CWT v. CKK

FCMC 14169 / 2007

   IN THE DISTRICT COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   MATRIMONIAL CAUSES

   NUMBER 14169 OF 2007

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BETWEEN

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J U D G M E N T
(Leave to Appeal)

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1.  This is the Respondent’s application for leave to appeal against my Order of 8 October 2009, varying a previous Consent Order of 31 January 2008 to give care of control of the child of the family to the Petitioner. The parties remain joint custodians of the child N. I will call the Respondent “the Father”, and the Petitioner “the Mother” in this judgment.

2.  Initially, the Father filed his summons for leave and a supporting affirmation on 5 November 2009 setting out his grounds of appeal in an attachment (“Attachment A”). Three days before the hearing of his leave application, he filed another affirmation on 23 November 2009, enclosing a draft Notice of Appeal being drafted by Counsel Ms Anita Yip, setting out grounds of appeal against my judgment of 8 October 2009 (“the Judgment”). At the commencement of the leave application, the Father informed the Court that the draft grounds he intended to rely on were those drafted by Ms Yip (“Draft Notice”), and not Attachment A.

3.  With the introduction of the Civil Justice Reform, leave condition to appeals are now stated in s. 63 A (2) of the District Court Ordinance, namely that leave to appeal shall not be granted unless the judge is satisfied that :

“(a) the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interest of justice why the appeal should be heard.”

4.  Mr. Lai, solicitor for the Mother, has referred this Court of paragraph 59/2A/4 of the 2010 Hong Kong Civil Procedure, namely that “The test of “reasonable prospect of success” should be contrasted with the test in other cases that leave to appeal should only be refused when an applicant has no arguable case …. The statutory test apparently requires the applicant to positively demonstrate that the intended appeal enjoys a real, or a sensible, as opposed to fanciful, prospect of success.”

5.  Further, recently, Hon Le Pichon JA in her judgment in HCMP 1009 of 2009, dated 24 August 2009 has said that “For leave to be granted, this court must be satisfied that the appeal has ‘reasonable prospects of success’. Merely showing that the appeal is ‘arguable’ and ‘not fanciful’ would not be sufficient. In my view, ‘reasonable prospects’ requires something more and, in that regard, some assistance may be derived from the test applied when setting aside a default judgment”.

6.  The relevant considerations in setting aside a regular default judgment are set out in paragraphs 13/9/12 to 13/9/14 of the Hong Kong Civil Procedure. Suffice to say, that merely showing that the appeal is arguable and not fanciful would not be sufficient, and that the applicant has to positively demonstrate that the intended appeal has a real prospect of success.

7.  Although in the Draft Notice, it is stated that this Court has erred in law, I agree with Mr. Lai’s submission that in effect what is being complained of is that I have exercised my discretion wrongly. Mr. Lai has further referred this Court paragraph 59/0/59 of the 2010 Hong Kong Civil Procedure in relation to appeals against exercise of discretion, where it has been stated that “The limitations on the power of the Court of Appeal to interfere with the exercise of a discretion conferred on the judge in the court below apply to residence or contact orders in child cases or any other decisions concerning the welfare of children: G v G …”.

8.  In the Draft Notice, it has been submitted that I had plainly confused the strong emotional bondage between the Mother and N, which was not denied by the Father, and the ability of the Mother to cater for N’s emotional needs, which the Father rejected the Mother possessed.

9.  The evidence that the Mother is in a better position to care for N’s emotional needs came from the social welfare reports and the oral evidence of the social worker Ms Puk.

10.  In deciding which parent is able to provide better care for their 8 year daughter, I had to do a balancing exercise. I have accepted that N has a very strong emotional bond between N and her mother (para 114). I have further said that it is difficult to replace a natural mother’s role (paragraph 112). Ms Puk has agreed that N would undergo physical and emotional changes during puberty and N would need guidance and that a teenage girl would need a lot more female guidance like sex education and a mother’s role in this respect will be beneficial to N (paragraph 107). I have accepted Ms Puk’s evidence in this regard. I have given my reasons in paragraphs 112 and 114 of the Judgment and concluded that in view of the very close relationship between N and her mother, the Mother would be in a better position to meet N’s emotional needs.

11.  In the Draft Notice, it has further been submitted that the maintenance of the status quo should be a more important factor than the stronger emotional bondage between the Mother and N. As Hon Rogers VP has said in L and C CACV 333 of 2003, the importance of status quo would very from case to case (paragraph 17). He has further said in Aslam v Ali CACV 144 of 2003 that young children are adaptable (paragraph 36). In the present case, N was under the Mother’s care for over 6½ years, and has now been under the Father’s care for over 1 ½ years, and I have set out in the Judgment that I do not see any reason for concern over any disruption if N were to be required to move again, particularly when she adjusted rather well moving from her mother’s home to her father’s home (There was a typing omission in the last sentence of paragraph 122 of the Judgment. Please refer to the Corrigendum of 27 November 2009).

12.  Overall, on the grounds in the Draft Notice, Mr. Lai has referred this Court to the case of G v G. [1985] 2 All ER 225, which was referred to in paragraph 59/0/59 as above mentioned. Lord Fraser of Tullybelton has said that : “The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge’s decision was wrong, and unless it can say so it will leave his decision undisturbed.” (page 228 at line b)

13.  The following passage from Clark-Hunt v Newcombe (1981) 4 FLR 482 was also quoted by Lord Fraser in G v G:

“There was not really a right solution; there were two alternative wrong solutions.  The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the matter.  Whether I would have decided it the same way if I had been in the position of the trial judge I do not know…”

14.  I have said in the Judgment that this is not an easy case. The Mother herself has agreed to the Father and her continuing to be joint custodians of N, and both parents have a caring and patient attitude over N, and that they are both loving parents. I have weighed up all the relevant factors and came to my conclusion in the Judgment. Having considered the above cases, I am not satisfied that the intended appeal has a reasonable prospect of success.

15.  I further agree with Mr. Lai’s submission that there is no other reason in the interests of justice why the appeal should be heard.

16.  In the circumstances, I dismiss the Father’s application.

17.  On the stay application, in my view, N’s move should take place over a weekend, rather than in the middle of a school week, in order to cause less disruption to her daily school schedule. I therefore order that N should move to her mother’s home on or before 6pm on Sunday 29 November 2009. I will therefore extend the stay until 6 pm on 29 November 2009.

18.  I will make an order nisi that there be no order as to costs, and this will be made final within 21 days unless there is any application by either party.