JRMW v. NAV

CAMP 131/2018

[2018] HKCA 883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 131 OF 2018

(ON AN INTENDED APPEAL FROM FCMC NO. 8504 OF 2017)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Leave to appeal

1.   In this high conflict family case which has been presided by H H Judge I Wong over the past five years, the Father (petitioner) on 17 July 2017 applied for permanent relocation of the children of the family from Hong Kong to Denmark (‘Relocation Application’).  The Judge refused the application and also refused to grant leave to appeal.  The Father renews the application for leave to appeal before us.  We will consider the application on paper.

2)  Background

2.1   On 23 February 2017, the Judge granted sole custody, care and control of the two children of the family, namely two boys to the Father.  Email access was granted to the Mother.  This unusual form of access to the Mother was due to the fact that the Mother had unfortunately physically mistreated one of the children and was convicted for her conduct.

2.2   On 20 November 2017, a decree nisi for divorce between the parties was granted.

2.3   The children have all along been legally represented by the Official Solicitor.

2.4   On 16 April 2018, the Judge dismissed the Father’s Relocation Application with costs against him.

2.5   The Father (then legally represented) sought leave to appeal against the judgment below.  The Judge refused the application.  The Father now renews the application before us.

2.6   The Father is Danish and the Mother, Australian.  They have been living in Hong Kong in the past ten years after the Father took up employment here.  The Father is a pilot with a local airline.  The Mother is a face painter and children entertainer.  The children are in their primary school years.  V is an Indonesian domestic helper who has been working in this family both before and after the parties’ breakdown of marriage.  

2.7   The basis of the Father’s Relocation Application is that he was previously hired as a passenger airplane pilot with his employer but due to the retirement of the Boeing 747 passenger fleet, he is now asked by his employer to fly cargo planes which was never his intention to do so.  He intends to move back to Denmark which is his home country because he has been offered a job with a new airline in Denmark which will give him the prospect of being retrained as a Boeing 787 passenger plane pilot.  The arrangement for taking care of the children will remain the same as in Hong Kong as it will be in Denmark.  The children will be taken care of by V while the Father is flying.  The Father alleged that V is no longer just a domestic helper but has become his partner and she has agreed to emigrate to Denmark together with him and the children as a family unit.

3)  The Judge’s decision

3.1.   The Judge heard evidence and the hearing before the Judge spreaded over six days.  In a careful and detailed judgment the Judge considered the application under the following headings :

(1) Is the Father’s application genuine and not motivated by selfish desire to exclude the Mother from the children’s life?

(2) Is the Father’s application realistic, founded on practical proposals well researched and investigated?

(3) Is the Mother’s opposition genuine, or driven by ulterior motive?

(4) What is the extent of detriment to the Mother and her future relationship with the children if the application is granted?

(5) To what extent would that detriment be offset by extension of the children’s relationships with the paternal family and homeland in Denmark?

(6) What is the impact on the Father of a refusal of his proposal?

(7) Overall what would be in the best interest of the children?

3.2   The Judge accepted the Father’s evidence on his future career plan and the Relocation Application is genuine and not an attempt to exclude the Mother from the children’s lives. The Judge also found the Mother’s opposition is mainly motivated by her fear of losing any hope of re‑establishing her ties with the children if they are allowed to go to Denmark.  On the issue of detriment to the Mother, the Judge found that there has been some progress in the mending of the mother‑and‑child relationship and his worry is that in the absence of any monitoring mechanism if the children are moved back to Denmark what little progress has been gained would be lost forever.  The Judge also found that the extension of the children’s relationship with the paternal family and homeland can to some extent offset the detriment to the mother‑children relationship.  On the impact on the Father if the application is refused, the Judge held that the Father may not be devastated though he would certainly be unhappy and miserable.  The Judge held that the Father will still be able to fly as cargo plane pilot and the evidence shows that he is still able to take care of the children. 

3.3   Ultimately the Judge decided against the Father on the ground that it is not in the best interest of the children to be relocated to Denmark.  This is because the Father’s proposal on relocation is based on the premise that there is now a husband and wife relationship between him and V.  The Judge found this to be a fake relationship.  It was fabricated for convenience so that V may be able to join the family in Denmark.  The Judge noted that the Father admitted in evidence that he did not tell the children of the relationship. 

3.4   The Social Welfare Worker who was informed of this relationship by the Father had prepared a report supporting the Father’s Relocation Application.  The Judge noted that the social worker agreed that if the alleged relationship is not genuine, she would have reservation in her recommendation and would need to reconsider this case again.

3.5   The Official Solicitor who also initially supported the Relocation Application, changed his stand when he heard evidence from the Father and V of their alleged relationship.  The Official Solicitor’s stand was that ‘it is not in the best interest of the children to proceed with the relocation plan right now.’  The Judge held that however low the legal requirement for relocation may be for the Father who is returning to his home country, it cannot be set on an illusory foundation.

4)  The Father’s grounds of appeal

4.1.   The Father set out 13 grounds of appeal against the Judge’s judgment which the Judge had addressed in his decision on refusing leave.  Mr Clough for the Father submitted that there are unusual aspects to this case that make it right that the Court of Appeal should have the opportunity of reviewing the refusal of relocation.  He referred specifically to two matters contained in the Written Statement for Leave, namely

‘The Children

i  Throughout the inquiry process the Children maintained their very strong views that they wished to relocate with their Father to Denmark.  This never wavered and was a constant.

ii  The Official Solicitor was appointed to represent the Children.  The Official Solicitor first concluded that the relocation was in the best interests.  The Children expressed ‘their strong wish to move to Denmark with their father’ explaining ‘their best friends being there, pollution‑free, better living environment and the attractive school campus’ and ‘found that the Children have all along been well looked after by their father.’  When the Official Solicitor interviewed the Children again he reported that the boys’ views ‘are clear and firm’.  ‘They have strong wish to relocate to Denmark and are really looking forward to the implementation of the relocation plan.  They have given sound and genuine reasons to justify their wishes.  There is no evidence to suggest that the boys have been coached or indoctrinated to give their answers.’

iii  The Children’s views have not changed but the Official Solicitor, who is appointed to represent them, now advocated that the Father’s application should be refused and goes further by advocating that the Father’s application for leave to appeal should be refused.

Care arrangements

i  V now has a visa that will permit her to go with the Father and care for the Children.  Her true relationship with the Father was a matter of concern to the learned Judge at the hearing.  His concerns may now be put to rest. 

ii  The Court did not have details of the support system in Denmark.  That evidence is now available.

iii  In these circumstances there is no evidence that would support the finding that there is a danger that the Children will be left to fend for themselves.’

4.2   Mr Clough submitted that application will be made in relation to the new evidence that will be lodged in the appeal.

5)  Our view

5.1   Leave to appeal will be granted if the proposed appeal is reasonably arguable or if it is in the interest of justice to grant leave.  On an appeal from an exercise of discretion (which is the nature of the decision below), the Court of Appeal is not to exercise the discretion afresh but will only do so if the discretion is wrongly exercised when, for example, the Judge had erred in principle, taking irrelevant factors into account, ignoring relevant factors or where the decision is plainly wrong which is no different from the requirement that the discretion has been wrongly exercised.

5.2   We will refuse to grant leave because it has not been shown that it is reasonably arguable that the discretion was wrongly exercised.  Nor has it been shown that leave should be granted in the interest of justice. 

5.3   The fact that V has now been granted a Schengen Visa valid to 31 May 2020 which entitled her multi‑entry to and stay in Denmark for 90 days in any 180‑day period and the Danish Immigration Service accepted that she is regarded as a family member do not help to resolve the problem found by the Judge, namely, the Father’s proposal on how in the children will be looked after in Denmark is based on a false case that he and V are now in a husband and wife relationship.  The Judge was asked to consider the Father’s case as presented to him by the Father.  If the fundamental basis of the Father’s application falls apart, it does not assist him to argue now that it does not really matter what is the relationship between him and V so long as there is someone to look after the children.  This is because the Judge was not asked to consider the application on the basis that V will move to Denmark and continue her role simply as a domestic worker.  Clearly there will be different considerations as to whether the children are to be looked after by a ‘step mother’ or by a domestic helper.  This must be apparent to the Father when he put forward the false case before the Judge.

5.4   The Judge clearly had considered the wish of the children, the favourable Social Investigation Report and the initial favourable view of the Official Solicitor but nonetheless concluded that it was not in the best interest of the children for them to be relocated to Denmark.  We cannot see how the Judge can be faulted.  The way forward for the Father is, as suggested by the Judge, to lodge a new application based on a proper proposal.

5.5   Accordingly, the appeal is refused with costs nisi to the Mother.

5.6   We are of the view that the application is totally without merit.  We will, pursuant to Order 59, rule 2A(8) of the Rules of the High Court, further order that the Father is not allowed to apply for a hearing to reconsider his application.