CS v. WDT

FCMC 5660/2020

[2021] HKFC 56

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 5660 OF 2020

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J U D G M E N T

( re. Leave to appeal )

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Introduction

1.  On the 29 December 2020 I delivered Judgment in relation to the arrangements for B, a boy aged 4 and G, a girl aged 3 broadly as follows:

(1)  Joint custody,

(2)  Shared care and control on equal basis in a seven to seven days routine on a bi-weekly basis and,

(3)  School holidays be split equally or alternatively to be agreed by Mother and Father,

2.  By her summons of the 26 January 2021 the Petitioner Mother seeks leave to appeal citing 7 grounds and seeks the following orders:

(1)  The Mother be granted sole custody and sole care and control to the Children,

(2)  Reasonable access be granted to Father during term time,

(3)  Generous access be granted to Father during school holidays and,

(4)  Costs.

The Relevant Law

3.  Section 63A(2) of the District Court Ordinance (Cap. 336) states as follows:

“Leave to appeal shall not be granted unless the judge… 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.”

4.  I have been referred to a number of authorities in relation to the approach to a leave to appeal application and it is clear there is no dispute between the Parties as to such approach namely that of SMSE v KL [2009] 4 HKLRD 125

“17. Leave to appeal under O.59 r.2B is not lightly granted. The relevant test appears in s.14AA(4) of the High Court Ordinance (Cap.4). In granting leave, the Judge must have considered that the test set out in s.14AA(4) had been met. The section requires that the court be 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 before granting leave. Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than "fanciful", without having to be "probable".”

5.  I have also been referred by the Father’s Leading Counsel to ZJ v XWN [2018] 3 HKLRD 644 as to the appropriate case management practice in processing leave applications, as well as the threshold of that an appeal has to cross for the Court of Appeal to intervene in §31.

6.  Ms Yip SC fairly and appropriately states in her submissions:

“4. M accepts that the Decision involves an exercise of this Court’s discretion, and the Court of Appeal only interferes within the well-established constraints, e.g. where the Court fails to take into account relevant consideration, where there is an error of law, or where the exercise of discretion is plainly wrong or outside of generous ambit within which a reasonable disagreement is possible: Hong Kong Civil Procedure 2021 §59/0/54.”

7.  The Mother does not point to any error in law; her main complaint is that the Court applied the wrong ‘weight’ to the evidence and thereby came to the wrong conclusion.

The Grounds of Appeal

Ground 1: the lack of co-operation between Father and Mother and an order of Joint Custody

8.  I gave careful consideration to the issue of co-operation as it was a major platform of the Mother’s case; I stated at paragraph 66 of the Judgment:

“I accept that the Parents currently would most probably find it difficult to communicate in a traditional shared care arrangement however I am of the opinion they have sufficient communication skills to communicate sufficiently for a parallel parenting arrangement as currently reflected in the interim order of 6 May 2019.”

9.  Having reflected again on the matter and with the assistance of the Parties’ submissions in this application I do not consider this ground has a reasonable prospect of success.

Ground 2: the defective arrangement of Shared Care and Control on a week-on week-off basis

10.  The week-on week-off basis has been in existence since May 2019.

11.  As I stated at para 42 of the Judgment:

“I consider the above remarks by the SWO important as very often a child’s performance at school and their social skills are reflective of the child’s general welfare and contentment at home.”

12.  Having considered the facts and submissions before me, I concluded in my Judgment that it was in the best interests of the Children to be in a shared care arrangement so that the Children continue to spend significant periods of time with both Parents, which had proven to have been beneficial to the Children as reflected in the 3 Social Welfare Reports.

13.  In the circumstances, I consider that there is no merit in this ground.

Ground 3: incredibility of Father and Orlina’s oral evidence

14.  I find no merit in this ground; I remain of the view that the Father and Orlina were credible witnesses, having had the opportunity to observe their oral testimony and whilst being cross-examined by the Mother’s Senior Counsel.

Ground 4: erroneous finding on Mother’s availability

15.  The Mother’s complaint has no basis as at paragraph 69 of my Judgment I specifically stated:

“69. The Mother was critical of the Father’s parenting arrangements. The Father, like indeed the Mother, is doing his very best to parent the Children in a loving, responsible and supportive manner; both have organised their working lives to spend as much time as they can with the Children.”

16.  I acknowledged that both Parents, therefore also the Mother “orgainsed their working lives to spend as much time as they can with the Children”.

Ground 5: defects of the Recommendations of the Social Investigation Reports

17.  I accept that the recommendations of a Social Work Officer (“SWO”) are not binding on the court. In this case, the 3 SWO’s Reports were thorough and informative and I saw no basis then and now that the SWO’s recommendations should not be accepted. 

18.  I see no merit in this ground.

Ground 6: defects of the Recommendations of the Clinical Psychologist Reports

19.  The Clinical Psychologist Report was informative and thorough, I see no merit in this ground.

Ground 7: other Wrongful and/or Irrelevant Considerations

20.  This appears to be a ‘catch all’ ground; it lacks precision and substance and has no merit.

Conclusion

21.  The 7 grounds are in the main a mirror of the Mother’s case at Trial and do not raise any issue that would have a reasonable prospect of success on appeal. In the circumstances, the Mother’s application for leave to appeal is dismissed.

Costs

22.  At paragraphs 6 to 11 of the Mother’s Submissions it is stated that:

“6. We are aware there are cases where the court would make a cost order after leave to appeal has been dismissed. We note, however, that in those cases, the inappropriateness or the rationale for not making a costs order at this stage had not been discussed.

7. Father asks for costs to be awarded against Mother, summarily assessed, if Mother’s leave application is dismissed.

8. He has completely ignored that Mother is entitled, as of right, to seek leave from the Court of Appeal: O.58 r.2 (4A) RDC Cap.336H. It would be extremely odd if this Court refused leave and awarded costs against Mother; but leave is subsequently granted by the Court of Appeal which effectively means a nullification of the first instance costs order.

9. If this court refuses leave and penalizes Mother on costs, Mother will have to appeal against the costs order as well. Thus, father’s costs application is a proliferation of costs. This is unnecessary, time and costs-consumptive.

10. At the very least, Father’s application for costs is pre-nature. Father should wait until after the Court has handed down the decision and see if Mother pursues further in the Court of Appeal for leave to appeal before he is entitled to ask for cost.

11. In sum, the appropriate costs order at this stage is costs reserved, with liberty to restore; or costs in the cause of the appeal.”

23.  I do not accept the proposition and note that paragraph 9 of the ‘New Arrangement for Application for Leave to Appeal in the Family Court’ which was issued by His Honour Judge CK Chan on 13 August 2018 states:

“9. A party who wishes to seek costs in respect of the application (including costs in opposing the application) must include in the documents filed by him/her a statement of costs for summary assessment.”

24.  The issue of costs of a leave to appeal application is a discrete issue and I see no reason why costs should not follow the event.

25.  At the time of Judgment, the Parties’ combined costs were approximately HK$11 million:

(1)	Mother	HK$7,105,450
(2)	Father	$3,953,907
		HK$11,059,357

26.  The updated Form H’s as of 22 February 2021 disclose costs as follows:

(1)	Mother	HK$7,514,950
(2)	Father	$4,144,112
		HK$11,659,062

27.  The Father has provided a breakdown of costs for summary assessment in the total sum of HK$180,053.

28.  The Mother’s response, in the event costs are to summary assessed, is a figure of HK$41,653.34.

29.  In the context of the case and the costs incurred by both Parties I consider that the costs proposed by the Father are reasonable and proportionate.

30.  I therefore order that the Mother do pay the Father’s costs to be summary assessed at HK$180,053, such amount to be paid by the Mother to the Father within 28 days of the date of this Judgment.