Smm v. Twm

FCMC 11230 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11230 OF 2008

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 10 December 2008

Date of Ruling: 16 December 2008

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R U L I N G 

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Introduction

1.This is an application by a petitioner mother for costs in relation to a summons, which was subsequently withdrawn by the respondent father.

Background

^2.There are only limited papers before the court, but on the face of them it would seem that the parties married on the 9 May 1998 and had one child, a little boy who I will refer to as T.  T is now six years old and is studying at an international kindergarten in Hong Kong.  The parties are ex-patriate Americans.  The mother is a veterinarian and the father is a banker.

3.Unhappy differences arose between the couple and the mother issued a mild unreasonable behaviour petition on the 22 September 2008.  Notwithstanding the mildness of the particulars the father objected to them and filed an Answer on the 23 October 2008. 

4.On the 6 November the father also filed an inter partes summons which reads as follows:

“1.  The Petitioner whether by herself, her servants, agents or otherwise, be restricted from removing the child of the family, namely T a boy born on the 14^th September 2002, from the matrimonial home at … until further Order.

2.   Interim custody, care and control of the child of the family be granted to the Respondent with reasonable access to the Petitioner.

3.  Penal Notice be endorsed.

4.  Any other directions the Court deems fit.

5.  Cost of this application be provided for.”

5.From a bundle of correspondence that has been submitted to the court, it would appear that the mother’s solicitors wrote to the father’s solicitors on the 24 October informing them inter alia that

“   In the meantime, it is our client’s intention that she and your client should live separate and apart sooner rather than later.  She is currently looking for suitable accommodation for herself and T but of course this will not be necessary if your client will be prepared to vacate the matrimonial home.  Perhaps you would kindly obtain instructions from him on this matter.”

And again on the 4 November,

“   As we indicated in our last letter, our client has been looking for suitable accommodation and indeed has made provisional arrangements to move into a serviced apartment with T and the domestic helper.  We will inform you of the date she intends to move.”

On the 6 November the father’s solicitors responded as follows:

“Our client is disturbed to hear that it is your client’s intention to remove T from the matrimonial home.  You state that your client has been looking for suitable accommodation and indeed has made provisional arrangements to move into a serviced apartment with T and the domestic helper.

At no time has your client discussed her specific intentions with our client.  Nor has she discussed with our client, in anticipation of her removing him from the matrimonial home, any custody, care and control arrangements concerning T.

For the avoidance of doubt, our client does not consent to your client removing T from the matrimonial home at this time.  Your client must first discuss with our client any plans for T and should not remove T from the matrimonial home without our client’s consent or leave of the Court.

We have been instructed to issue the enclosed Summons, which we enclose herewith by way of service.

6.The inter parties summons of the same date was attached.  It is this summons, which forms the central plank of the application presently before me.

7.Matters proceeded and on the 14 November a consent summons was filed amending the grounds of divorce.

8.The divorce is now proceedings on an uncontested basis.  However in his Form 4 the father has indicated that he wishes to be heard and make an application on his own account in relation to all matters, including that of custody of and access to T.

9.It would appear that negotiations continued and some agreement was reached in relation to interim matters concerning T.  Central to this agreement, was the fact that the parties intended to return to mediation.  In addition the father was to withdraw the summons of the 6 November 2008 and undertakings were to be filed in relation to the Christmas holiday and in relation to T’s present abode.  The father said in his solicitors letter of the 21 November 2008 that

“Our client is prepared to withdraw his Summons returnable on 3^rd December 2008 upon the Parties filing mutual undertakings not to remove T from the Matrimonial home unless with the consent of the other Party or with leave of the Court.”

10.However it is clear that there was no agreement at that time regarding the long term care of T and that both parties are for the time being diametrically opposed.  The mother wishes to possibly leave Hong Kong and to further her studies in America.  She wishes T to go with her.  The father wishes to share the care of T, with both parties remaining in Hong Kong in order to co-parent him.  This is the central issue and this has yet to be resolved.

11.Undertakings were eventually filed and the father’s solicitors indicated that they would withdraw their summons.  The mother’s solicitor stated in their letter of the 27 November that given that the father was withdrawing the summons that there was an expectation that he would also pay the mother’s costs of the same. 

12.Matters then deteriorated.  The father’s solicitors filed a summons but they did not withdraw the second paragraph seeking interim custody and care and control of T.  Offence was taken by the other side. 

13.A further letter was sent by return withdrawing the summons in its entirety.  The issue of costs however was not resolved.  There has been some heated correspondence.     

The issues to be determined

Where there is a dispute over a child, as here, what is the appropriate costs order to make on an interlocutory application?

Has the conduct of either of the parties been such, that they should be penalised as to costs?

The law

14.Mr Erving took me to the general principles as set out Order 62 and in particular to order 62/2/6 and 62/3.  The law in relation to costs in family proceedings is, it seems to me, well settled.  Clearly the issue of costs lies in the discretion of the court and this discretion is to be exercised judicially.  It is also the case that costs are normally expected to follow the event.  However I accept the point made by Ms Brown that this presumption is more easily displaced in family proceedings that in others.  This is certainly even more so where there is a dispute over a child. 

15.Ms Brown took me to the Court of Appeal decision in H v H [2002] HKEC 112 where the Hon Rogers VP said as follows:

“Costs

17.    At the conclusion of the hearing, Ms Lau argued that the usual order in custody proceedings even on appeal was that there should be no order as to costs.  In the absence of a fully prepared argument on this aspect the parties were invited to send in written submissions.

18.    In the written submissions both parties have drawn our attention to a number of cases which, in effect go to the same point.  The Court generally does not order costs in custody cases.  The reasons are, in my view most cogently expressed in London Borough of Sutton v Davis (Costs) (No. 2) [1994]2 FLR 569 where Wilson J. said in relation to the to the reasons which underlay the general approach not to order costs in children cases at 570h-571C:

‘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.  The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority are a party … 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: Havering LBC v S 1986] 1 FLR 489 and Gojkovic v Gojkovic … at pp.60C-D…’

19.    His remarks have been referred to with approval in the Court of Appeal: see for example R v R (Costs: Child Case) [1997] 2 FLR 95.  It would seem that this approach has been followed in respect of appeals to the Court of Appeal.  Whilst different considerations may apply to appeals because the parties have had the benefit of ‘one day in court’ and thus costs might be unnecessarily incurred, I consider that unless it could be said that an appeal should never have been brought then the same principles would be applicable.  Indeed, the argument on behalf of the respondent is put on the basis that the ‘appeal had very little prospect of success.’  Whilst I have had no difficulty in reaching the conclusion as to the outcome of the appeal, I would in this case still apply the same principle in relation to costs, primarily for the reason that it is in the daughter’s interest that there be as little antagonism between the parties as possible.  It is to be hoped that the parties can now work together in the daughter’s interest and avoid returning to court to continue battles over custody, care and control which hopefully will have been resolved.  The order I would make would therefore be that there be no order as to costs.”

With respect I wholeheartedly agree. 

Discussion

Where there is a dispute over a child, as here, what is the appropriate costs order to make on an interlocutory application?

16.Therefore as a matter of general principle it seems to me that it is often the case that the appropriate order, where the central issue relates to a child, is that there should be no order as to costs.  This applies to interlocutory matters as well as substantive hearings (see Rayden 52.21, 18^th edition).

Given that has the conduct of either of the parties been such, that they should be penalised as to costs?

17.In essence themother’s lawyer accuses the father’s lawyer of acting in bad faith.  He says that the father’s lawyer said that they would withdraw their summons once suitable undertakings had been filed and that they then reneged on that agreement.  He accuses them of sending patronising letters. 

18.Although it seems to me regrettable that the father did not immediately withdraw his summons, I also accept that the central issue, namely the care of T, both immediately after Christmas and in the longer term, has yet to be resolved.  It might have been helpful had both sides been a little clearer about the exact terms of this interim agreement.  Having said that I appreciate entirely that emotions were probably running very high, both as between the parties and as between the solicitors and that it is very easy to say such things with hindsight.  In any event a timetable has now been set in place in relation to T, an order having been made to that effect at the First Appointment hearing.

Conclusion

19.Given the circumstances here, and a judicial consideration of the relevant legal principles involved, I will make no order as to costs, both in relation to the father’s summons of the 6 November and the hearings on the 3^rd December and 10^th December 2008.

Mr. Chris Erving of Messrs Erving Brettell for the Petitioner 

Ms. Jain Brown of Messrs Hampton Winter & Glynn for the Respondent