Case Document

100%Judiciary

HCMP005547/1999

HCMP 5547/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5547 OF 1999

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IN THE MATTER of A, a girl

and

IN THE MATTER of the Guardianship of Minors Ordinance (Cap 13)

and

IN THE MATTER of the Domestic Violence Ordinance (Cap 189)

BETWEEN
	S	Applicant
	AND
	S	Respondent

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Coram: Deputy High Court Judge Gill in Chambers

Date of Hearing: 13 June 2000

Date of Judgment: 22 June 2000

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JUDGMENT

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Introduction

1. On 13 June 2000 the parties (whom I shall call for convenience the father and the mother) appeared before me represented by Mr Erving (for the father) and Mrs Warren (for the mother) to seek an order the terms of which, incorporating undertakings by both parties, were agreed save as to costs. It is the father's case that the mother should bear his costs. It is the mother's that there should be no order, each party to bear his and her own.

2. I granted the order and heard argument on costs. This judgment deals with that issue.

3. The parties are married. I shall set out the facts in detail later. Suffice to say that the matters raised by the proceedings for my determination centred around the welfare of their only child, a daughter called A, who was born in 1987 and is now aged 12. The order I was invited to make and did make included that she be in the custody of the father with terms of access to the mother restricted and defined as I shall come to.

The Legal Principles

4. The principle of where costs should fall in family cases was argued on appeal in the case of Gojkovic v. Gojkovic (No. 2) [1991] 2 FLR 233.

5. Butler-Sloss LJ said in a now famous pronouncement at p.236:

"However, in the Family Division there still remains the necessity for some starting-point. That starting-point, in my judgment, is that costs prima facie follow the event, but may be displaced much more easily than, and in circumstances which would not apply, in other Divisions of the High Court. One important example is, as the judge pointed out, that it is unusual to order costs in children cases."

6. In London Borough of Sutton v. Davies (Costs) (No.2) [1994] 2 FLR 569, Wilson J expanded on this. At p.570 he said:

	"The liability point
	The point is based on the proposition, enunciated by Butler-Sloss LJ in Gojkovic v Gojkovic (No.2) and applied every day for many years in the Division, that 'it is unusual to order costs in children cases'. I call it a proposition in order to obviate sterile dispute as to whether it is a principle or an exception to principle. Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of 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 and another as the unsuccessful party obliged to pay them. ..... But the proposition is not 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. ....."

7. In Keller v. Keller and Legal Aid Board [1995] 1 FLR 259 Wilson J said at p.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."

8. Neal J said at p.267:

	"In the last decade, however, it has become the general practice in proceedings relating to the custody and care and control of children to make no order as to costs of the proceedings except in exceptional circumstances ...
	The court of course retains the jurisdiction and a discretion to award costs in suitable cases. It is unnecessary and undesirable to try to limit or place into rigid categories the cases which a court might regard as suitable for such an award, but examples would be likely to include cases where one of the parties had been guilty of unreasonable conduct or where there was such a disparity between the means of the parties that a special order was justified."

9. In re M (Local Authorities Costs) [1995] 1 FLR 533 it was held:

"rule 22 of the Family Proceedings Courts (Children Act 1898) Rules 1991 gave no guidance to be followed when an application for costs was made. In civil litigation, costs normally followed the event. Although it was not a proposition, in child cases it was unusual to make an order for costs where the conduct of a party had not been reprehensible or the party's stance had not been beyond the band of what was reasonable. It was a matter for the discretion of the Court in the light of those criteria as to what order for costs should be made."

10. Cazalet J referred with favour to the judgment of Wilson J in London Borough of Sutton v. Davies, part of which I have already reproduced here, and went on to say at p.541:

"It seems to me that for the reasons clearly stated by Wilson J, it would be unusual for a court to make an order for costs in a child case where the conduct of a party has not been reprehensible or the party's stance has not been beyond the band of what is reasonable. Accordingly, any court in deciding the question of costs in child cases should. in my view, approach the question against that general proposition, and it would be a matter for the discretion of the court in the light of those criteria as to what order for costs should be made. In considering these questions the court will always look in particular at whether it was reasonable for one of the parties to have brought or to have maintained the proceedings, as for example whether parents had attracted the proceedings upon themselves by unwise or inappropriate conduct."

11. In R. v. R. (Costs: Child Care) [1997] 2 FLR 95 it was held:

"Although there was a general practice not to order costs in cases concerning children, courts retained a discretion to do so and in exceptional circumstances might be justified in ordering costs. It was unnecessary and undesirable to attempt to limit or place into rigid categories the cases in which courts might order costs, but amongst those cases would be those where a party had been guilty of unreasonable conduct. The unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of the litigation. Although parents should not be deterred from putting cases concerning children before the Courts, it would not be wrong to discourage unreasonable parents from putting forward unreasonable views."

12. Hale J said at p.97, giving as one of three reasons why there is now a practice that has arisen that no order for costs in made in family cases:

"The third reason is suggested by Wilson J in the case of London Borough of Sutton v Davis (Costs) (No 2) at 570-571, when he points to the possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what is to happen to the child in the future, it is likely therefore to exacerbate rather than to calm down the existing tensions: and this will not be in the best interests of the child."

13. From these authorities one can, I believe, summarize the following factors which might determine how a court should approach a contest on costs in a case involving a child or children:

	1.	In general circumstances there should be no order for costs. Parties who have a reasonable case to put forward going to a child's welfare should not be dissuaded from doing so by threat of an adverse costs order if they do not succeed. And in a child related case there should be no perceived winner or loser, save that it is the child who is the winner.
	2.	If a party has by virtue of improper conduct attracted the proceedings which but for that may have been avoided then that might well warrant an adverse costs order.
	3.	If in the course of the proceedings one party behaves unreasonably in his or her conduct of the litigation then that might be recognised in an adverse costs order.
	4.	The financial circumstances of the parties and how an order for costs will impact on the parties is a factor for consideration.
	5.	The general rule of not ordering costs should not deter a court from exercising its discretion to do so in circumstances it finds to be exceptional not necessarily limited to a particular category of cases.

14. Against these principles I now record the brief facts.

The Facts

15. The parties and A came to Hong Kong in October 1998 from B when the father accepted a job offer here. The terms included the usual expatriate ones of a salary plus housing, travel, medical insurance and schooling. A was enrolled at C School and she began there in November 1998; she was then 11. The wife gave up a job she held in B and did not resume work having arrived in Hong Kong. After a passage of time living in a serviced apartment the family in May 1999 moved into a spacious apartment in D, which is their present address.

16. During the first half of 1999 the school felt disposed to make complaints about certain aspects of A's conduct to the parties, such as lateness of arrival and other minor infringements of the rules. Matters came to a head one day late in June when A was caught lying about why she was not in class. When confronted about that she broke down and began making allegations of what was happening to her at the hands of the mother. This amounted to periodic and persistent physical assaults which had been going on for some time; if true it amounted to serious child abuse. The father was told and came to the school. He promised to confront the problem during the forthcoming school holiday. During that time for his own reason he chose not to. save that after the start of the next term, with A re-enrolled and back in the school in September, he sought the assistance of a counsellor. She said he should get legal advice.

17. The next step was a drastic one. The father initiated these proceedings ex parte for orders of interim custody, non-molestation of both himself and A and that the mother vacate forthwith the home in D, this last on the basis that he find and pay for alternative accommodation and pay her living expenses. The application was supported by affidavits filed by the father and two staff members of the school, to one of whom, called Mr E, A had made her assault accusations.

18. On 9 September the Court (Sakhrani J) ordered in terms. The mother vacated the home and otherwise complied with the order.

19. On 17 September being the return date, by consent the proceedings were adjourned to 12 October with directions. The mother was given restricted defined access to A. Dr F, a psychiatrist who specializes in child cases, was appointed to assist the Court. Otherwise the order of 9 September was extended save as to these additions and variations.

20. On 12 October upon terms substantially agreed and incorporating undertakings by each of the parties the following orders with undertakings were made, the Applicant being the father and the Respondent the mother:

"UPON the Applicant undertaking to the Respondent and to the Court:-

	1.	To pay or cause to be paid to the Respondent for her interim maintenance and support the sum of $35,000 per month payable by initial payment of $14,960 forth with and thereafter $35,000 on the 25th day of each month.
	2.	To use his best endeavours to enable facsimile transmissions to be received at D, Hong Kong ("the matrimonial home").
	3.	Forthwith to provide the Respondent with details of, any references for and employment applications (if any) of any carer employed by the Applicant for A.
	4.	To notify the Respondent as soon as reasonably practicable in the event that A is ill such that she has consulted a doctor or has been absent from school for 2 days or more.
	5.	To use his best endeavours to procure his employers to continue to provide the Respondent with the benefit of his company's health plan and annual travel allowance.

AND UPON the Respondent undertaking to the Applicant and the Court that she will not molest, assault, threaten, disturb or harass A, either at the matrimonial home or at C School until further order.

AND UPON the Applicant and the Respondent undertaking to each other and to the Court that they will not voluntarily discuss with A any matters relating to these Court proceedings.

IT IS ORDERED that: -

	1.	Dr. F shall continue to undertake a psychiatric evaluation of the child of the family, A and in conjunction there with shall provide psychiatric therapy to A with the assistance and co-operation of the parties in such manner and for such period as he, in his discretion, shall think fit. Thereafter, he shall report to the Court on the issues of custody, care and control and access when he is able to do so, but in any event by no later than the 8th of February 2000;
	2.	Save as is hereinafter provided, the Respondent shall continue to be restrained from attending at the matrimonial home, at any time and C School, Hong Kong, while A is in attendance there until further order;
	3.	The Applicant shall have interim custody of A until further order;
	4.	The Respondent be at liberty to telephone A not more than 3 times each day at home between the hours of 6:00 p.m. and 9:00 p.m. on Monday to Friday and not more than 4 times at reasonable times on Saturday and Sunday, but in any event not later than 9:00 p.m.,
	5.	The Respondent be at liberty to communicate with A by facsimile, letter, e-mail, and/or audio tape;
	6.	The Respondent do have supervised access to A on terms to be agreed between the parties in conjunction with Dr. F's advice;
	7.	Save as herein provided, the Order of Mr. Justice Sakhrani dated 9th September 1999 be discharged;
	8.	The Respondent be at liberty to return to the matrimonial home by prior arrangement in order to collect her clothes and personal belongings;
	9.	There be liberty to apply; and
	10.	Costs be reserved.

	Dated this 12th day of October 1999.
		Risgistrar	"

21. To enable clause 1 of the order to be complied with, the parties and A came to be interviewed by Dr F together and separately on a number of occasions spanning September to February this year. He prepared a report as a result of some 43 pages and this was submitted in February. Whilst I think it not necessary to summarize its contents it is apparent that he was able to form a view of the parties and their individual character traits and the nature of their relationships with each other. He found serious problems in that between the mother and A. A maintained she was the victim of the sort of abuse she had complained of the her teachers. The mother steadfastly denied anything of the sort. Dr F declined to pass judgment on who was telling the truth. He said at paras 88 and 89:

	"88.	I feel certain that Mother does love A, probably very deeply, and A, too, also loved Mother. However, the Mother- Daughter relationship was ruined by Mother's lack of emotional sensitivity and by her obsessional approach in looking after A. A has made some very serious allegations against Mother. Mother has categorically denied all such allegations. While I do not feel I should pass judgment as to whether it was Mother or A who was telling the truth, I have to say that such allegations are seldom completely groundless. Furthermore, Mother's obsessional way of looking after A, such as brushing A's teeth for 20 to 30 minutes borders on psychological abuse.
	89.	A was very angry with Mother to the extent that she was completely reluctant to either approach Mother or let Mother approach her. Mother has not been able to empathize, understand or resolve A's anger or apprehension about her ....."

22. Dr F concluded his report with certain recommendations. I think it appropriate to repeat them and his reasons verbatim:

"92.

Based on my thorough understanding of Father, Mother and A as well as their relationships, I wish to make the following recommendations:

	(i)	Custody, and care and control: Father is to have custody and care and control of A;
	(ii)	Monthly family therapy session for Mother and A (such regime is to last for one year) : Mother and A are to meet once every month in a family therapy session conducted by Dr G. These monthly family therapy sessions are to replace the "supervised access",
	(iii)	For the following reasons. Mother and A are not to contact each other in between the family therapy sessions:

	a.	Mother until now has no insight into her deficiencies and problems (her lack of emotional sensitivity and her obsessional personality). Left on her own, the chances are that Mother will behave the way she used to behave (such as shown by the letter she wrote to Mr H). Mother has a strong tendency to indulge or over-protect A. Because of A's young age, there is a definite chance that A will yield to whatever over-protection or indulgence she may be open to More contact now is likely to slow down the normal psychological development of A;
	b.	Because Mother has categorically denied A's allegations, there is no way the tragic past can be resolved. More contact will likely bring back the painful past memories and hence cause a detrimental effect on the Mother-Daughter relationship while that relationship is being rebuilt. Under the present circumstance, time and distance are important elements to palliation in that time and distance will help the painful memories to further fade away;
	c.	Mother will likely also benefit from the time and distance. By not being so regularly in touch in A, Mother will probably be more ready to make insightful introspection on herself;
	d.	Father is still skeptical and apprehensive about Mother. He worries that if Mother has more contact with A, she may adversely affect A. Given Mother's past behaviour and her current attitude, Father's apprehension is not without ground. By ensuring that Mother and A only meet monthly and that they do not contact each other on their own in between the family therapy sessions, Father will probably feel reassured. This in turn will help Father and mother to rebuild a more trusting and positive relationship;
	e.	Risk to A: A has made very serious allegations about how Mother abused her, and yet Mother denied everything. We cannot ignore the risk to A should Mother and A be left on their own;

	(iv)	On-going counselling for Mother: Mother is to continue to receive on-going counselling by Dr G. The counselling regime is to be reviewed and decided by Dr G;
	(v)	Review of recommendations: In that personality is deeply ingrained (from both genetic factors and from childhood experience), it is unlikely that Mother will make quick improvement in her personality in twelve moths' time. I therefore recommend that within the specified period of twelve months, the recommendations in this report, should they be adopted, are to be reviewed only upon very strong reasons. The recommendations are to be reviewed at the expiry of the specified period of one year. The factors to be considered by then include not only how much Mother has changed but also very importantly how much further psychological development has A made. I will fell very honoured and privileged to be able to continue to serve Your Lordship and A;
	(vi)	Father should ensure that as far as possible Mother should be able to keep the monthly family therapy sessions with A : Father is not to relocate himself and A so that it will not be possible for Mother and A to meet once every month. I understand that Father is working in an international corporation and he may be transferred to another location. Father should promise that he is not to initiate any relocation;
	(vii)	Definitive decisions about custody care and control are to be make now and not to be postponed: I strongly recommend making such definitive decisions now. Given my understanding of Mother's personality and difficulties, I do not think she is likely to make substantial changes in her personality in any realistic short period of time to justify postponing the decisions. Rather, postponing the decision will result in uncertainties and in sending and unrealistic signal to Mother. She may continue to struggle and as such continue to want to deny her difficulties. Putting an end to the uncertainties will likely help her focus on herself. It will also take away disturbing uncertainties for A and Father;
	(viii)	The "war" should end here: The last thing we want to see is for Mother and A to confront each other. Any scenario in which Mother and A are forced to fight a battle of "who is telling the truth" will only destroy the fragile relationship that is being rebuilt; and.
	(ix)	The therapeutic implication of this report for Mother: I have written a long report and described in rather clear terms Mother's problems. I do not mean to be critical on her. Rather, I hope this report will serve her by helping and urging her to face, understand and hence improve herself. I earnestly wish she would do so for the love she has for A; and
	(x)	The parents are not to disclose, mention or discuss this report or its contents or the enclosed videotapes with A: Disclosure and discussion of this report and the videotapes with A in any form will hinder the psychological healing processes (not only for A but also for Father and Mother and the relationships)."

23. Following receipt of that report the parties through their respective solicitors pursued a settlement. This was initiated by Mr Erving. Mrs Warren told me that for some time her client agonized over the report and its consequences. On the one hand she took serious issue with Dr F's conclusions and what was best for the parties. On the other she did not want to put the parties and in particular A through the mill of another round of interviews and so on before another psychiatrist. And of course there was the important incidence of materially adding to an already expensive action. In the end she agreed to accede to an order that incorporated certain undertakings and Dr F's recommendations, whilst seeing the need to prepare and have before me an affidavit setting out how and why she did not agree with much of what Dr F had to say. The admissibility of this affidavit was challenged by Mr Erving on the grounds its contents were irrelevant. In the end and to save the costs of arguing that point the mother instructed Mrs Warren to withdraw the same and she was given leave to do that.

24. The terms of the order agreed went to custody and access as per Dr F' s recommendations. Incorporated was an undertaking by the father that he would continue to pay interim maintenance of $35,000.00 per month until the making of a maintenance pending suit order due to be heard in the Divorce Jurisdiction of the Family Court. These are separate proceedings begun last year when the father petitioned in divorce. The mother has filed an answer. The matter is pending. The maintenance pending suit application is due to be dealt with on 23 June.

The Parites' Present Circumstances as Disclosed

25. When the mother left D she lived for a time in a serviced apartment. Now she lives in rented accommodation. At some point in time (I was not I believe told the date) she began working, teaching English as a second language earning $14,000.00 per month. This together with the maintenance she receives gives her a surplus after living expenses, but she has needed that to pay her legal costs as I shall come to.

26. The father continues to live at D with A. I am told his income is $110,000.00 per month excluding allowances for rent, schooling and so on. Out of this he meets his and A's living expenses and the interim maintenance he pays the mother.

27. The assets of the parties in broad terms comprise various houses in B. There are three that are owned jointly. They are mortgaged. I believe I was told they are rented which income presumably pays for or goes towards the outgoings. The mother has one more house in her own name which she inherited from her parents. It is mortgage free. It too is rented, but the rent is preserved in B to meet running costs and for actual and anticipated repairs and maintenance. Held in joint names there was an account in a B Bank with a significant credit balance. As I understand it has been divided more or less equally and been utilized by the parties to meet their costs or most of them in these proceedings.

28. Mr Erving tells me the Dr F's account stands at $178,800.00 But $128,400.00 of that has or will be met by the father's medical insurance, leaving a balance of $50,400.00. His solicitor client costs come to about $400,000.00 to date. Mrs Warren submitted a schedule revealing that actual and anticipated costs so far incurred by the mother come to $409,000.00, of which $340,000.00 has been paid. Her share of the B funds having been fully expended in costs. she has to rely on the small monthly surplus in her income to pay towards the balance.

29. I now turn back to the legal principles on costs in child care cases in the light of the history and present circumstances of the parties.

The outcome

30. It is the father's case and the point most strongly pressed by Mr Erving that it was the wife's misconduct towards A which attracted the proceedings. But further than that the draconian orders asked for and granted at the outset demonstrate above all the gravity of her behaviour; for why otherwise would the Court have found it necessary to order non-molestation and oust the mother from her home?

31. The judge dealing with the no-molestation and ouster applications had before him affidavits which, if true, revealed that a child was the subject of serious repetitive abuse. Given that his primary duty was to protect the child it is hardly surprising that he granted the orders asked for; certainly he cannot be criticized for exercising his discretion in that way. But with the benefit of hindsight and conclusions drawn from further enquiry I now query whether such drastic a step as was taken was really warranted. The father in his affidavit said that when first told of A's allegations made at school he was "devastated, because I had no idea what was going on." (para. 23). Yet as a member of the same household, of three, could there have been such physical abuse as Mr H said A had complained of, on a regular if not daily basis, without his being aware? Given that the relationship between father and daughter is described by Dr F as a positive one (para. 87) is it not reasonable to assume she would have turned to him, and if not, why not? And why did the father, faced with the devastating allegations of serious of serious abuse, not forthwith take remedial action? Why did he wait for more than 2 months, thus exposing A to risks of continuing abuse? The mother has persistently and constantly denied any acts of violence to the Court and to Dr F. Dr F has said he cannot pass judgment on who is telling the truth; that is after extensive interviews of all concerned and the exercise of his analytical skills.

32. Whilst the father's case is that the drastic steps he was obliged to take are self evident reasons for saying that the wife by her misconduct attracted the proceedings, it seems to me that it has not been proved her misconduct was as gross as portrayed.

33. Dr F has by his recommendations counselled that the mother's access to A be for the meantime strictly limited to the times with a child that a non-custodial parent would expect to enjoy. But this is not because A is at risk. It is because things are seriously wrong with the mother daughter relationship as Dr F has taken pains to state.

34. The mother has deficiencies and problems and no insight into these. Certainly it is likely that these are matters which have given rise to the need for Court intervention; they have attracted the proceedings. But I draw a distinction between a parent who has been selfish, deliberately obstructive, bloody minded or otherwise guilty of misconduct and one, like this one, who has according to Dr F's psychiatric findings a strong obsessional personality and lacks emotional sensitivity which he regards as symptoms of mental ill-health (see for example paras 59, 85, 86 and 92 (iii)(a)).

35. I do not find the mother has attracted these proceedings, at least not by improper conduct.

36. I come now to the mother's approach to the proceedings. Has she in the conduct of the litigation behaved unreasonably?

37. Faced with an order to leave home out of the blue and not except by telephone during a period of two hours per day contact her daughter she complied. Thereafter in inter partes proceedings she has agreed to proposed settlements incorporating undertakings. She has honoured her undertakings. She has attended at Dr F's and otherwise complied with the orders. Though at odds with his findings and in particular an unpalatable arrangement regarding access, she has nevertheless agreed to an order that incorporates his recommendations. This dispute as to costs is the only contest so far which the Court has been required to adjudicate on.

38. She has as I find by adopting a conciliatory approach demonstrated only reasonable conduct as litigant in these proceedings.

39. Will an adverse order impact on the mother? Will a no order as to costs impact on the father?

40. Both parties have expended about the same large amount each so far. The lion's share of that came from joint funds. The wife has still a bit more to pay; she will probably be able to pay this of from the small surplus she currently has from her two sources of income available to her, depending of course on the outcome of her interim maintenance application. There is no more capital. If she is required to pay the father's costs she will probably have to sell her inheritance. Whatever the outcome of the ancillary relief application that one anticipates lies ahead it seems apparent that she will continue to be dependent on the father for her living expenses.

41. The father has paid his costs out of his share of funds available. His income is comfortable and probably is sufficient to meet his family's obligations, including maintenance for the mother, and provide a surplus to replenish depleted savings.

42. I believe an a dverse order as to costs would impact on the mother's resources; a no order as to costs would not impact on the father's

43. I conclude that taking these factors jointly and separately there is nothing which persuades me that this case falls outside the general line of cases for which there should be no order as to costs, and nothing otherwise about it which warrants the exceptional course of an order of costs against the mother.

44. Accordingly the order made by consent on 13 June save as to costs shall now conclude with the clause - "There shall be no order for costs including those reserved."

45. There remains the matter of costs of this contest. The mother has been successful. Costs will be to her taxed if not agreed, but nisi at first instance for 14 days.

46. Before closing I wish to pay tribute to Mr Erving and Mrs Warren for the clarity of their respective arguments in this case.