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Tac v Vdc Nee Vdm

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date05 December 2012
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP2198/2012
CourtHigh Court (Hong Kong)
HCMP2198/2012 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)

________________________

BETWEEN

TAC Petitioner
and
VDC nee VDM Respondent

________________________

Before: Hon Kwan and Fok JJA

Date of Judgment: 5 December 2012

________________________

J U D G M E N T

________________________

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 (18th 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...

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