NLC v. YMF

FCMC 8442/2018

[2022] HKFC 3

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8442 OF 2018

----------------------------

----------------------------

-------------------------------------

DECISION

( Leave to appeal )

-------------------------------------

Background

1.  The petitioner of this case is the wife/mother. The respondent is the husband/father. They married in 2005 but divorced in 2019. A son was born within their wedlock in 2008. He has autism spectrum disorder and strabismus/squinting eyes. He is now 13 years old. The mother is a housewife. She and the son were (and still are) financially dependent on the father.

2.  By a consent summons dated 7 September 2018 which was made into a consent order on 17 September 2018, the father agreed that sole custody of the son be granted to the mother and that he would have day access only (“Consent Order”). Their ancillary relief was also settled pursuant to another consent order made on 29 January 2019, under which he was to pay her $8,500,000, so that he could keep all 4 family properties, including a property in Tusen Wan which she was to transfer her interest therein to him. Decree absolute was made accordingly on 15 March 2019. One month after the decree absolute, he married his then girl-friend who already borne him a son in 2018.

3.  Shortly after the decree absolute was granted, the father started to request the mother to agree to vary the Consent Order to a “joint” custody order. Yet, he did not take out a formal application for such variation, not until about 1 month after she applied to the court to sell the aforesaid Tsuen Wan property, so that she could be released from the liability as the mortgagor to buy a property for herself and the son to live in. It was said that despite her repeated request for him to make arrangement to transfer her interest in the Tsuen Wan property to him, he proffered that he would only be able to do so upon full repayment of the mortgage (which would take almost 19 years).

4.  Hence, 15 months after the Consent Order, the father made an application on 20 December 2019 to vary the Consent Order from “sole” custody to “joint” custody. He also sought to increase the access to the son, which was settled during a children dispute resolution (CDR).

5.  After a 3-day’s trial on the only question of whether the “sole” custody order made by consent should be varied to a “joint” custody order, I handed down my judgment on 17 October 2021, dismissing his application and awarding costs (from immediately after the CDR to the trial) in favour of the mother (“Judgment”).

6.  By his summons filed on 8 November 2021, the father now seeks leave to appeal the orders made in the Judgment.

7.  For convenience, I shall adopt herein the abbreviations used in the Judgment.

The Judgment

8.  In dismissing his application, I held in the Judgment that,

(1)  the recommendation made by the SWO for the court to make a joint custody order was not accepted by the court (See: §27 of the Judgment);

(2)  I rejected the father’s claim that the son dared not express his true wishes that his custody should be granted to both parents. Taking into account the totality of all evidence, I am of the overall view that the son is satisfied with the current arrangement concerning him, which includes custody arrangement (See: §28-§38 of the Judgment);

(3)  I do not believe that way back at the time of divorce in 2018, he was pressurised by the mother to accept a sole custody order. Rather, I am of the view that his major focus at the material times was on the ancillary relief matters, in particularly to see that the registration of the ancillary relief notices registered by the mother against the 4 family properties, 3 of which were (and still are) in his sole name, could be removed soonest possible (See: §39-§66 of the Judgment);

(4)  I do not accept that the mother would make unilateral decisions on major matters raised by the father, despite that a sole custody order has been in place. I am of the further view that the father has not made any or sufficient effort to be involved in the son’s major matter(s) when the opportunities arose (See: §67-§79 of the Judgment);

(5)  That the father’s new family has settled down and the son is getting along well with his new family is not accepted by the court as a reason or material change of circumstances per se to vary the Consent Order (See: §80-§85 of the Judgment);

(6)  I do not believe the father was fighting for the best interest of the son (See: §86-§98 of the Judgment)

(7)  I therefore conclude that not only has the father failed to persuade the court that there has been a material change of circumstances to warrant a variation of the Consent Order, I am also of the view that varying the Consent Order from “sole” to “joint” custody is not in the best interest of the son (See: §99-§100 of the Judgment).

Applicable Legal Principle

9.  Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted (a) unless the intended appeal has a reasonable prospect of success or (b) that there is some other reason in the interests of justice that the appeal should be heard.

10.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant 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”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

11.  The father’s appeal is essentially directed to the Judgment made in the exercise of my discretion. It is trite to say that where the court below exercised a discretion, the appellant court would only intervene when it considered that the judge below was in fact plainly wrong, and not merely because the appellant court preferred a solution which the judge had not chosen.

12.  In G v G (Minors : Custody Appeal) [1985] 1 WLR 647, the English House of Lords authoritatively re-stated what Lord Fraser of Tullybelton pointed out in the exercise of jurisdiction involving the welfare of the children (at p651) that :

“The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge’s decision was wrong, and unless it can say so, it will leave his decision undisturbed.…there are often two or more possible directions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong.” (my emphasis added)

13.  The principle to be applied therefore is, he said (at p652), that :

“the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible” (my emphasis added).

Proposed Grounds of Appeal

14.  In his draft Notice of Appeal, the father sets out 5 grounds for appeal:

(1)  I erred in law in failing to observe and apply the proper approach in deciding the issue of joint custody as set out in Hartmann JA (as he then was) in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191 (“Ground 1”);

(2)  I erred in law in concluding that the factual findings in the Judgment undermine (instead of strengthening) an order for joint custody (“Ground 2”);

(3)  I erred in law in applying the test that there must be material change of circumstances” after a consent order was made to warrant a variation to joint custody (“Ground 3”);

(4)  I erred in law in concluding that the need for variation to joint custody no longer engaged on the basis that the major matters were already discussed and agreed by the time of the trial (“Ground 4’);

(5)  I had made 8 clear errors in factual findings (“Ground 5”).

15.  Ms Athena Wong, counsel for the father, says in her written submission that his application for leave to appeal is premised on both limbs of the aforesaid section 63A(2).

Grounds 1 and 3

16.  I shall deal with these 2 grounds together, because they concern the father’s serious allegation that I failed to apply the correct legal principles.

17.  The court is of course aware of the comment of Hartmann JA (as he then was) about joint custody in PD v KWW (supra). However, it is also trite law that if the court is of the view that a joint custody order may result in doing more bad than good for a child, then a joint custody order will not be made (See: Y v P, CACV 140/2009; MJ v YJ, HCMC 13 of 2006).

18.  After all, there is only one authentic test in relation to children’s matters, ie what is in the best interest of a child. Whether at the end of the day, a sole or joint custody is to be made depends on the facts of each case, to be evaluated by the trial judge, who has the benefit of hearing viva voce evidence and observing the demeanour of each witness during the trial, by considering what is in the best interest of a child, upon taking into account all the evidence and matters holistically and all the circumstances of the case.

19.  In the Judgment, I have considered all the relevant evidence, including the father’s reasons for varying the sole custody order, to arrive at the conclusion that it is not in the best interest of the son to vary the original Consent Order. Importantly, I reject his major reason that he was pressurised by the mother to agree to sole custody (See: §39-§66 of the Judgment). I also reject his another argument that he was fighting for the best interest of the son (See: §86 to §98 of the Judgment).

20.  Even worse, if the matters are viewed holistically and in the round, I am highly suspicious that there is an ulterior motive on the part of the father to make this application, namely to punish the mother for her refusal to vacate her ancillary relief notices before she received the lump sum payment from him at the time of their divorce (See: §106 to §112 of the Judgment).

21.  On the other hand, Ms Athena Wong, counsel for the father, makes the bold submission that I erred in law by setting a “prerequisite” that there needs to be a “material change of circumstances” in this application of the father. Counsel argues that B Chu J’s judgment in C v S [2017] HKFLR 562 did not rule that “material change of circumstances” was a precondition for such variation applications. To this line of submission, I have the following to say.

22.  First, with respect to Ms Wong, it is a wrong interpretation to the Judgment that I ruled that “material change of circumstances” is a “prerequisite” to the father’s variation application. Had I ruled that, I would have stopped the analysis there and then, and would not have gone into other matters and factors, such as the recommendation of the SWO, and/or wishes of the son. As a matter of fact, I looked into “all the circumstances of the case holistically in order to make a decision in the best interest of the son” and “all the evidence in the round” (See; §95 and §99-§100 of the Judgment).

23.  Second, the court is fully alive to the notion that the doctrine of res judicata or issue estoppel is generally not applicable to the children’s matters. Yet, when it comes to an application to vary an original order made by consent, in particularly when both parties were legally represented at the time when the original consent summons was signed, within a relatively short period of time, the court is not only perfectly entitled, but should also consider if there is any material change of circumstances.

24.  Lam PJ (then Lam J) in HCTT v TYYC [2008] HKFLR 286 has reminded Family Court Judges to be “astute to guard against unmeritorious applications for variation by litigants who have second thoughts about settlements they have knowingly reached on their own volition”. Although His Lordship made the comment in the context of an application for variation of an ancillary relief order, I am of the view that the same logic and/or principle applies to custody proceedings. Here is what His Lordship said in the judgment,

“42. On the first point, I need not repeat what the Vice President has said. I wish to highlight what Stock JA said in L v C [2007] 3 HKLRD 819 at para.42, p.842C,

‘The courts must be astute in this field to guard against the manipulative litigant who seeks to undo an agreement … and to bear in mind the factors, quite clear now as a result of developed authority, which might go to vitiate such agreement ….’

43. I hasten to add that the courts in the family jurisdiction must be equally astute to guard against unmeritorious applications for variation by litigants who have second thoughts about settlements they have knowingly reached on their own volition.

…

47. I think the following approach suggested by Stock JA at para.42 of L v C [2007] 3 HKLRD 819 at p.841, with slight modifications, can equally serve as a good guidance for deciding whether an application for variation of periodical payments in a consent order should be entertained,

‘an agreement [on periodic payments] is “‘presumptively [not to be varied without material change of circumstances]”, the burden being on the party seeking to achieve a different [terms] to show good and substantial cause why the compact should not be respected, and … the scope for so doing is one directed at an injustice in the circumstances in which the agreement came to be concluded or in clear injustice occasioned to one of the parties by reason of event unforeseen at the time of the agreement were the agreement to be enforced to its letter.’”

25.  Here in this trial, it can hardly be disputed that the trial concerned an application for variation of the Consent Order shortly after it was made. The chronology is already set out in §2 to §11 and §106 to §112 of the Judgment. As I have said at §112 of the Judgment, while the court accepts that children’s matters may be evolving as the children grow, the court should be vigilant to guard against unmeritorious and tactical application. The father is the applicant parent in this case who proffers to vary the Consent Order, the court should, in discharging her duty to determine what is in the best interest of a child, find out why the Consent Order has to be varied within a relatively short period of time, and decide what weight should be given to the Consent Order.

26.  Third, the reference to B Chu J’s comment in C v S (supra) in the Judgment should thus be understood in the light of the above comment of Lam PJ (then Lam J). In fact, I beg to agree with what B Chu J said at §65 of her judgment,

“In any event, a custody, care and control, or access order, even if said to be ‘final’, this does not necessarily mean that an order expressed as such will bring finality to the matter, since in relation to a child, a parent can make an application for variation, where there is a material change of circumstances…” (my emphasis added)

27.  The father’s criticism of the Judgment that had I applied the correct approach and test, I would have found for joint custody in light of the facts of this case (See: §2-§3 of the draft Notice of Appeal), and/or I erred in facts in finding that there was no material change of circumstances (See: §7 of the draft Notice of Appeal) will be addressed separately and later in this decision.

Grounds 2 and 4

28.  These 2 grounds will be considered together, as well as with §2-§3 and §7 of the draft Notice of Appeal, because they relate to the father’s comment about my evaluation of the facts of this case. In gist, he submits that the following facts in this case supports (instead of undermines) a joint custody order be granted:

(1)  The parties were able to agree on the various questions of importance that would undermine the upbringing of the son, such as his eye surgery and the choice of his secondary school;

(2)  The SWO in this case recommended that joint custody was in the best interest of the son;

(3)  The mother would discuss important matters of the son with the father and would not make unilateral decisions on the son’s matters.

29.  Further, the father argues that the fact that the son is now able to get along well with his new family should not be viewed by me as “a non-pointer” on whether sole custody should be varied to a joint one, because this allows him to further the son’s best interest by participating more in his upbringings, which is not limited to the decisions on eye surgery and choice of his secondary school.

30.  In the Judgment, I have considered the recommendation of the SWO, but concluded that her opinion should not be embraced by the court, with reasons provided (See: §27 of the Judgment). It is settled law that the court is not obliged to follow the recommendation of the SWO but should provide reasons for not taking the recommendation (See: §26 of the Judgment). The father has not challenged my reasoning of not following the opinion of the SWO in this case.

31.  On the other hand, one of the major reasons for the father’s variation application is that he is prejudiced by unreasonably deprived of the opportunity to play an active role in major decisions of the son. He cited 2 areas of concern, namely the son’s eye surgery and choice of secondary school. However, his case is rejected by me (See: §70-§79 of the Judgment). Importantly, the evidence of the trial does not support that he has made any or sufficient effort to be involved in the son’s major matters when the opportunities arose (See: §72-§77 of the Judgment). This in turn weakens his own claim that the good relationship of the son with his new family would allow him to further the son’s best interest by participating more in his upbringings.

32.  On behalf of the mother, Ms Lily Yu of counsel submits that when there is a challenge against the court’s evaluation of facts, the Court of Appeal would focus on the question, namely whether there was “a mistake in the judge’s evaluation of the evidence that is sufficiently material to undermine his conclusion (See: China Gold Finance Ltd v CIL Holdings Ltd, CACV 11/2015, date of judgment 27 November 2015, per Lam PJ (then Lam VP) at §15-§17). I agree with Ms Yu.

33.  I hold the view that there is no reasonable prospect of success in these grounds.

Ground (5)

34.  In the draft Notice of Appeal, the father says that I was clearly wrong in making 8 factual findings, such as:

(1)  I erred in finding that the son’s view is that he is satisfied with the current custody arrangement, when in fact the son expressed “no view” on custody and left it to the court;

(2)  I wrongly mixed up the dates, in that I relied on the father’s WhatsApp message of 14 August 2018 (showing that he knew the mother had taken the son to the maternal grandmother’s place and commented with a smiley emoji that it was “great” to the son), but in fact it was his case that the mother took the son away suddenly on 15 August 2018;

(3)  I erred in finding that it is “unbelievable” that he or his legal representative would turn a blind eye or deaf ear to any alleged pressure or coercion exerted by the mother at the material times;

(4)  I erred in finding that the father’s claim that once he consented to the mother’s proposal on 23 August 2018, she arranged the son to go to the movie with him on 26 August 2018 was untrue;

(5)  I erred in finding that the mother was the sole mortgagor of the 4 family properties, and in finding that the father suggested to transfer the Tsuen Wan property only upon full payment of the mortgage;

(6)  I erred in finding that it is highly suspicious that the father’s variation application was made to punish the mother for her refusal to vacate the ancillary relief notices.

35.  All I need to say is that most of the above points were already made by the father in this trial, and thus already considered by me. I have made findings of all relevant facts with reasons provided. The law is very clear that the Court of Appeal will be “extremely slow” to disturb the findings of the trial judge who has the benefit of hearing oral evidence and observing the demeanour of each witness during his/her oral evidence, which is an advantage not avail to the Court of Appeal: ZJW v SY [2017] HKFLR 612 at §32.

36.  In addition, I wish to make some further observation in the following.

37.  On the son’s wishes, I have set out in the Judgment at §35 that the SIR recorded that the son expressed “no view” to the question of whether he wanted his parents to make decisions on 3 major areas for me. My comment at §38 of the Judgment that “my overall reading of the son’s view is that he is satisfied with the current arrangement, including custody arrangement” came about because it is the father’s own initiative to say in his 4^th affirmation that the son wanted both parents to have his joint custody. Even more so, he went on to say in the witness box that the son has not expressed his true view on custody to the SWO, because he knew this would make the mother unhappy.

38.  Here, it is very obvious to me that the father is clearly cherry-picking. In this leave to appeal application, he literally claims that the court is wrong in her finding on the wishes of the son by ignoring that the son expressed “no view” on custody. However, when he deemed it suited him, he allowed himself to advance in the trial that the true view of the son was a joint custody arrangement, despite the son expressed “no view” on custody.

39.  The father’s allegation that the court has mixed up the dates is misconceived. The WhatsApp message of 14 August 2018 shows that the father asked the mother if she and the son slept in Ma On Shan (the maternal mother’s place) that night, to which the mother replied in the positive. This would mean that the son would sleep-over at the maternal grandmother’s place at least until the following day of 15 August 2018, which is the very date that the father said that the mother suddenly removed the son away from the matrimonial home. It is thus under such circumstances that I commented at §43 of the Judgment that it is not the case that the father did not know the whereabouts of the son.

40.  As to the alleged worries of the father of the son’s psychological needs, anxiety and worry from the absence of the father, one may refer to my observation at §64 and §65 of the Judgment.

41.  The father argues that I was plainly wrong in finding at §95(1) of the Judgment that the mother was the sole mortgagor “of the 4 properties”.[1] This is a wrong reading of the Judgment. The said paragraph §95(1) also refers to §8 of the Judgment, which sets out that there were 4 family properties, 3 of which registered in the father’s sole name, and the remaining Tsuen Wan property registered in the joint names of the parties and the mother was the borrower of the mortgage loan. Thus, properly read, the court is saying that the mother was the sole mortgagor of the Tusen Wan property.

42.  Besides, the mother deposes at §6 of her affirmation dated 12 November 2019 that since father was the mortgagor of other properties and could not borrow more from the bank(s), she was the sole borrower of the mortgage of the Tsuen Wan property. The father, in his 1^st affirmation dated 18 December 2019 which was filed in response to this affirmation of the mother, has not expressly denied this.

43.  The father also argues that there was “no evidence” in support of the court’s finding at §95(5) of the Judgment that he suggested that the transfer of the Tsuen Wan property from the mother to him be made only upon full payment of the mortgage. I reject this argument bluntly. It was written in black and white in his solicitors’ letter dated 29 May 2019 (which was exhibited in the mother’s aforesaid affirmation) that the father suggested that,

“[The mother] to effect Assignment of [her] ½ share in the [Tsuen Wan property] upon full repayment of the Mortgage.”

44.  Although these affirmations of the mother and of the father about the transfer/sale of the Tsuen Wan property are not included in the trial bundle, the court is nevertheless entitled to consider them and decide on what weight to be given to any of these affirmations, as the court is required to take into account all circumstances of the case and holistically, in order to determine what arrangement is in the best interest of the son.

45.  As to the alleged extra-marital affairs of the father in 2007, the court accepts that it is recorded in the SIR that the father denied about this. However, this is a trivial point under the topic of “background” which will not impede on the analysis and conclusion of the court.

No reasonable prospect of success

46.  For all the matters set out above, I conclude that there is no reasonable prospect of success in any of the grounds of appeal proposed by the father.

In the interest of justice

47.  Ms Wong submits that the intended appeal should be heard by the Court of Appeal in the interest of justice, in the light of the errors of law raised by the father. Counsel has provided no further elaboration in her written submission on this point.

48.  Upon due consideration, I cannot agree that the father has made out his case on the 2^nd limb of section 63A(2) of the District Court Ordinance.

Conclusion

49.  Due to the matters set out above, I will dismiss the father’s application for leave to appeal.

50.  That being the case, there is no ground to make an order that the costs of this leave application and costs below be to the father. It is pre-mature for him to lodge a statement of costs of this leave application (in the sum of about $140,908) to the court for summary assessment. Moreover, there is no reason that costs should not follow the event. The father shall pay the costs of the mother, to be taxed if not agreed, with certificate for counsel.

[1] In the draft Notice of Appeal, the father wrongly cited the relevant paragraph of the Judgement as §45(1). The correct paragraph should be §95(1).