Lch v. Wpsn

FCMC 1936 / 2020

[2023] HKFC 64

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1936 OF 2020

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DECISION

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This Application

1.This is an application by the Respondent Mother (“M”) for costs arising out of a Summons dated 16/7/2021 taken out by the Petitioner Father (“F”) on the arrangement of schooling of the 2 children of the family (“Schooling Summons”)[1].

Background

2.Parties married with each other in 2014. There are 2 children, both girls, born out of the marriage. The elder daughter whom I will refer to her as “GA” born in December 2014. The younger daughter whom I will refer to her as “GS” born 1 year later in December 2015.

3.In April 2020, F filed a Petition for divorce relying on the fact of “Unreasonable Behaviour”. Decree Nisi was granted in February 2021 which was made absolute in March 2021.

4.There are 3 Consent Summonses filed whereby the parties, with the assistance of their legal teams and mediators, came to a global settlement on ancillary reliefs and children matters. Accordingly, 3 separate consent orders were granted which, in terms of their contents, conveniently called (i) Children Order; (ii) Maintenance Order; and (iii) Settlement Order. The Children Order[2] and Maintenance Order[3] were both granted on 30/11/2020 followed by the Settlement Order[4] granted on 2/2/2021.

5.At all material times, F and the paternal family was residing in a 4-storey semi-detached house in Sai Kung, New Territories. As part of the Settlement Order, M moved to live in a housing complex in Clearwater Bay since August 2021. This property was legally owned by F’s sister and beneficially owned by F’s mother. As part of the Children Order, F and M have joint custody of GA and GS, with shared care and control of the children on a “week-on and week-off” arrangement.

6.For the academic year of 2020-2021, GA was studying Primary One at the school “SJCPS” in Kowloon Tong, Kowloon. GS was also studying Year One at an international school “ESFCBS” in Clearwater Bay, New Territories.

Chronology leading to the “Schooling Summons”

7.On 16/7/2021, a letter was received by this Court from F’s lawyers Messrs. Ip & Heathfield (“IH”) attached with a draft of the Schooling Summons and F’s 5^th Affirmation seeking an early date for hearing. This letter together with the attachments were copied to the M’s then lawyers Messrs. Franki Ho & Associates (“FH”).

8.On 19/7/2021, FH wrote to this Court referring to IH’s letter and submitted that there should be no urgency for or any priority in the matter and that F’s Schooling Summons should be listed for hearing in the usual way.

9.On 21/7/2021, this Court directed that F’s Schooling Summons be listed for a call-over hearing on 1/9/2021. Directions were also granted for the parties to file and exchange affirmation evidence. A social investigation report was called for on the schooling arrangement of GA and GS and that the report should be available on or before 26/8/2021.

10.On 26/7/2021, IH issued the Schooling Summons and filed F’s 5^th Affirmation so directed by this Court on paper.

11.On 5/8/2021, M filed her 5^th Affirmation in opposition[5] to F’s application as per the Schooling Summons.

12.On 18/8/2021, the Social Investigation Report (“SIR”)[6] was filed with the Court.

13.On 19/8/2021, F filed his 6^th Affirmation in reply[7] to M’s 5^th Affirmation in opposition.

14.At the call-over hearing on 1/9/2021, given that both parties had filed their affirmation evidence, this Court fixed the trial of F’s Schooling Summons on 15/3/2022 and 16/3/2022 (2 days reserved). The social welfare officer who prepared the SIR was directed to attend the 1^st day of the trial[8].

15.Given the General Adjournment Period (“GAP”) due to the Covid-19 pandemic, the 2-day trial scheduled for March 2022 was vacated and need to be re-fixed in consultation with Counsel’s diaries.

16.On 18/2/2022, a without prejudice meeting was held outside Court between the parties both assisted by their legal teams.

17.On 23/2/2022, F confirmed through his lawyer’s letter[9] that he would withdraw his Schooling Summons. Attached with the letter was a Consent Summons seeking leave for the withdrawal with no order as to costs of and incidental to the application including all costs reserved[10].

18.On 24/2/2022, M’s lawyers replied by letter[11] returning F’s Consent Summons with amendment(s) made therein seeking, inter alia, all costs of and incidental to the Schooling Summons including the application for withdrawal and all costs reserved to be paid by F.

19.On 11/4/2022, this Court granted leave for F to withdraw the Schooling Summons with the question of costs to be disposed of on paper. Parties are directed to file and exchange written submissions on costs within 28 days after their agreement on the bundle for the costs argument. There was consequential leave for them to file reply submissions within 14 days thereafter[12].

F’s Schooling Summons

20.F’s Schooling Summons read as follows :-

“The Honourable Court do deal with the issue of schooling in relation to the children namely GA, a girl born on xxxx and GS, a girl born on xxxx, in particular, that both Children do join SKCLSY Memorial School commencing from September 2021 or as soon as practicable thereafter.”

The applicable legal principles on costs

21.First and foremost, it is trite that the Court has a very wide discretion on costs. The legal teams for the parties have helpfully set out in their respective written submissions whole load of UK and Hong Kong cases on the topic; including but not limited to, the circumstances when the usual form of “no order as costs” in children matters might be departed from. The usual form of “no order as to costs” is a proposition rather than any rigid rule. Such proposition would not be 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 Borough Council v S [1986] 1 FLR 489 and Gojkovic v Gojkovic (No. 2)).

22.In Keller v Keller and Legal Aid Board [1995] 1 FLR 259 where it was said by Wilson J at page 265 :

“No one suggests that the court’s discretion in respect of costs under s.51
(1) of the Supreme Court Act 1981 has become emasculated in children cases. The position is only that in most such cases, indeed in ordinary cases, the proper weighing of the factors in the exercise of the discretion is likely to lead to the choice of no order inter partes. Where for example, the conduct of a party has been reprehensible or his stance in the litigation has been beyond the band of what is reasonable, an order for costs might well be made against him. Equally a marked disparity in wealth, such that, for example, the wife’s costs would bear harshly upon her economy but could be discharged by the husband without significant impact upon his economy, might give rise to an order against him.”

23.As to reasonableness of a party’s conduct, Hale J (as she then was) said in the case of R v R (Costs: Child Case) [1997] 2 FLR 95 at page 98 which I find particularly useful and instructive :-

“…...The far 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 attitudes to our children – and unreasonableness in the attitude to the litigation. However, it is quite clear that 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 (emphasis added). 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 to their parents’ disputes, to the extent that R was in that case. He was taken to see a psychologist, whom the judge described as totally unqualified to give an opinion on the case. We learnt that this was done without the 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 his child.”

24.In the later case of Re S (A Child) [2015] UKSC 20, Lady Hale Deputy President of the Supreme Court, analysed and explained different form of costs orders in children cases. Reference was made to section 51 of the Senior Courts Act 1981 which provides that costs in the civil division of the Court of Appeal and in the family court are “in the discretion of the court” but subject to the rules of court. Under Rule 44.2(2)(a) of the Civil Procedure Rules (“CPR”), the “general rule” in civil proceedings is that the “unsuccessful party will be ordered to pay the costs of the successful party”.

25.However, the Family Procedure Rules (“FPR”) rule 28.2(1) dis-applies the CPR rule 44.2(2) to the extent that the “general rule” does not apply to first instance proceedings about children. Nor does the “general rule” apply to proceedings in the Court of Appeal in connection with proceedings in the Family Division of the High Court or from a judgment, direction, decision or order in any court in family proceedings (CPR, rule 44.2(3)).

26.At paragraph 16 of the Judgment, Lady Hale DPSC went on to say :-

“16. However, CPR 44.2(4) and (5) do apply (emphasis added) to children’s proceedings both at first instance and on appeal.

“(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

(a) the conduct of the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences of Part 36 apply.

(5) The conduct of the parties includes –

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed ….any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.”

27.Having noted other factors for consideration, such as parents’ general motivation over their child’s welfare[13]; the need of co-operation between parents and that stigmatising one party as loser and adding the burden of having to pay other party’s costs is likely to jeopardise chances of co-operation[14]; and also would reduce resources available for looking after the child[15], Her Ladyship in her conclusion at paragraph 26 said :-

“26. …….They lead to the conclusion that costs orders should only be made in unusual circumstances. Two of them were identified by Wilson J in Sutton London Borough Council v Davies (No. 2) : “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: Havering London Borough Council v S [1986] 1 FLR 489 and Gojkovic v Gojkovic [1992] Fam 40, 60C-D” (p 1319). Those were also the two circumstances identified in In re T, at para 44.”

28.The notion of “limits” over parents’ conduct was spotted by Her Honour Judge Melloy in the case of LACHY v YC [2018] HKFC 136 where it was said :-

“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 (emphasis added). 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 ?”

29.In the earlier case of HK v BD[16], unreported (Date of Decision is 15/10/2010), where Hartmann JA (as he then was) said :-

“78.	In family cases, as in all civil proceedings, the basic principles are that costs are in the discretion of the court but that costs should follow the event except when it appears to the court that, in the circumstances of the case, some other order should be made. In family matters, because of their particular dynamics, the exercise of discretion is broader-based than in other civil proceedings. However, as was observed by Butler-Sloss LJ in Gojkovic v. Gojkovic [1992] Fam 40, there still remains the necessity for some starting-point. That starting-point, as we have indicated, is that costs prima facie follow the event.
79.	On behalf of the wife, the oblique criticism was made that the judge proceeded on the basis of “honours even”, that seemingly being the essential reason why he came to his determination that both parties should bear their own costs. We do not see that the judge can be criticised in that respect. If costs were to prima facie follow the event, it was necessary for the judge to identify who had been successful and who had not.
80.	But there were of course many cases which the judge in the present case had to take into account in considering how best to exercise his discretion as to costs. It is a long established principle that, after analysing the case of each party, costs must be judged by way of overall impression (emphasis added). They are not to be assessed by breaking down the litigation into its many component and interlocking parts in order to draw up some kind of profit and loss account.”

30.In the recent case of YBL v. LWS (No.2) [2017] 2 HKLRD 783, the Court of Appeal said :-

“9. In our judgment, the proper approach in determining costs is that succinctly put by the Chief Justice in Mimi Kar Kee Hung v. Raymond Kin Sang Hung, FAMV 10 & 11 of 2014, 7 July 2015 at [7] :

‘The discretion as to costs in this Court, as in any other Court, is to be exercised in a principled way with a view to reality and justice.’

10. For present purposes, the relevant principles on the exercise of

discretion as to costs can be summarized as follows :

(a) whilst the courts often start with the proposition of costs following event, it is no longer a general rule but a starting point, see Hung Fung Enterprises v. Agricultural Bank of China [2012] 3 HKLRD 683;

(b) there have to be some justifications for depriving a successful party of his costs;

(c) in measuring who is the successful party and the extent of his success, the court must examine the reality and justice of the case. Thus, in Hysan Development Co Ltd v. Town Planning Board (No 2) (2016) 19 HKCFAR 635, the Court of Final Appeal made no order as to costs notwithstanding the success of the appellants in reversing the Court of Appeal’s decision because they did not achieve the full objects of their appeals;

(d) in addition, under Order 62 Rule 5, the court in exercising its discretion shall take into account the matters set out in Rule 5(1) as may be appropriate in the circumstances;

(e) Rule 5(2) highlights some conduct which the court may take into account including whether it is reasonableness for a party to take an issue, the manner in which the matter was pursued or defended, the extent of success, and conduct before, as well as during the proceedings;

(f) If a successful party has brought the litigation upon himself or has done some wrongful act in the course of the transaction, he could be deprived of his costs.”

31.It may now be the opportune time for reviewing the Rules of the High Court, Cap.4A (“RHC”) governing costs in civil cases. Such rule, by virtue of rule 3 of the Matrimonial Causes Rules, Cap.179A, is applicable to matrimonial proceedings in the Family Court.

32.Order 62 rule 5 of the RHC provides :-

“5(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account –

(aa) the underlying objectives set out in Order 1A, rule 1;

(a) any such offer of contribution as is mentioned in Order 16, rule 10, which is brought to its attention in pursuance of a reserved right to do so;

(b) any payment of money into court and the amount of such payment;

(c) any written offer made under Order 33, rule 4A(2);

(d) any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;

(e) The conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(g) any admissible offer to settle made by a party, which is drawn to the Court’s attention.

(2) For the purpose of paragraph 1(e), the conduct of the parties includes –

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.”

33.Guided by the above cases and principles, I now proceed to consider the costs of F’s Schooling Summons.

34.Since it was M who sought costs for opposing F’s Schooling Summons whilst F proposed that there should be no order as to costs (with the exception of the costs incurred in contesting M’s costs application), I would start with M’s grounds of application in this Decision.

M’s grounds of application

35.Whilst accepting that in children’s matter the usual practice is to make no order as to costs, M’s costs application was mounted upon the lack of merits of F’s application, F’s litigation attitude and conduct and that the Schooling Summons was not taken out for the best interests of the children. M summarised her costs application under the following headings in the written submissions[17]:-

(a)  F’s hopeless case with little real prospect of success;

(b)  F’s Schooling Summons was groundless as it was unsupported by any of the relevant factors;

(c)  F’s unreasonable conduct in the litigation;

(d)  Disparity in wealth.

36.F had at the very early stage of his Schooling Summons been running a hopeless case. He knew well that neither GA nor GS liked the school LSY that he had chosen for them. Not only the children expressed such dislike to the social welfare officer, the SIR dated 18/8/2021 did not support such change of school either.

37.F’s proposal for change of school came about in April 2021 which was around 4 months after the global settlement on children matter was reached between them. This also came along at the time shortly after M filed her Notice to Act in Person. There was no material change of circumstances within those few months which called for the need on change of school. M considered that, apart from F’s litigation conduct, this was F’s attempt to renege on his previous promise and the undertaking given in the Maintenance Order that he would support the Children’s education expenses. As per Recital C in the Maintenance Order, F envisaged that GA and GS would attend the Clearwater Bay ESF School in the fullness of time. The school LSY that F had chosen is a local school. M said F’s attempt to change school was ill-motivated to punish her rather than for the best interests of both children.

38.The school LSY was located in Sai Kung which was close to F’s place of residence. By putting both children attending LSY, it would be more convenient to F as he would not have to bring the children to their schools at 2 different localities. GA’s school was SJCPS located in Kowloon Tong. GS’s school was ESFCBS located in Clear Water Bay. F was living in Sai Kung.

F’s case of defence

39.F’s Counsel invited me to revisit the skeleton submissions dated 30/8/2021[18] which sets out all the background and reasons for F’s Schooling Summons. It was further submitted that the determination of costs does not hinge upon the merits of F’s application.

40.Having seen the children’s academic results in the academic school year 2020-2021, F was concerned that GA and GS might not be suitable to continue with their education with the respective schools. He then started to look around for other schools for his children.

41.For GA, he noticed that she had been struggling with homework and had a difficult time in keeping up with the workload from the school. GA’s academic result was only average at best although she did well in non-academic subjects such as music, art and physical education. GA’s performance was below average in English, Chinese and Maths. Further, GA was born in December 2014 and being younger than other classmates, F considered that it would not be hugely disadvantaged if GA could start with Primary One again at LSY in September 2021.

42.For GS, he noticed that the situation was in fact the reverse of GA. The curriculum at ESFCBS was a very simplistic one for Year One student which F thought would make it very difficult for GS to move up to higher education later. ESFCBS being an international school, they placed heavy emphasis on learning through play. Unlike the elder child GA, GS almost had no homework from school and was able to play and relax after returning home from school.

43.However, GS had not been performing well according to her ESF Year One Progress Report which showed GS was only performing on an average basis. Teachers identified GS was in the “consolidating” stage for many of the subjects. F was concerned about GS transition into another school in the future. F was also worried how GS could keep ahead of the fierce competition in Hong Kong which is predominantly a Cantonese speaking society. ESFCBS teachers taught in Mandarin and that simplified Chinese was taught and written in school.

44.Given GS is one year younger than GA and that she had skipped K3 class before entering Year One in ESFCBS, F was of the view that even GS had to study Primary One at LSY, GS would still be with classmates at around her age and GS would not be the eldest one within the class.

45.F said the reason for changing both children to LSY school was that LSY is a “hybrid school” which provides a diverse curriculum, offering a choice between English and Chinese classes to cater for students with different nationalities. The set up of LSY is akin to an international school culture and that it would be good middle ground to fulfil the spirit of Recital C of the Maintenance Order. Putting both GA and GS together in LSY would alleviate the feeling of preferential treatment towards one child over her sibling given their small age gap.

46.The added advantage was that the travelling time and distance between LSY and the parties’ residence was comparatively shorter than SJCPS and ESFCBS.

Discussion

47.I have reminded myself that since the Schooling Summons was withdrawn before it came up for trial, parties’ affirmation evidence could not be tested through cross examination; thus, no factual findings could be made on the matters raised by the parties. I could only arrive at my decision upon reading the matters stated in the parties’ affirmations and exhibits at their face value and considered them objectively against any undisputed factual background with the aid of parties’ written submissions and the SIR filed.

48.It is unfortunate to see the parties have had to incur further legal costs for resolving the costs of F’s Schooling Summons which, in my view, should have been resolved sensibly and amicably without having to seek this Court’s assistance.

49.There was not much dispute between the legal teams on the practice and legal principles governing costs in family litigation over children’s matter. The crux of the present dispute on costs of the Schooling Summons falls upon 4 basic questions which I set out below :-

(a)  Was F’s Schooling Summons taken out for the best interests of the children, GA and GS ?

(b)  Was F’s application for change of schools reprehensible or went beyond the band of reasonableness given the background and circumstances of this case ?

(c)  Was F unreasonable in his attitude to the litigation insofar as his Schooling Summons was concerned ?

(d)  Was there are disparity in wealth ?

My Views

(a)  Best Interests of the children ?

50.The SIR which was called for did not recommend any change of schools for both GA and GS. In the concluding paragraph of the SIR[19], the social welfare officer Miss Chan said both GA and GS expressed resistance to change of school to LSY, a school which they knew nothing about, and that such resistance was being natural. Miss Chan hoped the parents could work together for the children’s best interests. The elder child GA expressed her wish to change to the school of ESFCBS where her sibling GS was studying[20]. The younger child GS also said she did not want to change to the school LSY arranged by F without telling to the social welfare officer the reason. Miss Chan written down in the SIR that GS said she had no knowledge about the school LSY and had never been there at all[21].

51.It was clear from the SIR that neither GA nor GS had ever expected or looked for a change of school and that the change was only intended and arranged by F.

52.On the available evidence, it was clear that F’s desire to change school for GA and GS was premised upon his observation of the children’s academic results for a particular school term (emphasis added) rather than any in-depth and thorough consideration of all the surrounding circumstances including the needs (if any) of the children. F said the children lagged behind in their academic studies which had caused him concern and that he saw fit to change schools for GA and GS respectively from SJCPS and ESFCBS to LSY to study Primary One together.

53.As a parent with shared care and control with M, there was no evidence from F or anywhere in the SIR that he had taken any steps to help the children out on their studies had he been concerned that the children lagged behind on the academic subjects. Instead F started to think of moving the children away from the schools to LSY which both children had no knowledge about. Actually what F was aiming at (leaving aside M’s contention as to reasonableness) was to avoid the problem (only if there was such problem) within the children’s studies at SJCPS and ESFCBS rather than tackling them. There was no evidence and, as a matter of fact that there could hardly be any, that the children would be doing even better if they were to study in LSY.

54.On the other hand, as recorded in the SIR, M had arranged Chinese tuition lessons to help the children[22]. Clearly, moving the children to study at LSY would be uprooting the “status quo” which would require cogent evidence that there was a genuine need to do so. F’s mere speculation or personal perceptions could not justify a change of the “status quo” in respect of which F had already envisaged to continue in the Maintenance Order, but only subject to Recital C therein of putting GA and GS studying together in an ESF school in the fullness of time.

55.F’s suggestion of arranging GA to repeat Primary One in LSY could not be in GA’s best interests from any perspective. There was no evidence that, with the aid of tuition arranged by M, GA would not improve on the Chinese subject which F considered to be lagged behind. As rightly submitted by W, which I agree, putting GA to repeat Primary One with her younger sister GS would damage GA’s self-esteem rather than promoting GA’s confidence in studying. I do not accept this was in GA’s best interests. Further, I do not see any advantage to GS either.

56.Actually, moving GS away from ESFCBS to LSY was without justification or valid reasons. This was also in apparent conflict with Recital C. F’s case was that he was concerned about GS’s Chinese was taught in Mandarin language and written in simplified Chinese text would reducing GS’s competitiveness was, in my decision, a complete non-starter. There was no evidence to show his concern was fair, reasonable and unbiased, not even to say that GS was only at the age of 6 at the material time studying Year One at ESFCBS.

57.F once referred to GA having failed in the interview at ESFCBS to support the filing of his Schooling Summons in July 2021. Again, as rightly submitted by M[23], unless F has the gift of prophecy to foresee that GA would fail again in her 2^nd interview in August 2021 at ESFCBS after he put forward his idea of change of school as early as in April 2021 via WhatsApp messages[24] with M, the filing of the Schooling Summons in July 2021 (the 2^nd interview was a month later in August 2021) signified F’s intention to back out from what he had agreed when the global settlement (including children schooling arrangement) was reached in February 2021.

58.I have also considered M’s contention that it was F’s own interests for arranging both children to study in LSY, a school located near his place of residence thus saving F’s time and effort for bringing them to school. Such contention of time saving was actually not disputed by F in his submissions. On balance, I accept M’s contention valid and probable to be the truth.

59.For all these reasons, I decided that F’s Schooling Summons was not filed for the best interests of the children GA and GS.

(b)  Was F’s application reprehensible or unreasonable ?

60.It is trite law that a parent should not be penalised for or deterred from asserting his or her legal rights over their children or to safeguard the best interests of their children. As said in the decided cases, costs over children’s matter is always fact-sensitive and that a “fine line” must be drawn or “limit” should be imposed on a case by case basis. How lax or flex for such “line” or “limit” is a matter for discretion to be properly exercised upon full consideration of all the circumstances of the case.

61.When the Schooling Summons was issued on 16 July 2021, it was within the summer vacation and that the academic school year 2021-2022 would start in about 6 weeks’ time, that is, in September 2021. F in his Summons and supporting affirmation sought for the change of school to LSY to start from September 2021 or soon afterwards. Given the fact that F was represented by experienced law firm with extensive matrimonial practice, he must have been fully advised that such target date of commencement was unrealistic; if not impossible, unless with the consent of M. In this case, M’s consent was definitely not forthcoming and the matter would be contested to the fullest extent. This is a certainty which F must agree.

62.The SIR directed by this Court was dated 18/8/2021. It was received by this Court and forwarded to the parties on the same day. With the benefit of reading the SIR where there was no recommendation or support for change of school, F must have been further advised on the chances of his application for change of school but yet he chose to continue with the Schooling Summons despite the unconvincing evidence over his application.

63.GA’s Primary One Term 2 Progress Check Report[25] dated 24/4/2021 and the Final Term Report[26] dated 14/7/2021 was compared. Apart from English, Chinese and Maths, GA achieved “Very Good” and “Excellent” grades in other non-academic subjects. This was agreed by F in his affirmation evidence.

64.That said, the Term 2 Progress Check Report showed “Fair” grade in English, Chinese and Maths. The Final Term Report showed “Average” grade for English and Maths and the same “Fair” grade for Chinese. The grade for the subject I.C.T. was elevated from “Very Good” in Term 2 to “Excellent” in the Final Term.

65.Apparently, there was improvement in GA’s studies from Term 2 to the Final Term with no other adverse remarks or recommendation of GA have to repeat Primary One in the next academic year 2021-2022.

66.For GS’s Year One Progress Report[27] (June 2021), the grades are classified as “B for Beginning”; “C for Consolidating”; “ME for Meeting Expectations”; “EE for Exceeding Expectations”. With the exception of Maths, GS achieved either C grade or ME grade in other subjects. For Maths where there are 10 skills involved, GS could still achieve C grade for 6 of them and the remaining 4 skills she achieved B grade.

67.Same as her elder sister GA, there was no adverse remarks or recommendation that GS have to repeat Year One in the next academic year 2021-2022.

68.F’s intended arrangement of GA and GS studying together in Primary One at LSY in the next academic year 2021-2022, in my view, was clearly unreasonable and reprehensible given the children’s respective academic results at SJCPS and ESFCBS are not unsatisfactory.

69.Since F was unable to show that the children would be doing even much better if they were to study in LSY than what they have respectively achieved in SJCPS and ESFCBS, or any cogent evidence objectively speaking that LSY was more suitable to the children, coupled with the SIR not supporting any change of school for both children with the wishes of the children clearly expressed and considered by the social welfare officer, I am inclined to say that F was only pursuing a hopeless case. Having had the benefit of legal advice, F decided to take chance and continued with a hopeless case had, in my view, apparently “crossed the line” and went beyond the band of reasonableness in respect of which he should bear the consequences.

70.On this question of reprehensible and unreasonableness application, I find against F.

(c)  Was F unreasonable in his litigation conduct ?

71.Given that F could not show any material change of circumstances since the consensual global settlement was reached in February 2021, foreshadowed by the consensus of the parties in November 2020 that both children to attend ESF in the fullness of time, I agree with M’s submission that actually F was trying to renege from his promise by attempting to unilaterally change the children’s schools to LSY without the knowledge or consent of M.

72.Knowing that M did not agree to changing the children to study LSY as early as April 2021, F unilaterally enrolled both children with LSY around May or June 2021. F paid the reservation fees for SJCPS thus keeping M in the darkness until the matter was revealed in his lawyer IH’s letter dated 17/6/2021. This letter was sent to M direct as she was acting in person at that time.[28] It is worth to note that M is the joint custodian whose legal right to be consulted and participated in children’s schooling had been deprived of by F’s unilateral and discreet enrolment of GA and GS with LSY.

73.F’s lawyer’s letter dated 17/6/2021 caused M concern and then she engaged lawyers FH to respond by letter within a week on 23/6/2021 to raise her objection[29]. Then there was a chain of lengthy letters exchange between respective law firms IH and FH in the following months even after the Schooling Summons was issued. This had caused M to incur substantial legal fees.

74.Despite FH’s letter dated 23/6/2021 where it was pointed out to F that their divorce proceedings had already caused significant change of emotional and social well-being of the children, F continued to pursue his change of school wishes by filing the Schooling Summons less than a month later in July 2021 was made without regard to the interests of the children.

75.M also said F had only been paying lip service to engage in mediation for the fact that F had imposed tight deadline for her to accept his choice of mediator Miss Elsie Liu despite the non-availability of M’s lawyers. F then threatened to start court proceedings if M did not respond by the tight deadline he proposed. I have read the relevant exchange of letters[30] on such topic.

76.Given the reality was that the Schooling Summons would be fully contested by M, thus it could not be disposed of by this Court at any time prior to the commencement of the academic year 2021-2022 in September 2021 (that is, around 6 weeks after the Schooling Summons was issued), there was no immediate need or urgency for the mediation to take place at any time earlier than the call-over hearing on 1/9/2021. That said, had F been serious and sincere to try and resolve the dispute on schooling by way of mediation instead of by litigation, I failed to see why there was no room for F to accommodate M’s lawyers’ availability for the mediation whilst; in the meantime, adjourn the Schooling Summons to avoid elevating the existing acrimony and to save costs.

77.Hence, I agree with M’s submission that F was paying lip service to mediation. F was being unreasonable in his attitude to the litigation.

Disparity in Wealth

78.In a letter from M’s present lawyers Messrs. Chain, Chow & Barbara Hung (“CCBH”) dated 25/3/2022[31] sent to F’s lawyers IH where it was said :-

“On a separate note, as you are aware, our client’s financial position is not strong. Her financial status simply does not allow her to repeatedly reply letters to your client on inconsequential and daily matters of the Girls through her lawyers on consistent basis. She hopes that both parties can preserve their resources and do not waste further legal cost on dealing with trivial matters which should have been directly dealt with by the parents themselves.

With such sentiment in mind, which we hope will be reciprocated, we have the instruction from our client that she will, in the future, communicate with your client directly, and without using her lawyers, to discuss and deal with daily matters involving the Girls.”

79.In the Bundle for this costs application, the next letter which followed CCBH’s letter was from IH also dated 25/3/2022[32] where there was no refutation, disagreement or comment of F on M’s financial position not being strong. To be fair to IH, it appeared from the contents of that letter that it was not a reply to CCBH’s letter of the same date. In any event, there was no other letter produced before me as to F’s views on M’s financial position. This was probably sensible and correct as M was a full time housewife.

80.Although M has received a lump sum of HK$3.5 million for her ancillary reliefs, it was her case that about 1/10 of it, say HK$350,000, had already been spent on her legal fees. It remains to be seen in the days to come whether further legal fees would have to be spent for defending whatever litigation process which F might take, whether they are substantive or just satellite applications. It is M’s case that F’s Schooling Summons was unwarranted and that it was F’s attempt to were down her financial resources. Upon consideration of all the circumstances, I accept that M’s views are more probably than not to be the truth.

81.All in all, I believe F’s financial support, if not his own resources, was much higher than M. Disparity in wealth does occur in this case where a costs order against F would be justified (see Keller v Keller and Legal Aid Board [1995] 1 FLR 259)[33].

Concluding Views

82.As I said earlier in this Decision, parties had engaged in costly litigation over the costs issue of the Schooling Summons which should have been resolved despite having legal assistance on both sides. This is unfortunate. I may perhaps borrow the words of Stone J in the case of Wong Shui Kee Roger v Victor LL Chu [2003] 1 HKC 125 at 138 which I find could fit in the present case :-

“It strikes me that a healthy dose of perspective and common sense has been sorely lacking in this litigation, which in my view represents, at the least, a remarkable waste of costs.”

83.I have not simply considered the points which I have set out in this Decision. I have reminded myself the need to consider all the circumstances of the case before exercising my discretion on costs. This is particularly important given the fact that in all children matters, it is not unusual or uncommon to make “no order as to costs”. A parent who genuinely believes that he or she was pursuing or defending the best interests of their children should not be penalised for or deterred from so doing. However, it remains a matter of degree and discretion as to how to draw the line as to the parent’s conduct. As decided, it was a fine line (see LACHY v YC, supra)[34] to be drawn on a case by case basis.

84.Given careful consideration on the matters which I have set out in this Decision and all the circumstances leading up and subsequent to F issuing the Schooling Summons, I decided that F had “crossed the line” for pursuing his Schooling Summons but only withdraw it at the end of the day.

85.Although there is no “winner” in cases involving children and that the true “winner”, if there is one, would be the child in question whose best interests are found by the Court, I am minded to say that by way of overall impression[35] after analysing the respective case(s) of F and M in the Schooling Summons, it is only fair and reasonable that the balance should tilt in favour of M.

Decision

86.I decided that F should pay to M all the costs of and incidental to the Schooling Summons, including all costs reserved, to be taxed if not agreed.

87.Given my decision in the preceding paragraph, F should also pay to M her costs for this costs application, to be taxed if not agreed.

88.This is a costs order nisi which would become absolute if no application to vary the same is made within 14 days from the date of this Decision.

Mr Felix Li instructed by Messrs. Ip & Heathfield, Solicitors for the Petitioner (for written submission on costs)

Miss Barbara Hung of Chaine, Chow & Barbara Hung, Solicitors for the Respondent (for written submission on costs)