MARTYN HUGH THOMSON v. NOREEN KATHERINE MCMULLEN THOMSON

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JUDGMENT

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Sir Derek Cons, V.P.:

1. This is an appeal, brought long out of time with the leave of this court, against an order made by the late judge David Lee on 11th August 1989. He directed, inter alia:

2. By her appeal the wife asks this court to delete that part of the order which limits its effect to three years and to add that it shall endure "during joint lives, while the Respondent remains unmarried and until further order".

3. The parties were married in England in December 1972, coming to Hong Kong three years later. The husband was, and still is, a pilot with Cathay Pacific Airways. In December 1985 the wife obtained a decree of judicial separation. In November the following year ancillary relief was settled by an order of Judge Hansen which, by a series of undertakings and agreements recited therein, and by the provisions of the order itself, expressed to be by consent, dealt comprehensively with the family properties and finances and made arrangements for the two children of the marriage, a girl then aged 12 and a boy aged 10. The order recited at the outset that the provisions referred to thereafter were "accepted in full and final settlement of all claims (the parties) may have against each other for both capital and income". In particular the order provided for a lump sum payment to the wife of HK$1.4 million, payable by instalments and subject to her vacating the matrimonial home at Hong Lok Yuen in accordance with her undertaking, and for periodical payments at a rate of HK$14,500 "during their joint lives or until the Petitioner's remarriage or continuous cohabitation or further order", linked to the annual increase (if any) applied by Cathay Pacific Airways to the husband's salary. In May 1987 the husband obtained a decree of divorce (made absolute some eight weeks later) and at the same time Judge Sharwood, we understand again by consent, made an order for ancillary relief which simply incorporated the terms of the earlier order made by Judge Hansen.

4. I may pass lightly over subsequent proceedings before Judge Blackwell and go directly to July 1989, mentioning only that in the meantime the husband had remarried, the wife remaining in Hong Kong in rented accommodation, but spending a considerable amount of time in England where the children, both at boarding school, presented problems of many kinds. By then the wife's lump sum had been depleted to a considerable extent.

5. Before Judge Lee on 11th July were the husband's application for custody, which was then solely in the wife, and an application on her behalf for a lump sum to provide for the purchase of a suitable home for the children and the transfer to herself, as trustee for them, of the husband's property in Hong Lok Yuen, i.e. applications under s. 5 and 6 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. For herself she also requested:

6. The judge presumably considered the several affidavits which had been filed on both sides and then, over a period of two-and-a-half days, heard evidence from the husband and wife and the two children, whom he also interviewed privately. He entertained as well submissions from Mr. Pilbrow, who then appeared for the wife, and from the husband in person. There was discussion as to the wife's settling in Switzerland, where the husband has accommodation in a mountain village, and of an offer on his part to provide accommodation in England for a period of 10 years.

7. At the conclusion of the hearing the judge dealt with all those aspects of the proceedings which related directly to the welfare of the children. However he adjourned the application of the wife to 11th August for her to reconsider her position. According to a letter written immediately afterwards by Mr. Pilbrow, and which has been admitted in evidence in this appeal by agreement, the judge had:

8. Shortly before the resumed hearing the wife filed an affidavit in which she rejected, for reasons which she then gave, the judge's suggestion that she and the children should live in the future in England. She acknowledged his belief that it would not be in their best interest to establish residence in Switzerland and accepted that she could not reasonably rent or purchase property in Hong Kong. She finally deposed that she had come to the conclusion that the most sensible place for herself and the children to reside was therefore in South Africa, where she has three brothers with families established in a suburb of Capetown. She further deposed that from enquiries made with their assistance she understood that she would be able to purchase a suitable home within the balance of her remaining capital and then she set out in detail the expenses that she thought would be reasonably incurred in living there. She said that she had also investigated the question of renewable visas for the children so that they could spend their school holidays there and she had enquired as to discounts to which they would, through the husband, be entitled with regard to airfares.

9. Unfortunately, there can be no corrected transcript to the judge's manuscript record of the proceedings in 1989 and what we do have is in parts not easy to understand. Nor is the manuscript itself easy to decipher. But this much is clear, that at the resumed hearing, at which the wife as well as the husband appeared in person, she reaffirmed her intention to go to South Africa and that the husband, although basically not happy with the idea, made submissions to the judge on that basis, in particular in response to questions put by the judge, at one stage with the apparent suggestion that the period of payments might be limited.

10. I mention this aspect because I find it of importance in understanding, as best as I can, the judge's intention in making that part of the order which is challenged, a question which has been extensively canvassed before us. No challenge has been made to the rest of the order, which merely dismissed the wife's claim under Section 5 and 6 of the Matrimonial Proceedings and Property Ordinance or dealt with particular matters relating to the children.

11. It is well settled that in Hong Kong, as opposed to the position that earlier obtained in the United Kingdom, a judge is entitled to terminate the claim of a wife, or husband where appropriate, to periodical payments even though the wife is unwilling to give her consent, i.e. a judge may, if he thinks it right so to do, impose a clean break of his own motion, thereby denying the wife any further possibility of reapplying in this respect: Ngao Tang Yau Lin v. Ngao Kai Suen [1984] HKLR 310.

12. It is suggested by Mr. Payne, who now appears for the wife, that the order in the present instance is of that kind; that although it commands the husband to make payments for a period of three years thereafter, it effectively determined the wife's rights as from its own date and precludes her from making any subsequent application to vary, even within the three-year period. He relies strongly on the absence of the words "or further order".

13. For my part I am unable to accept that contention. Without the need for any words such as "or further order", s.11 of the Ordinance gives the wife a right to apply for the variation of any order that continues in her favour, i.e. in the present instance, up to 31st October 1992. I do not accept that the words "and thereafter to cease" can have the effect of barring her recourse to the courts some three years earlier.

14. Mr. Payne has addressed to us interesting arguments this morning on the position in England and Wales by reference to the case of Morris v. Morris [1915] P 194. With every respect I find no help in that approach, the English equivalent to our s. 11 having been differently interpreted in the courts of that jurisdiction and new legislation enacted there, presumably as a result of the court's decision.

15. Once the true position is accepted it becomes that much easier to appreciate what the judge probably had in mind. I cannot of course be certain, because he made no record and the parties being then in person took no note of the oral reasons he gave and of which he made no note himself. But it seems likely to me that he imposed a time limit to encourage the wife to pull herself together and put an end to what until then appears to have been an aimless downward drift, giving her sufficient means to make a good start and being aware that she could come back within the time limit if affairs genuinely did not work out in South Africa as the judge then hoped. This was a matter essentially for his own judgment. I can discern no error in principle nor, in the circumstances, am I persuaded that he was plainly wrong.

16. I turn now to the submission that the judge was not entitled to make the order in the absence of a notice by the husband in Form 8 appended to the Matrimonial Causes Rules, as is required, having regard to the definition of "ancillary relief" in Rule 2(2), by Rule 68(3). Mr. Payne does not press for slavish adherence to the actual wording of the form, probably having in mind Rule 3 which would import into the proceedings the provisions of order 2 of the Rules of the Supreme Court, but he insists that the wife should have been given adequate notice that the final termination of periodical payments in her favour was under consideration. I would agree that that seems in accord with the principles of natural justice.

17. It is clear from the judge's manuscript note that any idea of that kind came not from the husband, but from the judge himself, and that it was raised for the first time in the morning of the resumed hearing during the course of the husband's submission. There is nothing in the wife's reply thereto to suggest that she even understood the point. But to my mind she suffers no actual injustice for she still has ample opportunity to invite the court below to reconsider the position in the light of her apparently never having gone to South Africa at all, as no doubt the husband would were the appeal to be allowed. I am not satisfied that this would put her, as suggested by Mr. Payne this morning, in any worse position than she otherwise would be; and for these reasons I would for my part dismiss the appeal.

Kempster, J.A.:

18. I agree. The order of 11th August 1989 cannot, in my view, be construed either as a dismissal of the wife's application for periodical payments or as amounting to a breach of the rules of natural justice.

Clough, J.A.:

19. I found this is a difficult matter which has not been made any easier by the absence of a clear record of the proceedings below. The absence of a formal cross-application by the husband or any indication of a clear warning to the wife by the judge of the order he contemplated making awarding her increased periodical payments but for a limited period has caused me serious concern because a question of a breach of natural justice is involved. But in the end I have come to the firm conclusion that the view of My Lord Cons on this question is one which in all the special circumstances of this case is one with which I should concur and I accordingly agree that this appeal should be dismissed for the reasons given by My Lord Cons.