WKI also known as IWKV v. CKW also known as WCKW

FCMC 11528/2019

[2022] HKFC 61

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 11528 OF 2019

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J U D G M E N T

(Leave to appeal)

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Introduction

1.  I will refer to the Petitioner and the Respondent as the Mother and the Father respectively.

2.  By the Father’s two summons filed on 17 January 2022, the Father seeks leave to appeal an interim access order and a variation of interim access order made by me on 12 November 2021 (“Interim Access Order”) and 21 December 2021 (“Variation of Interim Access Order”).

Background

3.  The Mother is now 43 and worked as a human resources executive. The Father is now 47 and is a strategic planner. The Mother filed the petition for divorce on 25 September 2019. There is a child of the family, a girl, A, who is now 11.

4.  I set out below the chronology of events leading to the Interim Access Order and Variation of Interim Access Order:

16 July 2020	An interim access order was granted to the Father.
24 October 2020	The Father reported to have assaulted the Mother inside the ladies’ washroom at a shopping mall.
1 April 2021	Deputy District Judge Lam varied the terms of the 16 July 2020 Order, in which she ordered that: 1.  The share care of the child arrangement be suspended until the determination of the criminal trial. 2.  Thereafter, the Father was to have interim access at the office of the Social Investigation Officer for not more than 2 hours. 3.  An updated social investigation report and clinical psychologist report were called.
21 May 2021	A 24-month bind over order on the Father.
14 July 2021	The Father took out a summons which included various matters and in paragraphs 2 and 3 of the said Summons, he asked for: 2. Care and control of A be granted to the Father. 3.All long holidays, school holidays and special days such as A’s birthday in the rest of 2021 to 2023 be granted to the Father,
6 September 2021	Deputy District Judge Lam varied the terms of 1 April 2021, in which she ordered that the Father do have interim access of A on every Friday and Sunday. No staying access is granted at the hearing. Case was adjourned for Children’s Dispute Resolution (“CDR”).
12 November 2021	At the CDR hearing, parties were not able to reach any agreement and the case was set down for trial. The trial is fixed in June 2022. I varied Deputy District Judge Lam’s 6 September 2021 order as follows: Every first week of the month, the Father shall have staying access from Friday after school to Sunday at 8 pm. The Father shall pick up A directly from school and return A to the Mother at the main gate of the Mother’s residence on Sunday at 8 pm. The Mother and the Father share in equal of the long holidays (Christmas, Chinese Lunar New Year, Easter, and non-school days and any other holidays lasted for 2 days or above), with the first half of the holidays to the Father. The Father shall pick up A at 2 pm on the first day of access and return A to the Mother at the main gate of the Mother’s residence at 8 pm.
19 November 2021	The Father took out a summons on various matters, including to vary the access order which I made on 12 November 2021.
21 December 2021	I dismissed the Father’s application to vary the access order made on 12 November 2021.
17 January 2022	The Father took out two summons for leave to appeal.

Leave to appeal

5.  According to Order 58 rule 2(4) of the Rules of District Court, Cap. 336H, an application for leave to appeal must be made to a judge within 28 days from the date of judgment, order or decision and in the case of an interlocutory judgment, 14 days from the date of the interlocutory judgment, order or decision.

6.  It is well settled principle that the appropriate tests when considering whether leave to appeal out of time ought to be given are :-

(1)  the length of the delay;

(2)  the reasons for the delay;

(3)  the chances of the appeal succeeding if the time for appealing is extended; and

(4)  the degree of prejudice to the other party (here the Mother) if the application is granted.

7.  Section 63A (2) of the District Court Ordinance, Cap 336 provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

8.  The test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF & Ors, HCMP 288/2011, 7 September 2011, paragraphs 19-20).

Leave to appeal the Interim Access Order

9.  The Interim Access Order was made on 12 November 2021. The Interim Access Order is obviously an interlocutory order, in which the rights of the parties have not been finalised by the court. The Father should have taken out his application 14 days from the date of my decision.

10.  Further, even if I should apply the time limit for non-interlocutory order (which is not the case here), the Father should have taken out his application for leave to appeal within 28 days from the judgment.

11.  In the Father’s affirmation dated 17 January 2022, the Father said the following:

1.  After the hearing on 12 November 2021, I intended to appeal against the judgment about the Child interim access.

2.  Knowing there was circumstantial change and to save the Court’s time and resources for an appeal process, The Applicant submitted an application with summons and affirmation instead of applying for an appeal so the Court would have an opportunity to update the Court Order with sensible and appropriate access arrangement.

3.  However, with justification provided by the Application (the Father), the Court made a judgment not to consider updating the access arrangement during the hearing on 22 December 2021.

4.  Therefore, the applicant is making an appeal and humbly ask the Court to grant leave to make such appeal.

12.  The Father is apparently aware of his right to make an application for leave to appeal right after the judgment, but he thought it would save Court’s time and resources for an appeal process. After he did not get what he wanted at the hearing on 21 December 2021, the Father decided to take out his application for leave to appeal out of time.

13.  In my view, the length of delay must be judged against the yardstick of the 14 days provided for in the District Court Ordinance. Therefore, a delay measured even in days is significant; a delay measured in weeks or months is substantial.

14.  The Father’s delay of 1.5 months or even 1 month is substantial delay. The only explanation offered by the Father is that he thought it would save Court’s time and resources is not a satisfactory explanation.

15.  It would have been an abuse of process of the court to grant the Father leave to appeal out of time over a decision, which he is fully aware of his rights but chose not to exercise in accordance with the relevant legal provisions. This would also amount to a second bite of cherry after the Father failed to vary the Interim Access Order.

16.  The Court should not pass a wrong message that such a conduct is acceptable, when it is obviously an abuse of process.

17.  In the circumstances, I refuse to give leave to appeal out of time in respect of the Interim Access Order.

18.  For completeness, I have decided that it may be prudent to go on to consider the leave to appeal application substantively.

Merits of the Father’s intended appeal

19.  The Father must satisfy that his appeal has a reasonable prospect of success. 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.

20.  In this instance, the Father is seeking leave to appeal on the following grounds:

1.  The reason that the Father had no staying access with A was due to the Mother’s non-compliance of previous Court Order and disallowed A to have regular staying access to him;

2.  It is wrong for the Court not to follow all the recommendations of the Social Investigation Officer as stated in the Social Investigation Report dated 29 October 2021 (“SIR”);

3.  The Father had staying access with A more than one year ago. The Court used the Father has not had staying access for one year instead of more than one year but the Court did not provide any justification why one year is appropriate;

4.  It is wrong for the Court to use puberty as a reason to refuse weekly staying access; and

5.  While the Court said the access to A should be handled with a gradual approach, however the order does not contain any gradual access component.

21.  It is settled law that while the court has to give due consideration to any material information including any report from the Social Investigation Officer, the court is not bound to accept or follow the recommendation therein. See: NLC v YMF [2021] HKFC 203 at [26].

22.  I have given careful consideration to the submissions of the parties, the Social Investigation Report dated 29 October 2021 (“SIR”) and the Psychological Report dated 28 October 2021 before I granted the Interim Access Order on 12 November 2021.

23.  According to the SIR, regarding the attitude of A, the Social Work Officer made the following observations:

16. The Social Investigation Officer gathered A’s views through home visits, observations during the father-daughter accesses and individual interviews with her. A considered that both parents were nice and caring to her. However, she really hoped that they would be co-operative with each other regarding her access issue as she felt very frustrated with their past conflicts. Amidst the parent’s conflicts, she preferred not to share her views and feelings to her parents as well as the maternal grandparents. She had once revealed her wish to study abroad so as to get away from the fights between her parents.

17. In the individual interviews, A stated clearly that though she loved both parents, she would like to live with the Mother whom she had all along been living with and felt more comfortable to live with her in a more spacious flat. On the other hand, she also liked to stay at the Father’s place as she liked to play with his dog and join the activities arranged by her father. She also appreciated her father’s efforts in telling her jokes and teaching her Chinese and Mathematics.

18. Regarding the future access arrangement, A considered staying access with her father was fine as she enjoyed the activities he arranged, though she might need some time to adjust as she had not been staying in her bedroom at her father’s place for a long time. On Sundays and in long holidays, she though that she could meet and stay alternately with her father and mother on equal basis.

24.  It should also be noted that in the Psychological Report, the Clinical Psychologist said as follows:

41. A is impressed to be rather lonely. She hinted that she was unwilling to share with other people as they did not help her to keep secret. Instead, she preferred to talk to herself. This is a rather lonely statement by an adolescent girl. It makes one beings to wonder why A no longer shared with her parents or even the maternal grandmother. Would one of the reasons be that she is upset that what she shares with them may be used as materials to attack the other side? I don’t have a definite answer because A does not disclose much. In any case, A commented that her relationships with both of her parents were better before than now. Perhaps being trapped in the seemingly never-ending conflicts of the parents and taking care not to say something to make either of the parents unhappy has somehow worsened the once good parent-child relationships in the early years of A’s life. A expresses clearly her wish to study overseas. Perhaps one of the reasons is that she wants to get away from the parental conflicts.

42. Nonetheless, A stated clearly that she wants to live with the mother. Being a girl stepping into adolescences, I trust she know what her choice means and the reasons of her choice, although she did not spell out the reasons openly. As such, her wish is to be expected. Besides, although the father commented about the maternal grandmother’s possible temper problem, it seems that A does have close bonding and warm relationship with the maternal grandmother. The maternal grandmother’s assistance in the childcare of A and the support of the extended family members of the mother side is also an advantage for the mother. Moreover, for the continuity of care of A and the less disruption caused to A’s daily life, granting the care and control right of A to the mother is supported.

43. The father has his strengths too. I am impressed by his ability and thoughtfulness to arouse interest in topics and activities which A likes and enjoys. The many activities and trips he arranged for A also demonstrates the father’s love and care of A. The way he teaches A to do mathematics is also effective and impressive. Although the mother prefers sole custody of A, the share of custodial right of the father should not be denied. I don’t have specific comment on the exact arrangement of the access between A with the father. However, relatively sufficient father-daughter time is recommended so that A may benefit from the teaching and guidance of the father.

25.  The law governing applications concerning children in Hong Kong can be found at section 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 where it is stated that the court has the power to make such order as it thinks fit for the education and custody of children under the age of 18 years.

26.  The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which refers to the best interests of the child as being the first and paramount consideration of the court.

27.  As seen from the report, A indicated that she felt more comfortable to live with the Mother and A said she might need some time to adjust to stay at the Father’s place as she had not been there for a long time.

28.  I considered that A reaching the age of 11, is capable of expressing her views and feelings. It seems while A considered it was fine to have staying access with the Father, it would take time for A to adjust. I also accepted the Mother’s submissions that A is already into puberty and constant support from the Mother is important.

29.  After taking into account of all of the submissions from the parties, observations from the reports, A’s views and the fact that there were a number of upcoming long holidays, I decided to order that the Father do have staying access with A on a gradual basis, that is, every first week of the month, the Father shall have staying access from Friday after school to Sunday 8 pm; and the parents are to share the long holidays of A.

30.  I made the order with a view that in a few months’ time, after the custody, care and control trial in June 2022, further order and/or adjustment would be made by the Court.

31.  I am not convinced that there is any reasonable prospect of success in this leave to appeal application

Leave to appeal the Variation of Interim Access Order

32.  The Father’s intended grounds of appeal are as follows:

1.  The Court accepted the application on 19 November 2021 and granted a hearing on 21 December 2021 proved the fact that the application was within the Court guideline.

2.  The Court Registry confirmed there is NO restriction on time frame to submit an application for access arrangement after a hearing.

33.  The Father took out the summons to vary the Interim Access Order 1 week after it was granted. In his support affirmation filed on 19 November 2021, the Father did not mention there was any change of circumstances to A.

34.  At the hearing on 21 December 2021, the Father was not able to put forward any ground to persuade the Court that there has been any change of circumstances, since the date of the Interim Access Order was made. In fact, the staying access has not even started at the time the Father took out the variation application. The Father’s application to vary the Interim Access Order is devoid of merits.

35.  I have fully explained the reasons for my decision of Interim Access Order in the above paragraphs. The Father has simply failed to show that the proposed grounds have any reasonable prospect of success.

Conclusion

36.  None of the Father’s proposed grounds of appeal enjoy any reasonable prospect of success. There being no other reason why the appeal should be heard, I dismiss the Father’s applications seeking leave to appeal of out of time and leave to appeal.

37.  Given that this is a child related matter I will make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days.