WKI also known as IWKV v. CKW also known as WCKW

FCMC 11528/2019

[2023] HKFC 191

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 11528 OF 2019

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DECISION
( Leave to appeal )

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INTRODUCTION

1.  By a judgment dated 31 May 2023 (“Judgment”), I granted leave for the Respondent (“Father”)  to remove the child of the parties, namely a girl born on 24 May 2010 (“Child”)  out of the jurisdiction of Hong Kong for a period of 2 weeks for the purpose of holiday in Canada.  

2.  In the Judgment, to give effect to such leave granted, I also directed the Petitioner (“Mother”)  to provide the Child’s renewed Canadian passport to the Father within 7 days or, if she had not yet taken steps to renew the Child’s Canadian Passport, to provide to the Father within 2 days all necessary documents for the purpose of enabling him to obtain a renewed Canadian passport for the Child.   

3.  As noted in the Judgment, the Father’s application for temporary removal was vigorously opposed by the Mother.

4.  Dissatisfied with the Judgment, the Mother applies for leave to appeal by a summons dated 6 June 2023.

THE TEST FOR LEAVE TO APPEAL

5.  Section 63A(2)  of the District Court Ordinance, Cap 336 provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

6.  A reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (see SMSE v KL [2009] 4 HKLRD 125, §17).

7.  In appeals against the exercise of discretion relating to the custody and welfare of children (such as the one I made for temporary removal), it has to be satisfied not merely that the court had made a decision with which the appellate court might reasonably disagree, but that the decision was so plainly wrong that the only legitimate conclusion was that the court had erred in the exercise of its discretion (see YSYM v LHB [2020] HKCA 586, §66).

THE PROPOSED GROUNDS OF APPEAL

8.  In the papers filed on 6 June 2023, the Mother has put forward 7 proposed grounds of appeal:

“During the Removal hearing on 12 May 2023 and the Order dated 31 Mary (sic)  2023, the Court made a ruling endorsed with penal notice with an impossible time schedule to achieve on both conditions. The ruling also assumes in the first condition that it is the sole responsibility of the Petitioner to renew the passport when the Respondent has an equal and shared responsibility. The second condition with a 2 days requirement is also something impossible to achieve and discriminate against single working mothers. It also does not consider the overall wellbeing of the child and prioritize travel and leisure over education, it is sending a wrong message, and doesn’t not provide a realistic fair approach for the Applicant (the Petitioner).

Grounds of appeal:

1. The Order is invalid as the ruling does not apply to Canadian passport applications outside Canada. Canada does not renew passports for children under 16 years old. There is no renewed passport that can be available. In addition, unlike the Hong Kong SAR passport renewal, the Canadian consulate in Hong Kong could take up to 20 working days or longer for a new passport application outside Canada, therefore, the Court require the Petitioner to provide the Child’s renewed Canadian passport to the Respondent within 7 days from the date of this Order is not doable.

2. This ruling gave the sole responsibility of passport “renewal” to the Petitioner endorsed with penal notice which this should be a joint responsibility, this has put no responsibility to the Respondent. The ruling also does not mention who shall be responsible for the cost of the new passport application.

3. The Canadian authority requires a consent form that declares agreement on unrestricted travel and consent of the trip. The Petitioner has no way or form can predict the outcome of this Court ruling beforehand and complete and sign the consent form without lying and violating Canadian law.

4. The Applicant (the Petitioner)  still have not received the judgment of removal trial on 31 May 2023 in the mail as of today 6^th June 2023 at 10 am. The penal notice endorsed with this Order is not realistically feasible as it’s impossible to follow the 2 days limit while the 7 days requirement assumes the sole responsibility of the Applicant (the Petitioner)  to “renew” the passport when this is a joint responsibility.

5. There is no consideration and arrangement of where the Canadian citizenship certificate, an important Canadian identification document shall be safely kept after the Canadian passport application.

6. The Order does not provide a judgment that is the best interest for the child. The Order is allowing the Respondent to violate a penal notice and not paying the child’s interim maintenance for more than 2 years, however, the Order in a way is giving a wrong negative message by allowing the Respondent to take vacation overseas with the child.

7.  The Respondent has a track record of violating penal notice.  This ruling does not take into account that the Respondent also has a Canadian Citizenship, which means he can easily ignore this Court order and not return to Hong Kong, he can easily take this chance and keep the child’s custody in Canada or anywhere out of Hong Kong SAR jurisdiction.  A bond, a collateral shall be considered in order to ensure that the Respondent will comply.”

GROUNDS 1 – 5

9.  Grounds 1 to 5 relate to the consequential directions I gave to enable the Father to travel with the Child for the approved trip to Canada.  These grounds will be considered together. 

10.  It is not suggested by the Mother that these grounds are capable of impinging on my decision to grant leave for temporary removal.

11.  At the call-over hearing on 20 April 2023, it was brought to my attention that the Child’s travel documents, including her Canadian passport, had expired.  Upon my further enquiries with both parties about the status of the travel documents, the Mother gave an undertaking to the Court and to the Father that she would take steps to renew the Child’s travel documents pending the outcome of the Father’s application for temporary removal (see §43 of the Judgment). 

12.  It was on such basis that, upon granting leave to the Father to bring the Child out of jurisdiction to travel to Canada for holiday, I directed the Mother to provide the Child’s renewed Canadian passport to the Father within 7 days.  

13.  The undertaking to renew the Child’s travel documents was given by the Mother to the Court and the Father at the hearing on 20 April 2023.  In other words, by the time the Judgment was handed down, the Mother had had almost 6 weeks to take steps to renew the Child’s Canadian passport. 

14.  I directed the Mother to provide to the Father within 2 days all necessary documents for the purpose of enabling the Father to obtain a renewed Canadian passport for the Child on an alternative basis in the event that, despite her own undertaking and the lapse of time since the call-over hearing on 20 April 2023, the Mother nevertheless still had not taken steps to renew the Child’s Canadian passport for any reason or difficulty she might have.

15.  As such, it is incorrect for the Mother to suggest that the consequential directions I made gave the sole responsibility of renewing the Child’s travel documents to the Mother.

16.  The question about who should be responsible for paying the cost of renewing the Child’s passport(s)  was never raised as a matter of concern by any party during the hearing.

17.  When the undertaking was given to the Court and the Father, it was never suggested by the Mother that it would be impossible for any reason for her to arrange for the Child’s Canadian passport to be renewed.  In particular, there was no suggestion by the Mother that “Canada does not renew passports for children under 16 years old”.  Nor was the difficulty with the “consent form” raised by the Mother. 

18.  Judging by the proposed grounds of appeal, it seems to me that the Mother is now suggesting that she was unable to arrange for the Child’s Canadian passport to be renewed in anticipation of the Judgment.  Even if that were the case (which I do not accept for the reasons given above), all the Mother was required to do by the consequential directions was to provide the necessary documents to the Father to enable him to obtain a renewed Canadian passport for the Child.  In that event, whether the Father was able to obtain a renewed passport for the Child in time for the approved trip would be a matter for the Father to take care of.

19.  If there was any difficulty preventing the Mother from providing the necessary documents to the Father within 2 days as directed, the Mother could have let the Father or the Court know or, if necessary, sought a time extension to comply with the direction. 

20.  It is clear from the written submissions filed by the parties for this leave to appeal application that the Mother still failed to provide the documents necessary for renewing the Child’s Canadian passport to the Father by the time her leave to appeal application was filed (by which time she was clearly aware of what she was required by the Judgment to do).

21.  As to the Mother’s present complaint arising from the Child’s Canadian citizenship certificate, I was never specifically requested by any party to deal with the arrangement of such a document. 

22.  By §2 of his summons for temporary removal dated 24 February 2023, the Father sought an order that “[the] Child’s HKID, Mainland Travel Permit For Hong Kong Residents, HK Special Administrative Region Passport and Canadian passport” would be kept by him going forward.  I rejected the Father’s request (see §42 of the Judgment). 

23.  If there is any potential dispute about the Child’s Canadian citizenship certificate, the Mother could have easily applied for further directions from the Court.

24.  I should add that the Father’s written submissions in opposition to the Mother’s application for leave to appeal came with two attachments, which contain materials not placed before the Court during the hearing on 12 May 2023.  No leave was granted to the Father to produce new evidence.  For obvious reason, these two attachments are excluded from consideration.

25.  For the above reasons, I am unable to see any merit in Grounds 1 to 5.

GROUND 6

26.  By Ground 6, the Mother complains that the Judgment would give “a wrong negative message by allowing the Respondent to take vacation overseas with the child” when the Father was allegedly violating a penal notice and not paying interim maintenance for the Child.

27.  As noted in the Judgment, this was the main ground of opposition relied upon by the Mother during the hearing on 31 May 2023.  This was dealt with in detail in §§21 to 33 of the Judgment.  I do not see any merit in this ground of appeal.

GROUND 7

28.  By Ground 7, the Mother is also seeking to re-argue another ground of opposition raised by her during the hearing.  The Mother’s concern that the Father might not return the Child to Hong Kong upon conclusion of the trip was specifically addressed in §§36, 37 and 47 of the Judgment.  Likewise, there is no merit in this ground of appeal.

CONCLUSION

29.  For the above reasons, the Mother fails to demonstrate that her proposed appeal has a reasonable prospect of success.  Nor do I see there is some other reason in the interests of justice that the appeal should be heard.

30.  The Mother’s summons dated 6 June 2023 is dismissed accordingly.

31.  Given that this is a children matter and both parties are acting in person, I make no order as to costs in respect of the Mother’s summons dated 6 June 2023.