DCB v. AB

HCMP 2173/2014

[2018] HKCFI 162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2173 OF 2014

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R U L I N G

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1.  The background of theses wardship proceedings have been set out previously in this Court’s judgment of 16 May 2017 (“Judgment”), which was handed down after a trial in relation the Father’s and the Mother’s respective applications for care and control of the ward L, and also for the Mother’s application for leave to permanently remove L back to Singapore.

2.  Pursuant to the Judgment, I granted L’s sole care and control to the Mother, but dismissed her application for removal.  I ordered L to remain a ward of this court, and made orders in relation to the Father’s access (“16.05.17 Order”).

3.  On 1 December 2017, the Father in these proceedings issued a summons, seeking clarification of the 16.05.17 Order, and seeking essentially an order that while the Mother is outside of Hong Kong that L will reside with the Father.

4.  After the 16.05.17 Order, the Mother has married Mr O.  The Mother has now made a new application for removal.

5.  According to the Father, after the 16.05.17 Order, the Mother was out of Hong Kong from 22 – 29 October 2017, and again from 24 November – 1 December 2017, during which periods she had arranged for Mr O to be with L in Hong Kong .

6.  The Father’s summons was issued without any supporting affirmation.

7.  At the hearing on 8 January 2017, I indicated that it was not this Court’s intention at the time of making the 16.05.17 Order that L would reside with the other parent when one parent was outside Hong Kong for work/business reasons, nor was such an order sought at the trial by either parent. 

8.  In fact, I understand that there had been occasions that while the Father himself was away, during his access period/s, and L was cared for by her stepmother Ms S.  The Mother did not voice any objection to that arrangement.

9.  Under the 16.05.17 Order, the Mother has L’s sole care and control.  At present, L has her home with her mother and her step father Mr O at Leyburn Villas on Lantau Island.  L also has a home with her father and her stepmother and her now one year old half brother M, on Peng Chau. 

10.  Under arrangement of the Mother, L commenced attending a kindergarten in Mui Wo on Lantau in August 2017 from 9 am to 4:30 pm on Mondays to Fridays.

11.  I have called for an urgent report on this issue, and according to the social welfare officer, Ms Leung, the access arrangements were running smoothly, and that when the Mother had to work in Singapore, Mr O would assist in caring for L in Hong Kong, and when the Father had to attend work or work outside Hong Kong, Ms S would assist in caring for L.  L was reported to be under proper care so far and Ms Leung suggests to maintain the status quo.

12.  Mr Ted Lee, of the Official Solicitor’s office also filed a short report on this matter.  Mr Lee was of the view that there is no valid ground in the Father’s application, and shared the observation by Ms Leung, and considered it reasonable and appropriate to maintain the status quo.

13.  Although at the hearing, the Father was granted leave to file a supporting affirmation, he did not in the end file one to say why the arrangements in the 16.05.17 Order should be varied to allow L residing with him whenever the Mother is not in Hong Kong.  Thus, no grounds had been put forward by him.  The Mother had filed an affirmation to oppose the application, but as the Mother was only given leave to file an affirmation in reply to the Father’s, there was no need for her to file hers when the Father did not file his.

14.  Having considered Ms Leung’s report and Mr Lee’s report, I find there is no reason to disturb the present access arrangements, particularly when L is attending kindergarten on Lantau on Mondays – Fridays, and the present access arrangements are working smoothly. Further, having considered the circumstances of this case, I am of the view that it is in the best interest of L not to vary the present access/residential arrangements during the period whenever one parent is away.  I therefore dismiss the Father’s summons.

15.  I have indicated at the hearing, the parents remain joint custodians of L, and will remind them that one parent should give the other parent advance notice of his/her absence from Hong Kong.

16.  As for costs, the Father said he was seeking a clarification of the Court’s order, and in the end did not file any further affirmation in support.  As I have said, there was no need for the Mother to file hers.  Having considered the circumstances, I will make no order as to costs for this application.