WKI also known as IWKV v. CKW also known as WCKW

FCMC 11528/2019

[2023] HKFC 89

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 11528 OF 2019

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J U D G M E N T
( Temporary Removal )

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INTRODUCTION

1.  This case has a protracted history – which resulted in a number of judgments made by the Courts previously.  There are also a variety of applications (taken out by both parties respectively)  pending.

2.  By a summons filed on 24 February 2023, the Respondent (“Father”)  applies for permission to temporarily remove the child of the family, namely a girl born on 24 May 2010 and now aged 13 (“Child”), out of the jurisdiction of Hong Kong to travel to Canada for holiday for the period from 22 June to 8 July 2023.

3.  By that summons, the Father also applies for a direction enabling him to keep all the travel documents of the Child.   He further seeks permission generally for the Child to travel abroad with him for future holidays for periods when the Child is under his care and control.

4.  The parties came before this Court for a call-over hearing on 20 April 2023.  The Petitioner (“Mother”)  vigorously opposed the Father’s summons.  As such, directions were given for the parties to file affirmations and written submissions.

5.  The Court has considered the Father’s supporting affirmation dated 24 February 2023, the Mother’s Affidavit in opposition dated 28 April 2023 and the Father’s Affirmation in Reply dated 5 May 2023.

BACKGROUND

6.  The background of the parties and the circumstances leading to their divorce are helpfully set out in §§2-7 of the Judgment made by Deputy District Judge Theresa Chow dated 3 October 2022 on custody, care and control:

“2.  The petitioner (“Mother”)  and the respondent (“Father”)  married on 14 February 2007 and separated in October 2018 when the Mother moved away from the former matrimonial home with the Child. They lived in a rented apartment in Tai Wai within the same development as the maternal grandparents (“Tai Wai Residence”)  since the separation.

3.  The Mother emigrated to Canada in her secondary school years, whereas the Father emigrated there at the age of 12. They met in around 2002-2003, and returned to Hong Kong in around 2005-2006.

4.   The Mother has worked in the human resource and administration field for a number of years, and is now an assistant general manager of human resources at a sizable local conglomerate company.

5.  The Father has been employed by the same international logistics company for the past 17 years or so as a senior manager in the back office. He currently lives at a rented apartment at Cheung Sha Wan.

6.  After altercation and jostling between the Father and the mother’s father (“Grandpa”)  took place in mid-September 2019 which led to police intervention, the Mother filed a petition for divorce on 25 September 2019.

7.  The Child now studies at an international school in Lai Chi Kok (“School”). She commenced her Grade 7 studies on 23 August 2022 at the secondary division of the School.”

7.  After a 5-day trial before Deputy District Judge Theresa Chow, the parties were granted joint custody with shared care and control of the Child (“Custody Order”). 

8.  Starting from January 2023, the care arrangements of the Child are shared by the parties on a 2-week rotation basis as follows: (a)  Week 1 – the Father shall pick up the Child from the Mother at 8 pm on Sundays at the Mother’s residence; and (2)  Week 2 – the Father shall hand over the Child to the Mother at 8 pm on Sundays at the Mother’s residence.

9.  Under the Custody Order, long holidays lasting for 4 days or more are to be shared by the parties equally.  In particular, it was ordered that:

“Summer holidays: The parties do share summer holidays equally on a 2-week rotation basis. The handover of the Child shall be conducted at 12:00 noon on the first day and 8:00 pm on the last day at the main gate of the Mother’s residence.” (emphasis added)

10.  It was also directed by Deputy District Judge Theresa Chow that there be a supervision period of 12 months and updated social investigation reports be submitted in English in 6 months’ time and 11 months’ time.

THE FATHER’S REASONS FOR THE APPLICATION

11.  The Father proposes to take the Child to Vancouver, Canada during summer vacation for the period from 22 June to 8 July 2023, the details of which are set out in §1 of the Father’s Affirmation dated 24 February 2023:

“a. Flight from HKG to YVR by CX888 at 00:45 on 22 June 2023 arriving at 21:50 & return YVR to HKG by CX865 at 01:25 on 8 July 2023 arriving in HK at 5:35+1 (see appendix A for flight booking)

b. Accommodation: 5015 Culloden St, Vancouver, B.C., Canada (my friend’s [E] residence, same place where [the Mother] stayed while we traveled to Vancouver before)

c. Purpose: Visit [the Child’s] friends in Vancouver, outdoor activities such as rollerblade, water rafting, horseback riding, and theme park, Whistler, a short summer camp (TBD as not available yet). We will commute by private care during the trip

d. During this period, there is a plan to visit US for short trip

e. Contract protocol.  Whatsapp by [the Child’s] mobile phone and my mobile [phone number] ….”

12.  The Father also explained in that Affirmation that the Child had various overseas trips for holiday prior to the parties’ separation in 2019 and that the Child repeatedly expressed her desire to travel again. 

13.  The Father also stated that he tried to raise with the Mother his request to travel overseas with the Child for holiday during a joint meeting organised by the parties’ parenting coordinator on 5 February 2023 but the Mother refused to discuss this topic because the Father did not comply with an interim maintenance order.  

14.  The Mother does not dispute that she refused to discuss the Father’s request through the assistance of the parenting coordinator.   

15.  The Father also wrote to the Mother on 14 February 2023 to seek her consent to the proposed trip but to no avail. 

THE MOTHER’S GROUNDS OF OPPOSITION

16.  The Mother’s grounds of objection as set out in her Affirmation in opposition dated 28 April 2023 can be summarised as follows:

  (1)  Under the Custody Order, the parties shall share the Child’s summer holidays equally on a 2-week rotation basis.  The period of travel proposed by the Father exceeds 2 weeks.

  (2)  The Father should not take the Child away for overseas holiday until he settles the outstanding interim maintenance.

  (3)  As the Father is in breach of the interim maintenance order, the Mother does not trust that the Father would honour the usual undertaking to return the Child to Hong Kong after the proposed holiday.

RELEVANT LEGAL PRINCIPLES

17.  Applications of this type are governed by section 3 of the Guardianship of Minors Ordinance, Cap 13 (“GMO”), which requires the Court to have regard to the best interests of the minor as its first and paramount consideration: see AAG v JDC, FCMC 4022/2016, 20 October 2016 (unrep)  at §5.

18.  Section 3 of the GMO also requires the Court to give due consideration to 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.

19.  The proper approach for dealing with applications for temporary removal was also considered by Deputy District Judge G Own (as he then was)  in CWY v EFO, FCMC 8316/2011, 4 February 2013 (unrep):

“20. In all cases of removal of children, the parent bringing the child would have to submit a written undertaking to the Court for the child’s return; be it a temporary trip or otherwise, and also whenever it was required by the Court. There is no difference for cases where the other parent consents to the removal. The aim and objective of the undertaking is obvious and any breach is a contempt of the Court with serious consequences.

21. It is always at the discretion of the Court whether or not to grant leave for the removal. Such discretion would be exercised on a case by case basis after considering all the relevant circumstances giving rise to the application and grounds of opposition within the interest of the child being the first and paramount consideration. There is no exhaustive list of factors which the Court is bound to look into. In my view, the Court is entitled to consider any factors which are of relevance and material irrespective of whether those factors had been raised by the opposing parent.” (emphasis added)

20.  It is stated in Family Law and Practice in Hong Kong (3^rd Edn) at §12.053:

“Removal from Hong Kong on a temporary basis is usually for a holiday. Contested applications arise when the other parent is fearful that the applicant is not planning to return to Hong Kong after the holiday, or if the holiday or temporary removal is unsuitable for some reason. Generally a holiday will be viewed by the court as in the interests of the child.”

DISCUSSION

21.  As noted above, the Mother has raised a number of grounds of opposition, which I shall consider one by one.

22.  At the hearing, the main ground of objection relied upon by the Mother was that the Father should not take the Child away for overseas holiday until he settles the outstanding interim maintenance.

23.  In this connection, it is stated in the Mother’s Affirmation in opposition dated 28 April 2023:

“4.  The Respondent also has absolutely no ground on this application to seek leave for [the Child] to travel abroad until the Respondent settled the total outstanding arrears of interim maintenance (for the basis of [the Child’s] tuition fee partially)  from 1 May 2020 to date hereof which is more than 24 months.  Please refer to Court Order dated 1 April 2021 and 9 September 2021 (collectively the “Maintenance Order”).

5.  As in the Chinese saying, “供書教學” is the basic responsibility of a parent.  And no doubt to majority of responsible parents, this is a priority than travelling aboard (sic).  I never would use my only child as a hostage to get what I want like the Respondent who has a track record to hold up [the Child’s] belongings at access handover, items such as school uniform, which she would need next day at school, he would not return to us until I obtained and fulfilled his curtain (sic)  requests.  I am solely responsible for paying all my daughter’s expenses, and the tuition is a big portion of the expenses, if the Respondent follows and complies the Maintenance Orders, I will have sufficient funds to also take [the Child] to travel too.  Most would agree definitely a good to have to travel around the world when you have extra money but it’s a luxury not necessity.

6.  The Respondent, as a father sees fit to avoid his duty to the Court and [the Child] to pay for the maintenance in contravention of the best interests of [the Child] by every unjustified and unreasonable excuses including expand and over generalized the difference of this HK$20 difference by applying a totally different interpretation into the undertaking of the Maintenance Order.  The Respondent make serious accusation against me claiming I failed the undertaking to provide the amount of the monthly school tuition for school year 2021-2022 was HK$15,980, which is not above HK$16,000.  He done that without regard to the actual background against why the Maintenance Order was made.  The Respondent continuous (sic)  to expand this HK$20 difference to overshadow the fundamental reason of why Deputy District Judge M. Lam asked me to provide the Respondent with new tuition for school year 2021-2022 information i.e. the undertaking on the Maintenance Order, which with no doubt I had complied the understanding (sic)  and it was also already a public information on school website.” (emphasis added)

24.  The Mother referred me to a summons filed by her on 6 April 2023 for a Hadkinson order against the Father.  That summons is scheduled to be heard for a call-over on 20 July 2023 at 9:30 am before Her Honour Judge Liu.

25.  In CWG v MH & Ors (Hadkinson Orders and Costs) [2014] HKFLR 461, the Court of Appeal had this to say about the proper procedure for making Hadkinson applications (at 465H-466B):

“16.1 Of course, the crucial issue is whether in the exercise of its discretion, the court should bar the Mother from participating in the appeals by reason of her non-compliance, but first, it is necessary to say a word about the ambit of the Hadkinson application.

16.2 A summons was taken out only in CACV 83/2013 (ie the Mother’s appeal)  and not in the other appeals where she is a respondent. By way of explanation (or perhaps excuse), Ms Eu SC, leading counsel for the Wife, has referred us to some cases where the reports show that a Hadkinson point had been taken without a summons having been issued.

16.3 For my part, I would have thought that bearing in mind the principles of the Civil Justice Reform, an application of such significance as a Hadkinson application should not be made without the other party being duly forewarned by way of summons, with enough time for affidavit evidence to be adduced for and against the making of the order. That has not been done in relation to the appeals in which the Mother is a respondent.” (emphasis added)

26.  It is clear that the Mother’s summons dated 6 April 2023 has been taken out to ask the Court not to hear the Father on his summons dated 6 January 2022 seeking a committal order against the Mother for restricting his access to the Child and not in respect of other applications of the Father (see the Mother’s Affidavit dated 6 April 2023 for the Hadkinson application).   The Father’s application for committal against the Mother has set down for substantial hearing on 11 August 2023.

27.  I also note that at the directions hearing for the committal application on 28 March 2023, the Mother took a Hadkinson point in respect of the Father’s committal application.  Her Honour Judge Liu expressly explained to the Mother that she had to take out a proper application in order to pursue any Hadkinson point.  It was against such background that the Mother’s Hadkinson summons dated 6 April 2023 was taken out.

28.  For the above reasons, I do not consider it suitable to, and shall not, consider the Mother’s argument raised here as a proper Hadkinson application/ objection.

29.  I note that the Mother has already issued a judgment summons dated 9 November 2021 to enforce the outstanding interim maintenance against the Father.  As stated in the Mother’s Affidavit in opposition dated 28 April 2023 (for this present application), the Father is disputing his liability to pay interim maintenance upon a proper interpretation of the relevant Court order.  The same argument was raised by the Father in opposition to the Mother’s judgment summons. 

30.  The proper interpretation of the interim maintenance order is presently being dealt with by Deputy District Judge Josephine Chow by way of preliminary issue out of the judgment summons.  The parties are due to file written submissions on 8 June 2023, followed by submissions in reply on 29 June 2023, with judgment to be handed down in due course (see Order dated 30 March 2023). 

31.  In other words, the issue about the outstanding interim maintenance payable by the Father will be resolved one way or the other upon the outcome of the Mother’s judgment summons. 

32.  Out of an abundance of caution, I shall add that this means that there is another effective means of securing compliance with the interim maintenance order which is being actively pursued by the Mother and as such, the Mother would not have been able to satisfy one of the conditions under the very stringent threshold for seeking a Hadkinson order in any event: see e.g. CWG v MH & Ors, supra, at 464, §12. 

33.  It seems to me that the Mother is trying to entangle the ongoing financial dispute (or in fact other disputes)  between the parties with the present application for temporary removal for holiday purposes when the overriding consideration by the Court is (and should be)  the best interests of the Child.

34.  As wisely pointed out by His Honour Judge I Wong in JRMW v NAV (Temporary Removal) [2018] HKFC 90, FCMC 8504/2017 at §19, minors “should not be penalized for the faults of their father” and, indeed, their parents.

35.  As to the Mother’s argument that the period of travel proposed by the Father exceeds 2 weeks, this is not disputed by the Father.  At the hearing, the Father indicated that he is prepared to shorten the proposed trip to comply with the holiday arrangements under the Custody Order.

36.  I turn now to the Mother’s concern that the Father may not return the Child to Hong Kong upon conclusion of the proposed trip.  I note that the Father has a very good job in Hong Kong with the same employer for a long time.  Upon enquiry by the Court at the hearing, the Father has assets in Hong Kong.  He also has close family members in Hong Kong, including his mother and siblings.  In any event, Canada is a signatory to the 1980 Hague Convention on Child Abduction. 

37.  The Father stated in his application that he and the Child will be staying at a specified address in Canada.  The Father also stated that “there is a plan to visit US for short trip”.  There are, however, no further details provided by the Father for such trip to the US.  In view of the Mother’s concern, I take the view that any permission to be granted by the Court will be for the Child to travel to Canada but not outside Canada.  The Court will also require an undertaking from the Father to stay with the Child mainly in such address as set out in his affirmation.

38.  In the updated social investigation report dated 31 March 2023 (as directed by Deputy Judge Theresa Chow under the Custody Order), it is reported by the social welfare officer (who has been following this case since 2021)  that “[d]espite the fact that she hoped to visit her friend in Canada, [the Child] showed understanding that her parents had not reached consensus about the overseas trip for her”.

39.  The Child is now aged 13.  Given her age and judging from what is reported in the updated social investigation report, I consider it suitable to take into account the wishes expressed by the Child to travel to Canada for holiday.

40.  At the hearing, the Mother also said that she found that the Child showed signs of reluctance to travel with the Father.  However, this is not consistent with what is stated in the updated social investigation report.  Indeed, the Child is observed to have a good relationship with both parents.  Both parties are noted by the social welfare officer to be very caring and loving parents.

41.  Having regards to all the above matters, I have come to the conclusion that it is in the best interests of the Child for the Court to grant permission to the Father to remove the Child out of jurisdiction temporarily for holiday in Canada.  

42.  As to §2 of the Father’s summons, given that the parties have joint custody and shared care and control of the Child, I see no reason why the travel documents of the Child should be kept by the Father in the future.   By an Order dated 9 December 2019, the travel documents have been placed with the Mother’s former solicitors, Messrs Howse Williams.  At the hearing, the parties confirmed that such travel documents have expired and need to be renewed.  The Mother also confirmed that she ceased instructing her former solicitors in September 2021. 

43.  At the call-over hearing on 20 April 2023, the Mother gave an undertaking to the Court and to the Father that she will take steps to renew the Child’s travel documents pending the outcome of the Father’s application. 

44.  In order to enable the Father to travel with the Child for the trip approved above, I direct that the Mother shall provide the Child’s renewed Canadian passport to the Father within 7 days from this Judgment and if the Mother has not yet taken steps to renew the Child’s Canadian passport, she shall provide all necessary documents to the Father within 2 days from this Judgment for the purposes of enabling the Father to obtain a renewed Canadian passport for the Child.  Upon conclusion of the proposed trip, the Father shall hand in the Canadian passport of the Child to be kept by the Court.

45.  Turning to the Father’s request that there should be general permission for him to travel with the Child, given the history of this case, I do not consider suitable to make such an order.  As pointed in CWY v EFO, supra, applications for temporary removal should be considered on a case-by-case basis.

ORDERS

46.  For the above reasons, I give the following orders:

(1)  Leave for the Father to remove the Child out of the   jurisdiction of Hong Kong from 22 June 2023 to 6 July 2023 for travelling to Canada for holiday;

(2)  The Father shall return the Child to Hong Kong on or before 6 July 2023;

(3)  The Mother shall provide the Child’s renewed Canadian passport to the Father within 7 days from the date of this Judgment;

(4)  In the alternative to paragraph (3)  above, if the Mother has not yet taken steps to renew the Child’s Canadian passport, she shall provide all necessary documents for the purposes of enabling the Father to obtain a renewed Canadian passport for the Child to the Father within 2 days from the date of this Judgment;

(5)  Upon conclusion of the above trip on or before 6 July 2023, the Father shall within 7 days thereafter hand in the renewed Canadian passport of the Child to be kept by the Court.

(6)  Penal notice be endorsed on the order.  Personal service of the order on the parties be dispensed with.

47.  The above orders are given upon (a)  the Father’s usual undertaking to return the child of the family; and (b)  an undertaking to be given by him that the Child will stay mainly in the specified address as set out in §1 of his affirmation dated 24 February 2023 (see §36 above).  For the avoidance of doubt, this paragraph should form part of the order given under this Judgment.  The Father has already filed an undertaking on 24 February 2023 giving effect to paragraph 46(a)  of the undertaking. The Father shall file separate written undertaking within 14 days from the date of this Judgment to give effect to paragraph 46(b).

48.  As this is a children’s matter, I make an order nisi that there be no order as to costs, which will be made absolute within 14 days.  If either party wishes to vary the costs order nisi, they should take out a proper summons in the normal way.