P v. P

1986, No. 38
            (Civil)

IN THE COURT OF APPEAL

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BETWEEN

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Coram : Hon. Cons. V-P, Hon. Silke, J.A., Hon. Power J.

Date of hearing : 2nd June 1986

Date of delivery of judgment : 2nd June 1986

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JUDGMENT

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Power J.

1. This is an appeal against the Order of District Judge Caird who awarded costs of access proceedings to the applicant mother, who was unsuccessful in her application.

2. Mrs. P, who appears for the appellant husband, urges that the findings of fact made by the judge, and relied upon by him when awarding costs were not justified upon the basis of the evidence presented to him.  She submits that the ordinary rule that costs follow the event should have applied and that the discretion to be exercised in matrimonial matters is no different from that exercised other actions.  Given the conclusion to which we come, we do not find it necessary to dissect and discuss the authorities that have been argued before us in this regard.  Whatever the limits of the discretion the parties to matrimonial actions, husbands, wives and usually children, are, inescapably, not ordinary parties to ordinary litigation.  This clearly must be bore in mind as, of course, must the event.

3. It is urged by Mrs. P that all that occurred in the later history of this matter, when the child was turned very much against his mother, stemmed from her action in leaving Hong Kong in 1979, and remaining, except for brief visits, away from the colony, thus, in effect, cutting herself off wholly from her husband and child.

5. She argued before us that the husband, who it was complained had set out to estrange the child from his mother, was blameless and that his actions were, in the circumstances, laudable.  She submitted that they were dictated by his desire to protect the child and said that, after the contents of the psychiatric report made by Dr. Green in 1984 became known, it must have reinforced in his view that what he was doing was correct and in the best interests of his son.

6. Having considered the evidence carefully, we take a quite different view.  The husband, we are satisfied, had set his mind against his wife, and was clearly prepared that his son should follow suit.  A mother in the position in which this mother found herself, even though she was, to an extent, blameworthy, would in any normal case, not be disqualified from not obtaining an appropriate order granting access.  The trial Judge found that he was precluded from making any such order, although clearly he thought would have done so had the circumstances allowed it, by the attitude of the husband.

7. We are fully aware that costs should only be awarded to an unsuccessful party in an exceptional case but we are quite satisfied that this is an exceptional case.  Indeed, none of us in the course of our experience have seen its parallel.  The husband is, to a large extent, responsible for the situation which now exists and is not prepared to do anything to create a climate in which an order for access might have a chance of working.  Given what we have said, this Court finds itself unable to say that the trial Judge was wrong in making the order he did and the appeal must therefore be dismissed.

Representation:

Mrs. V.A. Penlington (M/S. Helon A. Lo & Co.) for the Petitioner.

Mr. I. Payne (M/S. Hampton, Winter & Glynn) for Respondent.