Nc v. Phm

FCMC 15518/2017

[2025] HKFC 201

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 15518 OF 2017

----------------------------

----------------------------

-----------------------

DECISION

(Costs of children matters)

-----------------------

Introduction

1.By the order made by Judge G Own on 7 May 2018, the sole custody, care and control of the 3 children of the family was granted by consent to the petitioner (“Mother”). It was recorded in the order that the Mother undertakes to consult with the respondent (“Father”) on all important decisions regarding the 3 children, particularly in respect of any proposal regarding the change of the habitual residence of the children (“Undertaking”).

2.By the summons issued by the Father on 27 December 2023 (“Father’s Summons”), he sought to vary the Mother’s sole custody, care and control to shared custody, care and control briefly on the ground that the Mother was in breach of the Undertaking.

3.As ordered by the court, the Social Welfare Officer prepared the Social Investigation Report dated 28 August 2024, in which joint custody of the children to the parties was recommended.

4.Pursuant to the order made by me on 26 February 2025, it was directed by consent that the parties shall agree on the identity of mediator within 7 days and attend at least 5 hours mediation which be completed by 30 April 2025 (“Mediation Order”). The trial of the Father’s Summons was also fixed for 4 days on 12, 22 26 and 28 May 2025.

5.By the consent summons filed 15 May 2025, the parties reached an agreement that, inter alia, the Mother continues to have sole custody of the 3 children and that the Father’s Summons be withdrawn. However, the parties could not agree on the question of costs and asked me to determine this question on paper with the directions for lodging their respective submissions and replies.

6.The consent summons was ordered in terms by me on 19 May 2025 (“Consent Order”).

Applicable legal principles

7.Mr Yim and Ms Ha for the Father rightly submitted that there should be no order as to costs in applications involving children matters, save that where there exists exceptional circumstances, such as the reprehensible or unreasonable litigation conduct of a party, it is open to the Court to make a proportionate adverse costs order to reflect the same: see KK,H v PK,H (formerly known as PS,V) [2023] HKCA 176 at para. 26 (as per Barma JA).

8.On the other hand, Ms Chow for the Mother also rightly relied on the principles as to costs order in the children proceedings as set out in the Court of Appeal case TPL v WYY (Costs: Children) [2015] HKFL 75 in para. 14-15 (as per Yuen JA), which are succinctly summarised as follows:

i.  One starts with the “proposition” or “general practice” (though not a “principle”) that in applications to do with children, the usual order should be no order as to costs;

ii.  The only “winner” is the children, and neither parent should be regarded as the “winner”/“loser”;

iii.  In the court’s search for the best option available, it does not wish 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 the child by casting one as the successful party entitled to his costs;

iv.  This general practice is not a rigid rule. This approach to costs should not be abused and the practice should not provide the opportunity for one parent to wear the other down financially by means of multiple interlocutory skirmishes;

v.  This approach to costs does not apply in exceptional circumstances, such as where the conduct of one party has been reprehensible, or the party’s stance has been beyond the band of what is reasonable;

vi.  The court should not be too quick to label a parent’s conduct as “unreasonable”;

vii.  Merely because a judge, dealing with a case dispassionately and objectively, considers one parent’s proposals hopeless does not justify a costs order against him/her;

viii.  Even if a court finds a parent’s conduct reprehensible, or his/her conduct in the litigation unreasonable, and the court orders that one party should pay the other’s costs, the costs so ordered should be no more than is necessary to reflect the exceptional circumstances.

Father’s stance

9.Mr Yim and Ms Ha for the Father submitted that the present case falls within the exception to the general practice as the Mother’s conduct both before and during these proceedings is reprehensible and some of her behavior has gone beyond the band of reasonableness.

10.In his submission, the Father invites this court to make an order that the Mother do pay his costs, including the costs of the trial, to be taxed if not agreed, with certificates for counsel. In his reply, the Father submitted that if the court considers some merits in the Mother’s submissions, I may consider making a costs order against the Mother on a partial basis.

Mother’s stance

11.Ms Chow for the Mother submitted that this is not a case where a party had unreasonably refused to mediate, which may attract adverse consequences. The mediation did take place which eventually led to a successful settlement.

12.As there are no exceptional circumstances justifying costs against the Mother, she invites this court to make the standard “no order as to costs”.

Discussion

Mother’s surreptitious conduct resulting in Father’s Summons

13.The Father accused the Mother of breach of her duty and the Undertaking to consult the Father in relation to schooling and relocation issues of the children. The Father had serious concern that she would continue to make unilateral decisions for the children on important matters without consulting him.

14.The Mother denied any breach of her duty or the Undertaking to consult the Father on schooling and relocation. Ms Chow for the Mother submitted, which I accept, that the court could and would not conduct a post mortem on contested affirmation evidence for the purpose of deciding costs of a settled trial. In this decision, I shall not make any finding of facts against the Mother as to the alleged breach without allowing her to elaborate or explain at the trial.

15.More importantly, the dispute concerning the children’s relocation to the USA for schooling was indeed resolved by a consent order made by me on 2 October 2024 with no order as to costs. In other words, the Father had eventually agreed that in the best interest of the children, they shall be relocated to the USA for schooling. Therefore, it would be very difficult for me to criticise the Mother’s decision on schooling and relocation though I consider that she could do much better to consult the Father on this issue actively. In any event, I disagree her conduct in this regard can be said as a kind of exceptional circumstance or unreasonable litigation conduct to justify this court to penalise her for costs.

Whether the terms settled by the parties reflecting that the Mother is the “substantive winner”

16.The Father has failed to seek joint custody or shared custody, care and control whilst the Mother shall continue to have sole custody of the children according to the Consent Order although she has to jointly agree with the Father on issues as to schooling, relocation and major medical decisions in the recitals as stated therein. I would not say that the Mother is the “substantive winner” of the Father’s Summons even though the Father’s Summons was withdrawn. Instead, I must say the winner shall always be the children of the family as the parties could eventually agree an arrangement which is best for the children. Anyway, the Mother is only asking for “no order as to costs” but not seeking costs of the Father’s Summons against him.

17.In my view, the fact that the social welfare officer recommended joint custody rather than shared custody to the court shall not support the Father’s application for costs against the Mother.

18.In any event, the Father signed the consent summons filed 15 May 2025, in which he did not insist on either joint custody or shared custody. I do not think that either of the parties’ proposal is hopeless, which justifies the court to penalise any of them on costs.

Mother’s delay in attempting mediation/settlement negotiation

19.Before making the Mediation Order by consent, the Father said that he was all along eager to settle the dispute amicably whilst the Mother seemed showing not much interested to mediate. In my view, as the parties were finally persuaded by me at the hearing on 26 February 2025 to mediate and consented to the making of the Mediation Order, I consider that history of the parties’ negotiations for agreeing mediation and their attitudes and conducts before that hearing are no longer relevant. It is unnecessary and too late for the Father to raise the dispute concerning the appointment of mediator before the making of the Mediation Order. If the Father intends to trigger mediation earlier, he shall strictly follow Practice Direction 15.10, according to which the court may impose adverse costs order against the party who unreasonably refuses to mediate.

20.The Father also accused the Mother that after the agreement of appointing Ms Clara Yip as mediator and fixing the date of mediation on 23 April 2025, the Mother unreasonably back-tracked from 23 April 2025 to 28 April 2025. The Mother had not only delayed in agreeing to attend mediation until the very last moment ie 28 April 2025 and her settlement proposal only came on 29 April 2025, ie 3 weeks before the trial on 21 May 2025 and 1 week before the deadline of lodging the opening submissions on 7 May 2025. By that time, the Father had reasonably delivered the brief to his counsel for the forthcoming trial and thus had to incur the fees of $761,500.

21.Comparing the parties’ attitudes in attempting mediation, I tend to agree that the Father was more eager to do so than the Mother. Nevertheless, I do not agree that her attitude can be said to be entirely uncooperative. Besides, I should not be too quick to label her conduct as “unreasonable”. At least, on 25 February 2025, the Mother’s solicitors had emailed to Ms Elaine Liu to inquire about her availability for mediation in March and April 2025. Unfortunately, Ms Liu was not available. On 4 March 2025, the Mother’s solicitors counter-prosed Ms Clara Yip as mediator and accepted by the Father on 5 March 2025.

22.The change of 23 April 2025 to 28 April 2025 is only about 5 days difference which is not very substantial. The Mother gave her proposal on 29 April 2025 ie 1 day after mediation could not be said unreasonable. The parties could always jointly write to the court for extension of time to lodge the opening submissions due to possible settlement. In any event, the Father’s solicitor not necessarily counsel shall be competent and capable to prepare the opening.

23.On one hand, I do appreciate that the Father was sensible enough to accept the terms of settlement as set out in the Consent Summons in order to avoid a full-blown battle. On the other hand, I do not find that the Mother’s attitude in this litigation is reprehensible so as to justify the court to order costs against her.

Conclusion

24.I have not dealt with some minor points raised by the Father which I consider very trivial and cannot be said to be exceptional circumstances. Indeed, I would say that even if the mediation fails and the trial had to be proceeded, no matter what the outcome is, ie joint, sole or shared custody and, I am very like to make no order as to costs.

25.Upon carefully considering all the relevant facts and the parties’ submissions, I find no exceptional circumstances to depart from following the general practice in children matters. In the best interests of the children, no order as to costs of the Father’s Summons including all costs reserved, if any, shall be made. I now make such an order.

26.In respect of the costs incurred for argument of costs of the Father’s Summons, I find that the Mother is the winner and that no reason why costs shall not follow events. I therefore order the Father to pay her costs. The Mother had lodged a statement of costs asking for $91,444, which I consider excessive. I summarily assess such costs for $46,000 to be paid by the Father to the Mother forthwith.

Petitioner: Ms Theresa Chow instructed by Withers

Respondent: Mr Eugene Yim and Ms Terri Ha instructed by Howse Williams