J,S aka SSJ v. J, ICV aka ICVJ

FCMC 12707/2019

[2024] HKFC 175

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 12707 OF 2019

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R U L I N G
( Costs on Children matter )

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Introduction

1.  Before me is a summons taken out by the Petitioner Father (“Father”) filed on 2 February 2024 (“Variation Summons”) in seeking to vary two consent orders insofar as they concern relocation and care and control of the two children of the family, namely S, a boy born on 4 January 2012 (“S”) and T, a boy born on 27 January 2014 (“T”) (collectively as “Children”)

2.  Shortly before the trial was scheduled to commence, the parties were able to agree on the substance of the disputes and filed a consent summons on 8 May 2024 and I made an order in terms of that on 9 May 2024. The issue of costs remains the only issue in dispute and in short, the Respondent Mother (“Mother”) asks for costs notwithstanding acknowledging this is a children matter, by reason that the agreement reached in the end amounted to no more than the Father’s withdrawal of his Variation Summons and she says, in gist, the Variation Summons was the Father’s disingenuous last-minute attempt to obstruct the Mother from relocating with the Children in June 2024, which was the previously agreed time of relocation.

3.  The Father asks for no order as to costs to the Variation Summons and says, in gist, that he was at all times litigating in the best interests of the Children.

4.  The parties agreed for this issue to be dealt with by paper disposal and agreed on directions for filing of submissions. Mr. Singh for the Mother invites me to consider his submissions first, as logically the Mother is the party seeking for costs, notwithstanding the Variation Summons was taken out by the Father and that the Father by asking for no order to be made on costs is responding to her claim. Suffice to say I have considered all the materials advanced by both parties. Issue of costs, especially in children matter, demands the Court to consider all relevant circumstances linearly as well as laterally in performing a discretionary exercise. Accordingly, I should not bind myself to look at the matter in any specific sequence as suggested or otherwise.

Background

5.  Since the parties have reached a settlement on the disputed issues, I shall only set out those basic background relevant to the single issue of costs before me.

6.  The parties are both in their mid-forties. They married in the UK in 2011. They relocated to Hong Kong in 2018 upon a job opportunity of the Father. The Mother had been in employment in the UK until around 2012, and after S was born, she became a housewife. The Father petitioned for divorce in October 2019. Decree Nisi and Decree Absolute were pronounced on 28 July 2020 and 11 January 2023 respectively.

7.  At all material times, the parties were both legally represented by specialist firms on matrimonial practice, with the Father engaging Messrs. Stevenson, Wong & Co. and the Mother engaging Messrs. Tanner De Witt. Upon the joint effort of the parties and their lawyers, a consent summons on children matter, titled ‘Children – Relocation’, dated 31 August 2021, was made into a consent order on the same day and subsequently filed on 10 November 2021. (“Relocation Order”)

8.  This Relocation Order appears to me to be a comprehensive and carefully considered settlement on children arrangement including various scenarios on relocation, namely whether the Children will relocate with the Mother alone or both of the parents, and/or the timing of relocation etc.. It contains up to 20 recitals.

9.  As to relocation, recital C therein recorded the parties’ then agreement and confirmation that the Children will relocate to London ‘…with either both the Mother and the Father or the Mother alone upon the completion of the 2021/2022 school year and in any event not earlier than 1 August 2022...’

10.  As to custody, the parties had, very early in these proceedings and by consent, agreed to joint custody as recorded in the Order of HHJ Melloy (as she then was) dated 6 March 2020. The Relocation Order further confirmed the parties will continue to have joint custody in going forward.

11.  As to care and control, the parties worked out various scenarios (i) pending relocation; and (ii) in the event only the Mother relocates with the Children. In short, the Children had been under a shared care (2-2-5-5) arrangement and it was agreed that the pattern would remain until relocation takes place.

12.  In addition, there are inter alia recitals under the headings such as ‘Review’ and ‘Sobriety Testing’ setting out in detail of relevant mechanisms as agreed by the parties.

13.  Then, in relation to finance, once again and to their credit, the parties were able to settle and filed a consent summons on the same on 8 December 2022, with HHJ T. Kwan making it into a consent order on 13 December 2022 and subsequently filed on 23 December 2022. (“AR Order”)

14.  Relevant to children arrangement, and thus the present matter, is recital A of the AR Order where it recorded the further agreement of the parties to postpone their relocation ‘to June 2024’. Although not recorded in the AR Order, it is understood that the interim shared care arrangement continued pending relocation.

Relevant Legal Principles

15.  Both parties have helpfully cited cases related to costs matter in children proceedings and I shall not repeat all of them here. The applicable legal principles are not in dispute. As a starting point, the parties do not dispute that the usual order for children cases are one of ‘no order as to costs’.

16.  Ms. Booth for the Father refers me to RM (aka RH) v SRM (Security for Costs; Relocation) [2019] HKFLR 145 and I gratefully adopt the case summary in her submission here:

“(i) In children cases, the usual approach is "no order as to costs" as parents should not be deterred from putting cases concerning children before the Courts, save when one party has been unreasonable or reprehensible in litigation conduct (§§48-52).

(ii) This approach stems from the aspiration of the Court to find an arrangement which is in the best interests of the children. The Court neither wishes for the spectre of a costs order to discourage those with a proper interest in the child from participating, nor that either parent be regarded as the "winner" or "loser", which can exacerbate rather than calm existing tensions (§$49-50).

(iii) Similarly, it does not wish to reduce the chances of parents cooperating in the future life of the child. There is also the consideration that having to pay the other side's costs will reduce the resources available for the children (§50).

(iv) The Court should not be too quick to label a parent's conduct as 'unreasonable'. Hopelessness and unreasonableness are not necessarily the same thing. There is a distinction between unreasonableness in relation to the child and unreasonableness in the attitude to 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 (§60).

(v) Even if conduct is reprehensible or unreasonable, the policy considerations must be considered i.e. that it is in the best interests of the children that there be no order as to costs: (§91).”

17.  Mr. Singh refers me to LCH v WSPN (unrep., 31/03/2023; FCMC 1936/2020) [2023] HKFC 64 (at§21) to demonstrate the ‘no order as to costs’ proposition is not an inflexible rule and can be departed from when a party acted beyond what is reasonable.

18.  All in all, the other authorities cited and not mentioned here are in my view fact sensitive and I am satisfied that the general legal principles on costs in children matter is well established and I shall be guided by the same in my discussion.

Discussion

The Variation Summons

19.  With the above background, the Father filed the Variation Summons on 2 February 2024, i.e. in about 27 months after the Relocation Order and 14 months after the AR Order. In his summons, he asks for sole care and control of the Children, and that leave for permanent relocation ‘be withdrawn’.

20.  Pausing here, and without being overly technical, I believe what the Father meant was to vary paragraph 1 of the Relocation Order (concerning leave to relocate and timing of relocation) as well as to discharge recital A of the AR Order (concerning an agreement for leave to relocate and timing of relocation). The Mother has not taken up any technical points in this respect in any event.

21.  The Father also asks for an interim stay of relocation pending the determination of the Variation Summons.

22.  However, when one works backwards from the intended agreed relocation time, it can be viewed that the Father took out this summons with only just 4 months left prior to the planned relocation in June 2024.

23.  Procedurally speaking, in asking for full determination of this Variation Summons with the reliefs sought, the Father is essentially seeking to re-open the litigation of the children matter in its entirety. The various grounds put forward by the Father in his supporting affirmation amount to one singular matter, namely that he believed the Mother’s issues with substance abuse[1] have resurfaced and that, by her various concerning behaviour[2] the Children are not safe under her care. Presumably, this is the material change of circumstances he would rely upon if proceeded to trial.

24.  The Variation Summons was heard before a Master on 2 April 2024 and it was by sheer fortune, in my view, that the learned Master was able to fix a set of urgent hearing dates (3 days) in May 2024 for a Judge to hear this matter substantially[3]. I have no doubt that, in doing so, the original time of relocation in June 2024 was considered. This, in return, and amongst other things, led to the learned Master’s case-management decision against calling of further reports, as then advocated for by the Father.

25.  The Father took the Master’s said decision on appeal, in seeking for a social investigation report as well as a single joint expert report on parental capacity. The said Masters appeal was duly heard on 24 April 2024 and by the prompt Judgment of HHJ C. K. Chan (as he then was) handed down on 2 May 2024, the Father’s appeal was dismissed. It is of note that the learned Judge commented therein the Mother’s psychological issues were well canvassed before the parties’ relocation agreement, and that it was accepted by the SWO and also the Father that the Mother was a suitable carer despite those issues.[4] As to timing to the Father’s Variation Summons, the learned Judge commented it has to be viewed with circumspection.[5]

26.  It is the Father’s case that upon receiving the above outcome and considering the situation in the round, he acted promptly to withdraw the Variation Summons by way of correspondence to notify the Mother dated 6 May 2024, and thereafter the consent summons filed on 8 May 2024.

The Father’s litigation conduct – reasonable?

27.  Firstly, in considering the Father’s allegations of the Mother’s concerning behaviour I should focus on incidents after the AR Order dated 13 December 2022, when the parties had then once again reconfirmed the joint intention to relocate the Children to London, only that the timing was postponed to June 2024.

28.  In his affirmation, the Father mentioned a few incidents since 13 December 2022, including:

(i)  On 24 January 2023 when S told him that the Mother appeared to have taken pills or drunk and was not making sense. The Father confronted that Mother directly immediately and followed up by instructing his lawyers to write to the Mother’s lawyers about a month later, on 27 February 2023[6] ;

(ii)  On 9 May 2023 a common friend of the parties saw the Mother at Sai Kung behaving oddly, unable to stand or walk properly. The Father later caused this common friend to file an affirmation in support of his account of the events;

(iii)  During the period from mid to late May 2023, the Father says by reason of the Mother’s domestic helper being away, she was not able to care for the Children by herself and resorted to his help;

(iv)  In June 2023, the Mother arranged a trip to the UK for herself during the times the Children were supposed to be under her care and again asked the Father to take care of the Children instead;

(v)  In July 2023, the Father received a video message from the Mother and it appeared to him that she was inebriated;

(vi)  On 14 August 2023 when the Mother had scheduled to fly to Hong Kong from London with the Children, the Mother physically collapsed at the airport and could not board the plane. The Mother told the Father her collapse was due to low blood pressure. The Children were arranged to return to Hong Kong on 16 August 2023 and the Mother took a few weeks to recover with the support of her maiden family before returning to Hong Kong later.

29.  Pausing here, the question I ask myself is this: if these alleged acts, whether viewed separately or as a whole, were so disturbing to the Father to the extent of him wanting to uproot the entire agreed children arrangement as he has now prayed for in the Variation Summons, why did he not act upon the same at the respective material times but only to do so some 6 months after the last incident relied upon? [7] In saying so, I bear in mind that the parties were at all times under a shared care regime, a 2-2-5-5 arrangement. If the safety of the Children was indeed at the forefront of the Father’s mind, then it would appear to me that by these alleged act(s), one would have expected an application by a very concerned father to vary the care arrangements, immediately. The Father’s allegation is a very serious one, in challenging the parental capacity of the Mother – so much so the Father took it as far as seeking a SJE report on the same. If proven in favour of the Father’s case, he is looking to take away all substantial care of the Children from the Mother, categorically.

30.  Still focusing on the Father’s allegation, it is in my view unrelated to relocation since all the attacks were against the Mother’s caring ability, or, her alleged substance abuse. At the risk of stating the obvious here, one must not forget that the Court granted leave, and could only grant leave, for the Children to relocate to London. The Court never has the jurisdiction nor the intent to bind an adult on a location in this respect. A basket of factors would have to be considered in the best interest of the Children, in determining whether or not a child is to be relocated. This much is trite.

31.  In considering the best interest of the Children in this matter, the fact that the Father has now changed his mind and wants to remain in Hong Kong is in my view not a ground to challenge the agreed arrangements, nor would it amount to a material change of circumstances. As said, the settlement mechanism was carefully considered and contained the possibility that only the Mother would relocate with the Children in any event.

32.  Neither did the Father put forward any childcare plan, if his application were to succeed. Rather, by the taking out of his application in February 2024 and insisting on various professional reports, I am satisfied that he must have been advised that his application would unlikely be heard, let alone determined, by June 2024. Interestingly while the Variation Summons focused on challenging the Mother’s parental capacity as the material change of circumstances, it did not seek to vary nor to suspend the interim shared care arrangement, but asked for an interim stay of relocation. I do not accept the implication here that, despite the Father’s very serious allegation, the Mother would be a suitable carer in Hong Kong with the assistance of domestic helper and/or with him living nearby; and that the same mother would become so unsuitable if relocated to the UK. This is not to mention the Mother has close family ties in the UK and in relocation terms, she may prima facie be viewed as a going-home mother.

33.  The above reasons alone are sufficient for me to find that the Father’s Variation Summons is rather self-contradictory. He has the benefit of legal advice from specialist practitioners at all material times. I accept that the intent of the Father’s litigation conduct, in terms of the taking out of the Variation Summons, is questionable under the circumstances and warrants a closer look. I shall do that below.

Sobriety of the Mother

34.  Quite a lot has been said about the sobriety of the Mother in the evidence. The point of relevance, in my view, is that the sobriety of the Mother has always been a theme since early stages in these proceedings. The meticulous drafting of recital T of the Relocation Order speaks volumes. I am ready to accept that by adopting common sense, the Father must have been anxious about the mother’s sobriety in requesting such an undertaking from the mother, and in suggesting a detailed mechanism of sobriety testing. There is no need for me to reproduce recital T here, sufficient to say it appears to be well thought out, with details all recorded in writing amounting to one full page in the Relocation Order.[8]

35.  The Father went as far as to have cited me dictionary meaning of the word ‘inebriated’. Academic interest aside, it offers little assistance to his contention that recital T only covers abuse of alcohol whereas his allegations against the Mother now includes abuse of medical drugs she takes also. To me, the overall challenge the Mother was faced with in relation to her wellbeing was well known to the Father all along. This is not a mother who only started receiving treatments or taking medical drugs after the AR Order. Further, I agree with the Mother that, at all material times, just when recital T (which was not a mutual undertaking but un undertaking volunteered by the Mother upon the request of the Father) was so specifically installed into the settlement mechanism in going forward, the Father had never once asked the Mother to perform the sobriety testing as per recital T. In my view this adds to the uncertainty of the Father’s true intent in the taking out of the Variation Summons.

36.  In passing, I have considered the point in relation to the retention of the Children’s passport by the Father and I see that as conduct in relation to a child as opposed to litigation conduct. In any event it carries little weight, if any, compared to the overall factors in this matter.

Withdrawal of the Variation Summons

37.  The Father highlights his positive litigation conduct in putting a halt to what would have been a full trial. The Mother challenges the logic of the withdrawal by reference to the Father’s letter of correspondence dated 6 May 2024 stating, inter alia :

“Having considered the matter over the weekend, our client has decided to withdraw his Summons filed on 2 February 2024. With the recent Judgment from HH Judge C. K. Chan which denies his request for an updated Social Investigation Report or a Single Joint Expert Report on parental capacity, our client does not feel he will be able to have the Trial conducted as he considers it should be conducted. Our client therefore proposes the withdrawal as follows …”[9]

38.  With respect, I agree with the Mother on this. With the reliefs sought directly impacting categorically on the Children’s future upbringing, the Father must have believed, if his only interest lies in the Children’s welfare, that under no circumstances must the Mother remain a substantial carer to the Children, be it in the UK or in HK. The mere absence of professional reports would not in my view become an obstacle to a very concerned father advancing his true views based on the best interest of the Children; a very concerned father would, in my view, reasonably believe that on the strength of what he has put forward by his own account, justice would be brought to the Children.

39.  Seen from this light, I have some difficulty in appreciating the reasons of the Father’s withdrawal and accordingly, I cannot rule out the possibility that the Variation Summons was taken out and litigated, in the manner it did, as a litigation tactic by the Father to buy time in having the Children (and perhaps indirectly, the Mother too) remained in Hong Kong, given he himself has now chosen against relocation. This, in my view, is the litigation conduct this Court is faced with.

40.  I have also considered the letters of correspondence between the parties where the Father says the Mother agreed to no order as to costs whereas the Mother says she was merely suggesting the Father’s withdrawal would avoid costs of his whole application, including trial, be awarded against him. I do not think there is any misunderstanding from reading the letters. The Mother did not propose no order as to costs in her correspondence; she was simply ascertaining if the Father would proceed to trial for the sake of her own preparation work.[10]

41.  Whether negative litigation conduct is best described as ‘reprehensible’ (RM (aka RH) (supra)), or having ‘crossed the line’ (LCH (supra)), to me, each case turns on its own facts. In this matter, I prefer to respectfully adopt the simplest term ‘unreasonable’. For all the above reasons, I am prepared to view the overall litigation conduct of the Father in relation to the Variation Summons as unreasonable litigation conduct.

42.  Before leaving this point, it is to be noted that in the case of LCH v WPSN [2023] HKFC 64 (unrep., 31/03/2023; FCMC 1936/2020) cited by Mr. Singh, it concerns a decision on costs on a schooling arrangement, handed down on 31 March 2023, ordering costs against the father. There is actually a sequel to it, in LCH v WPSN [2023] HKFC 79 (unrep., 28/04/2023; FCMC 1936/2023). In that decision, which was also a costs decision on schooling arrangement and handed down in less than one month after the first costs decision, the same learned Judge disposed of the matter by making no order as to costs. This exactly highlights the discretion on costs in children matters the Court retains, with the one and only the sole aim which is to exercise its discretion justly and fairly taking into account all relevant circumstances[11].

Best Interest of the Children

43.  I have found unreasonable litigation conduct in the Father but that is not the end of the matter. I am obliged to consider the overall best interest of the Children in coming to a just and fair conclusion on what costs order, if there is one, would best serve the of Children who should be the one and only ultimate true winner in all children matters.

44.  Notwithstanding his unreasonable litigation conduct, I cannot rule out that deep down the Father has genuine concerns over the welfare of the Children. This is a parent who has taken up a substantial role to the Children by reference to the shared care arrangement at all times. There is no evidence before me to suggest the Father does not love the Children or vice versa. I am prepared to view the Father as a loving father to his children and that the Children also cherish the Father very much.

45.  It has been raised in the submissions of both counsel the point on disparity of wealth. I have considered the same and view that by the AR Order, the parties have reached a settlement by consent on financial claims, on a clean break basis regarding spousal maintenance[12]. On the one hand it would be wrong for me to speculate on the reasons for settlement of the respective parties; on the other hand, I would not be wrong to assume, especially both parties were legally represented, that whatever settlement recorded in the AR Order must have reflected a fair and voluntary disposal of ancillary relief.

46.  I can appreciate the submission that the Father, who now decides to remain in Hong Kong to utilise a higher earning capacity, would be likely to amass more wealth when compared to the Mother whose primary role at present remains in rendering care to the Children in the UK. However, this would have been taken into account at the time of reaching settlement on ancillary relief in any event. The only difference is that, by the evidence now before me, the Father has made up his mind to remain in Hong Kong. Again, the Father may or may not change his mind again in future.

47.  In investigating the best interest of the Children, I am entitled to take into account the fact that historically in these proceedings the parties had been able to amicably resolve their differences in avoiding going to trials. This is to the credit of both parties. Ms. Booth submits that the parties are still engaging in mediation in grinding out any remaining differences on ongoing children matters. With or without this piece of updated information, I can well foresee that with the current relocation and care arrangement in mind, the respective parents in this particular case will be tasked with a continuous co-parenting role in going forward. I do see some force in the Father’s submission in this respect. The two boys are now 12 and 10 years old, having just entered their teenage. They will be settling into a new environment in the UK and moving away from the shared care arrangement. Parental support provided to them, in a minimalised conflict setting will be especially important at this stage.

48.  To conclude on this, I have to balance against the hard fact that it is as a result of the Father’s withdrawal, the trial in May 2024 was avoided. This results in the expected and agreed relocation time being adhered to. In all fairness, but for the withdrawal, it is most likely that the matter would not reach its full determination by June 2024 and thereby the expectations of the Children would have to be re-adjusted and managed to the effect of being surrounded by uncertainties, given the fate of basic issues such as who is to be their main carer and which country would care be provided for, would all be up in the air. No doubt if the Variation Summons were fully proceeded it would have caused much distress and confusion to the Children in the process in every aspect. I hope that with the benefit of hindsight, the parties are now as relieved as I am that the Children did not have to go through the above.

Order

49.  Having considered all relevant circumstances, I find that the most appropriate costs order to the Father’s Variation Summons would be that the Father do pay the Mother 50% of her costs of the Variation Summons, to be taxed if not agreed. There be certificate for counsel. For clarity, the above order includes the costs of this determination.

50.  I thank counsel for their assistance.