LACHY v. YC

FCJA 2057 / 2016

[2018] HKFC 136

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION

NUMBER 2057 OF 2016

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RULING
(Costs)

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Introduction

1.  On the 21 November 2017 I handed down my judgment in relation to a Fact Finding hearing. In the Introduction of that judgment I summarized the matter before the court as follows:

   Introduction

1.   This is a hearing to determine whether or not the father’s girlfriend (Ms. N) has sexually abused the only child of the family, a little girl called O, or in the alternative whether Ms. N has behaved in a way that could be deemed to be “inappropriate”. O was born on the XX January 2014 and is now 3 ¾ years of age. At the time that the allegations were made she was not yet three years of age. At a hearing on the 13 April 2017 the mother was given an opportunity to withdraw these allegations. She chose not to and as a result the court ordered that there should be a Fact Finding hearing. This came before the court on the 26 and 27 September 2017.

2.   The father was originally under the impression that the mother was also accusing him of sexual abuse. However, the mother has made it clear since she filed her 2^nd affirmation dated the 9 May 2017 that this was not the case. Her concern is solely with respect to Ms. N.       

2.  At paragraph 16 and 17 of the judgment I found as follows:

16. It is of note that the mother was unable to provide any actual evidence in support of this very serious allegation of sexual abuse and/or “inappropriate” behavior. It seems that her position was merely based on conjecture.     

17. In the mother’s closing submission, she said as follows:

5.   Upon reading Ms. P’s psychologist report [the report was filed on the 11 July 2017] and hearing the evidence at the Hearing, Ms. Y agrees that there might not be any actual sexual abuse against the Child per se.  However, from the evidence, it is reasonable to suspect there might be some kind of harassments / inappropriate behaviour which had been shown / seen by the Child, which led to the well-being of the Child being affected.

The mother submitted in her opening submission that she would able to discharge the high burden of proof required of her and that at the end of the hearing she would invite the court to conclude that “inappropriate” behavior did occur infront of O. It seems that by that stage she was not insisting that O had infact been sexually abused by Ms. N. However, it is of note that she was again unable to provide any actual evidence in support of what she said in this respect.

3.   I also found at paragraph 21 that the mother’s motive in making these allegations was probably in order to “… bolster any claim that she might have for sole custody and care and control of O”. I added at paragraph 29 that

… It seems to me that there is no evidence to support the allegations made and that she [the mother] simply jumped to conclusions and then refused to climb down completely – despite being given the opportunity to do so on at least one occasion.  

4.    Given the fact that there was no evidence to support the mother’s allegations I said as follows when it came to the issue of costs:

   Costs

   32. The father seeks his costs on an indemnity basis. The mother for her part asks that the normal order be made i.e. that there be no order as to costs.

   33. I accept that O probably did display some of the acts that so concerned the mother and therefore that the mother did not simply make the whole thing up. But by the same token the mother’s actions did have a malicious undercurrent. I have been particularly concerned by the posting of the father’s undertaking by the mother on Facebook and the fact that she did this not once but twice!! It also seems to me that the mother over reacted and jumped to conclusions. She is an intelligent woman and she was legally represented throughout. Nevertheless, she insisted on her position even though there was no tangible evidence to support it.  It is a matter of great concern to me that litigants should not be able to hide behind the fact that a matter is child related to mask litigation behavior which would not be countenanced in any other situation. Consequently, although an order for indemnity costs seems excessive in the circumstances, I have nonetheless decided that the mother should pay the costs of this hearing on a party and party basis to be taxed if not agreed. This is notwithstanding the fact that this is a child related matter and that this hearing came about at the bequest of the court, as opposed to an application made by either of the parties. Consequently, I shall make an order nisi to be made absolute in 14 days’ time that the mother do pay the costs of and occasioned by the Fact Finding hearing on a party and party basis to be taxed if not agreed.   

5.   The mother subsequently issued a summons on the 5 December 2017 seeking to challenge this costs order. The father for his part is content for the order to stand, notwithstanding the fact that he originally sought his costs on an indemnity basis.  

The law

6.   I accept that a costs order made against one parent in a child related matter is generally considered unusual unless that parent has inter alia been unreasonable in the conduct of the litigation. See Sutton London Borough Council v Davis (Costs) (No 2) [1994] 2 FLR 569, Gojkovic v Gojkovic (No 2) [1992] 1 AER 271, S v S HCMP 5547/1999 and L v C CACV 169 of 2006).

7.   Reference can also be made to inter alia to the English case Re T (A Child) [2005] EWCA Civ 311, where the Court of Appeal set out the general principles on costs in child related matters as follows:

36.    The principles, which fall to be applied, are not, we think, in dispute.  The judge summarised them succinctly in the following way:-

“2.1 The CPR apply. Under normal circumstances, according to rule 44.3(2)(a), the general rule is that costs should follow the event, although the court can make a different order. ( Rule 44.3(2) (b) )

2.2 However, this general rule does not apply to family proceedings. (Family Proceedings (Miscellaneous Amendments) Rules 1999 )

2.3 It is suggested that even in family proceedings, the general rule is probably the starting point but can more easily be displaced. ( Gojkovic v Gojkovic (No 2) [1992] Fam 40 )

2.4 In cases involving children in particular, costs awarded against one parent or another are exceptional since the court is anxious to avoid the situation where a parent may feel “punished” by the other parent which will reduce co-operation between them. This will only impinge ultimately on the welfare of the child or the children concerned. (London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR569; Re: M (Local Authority’s Costs) [1995] 1 FLR 533)

2.5 The conduct of the parties is in reality the major consideration when deciding whether or not an exceptional order for costs should be made. It should only be made if the penalised party has been unreasonable in his or her conduct. Moreover the “unreasonableness” must relate to the conduct of the litigation rather than the welfare of the child. ( R v R (Costs: child case) [1997] 2 FLR 95)

2.6 One has to be very careful in this distinction when, as in the case of (the mother), the apparent unreasonableness is as a result of the personality of the relevant party. In such circumstances, there is often an overlap of that party’s conduct of the litigation and the conduct relating to the welfare of the child.

8.   Counsel for the mother has also referred me inter alia to our own Court of Appeal decision in TPL v WYY, CACV 47 & 61 of 2014, which also reiterates these general principles. I should add that I did not find Counsel’s other authority namely Re T (Children) [2012] UKSC 36 particularly helpful given that it was a judgment concerning costs following public law proceedings in the United Kingdom. The factual matrix is entirely different and I am not persuaded that this judgment provides the court with the necessary authority to move outside what would be considered a more normal approach to costs applications in family cases in Hong Kong.    

9.   Thus the issue to be determined is essentially a question of degree. In what circumstances should a parent be penalised in costs when the dispute is about a child and more specifically about the possible abuse of a child? Generally, it is accepted that there should be no order as to costs in a general dispute over a child. 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. It is however a fine line. When then can it be said that a parent has crossed that line to the extent that a costs order against her (or him) is permissible? And did the mother cross that line in this case?

10.   Given my findings, as set out above, I was initially of the view that the mother had crossed that line for all of the reasons that have been set out in the judgement. Nothing that has been said or written since that has caused me to change my mind in that respect. I stand by my reasoning as set out in paragraph 4 above.

11.   Ms Tan for the father in her oral submission reiterated that a) there was no cogent evidence to show that the child’s behaviours related in any way to the girlfriend and that the mother had wilfully refused to consider any other explanation, which was of itself unreasonable; b) the court had warned her that she risked an indemnity costs order if she failed to be reasonable in the conduct of the litigation; c) the mother posted the father’s undertaking on Facebook not once, but twice and d) although the behaviours complained of may have taken place there was no evidence to show that this related to the girlfriend in any way. I accept these submissions. It seems to me that the mother’s litigation conduct was unreasonable in that she doggedly continued to trial notwithstanding the reports that had been filed and the fact that it was clear that she could not substantiate the allegations made. I repeat, when litigation is about a child, parents cannot hide behind that fact and behave in a way which would be totally unacceptable in any other form of litigation. Infact, arguably there should be an even greater duty on parents to act reasonably within the course of the litigation because it is about a child.

12.   In such circumstances paragraph 1 of the 2^nd Applicant’s summons dated the 5 December 2017 shall be dismissed with costs of that application to the 1^st Applicant to be taxed on a party and party basis if not agreed. There shall be certificate for counsel.