|
FCMP 173/2012
[2020] HKFC 45
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FAMILY COURT
MISCELLANEOUS PROCEEDINGS NO. 173 of 2012
----------------------------
| BETWEEN |
|
|
| |
CYH |
Applicant |
and |
| |
MXH |
Respondent |
------------------------
Coram: Deputy District Judge Susan Wong in Chambers (Not open to public)
Date of Application: 3 January 2020
Date of the Respondent’s Reply: 16 January 2020
Date of Judgment: 3 March 2020
---------------------------------
J U D G M E N T
(Leave to appeal/Stay of execution)
---------------------------------
Introduction
1.The Applicant (“the Mother”) filed a summons on 3 January 2020 for leave to appeal against my decision handed down on 6 December 2019 (“my judgment”) whereby I refused the Mother’s application for relocation of the child (“R”) and varied the custody order so that the Respondent (“the Father”) now has sole custody, care and control.
2.In a separate Summons filed on the same date, the Mother also asked for stay of execution of my judgment pending appeal.
3.This application for leave to appeal is dealt with by way of paper disposal only.
Applicable legal principles
4.The relevant test governing applications for leave to appeal from the District Court is provided in section 63A(2) of the District Court Ordinance (Cap 336) (“DCO”):
“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –
(a) The appeal has a reasonable prospect of success; or
(b) There is some other reason in the interests of justice why the appeal should be heard.”
5.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 a discretion 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).:
6.The Court of Appeal in ZJ v XWN, CAMP 67/2018, [2018] HKCA 436 stated,
“64. …. Application for leave to appeal should be a filtering process and should be conducted summarily and proportionately.”
7.With this legal principle in mind, I now turn to the Mother’s leave application.
The mother’s grounds of appeal
8.Messrs Ho Tse Wai & Partner (“the law firm”) representing the Mother has advanced a total of 8 grounds with some having numerous sub-paragraphs and sub-sub-paragraphs. In gist, the law firm is submitting that I erred in most aspects. I do not propose to deal with each and every ground/sub-ground/sub-sub-ground. In doing so, I am not trying to ignore any of them, but rather I consider I have already dealt with them in my judgment. With no challenge of the finding of facts, some of the grounds are directed at the exercise of its discretion by this Court.
Discussion
9.On appeals against the exercise of discretion, The Hong Kong Civil Procedure (2018) has the following discussion in §59/0/54,
Appeals against exercise of discretion—There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the judge to make, unless it be shown that he exercised his discretion under a mistake of law (Evans v. Bartlam [1937] A.C. 473 ) or in disregard of principle (Young v. Thomas [1892] 2 Ch. 134 ) or under a misapprehension as to the facts (ibid.); or that he took into account irrelevant matters (Egerton v. Jones [1939] 3 All E.R. 889 at 892, CA) or failed to exercise his discretion (Crowther v. Elgood (1887) 34 Ch D 691 at 697) or the conclusion which the judge reached in the exercise of his discretion was “outside the generous ambit within which a reasonable disagreement is possible” (G. v. G. [1985] 1 W.L.R. 647 ; [1985] 2 All E.R. 225 , HL). See also Banque Nationale de Paris v. Chan U Tong [1968] H.K.L.R. 151, and Fung Tin Keung v. Hong Kong Wah Yuen Investment Co. & Another [1967] H.K.L.R. 650, and Re SY Engineering Co. Ltd (unrep., CACV 1896/2001; [2002] H.K.E.C. 241, CA) (appeal against a winding up order)……
The limitations on the power of the Court of Appeal to interfere with the exercise of a discretion conferred on the judge in the court below apply to residence or contact orders in child cases or any other decisions concerning the welfare of children: G. v. G. [1985] 1 W.L.R. 647; [1985] 2 All E.R. 225, HL. The Court of Appeal will not interfere with the exercise of discretion in child cases unless it can be shown that the discretion was not exercised at all, or that the Judge made some error of law in its exercise, or that the decision was plainly wrong (TAC v. VDC (unrep., HCMP 2198/2012, [2012] H.K.E.C. 1681). Subject to well-established exceptions, a judge exercising a judicial discretion must give reasons for his decision; but the particularity with which he is required to set out his reasons will depend on the circumstances of the case and the nature of the decision concerned (Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All E R 119, CA).
Ground 1(3)
10.The law firm challenged that I have wrongly taken into account three documents which were not in the hearing bundle, not raised during trial and never put to the Mother, namely:
(i) Affirmations of the Mother filed on 3 February 2015 (which I inadvertently stated to be 3 April 3 2015 (the 1st document”);
(ii) Affirmation of the Mother filed on 9 March 2017 (“the 2nd document”); and
(iii) An email dated 2 December 2016 exhibited to the 4th Affirmation of the Father filed on 23 March 2017 (the 3rd document”).
((i) (ii) and (iii) are collectively referred to as “the documents”)
Discussion
11.Although I agree that the documents were not physically in the hearing bundle, they have been referred to in some of the Orders and other documents which were indeed in the hearing bundle.
The 1st document
12.The first item of the hearing bundle is an Order made by Deputy Judge A N Tse Ching (as she then was) restraining R from leaving Hong Kong. Paragraph 3 of her Order was to direct the Mother to file an affirmation by noon, 3 February 2015 i.e. the 1st document[1].
The 2nd document
13.This was referred to in the 7th Application of the Father where he said in paragraph 34[2],
“34. (1) In the affirmation (170327), the Mother said [Paragraph 10, 11]
i. I make this Application with the intention to bring the Child to Taiwan to see my Father who is now 75 years of age suffering from deteriorating poor health and cannot travel to Hong Kong.
ii. I reiterate that I have no intention to remove the Child to Taiwan permanently as alleged by the Respondent. I’m aware of the undertaking to be given to Court, (if this Application succeeds) to bring the Child back to Hong Kong after the holiday and that any breach of the undertaking will render me liable to be committed for contempt of the Court, which may result in my imprisonment.
(2) In fact, both of the two claims above are false and dishonest. Firstly, according to the affidavit of Maria, “the maternal Grandpa has no health issue and was perfectly fine to travel to Hong Kong. Also the maternal grandfather travelled to Hong Kong afterwards for times….”
The 2nd and 3rd documents
14.Item 3 of the Hearing Bundle is an Order made by HHJ Grace Chan allowing R to leave for Taiwan for short visits. The 2nd paragraph of the Preamble in that Order[3] reads:
“AND UPON reading the Affirmation of (the Mother) together with exhibits filed herein on 9 March 2017…. And 4th Affirmation of the Father together with exhibits filed herein on 23 March 2017.”
15.Those two affirmations were the 2nd and the 3rd documents.
16.As a new judge who joined the Family Court on 2 October 2019 and given that the trial of this case took place between 22-24 October 2019, I am entitled to look into the parties’ affirmations leading to my learned colleagues’ decisions. In any event, the only reason why I quoted what the Mother said in the documents was to explain why I do not believe that the Mother is lonely in Hong Kong.
Ground 1(5)(f)
17.The law firm submitted that R would receive better care in Taiwan and that those matters that were for the benefits of R have been repeatedly recorded in various Social Investigation Reports (“SIR”).
Discussion
18.As a matter of fact, what Mr Chan, the social work officer who prepared the SIR did was simply to record those benefits under the heading of the views of the Mother but he has also concluded by saying that,
“In spite of the proper relocation plan...relocation is not suitable for R at this stage of time.”
19.For my part, I have also accepted that the Mother’s relocation plan is realistic[4] but refused her application for other reasons as set out in my judgment.
Ground 1(6)
20.The law firm submitted that I had failed to consider that Mirror Order could be registered in Taiwan and the Mother had agreed to put up the security for her undertaking to make access available to the Father and therefore the potential access issues if the relocation application is granted had been addressed.
Discussion
21.With respect, I have already dealt with this in paragraph 63 of my judgment when I said,
“I would not consider this because even in Hong Kong, the parties have been having numerous problems regarding access despite a 7-paged Order with details on access.”
Ground 3
22.The law firm submitted that I had failed to consider the checklist of factors recommended in the 2005 Law Reform Commission Report on Child Custody and Access which has been incorporated in the Children Proceedings (Parental Responsibility) Bill.
Discussion
23.My reply to this submission is that in ZJ v XWN, CAMP 67/2018, [2018] HKCA 436, the Court of Appeal stated,
“27. The Judge had further pointed out that, when applying the welfare principle under section 3(1) of the Guardianship of Minors Ordinance the family court judges may refer to the “welfare checklist” mentioned in the English Children Act 1989 and the recommendation of the Hong Kong Law Reform Commission’s report on Child Custody and Access of 7 March 2005. The Judge also referred to H v N [2012] 5 HKLRD 498.
28. Whilst we respectfully agree with Black LJ that whatever guidance fallen from earlier cases should not be applied rigidly and Vos LJ’s comment on the holistic approach, it is not mandatory for a judge in Hong Kong to set out the welfare checklist mechanically item by item to demonstrate that she has considered the same. (emphasis added)
30. As it has been said in the course of the hearing, be it the guidance in Payne or SMM v TWM or the welfare checklist, these are simply tools to assist a family judge in making the multi-factorial assessment to reach a result which is in the best interest of the child after taking account of the potential impacts on the parents. This Court cannot be prescriptive as to how the balancing exercise is to be undertaken. So long as a judge does not fall into the trap of regarding any of these tools as the ultimate test in place of a holistic assessment of all the relevant factors in the circumstances of the case, it is a matter for him or her to decide if any one of these tools should be used in a particular case. As observed by Vos LJ, the circumstances of the cases vary and much depends on the facts of a case.
31. This Court will only intervene when the assessment by a judge is flawed in the sense as explained in G v G [1985] 2 All ER 225, viz the judge exercised the discretion in a manner which is wrong in principle or without regard to relevant matters or based on misunderstanding of evidence or the judge’s decision was so plainly wrong that he must have exercised its discretion wrongly. This is in line with this Court’s approach in any appeal against a judgment involving multi-faceted assessment as seen in Re A [2018] HKCA 272.
Ground 5(2)
24.The law firm submitted that I ought to have realised that the Mother went to Korea for a self-financing language course for two months at the end of 2014 leaving R behind because: -
(a) The evidence of the Mother was that the said trip was for the purpose of her preparation of working as a Hong Kong based special correspondent in Yonhap News Agency;
(b) The Mother gave up the working opportunity and returned to Hong Kong after two months as she missed R a lot; and
(c) During the said period, the Mother entrusted the care of R to the Maternal Grandmother in Taiwan.
Discussion
25.I have dealt with 5(c) in paragraph 46 of my judgment. As for 5(a) and (b), I did not see the evidence in the hearing bundle or in the Affirmation of the Mother filed on 3 February 2015 or otherwise. I only knew that the Mother stayed in Korea for 2 months leaving R behind when I read the very first SIR in this case. In paragraph 25 of the first SIR, Ms Wong who prepared it stated that,
“…..The Mother said she did not inform the Father of her change of residence because she worried that the Father would set more barriers on the monthly payment of maintenance to her. She said she had been staying in Korea for a self-financing language course for about two months since October 2014. She entrusted R to the care of the maternal grandmother and Marissa during this period. She reunited with R in Taiwan in late December 2014 and returned to Hong Kong together afterwards.”
26.In any event, my point in my judgment was that the Mother should have informed the Father of those major changes in particular that the Mother was absent from R for two months.
Ground 6(4)
27.The law firm submitted that:
The Father was unable to offer a complete caring plan if he is to have the custody of R;
(a) there is no evidence showing that the Father has a flexible working hours to take care of R during working hours in weekdays;
(b) the evidence of the Father was that if R resides with the Father, his day-to-day care would be left to the domestic helper;
(c) the evidence of the Father was that he has to travel to Mainland China, the United States, Singapore, and Taiwan for work once every two months for 5 days;
(d) the Father is married and has a daughter who is now 14 years of age and is living in Shanghai with his wife; and
(e) the Father has no family support in Hong Kong;
(f) when the domestic helper is on holiday and the Father is having a business trip, there is no evidence that there are other persons available to take care of R;
(g) therefore, the evidence shows that R would be left unattended if the Father is to have the sole custody of R.
Discussion
28.In the SIR prepared by Mr Chan dated 23 November 2018 (the last SIR for the purpose of these proceedings), it is stated that,
“4. The Mother expressed that her living environment and working condition remained similar. She, R and a domestic helper continued to live in the reported private flat. She worked as a yoga teacher and free-lance writer and also assisted her mother in managing the clothing business in the daytime and returned home before 8:30 pm. Owing to her work, she had to travel to Taiwan for 4 days biweekly and to Korea quarterly for several days each. She added that her previous foreign domestic helper had terminated the employment contract in September 2018. She employed a part-time local domestic helper to take care of R before the new foreign domestic helper reported duty on 4 November 2018. Meanwhile, her father stayed in Hong Kong from September to October 2018 and assisted in escorting R to and from school and provided R with supervision on homework.
6. The Father stated that his working conditions remained similar. During weekdays, he worked from 9:00 am to 6:00 pm.”
7. At present, R was living with his mother and a domestic helper. According to the Mother, R woke up at 6:00 pm during school days. Having taken breakfast at home, R was escorted by the domestic helper to school. R attended school from 7:55 am to 3:20 pm and after school, he joined a tutorial class in school and received private tuition from a tutor at home. He usually took dinner around 8:00 pm and went to bed around 10:00 pm. During weekends, R participated in Taekwondo interest class, attended tutorial class and took lunch and dinner with the mother in the restaurants most of the time.
17…. (the Father) planned to take care of R with the assistance of a foreign domestic helper. During his work hours, the domestic helper would provide R with escort services and prepare meals for R. (The Father) would take care of R by himself after work. He was able to escort the child to school in the morning and gave the child with guidance on homework in the evening. He assured that he would look after the child properly.”
29.Given the above statements were not challenged in court, it is against the background that I found that this is not a case whereby the Mother is a full-time housewife. She was also required to travel and work until late evening.
30.As I have already concluded in paragraph 100 of my judgment that when R was under the care and control of the Mother, the predominant day-to-day care was left to the domestic helper and given that R is much older now, I have therefore formed the view that the Father would look after R properly.
31.In any event, I have granted the Mother staying access every alternate weekend from Friday to Sunday and additional weekend staying access. I am sure things would work out for R’s arrangement if the Father is in need of help from the Mother.
Ground 6(5)
32.The law firm submitted that the credibility and hence the genuineness of the Father’s opposition to the Mother’s relocation application was in doubt: -
(a) The video recording produced by Maria showed that on 13 December 2016, R admitted telling lies to cover up the Father bringing another woman in during his access time with R;
(b) The partial transcript of the said video recording provided by the Father is inaccurate and incomplete.
Discussion
33.With the greatest respect, this allegation of the partial transcript being inaccurate and incomplete has never been raised or challenged in court or in any of the submissions.
34.The full content of the partial transcript of the video on the USB drive is as follows: -
Date/time: Dec/13/2016, late night after social worker’s daytime visiting
Video recorder: Maria the helper
Voice: the Mom
Cryer: the Child (R)
The Mother: “kneel down there”(你就跪在那裏)
The Mother: “Did you hear me?”(知不知道)
The Mother: “Did she take woman back home to sleep”(他有没有带女人回家睡覺？)
R: “No”(没有)
The Mother: “Are you lying?”(有沒有說謊？)
The Mother: “Did he take woman back home?”(上次有没有带女人？)
The Mother: “Why you said no?”(你為什麼說沒有？)
The Mother: “Is that an auntie?”(是不是一個姨？)
The Mother: “Why you said no?”(你為什麽說不是？)
(Slap onto R)
(R’s crying)
The Mother: “I told you to tell that!”(我告訴你說的)
The Mother: “Why don't you speak out if he took woman?” (你為什麼不說他帶女人？)
(Unscribled of R’s defense)
The Mother: “Nonsense"(亂說)
The Mother: “Does he have women?"(他有没有女人？)
The Mother: “Can you hear me!!! Nonsense!!"(你聽到没有！亂說！)
The Mother: “Why don't you phrase like I told you, why!!"(為什麽不按照我說的？)
(Hitting R’s tummy heavily)
(R’s louder crying)
(More slaps)
(R’s burst into even louder cryings)
35.As we were not asked to watch the video in Court, which part of the transcript is the law firm challenging?
Ground 7
36.The law firm submitted that I erred in accepting the evidence or explanation of the Father in relation to child neglect by failing to give or give sufficient weight to the following: -
(1) R himself admitted being left in the park alone during Father’s access time;
(2) According to an email dated 15 May 2018 from the class teacher of R, Ms Wong, Ms Wong confirmed that R told the social workers at school that the Father told him to go to the park alone for 1 to 1.5 hours;
(3) Telegram record between Father and R showed that Father left R alone at home on 10 August 2017;
(4) The evidence of the Father that R was very introvert and would not proactively play or talk to his peers is inconsistent with the objective evidence. All the Social Investigation Reports showed that R is a smart and playful boy, who gets along well with his peers;
(5) The evidence of the Father was that he monitored R closely from a distance which R did not know is not supported by any objective evidence and is incredible; and
(6) Telegram record dated 15 September 2017 showed that the Father requested R, who was at the age of 7 to travel alone to Shatin to visit the Father.
Discussion
37.I would deal with (1), (2) and (5) together as they are related. In paragraphs 50 – 54 of my judgment, I have already dealt with the issue that R did not know that his father was around to monitor him.
38.Furthermore, in the August SIR prepared by Mr Chan,
“12. In gist, R said that his father had left him alone at home but unable to elaborate the details when explored. He also said that he played in the park alone for one hour only but claimed his father picked him up two hours afterwards.
13. In response, the Father insisted his innocence. He declared that he could not leave R alone on 10 August 2017 as no staying access was scheduled. He also declared that he had brought R to the park on 21 April 2018 and arranged him to play with other children. He could produce a video to show he had taped R at aside. Based on the collected information, it was concluded to have no strong evidence to substantiate the alleged incidents as child neglect. The police had informed the Mother of the above findings and the case was just closed in July. Notwithstanding this, the Mother strongly felt that the Father had history of leaving R alone at home or other place.”
39.As for (4), I disagree with the law firm’s submission that all the Social Investigation Reports showed that R is a smart and playful boy, who gets along well with his peers. I can only agree that from the SIR, R gets along well with his classmates and that is one of the reasons that he does not want to leave Hong Kong.
40.In the first SIR prepared by Ms Wong when R was slightly over 4 ½ years of age, she said that,
“42. According to Ms Mok (one of the dual class teachers), R was quiet and calm in class....
45. During the home visit at the Mother’s home on 14 April 2015, R was very active and playful.
46. During home visit at the Father’s home on 11 April 2015, R was very talkative and energetic.”
41.Apart from that, there is nothing in the reports mentioned in paragraph 12 of my judgment which said that R is a smart and playful boy.
42.As to the telegram records in (3) and (6), the contents are as follows
The Father: Many people in government office
The Father: Will back in 10 min
The Father: you can come earlier if you want
The Father: We can go to buy some fruit and yummy snacks then.
The Father: are you coming?
R:Yes
The Father: do you know how to change train?
R: I go my self?
R: Hello
The Father: Yes
R: Ok
The Father: take only one stop for the first train, you know that
R: No you come now
R: Or I am not coming
43.Although the law firm did not raise or put the telegram records to the Father in Court so I do not know what the Father’s explanation is, looking at the 2 telegram records now would not have affected my decision anyway. Even the Mother in her 5th Affirmation filed on 7 August 2018 said that it was the Father’s view that R had already grown up and he should try to travel himself. I accept that. It does not amount to child neglect.
44.In paragraph 72 of my judgment, I have also said that,
“…Whilst in court, the Mother has spent some time telling me the Father had left R in the library and playing in the park by himself…she did not consider there was any problem in leaving a 9 years old boy at home with the domestic helper since February 2019 and returning only for 7 days a month.”
Ground 8
45.The law firm submitted that I erred in law and on the evidence in not considering a joint custody order with shared care and control to both parties and that I have failed to consider the guidelines laid down by PD v KWW [2010] 4 HKLRD 191, namely,
“communication problems between the parties in itself is not a bar to a joint custody order, and the issue for the judge is “whether with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognizing that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.”; and/or whether “the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.”
Discussion
46.PD v KWW is the leading authority on the question of sole/joint custody. Hon Hartmann J set out the approach for the courts to adopt on joint custody:
54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.
55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.
56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.
57. At all times, of course, the welfare of the child remains the first and paramount consideration. As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable. (emphasis added)
47.While orders for joint custody are often preferable, there are certainly cases where it is not the appropriate order and where an order for sole custody should be made in the interests of the children.
48.In SEB v ZX (Custody) [2007] HKFLR 165, HHJ Melloy stated:
“Joint custody means that the parents should be able to make the major decisions concerning their children’s life together. Although there have been cases where joint custody has been ordered where the parties find it difficult or indeed impossible to co-operate with each other, the general rule of thumb is that joint custody should only be ordered where the parents are able to work together effectively.” (emphasis added)
49.Joint custody may, therefore not be appropriate where the parents are unable to work together effectively for the interest and benefit of the children Y v P [2009] HKFLR 308.
50.In ML v YJ [2008] HKFLR 88, Recorder Rimsky Yuen SC ordered that a sole custody order was appropriate in a case where the proceedings were stated to be acrimonious and the evidence showed that there was a lack of trust on both sides, with all communication having to be between lawyers. It was stated that,
“22. In considering whether it is appropriate to make an order of joint custody, it is also relevant to consider the effect of such an order. In Dipper v Dipper [1980] 3 WLR 626, the first instance judge granted custody of three children to the father but ordered the care and control of the children be given to the mother for the reason that he did not want the children to be removed from their schools without the father being notified and he would have the say about their future upbringing (p. 630B-D). Ormrod L.J. held that this was an erroneous view and observed as follows (at p.637H-638C):
“It used to be considered that the parent having custody had the right to control the children’s education – and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other major matter in their lives, that disagreement has to be decided by the court. In day-to-day matters the parents with custody is naturally in control. To suggest that a parent with custody dominates the situation so far as education or any other serious matter is concerned is quite wrong. So the basis of the judge’s order giving custody to the husband and care and control to the wife was, in my view, unsound. In any event, these split orders are not really desirable. There are cases where they serve a useful purpose, but care has to be taken not to affront the parent carrying the burden day to day of looking after the child by giving custody to the absent parent. …”
(See also per Cumming-Bruce L.J. at p.640E-F.)
23. Liu J. in Lo Chun Wing Yee Lilian v Lo Pong Hing Daniel (above) adopted the same approach and explained as follows (at pp. 650H--65IC):
“I cannot accept the submission that making the mother/applicant a sole custodial parent would bring about any severance of link between the father and the child. Undivided legal custody has certain consequences. It will, inter alia, facilitate the management of affairs for the welfare and benefit of the child. It would enable immediate decisions in relation to those matters to be promptly and expeditiously made. But, as it was well said by Cumming Bruce LJ. In Dipper v Dipper [1980] 2 All ER 722 at 733B, the parent without custodial status is entitled ‘to know and be consulted about the future education of the child and any other major matters’. If the father disagreed with the course proposed or decided by the mother as the custodial parent, he would have a right to resort to court for guidance. By vesting sole legal custody in the mother, it would not thus prevent the father from making a real contribution to the upbringing of the child of the family. Naturally, for any challenge sought to be made to decisions made or to be made by the mother, good cause will have to be shown.”
51.Having considered the authorities, Recorder Yuen gave guidance as to the approach that the Court should take:
In light of these authorities, the position can be stated as follows:
(1) In considering whether to grant joint custody to both parents or sole custody to one of them, the first and paramount consideration is the welfare of the child.
(2) Whether or not a joint custody is workable depends very much on whether the parents can co-operate. A court may refuse to grant joint custody if there is no reasonable prospect that the parties will co-operate. Whether or not there is such reasonable prospect is a question of facts. If there is no reasonable prospect of co-operation between the parties, an order of joint custody can be a recipe for disaster and contrary to the best interest of the child.
(3) A joint custody order may in appropriate cases be made for the purpose of encouraging parents to overcome their differences and co-operate for the benefit of their children. Joint custody in such circumstances can serve the purpose of recognizing the role of both parents in the child’s upbringing. However, if it is clear that a joint custody is not workable, it seems unlikely that the Court will nevertheless make such a joint custody order solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties. As stated above, a joint custody order which is unlikely to be workable cannot be in the best interests of the children as the adverse consequences will far outweigh the benefits that it may bring.
(4) A custody parent does not have the right to make all the decisions about the children in spite of disagreements of the other parent. Should there be any disagreements over major matters affecting the children, the party who does not have custody can bring the matter to the Court for determination.
52.Although I did not set out the principle in my judgment, I have set out the overall reasons for me granting sole custody to the Father. In this case, even though the Mother is legally represented and the Father is not, neither party asked for joint custody. I agree that what the parents asked for is not binding on me in children’s matter but since the parties had agreed that sole custody, care and control be to the Mother in August 2012 and court order was made accordingly, the parties have returned to court on numerous occasions solely in relation to R. In the light of the past history, I cannot see that joint custody would work in this case.
53.With the reasons given, I do not see that the mother has a real prospect of success in the appeal. I also failed to see any 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
54.I make the following orders:
(i) The Mother’s (the Applicant’s) Summons filed on 16 January 2019 for leave to appeal against the judgment handed down on 6 December 2019 be dismissed.
(ii) The Mother’s (the Applicant’s) Summons filed on 16 January 2019 for stay of execution of the judgment handed down on 6 December 2019 pending determination of the appeal be dismissed.
(iii) The Mother (the Applicant) do pay the Father’s (the Respondent’s) costs of the summons filed on 16 January 2019, to be taxed if not agreed.
| |
(Susan Wong) |
| |
Deputy District Judge |
Messrs Ho Tse Wai & Partners Solicitors for the Applicant
The Respondent appeared in person
[1] page 2 of the Hearing Bundle
[2] page 162 of Item 20 of the Bundle
[3] page 15 of the Hearing Bundle
[4] in paragraph 37 of my judgment
|