RM (aka RH) v. SRM

FCMC 7451 / 2016

[2019] HKFC 93

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7451 OF 2016

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Judgment
(Security for Costs – Relocation Case)

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The Application

1.  This is an application for security for costs in a relocation case.   Application of this type in the context of children proceedings is the rarest of its kind but as I will elaborate below, security for costs may still be available in appropriate cases.

2.  This application for security for costs is taken out by the respondent father who has the care and control of the 2 children of the family, both boys, against the petitioner mother who has since September 2016 relocated to Japan, her home country.  On 27 October 2017 the petitioner mother applied to have the boys to be relocated to Japan so that she could take care of them. After the social investigation report (“SIR”) and the international social investigation report (“ISIR”) had been obtained and after a failed Children Dispute Resolution Hearing on 25 May 2018, the respondent father took out this application on 15 August 2018, seeking security for costs in the sum of $750,000. 

3.  In this judgment I shall, for ease of reference, refer to the petitioner and the respondent as “the mother” and “the father”.  I shall refer to the elder boy as “G” and the younger one as “L”.   G was born in March 2004 and is now aged 15.  L is much younger.  He is now 6 ½ years old.

4.  I have to point out at this juncture that the mother’s present application for relocation is already her second one. Her first one, that underwent a 11-day trial not long ago, was rejected by Deputy Judge Susan Wong on 7 September 2016 (referred to as “the 2016 Relocation Judgment”).   As will be seen below, Mr Pickavant, who represented the father, placed heavy reliance upon the 2016 Relocation Judgment, in particular, the judge’s criticism on the mother and the various findings that were made against her.

5.  In order to put the father’s application in proper context, it is necessary to refer to the history of the relocation dispute and the findings in the 2016 Relocation Judgment.

The History

6.  The mother is Japanese and the father British.  They met in Germany in 1999 when the mother was working and the father was on a business trip there.  They soon started a relationship.  In 2004 the mother moved to join the father in the UK and they were married there in March 2004.  A week later, G was born. 

7.  In 2007, the father was offered a job in Hong Kong and the whole family moved to settle here.  Subsequently, L, the younger son, was born in August 2012 in Hong Kong.

8.  Sadly, the marriage did not last long.  In the summer of 2013 the mother, taking the boys with her, moved out of the former matrimonial home and stayed at her boy-friend’s apartment.   I shall refer to the boy-friend as “Mr Y”.  Mr Y is Japanese and at that time was working in a bank in Hong Kong. 

9.  The mother took out a petition for divorce on 27 June 2014 (under FCMC 8500/2014) on the ground of the father’s unreasonable behaviour.  The father defended and cross-petitioned on the ground of the mother’s adultery. 

10.  On 23 January 2015 the mother took out an application to have the boys relocated to Japan.  This was her first relocation application that led to the 2016 Relocation Judgment.  At that time, her claimed intention was to re-settle in Japan and she wanted the boys to go with her.  She claimed she would live with her parents in the Kisarazu City of Chiba and the grandparents would be available to assist both financially and physically in taking care take of the boys. 

11.  As referred to above, this first relocation application went through a 11-day trial and was refused by Judge Susan Wong (under FCMC 8500/2014) who at the same time granted the joint custody of the boys to the parties with care and control to the father and reasonable access to the mother.

12.  The parties subsequently came to an agreement that the divorce main suit be started afresh and proceeded on the ground of 2 years’ separation.  Consequently, a new petition (under the present case reference) was taken out by the mother on 16 June 2016. 

13.  The parties had further been able to come to a settlement over the financial matters which was endorsed by way of a consent order on 31 May 2017.  In brief, the parties agreed to have their property in London sold with the sale proceeds to be shared equally.  I am told the capital split was $1.75 million each.

14.  Decree nisi was granted on 9 January 2017 and it was made absolute on 16 June 2017.  About 4 months later, the mother took out her 2^nd relocation application.

15.  At the very beginning, the mother’s application covered both of the boys, as was the case in her 1^st relocation application.  The SIR and the ISSR were duly obtained.  It is not necessary to refer to the contents of the reports at this stage, suffice for me to say is that the Social Welfare Officer (“SWO”) was not supportive of the mother’s application.  She was of the view that it is to the best interests of the boys that they are to remain in Hong Kong under the care of their father.

16.  At the Children Dispute Resolution (“CDR”) Hearing of 25 May 2018 the mother dropped her application in respect of G but continued to pursue her application in respect of L.  Hence, whether L should join the mother in Japan has become the only major issue before the court.  Another issue is, in the event that the mother’s application in respect of L fails, whether L should change from his present Japanese school to the same English international school where G is currently attending.  This is an issue raised by the father by way of his summons dated 12 July 2018. 

17.  It was after the mother’s change of stance during the CDR hearing that the father took out this application for security for costs on 15 August 2018.

18.  The relocation application will be tried together with the father’s schooling summons on 9 May 2019 with 10 days reserved.  

The Present Situation of the Parties

The Father and the Boys

19.  The father is living with the boys in the former matrimonial home in Shatin. This is a rented apartment with an area of about 140² m.  Together with them are the father’s girl-friend Ms K and a domestic helper.  According to the SIR, Ms K is Japanese with whom the father started a relationship in 2015.

20.  There has not been any change in the father’s employment since the 2016 Relocation Judgment save he has since been promoted to the position of Key Account Director. 

21.  G is currently attending an English international school.  As for L, he is attending a Japanese kindergarten.  As mentioned above, the father has taken out a schooling summons for L to join G in the same international school.

The Mother

22.  The mother returned to Japan for good on 28 September 2016, just 3 weeks after the handing down of the 2016 Relocation Judgment and way before the decree nisi was granted and any settlement over the financial matters was reached.  The undisputed evidence is that she was not joining her parents.  In fact, she was joining her boy-friend who probably had returned to Japan at about the same time and has since been living with him.   Initially she stayed in a rented apartment with her boy-friend and later purchased a house in Yokohama in May 2017 with a down payment of JPY2,000,000 (about $140,000) and a mortgaged finance.  The house is a two-storey house with a total floor area of about 100² m.

23.  She is currently working full-time as an assistant manager for a large motors corporation.

Access

24.  The mother is having access to the boys on every other weekend in Hong Kong. Normally, she would arrive in Hong Kong on Saturday and leave on Sunday and the boys would stay with her in the hotel.  On a couple of occasions Mr Y came along.  On the top of that, there is access by electronic means and she is sharing the boys’ long holidays with the father on equal basis.  The boys have on a couple of occasions joined the mother in Japan during these long holidays.

25.  By and large, apart from some hiccups at the start, access has been carried out smoothly.

The 2016 Relocation Judgment

26.  It is crystal clear from the judgment that the case before Judge Susan Wong was not a finely balanced one.  The judge was evidently highly critical of the mother and essentially found against her on all counts.  She found the mother an impulsive person, would do things her way without considering others’ feelings and have told many lies: [142] & [145].

27.  In her last application, the mother claimed she would have the support of her parents who were pensioners.  She would not be working in the first 2 years upon return to Japan in order to see that the boys were settling well and so she and the boys would stay at her parents’ home in Chiba and would be relying on their financial support.   The judge doubted very much whether this was the case: [55] & [55].  Further, contrary to what the mother had claimed, the judge found the mother’s relationship with her mother left much to be desired: [78].  The judge also doubted the veracity of the mother’s case that she had the physical support of her parents in the care of the boys for the reason that the grandmother had health issues and the grandfather had to work 7 hours a day and six times a week: [19] & [82].  The judge also agreed with the father that the grandmother’s mental and physical conditions were not good and she was also unstable, senile and erratic: [90].

28.  As for the education of the boys the judge considered the mother’s plan was not well thought out: [96].

29.  For all these reasons, the judge found the mother’s plan was not realistic: [101].

30.  Additionally, the judge shared the father’s concern that G was taught by the mother to have lied to the father: [103].  The judge also found that the mother had lied in court on more than one occasions: [104] & [105] and that she placed a great priority on her own interest so much so that her interest was above that of the boys: [106] & [114].  The judge disapproved of the mother’s attempt to try to bribe G so that G would give a more favourable response to the social inquiry officer in order to suit the mother’s own agenda: [108].

31.  Apart from the above, the judge disbelieved the mother in many other respects. Contrary to what the mother had claimed, the judge found the mother’s reason for returning to Japan was not for anything but Mr Y: [128] & [129].

32.  On the other hand, the judge found the father had undoubtedly demonstrated his ability to look after the boys and therefore granted the care and control of the boys to him: [179] & [180].

Applicable Legal Principles

33.  Parties’ legal representatives are in agreement with the legal principles referred to them during the call-over hearing of 16 October 2018. 

34.  The present application is taken out pursuant to Order 23 of the Rules of the High Court (“RHC”).  Pursuant to rule 3 of the Matrimonial Causes Rules, Cap 179A (“MCR”), RHC are applicable to matrimonial proceedings with necessary modifications.  

35.  The definition of “matrimonial proceedings” can be found in rule 2 of MCR.  It not in dispute that the mother’s present application for relocation is a matrimonial proceeding: see rule 2, MCR; section 19(1) of the Matrimonial Proceedings and Property Ordinance, Cap 192; sections 48 and 48D of the Matrimonial Causes Ordinance, Cap 179 and PD 15.12 (Matrimonial Proceedings and Family Proceedings) at [2] & [6(1)].  Order 23, RHC is therefore applicable to the present relocation application. 

36.  It is perhaps pertinent to note that the Judiciary’s Interim Report and Consultative Paper on the Review of Family Procedure Rules also recommended the retention of the security for costs provision in the new Family Procedure Rules and the recommendation has been accepted: see Proposal 101 of the Interim Report at [122] and the Final Report at [206].  Steps are being taken for the implementation of the recommendation.

37.  It is also worthy to note that in England and Wales, the Family Procedure Rules 2010 also contain provisions on security for costs in Chapter 2 of Part 20 which broadly mirrors our Order 23, RHC.

Order 23, rule 1, RHC

38.  The specific provision that the father is relying on is paragraph (1)(a) of Order 23, rule 1, RHC; the relevant part of which is read as follows,

(1)   Where, on the application of a defendant to an action or other proceeding in the Court of First Instance, it appears to the Court-

(a)   that the plaintiff is ordinarily resident out of the jurisdiction, or

(b)   …, or

(c)   …, or

(d)   …,

then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant's costs of the action or other proceeding as it thinks just.        (emphasis underlined)

39.  On how the court is to exercise its power pursuant to this provision, the Hong Kong Civil Procedure (2019) has the following discussion at §23/3/3,

Discretionary power to order security for costs (rr.1 - 3)—Rule 1(1) provides that the court may order security for costs “if, having regard to all the circumstances of the case, the court thinks it just to do so”. These words have the effect of conferring upon the court a real discretion, and indeed the court is bound, by virtue thereof, to consider the circumstances of each case, and in the light thereof to determine whether and to what extent or for what amount a plaintiff (or the defendant as the case may be) may be ordered to provide security for costs. It is not an inflexible or rigid rule that a plaintiff resident abroad should provide security for costs (Lauria v. Le Salon Orient (HK) Ltd [1996] 2 H.K.L.R. 37, affirmed in Chinacast Education Corp v. Chan Tze Ngon (unrep., HCA 1062/2012, [2015] H.K.E.C. 1047); Henrik Andersen and Michael Serring (suing as receiver of the Estate of Huang Kuang Yuan) v. Huang Kuang Yuan [1997] H.K.L.R.D. 1360; Re Greater Beijing Region Expressways Ltd (No. 3) [2000] 2 H.K.L.R.D. 776 . The court has to strike the balance between what would be too oppressive to the plaintiff and what would give the defendant a measure of security, and will take into account the bona fide nature of the claim and any element of overlap between the claim and the counterclaim (Dragages et Travaux Public v. Hong Kong Chinese Insurance Co. Ltd [1993] 1 H.K.C. 617).

In exercising its discretion under r.1(1) the court will have regard to all the circumstances of the case. Security cannot now be ordered as of course from a foreign plaintiff, but only if the court thinks it just to order such security in the circumstances of the case (Lauria v. Le Salon Orient (Hong Kong) Ltd (above); Chinacast Education Corp v. Chan Tze Ngon (above); Re Greater Beijing Region Expressways Ltd (above)).   (emphasis underlined)

Security for Costs – in General

40.  It is a common ground that the mother is now ordinarily resident out of Hong Kong.   It is also a common ground that, the mother, having left Hong Kong for good in September 2016, has no assets within the jurisdiction against which the father may enforce any award of costs that may be given in his favour should the mother’s application for relocation fail.

41.  Where a plaintiff is ordinarily resident outside Hong Kong, a major matter for consideration is the likelihood of the plaintiff succeeding.  If the case of the plaintiff is genuine and strong, no order for security would be granted. On the other hand, an order for security would usually be granted if the plaintiff cannot clearly demonstrate that it has a high degree of probability of success at trial: see Hong Kong Civil Procedure (2019), at §23/3/3 and the cases cited therein.

42.  The court may have to consider the defendant’s prospects of success; in other words, whether it has an arguable defence and that if the defendant succeeds in the action, whether there is any real risk that he would not be able to recover his costs against a foreign plaintiff. 

43.  The court may also take into account whether an order for security will stifle a genuine claim. Where it is shown that the plaintiff is impecunious, and if there is a real possibility that the justice of the matter required that no security be ordered, the court may refuse to give an order.

44.  Whether there is any reciprocal enforcement agreement between Hong Kong and the jurisdiction in which the foreign plaintiff is residing is too a factor that the court may take into consideration in deciding whether it is just to order security: Tagliani v Lee Wai Elvis [2006] 2 HKC 194, at [15].

45.  It has to be stressed that ultimately, in exercising its discretion, the court would have to consider all the circumstances of the case before it and would give an order if it is just to do so.

Security for Costs in Children Proceedings

46.  It appears that there is no case law, whether in Hong Kong or in England & Wales, concerning security for costs in relocation application.  Nevertheless, those representing the father and the mother are in agreement that due to the unique nature of children proceedings some of the factors which are relevant for consideration by the court in general civil cases may not be relevant in children proceedings.

47.  The most significant departing factor arises from the likely costs order that an applicant (ie a plaintiff in a civil action) would face when his application fails.  As said above, in general civil cases, the court may have to consider whether there is any real risk that if a defendant succeeds in the action, he would not be able to recover his costs against a foreign plaintiff.   This ‘usual’ practice, if I may call it, is no doubt premised on the general principle that costs are to follow the event.  If a plaintiff loses his case, the court, in the exercise of its discretion, would normally order costs against him, except when it appears that in the circumstances of the case some other order should be made: Order 62, rule 3(2), RHC.  In the case where the plaintiff is outside the jurisdiction of Hong Kong, the winning defendant would have difficulty in enforcing any costs order awarded against the plaintiff.  As has been said by Deputy High Court Judge Muttrie in Tagliani v Lee Wai Elvis, supra, at [5], it is prima facie unjust that a foreign plaintiff, who is more or less immune against costs if he is unsuccessful, should be allowed to proceed without making funds available within the jurisdiction, against which any costs order against him may be executed.

48.  However, in children cases, a different regime governs: the usual approach is that there would be no order as to costs save when one party has been unreasonable or reprehensible in the conduct of the litigation, as parents should not be deterred from putting cases concerning children before the courts: TPL v WYY (Costs: Children) [2015] HKFLR 75, R v. R (Costs and Child Case) [1997] 2 FLR 95, and Re G (Costs:  Child Case) [1999] 2 FLR 250, H v. H, CACV 42/2002 (Unreported, 6 September, 2002).

49.  There are good reasons for this approach.  As explained by Yuen JA in TPL v WYY (Costs: Children), supra, this approach stems from the aspiration that in these applications the court is seeking to find an arrangement which is best for the children, so that the only “winner” is the children, and neither parent should be regarded as the “winner”/“loser”, although they had mutually exclusive proposals regarding custody and care and control:  [14.2]. 

50.  In a recent Supreme Court Judgment in Re S (A Child) [2015] UKSC 20, [2015] 1 WLR 1631, Baroness Hale DPSC (as she then was) expatiated on the rationale behind this approach. As I have already set out Her Ladyship’s discourse at some length in two of my earlier judgments, viz, VE (nee KE) v VRJ [2017] 2 HKLRD 855, at [11] – [15]; and NAV v JTMW (Custody, Care and Control and Access) [2017] HKFLR 114, at [136] – [141], it is not necessary to set them out here.  Broadly speaking, considerations justifying the “no costs” approach include the following –

(i)   Generally, parents were assumed to have been motivated by concern for their child’s welfare and want the best for their child as they see it;

(ii)   Parents needed to be able to cooperate with one another after the case was over and stigmatising one party as the loser and adding to that the burden of having to pay the other party’s costs was likely to jeopardise the chances of their cooperating in the future; and

(iii)   Having one party to pay the other side’s costs, or even having to bear one's own costs would reduce the resources available to look after the children.   The principal sufferers might well be the children. 

51.  As I see it, the rationale is no more than an echo of the “best interests” principles set out in section 3 of the Guardianship of Minors Ordinance, Cap 13.  In brief, the court shall regard the best interests of the minor as the first and paramount consideration: see also section 48C of the Matrimonial Proceedings and Property Ordinance, Cap 192.

52.  That said, while the “no costs” is the usual approach, it does not necessarily mean the court would never award costs against a parent.  Where the unusual circumstances present themselves, the court may depart from the usual approach.  The two circumstances identified in the case law are where the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable:  Havering London Borough Counsel v S [1986] 1 FLR 489, Gojkovic v Gojkovic [1992] Fam 40, 60C-D; and Re S (A Child), supra, at [26].   It should be remembered that Baroness Hale in Re S (A Child), supra, pointed out that, apart from these two unusual circumstances, the exceptional categories where a parent might be given an adverse costs order is not closed.  There may be other reasons why an award of costs might be justified; and financial hardship might be one of the reasons: [30] - [33].

53.  The question is, in the context of security for costs, what should be the approach to be adopted by the court if the usual approach is “no order as to costs”?  Parties’ legal representatives agree that the likelihood of the mother’s succeeding should not be a consideration that the court may take into account.  Even if the mother cannot clearly demonstrate that she has a high degree of probability of success at trial, she should not be faced with an order for security.  Likewise, the father’s high degree of probability of success in resisting the mother’s application should too not be a consideration.   In my opinion, in the instant case, what the court should consider is whether there is a high likelihood that the mother would be faced with an adverse costs order should she fail in her application.  This entails the court to assess, on the basis of the materials before it at this stage, in the event that the mother fails in her application whether or not she would fall into any of the “exceptional categories” which makes her highly likely to be liable for the father’s costs.  Mr Pickavant fairly accepted that this is a hurdle much higher than that for general civil cases and the onus falls squarely on the father to show that it is just in the present case to order the mother to give a security.

54.  I now turn to the father’s grounds.

The Father’s Case

55.  Mr Pickavant submitted that it is the usual, ordinary or general rule of practice of the court to require a foreign plaintiff to give security for cost.  He referred to the judgment in Montgomery Ward & Co Inc v Evergo Trading Co Ltd, CACV 32/1996 (Unreported, 31 May 1996).  Further, there are no reciprocal arrangements between Hong Kong and Japan for the enforcement of any judgments and the mother has the financial means to satisfy a payment into court for security for costs and such an order would not be unjust to her.  Mr Pickavant put forward the following grounds:

(1)   The mother’s application has very little prospect of success – this is a hopeless application.

(2)   The mother’s application constitutes reprehensible litigation conduct.

56.  Plainly, the 2 grounds follow one and other – since the mother’s application is hopeless it should not have been taken out and therefore the taking out and the pursuit of it is a reprehensible litigation conduct.  In advancing his grounds, Mr Pickavant put forward 3 arguments: -

(1)   The mother is bound by the findings in the 2016 Relocation Judgment.

(2)   There have not been any substantial changes since the 2016 Relocation Judgment.

(3)   The mother is seeking to split the boys. This is against the best interests of the boys and unsupported by the SWO.

57.  The first 2 arguments are in tandem: if the mother is bound by the findings of the 2016 Relocation Judgment and given that there have not been any substantial changes since the judgment, the renewed application is a de facto appeal through the back-door.  There is simply no basis for her to have a second bit of the cherry.  As such, this is a hopeless application and if pursued, is a reprehensible litigation conduct. 

58.  As regards the 3^rd ground, Mr Pickavant contended that the withdrawal of the mother’s application in respect of G is merely a tactical move in light of G’s explicit opposition to relocation as reported in the SIR and the absence of any support from the SWO.  Her relentless application to go after L is against the best interest of the boys and is therefore hopeless. 

59.  To this, Mr Li, who appeared for the mother, responded by saying that the father is essentially asking the court to pre-judge against the mother on her application in such a way that not only will she fail but will also attract the eventuality of a costs order against her, thereby justifying his claim for a sum to secure his costs at this stage.

60.  At this juncture, it should be remembered that there is a distinction between unreasonableness in relation to the child and unreasonableness in the attitude to the litigation.  It has been said that parents are all expected to be unreasonable in attitudes to their children.  It is where parents are unreasonable in relation to the litigation that they may be faced with an adverse costs order: see R v R (Costs: Child Case), supra, at 98B.  

61.  In the context of general civil proceedings, where the merits of a case is a factor that the court is required to consider in an application for security for costs, it has always been said that it is dangerous for the court to judge the merits of a case on paper.  A recent reminder can be found in Lim Yi Shenn v Wong Yuen Yee [2012] 3 HKLRD 513, where Recorder Horace Wong SC, said at [14],

“… “it is not the function of the Court, when faced with an application for security for costs, to make a preliminary run at deciding the ultimate success or failure of the claim” (per Rogers VP in Sunchase International Group (China) Ltd & others v Vincor Group of Companies (Investment) Ltd & others [2004] 1 HKLRD 731 at 733D - E). An application for security for costs is not an occasion for satellite litigation. Unless it can be readily demonstrated that the case of a party has a high degree of success, it is generally not right for the Court to judge the merits of the case on paper. Judging the merits of a case merely on paper can be dangerous, for what may appear strong on paper may turn out to be unconvincing upon fuller investigation; and what at first sight may raise eyebrows might turn out to be perfectly understandable after the witnesses have been seen and heard…”

62.  The threshold of demonstrating the probability of success is therefore very high indeed and that the practice of going into the merits of the case in an application for security for costs is to be deplored, unless it can be clearly demonstrated one way or other there is a high probability of success or failure: see PT Graha Multimulia Cemerlang v Silver Tech Enterprise Limited, HCCW 883/2004 (Unreported; 1 March 2005) at [6] citing Porzelack KG v Porzelack (UK) Limited [1987] 1 WLR 420 at 423B to F; Leslie Fay Companies, Incorporation trading as Breckenridge Sportswear Division v Cheerio Limited [1990] 1 HKC 463; Re Kwong Hing International (Holdings) Limited, HCCW No. 409 of 1999 (Unreported, 6 October 1999). 

63.  In the present case, I see no reason why the same approach should not be adopted.

64.  I will first deal with the grounds advanced by Mr Pickavant.  I will then move on to consider whether there is a high likelihood that the mother would be awarded an adverse costs order.

(1)   The Mother is bound by the Findings in the 2016 Relocation Judgment

65.  It has been readily accepted by Mr Pickavant that the mother does have the right to re-issue the same relocation application in the manner she did.  However, at the same time, it has been stressed by Mr Pickavant that the mother’s complaints against the father in support of the present relocation application, for instance, his excessive drinking, not checking the boys’ homework and frequent time spent outside Hong Kong etc are the very same complaints that she raised in the earlier relocation application.  All these complaints were previously ruled against her in the 2016 Relocation Judgment and significantly, the same have also been dealt with against the mother in the latest SIR.  He placed heavy reliance upon the fact that the mother renewed her relocation application just about one year after the 2016 Relocation Judgment and therefore it is incontestable that the detailed findings in the judgment must stand. The mother had the opportunity appeal but chose, for obvious reasons, not to do so. 

66.  Mr Pickavant seemed to have suggested that the previous findings made by Judge Susan Wong would as a matter of course be binding upon the parties.  Whilst at this stage, as can be seen in the following paragraphs, I may not disagree with him over his conclusion, the legal position, insofar as its relates to family proceedings, requires some explanation.  The legal position is that, quite different from general civil cases, the doctrine of res judicata or issue estoppel is not strictly applicable to family proceedings.  On the rationale behind this ‘rule’, if one may call it, Rayden and Jackson on Relationship Breakdown, Finances and Children has this to say in §32.1083,

“…the quasi-inquisitorial nature (sic) family proceedings, particularly proceedings concerning children, means that unlike in other forms of civil proceedings, there is no ‘strict rule’ of issue estoppel. Rather the court, in the exercise of its discretion, has to consider the relevance of a previous finding, and, if admissible but not accepted by the party against which it was made, whether it will permit the issue to be tried again. In financial remedy proceedings, issue estoppel is used more frequently, including to prevent a party reopening an issue already determined by a court overseas.” (emphasis underlined)

67.  Hence, it is because of the court’s inquisitorial duty to investigate into what is in the best interests of the children that the doctrine is not strictly applicable.  The learned authors of Rayden cited Hale J (as she then was)’s judgment In re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117, [1997] 1 FLR 285 in support of the commentary.  In that case the father was found in an earlier separate proceeding to have sexually abused two children under his care, the question before Hale J was whether the father was bound by this finding in another proceedings relating to other children.  Her Ladyship came to a conclusion that the father was “not necessarily” bound by the previous finding of sexual abuse.  Her Ladyship pointed out that whether or not any issue of fact is to be tried afresh would have to be determined by the trial judge who, in exercise of his discretion, would have to consider many factors in the balancing exercise and she highlighted some of the factors in 128B – 129C of the judgment.

68.  It follows that, subject to what I am going to say in the later part of this paragraph, it remains to be seen whether the mother would at the trial challenge any findings made by Judge Susan Wong.  In the context of the present discussion, “findings” must mean the findings of facts made by the judge in respect of the events that happened at or before the trial.  For instance, the judge’s finding that the mother was an impulsive person or that she would do things her way without considering others’ feelings, etc must have been made in relation to those events that happened at or before the trial.  Mr Li seemed to have accepted that the mother is bound by the findings in the 2016 Relocation Judgment.   If that is the position taken by the mother, this seems to be a sensible approach.  She should not be allowed to have a second bite or effectively an appeal through the back-door.  Even if it is not the position so taken by her, given that the earlier relocation application, which was contested between the same parties, had gone through a proper trial recently and there was no appeal, unless there are strong and good reasons advanced by the mother for re-opening the findings, I fail to see how she would not be bound by them.

69.  That said, it seems to me clear that even on the assumption that the mother is bound by the findings in the 2016 Relocation Judgment, there would still be events that happened subsequent to the judgment and where these events are relevant and in disputes, they have to be determined at trial.  By way of examples, it remains to be seen whether the mother would be found to have abandoned the boys by joining her boy-friend in Japan soon after the 2016 Relocation Judgment, to have bribed and manipulated G by telling him that he could be a footballer and a model in Japan, to continue to be an impulsive person, to have done things her way without considering others’ feelings or to have told lies.  Needless to say, the outcome would not be known until the conclusion of the trial.  

(2)   There have not been any substantial changes since the 2016 Relocation Judgment

70.  It is Mr Pickavant’s submissions that there have not been any substantial changes in the circumstances of the parties that necessitate the court to revisit the relocation issue.  The mother has put up nothing substantial that could affect the previous court orders.  The fact is little has happened since the judgment of a profound nature that was not anticipated at the original trial - the boys continue to live and thrive with their father in Hong Kong and are occasionally visited by the mother for access.  As anticipated, the only change in the circumstances is that the mother now formally lives with her boy-friend in a mortgage home in Japan that was financed by the latter and she is in full-time employment.

71.  My view is that at the time of the 2016 trial, the mother was still living in Hong Kong.  Little was known back then as to what would have happened when she resettled in Japan without the boys.  Now that the mother has managed to settle down with a mortgaged home and a full-time employment.  These are not things anticipated or known in the 2016 Relocation Judgment.   In her earlier relocation application, the mother put forward her childcare plan on a different basis.  As mentioned above, she claimed she would be returning to join her parents and, relying on the financial support of her parents, she would not be working in the first 2 years.  She would also enlist the support of her parents in taking care of the boys. It is on the basis of this childcare plan that the judge rejected the mother’s earlier application. 

72.  The mother is now putting forward a different childcare plan: L will be living with her and her boy-friend in her newly purchased house and her parents would assist in taking care of L during weekdays.

73.  I have no doubt that whether there have been any substantial changes in the circumstances is merely one of the factors that the court may need to take into consideration.  Perhaps more important is that, given its inquisitorial function, the court has a duty to look into the childcare plans proposed by the parties as to how the best interests of the children can be ensured.   In doing so, the court is not bound to adopt either the mother or the father’s childcare plan and is entitled to devise its own on the basis of evidence before it.  I will return to the mother’s childcare plan in due course.

(3)   The Mother is seeking to split the boys

74.  The father said in his affirmation that there is a high probability of failure on the part of the mother and her application is wholly without merit; that was the reason why at the CDR hearing the mother withdrew her application with respect to G.

75.  In response, Mr Li submitted that it was a reasonable move on part of the mother after having read the SIR and having considered G’s age and wishes. 

76.  At this stage, I believe it is fair to say that whichever the case it is, it has to be determined at trial.

77.  Mr Pickavant emphasized that the splitting of the boys is against their interest. The SIR, being a detailed and comprehensive report, fairly stated that it is in the best interests of the boys to remain under the care and control of their father.  Critically, the report stated that the boys have a close bonding and have a good relationship.  The SIR stated in great detail the importance of the boys to each other and it is vital that they are not separated for the development of the boys. The SIR ubiquitously supports the continuation of the present arrangement.

78.  The SIR commented that it would be more favourable for the boys to continuously reside in a place they are familiar with and maintain their social network in Hong Kong instead of uprooting them to an unfamiliar country, cutting their ties with their birth place and their close peers.

79.  The mother seemed to have accepted that the boys have a close bonding with each other. During the hearing, I enquired with Mr Li on what would the mother’s access arrangement be if the boys and their parents are being separated in 3 countries: G is to study in the UK while the father is staying in Hong Kong and L and the mother are staying in Japan.  Mr Li fairly conceded that the mother did not have any proposal.  I believe it is correct to say that, at least up to this stage, the mother has not given any thought on how the boys could maintain a close bonding and has no answer to the adverse impact on them if they are to separate. 

A Hopeless Application?

80.  With the conclusions that I have come to regarding the father’s arguments, I now turn to the question of whether the mother’s application is so hopeless that the taking out and the pursuit of it is a reprehensible litigation conduct. If the answer is in the positive, whether there is a high likelihood of a costs order against the mother.   In the consideration of these questions, I am conscious of the reminder that I referred to in [61] and [62] above and I remind myself that some of the evidence are fact-sensitive and that all the witnesses including the SWO are yet to be cross-examined. 

81.  Chronologically speaking, it is significant that the present relocation application was taken out by the mother only about a year after her leaving Hong Kong for good and just 4 months after the decree absolute was issued.  This gives one an impression that the mother is trying to have a second bit of the cherry.

82.  It is true that the mother is now putting forward a different childcare plan but there are features reminiscent of the previous one.  Same as the previous plan, the mother would continue to enlist the support of her parents notwithstanding that her relationship with her mother was found by Judge Susan Wong not to be a congenial one and that the physical support of the grand-parents was not as forthcoming as the mother had put it.   

83.  As with any contested children applications, the mother has a long list of complaints cumulating to the conclusion that the father has not been able to take good care of the boys.  Such complaints include the father’s frequent overseas trip and drinking habit, the change in the domestic helper, the father’s girlfriend Ms K, the boys being left unattended and the deterioration in their academic performance and the list goes on.  Apparently some of these complaints are “old wine in new bottles”.  Insofar as those complaints which arose from matters before the 2016 Relocation Judgment, the same had already been dealt with and largely been ruled against the mother.  As mentioned above in [68], unless there are strong and good reasons advanced by the mother for re-opening the findings, I fail to see how she would not be bound by them. Seen in this light, the mother is on the back foot.  As for the complaints arising from matters subsequent to the 2016 Relocation Judgment, these would have to be dealt with in trial but it has to be pointed out that up to this stage by and large the mother has not been able to find any support from the SWO. 

84.  The father has been the primary carer of the boys since the departure of their mother and is ready to continue to perform his parental role over the boys.  It has been commented by the SWO that the boys have been under the proper care of the father and it was observed that the boys demonstrated their close bonding and related well with their father: [45].   

85.  On the other hand, the mother’s childcare plan is yet to be tested.  There are uncertainties surrounding the mother’s childcare plan one of which is the availability of the mother in taking care of L.  Another uncertainty is the availability of the grandparents’ assistance.  There is also the issue of whether L would be able get along well with Mr Y.  At the same time, I have not lost sight of the concerns raised by the principal of L’s kindergarten.  It was reported in the SIR that L at times touched his principal’s breasts and the mother considered it a sign of attachment to her.  The principal was also reported to have commented that in view of L’s tender age, he was in need of his mother’s physical care.  These are post-judgment matters that, in my view, merit consideration by the court in light of the mother’s childcare plan.

86.  It has to be borne in mind that even where it is found that the mother’s plan is realistic this would not be the end of the matter.  The court would still have to conduct the analysis set out in Payne v Payne [2001] 1 FLR 1053: see SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37.  Ultimately, all the appraisals to be made by the judge at trial must be brought into an overriding review of the boys’ best interest as the first and paramount consideration.   Put another way, whether it is to the boys’ best interest if they are to stay with their father in Hong Kong or whether it is to their best interest if L alone is to go to Japan.  I refer to the ‘boys’ in plural but not in singular here since the issue of whether or not L should be allowed to go cannot be considered without reference to G or without having regard to G’s interest. 

87.  There are also issues that may deserve some attention.  It has been reported in the SIR that the mother found the access arrangement quite difficult for her as she had to travel to Hong Kong frequently to see the boys.  Needless to say, having to leave for Hong Kong early in Saturday morning and to catch the fight back to Japan in Sunday afternoon might have been a taunting exercise for her.  The relocation of L may or may not be the solution.   Whether anything could be done to improve the situation could be subject to consideration at trial.  

88.  On the above analysis, taking all the matters in a round, while it can be said that at this stage the mother seemingly does not have a strong case, I am not persuaded that her application is entirely a hopeless one as contended by Mr Pickavant.  With this conclusion, the answer to the remaining question ie whether there is a high probability that a costs order would be made against the mother must be answered in the negative. 

89.  Before I leave this subject, it has to be pointed out that hopelessness and unreasonableness are not necessarily the same thing.  Speaking of hopeless application, Butler-Sloss LJ in Re G (Costs: Child Case) [1999] 2 FLR 250 said at 252G:

If this judge in this case had found that this father had behaved unreasonably in the litigation and had gone beyond what many fathers do, seeking orders which are hopeless, the point will come at which pursuing a hopeless application becomes unreasonable. But hopelessness and unreasonableness are not necessarily the same thing. Indeed, particularly where there is a litigant in person, a degree of generosity towards a litigant may be more appropriate than to a litigant who is on legal aid generally advised by counsel and solicitors as to the extent to which they should continue to litigate.           (emphasis underlined)

90.  It also to be borne in mind that an application that was not hopeless (or even extremely promising) at the beginning may become so at some point in the proceeding and the relentless pursuit of it without justification may amount to reprehensible conduct in litigation.  A recent example can be found in JRMW v NAV (Relocation) [2018] HKFC 51, FCMC 8504/2017 (Unreported, 16 April 2018).

91.  It further has to be pointed out that even where an applicant’s case is hopeless or his conduct is reprehensible or unreasonable, it does not automatically follow that he would meet with an adverse costs order.  There is a policy consideration to be considered.  As has been stressed by the Court of Appeal in TPL v WYY (Cost: Children), supra, even if the conduct is reprehensible or unreasonable, the policy considerations must be considered ie that it is the best interests of the children that there be no order as to costs: see [15.4]. 

92.  That said, it has to be stressed that, where appropriate, the court would still, in the exercise of its discretion, readily penalize a party with costs; for instance: see C v H (Costs: Custody) [2011] HKFLR 235, TPL v WYY formerly known as WYY, FCMC 15332/2011 (Unreported, 3 October 2012) and VE (nee KE) v VRJ, supra. 

93.  For the sake of completeness, I will move on to deal with two minor grounds, viz, impecuniosity of the mother and difficulty of enforcement.

Impecuniosity of the Mother

94.  It is never the mother’s suggestion that she is impecunious.  The mother admitted that she is using her own funds and resources to pay her legal fees; the main source being the capital split of $1.75 million that she received in April 2018 upon the divorce with the father.

95.  Mr Pickavant emphasized that the father, who is a working family man of limited finance, has to support the boys single-handedly.  If he has to bear the costs of this litigation it would in turn affect the future financial well-being of the boys.  By this litigation, the mother is draining the father’s finances and currently contributes nothing to the financial upkeep of the boys.

96.  As mentioned in [52] above, financial hardship is one of the reasons that the court may take into account as to whether an adverse costs order should be given.  Due to the conclusion that I have come to regarding whether the mother’s application is entirely a hopeless one, I consider it is more appropriate for the parties’ financial situation to be considered if there is an application for costs after the conclusion of the trial.   Further, there is always an ongoing obligation on the part of both parents to maintain the boys. Where appropriate, the mother may be ordered to contribute to the maintenance of the boys.

Enforcement

97.  It is not in dispute that there are no reciprocal arrangements between Hong Kong and Japan for the enforcement of any judgment.

98.  Difficulty of enforcement abroad is merely one factor to be considered.  Not only is it not conclusive, it is not the only factor to focus upon: see Lim Yi Shenn v Wong Yuen Yee, supra, at [53].  In the instant case, I find some force in Mr Li’s submission that the mother would continue to come to Hong Kong for access.  It is not the case where she would never have to return to this jurisdiction in the event that her application fails.

Conclusion and Order

99.  As early as in 1965 Pennycuick J remarked that it would be extremely unusual to order security for costs in a children case against a party who is one of the parents.   It is a general principle in proceedings concerning minors that either parent should be entitled to put before the court his or her view on what is for the welfare of the minor, and only in the most exceptional circumstances would the court prevent a parent from doing so by means of an order for security for costs: see In re B (Infants) [1965] 1 WLR 946, at 948C-E.

100.  The above analysis leads me to the conclusion that the present case does not fall within the most exceptional circumstances where I should give an order for security for costs.  The father’s application is dismissed accordingly.

Costs

101.  The parties agree that the costs of this application should be in the cause of the relocation application.  I consider this is the proper costs order to be given and I so order.