Caw v. Fhfd

FCMC 11197/ 2009

2019 HKFC 37

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11197 OF 2009

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Leave to Appeal

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Introduction

1.The petitioner (“the mother”) filed a summons for leave to appeal against my judgment handed down on 20 December 2018 (“the judgment”) pursuant to both the mother’s application for relocation of the child of the family (“child J”) and the respondent’s (“the father’s”) application for variation of care and control order.

2.The mother’s application for leave to appeal was dealt with by way of paper disposal. No oral hearing is necessary.

Background

3.Both the mother and the father agreed to the arrangement of child J by consent in an order dated 13 August 2010, that both of them do have joint custody of child J, the mother be granted with care and control and the father with defined access (“the consent order”). Decree absolute was granted on 6 September 2010.

4.Child J was 10 years of age and at time trial and is now 12 years of age at time of this application for leave to appeal.

5.The father remarried in August 2012, his 2^nd wife has given birth to their younger son in 2015. The mother remarried to a Polish dentist in December 2016, she has no children with her 2^nd husband. The mother applied for an order to relocate child J to Szczecin, Poland after her remarriage. The father opposed and had applied for an order to vary care and control to him accordingly. The father had made clear that his application will be withdrawn or he would not have insisted on it should the mother’s application failed.

6.Both parties attempted a 12-day trial. I gave judgment to the father. I dismissed both the mother’s and the father’s summonses.  I ruled the status quo of child J should be preserved until the end of 2019 where parties should review and decide whether child J should be admitted to a boarding school in accordance with paragraph B (viii) of the consent order. The mother and the father has expressly stated therein they shall send child J overseas for high school and further university studies as appropriate for child J’s best interests.

Applicable legal principles

7.Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reasons in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336.

8.Reasonable prospect of success connotes the prospect of succeeding must be reasonable and more than fanciful, without having to be probable.  An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains adiscretion as to whether to grant leave, though the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court in exercising its discretion. (See commentary of Hong Kong Civil Procedure 2019, §59/2A/4)

The mother’s grounds of appeal

9.The mother formulated 8 grounds of appeal of which I shall summarized accordingly.

10.Firstly, the mother submitted I have erred “as a matter of fact by saying that the father agreed that if the child wished to relocate to Poland by the end of 2019, the father was willing to let him go”. The delay in relocation would not be as soon as until the end of 2019. I was uncertain in my judgment that I did not have made an order to defer relocation by the end of 2019.

11.Secondly, there was no evidence before me that boarding school would be suitable for child J in 2 years’ time or any other. I have also erred that there had been any agreement between the mother and the father that there has been already an education plan for child J under the consent order.

12.Thirdly, I have erred to have found the mother’s intention to relocate came after her remarriage. I did not give proper weight to the mother’s unhappiness living in Hong Kong.

13.Fourthly, I failed to give proper consideration to the devastating impact on the mother should her relocation application be refused, she was unable to live with her 2^nd husband in Poland.

14.Similarly, I failed to give proper weight on the recommendation of the social investigation report. I have declined to meet the child J in the circumstance when I was making a finding which was contrary to the recommendation of the social investigation officer.

Discussion

15.The mother misquoted my judgment. The father has never agreed to child J to be relocated to Szczecin, Poland. The father did not suggest relocation to Szczecin would be effected by the end of 2019. My judgment was to preserve status quo that child J to remain in Hong Kong with care and control to the mother and defined access to the father. Both of them should consider to send child J to study abroad by the end of 2019 as proposed by the father. As no order on relocation has ever been granted, no deferment of relocation order would result.

16.The mother has correctly put it there is no evidence of choices of venue of study and the schools for child J to study abroad. It has never been an issue at trial. The father has only said it is not necessarily to send child J to Szczecin Poland to study when there have always been other alternatives. In the conclusion of the judgment, I said both the mother and the father shall consider and review the education plan for child J in accordance to paragraph B(viii) of the consent order.

17.The mother’s evidence on her unhappiness has already been considered (See paragraphs 198 – 202 of the judgment).

18.I gave a detailed view on the recommendation of the social investigation. I concluded in paragraph 169 of the judgment the social investigation report is not a comprehensive report for the reason the social investigation officer has only considered the aspect of main carer and the view of child J, without other aspects of relocation.

19.The mother then said I have failed to meet with child J should I have concluded otherwise as recommended. The mother did not raise the idea (not even a proper application) to seek an order to meet with child J.  She has raised it during final submission only. It is very easy to be wise after the event. I do expect the mother should have applied for such during pre-trial review if she saw it necessary and appropriate.  Albeit I have not stated in the judgment unequivocally to refuse the mother’s idea, I have considered it is unnecessary or I would have directed the parties for further submissions.  

20.With the reasons foregoing, I do not see the mother has a real prospect of success in the appeal. I also failed to see there are some other reasons in the interest of justice why the appeal should be heard. I refuse to exercise my discretion to grant leave of appeal to the mother.

Conclusion

21.I make the following orders:

(i)  The mother’s (the petitioner’s) summons filed on 16 January 2019 for leave to appeal against the judgment handed down on 20 December 2018 be dismissed.

(ii)  The mother (the petitioner) do pay the father’s (the respondent’s) costs of the summons filed on 16 January 2019, to be taxed if not agreed.

Ms Francis Irving instructed by Haldanes for the petitioner 

Ms Lily Yu instructed by Chaine, Chow & Barbara Hung for the respondent