Tac v. Vdc Nee Vdm

HCMP 2198/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2198 OF 2012

(ON AN INTENDED APPEAL FROM FCMC NO. 16497 OF 2010)

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BETWEEN

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Before: Hon Kwan and Fok JJA

Date of Judgment: 5 December 2012

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J U D G M E N T

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Hon Fok JA (giving the judgment of the Court):

1.This application arises out of a judgment of Melloy DJ concerning a child, C, whose parents’ marriage has, unfortunately, failed.

2.By her Judgment dated 20 June 2012, after a trial lasting 17 days, the Judge acceded to an application by the respondent mother to relocate with C to Baltimore in the USA.  She deferred the date for the relocation to March 2013, in the hope that the petitioner father would be able to arrange his work affairs so that he would also be able to relocate back to Baltimore in the same timeframe.  On the parties’ cross-applications in relation to the arrangements for C, the Judge granted the parties joint custody and shared care of C whilst they continued to reside in Hong Kong and in the event they were both able to relocate to Baltimore.  In the event the father were unable to relocate to Baltimore, the Judge indicated that the order would be varied to an order for joint custody of C, with care and control to the mother and reasonable access to the father.  She gave leave to the parties, in the event of such variation, to make further submissions to the court with respect to C’s holidays.

3.By the Ruling (Costs) dated 24 September 2012, the Judge ordered the father to pay a 20% contribution towards the mother’s costs of and occasioned by her application to relocate and the cross-applications in relation to the arrangements for C.

4.The father applied to the Judge for leave to appeal pursuant to s. 63A of the District Court Ordinance (Cap. 363) and this was dismissed by the Judge by her Ruling (Leave to Appeal) dated 24 September 2012.

5.By summons dated 8 October 2012, the petitioner husband has renewed his application for leave to appeal against the Judge’s Judgment and also seeks leave to appeal her Ruling (Costs).  The summons attaches a draft Notice of Appeal and a skeleton argument in support of the application for leave to appeal has been filed on behalf of the father.  A skeleton argument opposing such leave has also been filed on behalf of the mother.  We think it appropriate to determine the leave application on the basis of the written materials and without a hearing, pursuant to RHC O.59 r.2A(5).

6.In order for leave to appeal to be granted, it is necessary for the father to persuade us that the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.  The reasonable prospect of success threshold means that the prospect of succeeding must be “reasonable” and therefore more than “fanciful” but do not have to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at §17.

7.This being a child case, this Court’s role is necessarily limited as the Judge noted in paragraph 5 of her Ruling (Leave to Appeal), setting out relevant extracts from Rayden & Jackson (18^th Ed.) Vol. 1(2) at §51.7, G v G [1985] 1 WLR 647 and Re M and R [1996] 2 FLR 195 and referring to Re N (Residence: Hopeless Appeals) [1995] 2 FLR 230.  The Judge’s decision was an exercise of discretion and this Court will therefore not interfere with their exercise of that discretion unless it can be shown that the discretion was not exercised at all, or that the Judge made some error of law in its exercise, or that the decision was plainly wrong.

8.The draft Notice of Appeal contains nine proposed grounds of appeal.  It is contended on behalf of the father that the grounds of appeal do not simply raise complaints about the weight given by the Judge to particular evidence in the exercise of discretion but go to errors of principle.

9.The gravamen of ground 1 is that the Judge’s approach was wrong in that she took the issues arising in the case in the wrong order and did not approach each of the questions from the perspective of the best interests of C.  Specifically, complaint is made that the Judge erred in her approach to the mother’s mental health and its impact on her parenting ability in respect of C.

10.We do not accept there is any substance in this proposed ground of appeal.  It is clear from the Judgment that the Judge had the best interests of C firmly in mind when considering the issues in the case.  It is clear that the Judge carefully considered the mother’s mental health and any impact that might have on her ability to care for C and reached the finding that there was no reason to deprive the mother of care as a result of the allegations concerning her mental health or otherwise.

11.The thrust of ground 2 is that the Judge erred in accepting the evidence of the mother’s therapist, Dr Blurton, in preference to the evidence of the two independent jointly-appointed court experts, Dr Mistler and Dr Levy, and the evidence of the Social Welfare Officer.

12.We are satisfied that there is no substance in this proposed ground of appeal either.  The Judge frankly acknowledged that after the first tranche of the trial she had indicated an acceptance of the evidence of Dr Levy and Dr Mistler but this was before she had heard the evidence of the parties and the experts and before she had the benefit of submissions and seeing CCTV clips showing the interaction of C with her parents.  The Judge stressed (Judgment §85) that this had been her initial view but that it was just that.  It was open to her, on mature reflection, to reach a different view and this she plainly did.  She was alive to the fact that Dr Blurton was not an independent expert but came to the view, as she was entitled to, that parts of the evidence of Dr Mistler and Dr Levy should be rejected.  We see no reasonable basis for attacking the Judge’s assessment of the expert evidence, the careful analysis of which occupied some 25 pages of her 78-page judgment.

13.Ground 3 suggests that the Judge erred in her approach to the position of the father but we see no prospect of success in this proposed ground.  The Judge properly considered the respective character of the parties and we see nothing inapt in her approach in this regard, as contended on behalf of the father.  It is clear that the Judge did not resolve the issues before her on the basis of this assessment of character alone and that it merely formed a part of her overall assessment of the evidence in the case.  It is also clear that the Judge did consider the mother’s mental state and its impact on the best interests of C and the suggestion that she did not is not, in our view, reasonably arguable.

14.Ground 4 seeks to criticise the Judge’s order on the basis that its effect would be delayed until the end of March 2013.  In the skeleton submissions, this point was said to give rise to a mismatch between the Judge’s finding that the father’s absence from C’s day-to-day life would be a significant blow to her and the order permitting relocation in March 2013 at a time when the father might not yet be able to relocate to Baltimore.

15.We do not think this proposed ground is reasonably arguable.  The Judge was plainly alive to the fact that shared care was appropriate in the event the parents resided in the same jurisdiction and that this would be in C’s best interests if possible.  But the Judge was faced with the difficulty that the parties’ home was plainly in Baltimore, from whence they came, and that, but for the father’s temporary posting to work in Hong Kong, they would return there.  The Judge was entitled to take the view that forcing the mother to stay in Hong Kong where she was unable to practise her profession as an Immigration attorney so that she would have to be wholly dependent on the father would have been unreasonable and would in turn have ultimately impacted on the well-being of C so that an order permitting relocation in March 2013 was, on balance, appropriate.  The fact that, in the interim, the Judge’s order effectively put in place a shared care arrangement does not, in our view, preclude the making of the order permitting relocation. Ultimately, upon the father’s relocation, shared care is the consistent aim of the Judge’s order.

16.For similar reasons, we do not think Ground 5 is reasonably arguable.  That proposed ground suggests that the Judge erred in thinking that dismissing the application for relocation would have left the mother in an untenable situation since it would merely have delayed her intended return to Baltimore.  However, that argument amounts to requiring the Judge to cater for the convenience of the father at the expense of the mother and we do not think the Judge was wrong in taking the view that, overall, relocation to Baltimore in March 2013, with the aspiration that the father would be able to relocate simultaneously, was in C’s best interests.

17.Ground 6 seeks to argue that the delay to March 2013 built into the order permitting relocation recognises the mother’s need for ongoing treatment and that this was a reason for refusing the application to relocate.  There is no substance in this proposed ground.  The Judge was aware of the mother’s need for ongoing treatment and stated that she should continue to see Dr Blurton whilst in Hong Kong and required her to undertake to receive therapy from Dr Caplan on her return to Baltimore (Judgment §85).

18.Ground 7 appears to repeat the complaint that the Judge’s order prior to relocation puts in place an arrangement for shared care but that relocation without the father would destroy this arrangement.  For the reasons set out above, we do not think it is reasonably arguable that the Judge erred in determining that, if both parents were in the same jurisdiction, shared care was appropriate but that, ultimately, even if it meant that shared care could not be maintained, it was nevertheless in C’s best interests to relocate back to Baltimore.  For an expatriate family with no substantial ties to Hong Kong and whose roots are firmly in the USA, this is hardly a surprising conclusion.

19.Ground 8 in substance again raises the alleged mismatch complaint referred to above.  For the reasons set out above, we do not think this gives rise to an appeal with a reasonable prospect of success.

20.Finally, ground 9 challenges the Judge’s order that the father pay a 20% contribution towards the mother’s costs of the relocation application.  This was plainly an exercise of discretion and the order she made was within the ambit of that discretion.  We do not think there is any reasonable prospect of success in this proposed ground of appeal.  The Judge’s findings in respect of the father’s litigation conduct went considerably beyond raising the issue of the mother’s mental health.  It is apparent that the Judge considered the mother had also behaved aggressively and unreasonably but less so than the father; hence she only ordered a proportional contribution by the father towards the mother’s costs.

21.We therefore dismiss the application for leave to appeal and, since we consider the application to be totally without merit, we make an order pursuant to RHC O.59 r.2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.

22.The mother shall have the costs of this application, which stands on a different and separate footing to the relocation application itself.  We direct the mother’s solicitors to serve a statement of costs for summary assessment within 7 days hereof and give leave to the father to serve his response thereto within 7 days thereafter.

Written submissions by Mr Russell Coleman SC and Ms Frances Irving, instructed by Mayer Brown JSM, for the Petitioner/Applicant

Written submissions by Mr David Pilbrow SC and Ms Mairéad Rattigan, instructed by Withers, for the Respondent/Respondent