NPYJ v. SMRC

CAMP 255 /2020

[2021] HKCA 495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 255 OF 2020

(ON AN INTENDED APPEAL FROM FCMC NO 9098 OF 2018)

________________________

________________________

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DECISION ON COSTS

________________________

Hon Kwan VP (giving the Decision on Costs of the Court):

1.  On 22 February 2021, we handed down our judgment dismissing the respondent’s (“the Father’s”) application for leave to appeal against two orders made by Her Honour Judge Grace Chan in the exercise of her case management powers in respect of a number of applications taken out by the Father relating to the children of the family. We also dismissed his stay for execution of the judge’s order of 28 October 2020 pending appeal. We made an order nisi that the Father is to pay the petitioner’s (“the Mother’s”) costs of his summons before us, and this order will be made absolute if no application to vary is made within 14 days of the handing down of our judgment.

2.  On 5 March 2021, the Father filed a summons and a supporting affidavit to apply for variation of the costs order nisi such that the Mother is to pay his costs of his leave application or that there should be no order as to costs.  He also sought to amend our judgment on 22 February 2021 in two respects under the ‘slip rule’.

3.  Kwan VP directed on 9 March 2021 that the Father’s aforesaid summons is to be dealt with on paper, that the Father’s affidavit on 5 March is to stand as his submission and that the Mother is to have leave to lodge a submission in answer. The Mother lodged her submission on 22 March.

4.  On 12 March 2021, the Mother lodged her statement of costs pursuant to the directions on 22 February and the Father lodged his objections to the statement of costs on 25 March.

Application for variation of costs order nisi

5.  The Father put forward these grounds in seeking variation of the costs order nisi:

(1)     the Mother is in breach of the Consent Order dated 4 July 2019 (“Consent Order”) which necessitated his various applications;

(2)     the Mother failed to comply with the direction of the Registrar of Civil Appeals dated 6 January 2021 as she did not serve a statement in opposition; and

(3)     the judgment of 22 February 2021 does not refer to certain “material reference” to the transcript of the hearing before the judge on 29 September 2020 which was referenced in the Father’s statement dated 22 January 2021.

6.  None of these grounds are of merit.

7.  As to ground (1), the available evidence is quite simply insufficient to establish that any failure to comply with Consent Order was caused by any deliberate act of the Mother.  As mentioned in our judgment of 22 February 2021 at §7, the children had refused to meet the Father in the two access sessions in July 2019 and no further access session could be arranged due to the children’s unwillingness to meet the Father.

8.  Ground (2) is wholly immaterial.  The Mother did serve a skeleton submission in opposition of his renewed application for leave to appeal on 6 January 2021.

9.  As for ground (3), this court has considered the transcript of the hearing on 29 September 2020 as stated in our judgment at §§32 to 33.  That we did not specifically mention what the Father regarded as “material reference” on page 93 of the transcript is of no consequence. The Father is merely seeking to re-argue the merits of his leave application.

10.  There is no reason whatsoever to depart from the usual rule that the Father should bear the costs of his unsuccessful leave application, which is entirely without merit. We therefore make absolute the costs order nisi on 22 February 2021.

Summary assessment of costs

11.  The Mother’s statement of costs is for a total sum of $9,600, including 30 hours for preparation of documents and 15 hours for perusal.  The Father objected to these items as excessive.  He suggested allowing no more than three hours for each.  We will allow a total of 20 hours for preparation of documents and perusal.

12.  The Father also objected to an item of $200 being “attendances to court”, claiming that this should be disallowed as the application was by paper disposal and no hearing was held.  We allow this item in full as the Mother had to attend court to lodge any document she was directed to lodge.

13.  The amount of reasonable costs assessed on a gross sum basis in respect of the Father’s leave application is $4,300.

Amendment of judgment under the slip rule

14.  The Father asked the court to make two amendments to the judgment of 22 February 2021.  First, he stated that the date of 22 January 2021 should be included in the dates of written submissions on page 1.  Second, the word “temporal” in paragraph 8 should read “temporary”.  Neither of these has any impact on the judgment and it is a sheer waste of the court’s time to be asked to deal with this.

15.  There was good reason not to mention the Father’s statement or submission dated 22 January 2021.  He had served a statement in support of his leave application dated 23 December 2020, which is of 11 pages and exceeded the five-page limit in Practice Direction 4.1 §8.  The Mother responded to this statement and served her submission on 6 January 2021 of seven pages, also exceeding the page limit.  The Registrar then gave directions that the Father should revise his statement and lodge a statement not exceeding the page limit, which the Father complied with by his statement of 22 January 2021.  The Mother did not lodge any revised statement in response.  It was for this reason that only the earlier statements of the parties were mentioned.  The revised statement of the Father, which was also considered by this court, did not add anything of significance not contained in his earlier statement.

16.  We decline to exercise our discretion to make any amendment as requested.

17.  We repeat our warning in §42 of our judgment that the Father should desist from making applications that are unnecessary, failing which the court may consider making a restricted application order against him.

Costs of the application to vary the costs order nisi

18.  We order the Father to pay the Mother’s costs of this summons and make an order for gross sum assessment of $500 in her favour.  This costs order and gross sum assessment are in the nature of orders nisi.  If there is no application to vary within 14 days of the handing down of this decision on costs, the orders will be made absolute.

CAMP 255/2020

[2021] HKCA 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 255 OF 2020

(ON AN INTENDED APPEAL FROM FCMC NO 9098 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.  This is a renewed application by the respondent (“the Father”) for leave to appeal to the Court of Appeal against two orders made by Her Honour Judge Grace Chan on 28 October 2020 (“28/10/2020 Order”) and 4 November 2020 (“4/11/2020 Order”) in the exercise of her case management powers. Leave to appeal was refused by the judge on 9 December 2020 (“Leave Decision”)^[1]. The Father’s summons before us was issued on 23 December 2020. He also sought a stay of the said orders pending the final determination of his proposed appeal.

2.  Having considered the relevant papers and the submissions of the Father and the petitioner (“the Mother”), we exercise our power under Order 59 rule 2A(5) to determine this application on paper without a hearing^[2].

3.  The Father and the Mother have been acting in person.

Background

4.  The relevant background matters may be stated as follows^[3].

5.  The Father and the Mother were formerly married. They have two daughters who were born in 2008 and 2011 (“the Children”).

6.  By a consent order dated 4 July 2019 (“the Consent Order”), the parties were given joint custody of the Children, with care and control to the Mother and reasonable access to the Father.  The Consent Order provided that the Father’s access was to be implemented progressively, with a progress report on the first access session to be prepared by the social welfare officer.

7.  The first access session took place on 8 July 2019.  Only the elder daughter attended while the younger daughter had refused to meet the Father.  The second access session took place on 19 July 2019 and the younger daughter continued to refuse to meet the Father.  No further access session could be arranged due to the unwillingness of the Children to meet the Father.

8.  Among the many applications taken out by the Father in the Family Court since the Consent Order was made^[4], he took out a number of applications for defined access, temporal removal outside Hong Kong, variation of care and control as well as permanent relocation of the Children outside Hong Kong^[5].

9.  On 12 March 2020, the Father took out an application for adducing expert evidence to support his contention that the Children have been subjected to parental alienation administered by the Mother (“theExpert Summons”). He proposed to adduce the expert report of Dr Jadis Blurton and Dr Kristie Craigen dated 11 February 2020.

10.  The judge was first seized of the applications in these proceedings on 29 September 2020, by which date there were 9 outstanding summonses taken out by the Father.  The judge dealt with 6 of these summonses on 29 September 2020, including the Expert Summons.  It is one of the grounds of the Father’s intended appeal that the judge has not finally disposed of the Expert Summons on 29 September 2020, and that would appear to be the reason why he filed 2 further summonses on 3 November 2020 (for the appointment of Dr Kristie Craigen as the single joint expert) and 9 November 2020 (to “renew” the Expert Summons for the expert report of Dr Jadis Blurton and Dr Kristie Craigen to be adduced).

11.  According to the transcript of the hearing on 29 September 2020, the judge raised the question with the parties why the single joint expert (Ms Lora Lee) previously appointed by the court in 2017 under FCMC 6134/2017 could not have been asked to provide an updated expert report to address the issue of alleged parental alienation.  Having heard their submissions, the judge explored with the parties whether they would consent to appointing another single joint expert to address this issue. After some exchanges with the court, both parties informed the judge they agreed to this^[6].

12.  Having ascertained that both parties consented to appoint another single joint expert to address the issue of the alleged parental alienation, the judge made an order on 29 September 2020 that a single joint expert in child psychology with experience/expertise in parental alienation be appointed to prepare an expert report, which shall be ready 21 days before the next pre-trial review on 4 January 2021.  She gave further directions that in case the parties could not agree on the choice of expert, they should each nominate one expert for the court to make further directions.

13.  As the expert nominated by the Father is in the UK and the one nominated by Mother did not mention he has experience/expertise in parental alienation in his curriculum vitae, the judge considered that both experts are not suitable to be appointed by the court.

14.  By a note to the parties dated 21 October 2020, the judge gave a second chance to the parties to nominate a single joint expert.  The judge also alerted the parties that if an appointment was not made from among the experts they nominated, further directions will be given “including but not limited to ordering a clinical psychological report from the government clinical psychologist on the children and their relationship with the parties”.

15.  The judge found it obvious that the experts nominated in the second round cannot be regarded suitable.  Therefore, she made the 28/10/2020 Order (the first of the 2 orders the Father intended to appeal against) that a clinical psychology report be prepared by the government clinical psychologist to advise the court on, among other matters, (a) the mental state of the Children, (b) their relationship with the respective parties, (c) whether they are subject to parental alienation, (d) care and control and access arrangement.

16.  The social welfare officer (“SWO”) sought directions from the court for provision of all social investigation reports and single joint expert reports to the government clinical psychologist.  The judge then made the 4/11/2020 Order (the second of the 2 orders the Father intended to appeal against), by which the government clinical psychologist may have access to all social investigation reports and various single joint expert reports, a copy of which may be provided by the SWO.

17.  On 10 November 2020, the Father sought leave to appeal against the 28/10/2020 Order and 4/11/2020 Order and applied for stay of appointment of the government psychologist and the provision of documents.  His application was dismissed by the judge on 9 December 2020.

18.  On 23 December 2020, he filed the present summons with the Court of Appeal to renew the application for leave to appeal and for stay pending appeal.

19.  On 2 February 2021, the Father filed a summons in the present proceedings to seek leave to file his affidavit dated 2 February 2021, which stated that he received an email on 1 February 2021 advising him that the appointment with the government psychologist have been made with the Children on 3 and 5 February 2021 respectively and with him on 22 February 2021.  He asked the court to grant an urgent stay of the appointment of the government psychologist.

The intended appeal and applicable principles

20.  The intended grounds of appeal stated in the draft notice of appeal may be summarized as follows^[7]:

(1)   the judge erred by failing to accord the parties an opportunity to be heard on the appointment of the government psychologist (“the Appointment”) or on whether there should be a hearing and/or an opportunity to make written submissions before making the Appointment (Ground 1);

(2)   the judge erred by failing to secure the prior consent of the parties to the Appointment (Ground 2);

(3)   the judge erred by making the Appointment without any evidence of expertise/experience on the part of the government psychologist (Ground 3);

(4)   the judge erred in not considering the effect of the Appointment as being potentially very damaging for the Children and the Appointment is not in the best interests of the Children accordingly (Ground 4);

(5)   the judge erred in making the Appointment prematurely (Ground 5);

(6)   the Appointment will lead to a considerable delay in the proceedings (Ground 6).

21.  Under section 63A of the District Court Ordinance, Cap 336, leave to appeal will only be granted if the applicant satisfies the court that the intended appeal has a reasonable prospect of success, or that there is some other reason in the interest of justice that the appeal should be heard.  Reasonable prospect of success involves the notion that the prospect of succeeding must be more than fanciful, without having to be probable (SMSE v. KL [2009] 4 HKLRD 125).

22.  By virtue of paragraphs 8 and 9 of Practice Direction 15.12, the Family Court may exercise the case management powers under Order 1B of the Rules of the High Court having regard to the underlying objectives of the Civil Justice Reform under Order 1A, and the control of expert evidence under Order 38 is one of the measures that the Family Court applies^[8].

23.  The intended appeal is against the judge’s exercise of discretion to manage the expert evidence to be adduced at the hearing on the Children’s arrangement.  Case management decisions are only subject to appeal in rare circumstances.  The appellant faces a “very high hurdle” and must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the judge has “erred in principle or the order was irrational having regard to the issues that had to be resolved”.  Generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible (WongKarGeeMimi v Severn Villa Ltd [2012] 1 HKLRD 887 at §31).

Grounds 1 & 2

24.  The Father criticised the judge for failing to hear the parties on the Appointment, to give them an opportunity to make written submissions and/or to secure the prior consent of the parties before making the Appointment.

25.  Order 38 Rule 4A (2)(b) of the Rules of the District Court, Cap 336H gives a wide discretion to the judge.  It provides that where the parties cannot agree on who should be the joint expert witness, the Court may direct that the expert witness be selected in such manner as the Court may direct. 

26.  Chu JA said in LYAG v YSG(YX) at §34 that in proceedings relating to children’s arrangement, where the paramount consideration is the interest and welfare of the children, there is an even greater need for the court to be proactive and to manage and exercise control over expert evidence to be adduced well before the trial. 

27.  The judge had given sufficient prior notice to the parties in the court note of 21 October 2020 of her intention to obtain a government clinical psychologist report should the parties fail to nominate a single joint expert acceptable to the court by the prescribed deadline.  The Father has had ample opportunity to express his objection in his reply letter to the court.  In these circumstances, bearing in mind that the parties had already been given two opportunities to nominate their expert prior to the Appointment and that reasons were duly given by the judge for the rejection of their nominations, there is no basis to say that there has been an injustice.

28.  Applying the principles for an appeal against a case management decision, it has not been shown that the judge has erred in law or was otherwise clearly wrong in this regard.

Ground 3

29.  The Father attacked the Appointment claiming that it was made without any evidence of expertise/experience of the government clinical psychologist.

30.  This ground is entirely without merit.  As stated by the judge in the Leave Decision at §38, the Family Court judges have from time to time ordered clinical psychological reports from government clinical psychologists and in many of these instances allegations of parental alienation were made.  We agree with the judge there is no reason to doubt the experience of government clinical psychologists in advising on parental alienation or that they are not well qualified to give an opinion in this regard.

Ground 4

31.  The Father has failed to provide any basis, particulars or elaboration to support his assertion that the effect of the Appointment is potentially very damaging for the Children and is not in the best interests of the Children.  This ground has no prospect of success.

Ground 5

32.  It is wholly misconceived for the Father to contend that the Expert Summons has not been determined at the hearing on 29 September 2020.  The transcript of that hearing demonstrated clearly that the Expert Summons has been disposed of.  The Father had sought to argue before the judge he could not make his submissions on the Expert Summons at that hearing for a variety of reasons^[9], but the judge did not accept his reasons as valid^[10] and exercised her case management powers to deal with the Expert Summons there and then.  As mentioned earlier, she first explored with the parties whether it would be feasible to seek an updated report from the single joint expert appointed in 2017 and then the possibility of appointing another single joint expert to address the issue of alleged parental alienation, to which proposal both the Father and the Mother agreed. 

33.  After hearing the parties on the questions she raised, the judge did not allow the Expert Summons but instead made an order that a single joint expert in child psychology with experience/expertise in parental alienation be appointed to prepare an expert report and gave directions for the parties to each nominate a single joint expert.

34.  After the order and directions were made on 29 September 2020, and after the 28/10/2020 Order, the Father persisted in issuing a summons on 3 November 2020 to appoint Dr Kristie Craigen as the single joint expert and another summons on 9 November 2020 to “renew” the Expert Summons.  These summonses are wholly inappropriate and are an abuse of the process of the court.

35.  It is wholly without basis for the Father to argue that the 28/10/2020 Order was made prematurely. 

Ground 6 

36.  The ground complaining of delay to these proceedings is untenable. 

37.  It seems to us that the judge’s proactive approach in making the Appointment in the 28/10/2020 Order, thereby not allowing the parties to prolong the dispute on the choice of a single joint expert, would essentially save time and costs.

Conclusion and orders

38.  None of the proposed grounds of appeal are of merit.  Nor is there any other reason in the interests of justice that the proposed appeal should be heard.  We decline to grant leave to the Father to appeal against the 28/10/2020 Order and the 4/11/2020 Order and dismiss his summons filed on 23 December 2020. The question of stay pending appeal does not arise.

39.  As the Father’s application is wholly without merits, we make an order under Order 59 rule 2A(8) of the Rules of the High Court that no party may under rule 2A(7) request the determination of this court to be reconsidered at an oral hearing inter partes.

40.  There is no reason to depart from the general rule that costs should follow the event.  We make an order nisi that the Father is to pay the Mother’s costs of this summons, and this order will be made absolute if no application for variation is made within 14 days of the handing down of this judgment.

41.  To facilitate the summary assessment of costs, we direct the Mother to lodge and serve a statement of costs within 21 days hereof and the Father may lodge and serve a statement of objection within 14 days thereafter.  The summary assessment will be made on paper.

42.  We note with concern the considerable number of applications taken out by the Father in the Family Court.  As noted by the judge^[11], applications that are unfocused, repetitive, and/or unnecessary would not only take up (and have in fact taken up) an extraordinary and unnecessary amount of the court’s time and public resources, and would cause delay which is not in the interests of the parties.  We wish to serve an additional reminder to the Father that he should desist from making applications that are repetitive and unnecessary, failing which the court may consider making a restricted application order against him to restrict the abuse of the process of the court.