WCP v. TPW

FCMC 8839/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 8839 OF 2013

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JUDGMENT
(Consent summons)

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Introduction

1. This is an application by a respondent husband who wishes to renege on an agreement reached between the parties on ancillary relief. The wife, in turn, asks for a slight amendment to that agreement.  

2. This litigation has been ongoing for a considerable period of time.  It began with a defended suit which came before the court for trial on 8 April 2014.  By that stage, the parties had been separated for over one year.  At that hearing, the husband sensibly agreed to proceed on the basis of one-year separation with consent.  He gave an undertaking to that effect which was included in the consent summons now in dispute dated 8 April 2014.  Unfortunately, on the 5 May 2014, the husband reneged on that agreement and his undertaking.  He filed a notice of withdrawal of consent and a notice of intention to defend.  Although the husband was warned of the possible costs consequences of his actions, he refused to change his mind.  The issue of the suit proceeded to trial and on the 7 January 2015 I granted a decree nisi of divorce based on the husband’s unreasonable behaviour, with costs to the wife. The husband sought leave to appeal that judgment. He also asked to rescind the decree nisi. On the 26 February 2015 those applications were refused.   

Background

3. In the judgment of the 7 January 2015 I set out the background to the case, which for ease of reference I will repeat as follows:

3. The parties married on XX April 1994, and the only child of the family, a daughter, was born four and a half months later.  She is now 20 years of age and a full-time student.  By all accounts, the marriage has been a very troubled one for many years, and the wife previously left the husband on at least two other occasions.  The wife accuses the husband of ongoing and significant abuse.  She accuses him of denying her, her basic human freedoms and of controlling and domineering behaviour.  She finally left the matrimonial home for good on 31 January 2013, and she has had no contact with the husband since, something that he appears to take great exception to. 

At paragraph 17 I added that:

17. Insofar as the husband is concerned, it seemed to me that he might have some mental health issues.  I previously asked for an Official Solicitor’s report, but they were unable to find any record of the husband in the mental health system.  However, the husband produced documentation that was largely incoherent and sometimes irrelevant in support of his case, and he was at times difficult to understand in the witness-box or in the submissions that he made. Further, he seems to have little insight into the consequences of his own actions.  For example, he blamed the wife for not agreeing to proceed on the basis of two-year separation but accepted no responsibility for the fact that he had reneged on his undertaking to proceed with the divorce on the basis of one-year-separation with consent.  He seemed to be fixated on the fact that the wife had apparently refused to meet with him or speak to him directly since issuing the divorce proceedings, and this appears to be the reason why he withdrew from his previous agreements with respect to both of the divorce and finances.  This, sadly, goes some way to supporting the wife’s submission regarding the husband’s overly controlling personality.

4. That observation continues to hold true. On this occasion the husband’s oral representations were generally impossible to follow. Likewise the documentation that he filed was a little strange.

Background to the litigation

5. As indicated above, on the 8 April 2014 the husband initially reached terms with the wife outside the door of the court on all matters. As can be seen from the transcript the court asked several times if there was an agreement between the parties and the husband answered in the affirmative. Given that at that stage the parties had agreed to proceed on the basis of one year separation with consent, the court said that it had made a note of the consent summons on the court file and that an order in those terms would be made upon the pronouncement of the decree nisi in the new proceedings. A copy of the consent summons was given to both parties. At the hearing on the 26 March 2015 the husband confirmed that he no longer wished to abide by the terms of that consent summons whereas the wife asked for an order in terms. On the 10 April 2015 the husband issued a summons which sought the following:

1. Ratification for Nullification of SUMMONS BY CONSENT dated 8 April 2014

2. Rectification for Petitioner Representative’s Misapplication of nonexistence of the aforesaid SUMMONS BY CONSENT.

3. Requisite Order sought by Respondent before Judge

in light of Representative’s relevant act on or before the Hearing of 6th May 2015.

6. On the 2 June 2015 the wife issued a summons as follows:

1. The Consent Summons dated 8^th April 2014 do stand and amended by adding the words “after paragraphs 1 to 3 of this Order have been complied with” in paragraph 4 thereof between “no order as to costs” and “(i) Flat X on XX Floor of Block X, Y Garden, No. XX Siu Sai Wan Road, Hong Kong” or as the Court thinks appropriate;

2. Costs of this application be to the Petitioner; and

3. The Petitioner’s own costs be taxed in accordance with Legal Aid Regulations.

The issues

7. The main issue to be determined then is whether or not the husband should be bound by the consent summons dated the 8 April 2014 and whether an order should be made in those terms either at all, or alternatively whether the order should be amended slightly as proposed by the wife.

The law

8. Rayden puts it thus in the 18^th edition:

Introduction

15.18  This section deals with financial agreements made between spouses either in contemplation of divorce and ancillary relief proceedings, or in the course of subsisting ancillary relief proceedings.  In an effort to save costs and avoid the acrimony of contested litigation, ancillary relief practice and procedure is designed to facilitate and encourage parties to reach an agreement in settlement of their claims for ancillary relief.  The vast majority of ancillary relief claims are settled by agreement rather than by court adjudication.

Holding parties to their bargain: weight given to agreements

15.19  Reference has previously been made to the fact that such an agreement cannot oust the jurisdiction of the court to entertain an application for ancillary relief: it is, however, an important general proposition when exercising that jurisdiction and determining an application for ancillary relief that formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement. In the context of the matters listed in s 25(2) of the 1973 Act, the existence of an agreement is a very important piece of conduct and a very important factor in considering what is the just outcome of the proceedings.

9. Further the consent to the agreement must be voluntary and there must be full and frank disclosure of all material facts including the parties’ financial circumstances. At paragraph 15.23 Rayden adds:

Adequacy of the bargain

15.23  The mere fact that one party might have done better by going to court is not of itself generally a ground for permitting that party to resile from what was agreed.  In Edgar v Edgar Oliver LJ stated:

‘It was a result which commended itself to her at the time and it does not become an unjust result merely because she could have done better if she had taken the professional advice which she was given.’

What is or is not a good bargain does not depend entirely on the financial aspect: social, personal, religious and cultural considerations may apply.  In litigation, some parties are prepared to pay a price for certainty and finality, and the court should bear in mind the undesirability of stirring up problems with parties who have reached an accord.

10. In the case of Xydhias v Xydhias [1999] 2 All ER 386 where the parties reached terms and submitted a consent summons to the court, only for the husband to then change his mind at the 11^th hour, the Court of Appeal found that the consent summons entered into should be upheld. Similarly in this case there was a consent summons on the court file that had been entered into by the parties and accepted by the court. The husband then changed his mind.

Discussion

11. In this case however it is clear that the husband did not have the benefit of legal advice. This was his choice. Furthermore the official solicitor’s office was unable to provide any information on the mental condition of the husband and therefore they had no basis upon which they could intervene. Thus there was no option but for the matter to proceed with the husband acting in person.

12. The husband says that he was compelled or otherwise coerced by the wife’s solicitors to enter into the consent summons. I accept the wife’s lawyer’s assertion that this was not the case.  As I have said it is of note that the husband has a history of reneging on past agreements – his refusal to comply with his undertaking to consent to a divorce on the basis of one year separation being a case in point. It seems that the husband’s true intent was always to try to reconcile with the wife and to persuade her to return to live with him at the former matrimonial home. In order to do this he needed to be able to speak to her directly. It seems that when he realized that reconciliation was not possible that he then sought to go back on his previous agreements.

13. In so far as financial disclosure is concerned both parties have filed Form E’s. There was no request for further disclosure and it seems to have been accepted that there had been full and frank disclosure of their respective financial circumstances, which were quite straightforward

14. I am therefore satisfied that in all of the circumstances of this case an order should be made in terms of the original consent summons save for the amendment sought by the wife’s lawyers, which seeks to safeguard the wife’s position pending any possible enforcement action.

Costs   

15. Given that the wife had no option but to proceed in the way that she did and given the husband’s unreasonable stance in this matter I shall make an order that the husband shall pay the wife’s costs of and associated with this application on a party and party basis to be taxed if not agreed and the Petitioner’s own costs be taxed in accordance with Legal Aid Regulations. 

FCMC 8839/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 8839 OF 2013

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J U D G M E N T
(Defended Petition)

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Introduction

1.  This is a defended divorce.  The wife seeks a decree based on the husband’s unreasonable behaviour which in turn the husband resists.  The matter first came before the court for trial on 8 April 2014.  By that stage, the parties had been separated for over one year.  At that hearing, the husband agreed to proceed on the basis of one-year separation with consent.  He gave an undertaking to that effect which was included in the court order dated 8 April 2014.  Agreement was also reached in relation to ancillary relief matters.  

2.  On 5 May 2014, the husband reneged on that agreement and his undertaking.  He filed a notice of withdrawal of consent and a notice of intention to defend. Although the husband was warned of the possible costs consequences of his actions, he refused to change his stance.  On the 9 July 2014, the original petition for divorce was set down for trial.

Background

3.  The parties married in April 1994, and the only child of the family, a daughter, was born four and a half months later.  She is now 20 years of age and a full-time student.  By all accounts, the marriage has been a very troubled one for many years, and the wife previously left the husband on at least two other occasions.  The wife accuses the husband of ongoing and significant abuse.  She accuses him of denying her, her basic human freedoms and of controlling and domineering behaviour.  She finally left the matrimonial home for good on 31 January 2013, and she has had no contact with the husband since, something that he appears to take great exception to. 

The Issues

4.  There is only one issue to determine in this case, namely, on the balance of probabilities, has the husband behaved in such a way that the wife cannot reasonably be expected to live with him and, consequently, can the parties’ marriage be said to have broken down irretrievably? 

The Law

5.  Insofar as the law is concerned, there is only one ground for divorce in Hong Kong, namely, that the marriage has broken down irretrievably.  This can be proved by one or more of the five facts found in section 11A of the Matrimonial Causes Ordinance, Cap 179.  It is also possible to apply for a divorce jointly based on one-year separation with consent.    

6.  As indicated during the trial, when it is clear that a marriage has broken down irretrievably, the parties are encouraged by the courts to adopt a sensible and pragmatic attitude with a view to dissolving their marriage as quickly and as painlessly as possible.  Where the particulars pleaded are sufficient to enable a decree to be granted, then the court will do so without investigating into any of the other allegations made.  This is particularly so where separation is pleaded in addition to a fault-based ground, but the same principle applies where there are multiple allegations made in respect of fault.  It is sufficient to investigate only to the extent that fault is proved.  See Grenfell v Grenfell [1978] Fam 128. Rayden puts it thus in section 9.65:

Facts sufficient on which to grant a decree

9.65 Where on the face of the pleadings there are facts sufficient to enable the court to grant a decree of dissolution, the Court of Appeal has firmly declared that it is in general wrong to permit a party to have other allegations investigated. In particular, where on the face of the pleadings five years (in Hong Kong two-year separation) is alleged by a respondent and admitted by the petitioner who has alleged behaviour in the petition, there is no point in conducting an inquiry into behaviour merely to satisfy feelings, however genuinely and sincerely held by the petitioner.  

In this instance, the wife said that the parties had been separated since 31 January 2013. The husband acknowledged that they had not lived together since that date in his oral evidence. 

The Ground of Unreasonable Behaviour

7.  Section 11A(2)(b) of the Matrimonial Causes Ordinance, Cap 179 states that:

“11A. Proof of ground for petition

(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts –

…..

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”

8.  The appropriate test for this was originally formulated in the case of Livingstone-Stallard v Livingstone-Stallard [1974] 2 All ER 766.  In that case, the judge posed the following question:

Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him?  Taking into account the whole of the circumstances and the character and the personalities of the parties.

9.  It is then both a subjective and an objective test. As pointed out by Mr Lee, the issue is not so much whether one spouse’s actions are unreasonable per se although that may be the case as is alleged here but, rather, whether this particular spouse found the other spouse’s actions unreasonable.  The court will consider this and will then go on to determine whether or not the wife can be reasonably expected to live with the husband. This test has been approved in a number of cases since Livingstone-Stallard, including a number of judgments in the Family Court in Hong Kong.   

10.  In considering this matter, I should say at the outset and as pointed out in court that I accept that the wife has referred to a number of incidences in her petition which occurred many years ago.  After these incidences, the parties subsequently reconciled and lived together for a significant period of time.  It seems to me that these incidences are only relevant in so far as they provide the court with some general background.  Given that the parties subsequently lived together for a period in excess of six months, they cannot be used as evidence of the husband’s alleged unreasonable behaviour now. As discussed during the trial, reference should be made in that respect to section 15A(4) of the Matrimonial Causes Ordinance, Cap 179.  This states that:

(4) Where the petitioner alleges that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him, but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the petitioner and held by the court to support her allegation, that fact shall be disregarded in determining whether the petitioner cannot reasonably be expected to live with the respondent if the length of that period or of those periods together is six months or less. (Amended 29 of 1995, s. 17)    

11.  Thus, when considering the incidences of the alleged unreasonable behaviour on the part of the husband, I have confined myself to matters that have occurred more recently, ie in the six months or so prior to the parties’ final separation on 31 January 2013.  Thus, I will make reference to the more generic particulars as set out in the divorce petition and as updated by the wife in the witness-box.  The original divorce petition, I should add, was filed on 24 June 2013.

12.  In addition, reference should be made to the fact that the possibility of the wife proceeding with a new petition based on two-year separation was raised by me prior to the trial commencing.  I was told that the wife has cancer and that she is concerned about the possibility of any further delay.  Given the background here, I accepted that the wife’s concerns in that respect are valid and, consequently, the matter has proceeded to trial.

Discussion

Has the husband behaved in such a way that the wife cannot reasonably be expected to live with him? 

13.  As indicated above in Grenfell, it is not necessary to go into each and every allegation when considering whether or not a marriage has broken down irretrievably.  Consequently, I intend to confine myself to the wife’s allegations at paragraphs A, B, I and K of the particulars in the divorce petition.  These state as follows and I intend to quote them in full. Particulars A:

“During the marriage, the respondent has been very violent and had on numerous occasions assaulted the petitioner, as a result of which the petitioner had suffered much bruises all over her body, including her eyes, her face, her upper and lower limbs as well as her back and chest.”

B:

“During the marriage, the petitioner felt that she had never been treated by the respondent as a person. He had never treated her with dignity. He played an excessive dominant role in the family controlling every aspect of the daily lives of the petitioner thereby depriving the petitioner of her basic freedom to live the way she wished. As such, it has caused the petitioner to be living under great fear and anxiety every day.”

I:

“Due to the respondent’s continuous assault on the petitioner during the marriage, the petitioner had been living under severe anxiety and fear during the marriage. Since August 2012, the respondent has assaulted the petitioner even more often than before at the frequency of about two to three times a week. The petitioner started to have serious headaches and nightmares and sometimes would scream for help in her sleeps. As a result, the petitioner was diagnosed with depression and has to take anti-depressants.”

K:

“During the marriage, the respondent has failed to show the minimal respect to the petitioner as a person. He has been very inconsiderate towards the feelings of the petitioner and would assault her if she did not accede to what he demanded and/or could not meet what he expected. He has behaved in a very self-centred manner and has failed to show any love and concern for the petitioner.”

14.  The wife expanded on these points in the witness-box.  She said that she was last assaulted on 30 January 2013, the day before she left the matrimonial home.  On that occasion, she says that the husband punched her head numerous times because a man had been standing behind her in a queue at the supermarket. The day before, she says that the husband hit her because she dropped a vegetable on the ground and it had broken.  During that six-month period, she said that the husband hit her two or three times a week and that sometimes this was very severe. The husband for his part simply denies the allegations, saying that they were absurd and absolutely not true. 

15.  The difficulty is that there is no direct evidence to support either side’s version of events save for a letter from the police which confirmed that the wife had reported a previous assault to them in July 2006, after which she resumed living with the husband again.  In addition, reference was made to a letter from the wife’s psychiatrist which concludes, in short, Madam W has been suffering from a depressive illness which was largely the result of battering and various kinds of maltreatment by her husband. This letter is dated 11 March 2014. 

16.  Thus, I am being asked to determine this case largely on the basis of credibility. Do I believe the wife or the husband?  Having heard both of the parties in the witness-box, I have to say that I found the wife to be totally believable. Although clearly under considerable strain, she was able to answer questions clearly and coherently, and I accept entirely the evidence that she gave.

17.  Insofar as the husband is concerned, it seemed to me that he might have some mental health issues.  I previously asked for an Official Solicitor’s report, but they were unable to find any record of the husband in the mental health system. However, the husband produced documentation that was largely incoherent and sometimes irrelevant in support of his case, and he was at times difficult to understand in the witness-box or in the submissions that he made. Further, he seems to have little insight into the consequences of his own actions.  For example, he blamed the wife for not agreeing to proceed on the basis of two-year separation but accepted no responsibility for the fact that he had reneged on his undertaking to proceed with the divorce on the basis of one-year-separation with consent.  He seemed to be fixated on the fact that the wife had apparently refused to meet with him or speak to him directly since issuing the divorce proceedings, and this appears to be the reason why he withdrew from his previous agreements with respect to both of the divorce and finances.  This, sadly, goes some way to supporting the wife’s submission regarding the husband’s overly controlling personality.

18.  Given my findings above, I am of the view that the particulars pleaded by the wife in paragraphs A, B, I and K of the particulars in the divorce petition as referred to above have on the balance of probabilities been sufficiently proved to enable a decree of divorce to be granted.  I am also mindful of the fact that the parties have been separated for nearly two years in any event and that the wife has said that there is no possibility of a reconciliation with the husband. I should add that it seems to me that this is a matter that should never have come to trial and that the matter should have proceeded on the basis of one-year separation with consent. 

Conclusion

19.  I will therefore grant a decree nisi of divorce based on the husband’s unreasonable behaviour.  I accept that this marriage has broken down irretrievably and that the wife cannot reasonably be expected to live with the husband.   

20.  Insofar as costs are concerned, the husband was warned on several occasions of the possible costs consequences if he failed to be reasonable with respect to this litigation.  I will therefore make an order nisi to be made absolute in 28 days’ time that the husband do pay the wife’s costs of and incidental to the suit including the second divorce petition and any costs reserved, such costs to be taxed on a party-and-party basis if not agreed. The Petitioner’s own costs be taxed in accordance with Legal Aid Regulations.

21.  Further, it is ordered that there shall be a First Appointment hearing which shall be adjourned to 26 March 2015 at 9:30 am, and both parties do personally attend that hearing.