H v. W

CACV 81/2021

[2021] HKCA 1167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 81 OF 2021

(ON APPEAL FROM FCMC 8332 OF 2017)

_______________________

_______________________

_______________________

JUDGMENT

_______________________

Hon Yuen JA:

1.  I agree with the judgment of B Chu J.

Hon Chu JA:

2.  I agree with the judgment of B Chu J.

Hon B Chu J:

Introduction

3.  The Court (Lam VP, Yuen JA and Chu J) handed down a judgment on 24 May 2021 (“Judgment”) allowing the Father’s appeal against the judgment of Judge Melloy in the Family Court of 10 November 2020 (“Melloy Judgment”).  The Judge granted amongst other things leave to the Mother to permanently remove the parties’ 5 year old daughter A from Hong Kong to Singapore with effect from the uplifting of the travel ban between Hong Kong and Singapore (“Relocation Order”).  In this decision, we shall continue to adopt the nomenclature in the Judgment unless otherwise indicated herein.

4.  As seen in the Judgment, the Relocation Order has since 25 February 2021 been stayed upon leave to appeal being granted to the Father.  Pursuant to the Judgment, the Relocation Order was set aside, save for the Intervening Order referred to therein (which is in relation to access during the period from the date of the Melloy Judgment until the relocation).  The Court further directed that the question of A’s care and control be refixed before the Judge for determination. 

5.  On 21 June 2021, the Mother filed a notice of motion for leave to appeal to the Court of Final Appeal from the Judgment (“Notice of Motion”).  She has set out 12 Grounds/Questions as to why the appeal involves questions of great general or public importance, or otherwise ought to be submitted to the Court of Final Appeal.

Question 1

6.  Under Question 1, the Mother poses the question as to what should be the approach to discretion and interference with discretion of the trial judge by the Court of Appeal. 

7.  What the Mother is essentially complaining about is that the Court adopted a wrong approach and applied wrong guidelines in interfering with the exercise of discretion of the Judge.  It is the Mother’s submission that the Court erred in departing from the Judge’s findings, in failing to give proper or sufficient reasons, and in holding the Judge’s exercise of discretion was plainly wrong.

8.  The Mother has cited China Gold Finance Limited v CIL Holdings Limited & Ors CACV 11/2015, unrep, 27.11.15 in her submissions on the limits of an appellate court in reversing the findings of fact of the primary judge.

9.  The Mother argued that the Court made a reversal of primary findings of fact in paragraphs 56-61 of the Judgment, since the Judge had found Mother would be financially better off in Singapore in the long term.

10.  There was no reversal by the Court of the Judge’s finding that the Mother could be financially better off in Singapore.  What the Judge was referring to was in the long term.  In fact, the Judge had in paragraph 45 of the Melloy Judgment accepted that there would be a time lag between the Mother relocating and her being able to generate funds, and further she had said in paragraph 51 that there were no guarantees in life.  

11.  When the appeal came before this Court, it was some 10 months after the trial before the Judge, and the Mother and Mr N had not seen each other for some 15 months and there was no information as to when the “travel bubble” between Hong Kong and Singapore would be in place.

12.  During the appeal, as seen in paragraph 57 of the Judgment, the Mother was asked by this Court for an update about the progress of her investment, and she had replied there was not much progress and not sure whether there was any plus side.  More importantly, at the appeal, the Mother confirmed that she would not be able to work in Singapore for over a year as she could only apply for a work visa after she had been in Singapore for a year.

13.  As Counsel for the Father, Ms Vivien Leung, has pointed out, the Father’s Grounds 1, 3 and 4 on which the Father’s appeal was allowed by the Court did not turn on the reversal of any primary findings of facts.

14.  The Mother has also referred to and relied on paragraph 6 of the judgment of Kwan JA, as she then was, in RK v YS HCMP 1969/2012, unrep, 01.11.12 in which it was said that “The father’s appeal is an appeal against the exercise of discretion of the deputy judge.  It is well established that in an application for custody involving the exercise of judicial discretion, it is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, that an appeal court is entitled to interfere.”

15.  What was said above by Kwan JA is not disputed. In the present case, it was stated in paragraph 89 of the Judgment that the Court came to the view that the Judge had plainly erred in the exercise of her discretion, and it is well established that the Court is entitled to interfere in cases where the trial judge is plainly wrong.

16.  The salient features in the present relocation case include that A has lived in Hong Kong since birth and has never lived in Singapore, and that A has never met Mr N (whom the Mother had initially proposed to live with upon her relocation in Singapore) in person even though the Mother had introduced them online.  Although the information shows that A can apply for a student visa to enter and to study in Singapore, the Mother herself has no work visa in Singapore.  Both the social welfare officer Ms Tong and the parties’ single joint child psychology expert Ms Lee did not support the Mother’s relocation plan.

17.  The Judge departed from the recommendations of Ms Tong and further gave no weight to the recommendations of the single joint expert.

18.  To reiterate, under section 3(1)(a)(i)(B) of the Guardianship of Minors Ordinance, Cap 13, the Judge was required to give due consideration to any material information including any report of the Director of Social Welfare.

19.  As set out in paragraph 37 of the Judgment, the Judge gave two reasons for not following the social work officer Ms Tong’s recommendation, namely (1) Ms Tong’s admission that the issue of finances was not a concern and that she had not considered the issue of finances when reaching her conclusion and (2) Ms Tong was under the impression that the Mother had intended to move in with Mr N immediately.

20.  In paragraphs 46-71, the Court gave reasons why the Judge did not appear to have given due consideration to all of Ms Tong’s reasons/concerns in her 3^rd Report or if the Judge had, the Judge ought to have given fuller explanations and reasons as to why she had taken a different view and departed from Ms Tong’s recommendation.

21.  As for the single joint expert Ms Lee’s recommendations, as set out in paragraph 73 of the Judgment, the Judge’s only reason was that Ms Lee’s recommendations were entirely therapeutic and those were not recommendations.  In paragraphs 74-77, the Court had set out why the Judge did not seem to have considered or given due consideration to Ms Lee’s primary recommendation, the information in Ms Lee’s report and to Ms Lee’s concerns.

22.  The Court had further had set out reasons as to why the Judge had failed to address A’s welfare and best interests sufficiently in a holistic way.

In her present submissions, the Mother merely repeated her arguments that the Judge did give due consideration to Ms Tong’s recommendation. 

Question 2 

23.  Under Question 2, the Mother poses the question as to what should be the approach in applications for permanent relocation of a minor during the Covid-19 pandemic.  She has cited two decisions in the Family Court, one of which allowed an immediate relocation and the other, a “delayed” relocation was ordered, as in the present case.

24.  There was no dispute as to the applicable legal principles on relocation as set out in paragraphs 31-33 of the Judgment.  The paramount consideration is whether the relocation is in the best interests of the child, whether immediate or delayed.  The pandemic is only one of the factors to be considered.  Practically speaking, the longer a relocation is delayed, the more likely there will be a change of circumstances in respect of the child.  Those cases JTMW v NAV [2020] JLFC 244 and KK,H v PK, H [2020] HKFC 234 cited by the Mother do not assist the Mother.  The circumstances in each case are different, and each case depends on its own facts.

Question 3

25.  Under Question 3, the Mother is posing the question as to whether, if the Court of Appeal feels that the Family Court may have erred in not putting in place appropriate safeguards or protective measures for the child, should the Court of Appeal exercise their discretion and add those safeguards and protective measures, rather than dismissing the application altogether.

26.  As mentioned in paragraphs 65 and 70 of the Judgment, there had been a shifting position on the part of the Mother, not only once but twice, as to whether upon relocating to Singapore she intends to cohabit with Mr N (together with A), or to have her own residence with A.  She had initially said she did not intend to cohabit with Mr N, but then in her opening proposals and submissions for the trial, she changed her position and proposed that she and A would reside with Mr N.  Then, finally during the trial, her position shifted again.  It was in light of this that Ms Tong had said she would need to reconsider the situation and to make further enquiries. This Court then noted that there was no safeguard or any undertaking from the Mother as to her latest position.  

27.  In any event, in relocation cases, the burden is on the applicant to put together a realistic plan including practical proposals including any safeguards or protective measures for the judge’s consideration. As submitted by Counsel Ms Leung on behalf of the Father, which we accept, the Mother cannot and should not expect the Court to remedy or make good her application for her. 

Question 4

28.  The question raised by the Mother under Question 4 is similar to the question posed by the Mother under Question 1.

Question 5

29.  Under the above, the Mother has posed the question that if there are factual and/or arithmetical errors in the Judgment which carry material weight after the discretion and weight on the evidence has been re-determined by this Court, what recourse is available to the litigant when the bar to approach the Court of Final Appeal is set so high. 

30.  In paragraph 6(I) of her Submissions, the Mother complained that the Court solely relied on the Father’s calculation provided in his Closing Submissions for the appeal in determining the dividends from the investment into Mr N’s company as the sole source of income for the Mother.

31.  However, as pointed out by Ms Leung, the Court did not rely on the Father’s calculation, but instead referred to the Mother’s and Mr N’s own evidence at trial before the Judge, the Mother’s own representation at the appeal, and the absence of updated financial information of Mr N’s company.

32.  In her Reply Submissions, the Mother then argued that the Court made a contrary finding of fact to that found by the Judge.

33.  At the trial before the Judge, the Mother confirmed that she was open to receiving a draw, or simply an advance as opposed to a ‘salary”, and that the agreement between her and Mr N was that she would receive a 60% commission plus a dividend if the company were to do well. The Judge accepted that the business opportunity afforded to the Mother was a good one.

34.  There was no contrary finding by the Court.  As seen in paragraphs 57 and 59 of the Judgment, the Court merely pointed out that the Mother would not be able to work for over a year in Singapore, as she herself admitted during the appeal that she could not apply for a work visa until she had been residing in Singapore for a year.  The Court further pointed out that there was no updated information as to what advance Mr N could make available to the Mother against future earnings from Mr N’s company or against the Mother’s future dividends as a shareholder of Mr N’s company.

35.  In any event, the financial aspects of the relocation application, albeit important, is only one of the factors to be taken into account in considering A’s best interests and this is in no way a question of great general or public importance. 

Questions 6 and 7

36.  Under the above, the Mother is posing the question as to whether there should be a lower bar for an applicant who is applying to return to his/her homeland with a child, citing the case SMM v TWM [2010] HKFLR 308, [2010] HKCA 173, [2010] 4 HKLRD 37, CACV 209/2009 (09.06.10) in which the mother therein succeeded in her appeal against an order refusing to grant her leave to relocate with the child, notwithstanding the vagueness of her relocation plan.

37.  In SMM v TWM, the parties had limited connection to Hong Kong having been in Hong Kong for only about 2 years and 9 months at the time of the relocation application, the applicant mother had never intended to leave the United States for a long period although by the time of the relocation, they had been out of the United States for some 8 years having been in Singapore before Hong Kong.  The mother was not taking the child (who was then about 8 years old) to an entirely new environment but was returning to her home country where she had family members with whom she was close, and where the father also had family members.  The couple had visited their families in the United States with the child regularly.  In the summer preceding the relocation application, the mother had spent four weeks with the child in US and had visited 3 schools for the purpose of implementing her plan for relocation.  It was the mother’s plan to live with her family upon return to the United States.

38.  The facts of the above case are very different from the present one.  As said earlier, each case will depend on its own facts.  It is not whether there should be a higher or lower bar.  The paramount consideration is whether the relocation is in the best interests of the child, as the Mother herself has submitted in her Reply Submissions.  This is a fact-sensitive issue and no question of great general or public importance is raised.

Question 8

39.  Under the above, the Mother is posing the question whether there has been a shift in the law in relation to the left-behind parent’s financial obligation towards the child and the applicant upon relocation, in that the left-behind parent’s financial obligation would cease.

40.  It is not clear how the question could arise out of paragraphs 60 and 61 of the Judgment.  There was no basis at all for the Mother to suggest that the Court had assumed that the Father’s financial obligations to the Mother and A would cease upon relocation.  On the contrary, the Court noted that the Mother’s case was that she would continue to have to rely on maintenance from the Father and further that if the relocation was allowed, it would likely result in more travelling expenses by the parties and an additional strain on the parties’ finances.  

Question 9

41.  The question posed by the Mother under Question 9 is whether if the social welfare officer concludes that a further investigation is required in order to provide a full and fair recommendation, should the Court dismiss the application or should the Court put weight on the recommendation notwithstanding the gaps in investigation.

42.  It is an abuse to suggest that this is a question of great general or public importance.  As mentioned earlier, and set out in paragraph 66 of the Judgment, the Mother had a last minute shift of position and during her cross examination of Ms Tong, she had raised the possibility that she and Mr N would live separately until such time that A became comfortable with Mr N. 

43.  The Mother complained in her present Submissions that it is not fair to be criticizing her for shifting her position as the proceedings evolved.  She then cited the case of YSYM v LHB [2020] HKCA 586 in that the mother therein was allowed to change her entire application at the appeal hearing.

44.  Suffice to say, the facts of YSYM v LHB were quite different from the present one, and the case does not assist the Mother.  In any event, there were no criticisms of the Mother shifting her position.  However, as seen in paragraphs 67-70, it was due to the Mother’s last minute shift of position that Ms Tong said she would need to reconsider the situation and to make further enquiries.  

45.  As submitted by Ms Leung, which we accept, the shifting position of the Mother is a reflection of the shortcomings in the Mother’s original plan, rather than any “gaps” in Ms Tong’s investigations which led to her recommendation against relocation.

Question 10

46.  The question posed by the Mother under Question 10 is whether the Court has erred in not exercising its discretion in determining the care and control application, and instead directing the parties to go for a retrial of the C&C Summons. 

47.  The Court did not in fact direct a retrial of the C&C Summons.  The fact is that pursuant to the Melloy Judgment, the Judge then ordered that certain provisions in her 2018 Order (which was in relation to A’s arrangements) be varied to the extent that the Mother shall have care and control of A upon the relocation.  The effect of the order is that the 2018 Order is to continue to have effect until A’s relocation, and thus the care and control order made by the Judge was linked to the relocation.  As the Mother’s application for relocation has been dismissed by the Court, this results in the 2018 Order continuing to have effect.  Under the C&C Summons, the Father was seeking shared care and control of A and the issue which needs to be determined is, there being no relocation granted, whether the 2018 Order should be varied to grant the parties A’s shared care and control.     

48.  It was under the above circumstances that the C&C Summons was directed to be refixed before the Judge for determination on this issue.  It is up to the Judge to decide and direct how the issue can be determined, and to give any further case management directions.  It does not mean that there necessarily has to be a retrial, or a trial de novo.  

Question 11

49.  The question posed by the Mother above is whether if the expert’s recommendations are not feasible/practical, what approach should the Court take.

50.  The single joint expert Ms Lee had made a number of recommendations which the Judge described as “therapeutic” and not possible practically.  This was the reason given by the Judge as to why she did not attach very much weight to Ms Lee’s report. 

51.  However, as set out in paragraphs 75 and 76 of the Judgment, Ms Lee did state in her report that her primary recommendation was that the priority should be for Mother and Mr N to focus on their relationship and the Mother re-establishing her career before removing A from Hong Kong, and thus Ms Lee was only of the view that the proposed relocation was premature.  The Judge did not seem to have considered or given due consideration to Ms Lee’s concerns or her primary recommendation.  There was no finding by the Judge that Mr Lee’s primary recommendation was “therapeutic” or not possible/feasible. 

Question 12 

52.  The question posed by the Mother is whether in applications for permanent relocation of a child, whether the law has shifted so as to require ancillary proceedings to be concluded before relocation may be granted.

53.  In paragraph 86 of the Judgment, as the issue of finances was said to be pivotal, the Court was only pointing out the practicalities, that if allowed to relocate, the Mother may then have to fly back to Hong Kong to attend to the FDR and the trial in order to resolve the issue of finances.  This also led to the following paragraph 87, in which it was pointed out that it was not clear what the Judge had in mind when she referred to “uplifting of the travel ban” since even if a “travel bubble” is brought in, there may still be quarantine requirements and may not allow the parties and A to travel frequently between the two jurisdictions, as the Judge had anticipated.

54.  In any event, there has been no shift in the law to require ancillary relief proceedings to be concluded before permanent relocation is granted.   

Mother’s other submissions  

55.  The Mother made a number of other submissions and complaints as to how the Court had erred.  Some of her submissions are not quite factually accurate, including those set out in the paragraphs below.  

56.  The Mother has complained that in paragraph 57 of the Judgment, the Court had elaborated on item 4 of Mr N’s email of 11 July 2020, but failed to consider item 5 of that email.  However, what was quoted by the Mother in paragraph 6(V) of her Submissions of 21 June 2021 as item 5 is in fact incorrect and misleading.  Item 5 of that email stated “Needless to say, right though this period of your stay in Singapore, I will support you in any way”.  Mr N did not specifically say he would support the Mother “financially, as required ”.  In fact, in paragraph 60 of the Judgment, this Court has pointed out that there was no mention, nor any evidence, that Mr N would help Mother financially upon her arrival in Singapore with A.

57.  The Mother has in paragraph 6(VI) of her Submissions referred to the judgment by DDJ Thelma Kwan dated 11 June 2020 which the Mother said was referred to in the Melloy Decision in relation to the Father’s finances and the Mother complained in paragraph 6(VII) that the Father had not been forthright about his finances and that his actual position was worse than presented, and the Mother wanted to request leave to adduce fresh evidence with respect to the Father’s financial disclosure.  The Mother then in paragraph 7 of her Submissions complained that the Court failed to explain how her financial aspect would be superior in Hong Kong compared to that in Singapore.

58.  There was however no finding by this Court that the Mother’s financial aspect would be “superior” in Hong Kong than in Singapore.  All the Court said in the Judgment is that the financial aspects cannot be said to be in the Mother’s favour (paragraph 57) and that there is uncertainty in terms of Mother’s finances upon her relocation (paragraph 58). In any event, as stated in paragraph 56 of the Judgment and as stated earlier, the financial aspect of the relocation application is only one of the factors to be taken into account in considering A’s best interests.

59.  On the “Visa” issue, the Mother in paragraph 8(I) of her Submissions now claims A’s Student Visa does not require a guarantor.  However, as stated in paragraph 59 of the Judgment, it was the Mother’s own evidence in paragraph 25 of her 11^th affirmation that Mr N can act as A’s guarantor for her application for a Student Pass.

60.  On the “Housing” issue, the Mother in paragraph 8(II) of her Submissions, the Mother claims that she had provided information on housing in paragraph 100a. of her 11^th affirmation, namely “a list of 330 apartments”.  What was produced by the Mother in exhibit “PKH-11-4” of 11^th affirmation was only a one page screenshot of a property website taken on 3 June 2020 showing there were 330 results for rental properties.  There was no information shown on the screenshot of the size or asking rental of any of the 330 properties.   

61.  The Mother has made various other submissions in her Submissions of 21 June 2021.  Suffice to say, these are rerun of her arguments and submissions during the appeal which the Court has considered.

Conclusion

62.  The law on relocation is well settled and was not disputed between the parties.  The intended appeal seeks to challenge the application of the law to the facts, which was based on the factual circumstances of this case.  A question of great general or public importance cannot be said to have arisen from the Court’s holdings in the Judgment.  We decline to grant leave to appeal in respect of the 12 Questions as posed/framed by the Mother under section 22(1)( b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

63.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).  In our view, there is no reasonable prospect of success in the Mother’s intended appeal.

64.  The Mother’s Notice of Motion is hereby dismissed.  Ms Leung did not seek costs on behalf of the Father.  We make no order as to costs in line with the usual approach in children cases.