JHK v. YK

CAMP 43/2018

[2018] HKCA 542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 43 OF 2018

(ON AN INTENDED APPEAL FROM FCMC NO 7866/2014)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for leave to appeal against the judgment of Judge Melloy [“the Judge”] in FCMC 7866/2014. After a 16-day trial, the Judge in a judgment of 25 November 2016 granted joint custody to the parents with detail provisions for shared care of a child, H (a girl born in March 2009). During school term, from Sunday 1:00 pm to Thursday morning, H is to be in the care of the father. From Thursday after school to Sunday 1:00 pm she is to be in the care of the mother. The judge also made provision for daily telephone access and holiday arrangements.

2.  The judge was very familiar with the case, she having given a ruling on interim shared care on 10 October 2014, a Fact Finding Ruling on 21 August 2015 rejecting the mother’s case of domestic violence and a Choice of School Ruling on 22 January 2015.  As stated in the judgment of 25 November 2016, it should be read together with those earlier rulings, in particular the Fact Finding Ruling.   

3.  In the order of 25 November 2016, the judge revised the existing shared care arrangement allocating more time for H to be in the care of the father than before.  The judge did so because she found that the mother had made a sustained and concerted effort to undermine the father’s relationship with H.

4.  The mother sought leave to appeal and the Judge refused leave on 12 January 2018.  The application was heard on 12 December 2017 although the summons was taken out in December 2016.  

5.  By a summons of 6 April 2018 (time for renewing the application have been extended by the judge on 28 March 2018), the mother applied to this court for leave to appeal.

6.  The Registrar of Civil Appeals gave directions on 30 April 2018 for the lodging of documents, including application bundles. As the mother acted in person, the directions included directions for lodging bundles by the father should the mother default in so doing. 

7.  The father opposed the application and his solicitor belatedly lodged written submission for that purpose on 10 July 2018.  They also lodged the application bundles only on 3 August 2018 after reminders from the Registrar.

8.  The failure to observe the directions of the Registrar by both parties occasioned delay in the processing of this application. 

9.  Pursuant to s 63A(2) of the District Court Ordinance Cap 336, leave to appeal should not be granted unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

10.  The Judge correctly pinpointed the guiding principles in applications of this nature: that the court shall regard the best interests of the children as the first and paramount consideration.  She explained the legal principles at paras 17 to 21 of her judgment.  We cannot discern any errors of law in that regard.  After carefully examining the evidence, she applied these principles and came to the conclusions set out above.

11.  Having read the draft grounds of appeal set out in the mother’s summons of 6 April 2018 and her affirmation on the same date and all the materials placed before us, we are not satisfied that the appeal has any reasonable prospect of success.  Nor do we see any other reasons in the interests of justice for leave to be granted. 

12.  The grounds set out in the summons are the same as those advanced before the judge in the leave application heard on 12 December 2017 (when the mother was represented by counsel).  Though she stated under (f) in the summons that there were other proposed grounds to be finalized, she actually did not lodge any additional grounds afterwards.

13.  Those grounds had been fully considered by the judge in her judgment refusing leave.  We agree with her analysis.  Thus, we shall only comment on them briefly.

14.  The judge was entitled (and indeed duty bound, if she considered doing so to be in the child’s best interest) to change the status quo.  She gave cogent reasons for doing so in her judgment of 25 November 2016, see paragraphs 41 to 45.  It was an exercise of discretion based on her finding that the mother had, despite clear exhortations from the court, misguidedly taken steps repeatedly to undermine the father’s relationship with H.  That finding was amply justified in light of her ill-considered (and ill-advised, insofar as she acted pursuant to advice from her lawyers and other people) campaign against the father discussed at paras 8 to 15 of that judgment. 

15.  In our judgment, the mother should heed the exhortations from the judge at paragraphs 36 and 42 of the judgment. Otherwise, she is, as the judge put it, treading on very thin ice. 

16.  The mother does not begin to make out a reasonable argument for upsetting the findings of fact by the judge in accordance with the well-established approach to appellate intervention on facts as discussed in China Gold Finance Ltd v CIL Holdings Ltd CACV 11/2015, 27 November 2015; ZJW v SY CACV 10/2017, 1 December 2017.  The arguments advanced by her counsel (which she exhibited to her affirmation of 6 April 2018) were wide of the mark in this regard.     

17.  On the departure from the recommendations of the experts, the judge was entitled to do so, see ZJ v XWN [2018] HKCA 436 at [41].  Having read the judgment and the arguments advanced by the mother, we are of the view that the judge gave cogent and adequate reasons for not adopting fully the recommendations of the experts.     

18.  On the materials presented to us, we cannot find any reasonably arguable basis for suggesting that the judge had not treated the mother fairly or had unduly placed her in a disadvantaged position in light of the Fact Finding Ruling. 

19.  For these reasons, we refuse to grant leave to appeal. 

20.  We are of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.      

21.  We also order the mother to pay the costs of the father for this application.  The solicitors for the father submitted a statement of costs asking for $65,684.  Bearing in mind that the materials before us are basically the same as those before the judge, we are of the view that there is room for reduction on the reasonable time spent by solicitor and counsel on the application.  We fixed the costs at $50,000.  The father’s own costs are to be taxed according to Legal Aid Regulations.

22.  Lastly, we wish to add two observations.  First, we have not examined the reason why the leave application at the court below took so long to process.  It may or may not be due to the faults of the parties.  In any event, as it has been said in ZJ v XWN [2018] HKCA 436, such prolongation of the process is not acceptable (particularly in children matters).  We also note that the Family Court has, since the publication of the judgment in ZJ v XWN, adopted the procedure suggested there, to ensure expeditious determination of leave application.  Insofar as time was taken up by procuring approval for legal aid in the leave application, the Director of Legal Aid is invited to give consideration to what had been said in ZJ v XWN with a view to taking steps to streamline the approval process.

23.  Second, like the judge, we are disturbed by the matters recited at paras 8 to 14 of the judgment and the apparent endorsement by the lawyers acing for the mother as to her conducts in those regards, including counsel’s submissions justifying the mother’s apparent breach of undertaking.  We are also disturbed by the manner in which, and the apparently misguided attempt whereby, a case of domestic violence was raised at the 11^th hour in the court below resulting in substantial delay and costs (at public fund since the parties were on legal aid) spent on the Fact Finding preliminary trial which ultimately did not do the mother any good.  As we have not heard from the lawyers, we shall refrain from expressing any comment on their professional conducts. 

24.  But what we would say is this.  Practitioners in the family justice system, be they solicitors, counsel or even expert witnesses, owe a duty to the court to consider matters objectively and professionally, always bearing in mind in children matters the best interest of the child is of paramount consideration.  It is not befitting for a professional to advance an argument or offer an opinion simply because it would tally with what his or her client wants to achieve.  Strategic or forensic considerations should never be allowed to cloud a practitioner’s judgment in the discharge of his or her duty towards the court.  The court depends very much on the integrity and competence of the professional practitioners in the administration of justice in family cases (as in other cases). 

25.  We notice in the court below both parties were on legal aid.  The Director of Legal Aid, in assigning lawyers to family cases, should also bear in mind the ability of the lawyers in the fulfilment of their duties to the court as discussed above.  Likewise, in cases where the court finds serious ground for concern, the judge can refer the case to the Director for investigation and follow-up action. 

26.  We would send a copy of this judgment to the Director of Legal Aid for his general reference.