Tls Nee J v Rcs

FCMC 1637/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NUMBER 1637 OF 2012

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REASONS FOR DECISION
(Section 18 Declaration, Decree Absolute)

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Introduction

1. This is the Respondent Husband’s (“Husband”) application by way of Summons dated 19 August 2013 seeking the following orders :-

(a) A declaration pursuant to Section 18(1)(b) of the Matrimonial Proceedings and Property Ordinance be made;

(b)That pursuant to Section 17(2)(a) and (b) of the Matrimonial Causes Ordinance the Decree Nisi granted on 21^st December

2012 be made absolute forthwith.

2. The Husband’s Summons was issued on 19 August 2013 listed for a 15-minute hearing returnable on 10 September 2013. The parties filed a Consent Summons on 6 September 2013 seeking an order to vacate the hearing scheduled on 10 September 2013 and half day be reserved for hearing the Husband’s Summons. A Consent Order was granted by this Court on 9 September 2013, that is, the day before the originally scheduled 10 September 2013 hearing. There are also directions granted upon the Consent Summons for the Wife to file and serve an Affirmation in Opposition 14 days before the substantive hearing.

3. On 12 September 2013, this Court arranged today (i.e. 18 October 2013) for a half day hearing. Thus, the time for the Wife to file her Affirmation in Opposition will be 4 October 2013.

The Wife’s 7^th Affidavit

4. On 11 October 2013 and without any application for time extension made to this Court, the Wife filed her 7^th Affidavit in Opposition (which consists of 120 paragraphs in 26 pages, 16 exhibits containing mainly mobile text messages exchanged between the parties dating back as early as October 2012 until April 2013. The Affidavit together with the exhibits comprises 76 pages in total (page 1328 to page 1404 of Bundle P4).

5. At the hearing, Miss Remedios for the Husband took issue upon the Wife’s late filing and service of her 7^th Affidavit with exhibits without leave and on a Friday (i.e. 11 October 2013) before the long week end (which is from 12 to 14 October 2013) leaving the Husband with only 3 days to consider the Wife’s 7^th Affidavit and exhibits. Miss Irving for the Wife conceded the absence of leave for the late filing not being 14 days before today’s hearing which the parties had agreed and embodied in a Consent Order. It was, however, submitted that there being no prejudice to the Husband. Had the Husband considered being prejudiced for not having had sufficient time to consider the Wife’s 7^th Affidavit, Miss Irving had instructions to seek an adjournment of today’s hearing. Miss Irving’s submission of adjournment was opposed by Miss Remedios for obvious reasons in light of the nature of the Husband’s present application. I should add that the Financial Dispute Resolution (FDR) hearing has already been scheduled for 16 December 2013 (which is just 6 weeks ahead).

6. Some time have been spent by this Court to look into the correspondence between the parties’ lawyers as to the filing of the Wife’s 7^th Affidavit. There are the following correspondences in Bundle C4 which I extracted below the relevant contents with page references in brackets. Reference to “W” is Withers for the Wife; “H” is Haldanes for the Husband :-

Letter from W to H dated 7 October 2013 (at page 1454)

“……..We confirm that we are filing our client’s 7^th affidavit in relation to your client’s Section 18 application which we expect will be filed no later than Wednesday, 9 October 2013 (my emphasis)”

Letter from H to W dated 16 October 2013 (at page 1525)

“We write to place on record the fact that your client’s latest affidavit was filed and served out of time which leave us with an inadequate period of time to take full instructions from our client……”

Letter from W to H dated 17 October 2013 (at page 1528 to 1529)

“……..

With reference to the filing of our client’s seventh affidavit, you wrote to the court on 11 September 2013 seeking the first available hearing date of the court saying that your client’s application was ‘extremely urgent’ [see 4/1409]. Prior to this we had generally agreed the directions for your client’s application that we would file our client’s affidavit in reply on or before 14 days prior to the hearing [see 4/1388]. The court did grant your request for an urgent hearing as per the court’s letter dated 12 September 2013. Therefore, our client has done her best to accommodate your client’s application as other than the hearing date that has now been allocated by the court of 18 October 2013, the first available date for your client’s application was December [C4/1409]. Our client did not seek to interfere with your client’s request for an earlier listing. It is disingenuous for your client to now make a complaint as to the date of our client’s affidavit evidence.

……

As per our letter dated 7 October 2013 [C4/1453], we had instructions that your client was out of the jurisdiction of Hong Kong 7 October 2013 – 13 October 2013. Your client clearly holds a level of indifference as to whether our client filed her affidavit evidence on these matters or not. If he was expecting our client’s affidavit evidence on 4 October 2013 one would expect he would have remained in Hong Kong to discuss these matters with you and Counsel prior to the hearing.

We understand that your client has had his meeting with Counsel as at Wednesday 16 October 2013 and therefore our client’s affidavit dated 10 October 2013 was clearly in time to be considered in advance of this meeting with counsel and the hearing on 18 October 2013.

We trust there is nothing further in relation to our client’s 7^th Affidavit. In the event that you will raise any objection as to having that evidence admitted, we ask that you confirm in writing.”

Letter from H to W dated 17 October 2013 (at page 1536)

“We respond to your letter of the 17^th October 2013.

The simple fact is that your client was out of time with her 7^th Affidavit. With respect whether our client was in Hong Kong or not is not relevant to the issue and you can be assured we were in constant touch with our client when he was out of Hong Kong. Our counsel will raise objection to the late filing.”

7. It is fair to say the Wife’s 7^th Affidavit came in at a late stage. Not to cause any prejudice and delay to the parties, I decided to allow the Wife’s 7^th Affidavit and exhibits to be read and considered. Miss Remedios for the Husband then produced an “Appendix 4” containing the Husband’s response to the Wife’s 7^th Affidavit which was prepared in the form of narrative statement addressing paragraph by paragraph to both the children’s issues and financial issues raised by the Wife in her 7^th Affidavit in opposition. I also allowed this Appendix 4 to be read and considered.

8. Whilst accepting the Wife’s 7^th Affidavit, I have a few observations to make after reading the above correspondence. First of all, practitioners should always be aware that whenever a time period is fixed by a court order and when it appears that the time cannot be met, in particular it is obtained by way of consent, proper application for time extension should be taken out unless the written consent of the opposite party for time extension is obtained. The mere fact of notifying the opposite party for the delay without that party positively consenting to the delay would not dispense with the filing of a time Summons. More importantly, in the absence of a proper Summons or good reasons for not issuing the Summons, that party may be running the risks of not having the indulgence of the Court there and then whereby the client’s interests would be jeopardized. Secondly, practitioners should always bear in mind to avoid lengthy letters or protracted correspondence when it is plain and obvious that those costs of correspondence are out of proportion to the costs of issuing a Summons, in the present case which is a simple summons for time extension where the costs of which are minimal.

The Husband’s application

9. The Husband’s Summons are necessarily a 2-fold application, namely :

(a) Whether a declaration under Section 18 of the Matrimonial Proceedings and Property Ordinance, Cap.192, should be granted notwithstanding the children’s issues, financial or otherwise, have not been fully determined.

(b)If the answer to (a) is in the affirmative, whether there are any grounds for the Husband’s application for the decree nisi to be made absolute be granted forthwith.

The Law

10. Section 17(2) of the Matrimonial Causes Ordinance, Cap.179 (“MCO”), provides :

“(1)………….

(2)(a) Where a decree nisi of divorce has been granted and no application for it to be made absolute is made, then, at any time after the expiration of 3 months from the earliest date on which such an application could have been made, an application for a decree absolute may be made by :-

(i) in a case where the decree nisi was granted on a petition for divorce, the person against whom it was granted; or

(ii)………….

11. Section 18(1) of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”), provides :-

“(1) The court shall not make absolute a decree of divorce or of nullity of marriage, or make a decree of judicial separation, unless the court, by order, has declared that it is satisfied –

(a) that for the purposes of this section there are no children of the family to whom this section applies, or

(b) that the only children who...