LCH v. WPSN

FCMC 1936/2020

[2020] HKFC 219

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1936 OF 2020

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BETWEEN

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D E C I S I O N

(Stay of 2^nd Interim Order/Leave to Appeal)

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Background

1.  The Petitioner is the Father (“F”) and the Respondent is the Mother (“M”).  There are 2 children of the family at the age of 4 and 5, both of them turning to 5 and 6 respectively in coming December.  I will refer to them collectively as “Children” in this Decision.

2.  There was a Children Dispute Resolution (“CDR”) hearing on issues of custody, care, control and access of the Children on 6 August 2020.  It was adjourned for a further CDR hearing on 15 October 2020.  There was an interim Order dated back to 5 June 2020 in place which was extended to the next CDR hearing.  In a gist, the interim Order in place which was extended provides :-

- Mother has interim care and control of the Children;

- Father has interim defined access every Tuesday, Thursday and Saturdays (with staying access on 1^st and 3^rd Saturdays until the following Sunday);

- Father would collect the Children from the Mother’s residence;

- Mother would pick up the Children at Father’s residence after F’s access.

(hereinafter called “1^st Interim Order”)

3.  By a letter dated 12 October 2020, F sought leave from this Court to issue a Summons to vary the 1^st Interim Order.  Leave was granted on 14 October 2020. F’s Summons and his 3^rd Affirmation in support was filed on 14 October 2020, which was just the day before the 2^nd CDR hearing.

4.  M’s Counsel Mr. Giles Surman complained about the said letter dated 12 October 2020 by F’s lawyers seeking leave from the Court was not copied to M’s lawyers and this was not disputed by F’s lawyers.  M received a Memo of this Court which provided “Leave granted” without knowing actually what it was about.  Upon knowing that it was F’s application, M’s lawyers requested for copies of F’s application and the supporting affirmation but to no avail.  M’s lawyers were only served with F’s Summons and his 3^rd Affirmation in support of the Summons after they had been filed at Court on 14 October 2020, leaving M with no time to consider and respond but then have to attend to F’s Summons scheduled with leave of the Court to be heard together with the adjourned CDR on the following day.  M considered that she was being “ambushed” by F’s lawyers.

5.  On 15 October 2020, the adjourned CDR took place and proceeded along but with no success.  This Court considered that the CDR had failed and there and then scheduled a Pre-Trial Review (“PTR) hearing for 30 November 2020 (that is, 6 weeks later). This was the earliest available date in this Court’s diary.

6.  At the adjourned CDR hearing, there were submissions in exchange from parties’ Counsel which, amongst other matters, touched upon the latest children arrangement including the interim access arrangement that was in place since 5 June 2020 after the resumption of physical attendance at schools since late September when zoom/on-line studying pattern during peak times of the Covid-19 pandemic had ceased.

7.  As for F’s Summons, it was adjourned with directions granted for the filing of affirmation evidence and a date to be fixed for substantive argument.  In line with the Practice Directions 15.13 paragraph 19, the Court saw fit to also arrange a directions hearing for F’s Summons to be heard at the same date of the PTR hearing when parties’ affirmation evidence (both in opposition and in reply) would then have been filed.  The last day for the exchange of affirmations was 26 November 2020 with both the directions and PTR hearing coming on the following Monday, that is, 30 November 2020.  Parties had been informed by the Court that there would be a review of the interim child care arrangement on 30 November 2020.

8.  Noting the following 2 objective factors, namely :-

(i) the geographical location of the parties’ place of residence and the location of the 2 schools which the Children are physically attending since late September 2020;

and

(ii) the fact that physical attendance at schools was required late September as per the direction of the Education Bureau whereby zoom/on-line studying was no longer in place.

the Court granted the following interim Order at the conclusion of the 2^nd CDR hearing with clear indication that it would have to be reviewed at the directions hearing in 6 weeks’ time.  The further interim Order provides :-

- F and M do have interim shared care and control of the Children as follows :-

(a) F would have the Children from 17 October 2020 to 31 October 2020 (2 weeks);

(b) M would have the Children from 31 October 2020 to 14 November 2020 (2 weeks);

(c) F would have the Children from 14 November 2020 to 28 November 2020 (2 weeks); and

(d) The parent who does not have interim shared care would have interim reasonable access to the Children.

(hereinafter called “2^nd Interim Order”)

9.  In the Ex Tempore Reasons given for granting the 2^nd Interim Order, this Court made it abundantly clear to the parties and had repeated more than twice emphasising that since M had not been given the time and chance to respond to F’s Summons and his 3^rd Affirmation in support thereof, no consideration had been or would be given or any weight attached to any of the matters raised by F in his 3^rd Affirmation or the exhibits (which consists photographs) produced by him thereunder.  Reason being that had this Court done so, it would be extremely unfair to M and was indeed wrong.  This message was clear and beyond doubt.  Parties had also been informed that the 2^nd Interim Order would be reviewed at the directions hearing in 6 weeks’ time.

The Mother’s Summonses

10.  On 19 October 2020, M filed 2 Summonses separately for :-

- seeking leave to appeal the 2^nd Interim Order (“Summons 1”);

- seeking stay of operation of the 2^nd Interim Order pending the determination of the leave to appeal and, if granted, the appeal itself (“Summons 2”).

11.  Together with the 2 Summonses, there was produced M’s Counsel Mr. Surman’s skeleton submissions, M’s supporting affirmation and a Notice of new Arrangement for Application for leave to appeal in the Family Court.

12.  M’s lawyers Messrs. CRB in their letter dated 19 October 2020 sought for an exceptionally expeditious oral hearing forthwith whilst noting that the current new arrangement for application for leave to appeal would be done on paper without an oral hearing, unless the Court otherwise direct.  M’s reasons for an expedited oral hearing are that following the timeline set under the current new arrangement, M’s appeal is likely not to be heard until after the PTR hearing in 6 weeks’ time and thus rendering M’s intended appeal nugatory.

13.  Solely on this aspect of time, I agree with M’s reasons as to the expeditiousness needed although I am minded to consider M’s 2 Summonses on paper without an oral hearing, unless such oral hearing is needed after considering M’s case, to save parties’ costs and Court resources.  Further, in the event that M was unsuccessful in either or both of her applications, she may wish to take the matter further immediately to the appellate Court when she could do so easily with the written reasons of this Court without any delay.

14.  I have reminded myself as to F’s right to be heard and to address this Court on the 2 applications by M.  From a procedural aspect and the current new arrangement for appeals, F would have 14 days from the date of service of M’s applications to file his affirmation (if so required) and his statement/skeleton submissions if he opposes M’s applications.  However, given the imminence of time between now and the directions hearing on 30 November 2020, I believe it is necessary to consider M’s applications on an expedited basis without waiting for F’s affirmation, which seems to me likely that it would be forthcoming.  Had this Court waited until F’s affirmation, which I believe quite likely to be forthcoming, it may unfairly prejudice M for constraint of time.  In my view, it is only when M is able to establish reasonable prospect of success in respect of her application for leave to appeal (that is, her Summons 1), it would then call for the Court’s consideration of F’s affirmation and then decide whether or not leave to appeal should be given.  Needless to say, M’s Summons 2 depends on the success of her Summons 1.

The Father’s response towards Mother’s 2 Summonses

15.  At the time of this Decision, I noted M’s lawyers had already served all the papers of her 2 applications on F’s lawyers on 19 October 2020[1]. Thus, the time for F to file his affirmation and his statement/skeleton submissions in opposition expires on 2 November 2020.

16.  As said, I saw the expeditiousness needed in M’s case.  Thus, I decided to consider M’s applications now, without waiting for F’s affirmation and statement/skeleton submissions due on 2 November 2020.  I would, however, refrain from making any decisions and wait for F’s affirmation and statement/skeleton submissions had I been convinced by M that there are reasonable prospects of success in her applications.  I believe such exceptional arrangement creates no prejudice to F.

The statutory provisions for leave to appeal

17.  The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

18.  The test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF & Ors, HCMP No.288/2011 per Fok JA at paragraphs 8 and 9 of the Judgment).

Mother’s Grounds of Appeal

19.  In M’s draft Notice of Appeal, the grounds of appeal are :-

- this Court erred in the exercise of its discretion and was plainly wrong in finding that the two Children of the family aged 4 and 5 years old should be placed in the care of the Petitioner (“the Father”) (Ground No. 1); and

- the Mother asks for a stay of operation of the 2^nd Interim Order pending the hearing of the application for leave to appeal, and if granted, the appeal itself (Ground No. 2).

20.  Under Ground No. 1, there are 15 sub-paragraphs listed thereunder from (i) to (xv) largely setting out highly contentious matters which could only be resolved through the trial proper of children issues before any definitive views or findings could be made.  Further, M’s Counsel Mr. Surman saw fit to also attach several photographs which had already been produced and exhibited in M’s affirmations filed earlier for the trial proper in respect of which F had also filed his affirmations, also with some other photographs produced as exhibits, in countenance.  

21.  Apparently, Ground No. 2 depends upon the success of Ground No.1.

22.  M’s Counsel Mr. Surman in his written skeleton submissions considered the 1^st Interim Order (which was dated 5 June 2020 and had continued onwards) was radically and dramatically revised by this Court[2] on the sole and only basis of the 2 notable factors abovementioned.

23.  M’s Counsel Mr. Surman also made the further submission as follows :-

“16. There is absolutely no provision in the Order for any contact whatsoever between Mother and children whilst in father’s care or indeed vice versa, separating a 4 and 5 tear absolutely and completely from their mother cannot be in the best interests.”

24.  M’s Counsel Mr. Surman made the following submissions in conclusion :-

“18. In summary, the wholesale dramatic and revolutionary change in the care arrangement at the conclusion of a CDR which was ambushed in breach of the Solicitors’ Code and of all good practice and on the sole basis of ‘travel times’ in the absence of an updated Social Welfare Report and in the absence of providing Mother with an opportunity in reply, is wholly inexplicable, prejudicial, irrational, incomprehensible and clearly not in the best interests of these two little girls aged 4 and 5.”

The Court’s Views

25.  First and foremost, the Court in exercising its case management powers can be guided by Practice Directions and make such directions or arrangements that are considered to be suitable and appropriate in the particular circumstances before the Court. In so doing, the Court would have to exercise its discretion sensibly, pragmatically and fairly without being influenced by or alluded to any controversial issues between the parties where adjudication is pending. Impartiality and Fairness play an important part in arriving at any decision.  On Children matters, best interests had always been the first and paramount consideration of the Court over and above the parents’ own interests, financially or otherwise, desires or their preferences.

26.  In the present case, I was informed by parties’ Counsel since the beginning of the 1^st CDR hearing and throughout that their respective clients are actively aiming towards some kind of global settlement on all aspects, including children and finances, the latter of which undisputedly involve F’s parents. Be that as it may, this had never played any part insofar as the Court is concerned when granting the 1^st and/or the 2^nd Interim Order.

27.  As said, the need for granting the 2^nd interim Order was based solely upon considering the 2 notable factors of geographic location and the resumption of physical school attendance, but not otherwise. Although the parties’ place of residence since the 1^st Interim Order was granted in June this year remain the same with F living at Sai Kung and M living at Tai Po, the resumption of physical school attendance starting from late September onwards warranted review of the whole scheme of children arrangement, including access.

28.  Under the 1^st Interim Order, it was F and M who had to collect and return the Children between 2 houses, namely, their residence respectively at Sai Kung and Tai Po, 3 times a week on Tuesday, Thursday and Saturdays, also on Sundays when F had staying access twice a month. With the resumption of physical school attendance, apart from the access regime under the 1^st Interim Order, there are the additional travelling of 5 days in a week to and back from 2 schools, with the elder child studying in Kowloon Tong and the younger child studying in Clear Water Bay.

29.  Moreover, the period of time of access time under the 1^st Interim Order does not coincide with the school attendance hours thus making it no sense of having the Children back and forth between Tai Po, Sai Kung, Kowloon Tong and Clear Water Bay at different hours of a day within each of the 5 days in a week, not to mention that there are occasions when the elder sister who study in Kowloon Tong may have to wait for her younger sister who study in Clear Water Bay or vice versa given the Children’s school hours are also different.

30.  This is not a question of the Court prioritizing journey time to school over and above the physical, and emotional safety and security, or by ripping them from the safety, comfort and security of their Mother so suggested by M’s Counsel Mr. Surman in his skeleton submissions[3]. This is rather a simple question of logic and good sense.  In the absence of any adjudication yet by the Court on each and every controversial issues raised by F and M against each other, it lacks objectivity to make such submission and was indeed unfair. 

31.  It is more so when several photographs picked out from M’s case were produced for the present application for leave to appeal whilst there are 4 other terrific photographs from F’s case showing severe injuries[4] caused to the face of the younger child whilst she was under the interim care and control of M just 2 days after the 1^st Interim Order (where M had interim care and control) were withheld.  The younger child was severely mauled by M’s dog causing her to receive about 17 stitches, to take plastic surgery to deal with the scars on the face and was hospitalised for a week.  Besides, there are other photographs of the elder child having a swollen eye (Exhibit “LCH 3-4”) and the younger child, unfortunately is her again, received a long red scratch on her thigh (Exhibit “LCH 3-5”).  From the outlook of the photograph, the scratch was no less than 4 inches, or may even be about 5 inches long.

32.  Whilst I accept that the 2 exhibits marked “LCH 3-4” and “LCH 3-5” were only produced by F in his 3^rd Affirmation to which M has had no time and chance to respond or comment, it is unusual for experienced Counsel when settling grounds of appeal who saw fit to produce photographs which had been exhibited in affirmations properly filed but did it on a “one-side” only.  Given F’s 3^rd Affirmation and those exhibits “LCH 3-4” and “LCH 3-5” had been filed and served at the time when M’s Counsel was settling the draft grounds of appeal, this is of some concern to the Court.

33.  In any event, all those photographs would need to be examined by the Court at the trial proper on children matters with parties’ other evidence fully considered.  With all things being equalled, this Court had not taken into account of any of the photographs (whether produced by F or M) when granting the 2^nd Interim Order.  Nor had the Court given any consideration to the contents of the affirmation evidence filed by the parties, including the F’s 3^rd Affirmation to which M had not been given any time and chance to respond.  The only consideration taken into account of, as repeatedly said throughout and in the Ex Tempore Reasons, was the geographic location of parties’ residence and the schools, such consideration was required following the resumption of physical school attendance since late September (that is, after the 1^st Interim Order dated 5 June 2020).

34.  With all the above, I will now deal with each of the sub-paragraphs under Ground 1 in M’s draft Notice of Appeal.

Ground No. 1

Sub-paragraph (i)

35.  Whether M or F or the grandparents was the principal carer for the Children is a fact finding exercise after hearing evidence at trial.

Sub-paragraph (ii)

36.  The Court is empowered to review the circumstances of the case before it and would not be bound by previous orders; and having said, orders over children are always volatile.

Sub-paragraph (iii), (iv) and (v)

37.  Paragraphs 31, 32 and 33 of this Decision refers.

Sub-paragraph (vi)

38.  There is no change or any relaxation of F’s undertaking given, insofar as the live-in domestic helper is concerned, under the 1^st Interim Order when the 2^nd Interim Order was granted. 

Sub-paragraph (vii)

39.  It is wrong to submit that F was already subject to supervision of his access to the Children.  There is a stark difference between “supervised access” and “defined access”.  The 1^st Interim Order provides for the latter and not the former.

Sub-paragraph (viii)

40.  This sub-paragraph made reference to various paragraphs in the report of the single joint psychological expert of Dr. Lora Lee.

41.  As said, there was no consideration given to any of the evidence filed by the parties, which are highly controversial requiring adjudication at trial, when the 2^nd Interim Order on interim child care arrangement was granted save and except only the 2 notable objective factors of geographic location of parents’ residence, the 2 different schools and the physical school resumption since late September this year.

42.  It is wrong, with respect, to lodge an appeal on the footing of a piece of evidence which the Court had emphatically and clearly spelt out that its decision was based solely upon geographic location and school resumption and not otherwise.   

43.  That said, M’s Counsel Mr. Surman was unable to convince this Court that in making short-term interim child care arrangement, as in the present case of 6 weeks only, that the Court must or should have considered every single piece of evidence (even though they are highly controversial), or even calling further social investigation report, as if in the trial proper and; failing which, constitutes an appealable error of law.

44.  In any event, the findings or conclusion of the single joint expert are open to comments by the parties at the trial proper which had yet to be seen.

Sub-paragraph (ix)

45.  With respect, M’s Counsel Mr. Surman’s submission of no contact was made by the Court between M and the Children during the 2-week interim shared care by F is utterly wrong.

46.  According to the audio records at the hearing on 15 October 2020 between 6:30:42 to 6:30:52, the following was said by this Court when replying to Mr. Surman’s submissions :-

“…. Of course during this 6-week period, each parent would have/the parent not having the shared care and control would have the access…...”

Sub-paragraph (x)

47.  The submission of returning the Children to F’s home where they have been physically abused and bitten by F; sexually harassed by the domestic helper are, in my view, incorrect or at least pre-mature at this stage for the simple reason that neither F nor the domestic helper was charged with any offences so related to M’s case although it happened that they were still under police investigation.

48.  I was urged by M’s Counsel Mr. Surman to take note of the time nowadays for the authorities to lay charges against suspects are quite lengthy given the work load of the Department of Justice every day.  I am, however, unable to comment on such submission.  The fact remain at present is that no one had been brought to the criminal courts for those matters complained of by M which she is now relying upon as grounds for seeking leave to appeal.   There is no room for any judicial notice to be taken over and above the presumption of innocence at common law. 

49.  In the absence of any conviction by the criminal courts, or to the very least criminal charges having been brought by the Police (or more precisely should be the Department of Justice), it is plainly wrong to “pre-judge” F and the domestic helper to be the “culprits” of those complaints in question.

Sub-paragraph (xi)

50.  This submission was merely reciting the 2 notable factors considered by the Court rather than setting out any legitimate grounds of appeal.

Sub-paragraph (xii)

51.  The matters complained of; in particular, the alleged “ambush” by F’s lawyers for issuing the Summons and filing of F’s 3^rd Affirmation in support, if proven, could amount to litigation conduct.  However, litigation conduct had never been the rationale behind for this Court to grant the 2^nd Interim Order.

Sub-paragraph (xiii)

52.  This submission requires the Court’s adjudication and findings after hearing evidence at trial.

Sub-paragraph (xiv)

53.  This submission also requires the Court’s adjudication and findings after hearing evidence at trial.

Sub-paragraph (xv)

54.  This submission is impracticable if not wrong.  Given the 2^nd Interim Order would last from 17 October 2020 until the further directions hearing on 30 November 2020, that is, a time span of only 6 weeks.  There is not sufficient time to obtain any further Social Welfare Report and, as a matter of fact, there was already a Social Welfare Report in place dated 29 May 2020.

55.  The submission that the 2^nd Interim Order exceeded what F had sought for on an alternate week basis could not be a ground of appeal having reasonable prospect of success.  It is trite that the Court would not be hamstrung by any proposals of the parties and could make orders or directions as it saw fit in the circumstances.  In the present case, given the circumstances arising from the 2 notable factors, the interim access arrangement under the 1^st Interim Order warranted review by the Court.  For a 2-week alternate interval as opposed to 1-week alternate interval of shared care and control, the frequency of changeover of the carer would be kept to a minimal whilst serving the best interests of the Children.

56.  Given all the above reasons, I decided that M has no reasonable prospect of success in her Ground 1 (including any of the sub-paragraphs (i) to (xv)) for seeking leave to appeal.

57.  Ground No. 1 fails in its entirety.

Ground No. 2

58.  This ground relates to a stay of operation of the 2^nd Interim Order pending determination of M’s Summons for leave to appeal.

59.  With the decision on Ground No.1, this ground falls apart.

Any other grounds on interest of justice ?

60.  M’s Counsel Mr. Surman had not made any submission on this limb.  I have, however, given some thought but unable to find any in M’s favour.

61.  Given that M failed in her application, I decided that M’s Summons 1 could now be dismissed without having to wait and see F’s affirmation and statement/skeleton submissions (if any) which was due for filing on 2 November 2020[5].

62.  Following the dismissal of Summons 1, Summons 2 would also be dismissed.

Costs

63.  Although F had been served with all the papers of M’s applications on 19 October 2020, the time for F to file affirmation and statement/skeleton submissions have not yet expired at the time of this Decision.

64.  In the circumstances, I believe it is fair and reasonable not to make any costs order in respect of M’s Summons 1 and Summons 2.

Orders

65.  I now grant the following Orders :-

(a) M’s Inter Partes Summons dated 19 October 2020 seeking leave to appeal be dismissed;

(b) M’s Inter Partes Summons dated 19 October 2020 seeking stay of operation of the 2^nd Interim Order be dismissed; and

(c) There be no Order as to costs of the 2 Summonses.

66.  This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Decision.