HMC v. CWY

[2023] HKFC18

FCMC 3129 / 2021

(formerly FCMC 3481/2020)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 3129 OF 2021

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J U D G M E N T

(Application for Leave to Appeal)

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1.  I shall refer to the petitioner Father and the respondent Mother as P and R respectively.

2.  The parties were married in 2017. Both are dentists. There is one child of the family, a boy, born in 2017. The previous proceedings with reference to the marriage or to the child include: -

(a)  Wardship proceedings in HCMP No.501 of 2020 commenced by the petitioner Father. By the order made by Queeny Au Yeung J on 2 June 2020, the child was removed as a ward of court;

(b)  Divorce proceedings in FCMC 3514 of 2020 commenced by the respondent Mother. By the order made by HHJ K K Pang on 7 August 2020, leave was given to R to withdraw those proceedings with costs;

(c)  Divorce proceedings in FCMC 3481 of 2020 commenced by the petitioner Father. By the order made by HHJ K K Pang on 19 March 2021, leave was granted to P to file the present divorce proceedings on 1 year separation.

3.  By a summons dated 12 June 2020, P applied for the interim care and control of the child. A 1 day CDR hearing was taken place before Deputy District Judge T Kwan (as she then was) on 27 November 2020. It was followed by a half day 2^nd CDR hearing, another half day 3^rd CDR hearing and another half day 4^th CDR hearing before the learned judge on 8, 14 and 21 December 2020 respectively. By the consent order made by Deputy District Judge T Kwan on 21 December 2020, it was ordered that the parties do have joint custody of the child, care control be granted to R, with defined access including generous day and stay access during school term time and equal share of long holidays to P. The parties filed a consent summons on 6 May 2021, seeking an order for the full and final settlement of the ancillary relief matter.

4.  By the summons filed on 23 December 2021, P applied for an order that: -

(1)  The order dated 21 December 2020 be varied to the effect that the care and control of the child be granted to P with reasonable (including supervised) access to R;

(2)  Social investigation report be called for;

(3)  Pending the final determination of the summons, the interim care and control of the child be granted to P with supervised access to R;

(4)  Non-molestation order;

(5)  Penal notice;

(6)  costs

5.  In his supporting Affirmation filed on 23 December 2021, P affirmed inter alia that when he bathed the child, he found bruises on his left hip and the child told him that R flapped his hip in November 2021 and strongly hit the child on his left hip on or around 16 December 2021. P made a police report. R denied P’s allegations. The Multi-Disciplinary Case Conference (MDCC) was conducted on 6 January 2022. The panel of experts found that neither child abuses nor negligence of care were established. Pursuant to the panel’s advice, the arrangements under the consent order dated 21 December 2020 remained in place. No action was taken by the police against R.

6.  By the summons filed on 31 January 2022, R applied for an order that: -

(1)  The order dated 21 December 2020 be varied to the effect that the access to the child between 2 February 2022 and 18 February 2022 be suspended

(2)  P do have telephone call or video call to the child between 7 p.m. to 7:30 p.m. on every Tuesday, Thursday and Saturday in the period between 2 February 2022 and 18 February 2022;

(3)  Social investigation report be called for;

(4)  Non-molestation order;

(5)  Penal notice;

(6)  costs

7.  In her supporting affirmation, R affirmed that the child told her that he fell and hurt his left hip when he played football and P told the child to lie that R hit his hip and the child was sorry that he lied, and further that on or about 24 January 2022, the child said to R that P spilled hot water over his right palm intentionally and asked the child to tell the doctor and the police that it was R’s elder sister that spilled hot water over his palm. There were blisters on the child’s palm. R took the child to hospital on 25 January 2022. R affirmed that the child told the nurse at the Triage that P had poured hot water on his right palm intentionally and threatened him by putting a dumbbell on his right wrist to hurt him. R made a police report. It then transpired that P had made a complaint against R’s sister for spilling hot water on the child intentionally.

8.  By the order made by HHJ K K Pang on 31 January 2022, it was order that: -

(1)  The hearing of P’s summons filed on 23 December 2021 and R’s summons filed on 31 January 2022 be adjourned to 11 April 2022;

(2)  The order dated 21 December 2020 for access be suspended;

(3)  There be daily video access from 7 p.m. to 7:30 p.m. and day access at the social welfare officer’s office from 10 a.m. to 12 p.m. on every Saturday;

(4)  Updated social investigation report be called for;

(5)  Leave to the parties to adduce single joint psychological expert report;

(6)  Parties do attempt mediation;

(7)  Costs reserved.

9.  The parties were unable to reach an agreement on the appointment of the single joint psychologist. Leave was given to the parties to adduce their respective psychological expert reports and the filing and service of a joint statement of the experts.

10.  P had been under police investigation for the offences of child abuses and misleading police officer since about March 2022.

11.  Since the Judiciary has decided that the general adjournment period starts from 7 March to 11 April 2022, the hearing dated 11 April 2022 was adjourned to 22 June 2022.

12.  Another MDCC was conducted on 28 April 2022. The panel of experts found that neither child abuses nor negligence of care were established.

13.  In the updated report dated 8 June 2022, the social welfare officer reported that by and large, the then existing access arrangement went smoothly. Despite that it was noted that R had reservation about stay access, the social welfare officer suggested the following: -

(i)  1 day access every week;

(ii)  Alternate long weekend stay access from Friday after school to Monday morning;

(iii)  Father’s Day access;

(iv)  Equal share of long school holidays.

14.  By the order made by HHJ K K Pang on 22 June 2022, it was ordered inter alia that: -

(1)  There be leave to P to withdraw his summons filed on 23 December 2021;

(2)  There be leave to R to withdraw the paragraphs 4 and 5 of her summons filed on 31 January 2022;

(3)  CDR hearing be fixed on 5 December 2022 with 2 hr reserved;

(4)  Updated social welfare report be called for;

(5)  The order dated 31 January 2022 for access be continued until further order of the court;

(6)  The parties do make arrangements for play therapy for the child.

15.  The parties were unable to reach an agreement on the appointment of the single joint play therapist. By the order made by HHJ K K Pang on 6 October 2022, Ms Au Yat Nam was appointed by the court pursuant to Order 38 r.4A.

16.  By a letter dated 15 August 2022 sent by the police to the legal representative of P, it was said that police investigation had been concluded and P was released unconditionally on 6 August 2022. By a summons filed on 26 August 2022, P applied for an order that the order dated 31 January 2022 for access be varied in accordance with the social welfare officer’s suggestions set out in the report dated 8 June 2022, pending the final determination of the paragraphs 1 and 2 of R’s summons filed on 31 January 2022, and costs.

17.  By the order made by HHJ K K Pang on 19 September 2022, it was order inter alia that, subject to further order of the court: -

(1)  The hearing of P’s summons filed on 26 August 2022 be adjourned to 5 December 2022 for CDR hearing;

(2)  Updated social investigation report be called for;

(3)  Subject to further order of the court, the order dated 31 January 2022 for access be varied as follows:

a.  Day access at the social welfare officer’s office on every Saturday be cancelled;

b.  Daily video access from 7 p.m. to 7:30 p.m. be continued;

c.  Day access on every Wednesday from 2:30 p.m. to 6 p.m. and every Sunday from 11 a.m. to 6 p.m.;

d.  Stay access from 29 to 30 October 2022 and from 12 to 13 November 2022 from 6 p.m. on Saturday to 6 p.m. on Sunday;

e.  Picking up and returning at the main lobby of the child’s residence.

18.  By the summons filed on 6 September 2022 and returnable on 7 November 2022, R applied for a variation of the terms relating to the sale of the property described in the recital G of the consent summons filed on 6 May 2021.

19.  By the order made by HHJ K K Pang on 7 November 2022, it was ordered inter alia that: -

(1)  R’s summons filed on 6 September 2022 be set down for trial on 27 July 2023, with 1 day reserved;

(2)  The paragraphs 1 and 2 of R’s summons dated 31 January 2022 and P’s summons filed on 26 August 2022 be set down for trial commencing on 1 August 2023, with 2, 3 and 4 August 2023 reserved;

(3)  The CDR hearing fixed on 5 December 2022 be vacated;

(4)  Updated social welfare report and respective Clinical psychologist reports from each party on access be called for.

20.  By a summons filed on 21 November 2022, P applied for leave to appeal against the order dated 7 November 2022 for the following orders and reliefs: -

(1)  The order dated 7 November 2022 be set aside;

(2)  An urgent hearing for substantive argument of P’s summons filed on 26 August 2022 be fixed on an early date, with 2 hours reserved;

(3)  An updated social investigation report and updated clinical psychologist report be called for and filed at least 7 days before the substantive hearing of the summons filed on 26
August 2022;

(4)  Costs.

21.  The Grounds of appeal upon which P relies are set out in the draft Notice of Appeal that I do not intend to regurgitate here. For the purpose of the present application, I would summarise the grounds of appeal as follows: -

(1)  By the order dated 7 November 2022, the CDR hearing dated 5 December 2022 was vacated and P’s summons filed on 26 August 2022 was set down for trial commencing on 1 August 2023. The above order amounts to a de facto dismissal of P’s summons filed on 26 August 2022 (Ground 1);

(2)  The hearing dated 7 November 2022 was scheduled for the call over hearing of R’s summons filed on 6 September 2022, with 15 minutes reserved. Without prior warning to the parties about the court’s intention to deal with the children matter at the hearing dated 7 November 2022, the parties’ legal team was not given full and proper opportunity to prepare and to address the court (Ground 2).

(3)  Additional arrangements for interim stay access are needed so that the child’s adjustment to the resumption of stay access could be properly considered by the social welfare officer and the clinical psychologists in the preparation of their updated reports (Ground 3).

(4)  It is in the best interest of the child to resume stay access here and now (Ground 4).

(5)  The learned judge has failed to give due consideration of the recommendations set out in the social investigation report dated 8 June 2022 (Ground 5).

22.  I do not accept the submission that order dated 7 November 2022 amounts to a de facto dismissal of P’s summons filed on 26 August 2022. The question of P’s access is still very much a live issue that needs the court’s adjudication. This is a high conflict case on children matter. After having thoroughly reviewed the background of the case, I have come to the view that there is little hope that the parties will be able to reach an agreement on the question of access at the CDR hearing. In the circumstance, I have come to the decision that it will be in the best interest of the child to have the matter set down for trial as soon as possible. I take the view that the order dated 7 November 2022 is a square case management order. In the premises, I further take the view that P’s Ground (1) of appeal does not have a reasonable prospect of success.

23.  P and his current legal team have been participating in these proceedings since the very beginning. They should be thoroughly familiar with the background of these proceedings and hence a fortiori I take the view that they were well equipped to deal with the case management matter at the hearing dated 7 November 2022. Time was given to the parties’ legal representatives to present their respective cases at the hearing dated 7 November 2022. In the premises, I further take the view that P’s Ground (2) of appeal does not have a reasonable prospect of success.

24.  I deal with Grounds (3), (4) and (5) of appeal together. My view is as follows: - (a) The provisions for stay access including alternate long weekend stay and equal share of long school holidays as suggested in the social investigation report dated 8 June 2022 is extensive in nature. R vehemently opposed to any stay access. In the circumstance, I take the view that the question of whether the court should make an order for stay access in accordance with the social welfare officer’s suggestion dated 8 June 2022 is a matter for substantive trial; (b) In view of the incidents of suspected child abuses and/or negligence of care dated November/December 2021 and January 2022, despite the findings of MDCC respectively made on 6 January 2022 and 28 April 2022 and the police’s decision to release P unconditionally on 6 August 2022, I take the view that there is a lurking doubt that needs to be resolved by substantive trial on whether there is any harm that the child has suffered or is at risk of suffering in the care of P and/or R; (c) By the order dated 19 September 2022, P do have daily video access, day access on every Wednesday from 2:30 p.m. to 6 p.m. and every Sunday from 11 a.m. to 6 p.m. By the order dated 7 November 2022, the order dated 19 September 2022 for access do continue subject to further order of the court. I take the view that with the order dated 19 September 2022 for access, P is able to maintain the father/child relationship pending the trial commencing on 1 August 2023. It is also worthy of noting that by the order date 19 September 2022, 2 ad hoc stay access were arranged to take place in October 2022 and November 2022 respectively so that the experts and the social welfare officer could have the opportunity of seeing the child’s adjustment to stay access. By reason of matters aforesaid, I take the view that P’s Grounds (3), (4) and (5) of appeal do not have a reasonable prospect of success.

25.  Section 63A (2) of the District Court Ordinance 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. There is no reasonable prospect of success in any of the said grounds of appeal. Nor is there any other reason in the interests of justice that the appeal should be heard. Accordingly, it is ordered that P’s summons dated 21 November 2022 for leave to appeal be dismissed.

26.  P is unsuccessful in the present application. Currently, I see no reason why costs should not follow the event. It is ordered nisi that P do pay R’s costs of the present application, to be taxed if not agreed. The above costs order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the order.