MJP v. JWP

HCMP 2637/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

HIGH COURT MISCELLANEOUS PROCEEDINGS NO. 2637 OF 2009

(ON AN INTENDED APPEAL FROM FCMC 9154 OF 2008)

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D E C I S I O N

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Hon Cheung JA (giving decision of the Court) :

1. H H Judge Melloy granted leave to the respondent wife to remove permanently three children of the family out of Hong Kong at either Easter 2010 or at the end of the school summer term 2010.  She further ordered the respondent to have care and control of the children with defined access to the petitioner father and that both the petitioner and respondent have joint custody of the children.

2. The petitioner now seeks leave to appeal against the judgment.  He asks for the dismissal of the respondent’s application to remove the children out of Hong Kong.  He also asks for joint custody together with joint care and control of the three children.  The respondent opposes the application. 

3. Leave to appeal was already refused by the Judge.  We will now consider the application on paper. 

4. The background of the case are fully set out in the 66 page judgment.  The Judge identified the law on relocation of children outside jurisdiction and also that of custody, care and control.  No issue is being taken on the correctness of the law stated by the Judge.

5. The petitioner set out the grounds of appeal in his draft grounds of appeal supplemented by a written submission.  The challenge is in respect of the finding of facts and exercise of discretion by the Judge.

6. We are satisfied that the Judge had properly evaluated the evidence and made correct finding of facts.  We are satisfied that there are no reasonable grounds to challenge the finding.  Further there are no reasonable grounds to challenge the exercise of the Judge’s discretion.

7. As the petitioner has not shown that there is any reasonable prospect of success of the appeal, we will refuse to grant leave to appeal to the petitioner.

8. For the avoidance of doubt, we will also remove the stay of proceedings by reason of the respondent’s application for legal aid.  She has since obtained legal aid to assist her in opposing the application for leave to appeal.

9. We will make no order as to costs of the application save that the respondent’s own costs are to be taxed in accordance with Legal Aid Regulations.