L, T v. M, Md

FCMC 5131/2019

[2021] HKFC 161

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 5131 OF 2019

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public). Paper disposal

Date of Ruling: 9 August 2021

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RULING

(Leave to Appeal)

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Introduction

1.This is an application by the Petitioner mother for leave to appeal a Ruling made by me on the 27 April 2021 with respect to costs. In that ruling I concluded as follows:

Conclusion

11. Both sides have spent considerable time and effort trying to persuade me that they were reasonable in their approach and that the other side was not. Ultimately, I have not been persuaded. This was clearly a highly conflicted case, where each side behaved on occasion, in ways which were and are questionable. In particular, the language used in some of the correspondence was completely unacceptable. There is no excuse for this, whatever the provocation. However, I am not persuaded that either side has behaved in a way that is “reprehensible” “or beyond the limit of what might be regarded as reasonable”. Especially as ultimately they came to terms. Consequently, I can see no reason why the normal approach should not be adopted here. I am not persuaded that the litigation conduct of the husband was such as to invite an adverse costs order being made against him. Consequently, it follows that there shall be no order as to costs, with respect to the children’s litigation including costs arising after the 5 September 2019 and up until the date of the consent summons on the 7 January 2021 and since. I have considered whether an order should be made against the wife with respect to this application. This was her application. She has not succeeded in that application. She has made it notwithstanding her own questionable behaviour and in particular the aggressive use of language adopted in much of her solicitor correspondence, which has continued in her submissions to the court. However, ultimately, I accept that there has been fault on both sides throughout. Consequently, I shall further exercise my discretion in that there shall also be no order as to the costs of this application.    

2.The issue of costs arose following an agreement made between the parties concerning the arrangements for the two children of the family, which was eventually endorsed by the court on the 7 January 2021. In other words, the mother is seeking to appeal against a standard order that there should be no order as to costs following a children’s dispute, where there has not even been a trial (there is generally no order as to costs following a children’s trial in any event). In this instance the court made an order that there be no order as to costs following an agreement entered into between the parties.      

The law on leave to appeal

3.I am of course mindful of the test as set out in Section 63A of the District Court Ordinance which states as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.”

4.It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and, as I have said, that it has a reasonable chance of succeeding.  The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly.  Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

Discussion

5.In this instance I shall give not give leave to appeal. The parties are now acting in person and the mother has not attached draft grounds of appeal in the normal format. Instead she has filed what amounts to an affidavit, in which she seeks to reargue many of the points that were originally raised by her, or to somehow “answer” the Ruling made on the 27 April 2021. In summary her basic point appears to be that the father reneged on the mediated agreement with respect to the children dated the 23 August 2019, that he had no basis for doing so and that he has also used the financial litigation in order to gain leverage with respect to the children’s matter. She says that by not making an order for costs against him that I am in effect punishing her, for doing what she was advised to do in the first place – i.e. to mediate and to reach an agreement with respect to the children.

6.The father for his part maintains that ultimately he was only ever concerned with ensuring that he had proper access to the children. He disputes most of what the mother says in any event. In conclusion he states as follows:

Conclusion

16.  The Petitioner claims that the Court accepts my «outrageous behaviour» but it is clear from Her Honour’s ruling that it was mostly the Petitioner and her solicitor’s behaviour that was reprehensible. Her Honour even wrote in the conclusion: «I have considered whether an order should be made against the wife with respect to this application».

That being said, I agree with Her Honour and accept that «there has been fault on both sides throughout» which is surely often the case in high conflict cases. This is also why, even if I was advised by my solicitors to ask for an order against the mother to pay for my legal costs, I chose not to because I thought we both have to take our own responsibilities and pay for our own fees. The Petitioner putting all the blame on me is unrealistic to say the least.

18.  Again, having me pay for all her costs would be too great a departure from the general rule especially when the Petitioner is in a position to pay herself. I fear that her desire for revenge against me has taken over reason. Saying that it would be «in the best interest of the children to make the Father pay in full the legal fees» is simply using the children as an excuse to get money and I find it unacceptable. Going into the appeal process will certainly not help us with our co-parenting, nor will it be for the well-being of the children.

19.  Ultimately, there’s nothing new in the Petitioner’s arguments, it’s only a repetition of what was already brought to Court and carefully considered. She is making the Court waste time on facts that have already been shown in great details. There are no legal grounds for her application.

20.  Therefore I don’t see any legitimate grounds for appeal just because the outcome was not what the Petitioner was hoping for. An appeal should not be a «do-over» and this is exactly what she is trying to do. The Petitioner wants to punish me for fighting for more time with my children, time she has actually agreed to in the end. She also seems to forget that I also incurred tremendous legal fees. This is also why the original decision would not cause substantial injustice. I believe that each party paying for its own costs is the fairest option in our case and therefore oppose her application for leave to appeal.

With respect I tend to agree with much that is said here.  

Decision

7.In such circumstances it seems to me that there is no reasonable prospect of this application succeeding on appeal, nor is there any other reason, in the interests of justice why this appeal should be heard. Consequently, the mother’s application for leave to appeal shall be dismissed.

Costs

8.This is a discrete application. Costs shall follow the event in the normal way. Therefore, the mother shall pay the father the costs of and occasioned by this application for leave to appeal on a party and party basis to be taxed if not agreed.  

The Petitioner and the Respondent both represented themselves