CHAN CHUN HON v. CHAN LAM LAI BING SHIRLEY

IN THE COURT OF APPEAL

1994, No. 43
(Civil)

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J U D G M E N T

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Penlington, J.A.:

1. This is an appeal from the judgment of Deputy Judge Eccleton in which he granted a non-molestation order against the appellant wife in this matter and also an "ouster" order whereby she was excluded from the matrimonial home, a three bedroom flat in Repulse Bay. The judge had found to be so notwithstanding the fact that the wife had never lived in the flat and that finding is not challenged.

2. The Deputy Judge based his decision on section 3 of the Domestic Violence Ordinance, Cap. 189, which provides that an order may be made excluding a party from the matrimonial home or from a specified part of the matrimonial home and that the court before making or refusing an order under the subsection must take into consideration the conduct of the parties, their respective needs and financial resources, the needs of any child living in the matrimonial home and to all the circumstances of the case. It is, therefore, a very wide discretion indeed.

3. Here, it is argued by Miss Longmore, counsel for the wife, the judge was wrong in that he placed too much emphasis on the third provision, the needs of any child living in the home, and she relied on the authority of Richards v. Richards (1984) FLR 11 that, while it is an important consideration, it is not, as in other matrimonial proceedings, to be regarded as the paramount consideration.

4. The relevant background circumstances to this matter are unusual. The parties were married in Hong Kong in September 1979 and have one child, a daughter born in February 1982. The wife's family business failed shortly afterwards and the respondent apparently had guaranteed some of its debts and in order to avoid creditors she left the matrimonial home in December 1989, going to live in a hotel. She then went to Taiwan in June 1990 and did not return until December 1983. It is clear that she was not made welcome by the husband who says that at that stage he had decided that the marriage had broken down and he wanted a divorce. He had living with him in the flat his parents, who have a home in Canada, and his brother who is employed in Canada.

5. There is little evidence here of actual domestic violence. There was one occasion when the wife did assault the husband but it does not seem to have been a serious assault and the whole thrust of the husband's evidence was that this was a case of verbal abuse and that the conduct of the wife in relation to himself, his parents and brother and, in particular, to the child of the marriage is such that in their interests, the wife should not be allowed to live in the flat. Adequate arrangements have been made for her to live in a good hotel, at the husband's expense, with access to the daughter. Complaint is made of such behaviour in the home, at the husband's medical clinic and at the Royal Hong Kong Jockey Club.

6. There is no doubt from the authorities that an ouster order, described as "draconian", is not a remedy to be lightly granted. However, the circumstances of the case here are most unusual. The wife has absented herself from the matrimonial home for four years. It may be that this was, as she alleges, at the husband's request but it clearly is an important factor.

7. Following the wife's return the husband left the matrimonial home and stayed away for approximately a fortnight and according to his evidence (he was the only one of the parties to give evidence at the trial) he only returned because of the wife's behaviour towards his family and towards the child which compelled him to return and then to apply for a non-molestation order which was granted on 14th January 1994, the same date that he petitioned for divorce. He was granted on 28th January, by consent, a custody order in respect of the child, the wife having access to the child on his undertaking to pay hotel expenses and for meals and the substantial sum of $30,000 as interim maintenance, the wife to no longer live in the matrimonial home.

8. The trial judge, having heard the husband's evidence, accepted it and the question for us is to see whether he has acted on wrong legal principles in coming to the conclusion he did in granting the order or whether he has on consideration of the evidence and the relevant factors, has come to a conclusion which is plainly wrong.

9. It was argued by Miss Longmore that he has placed too much emphasis on the effect of the wife's presence in the matrimonial home on the child. A social welfare report was obtained which was relied on by the husband. The social welfare officer said:

"She [the daughter] expressed that she loved both Petitioner and Respondent but felt more comfortable to live with Petitioner. The interaction with Respondent in the past two months was a 'nightmare' to her because Respondent was critical to her when she defended Petitioner and became irritated when she told her that Petitioner did not have another woman. Respondent's incessant interrogation annoyed her and made her feel miserable. To avoid being nagged by Respondent, she wished to reduce the contacts with Respondent."

She goes on:

"The child is virtually torn apart being plunged into a conflict of loyalties and found it very difficult to cope with the acute phase of the parents separation, especially when she has a good relation to both parents."

10. The husband's evidence was that because of his wife's presence in the flat, he was unable to have enough sleep and this has affected his work as a medical practitioner.

11. We have been referred to several authorities on which this question has come before the courts, mainly in England. They are of limited assistance because the circumstances in each case vary greatly. In Phillips v. Phillips [1973] 2 All ER 423 for instance, Lord Roskill referred to the dicta of Lord Denning in Hall v. Hall [1971] 1 All ER 762 and said that "such an order [an ouster order] ought not to be made unless the situation is impossible". Lord Roskill said:

"It might perhaps also be said that such an order ought not to be made unless a situation was not only impossible but, as in this case, is quite intolerable."

12. More recently, however, it has been said in Walker v. Walker [1978] 1 WLR 533 that the use of the words "impossible" or "intolerable" should be avoided.

13. Reliance was also placed by Miss Longmore, counsel for the wife here and below, on G. v. J. (1993) 1 FLR 1005 where it was held that while there was no prerequisite for actual physical violence, the correct test was not one of avoiding an overcrowded home and an ouster order should not be made just because the atmosphere with the parties living in the same home was one of tension. Too much emphasis had been placed on the effect of such tension on a child. However there had been no finding at first instance that the child' health had been affected. Here there is such evidence; that mentally she is very disturbed.

14. These are essentially matters for the trial judge to consider and he must make a decision as to whether the effect on the parties and, in my view, the welfare of the child must loom large in those considerations, is such that, having made adequate and indeed generous provisions for the wife, the husband should be obliged to have her in the matrimonial home despite the fact that she has not been there for a period of some four years.

15. Having considered the evidence here and the relevant authorities, I am of the view that the trial judge has not erred in principle and that the evidence was such that he was not plainly wrong in coming to the conclusion as he did; I would dismiss this appeal.

Nazareth, J.A.:

16. From the judgment the ouster order can be seen to have been made upon the following grounds:

1. That in the view of the judge the actions and conduct of the wife went well beyond irritating behaviour or disturbance and that the husband has a very real fear of her. Although there had only been one threat of violence since the return of the wife to Hong Kong, there had been violent behaviour in the past, and the judge considered that the aggressive behaviour of the wife at the Jockey Club, clinic and home, did give rise to an understandable fear on the part of the petitioner;

2. He considered that the husband and the child required the flat for their own use and that reasonable alternative accommodation could be provided for the wife with financial assistance from the husband;

3. He was concerned that the presence of the wife upon the daughter appeared to have had an adverse effect which went beyond having to live amongst, as he put it, tension and quarrels; and

4. He did not believe that the parties could live separately and apart in the same premises.

These are reasons which do not even suggest domestic violence. They have only to be stated to reveal how tenuous the husband's complaints are particularly in the light of the details in his evidence viewed in the light of the circumstances to which Miss Longmore, for the wife, has drawn attention. They can plainly be seen to be somewhat overstated. For instance, it is clear that no sooner had the wife entered the matrimonial home about 23rd December 1993, then the husband left, abandoning her to remain in the flat with his family members who were less than sympathetic, to say the least, without keys to the flat and without money. Her attempts to contact him cannot in that light appear to have been very aggressive. Moreover, the burden of the husband's complaints seem to have been the "scolding", that he says she subjected him to. But that could only have been for a part of the month during which she remained in the flat, and seems to have been caused by the receipt by her of the totally unheralded petition for divorce.

17. For myself, therefore, I should have found it very difficult indeed to have made an ouster order upon those facts. Moreover, I should have thought it desirable to have addressed the criteria in s.3 of the Domestic Violence Ordinance specifically making it clear upon what basis the order was granted. But all that said, I recognise that a judge is not required to give all his reasons, and that this was an oral judgment given immediately after a long Saturday morning hearing. However that may be, the granting of an order is not my task; the latter is simply a restricted review of the judge's order on appeal.

18. The ouster order, I would emphasise, was made by the judge in the exercise of his discretion. That I may have exercised that discretion in a different way from the judge, is not reason enough to interfere. In addition I have not had the advantage of hearing and seeing the husband, which the judge had, and presumably upon which basis he accepted the husband's evidence. Above all, there are unusual features in this case, particularly the fact that even though it may not have been any fault of her own, the wife had been away in Taiwan for the preceding three years or so and had only resided in the matrimonial home, if I can call it that by reason of the finding of the judge, from which she was ousted for about one month. To have remained in the flat with the husband's parents and brother in the absence of the husband, rightly could not have been regarded as practical or sensible, particularly when apparently generous provision appears to have been made for the wife's accommodation elsewhere.

19. I do not find it necessary to address the criteria in s.3, as my Lord Penlington J.A. has already done so. However, in the circumstances I have mentioned, notwithstanding that I would myself have found it difficult to make the order, viewed from my present position I find it no less difficult to justify interference with the judge's exercise of his discretion in making the order particularly when s.3(2), required him to have regard to all the circumstances of the case which it must be assumed he did.

20. Allied to that, I take comfort in the somewhat exceptional circumstances which in part account for the view to which my brothers have come, and which should ensure that the particular circumstances of this case do not come to be erected as some sort of precedent or principle bearing upon the making of ouster orders under s.3. I am therefore not disposed to press my own inclination to the point of dissent and would accordingly acquiesce in the dismissal of the appeal.

Mortimer, J.A.:

21. It has been said many times that an order to oust the spouse from the matrimonial home is draconian. It follows that such an order must only been made when it is shown to be really necessary in all the circumstances. Obviously, it must not be made for the wrong reasons.

22. The jurisdiction is provided in the Domestic Violence Ordinance, Cap.189 section 3. Subsection (2) specifies the matters to be taken into account by the judge. He must take into account the conduct of the parties, both in relation to each other and otherwise, their respective needs and financial resources, the needs of any child living with the applicant and all the circumstances of the case. This is almost the same as the United Kingdom provision which is to be found in its amended form in the Matrimonial Homes Act 1967. In section 1(3) almost the same provisions appear save that the matters which have to be taken into account are preceded by the words "the court may make such order as it thinks just and reasonable", having regard to those matters.

23. It is settled law that where there is an application to the court, the court must take into account the matters to which I have made reference. The absence of the words "just and reasonable" in the Hong Kong Ordinance seems to me cannot make any difference in the application of those principles - certainly not in this case.

24. Here, the circumstances which the judge had to take into account were indeed unusual. The judge gave a short extemporary judgment at the end of the case. Although there were affidavits in front of him he saw and heard the husband gave oral evidence. He then heard full argument both on the evidence and the law from counsel before making his decision. His decision shows that he took into account each one of those matters which he had to take into account under section 3(2) of the Ordinance and having done so, he came to the conclusion that the order ought to be made.

25. He took into account a number of matters including the husband's evidence of scolding and threats of violence and the effect that there had both upon him and upon the child - described by the judge as "very real adverse effect on the child". He took into account the circumstances of both parties, the financial situation, the accommodation situation and the needs of the wife and the child. He also took into account that there had been an existence an interim non-molestation order and that had not resolved the problems. So he, without specifying it in exact words, clearly took into account the risk of future behaviour of the same kind.

26. There was, therefore, ample evidence upon which the judge could act and, in my judgment, he took into account the matters that he ought to take into account. He did not take into account any matters which it was not open to him to take into account in all the circumstances.

27. Whereas I would say that I cannot with confidence say that I would have reached the same decision that the judge reached in this case, that is not the test that this court will apply, for the judge was in a much better position than this court to decide whether on this evidence such an order was necessary. I can say with confidence that the judge applied the correct principles on the evidence he heard. There is no reason to think that he was plainly wrong in the decision he came to. I also would dismiss this appeal.

Penlington, J.A.:

28. The appeal is accordingly dismissed.

Costs

29. By a majority we order that the husband is to have the costs of this appeal but we allow the appeal as regards the order for costs below. There will be no order for costs in the District Court.