HTL v. K,RE

FCMC 1678/2013

MATRIMONIAL CAUSES NO. 1678 OF 2013

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R U L I N G
(Leave to appeal)

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Introduction

1.  This is an application by a Respondent father for leave to appeal against my judgment of the 5 March 2015 which dealt with the mother’s application to vary access and the father’s application to vary custody. 

Background

2.  I do not intend to go into the background of this case in any great detail save as to comment that it has a very long history and that the level of conflict remains very high. Reference can be made to the previous judgments and orders as necessary – where the full history of the case can be found.

This application

3.  In summary I dismissed the father’s application to vary the custody arrangements and I varied the access arrangements so that the father now sees the children on Friday evenings and all day on Sundays. Overnight staying access was suspended. Arrangements for the school holidays were clearly defined and altered/varied accordingly. Other directions were given in relation inter alia to pickups and drop offs.

4.  On this occasion the father is seeking leave to appeal against certain paragraphs in my judgment as follows:

That leave be given to the Respondent to appeal PAR4.2.3.6, 8, 11, 13, 14, 18, 19, 20, 21, 22, 23, 24, 25, 27, 29, 30, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 of the Order of HH S Melloy dated March 5, 2015 and further that the grounds of Appeal are inter alia as follows see attached.

5.  During the hearing on the 11 May 2015 the Respondent said inter alia that he wishes to appeal to a higher court because he believes that the Basic Law and HK’s constitutional law runs contrary to family law in HK. He says that no law should contradict the Basic Law. He argues that family law does and on that basis he believes that his case should go up to a higher court.

The law

6.  Turning next to the law. I am of course mindful of the test as set out in Section 63A of the District Court Ordinance which states as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave is 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.”

7.  It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and, as I have said, that it has a reasonable chance of succeeding. The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly.  Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

Decision

8.  The husband’s reasoning is set out in the note attached to his affidavit dated the 2 April 2015. I do not intend to go through all of the points raised. However his basic position is that the procedures routinely adopted by the family court with respect to the provision of social welfare and clinical psychological reports and generally are contrary to various articles of the Basic Law. The following points are of particular relevance:

a) The respondent said that the children wanted their own legal representation at the interview with the Social Welfare Officer.

9.  It is not possible to know if this is true or not. In any event the court raised the issue of separate representation for the children prior to the trial. Both sides told the court that they did not think that that was necessary. Consequently the children were not separately represented at that trial. They did however express their views to the Social Welfare Officer.

b) The respondent was not allowed to cross examine the Social Welfare Officer or the clinical psychologist.

10.  The Respondent told the court at the trial that he had not read the reports and that he did not intend to do so. He said that reading them made him feel ill. Time was given to enable him to read them. He still declined. In such circumstances the case proceeded in the absence of any questions from the respondent as there was no basis upon which any questions could be raised.

11.  The Respondent made other representations at the hearing that were not included in his note attached to the affirmation. For example

a) He asked for a Duty Lawyer.

12.  It was explained that the Duty Lawyer scheme does not extend to the family Court.

b) He asked for the audio recordings of the hearings free of charge.

13.  For the avoidance of doubt if the Respondent would like the audio tapes then those will be released to him upon prescribed payment in the normal way.

14.  In conclusion the Respondent made an impassioned plea for the case to go up to the High Court (presumably the Court of Appeal). He said that it was important for these issues to be considered by a higher court and that this was an important matter for the people of Hong Kong.

15.  Unfortunately I am not convinced that the Respondent has identified an appealable point to go up to the Court of Appeal. Prima facie I do not accept his arguments with respect to the Basic Law vis a vis family law. Consequently I do not agree that the Respondent has a reasonable prospect of success or that there are other reasons in the interests of justice why the appeal should be heard.

16.  In such circumstances the Respondent’s application for leave to appeal shall be dismissed. It follows that the ancillary relief trial shall proceed in June. Costs of the respondent’s summons dated the 2 April 2015 shall be to the wife on a party and party basis to be taxed if not agreed.