Tse Ching Mun v. Shum Sui Wa

HCMP001594/1997

IN THE COURT OF APPEAL

Miscellaneous Proceedings

No. 1594 of 1997

_______________

_______________

Coram: Bokhary JA in Chambers

Date of hearing: 30, May 1997

Date of ruling: 30, May 1997

_______________

R U L I N G

_______________

Bokhary JA:

1. This applicant (whom I will call "the wife") has filed a Notice of Intention to Apply for Leave to Appeal. It is dated the 22nd of this month.

2. The form which she has used provides a space for identifying the judgment or order in respect of which leave to appeal is sought. But the wife has left that space blank.

3. Further down in the form, she has written "to vary the custody order and maintenance."

4. The reference, I have ascertained from her, is to an Order made on July 24, 1995, by His Honour Judge Hartmann sitting in the Family Court in Divorce Jurisdiction Action No. 6715 of 1993 in which she was the petitioner and her husband was the respondent.

5. By that Order, the custody of the two children of the family, a son and a daughter, was given to the husband with reasonable access to the wife subject to the supervision of the Social Welfare Department for the first nine months. When the Order talks about "custody", it must be taken to include care and control as well.

6. Going back to the wife's Notice, in the space provided for saying what the grounds of the proposed appeal would be, she has written:

"[The daughter] had been mainly under my care since her babyhood, however, the custody was granted to the respondent in the court hearing in late 1995. Thereafter, I felt difficult to arrange access to the child and I observed the deteriorated mother/child relationship because of the adverse influence of the respondent to the child. I now apply for the custody of the child because I believe the child would receive better care from me."

7. In substance, therefore, what the wife is really after is a variation of the Order made on July 24, 1995, which variation she says should be made by reason of changed circumstances.

8. She is now saying that the daughter should live with her and that she should be paid by the husband an appropriate sum each month for the daughter's support.

9. Now, if such a variation is to be pursued, it would have to be pursued by an application to the Family Court rather than by way of an appeal to the Court of Appeal. So leave to appeal must be - and is - refused.

10. I have explained all of this to the wife. And as I told her that I would, I am now giving my reasons so that they may be transcribed and provided to her for her own reference and for the reference of anybody else looking at this matter in future.

11. So leave to appeal, as I have said, is refused. And the wife is left to pursue an application to the Family Court for variation, if she wishes to do so. Indeed, the husband's solicitor informs me that the wife has already got such an application outstanding.

12. Because the wife is not represented by a lawyer, it has been necessary for me to assist her as far as I can, whilst not going so far as to be unfair to the husband. What I have done is to point out to her the proper place to pursue what she says she wants to pursue.

13. As to the application for variation, I do not encourage it. Nor do I discourage it. If the application is pursued, then I make no prediction whatsoever about the result. That is not for me. That is for the Family Court.

14. Obviously, the parties have great difficulties. If they can sort it out themselves, so much the better. If not, let the Family Court do it: hopefully as quickly and as painlessly as possible.

[Costs]

15. The husband is in attendance by his solicitors. He is on legal aid; and Mr Chiu for him asks me to order legal aid taxation of his own costs. That is plainly appropriate. And it does not affect the wife. So I make an order for legal aid taxation of the husband's own costs accordingly. There will be no other order as to costs.

Representation:

Applicant in person

Mr Chiu Kwok Wing, (of M/s Chan & Chiu) for the respondent