SG v. GDV

FCMC 10217/2020

[2023] HKFC 98

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 10217 OF 2020

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J U D G M E N T

( Leave to Appeal)

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1.  This is a Summons filed on 15 February 2023 by the Respondent H for leave to appeal against my judgment of 9 January 2023 (the “Judgment”)  wherein I refused his application for permanent removal of the two children of the family to the US. 

2.  The deadline for his leave to appeal application should be 28 days after, which was 6 February 2023; his leave application is therefore late.

3.  Counsel for the Petitioner wife filed his opposition on 27 February 2023.

Background

4.  The background of the case has been set down in the Judgment and will not be repeated here.

5.  I shall refer to the parties as H and W.

The Applicable Legal Principles

6.  The appropriate test when seeking leave to appeal is set out at section 63A of the District Court Ordinance (Cap. 336), which states that either the appeal must have a reasonable prospect of success or that there is some other reason in the interest of justice why the appeal should be heard.

7.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  The case of SMSE v KL [2009] 4 HKLRD 125, elaborated as follows:

“…. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

8.  In challenging an exercise of discretion such as the one I made in the relocation application, it is well known law that it is not enough to establish that the appeal court might have made a different order.   It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, that an appellate body is entitled to interfere.

9.  The principles are trite that in the challenge of finding of fact by a trial judge, an applicant for leave has to showed that the trial judge is “plainly wrong”.  In this regard I refer to the case of Henderson v Foxworth Investments Limited and another [2014] UKSC 41, where Lord Reed explained this concept at the following paragraphs:

“62. …The adverb “plainly does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge.  It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal is one that no reasonable judge could have reached.

…

67. … It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account)  a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

H’s late Application

10.  H’s explains the reasons for his delay in the affidavit which are summarized as follows:

a.  H says as a litigant in person he is not aware that holidays counted towards the 28 days timeline for appeal;

b.  He says he was busy with his application regarding child abuse by W; and

c.  He says he was researching into his rights to privacy.

11.  Counsel for the W criticized his reasons as “neither reasonable nor credible”.

12.  W’s counsel put forward the authority of Tang chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §9, and states the factors I have to take into regard are (i)  length of the delay; (ii)  reasons for the delay (iii)  the chances of appeal succeeding and (iv)  the degree of prejudice to the W.  I shall adopt these principles.

13.  He says he miscalculated the days for the appeal in not counting  the Chines New Year holidays.  There were three public holidays in January 2023 for Chinese New Year, so even if this is credible, he should have assumed 9 February 2023 as deadline, and he is still late. 

14.  H then says he had to prepare his case for serious child abuse by W in December 2022, January and February 2023, and he had to prepare “a SUBSTANTIAL and URGENT affirmations”.  He filed this latter Summons on 8 February 2023 attaching recordings of the alleged child abuse.  W’s counsel submission states that the recordings do not reveal any abuse by W, and H waited three weeks after the last recording to file his summons despite saying that he puts “SERIOUS Child Safety and Wellbeing Matter ahead of my APPEAL”.

15.  He also says he spent his time researching his rights to “privacy and protection by the HK Family Court”.  He did not elaborate this point in his affidavit.

16.  He also says he needs to give his children positive experiences over the Chinese New Year in the light of M’s abuse, which is why his appeal was late.

17.  None of these grounds for delay have any merits.  Nor do I think there are merits to his appeal which is further elaborated below.  But for completeness’ sake, I will deal with his grounds of appeal as follows.

H’s Grounds of Appeal

Ground 1   Assuming H would not move to the US by himself

18.  “The Judgment firstly wrongly assumed the Father would not move and relocate to the US, which as disclosed in sworn affirmations and testimony the Father will and must do to avoid personal bankruptcy as he is in a disclosed debt spiral.”

19.  W’s counsel refers me to H’s Statement of Proposals for the Relocation hearing, at Page 7 under a paragraph headed “Mother’s access if children to be held in Hong Kong”, following his access proposals to W, it reads at paragraph 4 therein:

“The above enables the children to immediately settle in with their father who can work full time from home and care for both them.”

20.  There is no error in my assumption as this is the H’s case for trial.

Ground 2    Ignoring Welfare Checklist

21.  “This Judgement wrongfully ignored the OBVIOUS children’s welfare check list based on the assumption that the Father will remain in Hong Kong.”

H then proceeds to do his own comparison chart using tangible factors such as size of accommodation, zero cost of living, quality food, two care givers (not the Mother), and access to top schools in the US.

22.  There is no legal requirement that I must refer to the Welfare checklist, it is a tool which assists the Court with factors to consider in exercising its discretion.  W’s counsel helpfully refers me to the case of ZJ v XWN [2018] 3 HKLRD 644 at §25, where the Court of Appeal confirms that “it is not compulsory for our courts to have regard to the “welfare checklist” and that is an aide-memoire.”

23.  I made reference to the Welfare checklist in §44 of the Judgment, and have given due consideration to the relevant factors mentioned therein.

24.  In his comparison he also wrote “Father’s love” and “Mother’s love” on the two sides of his comparison table, as if the two were mutually exclusive. This also shows me that he has not factored in the availability of Mother’s love if the children were to move to the US, which reinforces my concern in the Judgment.

Ground 3   Ignoring Social Investigation Reports

25.  H says that the two Social Investigations Reports have been “wrongly ignored by the HK Family court”.  I beg to differ, I have not ignored the two reports, I have considered them fully.  In §§148 - 156 of the Judgment, I gave reasons why I went against the recommendations of the Social Investigation Reports.

Ground 4   Presuming the company was in good health

26.  “The Judge was misled wrongfully ignored the poor financial situation and wrongfully presumed the company was in good health (which it was not)  again mislead by the mother and legal team leading to false prejudice against the unrepresented father leading to wrongful Judgment.”

I made findings of the H’s financial position based on evidence at trial. For this to be a meritorious ground of appeal, the H has to prove that I was “plainly wrong” in my judgment, I am not of the view that he has come up to proof by merely saying that I was misled.

Ground 5   Support from the grandparents

27.  “The Judge was mislead and wrongfully presumes the father’s grandparents would be never ending source of support to the father being forced to live in Hong Kong which was wrong to assume they would continue to lending to avoid the catastrophic situation all parties know they will face in Hong Kong ….”

“More misrepresentations such as the grandparents support of the grandchildren and paying for their schools were also ignored and restricting the children to see their grandparents on TWO occasions because on the ONE hand the HK Family Court considered the Father a flight risk due to Financial duress when alienating the children from their loving and financially supportive grandparents but on the OTHER HAND the Father is now financial solvent and has money when dismissing the Moving and Relocation Application forcing the children to remain in HK, the HK Family Court CONTRADICTED its OWN basis for this Judgment….”

28.  This ground challenges my consideration of the evidence in my Judgment, which analysis is found in §§71 - 74 therein; I specifically stated that I do not see why the grandparents’ support is conditional only on the children being in the US; and I have already commented on the credibility of the grandmother’s and the H’s sister’s evidence at §55. I do not see how this ground of appeal supports a contention that I have been “plainly wrong” in coming to my decision. 

29.  H has also made a completely different point in the same paragraph about the Court contradicting its own basis.  I was involved with one of the holiday applications when H applied to take the children to visit grandparents in Greece just two months prior to relocation hearing.   I have turned down his application in my extempore decision on 7 July 2022.  In reviewing my notes for that decision, I did not say that he is a flight risk due to financial duress.  H’s point on this is misconceived, there are no contradictions as he alleged.

Ground 6   H can move his residence / office

30.  The judge was misled and wrongfully confuses the ‘office / residence’ as a movable asset. 

H then went on to say that moving equipment and IT will take 90 days and at least $300,000-500,000, and that there is a “high chance to shut the online business down catastrophically bring income to ZERO.” That this move would “take 12 - 18 months to break even and there are NO funds to invest for such a risky move with no ROI.”

31.  All the information in the latter paragraph was never put forward at trial.  In any event, this point was made at §76 of the Judgment and goes to the H’s rental payment of $56,000 for his McDonnell Road residence when he continuously fails to pay the maintenance ordered by the Court; and was only one of the many factor in weighing up the parties’ respective cases.

Ground 7   Children’s wishes

32.  “Due to bias the Judgment wrongfully disregarded and ignored the children’s wishes L age 12, and P’s age 10 along with the Social Well fare reports documenting the children’s wishes and stellar relationship with the Father. Strangely the judge only considered P’s attachment with the M, but disregarded his even more close relationship with the Father with both children.”

Here he says again I have ignored the SIRs, as well as the psychological reports. 

33.  I have heard the oral evidence of the psychologist and the social welfare officer at trial, and also referred to the reports extensively in my Judgment §§125 - 136, 150 - 151.  The weight I attached to the children’s positions to the relocation application was based on my findings from the evidence before me at trial; and in my view, far from “plainly wrong”.

Ground 8   H’s desire to exclude W

34.  “Due to being mislead wrongful bias caused, The Judge wrongfully presumes the father wants to separate the children from the Mother as the basis of this application ignoring the fact that the Mother is not the motivation of this application at all.  The children’s best interests are front and center, the Father’s wishes to move home, and the Mother’s lack of any compelling reasons for the family to suffer in Hong Kong unnecessarily are not compelling reasons to stay.”

He also added that the judge wrongfully ignored the fact that both grandmother and aunt have been a major part of both children’s lives since birth.

35.  I make reference to §§59, 106 - 110 of the Judgment.  These are findings I made after hearing and assessing the evidence at trial.  The analysis speaks for itself, and I am not of the view that I am “plainly wrong”.

36.  The roles of the grandmother and aunt were considered in the Judgment and specific reference can be made to §87.

Ground 9   Best interests of the children

37.  H insists that his plan is well researched, and that the Mother has nothing comparable to offer against what is available in the US.  He complains that I have ignored the best interest of the children.

38.  I have gone through a detailed consideration of the evidence at trial and went through the balancing exercise required of me. I do not see any merit in this ground of appeal.

Ground 10   Misleading testimony

39.  H says that there is “misrepresented, false and misleading testimony of the Mother (supported by her HK legally aided legal team)”.

He then makes reference to the EXHIBIT 1 he filed with his Affidavit, and says that:

“The HK Family Court is now aware of them which makes the grounds of appeal even stronger in light of these facts the HK Family Court should now be awareth of and help the HK Family right this injustice by way of grating this appeal.”

40.  I agree with the W’s counsel’s submission that the first part of this ground lacks specifics.

41.  As for his Exhibit 1, this is in fact his 18 points Summons titled “IMPROPER Conduct of Petitioner” with 116 pages of affidavit; already filed with the Court on 13 February 2023, heard on 16 March 2023 and 18 May 2023, and which points were all dismissed. 

Conclusion

42.  I therefore find that all the grounds of the H’s leave to appeal lack merits and have no reasonable ground of success.  I therefore dismiss his application accordingly.

Costs

43.  I see no reason why costs should not follow the event, I therefore award costs of this leave to appeal application to the W, with legal aid taxation, and certificate for counsel.  This is a cost order nisi which will become absolute 14 days hereof.