Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Cxw v Wy

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date29 July 2022
Neutral Citation[2022] HKFC 153
Year2021
Judgement NumberFCMP167/2021
Subject MatterMiscellaneous Proceedings
CourtFamily Court (Hong Kong)
FCMP167/2021 CXW v. WY

FCMP 167 / 2021

[2022] HKFC 153

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 167 of 2021

----------------------------

IN THE MATTER of the children of the Applicant and the Respondent, namely CRZ, a minor, and CRH, a minor
and
IN THE MATTER of the Guardianship of Minors Ordinance (Cap. 13) (ss.3&10)
and
IN THE MATTER of the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189) (s.3B)

----------------------------

BETWEEN
CXW Applicant
and
WY Respondent

----------------------------

Coram: Deputy District Judge Theresa Chow in Chambers (By paper disposal)
Date of the Applicant’s Submissions: 4 July 2022
Date of the Respondent’s Submissions: 18 July 2022
Date of Judgment: 29 July 2022

----------------------------------------------------------

D E C I S I O N
(Leave to Appeal and Stay of Execution)

----------------------------------------------------------

A. Introduction

1. On 20 June 2022, this Court made an order for (i) interim access arrangement of the 2 Children (defined below) and (ii) case management, including to call for a social welfare report to be provided 14 days before the next directions hearing fixed on 28 September 2022 (“Order”).

2. On 4 July 2022, the Applicant (“Father”) issued a summons (“Father’s Summons”) seeking:

(1) Leave to appeal the Order; and

(2) pending determination of the appeal, execution of Order §§1-2 be stayed (“Stay Application”).

3. The draft Notice of Appeal attached to the Father’s Summons sets out 2 grounds of appeal as follows:

(1) this Court erred in refusing to direct a Fact-Finding Hearing pursuant to PDSL10.1 §8 and order a Single Joint Clinical Psychologist Expert Report (“CP Report”) (“Ground 1”);

(2) this Court erred in directing the interim access arrangement which granted the Mother excessive access (“Ground 2”).

4. A third paragraph was also included in the draft Notice Appeal, to which the Father’s skeleton for leave dated 4 July 2022 simply stated it arose from the first 2 grounds. It is dealt with in the round in my decision below.

5. The Father filed a 3rd affidavit on 4 July 2022 in support of his Stay Application (“CXW3”). The Respondent (“Mother”) filed a 3rd affirmation on 18 July 2022 in opposition (“WY3”). I am prepared to consider these two affirmations to the extent that they pertain to the Stay Application and the issue of cost as elaborated below.

B. Background

6. The Father and Mother are unmarried. Two boys were born to them, CRZ on 15 December 2017 (now 4 years old) (“ZZ”) and CRH on 9 August 2019 (now 2 years old) (“HH”)(together, the “Children”).

7. These proceedings were commenced by the Father’s originating summons dated 28 July 2021 (“Originating Summons”), seeking inter alia:

(1) Sole custody, care and control of the Children;

(2) Defined access to be granted to the Mother, with supervision of a social worker;

(3) an injunction against the Mother (whether acting by herself, her agent or otherwise), prohibiting her from assaulting, intimidating, molesting, harassing or otherwise interfering with the Father and the Children.

8. The Originating Summons first came before DDJ M Lam on 1 September 2021 off the back of an ex parte (on notice) application taken out by the Mother on 31 August 2021. On even date, the Learned Judge made an order for, inter alia:

(1) Interim defined day access to the Mother on a 2-week rotation basis, where she is to have access on Monday, Wednesday, Friday and Sunday on week 1, and Tuesday, Thursday and Saturday on week 2;

(2) Such interim access do take place under the supervision of “Rent-a-Mum” (“RAM”), upon the Father’s undertaking that he will pay RAM’s cost.

9. The parties managed to reach settlement on both child care arrangement and financial matters as encapsulated in a consent summons dated 30 September 2021. This became the consent order granted by DDJ J Lee on 7 October 2021 (“Consent Order”) with salient terms as follows:

(1) The parties to have joint custody and shared care and control of the Children;

(2) The Children’s care arrangement is as follows:

(a) Week 1: Sunday 10am until Friday morning before school, both Children are to be in the Mother’s care; Friday after school until Monday before school, the Children are to be in the Father’s care;

(b) Week 2: Monday after school until Thursday morning before school, both Children are to be in the Mother’s care; Thursday after school until Sunday 10am, the Children are to be in the Father’s care;

(c) Week 1 and Week 2 arrangements are to be alternating.

10. On 22 April 2022, the Father filed a summons seeking to vary the Consent Order (“Variation Summons”) as follows:

(1) Sole custody, care and control of the Children be granted to the Father;

(2) The Mother be granted defined access in accordance with recommendation of a clinical psychologist and under the supervision of a social worker or an independent third party; if the Mother is willing, the Father is prepared to attend the Mother’s access;

(3) Pending final determination, interim order be made in terms of (1) & (2) above;

(4) Further directions as the Court sees fit, including but not limited to calling a social welfare report and/or clinical psychologist report.

11. The Variation Summons is supported by the Father’s 2nd affidavit dated 22 April 2022 (“CXW2”). The Mother has filed a 2nd affirmation dated 25 May 2022 in opposition (“WY2”).

12. The Variation Summons was listed before this Court on 20 June 2022 for directions with 30 minutes reserved (“Hearing”). On that occasion, the Father was represented by Mr. Eugene Yim (appearing with Ms. Lily Yu) and the Mother was represented by Mr. Jeffrey Li. The Order was made after an approximately 2.5-hour hearing, including a short adjournment where the matter was stood down for the parties to attempt an agreement.

13. In respect of the Father’s Summons for leave to appeal and stay of execution, the Father is represented by Ms. Anita Yip SC leading Ms. Lily Yu and the Mother is represented by Ms. Audrey Eu SC leading Mr. Jeffrey Li.

C. Legal Principles

14. Section 63(A) of the District Court Ordinance (Cap. 336) provides that leave to appeal shall not be granted unless the court is satisfied that (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice that the appeal should be heard.

15. The Order is in the nature of an interim access order (§§1-2) and case management decision (§§3-7). The Court of Appeal in NPYJ v. SMRC [2020] HKCA 832 has laid down the following guidance in respect of appeals against orders of such nature at §§22-24 per Chu JA:

“22. First, as pointed out by the Judge and Mother, the decision to adjourn the Interim Access Application to 18 November 2020 is an interim order and a case management decision. In general, appeals against interim orders are not to be encouraged as they tend to distract rather than focus parties’ attention on the real issues of the case, apart from incurring additional and, in most instances, unnecessary costs and time. In the specific context of interim orders made in proceedings relating to children, it has been noted in Rayden and Jackson: Relationship Breakdown, Finances and Children at [49.55] that:

“Where the court makes an interim order appeals are actively discouraged as the usual remedy will be to invite the same court to review the provisions of that order at a later hearing. Necessarily, interim orders often call for difficult decisions to be made by and the lower court should endeavor to make such orders in a way which causes the least amount of harm to a child in that interim period. The court on appeal will be slow to interfere in decisions which are only intended to last for a relatively short period of time.”

23. It is also well established that case management is pre-eminently within the province of the trial judge and the appellant court will only interfere in very exceptional circumstances: Cheung Yee-mong v So Kwok-yan [1996] 2 HKLR 48, 51. This Court has consistently held that an 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 his order was irrational: see Lee Tak Yee v Chen Park Kuen [2001] 1 HKLRD 401; Kan Miu Wah v Aeroflot Russian International Airlines (unreported) CACV 142/2006; and Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887.

24. In the present case, the application before the Judge is an access application. Even though it only seeks interim access pending the determination of the Variation Application, it is nevertheless an access application affecting two young children. The paramount concern of the court in adjudicating on the application is the welfare and best interests of the Children.” (emphasis supplied)

16. I also accept Ms Eu SC’s summary of the applicable principles in her skeleton dated 18 July 2022 opposing the Father’s Summons as follows:

“3…[Case management decisions] are “only subject to appeal in rare circumstances”; and there is a “very high hurdle”. It is incumbent on [the Father] to demonstrate that the decision was “clearly wrong” in the sense that this Court had erred in principle, or that the Order was irrational: Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 (CA), at p. 897....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT