ZJ v. XWN

FCMC 16899 /2014

[2018] HKFC 66

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16899 OF 2014

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DECISION
(Leave to appeal)

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Introduction

1.  On 21 July 2017, I handed down my judgment allowing the respondent’s (“father”) application to permanently remove the child of the family, namely a boy then of 5 years old, to Australia of which the father is her citizen, and to put in place a detailed access arrangement to be enjoyed by the petitioner (“mother”) upon the permanent removal (“Judgment”). By her summons filed on 16 August 2017, the mother now seeks leave to appeal against the removal order of the Judgment.  She later seeks to perfect her grounds of appeal by way of another summons dated 24 November 2017. In the same summons, she also applies to adduce fresh evidence set out more particularly in her 5^th affirmation.

2.  In the following discussion, I would adopt the abbreviations used in the Judgment.

3.  The father’s reasons for permanent removal to Australia and the mother’s opposition were broadly summarized in §[3] of the Judgment, which is repeated below for easy reference:

“3. In relation to the Relocation Summons, the father says that he has a genuine need to move back to Australia due to his business commitment, as his family has invested in a big property re-development project in Sydney which is worth over AUD 15 billion. He needs to station in Sydney personally to run/manage the project, which, due to his inability to fly over to Australia on a frequent interval to supervise the progress for the sake of taking care of the son in Hong Kong, has already been delayed. The mother opposes the Relocation Summons. While she does not doubt that the project in Sydney is a genuine one, she does not believe that it is necessary for the father (and thus the son) to leave Hong Kong for good to live in Australia. She is of the view that the proposed relocation is a continued act of the father in obstructing her access to the son.”

4.  The background of the case and the circumstances leading to the father’s removal application were already set out at §[1] – [13] of the Judgment, and thus I do not propose to repeat them at length here. However, it may be helpful to pinpoint the following facts:

(1)  As at the trial, the father, though born in China, had emigrated to Australia when he was 16. He received his secondary and tertiary education there. The mother also completed her university education in Australia. Thus, Australia is not a new country to them, with the father having a strong tie with Australia;

(2)  On the other hand, the parties did not have a very strong connection with Hong Kong. As at the trial, the father and the son had moved to Hong Kong for about 4 years (since the end of 2013), whereas the mother did not live in Hong Kong at all. She was based in Shenzhen;

(3)  It is indisputable that the mother has all along been a career woman who devotes much of her time to her family businesses. The father was not happy about this. He repeatedly requested her to give up her career and leave her family businesses to be a full time mother. In her petition for divorce, the mother describes the father’s demand of her not even working part time as one of his unreasonable behaviour;

(4)  The circumstances that led to father and the son staying in Hong Kong are like these. After the birth of their son in Hong Kong in 2012, the family continued to live in Beijing where both of them worked for their respective family businesses. In 2013, they made a joint decision that the family should move to Hong Kong for better education of the son as well as for the convenience of the mother to work for her family businesses in Shenzhen with a view that she would eventually stop working to become a full time mother;

(5)  However, after the father and the son had moved to Hong Kong, the mother found it difficult to leave behind her family businesses, in the result of which she spent less than half of her time in Hong Kong with the son. The father had to re-schedule his work to be with the son. This had led to the inevitable result of dispute and conflict between the parties, and finally triggered the breakdown of their marriage.

(6)  Subsequently, she filed a petition for divorce in 2014. They settled on custody and ancillary relief matters. By the Consent Order dated 3 June 2015, the parties agree that the father shall have sole custody, care and control of the son, while the mother would have reasonable access. Details of the relevant part of the Consent Order are already set out in §[13]- [15] of the Judgment and I shall not repeat them here;

(7)  It is important to note that during the trial proper, despite her objection to the father’s permanent removal application, the mother has not asked for variation of the custody, care and control arrangement of the son, nor has she requested for any increase in the frequency of access (which was roughly twice a month over weekend). Apart from objecting to the removal plan of the father, she asked that access should be allowed to take place in Shenzhen, a place where she (but not the son) was then living;  

(8)  It is fair to say that the father did not really welcome her request to take the son to Shenzhen for access, especially during the school’s term time. He was of the stance, rightly so in my view, that the hustle and bustle in travelling between Shenzhen and Hong Kong should be taken up by the mother rather than by the son who was still at a very tender age. It is also fair to say that although the parties were never able to agree on access to take place in Shenzhen, the mother did not have any serious problem in having access in Hong Kong.[1]

5.  Subsequent to the Judgment, the son has relocated to Sydney, Australia since 1 September 2017. Despite the father’s agreement to assist the mother in obtaining a mirror order in Australia, she has not taken any step to do so.

6.  By lodging her intended appeal, what the mother is effectually seeking is that the son do return to and continue to stay in Hong Kong, and that she will continue to have her bi-weekly access to him. However, she has not made any suggestion in the trial proper or at any other stage of these proceedings to look after the son when the father is away to Australia to oversee/supervise the Australian redevelopment project.

7.  It should also be noted at this stage that there is no appeal in respect of the finding of this court that the father is the main carer of the son and that he has a genuine need to stay in Australia to oversee/supervise the Australian redevelopment project. There is no appeal in respect of the access order made in the Judgment.

Applicable Legal Principle

8.  Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless:

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

(2)  there is some other reason in the interests of justice that the appeal should be heard.

9.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

10.  Counsel for the respective parties refer me to the oft-cited case of Re W (Permission to Appeal) [2007] EWCA Civ 786 where Wall LJ explained at §20 of the judgment the questions to be asked in an appeal relating to children matters:

“20. GW, therefore, and others in his position must understand that our function in the present case is very limited indeed. Our task is to review the decision made by McFarlane J on 7 March 2007. We have to put ourselves the proposition set out in the second sentence in para [16] above. The question itself can be broken down to the following:

(1) Did the judge arguably make any error of law in reaching his conclusion?

(2) Was there, arguably, insufficient material on which the judge could properly make the findings of facts and the assessments of the witness which he did make?

(3) Is it arguable that the order he made was not was not properly open to him in the exercise of his judicial discretion?

(4) Is there, arguably, any error in the exercise of that discretion which enables us to say that his order was, arguably, plainly wrong?

11.  In relation to the exercise of judicial discretion, it is trite to say that where the court below exercised a discretion, the appellant court would only intervene when it considered that the judge below had exceeded the generous ambit within which the judicial disagreement was reasonably possible, and was in fact plainly wrong, and not merely because the appellant court preferred a solution which the judge had not chosen (See: G v G [1985] 2 All ER 225; RK v YS, HCMP 1969/2012 (date of judgment: 1 November 2012)).

Proposed Grounds of Appeal

12.  In the mother’s amended draft notice of appeal, she sets out 3 proposed grounds of appeal:  

(1)  I have misapplied the correct legal principles in that I have failed to give a wider analysis of the best interest of the son and the welfare checklist (“Ground (1)”);

(2)  I have failed to give sufficient weight or consideration to the recommendation made by the SWO that it is in the best interest of the son to remain in Hong Kong (“Ground (2)”);

(3)  I have failed to give due or sufficient weight to the mother’s fear that the father would continue to be obstructive to her access to the son (“Ground (3)”).

Ground (1): misapplication of the correct legal principles

13.  Mr Eugene Yim, counsel for the mother, submits that this court has identified the legal principles in the view of the development of the law in England after Payne v Payne [2001] 1 FRL 1053, by citing a more recent English authority of Re TC and JC (Children: Relocation) [2013] 2 FLR 484 in which it was decided that the overall guiding principle in relocation cases is “the best interest of the child”. Having correctly identified the latest guiding principle, Mr Yim argues, this court nevertheless continued to rigidly apply the 4-step guidance in Payne without any wider analysis of the best interest of the son and without any reference to the “welfare checklist”.

14.  Mr Yim also relies on Re D [2010] 1 FLR 1605 where Wall LJ said at §§33-34 that:

“33. …There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent and ignores or relegates the harm done of the children by a permanent breach of the relationship which children have with the left behind parent.

34. As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard.”

15.  Although Mr Yim accepts that the Court of Appeal judgment in SMM v TWM [2010] 4 HKLRD 37, in which the legal principles in Payne v Payne (supra)was adopted, is still the binding authority in Hong Kong, he argues that the time was ripe for clarification by our Court of Appeal in view of the recent case development in England as can be seen from the comment in Re D (supra). Thus leave to appeal should be granted, if not on the 1^st limb, on the 2^nd limb of section 63A(2).

16.  To begin with, I do not read Re TC and JC (supra) as the authority of re-shaping the law on relocation cases or an authority which substantially deviates from the legal principles or approach set out in SMM v TWM (supra) and/or Payne v Payne (supra). The paramount factor of “the best interest of the child” is clearly stated in all these authorities.[2] As such, I do not see the need for further clarification from our Court of Appeal on the relevant applicable legal principles or approach.

17.  Mr Yim attempts to rely on the comment of HHJ Melloy at §27 of her judgment in W, Y v L, KP, FCMC 6434 of 2015, date of judgment 5/7/2016, where the learnt judge commented that she would continue to apply the principles in Payne “pending further clarification by either our own Court of Appeal and/or the Court of Final Appeal”. With respect, this is merely an obiter comment made by the learnt judge which has no binding effect on this court.

18.  Following the approach approved by our Court of Appeal in SMM v TWM (supra) with the overall guiding principle of “the best interest of the child” in mind, I have concluded and expressly spelt out at § [79] of the Judgment that it is in the best interest of the son to be removed to Australia permanently.

19.  On the “welfare checklist”, I only need to refer to §§26-33 of the judgment of Poon JA (then Poon J) in H v N [2012]5 HKLRD 498 where His Lordship endorsed the practice of using the above welfare checklist but subject to 3 caveats:

(1)  it is not compulsory that the judges must have regard to the welfare checklist. Whether a judge may wish to make use of it and if so how is entirely a matter for him.  For example, he may cherry-pick, as it were, only those factors on the checklist which are relevant to the case before him;

(2)  even if the welfare checklist is used, judges are not subject to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one; and

(3)  the welfare checklist is not meant to be exhaustive. Judges are entitled to and indeed should have regard to all other relevant factors even if they are not on the list.

20.  As such, I do not see any reasonable prospect of success of this intended ground of appeal. I disagree that leave to appeal should be granted on the “some other reasons” ground.

Ground (2): failure to give due weight to SWO’s recommendation

21.  I have summarized the investigation and recommendation of the SWO in §§[23]-[25] of the Judgment. I have also set out my general observations and reasons for not adopting the recommendation of the SWO in §§[26]-[32] of the Judgment, in particularly §§[30]-[32]. In gist, this court finds it unable to embrace the recommendation of the SWO for 2 major reasons (at §§[30]-[32] of the Judgment):

(1)  At the time when the SWO prepared the SIR and gave his recommendation, he did not have all the information of the Australian redevelopment project;

(2)  I have concern that the SWO may have arrived at his recommendation based on his own assumptions that were not discussed with the parties or party beforehand.

22.  In his submission, Mr Yim says that the SWO of this case has recommended that it is in the best interest of the son to continue living in Hong Kong, but this court failed to adopt such recommendation and without good reasons. This court thus erred in not giving due and sufficient weight on the SWO’s recommendation. More particularly, Mr Yim says that:

(1)  This court did not explain how the fact that it was the SWO’s first report on relocation cases in his career would affect the quality and professionalism of the SWO’s assessment provided in the SIR;

(2)  This court has failed to explain how the information relating to the Australian redevelopment project might tip the balance regarding the son’s welfare;

(3)  This court should have paid regard to the SWO’s evidence that it was the father who chose to withhold the details of the Australian redevelopment project from the SWO. In any event, such details were given to the SWO during trial, but he still maintained his recommendation against removal. This court should not have discredited the evidence of the SWO and should have accepted his recommendation unequivocally.

23.  In giving my observation that this is the first report prepared by the SWO on relocation (which is a fact), this court only wishes to set out the relevant experience of the SWO by way of background. This court should not be taken to have administered any criticism on the professionalism of the SWO. 

24.  On the comment that this court has failed to explain how the information relating to the Australian redevelopment project might tip the balance regarding the son’s welfare, I would say that the inter-relationship of the father’s application and the Australian redevelopment project is so obvious that it should have been well understood by the parties (and their legal advisers) throughout the trial. The crux of the father’s removal application is, and has always been, that he needs to move/return to Australia in order to participate/oversee/supervise the $15-billion-worth Australian redevelopment project, but as the carer of the son, he does not wish to leave the son behind in Hong Kong. 

25.  In my view and with respect to Mr Yim, his submission that this court has discredited the SWO is a serious but unnecessary allegation. In §[30] of the Judgment, I have stated that I was alive to the dispute of whether it was the SWO who has not asked the father for details of the Australian redevelopment project, or whether it was the father who withheld such information. My conclusion was that there was no need to resolve this dispute, because the more important fact was that at the time when the SWO prepared his report, he did not have all the information/details that was before the court in the trial.

26.  Although the SWO was given the additional details of the Australian redevelopment project during the trial, he stood by his original recommendation that removal was not recommended, because it was his view that there was no need for the father to stay in Australia to oversee/supervise the Australian redevelopment project, he just chose to do so. The following is the relevant part of the transcript relied on by Mr Yim in his written submission:

Q:	…So, Mr Chan, now that you have seen what the father has to say about his business projects, you’ve seen the documents that show that this project is underway, substantial amount of money have been invested in the project, do you take a slightly different view then on the importance of the father in being able to conduct his business from Australia?
A:	I don’t think so.
Q:	Okay. If he is correct that he needs to spend more and more time in Australia and thereafter is away from his son, do you agree with me that that is not in the best interest of his son?
A:	I disagree that there is a need on the part of the father but the father just chose to go that way.

27.  Whether there is any necessity for the father to move to Australia is a question of fact to be decided solely by the court. This court will consider the view of the SWO on the issue, but one must always bear in mind that the “recommendation” from the social welfare officer should not be escalated to the status of a “decision” of the court. The relevant authority and principles have been set out by me in §§[27]-[28] of the Judgment. Mr Yim has not sought to argue the otherwise on this line of the legal principle stated by this court in the Judgment.

28.  In view of the above analysis, I am not persuaded by Mr Yim that there is any reasonable prospect of success of this proposed ground of appeal.

Ground (3): failure to give due weight to the mother’s fear of access obstruction

29.  I have dealt with the genuineness of the father’s removal application §§[36]-[50] of the Judgment. I have also analysed the mother’s fear of obstruction in access in §§[63]-[72] of the Judgment. I conclude that the father cannot be described as obstructive to her access to the son, though he could have been more flexible in the arrangement.

30.  On this proposed ground of appeal, the mother wishes to adduce the matters or events which occurred either before the trial or after the Judgement was handed down, to show that this court has not given sufficient regard to her fear of the obstructive attitude of the father in her access to the son. These matters or events she proffers to rely on are set out in her 5^th affirmation which broadly include:

(1)  At the conclusion of her access to the son on 13 June 2016, the father came to W Hotel to pick up the son. However, the son did not want to leave and was crying and hugging onto the mother. The father forcefully took the son away from the mother and shouted at the son. The mother then asked why he had to yell at the son. The father responded by saying, “So what?” and then rushed up to chok the mother’s neck with his hand, as a result of which she fell onto the ground. A report was then made to the police and she was sent to hospital for treatment (“W Hotel Incident”).  The mother would wish to rely on this incident to show that the son is close to her and was usually reluctant to leave her at the end of access;

(2)  Various post-trial incidents showing that the father has continued to be unduly obstructive to her access to the son (“Post-trial Incidents”), such as:

(a)  he did not agree to her staying access request for the Easter holiday of 2017 until the mother issued a summons;

(b)  he only agreed to arrange WeChat between the son and the mother every Saturday morning, instead of every Tuesday, Thursday and Saturday;

(c)  he did not agree to let the mother take care of the son or visit him in his home or WeChat with the son when the son was taken ill on 24 June 2017 (when she was supposed to have staying access to the son);

(d)  After the Judgment was handed down on 21 July 2017, the mother was to take the son for holidays out of Hong Kong for holidays from 26 July 2017. However, the son’s identity and travel documents were lost by the domestic helper, but the father did not inform the mother until the very day of 26 July 2017. As a result, the mother was forced to stay in Hong Kong for 4-5 days with the son to make urgent application for replacement of the identity and travel documents without the father’s help;

(e)  Her last access to the son took place on 28 August 2017, and since then, she has lost contact with the son. She did not know his whereabouts, despite repeated and attempted enquiries made to the father’s WeChat and to his solicitors. The father refused to even tell the address of the son in Australia, as a result of which she was not able to make arrangement to go to Australia to see the son pursuant to the access arrangement made in the Judgment.  

31.  Whether this ground of appeal can be successfully established is closely connected to the issue of whether the fresh or further evidence of the mother should be admitted. The issues can be conveniently and sufficiently covered under the following sub-headings.

(i)   The law on admission of fresh/further evidence

32.  Having read the written submission of both parties, I am of the view that the following represent a brief summary of the relevant legal principles on admission of fresh or further evidence in the case of an appeal.

33.  Order 59 rule 10(2) of the Rules of High Court provides that provides that the Court of Appeal shall the power to receive further evidence on question of fact:

“The Court of Appeal shall have power to receive further evidence on question of fact, either by oral examination in court, by affidavit, or by disposition taken before an examiner, but no such further evidence (other than evidence as to matters which have occurred after the date of trial or hearing) shall be admitted except on special grounds.” (emphasis placed by Mr Yim)

34.  It is trite law that the Ladd v Marshall conditions apply to all appeals, and the Court of Appeal adopts a strict approach in applying Ladd v Marshall [1954] 1 WLR 1489 because:

“when a litigant has obtained a judgment in a court of justice…he is by law entitled not to be deprived of that judgment without very solid grounds.” (Brown v Dean [1910] AC 373 at 374 per Lord Loreburn LC)

(See also: Hong Kong Civil Procedures (2018) at §59/10/8 at p1167)

35.  Under Ladd v Marshall (supra), the applying party must satisfy 3 conditions, namely:

(1)  it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial;

(2)  the evidence must be such that, if given, it would probably have an important influence in the result of the case, though it need not be decisive; and

(3)  the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible;

36.  Fresh or further evidence may be adduced on the “otherwise” situation, under which the applying party has to satisfy the court that (See: Hong Kong Civil Procedures (2018) at §59/10/8 at p1168):

(1)  it is one of the exceptional cases where the Ladd v Marshall conditions do not apply, or apply only in modified form; or

(2)  the evidence relates to matters which have occurred after the date of trial or hearing.

(ii)   The W Hotel Incident

37.  The mother explains in her 5^th affirmation that she now brings the W Hotel Incident up in order to “put matters in context with the issues that have now arisen in respect of [her] being completely cut off from any access to the [son]”, and that “there is a close relationship between the [son] and [she] and he is usually reluctant to leave [her], as demonstrated by the said incident.” She believes that the evidence would be relevant to the consideration of the best interest of the son.

38.  It is beyond augment that the W Hotel Incident is a pre-trial incident that has all along been within the knowledge of the mother as at the trial. Yet, she did not adduce such evidence in the trial, but suggests to rely on it, for the first time, in her intended appeal.

39.  Obviously, Mr Yim does not attempt to argue that the W Hotel Incident satisfy the conditions of Ladd v Marshall (supra). If counsel had sought to so argue, I would have no hesitation in rejecting the proposition. What Mr Yim submits for the purpose of this leave to appeal application is that the evidence relating to the W Hotel Incident should be admitted because it falls within the “otherwise” situation, ie one of the exceptional cases where Ladd v Marshall conditions do not apply. He relies on Hong Kong Civil Procedures (2018) at §59/10/12 at p1169 in which the learnt authors say these:

“(3) Appeals involving the welfare of minor children. The court will, however, admit fresh evidence which does not satisfy the Ladd v Marshall conditions in such cases only if the welfare of the minor requires it.”

40.  With respect to Mr Yim, I will reject his submission due to the following reasons:

(1)  In seeking to persuade the court that a pre-trial matter should be admitted as evidence after the trial was concluded and judgment given, the mother is in fact invoking the exercise of the court’s discretion in her favour. However, she has not provided any explanation as to why the evidence was not adduced in the trial to begin with, bearing in mind that “it is the duty of the party to bring forward his whole case at once but not to bring it forward piecemeal as he found out the objections in his way” (Re New York Exchange Ltd (1888) 39 Ch D 415 at 420);

(2)  The mother explains in her 5^th affirmation that she believes the W Hotel Incident would be relevant to the court’s consideration of the best interest of the son. The rhetorical question then to ask is this: why she did not bring forward this piece of evidence in the trial if it is her firm view that the same is relevant to the court’s consideration of the best interest of the son? Again, she has not proffered any explanation. As such, I have to say that this is merely an attempt to introduce pre-trial evidence (which she chose not to reveal) under the disguised argument that it is for the welfare of the son;

(3)  In any event, the close relationship of the mother and the son is noted and recorded in the Judgment at §[77]. I fail to see how the W Hotel Incident would advance her case any further.

(iii)   Post-trial Incidents

41.  In addition to relying on Order 59 rule 10(2) of the Rules of High Court, Mr Yim also refers me to the case of WSW v YKK, CACV 388 of 2007, date of judgment 30/6/2008. The case concerns the ancillary relief application of the parties. The facts show that the only relevant assets as at the trial were the Victoria Centre property and the Xiamen property. The trial judge found that the wife’s contribution to the family was more substantial than that of the husband, and thus awarded the husband the cheaper Xiamen property and the wife the more expensive Victoria Centre property. The husband sought to appeal against the judgment. Yuen JA allowed the husband’s appeal and ordered that both properties be sold and the sale proceeds be shared equally between the parties. In so deciding, Her Ladyship noted that at the trial, the wife said, and the trial judge accepted, that she was merely living temporarily with her middle daughter and son-in-law and that she would prefer to move to Victoria Centre property to live with the youngest daughter when the latter graduated and returned to Hong Kong at end of 2006. However, the latest fact as at the appeal was that the husband and the wife were living at rented accommodation and thus neither of them had an immediate housing need to live in the Victoria Centre property, and that the youngest daughter had become an adult and the wife had no more legal obligation to provide for her. It was under such circumstances that Her Ladyship went on to comment the following at §45 of her judgment:

“45. …I would like to take this opportunity to remind practitioners that where there has been a change in circumstances such as these, the court should be informed about the parties’ up-to-date situation by means of affidavit evidence. This is not “fresh evidence” in Ladd v Marshall sense but evidence of a change in circumstances after trial.” (emphasis placed by Mr Yim)

42.  Mr Yim relies on the above comment of Yuen JA and submits that “change in circumstances regarding children is not in fact ‘fresh evidence’”. However, I think it is a too far-fetched an argument for Mr Yim to make. Properly read, Her Ladyship, in my view, was referring to the continued duty to disclose one’s financial situation including any change of circumstances, which should not be regarded as a Ladd v Marshall situation. I fail to see how this case can assist the mother at all.

43.  On the other hand, although Order 59 rule 10(2) provides that the Court of Appeal can receive evidence relates to matters which have occurred after the date of trial or hearing, it is trite law that this power would be used sparingly having regard to the need for finality in litigation. Yuen JA had the following to say in WSW v YKK (supra) at §32:

“…However, if the evidence relates to matters which have occurred only after the hearing, the court has a discretion to admit such evidence, although the power is used sparingly with due regard to the need for finality in litigation (Hong Kong Civil Procedure 2008, §59/10/15)

44.  I would add that the need for finality in litigation in the case of children of tender age is more imminent for stability in terms of their daily life and education. Here, the son has already been relocated to Australia with the father, his main care-giver, since 1 September 2017. There is no suggestion that he is not settling well there. On the other hand, it is not the proposition of the mother during the trial or in this intended appeal application that she would wish to vary the custody, care and control arrangement of the son (who is in the sole custody and care of the father).[3] In fact, she has not sought to increase the then access arrangement, which was about twice a month over weekend. Under such circumstances, I am of the view that to let her adduce further evidence and re-open her case of objection is not in the best interest of the son. 

45.  On the other hand, the mother alleges that the new evidence would show that the father is non-responsive in telling her the whereabouts of the son and is obstructive in to her access to the son, so that she has no idea if the son is really in Australia and that she has not been able to see him since the end of August 2017. However, the following fact should not be overlooked:

(1)  She had mentioned in her own WeChat messages to the father as early as 26 July 2017 that the son would be going to Australia in coming September; [4]

(2)  the father’s then solicitors had informed her solicitors in writing on 11 August 2017 that he would depart with the son to Australia on 1 September 2017.[5] His solicitors had mentioned the same departure date in their letter to the family court dated 17 August 2017 seeking an earlier approval of the draft removal order;[6]

(3)  The father’s maid had lost the son’s identity and travel documents while travelling on a taxi on 25 July 2017. The father informed the mother of the same on 26 July 2017. He had also through his solicitors (because he was in Australia at the material time) provided timely assistance to her urgent application for a re-entry permit of the son, and indicated that he was prepared to re-schedule his trip by cutting it short to return on 1 August 2017 instead of 4 August 2017; [7]

(4)  she has not taken up the facilitation measures provided to her in the Judgment to ensure her right to access to the son, in that she has not taken any step to apply for a mirror order in Australia;

(5)  she has not made any concrete attempt for access to the son, for example, in February 2018. She tries to explain that is due to the failure of the father to provide the address of the abode and the school name of the son in Australia. But she has to accept that she knows the address of the father’s family house in Sydney, as an international social welfare investigation report was prepared by an Australian social welfare officer for the purpose of the trial. The hard fact is this: the mother has not made any attempt to fly to Australia so that she can see the son. 

46.  In view of the above, I do not form the overall view that the fresh/further evidence show that the father has been obstructive to her access and/or to the extent that she is not allowed to see the son. I hold the further view that such evidence, even if admitted, would have an important influence on the decision of the court in exercising its discretion to allow the removal application of the father in the best interest of the son. There is thus no reasonable prospect of success in this ground of appeal.

Conclusion

47.  Due to the matters set out above, I refuse to grant leave to appeal in favour of the mother.

48.  The parties already indicated in this hearing that they accepted costs should follow the event.

49.  I shall thus make the following order:

(1)  The mother’s application for leave to appeal and to adduce fresh evidence is dismissed;

(2)  The mother do bear the father’s costs of this application to be taxed if not agreed, with certificate for counsel.