Tls Nee J v. Rcs
Read the full judgment text of FCMC 1637/2012 on BabelCite. This Family Court judgment was delivered on 16 January 2014 before Deputy District Judge G. Own.
Matrimonial Causes – Access – Variation of Consent Order – Undertakings – Drug Testing – Best Interests of Children – Guardianship of Minors Ordinance, Cap.13 s.3(1) – Release of undertakings – Single Joint Expert. Husband applied to vary Access Order to remove undertakings regarding drug testing and safety measures. Court held undertakings not lightly given; release requires mistake, change of circumstances, etc. Best interests of children paramount. Younger twins have ADHD. Decision: Recital A (safety) remains. Recital C (drug testing) released subject to new specific testing regime. Recital D (partner testing) mutually released. Unsupervised access granted. Dr. Wayne Moran appointed as single joint expert. No costs order.
Legal issues: Release of undertakings regarding drug testing and safety measures · Appointment of single joint expert for drug testing · Variation of access terms to unsupervised access
Outcome: Application partially granted; undertakings varied; access granted subject to drug testing.
Cites 2 cases
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FCMC 1637 / 2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 1637 OF 2012 ----------------------------
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____________________________ REASONS FOR DECISION ____________________________ Introduction 1.This is the Respondent Husband’s (“Husband”) application by way of Summons dated 11 October 2013 (hereinafter referred as “Access Summons”) seeking variation of a Consent Order dated 27 August 2012 (hereinafter referred as “Access Order”). The terms of the Summons are as follows :-
2.A Social Investigation Report was called for the Husband’s Access Summons. The Report was dated 6 December 2013 (hereinafter referred as “SIR Report”). 3.There are 2 other Summonses taken out by the Petitioner Wife (“Wife”) returnable at the same time for hearing of the Husband’s Access Summons, namely,
4.In addition, parties have restored their respective Summons and Form 25 both dated 24 June 2013 for downward and upward variation on maintenance pending suit for directions at this hearing (“Variation of MPS”). 5.The Access Summons was listed for 2-hour argument without anticipation of the ADHD and SJE Summonses. The ADHD Summons and Variation of MPS were adjourned a week later for directions on 16 January 2014. The Access Summons and SJE Summons were dealt with at this hearing. 6.The terms of the Access Order are as follows :-
The Children 7.The Children in question are 2 sets of twins. It is common ground the younger twins, A and B, have been diagnosed to suffer from ADHD since they were at the age of 3. They are now 6 and half years old. 8.It is for this reason that the Wife issued the ADHD Summons on an urgent basis as medication for the younger twins are recommended but the Husband’s position was that a second medical opinion should be sought before administering medication on A and B. The Husband’s Application 9.The Husband in his 7th supporting Affidavit to the Access Summons deposed that the insistence on drug testing for himself and his partner M in the Access Order was misconceived. Though the Order was granted by consent, he had never intended that there should be a series of drug tests on an open ended basis in the words of the Consent Order, namely, “in accordance with any recommendation of Dr. Lynette Levy” and “but only in accordance with any recommendation of Dr. Lynette Levy”. 10.The Husband also contended on the wordings of the Access Order where there were numerous requirements imposed upon him by the Wife regarding the safety of the children when visiting his home which led to the children not having visited him since the last Thanksgiving. He confirmed his home is and was safe for the children. The dog D and other 4 dogs were kept away or closely monitored in an adult’s presence when the children were at his home. At the hearing, he stated there should be 5 other dogs instead of 4 dogs apart from the dog D. 11.For visiting access, he believed there is no necessity for his undertakings contained in Paragraphs A to D of the Access Order. 12.The Husband in his 8th Affidavit, apart from replying to the Wife’s Affidavit in Opposition by referring to each of the Recitals on undertakings contained in the Access Order, also referred to the Wife sending over the Access Order to the school of the children without his knowledge which is unconscionable and to denigrate him in the eyes of the school authorities. As to the ADHD issues raised by the Wife, he believed there are better qualified experts in the field than Dr. Hannah Tsang whom the Wife had relied upon. He stated that ADHD like behaviour can become exacerbated by emotional stress of divorce. Without access to their father, the children had been caused to suffer significant mental trauma and ADHD could result. He believed full and unimpeded access will provide an environment for assessing whether medication is the appropriate step to take for the children. The suggestion of a nanny on assisting at times of access is offensive to him and without merit. He and his partner Madam M, who has worked as a nanny, are quite capable of managing the children. The Wife’s contact with Dr. Susan Mistler, a clinical psychologist with whom he is one of her patient, for a psychological report on her own mental state was to build her case against him. The Wife’s Opposition 13.The Wife sets out her grounds of opposition in her 9th Affidavit which I will do not intend to repeat here since this is the Husband’s application for uplifting those undertakings he himself had given to the Court and to the Wife which then embodied in the Access Order. It is for him to prove his case. Suffice to say is that the Wife maintains her agreement to the Husband having access in the terms of the Access Order or, as set out in paragraph 59 of her 9th Affidavit, upon those additional terms set out therein. Undertakings 14.I have not been assisted by Counsel on either side as to the law on undertakings or upon any cases and authorities. However, it is always accepted that undertakings are not to be given lightly; in particular, by parties to the Court and to the opponent in legal proceedings. On relevant principles, there is no dispute that the court does have jurisdiction to release a party from his or her undertaking which was proved to have been given under mistake (see Mullins v. Howell (1879) 1 Ch D 763, 766 and Cutler v. Wandsworth Stadium Ltd [1945] 1 All ER 103). Though these are non-matrimonial cases, I believe it equally applies to undertakings given in the matrimonial context. 15.Besides, a party who has given undertakings can seek an uplift or release of the undertakings in one or more of the following situations :-
16.In any event, the question of whether to enforce or discharge an undertaking ultimately is a matter of judicial discretion designed to achieve a fair result (my emphasis) (see Shepherd Homes Ltd v. Sandham [1971] 1 Ch 341). 17.Having said, whatever the “fair result” is to be in the present case vis-à-vis the parties must not have displaced or jeopardized the best interests of the children which are always the first and paramount consideration of the Court. Thus, the two does not necessarily sit happily together or hand in hand. Best interests of the Children 18.It is trite that the Court when deciding questions relating to children, the first and paramount consideration to have regard to is the best interests of the children (see s.3(1) of the Guardianship of Minors Ordinance, Cap.13). 19.In the case of H v.N [2012] 5 HKLRD 498, which is the first case on section 3(1) since the amendment in April 2012 of the statutory provisions whereby the terms “welfare” and “wishes” of the minor were amended to read “best interests” and “views”. Mr. Justice Poon in his Judgment whilst restating the approach to be taken by the Courts when considering section 3(1) also referred to the term “best interests”. 20.At paragraphs 24 and 25 of the Judgment, his Lordship said :-
21.The Husband’s case as put is that given the children’s love for him and their clear wishes to see him more frequently which has been clearly set out in paragraphs 25 to 28 of the SIR, it would be in the best interests of the children that increased defined access, including staying access, should be implemented as soon as possible. It would also be in the children’s best interests to remove any potential obstacles such as the opportunity to impose conditions before access can be exercised. Counsel Miss Remedios for the Husband invited this Court to take a child-focused approach on the access issue. The children’s best interests call for the Court’s assistance and intervention in this case since there was minimal access since the Access Order was granted. The SIR Report 22.The social investigation officer Miss Yeung submitted her Report on the issue of access. Upon investigation, she stated at paragraph 12 of the Report that access was greatly reduced since January 2013. She was being told by the Wife that the children had met their Father (i.e. the Respondent Husband) for only about 10 hours in total on several occasions since early 2013 until the end of October 2013. On the other hand, Miss Yeung was told by the Husband that he only had had access with the children for two times as arranged by the Wife. 23.I noticed that at paragraphs 25 to 28 of her Report, Miss Yeung sets out the views of each of the 4 children towards access. All of them missed their Father and wished to have access more frequent. They all described Madam M (i.e. Father’s partner) was being nice and kind to them. 24.At paragraphs 29 to 32 of her Report, Miss Yeung sets out what she observed during the visits to the parties’ home. She described the relationship of the children with their Father was observed to be harmonious (at paragraph 29 of the Report). She described the relationship of the children with their Mother was observed to be intimate (at paragraph 31 of the Report). Nonetheless, there are 2 incidents which raised concern of this Court about the need for very close supervision over the younger twins, A and B. In quoting the words of Miss Yeung, I underlined those parts which I believe are important showing the Wife (Mother) is more cautious and attentive than the Husband (Father). This is, however, not uncommon for reasons of human nature between men and women. 25.At paragraph 29 of the Report when reciting the visit at the Husband’s/Father’s home, she said :-
26.Miss Yeung at her concluding paragraphs which I also recite and underlined below those important sentences :
27.Miss Yeung rightly admitted at paragraph 37 of her Report that she was not in any position to comment on whether the dog D should be muzzled during access as she does not possess such expertise. The Report of Dr. Lynette Levy 28.I have also considered the Report of Dr. Levy dated 24 August 2012 (at pages 1045 to 1053 of Bundle P4) with particular reference to her views on the Husband’s interim access at pages 6 and 7 of her Report (at pages 1050 to 1051 of the Bundle). However, I have reminded myself that there had been a lapse of almost 17 months counting to this hearing and at present there is clear evidence before the Court that access between the children and their Father had been minimal. This is entirely unsatisfactory and unacceptable. The Court’s role in family cases focuses upon protection of rights and interests rather than fault finding. It is also important that any determination of the Court should resolve problems the way forward and not hinges upon things in retrospect. 29.By looking at the Husband’s undertakings embodied in the Access Order and Dr. Levy’s views on interim access, it appears those issues of concern of the Wife on drug tests, muzzling the dog D and safety measures had been encompassed. 30.However, given the passage of time and the unsatisfactory access arrangement so far since Dr. Levy’s Report, it remains uncertain whether Dr. Levy would have other views and comments had she been aware of the problem of access between the Father (i.e. Husband) and the children so far and at present. 31.Thus, I will be considering only those parts of Dr. Levy’s Report whenever they are still applicable to the present state of play. Discussion 32.During the hearing, I have raised with Counsel Miss Remedios for the Husband as to the prejudice to the Husband (if any) if he was to comply with all the undertakings he had given. In respect of the undertaking in Recital A (i) on muzzling the dog and A (ii) to (v) on safety measures, the Husband’s position is that those safety measures had always been in place. The dog D has been trained and those incidents of bites occurred when D was still a puppy dog. 33.Recitals B and C touches upon the parties’ respective undertakings to do drug tests in reciprocity if and when advised by Dr. Levy. The only difference is on the Husband to be a pre-condition in exercise of his access under clauses 1 (a) (ii), (b) and (c) of the Access Order. Clause 1 (a) (ii) refers to additional weekend access if so agreed between the parties but only in accordance with any recommendations of Dr. Levy. Such undertaking does not apply to the access under clause 1 (a) (i) which is the usual weekend access every Saturday from 9 a.m. to 6 p.m. although the Husband had not exercised. The Wife is ready and willing to continue with her undertaking on drug tests. 34.Recital D touches upon drug tests of any new or current partner of the parties, if advised by Dr. Levy, to undergo hair and urine drug tests prior to any staying access or having any responsibility for caring the children. Decision 35.In my decision, special and extra care and precaution is important for the younger twins to cater for their special needs. This must be in their best interests. I also casted my mind that in the past 17 months there was not much face to face direct contact between the children and the dog D when familiarity could be established. Thus, there may be the added danger of the children, in particular, the younger twins of being hurt if D is not muzzled. Moreover, if the other safety measures under Recital A (ii), (iii), (iv) and (v) had all along been implemented at the Husband’s home, the continuance of those undertakings is neither here nor there. It merely serves to alleviate the Wife’s concerns and should not be considered by the Husband as an obstacle or condition imposed upon him restricting access. Thus, my decision is that this entire Recital A should remain in place. 36.I am not at all convinced by the Husband’s case. He had not been able to satisfy the Court that his case falls within any one of the 4 situations I quoted in paragraph 15 above or that his undertakings ought to be released on the ground of mistake (Mullins v. Howell and Cutler v. Wandsworth Stadium Ltd supra). 37.The Husband’s explanation for providing his undertakings in the Access Order is also unconvincing. In his 7th supporting Affidavit at paragraph 2, he deposed that when the Access Order was drafted, there had been considerable correspondences on the subject of access and it was following the drafting that Dr. Levy’s Report was prepared on (i) permanent relocation of the children to Australia with the Wife; (ii) custody, care and control issues; and (iii) interim access to include staying access and introduction of his partner Madam M to the children. 38.First of all, as rightly pointed out by Counsel Miss Irving for the Wife, there had been exchange of correspondence between respective lawyers at the time and both of which are reputable law firms in matrimonial practice and also with Counsel assisting behind the scene. The contents of the Consent Summons was eventually finalised and taken out by the Husband’s then lawyers Messrs. Hampton, Winter & Glynn. The Husband’s explanation cannot stand. I agree with Miss Irving. 39.In my decision, taking the Husband’s present contention to the highest that insistence on drug testing was actually misconceived and that drug tests on an open ended basis fall out of his expectation, there is no basis for him to retract and retrieve if at the time he had decided, with the benefit of legal advice, to take chance for his right of access to be in accordance with whatever recommendations that Dr. Levy would make as now appeared in the Consent Summons taken out by his then lawyers, even this was instigated by the Wife (although I made no such finding). It matters not whether he actually was or was not aware of Dr. Levy’s recommendation when both he and his lawyers decided to sign on the Consent Summons dated 27 August 2012 (which is 3 days after the date of Dr. Levy’s Report) leading to the Access Order. A wrong decision or error of judgment with hindsight, in my view, does not provide a legal basis for the uplift of or release from undertakings given in legal proceedings. It is even more difficult if that party was legally represented at the material time. 40.The fact that the Husband so far had not exercised any of the usual weekend access under clause 1 (a) (i) supports the Wife’s submission that the Husband is those kind of person who would only do what he wishes and would not honour his commitments. This can also be seen from the Husband’s own words in his 8th Affidavit where he said :
41.It is plainly wrong for the Husband to say the Wife engaged in any controlling unreasonable attitude over him whilst the access arrangement was premised upon those undertakings given by him under independent legal advice. Likewise it is equally wrong for him to say he was being ‘rolled over’ to comply with the Wife’s demand when the Wife was merely seeking his compliance of what he had undertook and agreed. The Husband is in fact “putting the cart in front of the horse” or “shifting his fault over as other’s fault” so to speak. 42.However, given the unsatisfactory access in the past and at present, I am prepared to exercise my discretion to achieve a fair result without jeopardizing the best interests of the children. The Husband should not be mistaken to believe that he could take the law on his own and not abide by what he had agreed and undertaken. The Court’s decision now may well be another opportunity for the Husband to show his love and affection towards the children if he is minded to. 43.Whilst Recitals A and B to remain intact, I decided Husband’s undertaking given under Recital C of the Access Order be released upon the Husband’s new undertakings as follows :-
44.Dr. Wayne Moran, who had had undertaken tests for the parties previously, be appointed as the single joint expert to undertake all the other drug tests for both parties unless otherwise directed. 45.There be mutual release of the parties’ undertakings under Recital D in respect of drug tests of the parties’ current or new partner. 46.Regarding the Husband’s application for unsupervised access on alternate weekends from 9 a.m. on Saturdays until 6 p.m. on Sundays set out in paragraph 2 of his Access Summons, I agree with the Wife at paragraph 57 of her 9th Affidavit that there being no requirement of supervision in the Access Order. 47.Since there will be random drug testing, it is the Wife’s position that no supervision is needed. As a matter of fact, supervision is not provided for in the terms of the Access Order. 48.Subject to paragraphs 43 to 45 of this Decision, the terms of the Access Order be implemented by the Husband forthwith. All the other terms of the Access Order remain unchanged. 49.I also direct that the Husband be responsible for collection and return of the children to the Wife’s home upon the terms of the undertaking contained in Recital E of the Access Order. Orders 50.I grant an Order as per paragraphs 43 to 45 of this Decision in respect of the Access Summons and SJE Summons. There be no Order as to costs of these Summonses including costs reserved. 51.This costs order nisi will become absolute unless any party apply to vary the same within 14 days from the date of this Decision.
Miss Frances Irving instructed by Messrs. Withers, Solicitors for the Petitioner Miss Corinne Remedios instructed by Messrs. Haldanes, Solicitors for the Respondent | |||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 1637/2012