NLT v. LYKJ

FCMC 8680/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8680 OF 2012

----------------------------

----------------------------

---------------------------------

RULING
(Costs in children’s trials)

---------------------------------

Introduction

1.  This application arises out of my judgment on the arrangements for the children of the family dated the 3 November 2016. In the introduction to that judgment I began by summarizing the main stance taken by each party at the trial as follows:   

Introduction

1. This trial was originally set down for 8 days to deal with the parties cross applications in relation to the arrangements for the children of the family – an elder daughter PY who was born on the XX November 2004 and is now nearly 12 years old and a younger son P who was born on the XX April 2007 and is now 9 years old. In the Respondent father’s summons dated the 14 July 2015 he sought sole custody and care and control of the children with defined access to the mother from after school on Fridays to Saturday at 9 pm. In the Petitioner mother’s summons of the same date she likewise sought sole custody and care and control of the children with defined access to the father on an alternate week basis namely from Friday at 6 pm to Saturday at 12 noon in the first week and from Friday at 6 pm to Sunday at 3 pm in the second week. Both parties made other proposals in relation to the holidays, single public holidays and other special days.

2. Thankfully the parties were able to reach consensus on most of the outstanding issues and by the time the matter came on for trial they had agreed, albeit late in the day, that there should be joint custody of the children with care and control to the mother. The outstanding issues were, in the wider scheme of things quite small. In essence the father was asking for an order that the existing shared care regime remain in place whereby the children are with him from 6 pm on Thursday to either 11 am on Saturday (the short week) or 3 pm on Sunday (the long week). This is in accordance with the court order dated the 14 October 2014. The mother for her part asked that Thursday access be dispensed with and that access take place from 6 pm on Friday to 3 pm on Saturday (the short week) and from 6 pm on Friday to 3 pm on Sunday (the long week). There was also a further minor issue with respect to pick-ups and drop offs with the father asking that these be shared. The mother for her part asked that the father be responsible for all pickups and drop offs.

2.  By the time of the trial the parties had been locked in aggressive and highly conflicted litigation for quite some time. The original petition had been defended necessitating a trial and there was constant disagreement about the children. Attempts to settle matters at Children’s Dispute Resolution hearings had proved short lived and tension between the parties remained very high. Thus although the outstanding issues at trial were relatively minor the parties were nevertheless unable to reach consensus.

3.  In general terms it could be said that I came down mainly in favour of the father in that I agreed with him that Thursday night access should continue. Other issues were compromised. In conclusion I said as follows:

   Conclusion  

46. Thus I do not intend to change the present access arrangement save that in the event that either child has an exam on a Friday then access on Thursday for both children shall be dispensed with. In that event access shall take place from Friday at 6 pm to either Saturday or Sunday depending on whether it is a long or short week. In the event that either child has an exam on a Monday then access on Sunday for both children shall be dispensed with and access shall be from 6 pm on Thursday to Saturday at 11 am. It is entirely possible that the children will have exams over a two week period in which case there may be exams on both Friday and Monday. In that event and for the avoidance of doubt access for both children shall be from 6:00 pm on Friday to Saturday at 11 am. In all three scenarios the weekend following the exams shall be a long weekend. I have considered splitting the children so that only the child who has the exams has access suspended but it seems to me that the result may be a logistical nightmare.

In addition should any further orders be made in relation to other miscellaneous issues including the pickups and drop offs and arrangements for exam periods? 

47. For the avoidance of doubt the father shall be responsible for picking up the children on Thursday evening at 6 pm (or Friday at 6 pm in the event of exams) and the mother shall be responsible for picking them up from the father’s home on either Saturday at 11 am or Sunday at 2:30 pm as appropriate.

48. In so far as the English tutor on a Saturday morning is concerned, the father indicated that he was not very satisfied with her performance. It is for the father to decide who he employs to assist the children when they are in his care. Likewise it is for the mother to decide who to employ or what classes the children should attend when they are in her care. In that regard I apologise for my misunderstanding during the trial concerning the mother’s enrolment of PY into a Chinese class on Thursday afternoon after school. I accept that the mother was perfectly within her rights to do so given the father’s time with the children does not start until 6 pm.

49. As indicated above the access shall therefore continue subject to the caveat about exams from Thursday at 6 pm to Saturday at 11 am in week one and from Thursday at 6:00 pm to Sunday at 2:30 pm in week two. In the event that P needs to be at school on Saturday morning then pickup time may need to be amended accordingly. I will give liberty to apply in that respect only  

4.  Given that this was a children’s matter I decided at the end of the day to make the standard order in relation to costs. This was despite the fact that I had expressed concern on several occasions about the mother seemingly involving the children in the litigation in an inappropriate way. Consequently, the costs order states as follows:  

Costs

50.   Given that this is a child related matter and notwithstanding some of the concerns expressed by myself in this judgment I will nevertheless make an order nisi to be made absolute in 14 days time that there be no order as to costs. There shall be certificate for counsel.

The law

5.  The law on costs is not in dispute. It is accepted than in the normal course of events the court will make no order as to costs when the matter in issue relates to children. A costs order against one parent in a child related matter is considered unusual unless that parent has for example, been unreasonable in the conduct of the litigation. See Sutton London Borough Council v Davis (Costs) (No 2) [1994] 2 FLR 569.

6.  In S v S HCMP 5547/1999, Deputy High Court Judge Gill when summarizing the various cases then available on the subject elaborated on this point when he said as follows:  

From these authorities one can, I believe, summarize the following factors which might determine how a court should approach a contest on costs in a case involving a child or children:

1. In general circumstances there should be no order for costs.  Parties who have a reasonable case to put forward going to a child’s welfare should not be dissuaded from doing so by threat of an adverse costs order if they do not succeed.  And in a child related case there should be no perceived winner or loser, save that it is the child who is the winner.

2. If a party has by virtue of improper conduct attracted the proceedings which but for that may have been avoided then that might well warrant an adverse costs order.

3. If in the course of the proceedings one party behaves unreasonably in his or her conduct of the litigation then that might be recognised in an adverse costs order.

4. The financial circumstances of the parties and how an order for costs will impact on the parties is a factor for consideration.

5. The general rule of not ordering costs should not deter a court from exercising its discretion to do so in circumstances it finds to be exceptional not necessarily limited to a particular category of cases.

7.  Counsel for the mother also referred to a more recent Court of Appeal case from England on the subject namely TPL v WYY (Costs: Children) [2015] HKFLR 75, where it was held inter alia that:

“(4) This approach does not apply where a party’s conduct has been reprehensible, although the court should not be too quick to label a parent’s conduct as ‘unreasonable’. Hopelessness and unreasonableness is not necessarily the same thing. Even if conduct is reprehensible or unreasonable, the policy considerations must be considered i.e. that it is the best interests of the children that there be no order as to costs. London Borough of Sutton v Davis, R v R, and Re G (Costs: Child Case) [1993] 3 FCR 463 ; [1999] 2 FLR 250 ; [1999] Fam Law 381 referred to (para 15).”

Thus it would seem that the bar is necessarily a high one.

The issue

8.  The issue to be determined then is essentially a question of degree. In what circumstances should a parent be penalised in costs when the dispute is about a child? Generally, as set out above, it is accepted that there should be no order as to costs in a situation such as this. This is so that parents will not be discouraged from raising legitimate concerns which need to be properly ventilated and determined by the courts when considering the best interests of a child. However, it has also been said that this is a fine line. In this instance I had come to the view initially that notwithstanding my very real concerns about the way in which the mother had involved the children in the case, that it probably could not be said that the mother’s behaviour had been so reprehensible that it deserved to be sanctioned by a costs order. The father now seeks to challenge that order.  

Discussion

9.  Counsel for the husband identified four points in her oral submissions which she said supported her client’s contention that a costs order against the mother would be appropriate in this case, namely:

1. The continued involvement of the children by the mother in the litigation;

2. The refusal of the mother to accept what appeared to be the children’s views;

3. Her late acceptance of an order for joint custody; and

4. Her failure to provide reasons for her stance on pick-ups and drop offs.  

10.  Dealing with these points in reverse order, although I would accept that the mother’s stance on joint custody only came very late in the day and that she did not articulate her case on pick-ups and drop offs very clearly, it does not seem to me that these points on their own put this case in the category of cases where a costs order can quite rightly be made against a parent.

11.  The remaining issues in relation to the involvement of the children in this litigation are in my view a lot more serious. This was why, in part the Official Solicitor was appointed to separately represent the children’s interests. Counsel for the mother misses the point when she says that the children wanted their voices to be heard and that they had written other letters to the court that had not been sent. The concern was that the mother was seemingly asking the children to write to the court in the first place in order to bolster her case and that the children were being placed in an untenable position because of that. This is clearly seen in paragraph 8 of the Official Solicitors second report dated the 8 August 2016, which was filed shortly before the trial. This is also set out in paragraph 30 of my judgment as follows:  

8. On 20.6.2016, the official solicitor received a letter from the children requesting me to inform the judge that they wanted the Mother to get sole custody. A copy of the letter with its English translation is annexed.

Meeting with PY and P on 4.7.2016

9. I met the children on 4.7.2016 at the Official Solicitor’s Office.

10. PY said she was asked by the Mother to write me the letter. She frankly admitted that she did not know what sole custody was.  I therefore provided a brief explanation to the children on the meaning and difference of joint custody and sole custody.  The children were informed that the Mother would have their care and control.  Therefore, irrespective of the outcome of the trial on custody matter, their existing living condition would not change.

11. Having heard my explanation, PY felt much relieved.  PY hopes that both parents can play equal roles in determining the important matters regarding her upbringing.  She also hopes the Mother not to insist on seeking a sole custody order.  She wants an end of the dispute on custody.  Possibly due to the young age of P, he did not express any view on his matter.

12. PY said she was reminded by the Mother to tell me about the traffic accident happened in February 2016 whilst the Father was driving the children back to their Homantin residence.  She said the Father’s vehicle crashed the safety island.  She suffered from headaches and P had a nosebleed after the accident.  The Father called the Police and they were sent the X Hospital (“the hospital”) by ambulance.  PY said the parents had an argument on whether the children should wait at the A&E Department of the hospital for 5.5 hours for medical examination and treatment.  Fortunately, the children only suffered very minor injuries after medical examination.

13. Regarding access, PY said she would still on one or two occasions forget to bring books/homework during the overnight staying access on Thursdays.  She does not have any strong view on the change of the overnight staying access during school terms to Fridays.  She is happy with the present access arrangements.  P said he had never forgotten to bring books/homework during the overnight staying access on Thursdays.  He wants to maintain the present access arrangements.

14. It is observed that despite the breakdown of the parents’ marriage, the children are properly taken care of and are settled down well with the present arrangements.

31. I was therefore very concerned that the mother may be putting inappropriate pressure on the children and that they needed as far as possible to be shielded from this. I spoke to both parties about my concerns during the course of the litigation. I explained in no uncertain terms that this was not acceptable. Consequently, when asked to see the children directly I declined. 

32. I was therefore astonished to be told at the beginning of the trial that the children had again written to the Official Solicitor on the 31 August 2016 – i.e. shortly before the commencement of the trial and that their views had now changed. This is especially given the fact that those views now seemed to echo those of the mother. I was told by the Official Solicitor in her latest report that:

… The reasons for the change as set out in the children’s letter are: (1) no need to bring their school uniforms, shoes and schoolbags to their father’s home; (2) there may be a school club or school team training; and (3) they need not worry about forgetting to bring their textbooks or homework to school for the week. 

33. Generally it is clear that the mother was of the view that the children’s stated preferences should be given determinative weight. She said that she herself had no strong feelings about the Thursday night access, but that she was taking this stance because PY had told her that she was worried about the demands of her new school and that it was the daughter who wanted to change the current shared care arrangement. 

34. As I indicated to both parties during the Children’s Dispute Resolution hearings and at the trial, the views of the children are not determinative. Their views are one aspect of the case that I must take into account when considering the matter overall. It is true that as children get older that their views carry more weight. However, in a case such as this, the stated views of the children must be approached with some degree of caution. This is especially so given the inappropriate way that they appear to have been brought into these proceedings. Further the children should not be put in a position where the onus is on them to “choose” between each of their parents or the stance taken by each of them.

12.  Counsel for the wife disputes my analysis of the situation and says that the children’s views changed just before the trial and that her team had felt it important that the children’s views be canvassed.

In such circumstances can the wife be said to have overstepped the line and should a costs order be made against her to reflect this?

13.  Counsel for the wife reiterates that the wife is not to be blamed, that she was only doing what she thought reflected the views of the children and that if a costs order is made against her it will make matters very difficult indeed going forward. The wife has no funds and the ancillary relief matter is yet to be determined. I accept that such a cost order will place her in a very difficult position indeed and that this is something that I can quite rightly take into account.   

Conclusion

14.  In conclusion then, although I have some sympathy with the husband given the way in which the wife’s case was conducted at trial and although I also have some concerns about the way in which the children were involved in the litigation, I have decided nevertheless not to vary the order nisi made on the 3 November 2016. Partly this is in recognition of the fact that agreement was reached on most of the major issues prior to the trial commencing and also that the parties have been locked in very aggressive and difficult litigation for a long time. The father is not entirely blameless in this. Consequently, there shall be no order as to costs in respect of the costs of the Respondent’s application for custody and care and control of the children dated the 14 July 2015 and the Petitioner’s mirror application of the same date. There shall be certificate for counsel.

15.  In so far as the costs of this summons is concerned I can see no reason why the costs shall not follow the event in the normal way. Consequently, the father shall pay the wife the costs of and arising out of his summons dated the 17 November 2016 to be taxed on a party and party basis if not agreed. Again there shall be certificate for counsel.