Title: W Y -v- C HIGH COURTJudgment delivered on November 23rd, 2007, by Mr Justice Sheehan
JUDGMENT
The High Court ruled that in a family law case involving a couple of Hong Kong origin now living in Ireland, the wife should seek relief in Hong Kong rather than Ireland. Mr Justice Sheehan set aside an earlier High Court order granting the wife leave to make an application for reliefs under the Family Law Act 1995.
BACKGROUND
The applicant husband was seeking to overturn an earlier High Court decision, granted ex parte, to allow the wife make an application in the High Court in Dublin for various reliefs.
He had been born in England, but spent most of his working life in Hong Kong, where he married the Hong Kong-born wife in 1988. They had two children, now aged 15 and 13. They were divorced in Hong Kong in 2002, where the court granted custody to the husband and generous access to the wife. They then moved to Ireland, buying a house in the south of the country.
Some months later the wife moved to an apartment in Dublin to study. Following the completion of her degree, in December 2005 she made an application to the High Court under the Family Law Act of 1995, on an ex parte basis, for a number of reliefs from the High Court, including joint custody of the children and various financial reliefs. She was granted leave by the court to make the application.
In her summons she claimed that the Hong Kong divorce should not be recognised in this State as she had been under duress when it was granted, and that she had been under the domination of her husband during the marriage. She also stated she could not obtain the reliefs she required in Hong Kong.
Bringing an application to set the leave aside, the husband denied there was any duress in the divorce proceedings, and claimed that they were both domiciled in Hong Kong and that the wife should seek reliefs there.
Submissions were received from Mr Alan Shatter, solicitor, on behalf of the wife and from Mr Gerry Durcan, SC, on behalf of the husband, along with affidavits of laws from two Hong Kong-based lawyers, who stated that the financial relief of periodic payment could be sought in Hong Kong. Mr Durcan also argued that it was possible to seek to have the Hong Kong settlement and consent order set aside in that jurisdiction on the basis of duress and undue influence.
Mr Shatter argued that the mistake in his client's affidavit concerning the reliefs available in Hong Kong was a minor one, and that there would be substantial disruption of her and her children's lives were she to seek remedies in Hong Kong.
DECISION
Mr Justice Sheehan said that he considered there had been "a material non disclosure of a serious nature in the wife's affidavit on foot of which leave was obtained . . . Accordingly I hold that the order of this court made on the 15th day of December 2005 granting leave to apply be set aside."
He said the evidence did lend support to the wife's allegations of duress and undue influence, but these were issues that had to be tried.
It appeared from the affidavits that the witnesses who could give evidence resided in Hong Kong. The wife had given no reason for not litigating there.
In all the circumstances Hong Kong was the appropriate venue for her claims, and he refused her application for leave pursuant to Part III of the Family Law Act 1995.
The full judgment is available on www.courts.ie
Solicitors: Eugene Davy, Harcourt Road, Dublin (for the applicant); Gallagher Shatter, Ely Place, Dublin (for the respondent)