Jtmw v. Nav
Read the full judgment text of FCMC 8504/2017 on BabelCite. This Family Court judgment was delivered on 29 March 2021 before His Honour Judge I Wong.
Family law – child relocation – leave to appeal – District Court Ordinance s.63A(2) – reasonable prospect of success – parental alienation – costs – no order as to costs – application dismissed – Petitioner father sought to relocate two children to Denmark – Respondent mother opposed and applied for leave to appeal – Relocation Judgment granted leave on 3 December 2020 – Mother failed to show palpable error or plain wrongness in primary judge's findings or discretion – Mother's submissions were repeats of trial arguments – Costs not awarded as objection due to fear not reprehensible conduct
Legal issues: Test for leave to appeal · Merits of grounds of appeal · Costs
Outcome: Leave to appeal dismissed
Cited by 1 case · Cites 18 cases
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FCMC 8504/2017 [2021] HKFC 65 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 8504 OF 2017 ----------------------------
--------------------------- Coram: His Honour Judge I Wong in Chambers (Not Open to Public) Date of the Respondent’s Submissions: 31 December 2020 Date of the Petitioner’s Submissions: 20 January 2021 Date of Judgment: 29 March 2021 __________________ J U D G M E N T ( Leave to Appeal )
__________________ 1.By a judgment handed down on 3 December 2020,[1] leave was granted for the petitioner father to relocate the two children of the family, both boys, to Denmark, his home-country. This was a decision made after a 5-day trial. I shall call this judgment “the Relocation Judgment”. 2.Dissatisfied with the outcome, the respondent mother applied for leave to appeal on 31 December 2020. 3.In this Ruling, I shall continue to refer to the petitioner and the respondent as “the father” and “the mother”. I shall also adopt the same abbreviations and nomenclatures used in the Relocation Judgment. 4.As I have already set out the parties’ case and the finding of facts in the Relocation Judgment, I do not propose to repeat them here. Reference to the relevant parts of the Relocation Judgment will be made as and when necessary. The Legal Principles 5.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”):
6.The Court of Appeal discussed the application of s 63A(2) of the DCO in Sunny Tadjudin v Bank of America, National Association, HCMP No 691 of 2012, unreported, 29 June 2012 at [9]:
7.Recently, the Court of Appeal in ZJ v XWN [2018] HKCA 436, CAMP 67/2018, (date of judgment: 25 July 2018) stated, at [64], that application for leave to appeal should be a filtering process and should be conducted summarily and proportionately. The Father’s Submissions 8.The father’s original response was an 8-page submissions which was longer than that allowed under the “New Arrangement for Application for Leave to Appeal in the Family Court”. Since the mother is acting in person and in view of the animosity of the parties, any impression or feeling that she has been unfairly prejudiced or disadvantaged should be avoided, I therefore directed the father to adhere to the requirement by re-lodging a 5-page submissions. 9.As for the Official Solicitor, the court was informed on 18 February 2021 that no submissions would be made on behalf of the boys. The Mother’s Intended Grounds of Appeal 10.I now turn to the mother’s intended Grounds of Appeal. Whilst I shall deal with the grounds below, I must say, by way of an overview, that many of the mother’s submissions made in support of this application are in fact a repeat of those she already made at trial. She tries to repeat these submissions to argue that I erred in some primary finding of facts or that I wrongly exercised the discretion to allow the boys to leave, or both. I was of course well aware of these submissions when I considered whether to allow the boys to leave. It has been reiterated by higher courts that it is not helpful if litigants merely repeat their submissions already advanced and considered at trial; it is not the role of an appellate court to reconsider the submissions. On the role of an appellate court, Hon Lam VP said the following in China Gold Finance Limited v CIL Holdings Limited & Ors, CACV 11/2015 (unreported, 27 November 2015),
11.On appeals against the exercise of discretion, The Hong Kong Civil Procedure (2021) has the following discussion at §59/0/54,
12.Therefore, in order to challenge the primary findings of facts made by me or the correctness of exercise of the discretion to allow the boys to relocate, the mother must be able to point out how the conclusion on the facts was plainly wrong; and she must also be able to demonstrate there is an arguable case that the discretion was not exercised at all or that I made some error of law in its exercise, or that the decision was plainly wrong. 13.In her 5-page submissions, the mother advances 7 intended Grounds of Appeal (ie paragraphs 4(a) to (g) of her submissions). Except for a few paragraphs, she, however, has not specified in the ensuring paragraphs which paragraph is for which ground. In the circumstance, I tried to categorize her submissions into a particular ground according to my understanding so as to give a structured response here. Ground 1 – Has erred on points of law, and understanding of facts 14.The mother seemed to be saying that I applied the wrong legal principles. 15.I have already set out a comprehensive clear summary of the legal principles and the approach to be adopted. At [55] and [56] of the Relocation Judgment, I said,
16.The mother has failed to set out how I erred on points of law; so this ground must fail. 17.As regards the assertion that I erred in the understanding of facts, the mother purports to rely upon an “Advice” from a senior captain of the father’s employer to say that the father tried to mislead the court on the issue of whether he would be required to arrange alternative accommodation if he is to travel from Denmark to Heathrow. Leaving the issue of whether the mother would be allowed to adduce further evidence under the Ladd v Marshall rule [2] aside, it is significant to note that I disagreed with the father on this issue. I clearly said, at [65], that a plain reading of the employer’s Policy is that the father is required to arrange alternative accommodation. According to the mother, the senior captain agrees with my view. If that is the case, I fail to see how I have misunderstood the facts. Ground 2 – The court has been actively misled as to facts by counsel of the father 18.I begin by saying this is a serious allegation; as such, it should not be lightly made. In any event, except on the point in respect of Parental Alienation Syndrome which I shall deal with in Ground 6 below, the mother has not been able to pinpoint the particular facts that Mr Clough tried to mislead the court. Ground 3 – The court has been actively misled as to facts by the father and his witnesses and Ground 4 – The court has chosen to ignore the mistruths told under oath both written and verbally by the father and his witnesses 19.The mother is essentially complaining that the court chose to accept the father’s case and his and his witnesses’ evidence but not hers. She labels the father as a liar and she repeats what she said at trial about (a) the father’s insecurity in the UK due to post Brexit visa changes; (b) potential closure/reduction of the Heathrow base; (c) the father’s plans to commute between Denmark and Heathrow; (d) the grandparents’ animosity and unsuitability as carers for the boys; and (e) V’s unlikely chances of attaining a Family Reunification Visa. 20.As I referred to above, it is not helpful for the mother to have repeated her submissions or assertions as to facts. Similarly, it does not help anyone reading this Ruling if the analyses of evidence and the findings of facts are repeated here. Suffice to say is that I was well aware of the parties’ case as regards these issues and I dealt with them by giving careful consideration to the evidence adduced before me. Again, the mother has failed to point out how I erred in accepting one’s evidence but not the other’s or which of the conclusion of facts made by me was plainly wrong. Ground 5 – The court has made the assumption that evidence given by the father was factually correct, workable and given in good faith 21.The mother says I wrongly believed in the father when he claimed to support a relationship between the boys and her sisters. She relies upon the fact that after the Relocation Judgment the father removed himself from the chat groups her sisters had made for the purpose of communicating with the boys and blocked contact from them. In support, the mother tries to adduce some screenshots of the group chat conversations exchanged between her sisters and the father after the Relocation Judgment. 22.I said the following in the Relocation Judgment when I considered the extent of detriment to the mother and her future relationship with the boys if the application were granted,
23.I do not know whether this ‘after-the-judgment’ evidence is truth or not. Mr Clough’s responses are that there is no application to admit new evidence and that none of the assertions impact on the decision as to relocation but he has not given a head-on reply to the alleged events. 24.Assuming for one moment that this is what happened, for all the reasons I have said in the Relocation Judgment and bearing in mind whether the boys should be allowed to leave is an issue that requires the court to conduct a holistic balancing exercise by taking all matters relevant to the boys’ welfare into consideration with their best interest as the first and paramount consideration, I do not consider this event, even if true, could enable the mother to elevate this to a point that could tip the balance in her favour. 25.It should not be forgotten that section 18 Declaration has not been granted and the parties would still have to return to court to deal with the ancillary relief matters. Where necessary, the issue of communications between the aunts and the boys can be addressed. Ground 6 – Ignored the High Court practice given in C v S [2020] HKCFI 937, HCMP 929/2017, citing Re S (Parental Alienation: Cult) [2020] EWCA Civ 568, [2020] 2 FLR 263 26.In advancing this ground, the mother refers to Re S (Parental Alienation: Cult) [2020] EWCA Civ 568, [2020] 2 FLR 263, where Peter Jackson LJ discussed the law concerning parental alienation. She argues that this court failed to address and assess the impact of parental alienation of the boys as a form of Pathogenic Parenting in Diagnostic and Statistical Manual of Mental Disorders, 5th Edition. In so saying, the mother admits that she erred by simply referring to “Parental Alienation Syndrome” at trial, and not its correct clinical name. At the same time, she seemed to have put the blame on Mr Clough, who according to the mother, actively misled the court by omitting to refer to Pathogenic Parenting and not distinguishing it from Parental Alienation Syndrome. I regard it as a most unfair point to make. Parental Alienation Syndrome was a case put forward and pressed on by the mother at trial. I do not see anything wrong for Mr Clough to have given a response to this very allegation in the way it was. Most importantly, apart from the mother’s own assertions, there was a dearth of factual or expert evidence in support. On the contrary, it has been the views of all the professionals involved in helping this family that the boys were estranged by their mother’s own conduct: see [59], and [98] to [109] of the Relocation Judgment. 27.The mother also alleges that I failed to exhaust all and any necessary steps to help her to reconnect with the boys. The relocation would erase all hope of achieving what should be achieved by way of therapeutic intervention. 28.The mother’s proposal regarding access before the boys’ departure was considered at trial. At [101] of the Relocation Judgment, I said,
29.And at [105] of the Relocation Judgment, I commented that the mother continued to insist things to happen in the way she dictated. 30.Hence, if the mother missed any opportunity for therapeutic intervention, it was due to her own decision. Ground 7 – The court confused the boys’ loyalty and affection for their father thus influencing their expressed wishes, with what would be their real wishes if properly explored with qualified professionals 31.The mother submits that I took the boys’ expressed wishes at face value without any proper inquiry, failed to properly ascertain the authentic and true wishes of the boys given their age, and failed to take into account the alienation by the father. 32.The evidence, by way of oral testimony of Ms Cheng (the social welfare officer) and various reports, is that (and I accepted) the boys were able to voice their views freely to Ms Cheng and to Mr Lee of the Official Solicitor. In order to succeed the mother must be able to demonstrate how the I erred in accepting the evidence but she failed to do so. Conclusion & Order 33.For the reasons aforesaid, I have no doubt that the mother’s application is unmeritorious. There is simply no reasonable prospect of success nor is there some other reason in the interests of justice so that the appeal should be heard. The mother’s application should be dismissed and I so order. Costs 34.This is a children proceeding. I consistently take the view it is / was due to the mother’s fears that she would lose the boys forever that has made her objection to the application for relocation. This is not reprehensive conduct that warrants a costs order against her. I make the usual no order as to costs order.
Mr Neal Clough, instructed by Ho & Ip, Solicitors, for Mr JTMW, the petitioner Ms NAV, the respondent, in person Mr Lee Tak-lei, Ted, solicitor, for the Official Solicitor | ||||||||||||||
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