H v. W

FCMC 8332 / 2017

[2024] HKFC 122

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8332 OF 2017

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RULING
(Leave to appeal on a varied costs order)

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1.On 4 January 2024 I handed down a Ruling varying the costs order nisi (“Cost Ruling”) made in the Judgment dated 28 July 2023 regarding the fact finding hearing which took place in May 2023.  The nisi order for costs was that there be “no order” as to costs i.e. that each party would bear their own costs of the proceedings.  The stated reason for this was that neither party had indicated that they wished to seek their costs, and it was a children’s matter. 

2.The Father then applied to vary the costs order nisi with an order for costs in his favour, further seeking that his costs be taxed on an indemnity basis.  I granted the Father’s application to the extent that the order nisi was to be varied, in that the Mother was to pay the Father’s costs of and occasioned by the child related litigation and the Rent-A-Mum service.  However, I refused to permit the Father’s costs to be taxed on an indemnity basis and ordered that the Father’s costs were to be taxed on a party and party basis if not agreed.  The Cost Ruling also stipulated that the Father’s costs were only payable after the Mother received her ancillary relief award.

3.On 29 January 2024, the Mother filed Submissions for Leave to Appeal against the Cost Ruling.  At the time, the Mother failed to file an Inter-partes Summons for Leave to Appeal or the Notic of Appeal.  The Court wrote to the parties on 15 April 2024 directing that unless the Mother filed her Summons for Leave to Appeal within 7 days, her application would be dismissed.  It was only then that the Mother filed her Inter-partes Summons and Notice for Appeal together with Skeleton Submissions on 22 April 2024.

Delay in filing Summons and Notice of Appeal by Mother

4.Order 58 r 2(4)(b) Rules of the District Court, Cap. 336H stipulates that all applications for leave to appeal from a judgment, order or decision which is not interlocutory, must be made within 28 days after the making of the court order.

5.The Cost Ruling of 4 January 2024 was a final order.  This meant that the Mother had 28 days to an application for Leave to Appeal against the Cost Ruling, that is, the Mother had to file her leave application on or before 1 February 2024.  By omitting the Summons and Notice to Appeal at the same time she filed her Submissions for leave on 29 January 2024 the Mother failed to comply with the correct procedure and time frame for making her leave application.

6.Back in August 2018, New Arrangements for Application for Leave to Appeal in the Family Court (“New Arrangements”) was implemented to improve the case management practice for proceedings in the family court.  Both the Mother and the Father are aware of the procedure for leave to appeal applications because they have both previously filed leave application against various judgments / decisions made in these proceedings in accordance with the New Arrangements.

7.Therefore, the Mother has no excuse for failure to adhere to the correct procedure to file her leave application, as set out in paragraph 2 of the New Arrangements.

8.Furthermore, the Mother would have known per paragraph 4 of the New Arrangements that she was required file her Summons, draft grounds of appeal and where appropriate, an affidavit explaining the reasons for the delaying support of an extension of time.

9.Paragraph 6 of the New Arrangements reminds applicants for leave that he or she may run the risk of having their application struck out and dismissed on the grounds of failure to prosecute the application with due diligence.  The Mother did not file an affirmation to explain the reasons for her delay of almost three months in filing her leave application properly or why she did not comply with the New Arrangement when she filed her written submissions back on 29 January 2024. 

10.I would dismiss the Mother’s application on the grounds of her unexplained delay and non-compliance with the proper procedure in making her Leave to Appeal application. Nevertheless, given the background of this case and for the sake of completeness, I will deal with the merits of the leave application below.

Legal Principles

11.Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless:

(1)  the intended appeal has a reasonable prospect of success; or

(2)  there is some other reason in the interests of justice that the appeal should be heard.

12.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

13.On the exercise of judicial discretion on costs, I refer to the judgment of Lam JA in Poon Ching Man v Lam Hoi Pun [2016] 3 HKLRD 815, where His Lordship reiterates at §34 that a decision on costs given by the trial judge is highly discretionary and which the Court of Appeal would be very circumspect in intervening:

“34. This court has stressed repeatedly that costs is very much a matter of discretion for the trial judge and the Court of Appeal would be very circumspect in intervening with such a decision with high discretionary content: see Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419; IO of King Yip Factory Building v Kwun Wah Flower and Plant Manufactory Ltd CACV 128 of 2003, 13 Nov 2003; Hung Fung Enterprises Holdings Ltd v Agricultural Bank of China [2012] 3 HKLRD 679; Bonnie Blair Ltd v Witmore Ltd HCMP 1546 of 2015, 7 Aug 2015; Chan Shun Kei v Hong Kong Construction (HK) Ltd CACV 192 of 2014, 7 March 2016. In the last case, the court said at §22:

‘22. It must be stated at the outset that this court should acknowledge that costs is very much a matter of discretion of the judge and we should be circumspect in interfering with the same.  The established approach is that this court will only interfere when it is satisfied that the decision of the judge is either wrong in principle or plainly wrong, see Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419.  The rationale for this approach was explained by Woo JA (as he then was) in Ho Shu Kwong.  The trial judge is the best person to exercise the discretion on costs because he is most familiar with the conduct of the case at the trial and the impact of the success and failure on each issue canvassed before him.  In a way it is like an appeal against findings of fact.  As explained in numerous judgments (see e.g. China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27 November 2015), an appellate court is institutionally disadvantaged from re-assessing a decision of this nature as if it is hearing the matter in the first instance. Thus, this court should examine whether a primary judge committed any palpable error in the exercise of the discretion on costs.  In the absence of such an error, the mere fact that the appellate judges might have exercised the discretion in a different manner is not a sufficient ground to warrant interference with the decision of the primary judge.”

14.I had borne these guidelines and principles in mind in the Cost Ruling as I do now in considering the Mother’s leave application.  The goal for the Court was to consider what costs order would be fair and just in light of the circumstances. 

Grounds of Appeal

15.The Mother has not set out specific grounds of appeal, and it appears that the Mother’s main contention is that there was a lack of sufficient justification in the Cost Ruling to impose a cost order (“Ground 1”).  In addition, the Mother contents that she was merely “diligently followed the court’s directives and procedures” relating to the fact finding hearing, and the Court did not provide her with guidance that the issues / incidents she raised did not warrant a fact finding hearing (“Ground 2”).  Finally, the Mother disputes that there should be no order for the Rent-A-Mum Service which was the how supervised access took place for a period of time (“Ground 3”).

Ground 1

16.This ground is not reasonably arguable. The reasons for varying the cost order nisi were set out very clearly in the Cost Ruling, where I referred to the Judgment setting out the instances where the Mother did cross the line of what was acceptable litigation conduct in child related proceedings.

17.For the sake of completeness, I set out again my findings in relation to the Mother’s litigation conduct that warranted a costs order to be made:

“13. In the Ruling, I made a number of findings which go to the Mother’s behaviour and conduct of the litigation. For example,

“[15] ….I found the father to be a credible witness.  It is clear that he is trying his best to maintain a healthy father-daughter relationship despite the difficulty he has faced to have access.  I accept that the Daughter genuinely loves and enjoys the time she has with the father and his extended family and I would encourage the mother to support this relationship fully.  On the other hand, I found the mother had a tendency to exaggerate and to place an irrational overreliance that the Daughter should be completely believed and that the Daughter is not capable of being untruthful.”

14.   The Mother has a duty to not simply accept whatever the Daughter said but to make a proper assessment.  In terms of the closet incident, the Mother did not enquire with the Father to find out more information after the first time she heard of it and yet the Mother reached the conclusion that the Daughter was scared and traumatised.  As to the gravity of this incident, I made the finding that:

“[30] I note that this incident is not of a serious nature which warranted being an issue for a fact finding hearing and it is my observation that the mother’s conduct regarding the closet incident to be unreasonable for four reasons:

(1) The mother’s suggestion that the Daughter was placed in the walk-in wardrobe on more than one occasion is made without any supporting evidence. In the Daughter’s interview with the CP she claimed to have only been placed in the walk-in wardrobe on only one occasion.

(2) The mother continued to exaggerate the Daughter’s initial claims about being locked in a closet even after been presented with photographs of the walk-in wardrobe exhibited in the father’s affirmation, and after Ms. Chen had investigated the father’s home in person.

(3) There is no evidence in support that the closet incident happened recently or frequently. In fact, the Daughter told Ms Chen and the police that the closet incident happened two years ago and only once.

(4) The mother has not provided any evidence that the Daughter was placed in any danger by being placed in a walk-in wardrobe or that she was being abused.” (emphasis added)

15.  The hair removal incident should have similarly not been pursued at a fact finding hearing, especially since the Father did not deny that the Daughter’s hair was removed (likely by the helper) when she was in his care during Christmas access in 2021 and he gave an undertaking at the earliest opportunity on 19 January 2022 that the pumice stone or “magic cream” would not be used on the Daughter.  The findings on the Mother’s litigation conduct regarding this issue in the Ruling were:

“[33] When the mother was cross-examined on why she did not bring to the father’s attention her concerns about the Daughter’s skin or the hair removal before speaking with the Social Welfare Officer or the paediatrician, the mother’s answer was that she wanted to ensure that she was following the correct procedure. I do not accept that this is a reasonable reaction nor does it explain the delay of three days before the mother brought the Daughter to see the doctor if the Daughter was in fact, suffering from pain as the mother claimed.

[34] I do not accept that a reasonable person would have called the Social Welfare Officer before seeking medical attention for a child in pain, particularly when the child is known to have sensitive skin. I find that the mother has exaggerated the pain suffered by the Daughter arising from the hair removal….

…

[38] As for the “magic cream” neither the mother nor the father knew what the Daughter was referring to. However, the mother persisted in her claim that “magic cream” was used solely on the Daughter’s say so. No evidence was provided by the mother as to possible creams which the Daughter could have been referring to. I, therefore, reject that any “magic cream” or any cream was used to remove the Daughter’s hair on her arms.”

16.  As for the third and most serious of the three allegations, I had set out at paragraph 42(1) – 42(8) of the Ruling the reasons why the Mother did not meet the evidentiary threshold. The Mother’s lack of insight and perspective was noted at paragraph 48 of the Ruling:

“[48] Although I accept that some of these concerns are genuinely held by the mother, she continues to believe them as 100% true, notwithstanding the fact that there is little, if any corroborating evidence to support what the Daughter has said in regard to the most serious allegation.  This seems to me a remarkable lack of insight or perspective.  In my experience, children do not always tell the truth or they make up stories for a variety of reasons.”

17.   The Court is of the view that the Mother did cross the line of what is and what was not acceptable litigation conduct in child related proceedings.  Considering that the Mother expressing at the fact finding her continuing intention to relocate to Singapore with the Daughter once the Decree Absolute was granted and that she had unilaterally suspended the Father’s in-person access with the Daughter from 6 January 2022 until it was resumed on a supervised basis gradually per the Order dated 7 July 2022^[1], I concluded in the Ruling that

“[43] … Consequently, it is not difficult to see why the father claims that the mother brought the indecent assault allegation only after she could not obtain an injunction against him.”

18.I made clear findings on the times when the Mother’s litigation conduct was beyond the band of what was reasonable.  The Mother has no reasonable prospect of succeeding on this ground.

Ground 2

19.The Mother seeks to contend that since she did not make the application for a fact finding hearing, and thus, she is not to be blamed for the for the fact finding hearing taking place.  This ground is also not reasonably arguable.

20.It is disingenuous for the Mother to assert that she was merely following the Court’s directives and to take no responsibility for raising these issues and incidents at the fact finding hearing.  The Mother was emphatic at the fact finding hearing that all three incidents amounted to abuse.  Given the Mother’s stance, it would have been impossible for there to be a trial on care and control without the fact finding hearing taking place prior.  

21.The Mother’s argues that the Court did not provide any guidance on whether she should pursue her list of issues at the fact finding hearing, at the hearing on 27 September 2022.  With respect, the Court is not responsible for providing legal advice to parties, even those acting in person.  Both the Father and the Mother have had the benefit of legal representation from time to time throughout these highly acrimonious proceedings, and continue to have the financial resources to obtain legal representation.  It is encumbered upon the parties to obtain independent legal advice if they are unclear or have questions relating to the proceedings.

22.I do not accept that the Mother was merely following the Court’s directives and she would have acted differently if she had been provided guidance.  The fact finding hearing arose because of her actions.  

23.An example is the manner in which the Mother handled the Hair Removal Incident.  The Mother filed an injunction to prevent the Father and his family having access with the daughter on 13 January 2022 on the basis of the Hair Removal Incident.  The Father immediately provided his undertaking in Court at the return date of the Mother’s injunction on 19 January 2022 regarding the Hair Removal Incident.  As such, no injunction was granted against the Father and his family.  The next day, on 20 January 2022 the Mother filed her complaint with the Child Protection Services alleging that the Father had indecently assaulted the daughter.  The Mother refused to provide the Father in person access with the daughter until the Order of 7 July 2022, which granted the Father access on a supervised basis. 

24.Despite the Father providing his undertaking regarding the Hair Removal Incident by agreeing to not remove the Daughter’s hair and accepting that that the Daughter’s hair was removed (likely by the helper) the Mother nevertheless thought it fit and appropriate to litigate this incident at the fact finding hearing.

25.Even in the Mother’s submissions for this leave application, the Mother once again recites her case regarding the child’s allegations despite the determination that was made in the Fact Finding Judgment.  Given the Mother’s strong views on the incidents, I take the view that on balance it would have made no difference if the Court had provided any guidance to the Mother in pursuing the fact finding hearing.

Ground 3

26.This Ground lacks merit and has no reasonable prospect of success.

27.The Mother suspended the Father’s access from 6 January 2022 to 7 July 2022.  It is because of the allegations put forward by the Mother that the Father’s access was suspended.  Now that the Fact Finding Judgment has determined that the Mother’s allegations have not been made out, it consequently follows that there the Mother should be responsible for the Father’s reasonable costs incurred for access to be supervised.

28.It is not correct as the Mother asserts that the Father insisted on appointing Rent-A-Mum in lieu of supervised access in the Social Welfare Department and he should bear the higher costs solely.  There were occasions when the Father’s access was supervised at centres provided by the Social Welfare Department and the Hong Kong Family Welfare Society (“the Centres”).  It was only if access took place outside the Centres, that the supervision services of Rent-A-Mum was required.  I accept the Father’s submission that supervised access in a room at the Centres would not be ideal, and it is perfectly reasonable for the Father to arrange more pleasant access time with the daughter outside the Centres. 

29.On 29 September 2022, access was further revised so that the father could have Thursday dinner access supervised by his sister or brother-in-law, Tuesday access at the Centres and for 2 hours on Saturday with Rent-A-Mum, which was further revised by the Order of 5 December 2022 permitted a change of locations where access could take place and the people who could supervise access was expanded. 

30.The Mother did not easily agree to the persons who could supervise access outside the Centres, and as such, I find it reasonable that the Mother has to bear the financial consequences of the supervised access charges by Rent-A-Mum.  

Conclusion

31.I find that all the grounds of the Mother’s leave to appeal lack merit and have no reasonable ground of success.  I, therefore, dismiss her application accordingly.

Costs

32.The cost of this application shall follow the event in the normal way. The Mother shall pay the Father the costs of and arising out of her Leave to Appeal application.

The Petitioner (father) acting in person

The Respondent (mother) acting in person