Bl v. Sjy

FCMC 7831 of 2008

[2021] HKFC 233

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 7831 OF 2008

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BETWEEN

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Coram:   Her Honour Judge Sharon D. Melloy in Chambers (Not open to the public)

Date of submission:   24 August 2021

Date of Ruling (paper disposal):  16 November 2021

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R U L I N G

(Leave to appeal)

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Introduction

1.On the 28 July 2021, the court handed down its judgment on relocation. In that judgment, an order was made giving leave for the only child of the family, S, a girl who was born on the XX August 2007 and is now 14 years of age, to be removed out of the jurisdiction of Hong Kong on a permanent basis, in order to relocate to California, with her mother, the Petitioner, with immediate effect. The Respondent father now seeks leave to appeal against that order. 

2.By way of a brief background, this litigation has a very long and unfortunate history that goes back to 2008, when the mother first issued the divorce petition. There have been numerous judgments handed down with respect to all manner of disputes between the parties, but in the more recent past the focus has been on the daughter’s maintenance. In summary, the father has consistently failed to comply with court orders to pay the child’s maintenance. A pattern has developed over the years whereby the father fails to pay, either in full or in part, and often not even the amount that he has applied to vary the maintenance down to, one or other of the parties then applies to vary the maintenance up or down, a judgment is delivered, the father refuses to pay and the mother issues proceedings to enforce. From memory the court has committed the father to prison on two occasions for contempt, arising out of his failure to pay and on each occasion he has then paid what is owed once he has been taken down to the cells.

3.This situation has left the mother in a very tenuous situation, which has only been made worse by the Covid-19 pandemic. She is not a Hong Kong permanent resident and has no ability to work in Hong Kong save with a work visa. Thus the court was left in a situation where there were risks associated with the mother leaving Hong Kong with the daughter and risks associated with her staying. This is set out in full in the judgment.

The law

Leave to Appeal

4.Section 63A of the District Court Ordinance allows for an appeal to be made to the Court of Appeal with the leave of the presiding District Court judge.  Section 63A of the District Court Ordinance provides as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.”

5.It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and, as has been 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.  

Discussion

6.The father’s draft grounds of appeal seek, inter alia, to introduce new evidence after the event and to reargue other matters where findings have already been made in the judgment. It does not, with respect, identify a proper basis for an appeal. It is also of note that the father was present at the trial and that he was contacted when the judgment was ready to be handed down. The suggestion that he was surprised by the outcome is not accepted.

Conclusion

7.In such circumstances, the Respondent’s summons dated the 24 August 2021 shall be dismissed.  It does not appear to have a realistic chance of success nor is there any other reason in the interests of justice why the court should accede to the Respondent’s request in this respect. Although the parties are both acting in person and this application concerns the arrangements for a child, it is a discrete application. Therefore, the court shall also make an order nisi to be made absolute in 14 days’ time that  the costs of this summons shall be to the Petitioner mother to be taxed if not agreed on a party and party basis.  

The Petitioner and the Respondent are both acting in person