Lwy v. Yct
Read the full judgment text of FCMC 9363/2014 on BabelCite. This Family Court judgment was delivered on 8 March 2016 before Deputy District Judge G. Own.
Family law – Matrimonial causes – Leave to appeal – Care and control – Best interests of child – Burden of proof – Status quo – Access arrangement – District Court Ordinance s.63A – Grounds of Appeal dismissed – No reasonable prospect of success – Costs taxed under Legal Aid Regulations
Legal issues: Ground 1 - Burden of proof · Ground 2 - Best interests of child
Outcome: Leave to appeal dismissed
Cited by 1 case · Cites 1 case
|
FCMC 9363 /2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 9363 OF 2014 ----------------------------
----------------------------
------------------------- J U D G M E N T ------------------------- 1.This is the application taken out by the Petitioner (“the Mother”) for leave to appeal the Judgment of this Court dated 29 September 2015 (“the Judgment”) on care, control and access of the child of the family, namely “C” referred to in the Judgment. 2.The Mother took out the Summons for leave to appeal on 26 October 2015 by herself and obtained legal aid for today’s hearing. She also filed an Affirmation prepared by herself when she issued the said Summons for leave to appeal. 3.The Mother’s assigned solicitors Messrs. Chung & Kwan wrote on 17 February 2016 seeking leave for issuing another Summons for leave to amend the Summons for leave to appeal prepared by the Mother herself to be heard at the same time together with the present leave to appeal application. This Court allowed the amendment Summons to be issued as requested and, accordingly, there are 2 Summonses before this Court today. 4.As I pointed out to assigned Counsel Miss Pauline Leung who agreed, the intended ‘amendments’ are in fact for the Mother to put in the Grounds of Appeal seemingly to be settled by assigned Counsel (since Counsel’s name does not appear in the draft annexed), rather than any ‘amendment’ to the terms of the Summons drafted by the Mother herself. The Respondent (“the Father”) was also legally aided and his lawyers Miss Yuen of Messrs. Wong & Tang appeared for this hearing who opposed the Summons for amendment. 5.Having heard submissions, leave was granted for the Mother to ‘amend’ the Summons for leave to appeal which as I said earlier, in essence, is to file and rely upon the Grounds of Appeal for this hearing. Having granted leave, this Court checked with Miss Yuen for the Father who confirmed they are ready to proceed with the Mother’s leave to appeal application relying upon the Grounds of Appeal. The costs of the Summons for leave to amend were ordered to be in the cause of the application for leave to appeal. The relevant provisions 6.The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard. 7.The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that the appellant has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of that Judgment). The Grounds of Appeal 8.The grounds of appeal relied upon are as follows :-
9.In the Grounds of Appeal, assigned Counsel Miss Pauline Leung also prayed (which I will refer as “Reliefs”) :-
The Court’s Views 10.To start with Ground 1, it is pertinent to first refer to paragraph 43 of the Judgment as to what was said :-
11.For the sake of completeness, I need to recite below those paragraphs 7 to 12 in the Father’s 1st Affirmation (“the Allegations”) of which I had mentioned in paragraph 43 of my Judgment.
12.At paragraph 15 of her Skeleton Submissions, Counsel Miss Pauline Leung referred to the Father having failed to discharge the legal burden of proving the ‘Allegations’ he made by putting those ‘Allegations’ to the Mother at trial. Thus the Father must have failed in his burden of proof or at least abandoned any reliance on the ‘Allegations’. There could have no burden on the Mother at all to rebut the ‘Allegations’ or putting her case to the Father at cross examination. 13.Moreover, Counsel Miss Leung at paragraph 16 of her Skeleton Submissions submitted that this Court erred in placing reliance or weight on the Father’s ‘Allegations’ which must have been the case since paragraph 43 of the Judgment specifically referred to the Father’s ‘Allegations’ would have ‘some impact’ over the Mother’s suitability as a child carer. Counsel’s also submitted that there is no further reference in the Judgment as to how the Court’s Decision on care and control was influenced by the ‘Allegations’. 14.Upon reading paragraphs 7 to 12 of the Father’s Affirmation in its context and entirety, the Father was simply telling the Court that he had been told by the Mother as to her (my emphasis) historic events and experience which formed the so called ‘Allegations’. This is completely different from the situation where the Father himself put up some sort of assertions of his own (my emphasis) against the Mother, say for instance, asserting that the Mother is an alcoholic of which the Mother disagreed, then it would be for the Father to prove the accuracies of his own assertion that the Mother is in fact an alcoholic. Having said, in my view it is wrong for Counsel to say the Father have failed in his burden of proving what he was told by the Mother to be true and accurate. On all fairness to the Mother and for procedural regularity, it is the Mother who should have been asked the first question to confirm whether she had ever told the Father those of her historic events and experience now forming the ‘Allegations’. Before the Mother had so confirmed that she had told the Father those matters forming the ‘Allegations’, the Father could not be said to have taken those “Allegations’ on board to be his own case (my emphasis) against the Mother and, by not putting them across in cross examination for the Mother to rebut he had failed in his burden of proof. This is what Counsel Miss Leung now seemed to suggest in her Ground No.1. I respectfully disagreed with Counsel. Counsel’s other submission of Paragraph 12-35, Phipson on Evidence, 18th ed as to the requirement of putting a party’s own case to the opponent does not seem to be applicable to the circumstances in the present case. 14.Further and more importantly, the Father had produced an exhibit “YCT-1” which is a copy of a whatsapp text message (dated 26 June 2013) where the Father said in his Affirmation it came from the Mother who told her friend : “條仆街搞過我個條，黄金海岸個班人”. Such text message was somehow re-directed to the Father’s mobile. There was no evidence from the Mother whatsoever in her examination in chief touching upon such exhibit, say for instance, whether she agreed that it came from her mobile or whether it was her text message. 15.Faced with paragraphs 7 to 12 of the Father’s Affirmation including exhibit “YCT-1”, what the Mother could or should have done is, in my view, to adduce evidence preferably by way of Affirmation before trial, as to whether she had ever told the Father the ‘Allegations’ and her comment/explanation (if any) to the said exhibit. No such affirmation or evidence was adduced by the Mother at any stage or even at trial. Counsel Miss Pauline Leung conceded today that at the examination in chief of the Mother, the Mother only gave a general blanket denial to the Allegations. 16.To complete the picture on this issue of burden of proof of the Allegations and to do fairness to the Mother, I set out below those relevant parts of the records of the trial hearing on 5 August 2015 (extracted from the transcripts) on her own evidence in chief (between 11:56:59 to 11:57:43) by her Counsel as follows :-
17.It can be seen that the Mother might have been led to believe the ‘Allegations’ were asserted by the Father rather than the Father telling the Court what he had heard from her. This might be the reasons for Counsel to now submit that the Father had failed in proving the ‘Allegations’. From reading the transcripts, the Mother had not been asked in the first place to confirm whether she had ever told the Father about those matters (forming the ‘Allegations’) before she was asked to agree or to not agree with the ‘Allegations’. 18.There are 2 Social Investigation Report (SIRs) prepared for the trial of the care and control of C. Since the Mother does not accept the recommendations in the SIRs and accordingly, in line with the prevailing practice, leave was granted on 22 January 2015 by the Court for her to file her Affirmation as to the SIRs on or before 12 February 2015. The Father was also granted leave to file his Affirmation in Reply (if any) on or before 5 March 2015. No further Affirmation was allowed to be filed by either party without leave. There was then fixed a Pre-Trial Review to be heard on 8 April 2015. 19.Although the Father’s Affirmation containing the said paragraphs 7 to 12 was filed on 5 March 2015 which is after the Mother’s Affirmation, there is no application by the Mother’s lawyers before or at the Pre-Trial Review or at any time whatsoever after the Father’s Affirmation was filed seeking leave for the Mother to file a further Affirmation to address paragraphs 7 to 12 of the Father’s Affirmation. At the very least, an Affirmation to confirm whether she had ever said so to the Father. Given the fact that the Mother was legally represented all along (including the Pre-Trial Review), she should have been fully and properly advised as to her rights and the necessity and importance of adducing evidence on those ‘Allegations’ set forth in the Father’s Affirmation of which, quoting the words in paragraph 43 of my Judgment, “are quite serious matters and would require the Court’s attention when determining care and control issues”. There was, however, no such application for affirmation in reply to be filed by the Mother. 20.For the above reasons, the submission by Counsel Miss Pauline Leung as to error of law on burden of proof fails. What follows next is the question whether this Court could have placed reliance and weight on the ‘Allegations’ when deciding the outcome. At paragraph 78 of the Judgment, this Court said full consideration had been given to all the evidence which would include the ‘Allegations’ and the absence of any constructive or substantive reply from the Mother. It is trite law that whatever weight to be attached to any piece of evidence is a matter completely for the trial judge depending on the facts of each case as well as the particular issue to which such evidence relates. Upon further consideration, I maintained that no excessive or improper weight had been given, in so far as the ‘Allegations’ are concerned, when deciding the outcome of care and control of C. 21.Accordingly, I do not see there is any reasonable prospect of success of Ground No.1 on appeal. 22.As to Ground No.2, there are 4 limbs of contention from (a) to (d) to which I will deal with separately below. 23.On Ground 2 (a), reference was made to paragraph 16 of the 2nd SIR where the degree of intimacy between the Mother and the maternal grandmother was observed by the Social Welfare Office Mr. Lo. At paragraph 56 of the Judgment, this Court has had an in-depth reading of Mr. Lo’s two (2) SIRs and also considering his testimonies in Court, including the child’s intimacy towards the parents and the 2 grandmothers (my emphasis) before he concluded that the best interests of C would be secured by granting care and control to the Father. Consideration on intimacy between C and both grandmothers had been duly given by this Court. 24.I find Ground 2 (a) has no reasonable prospect of success on appeal. 25.On Ground 2 (b), it is trite over the years and commonly accepted amongst jurisprudence that ensuring stability, which may include maintaining the status quo, is one of the important factors and starting point when determining the best interests of children. The absence of evidence, as so submitted by Counsel, would not displace such long standing concept. Counsel’s contention, as I read it, seems to suggest the other way round that the Court should be minded to consider a change of the status quo if there is no evidence to suggest that any change would have significant effect or not be in the best interests of the child. Such contention, in my view, is clearly unorthodox and bound to fail. 26.I find this Ground 2 (b) has no reasonable prospect of success on appeal. 27.On Ground 2 (c), reference was made to the Mother’s better position to nurture the chid C’s interest in music. The Court when deciding where the best interests of a child should lie has to consider a whole spectrum of factors. Any abilities or expertise of a parent is only one of the many factors to consider. The Mother’s talent and achievements in music is only a factor, not a determining or conclusive factor, in respect of which this Court had already considered but found not to be sufficient in tilting the balance to the Mother’s favour. 28.I find this Ground 2 (c) has no reasonable prospect of success on appeal. 29.On Ground 2 (d), it was submitted that the defined access arrangement so ordered by this Court upon granting the Father care and control not to be in the best interests of the child C. I took the chance to raise with Counsel as to why the “Reliefs” (see paragraph 9 above) was inserted into and to form part of the Grounds of Appeal in light of the nature of this application is for leave to appeal rather than any form of ‘Review or Variation’ application, so to speak. Moreover, the alternative relief sought therein for “joint care and control of the child and that the Respondent do have defined access to the child every Friday from 8:00 p.m. to Sunday 8:00 p.m.” is uncommon since giving the Father defined access pre-supposes that the child would be living with the Mother notwithstanding that it was meant to be a “joint care and control” scenario. 30.Counsel Miss Leung submitted the “Reliefs” are merely for the Court’s consideration in the event of the application being successful. Counsel is contended with the alternative part of the intended “Reliefs” to end with “joint care and control” leaving behind any defined access to be further explored between the parties or dealt with by the Court. 31.Counsel submitted that the defined access of every Tuesday and Thursday from 3 p.m. to 6 p.m. ordered by this Court clashed with the sleeping time of C who is only 2 ½ years old. Counsel referred to the Affirmation of the Mother filed in support where she deposed that such hours would be for the child to take his afternoon nap. Since defined access would not be exercised within the Father’s place of residence, this mean C would be out of home with the Mother during such week days defined access of Tuesdays and Thursdays. C would then not be having his afternoon nap. 32.Miss Yuen for the Father made a quick reply that the kindergarden which C is now attending suggested their students to take a nap between 1 p.m. and 3 p.m. after school hours. This is what had happened so far. The defined access so ordered therefore does not clash with C’s napping time. 33.Counsel Miss Leung has no further instructions to reply as to C’s napping time at present during week days save and except that she does not quite understand how the kindergarden would suggest napping time for their students. Counsel further submitted that it is generally common for child of such tender age to have afternoon naps. 34.I have found that the Mother’s other grounds for leave to appeal as to care and control has no reasonable prospects of success. Counsel has not been able to convince this Court as to what error of law was there in respect of the defined access so ordered in the Judgment. I also find this Ground 2 (d) has no reasonable prospect of success on appeal. Any “Otherwise” grounds? 35.I also find that there are no reasons in the interests of justice that leave to appeal should be granted. Conclusion 36.In conclusion, I am not satisfied with any of the Mother’s Grounds of Appeal have any reasonable prospects of success. I also find there are no reasons that leave to appeal should be granted on the interests of justice ground. 37.Accordingly, I would dismiss the Mother’s Summons dated 26 October 2015 seeking leave to appeal. 38.Both parties are legally aided in this application. I decided to make no order as to costs of the Mother’s application for leave to appeal. Both parties’ own costs be taxed in accordance with Legal Aid Regulations. Other Matters 39.It is also part of the Judgment that both parties are to attend co-parenting counselling services. I believe such services would facilitate trust and confidence to be built up which is wanting between the parents at present notwithstanding that they had both agreed to have joint custody of C at the very beginning of the divorce. Not only would persistence in litigation over children hinder the necessary co-operation that is required of the joint custodian parents, it may also affect the well being and development of the child in question which clearly would be detrimental to the child’s best interests.
Miss Pauline Leung instructed by Messrs. Chung & Kwan, Solicitors for the Petitioner Miss S.Y. Yuen of Messrs. Wong & Tang, Solicitors for the Respondent |
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under FCMC 9363/2014