Jdys v. Eyck also known as Keyc

FCMC 12871 /2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12871 OF 2009

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JUDGMENT
(Leave to appeal)

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The application

1.On 3 March 2016, I handed down my judgment (“Judgment”) making a shared care order in respect of the caring arrangement of 3 young children of the parties and split the children’s term time (being the main area of dispute) between the parties broadly like this (“Term Time Arrangement”):

(1) From Thursday after school to Saturday 8.30 pm, the children shall stay with the respondent father;

(2) The children shall stay with the petitioner mother for the rest of the week;

(3) The father shall pick up the children at their school and drop them off on Saturday at the mother’s place;

2.In the same Judgment, I also put in place practical arrangement of the children in respect their school functions, medical appointment/treatment and birthday arrangement, to be shared between the parties (see §102 of the Judgment).

3.By his summons filed on 6 April 2016, the father seeks leave to appeal my judgment but limited only to the Term Time Arrangement. There is no appeal against the other shared care arrangement ordered/directed by me in the Judgment. Through his counsel, Mrs Irving, the husband argues that this court has faulted in not following the recommendation/opinion of the social welfare officer (“SWO”) and single joint expert on child psychology (“SJE”). The Term Time Arrangement is not a true shared care arrangement because the children’s time with each parent is not split equally.  He insists that the children should stay with each parent on a week on/week off basis during their term time.

Background

4.I have set out the background and case history in the Judgment at §§3-10, and the care arrangement as at the dates of the trial at §§12-16. The parties’ respective cases are set out at §§17-30. For convenience, I would adopt herein the abbreviations used in the Judgment.

5.In this judgment, I do not propose to repeat the background facts at length here. However, it may be helpful to note the following points.

6.The children of the family are:

(1) The eldest son (“N”), born in 2004 and now about 12;

(2) The elder daughter (“AN”), born in 2007 and now about 9 ;

(3) The younger daughter (“AS”), born in 2008 and now about 7.

7.At all material times, both parties are medical practitioners working full time. They were married in 2003 but separated in 2009 when the father moved out of the former matrimonial home. At that time, the children were still very small, roughly between 1 year old and 5 years old.  The mother quitted her job with the government hospital to practise in the private field in order to devote more time for the children. It cannot be argued that she, with the assistance of her parents, maid(s) and driver from time to time, has been their main carer.

8.The marriage was dissolved in 2011. By the 1^st Consent Order dated 1 February 2011, the parties were granted joint custody to their children, with care and control to the mother and defined access to the father (comprising of weekend staying access for 24 hours and Wednesday night access).  By the end of November of the same year, the 2^nd Consent Order was made, under which the parties would have alternate weekends with the children. The care and control of the children remained with the mother. The combined effect of the 1^st and 2^nd Consent Orders was that the father saw the children for 26 hours per week. 

9.The 1^st and 2^nd Consent Orders did not put the dispute of the parties about their children to an end. The main areas of argument relate to their difference in parenting style, their fight for more control on and more involvement in the daily lives of the children, including the arrangement of their extra-curricular activities (“ECAs”), which has, indisputably, occupied a non-insignificant portion of the children’s time after their normal school hours.  Other area of argument is over the punctuality at the hand-over of the children.

10.On 22 May 2014, the father took out his summons for variation of access arrangement(but not a variation of care and control) on the main ground that the mother did not have requisite/sufficient time and ability to care for the children, as she was always busy at work, or even at home, she was either in her room or on the phone with minimal interaction with the children. He also alleged that the mother spent limited time to supervise the homework of the children and was not there to take care of them when they were sick. He thus did not want to be a “weekend daddy” and would wish to be more involved into the children’s lives. His request for increased access was later revised to a proposal for shared care arrangement on a week on/week off basis.

11.Upon trial, I rejected the father’s main ground in support of his application stated in §10 above.  But since I accepted that he had a close bondage with the children and that the children would like to see him more, I nevertheless put in place a shared care arrangement, including the Term Time Arrangement.

12.The Term Time Arrangement has now been put in place since April 2016 for about 8 months.  A progress report dated 15 October 2016 has been prepared according to the order given in the Judgment. The said progress report has been included in the hearing bundle prepared by the father for this application, but it does not occur to me that the father sees the need to draw to my attention any condition of any of the children as reflected in the progress report after the Term Time Arrangement has been put in place. Therefore, the content of the progress report will not be considered in this hearing.

Applicable Legal Principle

13.Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

14.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he 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”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

Proposed Grounds of Appeal

15.In the father’s 19-page’s draft notice of appeal, he sets out 27 main paragraphs as his grounds of appeal. He says that his proposed appeal is based on both limbs of section 63A(2) of the District Court Ordinance.

16.With respect, the father’s proposed grounds of appeal set out in his draft notice of appeal are convoluted and repetitive.  Doing the best I can to understand him, his major proposed ground of appeal is that I erred in and was plainly wrong in not equally splitting the term time of the children between the parents, and more particularly the following:

(1) The Term Time Arrangement did not logically follow my findings, such as both parents were equally good; the children would wish to see their father more; they fully embraced the idea of having 2 homes;

(2) I erred in and was plainly wrong by substituting my own opinion (that it would be too radical and extensive a change for the young AS to a week on/week off arrangement) for the recommendation of the SWO and the SJE without any evidence to support that opinion;

(3) The Term Time Arrangement is not a genuine shared care order, but a restrictive access order; 

(4) The issue of shared care is matter of importance which should be reviewed by the Court of Appeal as a matter of general public interest.

Basis of making a shared care order

17.As a starting point, it is important to reiterate that in the Judgment, I have ruled that the father’s main ground in support of his shared care arrangement described at §10 above failed. I rejected his allegation that the mother was lack of the time/ability to take care of the children. This part of the Judgment is not appealed by the father, and he is thus bound by it.  However, in the best interest of the children, I did not stop the balancing exercise and dismiss the father’s application there and then.  Rather, I took into account all other relevant factors, such as his close bondage with the children; the children’s wish to see him more; the SJE’s opinion that the children being robust enough to embrace with the idea of having 2 homes. I hence still put in place a shared care arrangement, including the Term Time Arrangement.

18.Importantly, the Term Time Arrangement is an acknowledgement to the opinion of the SJE that given the very different parenting styles of the parents in this case, it would be better for the children to spend a block of time with each parent, thereby subjecting them to only one parenting style within that block of time, instead of chopping up the week into different segments.  

19.Mrs Irving, counsel for the father, has also fairly accepted in this hearing that the chopping up of the week into segments is destructive to the children.  

20.My reasons for rejecting the father’s week on/week off proposal are set out in the Judgement at §§95-99. The relative young age of AS is not the sole factor in rejecting the father’s proposal. The other factors of the mother being the main carer and the alleged problem of homework supervision are clearly pointed out in the Judgment at §§97-98.

21.The evidence of the mother being the main carer of AS is implicitly clear from the history and background of the case (at §§1 – 10 of the Judgment).  The father has not disputed that he moved out of the matrimonial home in 2009 when little AS was less than 1 year old. Since then, the care and control of little AS has remained with the mother until the shared care order made in the Judgment. The unbroken relationship between the mother and little AS needs no elaboration.  In Re A (Children: 1959 UN Declaration) [1998] 1 FLR 354, a case cited by Mrs Irving for the father, Thorpe LJ referred to the judgment of Butler-Sloss LJ in Re A (A Minor) (Cusotdy) [1991] 2 FLR 394 at 399H that,

“In cases where the child has remained throughout with the mother and is young, particularly when a baby or toddler, the unbroken relationship of the mother and the child is one which it would be very difficult to displace, unless the mother was unsuitable to care for the child.”

22.The issue of homework supervision is an issue which was brought up by the father himself in the trial. He alleged that he was better in supervising the homework of the children, as he was more disciplined while the mother more relaxed in supervising the children. According to the evidence, he had to supervise or give instructions to the children on their homework by phone when it was not his access time. This led to the mother’s complaint that the father was trying to impose his own parenting style on the children outside his access time.  As I have said in the Judgment, the week on/week off arrangement would offer no solution to the issue of homework supervision. Rather, it would mean that during the mother’s week, the father would not be able to supervise the homework of the children for that whole week, or alternatively, it might give room for the possibility of imposition of the father’s parenting style into the mother’s household, or vice versa, which in turn is not in the best interest of the children.

Failure to follow the recommendation/opinion of SWO/SJE

23.Ms Irving, counsel for the father, runs her argument like this.  The SWO made recommendation for equal division of the children’s care on two occasions in her 2 reports dated 11 September 2014 and 8 October 2015 respectively. Her recommendation for week on/week off shared care was maintained over that period of 13 months.  The SJE (chosen by the court since the parties were unable to agree on the choice of the SJE) opined that the children were robust enough to a shared week on/week off arrangement. However, I have not followed their recommendation and in doing so, I have failed to provide reasons for rejecting their recommendation/opinion.

24.Counsel refers me to the judgment of the Hong Kong Court of Appeal in Naziya Aslam v Ali (Custody and Removal) [20009] HKFLR 294 and English authority of W v W (A Minor: Custody Appeal) [1988] 2 FLR 505. While she accepts that the SWO or the SJE should not trespass on the exercise of the discretion of the court, she says adamantly that if the recommendation of the social welfare officer (or the SJE) were not followed, it was “highly desirable that the judge should indicate in his judgment the reason why he has not done so”.

25.I would have the following to say, which would apply to both the recommendation of the SWO and the opinion of the SJE, unless otherwise stated.

26.The status of a social welfare investigation report has been examined at length by Rogers VP (as he then was) in Naziya Aslam v Ali (supra). The facts of the case show that the petitioner mother sought custody, care and control of 3 children of the family, and leave to permanently remove them from Hong Kong to England. At the time of the trial, the children were with the respondent father in Hong Kong, while the mother resided in England. The trial judge, taking the view that the status quo should be maintained and accepting the inquiry and recommendation of the social welfare officer, rejected the petitioner mother’s application and granted custody, care and control to the respondent father.

27.In overturning the trial judge’s decision, his Lordship firstly observed that section 3 of the Guardianship of Minor Ordinance, Cap 13, required the court to consider “any material information” including the social welfare report(s), but the Ordinance made no reference to the “recommendation” of such social welfare report(s). His Lordship then referred to W v W (supra) where Purchas LJ commented on the approach to a social welfare report.  Here is what his Lordship said in his judgment:

“ 25. Before considering in more detail the 2 reports to which the judge was referring and the recommendation which the reports contained, I wish to say a few words about the status of the reports.

26. As the judge observed at the commencement of his judgment, section 3(1)(a)(i)(B) of the Guardianship of Minors Ordinance, Cap. 13 requires the court in having regard to the welfare of a minor to give due consideration to any material information including any report of the Director of Social Welfare available to the court at the hearing;. It is noteworthy that the Ordinance makes no reference to “recommendation”. During the course of the hearing of this appeal, this court asked counsel for their assistance as to the way in which the court should approach the report of a Social Welfare officer. Both parties wished to draw to our attention the case of W v W (a minor: Custody Appeal) [1988] 2 FLR 505. In that case, Purchas LJ said at page 511F:

‘The appeal has been presented by Mr Cameron on a number of grounds. First, in arriving at the conclusion which he did, the judge differed from the recommendation of the welfare officers and, in so doing, did not give any reasons for his decision. This, Mr Cameron submits, is contrary to the guide-lines in the judgment of this court in the case of Stephenson v Stephenson [1985] FLR 1140, at p.1145 delivered by Wood J, where reference is made to the judgment of Ormrod LJ (as he then was) in Cadman v Cadman (1982) 3 FLR 275, at p.277. The burden of those authorities is to the effect that, of course it is entirely within the discretion of the judge whether or not to accept the recommendation of the welfare officers; but, if the recommendation is not followed, it is highly desirable that the judge should indicate in his judgment the reasons why he has not done so. These may take a number of different forms. He may assess the facts differently; he may have reached a professional view of the impact of those facts upon the welfare of the child; he may have been given evidence of matters not available to the welfare officers; he may even have observed attitudes and behaviour of the parties when they appeared before him which would lead him to differ. But, whatever the reasons are, it is desirable that they should be given. Mr Cameron says no such reasons were given. I shall come in a moment to the part of the judgment over which this submission revolves.’

28.His Lordship was of the view that the status of the “recommendation” of the social welfare officer could not raised to replace the “decision” of the court, and concluded that the correct approach to the “recommendation” of a social welfare report was set out in Re V (residence: review) [1996] 3 FCR 101 as follows:

“27. It is important, however, that the status of a recommendation in a report from a Social Welfare officer is not raised to the status of a decision which should only be interfered with on grounds similar to an appellate court interfering with an exercise of discretion.  The references to the cases referred to are instructive in this regard.  Wood J in the case of Stephenson v Stephenson pointed out, at pages 1145-1146, that the role of the welfare officer was to assist the court by informing the court of factors which the court would otherwise not know.  He went on to say that the officers usually conclude their reports with a summary of the factors for and against each course which it is open to the court to take.  He then said “… in some cases, he or she may feel sufficiently strongly about a case to make a positive recommendation - indeed, on those occasions when they give oral evidence the court sometimes asks for the view of the welfare officer.”

28. I would agree with Wood J, that the welfare officer’s position to make a recommendation should arise when the circumstances of the case are particularly clear.  The welfare officer should not make a recommendation as a matter of course and should certainly not do so where it is a question of a balancing the relative merits of one course or another, unless specifically invited to do so by the court.  The exercise of the judge’s discretion should not be trespassed upon.  In any event, it seems to me that the correct approach to a recommendation made by a welfare officer is set out in the judgment of the Court of Appeal in Re V (residence: review) [1996] 3 FCR 101 at p.110F:

‘In a judgment were a Judge gives reasons for his decision and those reasons demonstrate that his decision is not manifestly wrong he is not under any further duty to spell out his reasons for departing from the court welfare officer’s report. In this situation the Judge’s reasons for reaching his own decision are normally the very reasons for his declining to follow the court welfare officer’s recommendation.’” (my emphasis added)

29.It is trite to say that Naziya Aslam v Ali (supra), being a judgement from our Court of Appeal, is binding on this court.  In the result, I am not be required to spell out my reasons for departing from the SWO’s reports, as my reasons for reaching my own decision are the very reasons for my declining to follow the recommendation of the SWO (or the SJE’s opinion).  But in any event, it is not the case that I have not spelt out my reasons; I have done so at §§95-99 of the Judgment.

30.On the other hand, in the Judgment, I have accepted the observation of the SWO that both parents are good, positive and important in the eyes of the children; that the father has a close bondage with the children; and that the children have expressed their genuine view to see him more. However, this must be considered against and balanced with the backdrop of the father’s failure to show that the then existing care and control rendered by the mother to the children, pursuant to the 1^st and 2^nd Consent Orders, has any deficiency in terms of quality and quantity.  In my view, the balancing exercise of weighing all relevant factors in arriving at a final decision cannot and should not be within the ambit of the SWO or the SJE. As pointed by Rogers VP (as he then was), it is within the sole discretion of the court. The result of balancing all the factors, including but not limited to those stated in §§ 95-99 of the Judgment, has led me to the Term Time Arrangement.

31.Besides, it is pertinent to note that the SJE was commissioned to narrowly addressed to the following question:

“whether shared care and control on a split week basis would have any effect on the children and whether it is advisable.”

32.It was not the evidence of the SJE that a week on/week off arrangement was the only viable shared care arrangement.  Indisputably, the SJE has not dismissed the mother’s proposal in the trial (at §30 of the Judgment), save that she would change week 1 cycle from monday 8 pm to tueday when the father would drop the children to school in order to reduce any possible conflict surrounding drop-off time of the children.

33.There is another argument put forward by Mrs Irving and it is this. If this court has concern as to the young age of the little AS, I should have afforded the social welfare officer, as well as the SJE, an opportunity to consider my misgivings or anxieties. She relies on the English authority of Re A (Children: 1959 UN Declaration) (supra), where Thorpe LJ said at 356 the following:

“…Perhaps more importantly, during her [social welfare officer] oral evidence the judge did not take his opportunity to test or question either her recommendation or the factual premise on which it was based. He did not put to her any consideration that a child of tender years should not be parted from its mother, although that may well be because such a consideration did not enter his mind until Mrs Fricker’s reliance upon the 1959 Declaration. But in a case in which a judge is contemplating rejecting the recommendation of a court welfare officer, it seems to me to be important that he should afford the court welfare officer an opportunity to consider his misgivings or anxieties, particularly if the court welfare officer is the last to enter the witness-box having heard all the oral evidence. Equally, if there is a consideration which is in his mind is of particular significance, and if that consideration has not appeared in the welfare officer’s contribution, it is important that he should disclose the direction of his thought so that the court welfare officer can, at the least, have the opportunity of commenting upon this further consideration.”

34.The facts of Re A (Children: 1959 UN Declaration) (supra) show that the parents separated and brought competing claims for residence of their child. The court welfare officer recommended residence to the father. The mother sought to rely on Principle 6 of the United Nations Declaration of the Rights of the Child (1959) that a child of tender years shall not be separated from its mother save in exceptional circumstances. The trial judge granted residence to the mother. The father appealed, which was allowed by the English Court of Appeal. Of importance is that the trial judge of Re A (Children: 1959 UN Declaration) (supra) had totally misunderstood the investigation of the court welfare officer, which prompted the English Court of Appeal to overturn his judgment. The trial judge misunderstood that that the mother was the principle carer of the child, but in fact she had been busy at work and was away from home on 60 nights within a year. 

35.Clearly, the facts of Re A (Children: 1959 UN Declaration) (supra) can be distinguished from our case.

36.Moreover, the SWO and SJE in this trial, unlike the court welfare officer in Re A (Children: 1959 UN Declaration) (supra), were not the last one who gave evidence in the witness-box. They gave evidence before the parties did.  As such, I could not possibly have the contemplation of rejecting their recommendation/opinion at that stage when they were giving evidence, because the more important evidence of the parties was yet to be revealed.

37.Last but not the least, I reiterate that the relative young age of AS (being the “misgivings or anxieties” that Mrs Irving refers to) is not the sole reason for not putting in place a week on/week off arrangement. I shall repeat what I have said at §§ 20-22 above in this judgment. I would add that the factors such as the young age of AS, the mother being the main carer of the children and the homework supervision dispute are very much alive to the SWO or the SJE, because they were mentioned in the affirmations of the parties. The weight to be given to a particular factor, in my view, does not fall within the function or perimeter of the SWO or the SJE.

Not a genuine shared care arrangement

38.Mrs Irving submits that I erred in granting a shared care order in disguise, when in fact the father is now granted less time with the children than the previous access order. For example, his Wednesday night access has been cut.

39.From the time the father took out his summons up to the trial, I had gradually increased his time with the children by mainly extending alternate weekend access to the following monday. Details of the extended interim access can be found at §16 of the Judgment.

40.First of all, there is no hard and fast rule that any final order on children needs to replicate an interim arrangement. This court should not be shy from making adjustment on the interim arrangement if it is in the best interest of the children.

41.Moreover, it has already been mentioned a number of times in this judgment that the SJE opined that in view of the very different parenting style of the parties, the then current access in the form of dividing a week into different time segments was not ideal. Mrs Irving also concedes that it was destructive to the children. It is thus very clear that the then current access arrangement should be refined.

42.As to the wednesday night access, it was the father’s own evidence that he did not mind to have it dropped. Also, there had been a historical dispute on the drop off time during wednesday night access. I thus concluded that the wednesday night access can be dispensed with.  It was also the father’s evidence that he showed his concern that the mother had arranged AN’s ECA to sunday morning on Kowloon side, which meant he had to drive her to the ECA early in the morning and the other children had to be left behind at his home. To avoid complication in picking up/dropping off of the children at different places or different time on sunday, I thus decided that it would be in the children’s best interest if they were sent back to their mother on saturday night.       

43.This brings me to the main argument of Mrs Irving under this appeal ground, ie whether under a shared care order, the children’s time with each parent must be split equally.

44.It is pertinent for me to point out that Mrs Irving has not provided me with any authorities to support the father’s case that a shared care order must mean sharing the children’s time equally between the parents.

45.The concept of shared care and control has been discussed extensively by Melloy DJ in her various judgment such as:

(1) SEB v ZX (Custody) [2007] HKFLR 165;

(2) RWS v KCC, FCMC 9661/2010, date of judgment 20/1/2012;

(3) TAC v VDC nee VDM, FCMC 16497/2010, date of judgment 20/6/2012;

(4) SKP v Y,ITT, FCMC 17772/2011, date of judgment 12/11/2011.

46.None of the above judgment has ruled that a shared care order must mean a 50-50 equal split of the children’s time between the parents.

47.The Court of Appeal has considered the concept of shared care in H v H, CACV 42/2002, date of judgment 25/7/2002. The appeal was directed against the judgment of Hartmann J (as he then was) whereby the learnt justice granted a shared care order for the parents to share the school holidays of the child equally, but the school time was split not equally but like these:

“During school terms the mother shall care for the child subject to the child being in the care of the father on the following occasions:

(i) Every alternate week from Thursday after school until Monday morning. For the avoidance of doubt, this means that the father may collect the child at the end of lessons on Thursday (be that in the morning or afternoon) and shall care for the child until school commences again on Monday morning.

(ii)               Every other week (this is, when care under (i) above is not exercised) the father shall have care of the child from the end of lessons on Wednesday until the commencement of school on Thursday morning.”

48.The Court of Appeal in H v H (supra) did not reject the above care arrangement during term time of the children was a shared care arrangement. The appeal was unanimously dismissed.

49.It is hence abundantly clear that a shared care order does not mandate that the term time of a child must be split equally between the parents. The rule of thumb does not fall on the mathematical equality, while on what is the more appropriate arrangement during term time in the best interest of the children.

50.In any event, it is erroneous of the father to carve out and argue merely on the Term Time Arrangement that it is not a shared care order, for this would lose sight of the other shared care arrangement which has been put in place by this court and which the father has not appealed against.

Exercise of discretion

51.The father’s appeal is essentially directed to the Judgment made in the exercise of my discretion. It is trite to say that where the court below exercised a discretion, the appellant court would only intervene when it considered that the judge below was in fact plainly wrong, and not merely because the appellant court preferred a solution which the judge had not chosen.

52.In G v G (Minors : Custody Appeal) [1985] 1 WLR 647, the English House of Lords authoritatively re-stated what Lord Fraser of Tullybelton pointed out in the exercise of jurisdiction involving the welfare of the children (at p651) that :

“The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge’s decision was wrong, and unless it can say so, it will leave his decision undisturbed.…there are often two or more possible directions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong.” (my emphasis added)

53.The principle to be applied therefore is, he said (at p652), that :

“the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible” (my emphasis added).

54.Having considered the matters set out above, I am not satisfied that the father would have a reasonable prospect of success in his proposed grounds of appeal described at §16 (1) – (3) above.

In the interest of justice

55.Mrs Irving submits that the intended appeal should be heard by the Court of Appeal in the interest of justice because the issue of the care of the children and how it is shared between parents, and the concept of shared care, in the sense of equal sharing of time, should be examined by the Court of Appeal in Hong Kong.

56.There remains no need for me to elaborate further on this ground. It is abundantly clear that the family court has already had the benefit of a binding authority on the topic of shared care from our Court of Appeal (See: H v H (supra)) .

57.I cannot agree that the father has made out his case on the 2^nd limb of section 63A(2) of the District Court Ordinance.

Conclusion

58.Due to the matters set out above, I am bound to dismiss the father’s application.

59.There is no reason that costs should not follow the event.  The father shall pay the costs of the mother.

60.I would therefore order that:

(1) The respondent father’s summons filed on 6 April 2016 for leave to appeal is dismissed;

(2) The respondent father do bear the petitioner mother’s costs of this application to be taxed if not agreed, with certificate for counsel. This is a costs order nisi, to be made absolute within 14 days from today;

(3) This order be drawn up by the respondent father for approval.

Ms Josephine Tjia instructed by Messrs Tang, Lai & Leung for the petitioner (mother)

Ms Frances Irving instructed by Messrs Ip & Heathfield for the respondent (father)