Read the full judgment text of FCJA 000973/2004 on BabelCite. This FCJA judgment was delivered on 30 April 2008 before Her Honour Judge Chu.
Custody – Joint Custody – Costs – Children – Guardianship of Minors Ordinance – Matrimonial Causes Ordinance – Mediation – Welfare of the Child – The District Court heard a joint application concerning the custody and costs of two children born to the parties in 1988 and 2000. The parties separated in 2002, and the father moved to New Zealand in 2005. The mother withdrew consent to the children's relocation to New Zealand, leading to a breakdown in communication and acrimony. The father applied for custody and care and control in 2007 but withdrew the care and control application in 2008, seeking only joint custody. The court considered whether joint custody should be granted. The court held that the welfare of the children is the first and paramount consideration under s.3 of the Guardianship of Minors Ordinance. Although social welfare reports recommended sole custody to the mother, the court found that the parties had communicated and co-operated for almost three and a half years since separation. The court determined that geographical distance was not an impediment to joint decision-making given modern telecommunications. The court granted joint custody to encourage the parties to rebuild communication and recognize the father's role. The court also considered the issue of costs. The general principle in children's cases is that there should be no order as to costs unless one party has been unreasonable. The court found that both parties failed to pursue mediation effectively and that the father's conduct lengthened the trial. The father's evidence was found to be unsatisfactory in parts, and his decision to study instead of work was considered irresponsible. However, the mother also bore some responsibility for the breakdown in communication. The court ordered the father to pay one half of the mother's costs. The orders included joint custody, with the mother's decision final in case of disagreement unless the court orders otherwise, and the father to pay half of the mother's costs. The court cited authorities including Dipper v Dipper and S and Z regarding joint custody principles. The court also referred to L v C on Costs and Gojkovic v Gojkovic regarding the discretion to award costs in family cases. The court emphasized the duty of parents to try mediation first in case of differences. The court noted that the social welfare reports are not conclusive and that the children's wishes were considered. The court found that the father's application for joint custody was successful despite the social welfare recommendations. The court also noted that the mother was willing to undertake to consult the father over major decisions. The court ordered that in case of disagreement, the mother's decision would be final unless the court orders otherwise on application by the father. This was to allay the mother's concerns over the burden of bringing matters to court. The court found that the father's conduct during the litigation, including lengthy affidavits and lack of disclosure, contributed to the length of the trial. The court also noted that the mother had incurred significant legal costs. The court exercised its discretion to order the father to pay half of the mother's costs. The court noted that the father had succeeded in his application for joint custody but had withdrawn his application for care and control only shortly before the pre-trial review. The court found that the father should contribute towards part of the mother's costs due to his conduct during the litigation.
Legal issues: Joint Custody · Costs
Outcome: Joint custody granted to 1st and 2nd Applicant; 2nd Applicant to pay 1/2 of 1st Applicant's costs.
Cited by 1 case · Cites 3 cases