NPYJ v. SMRC

FCMC 9098/2018

[2020] HKFC 167

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9098 OF 2018

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DECISION

(Leave to Appeal)

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Introduction

1.  The respondent (“the husband”) filed a summons for leave to appeal on 8 July 2020 against my order dated 26 June 2020. 

2.  The husband’s summons will be considered in accordance with the new arrangement on application for leave to appeal in the Family Court dated 13 August 2018. The husband filed an affirmation of service on 22 July 2020. The husband and the wife filed their respective written submissions on 8 July 2020 and 22 July 2020.

Background

3.  On 4 July 2019, the husband and wife settled in the custody trial regarding their two daughters before Deputy District Judge A. N. Tse Ching (as she then was). Joint custody was granted to the wife and husband, care and control was granted to the wife and reasonable access to the husband. Reasonable access was subject to review with a progress report ordered. The learned judge fixed a “second review hearing” on 23 September 2019 (“the consent custody order”).

4.  The social investigation officer submitted the progress report on 10 July 2019 (“the progress report”). Apparently, access was not smooth since the consent custody order because the husband had only one session of day access with the elder daughter on 8 July 2019 with the accompany of the social  investigation officer. It had only lasted less than 3 hours. The younger daughter refused the husband’s access.

5.  For this reason, the husband filed a summons on 28 November 2019 for defined access of both children. An updated social investigation report (“the updated report”) was called for by the learned judge. The social investigation officer submitted the updated report dated 6 February 2020  that a [new] progress report on access be commissioned after 6 months of this report.

6.  On 13 May 2020, the husband filed a summons for (i) variation of care and control of both daughters to himself and (ii) relocation of both daughters to the United Kingdom . In the order dated 18 May 2020, the learned judge ordered both parties to file affirmations and to call for another updated social investigation report (“the 2^nd updated report”) for both the application on variation of care and control as well as relocation. The next hearing was fixed on 18 November 2020.

Order dated 26 June 2020

7.  Prior to the hearing on 18 November 2020, the husband filed another summons on 4 June 2020 for interim defined access of both daughters. This summons was heard by me on 26 June 2020. I directed the social investigation officer to include the said application in his 2^nd updated report and by doing this, I adjourned the said summons to 18 November 2020. The husband appealed against my order on adjournment.

Applicable legal principles

8.  Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336.

9.  Reasonable prospect of success connotes the prospect of succeeding in the intended appeal must be reasonable and more than fanciful, without having to be probable.  An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains a discretion as to whether to grant leave, though the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court in exercising its discretion. (See commentary of Hong Kong Civil Procedure 2020, §59/2A/4)

Leave to Appeal

10.  The husband submitted I was erred

(i)  by adjourning his application for interim access to 18^th November 2020;

(ii)  by failing to consider what is in the best interest of the children;

(iii)  by breaching and infringing and violating both children’s rights and the husband’s rights under the Hong Kong Bill of Rights as enshrined in the Hong Kong Bill of Rights Ordinance (Cap 383 of the Laws of Hong Kong) and the United Nations Convention on the Rights of a Child;

(iv)  failing to consider the clear terms of the consent order dated 4 July 2019;

(v)  assuming and concluding (wrongly) that the husband’s access to the children is supervised when this flies in the face of the consent order dated 4^th July 2019;

(vi)  depriving the children their right to (i) celebrate Easter and Christmas in England with the husband and his parents and (ii) attend church with the husband and his parents, each and all of whom are Christians and (iii) depriving the children their right to see their paternal grandparents.

(vii)  A fortiori, the direct effect of my decision is to further bolster, entrench and support the wife’s campaign of child abuse, alienation, damage and harm to the children; and

(viii)  the husband reserves the right to file supplemental grounds of appeal generally and/or pursuant to Ladd v. Marshall.

11.  This is my case management directions to adjourn the matter on interim access of both daughters to 18 November 2020.

12.  From what I have learned from the progress report and the updated report, the husband was unable to have smooth access with both daughters. The elder daughter was only willing to have a one-time day access with the husband in presence of the social investigation officer for less than 3 hours. The younger daughter refused to see the husband at all. Bearing in mind the negative feelings of both daughters towards the husband, without further input and recommendation by the social investigation officer, it would not be in the best interest of the children to order interim access at the date of hearing.

13.  The husband’s ground of appeal on the bill of rights of the children and himself is too far fetch.

14.  Not to mention whether the husband have a good case in seeking an order for defined access or relocation, in the best interest of both children, the husband should put access on hold at the moment pending further investigation of the social investigation officer. In fact, the social investigation officer himself has on his own initiative to recommend a further report which I agree.

15.  Lastly, the learned judge has already ordered the 2^nd updated report for (i) variation of care and control; and (ii) relocation, to save time and costs, I see fit to direct the social investigation officer to investigate and give recommendation on interim access in the same report. By then, the Court is able to see the current development and further recommendation on access of the husband with both daughters.

16.  For this reason, I adjourned the said summons to 18 November 2020 pending the 2^nd updated report.

17.  The husband’s appeal has no reasonable prospect of success in the appeal. I refuse to exercise my discretion to grant him leave to appeal. I also failed to see there are some other reasons in the interest of justice why the appeal should be heard.

18.  I see nothing shall depart from costs follow the event. I shall adopt summary assessment on costs. Both parties acted in person, for the purpose of summary assessment of the wife’s costs of and incidental to the husband’s summons. The wife shall lodge and serve her statement of costs (see Appendix A of PD 14.3) on or before 31 August 2020 and the husband shall lodge and serve his statement of objection within 7 days thereafter.

Conclusion

19.  With the foregoing reasons, the husband’s application for leave to appeal be refused.  

20.  I make the following orders:

(i)  The husband’s (the respondent’s) summons filed on 8 July 2020 be dismissed.

(ii)  The husband do pay the costs of this summons to the wife to be summarily assessed upon the wife to lodge and serve her statement on costs by 31 August 2020 and the husband to lodge and serve his opposition on the wife’s statement on costs within 7 days thereafter.