N v. I

FCMC12028/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 12028 OF 2002

R U L I N G

1.  The parties are before the court this morning in relation to two matters.  One is a pre-trial review in relation to the mother’s application to vary custody, which will be coming before the court in June of this year and has been set down for four days.  There was a previous order dealing with ancillary relief and custody which is the subject matter of the mother’s application to vary and that was dated 13 February 2003.

2.  The recent history of the case is that the parties appeared before Deputy Judge Lo on 30 November 2005 in relation to various matters and a detailed order was made.  What brought the matter to a head were two issues which arose at the end of 2005.  One was a temporary removal application by the mother which was initiated by an ex parte application, and secondly, a summons by the father for what he says is chronic breaches of the order of 30 November 2005 in relation to access by the mother.

3.  The situation is that this morning, with the considerable help of Miss Yip for the mother and Miss Remedios for the father, further directions have been agreed for the future conduct of these proceedings, and that is subject to a previous order.   The Social Welfare officer in this case has prepared a report and that arrived some one to two days ago.

4.  The matter that now comes before the court to be decided is that of costs in relation to the hearing that came before the court at the end of last year in terms of the father’s allegation as to the mother’s breach of previous court order.  Miss Remedios, on behalf of the father, asks for an order as to costs.  Both Miss Remedios and Miss Yip have, prior to today, filed helpful and detailed written submissions not only as to the factual matters that the court should take into account but also the relevant authorities as to costs.

5.  Miss Yip says, quite correctly, and this is not in any way disputed by Miss Remedios, that in children’s cases an order as to costs against one party is unusual.  That is quite plainly reflected and recorded in numerous authorities and the current edition of Rayden.  In addition to which Miss Yip says, again appropriately, that to make an order as to costs now might colour any potential negotiations to resolve the substantive matter as to the variation of the custody order of the child of the family.  She also highlights, and I think this is a substantive part of her submission, that it is the mother’s case that the breaches, such as they were, were but technical because the mother was acting not out of her own wish but to reflect the views of the child.  This is perhaps echoed in the Social Welfare report which records at paragraph 34, and I quote, “The child indicated his preference to live with his mother because he had lost sense of security living with the father.”  This passage was specifically quoted by Miss Yip.  The recommendation of the Social Welfare report is as to access to the mother and custody to the father.

6.  Miss Yip also says that the appropriate way to deal with costs is to reserve costs, and just because I will not be the judge dealing with the matter in June I should not simply say, as I have done, that I think the costs should be dealt with today as it will be difficult perhaps for another judge to deal with matters, having not, so to speak, lived through the last few weeks of this litigation from a judicial standpoint.  This is linked, no doubt, to the point that in children’s cases it is often said that costs should be reserved until the end, so that matters are not destabilised by one party thinking they have won or lost as reflected by a costs order.  

7.  A matter which I was not addressed on by either party but I think is appropriate when looking at costs is the reference that in the past the mother has had, to use a relatively neutral term, emotional difficulties, and that therefore should that be put into the equation when looking at her recent, to use Miss Yip’s expression, technical breaches.

8.  This is, without doubt, a complicated case.  Variation of custody when there has been a history, as in this case, will involve a delicate balancing act on behalf of the court to take into account all the relevant considerations for the future of the child.  Those, I think, summarise the aspects helpfully put to me by Miss Yip.

9.  So far as Miss Remedios, she at the last occasion helpfully prepared a chronology which she says is an example of chronic breaches of access.  She particularly refers to the order of Judge Lo made on 30 November and that, that very night, the order was breached.  Furthermore, she highlights paragraph 13 of that order, where the mother was given the opportunity to file an affirmation in support of day access and staying access on Wednesday but did not do so, but on Miss Remedios’s case, took the matter into her own hands.

10.  Miss Remedios reminds the court that in this jurisdiction particularly, an undertaking is a solemn promise to the court.  It is given voluntarily, and in this case the mother had the benefit of solicitors and counsel, and it seems to me inappropriate for the court to look behind that undertaking.  It was either given or it was not, and in this case it is recorded in the court order.

11.  Now, if I may, I will turn to the law, as helpfully put together in a bundle by Miss Yip.  I have already alluded to Rayden and the concept and principle that it is unusual to make an order of costs in children cases.  Miss Yip then took the court to the authority of R v R (Costs : Child Case) [1997] 2 FLR 95, decided by the Court of Appeal in England in 1996.  In the headnote, it refers to exceptional circumstances and states:

“The unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of litigation.”

It is this theme which I see flowing through some of the other authorities that is particularly relevant to this case.  As Miss Remedios has said, this is not a question of costs in relation to an argument as to whether there should or should not be custody or a variation.  It is costs arising from what Miss Remedios says is a breach of a previous order.  That, to my mind, is a significant distinguishing factor than a situation where the court is asked to determine an issue of variation or custody.

12.  Miss Yip also referred to the authority of Re G (Costs : Child Case) [1999] 2 FLR 250,decided again by the Court of Appeal in England in 1999.  In that case, the father’s appeal against costs was successful and it is stated in the “held” part:

“Although it was unusual to order costs in a family case, such an order could be made against the party who had behaved unreasonably in the litigation, but in this case there was no finding that the father had behaved unreasonably.  The finding that the father’s case was hopeless did not justify the costs order.”

Again, I think this highlights the importance of the distinction between the outcome of the substantive application and the conduct of the parties in the process of litigation.

13.  Miss Yip also referred to C v FC (Children Proceedings: Costs) [2004] 1 FLR 362 decided in 2003.  The main thrust of that case was where there had been an initial dispute about jurisdiction, costs should be decided at the end of the proceedings.  I will come to that point later, but I recognise that it is an important question as to whether the costs should be dealt with now or at the eventual outcome of the case.

14.  The final authority is M v H at 2000 (Costs : Residence Proceedings) [2000] 1 FLR 394, deals with disparity of earning power or finances.  In this case, I am aware that there has been a final order as to ancillary relief.  That in the main involves a transfer of property and lump sum to the wife, part of which she will receive next month and the following year, but in the main there is a distinction in wealth between the parties.

15.  Drawing all these matters together and being mindful of the authorities which I had helpfully drawn to my attention, I consider that in all the circumstances an order as to costs against this mother is appropriate.  I am fully aware that this is an unusual order.

16.  The process of litigation and interlocutory orders are there to be a guiding handrail to the litigants themselves, and indeed how they conduct themselves, not only in relation to themselves but the child or children.  The mother’s proposition, eloquently put by Miss Yip, that the breaches were simply her reflecting what the child wanted, are of concern to the court in the context where the Social Welfare report, stated at paragraph 35 and which was referred to by Miss Yip :

“He expressed his wish to live together with the mother.  He told the investigating officer that his father’s love towards him was not true.  The father only made use of him to please the grandfather, just for the inheritance.  When inquired further, the child disclosed that this was what his mother had told him and he believed it to be true.”

In addition to this in terms of the ex-parte application for temporary removal, the mother was aware of the plan to go for a holiday outside Hong Kong at the end of the year on 30 November and had discussed it with the child but had not conveyed this plan, certainly as I understand it, to the father and not so far as I recall to her advisers.  She therefore put the father in the difficult position that he either agreed to the temporarily removal, or disappointed the child.  How would that help the child?  How would that help the child’s relationship with the father?

17.  It is essential for parents to appreciate that it is the height of irresponsibility to involve children in the disputes when they themselves cannot resolve such disputes without the assistance of professional help and/or the court.  To put it bluntly, if they cannot resolve the decision how do they expect a child to?  Too often, the Family Court sees situations where for tactical or other reasons children are manipulated, either directly or indirectly, in a way that is not in the child’s best interests and which is likely to cause ongoing litigation.

18.  I have made an order that the mother will pay costs.  I am now going to quantify those costs, as invited to do so by Miss Remedios.  The parties’ costs are very similar.  For the father, it is some $57,000 and for the mother, some $59,000.  They both have, understandably, had the benefit of experienced counsel in this difficult case.  I am making and quantifying costs today because I do not think it is in the interests of either party to undergo the further costs of taxation, and furthermore, because the costs order is going to be one that specifically takes into account the difference in financial circumstances and the unusual nature of this order, namely, against a parent in a child case.  It is also going to be an order that reflects the importance for parties to recognise that they must conduct litigation in a responsible fashion, not only in regard to their spouse or former spouse but particular in regard to the child in question.

19.  Ultimately, legal costs in family proceedings come out of the family pot.  They are not paid by an insurance company or a company bank account.  They are paid by the parties themselves.  Taking into account that the father’s costs are in the region of $57,000, I am going to discount that figure substantially because I am mindful of the points made by Miss Yip in terms of the mother’s circumstances.  Broadly, a party and party costs order would be somewhere in the region of $37,000 at 65 per cent.  I am going to order the mother pays $15,000, which is somewhere slightly between 20 to 25 per cent.  That order for costs will not be due and payable until the delivery of the judgment, if there is one, at first instance in the variation application currently listed in June or the filing of a consent summons determining the application to vary custody. 

20.  For the avoidance of doubt, the costs of the pre-trial review will be reserved with certificate for counsel.

Representation:

Miss A Yip, instructed by Messrs Eric Yu & Co., for the Petitioner

Miss C Remedios, instructed by Messrs F Zimmern & Co., for the Respondent