TLS nee J v. RCS

FCMC 1637 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NUMBER 1637 OF 2012

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

BETWEEN
	TLS nee J	Petitioner
and
	RCS	Respondent

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

Coram: Before Deputy District Judge G. Own in Chambers

Dates of Hearing: 19 and 20 March 2014

Date of Decision: 24 March 2014

____________________________

REASONS FOR DECISION
(Summons on Medical Treatment)

____________________________

 

Introduction

1.  This is the Petitioner Mother’s (“Mother”) application by way of Summons dated 20 December 2013 (“ADHD Summons”) seeking the following orders :-

“(1) The Petitioner be at liberty to appoint Dr. Hannah Tsang as the treating Paediatrician for the children B a boy born on 30 June 2007 (“B”) and A a boy born on 30 June 2007 (“A”);

(2) That the Petitioner be at liberty to administer any medication to B and A as prescribed by Dr. Hannah Tsang including but not limited to medication for Attention Deficit Hyperactivity Disorder (“ADHD”);

(3) Access pursuant to Paragraph 1 (a)(i) of the Order dated 27 August 2012 be subject to the Respondent Undertaking to the Court and to the Petitioner to administer any ADHD medication as prescribed by Dr. Hannah Tsang at such times and in such dosage as directed;

(4) In the alternative to paragraph 2 herein access to be supervised by a qualified nanny during access pursuant to Paragraph 1 (a)(i) of the Order dated 27 August 2012;

(5) Costs in favour of the Petitioner.”

2.  It is unfortunate that the parties have to come to Court for resolving medication issues over the younger set of twins A and B (“the children’), who are of the age of 6 years and 9 months at the time of this hearing, and sadly both of them had been diagnosed to have suffered from Attention Deficit Hyperactivity Disorder since around October 2012.

3.  Joint custody of two sets of twins had been granted by the Court with care and control to the Mother.  Father was granted conditional defined access which forms other part of the interlocutory proceedings in this case. 

The Mother’s Application

4.  Very briefly, the Mother’s case is that the children are in pressing need of medical treatment.  Since the prognosis was confirmed back in October 2012 by Dr Tara Lavinson who is a child psychologist after the school had mentioned their concern over the children’s then behaviour, there had been administration of psychologist tests and observation over a prolonged period.  The Mother in her 14^th Affidavit stated that ever since the children were toddlers, she found their behaviour very difficult.

5.  The Mother also referred to an incident happened about a year ago in 2013 whilst the children were playing rugby, they hit another child in the mouth giving that child bleeding in the gums.  The children were seen not able to focus on what was going on in the game and quickly became distracted or disruptive.  On that occasion, the coaches had a stern conversation with the children with the Father also present. 

6.  The children’s problems have become serious.  The school they are now attending suggested either medication be given on trial or some form of one on one support to be given.  The school counsellor Clara in her email dated 14 January 2014, after reporting both A and B are not meeting the grade level expectation and also their academic performance in school, further confirmed the children suffered from ADHD.  Their report cards would be given in narrative form as opposed to the usual format as such might affect their self esteem when comparing with their peers.

7.  The children themselves also had expressed their frustrations and expressed that they need help.  Dr Tsang in her recent email dated 20 February 2014 to the parties (at pages 2118 to 2119 of Bundle P7) said :-

“……But as much has already been done over the past 1+ years, I also hope that we can all work together to expedite the process as the boys have expressed their frustrations and expressed the desire for further help. The goal is to continue taking steps forward to facilitate their learning and help them reach their potential academically, socially behaviorally and emotionally.”

8.  On the 2^nd day of hearing, another email from Dr. Tsang that morning which was sent to the parties around 10:24 a.m. was produced to this Court (marked as Exhibit “P-3”).

9.  It is the Mother’s case that the ADHD problems have not only affected the children academically and also their social lives amongst friends and peers or at schools, not to say about their self esteem. It has now come to the stage that proper treatment including medication is warranted. 

10.  It is also the Mother’s case that the children need to be placed in a ‘settled’ environment whilst taking the trial on medication and such trial period takes a few months.  With the relocation to Australia in coming July this year (which issue could only be resolved lately by the Father’s signing the Consent Summons and thus the 5-day trial scheduled 18 March 2014 could be vacated), there is no time to defer proper treatment which the children now needed, not to mention that the ADHD problems had been lasting for quite some time with the children present condition unsatisfactory.    

The Father’s Opposition

11.  The Father, as one of the custodial parent, would only agree to paragraph 1 of the Mother’s Summons that Dr. Hannah Tsang (“Dr. Tsang”) be appointed as the paediatrician for A and B.  Whilst acknowledging the children’s ADHD problems and there ought to be some form of treatment plan (again this came about from the Father at a late stage as the Mother had repeatedly said), the Father would not agree to give carte blanche advance approval for whatever medication proposed by Dr. Tsang to be given to the children.  The Father through his Counsel Mr Clough made his position clear in that he would agree to treatment (including medication prescribed) by Dr. Tsang only if such course is also recommended or supported by Dr. Jadis Blurton (“Dr. Blurton”).  Dr. Blurton is the Clinical Director of The Family Development Center.  It is submitted by Counsel Mr. Clough that paragraphs 2 and 3 of the Summons, if granted, would give Dr Tsang absolute authority.  

12.  On the 1^st day of hearing, an urgent attempt was made to try and contact Dr. Blurton for any preliminary views on giving medication to the children over their ADHD problems.  The reply received the following day was that she is not in such a position at this stage without seeing the children.  

13.  Counsel Mr. Clough also submitted that any treatment by way of medication is a ‘parenting decision’ which should be exercised by the parents and not to be delegated by the court to the treating doctor.  It is fundamentally wrong in principle for the court to make an order delegating a matter within its jurisdiction to a doctor.  Mr Clough cited an example that if a doctor prescribed antibiotics, to give or not to give the child such antibiotics should be the parents’ choice, or, it is a ‘parenting decision’. Only when the parents disagree amongst themselves, the court then decides.

Mother’s position on Dr. Blurton’s involvement

14.  The Mother has no objection to Dr. Blurton to provide psycho educational assessments of the children since such reports would be helpful to the school.  It would also provide an overall picture of the children’s strengths and weaknesses for better treatment planning.

15.  What the Mother disagrees is to have Dr Blurton’s  ‘support’ or ‘connivance’ (if I may use such phrases) on Dr Tsang’s course of treatment, including any medication prescribed by Dr Tsang, before the children could be treated.

16.  Counsel Miss Irving in her submission posed the question that how about if Dr Blurton does not ‘support’ or ‘connive’ with Dr Tsang, or holds a different view ?  The parties would then have to be back to court again as exactly the same as they are now in for the court’s assistance.

Best interests of the Children

17.  From time to time, and also stated in one of my earlier reasons for decision in this case on defined access, a court when deciding questions relating to children, the first and paramount consideration to have regard to is the best interests of the children (see Section 3 (1) of the Guardianship of Minors Ordinance, Cap.13).

18.  There is no exception for my decision in the present application. 

19.  Although the parties have produced extracts of various medical articles, journals and publications on ADHD together with recommended treatment, I am not prepared to pick and choose from any of them or to prefer any one of them to be better than the other without the benefit of hearing direct evidence from medical experts.  Counsel Mr Clough produced 2 sheets of extracts from Wikipedia on the medicine ‘Methylphenidate (trade name Concerta, Methylin, Ritalin, Equasym XL)’ and is marked Exhibit “R-1”.  The medication ‘Concerta’ was mentioned in an email from the Mother to the Father dated 29 January 2014 (Exhibit “P-2”).  In my decision, such piece of information is of no assistance to the Father’s case.  The court is not in any position to say whether a particular medication is suitable for a particular person.  This is for the treating doctor to decide and in this case, is Dr Tsang.

Discussion

20.  Firstly, on the available evidence, I am satisfied that the children’s ADHD problems persist over a couple of few years.  It is a fact that the degree and extent of recovery fall short of satisfactory despite all efforts in different ways and by various means attempted by the primary carer Mother who having the day to day care and control of the children.

21.  The latest situation and need of the children have been clearly stated by Dr. Tsang in her email dated 20 March 2014 (Exhibit “P-3”) which I now recite below and those important sentences are underlined :-

“….A and B, currently 6 years of age, are recommended for both behaviorial therapy and a trial of stimulant medications. The current behaviorial therapy at home, school and outside of school/home that they have been receiving should be continued. Learning support and accommodations at school should be continued. A trial of medications with the aim to augment the behavioural therapy and current strategies being taught and utilized at home and school is strongly recommended in view of the significant functional impairment reported at school and home for learning, academic performance, behaviours and social interactions. The safety of the children, their interest in learning and their self esteem are specific issues that indicate functional impairment both at home and school. The boys have expressed their frustrations and desire to have additional support and help. The decision for using the medication for treatment of ADHD will be reviewed and monitored closely if the trial is commenced. The medications can be started or stopped at anytime if clinically indicated. But the usual expected trial period can range from 2-4 months in most cases. The decision to continue the medications will only be considered if the benefits of stimulant medications significantly outweigh the costs for the boys.”

22.  Secondly, I am also satisfied on the evidence that the Father, who had not had much time of access in the past and this is undisputed, would not be in any better position than the Mother to tell the court the day to day behaviour of the children at home. It is only the Mother who can say whether there had been any improvement over the children on their ADHD problems with the passage of time.  I am not at all convinced that the Father who had had exercised only minimal access since 2012 knows better than the Mother over the children’s problems.

23.  With the Father’s acknowledging Dr. Tsang’s expertise and accepting her as the treating doctor on ADHD, the first question thus fall to be asked is whether the children’s best interests can be served if they are to be medically treated by Dr. Tsang now; or, as of the Father’s position that any course of medical treatment by Dr. Tsang need to be ‘supported’ or ‘connived’ by Dr. Blurton ?

24.  The next question to be asked is whether there is any issue that the court, in granting the Mother’s application, is delegating ‘parental decision’ to the treating doctor, namely, Dr. Tsang and, as Mr. Clough submitted, this is fundamentally wrong in principle ?

25.  Miss Irving in paragraph 10 of her written skeleton submissions said it is illogical ‘to agree to someone being the doctor but not agreeing to the recommendation made by that doctor!’  I agree.   With the Father accepting Dr Tsang as the treating doctor for the children on ADHD, he would not be in any position to disagree with Dr Tsang’s recommendation (including medication and advice) on treatment. Whether the Father (or the Mother) would, in agreeing with the recommendation, then be bound to implement them is quite a separate matter which touches upon the question of ‘parenting decision’.  I will deal with this separate matter in the following paragraphs.

26.  I accept the Mother’s evidence about the present condition of the children which was supported by Dr Tsang’s last email of 20 March 2014 (Exhibit “P-3”).  It is proved to the satisfaction of this court that the children are in need of immediate help and support.  I do not accept the Father’s case that he accepts any course of treatment (including medication) prescribed by Dr Tsang only if Dr Blurton so supports or recommends.  The court must at all times ensure the children’s best interests are secured and not to give way to their parent’s choices.  The Father requires Dr Blurton’s views as a back-up or second opinion, which the Mother has no objection, is his choice and preference which should not be taken as a ground of objection to Dr Tsang treating the children (including prescribing medication) if this is in the children’s best interests. 

27.  Therefore my first decision is that Dr Tsang can provide treatment over the children’s ADHD problems (including prescribing medication) which she professionally sees fit and appropriate without the need of support or recommendation of Dr Blurton as the Father so suggested.

28.  The Mother has no objection on administering medication prescribed by Dr Tsang.  The objection comes from the Father and thus issues of ‘parenting decision’ and that the court is delegating ‘parenting decision’ to Dr Tsang is fundamentally wrong in principle are raised by Mr Clough in his argument. 

29.  Miss Irving submitted that in all cases where parents come to seek the court’s intervention or decision due to them not being able to compromise between themselves on their children’s matter, one parent’s views will be subverted by the court’s decision.  The court upon making its decision is taking over or replacing the rights of that parent whose views not being upheld by the court.  This is exactly the court’s function. 

30.  In my decision, after the doctor has given treatment and whether or not that treatment includes medication prescription, to implement it or not is a ‘parenting decision’ of the parents.  In the exercise of such ‘parenting decision’, the parents must always have in mind the best interests of the children.  However, if the parents are not agreeable on the exercise of such ‘parenting decision’, the court must intervene.  The court, in the discharge of its function for the best interests of the children, could not be said to be ‘delegating’ the ‘parenting decision’.   

31.  Had Dr Tsang as the treating doctor and paediatrician decided the children needs to take certain medication prescription, she is professionally qualified to make that decision.  Why then her decision has to be supported or recommended by Dr Blurton ?  Moreover, Dr Blurton is a psychologist dealing with the psycho educational assessment of the children.   As Miss Irving rightly submitted, what happen if Dr Blurton holds a different view and would the treatment be then suspended with the parties coming back to the court again?     

32.  In my decision, there is no question of the court delegating ‘parenting decision’ as Mr Clough so submitted.   

Decision

33.  For the above reasons, I find for the Mother on her Summons in the following terms.  The Father’s contention fails.

Orders

34.  I now make the following orders :-

(a)  Dr. Hannah Tsang be appointed as the treating paediatrician for the children B a boy born on 30 June 2007 (“B”) and A a boy born on 30 June 2007 (“A”) on their ADHD problems;

(b) The Petitioner (Mother) be at liberty to administer any medication for treating the children’s ADHD at such times and in such dosage as prescribed by Dr Hannah Tsang;

(c)  The Respondent (Father) do administer any medication for treating the children’s ADHD at such times and in such dosage as prescribed by Dr Hannah Tsang during the time of his access;

(d) Penal Notice be endorsed on this Order.

35.  As the parties will be arguing costs of the Petitioner’s Summons on relocation tomorrow (25 March 2014 at 10:30 a.m.), I will reserve the question of costs of this Summons to be heard together.  

	(George Own)
	Deputy District Judge

Miss Frances Irving instructed by Messrs. Withers, Solicitors for the Petitioner

Mr Neal Clough instructed by Messrs. Haldanes, Solicitors for the Respondent

FCMC 1637 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NUMBER 1637 OF 2012

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

BETWEEN
	TLS nee J	Petitioner
and
	RCS	Respondent

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

Coram: Before Deputy District Judge G. Own in Chambers

Date of Hearing: 10 January 2014

Date of Decision: 16 January 2014

____________________________

REASONS FOR DECISION
(Uplift of Undertaking, Access)

____________________________

 

Introduction

1.  This is the Respondent Husband’s (“Husband”) application by way of Summons dated 11 October 2013 (hereinafter referred as “Access Summons”) seeking variation of a Consent Order dated 27 August 2012 (hereinafter referred as “Access Order”).  The terms of the Summons are as follows :-

“UPON the Respondent undertaking to the Court and to the Petitioner that he will take one final hair and urine drug test forthwith or as soon as possible after the making of this Order.

1. That the Respondent be discharged from his undertakings contained in Paragraphs A – D of the Order made herein on the 27^th August 2012.

2. That the Respondent do enjoy unsupervised visiting access to the children, namely, F, a boy born on xxxxxx, M, a girl born on xxxxxx, A, a boy born on xxxxxx and B, a boy born on xxxxxx, on alternate weekends from 9 a.m. on Saturdays until 6 p.m. on Sundays such access to commence as soon as possible.

3. Such other visiting access as the parties shall agree in the intervening periods.

4. The Respondent be responsible for the collection and delivery of the children to the Petitioner’s home.”

2.  A Social Investigation Report was called for the Husband’s Access Summons.  The Report was dated 6 December 2013 (hereinafter referred as “SIR Report”).

3.  There are 2 other Summonses taken out by the Petitioner Wife (“Wife”) returnable at the same time for hearing of the Husband’s Access Summons, namely,

(a) Summons dated 20 December 2013 for appointment of Paediatrician and for administration of medication for Attention Deficit Hyperactivity Disorder (“ADHD”) (hereinafter referred as “ADHD Summons”); and

(b) Summons dated 9 January 2014 for appointment of Dr. Wayne Moran as single joint expert to undertake drug testing under the Husband’s Access Summons (hereinafter referred as “SJE Summons”).

4.  In addition, parties have restored their respective Summons and Form 25 both dated 24 June 2013 for downward and upward variation on maintenance pending suit for directions at this hearing (“Variation of MPS”).

5.  The Access Summons was listed for 2-hour argument without anticipation of the ADHD and SJE Summonses.  The ADHD Summons and Variation of MPS were adjourned a week later for directions on 16 January 2014.  The Access Summons and SJE Summons were dealt with at this hearing.

6.  The terms of the Access Order are as follows :-

“UPON THE JOINT APPLICATION of the Petitioner and the Respondent by way of Consent Summons filed herein on 27^th August 2012.

A. AND UPON the Respondent undertaking to the Court and to the Petitioner that during the Children’s access at his house at xxxxxxxxxxxxx, Hong Kong :

(i) The dog, D, will be muzzled;

(ii) No furniture will be placed by railings in or outside the house;

(iii) Windows and doors will be locked and door chains will be engaged;

(iv) The Children will not be allowed on the balcony; and

(v) The full length gate at the side of house will be kept locked.

B. AND UPON  the Petitioner undertaking to the Court and to the Respondent that she will take hair and urine drug tests if and when advised by Dr. Lynette Levy;

C. AND UPON  the Respondent undertaking to the Court and to the Petitioner that he will take hair and urine drug tests if and when advised by Dr. Lynette Levy in relation to exercising the access with the Children provided for in paragraphs 1(a)(ii), (b) and (c) of the Order herein;

D. AND UPON  the Petitioner and the Respondent acknowledging and agreeing with each other that any new or current partner of either of them will, if advised by Dr. Lynette Levy, undertake a hair and urine drug test to ensure that it produces a negative result prior to any staying access or having any responsibility for the children during their respective care of the children;

E. AND UPON the Petitioner and the Respondent acknowledging, agreeing and undertaking to each other and to the Court that they will ensure they do not exceed the legal blood alcohol limit when driving a motor vehicle with the children and that they will ensure that any third party driving a motor vehicle with the children does not exceed the legal blood alcohol limit.

BY CONSENT, IT IS HEREBY ORDERED THAT :

1. The Respondent do have interim access with the children of the family, namely, F, a boy born on xxxxxx, M, a girl, born on xxxxxx, A, a boy, born on xxxxxx and B, a boy, born on xxxxxx (“the Children”) as follows :

a. (i) weekend access in accordance with any recommendations of Dr. Lynette Levy every Saturday from 9 a.m. to approximately 6 p.m. and

(ii) additional weekend access if so agreed between the parties but only in accordance with any recommendations of Dr. Lynette Levy;

b. Subject to the Respondent having leave from work or being able to work from home at such dates :

(i) Christmas holidays in all odd numbered years starting from 2013;

(ii) Easter holidays in all odd numbered years starting in 2013;

(iii) Alternate half-term holidays; and

(iv) Half of the Children’s Summer holidays.

c. One long-weekend holiday before December 2012 for a short-haul holiday within Asia, which is expected to be in October 2012 to coincide with the children’s school holidays;

d. Unlimited Skype and telephone contact and other forms of indirect contact as technology progresses; and

e. Any other access as agreed between the parties.

2.  ………….

3.  ………….”

The Children

7.  The Children in question are 2 sets of twins.  It is common ground the younger twins, A and B, have been diagnosed to suffer from ADHD since they were at the age of 3.  They are now 6 and half years old.

8.  It is for this reason that the Wife issued the ADHD Summons on an urgent basis as medication for the younger twins are recommended but the Husband’s position was that a second medical opinion should be sought before administering medication on A and B. 

The Husband’s Application

9.  The Husband in his 7^th supporting Affidavit to the Access Summons deposed that the insistence on drug testing for himself and his partner M in the Access Order was misconceived.  Though the Order was granted by consent, he had never intended that there should be a series of drug tests on an open ended basis in the words of the Consent Order, namely, “in accordance with any recommendation of Dr. Lynette Levy” and “but only in accordance with any recommendation of Dr. Lynette Levy”. 

10.  The Husband also contended on the wordings of the Access Order where there were numerous requirements imposed upon him by the Wife regarding the safety of the children when visiting his home which led to the children not having visited him since the last Thanksgiving.   He confirmed his home is and was safe for the children. The dog D and other 4 dogs were kept away or closely monitored in an adult’s presence when the children were at his home.  At the hearing, he stated there should be 5 other dogs instead of 4 dogs apart from the dog D.

11.  For visiting access, he believed there is no necessity for his undertakings contained in Paragraphs A to D of the Access Order.

12.  The Husband in his 8^th Affidavit, apart from replying to the Wife’s Affidavit in Opposition by referring to each of the Recitals on undertakings contained in the Access Order, also referred to the Wife sending over the Access Order to the school of the children without his knowledge which is unconscionable and to denigrate him in the eyes of the school authorities.  As to the ADHD issues raised by the Wife, he believed there are better qualified experts in the field than Dr. Hannah Tsang whom the Wife had relied upon.  He stated that ADHD like behaviour can become exacerbated by emotional stress of divorce.  Without access to their father, the children had been caused to suffer significant mental trauma and ADHD could result.  He believed full and unimpeded access will provide an environment for assessing whether medication is the appropriate step to take for the children.  The suggestion of a nanny on assisting at times of access is offensive to him and without merit.  He and his partner Madam M, who has worked as a nanny, are quite capable of managing the children.  The Wife’s contact with Dr. Susan Mistler, a clinical psychologist with whom he is one of her patient, for a psychological report on her own mental state was to build her case against him.

The Wife’s Opposition

13.  The Wife sets out her grounds of opposition in her 9^th Affidavit which I will do not intend to repeat here since this is the Husband’s application for uplifting those undertakings he himself had given to the Court and to the Wife which then embodied in the Access Order.  It is for him to prove his case.  Suffice to say is that the Wife maintains her agreement to the Husband having access in the terms of the Access Order or, as set out in paragraph 59 of her 9^th Affidavit, upon those additional terms set out therein.

Undertakings

14.  I have not been assisted by Counsel on either side as to the law on undertakings or upon any cases and authorities.  However, it is always accepted that undertakings are not to be given lightly; in particular, by parties to the Court and to the opponent in legal proceedings.  On relevant principles, there is no dispute that the court does have jurisdiction to release a party from his or her undertaking which was proved to have been given under mistake (see Mullins v. Howell (1879) 1 Ch D 763, 766 and Cutler v. Wandsworth Stadium Ltd [1945] 1 All ER 103).  Though these are non-matrimonial cases, I believe it equally applies to undertakings given in the matrimonial context.  

15.  Besides, a party who has given undertakings can seek an uplift or release of the undertakings in one or more of the following situations :-

(a)  There has been a material change of circumstances since the undertakings were given which are not foreseeable at the time and which make compliance not feasible;

(b)The subject matter to which the undertakings relate no longer exists which render compliance impossible;

(c)  The party to whom the undertakings were given releases the other party from complying with the undertakings;

(d)The undertakings were obtained through fraud or misrepresentation.

16.  In any event, the question of whether to enforce or discharge an undertaking ultimately is a matter of judicial discretion designed toachieve a fair result (my emphasis) (see Shepherd Homes Ltd v. Sandham [1971] 1 Ch 341). 

17.  Having said, whatever the “fair result” is to be in the present case vis-à-vis the parties must not have displaced or jeopardized the best interests of the children which are always the first and paramount consideration of the Court.  Thus, the two does not necessarily sit happily together or hand in hand.

Best interests of the Children

18.  It is trite that the Court when deciding questions relating to children, the first and paramount consideration to have regard to is the best interests of the children (see s.3(1) of the Guardianship of Minors Ordinance, Cap.13).

19.  In the case of H v.N [2012] 5 HKLRD 498, which is the first case on section 3(1) since the amendment in April 2012 of the statutory provisions whereby the terms “welfare” and “wishes” of the minor were amended to read “best interests” and “views”.  Mr. Justice Poon in his Judgment whilst restating the approach to be taken by the Courts when considering section 3(1) also referred to the term “best interests”.

20.  At paragraphs 24 and 25 of the Judgment, his Lordship said :-

“24. The term ‘best interests’ is not defined. For one thing, it is simply impossible to give an exhaustive statutory definition that embraces every eventuality. More importantly, the flexibility without a statutory definition enables the court to identify and look into all the welfare issues concerning the minor as they arise from the particular circumstances of the case and carefully consider and evaluate all the matters pertaining to those issues.

25. A cursory research of the cases readily shows that the court has given the word ‘welfare’ its widest meaning. Thus, it is not limited to monetary or material needs, the minor’s physical well-being or physical comfort but encompasses medial, moral, religious and emotional issues including his ties of affection and all other welfare issues. The same must be true for the term ‘best interests’ too.”

21.  The Husband’s case as put is that given the children’s love for him and their clear wishes to see him more frequently which has been clearly set out in paragraphs 25 to 28 of the SIR, it would be in the best interests of the children that increased defined access, including staying access, should be implemented as soon as possible.  It would also be in the children’s best interests to remove any potential obstacles such as the opportunity to impose conditions before access can be exercised.  Counsel Miss Remedios for the Husband invited this Court to take a child-focused approach on the access issue.  The children’s best interests call for the Court’s assistance and intervention in this case since there was minimal access since the Access Order was granted.

The SIR Report

22.  The social investigation officer Miss Yeung submitted her Report on the issue of access.  Upon investigation, she stated at paragraph 12 of the Report that access was greatly reduced since January 2013.  She was being told by the Wife that the children had met their Father (i.e. the Respondent Husband) for only about 10 hours in total on several occasions since early 2013 until the end of October 2013.  On the other hand, Miss Yeung was told by the Husband that he only had had access with the children for two times as arranged by the Wife. 

23.  I noticed that at paragraphs 25 to 28 of her Report, Miss Yeung sets out the views of each of the 4 children towards access.  All of them missed their Father and wished to have access more frequent.  They all described Madam M (i.e. Father’s partner) was being nice and kind to them.  

24.  At paragraphs 29 to 32 of her Report, Miss Yeung sets out what she observed during the visits to the parties’ home.  She described the relationship of the children with their Father was observed to be harmonious (at paragraph 29 of the Report).   She described the relationship of the children with their Mother was observed to be intimate (at paragraph 31 of the Report).  Nonetheless, there are 2 incidents which raised concern of this Court about the need for very close supervision over the younger twins, A and B.  In quoting the words of Miss Yeung, I underlined those parts which I believe are important showing the Wife (Mother) is more cautious and attentive than the Husband (Father).   This is, however, not uncommon for reasons of human nature between men and women.

25.  At paragraph 29 of the Report when reciting the visit at the Husband’s/Father’s home, she said :-

“…………Mr. S and Madam M had kept close supervision on the children and conducted most of the activities in the living room. However, when B finished using the toilet, he had once climbed over the small gate which was placed on the way to the second floor without asking the permission of Mr. S while Mr. S was attending to other children on the first floor. When the Investigation Officer called B, Mr. S had chased B to return to the living room. Afterwards, when B went to toilet again, Mr. S had closely monitored him.”

25. At paragraph 32 of the Report when reciting the visit at the Wife’s/Mother’s home, she said :-

“……..It was not easy to settle B who wanted to continue playing and Madam S was effective in assisting him. Before that, B had once taken a small chair and placed in front of the door leading to the garden. He stepped on the small chair and unlocked the lock of that door. He then ran out of the house and was immediately noticed and chased back by Madam S. Madam S had kept close supervision on the children and assisted them on their study…..”

26.  Miss Yeung at her concluding paragraphs which I also recite and underlined below those important sentences :

“35. ………. Both parents were observed to have close relationship

with the children and were caring to them.  They were willing to participate in co-parenting course to assist them to work on the matters relating to the children.”

36.  The access of the father was found to be conducted in a way of having some discrepancies from the undertakings as stated in the Consent Order of 27.8.2012.  Despite of that, the children did not have any injury during the previous access.  Logically, we believed that the father had taken measures to ensure the safety of the children during the access.  With a view that B and A were hyperactive, they had to be kept reminding and educated about the consequence of their behaviours and understood where they were permitted to do their interested activities like climbing in a safe way.  After all, the children needed close supervision from the adult due to their special needs.

38.  Access was important for the children to maintain the parent-child relationship after the parents’ divorce and beneficial for their emotional development.  As the morning access of the father at school on Tuesday and Thursday was smooth and the children enjoyed it, it could be kept remained.  Besides, with a view that the father and the children enjoyed close relationship, the father had arranged a driver to do the driving for the children as far as possible and the father would ensure the safety of the children, access including staying access was supported in principle subject to the dispute relating to the drug status of the father could be settled.  During the present investigation, both parties still held diverse views on the drug status of the father.  Seemingly, if the father was willing to take drug test toascertain his non-drug status randomly in a year, it would be conducive to reduce the mother’s suspicion on him and the conflict of the parents towards the access arrangement could be reduced in the long run. 

39.    Hence, the Investigating Officer recommended the Respondent, Mr. S, to have one hair test to confirm his drug-free status prior to the staying access with the four children, namely, …………..with the detailed arrangement of the access to be worked out between the parents.  Besides, subject to the Court’s directive, random drug tests for a period of time for both parents were suggested to ensure the safety of the children and reduce the conflicts between the parties over the access arrangement.  The parents were encouraged to have an effective communication and co-operation to carry out the access order and also to focus and work together on the needs of the children particularly for B and A.”

27.  Miss Yeung rightly admitted at paragraph 37 of her Report that she was not in any position to comment on whether the dog D should be muzzled during access as she does not possess such expertise.

The Report of Dr. Lynette Levy

28.  I have also considered the Report of Dr. Levy dated 24 August 2012 (at pages 1045 to 1053 of Bundle P4) with particular reference to her views on the Husband’s interim access at pages 6 and 7 of her Report (at pages 1050 to 1051 of the Bundle).  However, I have reminded myself that there had been a lapse of almost 17 months counting to this hearing and at present there is clear evidence before the Court that access between the children and their Father had been minimal.  This is entirely unsatisfactory and unacceptable.  The Court’s role in family cases focuses upon protection of rights and interests rather than fault finding.  It is also important that any determination of the Court should resolve problems the way forward and not hinges upon things in retrospect.

29.  By looking at the Husband’s undertakings embodied in the Access Order and Dr. Levy’s views on interim access, it appears those issues of concern of the Wife on drug tests, muzzling the dog D and safety measures had been encompassed. 

30.  However, given the passage of time and the unsatisfactory access arrangement so far since Dr. Levy’s Report, it remains uncertain whether Dr. Levy would have other views and comments had she been aware of the problem of access between the Father (i.e. Husband) and the children so far and at present. 

31.  Thus, I will be considering only those parts of Dr. Levy’s Report whenever they are still applicable to the present state of play.

Discussion

32.  During the hearing, I have raised with Counsel Miss Remedios for the Husband as to the prejudice to the Husband (if any) if he was to comply with all the undertakings he had given. In respect of the undertaking in Recital A (i) on muzzling the dog and A (ii) to (v) on safety measures, the Husband’s position is that those safety measures had always been in place.  The dog D has been trained and those incidents of bites occurred when D was still a puppy dog.

33.  Recitals B and C touches upon the parties’ respective undertakings to do drug tests in reciprocity if and when advised by Dr. Levy.  The only difference is on the Husband to be a pre-condition in exercise of his access under clauses 1 (a) (ii), (b) and (c) of the Access Order.   Clause 1 (a) (ii) refers to additional weekend access if so agreed between the parties but only in accordance with any recommendations of Dr. Levy.   Such undertaking does not apply to the access under clause 1 (a) (i) which is the usual weekend access every Saturday from 9 a.m. to 6 p.m. although the Husband had not exercised.  The Wife is ready and willing to continue with her undertaking on drug tests.

34.  Recital D touches upon drug tests of any new or current partner of the parties, if advised by Dr. Levy, to undergo hair and urine drug tests prior to any staying access or having any responsibility for caring the children.

Decision

35.  In my decision, special and extra care and precaution is important for the younger twins to cater for their special needs.  This must be in their best interests.  I also casted my mind that in the past 17 months there was not much face to face direct contact between the children and the dog D when familiarity could be established.  Thus, there may be the added danger of the children, in particular, the younger twins of being hurt if D is not muzzled.  Moreover, if the other safety measures under Recital A (ii), (iii), (iv) and (v) had all along been implemented at the Husband’s home, the continuance of those undertakings is neither here nor there.  It merely serves to alleviate the Wife’s concerns and should not be considered by the Husband as an obstacle or condition imposed upon him restricting access.  Thus, my decision is that this entire Recital A should remain in place.

36.  I am not at all convinced by the Husband’s case.  He had not been able to satisfy the Court that his case falls within any one of the 4 situations I quoted in paragraph 15 above or that his undertakings ought to be released on the ground of mistake (Mullins v. Howell and Cutler v. Wandsworth Stadium Ltdsupra).

37.  The Husband’s explanation for providing his undertakings in the Access Order is also unconvincing.  In his 7^th supporting Affidavit at paragraph 2, he deposed that when the Access Order was drafted, there had been considerable correspondences on the subject of access and it was following the drafting that Dr. Levy’s Report was prepared on (i) permanent relocation of the children to Australia with the Wife; (ii) custody, care and control issues; and (iii) interim access to include staying access and introduction of his partner Madam M to the children. 

38.  First of all, as rightly pointed out by Counsel Miss Irving for the Wife, there had been exchange of correspondence between respective lawyers at the time and both of which are reputable law firms in matrimonial practice and also with Counsel assisting behind the scene.  The contents of the Consent Summons was eventually finalised and taken out by the Husband’s then lawyers Messrs. Hampton, Winter & Glynn. The Husband’s explanation cannot stand.  I agree with Miss Irving.

39.  In my decision, taking the Husband’s present contention to the highest that insistence on drug testing was actually misconceived and that drug tests on an open ended basis fall out of his expectation, there is no basis for him to retract and retrieve if at the time he had decided, with the benefit of legal advice, to take chance for his right of access to be in accordance with whatever recommendations that Dr. Levy would make as now appeared in the Consent Summons taken out by his then lawyers, even this was instigated by the Wife (although I made no such finding).  It matters not whether he actually was or was not aware of Dr. Levy’s recommendation when both he and his lawyers decided to sign on the Consent Summons dated 27 August 2012 (which is 3 days after the date of Dr. Levy’s Report) leading to the Access Order.  A wrong decision or error of judgment with hindsight, in my view, does not provide a legal basis for the uplift of or release from undertakings given in legal proceedings.  It is even more difficult if that party was legally represented at the material time. 

40.  The fact that the Husband so far had not exercised any of the usual weekend access under clause 1 (a) (i) supports the Wife’s submission that the Husband is those kind of person who would only do what he wishes and would not honour his commitments.  This can also be seen from the Husband’s own words in his 8^th Affidavit where he said :

“24. I acknowledge that there have been occasions in the past year or more when I have not availed myself of access which the Petitioner has been prepared to offer me. I have not been able to accept her controlling unreasonable attitude and I was not prepared to ‘roll over’ all the time and comply with her demands or rules which has always wanted to prescribe……..”

41.  It is plainly wrong for the Husband to say the Wife engaged in any controlling unreasonable attitude over him whilst the access arrangement was premised upon those undertakings given by him under independent legal advice.  Likewise it is equally wrong for him to say he was being ‘rolled over’ to comply with the Wife’s demand when the Wife was merely seeking his compliance of what he had undertook and agreed.  The Husband is in fact “putting the cart in front of the horse” or “shifting his fault over as other’s fault” so to speak.    

42.  However, given the unsatisfactory access in the past and at present, I am prepared to exercise my discretion to achieve a fair result without jeopardizing the best interests of the children.  The Husband should not be mistaken to believe that he could take the law on his own and not abide by what he had agreed and undertaken.  The Court’s decision now may well be another opportunity for the Husband to show his love and affection towards the children if he is minded to.

43.  Whilst Recitals A and B to remain intact, I decided Husband’s undertaking given under Recital C of the Access Order be released upon the Husband’s new undertakings as follows :-

(a) Produce 1 hair and 1 urine drug test (as 1 combo test) at the costs of the Husband within 7 days from the date of this Decision; and

(b) Participate in another 3 random hair and 3 urine drug tests (as 3 combo tests) at the costs of the Husband and at any time before 15 August 2014, upon not less than 24 hours written notice of request by the Wife.

44.  Dr. Wayne Moran, who had had undertaken tests for the parties previously, be appointed as the single joint expert to undertake all the other drug tests for both parties unless otherwise directed.

45.  There be mutual release of the parties’ undertakings under Recital D in respect of drug tests of the parties’ current or new partner.

46.  Regarding the Husband’s application for unsupervised access on alternate weekends from 9 a.m. on Saturdays until 6 p.m. on Sundays set out in paragraph 2 of his Access Summons, I agree with the Wife at paragraph 57 of her 9^th Affidavit that there being no requirement of supervision in the Access Order.

47.  Since there will be random drug testing, it is the Wife’s position that no supervision is needed.  As a matter of fact, supervision is not provided for in the terms of the Access Order.

48.  Subject to paragraphs 43 to 45 of this Decision, the terms of the Access Order be implemented by the Husband forthwith.   All the other terms of the Access Order remain unchanged.

49.  I also direct that the Husband be responsible for collection and return of the children to the Wife’s home upon the terms of the undertaking contained in Recital E of the Access Order. 

Orders

50.  I grant an Order as per paragraphs 43 to 45 of this Decision in respect of the Access Summons and SJE Summons.  There be no Order as to costs of these Summonses including costs reserved.

51.  This costs order nisi will become absolute unless any party apply to vary the same within 14 days from the date of this Decision.

                            

	(George Own)
	Deputy District Judge

Miss Frances Irving instructed by Messrs. Withers, Solicitors for the Petitioner

Miss Corinne Remedios instructed by Messrs. Haldanes, Solicitors for the  Respondent

FCMC 1637/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NUMBER 1637 OF 2012

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

BETWEEN
	TLS nee J	Petitioner
and
	RCS	Respondent

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

Coram: Before Deputy District Judge G. Own in Chambers

Date of Hearing: 18 October 2013

Date of Decision: 4 November 2013

____________________________

REASONS FOR DECISION
(Section 18 Declaration, Decree Absolute)

____________________________

 

Introduction

1.  This is the Respondent Husband’s (“Husband”) application by way of Summons dated 19 August 2013 seeking the following orders :-

(a)  A declaration pursuant to Section 18(1)(b) of the Matrimonial Proceedings and Property Ordinance be made;

(b)That pursuant to Section 17(2)(a) and (b) of the Matrimonial Causes Ordinance the Decree Nisi granted on 21^st December

2012 be made absolute forthwith.

2.  The Husband’s Summons was issued on 19 August 2013 listed for a 15-minute hearing returnable on 10 September 2013.   The parties filed a Consent Summons on 6 September 2013 seeking an order to vacate the hearing scheduled on 10 September 2013 and half day be reserved for hearing the Husband’s Summons.   A Consent Order was granted by this Court on 9 September 2013, that is, the day before the originally scheduled 10 September 2013 hearing.  There are also directions granted upon the Consent Summons for the Wife to file and serve an Affirmation in Opposition 14 days before the substantive hearing.

3.  On 12 September 2013, this Court arranged today (i.e. 18 October 2013) for a half day hearing.   Thus, the time for the Wife to file her Affirmation in Opposition will be 4 October 2013.

The Wife’s 7^th Affidavit

4.  On 11 October 2013 and without any application for time extension made to this Court, the Wife filed her 7^th Affidavit in Opposition (which consists of 120 paragraphs in 26 pages, 16 exhibits containing mainly mobile text messages exchanged between the parties dating back as early as October 2012 until April 2013.  The Affidavit together with the exhibits comprises 76 pages in total (page 1328 to page 1404 of Bundle P4).

5.  At the hearing, Miss Remedios for the Husband took issue upon the Wife’s late filing and service of her 7^th Affidavit with exhibits without leave and on a Friday (i.e. 11 October 2013) before the long week end (which is from 12 to 14 October 2013) leaving the Husband with only 3 days to consider the Wife’s 7^th Affidavit and exhibits.  Miss Irving for the Wife conceded the absence of leave for the late filing not being 14 days before today’s hearing which the parties had agreed and embodied in a Consent Order.  It was, however, submitted that there being no prejudice to the Husband.  Had the Husband considered being prejudiced for not having had sufficient time to consider the Wife’s 7^th Affidavit, Miss Irving had instructions to seek an adjournment of today’s hearing.  Miss Irving’s submission of adjournment was opposed by Miss Remedios for obvious reasons in light of the nature of the Husband’s present application.  I should add that the Financial Dispute Resolution (FDR) hearing has already been scheduled for 16 December 2013 (which is just 6 weeks ahead).

6.  Some time have been spent by this Court to look into the correspondence between the parties’ lawyers as to the filing of the Wife’s 7^th Affidavit.  There are the following correspondences in Bundle C4 which I extracted below the relevant contents with page references in brackets. Reference to “W” is Withers for the Wife; “H” is Haldanes for the Husband :-

Letter from W to H dated 7 October 2013(at page 1454)

“……..We confirm that we are filing our client’s 7^th affidavit in relation to your client’s Section 18 application which we expect will be filed no later than Wednesday, 9 October 2013 (my emphasis)”

Letter from H to W dated 16 October 2013(at page 1525)

“We write to place on record the fact that your client’s latest affidavit was filed and served out of time which leave us with an inadequate period of time to take full instructions from our client……”

Letter from W to H dated 17 October 2013(at page 1528 to 1529)

“……..

With reference to the filing of our client’s seventh affidavit, you wrote to the court on 11 September 2013 seeking the first available hearing date of the court saying that your client’s application was ‘extremely urgent’ [see 4/1409]. Prior to this we had generally agreed the directions for your client’s application that we would file our client’s affidavit in reply on or before 14 days prior to the hearing [see 4/1388]. The court did grant your request for an urgent hearing as per the court’s letter dated 12 September 2013. Therefore, our client has done her best to accommodate your client’s application as other than the hearing date that has now been allocated by the court of 18 October 2013, the first available date for your client’s application was December [C4/1409]. Our client did not seek to interfere with your client’s request for an earlier listing. It is disingenuous for your client to now make a complaint as to the date of our client’s affidavit evidence.

……

As per our letter dated 7 October 2013 [C4/1453], we had instructions that your client was out of the jurisdiction of Hong Kong 7 October 2013 – 13 October 2013. Your client clearly holds a level of indifference as to whether our client filed her affidavit evidence on these matters or not. If he was expecting our client’s affidavit evidence on 4 October 2013 one would expect he would have remained in Hong Kong to discuss these matters with you and Counsel prior to the hearing.

We understand that your client has had his meeting with Counsel as at Wednesday 16 October 2013 and therefore our client’s affidavit dated 10 October 2013 was clearly in time to be considered in advance of this meeting with counsel and the hearing on 18 October 2013.

We trust there is nothing further in relation to our client’s 7^th Affidavit.  In the event that you will raise any objection as to having that evidence admitted, we ask that you confirm in writing.”

Letter from H to W dated 17 October 2013(at page 1536)

“We respond to your letter of the 17^th October 2013.

The simple fact is that your client was out of time with her 7^th Affidavit.  With respect whether our client was in Hong Kong or not is not relevant to the issue and you can be assured we were in constant touch with our client when he was out of Hong Kong.  Our counsel will raise objection to the late filing.”

7.  It is fair to say the Wife’s 7^th Affidavit came in at a late stage.  Not to cause any prejudice and delay to the parties, I decided to allow the Wife’s 7^th Affidavit and exhibits to be read and considered.  Miss Remedios for the Husband then produced an “Appendix 4” containing the Husband’s response to the Wife’s 7^th Affidavit which was prepared in the form of narrative statement addressing paragraph by paragraph to both the children’s issues and financial issues raised by the Wife in her 7^th Affidavit in opposition.  I also allowed this Appendix 4 to be read and considered. 

8.  Whilst accepting the Wife’s 7^th Affidavit, I have a few observations to make after reading the above correspondence.  First of all, practitioners should always be aware that whenever a time period is fixed by a court order and when it appears that the time cannot be met, in particular it is obtained by way of consent, proper application for time extension should be taken out unless the written consent of the opposite party for time extension is obtained.  The mere fact of notifying the opposite party for the delay without that party positively consenting to the delay would not dispense with the filing of a time Summons.  More importantly, in the absence of a proper Summons or good reasons for not issuing the Summons, that party may be running the risks of not having the indulgence of the Court there and then whereby the client’s interests would be jeopardized.  Secondly, practitioners should always bear in mind to avoid lengthy letters or protracted correspondence when it is plain and obvious that those costs of correspondence are out of proportion to the costs of issuing a Summons, in the present case which is a simple summons for time extension where the costs of which are minimal.

The Husband’s application

9.  The Husband’s Summons are necessarily a 2-fold application, namely :

(a)  Whether a declaration under Section 18 of the Matrimonial Proceedings and Property Ordinance, Cap.192, should be granted notwithstanding the children’s issues, financial or otherwise, have not been fully determined. 

(b)If the answer to (a) is in the affirmative, whether there are any grounds for the       Husband’s application for the decree nisi to be made absolute be granted forthwith.

The Law

10.  Section 17(2) of the Matrimonial Causes Ordinance, Cap.179 (“MCO”), provides :

“(1)………….

(2)(a) Where a decree nisi of divorce has been granted and no application for it to be made absolute is made, then, at any time after the expiration of 3 months from the earliest date on which such an application could have been made, an application for a decree absolute may be made by :-

(i) in a case where the decree nisi was granted on a petition for divorce, the person against whom it was granted; or

(ii)………….

11.  Section 18(1) of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”), provides :-

“(1) The court shall not make absolute a decree of divorce or of nullity of marriage, or make a decree of judicial separation, unless the court, by order, has declared that it is satisfied –

(a) that for the purposes of this section there are no children of the family to whom this section applies, or

(b) that the only children who are or may be children of the family to whom this section applies are the children named in the order and

that :-

(i) arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances; or

(ii) it is impracticable for the party or parties appearing before the court to make any such arrangements; or

(c) that there are circumstances making it desirable that the decree should be made absolute or should be made, as the case may be, without delay notwithstanding that there are or may be children of the family to whom this section applies and that the court is unable to make a declaration in accordance with paragraph (b).

(2) The court shall not make an order declaring that it is satisfied as mentioned in subsection (1)(c) unless it has obtained a satisfactory undertaking from either or both of the parties to bring the question of the arrangements for the children named in the order before the court within a specified time.”

The case law

12.  Miss Remedios for the Husband referred me to the case of Lau Chu alias Lau Kwok Chu v. Lau Tang Su Ping [1989] 2 HKLR 470 and the Practice Direction dated 19 November 1964 in her written Skeleton Submissions.

13.  Miss Irving for the Wife referred me to the case of Wicklerv. Wickler [1998] 2 FLR 326 and the case of Re G (Decree Absolute : Prejudice) [2003] 1 FLR 870 in her written Skeleton Submissions.

The applicable principles

14.  In the case of J v. V [2013] 1 HKLRD 203 which is a Hong Kong case less than a year ago (Judgment Date : 27 November 2012), Hon Poon J having considered various English authorities, including the case of Wickler v. Wickler (supra) cited by Miss Irving, set out the principles governing the Court’s exercise of its discretion whether to grant a decree absolute. 

15.  I find the following paragraphs in the Judgment of His Lordship particularly useful and instructive :-

“15. It is common ground that the court retains a discretion under its

inherent jurisdiction as to whether to make a decree nisi absolute :

Smith v. Smith; Miller-Smith v. Miler-Smith (No.2). I would add that the discretion is unfettered and that as a guiding principle, the court will exercise the discretion in a way that is just in the circumstances to do so…..

19. While the discretion is based on the court’s inherent jurisdiction, the right to a decree absolute is governed by statute. The statutory regime governing the grant of a decree absolute naturally bears on how the discretion should be exercised……

16.  His Lordship went on to consider the statutory provision under Section 15 (5) of the Matrimonial Causes Ordinance, Cap. 179 and the Matrimonial Causes (Decree Absolute) General Order 1973 reducing the period of 3 months to 6 weeks for a decree nisi pronounced on or after 3 July 1973.  His Lordship also considered the procedure under Rule 65 of the Matrimonial Causes Rules for application of decree nisi to be made absolute and the need to file affidavit by the party in whose favour the decree nisi was granted if the application is made over 12 months after the decree nisi accounting for the delay in the application.

17.  His Lordship then went on to say :-

“ 24. In my view, the legislative policy of the statutory regime outlined above is clear. A marriage which has been irretrievably broken down should be brought to an end formally within a reasonable time after the expiration of the Appropriate Period so that, with finality achieved, the parties can leave the failed relationship behind, move on with their life and to remarry if they so wish.

25. Given the legislative policy, a spouse opposing the application to make the decree nisi absolute has to satisfy the court that it is just in the circumstances of the particular case to exercise the discretion to refuse the application. It matters not whether the opposing spouse is the Petitioner or the Respondent. The opposing spouse has to make good the opposition by establishing some special or exceptional circumstances to satisfy the court that it is just to do so.

26. What constitute special or exceptional circumstances must of course depend on the particular facts of the case before the court.

Typically, the opposing spouse relies on the financial prejudice that he/she may suffer if the decree is made absolute before the determination of the ancillary relief.

27. It should, however, be firmly borne in mind that it is the financial prejudice before the determination of the ancillary relief that constitutes a special or exceptional circumstance to persuade the court to refuse to grant a decree absolute. In the absence of any real prejudice, the mere fact that there are ancillary relief proceedings yet to be determined is not a sufficient reason to delay the grant of a decree absolute : Re G (decree absolute : prejudice). Otherwise, the opposing spouse can use the making of a decree absolute as a factor in bargaining for ancillary relief, which is not permissible.

28. Further, even when prejudices are established by the opposing spouse, it is not necessarily conclusive. For, as the facts in Wickler v. Wickler demonstrated, the applying spouse may suffer prejudice if the decree is not made absolute. In such scenario, the guiding principle that the discretion must be exercised in the way that is just in the circumstances to do so requires the court to weigh the respective prejudices suffered by the parties to see where the balance lies. The ultimate task is to ensure that the discretion is exercised as justly as the circumstances of the case require.

29. To recap, the following principles govern the exercise of the discretion whether to grant a decree absolute :

(1) As a guiding principle, the court must exercise the discretion in the way that is just in the circumstances to do so.

(2) The opposing spouse must establish special or exceptional circumstances to satisfy the court that it is just to refuse the grant of a decree absolute.  What constitute special or exceptional circumstances depends on the facts of the case.

(3) When the opposing spouse raises financial prejudice before determination of the ancillary relief as a special or exceptional circumstance, he/she must prove that the prejudice as alleged is real, failing which the mere fact that the ancillary relief is yet to be determined is not sufficient.

(4) When the opposing spouse would suffer prejudice if a decree absolute is granted and the applying spouse would suffer prejudice if the decree is not granted, the court will balance the respective prejudices to see where the balance lies, always  bearing in mind that the ultimate task is to exercise the discretion  as justly as the circumstances of the case require.”

18.  With these principles and guidance laid down by His Lordship, I will now consider first the Wife’s opposition to the grant of the Section 18 declaration followed by the Husband’s application for the decree absolute to be granted forthwith.  Needless to say, if the Wife succeeds on her opposition that the Section 18 declaration should not be granted, the Husband’s application would fall out of consideration.

The Wife’s Opposition

19.  The Wife in her 26-page 7^th Affidavit sets out under different headings on matters outstanding which at present remain unresolved.   Those headings are :-

(a) Current state of the proceedings;

(b) Children’s matters;

(c) The four children of the family;

(d) Interim access with the Respondent;

(e) Permanent removal;

(f) Summary on children’s issues;

(g) Financial disclosure;

(h) Compliance with the interim maintenance order;

(i) Efforts to obtain a primary home for the children;

(j) The Respondent’s ill-will towards me;

(k) Miss M’s expenses;

(l) My health;

(m) My efforts at seeking to resolve all matters with the  Respondent.

20.  Without venturing into each and every detail sets out in the Wife’s 7^th Affidavit, it is fair to say the Wife’s contentions rest upon financial issues over herself and the four children of the family, the Husband’s stance on financial disclosure in the ancillary relief proceedings, the Husband’s compliance with interim maintenance order, the Husband’s exercise of interim access over the children, the Husband’s ill-will towards her and her health.  In a gist, Miss Remedios in her Skeleton Submissions categorised the Wife’s opposition into :

(i) Financial Issues;

(ii) Children Issues   

21.  In essence, the Wife is contending that there are prejudices to her and the children if the Section 18 declaration is to be granted at this stage.   It is submitted that at present the Court should not be satisfied that arrangements for the welfare of the children have been made and are satisfactory or are the best that can be devised in the circumstances (see section 18 (1)(b)(i) of the MPPO, Cap.192 (supra)). 

22.  The question thus to be asked is what arrangements, if any, are there at present for the welfare of the 4 children of the family and whether those arrangements are satisfactory per se or are the best that can be devised in the circumstances before the Court ?

23.  The 4 children are two sets of twins of the age of 6 and 7 under the care and control of the Wife, who is a stay at home mother and a Chartered Accountant by profession.  Interim access had been agreed upon various undertakings and embodied in a Consent Order dated 27 August 2012, which is about 14 months ago.  Once there had been a plan for permanent relocation of the Wife with the 4 children to Australia at the conclusion of their Hong Kong 2012/13 school year.  The Husband had confirmed his agreement for leave to be given to the Wife on permanent location of the 4 children and such confirmation was embodied in a Consent Order dated 6 December 2012, which is about 2 weeks in advance of the Decree Nisi dated 21 December 2012.  Although no Consent Summons on such relocation had ever been signed so far, Miss Remedios at this hearing confirmed the Husband’s position was and still remain the same to consent to the Wife’s relocation with the 4 children of the family to Australia.  It is submitted that it was the Wife who had not relocated as per her original plan.

24.  The Wife complained that the Husband had only spent 10 hours of access so far in 2013 over the 4 children notwithstanding that there are agreed generous access terms for him.  In his 7^th Affidavit, the Husband referred to the access arrangement was drafted and agreed by him at the time when the Report of Dr. Lynette Levy dated 24 August 2012 was obtained over the 4 children’s care arrangements relating to their permanent removal, custody, care and control issues and his interim access including staying access and introduction of his partner Miss M to the children.  It was against those background that he agreed to the access terms.  The Husband stated his position that the insistence of drug testing for both himself and his partner Miss M was misconceived and he had never intended the drug tests on an open ended basis as stated in the wordings of the undertaking within the said Consent Order dated 27 August 2012. 

25.  At the time of this hearing, custody and access (except interim access) have not been resolved by any Court Order.  Miss Remedios drew the Court’s attention that children’s access is a matter which may be changed from time to time.  The issue of access being under discussion or need to be resolved in due course before this Court is not a reason for refusing the section 18 declaration.  As to custody, the parties have all along been asking for joint custody and it is only recently that the Wife indicated in her Affidavit that she might be seeking sole custody.   Miss Irving, in her submissions, referred to the Husband refusing to comply with his undertakings on hair and urine drug testing.  As a result, the Husband has not had the children on over-night access and so far only minimal access had taken place.

26.  First of all, I am not convinced custody is a live issue on the evidence before me.  At paragraph 16 of the Wife’s 7^th Affidavit (at page 1330 of Bundle P4), she referred to a letter dated 28 March 2013 (this letter at page 765 of Bundle C3) where she requested for interim sole custody of the 4 children be given to her to which no response was received so far from the Husband.  She then went on to say as follows in paragraph 16 of her 7^th Affidavit :

“………….For reasons explained in more detail herein below it might be that I do ultimately file a Summons seeking sole custody (my emphasis) of the four children of the family in these proceedings. I have not yet done so (my emphasis).”

27.  As a matter of fact, no Summons for sole custody had ever been taken out for the past 7 months up until now since this letter of 28 March 2013.  In the absence of full explanation for not so doing, it supports a reasonable inference to be drawn that sole custody does not happen to occur to the Wife as a live issue.  The Summons for sole custody was not issued even at the time when the Wife encountered all those problems with the Husband over children’s matter which she now stated in her 7^th Affidavit.  With the benefit of full legal advice, she still had not done so.  Considering objectively, I believe the intended claim for sole custody now appearing in the 7^th Affidavit is, if I may be excused for using the word, a ‘threat’ as opposed to a ‘genuine intent’ put forward by the Wife.  It is thus my finding that there being no outstanding live issue on custody as the Wife now relied upon as one of her grounds of opposition to the Husband’s application for the Section 18 declaration.    

28.  As regards access, I accept Miss Remedios’s submission that access over children, defined or otherwise, is always a matter subject to changes and variation and could not said to be ‘finally settled or resolved’.  In the present case, there is already an interim access order of this Court.  I also accept Miss Remedios’s submission the fact that interim access arrangement would have to be explored further through negotiation or litigation should not stop a decree absolute to be granted.  The other fact that the interim access arrangement had not been fully implemented by the Husband would, in my decision, only be a matter for consideration at the access trial since there might be various reasons for the non-implementation.  The Court then would have to consider whether such interim access should continue.  It is also noted that the present interim access order was granted merely upon the parties’ consent without any investigation or intervention of the Court as to the appropriateness or suitability.  With these considerations in mind, I believe the Wife’s contention over the parties’ agreed access arrangement scarcely exercised by the Husband does not assist her case of opposition to any extent.

29.  Now I will deal with the Wife’s contention over the Husband’s stance on financial disclosure in these ancillary relief proceedings.  At paragraphs 52 to 64 of the Wife’s 7^th Affidavit, she referred to instances of her Questionaires not being answered or fully answered, her requests for information treated with ridicule and sarcastic responses, her requests for production of documents was left unattended and the Husband’s non disclosure of assets which he disposed of. 

30.  Miss Remedios submitted that the real issue before this Court, in so far as to whether a Section 18 declaration should be granted, rests upon whether the Court could be satisfied that arrangements for the children’s welfare having been made and are satisfactory.  I agree with Miss Remedios.  Putting the Wife’s case to the highest, if I may, the contention on the Husband’s stance on financial disclosure would only succeed in preventing the Court from making the Section 18 declaration if the disclosure, if not fully complied with, would have an impact over the welfare, financial or otherwise, of the 4 children in question.

31.  Parties have entered into a Consent Summons dated 22 April 2013 signed by the Husband, the Wife, their respective lawyers and filed with this Court on even date (at pages 1095 to 1099 of Bundle P4).  On 24 April 2013, the learned Deputy Judge S. Lo made the following order  :-

“Parties to jointly report to the court any outstanding  matters to be dealt with at hearing on 30.4.2013”

32.  On 29 April 2013, parties submitted a joint letter stating :-

“…….

We confirm that the parties have remained in solicitors round table negotiations. The parties wish to adjourn the 1^st Appointment Call Over to allow this to continue. We enclose a Consent Summons which has been entered into by the parties’ solicitors. We ask that this be made in Order in terms.        ……….”

33.  On 30 April 2013, the learned Deputy Judge S. Lo made the following orders :-

“1. Order in terms;

2. 1^st Appointment called over be adjourned to 31.7.2013  at 9:30 a.m. at Court 3”

34.  At the hearing on 31 July 2013, I granted an Order in terms of the Consent Summons dated 22 April 2013 with other directions on further conduct of these proceedings.  It is unfortunate that at the time of this Decision, my Order granted upon the said Consent Summons had still not been sealed and perfected.  This may perhaps explain for the said Consent Summons alone been included in the hearing Bundle P4 without the actual sealed Court Order anywhere in the Bundle.

35.  There are comprehensive cross undertakings by both parties under the said Consent Summons dated 22 April 2013 on preservation of family assets including proceeds of sale of overseas properties.  In addition, there are various agreements and acknowledgement by the parties touching upon assets either in possession or having been disposed of. 

36.  Prior to this Consent Summons and back to 21 September 2012, there was another Consent Order granted by me covering interim maintenance for the 4 children of the family along with undertaking of the Husband towards payment of the children’s school fees and school bus expenses. 

37.  Taking into account of the above, the Wife’s present contention that the welfare of the children had not been made or are not satisfactory as a ground to oppose the Section 18 declaration cannot succeed.  There had been financial arrangement for the children all along both in terms of education expenses and living costs.  There are substantial family assets which had also been secured by way of parties’ cross undertakings by consent which I will deal with further at the following paragraphs of this Decision when I come to the topic of the parties’ assets and cross undertakings over the family assets.     

38.  As to the Wife’s contention over the Husband’s compliance with interim maintenance order, she sets out the dates of payment at paragraph 65 of her 7^th Affidavit.  I accept there are delays and one of which is 7 days late with others varying between 2 to 4 days.  The extent of delay is not substantial though this is not to be encouraged.   There are also contentions at paragraph 66 of her 7^th Affidavit on the Husband’s lateness in meeting school fees which he had undertaken to pay.  Given the shortness of time to respond to the Wife’s 7^th Affidavit, the Husband was only able to provide the Appendix 4 to answer to the Wife’s contention.  The Husband’s answer to the lateness of paying school fees was that it should not be of much concern to complain as the Wife has assets in excess of 12 million.  I do not accept such answer of the Husband.  The Husband should have performed his undertakings to the fullest extent.   Non performance of undertakings would end up with severe sanctions.  However, breach of undertakings might lead to contempt proceedings which are not compatible to say that there being no arrangements made for the children’s welfare.  There are arrangements but unfortunately not being carried out to the fullest extent.  The Husband’s undertaking to pay school fees and school bus expenses per se must be arrangement cater for the welfare of the children.  Non performance of the undertakings is a matter for enforcement rather than  a ground for refusing the Section 18 declaration.

39.  The Wife’s contention over the Husband’s ill-will towards her could only be accepted as a legitimate ground of opposition to the grant of the Section 18 declaration if it can be shown that such conduct, if sufficiently proved by evidence to be ill-will conduct, have an impact over the future welfare of the children in question.  The veracities of those matters against the Husband as set out from paragraphs 87 to 101 of the Wife’s 7^th Affidavit might have to be tested and proved by evidence.  In any event, even if successfully proved, those are conduct in retrospect rather than in anticipation to be supportive of there being no satisfactory arrangement for the children’s welfare and hence the Section 18 declaration should not be granted.  As to those matters set out in paragraphs 102 to 103 of her 7^th Affidavit, these are considerations relating to the sufficiency of the Wife’s interim maintenance sum rather than whether the Section 18 declaration over the children should be granted.  I am not at all convinced such contention would assist the Wife’s case of opposition.

40.  The Wife’s other contention related to her personal health. In my decision, this could only be a ground of opposition if it can be shown the arrangements up until present, given the Wife’s alleged health condition but who is still having the de facto and day to day care and control of the 4 children, are not the best that can be devised in the circumstances.  There is no such evidence or contention from the Husband nor is this the Wife’s case at all.   

Any financial prejudices suffered by the Wife ?

41.  Now I will turn on to consider whether there are any financial prejudices over the Wife.  

42.  Miss Remedios in her Appendix 3 attached to her Skeleton Submissions sets out a schedule of assets and liabilities of both the Wife and the Husband.  The schedule shows the total net asset value of the Wife is about 12.5 million, and that of the Husband is about 31.8 million.  Thus the total net asset value amount to approximately 44.3 million.  Miss Irving took no issue on these figures.

43.  Further, at paragraph 23 of her Skeleton Submissions, Miss Remedios referred to the cross undertakings of the parties in respect of which 18.8 million had been preserved by the Husband out of his 31.8 million; and that 10.88 million had been preserved by the Wife out of her 12.5 million.  Thus the total asset value preserved under the respective cross undertakings amount to some 29.68 million, which is approximately two-thirds (i.e. 67 %) of the total net asset value of 44.3 million.  Again Miss Irving took no issue on these undertakings and figures.

44.  Taking into consideration the sizeable value and percentage of assets being preserved by the cross undertakings, I am satisfied that the requirement under Section 18(1)(b)(i) of the MPPO, namely, arrangements for the children’s welfare have been made and are satisfactory.  It is also my decision that these are the best arrangements that can be devised in the circumstances.  The Section 18 declaration will be granted.

Section 18 (1)(c) of the MPPO

45.  Now I will deal with the Husband’s alternative submission for the declaration to be granted under Section 18(1)(c) of the MPPO.  The rationale behind is that the Husband wishes to marry his partner Miss M who is due to give birth to his child between 17 March 2014 and 21 March 2014.  Miss M is currently 18 weeks pregnant.  The Husband and Miss M is in committed relationship and it is hoped that the child is born within wedlock.  Moreover, the Husband in his supporting 6^th Affidavit deposed to his wish to formalise his relationship with Miss M.

46.  Should the Court be minded to consider the declaration under Section 18(1)(c) as opposed to Section 18(1)(b)(i), Miss Remedios submitted that the Husband is agreeable to give an undertaking under Section 18(2) of the Ordinance to make immediate payment of 5 million into Court. 

47.  Miss Irving for the Wife submitted that the Husband’s rationale could be easily overcome by an application under the Guardianship of Minors Ordinance, Cap.13, had the child been born out of the wedlock.   It was further submitted that Miss M should have known she was having a relationship with a married man and to have the baby is a decided choice.  The interests of the 4 children in these proceedings simply should not give way to the Husband’s rationale and position.  

48.  In my decision, it is not necessary to consider this alternative submission for my decision under paragraph 44 above to grant the declaration under Section 18(1)(b)(i) of the Ordinance.  The simple reason is that Section 18(1)(b)(i) or (ii) and Section 18(1)(c) are in alternative and not cumulative.  Section 18(1)(c) only comes in for consideration when the Court is unable to make a declaration under Section 18(1)(b)(i) or (ii).   This is not the case here.  It follows that the Husband’s offer of 5 million as undertaking under Section 18(2) would fall out of consideration for the inapplicability of Section 18(1)(c).    

49.  For the sake of completeness without affecting my decision in paragraph 44 above, I am prepared to say the Husband’s circumstances are desirable for the decree to be made absolute.  Reason being that at paragraphs 24 and 25 of the Judgment in J v. V (supra), His Lordship had already referred to the legislative policy of the statutory regime on decree nisi to be made absolute is to let a failed marriage to be brought to an end formally within a reasonable time so that the parties can move on their life and to remarry if they so wish.  This is exactly the case here.  His Lordship also stated that it matters not whether the opposing spouse is the Petitioner or the Respondent, he or she has to establish some special or exceptional circumstances (my emphasis) to satisfy the Court it is just not to allow the decree nisi to be made absolute.

50.  With these guidance, it now brings me to consider whether the Wife is able to show any special or exceptional circumstances.

Any special or exceptional circumstances established by the Wife ?

51.  Taking into consideration the evidence of the Wife, in particular the sizeable value of assets secured under the respective cross undertakings, I am not satisfied that a case of special or exceptional circumstances was established by the Wife.  There is also insufficient evidence for me to make any finding that the Wife would suffer any real (my emphasis) financial prejudices if the decree nisi is to be made absolute at this stage. 

52.  I will exercise my discretion in favour of the Husband.  

Should the decree absolute be expedited?

53.  On the available evidence at present and considering all the circumstances of this case, I am satisfied that it is desirable for the decree nisi pronounced on 21 December 2012, which is over 10 months ago, to be made absolute forthwith. 

Costs

54.  On the question of costs, I am unable to find any basis for departing from the normal rule of litigation for costs to follow the event.  Accordingly, I order the Petitioner to pay the Respondent’s costs, including all costs reserved to be taxed if not agreed, with Certificate for Counsel.    

Orders

55.  I now make the following Orders :-

(a)   There be a Section 18 declaration under the Matrimonial  Proceedings and Property Ordinance, Cap.192;

(b) The Respondent (Husband) do have leave to apply for the Decree Nisi pronounced on 21 December 2012 to be made   absolute under Section 17 of the Matrimonial Causes Ordinance,     Cap.179;

(c)   The Decree Absolute to be expedited;

(d)   The Petitioner do pay the costs of and occasioned by the    Respondent’s Summons dated 18 August 2013 to be taxed if not agreed, including all costs reserved;

(e)   There be Certificate for Counsel.

56.  This costs order nisi will become absolute unless any party apply to vary the same within 14 days from the date of this Decision.

                        

	(George Own)
	Deputy District Judge

Miss Frances Irving instructed by Messrs. Withers, Solicitors for the Petitioner

Miss Corinne Remedios instructed by Messrs. Haldanes, Solicitors for the  Respondent