WKI also known as IWKV v. CKW also known as WCKW

FCMC 11528 / 2019

[2024] HKFC 3

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11528 of 2019

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DECISION
(W’s Application for Hadkinson Order)

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1.  This is the decision on the Petitioner wife’s (“W”) application for a Hadkinson Order by a Summons filed on 6 April 2023 (“W’s Hadkinson Summons”).

2.  W’s case is that by reason of the Respondent husband’s (“H”) failure to pay interim maintenance for the Child pursuant to DDJ M Lam’s order dated 1 April 2021 (“April 2021 Order”), H should not be heard on his Summons filed on 6 January 2022 (“Committal Summons”). The Committal Summons is for an order to commit W to a contempt of court due to her failure to permit or facilitate H’s access to the Child in breach of two court orders.

3.  The parties married in 2007. W petitioned for a divorce on 25 September 2019. Their Child is now aged 13. Both parties are gainfully employed with decent monthly income of about HK$90,000 and HK$155,000 on average respectively[1].

4.  The parties are highly litigious. They have fought and continue to fight on almost every aspect of the case, be it relates to matters concerning the Child or ancillary relief.

5.  By an order of DDJ M Lam made on 16 July 2020, the parties shared the care of the Child with specified care arrangements during 2020 summer holiday and school term time thereafter (“July 2020 Order”).

6.  By the April 2021 Order, DDJ M Lam

(1)  temporarily suspended the shared care of the Child for H and granted him interim defined day access; and

(2)  ordered H to pay W a monthly interim maintenance of HK$12,000 for the Child from 1 May 2021 to 31 August 2021 and HK$14,000 from 1 September 2021 until further order (“Child’s Interim Maintenance”).

7.  For completeness, H’s access to the Child was varied by two subsequent orders as follows:

(1)  Extended access time was granted to H by the order of DDJ J Lee (as she then was) made after an unsuccessful CDR hearing on 12 November 2021.

(2)  The parties were granted joint custody, and shared care and control of the Child with specified care arrangements by an order of DDJ T Chow made on 3 October 2022 after trial.

8.  It turned out that neither H nor W has fully complied with the court orders.

9.  H failed to pay the Child’s Interim Maintenance pursuant to the April 2021 Order. W took out various enforcement proceedings, including filing Judgment Summonses and Attachment of Income applications. H filed applications for variation of interim maintenance, including a Summons filed on 23 November 2022 whereby he sought an order that W do pay him an interim monthly maintenance of the Child in the sum of HK$10,000. This variation application is to be heard together with the trial on ancillary relief dispute.

10.  As to W, despite the July 2020 Order and the April 2021 Order, she refused H’s access to the Child during various periods from 25 August 2020 to 17 September 2020, 24 October 2020 to 1 April 2021 and 27 June 2021 to 9 September 2021. This is the subject matter of the Committal Summons. W did not dispute that access had not taken place during these periods. She said that access was not appropriate due to the then public health condition and the Child’s well-being.

11.  At the hearing of the Committal Summons on 28 March 2023, W advanced a Hadkinson point relying on H’s non-payment of the Child’s Interim Maintenance. I referred the parties to the Court of Appeal decision in CWG v MH and others[2] and refused to deal with W’s argument without a proper application.

12.  In [16.3] of CWG v MH, Yuen JA said that:

“16.3 For my part, I would have thought that bearing in mind the principles of the Civil Justice Reform, an application of such significance as a Hadkinson application should not be made without the other party being duly forewarned by way of summons, with enough time for affidavit evidence to be adduced for and against the making of the order. That has not been done in relation to the appeals in which the Mother is a respondent.”

13.  W’s Hadkinson Summons was thus taken out.

14.  The legal principles for granting a Hadkinson order are set out in the Court of Appeal decisions in CWG v MH and CCMJ v SSM (formerly known as SKL)[3].

15.  In summary, the court shall consider the following questions by applying the civil standard of proof:

(1)  Is the respondent to the application in contempt?

(2)  Is there an impediment to the course of justice?

(3)  Is there any other effective means of securing compliance with the court’s orders?

(4)  Should the court exercise its discretion to impose conditions having regard to the question?

(5)  Is the contempt wilful and continuing?

(6)  If so, what conditions would be proportionate?

Conditions (1) and (5): Is the respondent to the application in contempt; Is the contempt wilful and continuing

16.  In breach of the April 2021 Order, H (the respondent to W’s Hadkinson application) did not pay the Child’s Interim Maintenance. The April 2021 Order was endorsed with penal notice by DDJ M Lam’s order dated 6 September 2021. There is no appeal against the April 2021 Order.

17.  Non-payment of the Child’s Interim Maintenance is in itself a contempt of court. For the present purpose, there is no need to go into the issue of ability to pay, which is a question to be considered when dealing with the sanction for the contempt: Mubarak (No. 2) [65] – [66], cited in CCMJ v SSM [28]. In any event, the parties have not taken issue on the ability to pay.

18.  H is fully aware of the order to pay the Child’s Interim Maintenance. His non-compliance is deliberate.

19.  The answers to conditions (1) and (5) are yes. H is in wilful and continuing contempt.

Condition (2): Is there an impediment to the course of justice?

20.  On this issue, I respectfully follow the principles enunciated in the following decisions cited in CCMJ v SSM:

“30. In respect of impediment to the course of justice, Sir John Balcombe in Baker (No 2) at 154 disagreed with the husband’s submission that his failure to pay the lump sum ordered did not impede the course of justice. He held :

‘In my judgment, it does ... There have been innumerable applications. The position is that the costs have risen out of all proportion to the money at stake. The wife still has not had her lump sum and not had all that is due to her under the periodical payments order.’

31. In Laing v Laing [2007] 2 FLR 204, Sir M Potter J held :

[18] It is clear from the judgment of Ryder J in Mubarak that previous decisions - or, at any rate, such decisions as have been reported - in which the court has by application of the Hadkinson principle imposed conditions as to the continuance of an application for the benefit of the party in contempt, the court has been concerned with very large outstanding sums and particularly blatant examples of contempt by the party applying for relief or variation. However, that does not mean that the jurisdiction is limited to such cases. The touchstone and the power of the court to refuse to hear a party on which the power to impose conditions of continuance is founded, is (as already stated) whether the conduct amounting to a contempt, in this case the failure to pay under the existing order (see Leavis v Leavis), is such that, so long as it continues, it impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make. That was accepted and restated in Baker v Baker (No 2) [1997] 1 FLR 148 and confirmed in Mubarak. It is not a principle that depends on the size of the sums involved but upon the relevant situation of the parties, the circumstances of the non-payment and the effect of such non-payment on the course of justice in the particular case.’

32. Peter Jackson LJ at de Gafforj stated :

[13] As to the third condition, it is not necessary to limit by further definition what it means to impede the course of justice, but it is likely to include what Sir Mark Potter P described in Laing v Laing [2005] EWHC (Fam) at [18] as ‘making it more difficult for the court to ascertain the truth or to enforce the orders it makes.’

21.  Hence, the answer to condition (2) is yes. H’s non-compliance with the April 2021 Order impedes the course of justice by “making it more difficult for the court to ascertain the truth or to enforce the orders it makes”.

Condition (3): Is there any other effective means of securing compliance with the court’s orders

22.  There is other effective means of securing H’s compliance with the court’s orders. W has been actively pursuing various Judgment Summonses and Attachment of Income applications to enforce the payment of the Child’s Interim Maintenance. The enforcement proceedings will be adjudicated after the determination of H’s variation application. H, if found to have been in default of payment, may also be liable to pay judgment interest on the defaulted sum.

Conditions (4) and (6): Should the court exercise its discretion to impose conditions having regard to the question; If so, what conditions would be proportionate

23.  The court has a duty to balance all the relevant circumstances in the exercise of discretion to grant a Hadkinson order. Due to the nature of a Hadkinson order, the application needs to be approached with circumspection.

24.  As I have found, W has other means to secure H’s compliance of the court order. She is still actively pursuing these means.

25.  By the Committal Summons, H is seeking to enforce a court order on access. W accepted that access had not taken place at the periods concerned despite the court orders. The denial of access stopped since 2021. W gave her explanations for not allowing access during the periods concerned. These are matters to be considered in the Committal Summons. Although it is premature to say whether H will prove his case in the Committal Summons, it is not appropriate to deny him from proceeding with the application for the reasons advanced by W.

26.  Balancing all circumstances, discretion will not be exercised in favour of the granting of a Hadkinson order.

Order

27.  W’s Hadkinson Summons is therefore dismissed. On a nisi basis to become absolute within 14 days, I order W to pay H the costs of this application on a party and party basis, at an amount to be taxed if not agreed.

The Petitioner acting in person

The Respondent acting in person

FCMC 11528 / 2019

[2023] HKFC 190

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 11528 OF 2019

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DECISION
(Preliminary Issue)

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Introduction

1.  This is a decision on a preliminary issue raised by the judgment debtor (“the husband”) whether interim child maintenance is due and owing to the judgment creditor (“the wife”).

The dispute

2.  On 1 April 2021, DDJ M Lam ordered the husband to pay interim child maintenance (“the interim child maintenance”) to the wife, inter alia, with the following undertaking (“the undertaking”),

  “AND UPON the Petitioner’s undertaking to produce documentary proof of the increment of the monthly tuition fee of the child to not less than HK$16,000 after 1^st September 2021 within 7 days from the date hereof;

IT IS ORDERED THAT:-

1. ……

2. The Respondent do pay the Petitioner interim monthly maintenance payment of HK$12,000 for the benefit of the child of the family commencing on the 1 May 2021 and thereafter on the first day of each month until the 31 August 2021. Commencing from the 1 September 2021, the monthly payment be increased to HK$14,000 and continues to be paid on the first day of each month until further order of the Court.”

3.  Subsequently, on 6 September 2021, DDJ M Lam endorsed a penal notice against both parties with service be dispensed with.

4.  It is indisputable that the husband did not pay the interim child maintenance as ordered since the 1^st payment, the wife then took out (i) a judgment summons on 9 November 2021 and (ii) a summons for arrears of interim child maintenance on 1 November 2022.

5.  The husband submitted the interim child maintenance is not due and owing to the wife on sole ground that the wife has breached the undertaking. The husband argued compliance of the undertaking is a precondition of paying interim child maintenance.

6.  The wife sees it differently by saying that the husband shall pay interim child maintenance as ordered without regard to the undertaking. Having said that, the wife said she has complied with it by providing the husband documentary proof of tuition fees.

7.  The wife is confident that she has complied with the undertaking by referring me to her affirmation filed on 1 November 2022, in support of applying for leave to issue judgment summons, that she has duly taken steps, being,

“10. On 2 April 2021, I produced to the Respondent by courier a letter and a copy of the email from [child’s school], on 23 March 2021 proving the increment of the monthly tuition fees of [child] to be HK$15,980 in September 2021 in compliance of the Undertaking. On 7 April 2021, I issued a letter to the Respondent to inform him about the [child’s] monthly tuition fees and my account details for him to settle payment for maintenance.”

8.  The wife also explained in her submissions that,

“… The information of the tuition and the new tuition of the next school year is readily available online on the school official web site, and it was as well widely informed to all parents in December 2020 and March 2021 through email. The undertaking was just needed to be printed out and send by mail.”

9.  The husband, however, said the wife has not complied with the undertaking by (i) failing to produce documentary proof of increment of school fees to HK$16,000 when the final sum turned out to be HK$15,980 which is HK$20 short of HK$16,000; (ii) failing to serve the notice on him within 7 days from the order; and (iii) failing to state clearly how the notice was served.

My view

10.  Having considered the parties’ submissions, I am of the view the husband shall pay the wife interim child maintenance as ordered, in other words, the outstanding amount of interim child maintenance is due and owing to the wife. The undertaking stands on its own.

11.  I do not see the new tuition fee being HK$15,980 (HK$20 short of HK$16,000) would affect the husband’s duty to pay.

12.  The wife agreed she have failed to serve the notice on the husband within 7 days. Yet practically, even if the wife’s notice could not reach the husband within time, I accept, the husband can check the most updated / revised level of tuition fees on the school webpage. I am not persuaded the husband will be in any way prejudiced. This is not a reason to withhold paying interim child maintenance.

13.  To some extent, I agree with the husband that the wife should have applied for further directions from Court when the notice was served out of time. However, instead of doing this, the parties shall focus on main suit of the Petition. This petition was filed on 25 September 2019, the husband defended the main suit by filing an Answer and Cross Petition; the wife likewise defended the husband’s Cross Petition. As at today, which is 4 years from filing of Petition, I am not aware trial on main suit has been fixed.

14.  Since the filing of petition, excluding the wife’s judgment summons and summons for leave to appeal applications, the parties came up with more than 10 other summonses[1] for various orders. Some of the summonses are still on foot. The parties shall attempt to narrow down disputes and to avoid unnecessary applications.

15.  For reason the judgment summons has not been concluded, I reserved the costs of this decision.

Orders

16.  I therefore make the following orders:

(i)  The husband is liable pay the wife interim child maintenance pursuant to paragraph 2 of the Order dated 1 April 2021.

(ii)  The costs of this decision on preliminary issue be reserved.

(iii)  A direction hearing of judgment summons be fixed on 30 October 2023 at 9:30 am in Court 52 with 20 minutes be reserved.

(iv)  Both parties do attend personally.

The petitioner, acting in person

The respondent, acting in person

FCMC 11528/2019

[2023] HKFC 191

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 11528 OF 2019

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DECISION
( Leave to appeal )

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INTRODUCTION

1.  By a judgment dated 31 May 2023 (“Judgment”), I granted leave for the Respondent (“Father”)  to remove the child of the parties, namely a girl born on 24 May 2010 (“Child”)  out of the jurisdiction of Hong Kong for a period of 2 weeks for the purpose of holiday in Canada.  

2.  In the Judgment, to give effect to such leave granted, I also directed the Petitioner (“Mother”)  to provide the Child’s renewed Canadian passport to the Father within 7 days or, if she had not yet taken steps to renew the Child’s Canadian Passport, to provide to the Father within 2 days all necessary documents for the purpose of enabling him to obtain a renewed Canadian passport for the Child.   

3.  As noted in the Judgment, the Father’s application for temporary removal was vigorously opposed by the Mother.

4.  Dissatisfied with the Judgment, the Mother applies for leave to appeal by a summons dated 6 June 2023.

THE TEST FOR LEAVE TO APPEAL

5.  Section 63A(2)  of the District Court Ordinance, Cap 336 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.

6.  A reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (see SMSE v KL [2009] 4 HKLRD 125, §17).

7.  In appeals against the exercise of discretion relating to the custody and welfare of children (such as the one I made for temporary removal), it has to be satisfied not merely that the court had made a decision with which the appellate court might reasonably disagree, but that the decision was so plainly wrong that the only legitimate conclusion was that the court had erred in the exercise of its discretion (see YSYM v LHB[2020] HKCA 586, §66).

THE PROPOSED GROUNDS OF APPEAL

8.  In the papers filed on 6 June 2023, the Mother has put forward 7 proposed grounds of appeal:

“During the Removal hearing on 12 May 2023 and the Order dated 31 Mary (sic)  2023, the Court made a ruling endorsed with penal notice with an impossible time schedule to achieve on both conditions. The ruling also assumes in the first condition that it is the sole responsibility of the Petitioner to renew the passport when the Respondent has an equal and shared responsibility. The second condition with a 2 days requirement is also something impossible to achieve and discriminate against single working mothers. It also does not consider the overall wellbeing of the child and prioritize travel and leisure over education, it is sending a wrong message, and doesn’t not provide a realistic fair approach for the Applicant (the Petitioner).

Grounds of appeal:

1. The Order is invalid as the ruling does not apply to Canadian passport applications outside Canada. Canada does not renew passports for children under 16 years old. There is no renewed passport that can be available. In addition, unlike the Hong Kong SAR passport renewal, the Canadian consulate in Hong Kong could take up to 20 working days or longer for a new passport application outside Canada, therefore, the Court require the Petitioner to provide the Child’s renewed Canadian passport to the Respondent within 7 days from the date of this Order is not doable.

2. This ruling gave the sole responsibility of passport “renewal” to the Petitioner endorsed with penal notice which this should be a joint responsibility, this has put no responsibility to the Respondent. The ruling also does not mention who shall be responsible for the cost of the new passport application.

3. The Canadian authority requires a consent form that declares agreement on unrestricted travel and consent of the trip. The Petitioner has no way or form can predict the outcome of this Court ruling beforehand and complete and sign the consent form without lying and violating Canadian law.

4. The Applicant (the Petitioner)  still have not received the judgment of removal trial on 31 May 2023 in the mail as of today 6^th June 2023 at 10 am. The penal notice endorsed with this Order is not realistically feasible as it’s impossible to follow the 2 days limit while the 7 days requirement assumes the sole responsibility of the Applicant (the Petitioner)  to “renew” the passport when this is a joint responsibility.

5. There is no consideration and arrangement of where the Canadian citizenship certificate, an important Canadian identification document shall be safely kept after the Canadian passport application.

6. The Order does not provide a judgment that is the best interest for the child. The Order is allowing the Respondent to violate a penal notice and not paying the child’s interim maintenance for more than 2 years, however, the Order in a way is giving a wrong negative message by allowing the Respondent to take vacation overseas with the child.

7.  The Respondent has a track record of violating penal notice.  This ruling does not take into account that the Respondent also has a Canadian Citizenship, which means he can easily ignore this Court order and not return to Hong Kong, he can easily take this chance and keep the child’s custody in Canada or anywhere out of Hong Kong SAR jurisdiction.  A bond, a collateral shall be considered in order to ensure that the Respondent will comply.”

GROUNDS 1 – 5

9.  Grounds 1 to 5 relate to the consequential directions I gave to enable the Father to travel with the Child for the approved trip to Canada.  These grounds will be considered together. 

10.  It is not suggested by the Mother that these grounds are capable of impinging on my decision to grant leave for temporary removal.

11.  At the call-over hearing on 20 April 2023, it was brought to my attention that the Child’s travel documents, including her Canadian passport, had expired.  Upon my further enquiries with both parties about the status of the travel documents, the Mother gave an undertaking to the Court and to the Father that she would take steps to renew the Child’s travel documents pending the outcome of the Father’s application for temporary removal (see §43 of the Judgment). 

12.  It was on such basis that, upon granting leave to the Father to bring the Child out of jurisdiction to travel to Canada for holiday, I directed the Mother to provide the Child’s renewed Canadian passport to the Father within 7 days.  

13.  The undertaking to renew the Child’s travel documents was given by the Mother to the Court and the Father at the hearing on 20 April 2023.  In other words, by the time the Judgment was handed down, the Mother had had almost 6 weeks to take steps to renew the Child’s Canadian passport. 

14.  I directed the Mother to provide to the Father within 2 days all necessary documents for the purpose of enabling the Father to obtain a renewed Canadian passport for the Child on an alternative basis in the event that, despite her own undertaking and the lapse of time since the call-over hearing on 20 April 2023, the Mother nevertheless still had not taken steps to renew the Child’s Canadian passport for any reason or difficulty she might have.

15.  As such, it is incorrect for the Mother to suggest that the consequential directions I made gave the sole responsibility of renewing the Child’s travel documents to the Mother.

16.  The question about who should be responsible for paying the cost of renewing the Child’s passport(s)  was never raised as a matter of concern by any party during the hearing.

17.  When the undertaking was given to the Court and the Father, it was never suggested by the Mother that it would be impossible for any reason for her to arrange for the Child’s Canadian passport to be renewed.  In particular, there was no suggestion by the Mother that “Canada does not renew passports for children under 16 years old”.  Nor was the difficulty with the “consent form” raised by the Mother. 

18.  Judging by the proposed grounds of appeal, it seems to me that the Mother is now suggesting that she was unable to arrange for the Child’s Canadian passport to be renewed in anticipation of the Judgment.  Even if that were the case (which I do not accept for the reasons given above), all the Mother was required to do by the consequential directions was to provide the necessary documents to the Father to enable him to obtain a renewed Canadian passport for the Child.  In that event, whether the Father was able to obtain a renewed passport for the Child in time for the approved trip would be a matter for the Father to take care of.

19.  If there was any difficulty preventing the Mother from providing the necessary documents to the Father within 2 days as directed, the Mother could have let the Father or the Court know or, if necessary, sought a time extension to comply with the direction. 

20.  It is clear from the written submissions filed by the parties for this leave to appeal application that the Mother still failed to provide the documents necessary for renewing the Child’s Canadian passport to the Father by the time her leave to appeal application was filed (by which time she was clearly aware of what she was required by the Judgment to do).

21.  As to the Mother’s present complaint arising from the Child’s Canadian citizenship certificate, I was never specifically requested by any party to deal with the arrangement of such a document. 

22.  By §2 of his summons for temporary removal dated 24 February 2023, the Father sought an order that “[the] Child’s HKID, Mainland Travel Permit For Hong Kong Residents, HK Special Administrative Region Passport and Canadian passport” would be kept by him going forward.  I rejected the Father’s request (see §42 of the Judgment). 

23.  If there is any potential dispute about the Child’s Canadian citizenship certificate, the Mother could have easily applied for further directions from the Court.

24.  I should add that the Father’s written submissions in opposition to the Mother’s application for leave to appeal came with two attachments, which contain materials not placed before the Court during the hearing on 12 May 2023.  No leave was granted to the Father to produce new evidence.  For obvious reason, these two attachments are excluded from consideration.

25.  For the above reasons, I am unable to see any merit in Grounds 1 to 5.

GROUND 6

26.  By Ground 6, the Mother complains that the Judgment would give “a wrong negative message by allowing the Respondent to take vacation overseas with the child” when the Father was allegedly violating a penal notice and not paying interim maintenance for the Child.

27.  As noted in the Judgment, this was the main ground of opposition relied upon by the Mother during the hearing on 31 May 2023.  This was dealt with in detail in §§21 to 33 of the Judgment.  I do not see any merit in this ground of appeal.

GROUND 7

28.  By Ground 7, the Mother is also seeking to re-argue another ground of opposition raised by her during the hearing.  The Mother’s concern that the Father might not return the Child to Hong Kong upon conclusion of the trip was specifically addressed in §§36, 37 and 47 of the Judgment.  Likewise, there is no merit in this ground of appeal.

CONCLUSION

29.  For the above reasons, the Mother fails to demonstrate that her proposed appeal has a reasonable prospect of success.  Nor do I see there is some other reason in the interests of justice that the appeal should be heard.

30.  The Mother’s summons dated 6 June 2023 is dismissed accordingly.

31.  Given that this is a children matter and both parties are acting in person, I make no order as to costs in respect of the Mother’s summons dated 6 June 2023.

The Petitioner acting in person

The Respondent acting in person

FCMC 11528/2019

[2023] HKFC 89

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 11528 OF 2019

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J U D G M E N T
( Temporary Removal )

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INTRODUCTION

1.  This case has a protracted history – which resulted in a number of judgments made by the Courts previously.  There are also a variety of applications (taken out by both parties respectively)  pending.

2.  By a summons filed on 24 February 2023, the Respondent (“Father”)  applies for permission to temporarily remove the child of the family, namely a girl born on 24 May 2010 and now aged 13 (“Child”), out of the jurisdiction of Hong Kong to travel to Canada for holiday for the period from 22 June to 8 July 2023.

3.  By that summons, the Father also applies for a direction enabling him to keep all the travel documents of the Child.   He further seeks permission generally for the Child to travel abroad with him for future holidays for periods when the Child is under his care and control.

4.  The parties came before this Court for a call-over hearing on 20 April 2023.  The Petitioner (“Mother”)  vigorously opposed the Father’s summons.  As such, directions were given for the parties to file affirmations and written submissions.

5.  The Court has considered the Father’s supporting affirmation dated 24 February 2023, the Mother’s Affidavit in opposition dated 28 April 2023 and the Father’s Affirmation in Reply dated 5 May 2023.

BACKGROUND

6.  The background of the parties and the circumstances leading to their divorce are helpfully set out in §§2-7 of the Judgment made by Deputy District Judge Theresa Chow dated 3 October 2022 on custody, care and control:

“2.  The petitioner (“Mother”)  and the respondent (“Father”)  married on 14 February 2007 and separated in October 2018 when the Mother moved away from the former matrimonial home with the Child. They lived in a rented apartment in Tai Wai within the same development as the maternal grandparents (“Tai Wai Residence”)  since the separation.

3.  The Mother emigrated to Canada in her secondary school years, whereas the Father emigrated there at the age of 12. They met in around 2002-2003, and returned to Hong Kong in around 2005-2006.

4.   The Mother has worked in the human resource and administration field for a number of years, and is now an assistant general manager of human resources at a sizable local conglomerate company.

5.  The Father has been employed by the same international logistics company for the past 17 years or so as a senior manager in the back office. He currently lives at a rented apartment at Cheung Sha Wan.

6.  After altercation and jostling between the Father and the mother’s father (“Grandpa”)  took place in mid-September 2019 which led to police intervention, the Mother filed a petition for divorce on 25 September 2019.

7.  The Child now studies at an international school in Lai Chi Kok (“School”). She commenced her Grade 7 studies on 23 August 2022 at the secondary division of the School.”

7.  After a 5-day trial before Deputy District Judge Theresa Chow, the parties were granted joint custody with shared care and control of the Child (“Custody Order”). 

8.  Starting from January 2023, the care arrangements of the Child are shared by the parties on a 2-week rotation basis as follows: (a)  Week 1 – the Father shall pick up the Child from the Mother at 8 pm on Sundays at the Mother’s residence; and (2)  Week 2 – the Father shall hand over the Child to the Mother at 8 pm on Sundays at the Mother’s residence.

9.  Under the Custody Order, long holidays lasting for 4 days or more are to be shared by the parties equally.  In particular, it was ordered that:

“Summer holidays: The parties do share summer holidays equally on a 2-week rotation basis. The handover of the Child shall be conducted at 12:00 noon on the first day and 8:00 pm on the last day at the main gate of the Mother’s residence.” (emphasis added)

10.  It was also directed by Deputy District Judge Theresa Chow that there be a supervision period of 12 months and updated social investigation reports be submitted in English in 6 months’ time and 11 months’ time.

THE FATHER’S REASONS FOR THE APPLICATION

11.  The Father proposes to take the Child to Vancouver, Canada during summer vacation for the period from 22 June to 8 July 2023, the details of which are set out in §1 of the Father’s Affirmation dated 24 February 2023:

“a. Flight from HKG to YVR by CX888 at 00:45 on 22 June 2023 arriving at 21:50 & return YVR to HKG by CX865 at 01:25 on 8 July 2023 arriving in HK at 5:35+1 (see appendix A for flight booking)

b. Accommodation: 5015 Culloden St, Vancouver, B.C., Canada (my friend’s [E] residence, same place where [the Mother] stayed while we traveled to Vancouver before)

c. Purpose: Visit [the Child’s] friends in Vancouver, outdoor activities such as rollerblade, water rafting, horseback riding, and theme park, Whistler, a short summer camp (TBD as not available yet). We will commute by private care during the trip

d. During this period, there is a plan to visit US for short trip

e. Contract protocol.  Whatsapp by [the Child’s] mobile phone and my mobile [phone number] ….”

12.  The Father also explained in that Affirmation that the Child had various overseas trips for holiday prior to the parties’ separation in 2019 and that the Child repeatedly expressed her desire to travel again. 

13.  The Father also stated that he tried to raise with the Mother his request to travel overseas with the Child for holiday during a joint meeting organised by the parties’ parenting coordinator on 5 February 2023 but the Mother refused to discuss this topic because the Father did not comply with an interim maintenance order.  

14.  The Mother does not dispute that she refused to discuss the Father’s request through the assistance of the parenting coordinator.   

15.  The Father also wrote to the Mother on 14 February 2023 to seek her consent to the proposed trip but to no avail. 

THE MOTHER’S GROUNDS OF OPPOSITION

16.  The Mother’s grounds of objection as set out in her Affirmation in opposition dated 28 April 2023 can be summarised as follows:

  (1)  Under the Custody Order, the parties shall share the Child’s summer holidays equally on a 2-week rotation basis.  The period of travel proposed by the Father exceeds 2 weeks.

  (2)  The Father should not take the Child away for overseas holiday until he settles the outstanding interim maintenance.

  (3)  As the Father is in breach of the interim maintenance order, the Mother does not trust that the Father would honour the usual undertaking to return the Child to Hong Kong after the proposed holiday.

RELEVANT LEGAL PRINCIPLES

17.  Applications of this type are governed by section 3 of the Guardianship of Minors Ordinance, Cap 13 (“GMO”), which requires the Court to have regard to the best interests of the minor as its first and paramount consideration: see AAG v JDC, FCMC 4022/2016, 20 October 2016 (unrep)  at §5.

18.  Section 3 of the GMO also requires the Court to give due consideration to 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.

19.  The proper approach for dealing with applications for temporary removal was also considered by Deputy District Judge G Own (as he then was)  in CWY v EFO, FCMC 8316/2011, 4 February 2013 (unrep):

“20. In all cases of removal of children, the parent bringing the child would have to submit a written undertaking to the Court for the child’s return; be it a temporary trip or otherwise, and also whenever it was required by the Court. There is no difference for cases where the other parent consents to the removal. The aim and objective of the undertaking is obvious and any breach is a contempt of the Court with serious consequences.

21. It is always at the discretion of the Court whether or not to grant leave for the removal. Such discretion would be exercised on a case by case basis after considering all the relevant circumstances giving rise to the application and grounds of opposition within the interest of the child being the first and paramount consideration. There is no exhaustive list of factors which the Court is bound to look into. In my view, the Court is entitled to consider any factors which are of relevance and material irrespective of whether those factors had been raised by the opposing parent.” (emphasis added)

20.  It is stated in Family Law and Practice in Hong Kong (3^rd Edn) at §12.053:

“Removal from Hong Kong on a temporary basis is usually for a holiday. Contested applications arise when the other parent is fearful that the applicant is not planning to return to Hong Kong after the holiday, or if the holiday or temporary removal is unsuitable for some reason. Generally a holiday will be viewed by the court as in the interests of the child.”

DISCUSSION

21.  As noted above, the Mother has raised a number of grounds of opposition, which I shall consider one by one.

22.  At the hearing, the main ground of objection relied upon by the Mother was that the Father should not take the Child away for overseas holiday until he settles the outstanding interim maintenance.

23.  In this connection, it is stated in the Mother’s Affirmation in opposition dated 28 April 2023:

“4.  The Respondent also has absolutely no ground on this application to seek leave for [the Child] to travel abroad until the Respondent settled the total outstanding arrears of interim maintenance (for the basis of [the Child’s] tuition fee partially)  from 1 May 2020 to date hereof which is more than 24 months.  Please refer to Court Order dated 1 April 2021 and 9 September 2021 (collectively the “Maintenance Order”).

5.  As in the Chinese saying, “供書教學” is the basic responsibility of a parent.  And no doubt to majority of responsible parents, this is a priority than travelling aboard (sic).  I never would use my only child as a hostage to get what I want like the Respondent who has a track record to hold up [the Child’s] belongings at access handover, items such as school uniform, which she would need next day at school, he would not return to us until I obtained and fulfilled his curtain (sic)  requests.  I am solely responsible for paying all my daughter’s expenses, and the tuition is a big portion of the expenses, if the Respondent follows and complies the Maintenance Orders, I will have sufficient funds to also take [the Child] to travel too.  Most would agree definitely a good to have to travel around the world when you have extra money but it’s a luxury not necessity.

6.  The Respondent, as a father sees fit to avoid his duty to the Court and [the Child] to pay for the maintenance in contravention of the best interests of [the Child] by every unjustified and unreasonable excuses including expand and over generalized the difference of this HK$20 difference by applying a totally different interpretation into the undertaking of the Maintenance Order.  The Respondent make serious accusation against me claiming I failed the undertaking to provide the amount of the monthly school tuition for school year 2021-2022 was HK$15,980, which is not above HK$16,000.  He done that without regard to the actual background against why the Maintenance Order was made.  The Respondent continuous (sic)  to expand this HK$20 difference to overshadow the fundamental reason of why Deputy District Judge M. Lam asked me to provide the Respondent with new tuition for school year 2021-2022 information i.e. the undertaking on the Maintenance Order, which with no doubt I had complied the understanding (sic)  and it was also already a public information on school website.” (emphasis added)

24.  The Mother referred me to a summons filed by her on 6 April 2023 for a Hadkinson order against the Father.  That summons is scheduled to be heard for a call-over on 20 July 2023 at 9:30 am before Her Honour Judge Liu.

25.  In CWG v MH & Ors (Hadkinson Orders and Costs) [2014] HKFLR 461, the Court of Appeal had this to say about the proper procedure for making Hadkinson applications (at 465H-466B):

“16.1 Of course, the crucial issue is whether in the exercise of its discretion, the court should bar the Mother from participating in the appeals by reason of her non-compliance, but first, it is necessary to say a word about the ambit of the Hadkinson application.

16.2 A summons was taken out only in CACV 83/2013 (ie the Mother’s appeal)  and not in the other appeals where she is a respondent. By way of explanation (or perhaps excuse), Ms Eu SC, leading counsel for the Wife, has referred us to some cases where the reports show that a Hadkinson point had been taken without a summons having been issued.

16.3 For my part, I would have thought that bearing in mind the principles of the Civil Justice Reform, an application of such significance as a Hadkinson application should not be made without the other party being duly forewarned by way of summons, with enough time for affidavit evidence to be adduced for and against the making of the order. That has not been done in relation to the appeals in which the Mother is a respondent.” (emphasis added)

26.  It is clear that the Mother’s summons dated 6 April 2023 has been taken out to ask the Court not to hear the Father on his summons dated 6 January 2022 seeking a committal order against the Mother for restricting his access to the Child and not in respect of other applications of the Father (see the Mother’s Affidavit dated 6 April 2023 for the Hadkinson application).   The Father’s application for committal against the Mother has set down for substantial hearing on 11 August 2023.

27.  I also note that at the directions hearing for the committal application on 28 March 2023, the Mother took a Hadkinson point in respect of the Father’s committal application.  Her Honour Judge Liu expressly explained to the Mother that she had to take out a proper application in order to pursue any Hadkinson point.  It was against such background that the Mother’s Hadkinson summons dated 6 April 2023 was taken out.

28.  For the above reasons, I do not consider it suitable to, and shall not, consider the Mother’s argument raised here as a proper Hadkinson application/ objection.

29.  I note that the Mother has already issued a judgment summons dated 9 November 2021 to enforce the outstanding interim maintenance against the Father.  As stated in the Mother’s Affidavit in opposition dated 28 April 2023 (for this present application), the Father is disputing his liability to pay interim maintenance upon a proper interpretation of the relevant Court order.  The same argument was raised by the Father in opposition to the Mother’s judgment summons. 

30.  The proper interpretation of the interim maintenance order is presently being dealt with by Deputy District Judge Josephine Chow by way of preliminary issue out of the judgment summons.  The parties are due to file written submissions on 8 June 2023, followed by submissions in reply on 29 June 2023, with judgment to be handed down in due course (see Order dated 30 March 2023). 

31.  In other words, the issue about the outstanding interim maintenance payable by the Father will be resolved one way or the other upon the outcome of the Mother’s judgment summons. 

32.  Out of an abundance of caution, I shall add that this means that there is another effective means of securing compliance with the interim maintenance order which is being actively pursued by the Mother and as such, the Mother would not have been able to satisfy one of the conditions under the very stringent threshold for seeking a Hadkinson order in any event: see e.g. CWG v MH & Ors, supra, at 464, §12. 

33.  It seems to me that the Mother is trying to entangle the ongoing financial dispute (or in fact other disputes)  between the parties with the present application for temporary removal for holiday purposes when the overriding consideration by the Court is (and should be)  the best interests of the Child.

34.  As wisely pointed out by His Honour Judge I Wong in JRMW v NAV (Temporary Removal)[2018] HKFC 90, FCMC 8504/2017 at §19, minors “should not be penalized for the faults of their father” and, indeed, their parents.

35.  As to the Mother’s argument that the period of travel proposed by the Father exceeds 2 weeks, this is not disputed by the Father.  At the hearing, the Father indicated that he is prepared to shorten the proposed trip to comply with the holiday arrangements under the Custody Order.

36.  I turn now to the Mother’s concern that the Father may not return the Child to Hong Kong upon conclusion of the proposed trip.  I note that the Father has a very good job in Hong Kong with the same employer for a long time.  Upon enquiry by the Court at the hearing, the Father has assets in Hong Kong.  He also has close family members in Hong Kong, including his mother and siblings.  In any event, Canada is a signatory to the 1980 Hague Convention on Child Abduction. 

37.  The Father stated in his application that he and the Child will be staying at a specified address in Canada.  The Father also stated that “there is a plan to visit US for short trip”.  There are, however, no further details provided by the Father for such trip to the US.  In view of the Mother’s concern, I take the view that any permission to be granted by the Court will be for the Child to travel to Canada but not outside Canada.  The Court will also require an undertaking from the Father to stay with the Child mainly in such address as set out in his affirmation.

38.  In the updated social investigation report dated 31 March 2023 (as directed by Deputy Judge Theresa Chow under the Custody Order), it is reported by the social welfare officer (who has been following this case since 2021)  that “[d]espite the fact that she hoped to visit her friend in Canada, [the Child] showed understanding that her parents had not reached consensus about the overseas trip for her”.

39.  The Child is now aged 13.  Given her age and judging from what is reported in the updated social investigation report, I consider it suitable to take into account the wishes expressed by the Child to travel to Canada for holiday.

40.  At the hearing, the Mother also said that she found that the Child showed signs of reluctance to travel with the Father.  However, this is not consistent with what is stated in the updated social investigation report.  Indeed, the Child is observed to have a good relationship with both parents.  Both parties are noted by the social welfare officer to be very caring and loving parents.

41.  Having regards to all the above matters, I have come to the conclusion that it is in the best interests of the Child for the Court to grant permission to the Father to remove the Child out of jurisdiction temporarily for holiday in Canada.  

42.  As to §2 of the Father’s summons, given that the parties have joint custody and shared care and control of the Child, I see no reason why the travel documents of the Child should be kept by the Father in the future.   By an Order dated 9 December 2019, the travel documents have been placed with the Mother’s former solicitors, Messrs Howse Williams.  At the hearing, the parties confirmed that such travel documents have expired and need to be renewed.  The Mother also confirmed that she ceased instructing her former solicitors in September 2021. 

43.  At the call-over hearing on 20 April 2023, the Mother gave an undertaking to the Court and to the Father that she will take steps to renew the Child’s travel documents pending the outcome of the Father’s application. 

44.  In order to enable the Father to travel with the Child for the trip approved above, I direct that the Mother shall provide the Child’s renewed Canadian passport to the Father within 7 days from this Judgment and if the Mother has not yet taken steps to renew the Child’s Canadian passport, she shall provide all necessary documents to the Father within 2 days from this Judgment for the purposes of enabling the Father to obtain a renewed Canadian passport for the Child.  Upon conclusion of the proposed trip, the Father shall hand in the Canadian passport of the Child to be kept by the Court.

45.  Turning to the Father’s request that there should be general permission for him to travel with the Child, given the history of this case, I do not consider suitable to make such an order.  As pointed in CWY v EFO, supra, applications for temporary removal should be considered on a case-by-case basis.

ORDERS

46.  For the above reasons, I give the following orders:

(1)  Leave for the Father to remove the Child out of the   jurisdiction of Hong Kong from 22 June 2023 to 6 July 2023 for travelling to Canada for holiday;

(2)  The Father shall return the Child to Hong Kong on or before 6 July 2023;

(3)  The Mother shall provide the Child’s renewed Canadian passport to the Father within 7 days from the date of this Judgment;

(4)  In the alternative to paragraph (3)  above, if the Mother has not yet taken steps to renew the Child’s Canadian passport, she shall provide all necessary documents for the purposes of enabling the Father to obtain a renewed Canadian passport for the Child to the Father within 2 days from the date of this Judgment;

(5)  Upon conclusion of the above trip on or before 6 July 2023, the Father shall within 7 days thereafter hand in the renewed Canadian passport of the Child to be kept by the Court.

(6)  Penal notice be endorsed on the order.  Personal service of the order on the parties be dispensed with.

47.  The above orders are given upon (a)  the Father’s usual undertaking to return the child of the family; and (b)  an undertaking to be given by him that the Child will stay mainly in the specified address as set out in §1 of his affirmation dated 24 February 2023 (see §36 above).  For the avoidance of doubt, this paragraph should form part of the order given under this Judgment.  The Father has already filed an undertaking on 24 February 2023 giving effect to paragraph 46(a)  of the undertaking. The Father shall file separate written undertaking within 14 days from the date of this Judgment to give effect to paragraph 46(b).

48.  As this is a children’s matter, I make an order nisi that there be no order as to costs, which will be made absolute within 14 days.  If either party wishes to vary the costs order nisi, they should take out a proper summons in the normal way.

The Petitioner acting in person

The Respondent acting in person

FCMC 11528/2019

[2022] HKFC 133

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11528 OF 2019

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J U D G M E N T

(Leave to Appeal)

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1.  This is a determination on the Respondent father (“the father”)’s application for leave to appeal against the orders, or more precisely, the alleged failure to make orders at a Pre-trial Review hearing (“PTR”) by this court on 26 May 2022.

2.  This case has a long and complicated history. The current dispute is on the custody, care and control of the child of family, now aged 12. A trial has already been fixed for 5 days starting from 24 June 2022 at Court No. 40, before Deputy Judge T. Chow. As the Deputy Judge was not available to preside over the PTR, I have stepped in to conduct the PTR, which took place on the respective date of 12 April 2022 and 26 May 2022. At the second PTR (i.e. on 26 May 2022), there were allegations by the father that the Petitioner (“the mother”) had not served a full copy of her affidavit on him and the image of one coloured exhibit was “blurred and illegible”. Similar to what had happened in previous hearing, it was followed by heated and uncontrollable verbal exchanges between the parties making the continuation of a meaningful PTR almost impossible. As I saw it, the allegations of the father, even if true, were not so serious that they could not be rectified or properly dealt with by the trial judge in less than a month’s time. Therefore, I proceeded to give the standard case management directions for the parties’ and witness’ narrative affidavits to stand as evidence-in-chief, their attendance for cross examination, the experts’ attendance for cross examination and the time to be allowed for cross examination.

3.  On 9 June 2022, the father took out the present summons for leave to appeal against the Orders that I made at the second PTR. In gist, what the father was saying was that his case would be prejudiced as he had not been provided with a full copy of the mother’s affidavit.

4.  As the trial will start in 3 days’ time, I have decided to make a determination on the father’s application without waiting for the mother’s response. After considering the father’s draft grounds of appeal and skeleton submissions, I am of the view that the father’s application is without merits. The gist of the father’s application was that I have failed to investigate into his allegation that he had not been properly served with certain documents. Under normal course of a PTR hearing, I would of course try to spend some time on seeing whether such allegation was justified or not. However, that was not possible when the parties, albeit acting in person, decided to turn the hearing into a verbal fight. Their entitlement to the court’s time is not without limit if they have decided not to act in a civilised manner. After all, the matter will come up for trial very shortly and all such irregularities (if any) would be more conveniently dealt with by the trial judge. Therefore, I decided to exercise my case management powers to leave those matters to the trial judge.

5.  I fail to see how the father would have a reasonable prospect of success in overturning such an exercise of the court’s case management powers. There is also no other reason in the interests of justice why the appeal should be heard. The father has failed to satisfy the test as laid down under s. 63A of the District Court Ordinance, Cap. 336 for leave to appeal to be granted.

6.  The father’s summons for leave to appeal is hereby dismissed.

Costs

7.  The mother has yet to respond to the father’s application for leave to appeal. It is my view that a proper order should be no order as to costs.    

The Petitioner acting in person

The Respondent acting in person