CCMJ v. SSM formerly known as SKL

FCMP 67 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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D E C I S I O N
(Leave to appeal)

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Introduction

1.  This is the application taken out by the Applicant (“the Father”) for leave to appeal the Decision of this Court dated 30 September 2016 (“2016 Access Decision”) whereby the Father’s application for resumption of access as per the Order dated 13 March 2014 (“2014 Access Order”) was dismissed. 

2.  The 2016 Access Decision, apart from dismissing the Father’s intended resumption of the “2-year old” 2014 Access Order, directed the Father to apply for determination of details of general access provided to him under the very first Judgment of this Court dated back to 5 October 2012 (“2012 Judgment”) when the Respondent (“the Mother”) was given sole custody, care and control of the child in question after a 16-day trial.  As regards access, at paragraphs 167(b) to (d) of the 2012 Judgment it was decided, inter alia :

“(b) The Applicant do have general access to the child, details to be determined at a hearing to be fixed with 1 hour reserved;

(c) Pending determination on details of the general access or further Order, the present access arrangement shall continue;

(d) Both parties to file and exchange written submissions limited to general access within 14 days from the date of this Judgment.”

3.  As to historical development, the Father first sought leave to appeal the 2012 Judgment but lost first in this Court and then in the Appellate Court in HCMP No.178 of 2013 (see [2013] 3 HKLRD 497).  On 5 November 2013 which is about 6 months after he had lost the intended leave to appeal at the Appellate Court, the Father chose to issue a Summons to seek variation of the custody, care and control granted to the Mother under the 2012 Judgment.  Such variation application did not move along expeditiously and, for whatever reasons, was withdrawn on 8 March 2016; which is some 28 months later and after five (5) Pre-Trial Reviews had been conducted.  This is exceptional and unusual.

4.  With the intended appeal being brought and the subsequent variation being filed, determination of details of the general access under the 2012 Judgment was put in abeyance as a matter of course.  As a matter of usual practice and procedure, following failure of the intended appeal and withdrawal of the variation application, details of the general access under the 2012 Judgment should have, but unfortunately for reasons of tactics or otherwise have not, been revived for determination by the Father.

The relevant provisions

5.  The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

6.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Fok JA at paragraphs 8 and 9 of the Judgment).

7.  There is no issue on the applicable test for the present leave to appeal application between Senior Counsel Mr. Russell Coleman S.C. for the Father and Counsel Mr. Kevin Li for the Mother.

The Father’s application

8.  In the Father’s draft Notice of Appeal, leave to appeal and Order was sought for setting aside the 2016 Access Decision and that the 2014 Access Order be resumed.

9.  The Mother opposed the Father’s application.

The Father’s Grounds of Appeal

10.  Senior Counsel Mr. Coleman S.C. in his skeleton submissions dated 20 April 2017 submitted that the Father’s proposed grounds of appeal identified the following ‘flaws’ in the 2016 Access Decision :-

(a) There was no proper basis to order reasonable access;

(b) There was no proper basis to order access on a conditional basis;

(c) The Court’s reason for departing from the recommendation to resume normal access in the Social Welfare Report was manifestly wrong;

(d) It was also manifestly wrong to dismiss the Father’s application to resume normal access.

11.  The Father’s Draft Notice of Appeal, consists of 16 grounds under the following 8 headings :-

(a) Misunderstood the Facts/Evidence (Grounds 1 to 2);

(b) Access Recommended by Professionals = Access Granted by 13/3/2014 (Ground 3);

(c) Application to resume access because of 3^rd Abuse Allegation (Ground 4);

(d) Schooling Considered by Mr. Cheng (Ground 5);

(e) Reasonable Access Not in the Child’s Best Interest (Grounds 6 to 9);

(f) Conditional Access Not in the Child’s Best Interest (Grounds 10 to 14);

(g) Took Irrelevant Factor into Account/Gave it Disproportionate Weight (Ground 15);

(h) Failed to Take Into Account Important Factors (Ground 16).

The Court’s Views

12.  To start with, it is pertinent to say the term “normal access” which has been used by the social welfare officer Mr. Cheng in his oral evidence and report, should not be taken to mean any access arrangement not in line with “normal access” so described by Mr. Cheng would not have been normal.  The word “normal” should not be taken lightly at its face meaning.  In addition to the term “normal access”, there are other terms used by the Father in his Grounds of Appeal such as “Supervised Access”; “Conditional Access” and “Access Prior to AA” each of which should call for meanings restricted to context by reference to the specific circumstances at the time rather than any face meaning taken broad-brushly.

13.  In the Grounds of Appeal, the Father asserted this Court erred in fact in stating or implying that the Father’s Summons and/or the Mother’s Summons was prompted by the suspension of the 2014 Access Order on 4 June 2015 following the Mother’s complaint of suspected child abuse after an access ended on 30 May 2015.  The Mother’s Abuse Allegation (“AA”), in particular, the 3^rd AA on 24 October 2015 had caused suspension of the 2014 Access Order on 9 December 2015.  At Grounds 1 (c) and (d) it was said :

“(c) Owing to the 3^rd Abuse Allegation, the Normal Access prior to AA was suspended and replaced by a supervised access of 3 hours per week at the Social Welfare Officer’s office by an order dated 9 December 2015 (“Supervised Access”).

(d) Pending the substantive hearing as regards the 3^rd Abuse Allegation, the Supervised Access was modified to a defined day access of every Saturday from 10 am to 9 pm, on the condition that the Father complies with five undertakings put forth by the learned Deputy Judge, by an order dated 31 March 2016 (“Conditional Access”).”

14.  There are 2 fallacies in such Grounds.  First, the access arrangement prior to the 3^rd AA was labelled as and pre-supposed by the Social Welfare Officer Mr. Cheng (and such label is now taken advantage of by the Father throughout this application) to be a kind of “normal access”.  Such misnomer, so to speak, provides nothing but ambiguity.  As a matter of fact, the access arrangement prior to the 3^rd AA was the 2014 Access Order which, at the time when it was granted in 2014 (my emphasis), must have been fair and reasonable having regard to the then existing circumstances in 2014 for otherwise it would not have been granted.  Whether the 2014 Access Order was, and continued to be, a kind of “normal access” which was fair and reasonable at the time of hearing the Father’s Summons for resumption, that is to say in July 2016 which is more than 2 years later (my emphasis), is something which call for further consideration, investigation or preferably further report.

15.  Given the dynamics of children’s matter, it is wrong for Mr. Cheng and the Father to pre-suppose the specific access arrangement in the 2014 Access Order to be any kind of normal access with perpetuity (my emphasis).  Putting aside the 2014 Access Order and then putting in place a different access arrangement to cater for any particular circumstances that had arisen is within the Court’s powers and duties to do so.  The fact that access was changed to a supervised one following the Mother’s 3^rd AA, in my view, is a matter of course.  There is no question as to any error in fact as to the Father’s Summons for resumption being prompted by suspension of the 2014 Access Order.

16.  Modification of the supervised access to become unsupervised access on 31 March 2016 upon undertakings by the Father and with conditions to be satisfied was concurred by the Father through his then Counsel Mr. Hotten in court even though they did not come from the Father.  It is trite law that a party could not be compelled or ordered to give undertakings.  Had the undertakings not been concurred by or consented to or, as now so alleged in this appeal, ‘forced upon’ the Father who had no choice at the time but to accept, the Father (who was legally represented and properly advised throughout the hearing and thereafter) should have taken the matter on to appeal soon after the hearing.  At the very least, the Father could have sought modification of or withdrawal from the undertakings and conditions.  Oddly enough, the Father (with the benefit of legal advice) proceeded to comply with the undertakings and conditions for months until his Summons for resumption of access was dismissed.  The Father then raise it now as one of the grounds of appeal against the 2016 Access Decision.  The undertakings and conditions, even if not explicitly consented to there and then, must have been accepted by his conduct or implicitly.  It is wrong for the Father to raise such contention now whether in an attempt to renege from the undertakings and conditions or as a ground of appeal.  He is also, as a matter of law, estopped from raising such contention.

17.  It was submitted by the Father that there is no proper evidence suggesting that the Conditional Access is in the best interests of the Child.  Reason being that it was neither raised nor discussed in the Social Welfare Report, it was neither raised nor recommended by any of the 9 professionals in the MDCC; it was not put forth by the Father.  In my view, if and when the parties proceeded to carry out terms and conditions unreservedly and that access was then implemented, neither party could renege from their position and raise as an issue that those terms and conditions duly complied with originated from nowhere or challenge the rationale behind.  Such conduct of litigation is, in my view, unreasonable if not unscrupulous.  

18.  Thus, I find Grounds 1 to 2 have no reasonable prospect of success on appeal.

19.  There comes the Father’s submission that the Conditional Access was put in place only due to the 3^rd AA, which was clear from the terms of the undertakings, and given the fact that no abuse was then found by the professionals in the MDCC or this Court, the basis for the Conditional Access fell away (see paragraph 28 of Mr. Coleman S.C.’s submissions). 

20.  With respect, I do not agree.  The Father seems to suggest that once the basis for the Conditional Access fall away, the access arrangement should be “automatically” reverted back or switched over to the 2014 Access Order without the need of any thought or review as to the latest situation and circumstances, such as, the child’s latest daily routine and timing, schooling hours so on and so forth.  Reference was made to one of this Court’s earlier decision in this case (date of judgment : 21 September 2015) where the 2014 Access Order was resumed.

21.  The 21 September 2015 Decision differs from the present case.  First of all, the period of suspension by that time was only of a short duration of 3 months from 4 June 2015 and it was resumed in September 2015.  In the present case, the suspension had lasted for around 7½ months since December 2015 when the matter was heard by this Court in July 2016.  The Child was expected to finish the 2015/2016 school calendar year in the month of July and there may be all sorts of different schedules and routines in the upcoming 2016/2017 school year which requires consideration of the Court.

22.  Moreover, as can be seen in the 21 September 2015 Decision, a social welfare report was specifically called for and before the Court on 10 August 2015.  A further note dated 1 September 2015 on 2 consecutive access arrangement on 27^th and 28^th August 2015 was also before the Court.  The conclusion on those 2 consecutive access was that the atmosphere was harmonious and relaxing in general. 

23.  Compared with the present case, the social welfare officer Mr. Cheng in his report noted the startling emotions when the child displayed disapproval with the Father.  More importantly, Mr. Cheng was transferred out of the post around end of February 2016 and accordingly, he had stopped evaluating the case from February/March 2016 onwards until the trial in July 2016.  He agreed his evaluation of access only hold good until February/March 2016 and that a further report from his successor is desirable before deciding resumption of the 2014 Access Order (see paragraph 30 of the 2016 Access Decision). 

24.  To simply adopt an “automatic reversion or switch back” to a 2-year old Access Order without any consideration of the circumstances 2 years later, not to say any possible change in affinity of the Child in question who is still of tender years, is wrong.  In my view, the Father should have sought determination of the details of general access under the 2012 Judgment which had long been overdue for almost 5 years instead of insisting upon “automatic reversion or switch back” to the 2014 Access Order which apparently is the Father’s favour or preference.  In reality and practical terms, the Father did not afford himself the chance of determination of the details of general access under the 2012 Judgment; which may or may not end up with an access arrangement wider in scope than the 2014 Access Order.  Having said, the Court is duty bound to consider the best interests of children rather than the wishes or preference of the parents.   

25.  The Father, whether knowingly or unwittingly, not proceed with determination of the details of general access for 5 years under the 2012 Judgment but chooses to linger upon the 2014 Access Order would not be accepted or encouraged by the Court.  Apart from case management perspective and the underlying aims and objectives (Order 1A Rule 1 of the RHC) under the Civil Justice Reform (“CJR”) regime, where cases should be dealt with as expeditiously as is reasonably practicable with costs effectiveness and to ensure Court’s resources are fairly distributed, it is trite law that Court orders and directions are to be observed and complied with.  Unless the Father is able to overturn the determination of the details of general access in the 2012 Judgment, he was and still is obliged (my emphasis) to comply with it no matter how dissatisfy he is about it. Otherwise, the Father would be able to take the law in his own hands to flout Court orders.  The Court would then become hands-tied or forced to turn a blind eye over it.   As the docket Judge overseeing this case for 5 years with 16 written Decisions handed down (including the present one), not to mention a few Appellate Court decisions, the Father’s litigation conduct over these years poses a genuine concern not only with the Mother, also with this Court.  It is noted that the Appellate Court lately also saw fit to order indemnity costs of HK$100,000 against the Father (see HCMP No.2059 of 2015).  Besides, there are 2 other costs order of the Appellate Court in the sum of HK$40,000 (HCMP No.178 of 2013) and HK$60,000 (HCMP No.3205 of 2016) against the Father notwithstanding all the disputes circled upon children’s matters.  Throughout these 4 to 5 years of protracted litigation, the Father had spent millions of dollars engaged different reputable law firms and different experienced Counsel one after the other on all possible areas whereas the Mother all along was and still is on legal aid to protect the child’s interests.

26.  At paragraph 29 of Mr. Coleman S.C.’s submissions, it was said that if this Court genuinely took the view that Conditional Access is in the best interests of the Child, it is illogical or unclear why Conditional Access would only be implemented if, quoting the words in the 2016 Access Decision, “the Father applies to proceed with the general access arrangement provided for under the Main Judgment within 21 days”.

27.  It is then submitted that the form of the 2016 Access Decision is wholly inapt to child proceedings.  It comprises an ‘unless order’ which rests to compel a request for directions under threat of a different form of access arrangement.  Moreover, it does so where neither of the two conditional alternatives is legally or factually apt to the circumstances (see paragraph 2 of Mr. Coleman S.C.’s skeleton submissions).

28.  There are 2 limbs of such contention.  First, Mr. Coleman S.C., submitted that the imposition of a reasonable access order was at least arguably clearly wrong; it couldn’t be in the best interests of the Child.  Nobody raised it or discussed it, not the Social Welfare Report, none of the professionals, not the Mother herself and not the Father.  Secondly, there is an illogicality there in that if reasonable access to be in the best interests of the Child, it would only be applicable if the Father doesn’t apply for directions for general access.  Further and as a corollary contention, if the Father doesn’t so apply, why not the Court just give directions by, for instance, saying to the parties that they should be filing affidavits and the Court then would obtain a Social Welfare Report.

29.  With greatest respect to Mr. Coleman S.C., such submission fails.  As said earlier in paragraph 15 above, conditions were attached to access to cater for particular circumstances that had arisen.  Reasonable access has been granted by Family Courts day to day and is not any peculiar kind of access requiring parties’ propositions or social welfare officer’s recommendation.  It is well within the Court’s powers and jurisdiction to grant it whenever it sees fit in appropriate cases without the need of any proposals from parties or recommendations from social welfare officers.  Having said, if the parents’ litigation conduct or attitude towards each other or, even over their child is, if I may use the word ‘unreasonable’, there will never be any “reasonable access” proposals from either parent.  As a matter of common sense and logic, parties would never propose “reasonable access” when they themselves are being unreasonable.  In such cases, would the option of reasonable access, a form of access readily available to the Court, be then ruled out by the parties’ unreasonable conduct ?  Moreover, there seems to be no cases or authorities for “reasonable access” either has to come from parents’ proposals or social welfare officer’s recommendation before the Court could grant such an access.  The Court’s discretion over children’s matter including access are wide and unfettered which varies from case to case or within the same case but at different stages of the litigation.  Further and in any event, at paragraph 29 of the 2016 Access Decision, this Court said :-

“29. In my view, whatever label or description given to the existing access arrangements is neither here nor there. What does really matter is whether the existing access arrangements are in the best interests of N given the fact that the scope and extent of access at present is comparatively less than that provided for under the 13/3/2014 Order. In particular, staying access with the Father has not been provided for at present (my emphasis). I believe this is also the main reason for the Father to apply to resume the 13/3/2014 Order. In any event, parties should always look forward to practical solutions rather than nagging upon historic events (my emphasis).

30.  There is no finding at paragraph 29 that the Conditional Access was in the best interests of the Child.  Quite contrary, the Court was very much concerned with whether the access arrangement then existing, that is, the Conditional Access could be in the best interests of the Child in particular when there was no staying access. Without going further to any unrealistic and impracticable terminology on access, the parties were then reminded by the Court to look forward for practical solutions.  On such reminder, the initiative falls back again with the Father (having all along been legally advised) to proceed with details of the general access determination under the 2012 Judgment which had been long overdue.  There is no illogicality or unclearness so asserted by the Father. 

31.  The contention that the 2016 Access Decision comprises an ‘unless order’ in that the Father was said to be compelled to request for directions under threat of a different form of access arrangement is misconceived.  Such contention can only be arguable if the determination of details of the general access under the 2012 Judgment had been set aside or overturned on appeal.  Otherwise I fail to see why this Court could not, in the exercise of its case management powers overseeing cases before it, proactively put a litigant back to the right track in order to uphold compliance of the 2012 Judgment so as to prevent any further unwarranted flittering of the case.  The word ‘unless’ was used to accommodate the Father with some time to manoeuvre his long overdue application.  There is no question of 2 modules of alternative access so submitted, that is Conditional Access/reasonable access, depending on whether or not the Father proceed with his long overdue application under the 2012 Judgment. 

32.  With greatest respect to Mr. Coleman S.C., the Court directly or even robustly asking the parties to file affirmations and then to obtain Social Welfare Report outright, which I accept the Court is able and entitled to do so, is inappropriate in this particular case.  First, granting such outright directions at the conclusion of the Father’s application for resumption of access (when he did not seek any other or alternative directions) exonerates the Father’s obligation to explain his delay on compliance, but which is wanting.  This may also be depriving the Father’s right to give explanation.  Secondly, granting such outright directions there and then without giving the Father any time to prepare for compliance of the 2012 Judgment poses substantial risks of delay rather than providing solutions or expediting the matter.  Given the fact that the Father, with legal advice throughout these years, managed to come up with various reasons to have his own variation application dragged on for about 28 months (from November 2013 to March 2016) and after five (5) Pre-Trial Reviews had been conducted (see paragraph 3 above) and then withdrew it completely, it is not surprising a similar exercise would be repeated if he was not given any or sufficient time to pick up the 2012 Judgment.

33.  Thus, I find Grounds 1 to 2 and 6 to 15 have no reasonable prospect of success on appeal.

34.  Grounds 3 and 5 referred to this Court erred in its finding that the “normal access” recommended by the social welfare officer Mr. Cheng should not be taken to mean the terms of the 2014 Access Order.  At paragraphs 32 and 33 of Mr. Coleman S.C., skeleton submissions, it was said :

“32. At the time the Social Welfare Report was prepared, the Child was repeating Primary One as observed by Mr. Cheng, i.e. it was her second year in primary school. Thus, the Child’s schooling at primary school has existed for quite some time when Mr. Cheng conducted his investigation.

33. Indeed, Mr. Cheng explicitly considered schooling of the Child in Primary School at §§11 and 12 of the Social Welfare Report; and gave oral evidence that his recommendation to resume the previous access was made after consulting teachers and staff in primary school and after taking into account the schooling matters of the Child in Primary One, including but not limited to the Child’s academic performance, homework and her emotional behaviour in school.”

35.  As set out in paragraph 23 of the 2016 Access Decision, access should be considered against a number of different existing facts rather than relying upon historical events.  Schooling is amongst one of the several factors to be considered.  Further, as stated in paragraphs 12 and 14 above of this Decision, Mr. Cheng had pre-supposed the access prior to the AA to be a kind of “normal access” and such pre-supposition suggested nothing but ambiguity. 

36.  Further, social welfare report is not binding on the Court.  It is not a special category of material information nor should the recommendation assume a status somewhat akin to a legal presumption which needs to be rebutted.  Ultimately the decision making lies with the judge based on the available evidence and guided by the relevant principles (see WSM v. FSY (a minor: custody appeal), CACV No.352/2004). 

37.  Also at paragraph 23 of the WSM case (supra), it was said :

“23. This is a matter of commonsense but as more recent cases show, the judge’s reasons for reaching his own decision instead of relying on the recommendation are normally the very reasons for his declining to follow the recommendation. Unless his reasons are manifestly wrong he is not under any further duty to spell out the reasons for departing from the recommendation : see Re V (residence : review) [ 1996] 3 FCL and Naziya Aslam v. Rafagat Ali (CACV 144/2003). This is an approach we will also adopt. Otherwise the matter will be enmeshed in technicalities.”

38.  Thus, I find Grounds 3 and 5 have no reasonable prospect of success on appeal.

39.  Ground 4 referred to this Court erred in finding at paragraph 25 of the 2016 Access Decision that the Father did not explain why he applied to resume the 2014 Access Order.  The Father did so explain in his affirmation.

40.  Ground 4 missed the point.  Paragraph 25 of the 2016 Access Decision referred to the absence of explanation for not seeking determination of the details of general access under the 2012 Judgment.  It was not about the absence of explanation for seeking resumption of the 2014 Access Order.  Paragraph 25 is recited as follows :-

“25. Moreover, Counsel Miss Athena Wong in her Submissions referred to the Father’s application for general access being overtaken by event of his earlier custody variation application. It is, however, noted that such custody variation application was withdrawn on 8 March 2016, which is 8 days prior to his filing of the present Summons for resumption of interim defined access on 16 March 2016 (although the Summons was dated 7 March 2016). Why the Father does not pursue the general access arrangement (my emphasis) but chose to pursue resumption of the interim defined access Order of 13/3/2014 remain to be explained (my emphasis).”    

41.  Thus, Ground 4 has no reasonable prospect of success on appeal.

42.  For Ground 16, the Father submitted that this Court failed to take into account important factors such as (a) Pattern of Child Abuse Allegation; (b) Child’s fear to the Mother; and (c) Abuse Allegations were very harmful to the child.

43.  Failure to take into account pattern of child abuse, even if substantiated which I disagree, does not provide any basis for “automatic reversion or switch back” to the 2014 Access Order for those reasons set forth in paragraph 20 above. 

44.  The Father’s reference to the child’s fear to the Mother was recorded in previous years in 2013, 2014 and 2015 by other officers.  There is no such observation of fear to the Mother by social welfare officer Mr. Cheng.  This Court does not see fit to attach weight to those historic feelings or fear of the child or would there be any relevance when deciding what access would best fit the circumstances in July 2016 for securing the best interests of the child. 

45.  As to the abuse allegations were harmful to the child, this Court has duly noted.  Apart from the Court’s concern of this case being dragged on for years and tried to provide stability on access for the child by requiring the Father to act conscientiously and expeditiously (as stated in paragraph 33 of the 2016 Access Decision) to seek determination of the details of general access, this Court at the concluding paragraph 34 of the 2016 Access Decision commented as follows :-

“34. In so deciding, I have considered but minded not to arrange any further social welfare reports. Reason being that the child has already been subjected to numerous interviews by different professionals including several social welfare officers in the past few years some of which, as I see it, could have been avoided had the parents been more sensible and reasonable with less animosity against each other.” 

46.  Thus, I find Ground 16 has no reasonable prospect of success on appeal.

Grounds on interests of justice

47.  Although Mr. Coleman S.C., had not urged this Court to consider such ground, I did consider it and find that there being no other reason in the interests of justice that leave to appeal should be granted.

Conclusion

48.  For all the above reasons, I find the Father failed in satisfying the necessary threshold for granting leave to appeal. 

49.  According, I dismiss the Father’s Summons dated 14 October 2016 for leave to appeal.  For children’s matter, it is well established that the Courts would normally make no order as to costs in trials on custody and related issues.  Rationale being that parents should not be deterred from litigating for the best interests of their child for fear of the costs of litigation.  However, the same rationale does not apply to appeals and that the normal rule of “costs to follow the event” should apply. Otherwise, the parent who successfully opposed the appeal would have to bear his or her own costs whereas the other parent who triggered the appeal but lost could have his or her days in Court without any risks to pay costs.     

50.  In light of this Court’s decision, I now order the Father to pay the costs of the Summons dated 14 October 2016 together with costs reserved (if any) to the Mother.  Since the Mother is legally aided, I also order that the Mother’s own costs be taxed in accordance with Legal Aid Regulations.

51.  I also grant Certificate for Counsel.

Orders

52.  My Orders are as follows :-

(a)  The Applicant’s (Father’s) Summons dated 14 October 2016 be dismissed;

(b)The Applicant (Father) do pay to the Respondent (Mother) the costs of the said Summons, including any costs reserved, to be taxed if not agreed;

(c)  The Respondent’s (Mother’s) own costs be taxed in accordance with Legal Aid Regulations; and

(d)There be Certificate for Counsel.

53.  This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Decision.