Br also known as Rb v. P

FCMC 13192/2019

[2021] HKFC 234

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 13192 OF 2019

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BETWEEN

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

Direction that the application be dealt with by way of a paper disposal:  10 August 2021

Date of written submission:   23 August 2021

Date of Ruling:  17 November 2021

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R U L I N G

(Costs)

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Introduction

1.On the 10 August 2021 the court refused to extend the Petitioner wife’s injunction order further, given, inter alia, that there had been no further breaches of the order in question.

2.The original ex parte non molestation/ouster injunction order, with an arrest warrant attached, was made on the 30 July 2020. This order was personally served on the husband, but notwithstanding that, he continued to breach the said order. On the 23 September 2020 he was arrested for the first time.  The matter returned to court on the 12 October 2020 and given the continuation of the husband’s behaviours which included threats, stalking like behaviours and some low-level, but nevertheless frightening violence directed at both the wife and the three children of the family, the original order was extended. The husband appeared in court on that occasion and was warned that he would be arrested again if his behaviour continued. He was also given leave to file an affidavit in opposition. In addition, the court made an order on that day granting the wife interim custody and care and control of all three children. Notwithstanding this the husband did breach the injunction order again and he was subsequently arrested and detained at Lai Chi Kok Reception Centre from the 17 October to the 27 November 2020.

3.On the 3 December 2020 the court granted the wife a decree nisi and a final order for custody and care and control of the children. The matter returned to court on the 25 January 2021 and the injunction order was extended for a third time, to the 10 August 2021. In addition, the husband, who was present on that occasion, agreed to pay the wife nominal maintenance. A s.18 declaration was also granted. The decree absolute was subsequently pronounced on the 11 February 2021. Costs arising out of the injunction proceedings were reserved on the 30 July 2020, the 12 October 2020 and the 25 January 2021. It is also of note that the wife is legally aided and that the husband did not ever file an affidavit in opposition, despite, as I have said, being given an opportunity to do so.                 

4.On the 10 August 2021, the wife asked for an extension of the order. She did not file any updated affidavit, nor had she sought leave to do so. No written submission was filed on her behalf by her solicitors. It was not clear on what basis she was making that application, or indeed why it was being made. I was told that there had been no recent incidences. In those circumstances the court declined the wife’s oral application to extend the injunction further. The court made no order for costs on that day, but reserved the issue of the outstanding reserved costs, to be dealt with by way of a paper disposal.

The law

5.For the avoidance of doubt the law on costs is very clear. To summarize it is accepted that the issue of costs lies in the discretion of the court and costs are normally expected to follow the event. However, it is also accepted that this presumption is more easily displaced in family proceedings that in others. It is possible for the court to take a number of different issues into account, including the litigation conduct of the parties.

Discussion

6.In this instance the parties are both poorly educated and of Pakistani origin. As I have said the wife is legally aided. The husband has never been legally represented. However, he did explain to the court that he did not wish his marriage to come to an end and that he was hoping to reconcile with the wife. Some of his behaviours can be explained, if not excused, in that context. However, the husband did not file either an affidavit in opposition, nor did he file any submission with respect to the issue of costs. He did not appear in court on the 10 August 2021, although he had been present in January 2021 and was aware of the return hearing date and the other orders that had been made.  

7.Further it is also accepted that the husband’s behaviours were initially very frightening and that the wife was perfectly within her rights to take the action that she did. It is also of note that the husband then breached the injunction order on multiple occasions. By all accounts this only came to an end following his period of imprisonment at Lai Chi Kok.   

Decision

8.In such circumstances I shall exercise my discretion and order that the Respondent husband do pay the Petitioner wife’s costs of and arising out of her summons dated the 21 July 2020, to include the costs reserved on the 30 July 2020, the 12 October 2020 and the 25 January 2021, such costs to be taxed on a party and party basis if not agreed and that the Petitioner’s own costs to be taxed in accordance with Legal Aid Regulations.

Messrs Chiu & Co acted on behalf of the Petitioner

The Respondent acted in person