R v. S

HCMC7/2009

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO. 7 OF 2009

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J U D G M E N T

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Introduction

1.  Last week, on 25 August, having heard the evidence on the wife petitioner’s defended divorce petition, I pronounced a decree nisi divorce and dismissed the respondent husband’s answer.  At the time, I said I would deliver my reasons today, which I will now do.

2.  I will refer to the parties as “the husband” and “the wife”.  They were married on 14 March 2000 at Jakarta, and there was also a civil marriage ceremony in Paris on 21 July.  The wife is from a well-to-do family in Indonesia.  The husband is French, of Algerian origin.  He, too, comes from a well-established family.

3.  There are two children of the family, both of whom are girls.  The elder, Diandra, was born on 18 October 1994, she being the wife’s daughter by her previous marriage and has been treated by the parties as a child of the family.  The younger, Lana, was born on 15 May 2003.  Both attend Hong Kong International School and are doing reasonably well there.

4.  The parties separated in November last year and the husband now lives in Dubai.  The wife initially remained in what had been the matrimonial home in South Bay but has since moved to a smaller flat in Stanley, where she lives with the two girls.  The parties had been living in Brussels until March 2008, when the husband moved to Hong Kong and the wife followed in July.  Diandra went to school in Jakarta but subsequently came to Hong Kong in the summer of 2008 and entered Hong Kong International School in August.

5.  The parties moved to what became the matrimonial home here at Grand Garden, South Bay, in September 2008.  According to the wife, the marriage had been “mainly happy”, as she puts it, until October 2008, so very shortly after they had settled into their new home in Hong Kong.  Her main complaints, which I will need to examine more fully in due course, are that the husband is a “controlling workaholic”, as she described him.  He wants his own way.  She cannot have a sufficient say in things and he devotes far too much time to his work, often working at home until 1 or 2 in the morning.

6.  By way of introduction, it is sufficient to observe that the parties initially tried marriage counselling to save their marriage, but there came a time when I think it had become obvious to both of them that their relationship could not be saved.  The wife petitioned for divorce on 27 May 2009, by a petition alleging unreasonable behaviour.  This has been described as a “mild” petition, meaning that the case could have been put much more strongly, but with a view to allowing the matter to go through without excessive controversy, as an undefended cause, it was decided to allege particulars of unreasonable behaviour in a general way and without much particularity.

7.  At about the time that the wife had issued and served her petition, the husband issued divorce proceedings of his own in Paris.  Those proceedings remain extant.  There was fairly protracted litigation in this court as to which forum was the most conveniens.  Hartmann JA, as he had become, held that Hong Kong was.  The husband’s appeal against that decision to the Court of Appeal failed.  In the meantime - and this only by way of background - the French court decided to suspend its consideration of the husband’s suit before it to await the outcome of the husband’s now unsuccessful appeal to the Hong Kong Court of Appeal.

8.  He has appealed against the French court’s decision to hold fire - if I can put it in this way - and his appeal from that decision will be heard in Paris in late October.  More recently, he has also started divorce proceedings at Jakarta before the religious court to have the marriage dissolved in accordance with his Muslim faith, although there still remains a doubt that this may also affect the civil status of their marriage in Indonesia.

9.  The wife has taken out applications before me for anti-suit injunctions to restrain the husband from proceeding with his divorce suit in Paris and Jakarta.

10. In addition to this, there have also been difficulties over access to the two children which have required me and Hartmann JA to rule on, and a psychologist in Hong Kong has also become involved to provide counselling for both parents and the children.  There have also been added complications arising from the wife’s new relationship with another man.  So it can be seen that so far this suit has been highly contentious and acrimonious which at present is spread over three jurisdictions.  Both parties assert that the marriage is over - in the language of the Ordinance, that it has irretrievably broken down.

11. From this, I turn briefly to the husband’s answer which itself is a very brief pleading.  It is at Bundle P10, pages 2883 and 2884.  It accepts the irretrievable breakdown of the marriage, denies the allegations of unreasonable behaviour and pleads no positive case in response.  Nor has there been any request for further and better particulars of the unreasonable behaviour relied on by the wife in her petition.  There is also reserved in the answer the right to amend to pleaded a cross-petition but this has not been done.

The basis of the defended suit

12. Mr Egerton, on the husband’s behalf, says that the husband is exercising his right to put the wife to proof of her case, this notwithstanding that he accepts that the marriage is over.  In his final speech, Mr Egerton has submitted that the wife’s case has fallen short of what the law requires to prove a petition based on unreasonable behaviour.  Her case has been conducted on the basis of Mr Coleman SC, her leading counsel, taking her through the sub-paragraphs of unreasonable behaviour, much of which had been drawn from matters raised in affirmations by her prepared for other purposes, such as the dispute on forum non-conveniens and injunction applications but not in support of this petition, and of Mr Egerton testing her account, although restricted by the terms of his own pleading from putting any positive case in response.  The same restriction applied to the husband’s own evidence, who has not been able to develop his defence beyond, in effect, denying on oath the criticisms made of him.

The evidence

13. The wife’s evidence has been in support of the particulars pleaded in paragraph 9 of the petition.  The petition itself is at Bundle P1, pages 3 and 4 in its relevant parts.  The first four particulars can be taken together, in the sense that the wife seeks to portray the husband as a person who requires the wife to do things as he wishes, drawing on his own background which is more conservative and traditional than her more open upbringing.  In support of this behaviour, Mr Coleman directed the wife’s attention to the very general position and complaint which is to be found at Bundle P1, page 37 and at P1, page 136 and also paragraph 8 at P1-138 which she adopted as part of her case.

14. Reference was also made to the wife’s 5th affirmation dated 7 August 2009 at page 554, paragraphs 10, 11 and 12, and at page 555, paragraphs 15 and 16.  The wife has adopted the complaints that she made there about the husband’s overbearing behaviour.  The picture that she wishes to paint is of a man who will rarely accommodate her own wishes and feelings and just gets on and does things in his own way, without reference to her.

15. At page 557, paragraph 23, it is said that he wished to have the wife follow the example of his own parents’ patriarchal-orientated relationship, with the husband having the ultimate say rather than following her own parents’ more open, democratic domestic relationship.  By way of example, in paragraph 23 she says that he was frequently critical of her, including of what she wore, and that he would ask her to change her clothing before she left their home.  His attitude towards her was such that he would not allow her to be herself.

16. At page 566, paragraphs 45 and 46, she spoke of events most closely related to the issuing of her divorce petition.  Some effort had been made by the parties to patch up things in about April 2009.  They had gone to Thailand on holiday and had had a physical relationship whilst they were there.  She says that she was making a sincere effort to save their marriage.  In May 2009, they had attended marriage counselling sessions.  At the session on 25 May, she says that the husband said that he did not believe in such counselling.  The upshot to this was that the wife finally decided that there was no future in the marriage.

17. She was cross-examined by Mr Egerton on all the sub-paragraphs to paragraph 9 of her petition.  He put it to her that the husband liked to live a well-ordered life and that she knew this when she married him.  She denied that she had been attracted by the fact that he applied order, method and structure to his life.  She accepted that she, too, has a strong character.  She denied that he was attentive to her views and opinions on the question of the children’s upbringing, although she did agree that, despite this, she was firm on this matter, as a result of which she did have her way on how the children were to be brought up and in how the home was to be run.  As to him being a workaholic and staying up till 2 in the morning  to work, whilst she accepted that he had been successful in his career and was well paid, as a result of which the family enjoyed a high standard of living, she says that this could have been achieved without working such long hours and staying more with the family and being part of the family and more communicative with them.

18. A part of the particulars of unreasonable behaviour, which in fact immediately preceded the issuing of the petition and which was the subject of an ex parte application for an injunction, was her fear that the husband was removing funds from a joint bank account in Hong Kong.  In fact she was mistaken about that and the money had not been remitted to Hong Kong from Paris but remained in an account there and used and drawn as joint funds.  Her perception was that these funds had been transferred to an account in Hong Kong and were clandestinely being removed by the husband, as a result of which she made an urgent application for an injunction to restrain him from doing so.

19. The husband also gave evidence on the limited basis that his answer permitted him to do so.  He agreed in cross-examination that he and his wife have a different approach and attitude to how things should be done, although he disagreed with all the complaints that she made of him.  As to his part in the children’s upbringing and education, he denies that he did nothing.  When Lana was at the Montessori School he would take her to school each morning before going to work himself.  He disagreed with the suggestion that he in any way controls the wife.  She is very capable of expressing her own views whenever she wishes.

Conclusions on the evidence

20. I have been afforded an extremely limited opportunity to make my assessment of the parties.  Notwithstanding the gravity of the occasion, this has been an almost perfunctory proceeding.  When the petition was issued, I do not believe that it had been expected that it would be defended.  I suspect that it had been prepared in some haste at about the same time as the application for the ex parte injunction.  In the circumstances, it pleads a general case designed to pass the lesser test presented by an undefended cause.  For his part, the husband who was contesting this court’s jurisdiction over the divorce did not file his answer until May this year, after the dismissal of his forum non-conveniens appeal by the Court of Appeal.  The parties’ appearances in the witness-box have been brief.

21. There is no doubt that both are strong characters.  The wife’s complaints that the husband has a rigid authoritarian and controlling streak I find to be proved on the balance of probabilities.  He likes order and expects things to be done in his own way.  Despite the fact that the wife comes from a highly civilised modern background and has graduated from American universities, I find that over the years the husband’s controlling and rigid attitude caused her distress and unhappiness.  It was only in matters that affected her relationship with the children, their education and upbringing that she was able to maintain her point of view.

22. I also find that the husband was capable of being uncommunicative and would on occasions keep to himself to the exclusion of the wife and the children, which had the effect of adding to the wife’s sense of isolation and unhappiness.  I find that the wife was genuine in her wish to save the marriage and initiated and organised marriage counselling which to her great disappointment failed, largely due to the husband’s unenthusiastic attitude towards marriage counselling.

23. The allegation that the husband was secretly and improperly transferring money out of the Hong Kong bank account is not made out.  This allegation was based on the wife’s misconception that he was doing so.

24. This is one of these cases where there has been a progressive and gradual falling out of love between the parties.  Any attempt by me, after such a relatively short hearing, to say precisely why this happened is simply not possible.  Nevertheless, the wife’s complaints about the husband’s authoritarian and controlling attitude and his lack of communication has undoubtedly largely contributed to this process.  Whilst Mr Egerton is correct in pointing out that there have been no significant incidents of bad behaviour, and certainly none of violence, which might stand out as the turning point in the breakdown of the marriage, I have no doubt the necessary ingredients of unreasonable behaviour and the irretrievable breakdown of the marriage are all present in this case.

The law

25. I have tested the husband’s behaviour against the requirements of the Ordinance.  These requirements are set out in their ,effectively identical, English form in the current edition of Rayden in paragraph 9.20.

 “Prima facie, whether the petitioner cannot reasonably be expected to live with the respondent calls for an objective test.  In considering what is reasonable, the court in accordance with its duty to inquire so far as it reasonably can into the facts alleged, will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable.  Allowance will be made for the sensitive as well as for the thick-skinned.

The conduct must be judged up to a point by reference to the victim’s capacity for endurance, and in assessing the reasonableness of the respondent’s behaviour the court would consider to what extent the respondent knew or ought reasonably to have known of that capacity.  The approach as been thus summed up:

The court has to decide the single question whether the respondent has so behaved that it is unreasonable to expect the wife to live with him.  In order to decide that, it is necessary to make findings of fact as to what the respondent actually did and findings of fact as to the impact of that conduct on the petitioner.

There, of course, a subjective element has been evaluated but at the end of the day the question falls to be determined by an objective test.  It has been said that the correct test to be applied is whether a right thinking person, looking at the particular husband and wife, would ask whether one could reasonably be expected to live with the other, taking into account all the circumstances of the case and the respective characters and personalities of the two parties concerned.

It is the effect, or reasonably apprehended effect, of the respondent’s behaviour that has to be considered - behaviour of such gravity that it causes the court to come to the conclusion that this petitioner cannot reasonably be expected to live with the respondent.  The fact that one spouse is living with the other spouse at the time of the hearing does not, of itself, establish that the first spouse should reasonably be expected to live with the other spouse.”

26. At paragraph 9.21, the learned editors go on to consider the cumulative effect of the relevant behaviour in this way:

“Any conduct, active or passive, constitutes behaviour.  Any and all behaviour may be taken into account.  The court will have regard to the whole history of the matrimonial relationship but behaviour is something more than a mere state of affairs or a state of mind.  Behaviour in this context is action or conduct by the one which affects the other.  It may be an act or an omission or a course of conduct.”

And then later on in the paragraph:

“Regard will be had to the cumulative effect of the behaviour, for while the conduct may consist of a number of acts, each of which is apparently reasonable in itself, the conduct may well be even more effective if it consists of a long series of minor acts, no one of which could be regarded as serious if taken in isolation but which, taken together, are such that the petitioner cannot reasonably be expected to live with the respondent.”

27. These features of what is required were considered in cases such as Ash v Ash and Livingstone-Stallard v Livingstone-Stallard, to which Mr Egerton has helpfully referred me.

Conclusion

28. In applying the facts of this case and the situation between these parties as found by me, I came to the conclusion that the husband had behaved in such a way that the wife could not reasonably be expected to live with him and that the marriage had broken down irretrievably, in consequence of which I pronounced a decree nisi of divorce.

Costs

29. There can only have been one motive in this case in the husband defending the suit, which is that if the wife, on a pretty thin petition, failed, then of course that would put an end to all the hard work that had been done on her behalf to demonstrate, all the way to the Court of Appeal, that Hong Kong was the appropriate venue for her divorce.  As the law currently stands, this court would then have deprived itself of jurisdiction to deal with all ancillary relief matters, it having dismissed the petition, the very foundation of its jurisdiction

30. So that could have been the only motive for the husband dealing with the matter in the way that he did, in the face of a ruling at First Instance and from the Court of Appeal that Hong Kong was the appropriate venue.  That amounts very much to an oblique - and which is a polite way of saying an improper - motive in defending the suit in circumstances where of course he accepts that the marriage had broken down irretrievably.  It was not as if he was having to face any particularly bad allegations of unreasonable behaviour.

31. That is the starting point to the application for costs on a higher scale.  Mr Egerton very correctly and very properly accepts that costs ought to follow the event, but I am troubled by one matter which has now been made clear, which accords with my recollection and which is correct, that after I had pronounced the decree nisi of divorce, Mr Coleman did indicate that he would not be seeking costs on a higher scale.  Obviously, between Wednesday and today the matter has been re-visited through the correspondence and so forth, and it was thought right to make this application, which has been mounted very strongly by Miss Rattigan and to great effect because I am satisfied that there was an oblique purpose in defending in the way that the husband had.

32. It seems to me, in hostile litigation of this sort, if a perfectly proper and understandable concession has been made by leading counsel, I think that should prevail over my finding that there has been an oblique purpose and so I propose to only award costs on the usual standard scale of party and party costs.

33. There is the question of whether there should be certificate for two counsel.  This was not a particularly difficult matter to contest in court in the circumstances where there were no counter-allegations being advanced.  But I think Miss Rattigan is right that when one examines the importance of the occasion and what would have followed had there been a failure by the wife in securing a decree armed, if that is the right way of putting it, with some pretty thin particulars - because this, as Mr Coleman rightly observed at the start, was a mild petition - then I think it was entirely reasonable, looking at the matter overall - and this is a case that has been fought, firstly, at great expense, and attended in circumstances of great acrimony - that I think it did justify the instruction of leading counsel in addition to the experienced junior that the wife has the advantage of being represented by and so I will say there will be certificate for two counsel.