DCB v. AB

HCMP 2173/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEDDINGS NO 2173 OF 2014

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R E A S O N S   F O R   D E C I S I O N

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Introduction

1.  The main action concerns wardship proceedings commenced on 29 August 2014 by the plaintiff father (“F”).  The ward of this court is L, a girl born in May 2013, who is now about 18 months old.  There  were two applications before this court:

(i) The application by F for an order that he had/has all of the rights and authority that the law would allow him as father if the were legitimate, pursuant to s3(1)(d) of the Guardianship of Minors Ordinance (“Rights Application”);

(ii) The application by the defendant mother (“M”) for a stay of execution of the order made by Au-Yeung J on 12 September 2014 (“Stay of Execution Application”).

2.  M had filed a notice of intention to act in person on 15 October 2014, the day before the hearing fixed on 16 October 2014.  M did not turn up at the hearing, nor did any legal representatives on her behalf.  After submissions made by F’s solicitor, Mrs Casewell, this court   granted F’s Rights Application, and dismissed M’s Stay of Execution Application.

3.  The reasons for this court’s decision are set out hereinbelow.

Background

4.  F was born and brought up in Australia and he arrived in Hong Kong in January 2009 to work for an insurance group, and has been working and living in Hong Kong since.

5.  M was born and brought up in Singapore and came to Hong Kong in mid 2008 to work as a psychologist and therapist.  According to F, and which had not been denied by M, she had been working and living in Hong Kong for about 6 years, since about mid 2008 until 23 June 2014, although I understand during that period she had travelled to Singapore from time to time for short visits/holidays.

6.  F and M met in March 2010 at a bar in Lan Kwai Fong in Hong Kong and they started dating in April 2010.  F had alleged that due to M’s bad temper, they had broken up on two occasions, but eventually they reconciled in May 2012 and started to cohabit in June 2012.

7.  In August 2012, M became pregnant, and the parties were engaged on 3 January 2013.  The wedding was planned to take place originally on 5 November 2013 in Australia, but was later rescheduled to take place on 21 June 2014 in Hong Kong.

8.  The parties had invited their friends and families to attend the wedding ceremony and to a brunch thereafter to celebrate.

9.  Regrettably, on the day of the wedding, when the parties were on their way to the ceremony, they had an argument when apparently F presented M with, or had mentioned, a pre-nuptial agreement.  As a result thereof, F said M became emotional and it was not possible for them to proceed with the wedding.

10.  According to F, the wedding was rescheduled a week later.  M, however, did not return home on 21 June 2014 and only returned late the next evening.  On 23 June 2014, F received a test message at about 6 pm to inform him that she was about to board the plane to leave with L to Singapore.

11.  It was F’s case that M had taken L to Singapore without his consent and had not returned on 6 July 2014 as originally scheduled (“Removal”). 

12.  According to F, after L was taken to Singapore by M, he had tried everything within his power to have L returned to Hong Kong, and that at first M had said she was scheduled to return on 6 July 2013, but she never did.  Further according to F, M had said she would bring L back to Hong Kong if they could agree on the amount of maintenance, and F had been engaging in negotiation with her.  F had produced a bundle of emails on the figures and negotiations on the return of L.  F had said he honestly thought M would return with L on 6 July 2013. 

13.  It would appear that negotiations failed.

14.  As F had to go to Singapore for business on 21 July 2014, he had arranged with D to see L on 26 and 27 July 2014.  In the end, he did not get to see L at all while he was in Singapore.

15.  When it became clear to F that M was not planning to return with L to Hong Kong, he issued the originating summons in the present proceedings on 29 August 2014 (“OS”), making L a ward of this court and seeking, inter alia, the following orders:

(i) That L be made a ward during her minority until further order;

(ii) That F be ordered to have all of the rights and authority that the law would allow him as father if the minor were legitimate, under s 3(1) (d) of the Guardianship of Minors Ordinance (“Ordinance”), namely the Rights Application;

(iii) F to have custody, care and control of L;

(iv) M to return L to Hong Kong forthwith and be restrained from further removing taking L out of jurisdiction of the court or causing or permitting L to be taken out of the jurisdiction;

(v) Until further order M by herself, her servants or agents be restrained from removing L from the care and control of F;

(vi) M to have access to L subject to the directions of the court.

16.  Upon issue of the OS, F applied before Madam Justice Au-Yeung for directions.  On 12 September 2014, the Learned Judge made an order including the following terms (“Interim  Order”) :

(i) On an interim basis, F do have access to L for 2 weeks in every 4 weeks, provided that in the event that L is out of jurisdiction of Hong Kong, F is to fund the expenses for collecting L from Singapore, or any other jurisdiction, and sending back L to Singapore, or that other jurisdiction, to M for the access.

(ii) L to remain a ward of the court until the next hearing.

17.  As M had not yet been served when the Interim Order was made, the hearing was in effect made on ex-parte basis.

18.  A firm of solicitors, Messrs Ip & Heathfield, filed a notice to act for M on 24 September 2014 and on the same day, the Stay of Execution Application was filed on behalf of M.  An acknowledgement of service was later also filed on M’s behalf on 6 October 2014, indicating M’s intention to contest the wardship proceedings.

19.  M’s Stay of Execution Application was made under Order 32 rule 6 of the Rules of the High Court (“RHC”), mainly on the ground that the Interim Order was obtained ex-parte and without prior notice to her.   She said she had told F the day after the cancellation of the wedding that if the wedding was not going ahead and if the parties were to separate, she and L could not continue to live with him and they would need financial support from him sufficient to maintain them living in Hong Kong, as M had only been working part-time in order to raise L.

20.  M’s Stay of Execution Application was fixed for an urgent hearing before this court on 25 September 2014.  M had instructed Counsel Mr I Wingfield to appear at that hearing.  M was also personally present at this hearing.  At the end of the hearing, this court ordered an interim stay of the access part of the Interim Order until 6 October 2014, and ordered “interim” interim access to L for F, to take place in Singapore between 26-28 September 2014 (“1^st “Interim” Interim Access Order”).  This court further gave directions for filing of affidavits and adjourned the Stay of Execution Application to 6 October 2014. 

21.  As for the Rights Application contained in paragraph 2 of the OS, this court directed that it be fixed for a substantive hearing on 16 October 2014.  The rest of the applications in the OS were adjourned to a further hearing for directions.  No hearing date has yet been fixed for the rest of the applications in the OS.

22.  After the 1^st “Interim” Interim Order, M’s then solicitor filed an affirmation exhibiting a copy of M’s unsigned and unaffirmed 2^nd affirmation.  The original of M’s 2^nd affirmation was never properly filed into court.

23.  It transpired from M’s unsigned 2^nd affirmation that she had taken out proceedings in Singapore on 26 September 2014 seeking, inter alia, sole custody of L, F to have supervised access to L in Singapore and also maintenance for L.

24.  M’s unsigned 2^nd affirmation mainly dealt with interim access, setting out her own proposals. On 6 October 2014, this court ordered F to continue to have “interim” interim unsupervised access to L in Singapore between 13-15 October 2014 for 6 hours on each occasion (“2^nd “Interim” Interim Access Order”), and that the Stay of Execution Application to be adjourned to a substantive hearing on 16 October 2014 (“Hearing”), as F had not had a chance to file his 2^nd affirmation in reply to M’s affirmations, and further Ms Woo, M’s solicitor who appeared at that hearing, had indicated to the court that they were preparing M’s application for stay of the Hong Kong proceedings pending the outcome of the Singapore proceedings.

25.  Then, shortly before the Hearing, M faxed a letter dated 11 October 2014 to the court enclosing a copy of her unsigned and unaffirmed 3^rd affirmation.  That was last Saturday.  On Monday 13 October 2014 copies were then directed by this court to be sent to F’s solicitors and Messrs Ip & Heathfield who were at that time still M’s solicitors on record. 

26.  Eventually, as mentioned earlier, it was only on 15 October 2014, the day before the Hearing, that M’s notice to act in person was filed in court.

27.  However, up until the day of the Hearing, M’s signed and affirmed 2^nd and 3^rd affirmations had not been received by this court nor had they been properly filed in court.  Also, M had not yet filed a proper summons for stay of proceedings.  M should be fully aware of these procedural issues as she was either personally present or legally represented at the previous hearings.

The Rights Application

28.  Section 3  of the Ordinance states that :

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

(a) in any proceedings before any court (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.”

29.  F had produced a copy of L’s birth certificate. F was named as L’s father and M had signed on the register as informant.  Thus, M had clearly acknowledged F was the father of L when applying for L’s birth certificate.

30.  Further, M had stated in her unsigned 3^rd affirmation that she was not disputing paternity, but that according to her Singapore lawyer, there would be no need for any declaration of parental rights for a father of a child born out of wedlock.  It was not clear in what context or on what basis that was allegedly said by M’s Singaporean lawyer. 

31.  In any event, at the Hearing, Mrs Casewell had also produced a copy of a letter dated 30 September 2014 sent by M’s previous solicitors Messrs Ip & Heathfield (exhibit P-1), and in this letter, it was clearly stated that M “agrees that a declaration may be made under section 3 (1) (d) of the Guardianship of Minors Ordinance”.

32.  M had not set out any sufficient grounds for opposing the order being sought by F.  This court was satisfied that F was/is the father of L.  There were no reasons put forward by M as to why F should not have all the rights and authority that the law would allow him as father if L were legitimate.  She had agreed to the Order sought.  

33.  For the above reasons, I granted an order as sought by F in respect of the Rights Application.

The Stay of Execution Application

34.  As I have said earlier, up until the Hearing, there had been no proper application made by M for stay of the wardship proceedings.  It was also not quite clear from M’s unsigned 3^rd affirmation as to what her grounds for the stay of proceedings were.  From what I could gather, she was relying on the fact that Singapore proceedings had been issued by her, she and L were/are both Singaporean citizens and they are now said to be “settled” in Singapore, and that F intends to relocate to Singapore, and thus, according to M, Singapore is the appropriate forum of this dispute.

35.  First of all, F had filed his 3^rd affirmation and had denied therein that there was any intention on his part to relocate to Singapore.

36.  Secondly, M had not denied in her unsigned 2^nd and 3^rd affirmations that since birth, L had been habitually resident in Hong Kong prior to the Removal.  L had only been in Singapore since 23 June 2014.

37.  What is clear is that M issued the Singaporean proceedings only after she had been served with the Hong Kong wardship proceedings.

38.  L was born in Hong Kong and is entitled to residence here in Hong Kong.  She in fact holds a passport issued on 23 June 2013 by the Hong Kong Special Administrative Region of People’s Republic of China.  L has a Chinese name and on the passport, both her Chinese name and her English name are clearly stated and further her nationality is stated to be Chinese. 

39.  L also holds an Australian passport issued on 14 August 2013 on which her nationality is stated to be Australian.

40.  According to F, M had obtained Singaporean citizenship for L by “fraud”, and without his knowledge/consent. Apparently, Singapore does not permit dual citizenship, not to say triple.

41.  Having said this, M clearly had not yet made a proper application for stay of proceedings, and further as mentioned earlier, neither her 2^nd nor her 3^rd affirmation had been signed, affirmed or filed.  This was thus not a matter before this court, nor was it appropriate for the court to deal with this matter at the Hearing.  As a result, at the Hearing, I did not make any order in relation to this matter.

42.  In respect of M’s Stay of Execution Application, M’s Counsel Mr Wingfield had previously lodged a “speaking note” for the hearing on 25 September 2014.  No further submissions had been received from M.  The main grounds stated therein were :

(i) The Interim Order was made without prior notice to M;

(ii) The issue that would in due course have to be determined by the court in Singapore where L had been taken to would be whether the Removal was “wrongful” under Article 3 of the Hague Convention (on the Civil Aspects of International Child Abduction) set out in Schedule 1 of our Child Abduction and Custody Ordinance Cap 512 (“Convention”); and the effect of the Interim Order would be to pre-empt the decisions as to whether the Removal was wrongful under the Convention and in which jurisdiction issues relating to custody, care and control and access should be determined.

43.  As mentioned earlier, the Stay of Execution Application was stated to be made under O 32 r 6 of the RHC.  This rules states as follows:

“The Court may set aside an order made ex parte”.

44.  Thus, in relation to the (i) ground, or “without prior notice” ground, the proper procedure for M should be to issue an application to set aside the Interim Order, or to vary the interim access part of the Interim Order. There was, however, no application made by M to set aside the Interim Order, nor any variation.  In any event, M had since been properly served.

45.  As for the (ii) ground, whether the Removal was wrongful under Article 3 of the Convention would depend on (a) whether the Removal was in breach of F’s rights of custody; (b) whether L was habitually resident in Hong Kong prior to the Removal and (c) whether at time of Removal F’s rights of custody were actually exercised, and would have been so exercised but for the Removal.  Whether in M’s 1^st affirmation, her unsigned 2^nd or 3^rd affirmations, she had never challenged F’s case that L was habitually resident in Hong Kong prior to the Removal.  She had also agreed to an order in terms of the Rights Application.

46.  In any event, there had not yet been any application made by F under the Convention. 

47.  The main part of the Interim Order was in relation to interim access only.   M herself had accepted F should have interim access.  As to the part relating to L remaining a ward of this court, L became a ward immediately upon issue of the OS.  All Au-Yeung J ordered was for this to continue until next hearing.  The rest of the applications in the OS had also been adjourned.

48.  Having considered the terms of the Interim Order, I was of the view that the Interim Order would not have the effect of pre-empting a full hearing on matters under Article 3 of the Convention.

49.  As for the terms of the interim access, the 2^nd “Interim” Interim Access Order had expired. 

50.  At the Hearing, F was prepared to file a signed written undertaking that if he were to exercise his access rights to L under the Interim Order outside Singapore, he would return L to M’s present address after each period of access, until further order (“F’s Undertaking”)

51.  As I had pointed out to M’s legal representative at the last hearing, in relation to M’s arguments that any access should be supervised, I had said in previous hearings that I did not see any sufficient grounds to support M’s arguments for supervised access.  F had said in his 1^st affirmation that he had taken care of L for 6 weeks in March and April 2014 when he was on garden leave between jobs.  F had also said in his 1^st affirmation that he had taken L on her own to Nicaragua for a holiday when L was only several months old, without M or any helper.  M had not disputed these allegations in any of her affirmations.

52.  Having considered all the evidence presently before this court, and subject to F’s Undertaking, I saw no sufficient reasons as to why the execution of the Interim Order should be stayed.  I thus dismissed M’s Stay of Execution Application, subject to F’s Undertaking.

53.  I had ordered costs of both applications to be reserved.

54.  On 6 October 2014, I ordered L to remain a ward of this court until further order.  For avoidance of doubt, she continues to remain a ward of this court until further order.

55.  I understand that there will be a hearing in the Singapore Court on 21 October 2014 and a copy of these Reasons may need to be produced therein.  I therefore authorise the publication of these Reasons subject to parties’ names and the ward’s name being anonymised.