Zfy v. Schc

FCMP 97/2020

[2022] HKFC 73

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 97 OF 2020

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Coram:  His Honour Judge G. Own in Chambers (By Paper Disposal)

Date of Decision : 6 April 2022

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D E C I S I O N

(Leave to Appeal)

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The Application

1.On 28/1/2022 this Court handed down it Decision on Applicant Mother’s (“M’s) relocation of the daughter “D” to Chengdu, Mainland China.  Leave was granted for M to remove D permanently upon fulfilment of various conditions (“Relocation Decision”).

2.On 7/2/2022 Respondent Father (“F”) issued a Summons seeking leave to appeal and also that there be a stay of execution of the Relocation Decision pending appeal. Upon directions from the Court, a separate Summons was issued by F and a short hearing was scheduled for 14/2/2022 solely on the stay of execution application.  After hearing parties’ submissions, an Order for interim stay pending determination of F’s leave to appeal was granted.  F’s leave to appeal was proceeded in the usual way as per the “New Arrangement for Application for Leave to Appeal in the Family Court” issued by Acting Principal Family Court Judge C.K. (as he then was).

3.M opposed F’s application for leave to appeal.

4.Both parties were represented by the same Counsel and law firms at the relocation trial and in this application.

F’s Draft Grounds of Appeal

5.There are altogether 9 grounds (with sub-grounds and sub-sub-grounds) in the draft Notice of Appeal annexed to F’s Summons.  Adopting the numbered paragraphs therein, they are as follows :-

1.  The Learned Judge erred in law and in principle in holding that “in relocation cases, it would be just and fair that the concept of day to day primary care and control of the child in question should take precedence over the concept of locality”, and that “[a]part from the concept of primary care and control and locality, there was no exhaustive list of other factors for consideration of ‘status quo’ in relocation cases” when the relevant authorities have made it clear that :-

(1)   There should be no presumption in favour of the primary carer;

and

(2)   The fact that the relocation application was made by the primary carer is ultimately, merely one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case.

2.  That the Learned Judge erred in law and in principle in departing from the recommendations of the Social Work Officer Ms Chan (“SWO”) in her Social Investigation Report dated 24 November 2020 (“SIR”) against relocation, when :

(1)   The Learned Judge erred in not affording the SWO an opportunity to respond to the misgivings that he had and/or the direction of his thoughts, which constitutes a material departure from the principles propounded by Thorpe LJ in Re A (Children: 1959 UN Declaration) [1998] 1 FLR 354 and Re W (Residence) [1999] 2 FLR 390, as well as in the majority decision of Re R (Residence Order) [2009] EWCA Civ 445, and applied in H v W [2021] HKCA 733 at §§40-42, in that :-

(a)   The Learned Judge did not raise with the SWO that it was “surprising” that she “was able to come up with her recommendation against relocation” “without the benefit of reading the [International Social Investigation Report (“ISIR”)], and that this had “made her investigation one sided and incomplete”;

(b)   The Learned Judge did not check with the SWO whether she “had personally read the comments or remarks [given by the class teacher in the Minor’s Term 1 school report] herself or that she was simply told by the class teacher and then she made a record of it in her SIR”, before finding that “the lack of transcription of the comments or remarks from the school report into the SIR might suggest that [the SWO] did not read the school report herself.  This is not satisfactory”.

(c)   The Learned Judge did not raise with the SWO that her view that the Mother might not be able to provide the Minor with the same level of care due to her work in Chengdu “was speculative rather than instructive”.

(d)   The Learned Judge did not raise with the SWO that “it is over-simplistic for [her] to pre-judge the degree of ‘parent-child’ intimacy, contact or relationship simply by looking at how far the parent and the child are living apart without considering in more detail the actual access arrangement or planning after relocation”.

(e)   The Learned Judge did not raise with the SWO that it was “speculative, unfair and unsatisfactory” that “there was no detail analysis in the SIR of the access arrangement or planning after relocation proposed by [the Mother] and the likelihood of implementation by the parties before forming the assertive views that the [Father] and [the Minor’s] relationship would no longer be direct and close.

(2)   The Learned Judge erred in finding that “[the SWO] … had not told us why [the Minor’s] best interests could not be served if [the Minor’s] care and control continue[d] to rest upon [the Mother] but only changing [the Minor’s] education from [Australian International School] in Hong Kong (“AIS”) to [Leman International School] in Chengdu (“LIS”), while in fact the SWO has fiben detailed explanation as to why the Minor’s best interests would not be served by relocating to Chengdu.

(3)   The Learned Judge erred in rejecting the SWO’s recommendation in the SIR in an unfair manner in that :-

(a)   The Learned Judge had refused the Mother’s application made at the call-over hearing on 21 September 2020 for an international social investigation report, noting in effect that such a report would not serve any useful purpose in the circumstances, thereby depriving the SWO of the opportunity of being assisted by the ISIR when she compiled her SIR; and

(b)   The Learned Judge then rejected the SIR on the basis that the recommendation therein “was arrived at without full and complete…… consideration of all material information including the ISIR”.

3.  The Learned Judge erred in misunderstanding the nature of the ISIR in that :-

(1)   The ISIR merely set out the relevant officer’s observations made during his/her visits paid to (a) the Minor’s maternal grandmother’s residence in Chengdu; and (b) the Mother’s self-owned property in Chengdu;

(2)   Further, in the “conclusion” section of the ISIR, the officer compiling the report rightly made no recommendations in favour of, or against, relocation, which is in line with the general practice and/or understanding that it is not the purpose of an international social investigation report/international welfare report to make a recommendation as to whether relocation is suitable or appropriate in the circumstances (which is the duty of the local social work officer); and

(3)   As such, the Learned Judge erred in finding that “the ISIR supports relocation”.

4.  The Learned Judge erred in failing to take into account material facts which plainly negated the Mother’s financial concerns which motivated her Application, in that :-

(1)   The Father had made it clear in his evidence that he would be willing to pay the Mother a reasonable monthly sum being her carer’s allowance to enable her to stay in Hong Kong to take care of the Minor;

(2)   The Mother had been able to conduct her Chengdu business remotely from Hong Kong since March 2020 due to Covid-19 and the travel restrictions, and there was no concrete evidence suggesting that she could not continue to conduct her business remotely in Hong Kong in the future; and

(3)   In light of the above evidence, any purported financial concerns on the Mother’s part were purely subjective and outweighed by the objective evidence that the Mother and the Minor would be well provided for even if they remained in Hong Kong, and the Learned Judge erred in proceeding on the basis that the Mother “would need to work for supporting herself no matter she stays in Hong Kong or lives in Mainland China”, thereby granting the Application which would allow her to work in Chengdu.

5.  The Learned Judge erred in treating the question of whether the Father had put in place “any solid and well-planned child care arrangement if [the Mother’s] relocation failed and that [the Mother] chooses to return to Chengdu by herself” as a relevant factor in the Application, when :-

(1)   The clear and undisputed evidence from the Mother that if her Application failed, she would remain in Hong Kong to continue to care for the Minor;

(2)   In fact, the Learned Judge himself acknowledged that “[the Mother] in her evidence in chief said if relocation was not granted, she would continue to take care of [the Minor] in Hong Kong”;

(3)   As such, the Learned Judge erred in criticising the Father for not providing “the Court with any solid and well-planned child care arrangement if [the Mother’s] relocation failed and that [the Mother] chooses to return to Chengdu by herself’;

(4)   In the premises, the Learned Judge erred in finding that “the only probable reason or reasonable inference that could be drawn” from the father’s desire to keep the “status quo” should the Mother’s Application fail, “was that [the Father]….. was not as mindful as [the Mother] over [the Minor’s] care arrangement’.

6.  Further or alternative to Ground 5 above, the Learned Judge erred in finding that “[the Father] could not take it for granted or just assumed that [the Mother] would indefinitely stay in Hong Kong to take care of [the Minor] although [the Mother] had so wished”, when there was no evidence available before the Court which showed or suggested that the Mother would not remain in Hong Kong or would return to Chengdu should her Application fail.

7.  The Learned Judge erred in failing to properly and sufficiently assess the evidence of the Minor’s paternal grandmother (“Paternal Grandmother”), and/or failing to accept that he evidence squarely supported the Father’s case, in that :-

(1)   Contrary to what the Learned Judge found at §102 of the Judgment, there was no evidence suggesting that the Learned Judge should be concerned “as to whether the Paternal Grandmother….. would be willing to provide the same degree of care and affection over [the Minor] if [the Mother’s] relocation application fails’ just because the Father had previously hidden from the Paternal Grandmother his separation and divorce with the Mother;

(2)   Further, the Learned Judge erred in finding that the allegedly “not harmonious” relationship between the Mother and the Paternal Grandmother should also lead to the Learned Judge’s concern as to the Paternal Grandmother’s willingness to care for the Minor;

(3)   The above concern was plainly contradicted by the Paternal Grandmother’s evidence that she remained willing and able to care for the Minor in the future; and

(4)   In any event, the above concern was not raised with the Paternal Grandmother by the Court or any part at trial to enable her to properly address or respond to it.

8.  The Learned Judge erred in finding or implying that the Father was less willing than the Mother in shouldering responsibilities of parenthood in that :-

(1)   The Learned Judge erred in finding or inferring that the Father’s response to the Mother’s WeChat messages as referred to in §118 of the Judgment meant the Father was less willing than the Mother in shouldering responsibilities of parenthood, especially when the Father had given a thorough explanation as to why such responses were given, namely, because he was at a business event and only wanted to respond to the Mother after giving the matter full consideration, instead of giving a rushed reply there and then; and

(2)   As such, the Learned Judge erred in arriving at the said finding or inference, or drawing adverse inferences against the Father as a result of his said responses.

9.  The Learned Judge further erred in failing to take into account, or properly and/or sufficiently take into account the following facts :-

(1)   The Mother had admitted that it did not really matter to her whether Hong Kong or Chengdu was better for the Minor, as the Mother’s only concern at the time of the Application was to alter the previous situation where the Mother had to shuttle between Hong Kong and Chengdu and had to be away from the Minor from time to time, while in fact, the said situation could be prevented altogether if the Mother were to remain in Hong Kong and be provided for by the Father;

(2)   Even if the Learned Judge was correct in finding that “[i]t is in [the Minor’s] best interests to receive guidance arising from puberty from the feminine sex and that [the Mother] would be best fitted with such task”, the Minor could still benefit from the Mother’s guidance as such even if the Mother’s Application was refused, as the Mother had given evidence that she would remain in Hong Kong in such a case;

(3)   Even if the Learned Judge was correct in finding that “it appeared more probable than not that [the Minor] wished to stay with [the Mother] rather than [the Father]”, the Minor could indeed stay with the Mother even if the Mother’s Application was refused, as the Mother had given evidence that she would remain in Hong Kong in such a case; and

(4)   The Mother’s low English proficiency and the resultant inability to provide the Minor with homework assistance or to effectively participate in parent-school communication would pose problems to the Minor post-relocation, especially when the Minor is studying in an international school (namely, LIS).

The statutory provisions on granting leave to appeal

6.The jurisdiction on granting leave to appeal was under section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

7.The relevant test for determining whether the appeal has a reasonable prospect of success 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 means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Fok JA (as he then was) at paragraphs 8 and 9 of the Judgment).

Discussion

8.For Ground 1, F submitted that this Court erred in law and in principle by placing a presumption in favour of M as the primary carer taking out the relocation application.  F referred to paragraph 51 of the Relocation Decision.

9.Such submission was made out of context and in abstract.  At paragraph 49, this Court started with commenting on F’s case who alleged that the “status quo” would be uprooted if relocation was granted.  This Court saw F’s contention of “status quo” was restrictively confined with the concept of “locality”.  At paragraph 51, this Court then provided its views on the concept of “day to day primary care and control” which should take precedence over the concept of “locality” and no more than that.  Thus the word “concept” was repeatedly used throughout those paragraphs.  It was always open to the Court to express its own views on parties’ stance and positions over issues before the Court making its own findings or decisions.  It is utterly wrong, with respect, for F’s Counsel to twist around by asserting that a presumption was given by the Court.  It is with dismay to note that the simple word “concept” (“概念”) was distorted, if not being confused, and taken to mean “presumption” (“推定”).

10.As M’s Counsel rightly submitted, had the Court given the presumption so alleged by F’s Counsel, those views and analysis of the factors under the “welfare checklist”[1] would have been superfluously made or are just redundant.  

11.Ground 1 has no reasonable prospect of success.

12.For Ground 2, there are 3 sub-grounds of (1), (2) and (3).  Each of the sub-grounds contains further sub-sub-grounds.  I will deal with each of them in their order of sequence.

13.Ground 2, as a whole, referred to this Court erred in law and in principle in departing from the recommendation made by the social welfare officer Miss Chan (“SWO”) in her report dated 24/11/2020 (“SIR”).

14.Amongst the 5 sub-sub-grounds under Ground 2(1), that is, from (a) to (e), 4 of them referred to this Court not having “raised”[2] and the remaining 1 of them referred to this Court not having “checked”[3] with the SWO on those matters or areas which this Court eventually found to be wanting or unsatisfactory in the SIR so stated in the Relocation Decision.

15.In all cases where social welfare officers are directed to attend Court to testify on their investigation report(s), by the time the report(s) would have already been prepared and submitted to the Court, parties would be given sufficient time and chance to raise proper questions to the social welfare officer with the aim to try to uphold or to challenge the recommendations he/she made in the report(s).  There is no exception in the present case.

16.Grounds 2(1) (a) to (e) seem to suggest that the Court should, during the testimonies of the SWO, step into the arena and to seize upon itself the role of the advocates by questioning the SWO, either to raise or to check with the SWO over matters which, unless supplemented or clarified, would render the SIR not being accepted.  Such submission is, in my decision, inherently wrong for the following reasons. 

17.First and foremost, it is the duty of the advocates and not the Court to “remedy” any shortcomings found in the SIR through questioning the SWO.  Given the need for independence and impartiality of the Court, any remedial steps on shortcomings found in the SIR must be handled by the parties or their lawyers themselves and not by the Court.  This well founded rule of practice explained why the SWO was only subject to “examination/questioning” by the parties and also question(s) from the Court (but only if it sees fit). 

18.The social welfare officer is a witness arranged by the Court and not by the parties.  Thus, there was no “examination in chief” or “cross examination” of the SWO by either party.  The way in which F’s Counsel so submitted in this ground of appeal is to say the Court should “put the Court’s views” to the SWO for him/her to explain or comment and; failing which, it was an error or law.  With respect, such submission was never heard of.    

19.The role of the Court, insofar as the evidence of the SWO is concerned, is only to adjudicate upon them and not to assist in them.  This is especially the case when the parties are legally represented by experienced Counsel and advocates.  For otherwise, apart from the risk of lack of impartiality, there is also the potential danger of the Court being criticized for taking side with the party whose case was later found to be supported by the SWO evidence (but only after the Court’s “putting the Court’s views” to the SWO, so to speak).    

20.M’s Counsel Miss Yu referred me to the judgment of Kwan JA in the case of王訴韋 (unreported, CACV No./153/2012)[4].  Actually, this was a case on appeal from this Court’s decision many years ago, to be still the correct law and approach in handling SWO’s evidence.  I agree.

21.Secondly, F’s Counsel was unable to identify with any precision any errors of law or errors in principle within those paragraphs[5] in the Relocation Decision.  They are only bare assertion of errors of law or errors in principle without any substance.

22.Ground 2(2) referred to paragraph 139 of the Relocation Decision and cross referenced to paragraphs 57 to 59 of Miss Chan’s SIR.  Same and again, such ground was made out of context. 

23.First, Miss Chan’s own admission during examination by M’s Counsel that she had not investigated into M’s proposal of LIS could not be challenged[6].

24.Secondly, at paragraphs 58 to 64 and 66 of the Relocation Decision, this Court had already considered the reasons put forward by Miss Chan in paragraph 57 of her SIR.

25.Having said, as rightly submitted by M’s Counsel’s Statement of Opposition[7], F’s Counsel only referred to the Court’s conclusion of the SIR without regard to any of the analysis for arriving at the conclusion.

26.For Ground 2(3)(a), submission was made to the Court’s refusal of M’s application for ISIR at the first call-over hearing on 21/9/2020; and at Ground 2(3)(b), F submitted that this Court then rejected the SIR’s recommendation for failing to consider the material information in the ISIR.

27.The first call-over hearing on 21/9/2020 was scheduled for M’s Originating Summons for relocation dated 30/7/2020.  On 10/9/2020 (that is around 11 days before the first call-over hearing), F issued an Inter Partes Summons seeking custody, care and control, and also interim access of the child D.  With the leave of the Court, F’s Summons was then fixed for the same first call-over hearing on 21/9/2020 together with M’s Originating Summons.

28.Clearly, the parties’ cross applications by their nature are mutually exclusive and that they need to be dealt with in sequence and not simultaneous.  Apart from general directions on exchange of affirmations and arranging separate social investigation report(s) on M’s relocation application and F’s interim access application, the ISIR was not arranged at the first call-over hearing for obvious reasons.

29.First and foremost, parties had yet to agree on which one of the cross applications should take precedence.  If M’s Originating Summons was to be dealt with first, both the ISIR and updated SIR would be needed.  If F’s Inter Partes Summons was to be dealt with first, the ISIR would only be needed if F failed in his application.  In any event, neither party had applied by way of separate Summons seeking directions on ISIR to be granted at the first call-over hearing on 21/9/2020.

30.F’s Counsel now referred to the views expressed by M’s lawyers at the first call-over hearing on 21/9/2020 about the need of an ISIR (at 12:32:44 hours) not being accepted by the Court on that day as one of F’s grounds of appeal.  This must be wrong.  Reason being that actually on that day F’s Counsel (from 12:33:57 to 12:34:02 hours) also shared the same view of the Court that an ISIR was not needed.  Having said, F’s Counsel would now be “barred/estopped” from relying upon the rejection of the idea of an ISIR by the Court on 21/9/2020 to support F’s grounds of appeal.  

31.Further, apart from the absence of any Summons by either party for the ISIR, in the absence of parties’ consensus or court’s directions on case management, as hardly there would there be any at the very first call-over hearing, ISIR was not arranged on 21/9/2020 for obvious reasons, namely, (i) to avoid unnecessary costs being incurred; and (ii) any undue conjecture over M’s relocation application would take precedence over F’s application.

32.It was only until the Pre-Trial Review hearing (PTR) on 5/1/2021 that F’s application was adjourned to the last day of trial of M’s relocation application.  Such case management arrangement was not opposed by F.  ISIR was then called for by the Court.

33.Given the above chronology and events happened, there had never been any question of the Court refusing M’s application for ISIR on 21/9/2020 so asserted by F’s Counsel under Ground 2(3)(a).  As F was represented by the same law firm and engaged the same Counsel throughout all hearings since commencement of these proceedings, it was noted with dismay for F’s Counsel to now raise such ground of appeal which was clearly unsustainable.

34.Ground 2(3)(b) was also devoid of merits. The rejection of the SIR was upon the SWO Miss Chan being able to confirm her recommendation made on 24/11/2020 at the trial in June 2021 (emphasis added), that is, over 6 months after the ISIR dated 6/5/2021 was obtained notwithstanding her own admission that she had not investigated into the contents of the ISIR, which had therefore made her recommendation “one-sided and incomplete”[8].

35.Ground 2, as a whole, has no reasonable prospect of success.

36.For Ground 3, F’s Counsel had not referred to any cases or authorities setting out the importance and weight to be attached to an ISIR when the “local” SIR was found to be unsatisfactory and the recommendation therein not accepted by the Court.  From reading the contents of the ISIR, which was neither discredited by F’s Counsel at trial by calling the ISIR officer Miss Chung for examination nor “disapproved” by the SWO Miss Chan in any updated SIR, this Court was entitled to treat the ISIR as the “eyes and ears of the Court”[9] to determine whether the contents of it would serve the best interests of the child D[10].  The option of relocation was manifest and clearly spelt out in the ISIR.

37.Ground 3 has no reasonable prospect of success.

38.For Ground 4, F referred to M’s financial concerns, which motivated her relocation application, had been negated by :

(a)  F would be willing to pay M reasonable sum as her carer’s allowance in his evidence at trial;

(b)As M had been able to conduct her Chengdu business remotely in Hong Kong since March 2020, there was no concrete evidence that she could not do so in future;

(c)  M and the child D would be well provided for even if they remained in Hong Kong and this Court erred in its finding that “M would need to work for supporting herself no matter she stays in Hong Kong or lives in Mainland China”.

39.F’s “willingness” to pay M carer’s allowance in future was only spelt out “ad-hoc” during re-examination at trial by his Counsel but not at any time earlier or had he ever said so in any of his Affirmations.  Apart from being unable to answer this Court’s enquiry as to what level of reasonable sum he had in mind, F had never offered to do so or indicated any intention to do so whilst opposing the other summons filed by M for interim maintenance for the child D. 

40.M’s evidence that she had been conducting her Chengdu business remotely in Hong Kong since March 2020 was solely due to travel restrictions caused by the Covid-19 pandemic.  M frankly admitted that this could not be a long term arrangement and that she has to travel for her work as and when situation improved.  Such uncontroverted evidence clearly and sufficiently negated F’s submission of the need of concrete evidence.  As a matter of basic rule of evidence, it is for F to rebut M’s uncontroverted evidence and not for M to further substantiate it by what F described as “concrete evidence”.

41.M and the child D would be well provided for was not supported by any evidence except F’s “ad-hoc” oral evidence which only came out at re-examination; but even that is the case, how could F’s case of “well provided for” be substantiated without any amount before the Court even after he had been given a chance to tell the Court ?

42.Ground 4 has no reasonable prospect of success.

43.Ground 5 contains 4 sub-grounds.

44.Grounds 5(1) and (2) referred to M’s evidence that if her relocation fails, she would remain in Hong Kong and would continue to take care of the child D in Hong Kong.  Apparently, F’s Counsel was again referring in abstract only to the first two lines (emphasis added) in paragraph 83 of the Relocation Decision without being able to identify what errors of law in the rest of that paragraph and in paragraph 84 that follows.  F’ Counsel also failed to identify any errors of law for the Court’s views over F’s wishful thinking or assumption that M would indefinitely stay in Hong Kong should her relocation fails[11], given the fact that M has no “resident status” in Hong Kong, her age of 28 and the child’s age of only 7 are all important undisputed facts.  

45.Grounds 5(3) and (4) referred to this Court having criticized F for (i) lack of well-planned child care arrangement[12]; and, erred in finding against F for (ii) not being mindful as M on child care arrangement by drawing such inference from F’s case and his desire to keep the “status quo”[13].

46.On all the F’s evidence and his case in opposition to M’s relocation application, it could hardly be disputed that F had not had any child care arrangement save and except his idea of keeping the kind of “status quo” in his mind which had taken place since 2017 to continue.

47.At the expense of repeating this Court’s findings in the Relocation Decision,  F had not even been able to, or did he ever, tell the Court anywhere in his evidence, orally or in his affirmations, as to whether he would be moving himself back to stay with the child D at the Wellington Street property; or whether the Paternal Grandmother would be moving there to stay with the child D; or whether the child D would be moving out of the Wellington Street property to stay with the Paternal Grandmother at her residence in Caine Road. 

48.The criticism, a term used by F’s Counsel, or findings against F are all well founded and justified.

49.Ground 5, as a whole, has no reasonable prospect of success.

50.Ground 6 was a further ground or an alternative to ground 5.

51.F’s submission under this ground is misconceived.  At the time of trial in June 2021, F’s application for custody, care and control of the child had yet to be tried.  It could hardly be disputed that M’s continual stay in Hong Kong as a “non-resident” was premised upon her role as the primary carer for the child D who was born in Hong Kong.  With all options open to M and F’s litigation down the road being undecided, the Court’s views under paragraph 97 of the Relocation Decision does not constitute any errors of law or unjustifiably made.

52.Ground 6 has no reasonable prospect of success.

53.I will deal with each of the sub-grounds under Ground 7 as follows.

54.Ground 7(1) is, with respect, devoid of merits.  Given that best interest of the child is the sole and paramount consideration of the Court, and that each case is fact-sensitive, I failed to accept F’s submission that there was no evidence to suggest to the Court that it should be concerned about the degree of care and affection to be provided by the Paternal Grandmother to the child D.  Quite to the contrary, there hardly need any evidence on the table before the Court could take such important factor on board into consideration to find where the best interests of the child D lies.

55.It was precisely the Court’s concern when it came to know that F had hidden from the Paternal Grandmother his separation and divorce with M until lately in September 2020, when he needed the Paternal Grandmother to be his witness in these proceedings, that is over 2 years after the PRC divorce, notwithstanding that he had all along been expecting the Paternal Grandmother to assist him in the child caring as part and parcel of his idea in mind of keeping the “status quo”.  Putting the need to hide away from the Paternal Grandmother and her character as a traditional Chinese woman, so described by F himself upon the Paternal Grandmother, well supported the Court’s concern over the degree of care and affection that would be given to the child D if M’s relocation failed.    

56.Ground 7(2) referred to this Court’s finding of the “non harmonious” relationship between M and the Paternal Grandmother led to the Court’s concern over the willingness of the Paternal Grandmother to take care of the child D.  Such finding of fact was reached upon close scrutiny of the Paternal Grandmother’s affirmation evidence and her oral evidence at trial.  F’s Counsel failed to identify any errors of law.

57.Ground 7(3) is only about F’s discontent with this Court not accepting Paternal Grandmother’s evidence with no errors of law involved.  This is purely a question of fact finding and credibility.

58.For Ground 7(4), it was the same as in the evidence of the SWO, as it appeared that F’s Counsel was suggesting a somewhat “positive duty” on the Court to raise with the Paternal Grandmother witness whatever concern the Court had in mind and for her to respond or address.  Failing to do so would be a ground for seeking leave to appeal. 

59.With respect, this must be wrong.  It has never been the Court’s duty to reveal its concern over any weaknesses in the evidence of a party’s witness notwithstanding that the Court has an inquisitorial role and function.  To do so would be descending into the arena to assist the parties’ case rather than adjudicating on the evidence to resolve their disputes.  The Court would only raise questions so far as they are proper and necessary for determination of the issues involved.  Supplement to or clarification of a witness’s evidence has never been the task of the Court.

60.Ground 7, as a whole, has no reasonable prospect of success.

61.Ground 8 referred to the Court’s finding of facts over some WeChat messages produced by M.  The submission made was that F had given a thorough explanation for those responses under cross examination.

62.The WeChat messages were produced by M before the trial commenced.  F with the benefit of legal advice chose not to respond before trial by affirmation and, same as with the topic of carer’s allowance, only chose to provide an “ad-hoc” explanation by oral evidence when he was being cross examined at trial.  This was unsatisfactory and unaccepted by the Court.  There was no errors of law involved as this was purely the Court’s finding of facts and credibility.  The Court is always entitled to reject or disbelieve a witness’s evidence on facts.    

63.Ground 8 has no reasonable prospect of success.

64.Grounds 9(1), (2) and (3) referred to M’s evidence that she would remain in Hong Kong if her relocation application failed and that the child could still benefit from M’s guidance and care. These are all factual evidence fully considered by the Court in its analysis of M’s case of the need for relocation[14]. Hence, there was issue of the Court failing to take those factual matters in account nor was there any errors of law to mount as a ground of appeal.

65.Ground 9(4) referred to M’s English proficiency.  This has been canvassed and considered under the “welfare checklist”.  F’s Counsel failed to identify any errors of law involved.

Any other grounds in the interests of justice ?

66.Apart from the 9 grounds of appeal listed, there was no submissions by F that leave to appeal should be granted on such “otherwise ground”, that is, it is in the interests of justice to grant him leave to appeal.  Nonetheless, consideration had also been given to this limb.

67.After giving full and careful consideration, this Court found that no such ground exists in the circumstances of this case.

Decision

68.For all the reasons above, I decided that F’s application for leave to appeal fails.

Costs

69.Given the fact this is a child related matter, I decided that there be no Order as to costs, including all costs reserved, to be a fair and reasonable costs order.

Stay of Proceedings

70.Following this decision on F’s leave to appeal application, I decided that the order granted on 14/2/2022 for stay of the Relocation Decision be set aside.

71.The Relocation Decision dated 28/1/2022 stands.

Orders

72.I now grant the following Orders :-

(a)  F’s Summons dated 7/2/2022 for leave to appeal be dismissed; and

(b)There be no Order as to costs of F’s Summons, including all costs reserved (if any).

73.This is a costs order nisi which would become absolute if no application to vary the same was made within 14 days from the date of this Decision.

Miss Lily Yu instructed by Messrs. Nixon Peabody CWL, Solicitors for the Applicant

Miss Alison YY Choy instructed by Messrs. Pansy Leung, Tang & Chua, Solicitors for the Respondent