Sslt v. Smfc

FCMC 11056/2017

[2025] HKFC 122

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 11056 OF 2017

________________________

BETWEEN

________________________

________________________

R U L I N G
(LEAVE TO APPEAL)

________________________

1.This is an application by the applicant, ie. the petitioner wife, (“Mother”) for leave to appeal against the judgment handed down on 21 February 2025 (“Judgment”), following a 3-day trial on the application by the respondent husband (“Father”) to vary the care, control and access arrangement of the children of the family, with the elder daughter (“D”) and the younger son (“G”) (collectively “Children”).

2.I shall adopt the same abbreviations as in the Judgment.

Background

3.The Mother applied for leave to appeal by way of summons filed on 21 March 2025, attached with it the Draft Notice of Appeal, setting out the grounds of appeal. The submissions were also lodged on the same date.

4.The Father opposed to the application. The submissions were filed on 7 April 2025 .

5.As I have already set out the background of the parties, their evidence and the reasons for my ruling in the Judgment, I am not going to repeat the same here. It worths pointing out the special features in this case regarding the different stages of care and control arrangements of the Children, as follows :-

(a) In 2018, by consent, the parties were granted “joint custody and joint care and control of the Children”, with the care arrangements set out in Recital B in the 2018 Order. (refer to paragraphs 12 and 13 of the Judgment)

(b) After the 2018 Order, the arrangement was not conducted smoothly. There was mediation conducted with a parenting co-ordinator engaged, and the arrangement was modified. (refer to paragraphs 16 of the Judgment)

(c) From early 2020 to Aug 2023, there was new arrangement that the Children stayed with each parent in alternate week and the changeover took place on each Friday afternoon after school. There was also mid-week dinner access. (refer to paragraph 17 of the Judgment)

(d) Since August 2023, D has been residing with the Father, while the Mother has mid-week dinner time and staying time at weekends in alternate week with D. For G, the same arrangement residing with either parent in alternative weeks continues. (refer to paragraphs 22 to 23 of the Judgment)

6.After trial, I ordered that, inter alia, that joint custody of the Children be granted to the parties, with care and control of the Children be granted to the Father, with defined access be granted to the Mother.

The legal principles

7.The legal principles governing applications for leave to appeal from the District Court is provided in section 63A(2) of the District Court Ordinance, Cap. 336:-

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

8.Mr. Levaire, counsel for the Mother, has summarised the legal principles as follows, which I agree :-

(a) “A reasonable prospect of success” requires the likelihood of success to be “reasonable” rather than “fanciful”, though not necessarily “probable”.

(b) For appeals involving factual findings, the appellant must demonstrate the finding is plainly wrong, such as where the trial judge ignored critical evidence, misunderstood evidence, made findings of fact unsupported by evidence, or made a determination that no judge could rationally have made.

(c) The high threshold cannot be met by merely claiming the judge rejected evidence presented.

The Mother’s proposed grounds of appeal

9.Mr. Levaire submitted that I “fell into error and took a decision that was plainly wrong and wrong in principle when I granted sole care and control of G to the Father” and I “should have instead found that it is in G’s best interest for his care and control to be shared equally with the Mother and the Father”. The Mother only appealed against the arrangement for G. There are 4 proposed grounds of appeal of the Mother as follows :-

(1) Excessive prioritisation of sibling unity over individual welfare

(2) Failure to properly ascertain G’s views

(3) Erroneous finding on ECA arrangements

(4) Inadequate assessment of mother-child relationship impact

Discussion

1^st ground: Excessive prioritisation of sibling unity over individual welfare

10.The Mother complained that I had disproportionately prioritised sibling unity whilst failing to adequately assess G’s distinct developmental needs.

11.Mr. Levaire pointed out that D is 14 years old and already entered adolescence, while G is only 10 years old and at a completely different developmental stage. He submitted that “sibling unity factor is more significant in a child’s early upbringing. Strict adherence to this rule for older children may not serve either child’s best interests in this case”, and he further submitted a few reasons in support as follows :-

“i) it may undermine the social and emotional needs of a 14-year-old girl in adolescence;

ii) It could inadvertently pressure D to place G’s needs above her own;

iii) G may become overly attached to his elder sister, hindering his individual growth;

(iv) G may not understand D’s natural adolescent tendency to seek independence.”

12.As correctly submitted by Ms Chan, counsel for the Father, the reference to “excessive” in this ground reaffirms that this ground of appeal is against an exercise of discretion and weight.

13.When analysing the evidence, I identified the issues for consideration for this trial (refer to paragraphs 49 and 50 of the Judgment), then summarise the specific background and factual context in this case (paragraphs 51 to 57 of the Judgment), and then go through each of the issues for my determination.

14.When I was considering the arrangement for G, I reminded myself to have regard to the best interest of G as the first and paramount consideration (refer to paragraph 81 of the Judgment). The wish and feeling of G and the 2 social welfare reports, together with other relevant factors, were also considered (refer to paragraphs 82 to 103). The importance of sibling bonding was one of my considerations only. It was upon consideration of all factors that I exercise my discretion and made the finding as such. My consideration of sibling bonding did not outweigh the overall welfare principle.

15.Further, the Mother stated in the Draft Notice of Appeal grounds that “the arrangement inadvertently places D in an inappropriate quasi-supervisory role towards G”. There is no sufficient elaboration or evidence to support this bare assertion.

2^nd ground: Failure to properly ascertain G’s views

16.For this ground, it is stated that “despite acknowledging significant deficiencies in the Social Worker’s inquiry into G’s wishes, the learned Judge failed to implement adequate remedial measures to address this issue”.

17.Mr. Levaire submitted that the trial judge noted shortcomings in the social worker’s efforts to ascertain G’s wishes (refer to paragraph 93 of the Judgment), but took no active steps to remedy this situation, showing that G’s views were not comprehensively understood nor factored properly into the decision-making process.

18.Mr. Levaire further submitted that further steps should have been taken to ascertain G’s views, such as convening a child-judge meeting, requesting a social worker’s memorandum or commissioning a report focused solely on G.

19.As correctly pointed out by Ms Chan, it is not the Mother’s case that the Social Worker failed to inquire into G’s wishes adequately. Even after I had asked the Social Worker, Ms Wong, to explain further at trial the answer from G that he “revealed to be ‘okay’ to reside with each parent” (refer to paragraph 88 of the Judgment), the Mother did not find the Ms Wong’s ascertaining of G’s view deficient or there is the need to apply for child-judge meeting or further reports.

20.I refer to my analysis in paragraphs 88 to 102 of my Judgment. My comments on the ascertaining of G’s view by Ms Wong (refer to paragraph 93 of the Judgement) is one of the consideration of why I did not accept the recommendation of Ms Wong.

21.With the evidence before me (including Ms Wong’s evidence during trial), after consideration of case management and the balancing of fairness to both parties, I exercised my discretion not to adjourn the trial part-heard for child-judge meeting or further reports. There were no such applications made by parties either. I am of the view there is sufficient evidence for me to make rulings.

22.Further, it is stated in the Draft Ground of Appeal that “the judgment proceeded to make further assumptions about G’s preferences without a sound evidential basis” (refer to paragraph 96 of the Judgment).

23.In paragraph 96 of the Judgment, I summarised my observations and expressed my views, not making assumptions of G’s preferences. I am of the view that G “might have felt caught in the middle to take side”, after consideration of the factual context of this case and with concern especially expressed in the 1^st SWR anticipating that G “would be put in a hard situation if his sister completely moved to the father’s home…… that he might be prone to take side on either party……” (refer to paragraph 83(d) of the Judgment).

24.G’s views had been recorded in the 2^nd SWR which I considered and summarised in paragraphs 85 to 87, and my analysis follows in the Judgment.

3^rd ground: Erroneous finding on ECA arrangements

25.The Mother stated that “the learned Judge erroneously concluded that an alternate week arrangement would compromise G’s participation in extracurricular activities”. The Mother further stated that “this misapprehension of evidence constitutes a material error that adversely affected the court’s evaluation of which arrangement would best promote G’s educational and social development”.

26.I agree with the submissions of Ms Chan that although this ground is described as “finding”, the only factual determination I had to make is whether there is parental alienation by the Father, not about extra-curricular activities (“ECA”) arrangements. In fact, my views on ECA arrangements were expressed during the consideration of evidence and the exercise of discretion about the overall care, control and access arrangements, which is part of the detailed analysis, balancing all the relevant considerations, including consistency is G’s daily life regarding his growing needs (refer to paragraph 100 of the Judgment) and factual context of how the parties communicated with each other all along (refer to paragraphs 52 to 57). There was no erroneous finding on ECA arrangements as submitted.

4^th ground: Inadequate assessment of mother-child relationship impact

27.The Mother is of the view that I have “failed to give appropriate weight to the quality and importance of the mother-child relationship in G’s daily life” and “did not adequately consider how the elimination of daily routines with his mother…… would impact G’s emotional wellbeing and sense of security”.

28.I agree with Ms Chan’s submissions for this ground. With reference to the analysis in the Judgement, the mother-child relationship and the effect of the change of arrangement for G had been duly and adequately considered. I have to emphasise that not analysing the evidence in the way the Mother expects does not mean the failure to consider adequately. I repeat the approach of the analysis of the evidence (see paragraph 13 above) and the analysis in the Judgment, especially the conclusion and observation section (refer to paragraphs 112 to 117 of the Judgment).

Other observations

29.On 19 March 2025, ie. 2 days before the Mother filed the summons for leave to appeal (on 21 March 2025), the court received the consent summons regarding settlement (“Consent Summons”) of, inter alia, the application by the Father for variation of maintenance filed on 9 June 2023, with trial commencing on 14 July 2025. The result of this application for leave to appeal regarding the care and control arrangements of the Children will inevitably affect the application for variation of maintenance.

30.I was surprised of receiving the summons for leave to appeal 2 days after the Consent Summons, as the trial dates fixed for 14 July 2025, with 3 days reserved, may be affected. I therefore raised requisitions with the parties, asking if the Consent Summons is to be proceeded with further in view of the present application for leave to appeal. The parties replied by way of joint letter that they have confirmed instructions from their clients that the Consent Summons is to be proceeded with. That means the application for variation of maintenance taken out by the Father had been settled with the trial dates to be vacated, even before the delivery of this judgment.

Orders

31.To conclude, with the reasons aforesaid, I am of the view that the intended appeal has no reasonable prospect of success. It does not appear that the Mother is relying upon, and at the same time M has not shown, that there are any reasons in the interests of justice why leave to appeal should be granted. The application for leave to appeal must be dismissed and I so order.

Costs

32.As costs should follow the event, I see no reason why the Mother should not pay for the costs of this application, with counsel certificate. I am of the view that summary assessment is appropriate for this application.

33.As the Statement of Costs had been provided with counsel’s submission, I further direct that :-

(a) Costs of the application for leave to appeal to be paid by the Mother to the Father, to be dealt with by summary assessment. This is costs order nisi which shall be made absolute within 14 days.

(b) The Mother’s solicitors do lodge and serve written objection to the Statement of Costs within 21 days from the date hereof.

(c) The costs will be summarily assessed by paper disposal.

Mr Romain Pierre Levaire instructed by Messrs. Choy Yung & Co. for the Petitioner

Ms Lareina J. Chan instructed by Messrs. CRB for the Respondent