Case Document

100%Judiciary

FCMC 16521 / 2015

[2022] HKFC 45

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 16521 OF 2015

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BETWEEN
	GKLJ	Petitioner
and
	WE also known as WFYE	Respondent

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Coram:

Deputy District Judge Jacqueline Lee in Chambers (Not Open to Public)

Date of written submissions of the respondent:	10 February 2022
Date of written submission of the petitioner:	24 February 2022
Date of Judgment:	10 March 2022 (paper disposal)

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J U D G M E N T
(Leave to appeal)

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Introduction

1.This is an application by the Respondent mother for leave to appeal against my judgment dated 27 January 2022 (“Judgment”) with respect to the care and control for the only child of the family, J.

2.I shall for convenience adopt the abbreviations in the Judgment.

3.In the Judgment, I made an order inter alia as follows:

1. The shared care and care arrangement of J, under the Order dated 11 April 2018 shall in general remain unchanged, save and except that the Mother shall have additional care of J from afterschool to 6 pm on Wednesday, Thursday and Friday;

2. The parties do continue to appoint a parenting coordinator to assist them with carrying out of the terms of the Order; and

3. There be an Order Nisi, to be made absolute in 14 days from the date of the Order, that there be no order as to costs of the Mother’s application, including all costs reserved.

4.In the Mother’s draft notice of appeal, she came up with a new proposal in respect of the care arrangement of J. For the purpose of this application, it is unnecessary for me to make any decision on her new proposal.

The law

5.The test for leave to appeal is set out in Section 63A of the District Court Ordinance which states:

“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.”

6.Hartmann JA in KNM v HTF, unreported, HCMP 288/2011, 7 September 2011 further explained the applicable principles for granting leave to appeal as follows:

9. The relevant test of whether an appeal has a reasonable prospect of success under section 63A is whether the applicant for leave can show that he has an arguable case with reasonable chances 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".

7.Further, Her Honour Melloy in R, MJ and OAM, also known as R, AO, [2019] HKFC 173 states as follows:

7. As set out in TAC v VDC nee VDM, [2012] FCMC 16497 of 2010 Leave to Appeal Ruling dated the 24 September 2012, unreported, the parent seeking leave to appeal has even more of an uphill battle to climb when the issue is about a child. In that Ruling I cited the following references:

See Rayden & Jackson at 51.7 Appeals in Children’s cases:

“It has been said that the Court of Appeal has a very limited role to play in such cases, and it is, accordingly, extremely difficult successfully to appeal the exercise of a judicial discretion in children’s cases”

G v. G [1985] 1 WLR 647:

“An appellate court reviewing the decision of a judge in the exercise of his discretion relating to the custody and welfare of children, was bound by the principle applicable to any appeal from the exercise of a judicial discretion, namely, that before it could intervene, it had to be satisfied, not merely that the Judge had made a decision with which the court might reasonably disagree, but that his decision was so plainly wrong that the only legitimate conclusion was that he had erred in the exercise of his discretion”.

Re M and R [1996] 2 FLR 195:

“Once the Judge has made a decision in a child case, it is not for the Court of Appeal to second guess the judge, to trawl through the evidence on paper, to consider whether the judge has given sufficient weight to one matter or too great weight to another matter, nor to allow minor discrepancies to provide the opportunity for a rehearing of the facts and a fresh exercise of discretion. That is properly the function of the trial judge, who has been immersed in the case and has that unique opportunity, denied to the appellate court, of seeing and hearing the witnesses and gaining the feel of the case. It is the function of the appellate court to make sure that the Judge has correctly directed himself to and applied the relevant law, has properly approached his task in deciding disputed facts and has not erred in principle. The appellate court then has to stand back and consider whether his decision is plainly wrong. If he is not, it is not for the appellate court to intervene”.

See also Re N (Residence: Hopeless Appeals) [1995] 2 FLR 230.

Proposed Grounds of Appeal

8.In short, the Mother’s proposed grounds of appeal boil down to 9 possible grounds where she says that I erred when coming to my decision. Other points which are not specifically addressed in this judgment may be treated as dismissed for not satisfying the standard of leave to appeal to warrant appellate interference. I now turn to each of the proposed grounds of appeal.

Ground 1 – Disagree with the court’s observations

9.The Mother disagreed with what I have said about the 2017 incident in paragraph 38 of the Judgment where I said:

38. While I accept that the 2017 Incident may have caused J to have emotional and stress issues, but I tend to think that the Mother has over-magnified the 2017 Incident which affected the well-being of J, which I do not agree.

10.The Mother also disagreed with my observations about her proposal in paragraph 72 of the Judgment.

11.In my view, this ground is no more than bare disagreement and has no substance or particulars at all in showing why I have erred in reaching these views.

Ground 2 – Failure to fully consider the evidence, including the reports

12.It is not accepted that insufficient consideration was given to the reports. I had considered all the evidence and took a holistic approach to the issues. Further, the appropriate weight to be given to any item of evidence is a matter for the trial judge, not for the appeal court.

13.Suffice to say, none of the reports suggested that once J is under the Mother’s care for 6 days a week now, all the challenges faced by J would no longer exist.

14.As point out by the Mother, Dr C did say she had given careful thought before making her recommendations, and it is not Dr C’s recommendation that J should stay with the Mother for 6 days a week or J should spend most of his time with the Mother during school days.

Ground 3 - Failure to give adequate reasons

15.I have set out the views of the parents in respect of the challenges faced by J. I found that their different views are an example of different personality and parenting skills – see paragraphs 53 -57 of the Judgment. There is no merit in this ground of appeal.

16.In paragraph 63 of the Judgment, I found that the Father is capable to assist J to pass school’s test and exam. Further, in paragraphs 89 – 90 of the Judgment, I have taken into account Dr C’s view of the Father’s proposal which she said it’s an ideal and fair arrangement. It is obviously not Dr C’s proposal that J should spend 6 days with the Mother.

17.Further, the Mother has cherry picked a part of the sentence or a paragraph from the Judgment when indeed the whole judgment has to be read. It is clear on a reading of the Judgment in its entirety, I had considered all the issues before me in reaching my decision.

18.This ground of complaint fails to present a complete picture of the evidence and left out of the equation are the comments and findings I have made. I do not consider that there is any reasonable prospect of success on this ground.

Ground 4 – Cause of J’s academic underperformance and behavioural problems

19.The Mother, again only quotes certain comments from the reports to suit her application. The reports should be read in their entirety.

20.I stand by my findings made as set out in the Judgment. This ground is not reasonably arguable.

Ground 5 – Failure to give adequate consideration to SIR dated 15 October 2021

21.The Mother says that I have failed to take into account that at the time Ms T prepared her report dated 15 October 2021, she had not had the benefit of the SJE’s report. Further, Ms T recognized that the Mother is competent to J’s unique development needs. Ms T was provided with the SJE report before the trial and stood by her position and recommendation in her oral evidence. I am alert to all these evidence, including Ms T and Dr C’s oral evidence at trial.

22.In reaching my conclusion in paragraph 60 of the Judgment, I have taken into account of both Ms T and Dr C’s observations. In my view, there is no merit in this submission, which is bound to fail on appeal.

Ground 6 – Inconsistent findings

23.It is beyond dispute that parties need to improve their co-parenting relationship, therefore as suggested by Dr C, the parties would need appropriate family therapeutic support for themselves – see paragraph 99 of the Judgment. There is no merit in this submission, which is bound to fail.

Ground 7 – Failure to consider what J needs now and J’s view

24.The shared cared arrangement remains Dr C’s recommendation after taking into account of all the available information and test results. I considered that any significant change to J’s life after almost 3 years’ of existing shared care arrangement would not be in his best interest. J would spend more time with the Mother who will oversee his homework during the week.

25.It is unnecessary to repeat here the relevant paragraphs of the Judgment and unnecessary for me to copy each and every word from the reports referenced to the Judgment. I had considered all the evidence, reports and findings, and did a balancing exercise as I was required to do under the relevant governing legal principles, before reaching the conclusion.

Ground 8 – Failure to give adequate consideration to the SJE’s report or views

26.I repeat paragraph 16 of the above whereby Dr C said the Father’s proposal is an ideal and fair arrangement, while Dr C described the Mother’s proposal as “workable” only.

27.Further, in paragraph 63 of the Judgment, I accepted that the Father had assisted J to pass the mathematics re-sit exam and his Chinese test in December 2021. I also accepted that the Father has demonstrated that he is aware of the strengths and weakness of J’s cognitive skills.

28.It is a balancing exercise by the court after having duly considered the best interest of J and all the circumstances. I had done a balancing exercise in exercising my discretion.

Ground 9 – Posed a wrong question

29.Throughout the trial, the Mother referred Ms. T and Dr C time and again to the emails sent by J to teachers saying that he felt bored when he stayed with the Father – see paragraphs 79-86 of the Judgment.

30.I fail to see any force in this intended ground of appeal. The court is entitled to take into account of any matter which would be of assistance to ascertain the wishes and feelings of J and the assessment deemed appropriate.

Conclusion

31.By reason of the aforesaid, I do not find that there is any reasonable prospect of success in the intended appeal, nor is there any other reason, in the interests of justice why this appeal should be heard. Consequently, the Mother’s application for leave to appeal is dismissed.

Costs

32.Costs orders in children cases remain relatively rare, unless that parent has for example, been unreasonable in the conduct of the litigation. See NAV v JTMW [2017] HKFLR 114 at paragraph 131.

33.The Mother has had a weak case in relation to the application for leave to appeal. However, it does not appear to me that the Mother’s conduct in the application has come within the category of unreasonable litigation conduct such as to enable the Court to exercise its discretion as to costs against her.

Order

34.I shall make the following order: