CYLR v. CYSA

CACV 282/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 282 OF 2005

(ON APPEAL FROM FCMC NO. 5958 OF 2005)

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J U D G M E N T

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Hon Yeung JA (giving Judgment of the Court):

1.  This appeal concerns the interim care and control of a minor, H.  The petitioner is his father and the respondent is his mother.

2.  In early 2004, the mother petitioned for divorce, based on the alleged unreasonable behaviour of the father.

3.  There was then a consent summons in April 2004 withdrawing the petition and providing for the care and custody of H, the only child of the family.

4.  The mother and the father agreed to have joint custody, and that the mother would have daily care and control of H, with alternate weekend staying access to the father.

5.  On 10 June 2005, the father instituted a fresh divorce proceeding and by way of an ex parte application before Judge Geiser in the Family Court, asked for the interim custody of H with reasonable access to the mother.

6.  It was the father’s contention, based mainly on the evidence of a Filipina domestic helper, Miss S, who has been taking care of H since he was born, that the mother had attempted suicide in March 2005, and had frequent fight with her boyfriend who had moved in to live with her on 1 April 2005.

7.  There were also allegations that the mother was frequently out late at night, sometimes not returning home until early hours of the next morning; and that she smoked marijuana.

8.  Surveillances on the mother on 26^th to 27^th May and 1^st to 2^nd June, 2005 showed that the mother left home at 5:30 p.m. and 3:50 p.m. and did not return home until 4:18 a.m. and 7:35 a.m. the next morning, having visited bars and restaurants. 

9.  The judge granted an order for interim care and control of H in favour of the father, and adjourned the interim custody hearing to the 6 July 2005 for an inter parte hearing pending a Social Investigation report.

10.  On 30 June 2005, the mother took out an inter parte summons returnable also on 6 July 2005 seeking to discharge the ex parte order made on 10 June 2005, and for an order that care and control of H be returned to her.

11.  The mother denied the allegation of marijuana smoking. She said she had to be out at night sometimes because she had an interest in a bar or karaoke that she was observed to be visiting at night.

12.  A psychiatric report exhibited to her affirmation suggested that the incident in March 2005 was not a suicide attempt, but a cry for help arising out of the stressful relationship with her boyfriend.

13.  The mother also told the Social Welfare Officer that she would withdraw her investment from the karaoke and make alternative arrangements in order to spend more time with H.

14.  The mother suggested that her own mother could also assist in looking after H.

15.  After a three-day hearing on 6^th, 8^th to 9^th July 2005 (the July Hearing), the judge on 21 July 2005 dismissed the mother’s summons to discharge the ex parte order made on 10 June 2005 with costs, and confirmed the interim care and control order in favour of the father pending determination of interim custody.

16.  The judge also granted the mother access to H, namely alternate weekend access and access each week on Wednesdays between 6 p.m. and 9 p.m.

17.  It is against the judge’s decisions made on 10 June 2005 and 21 July 2005 that the mother appeals.

18.  Mr Clough, on behalf of the mother, says that the judge was wrong in allowing the ex parte application to proceed on 10 June 2005 when there was insufficient urgency. He suggested that the judge had misdirected himself on the effect of the order and had adopted a wrong procedure, particularly when there was material non-disclosure on the part of the father.

19.  Mr Clough, relying on L v C, [2004] 2HKC 387, describes the father’s ex parte application as a pre-emptive strike that the court should discourage. He suggests that it is wrong for the Family Judge to have relied on the change of the status quo arising out of such pre-emptive strike.

20.  Mr Clough also suggests that at the ex parte hearing, counsel for the father failed to follow Practice Direction 11.1 in submitting skeleton argument or authorities, or to address the court by way of oral submission on the proper approach that the court should adopt.

21.  In so far as the July Hearing was an application regarding the custody of and right of access to a minor, Mr Clough contends that the hearing failed to comply with the statutory requirements of section 17 of the Guardianship of Minors Ordinance, Cap 13.

22.  In any event, Mr Clough argues that the judge was wrong in varying the consent arrangement that had been approved by the court and in not maintaining the status quo when he found that “the competing claims are finely balanced” (Emphasis added).

23.  Mr. Clough emphasizes that H’s need for parental care as opposed to care by a maid had been over-looked. He contends that it was the mother who primarily cared for H prior to 10 June 2004.

24.  Whatever happened at the ex parte hearing on 10 June 2005, it is water under the bridge. There had been an inter parte hearing lasting three days and the judge made the order, having regard to the paramount interest of H, based on the information available to him. The ex parte order had been superseded by the inter parte order.

25.  The issue we have to decide is whether the judge was entitled to conclude, as he did, that the paramount interest of H required his interim care and control to be removed from the mother and be given to the father.

26.  Surprisingly, Mr. Clough has said very little on this issue before us with reference to the material information and relies principally on what can be described as highly technical matters.

27.  We fail to see the significance of section 17 of the Guardianship of Minors Ordinance. No objection was raised at the hearing about the failure to comply with the statutory provision. There is no suggestion of any consequential prejudice.

28.  It is simply not a matter that requires further discussion.

29.  The judge had said in his judgment that “the competing claims are finely balanced”.  However, it must be his conclusion that in the paramount interest of H, his interim care and control should be given to the father. He said so in paragraphs 25 and 31 of his judgment.

30.  H is 3 ½ years old. He has always been taken care of by Miss S, whose employment with the mother has terminated and she now works for the father, principally looking after H.

31.  The mother’s business interest appears to have required her to be away from home and at bars or similar establishments throughout the night.

32.  Despite the mother’s assertion that she would either resign completely from her job or work part-time in order to spend more time caring for H, and that her mother would assist, the fact remains she had in the past, to a considerate extent, delegated the daily care of H to Miss S. She had dismissed Miss S and Miss S now works for the father, and continues to take care of H.

33.  We do not find it necessary to resolve the issue of whether the mother was a cannabis user, although any such resolution would not be in her favour.

34.  The general background of the case certainly supports the father’s contention in seeking to vary the arrangement of H. As the judge rightly pointed out, the mother’s proposal of taking care of H without the assistance of Miss S was untried. H is being well looked after by the father with the help of Miss S.

35.  What is perhaps most significant is the mother’s apparent attempt to commit suicide as a result of the “stressful relationship” she had with her lived-in boyfriend. As the judge quite rightly emphasized: “There remains also the question of the mother’s past emotional instability and whether or not there will be any repetition of her cry for help”. The psychiatrist’s prognosis that the mother is unlikely to develop severe mental symptoms in future is premised on a stable relationship between the mother and her boyfriend.

36.  Mr. Clough’s complaint that the judge had relied on the “unjustified” change of the status quo between 10 June and 6 July 2004 in granting interim care and control to the father is unfounded.

37.  S 19(a) of the Matrimonial Proceedings and Property Ordinance empowers the court to “make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18…in any proceedings for divorce…”

38.  We cannot fault the judge, an experienced Family Court judge, for concluding, as he did, that allowing the father to have interim care and control of H was in his paramount interest. It was a proper exercise of discretion based on material evidence available to him.

39.  There is no basis for varying the order made by the judge. The appeal against his decisions is therefore dismissed.

40.  We are, however, persuaded that the father’s ex parte application on 10 June 2005, despite the suggested urgency, might not be entirely appropriate. The father could perhaps have notified the mother of his intended application. The ex parte order should at least inform the mother of his right to apply to discharge the order at any time, a matter which Ms Wee, counsel for the father, concedes. We also bear in mind the nature of the application.

41.  We are of the view the an appropriate costs order on the mother’s ex parte application is that there should be no order as to costs. We therefore set aside the costs order against the mother on her application to set aside the ex parte order and in its place make no order as to cost.

42.  We also make an order nisi of no order as to costs on this appeal.