R, MJ v. OAM, also known as R, AO

FCMC 4362 / 2016
[2019] HKFC 173

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4362 OF 2016

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R U L I N G
(Leave to appeal)

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Introduction

1.  This is an application by a Petitioner father for leave to appeal against my judgment dated the 8 August 2018 with respect to the arrangements for the only child of the family, RR, a boy who is now 14 years of age. At the hearing on the 29 May 2019 I made an order in terms of paragraph 1 of the father’s summons dated the 17 May 2019, i.e. that he should have an extension of time to file and serve his application for leave to appeal. In doing so I accepted that the delay had been caused in part by the fact that the father’s legal aid certificate had been discharged after the handing down of the judgment and that it had taken him some time to obtain a further legal aid certificate. In addition, he has changed his solicitors.   

2.  I should say at the outset that this was a very difficult case on the facts. This is perhaps best encapsulated by the following paragraphs from the judgment where I discussed the character of the parties as parents:

The character of the parties

The mother

75.  It is important when considering the arrangements for children that the judge has an opportunity to see the parties in the witness box so that she is able to form a view of them for herself. This case was no exception.

76.  Although the mother’s evidence was not entirely credible, for example she was elusive when asked whether she was only allowed to remain in Hong Kong pending the outcome of these proceedings and her evidence concerning her employment situation was unclear, I have no doubt that she is a good and loving mother to RR. 

77.  The mother’s solicitor, acknowledged her client’s shortcomings in part when she said in the penultimate paragraph of her Closing submission that:

The Mother is not saying that she is an impeccable mother, but she has been and will continue to work hard to provide the best care and support for the Boy (RR). 

78.  I accept that to be the case. It is clear that the mother is very concerned about RR’s welfare and that she loves him very much. She is softly spoken and was very considered in the responses that she gave in the witness box. Although she may not have been the most honest witness in the world, that does not detract from her relationship with RR, or her role as his mother. I accept that she has found herself in a very difficult predicament and that she is doing the very best that she can for her son in the circumstances.

The father

79. As indicated above the father presented as someone with either a mental health issue or serious behavioural issues. I have concerns about the effect that his behaviour could have on RR both is the short and longer term.

3.  At the end of the day, I made an order that the mother have sole custody and care and control of RR. The order states inter alia as follows:

Conclusion on custody and care and control

80.   Bearing all of the above in mind I have therefore decided to grant the mother sole custody and care and control of RR notwithstanding the fact that there is the possibility that she will be deported. It is also ordered that RR shall attend Z School with effect from September 2018. It is further directed that in the absence of any agreement between the parties that the mother shall be able to enrol RR in a boarding school or seek the help of the social services and arrange for RR to be placed in a small group home. Thus the fact that the father refuses to sign any documentation or to take part in the process should not hinder the mother from making whatever arrangements she deems fit for RR going forward.

…

Order

84.   UPON HEARING the solicitor for the Petitioner and the solicitor for the Respondent

AND UPON the Respondent continuing to undertake to

a) to provide a separate bedroom for RR;

b) to provide RR with food;

c) to be physically present when RR is in her care or she shall ensure that he is cared for by another responsible adult.

IT IS ORDERED THAT

1) For the avoidance of doubt the order dated the 25 February in FCMC 8226 of 2014 shall be discharged;

2) Order 1 contained in the court order dated the 16 January 2017 and the order dated the 28 February 2018 in these proceedings, that interim care and control of RR be vested in the Respondent mother shall be varied to the effect that the sole custody and care and control of RR a boy born on the XX January 2005 be to the Respondent mother;

3) It is further ordered that RR do attend Z School on Hong Kong island with effect from September 2018;

4.  This was not an easy decision to make, but I believe that it was the correct one. I understand that the mother has continues to reside in Hong Kong with RR following the handing down of that judgment and that she has not been deported.

The law

5.  Turning next to the law, I am of course mindful of the test as set out in Section 63A of the District Court Ordinance which states as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.”

6.  It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and, as I have said, that it has a reasonable chance of succeeding.  The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly.  Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

7.  As set out in TAC v VDC nee VDM, [2012] FCMC 16497 of 2010 Leave to Appeal Ruling dated the 24 September 2012, unreported, the parent seeking leave to appeal has even more of an uphill battle to climb when the issue is about a child. In that Ruling I cited the following references:

See Rayden & Jackson at 51.7 Appeals in Children’s cases:

“It has been said that the Court of Appeal has a very limited role to play in such cases, and it is, accordingly, extremely difficult successfully to appeal the exercise of a judicial discretion in children’s cases”

G v. G [1985] 1 WLR 647:

“An appellate court reviewing the decision of a judge in the exercise of his discretion relating to the custody and welfare of children, was bound by the principle applicable to any appeal from the exercise of a judicial discretion, namely, that before it could intervene, it had to be satisfied, not merely that the Judge had made a decision with which the court might reasonably disagree, but that his decision was so plainly wrong that the only legitimate conclusion was that he had erred in the exercise of his discretion”.

Re M and R [1996] 2 FLR 195:

“Once the Judge has made a decision in a child case, it is not for the Court of Appeal to second guess the judge, to trawl through the evidence on paper, to consider whether the judge has given sufficient weight to one matter or too great weight to another matter, nor to allow minor discrepancies to provide the opportunity for a rehearing of the facts and a fresh exercise of discretion. That is properly the function of the trial judge, who has been immersed in the case and has that unique opportunity, denied to the appellate court, of seeing and hearing the witnesses and gaining the feel of the case. It is the function of the appellate court to make sure that the Judge has correctly directed himself to and applied the relevant law, has properly approached his task in deciding disputed facts and has not erred in principle. The appellate court then has to stand back and consider whether his decision is plainly wrong. If he is not, it is not for the appellate court to intervene”.

See also Re N (Residence: Hopeless Appeals) [1995] 2 FLR 230.

Discussion

Plainly wrong: decision manifestly contrary to best interests

8.  In the draft Notice of Appeal the father argues inter alia that it was wrong to reverse the status quo where that had been in existence for 3 ½ years. This is not accepted. Although status quo is important, where the status quo is not working, as here, the court should not hesitate in changing that status quo following a trial and after full assessment of all the relevant factors. All of the different options were considered in this instance and reasons were given for the final decision reached. In particular, it is not accepted that a custodial parent must be in Hong Kong. In this instance it was anticipated that the mother would continue to make custodial decisions for RR, even in the event of her deportation.   

Failure to exercise discretion: “all” options open to Ms O/inadequate reasons

9.  It is not accepted that the court erred in not directing that RR attend either a Small Group Home or a boarding school in the event that the mother was deported. This was premature. There was no application to relocate before the court. Further it would also have been open to the mother to apply to relocate with RR back to the Philippines or to some other country, in the event that she was no longer able to remain in Hong Kong. However, as the custodial parent and given that RR has permanent Hong Kong ID, it would also be possible for her to look at the Small Group Home or boarding school option in the event that she was deported and it was felt optimal for RR to remain in Hong Kong. I am of the view that that was preferable in the circumstances to the mother having custody and any decision making power with respect to the child and that this decision was in the child’s best interests. The reasons for this are set out in the judgment.

Misunderstanding/misapplication of the evidence: no intractable dispute regarding custody (cf care and control)

10.  This is not accepted. It was clear from the evidence that the parties were not able to communicate or to co operate “at almost any level”. I should add that I have rarely seen a more intractable dispute in all of my time on the bench!  

Conclusion

11.  Other points were also raised by counsel for the father in his written submissions. I do not intend to go through those points here. Generally speaking, although this was a very difficult case, I am not of the view that the father has identified in the draft Notice of Appeal any real prospect of success on appeal; nor any other reason in the interests of justice why leave should be granted. I am also mindful, as set out above, that this was primarily an exercise in my discretion.

Costs   

12.  Both parties are legally aided. Consequently, and given that this remains essentially a children’s matter, I shall exercise my discretion and make an order that there be no order as to costs. Both parties own costs to be taxed in accordance with Legal Aid Regulations. There shall be certificate for counsel.