VDR, BA v. TOY

FCMP 171 / 2020

[2023] HKFC 150

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 171 OF 2020

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BETWEEN

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D E C I S I O N
(Extension of Time/Leave to Appeal)

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Foreword

1.  On 10/5/2023, which was the first day of the part-heard trial of the Applicant Father’s (“F”) Originating Summons dated 10/11/2020, this Court delivered an Ex Tempore Decision (“ETD”) whereby an Order Nisi was granted in respect of the care, control and access of the 2 children, namely, AB and AD, which are respectively at the age of 9 and 7.

2.  As early as 21/12/2020, F was granted interim sole care and control of the 2 children and that the Respondent Mother (“M”) was granted interim defined access. On 29/4/2021, F was granted interim joint custody of the 2 children with M. On the 1^st day of trial back on 24/8/2022, parties were granted joint custody of the 2 children by consent leaving behind interim care and control and interim defined access to be fully tried. On 6/9/2022, as M failed to turn up, F continued to have interim sole care and control of the 2 children until further Order.

3.  M’s interim defined access was revised to cater for M’s inability to adhere to the time schedule for access and the need of supervision by one of M’s parents. Lately there was revision on the place of access to the Parkview Clubhouse at Tai Tam, Hong Kong. Suffices was for me to say that the said Order Nisi was mainly to remove the interim nature of the said interim orders. The Order Nisi, as per the ETD, would become an absolute Order if no application was made to vary the same within 14 days after it was granted, that is to say, by 24/5/2023.

4.  Given the fact that M had failed to attend the part-heard trial on 10/5/2023 for reasons of sickness on the strength of medical certificate issued by her natural father, who was an herbalist by occupation, and that was exactly the same that had happened back in August 2022 which had led to the substantive trial last year being adjourned and re-fixed to May 2023 (some 10 months later), I exercised my case management decision to grant the said Order Nisi for disposal of the part-heard trial without prejudicing the parties’ rights and position to seek variation before the Order Nisi became absolute.

5.  F was legally represented throughout and engaged Counsel for the trial in August 2022. M acted in person in all the hearings (except a few hearings in 2020) although it appeared that she has some legal assistance at her back. At the resumed part-heard trial this year on 10/5/2023, F was also unrepresented and turned up by himself.

M's Application – Variation or Appeal ?

6.  On 31/5/2023, M filed a Summons seeking leave to appeal the Order dated 10/5/2023. M also produced her 2-page supporting affidavit where she said :-

“In Recital 6. This is an order nisi which would become absolute if no application is made within 14 days from the date of this Order.

Under this, I must file and serve the Application for Leave to Appeal on or before 24 May 2023 (Wednesday). Due to the need for research and preparation in drafting the complexity of the documents for my Appeal Application after receiving the Order Nisi on 18 May 2023, 8 days after 10 May 2023.

Hence, my application for Leave to Appeal before the deadline was not successfully submitted as I arrived at the Family Court Register (M2 at 5:35 p.m. on 24 May 2023, I could not submit it on 25 May As I have changed my access date spent with the Children from the original (Wednesday) 24 May to (Thursday) 25 May 2023 instead. Since it was public holiday on Friday, 26 May 2023, I was unable to file and serve the application either.

Under all these circumstances, I now seek the Court’s leave to extend the deadline to file and serve my application for leave to appeal within 7 days, i.e. to 31 May 2023 (Wednesday).”

7.  From reading the above, it could be seen that M was mistaken in that the period of 14 days for seeking variation of the Order Nisi was the period for seeking leave to appeal. This was plainly wrong.

8.  As the Order Nisi became an absolute order on and after 24/5/2023, M’s only option was to seek leave to appeal the Order Absolute (emphasis added) if she was dissatisfied with it. Actually she had done so by filing the Summons on 31/5/2023 and attached with a 2-page draft grounds of appeal and a 5-page written statement/skeleton submission.

9.  Given my finding that M was now seeking leave to appeal the Order Absolute (emphasis added) materialised on 24/5/2023 and her Summons was filed on 31/5/2023, she was perfectly within the time for seeking leave to appeal. There was no issue of requiring any extension of time for her to do so.

10.  Hence, I would consider M’s application in such context, namely, seeking leave to appeal the Order Absolute (emphasis added) within time and not seeking variation of the Order Nisi.

F’s Affidavit and skeleton submission in opposition

11.  F, who was now acting in person, apparently was under the misapprehension that M was seeking time extension to appeal the Order Absolute (emphasis added) which was materialised on 24/5/2023. In his Affidavit in Opposition, he referred to M’s “Late filing of appeal application”. On the appeal proper, F referred to M making false claims, unfounded allegations and non-compliance with the interim access orders granted by this Court. There was reference to the social welfare officer’s views that the care and control of the 2 children be granted to him to ensure the status quo was maintained and also the need for closure of these proceedings.

12.  F in his skeleton submissions in opposition raised 4 heads of argument, namely :-

- Infringement of time constraints and persistent delays by M;

- Reiteration of unsubstantiated allegations and non-compliance with court orders;

- Disregard the social welfare officer’s recommendation and disruption of status quo;

- The appeal will exacerbate outstanding issues and prolong proceedings.

M’s Draft Grounds of Appeal

13.  There are altogether 7 short paragraphs within the 1¼-page draft grounds of appeal.

14.  Paragraph 1 referred to her absence due to sickness on the 1^st day of trial.

15.  Paragraph 2 referred to the cancellation of the 16, 17 May and 5 July 2023 trial dates.

16.  Paragraph 3 referred to the Order Nisi being made and her proposed reversal of the care and control of the 2 Children to her with defined access to F.

17.  Paragraph 4 referred to her statements and proposals could not be expressed.

18.  Paragraph 5 referred to her objections to access arrangement under supervision as her mental and emotional health are good. The supervision and visitation are incredibly unfair to her and violated the nature of human relations and human rights.

19.  Paragraph 6 referred to this Court not having considered all factors relating to the 2 Children and their best interests.

20.  Paragraph 7 referred to this Court not adequately addressed improper conduct by F.

The statutory provisions on granting leave to appeal

21.  The jurisdiction on granting leave to appeal was under 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.

22.  The relevant 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, HCMP No.288/2011 per Fok JA (as he then was) at paragraphs 8 and 9 of the Judgment).

Discussion

23.  At the outset I must say that M in the title of her Summons dated 31/5/2023 for the present application, she mixed up herself to be the “Applicant” and F to be the “Respondent” in these proceedings. It should be the other way round. This follows that F also put down the same title in his Affidavit in Opposition and skeleton submissions filed thereafter.

24.  Thus, M in her draft grounds of appeal, whenever she referred to “Applicant”, she was actually referring to herself.

25.  Now I will deal with each of the 7 paragraphs of M’s draft grounds of appeal in sequence.

26.  For Paragraph 1, M’s sickness was relied upon the evidence of the sickness certificate issued by her father dated 9/5/2023 (covering 2 days’ sick leave on 10^th and 11^th May 2023) was duly noted.

27.  From an objective perspective, this was more probable than not a repetition of what had happened on the 2^nd day of trial last year on 25/8/2022. The record shows that at the end of the 1^st day of the trial on 24/8/2022, M informed this Court that she was not ready to start with cross examination of the social welfare officer Miss Kwan. She said she needed time to prepare and would do so on the following day. This request was accepted.

28.  On 25/8/2022 (that is, the 2^nd day of trial), F’s lawyers informed the Court that they received an email from M’s domestic helper saying that M was sick and could not attend Court on that day. The trial was then put back to the 3^rd day, that is on 30/8/2022, with directions for M to produce sickness certificate for her absence on 25/8/2022.

29.  On 29/8/2022 (that is, one day before the 3^rd day of trial), M sent in 2 sickness certificates issued by her father covering 1 day sick leave on 25/8/2022 and 3 days’ sick leave (covering 29/8/2022 to 31/8/2022). The 3^rd day of the trial originally scheduled for 30/8/2022 was then vacated and the trial was further put back to the 4^th day on 6/9/2022.

30.  On 6/9/2022, which was the 4^th day of the 5-day trial, M’s elder brother attended Court and said M was sick and could not attend Court. There was no sickness certificate produced by the elder brother. Given full consideration of the matter, the 4^th day of the trial was not proceeded. The 5^th day trial on 7/9/2022 was also vacated. The whole case was adjourned and re-fixed.

31.  With the above background carefully considered, the 3 days’ sickness certificate dated 9/5/2023 (covering 9/5/2023 to 11/5/2023) was highly skeptical without other cogent proof of sickness. It also happened in exactly the same way as before with M’s elder brother coming along with such sickness certificate issued by her (or their) father, the herbalist.

32.  Although the remaining 3 days of trial on 16/5/2023, 17/5/2023 and 5/7/2023 fall outside the 9/5/2023 sickness certificate, there was no assurance that there would not be any further sickness certificate(s) coming along nearer the time in the way similar to what had happened a year ago in August 2022. Moreover, there was already in place a tight schedule for other witnesses to testify on assigned time slot which would have to rescheduled if this part-heard resumed trial would have to be further adjourned and re-fixed again. In particular, there was a medical expert Dr. Choi who could only testify on a fixed schedule and any re-arrangement would be costs payable.

33.  With the aim of resolving disputes; and in particular on children’s matters, the “sick leave” of M on the 1^st day of the part-heard resumed trial (emphasis added) was viewed with skepticism and not sufficient evidence to further adjourn or postpone the belated trial.

34.  Hence, I find Paragraph 1 of M’s draft grounds of appeal has no substance nor any reasonable prospect of success on appeal.

35.  For Paragraph 2, the cancellation of the 16/5/2023, 17/5/2023 and 5/7/2023 trial dates was to avoid costs being wasted given the readiness and affordability of M to obtain “sick leave” certificate(s) from her father in a way same as in what had happened in August 2022 aforementioned.

36.  I find Paragraph 2 of M’s draft grounds of appeal has no reasonable prospect of success on appeal.

37.  Paragraph 3 of M’s draft grounds of appeal was an assertion of her position and expression of her views rather than any legitimate grounds of appeal which warranted consideration.

38.  Paragraph 4 of M’s draft grounds of appeal was, same as Paragraph 3 above, an expression of views rather than any legitimate grounds of appeal which warranted consideration.

39.  Paragraph 5 of M’s draft grounds of appeal referred to her access being supervised or subject to conditions was unfair for lack of any emotional or health issues on her part. In my decision, M had missed the point completely. The central or core issue was the suitability for her to have free access given her historic background of drug consumption and if there were any risks of danger of the 2 Children if access was not supervised. There was no suggestion of M being an emotional person by character or having any personal health issues. Drug consumption or abuse issues are self-serving and not to be equated with health issues which are apparently not self-serving.

40.  Thus, I find Paragraph 5 of M’s draft grounds of appeal has no reasonable prospect of success on appeal.

41.  Paragraph 6 of M’s draft grounds of appeal does not even get off the ground. It lacks particularity as to what factors had the Court failed to consider adequately or at all which are related to the Children’s best interests. Quite to the contrary, how would the best interests of the Children be served or secured if there was lengthy on-going contentious litigation process of the parents in court which could be easily avoided had the parents been co-operative and conscientiously comply with all court orders and directions.

42.  I find Paragraph 6 of M’s draft grounds of appeal a bare assertion rather than any legitimate grounds of appeal which warranted consideration.

43.  Paragraph 7 of M’s draft grounds of appeal asserted improper conduct without any substantiation or details. Similar to Paragraph 6, such bare assertion could not be accepted as any legitimate grounds of appeal which warranted consideration.

44.  I conclude that none of the 7 draft grounds of appeal has any reasonable prospect of success on appeal.

Any other grounds in the interests of justice ?

45.  Apart from the 7 draft grounds of appeal listed, there was no submissions by M that leave to appeal should be granted on such “otherwise ground”, that is, it is in the interests of justice to grant her leave to appeal. Nonetheless, consideration had also been given by me to this limb.

46.  Upon full and careful consideration, I find that no such ground exists in the circumstances of this case.

Decision

47.  For all the reasons above, I decided that M’s application for leave to appeal fails.

Costs

48.  Given the fact this is a children’s matter, I decided that there be no Order as to costs, including all costs reserved, to be a fair and reasonable costs order.

Orders

49.  I now grant the following Orders :-

(a) M’s Summons dated 31/5/2023 for leave to appeal be dismissed; and

(b) There be no Order as to costs of M’s Summons, including all costs reserved (if any).

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