Tpl v. Wyy

FCMC 15332/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MATRIMONIAL CAUSES NO.15332 OF 2011

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BETWEEN

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D E C I S I O N
(leave to appeal and variation of costs order nisi)

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Leave to Appeal

1.By way of Inter-partes Summons taken out on 31 October 2012 by the Respondent Father, he seeks leave to appeal to the Court of Appeal against my Judgment handed down on 3 October 2012 (“the Custody Judgment”) based on the draft grounds of appeal annexed thereto (“the Draft Grounds”).

2.In essence, I ordered in the Custody Judgment that:

2.1  Joint custody of the Children be granted to the parties;

2.2  Care and control of the Children be granted to the Petitioner Mother; and

2.3   Defined access be given to the Father.

3.The Father does not seek to leave to appeal against my decision of granting joint custody of the Children but only against my decision in relation to care and control of the Children.

LEGAL PRINCIPLES

4.The source of jurisdiction for the application is section 63A of the District Court Ordinance (Cap. 336) and the practice and procedure of the application is governed by Order 58 of the Rules of the District Court.

5.Leave to appeal shall not be granted under section 63A of the District Court Ordinance unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard.

6.The relevant test of whether an appeal has a reasonable prospect of success under section 63A 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 therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.^[1]

7.In G v G^[2], the House of Lords held that the appellate court should only intervene when it considered that the judge at first instance had exceeded the generous ambit within which judicial disagreement was reasonably possible, and was in fact plainly wrong, and not merely because the appellate court preferred a solution which the judge had not chosen.

8.The Hong Kong Court of Appeal adopts the similar approach in a recent case RK v YS^[3], in which Kwan JA said:

“6. The father’s appeal is an appeal against the exercise of discretion of the deputy judge. It is well established that in an application for custody involving the exercise of judicial discretion, it is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, that an appeal court is entitled to interfere.

7. A total of six grounds were advanced by the father. It is pertinent to note from the grounds that in most of them the complaint was often about the weight of the evidence that was or should be given, namely that the judge had given either too much or too little weight to certain parts of the evidence. But the appropriate weight to be given to any item of evidence is a matter for the trial judge, not for the appeal court.” (emphasis added)

Father’s Grounds of Appeal

9.To start with, the Father’s Grounds of appeal are as follows (quoted in verbatim from the Draft Grounds): -

1.  I erred in granting care and control of the Children to the Mother and made a wrong conclusion that this is in the interest of the Children and especially the Son (“Ground 1”).

2.  I erred in failing to have proper regard to the contents of the Supplemental Psychological Report prepared by Dr. Levy and thereby reached a wrong conclusion that it is in the interest of the Children that care and control shall be granted to the Mother (“Ground 2”).

3.  I have erroneously believed that the Mother will try her best endeavour to avoid the similar mistakes she had committed in failing to maintain the bonding of the Father and the Children (para 61 of the Custody Judgment). The Father will rely on new evidence which came after the trial hearing (“Ground 3”).

4.  I have erred to base my conclusion on the fact that (i) Dr Levy could not provide a textbook definition of alienation (para 31 of the Custody Judgment); and (ii) Dr Levy cannot conclude that the Son’s anxiety is due to the alleged alienation by the Mother (para 62 of the Custody Judgment). This is unsatisfactory to the interest of the Son and is inconsistent to my findings that the Mother had made mistakes (para 61 of the Custody Judgment) and that the root of the parties’ problems partly stems from the Mother’s family members (para 65 of the Custody Judgment). (“Ground 4”)

DISCUSSION

Ground 1

10.In my view, most of the Grounds of appeal are often about the weight of the evidence that was or should be given, namely I had given either too much or too little weight to certain parts of the evidence.  But according to the legal principles mentioned above, the appropriate weight to be given to any item of evidence is a matter for the trial judge, not for the appeal court.  Besides, in seeking leave to appeal, the Father remains complaining about matters which are only of historical interests and fails to look prospectively in relation to the welfare of the Children.

11.Ground 1, standing alone, is no more than a bold statement and has no substance or particulars at all in showing why I have erred in granting care and control of the Children to the Mother and made a wrong conclusion that this is in the interest of the Children and especially the Son.

12.It is unnecessary to repeat here the relevant paragraphs of the Custody Judgment, in which I had considered all the relevant factors and did a balancing exercise as I was required to do under the relevant governing legal principles, before reaching the conclusion.

Ground 2

13.At the very beginning of the Supplemental Report, Dr Levy had made it clear that she had not interviewed any family members and there were a number of questions that could not be fully addressed (or addressed at all) as it had been an extended period of time since the parties were interviewed, and much had happened since that time.

14.Dr Levy’s first psychological report was prepared in 2011 and dated 14^th June 2011 (“the First Report”). The Father should have been aware of the time lapsed of the First Report by the time of the pre-trial review and trial.  However, he had never sought direction from the court for the preparation of updated psychological report of the Son in order to avail Dr Levy proper opportunity to have updated interviews with the family members for considering the updated condition of the Son and to fully canvass his own allegation of parental alienation.

15.As can be seen from the Supplemental Report, Dr Levy is by no means in a position to draw any concrete conclusion (or any conclusion at all) in relation to the Father’s allegation of parental alienation.

16.Furthermore, Dr Levy had unequivocally expressed in the Supplemental Report the importance of the connections between the Son and the Mother and the maternal family members. She said as follows:

“However, these are very general comments as the issue of custody, care and control is a very complicated one and cannot be adequately addressed without further interview and assessment. It must all so take into account the child’s bond with the mother, his maternal relatives, his sister, and the stability of his current environment.”

17.As shown above, Dr Levy had refrained from commenting on the ultimate issue of custody, care and control of the Children. She also recognized that it is a balancing exercise and various factors had to be taken into account.

Ground 3

18.Ground 3 is, again, frivolous and devoid of any substance or merits. The Father is no more than relying on unilateral allegation made by him.  Mr Felix Li, Counsel for the Father, eventually conceded to withdraw the sentence “The Father will rely on new evidence which came after the trial hearing” but still insist to proceed on this Ground.

19.I am of the view that the Father has entirely misconceived para 61 of the Custody Judgment^[4], which should be looked at as a whole. I consider justifiable for the court to look at the matter prospectively.

Ground 4

20.First of all, the Father accepts that in fact (i) Dr Levy could not provide a definition of alienation and (ii) Dr Levy cannot conclude that the Son’s anxiety is due to the alleged alienation by the Mother.

21.In para 64 of the Custody Judgment, I accepted the Father’s belief that the root of the problem between parties partly stems from the family members of the Mother. That is why I had also adopted safeguards as recommended by Dr Levy that neither paternal nor maternal relatives shall attend the Sunday access.

22.In my judgment, the issue of alienation is only one of the many factors for me to consider whether to grant the care and control of the Children to the Father.  I do not think that there is any legal authority stating that if the court finds alienation by one parent, custody, care and control of the child shall then be granted to the other parent automatically. After all, it must be a balancing exercise by the court after having duly considered the best interest of the minor and all other circumstances. On the other hand, there are far more factors favoring granting care and control of the Children to the Mother eg maternal preference during the tender age of the Children, the Mother as their primary carer, maintaining the status quo, the unknown relationship amongst the Children, the Father’s girl friend and the new born baby etc. I had done a balancing exercise in making my discretion (see in particular para 63 of the Custody Judgment).

23.Mr Li, Counsel for the Father, now only picks a certain minor factors which appear to be in his favor isolation. On the other hand, he has also completely missed the facts which are against the grant of care and control of the Children to him, which had already been thoroughly considered by me in the Custody Judgment.

24.In conclusion, I am not satisfied the Father has demonstrated that the proposed appeal has a reasonable prospect of success or that there is any reason in the interests of justice why leave to appeal should be granted.

25.For these reasons, I would dismiss the Father’s summons dated 31 October 2012 seeking leave to appeal and make an order that the Father do pay the costs of the application to the Mother with certificate for counsel save that the Mother’s own costs be taxed in accordance with Legal Aid Regulations.

Variation of costs order nisi

26.By another Inter-partes Summons taken out on 16 October 2012, the Father seeks to vary the costs order nisi of the Custody Judgment against him.

27.First of all, I had already set out the applicable legal principles at paras 66 to 69 of the Custody Judgment.  I am not prepared to repeat here again.  In essence, costs order is a matter of the court’s discretion. In para 72 of the Custody Judgment, I had set out the unreasonable and condemnable litigation conducts of the Father.

28.One of the salient points in relation to costs which the court should take into account is that even with the Supplemental Report prepared by Dr Levy, the Father’s allegation of parental alienation remains speculative and unfounded. Indeed, nowhere in the 2 reports of Dr Levy that she made any positive findings of alienation against the Mother nor did she recommend the court to grant the care and control of the Children to the Father.

29.Mr Li, Counsel for the Father, tried to argue that the Mother had never given the Father the option of joint-custody at all material times. While being criticised by me for the last-minute change of the stance before the commencement of the trial, the Father did that at least to avoid a trial on the custody part.  His offer of sharing custody was refused by the Mother, and the Mother’s evidence is strongly against joint custody.  In other words, the Father was left with no choice but to proceed to trial in any event, regardless of his stance on care and control and access.

30.I disagree with the above argument of Mr Li. Indeed my ruling on granting parties joint custody in this case does not mean victory for the Father nor defeat to the Mother as the court’s primary and paramount concern is the best interest of the Children. I am of the view that joint custody would serve the Children’s interests to their best. Since the Father all along up to now insists to ask for care and control of the Children, the trial could not possibly be avoided in any event.  Although the Mother refused to have joint custody, not much time was in fact spent at the trial for arguing sole or joint custody as I have always quoted the judgment of Hartman JA in PD v KWW that their distinction is often found to be a thin one.

31.Mr Chow, Counsel for the Mother, submitted that the Father decided not to let the Son continue to receive psychological treatment from Dr Alicia Pon and that only until recently, the Father eventually agreed to the resumption of the psychological treatment to be provided by Dr Pon, making use of the excuse that it would be of no use as the Mother had been coaching the Son. In my view, the Father obviously knew that he could have done better to improve his child-parent relationship with the Son. However, he had not only failed to do so but also chosen to step back and selfishly shift all the responsibilities onto the Mother.

32.In the circumstances, I conclude that the costs order nisi against the Father is appropriate, which shall be made absolute and shall not be varied. I would dismiss the Father’s summons dated 16 October 2012 seeking variation of costs order nisi and make an order that the Father do pay the costs of the application to the Mother with certificate for counsel save that the Mother’s own costs be taxed in accordance with Legal Aid Regulations.

Mr Enzo Chow instructed by Messrs B Mak & Co. for the petitioner

Mr Felix Liinstructed by Messrs Chaine Chow & Barbara Hung for the respondent