Case Detail

FCMC 8759 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8759 OF 2010

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BETWEEN
	CMW	Petitioner
	and
	WTY	Respondent
	LCL	Intervener

----------------------------

Coram: Deputy District Judge G. Own in Chambers (Not Open to Public)

Date of Hearing: 4 January 2016

Date of Decision: 14 January 2016

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D E C I S I O N

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Introduction

1. This is the call over hearing of a Summons issued by the Respondent on 26 October 2015 seeking leave to file affirmations as to the preliminary issue over 2 properties, namely, the former matrimonial home (“FMH”) and a Tai Po property (“TP property”).

2. On 5 October 2015, this Court handed down a written Decision (“the Decision”) dismissed a joinder application taken out by the Respondent’s then solicitors Messrs. C.Y. Lam & Co., where the background of this case had been set out. I do not intend to repeat those background save and when only necessary for this Decision.

3. Following the Decision and on 23 October 2015, the Respondent filed a Notice to Act in Person replacing his then lawyers Messrs. C.Y. Lam & Co.

4. Suffice to say is that the FMH was registered in the name of the Respondent (Husband) and the Intervener who is his elderly mother as joint tenants. The TP property was registered under the sole name of the Petitioner’s elder sister. The trial of the preliminary issue had already commenced on 22, 23 and 28 October 2015 which was adjourned part heard to 23 and 24 December 2015 of which, as at today, had yet to complete for the reasons set out in the next paragraph.

5. On 22 December 2015 (which was the day before the adjourned part heard trial), the Respondent faxed in a letter attached with a photocopy of a medical certificate issued by Violet Peel General Out-Patient Clinic recommended 7 days sick leave to the Respondent from 22 December 2015 to 29 December 2015 inclusive. In the letter, the Respondent said :-

“As I was got hurt and granted sick leave for a week (till 29.12, associated medical certificate was attached herein for reference), I am terribly sorry for not being able to attend the hearings of 23.12 and 24.12 reserved.
Please place before his Honor for consideration.
Thank you for your kind assistance.”

6. The Respondent had not attended the resumed hearing on 23 December 2015 nor had he provided the Court with details of his condition in the letter. However and which is unusual, the diagnosis and case number in the photocopy medical certificate was left blank. Since the Respondent was not present, the Court was only left with the option of further adjourning the part heard trial to 15 January 2016 which was after the recommended sick leave period. The Respondent was directed to bring along the original medical certificate at the next hearing on 15 January 2016.

The Respondent’s application

7. The Respondent’s reasons for the present application are set out in his supporting affirmation. At this hearing, the Respondent was given the opportunity to make any further submissions on his application. The reasons set forth in the supporting affirmation, as I understand it, are as follows. First, he claimed that he did not realise there was any requirement for the filing of affirmations on the preliminary issues since the learned Judge Melloy had directed affirmations to be made by his mother (that is, the Intervener) on the FMH and the Petitioner’s elder sister on the TP property (see paragraph 4 of his supporting Affirmation). Secondly, this Court in the Decision opined the need to identify issues by reading affirmations of which he had yet to file (see paragraph 5 of hissupporting Affirmation). Thirdly, the adjournment of the trial of preliminary issues from 23 October 2015 to 28 October 2015 was not making the way for his application for leave to file affirmations of which he has the liberty to do so in accordance with court procedure (see paragraph 6 of hissupportingAffirmation).

The Petitioner’s position

7. Counsel Mr. Eugene Yim for the Petitioner (Wife) was instructed to oppose to the Respondent’s application and confirmed at this call over hearing that no Affirmation in Opposition will be filed. Oral submissions in opposition were then made by Mr. Yim on 3 aspects.

8. First, this is a repeated exercise of the Respondent since this Court had already refused the Respondent’s then lawyers such application on 19 October 2015 and also on the first day of trial, namely, 22 October 2015. Secondly and notwithstanding the earlier refusal, the delay in issuing the present Summons still remained unexplained. Thirdly, the Respondent had not produced the draft of the Affirmations of which leave is now being sought for filing. Thus the Petitioner does not know the scope and contents of the Respondent’s affirmations. If leave is now granted, the Petitioner would be prejudiced unless she was given a fair chance to respond. Further and if so, the adjourned part heard trial scheduled for 15 January 2016 would be jeopardised. This case was started in 2010. There had been a lapse of 5 to 6 years and from case management perspective, the trial should be dealt with as soon as possible.

The 2 preliminary issues

9. The first part of the preliminary issue is that whether the FMH is 100% beneficially owned by the Respondent’s mother of which the Respondent is one of the legal joint owners.

10. The second part of the preliminary issue is that whether the Petitioner has any beneficial interest in the TP property of which the Petitioner’s elder sister is the sole legal owner.

The Court’s views

11. At the sake of repetition, in paragraph 38 of the Decision, this Court had found that the Respondent in his 2 Form Es (dated 10/9/2011 and 2/2/2013 respectively) had never asserted the Petitioner have had any beneficial interests in the TP property. Such assertion only came into the scene at the time when the Respondent, with the benefit of legal advice, issued the joinder application trying to bring in the Petitioner’s elder sister as a party and he deposed in his supporting affirmation that he came to know about the Petitioner’s interest in the TP property as early as 1997 and 2007.

12. Throughout these proceedings the Respondent acted by himself. He saw fit to engage lawyers Messrs. C.Y. Lam & Co., on 16 September 2015 and then chose to resume to self representation on 23 October 2015. Whilst he was legally represented, apart from the joinder application filed by Messrs. C.Y. Lam & Co. on 25 September 2015 upon Mr. Lam’s undertaking to do so at the hearing on 18 September 2015, there was a letter dated 19 October 2015 from Messrs. C.Y. Lam & Co. seeking leave to issue a Summons for the Respondent to file Affirmations on the 2 preliminary issues returnable on 22 October 2015, which is the first day of trial of the preliminary issues. This application was opposed to by the Petitioner’s solicitors. In the end, this Court refused such application.

13. What had happened was that at the hearing on 22 October 2015, Mr. Lam made reference to this Court’s refusal 3 days ago on 19 October 2015, but nevertheless, sought to apply for adjournment of the trial so that the Respondent might be able to file evidence and then for other parties to reply. Given full consideration to the oral submissions made by Mr. Lam and all the circumstances, the application for adjournment was refused there and then by this Court and the trial immediately commenced.

14. In reply to the first contention of Mr. Yim, the Respondent agreed his attempts to seek leave for filing Affirmations on the preliminary issues was without success. He did seek his then lawyers’ opinion as to the issuing of the present Summons but at that time the focus rests upon the joinder application. In my view, the Respondent’s explanation is plainly unsustainable and cannot be accepted. Reason being that the Decision dismissing the joinder application was made on 2 October 2015 and full reasons handed down on 5 October 2015. There was a period of inactivity of, say, 21 days (from 5/10/2015 to 26/10/2015) before the Respondent issued the present Summons seeking leave to file Affirmation on the preliminary issues. The Respondent was legally represented until 23 October 2015 and must have been fully advised on his legal position. The trial on preliminary issues in fact had started on 22 October 2015. The present Summons was only issued 4 days after the trial started.

15. As to the letter dated 11 October 2015 which was attached and marked as exhibit “A1” to his supporting Affirmation of which the Respondent now relied upon as his explanation to this Court for the inactivity, this is also a sham argument. First of all, since the Respondent was legally represented at the time of this letter, this Court directed the Respondent on the next day, that is, 12 October 2015 as follows :

“Please liaise with your own lawyers.”

16. According to the records, this Court’s letter stating the direction was despatched both to the Respondent and also his then lawyers Messrs. C.Y. Lam & Co. on 13 October 2015. I am entitled to consider that the Respondent would have had the full benefit of legal advice both as to his writing in the letter to the Court direct without going through his then lawyers on record and also on the contents of his 11 October 2015 letter when this Court’s direction was known to his then lawyers. The Respondent cannot, in my decision, now rely upon such letter as his ‘reasons’ for seeking the Court’s indulgence to grant him leave to file Affirmations or ‘explanation’ for the lateness in so doing. I have canvassed the issue of lateness in making applications to Court and the case management aspects in the Decision (at paragraphs 30 to 34 and 50 to 52) which I do not intend to repeat here.

17. Secondly, the Respondent’s contention that he did seek his then lawyers’ advice as to issuing the present Summons but the focus by then rests upon the joinder application is misconceived. The joinder application was taken out on 25 September 2015 and dismissed after hearing on 2 October 2015. The Decision had not been taken any further to appeal and there was ample time for the Respondent, who was legally represented by Messrs. C.Y. Lam & Co. by that time, to tackle the issue of filing of Affirmations on preliminary issues.

18. For these reasons, I do not accept the Respondent’s first contention. As rightly pointed out by Counsel Mr. Yim, this is a second attempt to adduce evidence without any change of circumstances since the last refusal by the Court.

19. The second contention is that this Court in the Decision had referred to the need to identify issues by reading affirmations of which he had yet to file. This was contained in paragraph 60 of the Decision. In my view, the Respondent had misread and misunderstood that paragraph of the Decision. The Court was considering the basis for exercise of discretion whether or not a trial should be postponed or adjourned for compliance with the TL v. ML procedure (see paragraph 59 of the Decision). That part of the Decision does not dispense with the pre-requisite of the filing of Affirmations on preliminary issues for the TL v. ML process in usual cases or the need to seek leave to file such Affirmations. The Respondent’s second contention fails.

20. The third contention was in consonance with the earlier contention that paragraph 60 of the Decision had referred to the need of Affirmations of which he had the liberty to do so and that he was acting in accordance with court procedure. In his oral submissions, the Respondent attempted to place emphasis upon his then lawyers’ inactivity which had prompted him into writing the 11 October 2015 letter directly to the Court. He also submitted that Counsel Mr. Yim in his oral submissions this morning had not commented or gave a single word on the contents of his letter but simply keep on saying that the delay was unexplained.

21. To start with, the Court would not be bothered with any miscommunication or complaint by a litigant against his or her lawyers. Any grievance or complaint should have been addressed to the relevant governing bodies. Thus, a party cannot simply put up some sort of assertion of his or her lawyers’ inactivity, neglect or even omission in the conduct of proceedings as any kind of ‘explanation’ for delay in seeking reliefs or for the Court’s indulgence or to be able to rely upon as ‘reasons’ for such application which should have been done. It would not only be unfair to the other party in the litigation but also to the then lawyers who have had no chance to respond. Accordingly, the Respondent’s letter of 11 October 2015, whether for its existence or contents, could not assist the Respondent’s present application for leave to file Affirmations on the preliminary issues.

22. The Respondent’s assertion that Counsel Mr. Yim had not commented upon his letter of 11 October 2015 is also misconceived. Given the fact that this Court had already directed the Respondent to liaise with his then lawyers on his 11 October 2015 letter, such letter could not be said as being accepted by the Court which requires the other party’s comment. It is always the Respondent’s burden to substantiate his grounds of application and justify the reasons for delay. It is not otherwise for the Petitioner or her Counsel to comment on the contents of that letter which was not addressed to them and also contained matters which are self serving if not at all privileged.

23. I do not accept the Respondent’s third contention.

Other considerations

24. Before leaving this case, I take the chance to reiterate here those matters set out in paragraphs 50, 54 and 55 of the Decision of which I have casted my mind upon in light of the peculiar circumstances of the present case. At the risk of repetition, I had said as follows :-

“50. Part A of the Practice Direction 15.12 (Matrimonial Proceedings and Family Proceedings) sets out the applicability of the Rules of the High Court and Rules of the District Court under the Civil Justice Reform to the Matrimonial Proceedings and the Family Proceedings with necessary modifications. At Part G (New Measuresunder theCivil Justice Reform), it provides that the Court may exercise the case management powers under Order 1B having regard to the underlying objectives of the Civil Justice Reform under Order 1A.
54. As said, the Petitioner’s ancillary reliefs have yet to be determined after the disposal of the preliminary issues. Custody issue was resolved back in September 2012 after a 6-day trial. Three years have already elapsed with the question of ancillary reliefs nowhere close to trial. This is unacceptable and completely falls apart from the underlying objectives of the CJR on expeditiousness, procedural economy, fairness and fair distribution of court’s resources.
55. The Respondent’s joinder application at this stage, with no explanation whatsoever as to the lateness, not only fly in the face of the CJR objectives, would also have a significant impact since the FourthTrialDates would have to be vacated, the already lateness in resolution of disputes would be further exaggerated, public funds would be escalated as both the Petitioner and Intervener are legally aided. Moreover, the Respondent’s asserted case as per paragraph 11 of his supporting affirmation that the other 3 siblings of the Petitioner are also beneficial owners might have the ramifications that further parties might be brought into the proceedings whether as witnesses or further interveners.”

Conclusion

25. For all the above reasons, I do not accept the Respondent’s application.

26. The Respondent’s Summons dated 26 October 2015 be dismissed.

Costs

27. Since the Respondent failed completely in his application, it is fair and reasonable that the normal rule on costs should apply. I find there is no basis for departure from such rule.

Orders

28. I now grant the following Orders :-

(a)  The Respondent’s Summons dated 26 October 2015 be dismissed;
(b)  The Respondent do pay the costs of the Summons dated 26 October 2015 to the Petitioner, including all costs reserved (if any), to be taxed if not agreed; and
(c)  The Petitioner’s own costs be taxed in accordance with Legal Aid Regulations.

29. I also grant Certificate for Counsel.

	(George Own)
	Deputy District Judge

Mr. Eugene Yim instructed by Messrs. Hastings, Solicitors for the Petitioner

The Respondent acting in person

FCMC 8759 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8759 OF 2010

----------------------------

BETWEEN
	CMW	Petitioner
and
	WTY	Respondent
	LCL	Intervener
------------------------

Coram: Deputy District Judge G. Own in Chambers (Not Open to Public)

Date of Hearing: 2 October 2015

Date of Decision: 2 October 2015

Date of Written Decision : 5 October 2015

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DECISION

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Introduction

1. Today is the 3^rd Pre-Trial Review hearing (“PTR”) of the trial of the preliminary issues. As per the Order of Judge Melloy dated 14 May 2015, and also in 2 previous Orders of the learned Judge dated 9/10/2013 and 31/12/2014, the preliminary issues relate to two properties. One of the properties is situated at Wong Tai Sin which was the former matrimonial home of the parties. I will refer to this property as the “FMH”. The other property is situated at Tai Po which I will refer to it as “TP property”.

2. The FMH was registered under the name of the Respondent (Husband) and his elderly mother as joint tenants. The TP property was registered under the sole name of the Petitioner’s elder sister whom I will refer as “Elder Sister”.

3. The Respondent only engaged lawyers Messrs. C.Y. Lam & Co., to represent him at the 2^nd PTR hearing on 18 September 2015. The Notice to Act was filed on 17 September 2015.

Background

4. It is pertinent to set out the background of the progress of this case which is somehow convoluted. This is a 2010 case. Decree Nisi was granted in May 2011. There are 2 children of the family of the age of 15 and 16 at this hearing. After a 6-day trial in June/July 2012 before the learned Judge Melloy, the Petitioner was granted sole custody, care and control of the children. Access was suspended for 6 months pending a further order save for indirect access by e-mail, text and/or letter. There shall be a supervision order for 6 months. A further social investigation report for access was called for.

5. Following determination of the children’s matter including access, proceedings on ancillary reliefs were revived through various 1^st Appointment hearings. There are exchange of Form Es, questionnaires and answers by the parties. On 9 October 2013, the learned Judge adjourned the 1st Appointment hearing and call-over hearing in relation to the preliminary issues of the FMH and TP property to 31 December 2013. Leave was granted, apart for filing of questionnaires and answers, for the Petitioner to file her Affirmation in reply to the Respondent’s mother and Respondent’s brother’s affirmations in respect of the FMH. The Respondent, his mother and brother were given leave to file any affirmation in response, if necessary.

6. Under the same Order of 9 October 2013, the Elder Sister was directed to file an Affirmation in relation to her interest in the TP property within 28 days of the Order. Pursuant thereto, the Elder Sister filed her Affirmation on 6 November 2013.

7. At the next hearing on 31 December 2013 when both the Petitioner and Respondent were present, the learned Judge made the following Orders :-

“UPON hearing the Solicitors for the Petitioner and the Respondent appearing in person
AND UPON the Respondent confirming that his mother namely LCL wishes to be joined in these proceedings and that a Summons to that
effect is to be taken out within 7 days
IT IS ORDERED THAT :
1. The preliminary issues in respect of the former matrimonial home and the TP property shall be set down for hearing on 8^th May 2014 at 10:30 a.m. with 9^th May 2014 reserved;
2. Each party’s regulative application for ancillary relief shall be set down for a FDR hearing on 17^th June 2014 at 10:30 a.m. with half day reserved;”

8. I will refer to the dates scheduled for 8^th and 9^th May 2014 as the “First Trial Dates”.

9. On 2 January 2014, the Respondent issued a Summons returnable on 27 January 2014 for leave to bring in his mother as Intervener. The learned Judge granted this joinder application.

10. On 11 April 2014, the learned Judge ordered that the trial dates of the preliminary issues, and also the FDR hearing, be both vacated.

11. On 12 June 2014, the learned Judge ordered that the preliminary issues hearing in relation to FMH and the TP property be set down for a 3-day trial on 15, 16 and 17 October 2014 (“Second Trial Dates”).

12. On 27 August 2014, the learned Judge ordered that there shall be a further PTR on 1 September 2014.

13. On 1 September 2014, the learned Judge ordered that there shall be a further PTR on 22 September 2014.

14. On 22 September 2014, the learned Judge ordered that the Second Trial Dates (that is, 15 to 17 October 2014 inclusive) be vacated, the preliminary issues hearing be adjourned to a date to be fixed. There be a call over hearing on 3 November 2014 at 11:00 a.m.

15. The scheduled call over hearing on 3 November 2014 was vacated by a consent summons. The learned Judge then re-fixed a PTR on 12 December 2014.

16. At the PTR hearing on 12 December 2014, the learned Judge ordered that the preliminary issues hearing be set down for trial on 29 and 30 April 2015 at 10:30 a.m. (“Third Trial Dates”).

17. Counsel Mr. Yim who appeared for the Petitioner for the trial on 29 and 30 April 2015 informed this Court that all parties, including the Intervener, before giving evidence, had had the opportunity to negotiate and explore chances of settlement through without prejudice discussions outside courtroom. It was only on the second day (that is, 30 April 2015) in the afternoon around 2 p.m. that the Respondent suddenly disappeared. The discussion was then ended with no conclusion save and except the learned Judge have had to adjourn for a further hearing on 14 May 2015. To be fair to the Respondent, Mr. Yim confirmed both the Petitioner and the Intervener received telephone calls from the Respondent saying that he was not feeling well that afternoon.

18. On 14 May 2015, the Respondent failed to appear. The learned Judge transferred this case to this Court. Meanwhile, the learned Judge fixed a PTR in this Court on 13 August 2015. The learned Judge also set down the preliminary issues for a 2-day trial on 22 and 23 October 2015 at 10:30 a.m. (“Fourth Trial Dates”).

The hearing on 13 August 2015

19. On 12 August 2015 which is the date before the PTR hearing, this Court received a facsimile from the Respondent as follows :-

“FCMC 8759/2010
As per Mr. Man and Mr. Ng of Ho Tse Wai, Philip Li & Partners’ approaching Mdm LCL, my mother yesterday, I am afraid I have to instruct lawyer to handle the case due to my status ever since last hearing and I would make such as soon as possible.
Please place before Her Honour for her kind consideration.
Yours faithfully,
Signed
(WTY, Respondent)
Cc : Hastings & Co (Fax :2868 5326/2845 9266, attn : Ms J Fan) Ho Tse Wai, Philip Li & Partners (Fax : 2868 2797, ref:
MAT/JC/JM/11433/14 (JC/JM), attn: Mr. Man/Ng)
Ps : may I apologise to all for late attendance due to sickness”

20. The Respondent did not attend the hearing on 13 August 2015. In light of the said letter and the imminence of the trial dates scheduled for 22 and 23 October 2015 and on all fairness to the Respondent, this Court adjourned for a 2^nd PTR on 18 September 2015 in case the Respondent would appear with legal representation as he said so in his letter.

The hearing on 18 September 2015

21. As said earlier, the Respondent instructed Messrs. C.Y. Lam & Co. as his lawyers and the Notice to Act was filed on 17 September 2015 (that is, the day before the hearing).

22. At the hearing, Mr. Lam acting for the Respondent orally submitted to the Court that there would be a “joinder application” by the Respondent to bring in the Elder Sister. There was no draft Summons or Affirmation produced by Mr. Lam. Having heard the oral submission, this Court stood down the matter for lawyers for all the parties to consider the case management aspect since the intended joinder application to bring in the Elder Sister would trigger the so-called “ML v. TL” procedure referred to by the Court of Appeal in LWYA v. KYW & Anor (per Hon Kwan JA at paragraph 30 in CACVNos.151 and 152 of 2013). At the end, Mr. Lam confirmed that the joinder application would be filed as soon as possible.

23. At the conclusion of the hearing and, upon Mr. Lam’s undertaking to file and serve the Respondent’s Summons for joinder and the supporting affirmation within 7 days, this Court adjourned for a 3^rd PTR today. The scheduled Fourth Trial Dates remain in place.

The hearing on 2 October 2015 (that is, today’s hearing)

24. The Respondent’s Summons was issued on 25 September 2015 together with the Respondent’s Affirmation which were served on all parties, including the Intervener’s lawyers.

25. The Elder Sister (that is, the Intended 2^nd Intervener) did not attend this hearing. Counsel Mr. Yim on instructions from the Petitioner handed to the Court, with copies to all other parties, a letter in Chinese signed by the Elder Sister opposing the Respondent’s joinder application where she wrote : “…基於上述案件的答辯人WTY先生對本人作出無憑無據的指控，現在本人正式向法庭嚴正地提出，反對答辯人向法庭申請加入本人在該案件中。”

26. Mr. Lam, in reply to the Elder Sister’s opposition, submitted that the Elder Sister had not filed any affirmation stating detailed grounds of opposition nor said so in the Chinese letter. On the other hand, there is affirmation evidence from the Respondent of which the Elder Sister does not say the contents were fabricated.

27. Throughout the hearing, Counsel Mr. Yim and the Intervener’s lawyer Mr. Man have both kindly assisted this Court as to the chain of events which had happened resulting in Fourth Trial Dates have to be fixed. Having had trial dates fixed and vacated for 3 times is extraordinary. Counsel Mr. Yim assisted this Court with what had actually happened during the 2 days at the ThirdTrial Dates back in April this year. I am grateful for both Mr. Yim and Mr. Man’s assistance.

The Respondent’s joinder application

28. In the Respondent’s supporting Affirmation, the reason for bringing in the Elder Sister is that there was some sort of agreement, both oral and written, between the Petitioner and her siblings including the Elder Sister as to the beneficial ownership of the TP property which at all times was under the sole name of the Elder Sister. At paragraph 5 of his Affirmation, he deposed the Petitioner had revealed to him of the alleged agreement even before their marriage in 1997. At paragraph 6 of his Affirmation, he then deposed there are further terms of the agreement exposed to him in around 2007. At paragraph 11 of his Affirmation, he deposed the terms of the agreement are that the Petitioner and her siblings are each having one fourth beneficial interests in equal shares of the TP property.

My views

29. The Respondent had not stated anywhere in his supporting Affirmation as to the lateness in filing his joinder application to bring in the Elder Sister. Mr. Lam, in an attempt to provide an answer to such question from this Court, submitted that the Respondent was acting in person and he was not familiar with the legal procedure. Nonetheless, Mr. Lam submitted that throughout the case the Respondent had been adhering to Court Orders the best he could. There was no indication or reference to him of the option of bringing in the Elder Sister.

30. With respect, I do not accept Mr. Lam’s explanation. First, it is trite that since the Civil Justice Reform was in place, any late applications especially those ‘last minute’ applications would only be accepted by the Court in exceptional circumstances and with good reasons. The Respondent failed to provide any reasons whatsoever for his joinder application to bring in the Elder Sister taken out at this late stage.

31. In Liu Chen v. Chan Poon Wing (HCPI No.779/2006, date of decision 7 October 2009) where Master Marlene Ng (as she then was) in a personal injuries case had said :-

“36. Let me say as a general observation that the court is generally unhappy with last minute applications at the commencement of assessment hearing for further evidence to be filed or for further discovery to be made. After the CJR, the court is even more jealous to ensure that the assessment of damages will proceed as scheduled, and that the hearing will not be burdened with last-minute applications that take up valuable time thereby prolonging the assessment hearing, causing an adjournment and/or increasing costs for the party(ies). To say the least, last minute applications fly in the face of the underlying objectives of reasonable expedition, procedural economy, cost-effectiveness and fairness between parties enshrined in Order 1A of the RHC.
37. In the circumstances, after the implementation of the CJR, if there is any last minute application (which necessarily must be a rare occurrence), the court will not expect anything less than what was required even prior to the CJR, namely a full account for the lateness of the application. In addition, it is further expected that the applicant will place before the court full justification as to why the application should be entertained at all at such late stage notwithstanding the underlying objectives. Failure to do so may result in the court rejecting the application without further ado, especially if there is a history of breach of court timetables or if there is something in the conduct of the applicant that gives rise to suspicion of conscious manoeuvring.”

32. In Rightbest International Limited v. DBS Bank (Hong Kong)Limited (HCA No.1099/2011, date of decision 29 August 2013) the learned Deputy Judge Marlene Ng (as she then was) at paragraphs 11 and 12 said :-

“11. In my view, a litigant who makes a last minute application that obviously has material impact on existing process or imminent court hearing should provide the court and the other side, preferably on affidavit, a full and accurate account of the reasons why the application has not been made earlier and full justification as to why the application should be entertained at all to enable the court to exercise its discretion property in dealing with possible (or even likely) objection from the other side.
12. Especially under the Civil Justice Reform, the court is generally unhappy with last minute applications that fly in the face of the underlying objectives of reasonable expedition, procedural economy, cost effectiveness and ultimately fairness between the parties as enshrined in Order 1A of the Rules of the High Court.”

33. Still further, in a later case of So Sau Lai Connie t/a WingFung Trading Company v. DBS Bank (Hong Kong) Limited (HCA No.2807/2004), the learned Deputy High Court Judge Marlene Ng said :-

“1. The trial of HCA2807/2004 and HCMP1361/2005 (collectively, “Two Proceedings”) is due to commence on 7 January 2015 with eight days reserved. Pursuant to the order of Master A Ho dated 1 September 2005 (“Ho Order”), the Two Proceedings are to be heard and tried together.
2. The Two Proceedings came before me for pre-trial review (“PTR”) on 15 October 2014. So Sau Lai Connie trading asd Wing Fung Trading Company (“So”) is the plaintiff in HCA2807/2004 and the 2^nd defendant in HCMP1361/2005. New Harvest International Development Limited (“NewHarvest”) and So’s daughter Hui Wing Sze (“Hui”) respectively are the 1^st and 3^rd defendants in HCMP1361/2005. For convenience, So, New Harvest and Hui are collectively referred to as the “Wing Fung Camp”. DBS Bank (Hong Kong) Limited (“DBS”) is the defendant in HCA2807/2004 and the plaintiff in HCMP1361/2005.

3. At the PTR, So was represented by her assigned counsel Mr Richard Leung (“Mr Leung”) on legal aid. New Harvest (represented by their director So) and Hui were self-represented. DBS appeared by their counsel Mr. Man.

4. Although late interlocutory applications should be few and far between after the Civil Justice Reform (“CJR”), this is the third case in a row within a month in respect of which I have handed down decision or reasons for decision on late applications made at the PTR. This regrettable state of affairs is worrisome, and smacks of possible regression back to the slovenly habits before the CJR. Litigants and their legal advisors are reminded again to take the lessons of the CJR to heart, and unless there are truly exceptional circumstances the court will dispose of late applications with a swift and sure hand so that they do not add to time, costs and anxiety for the “innocent” party or encroach on the court’s resources which are in huge demand for other court-users.”

34. Although the above cases are all non-matrimonial in nature, the same principles apply to all kinds of late applications before the courts after the Civil Justice Reform.

35. Secondly, as rightly submitted by Counsel Mr. Yim, reasons such as change of lawyers or last minute engagement of legal assistance are no longer acceptable as good reasons (see DBS (Hong Kong) Limited v.Sit Pan Jit, HCA No.382/2009).

36. Thirdly, it was noted by this Court that the Respondent himself, who had all along been acting in person, had taken out a joinder application back in January 2014 to bring in his mother as Intervener for the FMH. The Order of Judge Melloy dated 31 December 2013 contained the pre-emptive clause :

“AND UPON the Respondent confirming that his mother namely LCL wishes to be joined in these proceedings and that a Summons to that effect to be taken out within 7 days.”

Thus, the explanation of the Respondent was unfamiliar with legal procedure as his ‘reason for lateness’ put forward by his lawyers Mr. Lam simply could not stand. Quite contrary, there had been ample opportunity for him to do so.

37. Despite Mr. Lam’s submission, I have gone through the documents in these proceedings during this hearing. There are other reasons to support my decision that the Respondent’s joinder application to bring in the Elder Sister at this late stage must fail.

38. So far the Respondent had filed two Form Es. The first one was dated 10 September 2011. The second one was dated 2 February 2013. The Respondent is now claiming that the Petitioner has 1/4 share in the beneficial interests in the TP property in respect of which should be brought into the matrimonial pot in the ancillary reliefs trial. However, he had not asserted such position at the relevant parts of his Form Es, namely, Part 6 of ‘Order Sought’. Paragraph 6.1 requires the deponent to specify what kind of orders being sought. Paragraph 6.2 requires the deponent to identity any property of which transfer, settlement or sale is being sought. Paragraph 6.3 requires the deponent to identify any properties of which avoidance of disposition is being sought. Nowhere in his Form E had he ever asserted the Petitioner having had any beneficial interests in the TP property although he is now saying that he knew it as early as 1997 and 2007.

39. Since the learned Judge Melloy had directed the trial of the preliminary issues relate to both the FMH and the TP property, I tried to find how the TP property came into the arena forming the preliminary issues by referring to the previous Orders of Judge Melloy granted at 1^st Appointment hearings and also those of the questionnaires and answers.

40. On 27 February 2013, the learned Judge Melloy directed the valuation of the FMH be agreed and in default of agreement, a single joint expert be engaged to provide a valuation report not less than 7 days before the Financial Dispute Resolution (“FDR”). There is no referral to the TP property in this Order.

41. On 16 May 2013, the Respondent served his questionnaire with questions about the TP property by asking the Petitioner to provide details of monetary or other consideration, private agreement between the Petitioner and her siblings in respect of parties’ respective interests in the TP property.

42. On 19 July 2013, the Petitioner provided her answers in respect of the Respondent’s questions as to the TP property.

43. On 9 October 2013, the learned Judge Melloy granted an Order of which the following paragraphs, inter alia, are important :-

“1. The 1^st Appointment Hearing and call-over hearing in relation tothe preliminary issues in respect of the former matrimonial homeand TP property shall be adjourned to 31^st December 2013 at 9:30 a.m.”
3. Leave to the Respondent to file and serve the Respondent’s Further Questionnaire within 7 days from today;
4. The Petitioner to file and serve her Answers to the Respondent’s Further Questionnaire within 21 days thereafter;
8. Leave be given to the Petitioner’s sister Cxx to file and serve her affirmation in relation to her interest in the property namely xxxxxx within 28 days from today.”

44. It is noted that this Order contained the TP property.

45. Three things had happened since this Order dated 9 October 2013 was granted. First, the Respondent filed his Further Questionnaire on 16 October 2013 with questions on the TP property again. Secondly, the Petitioner filed her Further Answers on 6 November 2013. Thirdly, the Petitioner’s Elder sister filed her affirmation on 6 November 2013 pursuant to the said Order of Judge Melloy dated 9 October 2013.

46. On 31 December 2013 (which is the adjourned hearing from 9 October 2013), apart from the Respondent confirming a Summons would be issued to bring in his mother (see paragraph 36 of this Decision), the learned Judge Melloy fixed the First Trial Dates for the preliminary issues of both the FMH and the TP property. At paragraphs 1, 5 and 6 of the Order, the learned Judge directed :-

“1. The preliminary issues in respect of the former matrimonial home and TP property shall be set down for hearing on 8^th May 2014 at 10:30 a.m. with 9^th May 2014 reserved.
5. The Respondent to file and serve the request on the Further and Better Particulars relating to TP property only within 14 days.
6. The Petitioner to file and serve her Answers within 14 days thereafter.”

47. According to the records, there is a Questionnaire headed “Questions on Ms Cxx’s Affidavit of 6.11.13” with 8 questions which was filed on by the Respondent on 8 March 2014. Ms Cxx is the Elder Sister. Most of the questions in there referred to the TP property. Apparently this Questionnaire was filed pursuant to the said Order dated 31 December 2013 albeit late. Since the First Trial Dates were scheduled for 8 and 9 May 2014 coming up in two months’ time after the Respondent filed this Further Questionnaire, the learned Judge on all fairness made an Order on 11 April 2014 vacating the First Trial Dates and also the FDR hearing. She then directed a call-over hearing on 12 June 2014. The Petitioner was also directed as follows :-

“5. The Petitioner do file and serve her Answers to the Questionnaire from the Respondent filed on 8^th Match 2014 save that the Petitioner is not requested to answer Questions 5 and 6 and Question 3 shall be limited to evidence available in support of her Answer within 28 days.”

48. As rightly submitted by Counsel Mr. Yim, the Respondent who had had the answers from the Petitioner as to his questions over the TP property would have ample time to take out the joinder application if he was not satisfied with the Petitioner’s answers. Even after the learned Judge Melloy had directed the preliminary issues to be tried involves the TP property, the Respondent with knowledge of the Petitioner’s Elder Sister’s affirmation and the Petitioner’s answers by that time (which is 31 December 2013 or earlier on 6 November 2013 respectively), took no steps whatsoever to file the joiner application. I agree with Counsel Mr. Yim.

49. Considering the Respondent’s joinder application, apart from the historic events which had happened, the underlying objectives of the Civil Justice Reform, the authorities set out above and the overall circumstances of this case, I have also taken into account the FourthTrial Dates, namely, 22 and 23 October 2015 are simply 20 days ahead from today. Trial dates are ‘Milestone Dates’. The necessary implication that will arise from the Respondent’s joinder application is to vacate the FourthTrial Dates and further re-fixing trial dates of the preliminary issue, not to say when the ancillary reliefs trial will take place.

50. Part A of the Practice Direction 15.12 (Matrimonial Proceedings and Family Proceedings) sets out the applicability of the Rules of the High Court and Rules of the District Court under the Civil Justice Reform to the Matrimonial Proceedings and the Family Proceedings with necessary modifications. At Part G (New Measuresunder the Civil Justice Reform), it provides that the Court may exercise the case management powers under Order 1B having regard to the underlying objectives of the Civil Justice Reform under Order 1A.

51. Moreover, Paragraph 42 of the Practice Direction 5.2 provides that :-

“42. Milestone dates will be immovable save in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudices to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.”

52. Active case management and the applicability of Practice Directions to Family Court cases are reinforced by the Court of Appeal in the case of Chan Cheung MingJacky v. Siu Sin Man (formerly known as Siu Kit Ling) [2014] 5 HKLRD 89, where Hon Lam VP at paragraph 46 of the Judgment said :-

“46. Before we end this judgment, we wish to express some concerns about case management in family proceedings. We understand that a review of the family procedure rules is ongoing. We also understand that there is a heavy caseload in the Family Court. However, even before the implementation of any further changes as a result of the review, as we have tried to explain above, under the existing framework active case management is equally applicable to family proceedings as in other civil proceedings. And we must stress again, at the risk of repetition, parties and their legal representatives owe a positive duty to assist the court in the proper carrying out of its case management function. It is high time that those involved in family proceedings should take a real look at paragraph 16 of PD 15.12.”

53. Taking into account all the above reasons, I find the Respondent’s joinder application to bring in the Elder Sister at this stage must fail.

Other Factors

54. As said, the Petitioner’s ancillary reliefs have yet to be determined after the disposal of the preliminary issues. Custody issue was resolved back in September 2012 after a 6-day trial. Three years have already elapsed with the question of ancillary reliefs nowhere close to trial. This is unacceptable and completely falls apart from the underlying objectives of the CJR on expeditiousness, procedural economy, fairness and fair distribution of court’s resources.

55. The other major factor in this case which must not be overlooked by the Court is the Intervener CLC. She is the Respondent’s mother of the age of close to 80 and at present living in an elderly home. She was joined in by the Respondent. From the records, she was joined in as Intervener on 27 January 2014 and the learned Judge Melloy saw fit to authorise the Official Solicitor to make enquiries as to her mental condition. Her lawyers Mr. Man acting on instructions of Director of Legal Aid reported her condition at present is stable and capable to attend trial to give testimony. However, the Intervener’s capabilities and memories have yet to be seen at the forthcoming trial.

55. The Respondent’s joinder application at this stage, with no explanation whatsoever as to the lateness, not only fly in the face of the CJR objectives, would also have a significant impact since the Fourth TrialDates would have to be vacated, the already lateness in resolution of disputes would be further exaggerated, public funds would be escalated as both the Petitioner and Intervener are legally aided. Moreover, the Respondent’s asserted case as per paragraph 11 of his supporting affirmation that the other 3 siblings of the Petitioner are also beneficial owners might have the ramifications that further parties might be brought into the proceedings whether as witnesses or further interveners.

56. I have doubts and reservation about the way in which the Respondent conducted his case. His sudden disappearance on the 2^nd day of the Third Trial Dates, namely, 30 April 2015 after lunch, the issuance of the joinder application only for his mother leaving behind the joinder application for the Petitioner’s Elder Sister to this late stage, considered objectively do give rise to some degree of suspicion of conscious manoeuvring (see LiuChen, supra).

The “TL v. ML” procedure

57. This Court noted the Court of Appeal’s decision in LWYAv. KYW & Anor (supra) as to the task of a judge in determining a dispute where third party is involved as to beneficial ownership of property in ancillary relief proceedings. In fact, the same procedure should be applied vis-à-vis the Petitioner and the Intervener who had joined in these proceedings back in January 2014. I confirmed with Counsel Mr. Yim and the Intervener’s lawyers Mr. Man that such procedure had not been followed. In fact, considering the age of the Intervener and the extent of the dispute in question, Mr. Man had no strong views as to the dispute between the Petitioner and the Intervener be resolved in the trial of the preliminary issues without applying the ML v. TL procedure. It was also submitted by Mr. Man that the Court of Appeal decision was well after the First Trial Dates were fixed.

58. Counsel for the Petitioner Mr. Yim invited this Court to consider this case as an exceptional case since Mostyn, Q.C. (as he then was sitting as a Deputy High Court Judge) in the ML v. TL & Ors (ancillaryrelief: claim against assets of extended family) [2006] 1 FCR 465, said those procedure should only ordinarily happen. Mr. Yim submitted the Court was given discretion, on a case to case basis, as to whether such procedure should be applied. Paragraph 37 of the Judgment is recited below :

“[37] In my opinion, it is essential in every instance where a dispute arises about the ownership of property in ancillary relief proceedings between a spouse and a third party, that the following things should ordinarily happen: (i) the third party should be joined to the proceedings at the earliest opportunity; (ii) directions should be given for the issue to be fully pleaded by points of claim and points of defence; (iii) separate witness statements should be directed in relation to the dispute; and (iv) the dispute should be directed to be heard separately as a preliminary issue, before the [Financial Dispute Resolution].”

59. Counsel Mr. Yim went further in his submission that since the Respondent had never filed any evidence or affirmation as to what case he is advancing against the Elder Sister over the TP property,, whether it is constructive trust, resulting trust or common intention so to speak, there is no basis as to how his points of claim could be pleaded. On such submission, I agree. I am also convinced by Mr. Yim that there remain discretion for the Court to exercise when, considering all the circumstances and the facts of the case in question, justice requires the matter be tried rather than adjourning it for compliance with the TL v. ML procedure.

60. In my view, however, there are 2 caveats when exercising such discretion. First, the parties’ respective cases could clearly be identified by reading their affirmations filed with no further elaboration. Secondly, there is no serious dispute as to discovery and inspection of documents or records between the spouse who is claiming and the third party who is defending or any other party, such as the other spouse.

61. For the present case, the Respondent’s joinder application was unsuccessful for all those reasons set out above within the precepts of the Civil Justice Reform. It should be noted that this Court did not make any finding nor was it required of making any finding as to the applicability of the TL v. ML procedure to the Respondent’s case against the Elder Sister of the Petitioner.

Costs

62. Since the Respondent failed completely in his joinder application, it is fair and reasonable that the normal rule on costs should apply. It is noted that the Respondent had also served the joinder Summons on the Intervener’s solicitors.

Orders

63. I now grant the following Orders :-

(a) The Respondent’s Summons dated 25 September 2015 be dismissed;
(b) The Respondent do pay the costs of the Summons dated 25 September 2015 to the Petitioner and the Intervener, including all costs reserved, to be taxed if not agreed;
(c) The Petitioner’s and the Intervener’s own costs be taxed in accordance with Legal Aid Regulations; and
(d) The trial dates of 22 and 23 October 2015 for the preliminary issue stands.

64. I also grant Certificate for Counsel.

	(George Own)
	Deputy District Judge

Mr. Eugene Yim instructed by Messrs. Hastings, Solicitors for the Petitioner

Mr. C.Y. Lam of Messrs. C.Y. Lam & Co., Solicitors for the Respondent

Mr. Man of Messrs. Ho Tse Wai, Philip Li & Partners, Solicitors for the Intervener

Miss C, the intended 2^nd Intervener being absent

FCMC 8759 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8759 OF 2010

----------------------------

BETWEEN
	A	Petitioner
and
	ABC	Respondent

----------------------------

Coram:

Her Honour Judge Sharon D. Melloy in Chambers (Not Open to Public)

Dates of Hearing: 25 – 28 June and 18 – 20 July 2012
Written closing arguments filed:	26 July 2012 (Petitioner) and 31 July 2012 (Respondent)

Written replies filed:

16 August 2012 (Petitioner) and 15 August 2012 (Respondent)

Date of Judgment: 4 September 2012

________________

J U D G M E N T

(Custody)

_________________

Introduction

1. This is an application by a Petitioner mother for sole custody and care and control of the two children of the family, a girl who is now aged 13 and a boy who is now aged 11. Although the mother originally said that she would like the father to have some form of access, this is also in issue. The father for his part also seeks sole custody and care and control of both children.

2. This case concerns the arrangements to be put in place for two children, who have “walked with their feet”. At present both children are refusing to have any form of meaningful contact with their father. Serious concerns have also been raised with respect to the father’s mental stability and his history of mental illness. The father is also alleged to have behaved in a way which borders on both mental and physical abuse of the children – something that he has subsequently denied.

The issues

3. The present issues before the court are:

Whether custody and care and control of the children should vest in the sole name of the mother, or in the sole name of the father or whether some other arrangement should be put in place?
What arrangement, if any, should there be for access by the non custodial parent?

Background

4. The parties married in 1997 and the children were born, a girl and a boy, in 1999 (X) and in 2000 respectively (Y). The mother worked as a clerk until the second child was born whereupon she became a full time housewife and the primary care giver of the children. The father works for the Government. The father’s mother (the paternal grandmother) also assisted with child care when the children were small.

5. Unfortunately it would appear that the marriage was a troubled one from the start with a number of reported incidences which necessitated the involvement of the Police, the Social Welfare Department and a number of different Non Government Organisations. The couple were in counselling for a long period of time but to no avail. The mother complains that the father would often behave in an argumentative and unreasonable manner. In her second affidavit dated the 5 May 2011 she highlights in particular a number of incidences from 2007 – 2008. These culminated with the father being hospitalized in a hospital for five days following a mental breakdown. In August 2008 the parties separated.

6. In June 2010 the mother issued divorce proceedings based on the father’s unreasonable behaviour. This was later amended to a petition based on one year separation with consent. The decree nisi was pronounced in May 2011.

7. Access has been very problematic. For a while the father saw the children every Saturday – sometimes in the presence of his sister – the children’s paternal Aunt. In June 2011 there was an incident which led to the children simply running away from their father. In the Social Investigation Report dated the 5 December 2011 the social welfare officer has described this incident from their perspective. She said as follows:

10. On the other hand, X and Y said respectively that in June 2011, the father suddenly changed the meeting place and asked them to go to BB Railway Station to meet him. They thus took a train on their own from CC Railway Station to BB Railway Station to meet their father, but were blamed by the father for being late. X, Y and their father took a DD Line train heading for EE. Originally, they intended to go to Admiralty. But since the father kept asking questions, they missed the F Station where they had to change train. When they arrived at EE Station, X and Y left the compartment and stayed on the platform, whereas the father stayed inside the compartment. When the compartment doors were about to close, the father forcibly pushed open the doors and shouted at them fiercely and loudly, ordering them to go back to the compartment. Therefore, they followed their father’s instruction and went back to the original train. The train travelled in the direction of DD. When they almost reached DD Station, they went back to BB Station again. At that time, it was already sometime after 11 a.m. During that time, the father blamed them for being late and the consequence of missing the breakfast serving time. The father arranged them to sit in the public seat of a coffee shop in BB and he went to buy food for them.
11. On that day, amongst the questions put by the father, they included that the father demanded to get back from them the money spent on the snack which he had given them. Since they were unable to do it, the father blamed them for not keeping the promise. The father also asked them in details the whereabouts of the pocket money which he had given Y previously. At about 1 p.m. to 2 p.m., they requested to leave. They, on one hand, heard the father say their legs were on their own bodies while on the other hand, heard the father say they were not allowed to leave. When the father was sitting and had his eyes closed, the children, in a low voice, told him twice that they had to leave first. After that, they left by themselves. When the father discovered it and chased after them, they were so flustered that they hid and avoided (him) and ran away. As they were worried that their mother would ask them to go back to see the father, therefore they only called their mother afterwards to ask for help and ask her to pick them up.

8. Since then there has been very little contact between the father and the children. Access was formally suspended pending receipt of reports on the 12 August 2011. Attempts by the court to try to get access up and running again have largely failed, notwithstanding the active involvement of the Social Welfare Department (see orders of the 30 December 2011 and the 30 March 2012).

9. It is against this background that the parties make their respective applications.

The law

Custody, Care and control, access and shared care

10. The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13.

Section 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 states that

(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-
(Amended 69 of 1997 s. 28)
(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

11. The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

GENERAL PRINCIPLES

(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-
(a) in any proceedings before any court (whether or not a court as defined in section 2) the court -
(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -
(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and
(B) any material information including any report of the Director of Social Welfare available to the court at the hearing;

For the avoidance of doubt s. 48 C Matrimonial Causes Ordinance, Cap. 179 adds that
…… section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).

12. Although not mandatory the Family Court has on occasion been assisted by a draft checklist of factors based on s.1(3) of the Children Act 1989 and s. 68F (2) of the Family Law Act 1975 in Australia as set out in the Law Reform Commission’s Report on Custody and Access as follows:

(a) the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding;
(b) the child’s physical, emotional and educational needs;
(c) the nature of the relationship of the child with each of the child’s parents and with other persons;
(d) The likely effect on the child of any change in the child’s circumstances;
(e) The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;
(f) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(g) Any harm which the child has suffered or is at risk of suffering;
(h) Any family violence involving the child or a member of the child’s family;
(i) How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(j) (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(k) The range of powers available to the court under this Ordinance in the proceedings in question;
(l) Any other fact or circumstance that the court thinks is relevant.

13. I will refer to some of these factors in so far as they appear to be relevant when discussing the circumstances surrounding this particular case.

The mother’s open proposals

14. The mother seeks an order for sole custody and care and control of the children. In an ideal world she would like the children to have access to their father and suggests that the father should have reasonable defined access with a supervision order. It is unclear how this might work given the history. When asked the mother was open to the possibility of the children and the father attending some sort of a counselling/therapy programme designed to re establish meaningful contact between them.

The father’sopen proposals

15. The father also asks for an order for sole custody and care and control. He acknowledges that the children would most probably be unhappy – but says that this would be better for them. The social welfare officer recorded his views as follows:

35. In Mr. A’s view, he should take up the responsibility to take care of the children. Therefore, he hopes he can be granted the custody and the care and control of the two children. His way of supervision should be better than that of Ms. A’s (the mother). He should be able to provide the children with better things. During the three years in which he had parted with the children, he said he could see the changes of them. In the past, Y would not lie awake in bed lazily and be late. In the morning, he would sit quietly to wait for his milk. Now, he will lie awake in bed lazily and be late for the access meeting. In respect of their studies, he will strengthen his supervision on the children and follow-up with their further school arrangement. According to him, if he was granted the custody of the children, the children would be unhappy. Also, it will be hard for them to be put under his supervision. He is also not good at dealing with feelings and requires improvement. Nonetheless, in his view, his supervision on the children “may be bitter medicine, but it will do good.” They will feel laborious, but it is beneficial to them. He thinks that the children are too fat now and they are in lack of exercise. He will regulate them and they must have appropriate exercise. The second thing is that the children need more life experience, as it is not enough for them to focus on their studies only. If Mr. A is not granted the custody of the children, he hopes he will be granted defined access. At least, the defined access order made on 24^th March 2011 has to be maintained. He disagrees to reduce the number of access.

The evidence

16. I must now turn to consider the issues, the law and the parties evidence as set out in the parties affidavits and as given orally by them during the hearing. For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact. In addition I have had the opportunity to observe the demeanor of the parties while they gave evidence in court.

17. In addition I have heard evidence from the social welfare officer and the clinical psychologist, both of whom were court witnesses. During the course of the trial it also became evident that I would be assisted if a student guidance officer, who worked at the son’s (Y) school at the time of one of the alleged incidents, was also called to give evidence. I am grateful to him for agreeing to come to court in order to assist at such short notice. I will refer to him as Mr N. In addition I gave leave and allowed the father to subpoena two other people – Ms A – a student counselling teacher and Ms L, a medical social worker.

Whethercustody should vest in the sole name of the mother, or the father or whether some other arrangement should be put in place?

18. In considering this question I will refer to some of the factors identified in the check list referred to above.

(g) Any harm which the child has suffered or is at risk of suffering;

19. The father admitted during the trial that he is still seeing a psychiatrist and that he is on medication. He confirms in his affidavit of the 5 May 2012 that he was diagnosed with depression in 2007 and that he has continued to receive medical support since then. This was confirmed by Ms L, the medical social worker. I accept that although his condition appears to be under control that there may be a risk of a relapse.

20. As set out above there were a number of incidences recorded by the mother where the father’s mental health appears to be in issue.

i) Physical punishment and repeated questioning of the children and others

21. The mother complains that the father would ask the children the same or similar questions repeatedly and that when they were unable to answer him correctly they would be punished. This included physical or corporal punishment. The father admitted on occasion beating both of the children with a clothes hanger and a small umbrella. He disputes however that his behaviour was abusive. In his closing submission the father says as follows:

Alleged child abuse/family violence/unreasonable behaviour
5. Specific instances of several occasions (later alleged as of 13^th & 18^th Sept 2007), 24^th Nov 2007, April 2008, 25^th Jun 2008 and 23^rd Aug 2008 were alleged against the Respondent of committing child abuse, family violence [examination in chief evidence of the Petitioner] and/or unreasonable behaviour. The Respondent denies all of such allegations saved that punishment/corporal punishment was exercised in some of the instances to the extent that no injury of any kind say bruise had ever be made/resulted, further and that the Respondent punished the son less than ten times and the daughter less than five times in various ways say stand still, stand still with knees in bending position (“sit on an invisible chair”), push up, hitting with hand/umbrella (souvenir type, not of structural one)/hanger (soft/bendable or small one) but not with fist or cane. After all, punishment/corporal punishment was not the major mean / main theme of parenting normally adopted by the Respondent. When the children were growing up, they were even asked to suggest way of punishment and/or reward themselves such that they would be more willing to accept the consequence aroused and on the other hand significantly apprehend the fulfilment of their own undertaking laid beforehand.

22. During her examination in chief the mother elaborated on the evidence in her affidavit and described those incidences referred to above by the father, where he appears to behave in an out of control manner and where she alleges that the children had been subjected to unreasonable and excessive corporal punishment. Unfortunately the mother did not observe all of these incidences directly and was repeating in part what both the children and the paternal grandmother had told her. The mother described the first incident in September 2007 where the father and paternal grandmother were at home and the father was questioning the son. When the son could not answer his questions the father allegedly struck him with a clothes hanger. The son was subjected to a series of blows. The mother said that there were bruises on the son’s back which were originally red and then turned to blue. The skin however was not broken. This led to the mother seeking assistance from the X Council on parenting. She did not however report the matter to the Police.

23. In November 2007 there was a further incident described by the mother as follows in her affidavit of the 5 May 2011:

16. In or about 24^th November 2007, I went to give private tutorial lessons and when I returned home at around 6pm, the Respondent was standing at the bedroom door holding an umbrella, asking questions. The children were trapped inside the bedroom. The Respondent kept asking and asking questions with no intention to stop and the children were frightened. I tried to enter the bedroom but the Respondent did not let me in. I was worried and so I called the police for assistance and also informed the Respondent’s sister.
17. When the police arrived at the door, the Respondent hid the umbrella away at once in the toilet and told the police that nothing had happened.

The mother produced a copy of a police report during the trial that confirmed that the Police had been called. It seems however that no further action was taken.

24. To an extent these allegations were collaborated by Mr N – the student guidance officer who came to court at short notice. He confirmed that he did find bruising on the son’s back when he examined the son, following the mother’s complaint that Y had been beaten. This was in September 2007 and consequently seems to have been with respect to the earlier incident. It should be noted that the son would have been only have been 6 years old at the time.

25. On another occasion, in April 2008, the father apparently took the children to the roof top and asked them questions continually. Although the mother did not witness this herself she recorded what the children had said to her as follows:

18. In or about April 2008, my children told me that the Respondent brought them to the rooftop where he asked the children questions non-stop again. The children were unable to answer the questions and the Respondent became very angry and at one point of time, threw his keys away nearly hitting X. It was fortunate that the Respondent did not lose control of himself. Given the violent temper of the Respondent, I was very scared that he would do something harmful to the children out of impulse.

26. The medical social worker Ms L confirmed what the mother had said and that as a result of this incident the mother and children subsequently moved to a refuge centre.

27. In addition to the mother’s stated concerns I also observed for myself the father’s behaviour in court. For example I noted that he has a tendency to continually ask the witnesses very detailed questions. Often he would repeat the same or similar questions even when I had asked him not to. I would accept that the father does have a tendency to repeatedly ask questions in the hope of obtaining the answer that he seeks or the answer that is “correct” in his eyes.

28. The daughter expressed her own concerns about the “questioning” to the social worker when she said that

10. Originally, both Ms A and Mr A were working full time. After the eldest daughter X was born, she was under the care of Mr A’s mother for a year before being sent to a nursery daycare at the age of one. When the second child Y the son was born, Ms A started to look after the children full time. In terms of childcare, Ms A tended to reason with the children, while Mr A was concerned with the moral education and academic result of the children and he was rather strict with his standard. Mr A had arranged the children to travel to another school area for better schooling. They used to study at XX Primary AM School. Mr A was responsible for bringing them to school and either Ms A, Mr A’s mother or himself would pick up the children after school. Mr A supervised the children’s study and often guided them by asking questions, and sometimes corporal punishment was used. According to X, she remembered that when she was in Kindergarten, her father used to question her, “How many quarters are there in an hour?” She did not know the answer and the father asked her to think over it for several hours. The longest record of questioning started from the morning till the afternoon, or from the afternoon till late at night. If the children failed to come up with the answer, the father would usually scold them, punish them to stand still, punish the younger brother to stand still with his knees in bending position or to do push up, etc.
11. Y also mentioned that his father used to keep on questioning him very often. If he did not know the answer, the father would ask him to think over it and find out the answer on his own without giving him any hint. If he failed to answer, he would be scolded and punished physically. Usually the corporal punishment would be delivered by hitting with hands, canes, umbrellas or hangers. Sometimes he would be asked to keep on thinking till the middle of the night and would not be allowed to sleep. For instance, when he was in Kindergarten, the father asked him about ways to ease the heat of the summer. He was pushed by the father to stand still, but due to the long hours of standing still and he dared not go to the toilet, he wetted his pants. Moreover, the father had asked him to memorize the classical “Three Words Scripture” (San Zi Jing). When he failed to do so, he was punished to stand still for several hours. When he was in Primary One, his father punished him to “sit on an invisible chair” and keep that position for half an hour. When he was in Primary Two, his father asked him questions about Chinese calligraphy, the answer to which he did not know and was thus punished physically by the father. On the other hand, Y also remembered that the father would give them praise and encouragement, for example, when he got a full mark in dictation. During holidays, the father would go shopping with them, and the father also bought a scooter for him and his sister to play together.
……
27. As far as access is concerned, at present what X worries most is that the father will use the access time to keep asking her questions incessantly. She is worried that her father will still interrogate her about the incident in June. Therefore, she indicated that she all along resists to seeing the father again. In X’s view, her father will be dissatisfied with whatever explanation they give. She expects that no matter how they answer, the father will keep interrogating them. X also complained that her father had questioned them about their views on custody a number of times. He would even interrogate them on how the investigating social worker put the question and how she answered. He would then say that her answer was not good. This made her feel stressful. Moreover, the father always put to them all sorts of questions, for example, questions in relation to mathematics, general studies and various sorts of matter. If she was unable to provide him with a very detailed answer, the father would shout at her and scold her loudly. According to X, she was always in great terror when meeting her father. She is even fed up with it. Even though her father told her that he would improve, in fact, apart from not using corporal punishment, he made no change as to his speaking loudly and asking questions incessantly.

29. Although under cross examination the father disagreed that he would punish the children if they could not answer his questions, there is little doubt that he did so and that this mode of disciplining was very unpopular with the children. From the father’s perspective he said that they had to understand that there were “rules” and that there were consequences for breaking those “rules”. He did not appear to give any consideration to the possibility that his “rules” were unreasonable or that the children were frightened of him and of being punished unjustly. It seems that this was a constant theme within the home and I accept that this is partly the reason why the children hold such a negative attitude towards their father now. In addition I accept that the father does have a tendency to continue to ask questions in an excessive manner.

ii) Unreasonable academic requirements

30. The father also had high academic requirements. The children were expected to do well in school. This of itself is not unusual. However, as referred to above, in addition the father required the children to memorize an ancient Chinese text. Each day they were required to memorize 8 sentences. Each sentence comprised of three characters. They were very young at the time. The father said that he also memorized the text. When I asked him why he would require such young children to do this, he said that it was “part of the learning process”. The father admitted to slapping the children if they got the characters wrong. He did not consider such punishment excessive or the exercise itself unreasonable.

31. All in all I do consider that some of the father’s past actions have bordered on the abusive – both physically and mentally and I can quite understand how this might colour the children’s view of him now. In particular I accept, on the balance of probabilities, that the children may have suffered some harm as a result of the father’s past behaviour.

(h) Any family violence involving the child or a member of the child’s family;

32. I have set out above a number of incidences above relating to the corporal punishment of the children which I will not repeat again here. The children and the mother do not appear to have been subjected to any other form of physical abuse although there were several occasions were the situation within the home seems to have verged out of control. The children would have been aware of these tensions and were no doubt affected by them. In particular the mother describes an incident before the father was admitted to hospital where during the course of an argument the father threw three knives into the washing machine. She explained it thus:

19. In June 2008, the Respondent and I had another quarrel relating to the way we teach our children, and at the heat of quarrel, the Respondent took out 3 knives from the kitchen and threw it into the washing machine to release his anger. I was very scared especially when the children were also in the Flat. I dare not say anything but let the Respondent burst out in anger. After a while, the Respondent calmed down and asked if I would like to send him to the hospital through the Medical Social Worker – Ms. M. I thought the Respondent realized that he was emotionally unstable and needed treatment. However, I could not contact Ms. M at the time because there was a No. 8 Typhoon earlier that day and Ms. M was not on duty. So I dialled 999 to call for an ambulance. The police asked me the details and I honestly reported the matter. The Respondent was then sent to a hospital.
20. The doctor at the hospital opined that the Respondent needed hospitalization and his condition required him to be transferred to XXX Hospital for psychiatric treatment. The Respondent refused to be admitted. The doctor said it is a must for the Respondent to stay in the hospital because he might cause harm to the children if he were allowed to be discharged and go back home. In fact, the doctor said I should have sent him to the hospital as early as when the Respondent beat Y up with the hanger. The doctor also suggested that the Respondent be transferred to XXX Hospital subject to compulsory admission and deliberately made a request to XXX Hospital that the Respondent could not be discharged at his own request, unless with my consent. During his stay in the hospital, Ms. M called me and suggested me to consider living separate from the Respondent for the sake of the safety of the children.
21. The Respondent was in XXX Hospital for 5 days. Under the pressure from the Respondent’s family and request of the Respondent, I consented his discharged thereafter. This incident shows that the Respondent has mental problem and it was not suitable for him to be with my children. This set the alarm that I had to make arrangements for my children and we have to live separate from him.

(a) the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding;

33. The daughter X is now 13 years of age and the son Y 11. There are both able to express their own views clearly. In particular it seems that X is now very angry with her father. The court was shown a number of e-mails from the social welfare officer which were written by X to the father which were both rude and abusive. I will not repeat them again here.

34. Both children however clearly expressed a wish to continue to live with their mother. The social welfare officer described X’s current views on access as follows:

9. X wishes very much to continue to live with the mother. She said that she could share bits and pieces of her life with the mother, who would give her guidance. On the other hand, X said she would not frankly tell the father her thoughts as she worried that the father would not accept them and would, instead, have her do what he wanted her to.
10. As for access, at first, she held the view that seeing the father was acceptable (to her) and she was willing to schedule meetings via emails. However, it irked her that on each occasion, arrangements had to be made in such a way that accommodated the father’s suggestion. Because of this, she used rude and disrespectful words in emails to communicate with the father. In addition, the father said that he would not force her to meet him. For these reasons, she has not proposed any access meeting on her own initiative since the meeting in February. Although she said that she did not want to see the father, her complaint was merely about having limited leisure time at this stage. Future arrangements would depend on her future schedule. She did not appreciate the fact that the father communicated with her in his emails in a tone that (showed) friendliness and closeness because that was not the usual way the father treated them. She said that the mother encouraged her from time to time to see the father, advised her not to use rude or defamatory words and had never stopped her from seeing the father.

35. In so far as Y is concerned he told the social welfare officer that he:

11. … also wishes very much to continue to live with the mother. He said if he had made any mistake, the mother would punish him by having him do housework and not allowing him to play computer games. He felt that it was reasonable and he followed the mother’s guidance. On the other hand, Y thought that the father had been unreasonable in dealing with them by way of smacking and scolding all the time. Even if he promised he would reward them when they fulfilled certain requirements [e.g. to write from memory a certain number of vocabulary], the promise had never been kept. He would even deny having ever said that and behaved as if that had never happened. The siblings were both greatly dissatisfied with that and hence they did not easily trust the father any more. That notwithstanding, Y did not resist access meetings much. He, however, only agreed to see the father (if) the sister, X, wished to do so. In the last few months, he wrote fewer emails to the father. He hoped that the father could take a more active role in sending him emails which he would be happy to read and reply to.

36. Given the ages of the children I have attached significant weight to their own views as expressed here when reaching my conclusion.

(b) the nature of the relationship of the child with each of the child’s parents and with other persons;

37. The children have a very close relationship with their mother, whereas the relationship with their father is extremely strained. A great deal of work will need to be undertaken by all concerned if the children are to have any form of a meaningful relationship with their father in the future.

(a) The likely effect on the child of any change in the child’s circumstances;

(b) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(c) How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

38. Generally speaking I accept that it would be devastating to the children if their current living arrangements were altered and if they were asked to live with the father. I do not believe that that would be in their best interest. I do not agree that the father’s approach would be beneficial to the children or that he has demonstrated that he is capable of meeting their needs. His attitude towards parenting continues to be a matter of significant concern to the court.

The Social Welfare Report

39. Recommendations made to the court in social welfare reports although not binding are generally considered to be persuasive.

40. In this case the social welfare officer filed three reports. In all three reports the social welfare officer recommends sole custody and care and control to the mother. I agree with those recommendations.

41. In so far as access is concerned there has been a lot of involvement by the Social Welfare Department, given that I have made orders for supervision and access continued to be hugely problematic.

42. Unfortunately the father stopped co-operating with the social welfare officer making it very difficult for her to take matters further. She said in her last report of the 30 May 2012 as follows:

12.   Despite various phone calls made to Mr. A after the family court hearing in December 2011, the undersigned had not been able to reach him. Thus the undersigned wrote to Mr. A in January 2012 to contact him for the purpose of explaining the implementation of the supervision order. The leaflet entitled “Parents Forever” was also posted to him for reference. The undersigned also phoned Ms. L (transliteration), a medical case worker of YYY Psychiatric Centre so as to invite Mr. A to contact the undersigned. In February, Mr. A phoned the undersigned, saying that he had not yet received any reply from the children in relation to the suggestion of visiting the grandmother. He also had some views about the tone of the children’s emails. Unfortunately, a detailed discussion did not ensue and the undersigned was just told to read the emails. The undersigned phoned Mr. A again, but was unable to get hold of him. Later, the undersigned sent him two letters in May to invite him for a meeting in the undersigned’s office. In his written reply to the undersigned, Mr. A said to the effect that he did not consider it beneficial to see the undersigned again. He also stated that after the making of the interim supervision order on 30^th December last year, it had been more difficult to see the children than before and so far, he had only had a two-hour gathering with them. He suggested that the undersigned read the emails and attached to (his reply) was a copy of the emails after 21^st October 2011.
13.   In his emails to the children, at first, Mr. A mainly expressed himself in English, primarily asking about how the children were doing, their studies and asking after Ms. A. Such emails were also means of contact for arranging access. He also stressed that although he wanted very much to see the children, they should only meet when they were willing to. Later, at the children’s request, he expressed himself in Chinese in (his) emails, the contents of which included casual chats, messages of care and extending regards (to them).
14.   Mr. A also stated in his written reply that considering the interest of the children, he was still the better parent to have custody of the two children.

43. On that basis she recommended that the father simply be granted reasonable access to the children – with no supervision order.

44. The difficulty that I have with that recommendation is that it could put the children in an impossible situation with the father demanding to see them and returning to court when that did not happen. It seems to me that unless the parties work on the underlying problems that there is really no possibility of any meaningful access taking place. Consequently I am reluctant to make an order at this stage that I fear has very little prospect of success or of being complied with.

The clinical psychologist report

45. The clinical psychologist filed her report on the 15 December 2011. She recommended as follows:

19. Based on the observations and findings during the present assessment, which was limited to the information I could gather, it is my recommendation that sole custody of both the daughter and the son to be granted to the mother. My recommendation is based on the following considerations:
i.   Wishes of the children: Both the daughter and the son indicate without hesitation that they want to live with the mother. They are asked this question separately and it is believed that they stated their wishes genuinely.
ii.   Relationship and bonding with the parent: The mother has been the main caretaker of the children since their birth. They have enjoyed good bonding and relationship all along. Though the children may express their dislike towards certain aspects of the mother’s parenting, they are clearly more emotionally attached to the mother than to the father.
iii.   Continuity of care and living: The children have been living with the mother since they moved out in 2008. They have settled down in a new district and new school environments, which they claimed they adjusted well and enjoyed. If custody is to be granted to the father, it would mean a disruption of current lives of the children. The father also stated he wanted the children to change to a better school. Though this may be the father’s good intention and his acceptable standard of good education for the children, it may not be the wishes of the children nor is it suitable for them.
iv.   Parenting capacity: It’s obvious that both parents have their strengths and weaknesses at parenting, and the mother’s parenting is not faultless. Nonetheless, the parenting style of the father may not be suitable for the children. His incessant questioning style may not be age-appropriate and his over-emphasis on the knowledge base of the children, while ignoring the emotional and development needs of the children, may not be comprehensive and beneficial for the children in the long run.
v.   Potential risk and harm to the children: The father suffers from depression and is currently under psychiatric treatment and medication. He admitted that he was at times moody and hot-tempered. Although his depression may have been relatively stable recently, there is still risk of relapse or worsening of his depression, which will compromise his ability to take care and parent the children. Besides, the father has history of beating the children. Though he now claims that he does not resort to violence anymore, such history should still be taken into consideration.
20. Potential capacity for cooperation between parents for children issue: Sole custody of the children for the mother is suggested as the mother’s opinion that the father is controlling and dominating and she may not be able to exercise her custody right if joint custody is granted is supported. The children will inevitably be involved and suffered if there are on-going and protracted conflicts between the parents over the children’s issues.
21. As regard for access issue, clear and defined access for the father is suggested. Though the father may not know how to relate with the children in a manner that is suitable for the children, it is clear that he loves and cares about his children and wants to provide the best in term of education for the children. Despite the separation of the parents, the continuing connection and bonding between the children with the father is to be fostered as far as possible. The children’s resistance and grievances towards the father are understandable. However, it doesn’t mean, that there should be a strict cut-off between them and the father. Nonetheless, in order to have a better relationship with the children, the father should work hard to change his style of relating to his children, gaining more insight into the children’s developmental and emotional needs, and try not to blame the mother for the access difficulties between the father and the children. During my second interview with the father, effort was made to help the father to make adjustment in the way he relates to the children and to understand the children from the children’s perspective. The father was receptive to the advice and claimed that he was trying to improve in this aspect. He indicated his willingness to have more advice on parenting and how to relate with his children. As such, it is suggested that supervision order and assistance of a social worker in access and parenting issue will be beneficial for all parties.

46. I largely agree with these recommendations. However in order for them to work the father has to fully cooperate with either the Social Welfare Department or some other agency with a view to improving his own parenting skills. The children also in the first instance need to re establish contact with him in a safe environment.

The character of the parties

The mother

47. The mother came across as being rather anxious. Clearly these proceedings have been a huge strain on her. However she also seemed to want to support the father’s relationship with the children, in what are obviously very difficult circumstances. This is to be encouraged.

The father

48. The father seems to have very little insight into his own behaviour or its effect on both the children and the mother. I accept that he has some mental health issues and that he is seeking treatment for his depression. However if he is to take this matter forward he needs to accept that significant work needs to be done on his part in order to re establish meaningful contact with his children.

What arrangement, if any, should there be for access by the non custodial parent i.e. the father?

49. In the circumstances I will suspend access for 6 months save for indirect access by e-mail, text or letter. I do so in order to enable the father to attend some sort of intensive counselling and/or therapy programme on parenting. There shall be liberty to apply. Therefore in the event that the social welfare officer believes that the children and the father are ready to resume some form of contact in a safe environment, then a letter should be written to the court and directions will be given accordingly. To that end there shall be a supervision order in place for the next six months. A short progress report on access only shall also be filed in six months time.

Costs

50. Given the nature of this dispute I will make an order nisi to be made absolute at the expiration of 14 days that there shall be no order as to costs.

51. Consequently I will make an order as follows:

1) Sole custody and care and control of X and Y shall be granted to the mother.
2) Access shall be suspended for six months pending a further order save for indirect access by e-mail, text and/or letter.
3) There shall be a supervision order in place for the next six months.
4) An updated social investigation report be called for in 6 months time with respect to access only.
5) Liberty to apply.
6) There shall be an order nisi that there be no order as to costs. Such order to be made absolute in 14 days time.

	( Sharon D MELLOY )
	District Judge

Ms Fan of Messrs Hastings & Co for the Petitioner

The Respondent acted in person

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