JRMW v. NAV

FCMC 8504 / 2017

[2018] HKFC 140

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8504 OF 2017

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Judgment

(Leave to Appeal)
(Paper Disposal)

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Introduction

1.  By a summons taken out on 11 May 2018, the petitioner father applied for leave to appeal against my decision refusing his application for relocation of the 2 children of the family to Denmark.  My reasons are set out in a judgment dated 16 April 2018 which for convenience I shall refer it as the “Relocation Judgment”.

2.  The summons was originally fixed to be heard on 17 July 2018.  In the hearing of 1 June 2018 when I dealt with the petitioner’s application for taking the children away for summer vacation,[1] I indicated that this leave to appeal matter is apt to be dealt with by way of paper disposal.  I therefore gave directions for the parties to exchange their submissions and vacated the hearing of 17 July 2018.

3.  I shall continue to refer the petitioner father as “F”, the respondent mother “M”, the domestic helper/father’s partner “V” and the 2 children (both boys) as “L” and “B”.

4.  As I have already set out the background to F’s application, the parties’ arguments and my reasoning in the Relocation Judgment, I am not going to repeat the same here.  This Judgment has to be read together with the Relocation Judgment. 

5.  F was initially unrepresented.  He filed his summons together with his homemade Grounds of Appeal by way of an affidavit on 11 May 2018.  These followed by submissions from the Official Solicitor and from M on 13 July 2018 and 30 July 2018 respectively.  The most recent development is that F is now being represented by Mr Clough of counsel who has lodged new Grounds of Appeal in substitution for the homemade grounds and written submissions on 20 July and 26 July 2018 respectively.

6.  At this juncture, I need to mention that in his submissions of 26 July 2018, Mr Clough makes the following proposal:

1. The application for leave to appeal is to be adjourned sine die;

2. F is directed to file a fresh application for relocation on or before 3 August 2018;

3. The court directs that the fresh application is given an expedited hearing and that the evidence heard in the trial shall stand as if it had been given in the new application;

4. The court directs that F shall exhibit the new evidence to his affirmation in support of the fresh application;

5. M shall have liberty to file her affidavit in reply within 7 days; and

6. The new application for relocation shall be listed for 1 day on an urgent basis.

7.  I do not consider the proposal workable.

8.  First, notwithstanding the fresh application is clothed as a ‘new application’, it appears that F is seeking a re-trial.  In other words, he is seeking ‘two bites of the cherry’.  There is no basis for him to do so.  My view is if there is a fresh application, it has to be dealt with properly.

9.  Secondly, I have already rejected F’s childcare plan in his original application, whether or not the new application can be dealt with merely by way of adducing some new evidence as suggested by Mr Clough and whether or not the trial can be disposed of in just one day must of course depend on F’s childcare plan and the issues in dispute.  Further, Mr Clough seems to have suggested that the court may dispense with the assistance of the social welfare officer.  Without a sight of F’s new plan, I am not satisfied that in the event of a fresh application it is unnecessary for the court to hear what the social welfare officer may have to say.  It has to be borne in mind that the court shall give due consideration to any material information including any report of the Director of Social Welfare available to the court at the hearing: s 3(1)(a)(i)(B) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”).

10.  Lastly, I need to mention that as a matter of fact, in the hearing of 1 June 2018 when I dealt with F’s application for temporary removal, I had already mentioned that either party could make fresh application for relocation where the situation warranted and I urged F to consider carefully how he wanted to move forward.  It is unfortunate that so far F’s new plan is not in sight.

11.  For the above reasons, there is simply no basis for me to give such directions suggested by Mr Clough.

Legal Principles

12.  The relevant test governing applications for leave to appeal from the District Court is provided in section 63A(2) of the District Court Ordinance (Cap 336) (“DCO”):

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal 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.” [emphasis added]

13.  The Court of Appeal discussed the application of s 63A(2) of DCO in Sunny Tadjudin v Bank of America, National Association, HCMP No 691 of 2012, unreported, 29 June 2012 at [9]:

“9. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 para 17). Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion (Ho Yuen Ki Winnie & Ors v Ho Hung Sun Stanley & Anr. HCA 391/2006, 25 May 2009, A Cheung J para 3; and HCMP 1009/2009, 24 August 2009, para 22).”

14.  Mr Clough also refers me to §59/2A/4 of The Hong Kong Civil Procedure (2018) on the proper approach,

For leave to appeal in cases, where the threshold test is not provided in the relevant statute, the general test which the court applies in deciding whether or not to grant leave to appeal is this: leave will normally be granted unless the grounds of appeal have no realistic prospects of success (Smith v. Cosworth Casting Processes Ltd (Practice Note) [1997] 1 W.L.R. 1538 ; [1997] 4 All E.R. 840, CA).

15.  Recently, the Court of Appeal in ZJ v XWN, CAMP 67/2018, [2018] HKCA 436 (date of judgment: 25 July 2018) stated, in [64], that application for leave to appeal should be a filtering process and should be conducted summarily and proportionately.

Reasons for Rejecting F’s Application

16.  Before I come to the Grounds of Appeal, I think it is useful to recap the reason why F’s application was refused.

17.  F’s childcare plan after relocation to Denmark is that it would be the same as that in Hong Kong.  The boys would continue to be taken care of by V while he is flying.  V has become his partner (not his maid anymore) and has agreed to emigrate to Denmark together with them as a family. He would apply for a family reunification visa for V: [20]. This was the backbone of his relocation application: [60].  Accordingly, the issue of whether or not F and V had become husband and wife fell to be determined in trial.  After having heard the evidence, I found against F and held that the alleged relationship was a fake one.  It was fabricated for convenience so that V might be able to join the family in Denmark.  Significantly, Mr Lee, who appeared on behalf of the Official Solicitor, likewise had great doubts over the genuineness of the relationship: [39].  At the end of the trial, the Official Solicitor withdrew his support for the application.  He was concerned that there were uncertainties in the caring arrangement in Denmark due to first, the uncertain reaction of the boys to the change of V’s role and secondly, the extent of involvement of the grandfather in the taking care of the boys: [39]. I have already set out the relevant evidence and my findings in [63] to [78] of the Relocation Judgment.  I do not propose to repeat them here.   It has to be stressed that it was for this reason that I found the very foundation of F’s childcare plan vanished and accordingly it was unrealistic and had little hope of success: [89] & [91].

18.  I now turn to F’s Grounds of Appeal

Grounds of Appeal

19.  Mr Clough advances a total of 12 grounds with a number of sub-grounds under each, leaving no stone unturned.  He is essentially arguing that I erred in each and every respect.   I consider it is unnecessary to deal with each and every ground / sub-ground.  I propose to deal with them in batches.  In doing so, though I may not be referring to each and every paragraph, it does not mean that I have ignored any of them. 

Grounds 1 and 2

20.  It is submitted by Mr Clough that I erred in law in refusing to allow the application when relocation is plainly in the boys’ bests interests.  He draws on the facts that M does not have direct access to the boys, the favourable opinions expressed by the Social Welfare Officer and the Official Solicitor in their reports and the strong views of the boys.  He specifically contends that I erred in failing to pay sufficient regard to the strong views expressed by the boys.

Discussion

21.  As can be seen in the Relocation Judgment, I was fully conscious of the firm and open views expressed by the boys: [30(7)], [34], [35], [101] & [120].  I too was fully aware of the facts that M does not have direct access to the boys: [3] and the favourable opinions expressed by the Social Welfare Officer and the Official Solicitor in their reports: [29] to [31] and [33] to [37].  I accept that under s 3(1)(a)(i)(A) of GMO, the court is enjoined to give due consideration to the views of the children.  Yet, the ultimate guiding principle is the court shall regard the best interests of the child as the first and paramount consideration: s 3(1)(a)(i) of GMO.

22.  Plainly, these grounds are directed at the exercise of its discretion by this Court.  On appeals against the exercise of discretion, The Hong Kong Civil Procedure (2018) has the following discussion in §59/0/54,

Appeals against exercise of discretion—There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the judge to make, unless it be shown that he exercised his discretion under a mistake of law ( Evans v. Bartlam [1937] A.C. 473 ) or in disregard of principle ( Young v. Thomas [1892] 2 Ch. 134 ) or under a misapprehension as to the facts (ibid.); or that he took into account irrelevant matters ( Egerton v. Jones [1939] 3 All E.R. 889 at 892, CA) or failed to exercise his discretion ( Crowther v. Elgood (1887) 34 Ch D 691 at 697) or the conclusion which the judge reached in the exercise of his discretion was “outside the generous ambit within which a reasonable disagreement is possible” ( G. v. G. [1985] 1 W.L.R. 647 ; [1985] 2 All E.R. 225 , HL). See also Banque Nationale de Paris v. Chan U Tong [1968] H.K.L.R. 151 , and Fung Tin Keung v. Hong Kong Wah Yuen Investment Co. & Another [1967] H.K.L.R. 650 , and Re SY Engineering Co. Ltd (unrep., CACV 1896/2001; [2002] H.K.E.C. 241 , CA) (appeal against a winding up order)…

…

The limitations on the power of the Court of Appeal to interfere with the exercise of a discretion conferred on the judge in the court below apply to residence or contact orders in child cases or any other decisions concerning the welfare of children: G. v. G. [1985] 1 W.L.R. 647 ; [1985] 2 All E.R. 225 , HL. The Court of Appeal will not interfere with the exercise of discretion in child cases unless it can be shown that the discretion was not exercised at all, or that the Judge made some error of law in its exercise, or that the decision was plainly wrong ( TAC v. VDC (unrep., HCMP 2198/2012, [2012] H.K.E.C. 1681 ))…

23.  The problem with these 2 grounds is - and this is what Mr Clough has not addressed - if the childcare plan is unrealistic and accordingly there would be a risk that the boys would be left ‘home alone’ for a few days at a time when their father is on duty, how could this be to the best interests of the boys?   I do not think Mr Clough has been able to demonstrate that there is an arguable case that the discretion was not exercised at all or that I made some error of law in its exercise, or that the decision was plainly wrong.

Ground 3

24.  Mr Clough submits that “The learned Judge erred as aforesaid in the premises that he was aware of the long-standing estrangement between M and the Children and of the circumstances of the alienation”.  He then highlights various incidents leading to the estranged situation that we have now including M’s conviction of ill-treatment of L in October 2016.   I must confess that I do not quite understand this ground.  I take it to mean that although I was aware of the long standing estrangement between M and the boys for which M is responsible, I erred in failing to give sufficient regard to this situation.  If I had given sufficient regard to it, I would have allowed the application.

Discussion

25.  In my view, again, this ground has fallen into the same fallacy as Grounds 1 and 2.  The problem is not with the estrangement.  The problem lies with F – his plan is a fake one.  His very own plot has led to his application being rejected.  It has nothing to do with M.

Grounds 4, 5 and 7

26.  It is submitted by Mr Clough that I called for the Social Investigation Reports and for the boys to be represented by the Official Solicitor to assist the court in its inquisitorial role.  However, the role of the Official Solicitor was not to engage in adversarial advocacy but to assist in the inquisitorial role by investigating into “how the boys’ interests are best served’.  Mr Clough argues to the extent that I facilitated or permitted the Official Solicitor to engage in adversarial advocacy I erred in so doing and the consequence was procedurally unfair and prejudicial to both F and the boys.

27.  As regards the prejudice that F has suffered, Mr Clough submits that, given that Denmark did not have the facility for an International Social Investigation Report: [32], what I should have done was to request the Official Solicitor to furnish the court with sufficient information as to schooling and child services in Denmark or take judicial notice of the fact that Denmark has one of the most advanced systems of social support from cradle to grave in the world.  I erred for having failed to do so.

28.  It is also submitted that I was factually wrong when I described the place which F planned to relocate as a “countryside village”.

Discussion

29.  Mr Clough has not drawn my attention to any authorities on the role of the Official Solicitor in support of his contention.  In the circumstances, the best I can do is to restate what I said in [41],

“The role of the Official Solicitor as a child’s separate representative is twofold: as an officer of the court the Official Solicitor investigates how the child’s interests are best served while simultaneously representing the child’s views as his solicitor in the proceedings: Practice Direction PDSL 6 – Guidance on Separate Representation for Children in Matrimonial and Family Proceedings, at §11…”

30.  As far as representing the boys’ views is concerned, it should be noted that given the nature of the present proceedings, though the Official Solicitor, as the guardian ad litem, is to represent the boys’ interests, such interests may not always accord with the boys’ views: see §5, Practice Direction PDSL 6 – Guidance on Separate Representation for Children in Matrimonial and Family Proceedings.

31.  In re G (minors) (wardship: costs) [1982] 2 All ER 32, [1982] 1 WLR 438, it was opined by the English Court of Appeal that,

In custody cases the Official Solicitor is much more than a mere guardian ad litem. He is at once an amicus curiae, an independent solicitor acting for the children, an investigator, an adviser, and sometimes a supervisor. Perhaps the nearest analogy is that of counsel to a tribunal of inquiry, a relatively new office but a valuable one. This, however, is not a new role for the Official Solicitor, as is borne out by the notes in paragraph 3452A of The Supreme Court Practice (1982) where the following passage is to be found:

“The Official Solicitor is a servant of the court and may at any time be called upon by a judge to carry out an investigation or to assist the court to see that justice is done between the parties (see In re Harbin and Masterman [1896] 1 Ch. 351, per A. L. Smith L.J., at p. 368, and per Rigby L.J. at p. 371). He is appointed to act where, if this were not done, there would be either a denial or miscarriage of justice.”

[emphasis added]

32.  In trial, Mr Lee of the Official Solicitor conducted examination on both F and M and made submissions to the court.  Given the authorities cited above, I do not think it was improper or an error in law in permitting Mr Lee to engage in our adversarial proceedings.  Quite to the contrary, the ends of having the assistance of the Official Solicitor would have been defeated if Mr Lee was not allowed to participate in the manner it was.

33.  As regards the point made by Mr Clough regarding obtaining further information as to the schools, facilities, services and other relevant matters by the Official Solicitor, Mr Clough seems to have forgotten what I said in [87],

87.   I accept that from the evidence adduced by F the shopping areas and the school are only of walking or cycling distance and the initial rented accommodation in Silkeborg is only about 5 to 6 km away from the school.  To that extent, the plan is practical.  I also accept what F said about the education system, the health and dental care system and the natural environment in Denmark.

34.  The short answer to Mr Clough’s point is that even allowing for one moment that the Official Solicitor should have been requested to obtain the information F was not prejudiced by the absence of the same.  In trial, it was not F’s case that there would be social services available for taking care of the boys in substitution for V when he is away for duties nor is it Mr Clough’s suggestion now.

35.  In any event, as Mr Lee rightly points out in his submissions, the fact that the Official Solicitor has been appointed to separately represent the boys in these proceedings should not alter the basic principle that it remains the onus of the parties to adduce evidence to substantiate their own case and/or to rebut the opponent’s case.  Although an international social investigation report was not available, should F consider that the information from the Danish authorities were pertinent or crucial to his application for relocation, the onus was on him to obtain such information and adduce to the court for consideration.  The Official Solicitor does not consider it appropriate to shift the burden to adduce evidence to him.

36.  Finally, as regards the point that I was factually wrong regarding the location where F proposed to settle, I believe Mr Clough has misunderstood what I said in [25]. In [25] I merely set out M’s stance.  I fail to see how it could reasonably be argued that it was a finding of fact by me.

Ground 6

37.  Mr Clough argues that whilst I took into account the Social Investigation Reports as to relocation and other evidence and concluded that F’s application is genuine: [59], I erred in refusing the application on the basis that I was not satisfied as to the care arrangements F proposed.

Discussion

38.  Mr Clough has not made any elaboration on this point.  In the circumstances, I think I only need to refer to what I said in [91]:

As said by Thorpe LJ in Payne v Payne, supra, and approved by our Court of Appeal in SMM v TWM (Child: Relocation), supra, if the application fails either of the tests of (1) whether the application is genuine or (2) whether the application is realistic, refusal will inevitably follow.  At the same time, I do bear in mind that what is ultimately determinative of this application is the best interests of the boys.  Their welfare is the paramount consideration.  With this guidance, F’s application appears to have little hope.  I believe this could never be to the boys’ interests if they are being left ‘home alone’ for a few days at a time when their father is on duty.

39.  In an appeal against a primary finding of facts, the Court of Appeal has to be satisfied that the conclusion on the facts made by the trial judge was plainly wrong: Ting Kwok Keung v Tam Dick Yuen & Others (2002) 5 HKCFAR 336; see also The Hong Kong Civil Procedure (2018), at §59/0/53.  In the present case, there is no challenge on the relevant findings of facts (ie the alleged husband-and-wife relationship was a fake one) which led to the conclusion that the application was unrealistic.

Grounds 8, 9 and 10

40.  These grounds deal with the alleged relationship between F and V which, as found by me, was a fake one.

41.  Mr Clough submits that I confused the detail of F’s relationship with V (as to when they first had sexual intercourse and other details as to their physical life) and other relationship issues as being relevant directly to F’s care arrangements; and the only questions relevant to the care arrangements was as to whether V would be available to assist F in taking care of the boys and, if not, whether there were alternative satisfactory arrangements within F’s care arrangements plan: Grounds 8 & 9.

42.  It is expounded by Mr Clough that it is irrelevant as to whether F and V are husband and wife, what is relevant is that V is available to assist F in taking care of the boys.   The latest position is that V would be allowed to remain in Denmark pending the Family Reunification application and V has been granted a Schengen Visa valid up to 31 May 2020.  It has been accepted by the Danish Immigration Service that V is regarded as a family member of an EU-citizen. Mr Clough mentions that F will make a Ladd v Marshall application to adduce this as further evidence in the appeal in the event that leave is granted.

43.  Mr Clough also argues I erred in coming to the conclusion that the alleged husband-and-wife relationship is not genuine and accordingly there is a real risk that F and V may be liable for prosecution and penalty: Ground 10.

Discussion

44.  As I mentioned in [60], the backbone of F’s application was that F and V had become husband and wife and it was this very basis that placed F in a position where he might apply for a Family Reunification visa for V.  There was never any suggestion in trial that F would be able to apply for a Family Reunification visa for his domestic helper.  Certainly, I believe it is not his suggestion now since Mr Clough has not sought to assert that a Family Reunification Visa could be issued to a domestic helper.  In the circumstances, I fail to see how the relationship between F and V as husband and wife is irrelevant to the care arrangements. 

45.  As for the availability of alternative satisfactory arrangements, I only need to mention that in trial F’s stance had always been that he and V would be the main carers of the boys.  The other care options were brought up in the middle of the trial when probably F realized the possibility that V might drop out of the picture.  That said, he maintained his original childcare plan even up to the final stage of the trial when he made his final submissions.  The court’s role in these proceedings is inquisitorial but I am sure it does not mean that the court had to find an alternative childcare plan for F when he did not even find it necessary to have one.  I fail to see how I could have erred in this respect.

46.  As regards the finding made by me that the husband-and-wife relationship was not genuine, Mr Clough has not sought to elaborate on how my findings are plainly wrong: see Ting Kwok Keung v Tam Dick Yuen & Others, supra. 

47.  As regards the new evidence to be adduced, it is unnecessary for me to express any views since there is no application before me (not even a draft one) and I have not had a sight of this evidence.

Grounds 11 & 12

48.  Mr Clough submits that I erred in failing to pay regard to the evidence that: -

1. F’s priority was the boys and that took precedence over all other aspects of his life,

2. F’s family were supportive of the application, and

3. the relationship between the boys and the grandfather was spontaneous and harmonious, the grandfather was willing to help in taking care of the boys.

49.  I also erred in finding that the boys would be left ‘home alone’ for a few days at a time or “face the risk that they may have to take care of themselves when their father is on duty.”

50.  It is said that I failed take account of the fact that Denmark has social welfare support for single working parents and a child support mechanism that would not permit minor children to be left unattended.

51.  Lastly, I failed to permit F to adduce the statement for his father as to the support that he and his wife would offer.

Discussion

52.  Again, Mr Clough has not sought to expound how or in which respect I erred in coming to these conclusions. As such, with respect, the submissions are no more than bare assertions.  In the circumstances, I need to say no more other than referring to the reasons that I set out in the Relocation Judgment.  As regards the support of F’s extended family and the relationship between the boys and the grandfather, I have set them out in [84]; on the ‘home alone’ conclusion, I have set it out in [91]; and on the refusal of F’s application to adduce further evidence, it is in [89].  At the end of the day, the problem with these grounds is that it was never F’s plan that V would be unavailable for the care of the boys. 

53.  On the point that Denmark has social welfare support for single working parents and a child support mechanism that would not permit minor children to be left unattended, it was never F’s alternative case that he would be a single working parent.  His case was always that he and V was a couple.  I fail to see how this could assist him.

Leave to appeal on costs

54.  There is also an application for leave to appeal against the costs order I made against F.  Mr Clough submits that I erred in awarding costs to M when the application for relocation was genuine and it was F’s case that V would assist him in care arrangements.   He argues that I failed to consider the appropriate costs order in light of the Court of Appeal judgment as to the proper approach to costs in children cases in TPL v WYY formerly known as WYY, CACV 61/2014 (date of judgment: 15 December 2014). 

Discussion

55.  Again, with respect, this ground is no more than a bare assertion.  Mr Clough has not particularised how I erred in the approach adopted.  As I see it, the approach adopted by me was the same as stated by our Court of Appeal in [14.1] to [15.4] of the said TPL v WYY formerly known as WYY, supra.  Significantly, it should be noted that the Court of Appeal in that case endorsed the trial judge’s disapproval over the deliberate non-disclosure on the part of the father of the fact that the children would be sharing the matrimonial home with his girlfriend and their new baby.  The Court of Appeal agreed that this was a reprehensible conduct and consequently, the father met with an adverse costs order.  Though it is axiomatic to say each case depends on its own facts, if the father in that case should be penalized with costs for a deliberate non-disclosure of some material information, I consider it should be more so for F in this case for having fabricated the entire basis of his application.

Order

56.  In conclusion, F has failed to show that he has an arguable case on any of the grounds.  The intended appeal has no reasonable prospect of success.  For this reason, the application for leave to appeal must be dismissed and I so order.

Costs

57.  I see no reason why F should not be responsible for the costs of this application.  I give an order nisi that F do pay M the costs of this application, including costs reserved, to be summarily assessed.

58.  There be no order as to costs between the Official Solicitor and F and M.  This is also by way of an order nisi.