Ysym v. Lhb

FCMC 19025/2012

[2020] HKFC 83

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 19025 OF 2012

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Coram:  Deputy District Judge J. Chow in Chambers (paper disposal)

Date of Decision:  8 April 2020

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DECISION

(Leave to Appeal)

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Introduction

1.I handed down my judgment on 25 February 2020 for both the petitioner’s (“the mother’s”) application for leave to remove both children of the family to Vancouver for further studies / relocation and the respondent’s (‘the father’s”) application for provision of school reports and family therapy (“the Judgment”).

2.The mother filed a summons on 17 March 2020 for leave to appeal against the Judgment on further studies / removal only. Neither parties have applied for leave to appeal against my judgment relating to the father’s application.

3.The mother’s summons will be considered in accordance with the new arrangement on application for leave to appeal in the Family Court dated 13 August 2018 (“the new arrangement”). The mother filed an affirmation of service on 2 April 2020. The respondent (“the father”) filed his submission by email on 31 March 2020.

4.Briefly, the mother filed her petition on 28 December 2012. Decree nisi was granted on 9 April 2013; decree absolute was granted on 8 January 2015. The mother has sole custody, care and control of two sons, they reached 13 and 12 at time of trial. I do not intend to repeat the background of the case here.

Applicable legal principles

5.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 reason in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336.

6.Reasonable prospect of success connotes the prospect of succeeding in the intended appeal 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 2020, §59/2A/4)

7.The mother submitted in cases where leave to appeal concern children, Re W (Permission to Appeal) [2008] 1 FLR 406. In cases where the answer to either of the following four question is yes, leave to appeal shall be granted. The questions on point are at paragraph 20 of the judgment:

(i)  Did the judge arguably make any error of law in reaching his conclusion?

(ii)  Was there, arguable, insufficient material on which the judge could properly make the findings of fact and the assessments of the witness which he did make?

(iii)  Is it arguably that the order he made was not properly open to him in the exercise of his judicial discretion?

(iv)  Is there, arguably, any error in the exercise of that discretion which enables us to say that his order was, arguably, plainly wrong?

The mother’s grounds of appeal and analysis

(i) Impact on refusal on the mother

8.The mother submitted I have erred in disregarding her emotional feelings. She relied on the observation of the social investigation officer saying the mother “is determined to get rid of persistent stress of court proceedings repeatedly raised by the father in Hong Kong over the years and to start a new chapter of life for herself and the two children is understandable”. The mother would be devastated if leave be refused. I was erred to have concluded in paragraph 104 of my judgment that the mother has no impact upon such refusal.

9.The mother testified firmly in her evidence to depart alone to Vancouver should leave be refused, she chose to leave both children behind in the jurisdiction. The mother’s plan of the children to stay in boy’s home was well investigated in her evidence. It is mother’s choice to have put herself in a devastating state, if any.

(ii) Children’s wishes

10.The mother submitted I have erred in ignoring the children’s wishes without proper analysis. Both children have reached an age that I can give due consideration.  In paragraph 107 of my judgment, I said the children’s view is very well noted but there are other more important factors to consider. The mother criticized I have failed to mention what the factors were considered which had outweighed the children’s wishes.

11.In a careful reading of my judgment, I have considered the father’s reasons of opposition, especially the mother’s plan is not viable in removing both children to Vancouver. I have particularly stated in paragraph 116 of my judgment that the uncertainty of the mother’s visa status is of serious concern. This is a removal application, the children’s view should not be the sole factor to be considered.

(iii) The recommendation of the social investigation officer

12.The mother submitted I have erred in departing from the recommendation of the social investigation officer.

13.The social investigation officer has duly discharged his duty by giving his recommendation within his perimeters. He said both the mother’s application and the father’s opposition was genuine. I stated clearly in paragraph 117 of my judgment that I have exercised my discretion not to adopt his recommendation on some other factors that he has not considered.

(iv) Impact on the refusal of the children

14.The mother submitted I have erred in failing to consider the impact on the children.

15.The positions of both the mother and the children were well considered. All three of them were well aware the possibility of leave be refused. The mother testified both children were well aware of admitting to a boy’s home after the mother’s departure.  

(v) The mother’s relocation plan

16.The mother submitted I have erred to have looked for “an almost perfect or completely risk-free plan” for the relocation.

17.I am aware the mother has some HK$12 million cash with her, she is financially sound in staying in Vancouver. Nevertheless, the mother is removing both children to a place she has no permanent residency. She is relying on a working visa to land in Vancouver. She could not provide a place of accommodation in Vancouver at time of trial. I have canvassed the very practical and basic factors as opposed to “an almost perfect or completely risk-free plan”.

(vi) Balancing exercise

18.The mother submitted I have erred not to have conducting a balancing exercise with reference to the parent’s options and plans.

19.The father did not apply for an order to vary custody, care and control to him at trial (be it he mentioned this in his written final submissions). To pay heed to the children’s welfare, I have ordered in paragraph 119 – 122 of my judgment to fix a direction hearing with the attendance of the social investigation officer to arrange accommodation of both children after the mother’s departure.

Leave to Appeal

20.The mother’s appeal has no reasonable prospect of success in the appeal. The mother’s grounds of appeal could not pass the tests in Re W (Permission to Appeal). I refuse to exercise my discretion to grant leave to appeal to the mother. I also failed to see there are some other reasons in the interest of justice why the appeal should be heard.

Conclusion

21.With the foregoing reasons, the mother’s application for leave to appeal be refused.  

22.I make the following orders:

(i)  The mother’s (the petitioner’s) summons filed on 17 March 2020 be dismissed.

(ii)  Costs of the mother’s (the petitioner’s) summons filed on 17 March 2020 be to the father (the respondent) forthwith, to be taxed if not agreed.

Mr Eugene Yim and Ms Lily Yu instructed by Chaine, Chow & Barbara Hung for the petitioner

The respondent acting in person