the Great Seal.' "

But considering that he was bound by Quinn thought it:

"neither appropriate nor necessary ... to consider this possible source of jurisdiction".

In the same case Bingham, L.J., put his view in this way:

18. In Re Spence was an appeal against an order made on the petition of a father requiring the two trustees of his marriage settlement to deliver up to him the infant children of the marriage whom the wife had taken away three years earlier and were then apparently out of the jurisdiction. Being satisfied that the one had nothing to do with the removal and that, as to the other, there was no useful course the court could take, the Lord Chancellor set aside the order. His observations quoted in Wilde were in response to a preliminary objection that upon the petition, as distinct from powers at common law upon habeas corpus, the court had no jurisdiction unless there was some property to be administered for the infants' benefit. Thus, in the circumstances, the observations do not assist in defining the criteria by which the heed for the court's protection is determined or the extent to which the court may enforce that protection against the proprietary interests of persons who may perhaps be complete strangers to the infants; or in deciding whether a father, whose parental rights are now restricted to limited access to his children, does or does not fall within that category.

19. No argument had been addressed to us on these particular and difficult questions, nor, save for a pare submission, on the alternative approach canvassed, but not embraced, by Purchas, L.J., in wilde, that resort could be had to the statutory authority of the court, relying upon the wife's need to fulfil her function as being the person in care and control of the children under an order of the court. We therefore preferred to defer consideration until such time as it should be necessary and we could have the benefit of full argument.

20. In handing down these reasons we make an order nisi that the husband is to have his costs of the appeal and that the wife's costs should be taxed in accordance with the Legal Aid scheme.