C v. S

HCMP 929/2017

[2022] HKCFI 1553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 929 OF 2017

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RULING

(On Payment of Family Therapy Charges)

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Introduction

1.  This Court handed down a judgment on 3 February 2021, and amongst other things dismissed Father’s application for custody, care and control of the ward N, subject to the Mother having to consult Father over N’s schooling and N’s psychiatric and/or psychological treatment, if any in future (“Judgment”).  I shall continue to use the abbreviations in the Judgment unless otherwise indicated herein.  

2.  Father lodged a notice of appeal against the Judgment.  In light of Father’s failure to comply with his obligations under order/s made by Judge Own in FCMP 67/2010 in relation to payments of various sums to Mother, the Court of Appeal made a “Hadkinson Order”, that unless Father complied with his obligations on or before 28 February 2022, his notice of appeal be dismissed[1]. I understand that Father failed to pay, and thus his notice of appeal was dismissed.

Relevant Access Orders

3.  The May 2017 Access Order was made by this Court in these wardship proceedings along the lines of the previous interim access order made by Judge Own in the Family Proceedings on 31 May 2016 (“2016 Access Order”) pursuant to which, the Father was to have access to N every Saturday from 10 am to 9 pm.

4.  In the Judgment, the Court gave directions in relation to further submissions in relation to access arrangements, and pending any further order on access, the May 2017 Access Order as supplemented by the September 2017 Access  Order[2] (collectively “2017 Access Orders”) to continue save that the access venue was to be either the Kowloon Tong Premises or a public place, to be agreed by N, and the pick up/delivery point be agreed, failing which it was to be at the entrance of the Kowloon Cricket Club (KCC) (“February 2021 Access Order”).

5.  Thereafter, the 2017 Access Orders were further varied to provide for the access venue and pick up/drop off and other arrangements (“June 2021 Access Order”).

6.  On 29 September 2021, this Court directed, amongst other things, the OS to obtain updated medical reports from Dr Ho, a psychiatrist, and Dr Mark, a clinical psychologist, of the YMT Child Service on their treatment and condition of N and further that the parties were to each provide to the Court names of 2 family therapists with their credentials and fee quotations for this Court to consider.  The case was further referred to the Director of Social Welfare for provision of co-parenting services and suggestion and alignment of NGOs providing co-parenting services (“September 2021 Access Order”).

7.  Subsequent thereto, Dr Poon Mak Siu Man Rachel (“Dr Poon”) was appointed as the family therapist on 11 October 2021.

8.  In the meantime, an issue arose by reason of N being enrolled into a dance club training sessions between 12:30 pm and 3:30 pm on Saturdays, namely during Father’s access time.  On 28 April 2022, the Court eventually granted leave for N to attend such sessions during Father’s access time but ordered that the Mother shall not arrange any other activities for N during Father’s access time without Father’s prior written consent or without court’s leave (“April 2022 Access Order”).  The Court also directed that a list of agreeable venues or activities be compiled by the OS in consultation with N for the performance of access.

9.  An issue then arose out of Dr Poon’s appointment as to the shouldering of her professional charges, which led to the Court directing the parents to each lodge written submissions on this issue.

Discussion 

10.  Father’s position is that the borrowed money in his bank accounts has been frozen by the garnishee order/charging order applied for by the Mother, and that taxation of bills of outstanding costs orders is coming up.  He has been deprived of the use of his bank accounts and the sale proceeds of his only property would also be subject to the injunction order placed against it by the Mother.  Father claims he owes his former legal representatives and friends a lot of money and that he cannot even afford to seek treatment for his own medical problems.  According to Father, he has had no income since 2015, and he is now 62 with many chronic diseases, and has lived entirely on borrowings. 

11.  Pending further order of the court, in the interim, Father has committed to pay for the first 5 sessions for family therapy, which sessions excluded Mother’s individual sessions.  Since, the family therapy has proceeded without Mother’s involvement and that the 3^rd session took place on 11 April 2022.

12.  Father said he paid for the first 5 sessions out of borrowed monies.  His present proposal is to share Dr Poon’s fees, at HKD 2,400 per hour, equally, save each parent shall be responsible for costs of their respective individual sessions.

13.  Mother’s case is that she has been on legal aid since 2010, and that she has no means of her own and was and should have still been financially dependent on the Father.  Pausing here for a moment, although this has been Mother’s position throughout, she is in fact only entitled to a carer’s allowance and is not entitled to any maintenance from Father for herself, and in my view, she should also adopt a more realistic attitude, as such carer’s allowance would come to an end sooner or later.

14.  Mother has complained that from October 2018 onwards, Father has unilaterally ceased his reimbursement of N’s school-related and extra-circular activities expenses and since October 2020, Father has further stopped all payments to the Mother under the Judge Own’s orders in FCMP 67/2010, including Mother’s carer’s allowance and N’s maintenance.

15.  The financial matters have remained to be dealt with by Judge Own in the Family Court.  The fact is that the Court of Appeal has found that the Father claiming that he was unable to pay the outstanding sums clearly not justified[3]. As pointed out by the Court of Appeal, although Father said he had to rely on borrowing from friends and relatives to finance his litigation, the amounts of which amounted to some HKD 5.8m, these amounts were advanced to him without any security.  It was further pointed out by the Court of Appeal when Father ceased to pay N’s maintenance and Mother’s carer’s allowance altogether, he had borrowed HKD 1.9m from which he paid HKD 300,000 to his solicitors on 1 March 2021, which was to be compared with the total outstanding sum for N’s maintenance and Mother’s carer’s allowance as of that date which was only HKD 172,356 (excluding interest).  As said by the Court of Appeal, this belied his claim that he was concerned with N’s well-being and that he had to instruct prominent lawyers to fight for her.

16.  As found by the Court of Appeal, Father clearly had the capacity to borrow to finance his expenses.

17.  Having considered the parties’ respective submissions, I am not satisfied that Father has exhausted his capacity to borrow or he has exhausted all his financial resources.  There is no reason as to why he should not shoulder the entirety of Dr Poon’s fees for N and for him and for the Mother, whether they be joint sessions or individual sessions.  I note that Mother is happy for the family therapy to continue without individual sessions for her.  However, I am not sure whether this is going to assist Dr Poon.

18.  The OS has suggested that Dr Poon to provide a brief report on an overview of the therapy together with her suggestions at time (times) to be determined by her.  Father has immediately responded to say that Dr Poon should focus on her treatment plans without any disturbance such as writing report at least for the time being, as any of her report may likely to displease the parent(s).  Father has further suggested that there be an order to state that the parents should act in compliance with Dr Poon’s treatment plans and advice and suggestions concerning frequency of consultations, and that the parents have the right to consult Dr Poon about N’s condition either jointly or individually.

19.  In my view, a report on the overview is not necessary at this stage.  However, I am of the view that the Court would be assisted by a simple letter from Dr Poon to indicate to this Court her rough estimate of (i) the number of individual sessions with respectively N, the Father and/or the Mother; (ii) the number of joint sessions whether with two or all three of them; (iii) frequency of such sessions, whether individual or joint; and (iv) when it would be appropriate for Dr Poon to provide the Court with a progress report.  I would direct OS to obtain such a letter.

Conclusion

20.  I will direct OS to draw up a draft order on the above terms, for this Court’s approval.

21.  I make no order as to costs, and that Mother’s own costs be taxed in accordance with legal aid regulations.