LM v. SCCM

CACV62/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 62 OF 2013

(ON APPEAL FROM FCMP NO. 210 OF 2012)

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BETWEEN

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and

CACV77/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 77 OF 2013

(ON APPEAL FROM FCMP NO. 210 OF 2012)

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BETWEEN

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J U D G M E N T

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Hon Barma JA (giving the judgment of the Court):

1.  There are before the court two applications, in CACV 62 and 77/2013 respectively, both seeking a stay of the proceedings below (FCMP 210/2012), pending the hearing and determination of the appeals.

2.  The background to the applications can be summarized as follows:-

(1)   The underlying proceedings in FCMP 210/2012 are between LN and SCCM (“the Mother” and “the Father” respectively), who were formerly married, and concern the welfare of their two children, C (a girl aged 13) and W (a boy aged 12).  The proceedings involve applications by the Mother under the Guardianship of Minors Ordinance, seeking sole custody of the children and to make provision for C’s education by sending her to boarding school in the United States.

(2)   The parties were divorced in 2007, by an order of the Subordinate Courts of Singapore.  Each had initially filed their own petitions for divorce – the Father in Singapore, and the Mother in Hong Kong (where she and the children live).  In the event, the Mother withdrew her petition in Hong Kong, and took part in the proceedings in Singapore, in which the courts made a number of orders dealing with matters such as joint custody of the children, access rights for the father, and maintenance.

(3)   In October 2012, the Mother brought the underlying proceedings in the Family Court in Hong Kong.  This was met by an application by the Father to stay the proceedings on the grounds of forum non conveniens, having regard to the extant proceedings in Singapore.  On 13 December 2012, Deputy District Judge Carlson dismissed the Father’s application.  On 22 January 2013, he dismissed the Father’s application for leave to appeal. 

(4)   The Father then applied to the Court of Appeal for leave to appeal, and made an application to Deputy District Judge Carlson for a stay of the proceedings in FCMP 210/2012 pending the determination of the application for leave, and (if relevant) the appeal proper.  On 1 February 2013, Deputy District Judge Carlson adjourned the application for a stay until 15 April 2013, by when it was hoped that the Court of Appeal would have dealt with the leave application.  On 27 March 2013, the Court of Appeal granted leave to appeal on the papers and directed that the appeal be heard on an expedited basis.  The appeal (CACV 62/2013) (“the Jurisdiction Appeal”) has been fixed to be heard on 23 May 2013. 

(5)   On 15 April 2013, the Father renewed his application for a stay of the proceedings pending the resolution of the Jurisdiction Appeal.  However, Deputy District Judge Carlson did not accede to that application, and instead gave directions for the filing of evidence in relation to the Mother’s applications, and directed that such applications be tried before him on 6, 7 and 10 June 2013, when the parties would be called to give oral evidence and be cross-examined.

(6)   It appears that although dates were available (before another judge) for the matter to be dealt with in July 2013, these were passed over by the judge below in favour of the earlier dates for a hearing before himself.

(7)   It is pertinent to note also that since the bringing of the Mother’s applications in October 2012, there have been further proceedings in Singapore.  In November 2012, the Singapore court made an order reiterating the validity and effect of all its previous orders. In January 2013, the Mother’s application for a stay of the Singapore proceedings was dismissed.  An application by the Father for an anti-suit injunction has not, so far as we are aware, yet been determined.  It would also appear from the papers before us that at least one of the orders made by the Hong Kong court has had the effect of contradicting an earlier order of the Singapore court, whether through inadvertence or otherwise.

(8)   At the same time as making the case management directions to which I have referred, Deputy District Judge Carlson granted leave to the Father to appeal against the making of those directions. Acting pursuant to that leave, the Father brought CACV 77/2013 (“the Case Management Appeal”), seeking an order for the stay of the directions, or their setting aside, pending determination of the Jurisdiction Appeal.  At the same time, an application was made by summons in the Case Management Appeal (returnable today before a single judge of this court) seeking a general stay of the underlying proceedings.

(9)   For the Mother, Mr Coleman took the point (in his skeleton argument) that a single judge of this court lacked jurisdiction to deal with the Father’s summons, having regard to section 35(1) of the High Court Ordinance Cap 4, as the relief sought by the summons encompassed the very relief that was sought in the appeal in which it had been issued.  This prompted those acting for the Father to issue a further summons on 6 May 2013, this time in the Jurisdiction Appeal, seeking the identical relief.

3.  In order to avoid any questions arising as to the court’s jurisdiction, the court made arrangements for both applications to be heard by a bench of two judges.  That said, it seems to us that Mr Coleman’s point as to jurisdiction was otherwise well-founded.  On the other hand, it also appears to us that there was strictly no need for leave to appeal to have been sought in respect of the case management directions, and that it would have been open to the Father to have dealt with the matter by issuing the summons in the Jurisdiction Appeal (as he has now done), as the directions sought would undoubtedly be (in terms of section 35(1) of the High Court Ordinance) an “interim order” calculated to “prevent prejudice to the claims of any party pending an appeal” in the context of the Jurisdiction Appeal.  As the parties were both prepared to argue the applications, we granted the necessary abridgment of time in respect of the summons in the Jurisdiction Appeal, and proceeded to hear the applications on their merits.

4.  Mr Joffe, appearing for the Father, submitted that given that the appeals were to be heard on 23 May 2013, just over two weeks from now, it was clearly sensible to defer any further steps being taken in the underlying proceedings until after the appeals were determined, since if this were not done, there was a real risk that time and money would be wasted in preparing for a hearing that might never take place, if the Father were to succeed in the Jurisdiction Appeal.  Further, and more seriously, to allow the trial of the Mother’s applications to go ahead when the outcome of the appeal might still be unknown would give rise to the risk that orders might be made which would be difficult, if not impossible, to undo, and which might moreover be in conflict with orders already made in the Singapore proceedings.  This, he suggested, could not be in anyone’s interests, least of all those of C.

5.  For the Mother, Mr Coleman submitted that the prospects of the Father’s appeals succeeding were slim, and that in effect, the choice was between maintaining the June dates for the Mother’s application regarding C’s schooling and vacating those dates, with the consequence that C’s interests (which he said would involve enabling her to go to boarding school in the United States this September, which she is very keen to do) would be prejudiced.

6.  With respect to Mr Coleman, we cannot agree with his submissions. The fact that this court has given leave to appeal in relation to the jurisdiction issue clearly suggests that the Jurisdiction Appeal is well arguable.  The direction that it should be heard on an expedited basis (and the fixing of an early date for its hearing) reflects the desirability of having the matter resolved promptly – a course which would minimize the risk of conflicting decisions between the courts here and in Singapore (a risk which would be a real one if the hearing of the Mother’s applications were to take place when the outcome of the jurisdiction appeal were still unknown).  To allow the Mother’s application to go ahead would lead to a situation in which decisions might be made here which, if acted upon, would be difficult, if not impossible, to undo.  For example, if it were held that C should be transferred to a boarding school in the United States, and steps were taken to do this (say by withdrawing her from her present school), but the Jurisdiction Appeal were then allowed, there could be no guarantee that C would be readmitted to her present school in Hong Kong to enable her to continue her studies here, while her educational future was considered and dealt with in Singapore.

7.  On the other hand, if the Court hearing the Jurisdiction Appeal is able to dispose of the matter promptly, as no doubt it will endeavour to do, it may still prove possible for the Mother’s applications to be made in Hong Kong soon afterwards if the proceedings are not stayed, with a view to C attending school in the United States this autumn.  Even if that is not possible, given her age, there will, we would hope, be opportunities for her to do so at a slightly later stage.

8.  It is therefore clear to us that the substantive hearing of the Mother’s applications should not take place before the outcome of the Jurisdiction Appeal is known, and we are satisfied that Deputy District Judge Carlson was clearly wrong to give directions that would result in a real risk of this happening.

9.  Although Mr Coleman suggested that there was no real prejudice in requiring the Father to file his evidence in respect of the Mother’s applications now, it seems to us that adhering to the timetable laid down would involve the parties in effort and expense which might turn out to be unnecessary.  If the appeal on jurisdiction is allowed, it is not clear whether or not the Mother would make the application relating to C’s education in Singapore, and if she did, when it could be heard. 

10.  In the circumstances, it seems to us that the appropriate course now would be to stay the proceedings below pending the determination of the appeal in CACV 62/2013, and we so order.  So far as costs are concerned, these are to be paid by the Respondent to the Appellant, to be taxed if not agreed.