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HCMP 178/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 178 OF 2013
(on an intended appeal from FCMP NO. 67 OF 2010)
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BETWEEN
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CCMJ |
Petitioner |
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(Intended Appellant) |
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and
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SSM |
Respondent |
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(formerly known as SKL) |
(Intended Respondent) |
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| Before: Hon Cheung CJHC and Yuen JA |
| Statements of Costs for Summary Assessment: 15 May 2013, 13 June 2013 |
| Date of Judgment: 25 June 2013 |
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J U D G M E N T
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1. This is an application for leave to appeal from a judgment of Deputy Judge Own granting sole custody, care and control of a 4-year old child to her mother.
2. There had been a 16-day trial which spanned a period of 5 months from 29 February 2012 to 27 July 2012. Written submissions were provided to the learned judge in August 2012. He gave judgment on 5 October 2012.
Application for leave to appeal
3. On 2 November 2012 the father issued a summons for leave to appeal. There was a hearing on 17 December 2012. On 11 January 2013 the learned judge refused leave to appeal.
Application to the Court of Appeal for leave to appeal
4. On 25 January 2013 the father issued a summons in this court for leave to appeal, supported by skeleton submissions from counsel for the father. The mother applied for legal aid, which she was subsequently granted. Directions were given for the mother to file a statement in opposition, if any. On 10 May 2013, a statement was filed on behalf of the mother.
Background
5. The background to this matter has been set out extensively in the learned judge’s 97-page judgment as well as 5 Social Investigation Reports (from August 2010 to July 2012) and a clinical psychologist’s report which were provided in the application bundle which we have read.
6. Very briefly, the background to the matter is as follows. The child was born in November 2008. The parents had been cohabiting in the family house of the father’s parents. When the child was about 6 months old, the mother left with the child after disputes between herself and the father. The mother and child have thereafter lived with the mother’s parents. The mother has throughout been the primary care-giver.
7. In March 2010 the father issued proceedings under the Guardianship of Minors Ordinance. He was given access to the child, including staying access.
8. Due to various reasons which have been set out in the learned judge’s judgment, the trial of the issue of custody, care and control did not commence until February 2012.
9. Initially the Social Investigation officer as well as both parents were prepared to accept a joint custody order, with the parents divided only over the issue of care and control. However, in the course of the more than 2 years that have elapsed, it became clear that (to put it neutrally) the father has left no stone unturned in his efforts to criticize the mother’s personality, her family and her care of the child, leading to a fractious and uncooperative relationship between the parents. In connection with the child, the father has criticized the child’s paediatrician (for prescribing antibiotics) and had lodged a complaint against her nursery school (for providing the original of the child’s report to the mother, instead of to him even though he was provided with a copy of the contents).
10. The father’s criticism of the mother’s care of the child ranged from matters such as the colour of the child’s teeth, the condition of her legs, the mother’s choice of size of shoes for the child, the mother’s choice of paediatrician, the child’s taking of antibiotics prescribed by the paediatrician, to theories as to why the child had constipation.
11. According to the Social Investigation reports, the child meanwhile has been doing well at school and there were no health problems of sufficient significance to cause concern to the officer. Indeed the Social Investigation officer sensibly cautioned against the child being taken by the parents to different doctors for repeated examinations and consultations.
The judgment
12. At the trial, the learned judge said:
“In light of the several tenths [sic] of F’s accusations against M from earth to sea on virtually all matters, I do not venture to go into and resolve the truth, falsity or reasonableness of each and every dispute or allegation raised by F or his witnesses. In my view, the Court’s finding of accusations would only be necessary and meaningful if it sheds light on whether a party is a fit custodial parent or that it touches upon the best interests of the child” (para. 42).
13. The learned judge found, after hearing many witnesses over the course of the 16 days including both parents, and after considering the Social Investigation and clinical psychologist’s reports, that the child was emotionally closer to the mother who has cared for her since birth, and that the father’s criticisms of the mother’s ability to care for the child were unfounded. The learned judge concluded that care and control of the child should vest with the mother.
14. As for custody, the learned judge held that the court’s primary consideration was the welfare of the child. After setting out in full the principles set out in Y v P [2009] HKEC 1322 and PD v KWW [2010] HKFLR 183, he held (para. 154) that:
“But for their sharp differences, lack of trust and difficulty in communication, I would have no hesitation that a joint custody order must be the one and only one choice”. (Emphasis added).
However, given those existing problems between the parents, joint custody “simply does not work” (para. 154) and he concluded that “to give the legal custodial right to the parent who was entrusted with the child’s care and control facilitates the upbringing of the child” (para. 156).
15. The learned judge ordered accordingly that custody should vest with the mother, with access to the father to be determined at a future hearing.
Father’s grounds of appeal
16. Although the father has proposed a number of grounds of appeal, the skeleton submissions he has advanced focuses solely on the issue whether the mother should be given sole custody. In brief, it is contended on his behalf that the family courts are now more inclined towards joint custody orders and that the fact that relations between the parents are strained is not of itself a reason to refuse to order joint custody. It is said that the need for co-operation is not the only essential factor for making a joint custody order and that this is a “classic case for the court to grant a ‘judicial encouragement’ or ‘aspirational’ kind of joint custody order”.
Discussion
17. The learned judge made the sole custody order in the exercise of his discretion and it is well-established that an appellate court would not overturn an order made in the exercise of discretion unless there was an error in law or a failure to take into account relevant matters, or unless the order made was one which was “plainly wrong”.
18. The learned judge made the order after expressly considering the principles in Y v P and PD v KWW. Those principles include the court’s recognition that if in a particular case it is clear that joint custody was unworkable, a joint custody order should not be made solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties (Y v P, para. 21). The court would not make a joint custody order as a matter of “wishful thinking”; it must consider the “practical reality” of the situation (para. 24). The court has recognized that “there may be occasions when the ability of the parents to reach any sensible accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable” (PD v KWW para. 57).
19. In the present case there was ample evidence for the judge to take the view that the father’s overbearing attitude demonstrated in the past 2 years makes cooperation simply “wishful thinking”. In Rogers VP’s words in Y v P, the father here was determined to “micromanage every aspect and every minutiae of a child’s life”. This makes a joint custody order impossible. The statements in the preceding paragraph support the learned judge’s decision not to make a joint custody order. It cannot be said that the judge had made an error in law or had failed to take any relevant matters into account or that his decision was “plainly wrong”.
20. We consider there are no prospects of success on this proposed appeal from the exercise of the learned judge’s discretion.
Order
21. Accordingly we dismiss the application for leave and pursuant to Order 59 rule 2A(8) RHC, we order that no party may request this determination to be reconsidered at an oral hearing inter partes.
22. We also make an order that the applicant is to pay the costs of the application to the respondent assessed on a gross sum basis at $40,000 and the respondent’s own costs are to be taxed in accordance with Legal Aid Regulations.
(ANDREW CHEUNG)
Chief Judge of the
High Court |
(MARIA YUEN)
Justice of Appeal |
Ms Anita Yip and Ms Annie Lai, instructed by Haldanes, for the Petitioner (Intended Appellant)
Mr Kevin Li, instructed by Stevenson, Wong & Co, assigned by the Director of Legal Aid, for the Respondent (Intended Respondent)
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