FCMC 9098/2018
[2021] HKFC 178
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES
NUMBER 9098 OF 2018
----------------------------
| BETWEEN | | |
| | NPYJ | Petitioner |
and |
| | SMRC | Respondent |
----------------------------
Coram : Her Honour Judge Grace Chan in Chambers (paper disposal)
Date of Judgment : 2 September 2021
-----------------------
JUDGMENT
(Leave to appeal in respect of various orders
made in the absence of the respondent)
-----------------------
Introduction
1. On 20 May, 2 June and 2 July 2021, the respondent husband filed a total of 4 summonses seeking leave to appeal against various orders and/or a costs decision made by me.
2. The litigation history of this case and the voluminous applications taken out by the husband are already set out in some of the previous judgment/decision handed down by this court as follows:
(1) 4 November 2020 (on the husband’s application for vacation of an ancillary relief notice at the land registry);
(2) 9 December 2020 (on the husband’s leave to appeal against my case management directions including appointment of a government clinical psychologist);
(3) 21 December 2020 (on the husband’s leave to appeal against judgment dated 4 November 2020); and
(4) 10 March 2021 (on the husband’s application that I should recuse myself from this case).
3. For convenience, I would adopt herein the abbreviations used in the aforesaid Judgment, unless stated the otherwise.
4. In this judgment, I shall deal with 3 of these 4 summonses altogether, because they all concern his intended appeal against various orders made by me on 9 April 2021, 18 May 2021, 21 May 2021 and 21 June 2021 respectively and/or in his absence. He avers at those material times, he had left Hong Kong for the UK for his dying father who sadly passed away after he landed the UK. Since then, he was (and still is) unable to return to Hong Kong due to flight restriction and quarantine requirement. Hence, he says that I erred in law in making the orders in his absence due to force majeure and without granting him a chance to be heard, in breach of rule of law, due process, procedural fairness and nature justice and enshrined in Article 10 of the Bill of Rights Ordinance, Cap 383.
5. His leave to appeal application filed on 2 June 2021 against a costs decision handed down by me on 21 May 2021 will be dealt with separately in another decision handed down today.
6. 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.
7. 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.
8. As this is not the first time that the husband filed an application for leave to appeal against a case management order of the court, he should be very familiar with 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 SMRC, [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.”
9. To appreciate why the court made the relevant orders in his absence, it is necessary to set out the relevant events in the following.
The PTR of 4/1/2021 & the Recusal Summons
10. As said, I came to seize this case on 29 September 2020 during which I fixed the various children’s summonses of the husband for pre-trial review (PTR) for 4 January 2021 (with 1 hour reserved). I also alerted the parties that I had every intention to fix these children’s summonses for trial in the said PTR.
11. Further, I fixed the first appointment hearing of the ancillary relief matters for the same date of 4 January 2021, and gave time extension for the parties to file and serve their respective updated Form E. On the husband’s own application, such time extension was further extended, but yet he still failed to comply with the further extended time table by the said PTR/first appointment hearing.
12. Even more so, on the last working day immediately before the said PTR/first appointment hearing, he took out the Recusal Summons on 31 December 2020, the return date of which was 19 February 2021.
13. Then in the PTR of 4 January 2021, when the court asked for an explanation for non-compliance with the order of filing his updated Form E, the husband made bold submission that I should not hear or make any directions on this case, no matter whether it was children and ancillary relief matter. Time was thus spent on his oral submission, and the PTR of the children’s summonses as well as the first appointment hearing had to be refixed pending the judgment on the Recusal Summons. I gave directions for paper disposal of the Recusal Summons.
14. Had it not been the fact that time was wasted for the court to deal with the husband’s oral submission, the court would probably have been able to fix or at least pencil-mark the forthcoming trial dates for the children’s summonses.
15. The judgment on the Recusal Summons was handed down by me on 10 March 2021, in which the application was dismissed. Immediately, I restored the first appointment hearing to 9 April 2021 (“9/4/2021 Hearing”), which date was made available only upon cancellation of my own annual leave.[1]
After the Recusal Judgment
16. Then, on 26 March 2021, the husband took out 2 additional summonses (See: [19(10) and (11)] below), which on my directions, were fixed to 9 April 2021.
17. On the other hand, the wife filed her affirmation in respect of the garnishee application in February 2021 to enforce the MPS Order made by HHJ Adriana Ching Tse (then Deputy Judge Tse). She also issued a summons pursuant to section 12 of Cap 192 which was returnable before the practice judge on 17 May 2021.
18. It is indisputable that despite the MPS Order, the husband has not paid a single penny to pursuant to the MPS Order. He lodged an application for leave to appeal against the MPS Order which was dismissed by the learnt judge on 13 May 2021.
Outstanding matters as at 9 April 2021
19. For easy reference and discussion, I set out below the outstanding summonses (all taken out by the husband) or other outstanding matters as at 9 April 2021, some of which will be fixed for trial, whereas some others will be dealt with as interlocutory matters:
For trial (collectively “Trial Summonses”)
(1) Summons filed on 28 November 2019 for, inter alia, variation of the Consent Order of 4 July 2019 on access, in that more extensive access be granted to the husband (“Access Variation Summons”);
(2) 1st summons filed on 13 May 2020 for variation of care and control of the children to the husband, and for the him to permanently relocate the children to the UK (“Care Variation/Relocation Summons”);
(3) 2nd summons filed on 13 May 2020 for enforcement of the Consent Order of 4 July 2019 (“Enforcement Summons”);
(4) Summons filed on 4 June 2020 for extended access pending trial (“Access Pending Trial Summons”);
(5) 1st summons filed on 27 October 2020 for urgent enforcement of the Consent Order of 4 July 2019, for 4 of his witnesses to give evidence via video-link (this will be treated as an interlocutory application), and for variation of appointment of parental co-ordinator (“Urgent Enforcement Summons”);
Interlocutory applications/matters (collectively “Interlocutory Summonses/Matters”)
(6) 2nd summons filed on 27 October 2020 for adducing the expert report of his treating psychologist, Dr Monica Borschel (“Treating Psychologist Summons”);
(7) Summons filed on 9 November 2020 for discharge/variation of case management order made on 27 October 2020 (in relation to filing and service of a composite/consolidated affidavit/affirmation on the children’s summonses for trial) that no further affidavit/affirmation be filed without leave of the court, and for discharge of the order to obtain updated single joint expert report each from Dr Jim Bierman (psychologist) and Dr BC Connelly (psychiatrist) (“Summons for Variation of 27/10/2020 Order”);
(8) Summons filed on 1 December 2020 for him to have holiday access with the children from 5 December 2020 to 3 January 2021, and that the wife should deliver the children to him (“1/12/2020 Summons”);
(9) Summons filed on 22 December 2020 for time extension to show cause why the 3/11/2020 and 9/11/2020 (relating to the Expert Summons) should not be struck out due to abuse of process, and for him to have holiday access with the children from 22 December 2020 to 19 January 2021, and that the wife should deliver the children to him (“22/12/2020 Summons”);
(10) 1st summons filed on 26 March 2021 for variation of the cost order nisi of the Recusal Judgment (ie the husband do bear the wife’s costs) to the effect that the wife do bear his costs, or no order as to costs, for amending the Recusal Judgment under slip rule, and for non-publication of the Recusal Judgment (“1st 26/3/2021 Summons”);
(11) 2nd summons filed on 26 March 2021 for (i) an immediate order be made in terms of his 2 summonses filed on 13 May 2020 and 4 June 2021 (ie items (2) and (3) above); (ii) withdrawal of the 3/11/2020 and 9/11/2020 Summonses; and (iii) time extension until 7 April 2021 to comply with the paper directions made on 10 March 2021 which basically require the parties to comply with PD15.11 in preparing for the next first appointment hearing (“2nd 26/3/2021 Summons”);
(12) (On the court’s own motion) whether Official Solicitor should be appointed to represent the children pursuant to PDSL 6?
(13) (On the court’s own motion), any necessary and appropriate orders/directions in line with PD 15.11, so that the ancillary relief matter can be proceeded with without further delay.
Hearing of 9 April 2021 & his absence
20. The court was supposed to deal with 3 matters in the hearing of 9 April 2021, namely the first appointment, and the 1st and 2nd 26/3/2021 Summonses.
21. However, 2 days before the hearing of 9 April 2021, the husband sent a letter dated 7 April 2021 signed by him (“7/4/2021 Letter”) to the court, enclosing an unsigned summons and unsworn 97th affidavit. In gist, he claimed that he had flown back to England on 4 April 2021 due to his father’s deterioration of health, and that he did not know precisely when he would be able to return to Hong Kong. Hence, he sought in his intended unsigned summons the following:
(1) the first appointment hearing, all of his outstanding children’s summonses and the wife’s MPS enforcement summons be adjourned sine die until his return to Hong Kong;
(2) leave be granted for the children (aged about 13 and 10 respectively) to travel to England to be with him forthwith, and that the wife should deliver them to the airport accordingly;
(3) leave be granted for him to contact the Family Court Registry by way of email;
(4) the wife do forthwith provide her correspondence with the court in compliance with the court order of 29 March 2021.
22. The 7/4/2021 Letter was brought to my attention on 8 April 2021, which was considered by me in the hearing of 9 April 2021. I did not accept that he could not come to the court due to the event as alleged and concluded that he chose not to come to court. I gave the following ex tempore observation/comment in the hearing:
(1) The said summons attached to the 7/4/2021 Letter was not signed, and thus it could not be regarded as properly taken out;
(2) The 97th affidavit attached to the said letter of 7 April 2021 was not signed or sworn, either. Thus, it could not and would not be considered;[2]
(3) That said, even if they were considered on a de bene esse basis, the court finds that there was no supporting documentary proof in the 97th affidavit, such as the updated medical report/medical chit on the urgent condition of the husband’s father, or his air ticket on his alleged flight of 4 April 2021;
(4) Importantly, the allegation that he had flown to the UK on 4 April 2021 does not sit well with the duly signed 7/4/2021 Letter. The court found it suspicious that while he could sign the 7/4/2021 Letter, he did not sign the attached summons or sworn the 97th affidavit.
23. Since the court did not accept the husband’s alleged reason(s) for absence and concluded that he chose not to attend the hearing, his complaint of making the relevant orders in his absence and/or not giving him a right to be heard, and thus lack of procedural fairness and natural justice, etc, does not begin to take flight.
24. On the other hand, the court has made 3 separate orders on 9 April 2021 in relation to the matters set out at [20]. The husband, however, has not clearly identified in his leave to appeal summons filed in 20 May 2021 or his draft notice of appeal against which orders of 9 April 2021 he is now appealing. So, I have to take it that he is appealing against all of the 3 orders. It is thus imperative to go into greater details of the 3 orders.
The 1st Order made on 9 April 2021
25. The first order concerns the 1st 26/3/2021 Summons, and in gist, the following orders were made:
(1) as to his application for variation of the costs order nisi in respect of the Recusal Judgment, I merely gave directions for filing and service of written submission and disposal of this application by way of paper disposal;
(2) as to his application for amendment of the Recusal Judgment, I made no order because a corrigendum would be issued (and in fact was already issued);[3]
(3) as to his application that the Recusal Judgment should not be published until the parties are given a chance to be heard and/or redacted, I dismissed this application with costs to be wife in the form of a nisi order, to be made absolute within 14 days.[4]
26. In dismissing the application at the sub-paragraph (3) in the preceding paragraph, I gave the following ex tempore reasoning:
(1) I had by then handed 4 judgment on various summonses taken out by the husband, and the previous 3 judgments showing background of the parties and the case were already published;
(2) It was noted that the Court of Appeal has also published all the appeal applications of the husband in respect of the judgment/decisions of the family court. In these judgment, the background of the parties/family was set out;
(3) Reference should be made to paragraphs 21 and 22 of PD 15.15 in so far as publication of judgment/decision of family court is concerned. In accordance with this practice, the court has, when the judgment was handed down and sent to the parties on 10 March 2021, afforded them with 14 days to raise their objection by way of letters. No objection and/or acceptable objection was received by the court;
(4) The husband raised his concern in his 94th affidavit that he or the children would be identified in the said judgment, but the parties and the children’s name have been sanitized in the judgment.
27. Apart from the allegation that I erred in law in making the above orders in his absence (which is already rejected by me at [22] above), the husband has not put forward any other grounds as to why and how the above orders are wrong in law. His intended appeal on this order is totally without any merit.
The 2nd order made on 9 April 2021
28. The second order made on 9 April 2021 related to the 2nd 26/3/2021 Summons, which contained 3 major but different applications.
29. At paragraph 1 of the 2nd 26/3/2021 Summons, the husband sought to make an order in terms of the Enforcement Summons and the Access Pending Trial Summons. I made no order as to this paragraph 1, with no order as to costs, for the following reasons given orally in the hearing:
(1) It is obvious that paragraph 1 is a repeated and thus unnecessary and unfocused application, and for this reason alone, should be dismissed due to an abuse of process;
(2) If not (just assuming), I was of the view that it was pre-mature to make any order because the government clinical psychologist report and the updated social investigation report on recommendation of access were not yet available;
(3) I referred to the hearing of 29 September 2020 when I first seized of this case, during which I discussed and told the parties that it was in the interest of all parties in terms of time and costs to have a global trial of all children’s summonses of the husband.
30. Paragraph 2 of the 2nd 26/3/2021 Summons sought to withdraw 3/11/2020 Summons (for the appointment of Dr Kristie Craigen as the single joint expert) and 9/11/2020 Summonses (to “renew” the Expert Summons for the expert report of Dr Jadis Blurton and Dr Kristie Craigen to be adduced).
31. As I explained by way of my oral reasoning in the hearing, I had directed as early as 3 December 2020 by way of my court note that the husband should show cause why these 2 Summonses should not be struck out due to an abuse of process. But I was not able to deal further with these 2 Summonses partly due to his leave to appeal application (on appointment of government clinical psychologist) and Recusal Summons. After the Recusal Judgment was handed down, I then “restored” the handling of these 2 Summonses, namely whether they should be struck out due to an abuse of process. It was under such circumstances that the husband now sought to withdraw these 2 Summonses.
32. Notably, the Court of Appeal has already said in their judgment that these 2 Summonses were an abuse of process. [5]
33. However, as I said in the hearing of 9 April 2021 when the husband was absent, I did not wish to dwell on whether to dismiss these 2 Summonses on the ground of an abuse process or to let him withdraw them, so long as it was now confirmed that he would not pursue them any more. I thus gave leave to him to withdraw these 2 Summonses, but with an order nisi that the costs of these 2 Summonses and paragraph 2 of the 2nd 26/3/2021 Summons be to the wife.
34. In my view, the court should not be criticized for making an order in terms of what the husband himself sought, merely because he was absent in the hearing, lest to mention that the court, as a matter of fact, did not accept his reason for absence. Further, it is abundantly clear that the 3/11/2020 and 9/11/2020 Summonses should not have been taken out at all, [6] such that even if he was given a chance to be heard, the court would not have made a different costs order. Importantly, there was no application for variation of such cost order nisi, and thus it has already been made absolute.
35. Paragraph 3 of the 2nd 26/3/2021 Summons sought to have time extension to comply with my directions made on 10 March 2021 (in relation to preparation for the first appointment hearing) to 7 April 2021.
36. Despite the plain fact that it was his own application for time extension to comply with said court directions by 7 April 2021, he had failed to abide by the deadline suggested by him. Further, the court fould it very strange and unexplainable that while he could prepare and sign the 7/4/2021 Letter, he was unable to comply with the said directions by the deadline suggested by he himself. In any event, it is very obvious that by the time when this application was heard, ie on 9 April 2021, such time line had already expired.
37. In such circumstances, I made no order as to this paragraph, and awarded a cost order nisi in favour of the wife, which was already made absolute since there was no application for varying the same.
38. Upon due consideration, I conclude that there is no reasonable prospect of success in his intended appeal against the 2nd order of 9 April 2021.
The 3rd Order made on 9 April 2021
39. By way of background, I have to point out that despite the petition of this case was filed in July 2018,[7] the ancillary relief front of this case has not been moving forward in any meaningful pace at all. Despite that numerous first appointment hearings were heard in the past 3 years, such hearings were mostly, if not all, spent on various summonses, including the Trial and/or Interlocutory Summonses, of the husband.
40. The updated Form E of the wife was filed on 4 November 2020. The husband did not file his until an unless order was imposed by me; he filed his updated Form E on 25 January 2021.
41. As said above, the hearing of 9 April 2021 is also a first appointment hearing, whereby both parties have to comply with PD 15.11 in preparing for the hearing, including preparing their respective draft questionnaire on each other’s Form E.
42. The wife prepared her draft questionnaire, to which I gave leave to her to formally file and serve the same within 7 days, ie by 16 April 2021. I also ordered the husband to file and serve his replies to the wife’s questionnaire within 28 days thereafter, ie by 14 May 2021.
43. I fail to see how I erred in giving this case management direction. I reiterate what I said at [22] above. In any event, I do not accept that it is wrong in law to make such case management order in his absence, given the very slow progress of the ancillary relief matter in this case. Importantly, the husband has not made any payment pursuant to the MPS Order made on 25 June 2019. The children have been financially supported only by the wife.
44. Moreover, it is not his argument that insufficient time was given for him to provide his replies. Yet, he has not yet provided his replies to the wife’s questionnaire up to the date of this decision.
Order of 18 May 2021 & hearing of 21 May 2021
45. It is accepted that as at the hearing of 21 May 2021, the husband was in the UK and that the said hearing was conducted in his absence. However, it is erroneous for him to say that I refused to adjourn the hearing of 21 May 2021 by virtue of my order of 18 May 2021. It is necessary to put all relevant hearings/events into proper prospective.
46. On 3 May 2021, the husband became represented by Messrs Payne Clermont Velasco. On the same day, his solicitors wrote to the court to seek an urgent hearing for removal of the children to the UK to be with him and to attend the funeral of his late father which was said to take place on 9 May 2021. I acceded to the request and fixed this summons for the following day of 4 May 2021.
47. The husband continued to be represented by Messrs Payne Clermont Velasco in the hearing of 4 May 2021. Upon hearing submission from both parties, I dismissed his application, with no order as to costs.
48. Further, I took the opportunity to restore the the Trial Summonses to 21 May 2021 (as the last PTR held on 4 January 2021 was unable to go ahead as scheduled due to the oral submission made by the husband as per [13]). I informed both parties that I also intended to consider whether the Official Solicitor should be appointed to represent the children in same hearing of 21 May 2021.
49. However, the husband filed a notice to act in person on 14 May 2021. On the same day, he lodged a letter with the court seeking leave to file his summons (signed and dated 14 May 2021),[8] in which he asked that:
(1) all his outstanding children’s summonses be adjourned sine die until he returns to Hong Kong (but his intended return date is not given in the summons);
(2) the hearing of 21 May 2021 be vacated until such time as this summons dated 14 May 2021 was heard; and
(3) the costs order made by me on 4 May 2021 in respect of his urgent removal summons be varied from “no order as to costs” to “the wife do bear his costs on an indemnity basis”.
50. By my court note of 18 May 2021, I replied to him like this,
“1 …
2. This court, since her seizure of this case from 29/9/2020, has not made an order that “leave” is required for any party to take out his/her summons. This court only made a Directive that if [the husband] takes out a summons, this court’s diary be consulted before fixing a return date of the summons. It is up to the [husband] to decide if to formally take out and file the said summons in person or by his agent, but filing of an intended summons by letters is not procedurally appropriate and correct.
3. Besides, the [husband] should be reminded that the costs order made on 4/5/2021 in respect of his removal summons is not a nisi order. If he does not agree with the costs order and is of the view that this court erred in law in making a costs order of “no order as to costs”, he should seek leave to appeal the costs order.”
51. It is noted that the husband did not file this summons, whether by himself or by his agent.
52. Apart from the above court note, I have not made any formal order on 18 May 2021 refusing to adjourn the hearing of 21 May 2021.
53. Merely to complete the picture, I would add 2 more observation and/or comment as follows.
54. First, in his urgent summons and supporting affidavit for removal of the children to the UK to attend the funeral of his late father, the husband adamantly said that the children be removed from 4 to 18 May 2021 (both dates inclusive) only, which in turn means that he would return with the children to Hong Kong by 18 May 2021. As such, it is unknown why he could not have returned to Hong Kong to attend the hearings of the family court from 19 May 2021 onwards.
55. Second, there are other very good reasons to proceed with the hearing of 21 May 2021 in the absence of the husband:
(1) Despite the efforts and pro-active case management of the court, there has not been any meaningful progress on the Trial Summonses since the last PTR held on 4 January 2021;
(2) The updated social investigation report was prepared and ready by 23 April 2021. Also, the government clinical psychologist report was completed and ready by 5 May 2021, though it was delayed partly because the husband (who should know due to his professional knowledge or if not was already told by this court, that an appeal application did not amount to an automatic stay of the order being appealed against) was not amenable to seeing the government clinical psychologist until his renewed application of leave to appeal my order of appointment the government clinical psychologist was heard and dismissed by the Court of Appeal. The availability of these reports, in my view, serves as a more important factor that the Trial Summonses should go ahead as soon as possible without any further delay;
(3) Before trial of the Trial Summonses can be fixed, the Interlocutory Summonses/Matters need to be dealt with, so that the court would be in a better position to determine the length of the trial. In particularly, I am very concerned that the husband claims that he and his witnesses alone will take up 25 days in their evidence. This is unprecedented and extraordinary. According to my experience, trying summonses of these nature would usually take about 5 to 6 days only;
(4) Most of the directions given by me on 21 May 2021 were merely case management directions, made with sole and only intention that the Trial Summonses would be ready for trial by the next PTR fixed for 22 October 2021.
56. It is pertinent to note that there is not any leave to appeal application in respect of my order of 21 May 2021 on the Trial Summonses and the Interlocutory Summonses, save and except the order concerning the Official Solicitor.
57. Equally, it is pertinent for me to point out that I have made specific directions in respect of the Treating Psychologist Summons, as it is found that the husband has not filed any supporting affidavit, despite that this summons was filed on 27 October 2020. Yet, he failed to comply with this direction to file and serve his supporting affidavit by 11 June 2021. I express my grave concern that such failure to comply with the directions will, once again, affect the next PTR and the time table for fixing the trial of the Trial Summonses.
58. In such circumstances, I will make an unless order for him to file and serve the said affidavit.
Order dated 21 May 2021 relating to Official Solicitor
59. In the hearing of 21 May 2021, I made another order (only the relevant parts will be set out) as follows:
(1) The Official Solicitor be requested to represent the children of this case;
(2) The Official Solicitor be granted leave to search into the court file and obtain documents therefrom.
60. By his summons filed on 2 June 2021, the husband applies for the following:
(1) Leave to appeal against the order made on 21 May 2021 appointing the Official Solicitor to represent the children of the family;
(2) The appointment of the Official Solicitor be set aside;
(3) Pending determination of his appeal, the said order be stayed;
(4) The wife do bear his costs on an indemnity basis.
61. His intended grounds of appeal are these:
(1) I erred in law in making the order in his absence due to force majeure and without giving him an opportunity to be heard;
(2) I erred in law by hearing from the wife only; and
(3) Wrongly stated at Recital (D) of the order that he had not lodged any submission when in fact he had done so on 22 March 2021, thereby rendering the Order unlawful, void and of no legal effect.
62. I will say straight away that there is no reasonable prospect of success in any of the above intended grounds of appeal due to the following reasons.
63. First, this application is mis-conceived. I have not yet formally made an order to appoint the Official Solicitor to represent the children of the family; I merely “requested” the Official Solicitor to represent the children. The usual practice and procedure in the family court is to, first of all, invite/request the Official Solicitor to consider if he would represent the child/children of the family. His view would usually be contained in a report lodged solely with the court.
64. Such procedure is implicit in rule 108 of the Matrimonial Causes Rules, Cap 179A which provides that:
“108. Separate representation of children
(1) Without prejudice to rule 72, if in any matrimonial proceedings it appears to the court that any child ought to be separately represented, the court may ---
(a) of its own motion, appoint the Official Solicitor if he consents; or
(b) …”
(the underlined is my emphasis)
65. In requesting the Official Solicitor to consider representing the children of this case, I take into account the major allegation/ground of applying for variation of the care and control of the children is that the husband alleges that the wife has administered active and serious parental alienation on the children.
66. I have also considered PDSL6 on Guidance in Separation Representation for Children in Matrimonial and Family Proceedings. Paragraph 11 provides that,
“11. The role of the Official Solicitor as a child’s separate representative is twofold: as an officer of the court the Official Solicitor investigates how the child’s interests are best served while simultaneously representing the child’s views as his solicitor in the proceedings.”
67. Paragraph 15 gives a non-exhaustive list of circumstances where the court could consider making an order for separate legal representation of a child:
“(i) Where there is an intractable dispute over custody or access including where all access has ceased or where there is irrational but implacable hostility to access or where the child may be suffering harm associated with the access dispute or where it is intended that there be termination of access;
(ii) Where a parent is under a disability and represented through a guardian ad litem or next friend and custody/access is in dispute;
(iii) Difficult cases which involve a foreign element, immigration problems or permanent removal from the jurisdiction such that it would for all practical purposes exclude the other party from the possibility of access to the child;
(iv) Where the child has a standpoint or interests which are inconsistent with or incapable of being represented by any of the adult parties or cannot be adequately met by a report to the court;
(v) Where an older child is opposing a proposed course of action;
(vi) Where the child is apparently alienated from one or both parents;
(vii) Where there are real issues of cultural or religious differences affecting the child;
(viii) Where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child;
(ix) Where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic violence not capable of being resolved with the help of a social welfare officer;
(x) Where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position;
(xi) Where there is a contested issue about blood testing;
(xii) Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child’s welfare;
(xiii) Where on the material filed by the parents, neither parent seems a suitable custodian;
(xiv) Where a child of mature years is expressing strong views and if given effect would involve changing a long standing custodial arrangement or a complete denial of access to one parent;
(xv) Where it is proposed to separate siblings;
(xvi) In relation to applications in the court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties;
(xvii) Where none of the parties are legally represented.”
68. In my view and as far as I can understand it from the affidavits/affirmations of the parties, at least the factors set out in (i), (iii), (v), (vi), (ix) and (xvii) in the preceding paragraph may be engaged.
69. Pausing here, I would venture to say at this stage that given the overall circumstances and the background of this case, I am prepared to appoint the Official Solicitors to represent the children of this case, if he agrees to do so.
70. Second, it is not correct for the husband to argue that he was not given a chance to be heard. It is plain and obvious that the parties were given at least 2 chances to express their view on this topic.
71. This court first brought up the topic of whether there should be separate representation for the children of this case as early as her court note of 9 December 2020. The court referred the parties to PDSL 6 and invited submission by them on/before 23 December 2020, to which they respectively replied to the court on 22 and 23 December 2020. In gist, the wife took a neutral stance but was worried about the costs consequences of the appointment, whereas the husband asked that be put on hold for 3 to 6 months to try out therapeutic intervention.
72. Then, this matter came to a stagnant, due to the Recusal Summons taken out by the husband.
73. After the Recusal Judgment, the court sent out paper directions giving parties a further chance to make written submission on the topic. It is accepted that the husband sent a letter dated 22 March 2021 to the court, but in it, he merely objected to the said appointment and asked that be put on hold once again. Hence, the court does not regard this as a further or new submission. He was merely repeating his old stance without new reason(s) of objection, As such, I do not see Recital (D) of the order was wrong in substance.
74. However, even if (just assuming) that I was wrong in holding such a view in the preceding paragraph, and that Recital (D) of the said order did wrongly state that he had not lodged any submission, such mistake, if any, would not render the court order void and unlawful.
75. Third, it is erroneous for the husband to argue that the said court order was made only upon hearing from the wife. I reiterate that the topic of separate representation for the children by the Official Solicitor was brought up by this court. I also reiterate that both parties were given 2 chances to make written submission to the court as outlined above.
76. Fourth, I reiterate my observation, comment and/or analysis in relation to the husband’s absence at [53] to [55] above.
The Order of 21 June 2021
77. Pursuant to my order of 9 April 2021, the husband should have filed and served his replies to the wife’s questionnaire by 14 May 2021. He failed to do so by the deadline. This triggered the wife to take out her summons on 20 May 2021 that he should do so within 7 days. Her summons was returnable on 21 June 2021.
78. On 11 June 2021, the husband wrote to the court again, seeking leave to issue his summons dated 11 June 2021 and to file his 102nd affidavit. In the summons, there are a total of 21 applications on different topics/areas concerning the children and the ancillary relief, such as ordering the wife to deliver the passports of the children to him for his retention; temporary removal of the children to the UK between 30 June to 15 August 2021; immediate order in terms of the Access Pending Trial Summons; appointment of child psychiatrist, Dr Ronnie Pao, and child psychologist, Ms Katrina Rozga; striking out of the wife’s summons for him to file and serve his replies to her questionnaire.
79. It is suggested in the summons that it is to be fixed for 15 minutes only.
80. It is with regrets that the husband has not paid any or any sufficient attention to my previous court note of 18 May 2021 at [50]. On the other hand, the court has an inherent function and power to control the proceedings before her. It is impossible that the court will be able to handle 21 applications of different nature and areas in a merely 15-minute’s hearing, even if just for giving directions. Thus, I replied to the husband like this on 16 June 2021:
“1. All summonses shall be filed formally in person, but not by way of correspondences.
2. Besides, each summons should cover only one specific area and should state at the margin note the relevant ordinances/rules that the [husband] is relying on.”
81. The husband did not file any summonses consequent to this court note between the date of the court note and the hearing of 21 June 2021.
82. On return day of 21 June 2021, I made an order in the absence of the husband that time be extended for 28 days (instead of 7 days) for him to file and serve his replies to the wife’s questionnaire, ie by 19 July 2021. By his summons filed on 2 July 2021, he seeks leave to appeal against this order on the following grounds:
(1) I erred in law by making the order in his absence due to force majeure and without giving him an opportunity to be heard;
(2) Hearing only from the wife;
(3) Making the order when her questionnaire was defective in that it does not comply with the directions made by me on 10 March 2021 (that it should be of font 14 and double line spacing);
(4) Not accepting her application is an abuse of process, and/or without margin note (but where the court rejected his summons dated 11 June 2021 as it lacked the margin note; [9]
(5) Making a draconian order in the circumstances where I have consistently and repeatedly refused to sanction the wife for her continuing breaches of the Consent Order on custody and access;
(6) Not considering his 102nd affidavit.
83. After due consideration, I do not agree that there is any need to hold an oral hearing of this leave to appeal summons, as the application does not involve complicated law or complex facts. Further, I am not satisfied that there is any reasonable prospect of success in this leave to appeal application. In particular, I would say the following.
84. First, my observation and comment in relation to the husband’s absence at [54] above applies equally to his absence in the hearing of 21 June 2021.
85. Second, the first appointment hearings on ancillary relief matter in the family court have to follow the protocol in PD 15.11. These include, among other things, the preparation for draft questionnaire upon which the court may grant leave to formally file and serve the same, and for the other party to reply. I thus reject the husband’s argument that the wife’s application is an abuse of process, and/or that the lack of a margin note etc would make her application/questionnaire defective per se.
86. Third, I repeat all my observation/comment/concern on the slow progress of the ancillary relief matter set out at [39] to [43] above.
87. Fourth, I do not agree that giving time extension for the husband to comply with a previous order is a draconian order as such; I have not made any unless order yet.
88. Fifth, his 102nd affidavit was not formally filed as at the hearing of 21 June 2021, and thus I was entitled not to consider it. But even if (just assumed) that it was considered, I would not have made a different court order.
Conclusion on the leave to appeal
89. Due to the matters aforesaid, I conclude that there is no reasonable prospect of success in any of the grounds of the intended appeals of the husband. He has not proven that there is some other reason in the interests of justice that the appeal should be heard. Hence, I refuse to grant leave to appeal in all 3 summonses for leave to appeal.
90. 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
91. Since his application for leave to appeal is rejected, it follows that the issue of his applications for stay contained in his all of these leave to appeal summonses do not arise, and thus should be dismissed.
RPO/RAO?
92. In this case, the husband has so far taken out 48 applications since the Consent Order on custody and access dated 4 July 2019, or 22 summonses since I took up this case on 29 September 2020. He has filed over 100 affidavits in this case within a time span of about 3 years since the petition of this case was filed in July 2018 (excluding those affirmations filed under the old petition under FCMC 6134/2017).
93. Up to the date of this decision but excluding the judgment/decision handed down today, the family court has so far delivered 13 judgment/decisions since mid-2019, all on the husband’s applications, of which 8 of them are leave to appeal applications. Together with the recent 4 summonses on leave to appeal filed on 20 May, 2 June and 2 July 2021 respectively, he has lodged 12 applications for leave to appeal against various case management orders and judgment/decisions of the family court. So far, none of his leave to appeal applications was allowed.
94. It is said that after the family court made some case management directions/orders involving the social investigation officer, government clinical psychologist and/or the Official Solicitors, the husband would on many occasions write numerous letters/emails and/or make telephone calls to the social investigation officer, government clinical psychologist and/or the Official Solicitors telling them not to carry on with their proper investigation as directed by the court, pending his various leave to appeal applications, thereby triggering the social investigation officer, government clinical psychologist and/or the Official Solicitors to write to the court for directions from time to time. This has taken up an enormous amount of court’s time.
95. As a result of the voluminous applications on children’s matters taken out by him, which literally used up most if not all of the time in the first appointment hearings, there has been little progress on the ancillary relief matters, such that this case, though in action for more than 3 years, has just recently reached the stage of first round of questionnaire.
96. He has repeatedly made applications to remove the children out of Hong Kong to the UK, or to seek an immediate order be made in respect of the Access Pending Trial Summons and/or the Enforcement Summons. Yet, he has not focused on the directions of this court for, eg preparing his affidavit in respect of the Treating Psychologist Summons.
97. I am loath to pointing out that but for these repeated and/or unfocused and/or unnecessary applications, this court would probably have been able to fix or pencil-mark the Trial Summonses for trial in the PTR of 4 January 2021.
98. The next PTR of the Trial Summonses will be on 22 October 2021. In the best interest of the children and of the parties, as well as in line with the guiding principles in Order 1A, Rules of the High Court, I conclude that it was high time for the court to pro-actively consider if a restrictive proceedings order (“RPO”) or restrictive application order (“RAO”) should be imposed.
99. Hence, I direct that the husband shall show cause as to why a RPO and/or RAO should not be imposed against him. The following directions are given:
(1) The husband shall file and serve his written submission within 28 days from the date of this order to show cause as to why a RPO and/or RAO should not be imposed against him; such written submission shall not be more than 10 pages, of font 14 and double line spacing, with no more than 3 legal authorities;
(2) The wife shall file and serve her written submission in reply within 14 days thereafter; such written submission shall not be more than 10 pages, of font 14 and double line spacing, with no more than 3 legal authorities;
(3) The husband shall file and serve his written reply submission, if any, within 14 days thereafter; such written submission shall not be more than 2 pages, of font 14 and double line spacing, with no more than 1 legal authority;
(4) No further written submission shall be filed without leave of the court;
(5) Any written submission not conforming with the above requirement or lodged by the deadline will not be read and/or considered.
Order
100. For all the matters set out above, I now make the following order in respect of his leave to appeal applications:
(1) The husband’s summons filed on 20 May 2021 (for leave to appeal the orders made on 9 April 2021 and 18 May 2021) be dismissed;
(2) The husband’s summons filed on 2 June 2021 (for leave to appeal the order made on 21 May 2021 in respect of the appointment of Official Solicitor) be dismissed;
(3) The husband’s summons filed on 2 July 2021 (for leave to appeal the order made on 21 June 2021 in respect of the wife’s questionnaire) be dismissed;
(4) The husband do bear the wife’s costs of and occasioned by all of his aforesaid summonses, to be taxed if not agreed.
101. In addition, the court shall make the following orders in respect of the Treating Psychologist Summons:
(1) Unless by 4 pm of 23 September 2021, the husband do file and serve his affidavit in support to the Treating Psychologist Summons (limited to not more than 5 pages, excluding the signing page, and of at least font 14 with double line spacing), he shall be debarred from doing and the said Summons shall be dismissed with costs to the wife, to be taxed if not agreed;
(2) If the husband do file and serve the said supporting affidavit on time, the following directions shall apply:
(a) The wife do file and serve her affidavit in opposition (limited to not more than 5 pages, excluding the signing page, and of at least font 14 with double line spacing) within 21 days thereafter;
(b) The husband may file and serve his affidavit in reply, if any, (limited to not more than 2 pages, excluding the signing page, and of at least font 14 with double line spacing) within 14 days thereafter;
(c) No further affidavit shall be filed without leave;
(3) Following (2) above, the said Summons shall be disposed of by way of paper disposal as follows:
(a) The husband shall lodge and serve his written submission within 14 days of paragraph (2) (b) above;
(b) The wife shall lodge and serve her written submission within 14 days thereafter;
(c) The husband shall lodge and serve his written submission in reply, if any, within 7 days thereafter;
(d) No further written submission shall all filed without leave of the court;
(e) Each written submission shall not be more than 2 pages, of font 14 and double line spacing, and shall not include more than 2 legal authorities;
(f) Any written submission not conforming with the above requirement or lodged by the deadline will not be read and/or considered;
(4) Costs of this order be in the cause of the Summons.
| | Grace Chan |
| | District Judge |
The petitioner (wife) present and acting in person
The respondent (husband) present and acting in person
[1] The first appointment hearing was fixed pursuant to the court note of 10/3/2021.
[2] The husband’s sworn 97th affidavit was filed on 31 May 2021.
[3] The husband avers that the reference to “psychiatrist” at §57 of the Recusal Judgment should be amended to “psychologist” under the slip rule.
[4] There was no application for variation of this costs order nisi, which thus was already made absolute.
[5] CAMP 255/2020, [2021] HKCA 183 at §34.
[6] See footnote 5.
[7] The divorce of the parties actually commenced in May 2017 when the wife filed her petition relying on the behaviour of the husband under FCMC 6134/2017. This would mean that the divorce litigation of the parties have been going on for more than 4 years.
[8] The husband wrongly stated in his letter of 14 May 2021 that the intended summons attached to it was dated 7 April 2021. The correct date of the intended summons was 14 May 2021.
[9] The husband wrongly states in his notice of appeal that his summons was dated 10 June 2021, when according to the court file, the summons attached to his letter of 11 June 2021 was dated the same date of 11 June 2021.