M, DR v. K, RP

FCMC 4659/2020

[2022] HKFC 227

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4659 OF 2020

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J U D G M E N T
( Ex Tempore Decision on Removal)

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1.  This is an application by the Petitioner Mother (M)  to bring the two children of the family, being twin daughters, age 4, for vacation to India from 16 December 2022 to 4 January 2023.

2.  Submissions has been received by her counsel; but none from the Respondent Father (F).

3.  The F’s affidavit in opposition suggests that M may be a flight risk.  He further submits in court that he would normally have been entitled to half of the children’s holidays.  He also submits that he has made a lot of efforts to discuss the vacation proposition with M but to no avail.

4.  In court, the F confirms that per paragraph 6 of the M’s submission, he has no objection in principle to the children going on this vacation save that:

-  he asks to be on the same flight to and back from India

-  he asks for shared care with the M during the duration of this holiday

-  he asks to keep the children’s passport on arrival in India

5.  F registered the Court’s “general removal restriction order” with the Immigration Department in around March 2022.

6.  F refers to a previous ex parte application by M to go to India in March 2022 which was turned down by HHJ G Chan for lack of urgency.  As it was considered under different circumstances, I have not taken this factor into consideration.

7.  Apparently M tried again to take the children away in the summer but was turned down by F with, in M’s case, no specific grounds.

8.  Referring to the F’s affidavit in opposition, I do not find any evidence to support allegation of flight risks.  Based on the M’s case, she has ties in Hong Kong and has also recently acquired her own residence in Kennedy Town.

9.  My consideration of this Summons rest on what is in the best interest of the children, and any balancing factors I need to consider based on the F’s case.  I am of the view that after such a long time with travel restrictions, a vacation must in the best interest of the children, and even more so with regard to opportunities to spend time with extended family.

10.  As this is the M’s time with the children on a holiday, I do not accept that F should be on the same flights or even be sharing time during the same holiday.  M’s counsel has also pointed out that as F’s access at this time is supervised, with staying access suspended, shared time with the F over these holidays in a foreign country would not be acceptable to M.

11.  However, I accept that the F has been deprived of half the usual time he has with the children as holidays are shared.  To that end I have asked M to make proper proposals for makeup time with the F. The offer made by  M include addition time to F from 5-8 January 2023, and the Easter holiday in April (19 days)  subject to the CDR hearing in February 2023, is not acceptable to F.  He maintains his position that the holidays in India will be shared, with 9 days to each of the parties.

Decision

12.  I grant M’s application and give leave for the children to leave the jurisdiction HK for the duration of the time specified in the Summons.

13.  For the avoidance of doubt, F is not to share this holiday with the M in India.

14.  No Order as to costs.

15.  Make up holidays for F is to be considered at upcoming CDR in February 2023.