Gklj v. We (Formerly Known As Wfye)

CAMP 19/2018

[2018] HKCA 179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 19OF 2018

(ON AN INTENDED APPEAL FROM FCMC NO 16521 OF 2015)

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JUDGMENT

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

1.This is the renewed application by the Respondent Mother for leave to appeal against the order of Deputy District Judge D Cheung made in FCMC 16521/2015 on 26 October 2017. By that order, the judge refused to set aside an ex parte order granted on 24 October 2017 and continued the same. The ex parte order restrained the Mother from assaulting, molesting, harassing, threatening, disturbing, approaching or contacting the child of the family. The judge also gave temporary care and control of the child to the Father with supervised access to the Mother.

2.In the inter parte order made on 26 October 2017, the judge granted temporary defined access to the Mother.  Directions were given for the trial of an application for variation of care and control on 12 April 2018 with 5 days reserved.  

3.The Mother sought leave to appeal from the judge by a summons of 9 November 2017.  She also sought a variation of the temporary care and control order.  These applications were heard on 12 December 2017.  By a judgment handed down on 12 February 2018, the judge refused leave.  The judge varied the temporary care and control order by dispensing with supervision for access. 

4.The Mother renewed the application in this Court by a summons of 26 February 2018.

5.The judge set out at some length the history of the marriage and the divorce proceedings between the parties in the judgment of 12 February 2018.   We do not need to repeat the same in this judgment.

6.Due to the time taken up for the lodging of submissions in support and in opposition of the leave application, the papers were only placed before a Justice of Appeal for consideration on 15 March 2018. 

7.By this stage, it is absolutely clear that even if leave were to be granted the appeal would not be heard prior to the substantive hearing of the application for variation of care and custody. 

8.Even assuming that there is reasonably arguable ground for overturning some aspects of the judgment, the appeal will probably be rendered academic in light of the decision of the judge in the substantive hearing.

9.Counsel for the Mother was concerned that the judge might take some time before giving a decision on the substantive application.  We would not pre-empt and see no basis to predict the time taken by the judge to come up with a decision.  But we can say this.  Family judges are experienced in handling family matters and children cases should receive prompt and serious attention. In the present case, the judge dealt with the ex parte application promptly and heard the inter partes summons expeditiously.  Unfortunately, it has taken the judge 2 months to reach a decision on leave to appeal. 

10.In light of the history of the matter (in particular the Mother is seeking to restore custody of the child to her, as it had been before the order of 24 October 2017), the judge should strive to give a decision on the substantive application as soon as practicable even if the reasons for the decision may have to be given later. 

11.In our view, parties should focus on the preparation and prosecution of the substantive application at this time instead of having their attention and resources diverted to another piece of litigation by way of appeal.  It is a wrong exercise of the right to appeal in the hope that the grant of leave by this Court would somehow pre-empt the decision of the judge at the substantive hearing. 

12.We take on board the submissions for the Father that the judge’s order of 26 October 2017 was very much a temporary measure made in the exercise of discretion.  In that connection, the recent judgment in NPYJ v SMRC [2018] 1 HKLRD 573 is pertinent. 

13.However, we are not prepared to dismiss the summons on that basis, at least not in respect of the appeal against the injunction.  Whilst it is understandable that the judge considered it appropriate to grant an injunction at the ex parte stage, we are surprised that the judge deemed it necessary to continue such draconian injunction after the temporary care and control was given to the Father.  We are also doubtful if such an injunction could be consistent with the exercise of access by the Mother. 

14.The above comments were made without full consideration of the submissions that could be advanced.  If the leave application has to proceed after the determination of the substantive application, we would list the matter for oral submissions.

15.In the meantime, for reasons already canvassed, we do not believe it is in the interest of the parties to proceed with the leave application.  We order that the leave application is adjourned sine die with liberty to restore after the determination of the substantive application by the court below.

Ms Frances Irving, instructed by Haldanes, for the petitioner

Ms Anita Yip SC and Ms Karen Wong, instructed by Wong, Hui & Co, for the respondent