Jn v. Tlc

Case No.FCMP 283/2011[2019] HKFC 203

Court

FCMP

Date—

Judge—

Case Document

100%Judiciary

FCMP 283/2011

[2019] HKFC 203

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NUMBER 283 OF 2011

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BETWEEN
	JN	Applicant
and
	TLC	Respondent

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Coram : Deputy District Judge D. Cheung in Chambers (Not open to public)

Date of Submission : 11^th June 2019 and 18^th July 2019

Date of Ruling : 6^th August 2019 (paper disposal)

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RULING

( Leave to Appeal )

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The application

1.The Father by Summons dated 11^th June 2019 (“the application”) sought leave to appeal against paragraph 1, 2, 4, 5 and 6 of the Judgment dated 28^th May 2019 (“the judgment”), and to stay the execution of the judgment pending the Appeal.

2.I had given an interim stay of execution of the judgment pending the outcome of the result of the application.

3.In the judgment, I made the following order :

(1)   Leave be granted to the mother to enforce any arrears due pursuant to (i) the father undertaking provided under the Order dated 17^th January 2014 and 3^rd July 2014 by Deputy District Judge A. Yim and paragraph 7 of the Order dated 23^rd July 2014 by Deputy District Judge A. Yim for more than twelve months before the date of this Summons;

(2)   the father do pay the mother the education costs in arrears for the child in the sum of HK$234,680.40;

(3)   the father do pay the mother the child psychologist fees in arrears for the child in the sum of HK$2,789.49;

(4)   paragraph 2 of the Consent Order be varied to the effect that the periodical payments of HK$7,000 per month payable by the father as per paragraph 3 of the Order dated 23^rd July 2014 and the father undertaking provided under the Order dated 3^rd July 2014 by Deputy District Judge A. Yim for the sum of HK$234,680.40 and paragraph 7 of the Order dated 23^rd July 2014 by Deputy District Judge A. Yim for the sum of HK$2,789.49 to be secured against the lump sum of HK$300,000 as referred to in Paragraph 1 of the Consent Order dated 27^th August 2015 until the Minor reaches the age of 18 years or ceases full time education, whichever is the later; and

(5)   the aforesaid sum of HK$234,680.40 and HK$2,789.49 shall be paid out from the lump sum payment of HK$300,000 held by the court within 30 days from the date of this order.

Proposed grounds of appeal

4.The Father sets out 8 proposed grounds of appeal in his draft grounds of appeal and in essence the grounds are as follows:

（1）  The undertakings is no longer valid and was discharged by the final determination and incorporated into clause 6 of the Order dated 23^rd July 2014;

（2）  The Mother overstated the actual school fees;

（3）  The maintenance payment cannot be varied by the judgment;

（4）  The security deposit for periodic maintenance must be held and only utilised for the periodic maintenance and a lump sum payment should not be made;

（5）  Needs of the minor and the means of the parents had not been evaluated;

（6）  No jurisdiction;

（7）  The final order for the child maintenance was clear and the judgment was made against the final order as well as the purpose of the money secured; and

（8）  No consent to the minors schooling was given by the Father.

Applicable Legal Principle

5.Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

6.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that the applicant has an arguable case with reasonable chance of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

7.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.

8.Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

Discussion

9.In the Father’s draft grounds of appeal, he re-iterated that the undertakings given by him had been discharged after the judgment dated 23^rd July 2014 was given by Deputy District Judge Yim.

10.He also said that the judgment had varied the maintenance of the minor per month, and double the actual maintenance payment per month without properly making the assessment of the minor’s needs and the parents’ means.

11.I had given my reasons as to why I consider that the undertakings given by the Father is valid and enforceable in the judgment (see paragraph 11 to 14 of the judgment).

12.Particularly, at paragraph 12 of the judgment, I had quoted paragraph 104 and 105 of the judgment dated 23^rd July 2014 which I found the validity and the effectiveness of the undertakings were recognized.

13.The Father also said that for the undertakings to be valid, it would require that the joint custodial rights has to be honoured and he had not given any consent to the minor’s schooling.

14.My view is that no such condition or requirement as suggested by the Father was imposed in the respective undertakings save and except that the Father needed to be provided the un-redacted invoice and payment proof for the minor’s expenses related to education and minor’s care.

15.In the Father’s draft grounds of appeal, he also said that the Mother had overstated the actual school fees.

16.I had given my reasons as to why I was satisfied that the Mother had provided the correct figure that the Father should be responsible for his share (see paragraph 24 to 31 of the judgment).

17.The Father also complained that a lump sum payment should not be made, and the security deposit for periodic maintenance must be held and utilised for the periodic maintenance only.

18.I had given my reasons as to why I consider it was appropriate that the lump sum payment of HK$300,000 held by the court as security for the minor’s maintenance shall be extended to cover the arrears due pursuant to the undertakings given by the Father (see paragraph 44 and 46 of the judgment).

19.I also found in the judgment that this Court had jurisdiction to deal with the enforcement of the undertakings given by the Father, despite the fact that the Father said the minor is no longer in Hong Kong and resides in Australia (see paragraph 16, 17 and 20 of the judgment).

20.Having considered the matters set out above, I am not satisfied that the Father would have a reasonable prospect of success in all his proposed grounds of appeal described above.

21.There is no submission that there is “some other reasons” in the interests of justice that the appeal should be heard, and I also do not find that there is “some other reasons” that the appeal should be allowed to be heard.

22.Consequently, the Father’s application for leave to appeal is denied.

Conclusion

23.Unsuccessful applications for leave to appeal are usually visited with costs orders. I would therefore order that the Father do bear the Mother costs of the Summons to be taxed if not agreed. This is a costs order nisi, to be made absolute within 14 days from today.