BGPB v. KSW

HCMP 1922/2020

[2023] HKCFI 1476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1922 OF 2020

________________________

____________

____________

________________

J U D G M E N T

________________

A.  INTRODUCTION

1.  This is the substantive hearing of 2 summonses taken out by the Plaintiff Father (i) on 16 February 2023 for defined shared care and control of AB of the family; and (ii) on 12 May 2023 for summer and Christmas holiday arrangements in 2023.

2.  The background to this case can be found in this Court’s judgment dated 1 April 2021.

3.  Briefly, the parties are the Father and Mother respectively of the subject child (“AB”), born in 2014 out of their cohabitation. The Father was brought up in France. He has been living in Hong Kong for 14 years and is a permanent resident here. He is currently working in a bank, with flexible working hours and can work from home. The Mother was brought up in Australia. She has been living in Hong Kong for over 10 years with a tourist visa. She is a homemaker.

4.  The Father used to have a close bond with AB, being involved in every aspect of AB’s life and education. In March 2020, AB (then aged 6), went to Australia temporarily with the Mother, with the consent of the Father, due to COVID-19. However, AB was unilaterally kept by the Mother in Australia despite protest of the Father.

5.  The Father took proceedings in Hong Kong. On 6 January 2021, this Court gave an interim order for joint custody and shared care and control of AB. The Mother was ordered to return AB to Hong Kong, but she did not comply.

6.  On 30 March 2021, AB was made a ward of Court. This Court ordered, amongst others, that:

(1)  the Father shall, pursuant to section 3(1)(d) of the Guardianship of Minors Ordinance, Cap 13, be granted all the rights and authority that the law will allow him as a father;

(2)  joint custody, and shared care and control be granted to the parents; and

(3)  the Mother forthwith return AB to Hong Kong.

7.  After taking custody proceedings in West Australia which failed and an appeal which also failed, the Mother eventually returned AB to Hong Kong in May 2022, after AB had been separated from his Father for over 2 years.

8.  On 17 March 2023, this Court granted an interim order, giving defined access including staying access to the Father (“Interim Order”).

(1)  The Father has day access on Tuesday and Thursday from 3:10 pm to 7:30 pm. On Week 1, he has staying access from Saturday 10:30 am to Sunday 7:30 pm. On Week 2, he has day access on Saturday from 10:30 am to 10 pm.

(2)  The Father was also granted staying access for amongst others, the Easter holidays.

9.  The parties have had difficulties in agreeing care and control. It is in the best interests of AB for there to be a detailed and final care order and that these proceedings be brought to an end.

10.  The parties have agreed many terms. There are 5 outstanding issues tabulated below:

Table 1

	Issue	Father’s suggestion	Mother’s suggestion
1.	Term time access and when to start	On a bi-weekly cycle of 2-2-5-5	Stage 1: Start with a bi-weekly cycle giving the Father up to 3 days’ care after school Stage 2: 2-2-3 biweekly cycle to be agreed
2.	Single-day holiday issue – to be shared equally by each party taking turns	With staying access; the parent having staying access shall pick up AB from School on the preceding school day and send him to School on the school day following	No staying access
3.	Summer vacation for 2023 – each parent to have half	Agreed	Mother will take AB to France and hand over to the Father at XXX on XXXX at XXXXXXXXXXXXXXXXXX in France
4.	Christmas holidays for 2023	To Father	To Mother
5.	Renewal of AB’s passport	To be renewed	To be renewed, adding the Mother’s name as surname of AB

11.  The Social Investigation Report (“SIR”) prepared by Ms XXXXX Lau supports the Father’s proposals on term time access.

B.  INTERIM ARRANGEMENTS

B1.  Residence and care time

12.  The Father has provided residence for the Mother and AB on their return to Hong Kong. The Father and the Mother live just a few minutes’ walk from each other in XXXXXXXX.

13.  This Court found that the Mother had not given the Father the contact with AB she reasonably could and should have whilst in Australia: Judgment, §§34-35, 81-82.

14.  Back in Hong Kong, the Mother continued to limit AB’s time with the Father so that he was only able to spend 2 evenings during the week with AB after school and one day during the weekends.

15.  Between June and October 2022, the Mother had only allowed the Father 4 occasions of overnight access to AB. Those occasions went smoothly but the Mother was slow to allow more occasions, under the excuse that AB “could choose”.

16.  Attempts on mediation over a defined timetable was not successful.

17.  Since the Interim Order, the Father has been picking up AB from school. AB spent Easter holidays of 15 days with the Father and was properly cared for. The parties communicated and there had been 3 occasions during those holidays when AB went back to the Mother on the 4, 12 and 13 April.

B2.  Schooling

18.  Since his return to Hong Kong, AB has been attending primary school at the XXXXXXXXXXXXXX School (“the School”) in the French stream since early July 2022. He does not meet the requirements necessary to change to the international (English) stream and is on waiting list.

19.  Having left Hong Kong for over 2 years, AB understandably lags behind in French. His French teacher, Ms B, noted AB’s “significant difficulty engaging in class activities at the beginning in French class…In spite of having a group of friends in class, he looked pretty stressed and depressed sometimes in French class.” (§15, SIR)

20.  On 26 October 2022, the school counselor advised the parents that AB was having “dark thoughts and guilty feelings” about the parental disagreements and suggested having a clear defined parenting/framework so that AB would have certainty and structure.

C.  THE PARTIES’ PROPOSALS

21.  The proposals have been set out in Table 1 above. On term‑time care and control, the Father proposes a 2-2-5-5 approach to start now.

Table 2

Week 1	Mon	Tue	Wed	Thu	Fri	Sat	Sun
	F	F	M	M	F	F	F

Week 2	Mon	Tue	Wed	Thu	Fri	Sat	Sun
	F	F	M	M	M	M	M

22.  The Mother claims that after several months seeing the treating counsellors, AB still has trouble adjusting. She does not dispute an eventual move to a 50:50 biweekly schedule. She, however, suggests a two-stage approach, the 1^st stage with 3 days’ care to the Father for 4 months and then move to a 2-2-3 schedule in stage 2 (subject to review and discussions with the mediator/counsellor).

Table 3

Stage 1
	Mon	Tue	Wed	Thu	Fri	Sat	Sun
Wk 1	F	M	M	F/M	M	F	M
Wk 2	F	M	M	F/M	M	M	F
Wk 1	F	M	M	F/M	M	F	M
Wk 2	F	M	M	F/M	M	M	F

Table 4

Stage 1
	Mon	Tue	Wed	Thu	Fri	Sat	Sun
Wk 1	M	M	F	F	M	M	M
Wk 2	F	F	M	M	F	F	F
Wk 1	M	M	F	F	M	M	M
Wk 2	F	F	M	M	F	F	F

23.  Schooling is a major issue in this case that affects term-time access. The Mother’s unilateral retention of AB in Australia for over 2 years had adverse impact on AB’s language ability in French. To help remedy this, the School has provided dedicated support with weekly small group sessions and follow up by teacher.

24.  The Father wants AB to stay in the French stream to learn more about French, its culture and history. The Mother is concerned about the stress and anxiety that AB has been undergoing at the School, which is having a severely negative impact on him. She deposes that AB has begun complaining of tummy aches, headaches, and does not wish to go to school. He has also experienced panic attacks. She says that the Father has chosen to ignore her views. He has similarly disregarded the explicit warnings and recommendations of AB’s treating counsellors (detailed in Section E).

25.  The Mother submits that the Father’s position does not appear to be in accordance with AB’s best interests. The Father maintains this position, prioritizing his values, when AB is evidently facing very real and serious difficulties causing anxiety and stress to the point of AB pulling his hair out. If AB is experiencing crippling difficulties, to the point of exacerbating issues regarding his connection and trust of the Father (indicated in the professionals’ views below), she suggests that the Father should consider alternative options and for the long term welfare of their relationship. She requests the Father to discuss with her other English schooling options for the 2024 academic year.

D.  AB’s VIEWS

26.  The parents agree that I should not meet AB. They have concerns of extra conflict and stress on AB. They have had the full opportunity to present their evidence. I also have the benefit of professional views from a counsellor appointed by the School (“G”), one treating counsellor of AB (“O”), a child psychologist (“DP”) engaged by the Father, and the Social Welfare Officer (“Ms Lau”) who prepared the SIR. The 4 of them have independently presented AB’s views with their advice. I therefore decided not to interview AB.

E.  VIEWS OF THE PROFESSIONALS

27.  The 4 professionals gave a consistent view on the stress and anxiety that AB has been going through at School for a period of months, after his return to Hong Kong. It was about his catching up on French and the impact on the father-son relationship. AB has started seeing G and O since about November 2022, after the school informed the parents of his “dark thoughts and guilty feelings”.

E1.  Counsellors’ views

28.  G has been having weekly meetings with AB. In an email dated 24 February 2023 from G to the Father, G stated:

“I am meeting with AB every Monday. Honestly, I haven’t seen a lot of change in his mood. He still appears sad…He shares that he doesn’t like the school, does not like the teachers or his classmates. He pulled out his hair on Sunday night as he was so scared of going to school the next morning.

He says he has expressed his frustrations to you, [F], and I think he keeps hoping for a change. When I asked him what daddy said, [AB] said ‘he doesn’t listen to me’ (about his frustrations with the school). In one session he also said, ‘daddy says I am on waitlist’ for the international stream. He appears confused as if he is waiting for a change to happen and thinks this is temporary. I’d suggest being open with him about what the plan is for the foreseeable future and then giving him time and space to grieve for his losses. And evaluate how important is the French stream for you – knowing that he is struggling mentally and emotionally.”

29.  Copied in the e-mail from G, O replied:

“Yes, I agree with all of what [G] has noted…I would very much support trying to transfer him to the international stream as this will likely improve his mood and his trust/connection with dad.”

30.  The Father has consulted a child psychologist (“DP”), who takes the view that AB’s main challenge at school stems from his challenges with the French language, and that guiding AB towards fluency would be the best way to help him.

E2.  Ms Lau’s views

31.  AB has directly asked Ms Lau to be moved to the English stream as he found learning English easier and had more fun (§27, SIR).

32.  Ms Lau confirms the positive and affectionate relationship between AB and the Father and Mother, respectively. She finds that:

(a) “Both parents have worked hard and tried their best to co-operate and handover the son’s access smoothly and flexibly during the past years. Their great efforts demonstrated their strong commitment and enthusiasm to safeguard the best interest of AB, assume their parental role and provide a stable and supportive environment for AB.” (§30, SIR)

(b) “In general, both parents were satisfied with the current access arrangement and they managed to communicate with each other effectively.” (§18, SIR)

33.  Ms Lau also stated:

“27. [AB], aged 8, was a pleasant, expressive and sentimental boy. He understood that his parents had been separated and would not live together again. He said he enjoyed his time with the mother and felt more relaxed and comfortable with her…On the contrary, he felt nervous and a bit boring with the father. He knew his father loved him, but he also felt scary to [“scared of”] the father sometimes as he had the unpleasant encounter with the father in Japan when he was 4-year-old. He did not wish spending too much time with the father at present and hoped to rebuild their relationship gradually…”

“31. …both parents should be prepared for flexible adjustment of the care arrangement, geared to the changing needs of AB in different developmental stages so as to soothe his stress and anxiety.” (§31, SIR)

34.  Ms Lau has not elaborated on what “the unpleasant encounter” was, but the Mother points out that the relevant event in Japan occurred when AB was 6 years old. That AB still has fears surrounding this event is a point of concern not fully (or properly) explored by Ms Lau in the SIR. Shortly after that event, AB was brought to Australia and separated from the Father.

35.  The Court is grateful for the School and the professionals’ independent views and advice although, without disrespect, they are not binding on the Court. The Court looks at all the circumstances holistically to consider what orders to make in the best interests of AB.

F.  ISSUE 1 - TERM TIME ACCESS AND WHEN TO START

36.  This issue is closely tied to the emotional struggle that AB has in tackling his French. Apparently, he requires ongoing support from independent professionals to continue to express and process negative emotions he is experiencing. He also requires academic support if he remains in the French stream.

37.  The Father has all along been the only parent supervising AB with his homework. Knowing AB’s struggle and with the advice of DP in mind, the Father has made changes. He has been encouraging AB to read French books he likes, supervises his homework with a focus on reading and reading him books in French during dinner and before sleeping. The Father faced limitation in that he had irregular access. Even under the Interim Order, he only has 2 weekdays, each for 4 hours; and staying access on alternate weekends to help AB. Nevertheless, he managed to maneuver his work schedule to match the days of care so that he could maximize the results. He has been very dedicated and hands on.

38.  On 2 December 2022, at a meeting attended by teachers and counsellors, the School informed the parents that AB had made great progress and the “alarming state identified in his counselling session on 26 October 2022 was behind him” although he was still behind in French classes.

39.  Unfortunately, the mother has not been supportive of AB’s efforts to improve his fluency in French. She wrote to the school on 8 February 2023 to “the vehemently object” to AB receiving extra language support.

40.  That was not in line with the School’s attitude, as shown in the School’s email to her dated 9 February 2023:

“[AB] will benefit from the [School] teacher’s support in class, in order to help him better understand French during class time… The objective here is to offer him adapted teaching so that he can consolidate his language skills, which he needs in mathematics, writing, or any other discipline…

As long as AB is not supported in his schooling by his two parents, he will not feel well… It is essential that all members of the family adhere to the schooling project, whatever it may be.”

41.  There then followed the emails of G and O in February 2023.

42.  Since the Interim Order was made on 17 March 2023, the Father has noticed further improvement as a result of his being able to spend significantly more time with AB during Easter. The Mother has not raised issue with that access.

43.  Ms Lau also reports that AB is now doing much better at school although he still has stress.

“[AB] though had significant difficulty engaging in class activities at the beginning in French class, under his efforts, he made amazing progress and was getting comfortable in French currently. In spite of having a group of friends in class, he looked pretty stressed and depressed sometimes in French class. Comparatively, [AB’s] father was more involved and concerned about [AB’s] school activities and homework. He supported [AB] and helped him to make improvement at school. [AB’s] English and French teachers commented that [AB] is perfectly able to thrive in both languages and follow the French curriculum as long as he received his parents’ supports.” (emphasis added)

44.  Ms Booth, counsel for the Mother, points out that Father-3^rd[1] was filed on 16 February 2023, §11 of which mentioned the meeting with the School on 2 December 2022. Despite the alleged improvement, G and O attending AB for 4 months still sent out their emails to the Father, expressing the views that AB’s condition had not improved. The SIR that was prepared afterwards stated that AB was still stressed and depressed. Ms Lau has not spoken to the counsellors to follow up on AB’s condition. Further, Ms Lau thought that the Mother had no objection to the Father’s proposals on defined shared care arrangement but that was on a wrong basis. The Mother has expressed a wish for a gradual, child focused approach instead, that takes into account AB’s views, as well as his mental and emotional state, before transitioning between Stages, and that he be given time to adjust to any changes in his care arrangements. She invites the Court not to accept Ms Lau’s recommendation but adopt the Mother’s two‑stage approach, which would be consistent with Ms Lau’s views that the parties should maintain a flexible approach to adjustments in AB’s care.

45.  Ms Booth submits that the Mother’s proposals in Tables 3 and 4 represent an increase from the current access that the Father has. This would facilitate AB’s adjustment to extended periods in the Father’s care during term-time, respecting the Father’s wish to be increasingly involved during the week. Both parties would have frequent and regular access with AB, including weekend access. There is also consistency in this schedule because save for alternating weekends, Mother and Father have the same weekdays, which would be of benefit to AB establishing a routine between the two homes.

46.  The benefits of the Mother’s Stage 2 proposals are that: (i) AB has regular, frequent access with both parents (ensuring that his possible anxiety arising from separation is reduced); (ii) both parents equally share both term time and weekend access throughout the month; (iii) both parents have uninterrupted longer weekend time with AB to plan activities, and this allows AB to “settle in” for the weekend; and (iv) drop-offs and pick-ups to take place at AB’s school bus stop, reducing logistical difficulties.

47.  Therefore, the Mother proposes Stage 1 to be in place during term time (excluding long holidays, eg summer holiday); for no less than 4 months. This would approximately be up to November 2023. Depending on AB’s adjustment and feedback by G and O, Stage 2 would be implemented, which would have the effect of a 50:50 split of care time. If AB’s counsellors express reservations as to his adjustment to the changing childcare arrangements, the parties should take this feedback on board and adopt a flexible approach, postponing the implementation of Stage 2 or agreeing to a different arrangement by consent or after mediation.

48.  In considering what orders to make, the Court bears in mind the best interests of AB and takes into account the child’s views and the SIR pursuant to section 3(1)(a) of the Guardianship of Minors Ordinance, Cap 13. The Court will normally have regard to the “welfare checklist”: H v N [2012] 5 HKLRD 498, at §27, Poon J (as CJHC then was). I have considered the items in the welfare checklist individually and holistically.

49.  AB has a French origin and has good relationship with his Father’s extended family in France. AB has been studying French and conversing with his Father in French before he went to Australia. He did not have problem them. Twice a year he goes to Europe to meet his Father’s extended family. It is beneficial to connect him to the French culture and history.

50.  Tackling difficulties is part of life’s lessons and valuable education. The School has, right from the start, alerted the parents to the problem and provided extra help to AB both in terms of counselling and teaching. The School has encouraged the parents to adopt a united front in helping AB.

51.  With a job to take care of and litigation to handle, the Father has not faltered in his efforts to help AB. He has responded to the problem by enhancing French education at home. He has maneuvered his work schedule to suit the care time of AB. I pause to note AB’s view that it was boring to stay with the Father. However, it was understandable in the light of the situation that the Father only has Tuesdays and Thursdays with him for 4 hours only. If time was spent on his homework (half to one hour per day), naturally fun time would be reduced. And yet with the limited care time and with the Father as the only parent to help on French, AB has improved to a point noticeable by the School. One can anticipate that given more time, the Father may bring about further improvement to AB.

52.  It was not as if the Father was standing in the way of AB’s transfer to the English stream. As the Father explained, when AB returned to Hong Kong in May 2022, he had agreed for AB to be schooled in the international English stream. However, there was no immediate vacancy. So AB entered the French stream but is on the waiting list for the English one. As late as March 2023, the School informed the Father that AB did not meet the requirements for the assessment to enter the English stream.

53.  Education has long lasting effect on a child which he may not see at the age of 9. Whilst AB’s voice has to be heard, I do not think it should be determinative of his education especially since his view on French is limited to about 10 months’ school experience in Hong Kong up to the time of the SIR.

54.  Ms Booth submits that the stress that AB has undergone has not improved in the months between June 2022 and February 2023 as revealed by several professionals. However, the chronology of events shows one interesting feature. The emails from G and O were not known to this Court before the Interim Order was made.

55.  The Interim Order had the effect of giving more care time to the Father and more stability. AB had spent Easter with the Father for almost 2 consecutive weeks and, as confirmed by Ms Lau, no issue arose out of that. With a schedule in place and flexibility in the parties, the Father let AB spend 3 days with the Mother. The Easter holidays demonstrated that father and son could cope well with living together for much over 5 days. Great weight should be attached to this experience.

56.  The Mother’s proposals in my view, mean deferring the determination of the schedule. Whilst it is important not to add stress to AB and there should be enough time for transition, there has already been a lot of time for transition. The shared care and control order was first granted 2 years ago on 30 March 2021 but not complied with. There has been a year since AB’s return to Hong Kong to increase care time to the Father. The Mother kept denying the Father care time so much so that the Court had to intervene by the Interim Order. Stage 2 of the proposals still adopts a wait and see attitude. But the Easter experience demonstrates that action is better than discussion in this case. The Father and son have been made to wait too long.

57.  In my view, increasing care time for the Father and having a stable care schedule is in the best interests of AB; the sooner, the better. It would be easier for the Father to balance the homework time and fun time and plan activities for AB. I agree with Mr Marwah, the Father’s counsel, that the Father’s proposals are more in the interests of AB and really achieve a situation of shared care and control in that they:

(1)  Give AB stability; care during the weekdays remain constant and only the weekends would alternate with each parent; this makes it easier to join extra-curricular activities;

(2)  Help AB to re-build his close bond with the Father;

(3)  Plainly meet AB’s educational needs on French and support on homework from the Father;

(4)  Reduce the number of handovers of AB from one parent to another and hence reduce AB’s exposure to parental conflict;

(5)  Preserve and deepen AB’s ties with his Father’s extended family in France with no prejudice to AB’s ties on his extended family in Australia.

58.  I accept the Father’s proposals.

59.  When should the new timetable start? There is still one month to go before the summer holidays start on 1 July 2023. The new school term will start on 31August. AB will practically be out of Hong Kong during the vacation. The Mother’s two stage approach is not practical and will subject AB yet to changes to schedules that are more than necessary.

60.  Adopting the Father’s proposal will give him more time to work with AB on his French immediately and give him more staying access before AB leaves him in July for the summer vacation. The one-month break will give AB some “rest” over any stress of homework. He will pick up French with his Father and his extended family in August before the new school term starts. It will achieve the Mother’s two-stage notion in substance but will enable AB to know in advance of the new school term what changes in care timetable he has to meet.

61.  I therefore order that the Father’s proposals should take effect immediately, subject to Ms Lau first explaining the order to AB in person. I trust that as an independent person who well appreciates the efforts of the parents on AB, Ms Lau will be able to explain the order neutrally to AB, answer whatever questions he has and avoid imposing stress on AB. My clerk shall send a copy of this Judgment to her.

G.  ISSUE 2 – SINGLE-DAY HOLIDAY ISSUE

62.  Staying access gives an evening and a full day for a parent to spend with AB. In line with the term-time care, it reduces conflict between parents and stress to AB when handover is at School. I accept the Father’s proposal.

H.  ISSUE 3 – 2023 SUMMER VACATION ISSUE

63.  The parties have agreed in principle that for each summer vacation the Mother will have the first half and the Father will have the second-half every year.

64.  At this hearing, the Mother proposed that she would go with AB to France instead of to Australia for the summer of 2023.

65.  The parties have agreed that the Mother would take AB to France and hand him over to the Father on XXXXXXXX at XXXXXXX at XXXXXXXXX in XXXXX, France. The Father will come back to Hong Kong with AB. I am satisfied that this arrangement is for the best interest of AB and I make an order accordingly.

I.  ISSUE 4 – 2023 CHRISTMAS HOLIDAY ISSUE

66.  For Christmas holidays, the parties have agreed in principle that the Mother would have access to AB for the even years whereas the Father would have the odd years. The question is whether or not the Father will have the Christmas holidays for 2023.

67.  The Mother points out that the Father already had the 2022 summer and Christmas holidays with AB in France.

68.  The fact was that those 2 holidays were by consent. They were holidays after AB first returned to Hong Kong from Australia in May 2022 and before the Interim Order. The Father invited the Mother to join in the holiday in France. For Christmas, the mother travelled with AB to France with the Father. It was shared care except for 29 and 30 December 2022.

69.  As for the summer vacation, what happened was that from 26 July to 9 August 2022, AB was either with the Mother only or with the father’s parents when the Father left for work in Hong Kong. To the credit of the Mother, she has consistently supported AB’s relationship with the paternal grandparents. Practically, it was a case of shared care in that vacation.

70.  Those 2 vacations must be seen in the light of AB’s 2-year separation from the Father. The Mother’s presence would have eased any stress of AB in missing his Mother suddenly whilst on vacation.

71.  The present Christmas holiday is not to “make up” the Father’s loss of vacation time with AB but what should be in the best interests of AB. In my view, the Father should have his own time with AB and their extended family. In addition, it is in the interests of AB that he is exposed more to French in a fun environment with the Father. The Father should thus have the care time with AB for the 2023 Christmas vacation.

J.  ISSUE 5 – PASSPORT ISSUE

72.  AB’s French passport is due to expire in June 2024. The Father wants it renewed. There is some urgency because there needs to be 6 months’ validity for AB to travel to France this summer.

73.  The Mother agrees that AB’s French passport ought to be renewed but it should be subject to amending the surname of AB to include the Mother’s surname (“surname issue”). This in fact has been the subject matter of mediation between the parties.

74.  The Father does not object in principle to the suggested change of name of AB. However, he points out that there can be implications to the change. For Hong Kong, it may just be the use of a deed poll to effect the change. However, AB has 2 other passports that have expired – Australia and Switzerland. The father needs more time to research on the impact of a change of name.

75.  I do not consider the Father to be obstructive. I agree with him that the French passport shall be renewed immediately. The surname issue shall be dealt with at a later date by agreement, failing which by the Court’s adjudication.

K.  CONCLUSION AND COSTS

76.  For the reasons given and the consent of the parties over the undisputed items, I order as follows:

(1)  The term time access shall follow the Father’s 2-2-5-5 proposal to start immediately, subject to Ms Lau explaining the terms of the order to AB;

(2)  Single-day holidays shall be shared equally by each party taking turns with staying access from the time after school before that holiday;

(3)  The Mother shall take AB to France for summer vacation and hand over AB to the Father at XXXXXXX on XXXXXX at XXXXXXXXXXX in France;

(4)  The Father shall have care of AB for the Christmas holidays for 2023; and

(5)  The French passport of AB shall be renewed immediately.

77.  The parties have agreed for AB to be dewarded and that the restraint on the Mother to take AB out of the jurisdiction of Hong Kong be discharged. They have also agreed on other holidays and terms on implementation of the order. I approve of those terms.

78.  I make an order in terms of the draft order attached to the letter of Withers dated 25 May 2023 as amended by me.

79.  On costs, the Father only asks for costs of the Holiday Summons. I am of the view that the Mother has contested that Summons reasonably. On a nisi basis, I make no order as to costs, save that there be legal aid taxation of the Mother’s own costs.

80.  I thank counsel for their assistance.

Mr Shaphan Marwah, instructed by Withers, for the Plaintiff

Ms Madeleine Booth, instructed by Swainston Solicitors, assigned by the Director of Legal Aid, for the Defendant

HCMP 1922/2020

[2021] HKCFI 1366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1922 OF 2020

____________

____________

_______________

D E C I S I O N

_______________

Introduction

1.  This is to decision with the Summons taken out by the Plaintiff (Father) for an anti-suit injunction to restrain the Defendant (Mother) from pursuing or taking further steps in the proceedings in respect of the child (AB) in the Family Court of Western Australia under file number   /2021 or commencing parallel proceedings in Australia in respect of the custody, care and control arrangement of AB.

2.  By an originating summons filed on 30 October 2020, AB, became a ward of this Court.  At the call-over hearing on 6 January 2021, interim orders were made for AB to be returned to Hong Kong and for interim joint custody, shared care and control of AB to be given to both parents.  The originating summons was set down for substantive hearing on 22 February 2021.  That hearing had to be adjourned because the proceedings had to be stayed upon the Mother’s application for legal aid.

3.  Meanwhile, the Father has issued the present Summons.  The Summons and supporting affidavit had been served on the Mother by email on 19 February 2021.

4.  The hearing of the originating summons was ultimately held on 30 March 2021.   The Mother did not appear and had not filed evidence.  The Court thus proceeded to hear the case and made the order (“the Substantive Order”) that, amongst others, AB should continue to be a ward of court.  The Father was granted all the rights and authority that the law would allow him as a father as if AB were legitimate under section 3 of the Guardianship of Minors Ordinance, Cap 13 (“GMO”).  The joint custody and shared care and control of AB was granted to the Father and the Mother.  The Mother was ordered to forthwith return AB to Hong Kong and thereupon surrender the passports of AB.  The Mother was also restrained from taking AB out of Hong Kong.  The details have been set out in the Reasons for Judgment dated 1 April 2021.

5.  The Summons was adjourned on 30 March 2021 as the Court was concerned as to validity of service on the Mother by email in Australia.  This Court gave directions for the filing of evidence and submission for the purpose of disposal of the Summons on paper.

6.  The Summons and supporting affidavit had subsequently, on 31 March 2021, been delivered to the Mother to the mail box at her residence.  On the same day, copies of the Substantive Order and another order as regards adjournment of the Summons were served on the mother by email and personal service on 22 April 2021.

7.  The Mother has not filed any affidavit or submission in answer to the Summons. 

8.  Being satisfied as to service, I therefore proceed to consider the Summons.

Legal principles on the grant of anti-suit injunction

9.  The established principles for the grant of an anti-suit injunction are as follows:

(1)  The Hong Kong forum should have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with a foreign court which an anti-suit injunction entails.  In an alternative forum case, this will involve consideration of the question whether the Hong Kong court is the natural forum for the resolution of the dispute;

(2)  An injunction should only be granted when the “ends of justice” require it.  Generally speaking, this may occur when the foreign proceedings are vexatious or oppressive;

(3)  The court decides to grant an injunction, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed;

(4)  An injunction will only be issued restraining a party who is amenable to the jurisdiction of the court and against whom an injunction will be an effective remedy; and

(5)  Since such an order indirectly affects the foreign court, in exercising the jurisdiction, regard must be had to comity, and the jurisdiction is one which must be exercised with caution.

Airbus Industrie G.I.E. v Patel [1999] 1 AC 119, at 138G (Lord Goff of Chieveley); at 133 (Lord Goff); and Société Aerospatiale v Lee Kui Jak [1987] 1 AC 871 at 892A-F.

10.  These principles have been followed by the Court of Appeal in Hong Kong: Asha Harkishin Premsingh v HarkishinIsarsingh Premsingh (unrep, CACV 845/2000 dated 30 November 2000), §§22 & 24; Liaoyang Shunfeng Iron and Steel Co Ltd and anor v Yeung Tsz Wang and anor [2012] HKCA 246, CACV 234/2011 (14 June 2012), §85, Hartmann JA; and Compania Sud Americana de Vapores SA vHin-Pro International Logistics Ltd [2015] 2 HKLRD 458, at §§35-45 (11 March 2015).

Whether Hong Kong is the natural forum for the resolution of the dispute

11.  The Hong Kong Courts have clear interest in AB.  He was born in Hong Kong, resided in Hong Kong for 6 years and educated here until the Mother took him to Australia and kept him there against the Father’s wish.  The child’s habitual residence before his removal to Australia has been Hong Kong.

12.  The Father has been working in Hong Kong.  Together with the Mother, they had resided in Hong Kong for 10 years before the Mother went with AB to Australia.

13.  The application by the Father for an order under section 13 of GMO was under HK law.

14.  Hong Kong was and is plainly the natural forum for the resolution of the dispute over AB.  See §§45-52 of the Reasons for Judgment.

Whether the proceedings in Western Australia was vexatious or oppressive

15.  Firstly, the Father commenced proceedings in Hong Kong first in October 2020.  The originating summons was properly served on the Mother but it has been held in the Reasons for Judgment (§§25-31) that the Mother has charted her course to delay the Hong Kong proceedings as far as possible.

16.  Secondly, in the meantime, the Mother deliberately misled the Hong Kong Court, asking for an adjournment to take legal advice when she had already done so in Australia.  She bought time in Hong Kong through her legal aid application and derailed the Hong Kong proceedings. 

17.  Thirdly, it could not be disputed from the reliefs that the Mother sought in the Western Australian proceedings that she acknowledged the rights of the Father as a father.  She could have consented to the Father’s application under section 3 of GMO.  She sought an order for shared parental responsibility in the Australia proceedings, which could have similarly been sought in Hong Kong.  If she had wanted to challenge the Hong Kong Court’s proceedings, she could have done so.  She could also have applied for a removal order in Hong Kong.

18.  Fourthly, taking into account the fact that the Mother was acting in person, the Court had taken the extra step of reminding her that the substantive hearing would proceed, and arranged for pre-hearing testing to enable the Mother to appear through video conferencing, but the Mother neither appeared at the pre-hearing testing nor the hearing on 30 March 2021.

19.  Fifthly, the day before the hearing on 30 March 2021, the Mother has submitted to the jurisdiction of the Hong Kong Court by filing submission which purported to but could not dispute the jurisdiction of the Hong Kong Court. She was “amenable” to the jurisdiction of the Hong Kong Courts and against her an anti-suit injunction would be an effective remedy.

20.  Sixthly, this Court has exercised its jurisdiction by making the Substantive Order.  It was a final order that determined the rights and authority of the Father and the question of custody, care and control of AB. To ask the parties to re-litigate the same issues in a second jurisdiction, after the Mother has refused to participate here, is wasteful of judicial resources.  The Father’s resources, which have been earned for the benefit of the family of 3, could otherwise have been spent on the welfare of AB.

Conclusion

21.  Having regard to the 6 factors above, I consider the Mother’s pursuit of foreign proceedings, with knowledge of the Hong Kong proceedings, to be vexatious and oppressive.  She has been given every opportunity to participate in proceedings in the jurisdiction where AB’s habitual residence was.  The ends of justice require an anti-suit injunction.  This is a personam order directed against her rather than the Western Australian Courts.

22.  I therefore make an order for anti-suit injunction in terms of paragraph 1 of the Summons.

23.  I also grant leave to the Father to disclose the Summons, supporting affidavit, these Reasons for Decision and a sealed copy of this order to the Family Court of Western Australia.

24.  I also grant leave to serve a sealed copy of this order on the Mother out of jurisdiction at her last known address in Australia.

25.  On a nisi basis, the Mother should bear the costs of the Father.

26.  Unless any party objects, with reasons given to me in writing, copied to the other party, this decision will be published with redaction of personal details.

27.  I thank Ms Irving for her assistance.

HCMP 1922/2020

[2021] HKCFI 899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1922 OF 2020

____________

____________

___________________________________

R E A S O N S   F O R   J U D G M E N T

___________________________________

A.    INTRODUCTION

1.  The is the hearing of the Originating Summons taken out by the Plaintiff (“Father”) against the Defendant (“Mother”) for an order that:

(1)  The minor (“AB”) be made a ward of court during his minority;

(2)  The Plaintiff be granted an order that he has all the rights and authority that the law will allow him as a father as if AB were legitimate;

(3)  That the joint custody and shared care and control of AB be granted to the Father and the Mother;

(4)  That the Mother do forthwith return AB to Hong Kong;

(5)  That upon AB’s return to Hong Kong the Mother do surrender to the Court the passports which have been issued to AB; and

(6)  That until further order, the Mother be restrained from taking AB out of Hong Kong or causing or permitting him to leave Hong Kong.

2.  The Mother has been served with the Originating Summons.  She has not filed any evidence in opposition despite the Court giving her the opportunity to do so.  She had been reminded to seek permission to use video conferencing facilities.  And yet it was only 2 working days before this hearing that she requested this Court to allow her to appear by video link.  It was granted.  Arrangements had been made by this Court for pre-hearing testing and actual hearing.  She claimed to be unable to rectify some technical issue and unable to attend the pre-hearing test.  She did not appear but has in the afternoon on the day before this hearing produced a set of written submission without authorities.

3.  In her written submission, the Mother raised 2 issues:

(1)  She did not accept that the Hong Kong High Court (which I shall refer to as the “CFI”, Court of First Instance of the High Court, below) can exercise jurisdiction over AB; and

(2)  The present proceedings have no utility as the CFI’s order is not recognizable or enforceable under Australian domestic legislation.

4.  Given that the Mother had chosen not to appear, this Court proceeded in her absence on the uncontested evidence of the Father, although the Court had also taken into account the written submission of the Mother.  At the end of the hearing, I granted the orders sought by the Father.  Here are my reasons.

B.    THE FACTS

5.  AB was born on 17 October 2014 in Hong Kong out of the cohabitation of the Father and the Mother.  The Father is named as the father on AB’s Hong Kong birth certificate.  AB has a French passport by virtue of having obtained a French birth certificate as being the child of a French national (the Father).  He also has an Australian passport through his Mother.

6.  The parties had had a romantic relationship from early 2009 to February 2014, having first met in Japan.  They relocated to Hong Kong in September 2009 when the Father had a better job opportunity. 

7.  In 2014, when the parties became aware of the Mother’s pregnancy with AB, they agreed that their romantic relationship was over.  However, they decided to continue living together and co-parent the child in a nurturing and stable environment after his birth.  This did happen for 6 years since AB was born until he was taken to Australia.

8.  Save for a short time, the Father has always been in full-time employment, whilst the Mother has remained unemployed.  The parties shared care of AB whilst living together in the same household.  The Father has always been responsible for all the living expenses even till now. 

9.  The Father can be described as a “hands-on” father, who was involved in every aspect of the child, from preparation before birth, witnessing his birth, to daily care after work.  He caused AB to watch French cartoons and spoke to him in French.  AB is proficient in French and it spoke of the good relationship between father and son.

10.  The Father has been very involved in AB’s education.  Only 4 months after AB’s birth, the Father enrolled AB into the bilingual stream of the     (“FIS”) hoping to connect AB with his roots.  The Father attended to all the paperwork for the enrolment. Pending admission to FIS, the parties put AB into a local kindergarten.  The Mother changed her mind after FIS’ presentation and wanted AB to join the international English stream instead.  It was the Father who amended the application with FIS, after yielding to the Mother’s view.  The Father still holds the debenture for a place at FIS.

11.  The parties used to think that AB should continue attending at FIS until he completed secondary school, unless there was a major change of circumstances which may cause relocation elsewhere as a family.

12.  AB has his group of friends in Hong Kong.  He is a sociable child, well-liked by his peers.  He had a lot of play dates which he thoroughly enjoyed.  He had tried various activities like swimming, football, karate, tennis and climbing.  The Father spent time on outdoor activities with him like cycling, scooting, swimming, hiking or looking for animals.  They had lots of games.

13.  As evidenced by the pictures exhibited and messages he has had with AB, the Father has developed a very close bond with AB. 

14.  The Mother has different parenting styles which complemented the Father’s. According to the Father, he and the Mother have developed a “cordial co-parenting relationship”.

15.  Since AB’s birth, the parties had travelled several times a year to Europe and Australia to spend time with the respective family.  The Mother would bring AB to Australia around twice a year for 4-6 weeks for AB to spend time with his maternal family.

16.  In early 2020, there was outbreak of covid-19.  Schools were suspended in Hong Kong since late January 2020.  The family moved to Japan for 6 weeks to stay in a property that the Father had access to.

17.  With the spread of covid-19, the Father agreed with the Mother’s proposal for AB to stay with her family in Perth for her peace of mind.  The parties had agreed that they and AB would spend the whole of July and August 2020 in France for the wedding of the Father’s brother and for AB so spend time with his paternal family.  When that time came, the Mother refused to travel with AB to France and to Hong Kong.

18.  The Father has maintained contact with AB by video calls, initially 2-3 times a week.  They were increased to around 45 minutes per day between 5-6 pm after the Mother decided to stay longer in Australia and refused to bring AB to France for summer as agreed.  The Father and son played the usual games they had in Hong Kong via video calls to increase AB’s concentration in the video conversations. 

19.  The Father has asked the Mother about her return to Hong Kong with AB or relocating to another country together.  However, she has chosen not to respond and refused to promise when she would return.  She did not consider it a good time for decisions and refused to attempt mediation.

20.  Meanwhile, the Mother had enrolled AB in a school in Perth without either the Father’s consent or reference to him.  The Father only discovered it at the end of August 2020 when he saw AB in uniform.  He told the Mother in no uncertain terms that he did not agree to AB living permanently in Australia but the Mother did not respond.

21.  The Father’s doubt as to whether the Mother would return with AB after the pandemic was increased because the Mother was attempting to seek employment in Australia and even arranged for movers to remove some of her favourite belongings from Hong Kong.

22.  The Father considered it prudent to formalize his parental rights in respect of AB.  On 24 October 2020, the Father proposed to the Mother that she should enter into a consent summons under s.3(1)(d) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”) to formalize his relationship as AB’s father.  She ignored his request.

23.  The Father filed the present Originating Summons on 30 October 2020.  By virtue of section 26(2) of the High Court Ordinance, Cap 4, AB became a ward of court on such filing.

24.  At the call-over hearing for the Originating Summons on 6 January 2021, having been satisfied as to service on the Mother, this Court made an interim order along the lines of sub-paragraphs 1(3)-(6) above (“Interim Order”), ie:

(1)  The interim joint custody, shared care and control of the child be given to the Father and the Mother;

(2)  The Mother do forthwith return AB to Hong Kong;

(3)  Upon AB’s return to Hong Kong, the Mother do surrender to the Court all passports which have been issued to AB forthwith;

(4)  Until further order, the Mother be restrained from taking AB out of Hong Kong or causing or permitting him to leave Hong Kong; and

(5)  The Mother and Father do file evidence for the substantive hearing on 22 February 2021.

C.    DEVELOPMENTS SINCE THE ORIGINATING SUMMONS WAS SERVED ON THE MOTHER

25.  It transpired that the Mother has charted her course to delay the Hong Kong proceedings as far as possible.

26.  Firstly, the day before the call-over hearing of the Originating Summons, the Mother wrote to the CFI stating that she intended to institute concurrent proceedings in the Family Court of Western Australia (“FCWA”). Due to the pandemic, she could not come to Hong Kong.  She asked that the hearing be adjourned so that she could obtain legal advice.  It was too late for the CFI to respond before the hearing.

27.  Secondly, on 6 January 2021 at about 10 am, this Court made the Interim Order.  The Australian proceedings were filed at 8:01 pm (Australian time) on 6 January 2021.  The Mother had plainly taken legal advice before she wrote to the CFI.

28.  The Father was not given notice of the Australian proceedings until 9 January 2021 when he was in Australia.  That was the first actual notification from the Mother that she intended to retain the child in Australia.  By then, the Interim Order had been served on the Mother.  The Mother indicated to the Father that she had received the papers for this case but had not made known her position to him.

29.  Thirdly, the Mother applied for legal aid in Hong Kong on 4 February 2021, 2½ months since the Originating Summons was served on her.  It triggered the automatic stay of proceedings for 42 days under the Legal Aid Ordinance, Cap 91. The hearing on 22 February 2021 had to be stayed until 30 March 2021.

30.  It transpired that there was a hearing before FCWA exactly on 22 February 2021.  The Mother never informed the CFI about it.

31.  In view of paragraphs 25-30 above, the Mother had tried to delay proceedings as part of her litigation tactics.

32.  On 19 February 2021, the Father issued a summons for an anti-suit injunction seeking to restrain the Mother from pursuing any proceedings in respect of AB in Australia. 

33.  The Mother was refused legal aid on 16 March 2021.  By no less than 6 letters, Withers (the Father’s solicitor) and this Court informed the Mother that although legal aid had been refused, the Court had not received her evidence in opposition to the Originating summons.  She was reminded that the Court may decide the Originating Summons on the evidence placed before it at the hearing on 30 March 2021.

34.  Insofar as access was concerned, the Father has not been given the access that could reasonably have been given to him.  The Father took unpaid leave from his new employer in order to spend time with AB from December 2020 to January 2021, with weeks of quarantine.  The Mother permitted him only 2 or 3 hours of access every 2 or more days and did not permit any overnight access.

35.  Since his departure from Australia, the Father was no longer allowed daily phone calls with his son.  Instead he was able to talk to AB a few times a week only.  One of the excuses given by the Mother was that AB was not “happy”; “daily calls were too much” and that the Father’s efforts were “intrusive”.

D.   ISSUES

36.  The issues in the present case were as follows:

(1)  Whether the CFI could exercise jurisdiction over AB;

(2)  Whether the CFI’s order is recognizable or enforceable in Australia;

(3)  Whether it was in the best interests of AB

(a)   to grant the Father parental rights;

(b)   to grant joint, care and control to the Father and the Mother; and

(c)   to have AB returned to Hong Kong.

E.    ISSUE 1 – WHETHER THE CFI COULD EXERCISE JURISDICTION OVER AB

37.  It is common ground that at the time the Originating Summons was filed, AB was not in Hong Kong; and the Mother, then the only person having parental rights over AB, was not within Hong Kong.

38.  When the Mother acknowledged service of the Originating Summons on her, she expressly stated that she intended to contest these proceedings “on the grounds of challenging jurisdiction and/or forum.  [Her] filing of this Acknowledgement of Service was without prejudice to [her] right to challenge the jurisdiction of the Hong Kong Court and/or apply for a stay on the grounds of forum non conveniens.  It was expressly stated that [she did] not submit to the jurisdiction of the Hong Kong Court.”.

39.  The Mother raised an issue over AB’s habitual residence.  Her position was that, having been in Australia since March 2020 in her primary care, AB would, by 30 October 2020 (date when the Originating Summons was filed), have lost his habitual residence in Hong Kong.

40.  I am unable to accept the Mother’s contentions for the following reasons.

41.  Firstly, the Acknowledgement of Service was a copy, the filing of which had been rejected by the High Court Registry by letter dated 21 January 2021.

42.  Secondly, although the Mother had indicated her intention to challenge the jurisdiction of the Hong Kong Courts, she had not done it in the proper manner.  She had not eg taken out any summons for stay of proceedings on the ground of forum non conveniens, supported by affidavit evidence.  The application for stay had to meet legal requirements such as: that Hong Kong was not the natural or appropriate forum, that there was another available forum which was clearly or distinctly more appropriate than Hong Kong.  If the Mother could establish these, the Father would have to show that he would be deprived of a legitimate personal or juridical advantage if the action was tried in a forum other than Hong Kong.  With such evidence, the Court would have to balance the advantages of the alternative forum with the disadvantages that the Father may suffer.  See Hong Kong Civil Procedure 2021, Vol 1, §12/8/1.All of these involved factual evidence and legal arguments.

43.  The failure of the Mother to take out a summons to properly challenge jurisdiction was not a procedural slip which the Court could overlook because the Mother was a litigant in person.  It was unjust to the Father who was deprived of the chance to refute her position.  In fact, the Mother appeared to have consulted lawyers because her statement in the Acknowledgement of Service as set out in paragraph 38 above was not something that she could have done without legal advice.

44.  Thirdly, there had been at least 6 occasions when Withers and this Court had reminded the Mother that the hearing of the Originating Summons would proceed. This was a hearing for substantive and not interlocutory matters.  By lodging her submission, the Mother has submitted to the jurisdiction of Hong Kong.

45.  Fourthly, the Originating Summons concerned proceedings under section 3(1)(d) of GMO and wardship proceedings, not proceedings for the return of a child to Hong Kong under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“Abduction Convention”).  This Originating Summons involved local law and not international law.  How these laws were applied is explained further in section G below.  The question of habitual residence of AB was not relevant.

46.  Fifthly, the Mother submitted that it is now generally regarded that habitual residence is a matter of fact and is reflected in the degree of integration by the child in a social and family environment: A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] 3 WLR 761, §§54 and 80, SC.  In the case of young children in the sole lawful custody of the mother, their situation with regard to habitual residence would necessarily be the same as hers: In re J (a Minor) (Abduction) [1990] 2 AC 562, at 579 A-B, HL.  The child in re J was aged 3 at the time of the abduction.

47.  The principles in the preceding paragraph have been adopted in Hong Kong in the case of LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798, at §7.7.  However, in LCYP v JEK, at §7.7(5),Cheung JA also expressly held that there was no legal rule, akin to that in the law of domicile, that a child automatically took the habitual residence of his parents.  Although a child could lose his habitual residence without a parent’s consent, nevertheless, it was clear that parental intent did play a part in establishing or changing the habitual residence of a child, ie parental intention in relation to the reasons for a child’s leaving one country and going to stay in another.  That had to be factored in, along with the other relevant factors, in deciding whether a move from one country to another had a sufficient degree of stability to amount to a change of habitual residence.

48.  Even on the Mother’s legal propositions, as a matter of fact, AB has had full degree of integration in a social and family environment in Hong Kong.

49.  The parents have resided in Hong Kong for 10 years.  AB was born in Hong Kong, at a time when his Father (on full-time employment) and Mother (unemployed) were resident here.  AB was raised in Hong Kong for 6 years and had been attending school in Hong Kong up till the time he departed for Australia.  The school still has a seat waiting for him.

50.  AB went to Australia temporarily due to the presence of covid‑19 in Hong Kong.  The departure of AB from Hong Kong was upon discussion of the Father and Mother and with consent of the Father.  As demonstrated in the messages between the Father and Mother, the Father has always wanted AB to return to Hong Kong but the Mother was reluctant.  The Father has never consented to the relocation of AB to Australia or to stay there longer than was necessary to reduce AB’s exposure to the risk of contracting covid-19 in Hong Kong.  The Mother only first made known her intention for AB to stay in Australia upon serving her proceedings in FCWA on 9 January 2021.

51.  AB has his own social circle of friends in Hong Kong.  He expects to return to Hong Kong “when the virus is over”.  He asked his Father to hide 3 surprises “at home” for him to look for as a treasure hunt when he “returned home”.  He asked the Father about his friends. When the Father bumped into AB’s friends, the Father would have them record short videos for AB, to which AB recorded videos in response.  AB found it strange to go to school in Australia but mentioned that he had to do it because it was the law and he did not want his Mother to get into trouble with the police.

52.  It was plain that AB himself regarded Hong Kong as his home.  Accordingly, even if AB’s habitual residence was relevant, there was no doubt that his habitual residence before departing for Australia and even till now is Hong Kong.  Hong Kong is the most natural forum to determine rights relating to him.

53.  I rule against the Mother on issue 1.  The Hong Kong Court plainly could exercise jurisdiction over AB.

F.    ISSUE 2 – WHETHER THE PRESENT PROCEEDINGS HAVE UTILITY

54.  It is not disputed that a Hong Kong Court’s order over custody, care and control of a child will not be automatically recognized or enforced in Australia.  The converse is also true.  Accordingly, notwithstanding obtaining an order from the CFI, the Father may have to take out proceedings for a “mirror” order in Australia (in this case, from FWCA) to be able to enforce it against the Mother.

55.  However, the authority cited by the Mother in In the Marriage of: Thomas Henricus Marie Hooft Van Huysduynen husband and Monique Sabine Lucille Van Rijswijk Wife [1989] FamCA 84; (1990) FLC 92-120 (29 November 1989), at §49, was actually against her.  In that case, FCWA did take into account the foreign judgments in the court at first instance and the Court of Appeal in the Netherlands where the parties had a family home and the husband had frequent contact with the children after he separated from the wife.  FCWA made an order for custody in favour of the father and gave him leave to take the children out of Australia.

56.  By the same token, a CFI order may not be regarded as a nullity by the FCWA.  As pointed out by the Mother, there was not much material difference in the approach of the FCWA and the CFI towards questions of custody.  It was the welfare/best interests of the child that formed the paramount consideration of the courts.

57.  Further, the order that this Court made would give legal rights to the Father.  They are enforceable rights, at least in Hong Kong.  They give legal status to the Father as AB’s father.  Based on an order granting him custody, the Father may take out proceedings under the Abduction Convention, if so advised.  He may legitimately take part in all major decisions concerning AB.

58.  I rule against the Mother on issue 2. 

G.   ISSUE 3: BEST INTERESTS OF AB

G1.  Applicable legal principles

59.  Wardship proceedings are not adversarial in nature.  The Court acts in a parental, administrative and inquisitorial manner.  Its purpose is to protect the property and/or the person of the ward. Its duty is to act in a way that is best suited to serve the true interests of the ward where there is an imminent or immediate need to afford protection for a child when that protection may not be readily derived from any other source.  If it is necessary, the court will exercise this supervisory jurisdiction over an extended period of time.  See M v Y [2009] 5 HKLRD 597, §4, Hartmann JA (sitting as an additional judge); M v H [2006] 1 HKFLR 196, 225.

60.  Under section 3 of GMO:

“(1) In relation to the custody or upbringing of a minor, …

“(a) in any proceedings before any court (whether or not a court as defined in section 2) 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;

(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other;

(c) where the minor is illegitimate—

(i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;

(ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);

(d) the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.

(2)  Subsection (1)(a) shall have effect as regards any application under subsection (1)(d).”

61.  In approaching s.3(1), subject to the position under illegitimacy, the Court will always put the competing parents on an equal footing.  This equality principle reflects the universal recognition that the long-term best interests of a child are best protected if both parents are, despite the breakdown of their relationship, involved equally.  See H v N [2012] 5 HKLRD 498, Poon J (as he then was), at §18.

62.  In the case of illegitimacy, it remains the case that the unmarried father has no legal parental rights over his illegitimate child but he will have such rights and authority, if any, as may be ordered by the court upon his application under s.3(1) GMO: H v N, §19.

63.  The Court will consider, in particular,

(1)  The degree of commitment which the father has shown towards the child;

(2)  The degree of attachment which exists between the father and the child; and

(3)  The reasons of the father applying for the order.

See C v S, HCMP 929/2017, 12 October 2017, B Chu J, §12, 77-90.

64.  The terms “best interests” is to be given its widest meaning.  It is well established that the courts will have regard to a “welfare checklist” which include a list of non-exhaustive factors like:

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

(b)  His physical, emotional and education 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; and

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

See H v N, at §§27-28.

65.  The Court however, is not obliged to follow this list and set out the findings on each factor one by one.  The checklist is but an aide memoire and is not exhaustive: H v N, §§28-32.

G2.  Degree of commitment which the Father has shown towards AB

66.  In view of the evidence in paragraphs 7-19 above, I had no doubt that the Father was fully committed to AB in every aspect of AB’s life, in terms of fatherly love, education, daily care, communication, nurturing and financial support, to name a few.

67.  Even though AB has, by now, been out of Hong Kong for about a year, the Father has not ceased his attempts to fly to Australia to meet his son when tickets were available and using unpaid leave.  He kept contacting AB through video calls.  The Father has not ceased his financial support of the Mother and AB, notwithstanding that their stay in Australia was against his wish. 

G3.  Degree of attachment which existed between the Father and AB

68.  Again, I have no doubt that there was full attachment which existed between the Father and AB.  As the evidence showed, the Father and son enjoyed each other’s presence.  There was no barrier in their communication even through video calls.  They remained closely bonded together.  In fact, AB longed to see the Father and has kept asking the Father when he could go to Australia.

G4.  Reasons of the Father for applying for the order

69.  The Father deposed that with the alarming number of covid‑19 cases globally and the many uncertainties associated with it, he thought it prudent to formalize his parental rights as AB’s father in case something were to happen to the Mother.  That was a legitimate reason.

70.  He has agreed for AB to travel to Australia with the Mother and stay there as a temporary place of sanctuary but has never agreed to AB locating there permanently.  The Mother had, nonetheless, enrolled AB in a school in Australia without the Father’s consent.

71.  Although before filing proceedings in FCWA, the Mother had not expressed to the Father that she intended to stay permanently in Australia with AB, her actions had created considerable doubt in the Father’s mind that she might decide to do so sooner or later.  The Father therefore sought an order for return to AB before it was too late. 

72.  The Father has tried to avoid litigation and sought the Mother’s consent to give him legal rights as a father under s.3(1)(d) of GMO.  The Mother ignored his request, hence this Originating Summons.

73.  The Mother has not produced any evidence to refute the Father’s case.  I find the 3 tests in C v S to have been met by the Father.

G5.  Other considerations

74.  Section 3(1) of GMO obliged the courts to consider 2 things: the views of a child and any material information in a social welfare report.

75.  In this case, the Father acknowledged the difference in parenting method from the Mother which complemented each other. In fact, the Mother sought similar relief over the questions of custody, care and control in FCWA.  No social welfare report was called for.

76.  I have taken into account the Father’s description of AB as “very vocal and assertive on what he likes or does not like to do, although he is only six years old”.  But for the fact that AB was out of the jurisdiction of Hong Kong, this Court would have preferred seeing AB in person to listen to his views.

77.  Accordingly, post hearing, I have added a term to the draft order that within 3 days of return of the child to Hong Kong, the Court should be notified.  If the parents still have issues over the custody, care and control of AB, the Court may then have the opportunity to see AB and give the necessary directions.

78.  Under the welfare checklist and the principles in H v N, I wish to make some observations.  The pandemic was harsh enough to physically separate loved ones.  It was harsher on the Father and AB to emotionally distance them from each other without full explanation to AB and without seeking his views.  The Mother disregarded the close attachment of Father and son to create what appeared to be fait accompli that AB had been relocated to Australia.  This could not be in the best interests of AB’s physical, emotional and educational needs.

79.  Further, the fait accompli effectively uprooted AB from the social or family environment that he had been used to for 6 years.  It also violated the equality principle between parents. 

80.  The Mother may have thought that she was in law the sole legal custodian of AB entitled to relocate the child to Australia.  However, she was aware that the Father did not consent to this.  Under Hong Kong law, it has been held that even in the case of an illegitimate child, the mother should have made a proper application to the Court for relocation instead of taking the matter into her own hands: LCH v JMC[2019] HKCFI 1894, §43, B Chu J (a case decided in the context of the Abduction Convention). 

81.  Further, even if the Mother should have sole custody of the AB, she should still have given generous access to the loving Father.  Restricting access was entirely unreasonable on the part of the Mother when one considered the history of the child’s upbringing with the Father’s presence and that the Father had not seen his son for 8 months since AB was taken to Australia.  Her attitude deprived father and son of the precious opportunity of bonding and quality time.

82.  The Mother’s conduct over access made it clear that the longer the child were to stay in Australia, the greater the restriction she would impose on the Father’s access to the child.  Her failure to support the father and son relationship might be under the mistaken belief that it would improve her litigation position in Australia.

G6.  Findings on best interests of AB

83.  Taking into account all the matters in Section G, it was in the best interests of AB to legalize the rights of the Father over AB so that the Father can participate in matters concerning AB.  It was also best that AB be returned to Hong Kong, where his home is and where the best jurisdiction to decide questions concerning his interests is.

H.   APPROPRIATE ORDERS

84.  AB should continue to be a ward of court for the time being as there are still issues concerning the anti-suit injunction to be dealt with.  The Court also wants to exercise supervision over the child at least in the short period after his return to Hong Kong.

85.  Given that the Father has passed the tests in C v S, the Father should be given all the rights and authority that the law would allow him as a father as if AB were born in wedlock.  The long-term interests of AB will be best served by both parents being equally involved.

86.  The parties have been observing the equality principle in co-parenting AB in a loving and stable environment, notwithstanding their cessation of romantic relationship, for about 6 years in Hong Kong.  Even the Mother is seeking an order for shared parental responsibility in FWCA, an acknowledgement of the Father’s role and his past contribution as a parent in the life of AB.  Ordering joint custody, care and control was to maintain the status quo and to meet the expectations of both parents.

87.  Further, according to the Father, it came as no costs for the Mother to stay in Australia as she has had access to the joint account and the credit card that he gave her.  However, his access to AB was limited by available flights, the leave he could obtain from his employer and now the “permission” of the Mother.  It was not in the best interests of AB if his physical contact with the Father was so limited.

88.  It appears that Australians are permitted to travel outside Australia for a compelling reason (such as to comply with this Order) for 3 months or longer.  There is no ban on people entering Hong Kong from Australia, although they will still be subject to quarantine on arrival.  There are now direct flights from Perth to Hong Kong available.  The Father is willing to pay for the air tickets of the Mother and AB.  He is also willing to provide separate accommodation for the Mother upon her return to Hong Kong.  He would use his best endeavours to have the Mother’s visa for entering Hong Kong renewed, since it had expired in around June 2020.

89.  I could see no barrier that could hinder the child’s return to Hong Kong.  The Mother should be restrained from taking him out of Hong Kong until further directions of the Court.

I.     CONCLUSION

90.  For the reasons given, I have therefore made the orders as sought in paragraph 1 above. 

91.  On costs, the Father sought no order as to costs.  I hope the Mother would appreciate that this was a very generous gesture, given the Father’s previous attempt to try mediation and to get her to sign a consent summons so as to avoid legal proceedings.  She has not been cooperative, resulting in the present Originating Summons proceedings.  But for the Father’s generosity, the Mother would have to bear costs.

92.  This Court also hopes that the parties could work things out instead of spending huge costs on litigation, which could have been saved for the son’s education and travels.

93.  I thank counsel for her assistance.

J.     REMINDERS ON PRACTICE TO PRACTITIONERS

94.  The practice of indiscriminately copying correspondence for a hearing (commonly found in matrimonial and family cases) must stop.  In the present case, the relevant correspondence has already been produced in Bundle B and yet Bundle C containing all correspondence was produced. In Ms Irving’s submission, only 4 pages (out of over 100) in Bundle C was referred to.  It was a waste of client’s money.

95.  The Court has no duty to sift through all correspondence to pick out what is relevant.  That is the job of the legal representatives.  Only relevant documents should be included in hearing bundles.

96.  Unless Withers shows cause by letter to me within 14 days of the handing down of this judgment as to why it should not personally bear the costs of producing Bundle C, Withers should bear such costs personally.  If such costs have been paid by the Father, those costs should be repaid to him.