HKW v. YYC

FCMC 3123/2021

[2024] HKFC 144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3123 OF 2021

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BETWEEN

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DECISION
( R’s leave to appeal )

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1.  This is the application taken out by the respondent (“F”) on 19 February 2024 for leave to appeal against my judgment given on 9 January 2024, in which I made an order that parties do have joint custody, the petitioner (“M”) do have sole care and control of Cazzie, a girl born in July 2019, with defined access to F as set out therein.

2.  The time for F’s application for leave to appeal expires on 6 February 2024 and delay is about 13 days. He filed an affirmation to explain the reason for delay, namely he was waiting for the consent from the Director of Legal Aid to extend his legal aid certificate to cover this leave to appeal application.

3.  Eventually, F’s legal aid was not extended.

Legal principles

4.  It is well settled principle that the appropriate tests when considering whether leave to appeal out of time ought to be given are :-

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of success;

(d) the extent of prejudice that would be caused to the other party if leave is granted (see: Leung Yiu &Ors[1998] 1 HKLRD 257).

5.  Where the delay is inexcusable, the applicant faces a higher threshold, ie the party must show a real prospect of success on merits and not simply the test of a reasonable prospect of success. The applicant would need to demonstrate a strongly arguable case[1].

6.  Section 63A(2) of the District Court Ordinance also provides that for leave to appeal to be granted, the intended appeal should have a reasonable prospect of success or there should be some other reasons in the interest of justice why the appeal should be heard.

7.  A reasonable prospect of success involves the notion that the prospect must be more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of the Judgment).

Discussion

8.  I accept that 13-day delay is by itself not substantial and the reason given by F is also acceptable. Further, no real prejudice is suffered by M.

9.  F sets out 12 purported grounds of appeal. In gist, they are essential two-fold by reference to his submission. First, I have failed to consider and/or make findings on M’s hostility against F and its impact on the welfare of Cazzie. Second, I have adopted the 2 SIRs without adequate explanations.

10.  In LWH also known as WHHL v NKWS also known as KWSN[2018] HKCA 260, the Court of Appeal said in para. 9:

“Some of the grounds concerned the adequacy of reasons given by the Judge in rejecting the case of W and the Interveners. One of the grounds was that the Judge made it clear that she would not deal with tiny points. We failed to see how this can be a ground of complaint. This Court has repeatedly said that a judge is not obliged to deal with each and every point raised by counsel or litigant in their evidence and submissions. It is sufficient that the Judge gave adequate reasons to explain how the evidence has been weighed. It is an impossible task (and very often it would do more harm than good) if a judge has to rebut the arguments and evidence in great minutiae. We wish to emphasize again that it is not the function of a judgment to address each and every point in arguments or evidence without regard to the significance of the same in the overall exercise in assessment of facts and evidence.”

11.  As mentioned in para. 48 to 55, 59 to 61 of my Judgment, I was fully aware of and had carefully considered all F’s allegations including the incidents happened on 13 March 2021, 3 April 2021 and 6 August 2022 as well as the criminal charge in ESCC 2438/2021. Before coming to the decision, I had taken into account of all these matters. In my view, some of the allegations were indeed trivial and had no significance.

12.  I was assisted by the 2 SIRs and the oral evidence of the 2 SWOs at the trial, which never showed that the relationship between F and Cazzie was actually hampered by the F’s allegations.

13.  As said in para. 67 and 72 of my Judgment, M who is the primary carer of Cazzie has much more stable working schedule than F. M has the assistance from her helper who had looked after Cazzie for several years already. In the best interest of Cazzie, care and control shall be granted to M.

14.  I also understand the importance of maintaining the bonding between F and Cazzie. As a result, the defined access granted to F is much generous than that recommended by in the 2^nd SIR.

15.  I wholly understand F’s complaints as to M’s obstruction of access and lack of insight. That is the reason why I ordered 12-month supervision by SWO and joint appointment of a parenting co-ordinator, so as to safeguard against any potential obstacle in going forward.

16.  In H v W [2021] 2 HKLRD 1251, the Court of Appeal said:

“39. Father’s Counsel had referred the Court to 4 cases from the Court of Appeal in England. The 1^st of these was W v W (A Minor: Custody Appeal) [1988] 2 FLR 505 in which it held amongst other things that although it was entirely within the judge’s discretion whether or not to accept the recommendation of the welfare officers, the judge, if he differed from it, should indicate in his judgment his reasons for doing so, and furthermore, when minded to depart from the welfare officers’ recommendation, the judge ought to consider all the information available and the recommendation should be carefully explored in cross-examination by the representatives of the parties[1].

40. The 2^nd case was Re A (Children:1959 UN Declaration) [1998] 1 FLR 354, in which Thorpe LJ had held amongst other things that it was important that the judge should afford the court welfare officer an opportunity to consider any misgivings the judge might have, or the direction of his thoughts, so that the court welfare officer could comment upon them.

41. This was reiterated by Thorpe LJ in the 3^rd case Re W (Residence) [1999] 2 FLR 390, in which he had held amongst other things that judges were not entitled to depart from the recommendation of an experienced court welfare officer without at least reasoning that departure, and that the judge ought to have expressed his misgivings about her approach to the court welfare officer before giving judgment, providing her with the chance to respond.”

17.  I had exercised my independent assessment after carefully considered all the relevant circumstances and decided based on the best interests of Cazzie as to whether I shall adopt part of or all the recommendations made in the 2 SIRs. F’s complaint that I have adopted the 2 SIRs without adequate explanations is totally unfounded.

18.  As to the reason why I imposed the condition “provided that F is off duty or on leave”, it is so obvious that F’s working schedule may change from time to time out of his control and that it is undesirable for him to leave Cazzie to be looked after by his mother or the newly hired helper.

19.  As to the ground of procedural unfairness, F was always entitled and given opportunity to give written explanations in his affirmations concerning his acceptance of binding over in ESCC 2438/2021 and his affairs with Charlotte or any other allegations made by M against him. F’s legal representatives should have advised him that it must be done by way of affirmation before trial, instead of waiting for cross-examination by M at trial. It is also noteworthy that M was acting in person at trial.

20.  None of the grounds made by F has any merit.

Conclusion

21.  To conclude, F has failed to demonstrate any reasonable prospect of success in his intended appeal and there is no other reason in the interests of justice why the appeal should be heard. F’s application for leave to appeal should be dismissed.

22.  Regarding the question of costs, there is no reason why costs shall not follow event. Ms Bridget Leung, counsel for M, lodged a submission together with a list of authorities on M’s behalf. Although M has not lodged her statement of costs in accordance with para. 9 of the New Arrangement, I am of the view that this application is strict forward and the costs incurred by her for perusal of the relevant documents served on her and preparation of her short submission are very minimal. Thus, I order that costs of this application be paid by F to M summarily assessed at $8,000 forthwith.

Ms Bridget Leung instructed by CL & Co. Solicitors for the Petitioner

Mr Shaphan Marwah instructed by Mike So, Joseph Lau & Co. for the Respondent

FCMC 3123/2021

[2024] HKFC 143

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3123 OF 2021

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BETWEEN

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DECISION
( P’s Leave to appeal )

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1.  This is the application taken out by the petitioner (“M”) on 6 February 2024 for leave to appeal against my judgment given on 9 January 2024, in which I made an order that parties do have joint custody, M do have sole care and control of Cazzie, a girl born in July 2019, with defined access to the respondent (“F”) as follows:

i. F do have day access during the school day every Wednesday from 10 am to 1:15 pm (if Cazzie has afternoon class) or from 12 noon to 5pm (if Cazzie has morning class) 10 January 2024, provided that F is off duty or on leave;

ii. F do have day access every alternate Saturday starting from 13 January 2024 from 10 am to 7 pm, provided that F is off duty or on leave;

iii. F do have day access every alternate Sunday starting from 21 January 2024 from 10 am to 7 pm, provided that F is off duty or on leave;

iv. During the long school holidays such as the Chinese New Year, Easter and Christmas, F do have 2 additional day access per week from 10 am to 7 pm, provided that F is off duty or on leave; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

v. During the Summer Vacation, F do have 3 additional day access per week from 10 am to 7 pm, provided that F is off duty or on leave; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

vi. On single school holidays that fall between Mondays and Fridays, parties shall share equally and F do have day access from 10 am to 7 pm, provided that F is off duty or on leave; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

vii. F do have staying access per week from 10 am to 7 pm the following day during the long school holidays such as the Chinese New Year, Easter and Christmas, provided that either F’s mother or the domestic helper hired by F is present during the staying access; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

viii. F do have 3 days 2 nights staying access per week from 10 am on the 1^st day to 7 pm on the 3^rd day during the Summer Vacation, provided that either F’s mother or the domestic helper hired by F is present during the staying access; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

ix. For the avoidance of doubt, if F selects staying access during the long school holidays, there be no additional day access as per para. (iv) and (v) above;

x. M do have video access to Cazzie during staying access with F for 15 minutes every day from 8:30 pm to 9 pm;

xi. F do have video access to Cazzie for 15 minutes twice a week from 8:30 pm to 9 pm; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

xii. All handovers shall be at MTR station in Tseung Kwan O district or such other place mutually agreed by the parties.

2.  I further order in the Judgment that:

i. supervision order for 12 months be granted;

ii. progress report be filed one month before the expiry of the supervision order;

iii. the parties do jointly appoint a parenting co-ordinator with costs to be shared equally in accordance with para. 5 of the Order made on 21 July 2021;

iv. F be allowed to approach the school of Cazzie for the purpose of obtaining Cazzie’s information in school and school holidays;

v. F shall immediately provide M and SWO with his new roster if his present 8-day work schedule changes;

vi. Penal notice be endorsed and personal service be dispensed with.

3.  M mainly disagrees with the order for defined access to F and also applies for stay of execution pending the outcome of this appeal.

4.  This application is disposed of on paper without oral hearing pursuant to the New Arrangement for Application for Leave to Appeal in the Family Court issued on 13 August 2018 (“New Arrangement”).

Legal principles

5.  Section 63A(2) of the District Court Ordinance provides that for leave to appeal to be granted, the intended appeal should have a reasonable prospect of success or there should be some other reasons in the interest of justice why the appeal should be heard.

6.  A reasonable prospect of success involves the notion that the prospect must be more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of the Judgment).

Discussion

Ground 1

7.  Ms Leung for M submitted that the defined access arrangement places excessive caring time and responsibility upon F which is contrary to the best interest of Cazzie.

8.  As mentioned in para.70 and 71 of the Judgment, I am fully aware of the 8-day work schedule of F and his heavy reliance on the help of his mother and the newly hired domestic helper to look after Cazzie. That is the reason why I impose the condition of “provided that F is off duty or on leave” during the access time and made an order that “F shall immediately provide M and SWO with his new roster if his present 8-day work schedule changes”. I consider that the defined access granted to F is not excessive if and when he is off duty or on leave and he is assisted by his mother and/or the newly hired domestic helper during the access time.

9.  This Ground has no merit.

Ground 2

10.  Ms Leung for M submitted that the order for defined access as per sub para. (iv)-(v) and (vii)-(viii) above is made on a fundamentally different structure from the recommendations made by SWO in the updated SIR and without justification.

11.  In my view, the court is never bound by the recommendations made by SWO in the SIR. The family judge has always the unfettered discretion to order the access arrangement, which is in the best interest of the child in question and suitable in the circumstances. I understand that F’s work schedule may change suddenly out of his control and hence, supervision order for 12 months is necessary so that the SWO may monitor the situation closely.

12.  This Ground has no merit.

Ground 3

13.  Ms Leung for M submitted that there is no strict rule on equal sharing of long school holidays.

14.  In reality, I am of the view that the F’s access in long school holidays is very likely to be less than 50% due to his work schedule.

15.  Further, it cannot be ignored that the order for defined access as per sub para. (vii)-(viii) is made on the condition that “provided that either F’s mother or the domestic helper hired by F is present during the staying access”. In my view, F together with either his mother or the domestic helper must be able to look after Cazzie during stay access.

16.  This Ground has no merit.

Conclusion

17.  To conclude, M has failed to demonstrate any reasonable prospect of success in her intended appeal and there is no other reason in the interests of justice why the appeal should be heard. Her application for leave to appeal should be dismissed.

18.  As no leave be granted for appeal, I fail to see why her application for stay shall be granted. M’s summons dated 6 February 2024 be dismissed entirely.

19.  Regarding the question of costs, there is no reason why costs shall not follow event. Initially, F acting in person lodged his skeleton submission in opposition on 19 February 2024 and subsequently, legal aid was granted to him. Mr Shaphan Marwah, counsel for F, lodged a supplemental submission together with a list of authorities on F’s behalf on 27 February 2024. Perhaps due to the legal aid rules, F has not lodged his statement of costs in accordance with para. 9 of the New Arrangement. Thus, I order that costs of this application be paid by M to F, to be taxed if not agreed. F’s own costs be taxed in accordance with the Legal Aid Regulations.

Ms Bridget Leung instructed by CL & Co. Solicitors for the Petitioner

Mr Shaphan Marwah instructed by Mike So, Joseph Lau & Co. for the Respondent

FCMC 3123/2021

[2023] HKFC 262

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3123 OF 2021

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JUDGMENT
(Custody, care and control)

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1.  This is the trial concerning the care arrangements of the child of the family (“Cazzie”), a girl born in July 2019 (about 4 years and 6 months old now).  At the time of trial, Cazzie is studying K2 in a kindergarten since 1 September 2022.

2.  The parties agree there should be an order for joint custody[1] but contest the care and control of Cazzie.

Background

3.  The respondent (“F”) is about 36 years old and is an Inspector of the Customs and Excise Department having a fixed “8-day” work schedule.

4.  The petitioner (“M”) is also about 36 years old and works as personal assistant to a CEO normally working from 9:30 am to 6:30 pm in weekday and off on public holidays, weekend and Sunday.

5.  The parties met in 2005 and married in September 2015.  In January 2016, they moved to a flat in South Horizons, Ap Lei Chau (the “FMH”).

6.  Cazzie was born in Canada in July 2019. Prior to and after Cazzie’s birth, the parties had a lot of arguments because M accused F of having extramarital affairs.  A post nuptial agreement was therefore signed[2] (the “PNA”), in which the parties agreed, inter alia, custody of Cazzie be to M.

7.  On 25 December 2020, the parties agreed to divorce. They initially attempted mediation but in vain, and then decided to instruct lawyers.

8.  At that time, the parties continued to live together with Cazzie and a domestic helper at the FMH.

9.  On 15 March 2021, M made her first “assault” allegation against F.  The police were called, but no further action was taken.

10.  On 3 April 2021, M made another allegation of “assault” against F.  The police were called, and both parties gave statements to the police.

11.  While F was detained by the police, M unilaterally moved with Cazzie to an undisclosed location and commenced these divorce proceedings shortly thereafter on 9 April 2021.

12.  The new district where Cazzie was residing, and her new schools, were only revealed to F at the First Appointment Hearing on 21 June 2021 and an interim contact order was made at the hearing. The interim access[3] ordered by me are as follows:

i.     F do have day access to Cazzie on the 5^th day of each 8-day period commencing on 20 June 2021 from 10 am to 7 pm;

ii.    F do have another day access to Cazzie on the 7^th day of each 8-day period commencing on 20 June 2021 from 10 am to 7 pm;

iii.   ;F shall provide M with his roster until further order;

iv.   F do have indirect video access to Cazzie on the 1^st, 2^nd and 6^th day of each 8-day period for not more than 30 minutes by Whatsapp or similar technology;

v.    All the handovers shall be taken place at Tseung Kwan O MTR station by either M and/or the domestic helper;

vi.   In case Cazzie has to attend the playgroup on the interim access to F, he should be responsible for taking her to the playgroup.

13.  On 19 April 2022, a fresh interim access order[4] was granted by me in place of the interim access order dated 21 June 2021, in particular F do have staying access from 10 am to 7 pm the following day on any one day each week during the Chinese New Year, Easter, Summer and Christmas holidays provided that F provides the social welfare officer (“SWO”) with the employment contract of the domestic helper and upon the confirmation of the SWO with the domestic helper.

14.  F was charged with the offence of “Assault Occasioning Actual Bodily Harm” in respect of the incident happened on 3 April 2021 and the trial was fixed at the [Court] on [date (actin no.)].  At the hearing, the charge against F was dismissed and he was bound over with $1,500 for 18 months.

F’s case

15.  F has moved close to Cazzie’s school and will be better placed to assist in case of any emergency at school. His work posting has moved to the Sheung Wan Hong Kong Macau Ferry Terminal, just 15 to 20 minutes away from his home and Cazzie’s school. He has the assistance of his own mother (Cazzie’s paternal grandmother) who has already been joining Cazzie during access and will be completely retired from October 2023.

16.  F set out detailed alternative proposals for care and control, i.e. (i) care and control to F (his primary position), (ii) shared care to the parties (his second alternative), and (iii) a gradual shift to shared care (third alternative).

17.  F also proposes specific directions concerning Cazzie’s (a) identity documents, (b) her school information and (c) her activities.

18.  He said that M has made a series of unmeritorious allegations against him, and has sought to exclude him from Cazzie’s life. There is a real risk of emotional harm as a consequence of M’s conduct.

19.  Right before these proceedings started, M abducted Cazzie from FMH and took her to an unknown location without informing F or obtaining his consent. She refused to permit any contact between Cazzie and F for nearly 3 months.

20.  M falsely told the police and this Court that H “assaulted” her in the early hours of 3 April 2021.

21.  M gave contradictory evidence in these proceedings and in the criminal proceedings. F was acquitted in the criminal proceedings with binding over of $1,500 for 18 months after trial on [date]. In M’s sworn evidence in the magistracy, she said that F did not assault her.

22.  M has made over many false, exaggerated, or irrelevant allegations against F. M’s motivation for making these allegations is malicious.

23.  M has repeatedly sought to reduce contact between Cazzie and F, breached the access Order of 19 April 2022, refused to permit any remote video access after 21 April 2022 and excluded F from decisions regarding Cazzie’s schooling and activities.

24.  She seeks to justify her attempts to exclude F from Cazzie’s life and is likely to undermine Cazzie’s relationship with F.

25.  In his closing submission, F asks for sole care and control with defined access to M as his primary position and alternatively, for shared care and control with the child arrangement on the 2/2/3/2/2/3 fortnightly basis as per F’s Statement of Proposals at §§18-20. That is to say, in the first week, M has the care and control on Monday and Tuesday, F has the care and control on Wednesday and Thursday, M has the care and control on Friday to Sunday.  In the second week, just vice versa, F has the care and control on Monday and Tuesday, M has the care and control on Wednesday and Thursday, F has the care and control on Friday to Sunday. 

M’s case

26.  M complained that F has affairs with other women during her pregnancy. She accessed F’s laptop and read his messages with other women and his mother. In her witness statement, M stated that she saw the WhatsApp conversations between F and his girlfriends called “Charlotte” and “Tiffany” as well as his mother.  M exhibited a number of messages between F and women called “Charlotte” and “Tiffany”, including some photos and WhatsApp messages on 10 March 2021, 15 March 2021, and 16 March 2021, as well as with F’s mother dated 11 March 2021. 

27.  M believed that the messages showed F having a plan to kick her out of the FMH at that time.

28.  M’s parents and her sister are all living in the same district with M and are all willing to assist her in taking care of Cazzie. The domestic helper, Ms. Noeme Palabrica, has been hired to look after Cazzie since her 1-month old and will continue to work for M.

29.  M has very flexible working hours and 25 days annual leave a year.  Since February 2022, she has been allowed by her employer to work from home.  Her office is very close to her residence and Cazzie’s school.

30.  M queried F’s availability to Cazzie due to his shift work on “8-day” schedule.

31.  M asks for sole care and control of Cazzie with defined access to F.  In M’s Statement of Proposals dated 16 November 2022, she would not agree to any staying access.  On Day 3 of the trial, she insisted that overnight access should not take place without a domestic helper, then saying it should not happen until Cazzie turns 6.

Relevant Law

32.  Section 3(1)(a) of the Guardianship of Minors Ordinance (Cap. 13) (“GMO”) sets out the general principles when it comes to matters relating to the custody or upbringing of a minor:

(1)   In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property—

(a)  in any proceedings before any court … the court—

(i)  shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to—

(A)  the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B)  any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii)  shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.

33.  The general approach to “best interests” decisions can be summarized as follows:

(i)    There can be no presumptions in a case governed by section 3 of the GMO. The only principle is that the welfare of the child is paramount (see Re F [2012] EWCA Civ 1364 (CA); [2013] 1 FLR 645 per Munby LJ at §37).

(ii)   What is required is a “global, holistic evaluation”, i.e.: “Each realistic option for the welfare of a child should be validly considered on its own internal merits (i.e. an analysis of the welfare factors relating to each option should be undertaken)” (see Re F [2015] EWCA Civ 882 (CA); [2017] 1 FLR 979 per Ryder LJ at §30).

(iii)  The “welfare checklist” may be a useful aide memoire (H v N [2012] 5 HKLRD 498 at §31) but the court will only consider those factors in the checklist in so far as they are relevant to this case.  Those factors are:

(a)  the ascertainable wishes and feeling of the child concerned (considered in the light of his age and understanding);

(b)  his physical, emotional and educational needs;

(c)  the likely effect on him of any change in his circumstances;

(d)  his age, sex, background and any characteristics of his which the court considers relevant;

(e)  any harm he has suffered or is at risk of suffering;

(f)  how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g)  the range of powers available to the court in the proceedings in question.

(iv)  It is trite that recommendations contained in a Social Welfare officer’s report are not binding and cannot replace the Court’s own “best interests” determination (H v N at §36).

34.  The law is also clear that there is no presumption in favour of a mother, and that “such sexist views are obsolete”, as explained by Poon J (as he then was) in H v N at §18, citing the Court of Appeal in PD v KWW [2010] 4 HKLRD 191:

“D1. Equality principle

18. In approaching section 3(1), subject to the position under illegitimacy, the court will always put the competing parents on an equal footing. Any role or gender discrimination is not permissible. This equality principle reflects the shift in social values concerning parental responsibilities and the universal recognition that the long-term best interests of a child is best protected if both parents are, despite the breakdown of their relationship, involved equally. As aptly explained by Hartmann JA in PD v KWW [2010] 4 HKLRD 199 :

“44. There was a time when the parents of a child, more particularly the father, had almost absolute authority over that child. That is no longer the case. The principle that the best interests of the child – not the authority of the parents – must be the paramount consideration is today almost universally recognised. As Lord Fraser said in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 170 :

‘ ... parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child.’

45. There was a time also, not so long gone, when the roles of the mother and the father in the raising of their child were viewed with almost equal rigidity. The mother was best left to care for the child, certainly when the child was young. The father was best left to provide financial support and to exercise rights of guardianship. As for his contact with the child, visitation was deemed sufficient. Today, such sexist views are obsolete.

46. Social imperatives change. When they are important and lasting, the common law can, and should, keep pace with that change.

47. It is widely recognised today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing.”

(emphasis supplied)

35.  Mr Marwah for F submitted that false allegations of abuse by one parent against the other are themselves harmful to children. As explained by Ryder LJ in W (A Child) [2014] EWCA Civ 772 at §19:

“Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court.”

36.  The harm to children from such allegations was also described by Keehan J in TB v DB [2013] EWHC 2275 (Fam) at §9:

“If I just put that to one side for a moment, the matters I found yesterday against the mother, particularly involving as extensively as she did D in some of the most serious allegations that can be made against a father and against a family member (which I found to be part of a sustained campaign against the father enjoying a full and unbroken relationship with his child) are extremely serious findings. If they were to be repeated in whatever form in the future they would undoubtedly and increasingly cause serious emotional and psychological harm to the child.”

37.  Mr Marwah for F further submitted that where a parent is embarked on a process of alienating a child from the other parent, the court must act resolutely and with diligence, as explained by Jackson LJ in Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 at §13:

“13. In summary, in a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available. The situation calls for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term. But it does not represent a solution to the problem. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt at intervention. Above all, the obligation on the court is to keep the child's medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent's right to respect for family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation. What will amount to effective action will be a matter of judgement, but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken. It is easier to conclude that decisive action was needed after it has become too late to take it.”

Witnesses

38.  Apart from the parties themselves, the Court heard from the following 5 witnesses over 5 days of trial:

i.     Ms. Cheng Wai-ling (SWO, “Ms. Cheng”)

ii.    Ms. Poon Suet-ki (SWO, “Ms. Poon”)

iii.   Ms. Noeme Palabrica (M’s domestic helper, “Noeme”)

iv.   Ms. Chan So Wah (M’s mother)

v.    Mr. Ho Bing Wah (M’s father)

2 Social Investigation Reports (“SIRs”) and Clinical Psychologist Report (“CP Report”)

39.  There are two SIRs: the 28 December 2021 report prepared by Ms. Poon, and the 7 October 2022 report by Ms. Cheng.  Both of Ms. Cheng and Ms. Poon gave oral evidence at the trial.

40.  The CP report dated 17 December 2021 was prepared by the Clinical Psychologist, Dr. Lee Ka-yee.  It is a short report focused on a test given to the parents and observations of the parents/child.

41.  At the time of interview by Ms. Poon, F was assigned to work in the Hong Kong International Airport and had a 8-day work schedule, namely from 8 am to 4:31 pm for Day 1 and Day 2; from 2 pm to 10:45 pm for Day 3 and Day 4; from 10:10 pm to 8:30 am for Day 5 and Day 6 and day off for Day 7 and Day 8.

42.  In the SIR dated 28 December 2021, Ms. Poon stated that the parent-child observation reflected that Cazzie was closely bonded to both of her parents and her relationship with both parents was intimate and spontaneous.  She recommended joint custody to the parties, care and control to M with defined access to F including day access, indirect video access and staying access from 10 am on any one day excluding the 5^th, 6^th and 7^th day to 7 pm on the following day during the Chinese New Year, Easter, Summer and Christmas holidays when Cazzie has reached the age of 3.

43.  In the SIR dated 7 October 2022, Ms. Cheng stated that F was still assigned to work in the Hong Kong International Airport with the same 8-day work schedule.  F confirmed with Ms. Cheng that the original Filipino maid was dismissed in December 2021 and new Filipino maid would be available to report duty in November 2022. Therefore, Ms. Cheng did not have the opportunity to interview the new Filipino maid.

44.  Ms. Cheng stated that both of F and M were well-educated, committed and affectionate parents.  She made the same recommendations of joint custody, care and control to M with defined access to F including day access, indirect video access and staying access from 10 am to 7 pm on the following day during the Chinese New Year, Easter, Summer and Christmas holidays, and in the presence of the paternal grandmother and domestic helper during staying access.

45.  Mr Marwah for F submitted that the SIRs do not contain any assessment of whether F’s concerns are valid, and whether M has any insight and willingness to change her behaviour, and the impact on Cazzie if M’s behaviour continues. The SIRs were made without sufficient analysis of the risk of harm to Cazzie and they did not have the benefit of any findings of fact made after trial. No weight should be put on the recommendations in either report.

46.  In my view, Mr Marwah’s criticisms against Ms. Cheng and Ms. Poon are not fair.  Both of them had done a lot of investigations and interviews with many people apart from the parties themselves.  It is understandable that it is always not easy for them to make any assessments or findings as to the parties’ allegations against each other in the SIRs.

47.  It is trite that social welfare officer is “ears” and “eyes” of the court.  I disagree with Mr Marwah’s submission that no weight should be put on the recommendations in either report.

Factual disputes

48.  Mr Marwah for F submitted that M has a clear pattern of continually making false and exaggerated accusations against F and spent a great length for at least 15 pages in his closing submission analysing the incidents on 15 March 2021, 3 April 2021, 7 August 2022, 16 November 2022, “SD Card” Allegation, Pornography Allegation, Masturbation Allegation, Walking in during Shower Allegation, “Downloading Messages” Allegation and various trivial allegations (pre and post separation).

49.  I will carefully consider and take into account of Mr Marwah’s submissions but as submitted by him, some of the allegations are trivial. Hence, it is only necessary for the court to make findings of facts for some important but not all of these incidents or allegations.  In assessing the allegations, I should bear in mind that the welfare of Cazzie is always paramount.

3 April 2021 Allegation

50.  F contended that he did not “push over” M in the early hours of 3 April 2021. M’s allegation is absurd and an attempt to frame him.

51.  M accepted that at the trial in the [Court (action no)] on [date], she gave evidence on oath that she was not assaulted on 3 April 2021, which contradicts her earlier evidence in the family proceedings.  However, she explained that as she did not want Cazzie’s father to become a criminal, her evidence was therefore changed at the trial.  On the other hand, F did not explain why despite the change of M’s evidence, the magistracy eventually imposed, and he accepted, binding over of $1,500 for 18 months against him.

52.  In my view, M’s allegation of “push over” by F on 3 April 2021 is not entirely without merit and her explanation as to her change of evidence before the magistracy is not wholly unreasonable.

M’s abduction of Cazzie on 3 April 2021

53.  Mr Marwah for F contended that M’s abducting Cazzie from the FMH in April 2021 and cutting off access with F are wholly inexcusable.

54.  M said that as early as in March 2021, F had already planned to kick her out of the FMH.  She produced extract of the Whatsapp messages[5] between F and Charlotte, with whom M alleged F had extra marital affairs, as follows:

“Charlotte: 你期唔期待同我一齊生活呀？有無幻想過會係點？

F: 期待，但係唔洗幻想，同你生活過，所以更加想同快D一齊生活，已經知道係一件開心嘅事

Charlotte:我都好期待，好期待你切生果我食，同埋抱我入房，同埋鬧我坐地下…….

F: E ar 講起都開心死，將來就係而家嘅勤力….

F: 係呀，唔使費咁多唇舌，同埋上次趕佢走好正確，雖然都好似搞到好煩，但起碼佢從果時就知道我唔係同佢講笑，真係同佢硬碰，唔會好似以前咁鬼怕咗佢，好彩有你背後叫我要做得絕d，我而家先領悟到，對住佢係要狠過佢，佢先驚…

Charlotte: 總之就係叫佢盡快搬走完…

唔需要，你可以照cut但唔洗同佢講，….”

55.  Based on the above conversations, I accept that F did have affairs with Charlotte and had planned to kick M out of the FMH. Needless to say, their relationship had been deteriorating as early as in December 2020 and had been entirely broken down at least since March 2021. Leaving aside the alleged assault by F on 3 April 2021, the moving out of M from the FMH is unavoidable.

Pornography Allegation

56.  M alleged that F did not respect females as she found pornographic photographs in F’s computer.

57.  F pointed out in his oral evidence given at the trial that these photos were sent by friends to different WhatsApp groups, and they were not deliberately stored by him but automatically downloaded into his phone and uploaded into his computer.

58.  I accept that M’s allegation has very little relevance to the welfare of Cazzie.

7 August 2022 Allegation

59.  Mr Marwah for F submitted that W not only (i) exaggerated a simple bruise on Cazzie’s leg into an allegation of child abuse, she also (ii) brought her to hospital in the middle of the night on 7 August 2022, (iii) caused there to be a social welfare investigation, (iv) reported the matter to police, and (v) wrote to Court to seek an order to suspend access.

60.  In para. 13 of the SIR dated 7 October 2022, Ms. Cheng had investigated the matter and stated that: “the bruise on Cazzie’s right anterior knee was considered minor and no concrete and substantiated evidence could be collected to ascertain the incident as a non-accidental injury, the nature of the suspected maltreatment allegation was considered not established.”

61.  I accept the conclusion made by Ms. Cheng in this SIR.  I do think that M was over-reacted by the minor injury to Cazzie but I do not think that M’s actions were clearly motivated by her desire to cut off access between Cazzie and F.

M’s Obstruction of Access

62.  Mr Marwah for F submitted that M has tried to reduce and eliminate access with F:

i.     M cut off Cazzie’s access altogether after 3 April 2021.

ii.    M initially agreed to only supervised access in her Form J.

iii.   After access was ordered on 21 June 2021, M immediately applied to reduce it by her summons 16 July 2021.

iv.   M makes video access as difficult as possible, refusing to use a mobile phone and insisting that it must take place via laptop.

v.    After the CDR order of 19 April 2022, M unilaterally reduced day access to one day per week and refused to implement staying access as ordered.

vi.   M wrote to the Court on 9 August 2022 seeking to eliminate access altogether.

vii.  M’s Statement of Proposals dated 16 November 2022 sought to eliminate overnight access.

viii. M restricted access before the part-heard trial and her summons of 3 April 2023 (“M’s DV Summons”) again sought to eliminate overnight access.

63.  Even though it may be the intention of M to reduce access to F, this court with the assistance of the recommendations in the 2 SIRs would determine the appropriate defined access arrangements in the circumstances.

64.  As per para. 5 of the Order made by me on 21 July 2021, the parties do jointly appoint a parenting co-ordinator with costs to be shared equally.  From the evidence given by the parties and in the SIRs, it seems to me that the parties have failed to comply with this Order.  In view of the highly conflicting situation in the present case, it is in the best interest of Cazzie for the appointment of the parenting co-ordinator.  If necessary, penal notice for contempt of court can be endorsed and a supervision order will be made by the court so that the SWO will monitor the parties’ compliance with the Order.

M’s Lack of Insight

65.  Mr Marwah for F submitted that M has shown absolutely no insight, and it is highly likely that M’s patterns of behaviour will continue.

66.  This court has directed the parties to attend co-parenting courses for not less than 10 hours as per the orders dated 21 June 2021 and 14 October 2022.  As the parties had complied with the direction, I believe that M should have understood the importance of maintaining the father-daughter bonding and relationship for a child’s self-esteem.

Primary carer of Cazzie after her birth

67.  M said that she had been breast feeding Cazzie since her birth until her 1 year old and was Cazzie’s primary carer since then.  As stated in para. 39 of the SIR dated 7 October 2022, Noeme also told Ms. Cheng that M was the main caregiver of Cazzie.

68.  Although F also claimed to be one of the primary carer of Cazzie, due to his shift work schedule, I accept that it was M who mainly took care of Cazzie with assistance of both of F and Noeme before the moving of M from the FMH.

Parties’ working schedule

69.  It is not contested by F that M is allowed by her employer to work from home and that she has regular day off on public holidays, Saturday and Sunday.  I accept that she has very flexible time in managing her works and her personal matters, especially on public holidays, Saturday and Sunday, she can take care of Cazzie during the non-school days.    

70.  Presently, F had a 8-day work schedule, namely from 8 am to 4:31 pm for Day 1 and Day 2; from 2 pm to 10:45 pm for Day 3 and Day 4; from 10:10 pm to 8:30 am for Day 5 and Day 6 and day off for Day 7 and Day 8.  In case Day 1 and Day 2 fall on school days, F has to rely on his mother or the newly hired domestic helper to look after Cazzie, including sending her to and picking her up from school.  For Day 5 and Day 6, when F is off duty after overnight work until early morning, it is likely necessary for him to sleep or take rest for a number of hours when he is back home in early morning.  Day 7 and Day 8 when F is off duty but may not be non-school days.  That is to say, when F is on duty, Cazzie may not have go to school and she has to be looked after by F’s maid or his mother or when F is off duty, Cazzie may have to go to school. 

71.  In the long run, there may be more activities to be arranged for Cazzie after school or on Saturday and Sunday.  In my view, the 8-day work schedule will make F himself more difficult to take care of Cazzie and he has to heavily rely on the help of the other people.

72.  In short, I consider that in view of M’s stable working schedule, she will be able to spend more time in taking care of Cazzie than F. Time spending by a parent to a young child is always very important.  Apart from M’s extended family, Noeme has been helping M for several years and will continue to assist M in looking after Cazzie.  F never made any complaints against Noeme.  I am of the view that in the best interest of Cazzie, it is better to rely on the assistance of Noeme rather than the domestic helper newly hired by F. 

73.  Further, SWO Ms. Cheng did not have the chance to interview the domestic helper newly hired by F when she prepared the SIR dated 7 October 2022.

74.  Although Ms. Cheng did interview F’s mother, I do not think that F’s mother can be regarded as one of the primary carers of Cazzie.

Conclusion

75.  Having carefully considered all the relevant factors and circumstances, I do not accept F’s proposal of sole care and control or shared care and control in the alternative but accept the recommendations in the 2 SIRs.  In the best interest of Cazzie, I make an order that parties do have joint custody, M do have sole care and control of Cazzie with defined access to F.

76.  For the defined access to F, I would largely adopt the recommendations made by Ms Cheng in the SIR dated 22 October 2022 with some modifications.  I fully understand that the current situation may not be the same as that in October 2022.  It is always possible for F’s 8-day work schedule to be changed.  Therefore, a supervision order for monitoring the access is necessary.

77.  I understand that M opposes staying access until Cazzie is 6.  I disagree with M’s opposition and accept the recommendation made by Ms. Cheng in the SIR provided that either F’s mother or the domestic helper hired by F is present during staying access.

78.  I now make the order for the defined access as follows:

i.     F do have day access during the school day every Wednesday from 10 am to 1:15 pm (if Cazzie has afternoon class) or from 12 noon to 5pm (if Cazzie has morning class) 10 January 2024, provided that F is off duty or on leave;

ii.    F do have day access every alternate Saturday starting from 13 January 2024 from 10 am to 7 pm, provided that F is off duty or on leave;

iii.   F do have day access every alternate Sunday starting from 21 January 2024 from 10 am to 7 pm, provided that F is off duty or on leave;

iv.   During the long school holidays such as the Chinese New Year, Easter and Christmas, F do have 2 additional day access per week from 10 am to 7 pm, provided that F is off duty or on leave; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

v.    During the Summer Vacation, F do have 3 additional day access per week from 10 am to 7 pm, provided that F is off duty or on leave; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

vi.   On single school holidays that fall between Mondays and Fridays, parties shall share equally and F do have day access from 10 am to 7 pm, provided that F is off duty or on leave; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

vii.  F do have staying access per week from 10 am to 7 pm the following day during the long school holidays such as the Chinese New Year, Easter and Christmas, provided that either F’s mother or the domestic helper hired by F is present during the staying access; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

viii. F do have 3 days 2 nights staying access per week from 10 am on the 1^st day to 7 pm on the 3^rd day during the Summer Vacation, provided that either F’s mother or the domestic helper hired by F is present during the staying access; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

ix.   For the avoidance of doubt, if F selects staying access during the long school holidays, there be no additional day access as per para. (iv) and (v) above;

x.    M do have video access to Cazzie during staying access with F for 15 minutes every day from 8:30 pm to 9 pm;

xi.   F do have video access to Cazzie for 15 minutes twice a week from 8:30 pm to 9 pm; such days to be agreed by the parties, failing which the SWO shall make necessary arrangements;

xii.  All handovers shall be at MTR station in Tseung Kwan O district or such other place mutually agreed by the parties.

79.  I further order that:

i.     supervision order for 12 months be granted;

ii.    progress report be filed one month before the expiry of the supervision order;

iii.   the parties do jointly appoint a parenting co-ordinator with costs to be shared equally in accordance with para. 5 of the Order made on 21 July 2021;

iv.   F be allowed to approach the school of Cazzie for the purpose of obtaining Cazzie’s information in school and school holidays;

v.    F shall immediately provide M and SWO with his new roster if his present 8-day work schedule changes;

vi.   Penal notice be endorsed and personal service be dispensed with.

Costs

80.  Mr Marwah for F argued that as M’s conducts in pursuing these children proceedings were utterly unreasonable, she shall bear costs of the trial, M’s variation of access summons dated 16 July 2021  and M’s DV summons, including all costs reserved, with certificate for counsel.

81.  For M’s DV summons, she agreed to withdraw the application on the basis of the mutual undertakings given on 12 June 2023 and the court did not make any findings as to her allegations against F.  I think that the fair costs order shall be no order as to costs.

82.  As to the question of costs relating to the children, the court usually makes no order as to costs unless in a very exceptional circumstances.  Although I reject the open proposal of F regarding care and control and the open proposal of M regarding F’s defined access, I do not see that the present case is exceptional.  I thus exercise my discretion to make an order nisi that there be no order as to costs regarding the children matters, M’s variation of access summons dated 16 July 2021 and M’s DV summons, including all costs reserved in relation thereto, which shall become absolute unless any of the parties apply for variation with supporting affirmation by summons within 14 days.  F’s own costs from 6 March 2023 onwards be taxed in accordance with the Legal Aid Regulations.

83.  Last but not least, M may approach the translation office of the District Court for interpreting this judgment to her, if necessary.

FCMC 3123/2021

[2023] HKFC 70

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3123 OF 2021

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DECISION
(Leave to appeal)

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1.  This is the application taken out by the respondent (“Husband”) on 22 December 2022 for leave to appeal against my decision made on 30 November 2022 (“MPS Decision”) for maintenance pending suit of $20,000 per month for the benefit of the petitioner (“Wife”) and the child of the family from 1 June 2021 and thereafter on the 1^st day of each month until further order (“MPS Order”).

2.  The Husband’s application for leave to appeal is about 14 days out of time as the MPS Order is an interlocutory order and he has 14 days to apply for leave to appeal from 30 November 2022.

3.  According to his affirmation of service filed 30 December 2022, he has served the relevant documents on the Wife.

4.  This application is disposed of on paper without oral hearing pursuant to the New Arrangement for Application for Leave to Appeal in the Family Court issued on 13 August 2018 (“New Arrangement”).

Legal principles

5.  It is well settled principle that the appropriate tests when considering whether leave to appeal out of time ought to be given are :-

(a)  the length of the delay;

(b)      the reasons for the delay;

(c)  the prospects of success;

(d)   the extent of prejudice that would be caused to the other party

if leave is granted (see: Leung Yiu & Ors [1998] 1 HKLRD 257).

6.  Section 63A(2) of the District Court Ordinance provides that for leave to appeal to be granted, the intended appeal should have a reasonable prospect of success or there should be some other reasons in the interest of justice why the appeal should be heard.

7.  A reasonable prospect of success involves the notion that the prospect must be more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of the Judgment).

8.  Further, the Court of Appeal said in NPYJ v SMRC[2020] HKCA 82 at para.22:

“22.  First, as pointed out by the Judge and Mother, the decision to adjourn the Interim Access Application to 18 November 2020 is an interim order and a case management decision.   In general, appeals against interim orders are not to be encouraged as they tend to distract rather than focus parties’ attention on the real issues of the case, apart from incurring additional and, in most instances, unnecessary costs and time.   In the specific context of interim orders made in proceedings relating to children, it has been noted in  Rayden and Jackson: Relationship Breakdown, Finances and Children at [49.55] that:

“Where the court makes an interim order appeals are actively discouraged as the usual remedy will be to invite the same court to review the provisions of that order at a later hearing. Necessarily, interim orders often call for difficult decisions to be made by and the lower court should endeavor to make such orders in a way which causes the least amount of harm to a child in that interim period. The court on appeal will be slow to interfere in decisions which are only intended to last for a relatively short period of time.”

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.” (emphasis added)

9.  In other words, since the MPS Order is only intended to last for a short period of time, application for leave to appeal are actively discouraged. 

Discussion

10.  The Husband attached the draft Grounds of Appeal in his summons dated 22 December 2022 and also filed his written statement/submission which was more than 5 pages in contravention of paras. 4(3) and 10 of the New Arrangement. Accordingly, I directed to return his written statement/submission to him as per para. 10 of the New Arrangement and further ordered that unless he do file and serve his written statement/submission in compliance with para. 4(3) of the New Arrangement by 4 pm on 30 January 2023, his summons dated 22 December 2022 be dismissed with costs.

11.  On 7 February 2023, he filed his written statement together with a letter to the court explaining the reason for late filing.  To his benefit, I accept his reason.

12.  Nonetheless, in his written statement, the Husband did not explain the reasons for the delay of his application for leave to appeal out of time although the delay is not substantial, only 14 days.  It is noteworthy that at the date of handing down the MPS Decision, he was legally represented by a law firm called Payne Clement Velasco.  Hence, I consider that his then solicitors must have properly advised him on the time for lodging appeal.

13.  Regarding his draft Grounds of Appeal, he said that he incurred total legal costs of $795,873 in 2022.  Indeed, I have dealt with his submission concerning the alleged legal costs in para. 36 of the MPS Decision.  I do think that it needs to repeat here.

14.  For the other Grounds of Appeal, such as the challenge of my findings as to his and the Wife’s income and expenses, I have also dealt with them in the MPS Decision.  In short, the legal approach for the MPS Application is on a broad brush basis without conducting detailed investigation of the financial position of the parties.  I disagree that his draft Grounds of Appeal has any merit.

Conclusion

15.  To conclude, the MPS Order only intended to last for a short period of time until further order. The Husband has failed to demonstrate any reasonable prospect of success in his intended appeal and there is no other reason in the interests of justice why the appeal should be heard.  His application for leave to appeal should be dismissed.

16.  Regarding the question of costs, there is no reason why costs shall not follow event.  Although the Wife has not lodged her statement of costs but I am of the view that she has spent some time to peruse and consider the relevant documents served on her.  I order that costs of this application be paid by the Husband to the Wife summarily assessed at $500 forthwith.

17.  I understand that for unknown reason, the MPS Order has not been drawn up.  I now direct that the Husband’s present solicitors do draw up, file and serve the sealed copy MPS Order and this order within 7 days.

18.  The Wife may approach the translation office of the District Court and the court interpreter is directed to translate this Decision to her orally, if necessary.

FCMC 3123/2021

[2022] HKFC 253

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3123 OF 2021

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----------------------------

DECISION

(Maintenance pending suit)

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1.  This is the application taken out by the petitioner (“Wife”) by summons on 18 May 2021 (“MPS Application”) for (i) $10,000 per month for her maintenance pending suit; (ii) $30,000 per month for interim maintenance for a 3-year old daughter (“Child”); and (iii) a lump sum of $74,662.89 for the Child’s interim maintenance.

2.  On 21 June 2021, upon undertaking of the respondent (“Husband”) to pay a sum of $2,000 per month towards the mortgage of the property in North Point registered in the sole name of the Wife (“North Point Property”), I ordered him, inter alia, to pay the Wife an interim interim maintenance of $12,000 per month pending the outcome of the MPS Application.

3.  The Child is currently living with the Wife and attending kindergarten. The children issues have been set down for trial scheduled from 30 November 2022 to 2 December 2022 (3 days reserved) with interim access granted to the Husband by me.

4.  Further pursuant to my order dated 19 April 2022, the MPS Application be disposed of on paper with the directions for the parties to lodge and serve their respective submissions, etc.

5.  On 21 September 2022, the Wife took out a Notice of Application for Ancillary Relief by way of Form 8 (“Form 8 Application”) for variation of the interim interim maintenance from $12,000 per month to $15,000 per month with additional maintenance for the Child of $30,000 per month, which was returnable before me on 2 November 2022.

6.  It is noteworthy that the Wife only lodged and served her written submission lately on 31 October 2022 notwithstanding of my order made on 19 April 2022.

7.  At the hearing on 2 November 2022, I directed the Form 8 Application be heard together with the MPS Application on paper without oral hearing.

Background

8.  The parties were married on 12 September 2015 and the Child born in July 2019. The Wife said that the parties had signed a post-nuptial divorce agreement in Chinese on 10 March 2019, which is challenged by the Husband. The Wife then filed the petition for divorce on 9 April 2021. The marriage lasted for about 5 years only.

9.  The Husband is 35 years old and is an inspector with the Customs and Excise Department whilst the Wife is 34 years old and working as a personal assistant to a CEO.

10.  On 3 April 2021, few days prior to the commencement of the divorce suit, the Wife called the police claiming that she was “pushed over” by the Husband. The charge of assault occasioning bodily harm was lodged by the police against the Husband in October 2021 and due to the 5^th wave of Covid-19, the trial originally fixed on 23 and 24 February 2022 was re-fixed to 21 June 2022 in the Eastern Magistracy under ESCC2438/2021.

11.  As the Wife gave evidence under oath at the first day trial that the Husband did not assault her and he voluntarily entered into his own recognizances to be of good behaviour for 18 months, the charge against the Husband was dismissed on the same day.

12.  Pending the outcome of the criminal trial, the Husband’s employment has been suspended and he was paid only half of his wages. However, according to the recent affirmation filed by the Husband on 22 November 2022, he has already resumed duty in the Customs and Excise Department with effect from 11 July 2022 with no deduction of any wages and 2.5% increment after April 2022 together with refund of all the wages previous deducted between 11 October 2021 to 10 July 2022.

Legal Principles

13.  Under MPPO Section 3 (maintenance pending suit) and Section 5 (provision for child), the Court may make orders requiring one party in a marriage to pay maintenance for the other party from the date of the presentation of the petition for divorce and for the other for the benefit of children of the marriage for such term as may be so specified.

14.  The main governing principle is that the Court will make such order as it considers reasonable based on the reasonable needs of the Wife and the Child and the ability of the Husband to pay. In view of such application being interim in nature, the Court will not conduct detailed investigation of the financial position of the parties, but approach on a broad brush basis.

15.  Another important factor in determining this application is consideration of the marital standard of living during marriage. In a Hong Kong Court of Appeal case HJFC v KCY [2012] 1 HKLRD, Hartman JA (as he then was) said in § 37 of the Judgment as follows:

“The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the judge’s reference to the source of those principles:

i. The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

ii. A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

iii. In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

iv. Where the affidavit or form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation, the court should err in favour of the payee.”

Marital standard of living

16.  During the marriage, the parties were living in an apartment of 816 sq. ft. (gross area) in Apleichau provided by the Government (“Apleichau Quarter”) at monthly rent of $4,600. They had hired a domestic helper and travelled occasionally during marriage.

17.  Mr Marwah for the Husband accepted that the parties had a comfortable but relatively modest standard of living before separation.

The Wife’s means and reasonable needs

18.  The Wife is earning $39,500 per month (after deduction of MPF of $1,500) and also receives a further sum of $9,000 per month as rental income from the North Point Property, totalling $48,500.

19.  The parties jointly own a property in PRC (“PRC Property”) free from mortgage purchased in October 2017, value of which is estimated by the Husband in the sum of about HK$905,000 according to his Form E dated 21 May 2021.

20.  According to the Wife’s Form E dated 31 May 2021, she claims the total monthly expenses of $90,042 (ie $50,625 + $25,317 + $14,100), breakdown of which is set out as follows:

Items for General monthly expenses	HK$
Rent	16,800
Mortgage	13,253
Utilities	1,800
Food	9,000
Household expenses	2,000
Insurance premia	325
Management fees	657
Domestic helper	4,520
Other (property tax, government rent, transport expenses	908   162 1,200
Sub-total	50,625

Items for Wife’s personal monthly expenses	HK$
Meals out of home	4,000
Transport	1,500
Clothing / Shoes	3,000
Personal grooming (including haircut and cosmetics)	3,000
Entertainment / Presents	2,000
Holidays	2,000
Medical / Dental	500
Tax	1,417
Insurance premia	2,900
Contribution to parents	5,000
Sub-total	25,317

Items for the Child’s monthly expenses	HK$
School fees	5,000
Medical / Dental	500
Entertainment / Presents	2,000
Holidays	1,000
Clothing / Shoes	1,000
Insurance premia	2,100
Lunch and pocket money	2,000
Other transport	500
Sub-total	14,100

21.  However, she provided very little supporting documents or receipts for the expenses in her Form E, her Answer and her affirmations filed.

22.  In the Wife’s written submission dated 31 October 2022, she claims the total monthly expenses for herself and the Child have increased to $102,479.19.

23.  In my view, some of the expenses claimed by her are inflated obviously. For instance, the Wife claims $600 for mobile phone whilst she only produced receipt of $136.

24.  She also produced the invoices for September and October 2021 from Deborah International Play School in Tseung Kwan O but the Child is now attending North Point Methodist Church Kindergarten & Day Nursey. The Husband said that the Child’s school fees are paid by the government subsidy scheme.

25.  She claims transport expenses under different heads, ie the general, her own and the Child’s expenses for the total sum of $3,200 (ie $1,200 + $1,500 + $500) every month, which are excessive and duplicated.

26.  As the Husband is a civil servant, the Wife and the Child shall be entitled to receive free medical and dental service from the government clinic and hospitals. She also incurs a lot of expenses for insurance for both of herself and the Child. I consider that her claims for medical/dental are excessive.

27.  The Wife is claiming for expenses of 6 different online movie/tv/music etc. I am of the view that some of them are unnecessary and unreasonable based on the parties’ standard of living during marriage.

28.  The Wife also incurs some expenses for a pet, which is not part of the marital standard of living. I disallow.

29.  As the parties are unable to maintain the standard of living during marriage, they shall try their best to lower their expenses after separation in two different households. I therefore disallow the Wife’s claim for contribution to her parents.

30.  On broad brush basis without detail investigation into the parties’ finances, I assess and only allow reasonable needs of the Wife and the Child at the sum of $68,742 per month (ie $44,925 + $14,717 + $9,100) as follows:

Items for General monthly expenses	HK$
Rent	16,800
Mortgage	13,253
Utilities	800
Food	6,000
Household expenses	1,000
Insurance premia	325
Management fees	657
Domestic helper	4,520
Other (property tax, government rent, transport expenses)	908   162   500
Sub-total	44,925

Items for Wife’s personal monthly expenses	HK$
Meals out of home	4,000
Transport	900
Clothing / Shoes	2,000
Personal grooming (including haircut and cosmetics)	1,000
Entertainment / Presents	1,000
Holidays	1,000
Medical / Dental	500
Tax	1,417
Insurance premia	2,900
Contribution to parents	disallowed
Sub-total	14,717

Items for the Child’s monthly expenses	HK$
School fees	2,000
Medical / Dental	500
Entertainment / Presents	1,000
Holidays	1,000
Clothing / Shoes	1,000
Insurance premia	2,100
Lunch and pocket money	1,000
Other transport	500
Sub-total	9,100

31.  I consider that the total reasonable monthly expenses for the Wife and the Child are $20,242 (ie $68,742 - $48,500).

The Husband’s means and reasonable needs

32.  The Husband is a civil servant previously earning $75,135 every month and since April 2022, his earning increases to $77,015. After deduction of MPF of $1,500, his net income is $75,515. Upon the removal of the Wife and the Child, he was required to return the Apleichau Quarter to the Hong Kong Government on or before 2 May 2021 as per letter from HK Custom and Excise dated 12 April 2021. There is no evidence that the Husband is further receiving cash from the government as his housing allowance or other benefits as alleged by the Wife.

33.  The Husband claims the total monthly expenses of $74,387 in his Form E filed in May 2021 but his monthly expenses are suddenly said to increase substantially to about $131,515 according to his affirmation filed 28 July 2022.

34.  He thus claims running at a deficit of about $70,000 every month and has to borrow from his friends and family. Similar to the Wife, he provided very little supporting documents or receipts for the expenses in his Form E, his Answer and his affirmations filed.

35.  Since all along the Husband was responsible for the expenses of the whole family during marriage, I disagree that his monthly expenses are increased to over $130,000 as alleged. In my view, he is exaggerating his expenses. For instance, even if he has to move to North Point, I disagree that he has to incur $16,000 monthly rental for one person’s accommodation when comparing with the rental incurred by the Wife for 2 persons’ accommodation in the same district. It is not justified for him to hire a foreign domestic helper for himself.

36.  I cannot accept that he has to pay $50,000 every month for his legal fees. Since the criminal charge against him has been completed, he has resumed his original wages and received all the suspended wages from the Government in July 2022, which shall be sufficient to pay his legal costs incurred.

37.  As he produced no receipts for $3,500 for the Child’s monthly expenses and he has indeed very limited access, I disallow these expenses.

38.  On broad brush basis without detail investigation into the parties’ finances, I assess and only allow reasonable needs of the Husband at the sum of $54,830 per month (ie $20,850 + $33,980) as follows:

Items for General monthly expenses	HK$
Rent	13,300
Mortgage contribution of North Point Property as per his undertaking	2,000
Utilities	800
Food	2,000
Household expenses	1,000
Insurance premia of North Point Property	250
Management fees of North Point Property	disallowed[1]
Other (maintenance of PRC Property)	1,500
Sub-total	20,850

Items for Husband’s personal monthly expenses	HK$
Meals out of home	4,000
Transport	2,000
Clothing / Shoes	1,000
Personal grooming (including haircut and cosmetics)	600
Entertainment / Presents	1,000
Holidays	1,000
Medical / Dental	500
Tax	6,500
Insurance premia	1,780
Contribution to parents	disallowed
Others ( loan repayment to bank and finance company)	15,600
Sub-total	33,980

39.  I find that the Husband has the ability to pay the Wife about $20,000 a month (ie $75,515 - $54,830).

40.  Regarding the PRC Property which is jointly owned, the Husband said to have incurred $1,500 every month for its maintenance but the parties fail to make submission as to why it cannot be rent out so as to increase their incomes. I consider that they have to be reasonable and sensible to reach some consensus concerning its rental or even sale as soon as practicable in order to alleviate their financial difficulties.

The Wife’s one-off relocation costs

41.  The Wife also claims a lump sum of $74,662.89 as the Child’s interim maintenance, which in fact are the expenses for relocating from the Apleichau Quarter to her current address. In my view, it is a capital but not regular expenditure. I agree with the submission of Mr Marwah for the Husband that despite of the incurrence of such costs, the Wife still has over $390,000 in cash and stock $267,000 in stock according to her Form E. I therefore disagree her lump sum claim for interim purpose.

Conclusion

42.  To conclude, I order that the Husband to pay the Wife the maintenance pending suit of $20,000 per month for her and the Child’s benefit from 1 June 2021[2] and thereafter on the 1^st day of each month until further order.

43.  For the avoidance of doubt, the order made on 21 June 2021 for interim interim maintenance of $12,000 per month be discharged but the Husband’s undertaking to pay a further sum of $2,000 per month towards the mortgage of North Point Property do stand.

44.  The parties have to do calculation for the outstanding maintenance due to the Wife, namely the amount payable by the Husband according to this order minus the actual amount paid by him since 1 June 2021. As the Husband has got full pay of his salary and refund of the wages previous deducted between 11 October 2021 to 10 July 2022 (roughly around $338,000 (ie $75,135/2 X 9)), he shall have ability to pay back all outstanding maintenance to the Wife immediately.

45.  Regarding the question of costs, I think that the Form 8 Application is not entirely unnecessary since the Husband has thereafter filed his updated affirmation as to his present finance and the outcome of ESCC2438/2021. Although the Husband’s solicitor argued that the Wife has failed to obtain leave of the court to file the Form 8 Application and the correct form to be used should be Form 25. I think that this is just a technicality which can be waived by the court.

46.  More importantly, as I only approach and deal with the MPS Application on a broad brush basis, I consider that the proper costs order should be costs of this application including the Form 8 Application and all costs reserved in relation thereto be costs in the cause of the ancillary relief proceedings. I now make such an order.

47.  Last but not least, as the criminal charge against the Husband has been finalised, I strongly encourage the parties to re-consider mediation for the ancillary relief claims actively. The Wife may approach the translation office of the District Court and the court interpreter is directed to translate this Decision to her orally, if necessary.

The Petitioner, Wife acting in person

Mr Shaphan Marwah instructed by A Lee & Partners and subsequently Payne Clement Velasco for the Respondent, Husband

FCMC 3123/2021

[2022] HKFC 245

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3123 OF 2021

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DECISION

( Leave to appeal )

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1.  This is the application taken out by the petitioner (“Wife”) on 23 September 2022 for leave to appeal against my decision made on 19 April 2022 (“Decision”) for, inter alia, interim access of a 3-year old child to the respondent (“Husband”).

2.  The Wife’s application for leave to appeal is about 4 months and 3 weeks out of time as the order for interim access is an interlocutory order and she has 14 days to apply for leave to appeal from 19 April 2022.

3.  This application is disposed of on paper without oral hearing.

Legal principles

4.  It is well settled principle that the appropriate tests when considering whether leave to appeal out of time ought to be given are :-

(a)  the length of the delay;

(b)  the reasons for the delay;

(c)  the prospects of success;

(d)  the extent of prejudice that would be caused to the other party

if leave is granted (see: Leung Yiu & Ors[1998] 1 HKLRD 257).

5.  Section 63A(2) of the District Court ordinance provides that for leave to appeal to be granted, the intended appeal should have a reasonable prospect of success or there should be some other reasons in the interest of justice why the appeal should be heard.

6.  A reasonable prospect of success involves the notion that the prospect must be more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of the Judgment).

7.  Further, the Court of Appeal said in NPYJ v SMRC[2020] HKCA 82 at para.22:

“22. First, as pointed out by the Judge and Mother, the decision to adjourn the Interim Access Application to 18 November 2020 is an interim order and a case management decision. In general, appeals against interim orders are not to be encouraged as they tend to distract rather than focus parties’ attention on the real issues of the case, apart from incurring additional and, in most instances, unnecessary costs and time. In the specific context of interim orders made in proceedings relating to children, it has been noted in Rayden and Jackson: Relationship Breakdown, Finances and Children at [49.55] that:

“Where the court makes an interim order appeals are actively discouraged as the usual remedy will be to invite the same court to review the provisions of that order at a later hearing. Necessarily, interim orders often call for difficult decisions to be made by and the lower court should endeavor to make such orders in a way which causes the least amount of harm to a child in that interim period. The court on appeal will be slow to interfere in decisions which are only intended to last for a relatively short period of time.”

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.” (emphasis added)

8.  In short, since interim orders are only intended to last for a short period of time, application for leave to appeal are actively discouraged.

Discussion

9.  Apart from making an order for interim access on 19 April 2022, I also order, inter alia, to set down the children issues for trial for 3 days scheduled from 30 November 2022 to 2 December 2022.

10.  The Wife took out this application only on 23 September 2022 ie about 4 months and 3 weeks after my Decision and about 2 months before the forthcoming trial on 30 November 2022. Her explanation is that she has received no legal advice. I reject her explanation and consider that she fails to give good reason for her substantial and inordinate delay.

11.  As to her grounds of appeal that the court was misled by the Husband’s legal representation regarding the contents of the Social Investigation Report dated 28 December 2021 (“SIR”), it is entirely without foundation and merit. The paramount concern is the welfare and the best interest of the child. I had carefully considered and taken into account some of the recommendations for access arrangement as stated in para.45 of the SIR at the hearing on 19 April 2022 with some modifications for interim purpose.

12.  The Wife also complained that the “draft” prepared by the Husband’s legal representation did not mention the comments made by me at the hearing. This is misconceived as my comments will not form part of the court order.

Conclusion

13.  To conclude, interim access to the Husband is just a case management decision and only intended to last for a short period of time until further order and pending the trial on 30 November 2022. The Wife has failed to demonstrate any reasonable prospect of success in her intended appeal and there is no other reason in the interests of justice why the appeal should be heard. Her application for leave to appeal should be dismissed.

14.  Regarding the question of costs, there is no reason why costs shall not follow event. The Husband’s legal representation has lodged his statement of costs for $21,870 but I am of the view that it is excessive. I order that costs of this application be paid by the Wife to the Husband summarily assessed at $12,000 forthwith.

The Petitioner, Wife acting in person

Mr Shaphan Marwah instructed by A Lee & Partners for the Respondent, Husband