WKI also known as IWKV v. CKW also known as WCKW

CAMP 123/2022

[2022] HKCA 889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 123 OF 2022

(ON AN INTENDED APPEAL FROM FCMC NO. 11528 OF 2019)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

1.  This is the renewed application by the respondent father (‘the Father’) for leave to appeal out of time against an interim access order granted by Deputy District Judge Jacqueline Lee dated 12 November 2021 (‘the Interim Access Order’). The Judge had refused to grant leave. We will deal with the application on paper.

2.  The parties are a married couple. The petitioner mother (‘the Mother’) filed the petition for divorce on 25 September 2019. There is a child of the family, a girl, A, who is now 11.

3.  The Father said the parties had mutual agreement to share the child’s access equally post separation. From December 2018 to August 2019, the child split her time between the Mother and the Father’s homes equally for most of the time. By a Court order dated 19 December 2019 he was entitled to day access to the child three times in week one and three days staying access in week two. By another Court order dated 16 July 2020, he was granted the following access :

1)  If school is suspended, weekly staying access to the child for three days; and

2)  If school is not suspended, day access to the child two times in week one and 3 days staying access in week 2.

4.  The chronology of events [after the order dated 16 July 2020] leading to the present application is set out in the Judgment (Leave to Appeal) of the Judge dated 6 April 2022 by which she refused to grant leave to appeal :

1)  24 October 2020 - The Father reported to have assaulted the Mother inside the ladies’ washroom at a shopping mall.

2)  1 April 2021 - Deputy District Judge Lam varied the terms of the 16 July 2020 Order, by which she ordered that :

(1)  The share care of the child arrangement be suspended until the determination of the criminal trial.

(2)  Thereafter, in the first two weeks, the Father was to have interim access at the office of the Social Investigation Officer for not more than two hours; and thereafter the Father was to have weekly access on Sunday between 2:00 pm and 6:00 pm.

(3)  An updated social investigation report and clinical psychologist report be called for.

3)  21 May 2021 – The Father was ordered to be bound over for 24 months in respect of the criminal case.

4)  14 July 2021 – The Father took out a summons which, amongst other matters, applied in paragraphs 2 and 3 for :

(1)  [2] Care and control of the child be granted to him.

(2)  [3] Access in all long holidays, school holidays and special days such as A’s birthday in the rest of 2021 to 2023 be granted to him.

5)  6 September 2021 – Deputy District Judge Lam varied the terms of the 1 April 2021 order, and ordered that the Father shall have defined interim access of A on every Friday and Sunday. No staying access is granted at the hearing. The case was adjourned for Children’s Dispute Resolution (‘CDR’).

6)  12 November 2021 – At the CDR hearing, the parties were not able to reach any agreement and the case was set down for trial. The trial is fixed in June 2022. The Judge made the Interim Access Order and varied Deputy District Judge Lam’s 6 September 2021 Order as follows :

(1)  Every first week of the month, the Father shall have staying access from Friday after school to Sunday at 8 pm. The Father shall pick up A directly from school and return A to the Mother at the main gate of the Mother’s residence on Sunday at 8 pm.

(2)  The Mother and the Father shall share in equal of the long holidays (Christmas, Chinese Lunar New Year, Easter, and non‑school days and any other holidays lasting for two days or above), with the first half of the holidays to the Father. The Father shall pick up A at 2 pm on the first day of access and return A to the Mother at the main gate of the Mother’s residence at 8 pm on the last day of access.

7)  19 November 2021 – The Father issued a summons for, amongst other things, variation of the Interim Access Order.

8)  21 December 2021 – The Judge dismissed the Father’s application to vary the Interim Access Order.

9)  By two summonses filed on 17 January 2022, the Father sought leave to appeal out of time against the Interim Access Order and leave to appeal against the refusal to vary the order dated 21 December 2021. The Judge refused both applications.

5.  The present application before us is only in respect of the Interim Access Order. The Mother who opposes the application pointed out that the issues of custody, care, control and access of the child have been set down for a five‑day trial in late June 2022 (‘the trial’), commencing on 23 June 2022.

6.  The Interim Access Order is clearly an interim measure pending the determination of the trial. The Judge held that :

‘ 30. I made the order with a view that in a few months’ time, after the custody, care and control trial in June 2022, further order and/or adjustment would be made by the Court.’

7.  We do not consider that it is reasonably arguable that the Judge was plainly wrong in the exercise of her discretion to make such an interim order. As such the Father’s intended appeal has no reasonable prospect of success.

8.  We will dismiss the application. We will make an order that there shall be no order as to costs.

9.  As the Father’s application is totally without merit, pursuant to Order 59, rule 2A(8) of the Rules of the High Court, we will make an order that no party may request our determination to be reconsidered at an oral hearing inter partes.