YCKS v. MPKC

FCMC 8480 / 2015

[2018] HKFC 76

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8480 OF 2015

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Leave to Appeal

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Introduction

1.  The respondent (“the father”) filed a summons on 9 March 2018 for leave to appeal against my judgment handed down on 28 February 2018 on custody, care and control, and access arrangement of the four children of the family.

2.  I do not intend to repeat the facts and evidence of this case. I shall adopt the abbreviations contained in my judgment.

3.  In my judgment, I ordered the custody, care and control and access arrangement as follows:

(i)  The mother (the petitioner) do have sole custody, care and control of the 4 children of the family, namely, child C, child R, child L and child T.

(ii)  The father (the respondent) do have reasonable access to child C and child R.

(iii)  The father (the respondent) do have defined access with child L and child T in pairs, twice a month for a duration no more than 5 hours with the presence of a domestic helper.

(iv)  The father (the respondent) do have day access with child L and child T in pairs, with a duration of no more than 5 hours, with the presence of a domestic helper, (i) on one day of Christmas public holidays and (ii) on one day of Chinese New Year public holidays.

(v)  The father (the respondent) do have phone access with child L and child T on the birthday of both children respectively.

Applicable legal principles

4.  Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336.

5.  Reasonable prospect of success connotes the prospect of succeeding must be reasonable and more than fanciful, without having to be probable.  An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains adiscretion as to whether to grant leave, though the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court in exercising its discretion. (See commentary of Hong Kong Civil Procedure 2018, §59/2A/4)

The father’s application for leave to appeal

6.  Primarily, the father submitted I have erred by not granting an order of joint custody. He complained he has been disconnected with his four children as a result of parental alienation by the mother. He has essentially no relationship with his four children and he was of the view that he had no prospect at all. He is now being removed from the school system, he has no updates, he was not invited to the graduation ceremony.

7.  I should have given weight to his good relationship with his four children prior to the petition and not to believe the mother’s evidence. He intends to adduce further evidence by calling additional witnesses including his mother in law, the mother’s current domestic maid, the first social investigation officer who has handled the case to testify how the relationship was like prior to the petition.

8.  The father submitted I have erred by not protecting the two younger children, the access arrangement was wrongly granted in terms of a defined schedule.

9.  The father promulgated further detailed investigation of his relationship with his four children by social investigation officer.

Analysis

10.  I do not see there are real prospect of success in the father’s application for leave to appeal. It is understandable that the father was aggrieved by the order that I have given, his grounds of appeal were mainly complaints of not making an order as he has wished.

11.  The sole custody of the four children be granting to the mother was premised on the unsatisfactory relationship of the father with the four children; high conflicting situation and mistrust of the father and the mother, as well as their communication breakdown. The father blatantly admitted it is his wishful thinking of seeking joint custody, as a means to be involved again in the life of the four children. His understanding of joint custody was misconceived.

12.  Secondly, his urge on adducing new evidence (even leave be granted) would be unlikely to assist. His witness, the ex-domestic helper testified the father and children relationship was satisfactory prior to the petition. Regrettably, the relationship deteriorated because of the father’s continuing exercise of domestic violence to the mother and verbal threats of withholding interim maintenance to both the mother and the children. The verbal threats were realized and at time of trial, one child of the family was suspended from school because of outstanding school fees.

13.  Thirdly, the defined access granted to the father with the two younger children of the family was meant to give both children an appropriate means to nourish parental relationship. Defined access would be of best interest of the two children when both the father and mother have serious communication problem.

14.  Lastly, the existing social investigation reports are well written, the social investigation officer has testified at trial. I do not see the necessity of conducting further investigation by social investigation officer in light of custody, care and control and access.

15.  With the reasons foregoing, I do not see the father has a real prospect of success in the appeal. I also failed to see there are some other reasons in the interest of justice why the appeal should be heard. I refuse to exercise my discretion to grant leave of appeal to the father.

Conclusion

16.  I make the following orders:

(i) The father’s (the respondent’s) summons filed on 9 March 2018 for leave to appeal against the judgment handed down on 28 February 2018 be dismissed.

(ii) The father’s (the respondent’s) do pay the mother (the petitioner) the costs of the summons filed on 9 March 2018 forthwith, to be taxed if not agreed.

(iii) The mother’s (the petitioner’s) own costs be taxed in accordance with the Legal Aid Regulations.