L, ACHY v. Y, C

FCJA 2057/2016

[2022] HKFC 94

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION NO. 2057 OF 2016

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

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

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

D E C I S I O N

(VARIATION OF SHARED CARE)

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

1.  On 22 February 2022, the 2^nd Applicant (“the mother”) issued a summons asking for the following orders:

(1)  The shared care of the daughter (“O”) to be varied so that the hand-over of O to be changed from once every 3.5 days to once every 7 days or 14 days;

(2)  The receiving parent must produce a negative Covid test result before receiving O.

(3)  Both parents must observe all Covid prevention regulations pronounced by the government when caring for O; and

(4)  The 1^st Applicant (“the father”), his girlfriend and his mother be stopped from brain washing O.

2.  The father opposes the application.

3.  The first return date of the mother’s summons was on 10 March 2022, falling within GAP. As a result, I directed both parties to file their written submissions for the summons to be dealt with on paper. The father lodged his written submissions on 6 April 2022, but none was received from the mother. Be that as it may, I now proceed to consider the mother’s application despite her failure to comply with the court’s directions.

4.  I note that the mother was acting in person and her summons was issued in the Chinese language. However, I also note from the case files that the proceedings were previously heard by Judge Melloy in English and most of the documents were also prepared in that language. Therefore, I have decided to give my decision in English as well. If the mother requires interpretation of this decision, she should contact my clerk for the necessary arrangement to be made.

5.  After considering the mother’s application and all the circumstances of this case, I am of the view that her application has to be dismissed. These are my reasons:

(1)  This case has a very long history. After an 8-day trial, Judge Melloy granted a very detailed order on custody and shared care on 14 June 2019 which included, inter alia, the following arrangements:

(i)  Both parties shall have joint custody of O; and

(ii)  They shall also have shared care of O during term time in that O will be in the care of the father from Sunday 9:30am until Thursday morning when he takes O to school, and the mother shall have O after school on Thursday until Sunday 9:30am.

(2)  The mother now asks for the hand-over to be changed from a 3.5-day interval to a 7-day or 14-day interval because of the public health situation. I accept that the public health situation in late February 2022 was serious, but I do not think that was a good enough reason to justify a change to the hand-over interval. Furthermore, by the date of this decision, the public health situation has obviously stablished and there is even less reason to change the hand-over arrangement.

(3)  I also agree with the father’s submission that the requirement for the production of a negative test result before hand-over is too draconian. As both parents will have the best interest of O in mind, I am quite sure that they will adopt the most appropriate measures to protect O. A mandatory requirement for either parent to produce a negative test result before exercising his or her care of O is unnecessary.

(4)  The mother’s third application is that both parties must comply with all Covid prevention regulations when exercising care of O. From the mother’s supporting affirmation, there was allegation that the father had breached the government restriction by having gathering involving more than 2 households. The father denies this, saying that the 3-household gathering took place before the imposition of such restriction. I see no point in making any adjudication on this factual dispute. Such restriction on household gathering is no longer in place and I will say no more on this.

(5)  The last application of the mother is that the father, his girlfriend and his mother should be stopped from brain washing O. What she meant was that the father and his girlfriend had passed very inappropriate and negative comments on her in front of O. Again, the father denies this. I do not see any concrete evidence on parental alienation, or “brain washing” in the words of the mother. Moreover, the relief requested by the mother is akin to a prohibitory injunction not only against the father, but also against a non-party, namely the father’s girlfriend.  I do not think this court has jurisdiction in granting such a relief.

6.  For the reasons above, the mother’s summons is dismissed.

7.  The father asks for costs against the mother.

8.  Despite the fact that the mother failed in her application and some of her supporting evidence was rather weak, I do accept that when the application was made at the end of February this year, the public health situation was indeed quite alarming. The mother might simply have over reacted and therefore, I am not minded to make any adverse costs order against her on this occasion. However, I must warn the mother that she has to give serious thoughts before making any future application, and to seek proper legal advice before so doing. The fact that she is acting in person is not a license for her to make any unmeritorious application. Any such application is likely to be met with an adverse costs order in the future.

9.  I now make the following orders:

(1)  The mother’s summons dated 22 February 2022 is dismissed.

(2)  There shall be no order as to costs, including all costs reserved.