JTMW v. NAV

FCMC 8504/2017

[2021] HKFC 65

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8504 OF 2017

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J U D G M E N T

( Leave to Appeal )

( Paper Disposal )

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1.  By a judgment handed down on 3 December 2020,[1] leave was granted for the petitioner father to relocate the two children of the family, both boys, to Denmark, his home-country.  This was a decision made after a 5-day trial.  I shall call this judgment “the Relocation Judgment”. 

2.  Dissatisfied with the outcome, the respondent mother applied for leave to appeal on 31 December 2020.

3.  In this Ruling, I shall continue to refer to the petitioner and the respondent as “the father” and “the mother”.  I shall also adopt the same abbreviations and nomenclatures used in the Relocation Judgment.

4.  As I have already set out the parties’ case and the finding of facts in the Relocation Judgment, I do not propose to repeat them here.  Reference to the relevant parts of the Relocation Judgment will be made as and when necessary. 

The Legal Principles

5.  The relevant test governing applications for leave to appeal from the District Court is provided in section 63A(2) of the District Court Ordinance (Cap 336) (“DCO”):

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) The appeal has a reasonable prospect of success; or

(b) There is some other reason in the interests of justice why the appeal should be heard.” [emphasis added]

6.  The Court of Appeal discussed the application of s 63A(2) of the DCO in Sunny Tadjudin v Bank of America, National Association, HCMP No 691 of 2012, unreported, 29 June 2012 at [9]:

“9. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 para 17). Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion (Ho Yuen Ki Winnie & Ors v Ho Hung Sun Stanley & Anr. HCA 391/2006, 25 May 2009, A Cheung J para 3; and HCMP 1009/2009, 24 August 2009, para 22).”

7.  Recently, the Court of Appeal in ZJ v XWN [2018] HKCA 436, CAMP 67/2018, (date of judgment: 25 July 2018) stated, at [64], that application for leave to appeal should be a filtering process and should be conducted summarily and proportionately.

The Father’s Submissions

8.  The father’s original response was an 8-page submissions which was longer than that allowed under the “New Arrangement for Application for Leave to Appeal in the Family Court”.   Since the mother is acting in person and in view of the animosity of the parties, any impression or feeling that she has been unfairly prejudiced or disadvantaged should be avoided, I therefore directed the father to adhere to the requirement by re-lodging a 5-page submissions.

9.  As for the Official Solicitor, the court was informed on 18 February 2021 that no submissions would be made on behalf of the boys.

The Mother’s Intended Grounds of Appeal

10.  I now turn to the mother’s intended Grounds of Appeal.  Whilst I shall deal with the grounds below, I must say, by way of an overview, that many of the mother’s submissions made in support of this application are in fact a repeat of those she already made at trial.  She tries to repeat these submissions to argue that I erred in some primary finding of facts or that I wrongly exercised the discretion to allow the boys to leave, or both. I was of course well aware of these submissions when I considered whether to allow the boys to leave.   It has been reiterated by higher courts that it is not helpful if litigants merely repeat their submissions already advanced and considered at trial; it is not the role of an appellate court to reconsider the submissions.   On the role of an appellate court, Hon Lam VP said the following in China Gold Finance Limited v CIL Holdings Limited & Ors, CACV 11/2015 (unreported, 27 November 2015),

11.  It is well settled that in respect of findings of fact, this court can only intervene when we are satisfied that the findings by the primary judge is plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 is often cited and applied in this court.

12.   Regrettably, there are still cases coming before us in which counsel (including experienced and senior counsel) apparently failed to have regard to the proper role of the Court of Appeal in an appeal of this nature.  Thus, from time to time, we can find judgments from this court reiterating the fundamental principles in this respect: Chinachem Charitable Foundation Ltd v Chan Chun Chuen CACV 101 of 2010, 14 February 2011 para 26; Welltus Ltd v Fornton Knitting Co Ltd [2013] 5 HKC 106; Bank of China (Hong Kong) Ltd v Tsang Sheung Bun [2013] 5 HKLRD 62; Pang Ketian Sally v Tam Yuk Hung Annie CACV 147 of 2013, 25 April 2014; To Pui Kui v Ng Kwok Piu CACV 281 of 2012, 21 August 2014; Ageas Insurance Co Ltd v Lam Hau Wah Inneo CACV 65 of 2014, 9 January 2015 are some recent examples.

13.   Mr Lam also referred us to the recent judgment of the United Kingdom Supreme Court on the same topic: Carlyle v Royal Bank of Scotland [2015] UKSC 13 in which references were made to McGraddie v McGraddie [2014] UKSC 12; Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 and the judgment of the Privy Council in Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21.

14.  These authorities explained the limits of an appellate court in reversing the findings of fact of the primary judge.  We used the expression “primary judge” because it emphasizes the primary role of the first instance judge in the assessment of evidence and making of relevant findings of fact.  In our judicial system, the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge.  It is thus, as we said above, a misuse of the appellate process to place before this court submissions which, in substance, are (or should be) submissions advanced by way of closing submissions at the trial after the judge has heard all the evidence.

15.  In an appeal, the court of appeal should focus on the question whether the primary judge has fallen in palpable errors which could give rise to grounds for intervention by the appellate court.  As explained in the cases, it is not germane that judges in this court may reach a different conclusion from that of the judge.  There are many areas, particularly those in relation to findings of fact, where judges can reasonably reach different conclusions from each other. That would not be a ground for intervention.

16.   Thus, in an appeal, it is not helpful if counsel and litigant (acted in person) only repeat submissions already advanced and considered by the primary judge at the trial. The starting point should be the judgment of the primary judge and the identification of palpable errors (which must be errors of such nature which warrants intervention from this court) in the judgment.  The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category. 

11.  On appeals against the exercise of discretion, The Hong Kong Civil Procedure (2021) has the following discussion at §59/0/54,

Appeals against exercise of discretion—There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the judge to make, unless it be shown that he exercised his discretion under a mistake of law ( Evans v. Bartlam [1937] A.C. 473 ) or in disregard of principle ( Young v. Thomas [1892] 2 Ch. 134 ) or under a misapprehension as to the facts (ibid.); or that he took into account irrelevant matters ( Egerton v. Jones [1939] 3 All E.R. 889 at 892, CA) or failed to exercise his discretion (Crowther v. Elgood (1887) 34 Ch D 691 at 697) or the conclusion which the judge reached in the exercise of his discretion was “outside the generous ambit within which a reasonable disagreement is possible” ( G. v. G. [1985] 1 W.L.R. 647 ; [1985] 2 All E.R. 225 , HL). See also Banque Nationale de Paris v. Chan U Tong [1968] H.K.L.R. 151 , and Fung Tin Keung v. Hong Kong Wah Yuen Investment Co. & Another [1967] H.K.L.R. 650 , and Re SY Engineering Co. Ltd (unrep., CACV 1896/2001; [2002] H.K.E.C. 241 , CA) (appeal against a winding up order)…

…

The limitations on the power of the Court of Appeal to interfere with the exercise of a discretion conferred on the judge in the court below apply to residence or contact orders in child cases or any other decisions concerning the welfare of children: G. v. G. [1985] 1 W.L.R. 647 ; [1985] 2 All E.R. 225 , HL. The Court of Appeal will not interfere with the exercise of discretion in child cases unless it can be shown that the discretion was not exercised at all, or that the Judge made some error of law in its exercise, or that the decision was plainly wrong ( TAC v. VDC (unrep., HCMP 2198/2012, [2012] H.K.E.C. 1681 ))…    (emphasis added)

12.  Therefore, in order to challenge the primary findings of facts made by me or the correctness of exercise of the discretion to allow the boys to relocate, the mother must be able to point out how the conclusion on the facts was plainly wrong; and she must also be able to demonstrate there is an arguable case that the discretion was not exercised at all or that I made some error of law in its exercise, or that the decision was plainly wrong.

13.  In her 5-page submissions, the mother advances 7 intended Grounds of Appeal (ie paragraphs 4(a) to (g) of her submissions). Except for a few paragraphs, she, however, has not specified in the ensuring paragraphs which paragraph is for which ground.  In the circumstance, I tried to categorize her submissions into a particular ground according to my understanding so as to give a structured response here.

Ground 1 – Has erred on points of law, and understanding of facts

14.  The mother seemed to be saying that I applied the wrong legal principles.

15.  I have already set out a comprehensive clear summary of the legal principles and the approach to be adopted. At [55] and [56] of the Relocation Judgment, I said,

55.  The Court of Appeal emphasized that the guidance in Payne or SMM v TWM or the welfare checklist are simply tools to assist a Family Judge in making the multifactorial assessment to reach a result which is in the best interest of the child after taking account of the potential impact on the parents: at [30].

See also B, A v B, L (Child Relocation), [2019] 4 HKLRD 23, [2019] HKCA 822.

56.  Therefore, I would have to conduct a holistic balancing exercise and in doing so, I would make use of the Payne approach and the “welfare checklist’ as an aide-memoire tools.

16.  The mother has failed to set out how I erred on points of law; so this ground must fail.

17.  As regards the assertion that I erred in the understanding of facts, the mother purports to rely upon an “Advice” from a senior captain of the father’s employer to say that the father tried to mislead the court on the issue of whether he would be required to arrange alternative accommodation if he is to travel from Denmark to Heathrow.  Leaving the issue of whether the mother would be allowed to adduce further evidence under the Ladd v Marshall rule [2] aside, it is significant to note that I disagreed with the father on this issue.  I clearly said, at [65], that a plain reading of the employer’s Policy is that the father is required to arrange alternative accommodation.  According to the mother, the senior captain agrees with my view.  If that is the case, I fail to see how I have misunderstood the facts.

Ground 2 – The court has been actively misled as to facts by counsel of the father

18.  I begin by saying this is a serious allegation; as such, it should not be lightly made.  In any event, except on the point in respect of Parental Alienation Syndrome which I shall deal with in Ground 6 below, the mother has not been able to pinpoint the particular facts that Mr Clough tried to mislead the court. 

Ground 3 – The court has been actively misled as to facts by the father and his witnesses and

Ground 4 – The court has chosen to ignore the mistruths told under oath both written and verbally by the father and his witnesses

19.  The mother is essentially complaining that the court chose to accept the father’s case and his and his witnesses’ evidence but not hers.  She labels the father as a liar and she repeats what she said at trial about (a) the father’s insecurity in the UK due to post Brexit visa changes; (b) potential closure/reduction of the Heathrow base; (c) the father’s plans to commute between Denmark and Heathrow; (d) the grandparents’ animosity and unsuitability as carers for the boys; and (e) V’s unlikely chances of attaining a Family Reunification Visa.

20.  As I referred to above, it is not helpful for the mother to have repeated her submissions or assertions as to facts. Similarly, it does not help anyone reading this Ruling if the analyses of evidence and the findings of facts are repeated here.  Suffice to say is that I was well aware of the parties’ case as regards these issues and I dealt with them by giving careful consideration to the evidence adduced before me.  Again, the mother has failed to point out how I erred in accepting one’s evidence but not the other’s or which of the conclusion of facts made by me was plainly wrong.

Ground 5 – The court has made the assumption that evidence given by the father was factually correct, workable and given in good faith

21.  The mother says I wrongly believed in the father when he claimed to support a relationship between the boys and her sisters. She relies upon the fact that after the Relocation Judgment the father removed himself from the chat groups her sisters had made for the purpose of communicating with the boys and blocked contact from them.  In support, the mother tries to adduce some screenshots of the group chat conversations exchanged between her sisters and the father after the Relocation Judgment.

22.  I said the following in the Relocation Judgment when I considered the extent of detriment to the mother and her future relationship with the boys if the application were granted,

109.  I agree with Mr Lee that the mother-children relationship could not become worse if relocation is allowed.  On the contrary, there may be a chance for improvement in their relationship if the boys could relocate because it is hopeful with the passage of time there would be less resentment towards the mother. The boys are willing to meet their maternal aunts and have done so in the past, though it would appear that currently the boys have some reluctance to see their maternal grandmother, who is living in Australia.  With all these behind their backs, it is hopeful that starting from meeting their maternal aunts, then their maternal grandmother, in times, they would be able to re-connect with their mother.  I recognise there is no guarantee that this would happen. In the event that this does not, I would quote what Mr Lee said in his closing submission,

“54. If the relationship between the mother and (the boys) shall unfortunately become unrepairable, it is indeed the consequence which all the professionals have forewarned the mother. It is regrettable that the mother is the author of her own misfortune.”

23.  I do not know whether this ‘after-the-judgment’ evidence is truth or not.  Mr Clough’s responses are that there is no application to admit new evidence and that none of the assertions impact on the decision as to relocation but he has not given a head-on reply to the alleged events.

24.  Assuming for one moment that this is what happened, for all the reasons I have said in the Relocation Judgment and bearing in mind whether the boys should be allowed to leave is an issue that requires the court to conduct a holistic balancing exercise by taking all matters relevant to the boys’ welfare into consideration with their best interest as the first and paramount consideration, I do not consider this event, even if true, could enable the mother to elevate this to a point that could tip the balance in her favour.

25.  It should not be forgotten that section 18 Declaration has not been granted and the parties would still have to return to court to deal with the ancillary relief matters.  Where necessary, the issue of communications between the aunts and the boys can be addressed. 

Ground 6 – Ignored the High Court practice given in C v S [2020] HKCFI 937, HCMP 929/2017, citing Re S (Parental Alienation: Cult) [2020] EWCA Civ 568, [2020] 2 FLR 263

26.  In advancing this ground, the mother refers to Re S (Parental Alienation: Cult) [2020] EWCA Civ 568, [2020] 2 FLR 263, where Peter Jackson LJ discussed the law concerning parental alienation.  She argues that this court failed to address and assess the impact of parental alienation of the boys as a form of Pathogenic Parenting in Diagnostic and Statistical Manual of Mental Disorders, 5^th Edition.  In so saying, the mother admits that she erred by simply referring to “Parental Alienation Syndrome” at trial, and not its correct clinical name.  At the same time, she seemed to have put the blame on Mr Clough, who according to the mother, actively misled the court by omitting to refer to Pathogenic Parenting and not distinguishing it from Parental Alienation Syndrome.  I regard it as a most unfair point to make.  Parental Alienation Syndrome was a case put forward and pressed on by the mother at trial.  I do not see anything wrong for Mr Clough to have given a response to this very allegation in the way it was.  Most importantly, apart from the mother’s own assertions, there was a dearth of factual or expert evidence in support.  On the contrary, it has been the views of all the professionals involved in helping this family that the boys were estranged by their mother’s own conduct: see [59], and [98] to [109] of the Relocation Judgment.

27.  The mother also alleges that I failed to exhaust all and any necessary steps to help her to reconnect with the boys. The relocation would erase all hope of achieving what should be achieved by way of therapeutic intervention.

28.  The mother’s proposal regarding access before the boys’ departure was considered at trial. At [101] of the Relocation Judgment, I said,

[101] …However, I agree with Ms Cheng that what we are dealing with are the mother’s own children - not the children that she works with in her job. I do not think it is helpful if the boys are forced by a court order to see their mother. I agree with Ms Cheng that the key is how to make the boys to be willing to see their mother. It is important to let the boys know their mother listens to them and are supportive of the things they want. When the boys see such changes they may be willing to see their mother. By then, she would have the opportunity to use the skill that she has acquired.

29.  And at [105] of the Relocation Judgment, I commented that the mother continued to insist things to happen in the way she dictated. 

30.  Hence, if the mother missed any opportunity for therapeutic intervention, it was due to her own decision.

Ground 7 – The court confused the boys’ loyalty and affection for their father thus influencing their expressed wishes, with what would be their real wishes if properly explored with qualified professionals

31.  The mother submits that I took the boys’ expressed wishes at face value without any proper inquiry, failed to properly ascertain the authentic and true wishes of the boys given their age, and failed to take into account the alienation by the father.

32.  The evidence, by way of oral testimony of Ms Cheng (the social welfare officer) and various reports, is that (and I accepted) the boys were able to voice their views freely to Ms Cheng and to Mr Lee of the Official Solicitor.  In order to succeed the mother must be able to demonstrate how the I erred in accepting the evidence but she failed to do so.

Conclusion & Order

33.  For the reasons aforesaid, I have no doubt that the mother’s application is unmeritorious.  There is simply no reasonable prospect of success nor is there some other reason in the interests of justice so that the appeal should be heard.  The mother’s application should be dismissed and I so order.

Costs

34.  This is a children proceeding.  I consistently take the view it is / was due to the mother’s fears that she would lose the boys forever that has made her objection to the application for relocation.  This is not reprehensive conduct that warrants a costs order against her.  I make the usual no order as to costs order.