THY v. CHFR

> CACV 228/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 228 OF 2015

(ON APPEAL FROM FCMC NO. 11061 of 2014)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1. The background to this appeal has been set out in the judgment of the court in HCMP 1755 of 2015, 23 September 2015 when leave was granted for the Respondent to bring this appeal.

2. As concluded by the court in that judgment, the Respondent purged his contempt on 18 September 2015.  Thus, the original reason given by Judge Melloy (which was no doubt valid at the time when the Judge made her order) for debarring him from defending the suit and the prosecution of his Cross Petition (viz the Hadkinson sanction) ceased to be a valid ground since 18 September 2015 for the continuation of such a bar. 

3. Though the Respondent had unwisely delayed in the preparation of his Answer and Cross Petition, the document had been ready and a draft was placed before the court (and copy given to the Petitioner) since 2 February 2015.

4. Up to now, the suit had not been concluded and the Family Court has yet to grant any decree.

5. It is not appropriate for us to go into the details.  Suffice for us to say at this stage we do not regard the matters set out in the Answer and Cross Petition as vexatious or otherwise unarguable.

6. The Petitioner (acting in person in the appeal) relied on the written submissions of her solicitors to resist the appeal.  It was contended that the court should not permit time and costs be wasted on the Answer and Cross Petition as both parties agreed that the marriage has been irretrievably broken down and the allegations raised in the Petition and the Cross Petition were not serious enough to have any bearing on the questions of custody and ancillary relief.

7. We cannot accede to that submission.  Unlike the situation in the case cited on behalf of the Petitioner, Grenfell v Grenfell [1978] 1 All ER 561 (where divorce was sought by the husband on the ground of 5 year separation), the Petitioner is seeking a divorce on the ground of behaviour.  Whilst it is probably correct that the allegations are not serious enough to have much impact on the question of ancillary relief, the Respondent should not be deprived of the opportunity to defend against such allegations as a decree granted on this petition may carry with it stigma or other social implications in his future relationship with the children.  It might also have some relevance on the potential issue of staying access.  The Respondent can justifiably harbour a sense of grievance and injustice if the court bars him from putting forward his case in these circumstances.  Thus, following the approach in YSP v HFF [2004] 2 HKC 99, we should grant leave to the Respondent to file his Answer and Cross Petition out of time.  We are not going to speculate whether the petition can be heard in 2015 and what would happen if the Petitioner shall lodge another petition in 2016 based on 2 year separation.  These matters would simply have to take their own course.

8. In the circumstances, exercising the discretion afresh, we are of the view that the Respondent should not be deprived of his day in court simply because of his past mistakes.

9. We shall allow the appeal, set aside the order of Judge Melloy of 9 April 2015.  In substitution, we grant the Respondent leave to file his Answer and Cross Petition by 23 October 2015.  But we would not disturb the costs order made by Judge Melloy on that occasion.

10. Since the Respondent only purged his contempt on 18 September 2015, subject to what we say below on the costs relating to HCMP 1755 of 2015, we deem it fair to make no order for costs in this appeal.  From the history of the matter, the Respondent has clearly brought this appeal on himself.  Though he is successful in persuading us to grant him the extension of time, due to his failure to purge his contempt, this appeal is the first occasion where his request for indulgence can properly be entertained by the court.  Notwithstanding his open offer, we are of the view that the Petitioner did not act unreasonably in opposing the appeal.

11. As regards the costs of HCMP 1755 of 2015, we order the Respondent to pay the costs of the Petitioner.  Though he was successful in getting leave (and in the appeal as well), it is very much a matter of indulgence from the court in giving him a further chance to purge his contempt and the Petitioner was fully justified in resisting the application up to 18 September 2015.  The costs of the Respondent in HCMP 1755 of 2015 shall be taxed on indemnity basis (agreed by Mr Kwan) if not agreed.

12. It also follows that we would not disturb the order for costs made by Judge Melloy on 8 July 2015 when she refused to grant leave to appeal.