Wssa v. Syh
Read the full judgment text of FCMC 4633/2020 on BabelCite. This Family Court judgment was delivered on 19 August 2022 before His Honour Judge G. Own.
Matrimonial Causes – Leave to appeal – Case management decision – Adjournment Order – Recusal Summons – District Court – Welfare of children – Natural justice – Appeal standard – F sought leave to appeal Adjournment Order – Appeal has no reasonable prospect of success – F cherry-picked applications – Grounds 1 and 2 dismissed – Ground 3 dismissed – Costs order against F
Legal issues: Leave to appeal standard/prospect of success · Irrationality and natural justice
Outcome: Leave to appeal dismissed
Cites 3 cases
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FCMC 4633 / 2020 [2022] HKFC 174 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 4633 OF 2020 -------------------------
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________________ D E C I S I O N ________________ Background 1.By way of general background, the Petitioner was the Wife and the Respondent was the Husband. Parties married in 2007. There are 2 children of the family whose custody so far had not been any serious issue. Interim care and control was granted to the Petitioner but access had all along been a contested issue, in particular over the elder child, between these highly conflict parents. The 2 children whom I will refer to them as “G” a boy, aged 12 and “S” a girl, aged 9. I will refer to the Petitioner mother as “M” and the Respondent father as “F” in this Decision. 2.On 6/9/2021, F filed a Summons seeking variation of access in respect of the 2 children. This application was named as “Access Summons” by F. 3.On 3/1/2022, F filed another Summons seeking an order that the elder child “G” be placed with a boarding school in Hong Kong for the academic school year in 2022/23 to start in September 2022. This application was named as “Schooling Summons” by F. 4.Yet there was another Summons filed by F on the same day of 3/1/2022 for this Court to recuse himself from participating in these proceedings any further and that all hearings be vacated, adjourned and re-fixed until determination of the recusal application. This application was named as “Recusal Summons” by F. 5.At the hearing on 11/1/2022, this Court granted a composite Order which undisputedly was a case management decision over all application(s) pending before the Court on that day. This composite Order was named as “Adjournment Order” by F in respect of which, or more precisely part of which, he is now seeking leave to appeal. 6.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). 7.F was represented by Miss Anita Yip S.C. leading Mr Ken S.H. Chan. M was represented by Miss Audrey Eu S.C. leading Miss Theresa Chow. The Adjournment Order dated 11/1/2022 8.Apart from the Access Summons and the Schooling Summons, there are the following Summonses which are pending further disposal by this Court as at the hearing on 11/1/2022 :-
9.The terms of the Adjournment Order are, inter alia, that the Recusal Summons be fixed for substantive hearing in consultation with Counsel’s diaries with 1 day reserved. The Access Summons, Schooling Summons, and all the other pending Summonses aforesaid[1] be adjourned for disposal after determination of the Recusal Summons. F’s Recusal Summons 10.F’s Recusal Summons reads as follows :-
F’s Leave to Appeal 11.F’s Summons seeking leave to appeal the Adjournment Order actually referred to only 2 orders, namely, the order on adjourning the Access Summons (paragraph 1 (a) of the leave to appeal Summons); the order on adjourning the Schooling Summons (paragraph 1 (b) of the leave to appeal Summons). The remaining application was that this Court made no directions on all interim matters concerning children and finances (paragraph 1 (c) of the leave to appeal Summons). F’s Draft Grounds of Appeal 12.There are 3 grounds as follows :- Ground 1 : The exercise of case management power by the Learned Judge is plainly wrong in that it blatantly disregards the welfare of the Children; Ground 2 : The Learned Judge was plainly wrong in not directing another family judge to handle and hear the Schooling Summons, the Access Summons and all interim matters; Ground 3 : The Adjournment Order was irrational, prevented the Court from carrying out its task and in breach of natural justice. The statutory provisions on granting leave to appeal 13.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. 14.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). Chronology of Events that had happened 15.Given that F is now seeking leave to appeal a case management decision of this Court, where only Ex Tempore reasons were delivered for the decision, it is important and necessary to refer to matters or events that had arisen prior to the granting of the case management decision on 11/1/2022 in respect of which F is now seeking leave to appeal. 16.To start with, at the hearing on 26/1/2021 before Deputy Judge Thelma Kwan (as she then was), which was the hearing for the 1st Appointment, Children’s Appointment, Interim care, control and access of the children and also the call-over hearing of M’s Summons for ouster order against F, the learned deputy judge after hearing parties’ submissions adjourned most of the outstanding matters and directed, inter alia, that Miss Lora Lee to be appointed as the parties’ single joint expert whose scope of appointment, accepting those proposed by F’s Senior Counsel, was as follows :-
17.Miss Lora Lee produced her 66-page (270 paragraphs) Report dated 25/6/2021. In a gist, Miss Lee recommended that the child G to be removed from his home and separated from his parents to protect himself and the safety of those around him. G would only have overnight stay access with his parents over the weekend when[2] :
18.Miss Lee further recommended :-
19.At the next hearing on 30/6/2021, both parties indicated that they did not agree (emphasis added) to G to be “left-alone” and separated from his parents. This Court then directed the Social Welfare Officer in charge of this case to be provided with a copy of Miss Lora Lee’s Report for him to review and then to provide a short memo to this Court, on an expedited basis (emphasis added), as to :-
20.On 26/7/2021, the Social Welfare Officer sent in an “Update Memo” reporting, inter alia, that appointment of the Official Solicitor (“OS”) to represent the 2 children would protect their interests and having their voice heard. Both F and M expressed no objection to the appointment of the OS so recommended by the Social Welfare Officer. 21.Given the acrimonious relation between the parents which had persisted if not escalated throughout these proceedings, and the need to ensure that the children’s interests are best secured, and also taking into account the Updated Memo from the Social Welfare Officer, this Court at the hearing on 29/7/2021 (which lasted from 2:33 p.m. to 8:31 p.m. intermittently for 6 hours) directed the Official Solicitor to represent the 2 children in these proceedings. At this hearing, the Court also granted interim defined supervised access to F on every Tuesdays and Thursdays from 7 p.m. to 9 p.m. and on every Saturdays from 4 p.m. to 9 p.m. 22.At the same hearing on 29/7/2021, the Court granted further specific and detailed directions as follows :-
23.On 25/8/2021, the OS sent in a letter on an urgent basis (emphasis added) reporting that there are several outstanding matters which need to be addressed. For the sake of completeness, the relevant parts of the OS’s letter are reproduced hereunder :-
24.On 27/8/2021, this Court replied to the OS as follows :-
25.On 30/8/2021, the OS produced their Report. In their letter of the same date, the OS requested the following directions :-
26.The OS’s requests for directions were all responded to by the Court with an affirmative answer – “Yes” to each of the 3 requests for directions. 27.On 2/9/2021, F’s lawyers wrote in to seek leave to issue a Summons on an urgent basis (emphasis added) for variation of the interim care and control of either or both children; and also on the then existing interim defined supervised access arrangement (the “Intended Summons”), asking it to be listed for hearing together with the upcoming directions hearing for M’s Summons for an ouster order against F which had been listed for 7/9/2021 (that is, 5 days later). 28.On 3/9/2021, leave was granted to F’s urgent request on short notice for the Intended Summons. 29.On 6/9/2021, F issued his 3-page Intended Summons supported by his 26-page 11th Affidavit with 11 exhibits adding up to around 200 pages. As said, with leave of the Court, F’s Intended Summons was listed for hearing on 7/9/2021, which was just the next day. 30.On 7/9/2021, the hearing started at 10:55 a.m. and ended at 5:46 p.m. intermittently lasted for about 7 hours. Insofar as F’s Summons for variation of the interim care and control and supervised defined access application was concerned, apart from granting general directions on the filing of affirmation evidence, the Court granted detailed and comprehensive orders as follows :-
31.In addition, the following detailed and comprehensive case management directions were granted at the same hearing :-
32.On 9/11/2021, F issued an Ex Parte Summons on Notice on an urgent basis (emphasis added) returnable the next day on 10/11/2021 seeking various interlocutory reliefs. In a gist, F had arranged an interview and assessment for the child G at xx School at 11:45 a.m. on the following day, that is, 11/11/2021. He wanted to have access to the child G and bring him for the interview and assessment. The short noticeurgent application was listed for hearing on 10/11/2021 which started from 9:46 a.m. until 1:44 p.m. intermittently for 4 hours. OS representing the children also attended this hearing. 33.At the end, F’s application as per his Ex Parte Summons onNoticewas dismissed with costs to M and with Certificate for Counsel. 34.On 22/11/2021, F issued a Summons seeking variation of the costs order nisi in respect of his Ex Parte Summons on Notice which was dismissed. 35.On 3/1/2022, F issued the Schooling Summons and the Recusal Summons. Discussion 36.First and foremost, it is common ground that case management decisions, which are the exercise of discretion, are pre-eminently within the province of the trial judge. The appellate court would only interfere in very exceptional circumstances. The appellant faces a high hurdle in showing that the first instance judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that the order was irrational[4]. 37.Secondly, F with the benefit of full legal advice from reputable firm of matrimonial practice and Senior Counsel, decided to seek “All further hearings in FCMC No.4633/2020 be vacated, adjourned and re-fixed until after the determination of the Recusal Summons[5]” in his Recusal Summons is clear and unambiguous. The Adjournment Order was precisely what F had prayed for and had achieved by the filing of his Recusal Summons. 38.It is blatantly wrong, with respect, for F to be able to renege from what he had been seeking for or hoping to achieve by his Recusal Summons and, once achieved (emphasis added), be able to pick and choose those applications which he hoped to proceed under the disguise that the “welfare of the Children” was disregarded by the Court when granting the adjournment. As M’s Senior Counsel fairly and rightly submitted, which I fully agree and accept, that F actually is now appealing an adjournment caused by his own Summons[6]. In so doing, F was cherry picking for the result that whilst there should be an adjournment for some other applications, those applications that he wished to proceed should be excluded from the Adjournment Order and, since the recusal application had yet to be heard, those applications he wished to proceed would then need to be disposed of by another Judge of the Family Court. 39.Complaint was also laid upon the trial of F’s Summons filed earlier on 17/9/2020 seeking interim shared care and control of the children was vacated by this Court without hearing the parties and against protests by F. It was said by F that access was extremely limited and with the trial being vacated with no foreseeable re-fixed dates, F had no choice but to take out the Access Summons on 2/9/2021 seeking increase access. 40.As outlined above, F’s access was initially scheduled on 29/7/2021 for Tuesdays, Thursdays and Saturdays which was 3 days within a week[7]. Starting from 7/9/2021, it was increased to 4 days within a week on Tuesdays, Wednesdays, Fridays and Saturdays. In addition, there are telephone access on non-access days (that is, Mondays, Thursdays and Sundays)[8]. On any objective view, the access arrangement could hardly be said to be “extremely limited” so alleged by F. 41.Given that OS was directed by this Court on 29/7/2021 to start representing the children[9], they must take part in all hearings affecting the children with no exception to the trial of F’s Summons even though it was taken out back on 17/9/2020 for interim shared care and control of the children. Given the many outstanding issues that need to be addressed[10] before the OS was in a position to take part constructively and meaningfully in the trial of F’s said Summons, this was an exceptional circumstances that had arisen within the ambit of the Civil Justice Reform which warranted vacating the trial of F’s said Summons. That said, it served no legitimate purpose for hearing the parties and to do so would only increase parties’ costs and to waste Court’s limited resources, leaving aside elevating acrimony between the parties. 42.Complaint was also made to this Court’s refusal to accommodate F’s request to hear the Recusal Summons substantively on 8/3/2022, which date was originally listed for trial of F’s Access Summons but was vacated by the Recusal Summons. It was also said by F that the time frame proposed for the filing of affirmations/submissions, namely 3 weeks for M followed by 2 weeks by F, would bring up to 1/3/2022 with 7 more days to follow before 8/3/2022. 43.F’s Recusal Summons was served on M’s lawyers and correctly so, also served on the OS representing the children. Although it was likely or probable that the OS might take a neutral stance on F’s recusal application, it could happen that M’s affirmation/submissions in opposition and/or F’s affirmation/submissions in reply (both of which had yet to be filed and seen) contain information over the children which called for OS’s assistance by way of affirmation/submissions. The time frame on exchange of affirmation/submissions proposed by Senior Counsel Miss Yip, namely, that 3 weeks for M followed by 2 weeks thereafter by F, with respect, had not taken into account such scenario. It is procedurally wrong for F to take it for granted as to OS’s stance without the parties’ affirmations/submissions “on the table” but to plainly ignore or exclude the OS’s right to file affirmation/submissions as they may see fit and necessary to do so. It is clear from Miss Yip, S,C.’s time frame aforesaid that no heed was taken of the OS. 44.Given the vulnerable characteristic of the children in this case for whom the OS was required to represent them, this case is not one of those “run-of-the-mill” recusal application in a “childless” marriage or, with children who does not require separate legal representation. 45.Further, leaving aside the OS’s right to file affirmation/submissions as they may see fit and necessary, and given the parties’ affirmations and exhibits filed so far are voluminous in terms of number of pages, it is fair and reasonable for both parties to have the same time span of 3 weeks each for filing of affirmation/submissions notwithstanding that F was happy with having only 2 weeks to file his affirmation in reply, apparently hoping to catch up with the date of 8/3/2022 which Senior Counsel Miss Yip had so submitted at the hearing. M’s side in opposition had asked for 3 weeks. As M’s Senior Counsel rightly submitted[11], it is fair for both parties to be given sufficient time to prepare their respective affirmation/submissions. The Court should be able to resist being steamrollered in its case management decision. More importantly, I am minded to say that court’s resources must be fairly and evenly distributed amongst all other court users and not be manipulated or monopolized by parties in any particular case. 46.The Covid-19 pandemic had caused a further session of General Adjournment Period (“GAP”) starting from 7/3/2022 to 11/4/2022 (both days inclusive). With the benefit of hindsight, had the date of 8/3/2022 been utilised for replacing the trial of F’s Summons for interim shared care and control with the trial of F’s Recusal Summons, it would still have been vacated and re-fixed in any event as it falls within the GAP. 47.I accept that the Court does not have any crystal ball for knowing in advance at the hearing on 11/1/2022 that a further session of GAP was forthcoming in March 2022. Had the Recusal Summons been fixed for 8/3/2022, F might possibly argue that it still could be heard as it falls within the “exceptional and urgent” category of cases which, according to the guidelines for GAP, could still be heard. In my view, given the increased access arrangement from 3 days a week to 4 days a week plus non-access days telephone access, which essentially gave F daily access to the children but in different form, F could hardly say that the Recusal Summons was one of those “exceptional and urgent” cases within GAP that this Court should hear and to consider recusing himself. Further increasing interim access and the uplift of supervised access vis-à-vis asking the Court to recuse himself fall under different context from any perspective. In my view, F was cherry picking not only on applications that he wished to proceed, he was also judge shopping around to his favour. 48.Although F conceded that this case is at the highest end of high conflict cases requiring speedy resolution[12], as a matter of fact, he was “the frolic of his own”. With the benefit of full legal advice, F ought to know or to have been advised on the practical meaning and effect of the terms of his Recusal Summons; in particular, paragraph 2 therein which would inevitably delay rather than advance speedy resolution of the children matter. It is fundamentally and conceptually wrong for F to be able to :- (a) on the one hand specifically ask for adjournment of all hearings (emphasis added) and; (b) on the other hand to “complain” that all interim matters are in the void[13] without saying a single word as to any interim arrangement in his Recusal Summons. F could not complain that the Court did not descend into the arena and grant interim reliefs when he had not, but could have, asked for it. 49.In the absence of any consensus and requests from both parties, it is procedurally wrong for the Court on its own initiative (emphasis added) to proceed with granting interim reliefs without noting that the key question of recusal had been raised which had yet to be determined. Apart from unfairness to M who was opposing the recusal, it would create complications if interim orders and directions are granted and implemented during the adjournment period before the substantial trial of the recusal application if, at the end, it turned out to be successful. 50.It is readily discernible from the above chronology of events that any complaint or grievances levelled at this Court for disregarding the welfare of the children, failing to direct another judge to hear F’s Access Summons and Schooling Summons and to make orders on other interim matters are devoid of merits and must fail. 51.Grounds 1 and 2 of F’s Grounds of Appeal have no reasonable prospect of success. 52.Ground 3 referred to the Adjournment Order was irrational, this Court not carrying out its task and was in breach of natural justice. 53.Given full and careful consideration to each and every one of the case management directions at each stage of the proceedings within the above chronology, not even to mention the exceptionally long hours taken up for resolving purely interlocutory matters through the granting of directions, it is abundantly clear that any criticisms of irrationality are self-serving statements purposely made which are devoid of merits and bound to fail. 54.Further, F’s criticisms or complaints on this Court not carrying out its tasks and in breach of natural justice was raised clearly upon his dissatisfaction that his desired results not being accepted by the Court rather than upon any substantial grounds. 55.Hence, I find Ground 3 of F’s Grounds of Appeal have no reasonable prospect of success. Any other grounds in the interests of justice ? 56.Although F did not specifically plead or separately raise this limb in his draft Grounds of Appeal as he might have included this in his Ground 3 abovementioned on breach of natural justice, I have given full and careful consideration and come to the conclusion that there are no other grounds for leave to appeal to be given to F in the interests of justice. 57.Quite to the contrary, I find that interests of justice would not be secured or observed if leave to appeal was to be granted to F. Decision 58.For all the reasons above, I decided that F’s application for leave to appeal fails. Costs 59.F had failed completely in his application for leave to appeal. I decided that the normal order of costs to follow the event must be fair and reasonable. 60.And I will so order. 61.I also grant Certificate for 2 Counsel. Orders 62.I now grant the following Orders :-
63.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. 64.The only remaining thing is for me to express gratitude to the valuable assistance rendered to this Court by Senior Counsel, Counsel and the legal teams for both parties.
Miss Audrey Eu, S.C. leading Miss Theresa Chow instructed by Messrs. Ho & Ip, Solicitors for the Petitioner Miss Anita Yip, S.C. leading Mr. Ken S.H. Chan instructed by Messrs. Withers, Solicitors for the Respondent [1] Paragraph 8 of this Decision [2] See paragraph 258 of Miss Lee’s Report [3] See paragraphs 259 and 260 of Miss Lee’s Report [4] See NPYJ v SMRC [2020] HKCA 832/CAMP 155/2020 §23 [5] Paragraph 2 of F’s Recusal Summons [6] Paragraph 3 of M’s Skeleton Submissions [7] See paragraph 21 of this Decision [8] See paragraph 30 of this Decision [9] See paragraph 21 of this Decision [10] See paragraph 23 of this Decision [11] See paragraph 11 of M’s Skeleton Submissions [12] See paragraph 16 of F’s Skeleton Submissions [13] See paragraph 11(d) of F’s Skeleton Submissions | ||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 4633/2020