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Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date21 August 2018
Neutral Citation[2018] HKFC 140
Judgement NumberFCMC8504/2017
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC8504B/2017 JRMW v. NAV

FCMC 8504 / 2017

[2018] HKFC 140

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8504 OF 2017

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

BETWEEN
JRMW Petitioner

and
NAV Respondent

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

Coram: His Honour Judge I Wong in Chambers (Not open to Public)
Date of Judgement: 21 August 2018

__________________

Judgment

(Leave to Appeal)
(Paper Disposal)

__________________

Introduction

1. By a summons taken out on 11 May 2018, the petitioner father applied for leave to appeal against my decision refusing his application for relocation of the 2 children of the family to Denmark. My reasons are set out in a judgment dated 16 April 2018 which for convenience I shall refer it as the “Relocation Judgment”.

2. The summons was originally fixed to be heard on 17 July 2018. In the hearing of 1 June 2018 when I dealt with the petitioner’s application for taking the children away for summer vacation,[1] I indicated that this leave to appeal matter is apt to be dealt with by way of paper disposal. I therefore gave directions for the parties to exchange their submissions and vacated the hearing of 17 July 2018.

3. I shall continue to refer the petitioner father as “F”, the respondent mother “M”, the domestic helper/father’s partner “V” and the 2 children (both boys) as “L” and “B”.

4. As I have already set out the background to F’s application, the parties’ arguments and my reasoning in the Relocation Judgment, I am not going to repeat the same here. This Judgment has to be read together with the Relocation Judgment.

5. F was initially unrepresented. He filed his summons together with his homemade Grounds of Appeal by way of an affidavit on 11 May 2018. These followed by submissions from the Official Solicitor and from M on 13 July 2018 and 30 July 2018 respectively. The most recent development is that F is now being represented by Mr Clough of counsel who has lodged new Grounds of Appeal in substitution for the homemade grounds and written submissions on 20 July and 26 July 2018 respectively.

6. At this juncture, I need to mention that in his submissions of 26 July 2018, Mr Clough makes the following proposal:

1. The application for leave to appeal is to be adjourned sine die;

2. F is directed to file a fresh application for relocation on or before 3 August 2018;

3. The court directs that the fresh application is given an expedited hearing and that the evidence heard in the trial shall stand as if it had been given in the new application;

4. The court directs that F shall exhibit the new evidence to his affirmation in support of the fresh application;

5. M shall have liberty to file her affidavit in reply within 7 days; and

6. The new application for relocation shall be listed for 1 day on an urgent basis.

7. I do not consider the proposal workable.

8. First, notwithstanding the fresh application is clothed as a ‘new application’, it appears that F is seeking a re-trial. In other words, he is seeking ‘two bites of the cherry’. There is no basis for him to do so. My view is if there is a fresh application, it has to be dealt with properly.

9. Secondly, I have already rejected F’s childcare plan in his original application, whether or not the new application can be dealt with merely by way of adducing some new evidence as suggested by Mr Clough and whether or not the trial can be disposed of in just one day must of course depend on F’s childcare plan and the issues in dispute. Further, Mr Clough seems to have suggested that the court may dispense with the assistance of the social welfare officer. Without a sight of F’s new plan, I am not satisfied that in the event of a fresh application it is unnecessary for the court to hear what the social welfare officer may have to say. It has to be borne in mind that the court shall give due consideration to any material information including any report of the Director of Social Welfare available to the court at the hearing: s 3(1)(a)(i)(B) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”).

10. Lastly, I need to mention that as a matter of fact, in the hearing of 1 June 2018 when I dealt with F’s application for temporary removal, I had already mentioned that either party could make fresh application for relocation where the situation warranted and I urged F to consider carefully how he wanted to move forward. It is unfortunate that so far F’s new plan is not in sight.

11. For the above reasons, there is simply no basis for me to give such directions suggested by Mr Clough.

Legal Principles

12. The relevant test governing applications for leave to appeal from the District Court is provided in section 63A(2) of the District Court Ordinance (Cap 336) (“DCO”):

“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.” [emphasis added]

13. The Court of Appeal discussed the application of s 63A(2) of DCO in Sunny Tadjudin v Bank of America, National Association, HCMP No 691 of 2012, unreported, 29 June 2012 at [9]:

“9. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 para 17). Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion (Ho Yuen Ki Winnie & Ors v Ho Hung Sun Stanley & Anr. HCA 391/2006, 25 May 2009, A Cheung J para 3; and HCMP 1009/2009, 24 August 2009, para 22).”

14. Mr Clough also refers me to §59/2A/4 of The Hong Kong Civil Procedure (2018) on the proper approach,

For leave to appeal in cases, where the threshold test is not provided in the relevant statute, the general test which the court applies in deciding whether or not to grant leave to appeal is this: leave will normally be granted unless the grounds of appeal have no realistic prospects of success (Smith v. Cosworth Casting Processes Ltd (Practice Note) [1997] 1 W.L.R. 1538 ; [1997] 4 All E.R. 840, CA).

15. Recently, the Court of Appeal in ZJ v XWN, CAMP 67/2018, [2018] HKCA 436 (date of judgment: 25 July 2018) stated, in [64], that application for leave to appeal should be a filtering process and should be conducted summarily and proportionately.

Reasons for Rejecting F’s Application

16. Before I come to the Grounds of Appeal, I think it is useful to recap the reason why F’s application was refused.

17. F’s childcare plan after relocation to Denmark is that it would be the same as that in Hong Kong. The boys would continue to be taken care of by V while he is flying. V has become his partner (not his maid anymore) and has agreed to emigrate to Denmark together with them as a family. He would apply for a family reunification visa for V: [20]. This was the backbone of his relocation application: [60]. Accordingly, the issue of whether or not F and V had become husband and wife fell to be determined in trial. After having heard the evidence, I found against F and held that the alleged relationship was a fake one. It was fabricated for convenience so that V might be able to join the family in Denmark. Significantly, Mr Lee, who appeared on behalf of the Official Solicitor, likewise had great doubts over the genuineness of the relationship: [39]. At the end of the trial, the Official Solicitor withdrew his support for the application. He was concerned that there were uncertainties in the caring arrangement in Denmark due to first, the uncertain reaction of the boys to the change of V’s role and secondly, the extent of involvement of the grandfather in the taking care of the boys: [39]. I have already set out the relevant evidence and my findings in [63] to [78] of the Relocation Judgment. I do not propose to repeat them here. It has to be stressed that it was for this reason that I found the very foundation of F’s childcare plan vanished and accordingly it was unrealistic and had little hope of success: [89] & [91].

18. I now turn to F’s Grounds of Appeal

Grounds of Appeal

19. Mr Clough advances a total of 12 grounds with a number of sub-grounds under each, leaving no stone unturned. He is essentially arguing that I erred in each and every respect. I consider it is unnecessary to deal with each and every ground / sub-ground. I propose to deal with them in batches. In doing so, though I may not be referring to each and every paragraph, it does not mean that I have ignored any of them.

Grounds 1 and 2

20. It is submitted by Mr Clough that I erred in law in refusing to allow the application when relocation is plainly in the boys’ bests interests. He draws on the facts that M does not have direct access to the boys, the favourable opinions expressed by the Social Welfare Officer and the Official Solicitor in their reports and the strong views of the boys. He specifically contends that I erred in failing to pay sufficient regard to the strong views expressed by the boys.

Discussion

21. As can be seen in the Relocation Judgment, I was fully conscious of the firm and open views expressed by the boys: [30(7)], [34], [35], [101] & [120]. I too was fully aware of the facts that M does not have direct access to the boys: [3] and the favourable opinions expressed by the Social Welfare...

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