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FCMP 151 /2008
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS
NUMBER 151 OF 2008
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IN THE MATTER OF AK, a girl born on the 7th March 2002, and KK, a boy born on the 14th January 2004; the Minors |
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and |
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IN THE MATTER OF Section 3(1)(a) & (b), Section 10(1) and Section 23 of the Guardianship of Minors Ordinance, Cap 13 and Order 90, rule 5(3) of the Rules of the District Court, Cap 226 |
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BETWEEN
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RK |
Applicant |
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and
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YS |
Respondent |
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Coram: Deputy District Judge S. Lo in Chambers (Not Open to Public)
Date of Hearing: 18 July 2012
Date of Applicant’s written submission: 4 July 2012
Date of Respondent’s written submission: 12 July 2012
Date of Judgment: 30 August 2012
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J U D G M E N T
(Leave to appeal)
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1. This is the application of the Applicant (“the Father”) for leave to appeal from the Judgment of this Court dated 8 May 2012 (“my Judgment”).
LEGAL PRINCIPLES
2. The source of jurisdiction for the application is section 63A of the District Court Ordinance (Cap. 336) and the practice and procedure of the application is governed by Order 58 of the Rules of the District Court.
3. Leave to appeal shall not be granted under section 63A of the District Court Ordinance unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard.
4. The relevant test of whether an appeal has a reasonable prospect of success under section 63A is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.[1]
5. The solicitors acting for the Father did not file a draft Grounds of Appeal but filed a written skeleton submission as directed by me. I will therefore try to look for the Grounds of Appeal from his written skeleton submission.
6. In para 4 of his written skeleton submission, it states a ground of appeal that there was no evidence to support the finding that the 2 children in question would be looked after by Rosa, the domestic helper hired by the Father, most of the time.
7. Ms Brown, solicitor acting for the Father, rightly cited a passage from the Judgment of Hartman JA who granted a stay of the ouster order in this case. His Lordship said:
“….the judge in the Family Court having recognized that the father plays a very real and constructive role in the welfare of both his children, has decided the difficult issues facing him on the basis essentially that the father is the breadwinner and must therefore go to the office for a lengthy period of time each day. With respect, that ignores the fact that there can be many ways in which the parent who must work can nevertheless fully and effectively continue to guard the best interests of the children. In such matters, a nimble and sophisticated approach is required. In layman’s language, difficult issues like this may sometimes demand lateral thinking”
8. However, Ms Brown fails to quote another 2 important paragraphs from the Judgment of Court of Appeal[2], in which Rogers VP said as follows:
“16. In the present case the applicant (the Father) is clearly not in a position to give full-time care to the children. His working hours have already been referred to. They leave little, if any, time during a week for him to see the children. The judge’s request that he should try to use its best endeavours to be home by 6 pm three times a week is clearly something that would be difficult for him, given his own evidence as to the necessity to entertain clients at night. The conclusion must be that, even if he were at home by 6 pm, that would not necessarily mean that he would remain home for the rest of the evening.
17. The applicant (the Father) is clearly highly dependent upon the Filipina maids, Rosa and Del. Whilst the applicant has expressed great trust in Rosa, unfortunately she remains a hired help. A hired help can be no substitute for a mother. …..”
9. First of all, I do not think that I shall disturb such finding by the Court of Appeal. Secondly, the Father took out the Summons for variation of custody just about 7 months after the date of the Judgment of Court of Appeal and then said that he now left work between 5pm and 5.15pm from Monday to Friday and did not go to work on Saturday or Sunday. I would not accept his evidence in this regard bearing in mind that he is a securities trader presently earning at least $125,000 per month and earning about $5 million at the time of the trial before Deputy Judge KW Wong (as he then was)[3]. No explanation is in fact given by the Father as to why he can suddenly leave work so early now. In any event, the Mother is not working and can take care of the 2 children on a full time basis. She is no doubt the primary carer of the 2 children since their birth and has obvious advantage over the Father in this regard. Besides, the 2 children must have a lot of school holidays, eg summer vacation, Christmas, Lunar New Year, Easter holiday etc. During these school holidays, I do not think that the Father can take his annual leave to look after them but has to rely on Rosa to take care of them.
10. In para 8 of his written skeleton submission, it states that I failed to make any or any proper findings in respect of the parties’ character.
11. I consider that Ms Brown, solicitor acting for the Father, simply ignores paragraphs 59 to 69 of the Judgment of Deputy Judge KW Wong[4] (as he then was), in which he had already made proper findings in respect of the parties’ character. Such findings are not overturned by the Court of Appeal. I do not think that someone’s character would change drastically in view of the short period of time after the Court of Appeal judgment. Hence, in my view, it is unnecessary for me to do this exercise again.
12. In para 9 of the Father’s written skeleton submission, it states that I erred in law by proceeding on the basis that I was bound by findings of fact made previously. In para 14 of my Judgment, I quoted the case Re B (case proceedings: issue estoppels)[5], in which Hale J. said that:
“Hence, if the applicant in one set of proceedings wishes to rely on findings made in previous proceedings in order to prove a case, the court will have to consider how this should be done. Frequently, although such findings are not necessarily accepted by the party concerned, that party will accept that a challenge to them in later proceedings will be futile. The court may then simply rely upon the findings made earlier. Sometimes, the party concerned or some other party will wish to challenge them. In such an event, it seems to me, the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh.”at 295F (emphasis added)
13. Ms Cruden, Counsel for the Father, never submitted at the trial that the Father wished to challenge certain findings made earlier and invited this Court to try such issue of fact afresh. In the circumstances, I shall simply rely upon the findings made earlier in the Judgment of Deputy Judge KW Wong (as he then was) and the Court of Appeal.
14. In paras 14 and 15 of the Father’s written skeleton submission, it states that I failed to place the children’s best interests as the paramount consideration. I think that I have set out the legal principles in paras 11 to 22 of my Judgment and I do not need to repeatedly say in my Judgment that I am fully aware of the children’s best interests as the paramount consideration.
15. In para 21 of his written skeleton submission, it states that I failed to make a clear and unequivocal finding that to deprive KK of many months of schooling is contrary to his best interests. In para 103 of my Judgment, I said:
“I accept that the Mother has still a lot of room to improve herself with regards to taking care of KK. Nonetheless, I am of the view that she is a loving and devoted mother though not perfect.”
16. In considering an application for custody, I consider that the Court shall try not to encourage the parties to play the “blame” game, namely making finding of who shall be blamed in a particular incidence. In my view, it will only add further insult to the injuries of the parties who are already in a highly conflicted and acrimonious situation. Indeed, no parents in the course of taking care of their children will not make mistake. The fact that the Mother made a mistake regarding the deprival of KK of few months of schooling is only one of the many factors for me to consider whether to grant the care and control of KK to her.
17. In para 27 of the Father’s written skeleton submission, it states that there is absolutely no reference in my Judgment to the incident of the fire that occurred at the Mother’s home, which happened during the trial. The Mother was extensively cross examined as to the fire at her home and answered every question put sensibly and thoroughly. Needless to say, she was up through the night and she told her Counsel, Mr Neal Clough, what had happened when she arrived at Court next day. Mr Neal Clough then relayed the information to the Father’s solicitors and Counsel, Ms Cruden. The fact that there was no reference to this in my Judgment does not mean I did not listen and consider the evidence.
18. I take the view that the fire incident is insignificant. That is why I said in para 52 of my Judgment as follows:
“For the purpose of the present application, I consider it will not be necessary for this Court to resolve each and every issue in dispute, especially some of which are insignificant.”
19. In para 27 of the Father’s written skeleton submission, it states that I misconstrued the Court of Appeal decision. Ms Brown, solicitor acting for the Father, submitted that the Court of Appeal does not overturn or reverse the finding of the Mother’s alienation made by Deputy Judge K.W. Wong (as he then was). If that is the case, I wonder why the Court of Appeal still overruled the decision of Deputy Judge K.W. Wong (as he then was) and allowed the appeal of the Mother.
20. In para 38 of the Father’s written skeleton submission, it states that the issue was the reason for the polarization and why AK was so negative in respect of the Father, not why she preferred being with the Mother. In my view, if the Father accepted that AK was so negative to him, he shall seek proper order from the Court to implement all the recommendations made by Dr Levy rather than applying for variation of AK’s care and control from the Mother to him. In view of the fact that AK was so negative in respect of the Father, variation of AK’s care and control from the Mother to him is certainly not in the best interest of AK.
21. In para 45 of the Father’s written skeleton submission, it states that my reliance on one of Dr. Levy’s recommendations is inconsistent with my rejecting her findings and conclusion. First of all, the Court is not duty bound to accept all the expert evidence. The Court is entitled to partly accept and partly reject the expert evidence. Secondly, since I accept the finding of Dr. Levy that AK was so negative to the Father, I also accept her recommendations with a view to improving the bondage or relationship between AK and the Father.
22. In any event, the issue of alienation is only one of the many factors for me to consider whether to vary the care and control of AK to the Father. I do not think that there is any legal authority stating that if the Court finds alienation by one parent, custody, care and control of the child shall then be granted to the other parent automatically. After all, it must be a balancing exercise by the Court after having duly considered the best interest of the minor and all other circumstances. Indeed, nowhere in the reports of Dr Levy that she recommends the Court to grant the care and control of AK to the Father. Although Dr Levy makes many recommendations to improve the father-daughter relationship, the Father made no submission to this Court as to how to implement such recommendations.
23. In para 61 of the Father’s written skeleton submission, it states that I completely ignores the physical needs of KK for his medical condition. It is not in dispute that KK is a low functioning autistic boy. However, both parties especially the Father did not adduce any expert medical evidence regarding KK’s medical needs. I understand and am fully aware of the hot dispute between the parties as to the medical treatment of KK in respect of his autism. In short, the Mother’s approach is much conservative than that of the Father who is quite aggressive in the sense that the Mother is considering that the Father is forcing KK to receive some medical treatments which are not approved by the relevant authority in Hong Kong. Nevertheless, for the purpose of this application and due to very limited or no expert evidence regarding KK’s medical needs, I am not in a position to make any comment on the parties’ approach or what medical treatment shall be given to KK.
24. For AK, I have no doubt to put great weight on her wish to stay with the Mother. Since both parties are against split custody, it is not disputed that in the best interest of the children, KK shall reside with and not separate from AK. Hence, there is no reason to grant the sole custody of KK to the Father.
25. In conclusion, I am not satisfied the Father has demonstrated that the proposed appeal has a reasonable prospect of success or that there is any reason in the interests of justice why leave to appeal should be granted.
26. For these reasons, I would dismiss the Father’s summons dated 22 May 2012 seeking leave to appeal and make an order that the Father do pay the costs of the application to the Mother with certificate for counsel.
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( S. Lo )
Deputy District Judge
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Ms Brown Jain Ruskin of Messrs Hampton, Winter & Glynn for the Applicant
Mr Neal Clough instructed by Messrs Massie & Clement for the Respondent
[1] See KNM v HTF HCMP 288/2011, Date of Judgment: 7 September 2011, §§8 and 9
[2] CACV 193/2010
[3] See para 17 of HH Judge KW Wong’s Judgment dated 8 June 2010
[4] Ibid, n3
[5] [1997] 1 FLR 285
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