J, S aka SSJ v. J, ICV aka ICVJ

FCMC 12707/2019

[2024] HKFC 90

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 12707 OF 2019

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J U D G M E N T
(Master’s Appeal: SIR and SJE Report)

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1.  This is a hearing of the Petitioner Father (“F”)’s appeal against the orders of Master Stanley Ho of the Family Court dated 2 April 2024, in which the learned Master gave the following case management directions:

(1)  F’s summons for variation of a previous order on care and relocation to be adjourned to 20, 21 and 22 May 2024 before a judge for argument with 3 days reserved.

(2)  Retrospective leave to the Respondent Mother (“M”) to file her affirmation in opposition and F to file his witness’ affirmation.

(3)  Leave to M to file and serve her affirmation in response to F’s witness’ affirmation within 14 days (i.e. on or before 16 April 2024).

(4)  Leave to F to file and serve his affirmation in reply within 21 days thereafter (i.e. on or before 7 May 2024).

(5)  No other affirmations to be filed without leave of court.

(6)  Other consequential directions for the trial.

2.  During the call-over hearing before the Master, counsel for F (Ms. Madeleine Booth) did request the calling of a Social Investigation Report (“SIR”) and a Single Joint Expert (“SJE”) Report on parental capacity but was not acceded to. As the date for relocation was rather imminent (June 2024), the Master adjourned F’s summons for a 3-day trial in May, so that the matter could be resolved before the June relocation.

3.  As far as the trial dates are concerned, I was informed that due to re-scheduling of the court’s diary, the trial have to be pushed back for a few days. After consultation with counsel dairy, it is now most likely that the trial will start on 29 May 2024.

4.  F, being dissatisfied with the Master’s decision not to call for reports, filed a Notice of Appeal to Judge in Chambers on 16 April 2024 asking for the same directions as in the Master’s orders, but with 2 additional directions:

(1)  SIR on the issues of care, control and access; and

(2)  A SJE to be appointed to prepare a parental capacity report, inclusive of administering psychometric testing.

5.  M opposed F’s appeal.

6.  After hearing counsel submissions, I have decided to dismiss F’s appeal with costs.

7.  These are my reasons.

Background

8.  The parties were married in 2011 in the UK.

9.  Within wedlock, 2 children were born:

(1)  Elder son (“S”) in 2012; and

(2)  Younger son (T”) in 2014.

10.  The family relocated to Hong Kong in 2018 due to a job opportunity of F. F is currently a Senior Managing Director of an IT consulting firm in Hong Kong. M used to work as a solicitor in UK mainly in criminal practice. Such practice was ceased after the birth of S in 2012. M started to work in various jobs but without a stable employment after divorce. She said she would find new opportunities in the field of design after relocation to UK.

11.  The parties were separated in 2019. F issued a petition for divorce on 24 October 2019. A decree nisi was granted, which was made absolute on 11 January 2023.

12.  For the issue of custody, the parties could come to an agreement and so a joint custody order was granted on 6 March 2020, leaving the issues of care, control, access and relocation for CDR hearing. But before the hearing and on 31 August 2021, the parties reached a comprehensive agreement with various terms on children arrangement. In respect of the present dispute, I would only repeat some of the more relevant recitals and terms herein under:

(1)  Recital G confirmed the joint custody order previously made.

(2)  Recital H recorded the parties’ agreement to share all relevant information and more importantly that they would discuss with each other all matters of a custody nature in advance.

(3)  Recital I recorded that if the parties could not agree on a major decision on children’s arrangement, they would appoint a jointly agreed mediator in the first instance to mediate prior to any court proceeding.

(4)  Recital J confirmed the parties’ agreement to a 2-2-5-5 care and access arrangement until relocation in August 2022.

(5)  Recital T recorded M’s undertaking to go for random sobriety testing for alcohol on certain conditions.

(6)  An order by consent that the children to be relocated by either M alone or both parties permanently to London upon the children completing the 2021/2022 school year and in any event not earlier than 1 August 2022.

13.  By another consent order dated 13 December 2022 which mainly dealt with the parties’ agreement on financial matters, the parties also agreed at Recital A that the relocation of the children were to be postponed to June 2024.

14.  On 2 February 2024, F filed the present summons for variation in which he asked for:

(1)  Care and control of the children be granted to F with reasonable access to M;

(2)  Leave for the relocation of the children in the order dated 31 August 2021 as varied by the 13 December 2022 order (collectively “the Relocation Order”) to be withdrawn;

(3)  M to hand over the passports of the children to the Court; and

(4)  There be an interim stay of the Relocation Order until the determination of F’s application.

15.  F’s summons was heard before Master Stanley Ho on 2 April 2024, which was adjourned for argument before a Judge on 20-22 May 2024 (now likely to be re-fixed to 29 May 2024). Despite the request of F’s counsel, the Master refused to give directions for the preparation of SIR or SJE Report on parental capacity. F now appealed.

Master’s Appeal

16.  Appeal from decisions of a Master to a judge in chambers is as of right under s.63 (1A) of the District Court Ordinance, Cap.336:

“63…

(1A) Subject to subsection (1B), an appeal lies as of right to a judge in chambers from a judgment, order or decision of a master in any civil cause or matter.

…”

17.  When the appeal comes before the judge in chambers, it is to be dealt with by way of actual rehearing of the application and the judge treats the matter as though it came before him for the first time: Hong Kong Civil Procedure 2024 §58/1/2.

F’s Submissions

18.  F’s present application is premised on his allegation that M has long-term mental conditions (depression/anxiety) and a history of substance abuse (alcohol, sleeping pills, etc.). F referred to M’s attempted suicide in 2019 and her subsequent rehabilitation treatment in UK. He stated that when the parties agreed on the children’s relocation in the orders of 31 August 2021 and 13 December 2022 (wherein the parties agreed on the children’s relocation by June 2024), he believed M’s condition was stable and in recovery. However, M’s troubling behaviours began to re-surface and F referred to a number of incidents starting from January 2023, which has caused F to take out the present application for variation of the children’s care and control.

19.  Counsel for F submitted that in view of M’s established psychological issues, alcohol abuse, suicidal ideations, and reliance on prescription drugs; and the case of F that M has relapsed and that her parental capacity is consequently impaired, it is both necessary and appropriate for a SJE Report to conduct parental capacity evaluation to enable the court to fairly and properly resolve F’s variation summons. Similarly, counsel submitted that SIR was required to give recommendations as to care, control and access. However, the Master did not order those reports when he adjourned the matter for argument. Therefore, F now invites this court to order those reports for the substantive hearing in May 2024.

M’s Submissions

20.  M was represented by Mr. Harprabdeep Singh, who submitted that the Master’s order should be upheld because:

(1)  F has legally failed to justify the need for the SIR and SJE Report;

(2)  This is a belated and disingenuous application purely to stop the children from relocation to London by June 2024; and

(3)  F’s application is primarily based on bare accusations that pre-date the consent order dated 13 December 2022 which has no bearing on the present summons.

21.  Counsel further submitted that when F entered into agreement on relocation (the 1^st order on 31 August 2021 and the 2^nd order on 13 December 2022), he was represented by a specialist firm of solicitors and counsel. In both orders, the fundamental term of relocation to London has never changed and the parties’ overall settlement on maintenance terms were also predicated on the relocation agreement. Before the agreement, SIR and Supplemental SIR were obtained and M's then psychological conditions were already known and considered. There was nothing to suggest M being an unsuitable carer. At one stage, M even volunteered to go for psychological assessment on her mental health and ability to care for the children but F no longer required it before the parties finally entered into the agreement on relocation. Therefore, there is no substance in F’s allegations on M’s psychological conditions before the order on 13 December 2022.

22.  As to the “new” allegations starting 2023, they were bare assertions and were strenuously denied by M. All these allegations basically concern with M’s alleged alcohol and drug abuse of which M has now self-tested to show she is alcohol and drug free. M’s psychiatrist has also issued a letter saying that M only took those drugs as directed. A SIR cannot attest to the mental health of M and therefore all these “new” allegations on M’s mental health does not warrant a SIR at all.

23.  As to F’s request for SJE Report, it was pointed out by counsel that there was not such a request in F’s summons for variation, nor was there anything mentioned in F’s supporting affirmation. It was clearly a belated afterthought of F and should not be entertained.

My views

24.  The first observation to be made is that the trial of F’s summons for variation of care and relocation will start on 29 May 2024, which will be less than 4 weeks from the handing down of this judgment. There is no application for adjournment of this milestone date and therefore, the trial will go ahead on that day.

25.  The next question is whether there is sufficient time for calling those 2 reports, one SIR and one SJE Report before trial. At one stage, counsel suggested that the court may order expedited reports to be prepared. But experience tells us that it is simply not realistic for 2 such reports to be prepared within such short period of time.

26.  This court also has to take note that when the Master gave the directions for trial without ordering the requested reports, he was making case management decisions which should not be lightly disturbed, unless they are clearly wrong. Obviously, the Master had in mind the need for an early resolution of the dispute in view of the approaching relocation in June, and his refusal to order reports in order to avoid delay was totally understandable. After all, even bearing section 3(1)(a)(i)(B) of the Guardianship of Minors Ordinance, Cap.13 (“GMO””) in mind, which states that the court shall give due consideration to “any material information including any report of the Director of Social Welfare available to the court at the hearing”, there is no statutory requirement for such a report to be obtained in each and every case. Whether a SIR is needed depends on the circumstances of the case. I accept that in the present case, M’s psychological issues have well been canvassed before the parties’ relocation agreement. It was accepted by the SIO and also F that M was a suitable carer despite those issues. As to F’s allegations post-2023, I am not convinced that the calling of SIR is a must before the court can decide on the suitability of M as a carer of the children.

27.  The same could be said of the proposed SJE Report. If F could prove all those alleged incidents post-2023, e.g. alcohol and drug abuse, I am quite sure it may not be necessary for a SJE to tell the court that M was not a suitable carer.

28.  I was at one stage being referred by counsel to the case of VE (nee KE) v. VRJ[1] and to §§117-119 wherein Deputy Judge Ivan Wong (as Judge Ivan Wong then was) repeated the findings of a clinical psychologist’s findings by reference to something called “Minnesota Multiphasic Personality Inventory – 2^nd Edition” (MMPI-2 Profile). However, I do not see it as an authority to say that a MMPI-2 Profile investigation has to be conducted in every case where the psychological well-being of a party is in issue. Moreover, as rightly pointed out by Mr. Singh for M in his written submissions, F is now seeking to adduce expert evidence without an application for leave. Before the court would grant such leave for expert evidence, the court must be satisfied with the test on “necessity”, “relevance” and “probative value”: Ale Thak Prasad v Tsang Chin Keung & Another (unrep., HCPI 579/2012, 29 December 2017), at §24. The court in Ale Thak Prasad has also expressed doubts on whether such neuropsychological test is commonly practised in Hong Kong.

29.  All in all, I am not satisfied that the calling of a SJE Report is absolutely necessary or appropriate in the present case.

30.  Lastly, the timing of F’s application to vary care and relocation has to be viewed with circumspection. According to F, his concern on M’s psychological issues re-surfaced in January 2023, shortly after the parties’ latest agreement on relocation in December 2022. Throughout the year, there were various incidents, including an incident on 9 May 2023 on which F has filed an affirmation of a mutual friend finding M being inebriated and unable to stand or walk properly in Sai Kung Square. However, F chose only to make his application in February 2024, but not earlier. If the Master has not taken a robust approach in fixing an early trial date, the relocation date will be missed by default after which M and the children will be stuck in Hong Kong for at least another year, even if the court finds against F at the end of the day. Of course, I am not saying that F’s application must be without merits, but allowing the agreed relocation date to be missed due to the delay in F’s application cannot be a fair order to be made.

Conclusion and Order

31.  Based on the above discussion, I am not convinced that the Master’s case management directions on trial should be disturbed. There is no sufficiently good reason to delay the trial so that the reports could be called. The Master’s decision to order an early trial without calling for those reports cannot be faulted. F’s application for appeal against Master’s Decision fails and his Notice of appeal is dismissed.

Costs

32.  Costs to follow event. M shall have the costs of appeal with certificate for counsel. This will be in the form costs order nisi to be made absolute upon the expiry of 14 days from the handing down of this judgment. After costs order being made absolute, I direct M to lodge and serve a 1-page statement of costs for summary assessment with 7 days, after which F be at liberty to lodge and serve a 1-page list of objections within 7 days for the court’s consideration.

33.  Last but not least, I thank counsel for their assistance.