NLT v. LYKJ

FCMC 8680/2012

[2020] HKFC 97

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 8680 OF 2012

________________________

________________________

________________________

R U L I N G

(Release of funds)

________________________

Introduction

1.  This is the Petitioner’s summons dated the 19 December 2019 as follows:

A.  Pursuant to the Order made by H.H. Judge Melloy on 8 June 2018, in which the Respondent undertakes to the Petitioner and the Court that half of the proceeds of sale of the RG Property, i.e. a Sum of HK$3,064,000 be paid to Lily Fenn & Partners, Solicitors for the Respondent as stakehold money (‘the Stakehold Money’) and such sum shall not be released to any party until further order by the Court

1.   Leave be. granted for the Petitioner to make an interim payment out of the Stakehold Money to meet the monthly maintenance payable to the two children of the family and the Petitioner in the sum of HK$59,000 per month commencing from 1^st March 2020 until further order by the Court;

2.   The aforesaid payment out shall not prejudice to the final adjustment at the trial hearing of the ancillary relief; and

3.   Costs of this application be to the Petitioner and the Petitioner’s own costs be taxed in accordance with Legal Aid Regulations.

2.  The application was originally set down for hearing on the 25 March 2020 at 2:30 pm. Unfortunately, however, this hearing was caught by the General Adjournment of Court Proceedings [the GAP] arising out of the global pandemic caused by COVI-19 and as a result it was determined that this matter should be decided by way of a paper disposal.    

Background

3.  This case has a long and very protracted history covering a period of over 7 years and includes a trial on a defended suit, several hearings with respect to interim financial support, a trial with respect to the final arrangements for the children, which followed several Children Dispute Resolution hearings and other miscellaneous hearings including applications for leave to appeal. As things stand the decree nisi was granted on the 25 October 2013 and the parties also have an order for joint custody of the two children of the family, with care and control to the Petitioner mother and reasonable access to the Respondent father as set out in the judgment dated the 3 November 2016. Of late the focus has shifted to final ancillary relief and to that end reference should also be made to this court’s most recent Ruling dated the 23 March 2020 on joinder and transfer up. In summary the court joined three small companies to this litigation and dismissed the husband’s application to transfer the matter up to the High Court. There are several issues to now be determined including a preliminary issues matter and it is anticipated that it could be some time before there is a judgment on final ancillary relief. It is therefore imperative that the mother and children are properly supported from a financial perspective in the interim.

Discussion

4.  I should say at the outset that I intend to make an order in terms of the wife’s summons as set out above. The husband’s main argument in opposition is that the Stake hold money is question relates to a property that was originally pre-marital and as such it should be excluded from any potential “matrimonial pot” and in particular it should not be relied upon now to support the wife and children in the short term. The husband makes no other proposals for payment of the ordered amount of HK$59,000 per month or for supporting the wife and children otherwise. Further he says that he has difficulty making ends meet and that he needs access to these funds in order to pay his legal bills.

5.  In so far as the law is concerned, reference has been made by the solicitors for the husband to a judgment from this court where the issue of pre-marital assets was discussed in the context of final ancillary relief. The case in question is WT v YLC, [2018] HKFC 38. In that case I referred to the law and stated as follows:       

In addition, both sides have referred me to the relevant sections of LKW v DD, which sets out the appropriate approach to be taken when determining whether or not to depart from the yard stick of equality. Mr Justice Ribeiro PJ discusses the various alternatives when dealing with part 4 of his protocol. Reference should be made to paragraphs 86 – 98 of the judgment for a full discussion of the topic. In so far as pre-marital assets are concerned, paragraphs 90 – 93 are particularly pertinent.

E.5.a.i  Assets independently acquired

90.  In White v White, Lord Nicholls gave as examples of assets within this class, “property acquired during the marriage by one spouse by gift or succession or as a beneficiary under a trust” and “property acquired before the marriage”.[1] 

91.  He made it clear, however, that there is no hard and fast rule as to whether such property should be excluded. It is very much a matter within the judge’s discretion to be exercised taking account of all the circumstances of the particular case:

“... when present, this factor is one of the circumstances of the case. It represents a contribution made to the welfare of the family by one of the parties to the marriage. The judge should take it into account. He should decide how important it is in the particular case. The nature and value of the property, and the time when and circumstances in which the property was acquired, are among the relevant matters to be considered.”[2]

92.  However, an important factor which comes into play is the duration of the marriage, the factor mentioned in section 7(1)(d).  As Baroness Hale[3] pointed out, “the importance of the source of the assets will diminish over time”.  Her Ladyship explained:

“As the family's personal and financial interdependence grows, it becomes harder and harder to disentangle what came from where.”[4]

93.  So where it is a short marriage, the court may well be inclined to regard as excludable non-matrimonial property, assets acquired by one of the parties before the marriage or acquired in the course of the marriage from some wholly external source.  But after a long marriage, those factors are likely to have much less weight.  Thus, in White v White itself, Mr White had benefited from an initial cash contribution made by his father but, as Lord Nicholls commented, that could not carry much weight 33 years later.[5]

6.  In this instance the parties married on the 16 May 2004 and initially separated in May 2009. They then resided under the same roof from May 2011, but they did not reconcile. The following year, in June 2012, the Petitioner wife issued the petition for divorce and the decree nisi was eventually pronounced in October 2013. It is then in these circumstances that the court will eventually need to consider whether or not the RG property can properly be regarded as a pre-marital asset. Even then it is with respect, very clear from the paragraphs above that although a court may justify a departure from an equal division of property, in a prima facie “sharing” case, because a property was infact pre-marital, there are no hard and fast rules and whether this is an appropriate course of action will very much depend on the circumstances of each individual case. In addition, this approach is less likely to be taken where there is simply not enough money to go around and the court is approaching the division of assets on the basis of need. Further even if a property is regarded as pre-marital it does not necessarily follow that it will be excluded from the “matrimonial pot” as of right.

7.  In this instance, the wife has been receiving maintenance from funds originally paid into court, being the net proceeds of sale from a property where there could be no argument that the monies in question were “matrimonial”. I am told that these monies were all used up by the end of March 2020. The wife and children must be supported pending the conclusion of these proceedings. Given the lack of any other alternative therefore an order shall be made in terms of paragraphs 1 and 2 of the summons referred to in paragraph 1 above.  

Costs

8.  Again I can see no reason why costs should not follow the event in the normal way. Consequently, there shall be an order nisi to be made absolute in 28 days’ time, that the Respondent husband shall pay the Petitioner wife the costs of and arising out of her summons referred to above on a party and party basis to be taxed if not agreed.     

Further directions

9.  As indicated in the Ruling dated the 23 March 2020, I shall further order and direct that

i)  The First Appointment hearing and callover in relation to the joinder application shall be adjourned to the 27 August 2020 at 9:30 am.

ii)  Both parties do personally attend that hearing. Further a representative from ZT Limited, P Asset Management Limited and JG Limited shall also be invited to attend that hearing.  

FCMC 8680/2012

[2020] HKFC 75

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 8680 OF 2012

________________________

________________________

________________________

R U L I N G

(Joinder and transfer up)

________________________

Introduction

1.  There are two applications currently before me which now require adjudication. Firstly, there is an application by the Petitioner wife dated the 31 January 2018, to join certain small corporate entities to the ancillary relief proceedings (i.e. the joinder summons). The joinder summons states as follows:

1.   leave be granted to join (i) ZT Limited as the 2nd Respondent, (ii) P Asset Management Limited as the 3^rd Respondent, and (iii) JG Limited as the 4^th Respondent; for the purposes of determining the preliminary issue of the beneficial owner of the following properties:

(a) Flat X, X^th Floor, Ellery Terrace, No.38 Good Shepherd Street, Kowloon, Hong Kong, registered in the name of the 1^st Respondent;

(b)  Portion X of X/F, Hung Hom Mansion, Nos. 46, 46A, 48, 50, 52, 54, 56 and 56A Wuhu Street Kowloon, Hong Kong, registered in the name of the 3rd Intended Respondent;

(c) X Floor, Hung Hom Mansion, Nos.46, 46A, 48, 50, 52, 54, 56 and 56A Wuhu Street, Kowloon, Hong Kong, registered in the name of the 3^rd Intended Respondent;

(d) Car Parking Space No. X on X Floor, Ellery Terrace, No.38 Good Shepherd Street, Kowloon, Hong Kong registered in the name of the Intended 3^rd Respondent; and

(e) Roof (No.XX Wuhu Street), X Mansion, Nos.XX, XXA, XX, XX, XX, XX, XX and XXA Wuhu Street, Kowloon, Hong Kong, registered in the name of Intended 4^th Respondent.

2.  In addition, the Respondent husband seeks to transfer the ancillary relief proceedings up to the High Court by virtue of his summons dated the 9 October 2019 (i.e. the transfer up summons). A third summons originally issued by the husband on the 13 November 2017, seeking to stay the matrimonial proceedings (i.e. the stay summons) pending the determination of three High Court actions, is now largely moot and I accept that this summons should now be dismissed. I shall refer to the issue of costs below.     

Background

3.  This case has a long and very protracted history, which I do not intend to go into here. However, it is of note that this hearing was delayed following what was essentially a case management decision by myself on the 17 May 2019 in which I granted the wife leave to be released from her implied undertaking in that she be permitted to use or disclose information, documents and/or materials from the matrimonial proceedings in three High Court actions, all of which were dated the 7 November 2017 and all of which involve the three entities that the wife now seeks to join to these proceedings. The husband sought leave to appeal my decision, which was dismissed on the 26 June 2019. The husband then took the matter up to the Court of Appeal itself. There was a hearing on the 16 August 2019 and a short judgment was subsequently handed down on the 22 January 2020. The husband’s application for leave to appeal was also dismissed by the Court of Appeal. It is of note that the Court of Appeal also provided the parties with some helpful guidance on the proper way to proceed and reiterated that in their view “it would be plainly wrong for these matters to be litigated in different courts”.          

4.  During this current hearing I was also informed that at the Order 14 hearings on the 7 January 2019 in the High Court, the wife had been given unconditional leave to defend all three High Court actions and that she had subsequently issued applications for all three actions to be stayed pending the conclusion of these proceedings. There was a further hearing scheduled in the High Court in January 2020 in that respect, but I do not know the outcome of that hearing.      

Joinder

The law

5.  Turning first to the joinder summons. An application for joinder is made pursuant to Order 15 rule 6. In particular, Order 15 rule 6 (1) states that:

Misjoinder and nonjoinder of parties (O.15,r.6)

6. - (1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

6.  Order 15 rule 6 (2) (b) also adds that:

Subject to the provision of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application ––

(a) …

(b) order any of the following persons to be added as a party, namely-

(i)   any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

7.  Mr Eric Leung for the wife also took me to the commentary from the White Book at 15/6/1 which elaborates upon these themes as follows:

This rule prevents an action being defeated by the misjoinder or nonjoinder of parties, and it provides for any necessary amendment in respect of the parties to an action being made at any stage of the proceedings … This rule should be construed so as to bring all parties to disputes relating to one subject-matter before the court at the same time so that the disputes may be determined without the delay, inconvenience and expenses of separate actions and trials … A liberal application should be given to O.15, r.6, particularly in the aftermath of the Civil Justice Reform, so as to ensure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of legal proceedings with respect to any of those matters is avoided…

Furthermore, on whether a new party should be joined, the test is whether there is a bona fide claim and a proper question to be tried as between the plaintiff and the intended defendant that is necessary or just and convenient for resolution between them as well as between the plaintiff and the defendant in the present proceedings…

8.  In addition, it is accepted by both sides that the correct approach to matters of this nature was originally set out by Mostyn J in Fisher Meredith v JH and PH (Financial Remedy: Appeal: Wasted Costs) [2010] 2 FLR 536. This approach has also been recently approved by our own Court of Appeal in LLC v LMWA [2019] 2 HKLRD 529, where Lam J said that generally speaking it was not necessary to join a third party unless there was a request for a particular order to be made against him or her. In that judgment Lam J stated inter alia as follows:

[25] Further, even in cases where a spouse seeks a proprietary order in respect of the disputed property, the third party must be involved only if he or she has a competing claim to that property. In this respect, there is a difference between cases where the third party is the legal owner or one of the legal owners of the disputed property and cases where a spouse claims that the third party has a beneficial interest in a property legally held under the name of that spouse. In the former case, the third party should be joined as a party since the legal title of the disputed property would have to be transferred or subject to encumbrance if the ownership issue is resolved by the making of a proprietary order. In the latter case, the third party should be notified of the claim and if he or she decides to contest the ownership issue, he or she should apply to be joined as party to the proceedings. If the third party does not apply to be joined, he or she shall be bound by the judgment: see Order 15 Rule 13A (4) of the Rules of the High Court, applicable by virtue of Rule 3 of the Matrimonial Causes Rules.

9.  The difficulty in this case is that the situation is not at all clear cut and it seems to me that the High Court actions have only served to muddy the waters further. 

10.  In essence, it is the wife’s case, that all of the properties in dispute are matrimonial properties and that as such they should prima facie be included in the matrimonial pot for distribution. She believes that the present High Court actions are in effect little more than a sham designed to remove these properties from that matrimonial pot and to put them beyond her reach by “pretending” that they belonged to the husband’s recently deceased’s mother. To that end she notes that shares in ZT Limited were originally legally held by the husband’s mother who had dementia before she passed away in 2017 and that these shares are now in probate. It is the wife’s case that the husband is the true beneficial owner of those shares and that the ZT Limited was originally placed in the husband’s mother’s name for tax reasons. She further notes that all of the High Court actions are undefended and that had she not stepped, in orders would have been made in terms. As things stand the legal ownership of the properties in dispute are as follows:  

SCHEDULE

Description of property	Registered owner(s) in the Land Registry	Shareholders in the record of the Companies Registry
1)  Flat X, Xth Floor, Ellery Terrace, No. 38 Good Shepherd Street, Ho Man Tin, Kowloon, Hong Kong.	LYKJ (the Respondent)	Not applicable.
2)  Flat X, X Floor, Block X, Rhythm Garden, 242 Choi Hung Road, Kowloon	LYKJ (the Respondent) and his mother Madam LMT	Not applicable.
3)  Flat No. X (No. 52 Wuhu Street), Xth Floor, Hung Hom Mansion, Kowloon	LYKJ (the Respondent)	Not applicable.
4)  Roof (No. XX Wuhu Street), Xth Floor, Hung Hom Mansion, Kowloon	JG Limited (‘JGL’)	The Respondent is the sole shareholder of JGL.
5)  Portion X, X Floor, Hung Hom Mansion, Kowloon.	P Asset Limited (‘PAL’)	The Respondent is the sole shareholder of PAL.
6)  X Floor, Hung Hom Mansion, Kowloon.	P Asset Limited	The Respondent is the sole shareholder of PAL.
7)  Car Parking Space No. X on X Floor, Ellery Terrace, No. 38 Shepherd Street, Ho Mun Tin, Kowloon, Hong Kong	P Asset Limited	The Respondent is the sole shareholder of PAL.

11.  It is the husband’s case that his mother was indeed the legal and beneficial owner of all of the properties in issue, that these were held by his mother using different legal vehicles and that he did not defend the High Court actions because he knew that he “did not own any beneficial interest in the Properties”.  He added at paragraph 12 9iv) of his 18^th affidavit dated the 27 June 2018 that

Infact, P, JG and I agreed to hold the respective Properties registered in our names on trust wholly for the benefit of ZT, which is a company owned by Ms L (his mother) at that time.     

12.  One of the difficulties here is that the husband’s case has changed over time. Originally he said that he fully owned all of the properties in dispute 100%. He then changed his position and said that he owned 50% and his mother also held a 50% share in the properties. Latterly he has changed his position again and he now says that the properties are 100% owned by ZT Limited, which in turn was wholly owned by his recently deceased mother.   

13.  Thus, there are significant issues here with respect to fact and credibility and it follows that the more likely route is that the matter will need to proceed to a preliminary issues trial so that the trial judge is able to hear from both sides in the witness box.

Decision

14.  In conclusion then, although this application falls more into the second category of cases identified initially in Fisher Meredith, nevertheless given the 3 High Court actions I agree that it is prudent to join the three intended Respondent’s to these proceedings, so that all interested parties may be given an opportunity to participate in the family litigation process. I also agree that the matter should be dealt with by one court and as will be seen I agree that this should be the Family Court. Consequently, I shall make an order in terms of paragraph 1 the wife’s summons dated the 31 January 2018. I further direct that ZT Limited, P Asset Management Limited and JG Limited be informed of this decision within the next 7 days. The next hearing in relation to this matter was originally set down for the 25 March, however given the reinstitution of the GAP and the shortness of time in any event, I shall adjourn this aspect of the case to a later date for further directions. All parties shall be invited to attend that second hearing.      

15.  Mr Tse for the husband says that he understands that the third parties may choose not to participate in the matrimonial litigation. With respect however, that is really a matter for them. However, it follows that if they choose not to participate they will be bound by the outcome regardless.

16.  For the avoidance of doubt I do not accept that this decision will be unfair to the husband. In particular, I do not accept that progress is so advanced in the High Court actions that it would be more convenient and cost effective for matters to proceed in the High Court. To that end it is of note that the pleadings are not yet closed.     

Transfer of the Proceedings to the High Court

The law  

17.  The application to transfer up is made pursuant to Rule 32 and Rule 80 of the Matrimonial Causes Rules, Cap 179A, together with Practice Direction 15.14. I have also been referred to a number of cases as set out in the Practice Direction including the judgment of His Honour Judge Saunders in H v H, FCMC 7173/2000 dated the 1 February 2002 (unreported).

18.  It is accepted that in accordance with those authorities that the Family Court has an unfettered discretion to order a transfer up of any application to the High Court and that such an unfettered discretion also extends to deciding when such an order should be made.

“The fundamental principle is whether in light of the overall circumstances including the nature of the issues of fact or law involved, the proceedings or part of them are more desirable to be dealt with in the Court of First Instance” (§2)

It is also accepted that:

    … an application for transfer should be made as soon as practicable after it becomes apparent that a transfer is required.   

19.  In H v H His Honour Judge Saunders also stated as follows:

… there must be cogent reasons why a case should be removed from the ambit of a group of specialist judges.  It is right that R 80 requires the court to take into account the financial limits for the time being relating to the jurisdiction of the District Court in other matters, but that is only one consideration.  Very large sums of money alone will rarely be sufficient to justify transfer.  There must be some special complexity in the case which will demand that it be given the attention of a Judge of the Court of First instance.

With respect I agree.

20.  Further Mr. Leung also took me to the following paragraphs in that same judgment, which are also pertinent to this case:

The High Court and the District Court have a concurrent jurisdiction in divorce and in ancillary relief. Parties are however required to commence their proceedings in the District Court. There are now 6 judges sitting on a permanent basis in the District Court who are solely engaged in matrimonial work. There is a separate Family Court Registry, and although the "Family Court" does not have any substantive legislative basis it exists as a de facto separate branch of the District Court. The effect of this has been to build a pool of judges who are very experienced in this particular field. The judges deal with a wide range of ancillary relief cases, regularly involving many millions of dollars and with international implications.

There is no equivalent "Family Division" in the Court of First Instance of the High Court. Ancillary relief cases rarely go to the High Court and when they do there is no assurance that the judge who tries the case will have any special expertise in the field. In most cases however, fortunately, trials are able to be allocated to a judge who has been promoted to the High Court from the District Court and who has gained experience in the Family Court.

Again, save for the fact that there are now 10 Family Court Judges and not 6, I agree with this analysis of the situation.

21.  In another earlier case, namely B v B, unrep (FCMC 3105 of 1999), Deputy Judge Jenkins also made the following points:

I believe that the following matters referred to by HH Judge Hartmann (as he was then) in Jack v. Jack and another (DJ No 3782 of 1995) are relevant considerations and should properly be taken into account in deciding whether to order a transfer, They are:

“where there is a matter of public interest; where there are novel or difficult points of law to be resolved; where delay will work a clear injustice and/or where there is unduly complicated or conflicting evidence the resolution of which is likely to be so protracted that it will unduly prejudice the Family Court lists and this work against the interests of other litigants”.

In my view none of these factors are present in this case and further none of the specific matter matters in r.80(5) apply either.

As in that case, I agree that none of these factors apply here.

22.  Interestingly in a more recent case heard by my brother judge, HH Judge Kent Yee, in the Civil jurisdiction, namely Wan Sui Ha Alice v Ng Wing Yan [2019] 3 HKLRD 429, he also held that a property dispute should more properly be dealt with in the Family Court and that “… The Statement of Claim filed by Madam W in DCCJ can be issued in FCMC for the purpose of the trial of the preliminary issue and that the costs of preparing the document will not be wasted”.

Again I agree that this may be an option here.

Decision  

23.  I should say at the outset that in this instance I have decided not to transfer this matter up to the High Court as requested by the Respondent. I do so because I am largely unpersuaded by the arguments advanced by Mr. Tse both in writing and orally.In his written submission these are set out as follows:

Grounds of transfer up to the High Court

11. There is dispute as to the beneficial ownership of five properties that involved high estimated net asset value of HK$50.155 Million [Annex 1, being the Schedule agreed by the parties which was submitted to the Court of Appeal], not an insubstantial amount.

12. There is nexus between the present proceedings and the three High Court Actions involving the determination of ZT Limited’s claims regarding the subject five (5) properties of substantial amount made it more desirable for the present proceedings to be transferred to the High Court as it allows all matters to be heard in High Court which is in more advance stage for the determination of the preliminary issues.

13. In considering whether the present proceedings should be dealt with in the High Court or Family Court, the Husband did take into the account the higher cost scale of the High Court and consider the Family Court may be a more appropriate forum than the High Court if legal fee is the only consideration. However, there are other factors surrounding the present case that outweigh the consideration of the legal fee only [2/563/§4].

14. One of the factors is no fair result to the Husband will be achieved if the hearing of the suit is conducted in the family court before Her Honour Judge Melloy as ; she has held prejudicial views against the Husband which can be illustrated by the comments made by Her Honour Judge Melloy in the hearing on 8th June 2018 [2/563/§5].

15. Other factor to be considered including there is high likelihood that the losing party will appeal the decision to the High Court with total costs involved (in both family court and the appeal in the High Court exceeding cost for the High Court only).

24.  In summary assets of HK$50.155 million do not place this case in the very big money category and as HH Judge Saunders has pointed out in paragraph 19 above, that is rarely a sufficient reason on its own to justify a transfer up in any event. Secondly I do not accept, also as indicated above, that the High Court actions are at a more advanced stage for determination of the preliminary issue. Thirdly it is also true that it would be costlier to proceed in the High Court in comparison with the Family Court, but I do not accept that other factors outweigh this consideration. I further do not accept the allegation that I am prejudiced against the husband, but in any event if he holds that view then it is open to him to apply for me to recuse myself. Lastly the issue of an appeal is neither here nor there. If either party believes that they have grounds, then it is a matter for them whether or not to seek leave to appeal. It goes without saying that significant cost consequences may flow as a result of such a decision.

25.  In such circumstances the husband’s transfer up summons dated the 9 October 2019 shall also be dismissed.    

Costs

26.  I can see no reason why costs should not follow the event in the normal way. Consequently, there shall be an order nisi to be made absolute in 28 days’ time, that the Respondent husband shall pay the Petitioner wife the costs of and arising out of all three summonses referred to above on a party and party basis to be taxed if not agreed.  There shall be certificate for counsel.   

Further directions

27.  There is a hearing scheduled for the 25 March and it seems that the parties may be ready to proceed with that hearing notwithstanding the GAP. To that end I have received a letter from the solicitors for the wife today urging me to proceed with the hearing on the premise that it is urgent and essential. Whilst I agree that the wife’s application is urgent it also seems to me that it should be possible to deal with this matter by way of a paper disposal. Consequently, I shall make the following order nisi to be made absolute in 7 day’s time i.e. on the 30 March 2020:   

Order nisi

1)    The Petitioner’s summons dated the 19 December 2019 shall be determined on paper;

2)    Both parties shall file and serve short written submissions in relation to the same within the next 7 days (i.e. on or before the 30 March);

3)    If either party objects to this course of action, then they shall write to the court setting out the basis of their objection within the next 3 days. It should also be noted that if objections are raised and are then found to be without merit that the court may take this account when exercising its discretion on costs.

4)    Please note that any objections and the submissions referred to in paragraph 2 above, may be filed at court by using the no reply e-mail address ([email protected]).

5)    The further callover hearing in relation to this matter referred to in paragraph 14 above, shall be provided to the parties in the paper disposal Ruling.

FCMC 8680/2012

[2019] HKFC 167

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 8680 of 2012

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

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

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

R U L I N G
(Leave to appeal)

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

Introduction

1.  This is the Respondent husband’s application for leave to appeal against what was effectively a case management decision granting the wife leave to be released from her implied undertaking and permitting her to use or disclose information, documents and/or materials from the matrimonial proceedings in three High Court actions.

2.  The matrimonial proceedings have been ongoing for a considerable period of time and have included a trial on the suit and a trial on the children’s arrangements. There have also been issues with respect to interim financial support of the wife and two children of the family by the husband. The issue of final ancillary relief remains outstanding.

3.  On the 13 November 2017, the husband issued a summons asking for the ancillary relief proceedings to be stayed pending the outcome of three High Court actions. The proposed preliminary issues hearing was subsequently adjourned. The wife for her part sought to join a number of companies to the matrimonial proceedings and at first blush it seems that both the High Court actions and the joinder together with the proposed preliminary issues matter in the Family Court, are concerned with the same or similar assets. This court is also very alive to the possible strategic undertones to these applications.

4.  The husband’s application to stay the proceedings and the wife’s application for joinder were both adjourned pending the outcome of a summary judgment summons in the High Court on the 7 January 2019. I am told that the wife was given unconditional leave to defend all three actions. It is in those circumstances that the wife’s application for leave was filed. Originally the parties asked to set the matter down for a two-hour hearing and this was agreed to by consent. I took the view that this was not necessary. In particular, it is trite but worth reiterating in the circumstances that a party cannot allege one thing in one set of proceedings and another in a different set of proceedings. To that end it must be right that in order to prepare her defence fully the wife should be permitted, in the first instance to refer to the information, documents and/or other materials relied upon by the husband in the matrimonial proceedings, including any correspondence exchanged between solicitors.

The law

5.  The law is as set out in section 63A of the District Court Ordinance and this states as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.”

6.  It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and that it has a reasonable chance of succeeding.  The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly.  Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

Discussion

7.  In the husband’s Draft Notice of Appeal, he says that the court failed to conduct a fair hearing and that that there was a possibility that there might be a misapplication or misunderstanding of the evidence. Neither point is accepted. The master had already directed that the wife could not refer to the matrimonial proceedings unless leave had first been obtained from this court. There is no requirement that a matter of this nature be set down for a two-hour hearing. It was a straight forward case management decision and it was dealt with accordingly. In making that decision I had had an opportunity to read the wife’s 21^st affirmation dated the 15 February 2019 and the husband’s 19^th affidavit in reply dated the 10 May 2019, both of which were on point. The husband had already indicated the discrepancies in his evidence and he will need to deal with these discrepancies again in the High Court proceedings, when the Judge will ultimately have the benefit of hearing oral evidence from both sides.

Decision

8.  In such circumstances it seems to me that there is no reasonable prospect of this case succeeding on appeal, nor is there any other reason, in the interests of justice why this appeal should be heard. Consequently, the husband’s application for leave to appeal is denied.

Costs

9.  The wife has asked that costs should follow the event in the normal way and that they should also be summarily assessed and paid forthwith. I agree. I will allow HK$37,500 and deem that that is the appropriate amount in the circumstances – such sum to be paid within the next 14 days.

Further directions  

10.  At the hearing on the 13 June 2019 it was agreed that I would give further directions on the husband’s application to stay and the wife’s application for joinder. On reflection I have decided to simply adjourn both matters for a further call over in the first instance. Thus both matters shall be adjourned to the 11 October 2019 at 9:30 a.m. Both parties shall personally attend that hearing. I will expect to be updated on the progress of the High Court actions at that hearing.    

FCMC 8680/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8680 OF 2012

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

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

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

RULING
(Costs in children’s trials)

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

Introduction

1.  This application arises out of my judgment on the arrangements for the children of the family dated the 3 November 2016. In the introduction to that judgment I began by summarizing the main stance taken by each party at the trial as follows:   

Introduction

1. This trial was originally set down for 8 days to deal with the parties cross applications in relation to the arrangements for the children of the family – an elder daughter PY who was born on the XX November 2004 and is now nearly 12 years old and a younger son P who was born on the XX April 2007 and is now 9 years old. In the Respondent father’s summons dated the 14 July 2015 he sought sole custody and care and control of the children with defined access to the mother from after school on Fridays to Saturday at 9 pm. In the Petitioner mother’s summons of the same date she likewise sought sole custody and care and control of the children with defined access to the father on an alternate week basis namely from Friday at 6 pm to Saturday at 12 noon in the first week and from Friday at 6 pm to Sunday at 3 pm in the second week. Both parties made other proposals in relation to the holidays, single public holidays and other special days.

2. Thankfully the parties were able to reach consensus on most of the outstanding issues and by the time the matter came on for trial they had agreed, albeit late in the day, that there should be joint custody of the children with care and control to the mother. The outstanding issues were, in the wider scheme of things quite small. In essence the father was asking for an order that the existing shared care regime remain in place whereby the children are with him from 6 pm on Thursday to either 11 am on Saturday (the short week) or 3 pm on Sunday (the long week). This is in accordance with the court order dated the 14 October 2014. The mother for her part asked that Thursday access be dispensed with and that access take place from 6 pm on Friday to 3 pm on Saturday (the short week) and from 6 pm on Friday to 3 pm on Sunday (the long week). There was also a further minor issue with respect to pick-ups and drop offs with the father asking that these be shared. The mother for her part asked that the father be responsible for all pickups and drop offs.

2.  By the time of the trial the parties had been locked in aggressive and highly conflicted litigation for quite some time. The original petition had been defended necessitating a trial and there was constant disagreement about the children. Attempts to settle matters at Children’s Dispute Resolution hearings had proved short lived and tension between the parties remained very high. Thus although the outstanding issues at trial were relatively minor the parties were nevertheless unable to reach consensus.

3.  In general terms it could be said that I came down mainly in favour of the father in that I agreed with him that Thursday night access should continue. Other issues were compromised. In conclusion I said as follows:

   Conclusion  

46. Thus I do not intend to change the present access arrangement save that in the event that either child has an exam on a Friday then access on Thursday for both children shall be dispensed with. In that event access shall take place from Friday at 6 pm to either Saturday or Sunday depending on whether it is a long or short week. In the event that either child has an exam on a Monday then access on Sunday for both children shall be dispensed with and access shall be from 6 pm on Thursday to Saturday at 11 am. It is entirely possible that the children will have exams over a two week period in which case there may be exams on both Friday and Monday. In that event and for the avoidance of doubt access for both children shall be from 6:00 pm on Friday to Saturday at 11 am. In all three scenarios the weekend following the exams shall be a long weekend. I have considered splitting the children so that only the child who has the exams has access suspended but it seems to me that the result may be a logistical nightmare.

In addition should any further orders be made in relation to other miscellaneous issues including the pickups and drop offs and arrangements for exam periods? 

47. For the avoidance of doubt the father shall be responsible for picking up the children on Thursday evening at 6 pm (or Friday at 6 pm in the event of exams) and the mother shall be responsible for picking them up from the father’s home on either Saturday at 11 am or Sunday at 2:30 pm as appropriate.

48. In so far as the English tutor on a Saturday morning is concerned, the father indicated that he was not very satisfied with her performance. It is for the father to decide who he employs to assist the children when they are in his care. Likewise it is for the mother to decide who to employ or what classes the children should attend when they are in her care. In that regard I apologise for my misunderstanding during the trial concerning the mother’s enrolment of PY into a Chinese class on Thursday afternoon after school. I accept that the mother was perfectly within her rights to do so given the father’s time with the children does not start until 6 pm.

49. As indicated above the access shall therefore continue subject to the caveat about exams from Thursday at 6 pm to Saturday at 11 am in week one and from Thursday at 6:00 pm to Sunday at 2:30 pm in week two. In the event that P needs to be at school on Saturday morning then pickup time may need to be amended accordingly. I will give liberty to apply in that respect only  

4.  Given that this was a children’s matter I decided at the end of the day to make the standard order in relation to costs. This was despite the fact that I had expressed concern on several occasions about the mother seemingly involving the children in the litigation in an inappropriate way. Consequently, the costs order states as follows:  

Costs

50.   Given that this is a child related matter and notwithstanding some of the concerns expressed by myself in this judgment I will nevertheless make an order nisi to be made absolute in 14 days time that there be no order as to costs. There shall be certificate for counsel.

The law

5.  The law on costs is not in dispute. It is accepted than in the normal course of events the court will make no order as to costs when the matter in issue relates to children. A costs order against one parent in a child related matter is considered unusual unless that parent has for example, been unreasonable in the conduct of the litigation. See Sutton London Borough Council v Davis (Costs) (No 2) [1994] 2 FLR 569.

6.  In S v S HCMP 5547/1999, Deputy High Court Judge Gill when summarizing the various cases then available on the subject elaborated on this point when he said as follows:  

From these authorities one can, I believe, summarize the following factors which might determine how a court should approach a contest on costs in a case involving a child or children:

1. In general circumstances there should be no order for costs.  Parties who have a reasonable case to put forward going to a child’s welfare should not be dissuaded from doing so by threat of an adverse costs order if they do not succeed.  And in a child related case there should be no perceived winner or loser, save that it is the child who is the winner.

2. If a party has by virtue of improper conduct attracted the proceedings which but for that may have been avoided then that might well warrant an adverse costs order.

3. If in the course of the proceedings one party behaves unreasonably in his or her conduct of the litigation then that might be recognised in an adverse costs order.

4. The financial circumstances of the parties and how an order for costs will impact on the parties is a factor for consideration.

5. The general rule of not ordering costs should not deter a court from exercising its discretion to do so in circumstances it finds to be exceptional not necessarily limited to a particular category of cases.

7.  Counsel for the mother also referred to a more recent Court of Appeal case from England on the subject namely TPL v WYY (Costs: Children) [2015] HKFLR 75, where it was held inter alia that:

“(4) This approach does not apply where a party’s conduct has been reprehensible, although the court should not be too quick to label a parent’s conduct as ‘unreasonable’. Hopelessness and unreasonableness is not necessarily the same thing. Even if conduct is reprehensible or unreasonable, the policy considerations must be considered i.e. that it is the best interests of the children that there be no order as to costs.London Borough of Sutton v Davis, R v R, and Re G (Costs: Child Case) [1993] 3 FCR 463 ; [1999] 2 FLR 250 ; [1999] Fam Law 381 referred to (para 15).”

Thus it would seem that the bar is necessarily a high one.

The issue

8.  The issue to be determined then is essentially a question of degree. In what circumstances should a parent be penalised in costs when the dispute is about a child? Generally, as set out above, it is accepted that there should be no order as to costs in a situation such as this. This is so that parents will not be discouraged from raising legitimate concerns which need to be properly ventilated and determined by the courts when considering the best interests of a child. However, it has also been said that this is a fine line. In this instance I had come to the view initially that notwithstanding my very real concerns about the way in which the mother had involved the children in the case, that it probably could not be said that the mother’s behaviour had been so reprehensible that it deserved to be sanctioned by a costs order. The father now seeks to challenge that order.  

Discussion

9.  Counsel for the husband identified four points in her oral submissions which she said supported her client’s contention that a costs order against the mother would be appropriate in this case, namely:

1. The continued involvement of the children by the mother in the litigation;

2. The refusal of the mother to accept what appeared to be the children’s views;

3. Her late acceptance of an order for joint custody; and

4. Her failure to provide reasons for her stance on pick-ups and drop offs.  

10.  Dealing with these points in reverse order, although I would accept that the mother’s stance on joint custody only came very late in the day and that she did not articulate her case on pick-ups and drop offs very clearly, it does not seem to me that these points on their own put this case in the category of cases where a costs order can quite rightly be made against a parent.

11.  The remaining issues in relation to the involvement of the children in this litigation are in my view a lot more serious. This was why, in part the Official Solicitor was appointed to separately represent the children’s interests. Counsel for the mother misses the point when she says that the children wanted their voices to be heard and that they had written other letters to the court that had not been sent. The concern was that the mother was seemingly asking the children to write to the court in the first place in order to bolster her case and that the children were being placed in an untenable position because of that. This is clearly seen in paragraph 8 of the Official Solicitors second report dated the 8 August 2016, which was filed shortly before the trial. This is also set out in paragraph 30 of my judgment as follows:  

8. On 20.6.2016, the official solicitor received a letter from the children requesting me to inform the judge that they wanted the Mother to get sole custody. A copy of the letter with its English translation is annexed.

Meeting with PY and P on 4.7.2016

9. I met the children on 4.7.2016 at the Official Solicitor’s Office.

10. PY said she was asked by the Mother to write me the letter. She frankly admitted that she did not know what sole custody was.  I therefore provided a brief explanation to the children on the meaning and difference of joint custody and sole custody.  The children were informed that the Mother would have their care and control.  Therefore, irrespective of the outcome of the trial on custody matter, their existing living condition would not change.

11. Having heard my explanation, PY felt much relieved.  PY hopes that both parents can play equal roles in determining the important matters regarding her upbringing.  She also hopes the Mother not to insist on seeking a sole custody order.  She wants an end of the dispute on custody.  Possibly due to the young age of P, he did not express any view on his matter.

12. PY said she was reminded by the Mother to tell me about the traffic accident happened in February 2016 whilst the Father was driving the children back to their Homantin residence.  She said the Father’s vehicle crashed the safety island.  She suffered from headaches and P had a nosebleed after the accident.  The Father called the Police and they were sent the X Hospital (“the hospital”) by ambulance.  PY said the parents had an argument on whether the children should wait at the A&E Department of the hospital for 5.5 hours for medical examination and treatment.  Fortunately, the children only suffered very minor injuries after medical examination.

13. Regarding access, PY said she would still on one or two occasions forget to bring books/homework during the overnight staying access on Thursdays.  She does not have any strong view on the change of the overnight staying access during school terms to Fridays.  She is happy with the present access arrangements.  P said he had never forgotten to bring books/homework during the overnight staying access on Thursdays.  He wants to maintain the present access arrangements.

14. It is observed that despite the breakdown of the parents’ marriage, the children are properly taken care of and are settled down well with the present arrangements.

31. I was therefore very concerned that the mother may be putting inappropriate pressure on the children and that they needed as far as possible to be shielded from this. I spoke to both parties about my concerns during the course of the litigation. I explained in no uncertain terms that this was not acceptable. Consequently, when asked to see the children directly I declined. 

32. I was therefore astonished to be told at the beginning of the trial that the children had again written to the Official Solicitor on the 31 August 2016 – i.e. shortly before the commencement of the trial and that their views had now changed. This is especially given the fact that those views now seemed to echo those of the mother. I was told by the Official Solicitor in her latest report that:

… The reasons for the change as set out in the children’s letter are: (1) no need to bring their school uniforms, shoes and schoolbags to their father’s home; (2) there may be a school club or school team training; and (3) they need not worry about forgetting to bring their textbooks or homework to school for the week. 

33. Generally it is clear that the mother was of the view that the children’s stated preferences should be given determinative weight. She said that she herself had no strong feelings about the Thursday night access, but that she was taking this stance because PY had told her that she was worried about the demands of her new school and that it was the daughter who wanted to change the current shared care arrangement. 

34. As I indicated to both parties during the Children’s Dispute Resolution hearings and at the trial, the views of the children are not determinative. Their views are one aspect of the case that I must take into account when considering the matter overall. It is true that as children get older that their views carry more weight. However, in a case such as this, the stated views of the children must be approached with some degree of caution. This is especially so given the inappropriate way that they appear to have been brought into these proceedings. Further the children should not be put in a position where the onus is on them to “choose” between each of their parents or the stance taken by each of them.

12.  Counsel for the wife disputes my analysis of the situation and says that the children’s views changed just before the trial and that her team had felt it important that the children’s views be canvassed.

In such circumstances can the wife be said to have overstepped the line and should a costs order be made against her to reflect this?

13.  Counsel for the wife reiterates that the wife is not to be blamed, that she was only doing what she thought reflected the views of the children and that if a costs order is made against her it will make matters very difficult indeed going forward. The wife has no funds and the ancillary relief matter is yet to be determined. I accept that such a cost order will place her in a very difficult position indeed and that this is something that I can quite rightly take into account.   

Conclusion

14.  In conclusion then, although I have some sympathy with the husband given the way in which the wife’s case was conducted at trial and although I also have some concerns about the way in which the children were involved in the litigation, I have decided nevertheless not to vary the order nisi made on the 3 November 2016. Partly this is in recognition of the fact that agreement was reached on most of the major issues prior to the trial commencing and also that the parties have been locked in very aggressive and difficult litigation for a long time. The father is not entirely blameless in this. Consequently, there shall be no order as to costs in respect of the costs of the Respondent’s application for custody and care and control of the children dated the 14 July 2015 and the Petitioner’s mirror application of the same date. There shall be certificate for counsel.

15.  In so far as the costs of this summons is concerned I can see no reason why the costs shall not follow the event in the normal way. Consequently, the father shall pay the wife the costs of and arising out of his summons dated the 17 November 2016 to be taxed on a party and party basis if not agreed. Again there shall be certificate for counsel. 

FCMC 8680/ 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8680 OF 2012

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

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

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

JUDGMENT
(Access arrangements)

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

Introduction

1.  This trial was originally set down for 8 days to deal with the parties cross applications in relation to the arrangements for the children of the family – an elder daughter PY who was born on the XX November 2004 and is now nearly 12 years old and a younger son P who was born on the XX April 2007 and is now 9 years old. In the Respondent father’s summons dated the 14 July 2015 he sought sole custody and care and control of the children with defined access to the mother from after school on Fridays to Saturday at 9 pm. In the Petitioner mother’s summons of the same date she likewise sought sole custody and care and control of the children with defined access to the father on an alternate week basis namely from Friday at 6 pm to Saturday at 12 noon in the first week and from Friday at 6 pm to Sunday at 3 pm in the second week. Both parties made other proposals in relation to the holidays, single public holidays and other special days.

2.  Thankfully the parties were able to reach consensus on most of the outstanding issues and by the time the matter came on for trial they had agreed, albeit late in the day, that there should be joint custody of the children with care and control to the mother. The outstanding issues were, in the wider scheme of things quite small. In essence the father was asking for an order that the existing shared care regime remain in place whereby the children are with him from 6 pm on Thursday to either 11 am on Saturday (the short week) or 3 pm on Sunday (the long week). This is in accordance with the court order dated the 14 October 2014. The mother for her part asked that Thursday access be dispensed with and that access take place from 6 pm on Friday to 3 pm on Saturday (the short week) and from 6 pm on Friday to 3 pm on Sunday (the long week). There was also a further minor issue with respect to pick-ups and drop offs with the father asking that these be shared. The mother for her part asked that the father be responsible for all pickups and drop offs.

3.  At the end of the trial I raised a number of issues concerning inter alia the exam periods for the children and the arrangements for those (the mother had originally asked that all access be suspended during the exam periods). I was particularly concerned given the length of the exam periods and the fact that the children’s exam periods did not appear to coincide. I also queried whether or not there should be any alteration to the arrangements in place for the public holidays and other school holidays. The parties were in agreement that they did not wish either of those orders to be varied in any way. Consequently it is agreed that the following arrangements shall remain in place as set out in the court order dated the 11 April 2014 namely that:

3.   For public holidays which fall outside the school term dates and which are also not on Saturdays or Sundays (“Public Holidays”), the Respondent shall have access to the Children on such Public Holidays commencing from 6^th May 2014, in alternate manners as follows and the Respondent’s access for such alternate Public Holidays continues for the years to come:-

(a) 1^st May 2014 (Labour Day)─The Respondent will not have access to the Children;

(b) 6^th May 2014 (Buddha’s day)─The Respondent has access to the Children;

(c) 2^nd June 2014 (Tuen Ng Festival)─The Respondent will not have access to the Children;

(d) 1^st July 2014 (HKSAR establishment day)─The Respondent has access to the Children;

(e) 9^th September 2014 (the day after Mid-Autumn Festival)─The Respondent will not have access to the Children;

(f) 1^st October 2014 (National Day)─the Respondent has access to the Children;

(g) 2^nd October 2014 (Chung Yeung Festival) ─The Respondent will not have access to the Children.

4.   Without prejudice to and overriding the arrangements as stated in paragraphs 1 to 3 above, for the respective birthday of the parties and the Children, the Father’s Day and Mother’s Day, it is agreed that:

(a) Each party shall have access to the Children on each party’s respective birthday.

(b) The Petitioner will have access to the Children on Mother’s Days.

(c) The Respondent will have access to the Children on Father’s Days.

(d) Each party shall have access to the Children on the Children’s respective birthdays in alternative years in the following manners:-

(i) the Petitioner shall have access to the Son on his birthday in even years, starting from 2014;

(ii) the Respondent shall have access to the Daughter on her birthday in even years, starting from 2014;

(iii) The Respondent shall have access to the Son on his birthday in odd years, starting from 2015;

(iv) The Petitioner shall have access to the Daughter on her birthday in odd years, starting from 2015.

4.  There was though some disagreement between the parties in the event that there was a clash of dates, with the mother proposing that in that event the day be split 50:50. The father for his part was of the view that the wording of the original order allowed for this eventuality. For the avoidance of doubt I accept that in the event that there is a clash of dates that the access arrangements as set out in paragraph 4 above for birthdays and Mother’s Day and Father’s Day shall take precedence over the access arrangements proposed in paragraphs 2 and 3 regarding the split of the school holidays and the public holidays.

5.  Further orders 6, 7 and 11 shall also remain in place namely that:

6. Both parties can attend all school activities of each child, irrespective whether the activities fall on an access day of the other party.  It is also agreed that both parties shall not forbid the Children from attending the said school activities.

7. During the defined access, the parties shall not stop the Children from communicating to the other parent; whether by telephone or emails or otherwise whatsoever.

11. For the avoidance of doubt,

(a)  a full day for access during school term break is from 9:00 a.m. to 9:00 p.m. and a half day for access is from 9:00 am to 2:00 p.m. or from 2:00 p.m. to 9:00 p.m.; and

(b)  for implementation of paragraph 4 above, a day of access during school term dates is from 6:00 p.m. to 9:00 p.m.

6.  In addition, the parties’ acknowledgements and agreements as set out in the preamble to the Court order dated the 18 March 2015 and the further direction at the end of the order shall also remain in place as follows:

  AND UPON both parties acknowledging and agreeing that there shall be a setting of a dedicated email account in which the Petitioner shall report to the Respondent on every Thursday evening with the homework or revision undertaken by her during her time with the Children and the Respondent shall report to the Petitioner either on Saturday or Sunday with the homework or revision undertaken by him during his time with the Children;

IT IS FURTHER DIRECTED THAT:-

(6)  For the avoidance of doubt, a copy of all school reports and achievement certificates kept by the Respondent shall be sent to the Petitioner via the dedicated email account with scan copies referred to above.

7.  In so far as the exam periods are concerned the mother simply reiterated at the end of the trial that she wished to have the Thursday’s and in that event there need not be any alteration to the access schedule during the exam periods. The father for his part proposed that in the event that there was an exam on a Friday that he would forgo Thursday night access and if there was an exam on a Monday he would forgo the Sunday access – if indeed that was applicable. In each event he asked for make up access the following week in that the following week would then be a long weekend – i.e. from Thursday at 6 pm to Sunday at 3 pm.

8.  Ms Allison for the father summarized the parties’ respective positions in her closing submission thus:

7.   The Mother claimed that her position at trial regarding access was formulated based on PY’s letter dated 31^st August 2016 to the Official Solicitor, following a telephone call from PY to the OS on 30^th August 2016.

8.   The Father’s stance at trial was for the status quo to remain the same, save for exam week when he agreed that certain days of access could be suspended but that there had to be make up access on the shorter weekend that immediately followed.  The Father was agreeable to have Sunday access end at 2:30 pm if the Mother required 30 minutes to pick up the Children from Homantin in order to return home by 3:00 pm.

9.   The Mother pressed that Father should do all pick up and drop off at the beginning and end of each access because financial constraints meant that she could not afford to take the Children home by taxi.  The Father’s position on the other hand, was that since he no longer had a car, and he had no intention of getting a car due to financial concerns, that the parties should share the task of picking up and dropping off the children equally.

9.  In so far as pickups and drop offs are concerned it later transpired that most of the mother’s concerns related to the cost of a taxi fare from the father’s home in Homantin to the drop off point on Hong Kong side. In the spirit of compromise the father agreed to pay for the mother’s taxi fare back to Hong Kong side with the children. He proposed a figure of HK$530 per month and to round up the mother’s maintenance to HK$59,000 per month. The mother sought HK$160 per trip but accepted that it would be more sensible for this sum to be added to her maintenance as opposed to seeking reimbursement from the father on each occasion. In order to simplify matters therefore I have therefore decided to accept the father’s proposal that he pay the mother an additional sum of HK$530 per month to cover the taxi fares. This is on the premise that the mother will take a taxi back to Hong Kong side after picking the children up on either Saturday or Sunday.

The law in Hong Kong

10.  The general principles governing applications relating to children’s issues are set out in s 3 of the Guardianship of Minors Ordinance, Cap 13, which states that the court:

(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;

11.  It almost goes without saying that it is generally accepted that it is important for children to have an ongoing relationship with both of their parents post divorce. On occasion this can be hard to achieve given the high levels of animosity and conflict that sometimes exist between parties post separation and divorce, as here. It is of note that the children in this case appear to have a close and loving relationship with both parents and to be bonded to each of them.

12.  Ms Allison in her closing submission referred to the welfare check list. 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.  In this case some of these factors are extremely important and feature very heavily and others are less so. I will refer to them as they appear in the discussion to follow. For example there is a very live issue concerning the wishes and feelings of the children and how to properly ascertain those wishes and also the appropriate weight to be attached to them in the circumstances. There is also an argument with respect to each parent’s ability to meet the children’s needs – particularly their academic needs. I further accept that subsection (d) is of particular import – i.e. the likely effect on the children of changing their present circumstances given that what is being proposed is that staying access be reduced during term time from 5 out of every 14 days to 3 out of every 14 days. I further accept that arguments with respect to “status quo” will also be relevant.  

The issues

14.  The issues then are these:

How should the care of the children be split going forward? In particular should Thursday night access be dispensed with? 

In addition should any further orders be made in relation to other miscellaneous issues including the pickups and drop offs and arrangements for exam periods? 

Background

15.  In my judgment on the defended suit dated the 25 October 2013 I commented inter alia on the background of this case as follows:

2.   It would appear from both parties’ testimony that this marriage has been in considerable difficulty for a very long period of time.  The wife makes a number of allegations against the husband, most of which he denies.  What is not in dispute, however, is that the wife moved out of the matrimonial home in May 2009 after a very heated argument which also involved the elder child.  Shortly thereafter, the wife discovered incriminating evidence which implied that the husband was having an affair. The husband accepts that to be the case.  He says that he had a relationship outside the marriage sometime between 2007 and 2008.  The wife discovered this in June 2009.  Both parties agree that their sexual relationship came to an end from May 2009 when the wife moved out. 

3.   It seems that the wife’s father then intervened in an informal way and that he acted as a middleman, helping the parties to resolve disputes as and when they arose.  It was because of this that the parties agreed, rather strangely in the circumstances, that the wife’s moving out in May 2009 would not constitute a separation for legal purposes and they entered into an agreement to that effect.  It is not clear whether the parties were legally represented at that time.

4.   Two years later in May 2011, the wife moved back into the matrimonial home but it does not seem that this was in order to effect reconciliation.  Rather, it seems to be accepted that there was an arrangement between the two whereby the husband supported her financially in part and the wife agreed to take care of the children’s homework.  The husband in turn cooked and undertook most of the household chores.  To all intents and purposes, it seems that the parties were simply flat sharing and dividing up the domestic responsibilities between the two of them.  There is also some dispute regarding the extent to which they interacted socially or as a family. However, their marital relationship did not recommence and that much is clear.

Background

6.   The wife trained as a dancer at X and her father is an academic.  She is now 36 years of age.  The husband for his part says he has had a number of occupations.  It seems that he was unemployed for a while and that he was also engaged previously as a real estate agent.  He says that he invests in stocks and shares on his own account and it seems that he also previously ran a small taxi company.  He is now 47 years of age.

16.  Of note, in the context of the present dispute is the fact that I accept that the children were in the primary care of the father for about 2 years from May 2009, when the mother moved out of the former matrimonial home for the first time, until about May 2011. The children would have been about 2 and 4 ½ years old respectively when the mother first left. There is a lot of dispute between the parties but in essence each party’s position is as summarized by Ms Allison in her opening submission when she said that:

15.   The evidence as to the Mother’s involvement with the Children during the 2 year period of May 2009 and May 2011, differs between the parties.  On the Mother’s case, she would help the Children with their homework every day from after school until dinner time. [A1/21]  This is strenuously denied by the Father who alleges that the times when the Mother met the Children would vary from meet with the Children 2 to 3 times a month, to having overnight staying access during Summer 2010 [A1/35, 55].  There were no defined access arrangements for the Mother to see the Children; the Mother was afforded the flexibility of seeing the Children as little or as much as she wished.

16.   From May 2011 until mid-2013, the parties appear to have co-existed in the former matrimonial home.  On the Mother’s case, there was a division of labour in the house between the parents with the Mother focused on assisting the Children with their homework and the Father would manage the housework.  This is disputed by the Father; on his case, the Mother spent very little time taking care of the Children as she was not home often and when she was home, she was in her bedroom.  It is the Father’s case that although the Mother returned to the family home, he continued as the predominate carer of the Children.

17.   On the Father’s evidence, the situation at home took a turn for the worse from the summer of 2013 [A1/35].  That year, the Mother for the first time organised various activities for the Children over the summer holiday without any prior discussion with Father and then proceeded to organise extra-curricular activities on the weekend which led to the Father being deprived of time with the Children.

The litigation to date in relation to the children

17.  Given this background it is perhaps not surprising that there have been a number of orders made with respect to the arrangements for the children. Initially the court made an order splitting the children’s time between the parents whilst the parties were still living under the same roof. This order is dated the 27 January 2014. This states inter alia as follows:

4.   The parties shall have the care of the Children during the weekend by alternating Saturday and Sunday as follows:-

a. with effect from Saturday 15^th February, the Respondent [father] shall have alternate Saturday so that the Respondent shall have Saturday 15^th February and the Petitioner [mother] shall have Saturday 22^nd February and so on and so forth;

b. with effect from Sunday 16^th February, the Petitioner shall have Sunday 16^th February and the Respondent shall have Sunday 23^rd February and so on and so forth;

5.   It is directed that the Petitioner shall continue to be responsible for the Children’s homework on all days save for Thursday and Friday.  All school books and school notes to be placed in a common area of the matrimonial home;

6.   The Petitioner shall have dinner with the two children of the family and shall be responsible for getting them up, putting them to bed and picking them up from school on every Monday, Tuesday and Wednesday;

7.   The Respondent shall have dinner with the two children of the family and shall be responsible for getting them up, putting them to bed and picking them up from school on every Thursday and Friday;

18.  Thus the care of the children was shared with each parent having the care of the children for one day of the weekend and each being responsible for the children, including making sure that all homework was completed for part of the week. The mother was responsible for the children for three out of the five days and the father for the remaining two.

19.  On the 11 April 2014 the parties reached a further agreement which set out in detail how the children’s time should be shared between them. This included inter alia the following:

1. During the school terms, the Respondent [father] do have access to the Children as follows:

(a) One week from Thursday 6:00 p.m. to Friday 9:00 p.m. (“the First Week arrangement”).

(b) The next week from Thursday 6:00 p.m. to Sunday 5:00 p.m. (“the Second Week arrangement”)

(c) The above would be in alternate week arrangement and the Respondent shall be responsible for picking up the Children and returning the Children at the stated time at Midlevels, Hong Kong (“the Location”) for the purpose of the above access.

It was on this premise that the mother moved out of the matrimonial home with the two children and the couple began to live separately and apart from each other.  

20.  On the 14 October 2014 this arrangement was amended following the 2^nd Children’s Dispute Resolution hearing as follows:

1. paragraphs 1 (a) and (b) of the Order made by Her Honour Judge Melloy dated 11^th April 2014 be varied to read as follows:-

(a) one week from Thursday 6:00 p.m. to Saturday 11:00 a.m. (after the English tutorial lesson) (“the First Week Arrangement”);

(b) the next week from Thursday 6:00 p.m. to Sunday 3:00 p.m. (“the Second Week Arrangement”);

This order has been in place for nearly two years with the children spending from Thursday at 6 pm with the father on an alternate week basis to either Saturday at 11 am or Sunday at 3 pm. It was further agreed that the children would have English tuition at the father’s home on Saturday mornings.  

Each party’s respective cases

The mother’s case

21.  The mother says that she is proceeding with her application because it is what the children want – particularly the daughter. She says that because both children attend prestigious schools that they need to spend a significant amount of time on their studies. The daughter in particular has just been promoted to a top band senior school for girls. She is said to want to improve her grades and is worried about keeping up if Thursday night access is to continue. The mother says that she is the parent who is more responsible for the children’s homework and that the children will not be able to prepare for exams and tests appropriately if the Thursday night arrangement is to continue. She complains about lack of academic supervision at the father’s home. She also says that the children are much inconvenienced by the arrangement and that they have to pack up a lot of stuff and take it with them to school on Thursday mornings. She says that PY in particular has a tendency to forget things and that this can cause a lot of stress. She also says that the children do not have sufficient time to rest on Thursdays and that the travel time is long. All in all she argues that it is not in the children’s best interests to continue with the Thursday night arrangement. She makes no other alternative suggestions for additional access and wishes to retain some of the weekends so that she has an opportunity to also have some time to relax and have fun with them.    

The father’s case

22.  The father is very concerned that his role as a father is being further eroded. He made the point during his oral testimony that he wishes the mother to have a full role in the children’s lives and similarly asks that the same courtesy to be extended to him. He disputes most of the mother’s allegations. He wishes to retain Thursday nights and says that the current arrangement works well. He also wishes to continue to be actively involved in all aspects of the children’s lives going forward.

The Recommendations made in the reports

The Social Welfare Reports

23.  There have been three reports filed, the first dated the 24 February 2014, the second dated the 29 June 2015 and the third dated the 28 July 2016. Social Welfare Reports are generally regarded as the “ears and eyes of the court” and they provide a very valuable function in that respect. However the recommendations made are not binding on the court. If the court does not agree with the recommendations made then reasons should be given. In this instance given that the main issues had been agreed prior to the trial the Social Welfare officer was in some difficulty in assisting with respect to the “Thursday night issue”. However he did confirm both in his last report and during the trial that the children had adjusted well and that the status quo should be maintained. He stood by this notwithstanding fairly vigorous cross examination by the mother’s counsel. For example he said that there was no evidence that the present arrangement had caused any study problem for either child and he confirmed that he had spoken to the children’s teachers and that they had likewise not identified any problem. When it was put to him that the children had to carry a lot of stuff with them on Thursday’s he replied that this was a common scenario in Hong Kong. He also confirmed that the children had not mentioned to him that they did not wish to continue with Thursday night access. He said that he was aware that the mother felt strongly about this but that he did not necessarily feel that this was a concern that was shared by the children. In particular he noted that PY appeared to be simply supporting her mother. Generally he confirmed that the children were doing well, that their physical needs were being met and they appeared to be closely bonded with both parents. He confirmed that the children both attended prestigious schools. In so far as the children forgetting things he confirmed that the daughter seemed to forget some of her things from time to time but that this was not a problem shared by the son nor was it something that had been flagged up as a concern by either school.

24.  Ultimately the Social Welfare Officer stood by the recommendation made in all three reports namely that there should be no change to the existing access arrangement which in his view appeared to be working well. As will be seem I tend to agree with his observations.   

The Clinical Psychologist Report

25.  There was one Clinical Psychologist report dated the 11 November 2015. He concluded during his short oral testimony that he did not think that he was really in a position to comment on the access arrangements.

The official Solicitors Reports   

26.  The official solicitor was appointed in part because the court had become increasingly concerned about the level of conflict in this case and the extent to which the children might be drawn into the litigation inappropriately.

27.  Ms Allison helpfully attached to her closing submission the excerpt from Rayden which outlines the role of the Official Solicitor and although the arrangement is a little different in Hong Kong given the fact that the Family Court is not concerned with public law matters, nevertheless this section bears some repeating as follows:

The Official Solicitor as guardian ad litem of the child

37.94   As guardian ad litem of the child the Official Solicitor does not have parental responsibility for the child nor is he a welfare officer.  He represents the child in the conduct of the suit and in his capacity as a solicitor.  He does not stand in loco parentis to the child, nor do decisions relating to the child rest on his unfettered discretion.  He is, however, more than a mere guardian ad litem; he is at once an amicus curiae, an independent solicitor acting for the child, an investigator, an adviser, and sometimes a supervisor.  Formerly he only acted on behalf of children who are the subject of existing proceedings but this is no longer the case.  He will carry out his own inquiries, instruct independent expert witnesses and take whatever steps he considers necessary to protect the interests of the minor and will interview the minor, in private, in all cases where he or she is capable of expressing a view.  It is his function to place before the court, generally in the form of a report, the evidence which he considers to be material on behalf of the child and, where necessary, to instruct counsel to present the case at the hearing. 

28.  In this instance the Official solicitor had seen the children and the parents on a number of occasions and had submitted three reports including one after the conclusion of the trial. She consistently maintained that the Thursday night access should be dispensed with and did not propose any other additional access for the father save inter alia for telephone and skype access.  

29.  In her last report dated the 23 September 2016 she concluded that:

9. In considering matters relating to children, the best interests of the children shall be the paramount consideration.  The Official Solicitor is of the view that it is in the best interests of the children to suspend Thursday access so that the children can have sufficient time to rest, to concentrate on their schoolwork, to attend extra-curricular activities and to conduct social activities.

10. Given the all along close relationship between the Father and the children, the bonding between them would be not undermined by the suspension of Thursday access.  The Clinical Psychologist has confirmed that in his evidence. Alternatively, the Thursday staying access can be substituted by other ways of access e.g. by text, video calls or phone calls.

11. Compared with PY, it seems that Thursday access has caused less inconvenience and worry to P.  However, as P has indicated his wish to follow PY, it is not recommended to split the access.

As will be see I do not share the Official Solicitors views.

30.  In the Official Solicitors second report dated the 8 August 2016 she stated as follows:

8  On 20.6.2016, the official solicitor received a letter from the children requesting me to inform the judge that they wanted the Mother to get sole custody. A copy of the letter with its English translation is annexed.

Meeting with PY and P on 4.7.2016

9. I met the children on 4.7.2016 at the Official Solicitor’s Office.

10. PY said she was asked by the Mother to write me the letter.  She frankly admitted that she did not know what sole custody was.  I therefore provided a brief explanation to the children on the meaning and difference of joint custody and sole custody.  The children were informed that the Mother would have their care and control.  Therefore, irrespective of the outcome of the trial on custody matter, their existing living condition would not change.

11.   Having heard my explanation, PY felt much relieved.  PY hopes that both parents can play equal roles in determining the important matters regarding her upbringing.  She also hopes the Mother not to insist on seeking a sole custody order.  She wants an end of the dispute on custody.  Possibly due to the young age of P, he did not express any view on his matter.

12.   PY said she was reminded by the Mother to tell me about the traffic accident happened in February 2016 whilst the Father was driving the children back to their Homantin residence.  She said the Father’s vehicle crashed the safety island.  She suffered from headaches and P had a nosebleed after the accident. The Father called the Police and they were sent the X Hospital (“the hospital”) by ambulance.  PY said the parents had an argument on whether the children should wait at the A&E Department of the hospital for 5.5 hours for medical examination and treatment.  Fortunately, the children only suffered very minor injuries after medical examination.

13.   Regarding access, PY said she would still on one or two occasions forget to bring books/homework during the overnight staying access on Thursdays.  She does not have any strong view on the change of the overnight staying access during school terms to Fridays.  She is happy with the present access arrangements.  P said he had never forgotten to bring books/homework during the overnight staying access on Thursdays.  He wants to maintain the present access arrangements.

14.   It is observed that despite the breakdown of the parents’ marriage, the children are properly taken care of and are settled down well with the present arrangements.

31.  I was therefore very concerned that the mother may be putting inappropriate pressure on the children and that they needed as far as possible to be shielded from this. I spoke to both parties about my concerns during the course of the litigation. I explained in no uncertain terms that this was not acceptable. Consequently when asked to see the children directly I declined. 

32.  I was therefore astonished to be told at the beginning of the trial that the children had again written to the Official Solicitor on the 31 August 2016 – i.e. shortly before the commencement of the trial and that their views had now changed. This is especially given the fact that those views now seemed to echo those of the mother. I was told by the Official Solicitor in her latest report that:

… The reasons for the change as set out in the children’s letter are: (1) no need to bring their school uniforms, shoes and schoolbags to their father’s home; (2) there may be a school club or school team training; and (3) they need not worry about forgetting to bring their textbooks or homework to school for the week. 

33.  Generally it is clear that the mother was of the view that the children’s stated preferences should be given determinative weight. She said that she herself had no strong feelings about the Thursday night access, but that she was taking this stance because PY had told her that she was worried about the demands of her new school and that it was the daughter who wanted to change the current shared care arrangement. 

34.  As I indicated to both parties during the Children’s Dispute Resolution hearings and at the trial, the views of the children are not determinative. Their views are one aspect of the case that I must take into account when considering the matter overall. It is true that as children get older that their views carry more weight. However, in a case such as this, the stated views of the children must be approached with some degree of caution. This is especially so given the inappropriate way that they appear to have been brought into these proceedings. Further the children should not be put in a position where the onus is on them to “choose” between each of their parents or the stance taken by each of them.

35.  In such circumstances it seems to me that it is virtually impossible for me to attach any weight at all to the children’s so called changed of stance as expressed through the Official solicitor’s latest report.  

How should the care of the children be split going forward? In particular should Thursday night access be dispensed with? 

36.  The argument centres on the following – Homework completion, Lack of time to prepare for exams and other assessments, Inconvenience and the Length of travelling time.

Homework completion

37.  The parties’ spent and inordinate amount of time during the trial talking about homework and the completion of that homework. It is accepted that the children have a lot of homework and that PY’s commitments are going to increase now that she is in senior school. It also appears from the evidence that PY is hard working and concerned about her performance – although this may to some extent simply echo the concerns expressed by her mother. P on the other hand appears to be more academically gifted and to consistently achieve good grades. PY seems to struggle a little in comparison. Nevertheless the parents chose to send her to a top girl’s school where there is a lot of emphasis on academic achievement. The mother also attended the same school, although she left after Grade 5 to pursue her dancing career.

38.  The mother complained that the father was unable to coach or guide the children appropriately, that he didn’t always ensure that homework was completed and she queried his choice of a tutor. Generally I accepted the father’s evidence on this. I am sure that there have been times when homework has not been completed or not to the standard expected by the schools – but generally speaking I accept that the father has put suitable arrangements in place to assist the children with their homework when they are in his care. It seems to me that it is very important for the children to see and spend time with their father and for him to continue to be involved in every aspect of their lives – which includes their schooling, homework and extracurricular activities.

39.  Going forward each parent will be responsible for ensuring that the children complete their homework and other assignments when they are in their care. They may make arrangements for tuition and other extracurricular activities when the children are with them. I should add that I will expect P to attend the Saturday morning sessions at his school and that this may mean that other arrangements will need to be made for pickups on Saturday mornings. 

Lack of time to prepare for exams     

40.  I accept that during the actual exam periods that it may be difficult for the children to go from household to household and during those periods I will suspend the Thursday night access or Sunday access. PY’s exams are in January and June and P’s exams are in February and May. Generally speaking I accept that the children will need to prepare for their exams over time and that both parents should assist in that.

Inconvenience

41.  Again a lot of time was spent during the trial talking about the difficulties with packing up for the Thursday night access, how the children sometimes forgot things (PY in particular), how difficult the father was about this (something that he denied), how much stuff need to be carried from pillar to post etc etc. Generally speaking these issues appeared to me to have been blown out of all proportion, something that was also borne out by the Social Welfare Officer’s observations.

Length of travelling time

42.  The father lives further away from the school than the mother. This necessitates some travel. The father used to drive the children, but he now no longer has a car following a recent car accident. Thus he travels by taxi when with the children. The mother complains that she cannot afford a taxi and made great play of the difficulties caused to both her and the children when attempting to travel by public transport with all of the children’s gear at the end of access. Some progress was made in this respect during the trial and the father agreed to pay for the cost of a taxi back to Hong Kong Island at the end of each access period on either Saturday or Sunday as referenced above.

43.  Consequently paragraph 1 of the court order dated the 8 July 2014 shall be varied to the extent that the father do pay the mother interim maintenance for the two children of the family in the sum of HK$19,007.50 per month per child. The mother’s maintenance pending suit in the sum of HK$20,985 will remain unchanged. In total then the father shall pay the mother the sum of HK$59,000 per month (i.e. (HK$19,007.50 x 2) = HK$38,015 + HK$20,985 = HK$59,000). On that premise the mother shall be responsible for picking up the children on either Saturday or Sunday depending on whether it is a long or a short week and for taking them home or to school by taxi. An acknowledgment/agreement to that effect shall be included in the court order. In so far as Sunday’s are concerned it is further ordered that the pickup time shall be 2:30 pm as opposed to 3 pm.  

Generally

44.  The mother also argued that the children don’t go to bed early enough when they are with the father and that they get tired easily. Although I am sure that the children do get tired easily – again that does not appear to me to be a valid reason to change the access schedule.

45.  Both parents described how they spent their time with the children. Notwithstanding the chronic nature of this litigation and the depth of distrust and ill feeling that now exists between the parties themselves, I have no doubt that they both love their children deeply and that they are both good parents. Both should be allowed to continue to parent their children as fully as possible – especially as they each clearly have different strengths and weaknesses from which the children should in an ideal world be able to benefit from.

Conclusion 

46.  Thus I do not intend to change the present access arrangement save that in the event that either child has an exam on a Friday then access on Thursday for both children shall be dispensed with. In that event access shall take place from Friday at 6 pm to either Saturday or Sunday depending on whether it is a long or short week. In the event that either child has an exam on a Monday then access on Sunday for both children shall be dispensed with and access shall be from 6 pm on Thursday to Saturday at 11 am. It is entirely possible that the children will have exams over a two week period in which case there may be exams on both Friday and Monday. In that event and for the avoidance of doubt access for both children shall be from 6:00 pm on Friday to Saturday at 11 am. In all three scenarios the weekend following the exams shall be a long weekend. I have considered splitting the children so that only the child who has the exams has access suspended but it seems to me that the result may be a logistical nightmare.

In addition should any further orders be made in relation to other miscellaneous issues including the pickups and drop offs and arrangements for exam periods? 

47.  For the avoidance of doubt the father shall be responsible for picking up the children on Thursday evening at 6 pm (or Friday at 6 pm in the event of exams) and the mother shall be responsible for picking them up from the father’s home on either Saturday at 11 am or Sunday at 2:30 pm as appropriate.

48.  In so far as the English tutor on a Saturday morning is concerned, the father indicated that he was not very satisfied with her performance. It is for the father to decide who he employs to assist the children when they are in his care. Likewise it is for the mother to decide who to employ or what classes the children should attend when they are in her care. In that regard I apologise for my misunderstanding during the trial concerning the mother’s enrolment of PY into a Chinese class on Thursday afternoon after school. I accept that the mother was perfectly within her rights to do so given the father’s time with the children does not start until 6 pm.

49.  As indicated above the access shall therefore continue subject to the caveat about exams from Thursday at 6 pm to Saturday at 11 am in week one and from Thursday at 6:00 pm to Sunday at 2:30 pm in week two. In the event that P needs to be at school on Saturday morning then pickup time may need to be amended accordingly. I will give liberty to apply in that respect only.    

Costs

50.  Given that this is a child related matter and notwithstanding some of the concerns expressed by myself in this judgment I will nevertheless make an order nisi to be made absolute in 14 days time that there be no order as to costs. There shall be certificate for counsel.

51.  Finally it seems to me that given the level of involvement of the children in this case and given the circumstances outlined above that it would be appropriate for an independent third party to explain my decision to the children. It seems that Ms Lee, the official Solicitor is an appropriate person to take up that task and I would ask that she undertake that on my behalf.   

FCMC 8680 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8680 OF 2012

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

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

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

RULING
(Costs on a defended suit)

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

Introduction

1.  This is an application by a respondent husband who challenged my costs order nisi that he do pay the wife’s costs of and incidental to a defended suit. He does so because he says that he offered to settle the matter and that the wife unreasonably refused to agree to his proposal.

Background

2.  On the 25 October 2013 I handed down a judgment in which I granted the petitioner wife a divorce based on the husband’s unreasonable behaviour. At the end of that judgment I said as follows:

Conclusion

24.  I will therefore grant a decree nisi of divorce based on the husband’s unreasonable behaviour.  In doing so I accept that the behavior complained of falls within the lower end of the spectrum deemed to be unreasonable. It is though quite clear that this marriage has broken down irretrievably and that there is no possibility, certainly as things stand at present, of a reconciliation. I am also of the view that this matter can and should have been dealt with differently and by consensus if at all possible. Trials of this nature only serve to make things worse between parties. This is to be avoided where at all possible, especially where children are concerned.

25.  The husband was warned on several occasions of the possible cost consequences if he failed to be reasonable. I understand and appreciate his concerns, but notwithstanding that I intend to make an order nisi to be made absolute in 28 days time that the husband do pay the wife’s costs of and incidental to the suit, including any costs reserved on a party and party basis with certificate for counsel.

…

27.  Written submissions [on costs] to be filed within 28 days.  

3.  I should add that generally speaking defended suits are never encouraged by the courts. Thus parties are routinely told during any preliminary hearings prior to trial, that there will be cost consequences in the event that one or other of the parties is deemed to be unreasonable, regardless of the outcome.

4.  The judgment on the defended suit was handed down on the 25 October 2013. The husband had acted for himself during the trial. Following the delivery of the judgment in open court the husband said that he had been prepared to compromise the matter on the basis of one year separation with consent. This came as something of a surprise given that the parties had been encouraged to try to compromise the matter throughout and had seemingly been unable to do so.

Delay

5.  There was then a significant delay in relation to the costs issue caused in part by new solicitors coming on the record for the husband post trial. They attempted to rely on an alleged settlement proposal dated the 23 September 2013 that the divorce proceed on the basis of husband’s unreasonable behaviour.

6.  It later transpired that no such offer was ever received by the wife. It is still not clear how this confusion arose. In any event this situation led to the cost hearing being delayed whilst the matter was clarified.  

7.  Subsequently initial attempts to deal with this matter on paper proved to be fruitless – mainly because it became difficult to follow the sequence of events that occurred both immediately prior to and after trial. Other difficulties followed. The matter was finally set down for hearing on the 11 March 2015. In the intervening period there have been numerous hearings pertaining to the children plus a maintenance pending suit hearing. Although the level of conflict between the parties remains very high, they are to be commended for being able to settle some matters relating to the children in a series of Children Dispute Resolution hearings. Final ancillary relief has not yet been resolved.

The issue

8.  The issues to be determined in this Ruling then are as follows: a) what is the appropriate order for costs bearing in mind the outcome of the trial and the without prejudice negotiations entered into prior to that trial. b) should there be any cost consequences arising out of the nonexistent offer of compromise of the 23 September 2013?    

The judgment

9.  It is clear from the judgment that there was an issue concerning the separation between the parties. At paragraph 2 I said as follows: 

2.  It would appear from both parties testimony that this marriage has been in considerable difficulty for a very long period of time. The wife makes a number of allegations against the husband most of which he denies. What is not in dispute however is that the wife moved out of the matrimonial home in May 2009 after a very heated argument, which also involved the elder child. Shortly thereafter the wife discovered incriminating evidence which implied that the husband was having an affair. The husband accepts that to be the case. He says that he had a relationship outside the marriage sometime between 2007 and 2008. The wife discovered this in June 2009. Both parties agree that their sexual relationship came to an end from May 2009 when the wife moved out.

3.  t seems that the wife’s father then intervened in an informal way and that he acted as a middle man helping the parties to resolve disputes as and when they arose. It was because of this that the parties agreed, rather strangely in the circumstances, that the wife moving out in May 2009 would not constitute a separation for legal purposes and they entered into an agreement to that effect. It is not clear whether the parties were legally represented at that time.

4.  Two years later in May 2011 the wife moved back into the matrimonial home but it does not seem that this was in order to effect reconciliation. Rather it seems to be accepted that there was an arrangement between the two whereby the husband supported her financially and the wife agreed to take care of the children’s homework. The husband in turn cooked and undertook most of the household chores. To all intents and purposes it seems that the parties were simply “flat sharing” and dividing up their domestic responsibilities between the two of them. There is some dispute regarding the extent to which they interacted socially or as a family. However, their marital relationship did not recommence and that much is clear.

5.  The wife now asks that the marriage be dissolved, something that even now is still being resisted by the husband.

10.  At paragraph 10 – 12 I added:

10.  Consequently the question that arose in this case was whether or not the parties had been separated for two years when the wife issued her [unreasonable behaviour] divorce petition in June 2012. The difficulty in this instance however, is that although the parties had begun living separately and apart in May 2009, they had also entered into an agreement which stated quite categorically that they were not legally separated.

11.  Further, the wife for her part said in the witness box that she did not formulate the intention to separate until sometime in 2010 which is after she left the matrimonial home initially in May 2009. Up until that point she had still held out some hope that the marriage could be saved. She said that she had been very shocked when she discovered the photographs of the husband with another woman in June 2009 but she did not actually decide that the marriage was over from her perspective until sometime between 2010 and 2011. During that time her father acted as an informal middle man and attempted to mediate between the couple. This led in part to the wife moving back to the matrimonial home in May 2011. Unfortunately from the wife’s perspective the situation between her and the husband did not improve and she then decided to proceed with a divorce. As I have said she issued proceedings on the 18 June 2012.

12.  Unfortunately this sequence of events has made it difficult to determine when exactly the husband and wife became separated. This has meant that a short trial has become inevitable. 

11.   Put simply then, based on the evidence before me at the time, I found largely in favour of the wife and I pronounced a decree nisi based on the husband’s unreasonable behaviour. 

The without prejudice correspondence

12.  It is now clear that immediately prior to the trial a number of without prejudice letters passed between the parties. These are as follows:

Date	Letter From	Contents/Events
2/9/13	H’s solicitors	The husband offered to settle the divorce based on one year separation with consent
5/9/13	W’s solicitors	The wife agreed to a divorce based on one year separation with consent on condition that the husband paid the costs of the petition
11/9/13	H’s solicitors	The husband sent a draft consent summons without stating the date of separation
16/9/13	W’s solicitors	The wife pointed out that there would be technical issues without identifying what those might be. She also did not accept the husband’s proposal on costs
16/9/13	H’s solicitors	The husband sent a chasing letter which crossed over with the wife’s letter of the same date
23/9/13	H’s solicitors	The husband sent another letter with a draft consent summons attached but again did not provide a date of separation
25/9/13	W’s solicitors	The wife stated that she would only proceed on the basis of her original unreasonable behaviour petition

13.  The real difficulty with these letters is that they are lacking in detail. Further, on the face of it no attempt seems to have been made by either side to discuss the matter fully or to otherwise seek a sensible compromise on the issue of the divorce. Attempts were made by counsel for the wife to give evidence from the bench on this point and to also file an affidavit setting out her version of events, whilst still acting for the wife. This was not permitted. In any event what is clear is that the without prejudice correspondence – such as it is, and putting it as neutrally as I can, is very limited in scope. Both sides must accept some responsibility for this. For example when the husband’s solicitors wrote on the 11 September 2013 enclosing a draft consent summons based on 1 year separation with consent, it is clear that the date of separation was not stated nor agreed; further it was not clear whether the original petition could be amended or whether a further petition would be necessary. None of this is stated in the letter. There is no proposal relating to the date of separation. In turn none of this is identified in the wife’s solicitor’s letter in response of the 16 September. That letter simply says that the court would not allow the petition to be amended in the way proposed. There is no further detail in that letter either. Just as the husband should have provided a full offer of settlement containing all relevant detail, likewise so should the wife have set out clearly what she identified as being the difficulties with the husband’s proposal. It was also incumbent upon her to make a sensible counter proposal. Instead she simply reverted back to the original petition based on unreasonable behaviour. It should also be noted that many of the unreasonable behaviour particulars relied upon by the wife were not accepted at trial. So although the wife could be said to have “won” she did not “win” on all the points raised.

14.  Counsel for the wife says that her client had no alternative but to proceed with the trial because there were difficulties with the period of separation. However this is something that only became clear during the hearing. I do not necessarily accept that that was a reason for not settling matters prior to the trial. Certainly it was not something that was raised properly in correspondence. If the period of separation was perceived to be a problem then that was something that could and should have been identified in the without prejudice letters and discussed. In the event that both parties agreed that they had not infact been separated for a year then alternatives could also have been explored. On the face of it I blame both parties for this impasse. This is a case that can and should have settled.

Following the trial

15.  Following the trial further difficulties ensued when the husband’s new solicitors maintained that the husband had offered to settle the issue of the divorce based on unreasonable behaviour. Reference to a consent summons attached to a letter dated the 23 September 2013 was referred to in their written submission on costs. Not surprisingly perhaps the wife’s solicitors wrote to the court pointing out that they had never received such a letter. Consequently although the husband’s solicitors filed a revised submission on costs on the 27 November 2013 removing this reference, the damage was done and it was necessary for the matter to be further clarified. Further issues arose over confusion between other letters. In any event what is clear is that the wife’s solicitors did not receive the letter dated the 23 September 2013 originally attached to the submission on costs. Foul play was suspected. However on the face of the evidence before me I think that is probably unlikely – but certainly costly mistakes were made which only served to raise the temperature between the parties even higher and for no useful purpose.

The law

16.  The relevant law is not in dispute and can be found in Order 62 RHC on costs. To summarize it is accepted that the issue of costs lies in the discretion of the court and that costs are normally expected to follow the event.  This presumption is more easily displaced in family proceedings than in others. In exercising the courts discretion reference can also be made to a number of factors as set out in Order 62 r 5 including inter alia any without prejudice save as to costs letters, the litigation conduct of the parties and whether either party could be said to have succeeded in whole or in part.

Each party’s respective positions on costs

17.  In counsel’s oral submissions the husband asks that there be no order as to costs up until the 1 September 2013. (On the 2 September the husband sent his first without prejudice save as to costs letter to the wife). Thereafter, i.e. from the 2 September 2013 the husband seeks his costs from the wife on an indemnity basis.

18.  The wife for her part says that she “won” the trial and that therefore costs should follow the event. She asks for her costs on a party and party basis up until the 21 November 2013 (which is when the husband’s then solicitors filed their submission on costs) and costs on an indemnity basis thereafter.

Decision

19.  Bearing in mind all of the above it seems to me that the most appropriate order is that there should be no order as to costs up until the 1 September 2013. Thereafter i.e. from the 2 September 2013 to the 10 March 2015 the husband shall pay 50% of the wife’s costs of and arising out of the defended suit on a party and party basis to be taxed if not agreed. There shall be certificate for all counsel involved. It seems to me that this order recognises the following facts:

a)  The husband did attempt to settle matters on sensible terms. Had he not done so then the original order on costs would most likely have remained in place. But although he attempted to compromise the matter, his offer was not a detailed one and it was not one that he followed up on fully. Likewise this order recognises that the wife failed to enter into sensible and fruitful settlement negotiations with the husband at this stage. As I have said both sides must bear some responsibility for the fact that the settlement negotiations failed needlessly;

b)  It also recognises that the wife was ultimately successful in the trial - although as I have said she was not successful on all of the particulars contained in the original divorce petition;

c)  In so far as the costs from the 21 November 2013 to the 11 March 2015 are concerned I accept that these arose in part because of what appears to have been a mistake by the husband’s then solicitors. However this mistake was corrected on 27 November 2013. There were also a number of hearings during the period which followed and both parties filed written submissions on costs which were relied on in part during the hearing on the 11 March 2015. In such circumstances it seems to me that the husband should pay a contribution towards the wife’s costs during this period also. A 50% contribution seemed fair and reasonable in all the circumstances, such costs to be taxed on a party and party basis if not agreed. This recognises the mistakes made by the husband’s legal team and the cost consequences which flowed from that mistake. I do not accept that the mistake was of such magnitude as to lead to an indemnity costs order. Neither do I think that the husband should be wholly responsible for the wife’s costs during this period.

20.  Given that I have not found completely for one side or the other there shall be no order as to costs of this hearing.

FCMC 8680/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 8680 OF 2012

________________________

________________________

________________

JUDGMENT
(Defended Petition)

________________

1.  This is a defended divorce.  The wife seeks a decree based on the husband’s unreasonable behaviour.  The husband for his part says even now that he does not believe that the marriage is over. 

2.  It would appear from both parties’ testimony that this marriage has been in considerable difficulty for a very long period of time.  The wife makes a number of allegations against the husband, most of which he denies.  What is not in dispute, however, is that the wife moved out of the matrimonial home in May 2009 after a very heated argument which also involved the elder child. Shortly thereafter, the wife discovered incriminating evidence which implied that the husband was having an affair.  The husband accepts that to be the case.  He says that he had a relationship outside the marriage sometime between 2007 and 2008.  The wife discovered this in June 2009.  Both parties agree that their sexual relationship came to an end from May 2009 when the wife moved out. 

3.  It seems that the wife’s father then intervened in an informal way and that he acted as a middleman, helping the parties to resolve disputes as and when they arose.  It was because of this that the parties agreed, rather strangely in the circumstances, that the wife’s moving out in May 2009 would not constitute a separation for legal purposes and they entered into an agreement to that effect.  It is not clear whether the parties were legally represented at that time.

4.  Two years later in May 2011, the wife moved back into the matrimonial home but it does not seem that this was in order to effect a reconciliation.  Rather, it seems to be accepted that there was an arrangement between the two whereby the husband supported her financially in part and the wife agreed to take care of the children’s homework.  The husband in turn cooked and undertook most of the household chores.  To all intents and purposes, it seems that the parties were simply flat sharing and dividing up the domestic responsibilities between the two of them.  There is also some dispute regarding the extent to which they interacted socially or as a family.  However, their marital relationship did not recommence and that much is clear.

5.  The wife now asks that the marriage be dissolved, something that even now is still being resisted by the husband.

Background

6.  The wife trained as a dancer at X and her father is an academic.  She is now 36 years of age.  The husband for his part says he has had a number of occupations.  It seems that he was unemployed for a while and that he was also engaged previously as a real estate agent.  He says that he invests in stocks and shares on his own account and it seems that he also previously ran a small taxi company.  He is now 47 years of age.

7.  The parties married in May 2004 and had two children, a daughter who is aged nearly 9 years and a son who is 6 years old.  The wife filed for divorce on 18 June 2012.  The husband filed an Answer on 24 August 2012. He did not cross-petition and the wife subsequently filed her Reply on 23 November 2012. 

8.  There are a number of issues to be determined.  Firstly, on the balance of probabilities, has the husband behaved in such a way that the wife cannot reasonably be expected to live with him and consequently can the parties’ marriage be said to have broken down irretrievably.  Secondly, did the parties live together as man and wife for a period in excess of six months following the wife’s discovery of the unreasonable behaviour complained of. 

The law

9.  There is only one ground for divorce in Hong Kong and that is that the marriage has broken down irretrievably.  This can proved by one or more of the five facts found in section 11A of the Matrimonial Causes Ordinance, Cap. 179.  It is also possible to apply for a divorce jointly based on one year’s separation.  In this instance, as I have said, the wife relies upon the ground of unreasonable behaviour.  Where it is clear that a marriage has broken down irretrievably, the parties are encouraged by the courts in Hong Kong to adopt a sensible and pragmatic attitude with a view to dissolving their marriage as quickly and as painlessly as possible.   Where the particulars pleaded are sufficient to enable a decree to be granted then, as indicated during the trial, the court will do so without investigating into any of the other allegations made, see Grenfell v Grenfell [1978] Family 128.  Rayden puts it thus at paragraph 9.65:

“ Where on the face of the pleadings there are facts sufficient to enable the court to grant a decree of dissolution, the court has firmly declared that it is in general wrong to permit a party to have other allegations investigated, in particular, where on the face of the pleadings 5 years separation is alleged by the respondent”,

- which in our case would be 2 years,

“and admitted by the petitioner who alleged behaviour in the petition, there is no point in conducting an enquiry into behaviour merely to satisfy feelings however genuinely and sincerely held by the petitioner.”

10.  Consequently, the question that arose in this case was whether or not the parties had in fact been separated for 2 years when the wife issued her divorce petition in June 2012.  The difficulty in this instance, however, is that although the parties had begun living separately and apart in May 2009, they had also entered into an agreement which stated quite categorically that they were not legally separated. 

11.  Further, the wife for her part said in the witness-box that she did not formulate the intention to separate until sometime in 2010 which is after she left the matrimonial home initially in May 2009.  Up until that point she had still held out some hope that the marriage could be saved.  She said that she had been very shocked when she discovered the photographs of the husband with another woman in June 2009 but she did not actually decide that the marriage was over from her perspective until sometime between 2010 and 2011.  During that time her father acted as an informal middleman and attempted to mediate between the couple.  This led in part to the wife moving back to the matrimonial home in May 2011.  Unfortunately, from the wife’s perspective, the situation between her and the husband did not improve and she then decided to proceed with a divorce.  As I have said, she issued proceedings on 18 June 2012.

12.  Unfortunately, this sequence of events has made it difficult to determine when exactly the husband and wife became separated.  This has meant that a short trial has become inevitable. 

13.  Turning next then to the grounds of unreasonable behaviour, section 11A(2)(b) of the Matrimonial Causes Ordinance states that:-

“The court hearing a petition for divorce shall not hold that the marriage has broken down irretrievably unless in this instance it can satisfy the court that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”

14.  So what is meant by that?  The appropriate test was originally formulated in the case of Livingstone-Stallard.  In that case the Judge posed the following question:-

“Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him taking into account the whole of the circumstances and the character and the personalities of the parties. It is then both a subjective and an objective test. The issue is not so much whether one spouse’s actions are unreasonable per se, although that may be the case, but rather whether this particular spouse found the other’s actions unreasonable. On that basis, the court will determine whether or not the one could reasonably be expected to live with the other.”

15.  This test has been approved in a number of cases since, including O’Neill v O’Neill [1975] 3 AER 289, which was cited with approval in the Hong Kong case Lindsay v Lindsay referred to below.  Reference should also be made to the six month rule at section 15A of the Matrimonial Causes Ordinance which states in effect that if the parties have lived together as man and wife for a period in excess of 6 months after the last incident of unreasonable behaviour complained of then that incident cannot be relied upon in support of the petition.

Discussion

16.  In summary, the wife complains of four categories of unreasonable behaviour, namely:-

a)  the husband’s extramarital affairs;

b)  incidents of domestic violence;

c)  his failure to maintain, and

d)  his lack of concern for her general welfare and wellbeing.

I will deal with each of these in turn.  In doing so I should add that in part what is described is simply symptomatic of a marriage breaking down:-

a) The husband’s extramarital affairs

17.  The wife did not plead adultery but only unreasonable behaviour.  As set out above, the husband does not deny that he had at least one extramarital affair but on his case this took place between 2007 and 2008 which is before the wife moved out of the matrimonial home in May 2009.  The wife for her part says that she believed that the affair was conducted between 2006 and 2007.  Therefore, on both party’s case, although they probably lived together as man and wife for a period in excess of six months after the affair, from the wife’s perspective they did not do so once she discovered the affair. 

18.  I accept that despite the existence of the family agreement that in fact the parties did not live together as man and wife after May 2009  thus I also accept that if the affair continued until late 2008 that this is something that the wife could in theory rely upon. Unfortunately that date is not agreed. Consequently, other than being generally symptomatic of a relationship breaking down, it does not seem to me that the adultery is something that the wife can rely upon, especially given that she did not specifically plead adultery in her petition. 

b) Incidences of domestic violence 

19.  The wife said in the witness-box that she was frightened of the husband.  She describes one incident in particular in April 2009 that led initially to her moving out of the matrimonial home.  In general, I accept her version of events on that incident and that this was from her perspective the final straw.  As I have said above, given that the parties did not in fact live together as man and wife after May 2009 and notwithstanding the fact that the wife moved back in May 2011, it seems to me that the wife can rely on this incident in support of her unreasonable behaviour petition. 

20.  The wife’s lawyers also ask me to find that the husband had been violent towards the wife from at least December 2008.  My difficulty with that is that even if that had been the case, the parties continued to live together until the following May which is very close to the six month deadline.  In the absence of specific dates, I do not think that this is something that the wife can rely upon.

c) Failure to maintain

21.  A great deal was made of this aspect of the case during the hearing although it is only mentioned very briefly in the petition: “The respondent has not provided the petitioner with sufficient maintenance to support and meet ends meet” (which presumably should read “to make ends meet”).  In general, I accept that money was an issue within the marriage although this was resolved in part by the involvement of the wife’s father and a number of agreements reached, including the fact that the husband began to pay the wife $3,000 per month in August 2011 which later rose to $5,000 per month in February 2012.  I accept, however, that the wife only returned to the matrimonial home because of financial necessity in May 2011 and that that was because the husband had stopped paying the rental on her alternative accommodation.  It is difficult, however, to conclude from this that the husband deliberately refused to maintain the wife, especially as it is not clear what his financial position was at the time.  I do not consider that this aspect of the case has been sufficiently proved. 

d)    The husband’s lack of concern for the wife’s general welfare and wellbeing

22.  The wife says that there is no communication between the parties save for some discussion relating to the children.  She says that the husband ignores her completely and for prolonged periods of time.  This does not seem to be seriously disputed by the husband.  He says that it is difficult as the wife keeps to herself and stays in her own room.  He tried to suggest that there was normal communication in the presence of third parties and the wider family.  I doubt that to be the case.  In any event, it seems to be that this particular wife, from both an objective and a subjective perspective, found the husband’s actions in this respect to be unreasonable to the extent that she should not be required to live with him.

23.  I am therefore of the view that although at the milder end of the spectrum, that the particulars pleaded by the wife in paragraphs b), c), d) and e) of her petition are sufficient to enable a decree to be granted.

Conclusion

24.  I will therefore grant a decree nisi of divorce based on the husband’s unreasonable behaviour.  In doing so, I accept that the behaviour complained of falls within the lower end of the spectrum deemed to be unreasonable.  It is, though, quite clear that this marriage has broken down irretrievably and that there is no possibility, certainly as things stand at present, of a reconciliation.  I am also of the view that this matter can and should have been dealt with differently and by consensus if at all possible.  Trials of this nature only serve to make things worse between parties.  This is to be avoided where at all possible, especially where children are concerned.

25.  The husband was warned on several occasions of the possible cost consequences if he failed to be reasonable.  I understand and appreciate his concerns but not withstanding that, I intend to make an order nisi to be made absolute in 28 days time that the husband do pay the wife’s costs of and incidental to the suit including any costs reserved on a parte and parte basis with certificate for counsel. 

26.  Upon hearing the solicitors for the petitioner and respondent in person, it is ordered that the first appointment hearing and children’s appointment shall be adjourned to 11 December 2013 at 9.30 am.  Both parties do personally attend that hearing and costs be reserved. 

27.  Written submissions on costs to be filed within 28 days.