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N v I

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date27 January 2006
Year2006
Judgement NumberFCMC12028/2002
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC012028/2002 N v. I

FCMC12028/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 12028 OF 2002

BETWEEN

　 N Petitioner
　 and 　
　 I Respondent

Coram: Deputy District Judge Egerton in Chambers (Not open to the public)

Date of Hearing: 27 January 2006

Date of Delivery of Ruling: 27 January 2006

R U L I N G

1. The parties are before the court this morning in relation to two matters. One is a pre-trial review in relation to the mother’s application to vary custody, which will be coming before the court in June of this year and has been set down for four days. There was a previous order dealing with ancillary relief and custody which is the subject matter of the mother’s application to vary and that was dated 13 February 2003.

2. The recent history of the case is that the parties appeared before Deputy Judge Lo on 30 November 2005 in relation to various matters and a detailed order was made. What brought the matter to a head were two issues which arose at the end of 2005. One was a temporary removal application by the mother which was initiated by an ex parte application, and secondly, a summons by the father for what he says is chronic breaches of the order of 30 November 2005 in relation to access by the mother.

3. The situation is that this morning, with the considerable help of Miss Yip for the mother and Miss Remedios for the father, further directions have been agreed for the future conduct of these proceedings, and that is subject to a previous order. The Social Welfare officer in this case has prepared a report and that arrived some one to two days ago.

4. The matter that now comes before the court to be decided is that of costs in relation to the hearing that came before the court at the end of last year in terms of the father’s allegation as to the mother’s breach of previous court order. Miss Remedios, on behalf of the father, asks for an order as to costs. Both Miss Remedios and Miss Yip have, prior to today, filed helpful and detailed written submissions not only as to the factual matters that the court should take into account but also the relevant authorities as to costs.

5. Miss Yip says, quite correctly, and this is not in any way disputed by Miss Remedios, that in children’s cases an order as to costs against one party is unusual. That is quite plainly reflected and recorded in numerous authorities and the current edition of Rayden. In addition to which Miss Yip says, again appropriately, that to make an order as to costs now might colour any potential negotiations to resolve the substantive matter as to the variation of the custody order of the child of the family. She also highlights, and I think this is a substantive part of her submission, that it is the mother’s case that the breaches, such as they were, were but technical because the mother was acting not out of her own wish but to reflect the views of the child. This is perhaps echoed in the Social Welfare report which records at paragraph 34, and I quote, “The child indicated his preference to live with his mother because he had lost sense of security living with the father.” This passage was specifically quoted by Miss Yip. The recommendation of the Social Welfare report is as to access to the mother and custody to the father.

6. Miss Yip also says that the appropriate way to deal with costs is to reserve costs, and just because I will not be the judge dealing with the matter in June I should not simply say, as I have done, that I think the costs should be dealt with today as it will be difficult perhaps for another judge to deal with matters, having not, so to speak, lived through the last few weeks of this litigation from a judicial standpoint. This is linked, no doubt, to the point that in children’s cases it is often said that costs should be reserved until the end, so that matters are not destabilised by one party thinking they have won or lost as reflected by a costs order.

7. A matter which I was not addressed on by either party but I think is appropriate when looking at costs is the reference that in the past the mother has had, to use a relatively neutral term, emotional difficulties, and that therefore should that be put into the equation when looking at her recent, to use Miss Yip’s expression, technical breaches.

8. This is, without doubt, a complicated case. Variation of custody when there has been a history, as in this case, will involve a delicate balancing act on behalf of the court to take into account all the relevant considerations for the future of the child. Those, I think, summarise the aspects helpfully put to me by Miss Yip.

9. So far as Miss Remedios, she at the last occasion helpfully prepared a chronology which she says is an example of chronic breaches of access. She particularly refers to the order of Judge Lo made on 30 November and that, that very night, the order was breached. Furthermore, she highlights paragraph 13 of that order, where the mother was given the opportunity to file an affirmation in support of day access and staying access on Wednesday...

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