R, Mj v. Oam, also known as R, Ao
Read the full judgment text of FCMC 4362/2016 on BabelCite. This Family Court judgment was delivered on 2 July 2019 before Her Honour Judge Sharon D. Melloy.
Family law – Matrimonial Causes – Leave to appeal – District Court Ordinance s.63A – Child custody – Best interests – Status quo – Schooling arrangements – Intractable dispute – Leave refused – No costs order – Petitioner father sought leave to appeal judgment dated 8 August 2018 regarding arrangements for child RR aged 14 – Court found mother good and loving mother despite credibility issues – Father presented with mental health or behavioural issues – Court granted sole custody and care and control to mother despite possibility of deportation – Father argued reversal of status quo wrong, court found status quo not working – Father argued court erred in not directing boarding school, court found premature – Father argued misunderstanding of evidence regarding intractable dispute, court found parties unable to communicate – Leave to appeal refused as no reasonable prospect of success – No order as to costs as both parties legally aided – Certificate for counsel ordered – Court applied test under Section 63A District Court Ordinance requiring reasonable prospect of success or other reason in interests of justice – Cited TAC v VDC nee VDM, Rayden & Jackson, G v. G, Re M and R, Re N regarding limited role of appellate court in children's cases – Court emphasized trial judge's unique opportunity to see witnesses – Father failed to identify real prospect of success on appeal
Legal issues: Status quo · Schooling arrangements · Intractable dispute · Leave to appeal test
Outcome: Leave to appeal refused
Cited by 3 cases · Cites 1 case
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FCMC 4362 / 2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 4362 OF 2016 ----------------------------
Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Date of written submissions: 14 and 28 May 2019 Date of Ruling: 2 July 2019 (Paper disposal) ----------------------- R U L I N G ----------------------- Introduction 1.This is an application by a Petitioner father for leave to appeal against my judgment dated the 8 August 2018 with respect to the arrangements for the only child of the family, RR, a boy who is now 14 years of age. At the hearing on the 29 May 2019 I made an order in terms of paragraph 1 of the father’s summons dated the 17 May 2019, i.e. that he should have an extension of time to file and serve his application for leave to appeal. In doing so I accepted that the delay had been caused in part by the fact that the father’s legal aid certificate had been discharged after the handing down of the judgment and that it had taken him some time to obtain a further legal aid certificate. In addition, he has changed his solicitors. 2.I should say at the outset that this was a very difficult case on the facts. This is perhaps best encapsulated by the following paragraphs from the judgment where I discussed the character of the parties as parents:
3.At the end of the day, I made an order that the mother have sole custody and care and control of RR. The order states inter alia as follows:
4.This was not an easy decision to make, but I believe that it was the correct one. I understand that the mother has continues to reside in Hong Kong with RR following the handing down of that judgment and that she has not been deported. The law 5.Turning next to the law, I am of course mindful of the test as set out in Section 63A of the District Court Ordinance which states as follows:
6.It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and, as I have said, that it has a reasonable chance of succeeding. The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly. Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle. 7.As set out in TAC v VDC nee VDM, [2012] FCMC 16497 of 2010 Leave to Appeal Ruling dated the 24 September 2012, unreported, the parent seeking leave to appeal has even more of an uphill battle to climb when the issue is about a child. In that Ruling I cited the following references:
Discussion Plainly wrong: decision manifestly contrary to best interests 8.In the draft Notice of Appeal the father argues inter alia that it was wrong to reverse the status quo where that had been in existence for 3 ½ years. This is not accepted. Although status quo is important, where the status quo is not working, as here, the court should not hesitate in changing that status quo following a trial and after full assessment of all the relevant factors. All of the different options were considered in this instance and reasons were given for the final decision reached. In particular, it is not accepted that a custodial parent must be in Hong Kong. In this instance it was anticipated that the mother would continue to make custodial decisions for RR, even in the event of her deportation. Failure to exercise discretion: “all” options open to Ms O/inadequate reasons 9.It is not accepted that the court erred in not directing that RR attend either a Small Group Home or a boarding school in the event that the mother was deported. This was premature. There was no application to relocate before the court. Further it would also have been open to the mother to apply to relocate with RR back to the Philippines or to some other country, in the event that she was no longer able to remain in Hong Kong. However, as the custodial parent and given that RR has permanent Hong Kong ID, it would also be possible for her to look at the Small Group Home or boarding school option in the event that she was deported and it was felt optimal for RR to remain in Hong Kong. I am of the view that that was preferable in the circumstances to the mother having custody and any decision making power with respect to the child and that this decision was in the child’s best interests. The reasons for this are set out in the judgment. Misunderstanding/misapplication of the evidence: no intractable dispute regarding custody (cf care and control) 10.This is not accepted. It was clear from the evidence that the parties were not able to communicate or to co operate “at almost any level”. I should add that I have rarely seen a more intractable dispute in all of my time on the bench! Conclusion 11.Other points were also raised by counsel for the father in his written submissions. I do not intend to go through those points here. Generally speaking, although this was a very difficult case, I am not of the view that the father has identified in the draft Notice of Appeal any real prospect of success on appeal; nor any other reason in the interests of justice why leave should be granted. I am also mindful, as set out above, that this was primarily an exercise in my discretion. Costs 12.Both parties are legally aided. Consequently, and given that this remains essentially a children’s matter, I shall exercise my discretion and make an order that there be no order as to costs. Both parties own costs to be taxed in accordance with Legal Aid Regulations. There shall be certificate for counsel.
Mr. Shaphan Marwah instructed by S H Chan & Co. for the Petitioner Chiu & Co. solicitors for the Respondent | ||||||||||||||||
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