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FCMC 23/2018
[2020] HKFC 112
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES NO. 23 OF 2018
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| BETWEEN |
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HKK |
Petitioner |
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and |
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HCM |
Respondent |
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| Before: |
Deputy District Judge Susan Wong in Chambers (Not Open to Public) |
| Date of Hearing: |
19 March 2020 |
| Date of the Petitioner’s written submission: |
6 April 2020 |
| Date of the Respondent’s written submission: |
20 April 2020 |
| Date of Judgment: |
19 May 2020 |
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JUDGMENT
(Paper disposal on costs)
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1. By way of a Summons dated 13 September 2019, the Petitioner (“the Father) made an application for a non-molestation order against the Respondent (“the Mother) under section 3 of the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189).
2. At the 1st call-over hearing on 24 October 2019, I made an interim order restraining the Mother from assaulting, molesting, harassing or threatening the Father and/or the only son of the family, R, during the Father’s access time until the substantive hearing (“the hearing”) which had been fixed to be heard on 19 March 2020 at 10:30. I also granted leave for cross-examination of the parties at the hearing.
3. Unfortunately, due to the outbreak of COVID-19 and in view of public health considerations, all court proceedings were adjourned.
4. Given the nature of this application, a matter that I consider urgent and essential, I directed that the hearing be proceeded as scheduled.
5. As the Family Court Registry was mostly closed during the General Adjournment Period (GAP), filing of documents was not possible. Only shortly before the hearing did I become aware of the agreement between the parties to settle the matter by way of mutual undertaking for non-molestation SUBJECT TO the costs issue, which means the Father asks for costs of this Summons and the Mother asks for no order as to costs.
6. At the outset of the hearing, the matter was settled, namely, without admission of any wrongdoings, the Mother would give an undertaking for non-molestation subject to the argument on costs. I then directed that the matter was to be dealt with by way of paper disposal.
Brief background of the case
7. The parties were married on 25 August 2012 and R was born on 6 February 2013. Petition for divorce was first filed by the Father in November 2016 on the ground of unreasonable behaviour. The Mother defended and filed her cross-petition on the ground of unreasonable behaviour against the Father. With the leave of HH Judge Grace Chan, a fresh divorce petition based on one-year separation was filed in 2018.
8. With consent, the parties agreed to have joint custody with care and control to the Mother and defined staying access to the Father as follows: -
(i) Pick up and return place shall be R’s school during term time on alternate Fridays to Mondays. In case of school’s holidays, arrangements shall be agreed between the parties;
(ii) Chinese New Year, Easter, summer and Christmas school holidays shall be shared equally between parties. Specific access arrangements shall be agreed between the parties;
(iii) During public holidays, R shall spend alternate weeks with each parent and arrangements shall be agreed between the parties.
Circumstances leading to the present application
9. The Father alleged that the Mother had on several occasions behaved violently during his access with R, causing fear or even injury to R and him. In the Father’s supporting affirmation dated 13 September 2019 (“his 1st Affirmation”), his allegation against the Mother’s violent behaviour dated back to 2014, though he says,
“12. Notwithstanding some disagreements between the Respondent and I, the access arrangements stipulated in the said Court order dated 17 January 2018 have been carried out more or less smoothly.”
10. The Mother filed an affirmation in reply on 22 October 2019 to defend her case (“the Mother’s affirmation”).
The law
11. It is governed by Order 62 of the Rules of the High Court and the issue of costs always lies in the discretion of the court. In exercising the court’s discretion, reference can also be made to a number of factors set out in Order 62 rule 5, the Rules of the High Court, including, inter alia, the underlying objectives set out in Order 1A, rule 1, the “any without prejudice save as to costs” letters and the litigation conduct of the parties.
12. HH Ian Wong set out the legal principle in NAV v JTMW (unreported FCMC 4191/2012 23 February 2017) (“NAV”) when a dispute is compromised before the hearing,
128. In Famous Marvel Company Limited & Ors v Conversant Group Limited & Ors, (unreported, HCA 2153/2009, 29 October, 2012) Hon Au-Yeung J summarized the relevant principles for determining costs where the dispute has been compromised by the parties:
“22. There is no dispute that even if a case is settled except as to costs, the Court still has power to determine which party should be liable for costs. There is no tradition for there to be “no order as to costs” in such a scenario. I am guided by the following principles in deciding costs:
(i) The Court is to decide if the party seeking costs has substantially obtained the reliefs sought in the litigation: Re Chinese United Establishment Ltd, HCCW 291/1994, 5 October 1995, Rogers J (as he then was), approved in CACV 214/1995; Lai Yuet Chun v Super Deluxe International Limited & ors, HCCW 186/2001, 3 June 2003 Kwan J (as she then was).
(ii) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the Court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties. Brawley v Marcynski (No.1) [2003] 1 WLR 813.
(iii) The Court will first consider if it is in a position to say what the likely outcome after trial would have been. If it is not in a position to do so, the order may well be no order as to costs: Brawley v Marcynski (No.1), at para 18, Longmore LJ; followed in BCT Software Solutions Ltd v C Brewer & Sons Ltd [2004] FSR 150.
(iv) The Court may permit parties to adduce evidence on the question of costs: Ta Tung China & Arts Ltd v Fontana Restaurant Ltd [1999] 1 HKLRD 404; Lai Yuet Chun v Super Deluxe International Limited & ors, at para 12. However, to say that the parties must go to trial in order to resolve any outstanding questions of costs would be contrary to the underlying objectives enshrined in RHC Order 1A rules 1 and 2: Graham M Morley v Kwan Wo Wan & others, HCA 4366/2003, 30 December 2009, Recorder Jat SC.
(v) A broad brush can be taken by referring to all matters already laid before the Court, eg pleadings, correspondence, witness statements, transcripts of evidence and the terms of the settlement order: c.f. BCT Software Solutions Ltd v C Brewer & Sons Ltd, at para 9; Graham M Morley v Kwan Wo Wan & others.
(vi) The objective is to do justice between the parties without incurring unnecessary Court time and consequently additional cost: Brawley v Marcynski (No.1).”
13. HH I Wong said in NAV,
“129. Both parties had exchanged their affirmations but were able to settle the application before the substantive hearing. The court did not have the opportunity to assess the merits of P’s application. With the mutual undertaking given in favour of the other party, each has obtained the same reliefs or benefits. There is an acknowledgment set out in the recital of the consent order that the undertaking by the parties should not be construed as an admission. R’s affirmation in opposition is more than bare denials. Hence, even if a board brush approach is adopted, the court is not in a position to say what the likely outcome after arguments would have been. In the circumstances, I consider it is fair that each party is to bear his or her own costs in respect of this application, including the costs of the consent summons dated 2 July 2014 and all costs reserved and I so order.”
The parties’ views on costs
14. The Father said that as early as 3 September 2019, he had through his lawyer written to the Mother’s legal representative asking her to provide an undertaking for non-molestation. As the Mother did not respond, he took out the present application and asked for costs[1].
15. Ms Joyce Lee (“Ms Lee”), legal representation of the Father, submitted,
“10. Unfortunately… rather than providing any substantive response to the Father’s suggestion, the Mother instead filed a lengthy affirmation in opposition … before the call-over hearing …
11.The Father then continued to demonstrate his sincerity to compromise the Summons by proposing a mutual undertaking for non-molestation by way of his Counsel’s Note which was filed on 23 October 2019, and which offer was further repeated to the Mother both inside and outside of Court in the call-over hearing.
12. Again, however, the Mother did not provide any substantive reply to the Father’s suggestion. It was not until 2 weeks before the substantive hearing that the Mother appeared to have a change of heart, and indicated by letter from her legal representatives dated 6 March 2020 that she was willing to dispose of the Summons by provision of mutual undertakings, subject to there being no order as to costs[2].
13. By that time, the Father had already incurred substantial costs in preparing his affirmation in reply and preparing for the substantive hearing….
16. Ms Lee therefore submitted that the Father would ask for costs of the Summons up to 6 March 2020[3].
17. Ms Lee further submitted that there are two differences between the present case and NAV. First, the summons was settled by way of a unilateral undertaking from the Mother rather than a mutual undertaking. Secondly, such undertaking from the Mother was essentially the same relief or benefit that the Father could have obtained as early as 3 September 2019, i.e. even before the Summons was taken out.
18. Ms Allison, legal representation of the Mother, argued that it was a child related matter and that the usual order would be no order as to costs.
19. Secondly, the case of D v L (unreported FCMC 8507/2013 13 March 2014) supports the proposition that for summons taken out pursuant to the Ordinance, costs should follow the event if there was a substantive hearing and there were findings of facts as to the allegation complained of.
20. As the matter was settled before the hearing, Ms Allison submitted that the Father could not rely on any finding of facts to support an application for costs since the undertaking was provided on a no admission basis and the Court, even adopting a broad-brush approach, would not be in a position to say what the likely outcome would have been even if there was a hearing in full.
Discussion
21. First of all, I disagree this is a child related matter. Although the application for non-molestation involved the child of the family, it is clear that the present application is taken under s3 of the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189).
22. In D v L, Deputy Judge KK Pang (as he then was) said,
“55. Ms Yip suggests that the usual costs order of an interlocutory injunction is costs in the cause. It may be true for civil cases where interlocutory injunction order such as a Marava injunction is granted as an ancillary relief to the main suit. In the present case, W’s application is made pursuant to the Ordinance. Costs should follow the event.”
23. I agree.
24. I also disagree with Ms Lee that this case is different from NAV because she said that only the Mother gave unilateral undertaking but not mutual undertaking.
25. My view is that be it unilateral or mutual undertaking, parties managed to settle without oral evidence being given in this case. My question therefore is whether this Court would be able to assess what is the likely outcome of the trial based on the parties’ affirmations?
26. The Father set out in his 1st Affirmation some incidents which happened in as early as November 2014. I would not take them into consideration as they were historical and have no place in the present application.
27. As to the 5 incidents happened between 19 August 2018 and September 2018, the Father said in his 1st Affirmation:
(i) On 19 August 2018 (Sunday), the Mother showed up after the school interview...She then grabbed the shirt that R was wearing and forcibly took it off from him, leaving R wearing only his underwear in front of the public. R was very frightened by the violent act of the Mother;
(ii) On 25 August 2018 (Saturday), the Mother showed up at R’s drawing lesson and tried to take him to the home of the Mother’s younger sister in the New Territories. When R refused to go with the Mother, she grabbed R’s arms and pulled him hard. After struggling, R finally freed himself and ran away from the Mother. R was frightened by the violent act of the Mother;
(iii) On 30 August 2018 (Thursday), the Mother showed up after R’s swimming lesson and again tried to forcibly take R away. Although R refused to go with her and managed to escape from the scene after some struggling, the incident was witnessed by the swimming coach and other school staff. R’s feelings were injured and he felt humiliated;
(iv) On 1 September 2018, the Mother attempted to stop him from attending the pre-school briefing by physically blocking him from entering the classroom even though the Father was walking with R at that time. As the incident was witnessed by teachers and school staff, both R and the Father felt hurt and humiliated;
(v) On 15 September 2018 (Saturday), the Mother showed up after R’s drawing class and tried to take R to a function organised by her company that afternoon even though it was the Father’s access time. Even though R said he did not want to go with her, the Mother grabbed both of R’s arms to try and force him to go. Due to the force applied by the Mother, R later developed bruises on his right forearm.
28. I do not wish to set out the Mother’s detailed opposition in my judgment as I agree with Ms Allison[4] that in the WhatsApp record (23:19 on 9 July 2019) exhibited in his 2nd Affirmation[5], the Father said ,
“Both the 2017 and 2018 Summer were split into 2 equal slots, and that was exercised perfectly well. There isn’t any particular issue stop doing the same this year.”
29. Ms Allison submitted that if it was the Father’s evidence that there was no problem with the summer access in 2018, then there should be no reason why a non-molestation is required for the incidents allegedly happened in 2018.
30. I agree. I also agree that for incidents prior to 2019 as alleged by the Father, I ought not take into account save that I wish to say for the first incident in 2018, the Mother said in her affirmation,
“17, The Father had thoughtlessly made R wear a shirt that was clearly too small for him. As the entry interview session included physical exercises and activities, R was suffocating to the point where his face was clearly bright red. As the Father seemed to have neglected R’s suffering, I intervened and decided to take off his shirt to ease his breathing. R was left with his white under vest to which, while is not as inappropriate as being completely topless, is better than R suffocating and perhaps even potentially hindering his body development by wearing tight clothes as provided by the Father.”
31. I can see from the WhatsApp record exhibited by the Father in his 1st Affirmation[6], that the Mother said:
| 19/08/2018, 15:39 – |
The Mother: 如果阿仔唔夠衫, 你可出聲, 或去買(你大把$)!冇理由要他着100cm嘅衫!他現在最小着120cm |
| 19/08/2018, 15:39 – |
The Mother: 如果你係咁樣對待他, 我今晚會取回他 |
32. The Mother appeared to voice out immediately that night why she had to take off R’s shirt.
33. As for the second incident, I note the following WhatsApp messages exchanged between the parties:
| … |
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| 23/08/2018, 12:25– |
The Mother: R開課, 需要準備新黑鞋等物資, 我打算今個星期六帶他去買, 星日先帶他回你處, 我想星六他画班後接他 |
| … |
|
| 25/08/2018, 09:17– |
The Father ����: 上學黑鞋已買了。 |
| 25/08/2018, 09:40– |
The Mother: Anyway, 我都想見下R, 看他情况怎樣, 當初承諾是對方weekend也可以带他外出, 晚上帶他回來, 除了鞋, 還有底衫, socks, etc. |
| 25/08/2018, 09:52– |
The Father ����: 底衫, white socks也有了。 |
| 25/08/2018, 09:56– |
The Mother: 你放心啦, 我今晚會帶返R去迎海, 如果你阻撓我見R, 我别無他選, 唯有報警處理, 請你明白, R的control & care法庭歸予我 |
| … |
|
| 25/08/2018, 09:58– |
The Mother: 如果你今天有活動給R, 我可以明天帶他, 你講清楚便可以 |
| 25/08/2018, 09:59– |
The Father ����: 若然你想見他, 可以在arts drawing後見他, 但不用帶他走。 |
| 25/08/2018, 10:02– |
rick ho ����: 在英文班後見他也可, 但請事前通知。 |
| 25/08/2018, 10:06– |
The Mother: Your term is 11Aug to 31Aug (not 3Sep), and also由於暑假日子較長, 對方有權星六及日帶他外出, 晚上帶回给父/母。。例如, 你21Jul已經有stay access |
| … |
|
| 25/08/2018, 10:07– |
The Mother: 如果搞到報警處理就不太好, 你想想吧 |
| 25/08/2018, 10:08– |
The Father ����: 21Jul是你自己不帶, 不是我問題。 |
| … |
|
| 25/08/2018, 10:13– |
The Father ����: 若然你想見他, 可以在arts drawing後見他, 或是英文班後walk him to arts drawing class。我已經說了。 |
| 25/08/2018, 10:17– |
The Mother: 不是我自己不帶, 是我根據承諾, 所以安排那個星期你來湊R |
| 25/08/2018, 10:17– |
The Mother: 請你明白 |
| 25/08/2018, 10:18– |
The Father ����: 無理取鬧, 扭曲事實, 我不跟你討論了。 |
| 25/08/2018, 10:20– |
The Mother: 如果你合作, 肯溝通, 我便不用選擇這個方法, 我已說過, 我今晚會帶R回你處, 請你放心, 也請你考虑一下我作為母親的感受, 我已經超過2個星期沒有見R! |
34. From the above WhatsApp records, it appears that the Mother had already made the request to see R beforehand.
35. As for the allegation against the Mother since 2019, the Father mentioned 5 incidents in his 1st and 2nd Affirmations.
The 1st incident
“13 (vi) At around 10:30 am on 11 August 2019 (Sunday), the Mother suddenly showed up at R’s football practice session at Shek Kip Mei Park without prior notice. She then scolded R loudly in front of his friends and coach for not doing well and not being able to shoot a goal. As R’s feelings were hurt and he felt humiliated, he requested to leave practice early at 11:20 am even though the normal end time was at 12 noon. It was only after I spent a long time persuading and soothing R that he agreed to attend subsequent practice sessions… However, R refused to attend practice session on 18 August 2019 (Sunday), since he knew the Mother did not have to work that day and it was likely that she would be present.”
36. The Mother replied in paragraph 22 of her Affirmation[7] that she was there to support R’s term end football competition and to provide him with facilities and refreshments. She said that she cheered for R as he was not playing as good as he was capable of that day. During one of the breaks, she again encouraged R, reminding him that the competition was a valuable experience for team-work and it was not about winning or losing. The Mother also said that she had no idea why R was absent on 18 August because when she messaged the Father, he did not respond.
The 2nd incident
37. The Father alleged that at around 12:05 pm on 24 August 2019 (Saturday), the Mother showed up after R’s drawing lesson in Ma On Shan without prior notice.
“She then tried to take R away after saying she had not seen him for a while. Even though R did not want to go with her, the Mother grabbed his right arm with force and tried to pull him along. R was only able to break free from her hold after struggling hard. When R and I then tried to walk away, the Mother continuously hit the back of my neck and head and also bit me on my left shoulder which caused a break of the skin. The Mother also snatch R’s scooter away from my hand by force, and tried to beat me on my chest and body. Eventually, R and I managed to leave the scene, but we felt disturbed and embarrassed that the Mother had caused such a commotion in public, which was witnessed by several passers-by.”
38. The Mother in reply said that,
“23. ….it had been more than 2 weeks since I last saw R, and due to the Father’s uncooperative attitude and reluctance to respond to my messages or to update me on R’s activities, I took it upon myself to check up on him on 24 August 2019. I tried to approach R to talk with him, however, the Father violently pushed me on my chest and forcibly pulled R away, saying “You don’t have my prior permission to see R, this time is my child access time, just go away, R, go…” I insisted on checking up on R, but he pushed me on my neck to which I responded in defense by biting him on his upper arm to erase the pressures he emitted on me. Due to the rather extreme and unusual conduct of the Father, I felt anxious and uneased and therefore decided to follow him and R into the mall in an attempt to communicate and figure out the current situation. I vehemently deny that I hit the Father’s neck and head as he alleges. Such allegations are false and groundless. I clearly stated that I was not taking away R from him under his access time. Due to the incident, I also suffered bruising and scratches on my right hand. With regard to the scooter, given the fact that I was the one who purchased it, I merely wanted to keep it at my home for R. As the Father was reluctant to return it, I did not pursue the matte any further. I completely deny using any force whatsoever…”
39. As the parties are in dispute as to what happened during the 2 incidents, I would not be able to assess from the affirmations who I were to believe.
The 3rd incident
40. The Father’s description of the 3rd incident:
“22. Despite the issuance of this Summons on 13 September 2019, the Mother continued to create difficulties for me in spending time with R during my access. Although there was a prior agreement between the parties for the allocation of the two single-day holidays access, and that I would have 20 September 2019 and the Mother would have 27 September 2019, the Mother suddenly imposed some conditions unreasonably on the terms of my access and deliberately instructed the maid not to allow R to come out to meet me for my access. I was therefore unable to exercise access to R on 20 September 2019.”
41. The Father produced some WhatsApp records and said,
“The said WhatsApp conversation records again showed that the Mother has continued to use unreasonable excuses and also forceful and threatening ways to create difficulties and hindrances to me for exercising my access with R.
42. Some of the WhatsApp records exhibited in the Father’s 2nd Affirmation dated 9th January 2020 (“the Father’s 2nd Affirmation”)[8] are as follows:-
| 19/09/2019, 10:22– |
The Mother: I hope we can “agree” before you action to pick R at anytime. And please mind your nasty tone, afterall I am R’s mother who bought him to this world, no matter you like it or not. I don’t object to yr child access on 20 Sep, but it will be better to pick up R when he wakes up n after breakfast. |
| 20/09/2019, 08:59– |
The Mother: There ar few things I hope you can cooperate to help R on homeworks n extra-curricular activities: 1. Homeworks with ü on handbook finished, the other ar to be finished. 2. Pls practice中文默書, which is on 24Sep for him, refer to previous record on handbook. 3. Pls practice piano with him before piano lesson, so that he gets prepared before class n progress more properly. Unless you promise to help him above, if not, I don’t want him to stay at yours even you entitled to |
| 20109/2019, 10:20– |
The Father����: I have been waiting for R for more than 30mins downstairs at BL to pick him up for his stay with me today, R is ready and very enthusiastic to go. However, Maricris said she cannot bring R out according to your instructions. Please release R by giving your instructions to Maricris immediately. |
| 20/09/2019, 10:21– |
The Mother: Please confirm my request raised this morning |
| 20/09/2019, 10:22– |
The Mother: Please confirm to also let me call R tonight for a chat |
| 20/09/2019, 10:23– |
The Mother: Please also confirm to ask R to show學生手册to 趙主任for Maths matter |
| 20/09/2019, 10:23– |
The Father����: This is not a trade but 2 separate things, I will respond to you later. Meanwhile, you have to release R immediately. |
| 20/09/2019, 10:24– |
The Mother: If you don’t confirm, I wont let R to stay with you! |
| 20/09/2019, 10:24– |
The Mother: Becozit is not for his benefit |
| 20/09/2019, 10:27– |
The Mother: 上面每一樣事都是照顧俊諾所需的, 你必须同意及遵從, 如果不是, R不適合待在你處 |
| 20/09/2019, 10:29– |
The Father����: I am still waiting for Maricris to bring the boy downstairs, your instructions to Maricris is required. |
| 20/09/2019, 10:30– |
The Mother: If you don’t reply n confirm before 11 am, I don’t agree with you picking R today, thanks |
| 20/09/2019, 10:34– |
The Father: You continuing to block my access to child, the incident and your unreasonable act are again recorded. |
| 20/09/2019, 10:36– |
The Mother: Pls confirm all of the above requests for taking care of R. If not, your reluctance is also recorded |
| 20/09/2019, 10:37– |
The Mother: 再講, 我從没有同意你今天接R的 |
| 20/09/2019, 10:39– |
The Father: I have said already. This is not a trade but 2 separate things, I will respond to you later. Meanwhile, you have to release R immediately. |
| 20/09/2019, 10:40– |
The Father: Recall your memory the msg u sent yesterday at 10:22 am |
| 20/09/2019, 10:42– |
The Mother: This is not a trade, of coz. Am not trading with you! How come u describe it this way |
| 20/09/2019, 10:43– |
The Mother: For benefits of R, unless n until you can confirm the above, R is staying with u |
| 20/09/2019, 10:44– |
The Mother: I hv to make sure he stays well with you. No influence on his study, normal life |
| 20/09/2019, 10:45– |
The Father: I don’t need a debate here and I do not want to continue such kind of conversation with you. You have to release R now. |
| 20/09/2019, 10:47– |
The Mother: Sorry no. And I will stop conversation here |
| 20/09/2019, 10:52– |
The Father: I have been waiting downstairs for more than an hour to pick up R for his access stay with me today, give your instructions to Maricris to bring the boy downstairs, please! |
| 20/09/2019, 10:55– |
The Father: Would u release R now? |
| 20/09/2019, 11:28– |
The Father: I have been waiting for R for more than 100 mins since 09:45 this morning downstairs at BL to pick him up for his stay with me today, R is ready and very enthusiastic to go. I called Maricris again just now, she still said she cannot bring R out according to your instructions. |
| |
I’ll come back again to pick R up at 15:05 today as if his normal school day dismissal time. This is Father’s weekend, you have to release him. |
| 20/09/2019, 11:32– |
The Mother: He is not as enthusiastic as u described, well anyway |
43. As can be seen, the unreasonable conditions alleged by the Father was that he was being asked to look after R’s homework and extra-curricular activities though the parties subsequently engaged in arguments, resulting in the Father not having access that day.
The 4th incident
44. The Father then went on,
“23 Worst still, the Mother had once again hindered my access on 1 November 2019 with an unreasonable excuse that the Mother wanted R to spend time with the Mother on the Mother’s birthday. I would like to point out that it is neither a customary for the Mother to spend her birthday with R, nor it is my obligation to entertain the Mother’s request for the same. Having said that, I eventually sacrificed my access time on 1 November 2019 so as to accommodate the Mother’s unilateral arrangement with R. I must emphasize that thing is getting worse for me to gain access with R and that the access arrangement made by the Mother was clearly premised solely on her own needs and desire. Very often the Mother would just ignore my request for access without giving m any reason.”
45. Again, I will extract some of the WhatsApp records as exhibited in the Father’s 2nd Affirmation:
| 28/10/2019, 12:42 |
The Father: Coming Fri is R’s school holiday, it is also Father’s weekend. I shall come BL Fri morning at around 0930 to pick up the boy. Please also allow the new maid …to bring along with the school uniform, school bag, and the homework/textbooks that are required for the following Monday school lessons. Thank you for your cooperation. |
| 28/10/2019, 12:47– |
The Mother: Well this Fri I got a plan with the boy as this is my birthday, will let u know when u can pick him |
| 28/10/2019, 12:50– |
The Father : you can celebrate your birthday earlier, say 31 Oct, not necessarily to be on this Fri Father’s weekend. |
| 28/10/2019, 12:51– |
The Mother: I don’t need to explain to u why, anyway I got a plan with him |
| 28/10/2019, 12:52– |
The Mother: 1 Nov is not your access until we agree |
| 28/10/2019, 12:54– |
The Father : You had unreasonably stopped me from picking the boy on 20Sep, I trust you should behave yourself and don’t ever do this again. 1Nov is Father’s weekend, I will come to pick up the boy. |
| 28/10/2019, 12:55– |
The Mother: 1 Nov is not father access day until we agree |
| 28/10/2019, 12:55– |
The Father: 1 Nov is Friday, a Father’s weekend. |
| … |
|
| 28/10/2019, 14:44– |
The Mother: So? Anyway the boy wants to celebrate with me on my birthday, which you hv never done. Even you want to have 1 more day from the boy’s school holidays, it does not mean you hv to take 1 Nov |
| … |
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| 30/10/2019, 12:44– |
The Father ����: As said, you had taken 6 days out of 12 days in 2019 and I had taken 5 days only. According to the Court Order with the holidays equally splited, this last single-day holiday in 2019 shall reasonably be allocated to me without any other choice of days. I am now making my sacrifice to satisfy your own personal desire though this last holiday should have been allocated to me for the Child-parenting moment. |
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Please be reminded this Friday is a Father’s weekend, I will come at 15:05 to pick up the boy for the boy-father weekend stay. I trust you should behave yourself properly and do not ever attempt to repeat what you had done on 20Sep to block me from picking up the boy again. |
| 30/10/2019, 12:46– |
The Mother: No I need to spend 1 Nov with R. That’s all I can say |
| 30/10/2019, 12:47– |
The Mother: I always behave. |
| 30/10/2019, 12:48– |
The Mother: Thats my birthday, no matter u like it or not, I need to be with R |
| 30/10/2019, 12:51– |
The Mother: 如果你明知我生日都要干擾, 你是有心和我作對!我們已經没有再可溝通的餘地 |
46. As can be seen from the WhatsApp records, the parties engaged in unnecessary arguments again.
The 5th incident
47. The Father said,
“24. Regrettably, the situation continues getting worse during my access period even though an interim order for non-molestation is granted by the Court…On 4 January 2020 at around 10:00am to 11:00am, the Mother showed up during R’s Mathematics class at …Ma On Shan, claiming that she needed to bring ….the text books and the swimming gears to R. In actual fact, I had asked the Mother to bring R’s stuff to the front-desk of my domicile rather. The Mother even interrupted R’s lesson by forcibly entering into the classroom and thereby leading R’s learning being disrupted. R felt hurt and humiliated by the Mother’s deliberate act. R was then frightened and therefore refused to attend the rest of all the extra-curricular lessons over that weekend.”
48. I do not have any idea what the Mother’s response would be as I directed at the 1st call-over hearing that after the Father filed his affirmation in reply of the Mother’s affirmation, no further affirmation would be allowed without leave of this Court. However, it is clear from the WhatsApp’s record produced by the Father that the Mother on most occasions did not show up unexpectedly. She did raise it in the WhatsApp messages but it turned out that the parties started an argument.
49. As can be seen from the above, all allegations made by the Father are about the Mother’s unexpected and unwelcomed presence during the Father’s access time. The worst case is the Mother’s attempt to snatch R from the Father during his access time. The Mother denied any wrongdoings and in particular she denied that she had caused any harm and injury to R. Without the oral evidence of the parties, I am unable to say whether the Father would succeed in his application.
50. In light of my conclusion, the proper order should be no order as to costs.
51. However, as to the hearing on 19 March 2020, I must say that I would not have allowed it to proceed had I known that the only outstanding issue was cost.
52. By virtue of a letter written by the Mother’s legal representative dated 11 March 2020 to the Father’s legal representative, it reads, inter alia:
“Our client maintains that it is appropriate in the circumstances that there be no order as to costs and asks that your client reconsider his position on this so that parties can move forward. If, however, your client wishes to insist on the matter on costs, then the most sensible manner is to have the Court determine this issue by paper disposal rather than attending the hearing on 19 March 2020.”
53. The reply from the Father’s legal representative in the letter dated 13 March 2020 reads,
“We repeat our client’s position that his principal agreement to a mutual undertaking for non-molestation by both parties is ONLY on the condition that your client shall bear our client’s costs of the Summons. We had asked your client to reconsider her position on our client’s offer so that the parties can move forward, however, your client does not accept this and has provided no counter-proposal, there seems to be no alternative but to seek the Court’s ruling on this matter. In this regard, please find the enclosed updated index to Bundle C…”
54. I agree with the Mother’s legal representative that the matter should have been dealt with by way of paper disposal, especially the hearing was listed in the GAP. It is therefore my view that the Father should bear the costs of the hearing.
Order
55. There be no order as to costs of the Summons save that the Father do bear the costs of the hearing on 19 March 2020 with Counsel’s certificates.
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(Susan Wong) |
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Deputy District Judge |
Ms Joyce H. Y. Lee instructed by K.B. Chau & Co. for the Petitioner
Ms Sasha Allison instructed by Shum & Co. for the Respondent
[1] Bundle B 57
[2] Bundle C116
[3] Bundle C138
[4] in her Opening Submission for the substantive hearing paragraph 28 (ii)
[5] Bundle B84
[6] HKK-6 Bundle B92
[7] Bundle A page 33
[8] HKK14 Bundle B110-111
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