JJBGMK v. JPLY

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 61 OF 2011

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Decisions

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1.  There are 3 matters before me that require yet another round of the court’s adjudication before hopefully closure can finally be made to this sad and long running conflicts between 2 deeply-entrenched unmarried parents over their teenage son with Asperger’s Syndrome, 2 of which arising from my decisions on the Respondent Mother’s earlier maintenance application when I ordered on 4^th October 2013 for the Applicant Father to pay HK$20,000 per month towards the son’s expenses then studying in a boarding school in UK, with payment to be dated back to the time of his open proposal in October 2011, with credit to be given for payments already made by him. The parties now seek the court’s adjudication as to essentially whether the Father’s earlier payment of HK$160,000 to the Mother for the son’s set-up costs for his boarding school back in September 2011 should be allowed to set off the back-dating of the said maintenance, and if so to what extent.    

2.  The 2^nd matter is the Mother’s application for leave to appeal against my order for her to pay 75% of the Father’s costs of her said maintenance application after I had found her guilty of litigation conduct by inter alia inflating the son’s expenses and by failing to accept the Father’s open offer made well before the trial and which turned out to be of similar terms to my said maintenance order.          

3.  The last matter is the Mother’s application for costs against the Father in respect of 4 summons issued by the parties after that maintenance order mainly over their son’s future custody care and access arrangements as well as his future education. I propose to go straight into dealing with the 3 matters in the order referred to above, as I do not intend to recite here again the relevant background of either of the parties or their litigations, which can be found in my 2 earlier judgments.

Backdating Amount

4.  The Mother’s case is that the amount should be dated back to 27^th October 2011 when the Father first made his open proposal in his 5^th Affidavit of the same date, which were 24 months up to the time of my order plus 4 days pro-rata from 28^th to 31^st October 2013 as the ongoing maintenance commenced from 1^st November 2013, hence the total amount dating back should be HK$20,000 x 24 months + HK$20,000/31 x 4 days = HK$482,580.60.

5.  Against this sum the Mother agrees that the Father should be allowed to set off his various payments for the son over the same period which she puts at £32,806 or its equivalence of HK$407,753.20 as set out in §12 – 16 of Ms da Luz’s Skeleton Submission, and hence she argues that the Father still owes her the difference of HK$74,827.40 being HK$482,580.60 – HK$407,753.20 = HK$74,827.40 in back payment.    

6.  While the Father’s figure for his payments made over the same period from October 2011 to October 2013 amounts to slightly more at £32,828 or its equivalence at the same chosen exchange rate of HK$12.5 at HK$410,350, which would put what he owes the Mother in back payment at HK$72,230.6, a mere difference of HK$2,596.8 from her figure of HK$74,827.40.

7.  Ms Man however submits for the Father that he should be allowed to also include his earlier one-off payment of HK$160,000 for the son’s set-up costs in calculating the back payment as that payment would have also catered for his share of the son’s school fees for the first term in boarding school and other expenses which the Mother had later included in her claims for the son’s future expenses and upon which this court made the present maintenance order.

8.  The Mother’s request for the set-up costs was first made in her then solicitors’ letter of 30^th August 2011 (P13/2915) in which she gave a total sum of HK$213,310 made up of the following items:

9.  Following her request for the Father’s contribution towards this set-up costs, and to which as aforesaid he subsequently paid HK$160,000, the Mother then proceeded with her application for monthly maintenance for the son when she gave a breakdown of the son’s monthly expenses in both in Hong Kong and UK which she put respectively at HK$26,859.87 and HK$66,622.81, giving a total sum of HK$93,482.68, of which for the present purpose it is only relevant to consider his UK expenses as follows (P8/1795 – 1796):

10.  It is clear from her breakdowns of the son’s set-up costs as well as his personal expenses, the Mother had double-counted his school fees, the guardianship fees, school supplies and stationary, mobile phone, and linen in her maintenance application, of which the Father’s contribution of HK$160,000 towards his set-up costs must have already included his share of those expenses at least for the first school term, and for which Ms Man argues that they should be allowed to set off any back payment that the Father would have to make up for the difference.       

11.  Ms Man in her submission put those items in the total sum of HK$96,850 which she argues should be added to the other payments made by the Father thereafter from October 2011 to October 2013 of HK$410,350 referred to above (at the exchange rate of HK$12.5 instead of HK$13.0 wrongly chosen by Ms Man), which would give a total sum of HK$507,200, or an average monthly sum of HK$21,133, some HK$1,133 in excess of the court ordered sum of HK$20,000 per month, hence she argues that not only does the Father not owe the Mother any money in back payment, but in fact he has overpaid her by more than HK$27,000 over those 2 years.

12.  Ms da Luz however disagrees and argues that the Father’s payment of HK$160,000 was a one-off contribution towards the son’s initial set-up costs and expenses of entering boarding school which is separate and distinct from his regular living expenses, and hence no part of the set-up costs should be apportioned for his expenses post October 2011.

13.  Furthermore, Ms da Luz submits that the proper interpretation of my reasons over the issue of back payment in paragraph 61 of my judgment is that it was not intended for credit to be given for any payments made by the Father prior to 27^th October 2011, as otherwise the court would have ordered the back payment to be dated back to the date of the Mother’s application in August 2011.

14.  Whatever the correct date for the back payment, it should not result in the Father having to pay twice for the same items of expenses over the same period, and since my order was for the payment to be dated back to October 2011, and if he is not allowed to take into account of those items already covered by his earlier payment of HK$160,000, it would certainly lead to exactly the same result referred to above which the court had strived to avoid, hence it is only fair and just in the circumstances that credit be given to the Father for his payment towards the school fees and guardianship fees as well as stationary and linen expenses for the 1^st term in the said sum of about HK$27,000, but given its relatively insignificant amount over the 2 years period, and taking a broad brush approach, it would be appropriate in my view to just leave the matter at that with no further order necessary. I shall next consider the Mother’s application for leave to appeal against my costs order against her.

Leave to Appeal Against Costs Order

15.  This should be much more straight forward, since the Mother is not attacking my finding of the primary facts as set out in my Ruling on Costs dated 30^th April 2014 and recited in paragraph 4 of Ms da Luz’s Skeleton Submissions that led to my decision that the Mother should bear the brunt of the blame for the parties’ litigation and hence she should pay 75% of the Father’s costs, of which Ms da Luz went on to say this in paragraph 5:

“Having formed the conclusion that the Mother’s claim for (the son)’s expenses was unrealistic and pitched too high, it is not surprising that the Costs Order was made, bearing in mind the special considerations that the Court should take into account in exercising its discretion on costs, as set out in R.H.C. Order 62 r. 5 and repeated in paragraph 21 of the Ruling. Having found that the Mother had “unreasonably pitched her claim in such manner from the very beginning”, the logical conclusion would be that the Mother had conducted her litigation unreasonably. It would then follow that she had conducted her “without prejudice” negotiations with the Father in an unreasonable manner, that she had pursued her claim in an unreasonable manner, that she had pursued her claim in an unreasonable manner by exaggerating her claim and that she had unreasonably persisted to trial to the financial detriment of the Father.”

16.  Ms da Luz rather submits that if the court’s finding was defective because it had not taken into account certain salient facts, then the basis for making the Costs Order would be wrong and open to reversal, and she relies on some 13 grounds of appeal as set out in her draft Notice of Appeal attached to the Mother’s summons of 14^th May 2014. On that basis it not necessary to discuss those draft grounds as it is clear to me, and as submitted by Ms Man for the Father, without attacking the court’s primary findings of the Mother’s litigation conduct or those other primary facts upon which she is bound and which led to the Costs Decision, what other basis is there for the Mother to argue that my discretion on the Costs Order was wrongly exercised, or to show that she has a reasonable prospect of success in her appeal against that Costs Order?     

17.  In the premises Ms Man submits that since much of the arguments raised by the Mother concern findings of fact by the court made in the maintenance decision, such arguments and proposed draft grounds of appeal of hers must therefore be flawed as she cannot revisit those findings given that she is not seeking to challenge them in her leave application.

18.  It therefore follows, Ms Man submits, that in the exercise of the court’s discretion upon making those findings against the Mother in both her wrong and unrealistic budget for the son and her persisted and unyielding position with her unreasonable claim against the Father, there is simply no basis at all for her to demonstrate in her appeal that the court got it wrong either in law or in facts when it made the costs order against her.            

19.  However, notwithstanding the above, Ms da Luz submits that the court had failed to consider or sufficiently consider that the expenses incurred by the Mother for the son were unusually high due to various factors including the son’s Asperger’s Syndrome, the lack of contribution by the Father or the disproportionate amount of expenses borne by the Mother, but all of which had either been properly considered in my main judgment or in my costs decision and which explains why she was only ordered to bear 75% instead of the whole of the Father’s costs, and in any event they certainly cannot be said to be any defence to her unreasonable and improper litigation conduct which ultimately led to the costs order being made against her.

20.  The Mother’s leave application is governed by s 63(1) of the District Court Ordinance, Cap 336 with the threshold for granting leave provided under s 63A(2) that leave shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, of which it was established by the Court of Appeal in SMSE v KL [2009] 4 HKLRD 125 and more recently in TPL v WYY, HCMP 316/2013 that it is for the applicant to show that he has an arguable case with reasonable chances of success on appeal, which means an appeal with prospect that are more than fanciful but which do not need to be shown to be probable.   

21.  In this case the prospect of the Mother’s appeal is no more than just fanciful. Accordingly and for the reasons referred to above, her leave application is therefore refused. I shall next consider the last remaining matter before me.

Costs Application of 4 Summons

22.  The Mother seeks costs in relation to the following summons that were dealt with at the hearing on 11^th August 2014:

(a)   Mother’s summons dated 18^th November 2013 for sole custody of the son (“Sole Custody Summons”);

(b)                         Father’s summons dated 27^th November 2013 for joint custody of the son with the Mother (“Joint Custody Summons”);

(c)   Father’s summons dated 20^th December 2013 for defined access to the son (“Defined Access Summons”);

(d)                         Mother’s summons dated 28^th March 2014 to withdraw the son from his boarding school in UK to a school in USA (“Withdrawal Summons”).  

23.  These summons were subsequently set down for trial together for 2 days in September 2014, but at the pre-trial review on 11th August 2014 the parties were able to settle all 4 summons upon certain undertakings given by the Mother when the Father agreed to withdraw his 2 summons and that an order was made in terms of the Mother’s 2 summons, with the question of costs of the 4 summons reserved for argument, as while the Father proposed for there to be no order as to costs for all 4 summons, the Mother insisted that the Father should bear all her costs.

24.  Whilst Ms da Luz has conceded for the Mother that the starting point in cases involving children would be for no order to be made as to costs, unless a party has conducted the litigation in such reprehensible manner or where the party’s stance has been beyond the band of what is reasonable such that the court would consider it just to make a costs order against him/her, as was held in Sutton London Borough Council v Davis (Costs) (No.2) [1994] 2 FLR 569 at 570, which is what Ms da Luz submits to be the case here, as it is the Mother’s case that the Father’s 2 summons were hopeless from the outset, and that his stance against her 2 summons was reprehensible or beyond the band of what is reasonable, so as to attract an adverse costs order by the court.       

25.  The Mother claims that she took out her Sole Custody Summons in order to deal with the renewal of the son’s passport was going to expire soon but since the Father had failed co-operate with her to jointly apply to the relevant authority for the renewal, she therefore had no choice but to apply for the son’s sole custody so that she could handle the renewal by herself, and notwithstanding the fact that she was subsequently granted sole custody on 22^nd November 2013, the Father took out his Joint Custody Summons a few days later, of which she argues as wholly unnecessary or unjustified and a waste of her costs.

26.  Ms da Luz argues that while the issues raised under those summons were eventually settled by the parties themselves without adjudication by the court, the Mother relies on various salient and incontrovertible facts in support of her claim for costs against the Father, which were set out in Ms da Luz’s Skeleton Submission and I do not propose to repeat them here but which mainly consist of the factual historical background of the parties after the birth of their son including his care and financial arrangements over the years leading up to their litigations in these proceedings, many of which can also be found in my main judgment of 4^th October 2013.           

27.  What the Mother is essentially arguing is that since she had always been the primary carer of the son with his de facto custody, which had been the status quo for the past 15 years, in the absence of any material changes, the Father’s joint custody application is simply unwarranted, and given the son’s stated preference for her and the Father’s ill-considered child-care plan which involved the hiring of an au-pair to assist him in the daily care of the son, coupled with the many undisputed difficulties in communication and co-operation existed between the parties, she argues that the Father’s summons were doomed to fail and should never have been taken out in the first place.

28.  On the Mother’s last point which she argues would render joint custody unfeasible, Ms da Luz relies on the case of ML v YJ [2008] HKFLR 88 in which Recorder Rimsky Yuen SC summarized the court’s approach in that if it is clear that joint custody is not workable, it seems unlikely that the court will nevertheless make such a joint custody order solely for the purpose of encouraging the parties to overcome their differences or to recognise the continuing role of the parties, and as such a joint custody order which is unlikely to be workable cannot be in the best interests of the children as the adverse consequences will far outweigh the benefits that it may bring.

29.  Ms da Luz submits that given the parties’ difficulty in communicating, let alone agreeing on almost anything such as the renewal of the son’s passport and many other routine matters concerning the son were often fraught with tension and difficulty and well documented in their many affidavits, resulting in the Mother having to take out her Sole Custody Summons in the first place, it begs the obvious question of how could the parties be expected to work together and to make joint decisions on more important matters concerning the son? Hence, Ms da Luz argues, the Father’s Joint Custody Summons was simply not feasible and should never have been made in the first place.    

30.  Accordingly, Ms da Luz submits that the Father should bear the Mother’s costs in respect of his Joint Custody Summons, following the court’s decision in the case of C v H [2011] 3 HKC 305 where the father was found to have acted unreasonable in persisting in contesting custody of his 2 teenaged children notwithstanding the facts that they had been under the de facto care of their mother for a lengthy period and had expressed their unequivocal desire to remain living with her, and as a result the court departed from the usual no order as to costs and instead ordered the father to pay the mother’s costs.

31.  As for the Father’s Defined Access Summons, Ms da Luz submits that it was again totally unnecessary as the Mother had never refused access to him, and had in fact always encouraged him to share the son’s major school vacations so as to alleviate the disproportional financial burden on her, but that she merely requested him to agree to an access schedule in advance so that they could both make their own planning accordingly, and to provide her with his itineraries and contact details of each holiday destination as well as a 2-way flight tickets for the son for each holiday, which she argues as just normal and common requests under the circumstances.

32.  As for her summons for leave to withdraw the son from UK boarding school to US school, the Mother argues that notwithstanding the Father had been told as early as 2013 of her reasons including changes in her financial circumstances for the worse that she could no longer afford boarding school for the son in UK, that the son would be closer to his grandparents in the US, and that he had indicated clearly his wish to attend school in the US with the aim of entering university there, yet the Father’s opposing stance was persistently beyond the band of what was reasonable, and only withdrew his objection at such a late stage that substantial costs had already been incurred and for which he should be liable.

33.  Ms Man for the Father however argues that it was necessary for the Father to issue both his Joint Custody and Defined Access summons as the Mother had made many unilateral decisions concerning the son in total disregard of the Father’s good intentions and concerns for the son’s welfare, including withdrawing him from the UK school without consulting the Father, blocking him from speaking with the school or informing him of the son’s progress or of his schooling in the US, which necessitated his demand for the Mother’s undertakings as reflected in the wordings therein given on 11^th August 2014 as follows:

“1. To consult the Applicant/Father prior to making any important decision(s) relating to (the son), such as decisions concerning his education, health/medical, school residence and religion and to keep the Applicant informed and up to date on these matters. With the exception on urgent and emergency matters regarding (the son)’s health and medical condition which requires a quick decision to be exercised.

           2. To not obstruct the Applicant/Father from communicating with (the son)’s school(s) and teachers.” 

34.  It was only on the basis of these undertakings of the Mother, Ms Man submits, that the Father agreed to withdraw his summons and his opposition to the Mother’s summons, and as none of them had ever been adjudicated upon or any finding made by the court of any of the issues in those summons upon which the court could make any order as to costs or to assign any blame or fault on either party.

35.  Furthermore, Ms Man argues, that the court should note the following factors:

(a) That the Father withdrew his summons after having considered the various changes in the parties’ circumstances including the drying up of their financial resources due to the ongoing 3 years of litigation, and that in the interests of saving time and costs and in light of the son’s wishes, he took the initiative to put an end to the disputes;

(b) That it was the Father who made constructive use of the CDR hearing and to continue negotiations thereafter as reflected by his open offer through his solicitors of 23^rd July 2014 explaining his initial objection to the son’s changing school based on what he thought to be his best interests and offering to withdraw his objection on certain terms which he thought were reasonable;

(c) It was only at the Father’s insistence that the Mother was finally prepared to give those undertakings which she did that led to their settlement, and that had they been given earlier, even the hearing on 11^th August 2014 could have been avoided.      

36.  Ms Man therefore submits that the Father should not be blamed for making his applications as they were clearly done out of genuine concern for the son’s welfare, and that they cannot be seen to have been hopeless from the outset as the Mother contends. To the contrary, Ms Man submits, the Father had good basis and reasons for his applications, and as none of which have been adjudicated upon by the court, and that the evidence is incomplete to enable the court to determine who would have been successful, no order as to costs for all 4 summons would be fair and appropriate in the circumstances.

37.  There is no dispute over the general practice of making no order as to costs in children’s case. This is conveniently summarised by Neil LJ in the case of Keller v Keller and Legal Aid Board [1995] 1 FLR 259 at 267 where he said:

“In the last decade, however, it has become the general practice in proceedings relating to the custody and care and control of children to make no order as to costs of the proceedings except in exceptional circumstances.”

38.  In Sutton London Borough Council supra Wilson J shed some light on the rationale for the present practice at 570H of his judgment:

“ … the point is based on the proposition, enunciated by Butler-Sloss LJ in Gojkovic v Gojkovic (No 2) [1992] 1 All ER 267 at 271; [1992] Fam 40 at 57 and applied every day for many years in the division, that ‘it is unusual to order costs in children cases’ … Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of a child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party …”

39.  In R v R (Costs : Child Case) [1997] 2 FLR 95 at 96H – 97E Hale J, as she then was, gave the reasons why this practice has developed:

“The reasons why this practice has developed perhaps fall into three categories. The first is general to all family proceedings and was pointed out by Butler-Sloss LJ in Gojkovic v Gojkovic at 57 and 237 respectively, that orders for costs between the parties will diminish the funds available to meet the needs of the family …

The second reason which is given for there being no costs orders in general in children cases, is that the court’s concern is to discover what will be best for the child. People who have a reasonable case to put forward as to what will be in the best interests of the child should not be deterred from doing so by the threat of a costs order against them if they are unsuccessful. This is indeed the major reason in children cases why the court is reluctant to add to the existing deterrents which all litigants face in coming to court.

The third reason is suggested by Wilson J in the case of London Borough of Sutton v Davis (Costs) (No 2) at 570 – 571, when he points to the possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what is to happen to the child in the future; it is likely therefore to exacerbate rather than to calm down the existing tensions; and this will not be in the best interests of the child.” 

40.  Her Ladyship went on to say:

“Nevertheless, there clearly are, as Neil LJ pointed out, cases in which it is appropriate to make costs orders in proceedings relating to children. He pointed to one of those sorts of situation: cases where one of the parties has been guilty of unreasonable conduct…”

41.  Her Ladyship then suggested that unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of litigation when she pointed out at 98B:

“The fair point is made that in children cases one must not confuse unreasonableness in relation to the child – because one might say that we are all expected to be unreasonable in our attitude to our children – and unreasonableness in the attitude to the litigation. However, it is quite clear 5that the judge took the view that the father had indeed been unreasonable in relation to the litigation. Of course, the parties should not be deterred, by the prospect of having to pay costs, from putting before the court that which they genuinely think to be in the best interests of the child, but there have to be limits. Children should not be put through the strain of being subject to claims that have very little real prospect of success, still less should they be put through a quite unreasonable involvement in their parents’ disputes, to the extent that R was in this case. He was taken to see a psychologist, whom the judge described as totally unqualified to give an opinion on the case. We learn that this was done without leave of the court. The judge made various criticisms of the psychologist’s methods and described him as a ‘paid hack’. He was also taken to see a solicitor between the end of the evidence and the judge’s giving judgment. In other words, there was conduct in relation to the litigation which goes way beyond the usual sort of attitude which a concerned parent shows in relation to the future of the child.”

42.  The pursuance of a totally hopeless case can also in certain circumstances be regarded as unreasonable conduct that would justify a costs order, as Butler-Sloss LJ held in Re G (Costs: Child Case) [1999] 2 FLR 250 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 which is on legal aid generally advised by counsel and solicitors as to the extent to which they should continue to litigate.”

43.  Her Ladyship then added at 253D:

“It seems to me that the case of R v R does not change the normal situation that it is unusual to order costs, although it will be appropriate to order costs when a parent, even a litigant in person, goes beyond the limit of what is reasonable to pursue the application before the court.”

44.  Or, as pointed out above by Wilson J in Sutton Borough Council supra in his judgment:

“ … But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable (see Havering London BC v S [1986] 1 FLR 489 and Gojkovic (No 2) [1992] 1 All ER 267 at 271; [1992] Fam 40 at 60).”

45.  Of course in all those cases cited above the costs order was made against the parent only after the court had found him/her guilty of being unreasonable or taking a stance beyond the band of what is reasonable in the application after a proper trial or hearing. Here all 4 applications were compromised and settled between the parties before trial and that none of the issues raised in those applications had been adjudicated, hence the Mother is essentially asking the court to infer unreasonableness on the part of the Father as to his conduct and/or stance just on the basis of the factual or undisputed background of the case and on the parties’ untested affidavits.

46.  Henceforth and on that basis, the questions for me to ask accordingly are: Firstly, in respect of his own 2 summons, was the Father pursuing a hopeless case for joint custody of and defined access to the son; and secondly, in respect of the Mother’s 2 summons, was the Father taking a stance beyond the band of what is reasonable in those applications, and in any event, did he conduct unreasonably in any of those 4 summons?

47.  There is no question in my mind, and as amply evidenced during the earlier maintenance application, that the parties did have difficulty communicating with each other, let alone agreeing on even the most simple or straightforward matters concerning their son, which were, I believe, stemmed from the fact that they had ceased their relationship and lived apart years ago and hence were naturally not aware of each other’s situations including and in particularly their financial changes since, compounded by the son’s Asperger Syndrome surfaced only some 5 years after the parties’ separation and hence of which the Father would not have first-hand experience or understanding, a situation no doubt exacerbated by the Mother’s dissatisfaction over his financial contribution towards the son’s maintenance over the years given the son’s special needs, and when she inflated her claims in the son’s maintenance application and he in turn cried financial difficulty, any remaining trust between them would have no doubt gone out of the window, which thus explain their inability to co-operate. It must be in my view against these backgrounds and under these circumstances that the Father is to be judged whether his conduct had been unreasonable in those applications, starting with his application for joint custody.

48.  The Father had made it clear that the primary reason for his application for joint custody was that the Mother had made unilateral decisions concerning the son without consulting him or even notifying him, making such application necessary, which was ultimately justified by the Mother’s undertakings.

49.  The Mother on the other hand argues that that application was hopeless from the outset due to their inability to co-operate and should never have been taken out in the first place. On this while the Mother relies on what Recorder Yuen said about the court’s approach in ML v YJ supra, it would be relevant in my view to also consider what Hartmann JA, as he then was, said about such approach in the later case of PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191 at 202:

“Joint custody: the proper approach

52. Today, although there has been no change in our law similar to many other common law jurisdiction, orders of joint custody are in no way exceptional. This is because it is accepted that, in principle, such orders are in the interests of children.

53. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents. The case before us is an example.

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of cooperation is in the best interests of the child.

56. In determining the issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to cooperate with each concerning matters of importance in the upbringing of the child.

57. At all times, of course, the welfare of the child remains the first and paramount consideration. As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at cooperation will not protect the interests of the child but only leave the child more vulnerable.”   

50.  While the relations of the parents in this case had ceased much longer than those whom these words of His Lordship were meant for, it is my firm view that they are equally applicable, and that after the parties’ disputes over their son’s maintenance was over, the Father should not be criticised for thinking that the parties would be willing or able to set aside their differences and to work together over their son’s future by seeking his joint custody so that at least he could have some say about his future, and the fact that they were eventually able to settle all their applications show that at least he was not wrong with his applications, and certainly not being unreasonable or reprehensible to warrant a costs order against him.

51.  As for his stance against the Mother’s applications, especially her Withdrawal Summons, I agree with Ms Man that it was one which the Mother was obliged to issue for the court’s leave in the first place, and given the circumstances of her earlier application to enrol the son to the UK boarding school, I accept that the Father was entitled to be first satisfied that it would indeed be in the son’s best interests to change school so soon again before withdrawing his opposition, and hence again his such stance as a concerned parent certainly cannot be criticised. Accordingly, on the basis of the evidence before me, I am not satisfied that the Father’s conducts in any of the 4 summons can be described as unreasonable or reprehensible or beyond the band of what is reasonable to justify any costs order against him.              

52.  Accordingly, I agree that it would be fair and appropriate to make no order as to costs in respect of all 4 summons. As for the costs of the hearing of the 3 matters before me, I agree that there should also be no order save and except for the Mother’s application for leave to appeal which I have found to be totally devoid of merits and should never have been made in the first place, and for which she should bear the Father’s costs to be taxed if not agreed with certificate for counsel. This is an order nisi to be made absolute at the expiration of 14 days.