HTL v. K, RE

HCMP 1319/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1319 OF 2015

(ON APPEAL FROM FCMC NO. 1678 OF 2013)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for leave to appeal against the judgment of Her Honour Judge Melloy [“the Judge”] in FCMC 1678 of 2013. By her judgment of 5 March 2015, the Judge varied an order for access granted by Her Honour Judge B Chu (as she then was) on 10 September 2012 in respect of 2 children, A (a girl of 13) and J (a boy of 8.5).

2.  The access order as varied by the Judge was summarized by her at paragraph 38 of her judgment of 5 March 2015:

“ 38. In such circumstances I have decided to make an order which is slightly different to the recommendations made by the Social Welfare Officer, but closer to the order originally sought by the mother. I am concerned that the children should be able to see their father at least twice a week. Thus I will replace J’s Tuesday and Thursday evening access times with Friday evening access from 6:30 pm – 10:00 pm. A shall also see her father on Friday evenings at the same time. This is longer than the two hours recommended by the Social Welfare Officer – which seems very limited in the circumstances, but is as originally requested by the mother. In addition I will order that both A and J see their father every Sunday from 10:00 am – 6:00 pm. The mother originally suggested weekly access – which again seems more appropriate to access every alternate weekend. As indicated above I have suspended all staying access for the time being. Thus there will be no staying access during the school holidays. Instead there will be day time access during the father’s share of the school holidays from 10 am – 6 pm. I will also swop the public holiday access as requested by the mother.”

3.  As shown in her judgment of 5 March 2015, the Judge gave considerable thought to the question of staying access and in the end she decided to suspend staying access until after the ancillary relief trial (which was due to be heard in June 2015).  The main grounds for her doing so were set out at paragraphs 36 and 37 of the judgment:

“ 36. I have given this matter considerable thought. Should staying access be suspended until such time as the father’s living conditions have improved? To an extent the father might argue, and with some justification it seems to me, that is also dependent on the outcome of the ancillary relief trial and any decision that I may make in relation to the division of the assets (and in particular any orders that might be made in relation to the former matrimonial home). The other main issue relates to the earning capacity of the father and whether or not he is capable of earning his own living and contributing towards the upkeep of the children. Notwithstanding that however the father should nevertheless be able to improve his present living conditions – so that, for example, the apartment is neat and tidy and extraneous items are thrown away. It should be also be dusted etc. He should also ensure that the children eat nutritional meals when they are in his care.

37. In such circumstances I have decided to suspend all staying access until after the ancillary relief trial whereupon the situation may be reviewed further.  This will also be subject to a further Social Welfare Report.  For the avoidance of doubt I will expect the father to co operate fully with the Social Welfare Officer in the commission of that report.”

4.  The Judge correctly pinpointed the guiding principles in applications of this nature: that the court shall regard the best interests of the children as the first and paramount consideration.  She explained in earlier paragraphs of her judgment why she found that the conditions of the father’s residence were unsatisfactory and unsuitable for staying access.  She also took account of other relevant matters, including the children’s respective unpleasant experience in the staying access with the father. She also had regard to the reports of the Social Welfare Officer and Clinical Psychologist though she decided to adopt a different course proposed by them, as she was no doubt entitled to as a matter of law.

5.  The father applied for leave to appeal against that decision.  The Judge refused leave on 15 May 2015.

6.  By a summons of 29 May 2015, the father applied to this court for leave to appeal.

7.  The mother opposed the application and submitted a statement for that purpose on 11 June 2015.

8.  Pursuant to s 63A(2) of the District Court Ordinance Cap 336, leave to appeal should not be granted 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 why the appeal should be heard.

9.  Having read the grounds of appeal attached to the father’s affidavit of 29 May 2015, and the statement of the mother, we are not satisfied that the appeal has any reasonable prospect of success.  Nor do we see any other reasons in the interests of justice to have the appeal heard.

10.  The grounds now put forward by the father are not the same as those he advanced before the Judge when he sought leave below. He has not explained why he did not put forward some of those grounds before the Judge.  This court has said on several occasions that we need to be cautious in permitting new grounds to be raised for the first time as we are in effect asked to deal with a ground without the benefit of the view of the court below, see Jenho Development Ltd v Pensonic Technology (HK) Limited HCMP 277 of 2013, 25 March 2013; Lehmanbrown Ltd v Union Trade Holdings Inc HCMP 977 of 2015, 17 June 2015.  

11.  We proceed on the basis that the father no longer relies on the grounds advanced below which are not repeated in the document of 29 May 2015 now placed before us.

12.  The father’s grounds in the application before us are mainly directed against the Judge’s impartiality.  We do not think the Judge’s purported comments in the newspaper article (we say “purported” because the father did not produce the article to us) could cast any doubt on the Judge’s impartiality in the eyes of a fair minded informed observer.  It is quite clear from the judgment that the Judge reached her decision on the basis of the evidence and materials before her rather than some pre-conceived notions against joint custody.   

13.  As regards the other allegations, the father did not produce the transcript of the hearing before the Judge to make good his complaints notwithstanding that the Judge had granted him leave to obtain the transcript.  Without the transcript, we cannot simply accept that these complaints were valid on the bare allegations of the father.  Further, what the father alleged the Judge to have said has to be understood in the context of a hearing where there were complaints from the mother and her counsel about the father’s strange behaviour as mentioned by the Judge at paragraph 27 of her judgment.

14.  The Judge’s refusal to allow the father to cross-examine should be considered in light of what she said at paragraph 19 of the judgment and paragraph 10 of her decision refusing leave. Against such background, as the father could not put forward any reasonable basis for requesting such cross-examination (and he still has not done so in this application) the refusal was within the case management discretion of the Judge.  We see no reason for this court’s interference with such exercise of discretion.

15.  As we said, it is within the Judge’s power to take a course different from that proposed by the Social Welfare officer and in the present case the Judge gave perfectly sound and cogent reasons for doing so.  We do not detect any error of law in that regard.

16.  We do not see any reasonably arguable basis for the father’s suggestion that justice has not been seen to be done. 

17.  For these reasons, we refuse to grant leave to appeal.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), the Rules of the High Court, we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.

18.  Neither party is represented.  We make no order as to costs for this application.