NPYJ v. SMRC

FCMC 9098 / 2018

[2020] HKFC 250

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9098 OF 2018

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BETWEEN

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JUDGMENT
(Leave to appeal)

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Introduction

1.  By his summons filed on 10 November 2020, the respondent (“husband”) seeks leave to appeal two case management directions given by me on 28 October 2020 (“28/10/2020 Order”) and 4 November 2020 (“4/11/2020 Order”). Essentially, the said 2 orders direct that a government clinical psychologist report be prepared, and that various social investigation reports and single joint expert reports submitted to the court so far in this case on children matters be made available to the government clinical psychologist. 

2.  By the same summons, the husband also seeks an order for stay of such appointment of and provision of documents to the government clinical psychologist pending his appeal (“Stay Application”).

3.  By a letter from the petitioner (“wife”) to the court dated 30 November 2020, the wife told that she was not served with the husband’s summons for leave to appeal up to the date of her letter, and thus asked for 14 days to file her affirmation in opposition. I acceded to her request, after which the husband wrote to the court to object to the time extension. The wife’s written submission was filed on 3 December 2020. However, I can simply say that I can dispose of the leave to appeal application and Stay Application even without considering the wife’s written submission.

4.  I do not intend to repeat the background of the parties, as this has been set out in my earlier judgment handed down on 4 November 2020 at §17 to 23 therein. The husband has also filed another summons for leave to appeal against this judgment of 4 November 2020.

5.  In order to fully appreciate why I gave the 28/10/2020 and 4/11/2020 Orders, I need to describe in greater details the circumstances leading to such orders in the following.

Summons filed on 12 March 2020 to adduce sole expert report

6.  I came to have seizure of this case on 29 September 2020, by which date there were 9 outstanding summonses taken out by the husband. These 9 summonses can be briefly grouped into 2 types, namely:

(1) summonses relating to the children, such as variation of care and control, permanent relocation to the UK, extended and unsupervised access to the children of the family (2 little girls now aged about 12 and 9), enforcement of the consent order on custody and access made on 4 July 2019 (during the custody trial);

(2) other miscellaneous summonses, such as variation of the maintenance pending suit/interim maintenance order made on 25 June 2019, recusal of the former docket judge of this case, vacation of an ancillary relief notice registered by the wife against the matrimonial home and its related carparks. 

7.  Pursuant to previous order made by the docket judge(s), I was to deal with 6 of these 9 summonses in the hearing of 29 September 2020, one of which was a summons taken out by the husband on 12 March 2020 (“Expert Summons”) for adducing the expert evidence of Dr Jadis Blurton and Dr Kristie Craigen, experts in child psychology or clinical psychology, which is contained in a report dated 11 February 2020. 

8.  In the course of dealing with the Expert Summons, I sought clarification with the husband who confirmed that in respect of his various applications on children, more particularly set out at §6(1) above, he runs an alternative case of:

(1) varying care and control to him, and permanent relocating the children to the UK (his primary case); and

(2) extending his access to the children (his secondary case).

9.  Notably, the husband has not met the children for access since about 19 July 2019, due to the unwillingness of the children to meet him.[1]

10.  It is his argument that the expert report of Dr Blurton and Dr Craigen can show that the children have been subjecting to parental alienation administered by the petitioner (“wife”) who has taken an unacceptable approach of “let the children decide” if to see their father, which has seriously and continuously jeopardised his right to see the children. This approach, the husband says, is not in the best interest of the children.

11.  I note that Dr Blurton and Dr Craigen record in their expert report that they have sight of the following:

(1) All child psychology reports prepared by Ms Lora Lee, single joint expert appointed pursuant to the order of 19 May 2017 and 9 June 2017 made by the family court Deputy Judge A N Ching Tse (as Her Honour Judge then was) under FCMC 6134/2017;

(2) Psychology report on both parties and prepared by Dr Jim Biermen, single joint expert appointed pursuant to the order made by the learnt judge on 29 September 2017 under FCMC 6134/2017;

(3) Psychiatric report on both parties and prepared by Dr Barry Connell, single joint expert appointed pursuant to the order made by the learnt judge on 29 September 2017 and 8 January 2018 under FCMC 6134/2017;

(4) (Unspecified) court orders made by the learnt judge.

12.  Putting aside the fact that the husband has not obtained prior leave of the court to disclose documents/reports used in matrimonial proceedings concerning children to a third party, including his intended expert(s), [2] I note that the expert report was prepared without any interview with the children and/or the wife. All information to the experts come unilaterally from the husband’s side.

13.  When I queried why Ms Lora Lee, the single joint expert previously appointed by the court, could not have been asked to provide an updated expert report to address the issue of alleged parental alienation, the husband submitted that there was secret communication between Ms Lee and the social investigation officer and/or the wife. He further responded that Ms Lee had informed him that she would not take on this case anymore.

14.  I then asked the parties if they would consent to appointing another single joint expert to address to the issue of alleged parental alienation, to which they both agreed.

15.  In the result, I made an order on 29 September 2020 that a single joint expert in child psychology with experience/expertise in parental alienation be appointed to prepare an expert report which shall be ready 21 days before the next pre-trial review on 4 January 2021. I gave further directions that in case the parties could not agree on the choice of the single joint expert, they should each nominate one expert for the court to make further directions.

Court note of 21 October 2020

16.  The parties provided the name of their nominated single joint expert by their respective letters of 9 October 2020 and 10 October 2020. The husband’s nominated expert is Ms Karen Woodall of the Family Separation Clinic in the UK. The wife’s nominated expert is Dr Andrew Adler.

17.  Upon considering their respective curriculum vitae, I was of the view that neither nominated expert was suitable to be chosen by the court.

18.  By a court note dated 21 October 2020, I expressly informed the parties that the husband’s nominated expert “is stationed in the UK and thus cannot provide face to face interview with and/or evaluation of the children and the parties”, whereas the curriculum vitae of the wife’s nominated expert “does not mention that he has the experience/expertise in parental alienation.”  However, I was prepared to give the parties a second chance to nominate their single joint expert. Thus, I said in the same court note at §3 the following:

“3. In such circumstances, the Court is giving the parties a second chance to nominate a SJE in compliance with the Order made on 29/9/2020. Each party do report to the Court (which must be copied to the other side) of their choice of SJE on child psychology with experience/expertise in parental alienation (with full CV, expected completion date of the report and estimated fee) by 4 pm of 28/10/2020, failing which it will be deemed that the defaulting party has waived his/her right to nominate such SJE and whereby the Court will give further directions including but not limited to ordering a clinical psychologist report from the government clinical psychologist on the children and their relationship with the parties. (the underlined is my emphasis)

The 28/10/2020 Order

19.  By her letter dated 28 October 2020, the wife maintained her stance to nominate Dr Andrew Alder but provided his updated curriculum vitae showing that he had experience in parental alienation while in private practice in Westchester County and New York between 2004 and 2012. The husband, on the other hand, reported on 28 October 2020 that he would nominated Dr Craigen as the single joint expert. Dr Craigen, however, is one of the experts commissioned by him to prepare an expert report in relation to the Expert Summons.

20.  It is obvious that neither expert nominated by the parties in the second round can be said as suitable. It is thus under such circumstances that I made the 28/10/2020 Order which is repeated verbatim below for easy reference:

“(A) UPON the application of the [husband] by way of the Summons in respect of defined access filed on the 28^th day of November 2019

(B) AND UPON the application of the [husband] by way of Summons in respect of, inter alias, variation of care and control and relocation filed on the 13^th day of May, 2020

(C) AND UPON the application of the [husband] by way of Summons in the respect of the Consent Order of the 4^th day of July, 2019 filed on the 13^th day of May, 2020

(D) AND UPON the application of the [husband] by way of Summons in respect of the interim access filed on the 4^th day of June 2020

(E) UPON considering 2 rounds of nomination of a single joint expert in child psychology with experience/expertise in parental alienation (“SJE”) by the respective parties in their respective letters of 9/10/2020 and 28/10/2020

(F) UPON considering that the SJE nominated by the [wife] may not have the relevant local experience in parental alienation

(G) UPON considering that the 2 SJEs nominated by the [husband] are either not stationed in Hong Kong and thus cannot have face-to-face interview with the children of the family or the parties, or is not suitable to be a SJE because she had prepared a solo expert report for the [husband] (and leave to obtain/adduce such solo expert report was not granted)

It is ordered that:

1. Notwithstanding paragraph 1 of the Order made on the 29^th day of September 2020, no appointment on SJE nominated by either party is made.

2. A clinical psychology report be prepared by government clinical psychology which shall be ready 14 days before the next PTR. In the report, the clinical psychologist should advise the court, among other matters, on the following:

(a) The mental state of the children of the family;

(b) Their relationship with the respective parties;

(c) Whether they are subject to parental alienation, if any;

(d) Care and control and access arrangement.

3. The parties shall not unilaterally send any documents, including but not limited to affidavits or affirmations, to the government clinical psychologist unless with the consent of the other party or unless requested by the government clinical psychologist.”

The 4/11/2020 Order

21.  By his memo dated 2 November 2020, the SWO sought directions from the court if the government clinical psychologist can be provided with all social investigation reports and single joint expert reports prepared so far in this case, as well as the expert report prepared by Dr Blurton and Dr Craigen “with the understanding that leave to obtain/adduce this report as evidence to [the] Court for this case was not granted by [the] Court.”

22.  On 4 November 2020, I ordered that the above memo be provided to the parties and gave directions to the effect that the government clinical psychologist may have access to all social investigation reports and various single joint expert report(s) prepared by Ms Lora Lee, Dr Jim Bierman and Dr Barry Connell, a copy of all may be provided by the SWO (“4/11/2020 Order”).

23.  I did not grant to release a copy of the expert report prepared by Dr Blurton and Dr Craigen to the government clinical psychologist, as leave to adduce this expert report was not granted.

Subsequent summonses

24.  After the 28/10/2020 Order and 4/11/2020 Order were made, the husband has filed/lodged 5 other related summonses:

(1) Summons filed on 3 November 2020 for appointing Dr Craigen as the single joint expert, and for stay of /dispensing with the appointment of the government clinical psychologist (“3/11/2020 Summons”);

(2) Summons filed on 9 November 2020 for renewal/continuance of the Expert Summons, and for stay of /dispensing with the appointment of the government clinical psychologist (“9/11/2020 Summons”);

(3) Summons filed on 10 November 2020 for leave to appeal and stay of the appointment of the government clinical psychologist (which is the subject matter of this judgment);

(4) Ex parte Summons on notice lodged on 12 November 2020 for an urgent hearing for interim stay of the appointment of the government clinical psychologist (and by court note of 16 November 2020, I refused to fix an urgent hearing with reasons provided);

(5) 2^nd Ex parte Summons on notice lodged on 20 November 2020 for an urgent hearing for interim stay of the appointment of the government clinical psychologist (and by court note of 23 November 2020, I refused to fix an urgent hearing with reasons provided).

Leave to appeal

25.  Section 63A(2) of the District Court Ordinance 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.

26.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave 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.

27.  The husband’s intended appeal is directed against a “case management decision” of this court. He should have been very aware of the trite law that an appellant faces a “very high hurdle” in showing that the first instance judge has gone clearly wrong and made orders which will clearly involve an injustice or inability for the trial court to carry out its task, since in an earlier appeal application filed by him against another case management direction of the Family Court in NPYJ v MRCS, [2020] HKCA 832, Chu JA has propounded the following principles:

“23. It is also well established that case management is pre-eminently within the province of the trial judge and the appellant court will only interfere in very exceptional circumstances: Cheung Yee-mong v So Kwok-yan [1996] 2 HKLR 48, 51. This Court has consistently held that an appellant faces a high hurdle in showing that the first instance judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational: see Lee Tak Yee v Chen Park Kuen [2001] 1 HKLRD 401; Kan Miu Wah v Aeroflot Russian International Airlines (unreported) CACV 142/2006; and Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887.”

28.  There are 10 grounds of appeal listed in the husband’s draft notice of appeal which is attached to his summons, which in my view, boils down to the following major grounds:

(1) I erred in law by ordering the appointment of government clinical psychologist (“Ground 1”);

(2) I erred in failing to accord him and the wife an opportunity to be heard on such appointment, whether by way of an oral hearing or by written submission (“Ground 2”);

(3) I erred in failing in secure the prior consent of both parties who have joint custody of the children (“Ground 3”);

(4) I failed to ascertain if the government clinical psychologist has any experience/expertise in parental alienation, before making such an appointment (“Ground 4”);

(5) The appointment is pre-mature given the husband has taken out 3/11/2020 and 9/11/2020 Summonses, which return dates are 11 and 18 January 2021 respectively (“Ground 5”).

Ground 1

29.  The husband has not explained in his supporting affidavit (76^th affidavit) or his draft notice of appeal or his skeleton submission as to why and how I erred in law in ordering a government clinical psychologist report. I thus see no reasonable prospect of success of this ground.

Ground 2

30.  The husband argues that the order for appointment of the government clinical psychologists is in breach of the rules of natural justice and procedural fairness, and thus “unlawful, void and of no effect”, because he was not given a chance to be heard.

31.  The court note of 21 October 2020 referred to at §18 of this judgement is a good and sufficient proof that the court had alerted the parties of her intention to obtain a government clinical psychologist report should they fail to nominate a single joint expert by the deadline to the acceptance of the court. In their respective reply letter to the court, neither the husband nor the wife had expressed any objection to such clear intention of the court.  Further, the same court note had explained why the nominated expert of either party was not accepted by the court, to which the husband has not, up to today, challenged the reason(s) provided by the court. It is thus wrong and unfair for the husband to say that he has not been given an opportunity to be heard.

32.  The husband relies on the case of ST v Betty Kwan [2014] 4 HKLRD 277. I really cannot see how he can be assisted by this case, which is a case concerning whether an oral hearing should be held in the context of screening torture claimants.

Ground 3

33.  The husband argues that his consent as one of the custodian parents to obtain a government clinical psychologist report has not been secured, and that such consent has not been forthcoming.

34.  I think the husband has totally overlooked the inquisitional function and duty of the Family Court in matrimonial matters. Suffice it is for me to point out that under section 3(1)(a)(i) of the Guardianship of Minors Ordinance, Cap 13, the court “shall” give due consideration to:

(1) the views of the minor; and

(2) any material information including any report of the Director of Social Welfare available to the court at the hearing.

35.  Having taken seizure of this case since 29 September 2020 and having cursorily gone through about 37 summonses and about 58 affidavits filed by the husband since July 2019 up to the date of this judgment, I am of the view that a clinical psychology report on, inter alia, the children and their relationship with the parties, and the issue of alleged parental alienation if any are “material information” that the court needs to give consideration to. When the single joint expert nominated by either party on 2 rounds of nomination does not meet the court’s approval, I see nothing objectionable, in the best interest of the children, that a government clinical psychologist report be obtained. Otherwise, the court will have no or not sufficient information on clinical psychological aspect of the children.

36.  Pausing here, it is perhaps pertinent for me to point out that the children consult their treating child therapist, Dr Pandora Ng, from time to time. The SWO once requested by his memo dated 22 September 2020 for direction of the court to make enquiry with Dr Ng, to which the husband objected. As a result, the SWO was directed not to make enquiry with Dr Ng.

Ground 4  

37.  On this ground, the husband says there is no evidence of expertise/experience on the part of the government clinical psychologist being provided in advance to either the court, nor to the parties, and thus I erred in making the appointment.

38.  The family court judges will from time to time obtain clinical psychologist report(s) in high conflict cases from government clinical psychologist(s).  In many if not all of the high conflict cases, parental alienation is often alleged. Hence, their experience in advising on parental alienation should not be doubted.

39.  Further, under §2 of the 28/10/2020 Order, the government clinical psychologist is requested to provide an opinion on whether the children are subject to parental alienation, if any.  The government clinical psychologist has not indicted to this court that he/she is not qualified or is not able to give an opinion on this point.

40.  In any event, I reiterate my view at §35and §36 of this judgment.

Ground 5

41.  On this ground, I only need to say that it is the husband’s subjective thinking that the Expert Summons and his application to appoint Dr Craigen have not been finally disposed of.

42.  Upon the handing down of this judgment, I shall consider disposing of the 3/11/2020 and 9/11/2020 Summonses by way of summary disposal, such as requesting the husband to show cause why these 2 summonses should not be struck out for, inter alia, abuse of process.

Conclusion on the leave to appeal

43.  Due to the matters aforesaid, I conclude that there is no reasonable prospect of success in any of the grounds of the intended appeal of the husband.

44.  The husband has not proven that there is some other reason in the interests of justice that the appeal should be heard.

45.  Hence, I refuse to grant leave to appeal to the husband.

46.  As I see no reason why costs should not follow the event, I will thus make an order that the husband do bear the wife’s costs of and occasioned by this application, to be taxed if not agreed.

Stay Application 

47.  Since his application for leave to appeal is rejected, it follows that his application for stay of appointment of the government clinical psychologist and provision of the relevant documents to him will not be stayed.

48.  I add that it is not in the best interest of the children, nor in the pro-active management of this case by the court, that the preparation of the government clinical psychologist report should be further delayed. 

Order

49.  Due to the matters set out above, I shall make the following order:

(1) the husband’s summons for leave to appeal and stay be dismissed;

(2) the husband do bear the wife’s costs of and occasioned by this application, to be taxed if not agreed;

(3) the husband do draw up this Order for approval forthwith.

Postscript

50.  It is not usual for one to include a postscript in a judgment on leave to appeal. However, the court has very grave concern as to the way this case has been conducted and progressed.

51.  Since the consent order made by the family court on 4 July 2019 on custody and access until the date of this judgment, the husband has bombarded the Family Court with summonses and/or affidavits. Within this intervening period of about 18 months, he has taken out about 37 summonses and filed about 58 affidavits of his own. The summonses are mainly about temporary removal of the children out of the jurisdiction for various holidays (despite the observation of the court that the children are unwilling to see him);[3] variation of care and control of and/or access to the children; leave to appeal against various directions or orders of the Family Court; adducing his sole expert report on the children or parental alienation; recusal of the previous docket judges of this case; and variation/discharge of case management directions that he does not agree.  

52.  For example, on 27 October 2020 alone, he filed 10 summonses/affidavits/praecipes for writ of subpoena (even though the trial dates of his various summonses have not been fixed). For another example, on 9 November 2020 alone, he filed another 8 summonses/affidavits.

53.  As the matter now stands, there are currently about 10 outstanding summonses (excluding leave to appeal applications), all taken out by the husband, for call-over hearings or for pre-trial review, as it is broadly his pace to file more than one summonses almost every week.

54.  Despite the vast number of summonses/affidavits filed by him during this intervening period, the husband chose not to comply with the directions made on 29 September 2020 (that he should file his updated Form E by 4 November 2020).[4] And up to the date of this judgment, he has not filed his consolidated/composite affidavit pursuant to my paper directions made on 27 October 2020. [5]

55.  On the other hand, there were also memos from the SWO seeking directions/endorsement of the court, as a result of the husband’s objection to the action(s) and/or investigation that the SWO intended to take/make from time to time. For example, the SWO wrote to the court on 18 November 2020 reporting that the husband did not give consent for the children to see the government clinical psychologist, and that he told the SWO that since he has filed an application for leave to appeal against the order for obtaining a government clinical psychologist report, the SWO should not provide any information to the government clinical psychologist. For another example, the SWO wrote to the court on 3 December 2020 seeking directions from the court in respect of the husband’s request to the SWO to disclose to him all the court orders/written correspondences between the court and the SWO since 2017.

56.  It seems that the husband has the habit of sending most, if not all, of his affidavits filed with the court, to the SWO.

57.  It goes without saying that unfocused and/or repetitive and/or unnecessary applications would not only take up (and in fact have taken up) an extraordinary but unnecessary amount of court’s time and public resources, but would also cause delay which is not in the interest of the parties.

58.  It was thus high time for the court to remind the parties, in particularly the husband, that they should focus on complying with the court directions, such as the filing and service of his updated Form E and consolidated/composite affidavit, so that his substantive summonses on variation of care and control, permanent relocation to the UK and/or extended access would be tried, and the ancillary relief matters between the parties can move on smoothly without unnecessary delay.