DRTMGVC v. WWX

FCMP 74 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL PROCEEDINGS

NUMBER 74 OF 2012

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J U D G M E N T

(Leave Application under Part IIA and substantial connection)

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Introduction

1.  This is an application by the Applicant husband under Part IIA of the Matrimonial Proceedings and Property Ordinance, Cap 192 (MPPO) for leave to issue a substantial application in Hong Kong for financial relief.

Background

2.  The background to this application is rather convoluted. Initially the husband issued an originating summons under the Guardianship of Minors Ordinance (GMO) dated the 12 April 2012 seeking inter alia financial provision for the two children of the family and general ancillary relief. In response to this the Respondent wife issued an inter partes summons dated the 20 June 2012 seeking to stay the husband’s application on the premise that the court did not have jurisdiction to hear the matter or, in the alternative that Hong Kong was not the appropriate forum to deal with the matter. She said that the appropriate jurisdiction was Belgium.

3.  On the 25 February 2013 the husband issued an ex parte application for leave to proceed under Part IIA, immediately before the adjourned hearing in relation to both the originating summons under the GMO and the summons on forum/jurisdiction. On that occasion counsel for the wife argued that the husband’s original GMO application was misconceived and that instead the matter should more properly proceed under the new Part IIA provisions. At the time I agreed with her analysis of the situation and the originating summons dated the 12 April 2012 was dismissed with costs to the Respondent on a party and party basis to be taxed if not agreed. However the wife’s summons on jurisdiction/forum was not dismissed at the same time. Consequently given the way in which matters had evolved up until that point both the husband’s ex parte application for leave dated the 25 February 2013 and the wife’s summons on jurisdiction/forum were adjourned to the 2 May 2013 for argument. On the 2 May further difficulties arose with respect to the evidence and both matters were again adjourned to the 8 October 2013.    

The correct approach

4.  The Hon Mr Justice Poon sets out the correct approach to Part IIA applications in C v C HCMC 3 of 2011. He says as follows:

C.2. Outline of Part IIA

13. Section 29AB(1) empowers the court to grant financial relief after a marriage had been dissolved or annulled in a foreign country and such divorce and annulment is recognized as valid by the law of Hong Kong.

14. A filter mechanism is established in section 29AC:

“(1) No application for an order for financial relief may be made unless the leave of the court has been obtained in accordance with rules of court.

(2) The court must not grant leave unless it considers that there is substantial ground for the making of an application for an order for financial relief.

(3) The court may grant leave under this section despite the fact that an order has been made by a competent authority outside Hong Kong requiring the other party to the marriage to make any payment or transfer any property to, or for the benefit of, the applicant or a child of the family.

(4) Leave under this section may be granted subject to any conditions the court thinks fit.”

15. When leave is granted under section 29AC, the court may make interim orders for maintenance under section 29AD.

16. Section 29AE sets out the formal jurisdictional requirements thus:

“(a) either of the parties to the marriage was domiciled in Hong Kong—

(i) on the date of the application for leave under section 29AC; or

(ii) on the date on which the divorce, annulment or legal separation obtained in the place outside Hong Kong took effect in that place;

(b) either of the parties to the marriage was habitually resident in Hong Kong—

(i)     throughout the period of 3 years immediately before the date of the application for leave under section 29AC; or

(ii)   throughout the period of 3 years immediately before the date on which the divorce, annulment or legal separation obtained in the place outside Hong Kong took effect in that place; or

(c) either of the parties to the marriage had a substantial connection with Hong Kong—

(i) on the date of the application for leave under section 29AC; or

(ii) on the date on which the divorce, annulment or legal separation obtained in the place outside Hong Kong took effect in that place.”

17. Section 29AF imposes a duty on the court to consider whether Hong Kong is the appropriate venue for the application:

“(1) Before making an order for financial relief, the court must consider whether in all the circumstances of the case it would be appropriate for the order to be made by a court in Hong Kong, and if the court is not satisfied that it would be appropriate, the court must dismiss the application.

(2) The court must in particular have regard to the following matters—

(a) the connection that the parties to the marriage have with Hong Kong;

(b) the connection that those parties have with the place where the marriage was dissolved or annulled or where they were legally separated;

(c) the connection that those parties have with any other place outside Hong Kong;

(d) any financial benefit that the applicant or a child of the family has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a place outside Hong Kong;

(e) if an order has been made by a competent authority outside Hong Kong requiring the other party to the marriage to make any payment or transfer any property to, or for the benefit of, the applicant or a child of the family—

(i) the financial relief given by the order; and

(ii) the extent to which the order has been complied with or is likely to be complied with;

(f) any right that the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any place outside Hong Kong and, if the applicant has not exercised that right, the reason for that;

(g) the availability of any property in Hong Kong in respect of which an order for financial relief in favour of the applicant may be made;

(h) the extent to which any order for financial relief is likely to be enforceable;

(i) the length of time that has elapsed since the date of the divorce, annulment or legal separation.

5.  In so far as the leave application is concerned he added:

“(2) The affidavit in support must give particulars of the judicial or other proceedings by means of which the marriage to which the application relates was dissolved or annulled, or by means of which the parties to the marriage were legally separated, and must state, so far as is known to the applicant—

(a) the names of the parties to the marriage and the date and place of the marriage;

(b) the occupation and residence of each of the parties to the marriage;

(c) whether there are any living children of the family and, if so, the number of the children and each child’s full names (including surname) and date of birth or, if it be the case, that he or she is over 18;

(d) whether either party to the marriage has remarried;

(e) the full particulars of each party’s property and income; and

(f) the grounds on which it is alleged that the court has jurisdiction to entertain an application for an order for financial relief under section 29AB of the Matrimonial Proceedings and Property Ordinance (Cap 192). (3) The registrar must fix a date, time and place for the hearing of the application by a judge in chambers and give notice of the hearing to the applicant.”

6.  In this instance the application was treated as ex parte on notice given the way in which the matter had evolved. There was however another difficulty – i.e. the inter play between an application for leave and the forum/jurisdiction summons. To that end I was referred to the leading English authority on the subject namely Agbaje v Agbaje [2010] UKSC 13 and in particular to the following paragraphs from Lord Collins who said as follows:

49. But the forum non conveniens principles were developed to deal with cases in which it was necessary to decide which of two jurisdictions was the appropriate one in which proceedings were to be brought.  Section 16 does not impose a statutory forum non conveniens test.  It does not require the court to determine the only appropriate forum where the case may be tried more suitably for the interests of the parties and the ends of justice.  No choice between jurisdictions is involved.  The whole basis of Part III (our Part IIA) is that it may be appropriate for two jurisdictions to be involved, one for the divorce and one for ancillary relief.

50. Many of the factors in section 16(2) have much in common with those which would be relevant in a forum non conveniens enquiry, but they are not directed to the question of which of two jurisdictions is appropriate.  They are directed to the question whether it would be appropriate (which is the meaning of the word conveniens in forum conveniens) for an order to be made by a court in England and Wales when ex hypothesi there have already been proceedings in a foreign country (including proceedings in which financial provision has been made).  Little assistance can therefore be obtained from the stay cases (and still less from the anti-suit injunction cases) in the Part III exercise.  The task for the judge under Part III is to determine whether it would be appropriate for an order to be made in England, taking account in particular of the factors in section 16(2), notwithstanding that the divorce proceedings were in a foreign country which may well have been the more appropriate forum for the divorce.

I accept this in its entirety and agree that the same approach should be adopted in Hong Kong.

The background to the marriage and the parties divorce     

7.  In this instance, although there is much dispute about many aspects of the case, what is not in dispute is that the parties’ marriage was dissolved in Belgium in March 2010. The wife is ethnically Chinese and the husband is Belgian. They met in China and married in December 1996 in Shenzhen. The wife has a child by a previous relationship, R, who lived with the parties after marriage and they had two subsequent children, both girls, who are now aged 13 and 14 years old respectively. The wife worked and supported the family, whereas by all accounts the husband was a house husband. Upon marriage the wife became a Belgian national and since then she has held a Belgian passport. Consequently she gave up her household registration in China. She holds a Registration Form of Temporary Residence for visitors in China and on her case she is ordinarily resident in China. She does not hold Hong Kong ID either on a permanent basis or otherwise and comes to Hong Kong on a visitor’s visa. The husband and the children likewise are Belgian nationals. They do not have any form of Hong Kong ID, save that the elder child, R now has a Hong Kong ID as she is currently studying in Hong Kong.

8.  It seems that in or about 1999 the family moved to Hong Kong. It is the wife’s case that she continued thereafter to spend most of her time in Shenzhen where she then operated a number of businesses. The husband says that he and the girls were based in Hong Kong where they attended school. The marriage was clearly in some difficulty for a significant period of time and in 2002 the husband issued divorce proceedings in Hong Kong. There is also reference to Wardship proceedings. The parties subsequently reconciled and I have been taken to a hand written note that the husband claims formed the basis of that reconciliation. The wife however says that she did not fully understand or appreciate the significance of that note. In any event in September 2009 the husband left Hong Kong taking the two younger girls with him. He says that he was forced to do so because the wife had not paid the rent. The wife for her part says that he left without any form of discussion and that he has since prevented her from having any form of meaningful contact with the two younger girls. The husband commenced divorce proceedings in Belgium in October 2009. The wife maintains that she was not served and indeed that she was not made aware of these divorce proceedings until after the Hong Kong proceedings were commenced. She has since issued an application in the Belgium courts seeking appropriate access and is appealing a decision made in that respect earlier this year. It seems that the husband did not apply for financial support from the wife in Belgium. He says that he was unable to do so because the wife was not in Belgium. It now seems clear that it is possible for the husband to apply for financial relief in Belgium but that he has simply chosen not to do so. He says that enforcement of any orders made in Belgium may be difficult. The wife for her part has undertaken to participate in the Belgium proceedings. The divorce was pronounced on the 4 March 2010. The husband was granted full parental responsibility.

9.  Given this factual matrix it seems to me that in seeking to determine whether or not leave should be granted to the husband to issue substantive proceedings for ancillary relief the following questions need to be posed and answered:            

Question

Does the court have jurisdiction to entertain the application? In particular does either the husband or the wife have a substantial connection with Hong Kong either at the date of the application for leave i.e. as at the 25 February 2013 or on the date on which the divorce in Belgium took effect i.e. on the 4 March 2010?

Introduction

Although the husband initially argued that the wife satisfied all three jurisdictional limbs – i.e. that she was domiciled in Hong Kong and that she was also both habitually resident and had a substantial connection with the territory, by the time the matter came before me for hearing the husband’s stance was that he would proceed simply on the basis of substantial connection i.e. that the wife has or has had a substantial connection with Hong Kong on the relevant dates.

The law on substantial connection

10.  In S v S [2006] 3 HKLRD 751, Hartmann J, as he then was said the following when discussing substantial connection in the context of divorce proceedings:

“13. In my view, when considering the meaning and extent of the phrase, it is important to recognise that the Legislature saw fit to qualify it by the indefinite article “a”. It is not therefore necessary for a petitioner to demonstrate that his substantial connection with Hong Kong is the only substantial connection he has with any jurisdiction or that his connection with Hong Kong is the most substantial connection he has with any jurisdiction. No exercise of comparisons is required. It is sufficient if he demonstrates that, among others perhaps, he has “a” substantial connection with Hong Kong.

14. Increasingly we are living in a world without borders. Capital sums are moved in moments from one side of the world to the other with little or no regard for national boundaries. The Internet is universal. It is commonplace for even the modestly affluent to have homes in two countries. It is no longer only in the world of fiction that successful business people may at the same time live and work in two countries. Section 3(c) is not at odds with this new reality. The subsection recognises that a petitioner who asserts a substantial connection with Hong Kong may also have a substantial connection with one or more other jurisdictions.

15. But, of course, if the Hong Kong courts are to exercise jurisdiction, it must be shown on a balance of probabilities that a petitioner not merely has a connection with Hong Kong but that, bearing in mind the scope and purpose of the Ordinance, the connection is “substantial”.

16. “Substantial” is a plain enough English adjective. We all understand what it means – at least in substance (if I may be excused the play on words). I say that because it is not a word that lends itself to precise definition or from which precise deductions can be drawn. To say, for example, that “there has been a substantial increase in expenditure” does not of itself allow for a calculation in numerative terms of the exact increase. It is a statement to the effect that it is certainly more than a little but less than great. It defines one that is weighty or sizeable.

17. It speaks for itself, I think, that an artificially constructed connection will not be a substantial one. A connection must be real in the sense, for example, that it is not engineered for temporary tactical advantage. It was not the intention of the Legislature (in passing s. 3(c) into law) to create a convenient off-shore divorce jurisdiction. As it has been said in an earlier authority, the subsection is not intended for “birds of passage”.

18. As the jurisdiction looks to the determination of matrimonial proceedings, a material factor will be whether the parties to the marriage have lived in Hong Kong and, if so, how long they have lived here as man and wife. But those factors will not necessarily be determinative. In each case the factors to be considered will be different and the weight to be given them, in the factual context of each case, will no doubt be different too.

19. In summary, whether – for the purposes of the Ordinance – a connection is substantial or not can only be determined on the basis of a broad objective assessment, taking all relevant factors into account.”

11.  It is clear in this case that both parties have some connection with Hong Kong. The question is whether or not it is a “substantial connection” sufficient to provide the husband with the jurisdictional basis necessary to issue a Part IIA application.  

12.  In summary neither party has permanent residency in Hong Kong. The husband lived in Hong Kong with the children from 1999 (in the case of R and the elder child M) and from the birth of the second child until 2009. However none of them ever acquired a Hong Kong identity card. On the face of the documents it seems that the wife is ordinarily resident in Shenzhen and the husband is ordinarily resident in Belgium. The wife does come to Hong Kong on a regular basis – but certainly her travel records show that from February 2010 – end of 2011 she only came in for the day, always entering and leaving within 24 hours. This pattern later changed, although she says that this was because she was seeking medical treatment for depression (which has since been substantiated by Dr’s reports) and that she needed to spend more time in Hong Kong because of these proceedings. The wife travels to Hong Kong on a visitor’s visa and cannot work here. The husband points to the fact that the wife has owned property in Hong Kong the past and that significant property interests have been placed in the name of the elder daughter R and other family members. The wife admits to holding one property in her sole name. She also does not deny renting another. Whatever the truth of the situation however, even if the wife or her family have made investments in the territory – is that sufficient to give the husband the necessary jurisdictional basis to issue proceedings? The husband suggests that there is not enough evidence to fully establish the wife’s residency status. With respect I do not agree. I accept that the situation is as described by the wife. Thus although the wife does have a connection with Hong Kong there can be no doubt that she is in effect a Belgian national of Chinese origin who spends most of her time living and possibly working in Shenzhen.

13.  The legislation requires the courts to look specifically at two dates. As at March 2010 it seems that the wife was living and working in Shenzhen and coming to Hong Kong on a regular basis for day trips. The wife also purchased a property in Hong Kong in her name in March 2010. She continues to hold that property. There are two Hong Kong companies in which the wife is a director. However I accept that these are not substantial companies. As at the 25 February 2013 the only difference seems to be that the wife was by that stage spending longer periods of time in Hong Kong seemingly for medical treatment and in order to prepare for these proceedings. She also spent time with R who is now studying in Hong Kong. Throughout these periods the businesses which the husband claims are operated by the wife remain in Shenzhen. It should be noted that the wife for her part now says that these businesses are family businesses and that because of her ill health they are now run by other family members and in particular by her brother. However they are not and never have been Hong Kong companies. The issue of enforcement remains whether the husband proceeds in Hong Kong or in Belgium.       

Conclusion

14.  Given all of these factors it seems to me that the husband’s application for leave must be refused on the basis that he does not have jurisdiction to issue the application.

15.  For the avoidance of doubt the wife’s summons on jurisdiction/forum shall also be dismissed. There shall be no order as to costs in relation to that application.   

16.  Costs shall follow the event in the normal way. The husband shall pay the wife’s costs of and occasioned by this application on a party and party basis to be taxed if not agreed.