JN v. TLC

FCMP 283/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NUMBER 283 OF 2011

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J U D G M E N T

(Variation of Undertakings)

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Introduction

1.  By an inter-parte summons dated 9^th March 2016 (hereinafter called “the mother’s summons”), the Respondent mother (hereinafter called “the mother”) made the Application to vary the Consent Order dated 9^th May 2013(“the Consent Order”). The issue of the mother’s summons before me is that the undertakings provided by the mother under Recitals D, H, and K of the Consent Order be varied, and the Applicant father (hereinafter called “the father “) opposed to the mother’s application.

2.  I had given an order dated 7^th April 2016 that the mother’s summons be heard on 13^th July and 14^th July 2016.

3.  In support of the mother’s summons, the mother relied on her 39^th and 43^rdAffirmations to vary Recitals D, H and K of the Consent Order as stated in her opening submission which was also adopted as her final submission also.

Applicant’s request for adjournment of trial and non-attendance

4.  The trial date of the mother’s summons was fixed on 7^th April 2016 after consulting the mother and the father, and the trial was fixed to be heard on 13^th -14^th July 2016.

5.  On 7^th April 2016, apart from fixing the trial date for the mother’s Summons, I had also fixed trial date for the other 3 summonses which I had already handed down judgment on 2^nd September 2016. The said 3 summonses areas follows (hereinafter collectively called “the 3 summonses”) :

(i) an inter-parte summons dated 27^th July 2015 taken out by the mother to vary the Order dated 23^rd July 2014 (“the Maintenance Order”) to the effect that the maintenance provided for in the Maintenance Order be varied (hereinafter called “the mother’s V of M summons”);

(ii) an inter-parte summons dated 5^th October 2015 taken out by the father to vary the Maintenance Order (hereinafter called “the father’s V of M summons”); and

(iii) an inter-parte summons dated 27^th April 2016 taken out by the father raising the issue of jurisdiction and stay of proceedings (hereinafter called “the summons related to jurisdiction”).

6.  By a letter dated 6^th June 2016 from the father, the father informed the court that he would not be able to attend the hearing schedule, and he requested the trial date be postponed to the end of July or the first week of August or another alternate date that can be fixed depending on the court schedule.

7.  The father further sent a letter dated 27^th June 2016 informing the court that he was in Papua New Guinea and would not be able to attend the hearings scheduled. He also stated that all his court documents had already been filed and the court could make a determination based on the documents that had been filed if it would continue with the trial on the dates stated.

8.  The father had not attended the trial related to the mother’s V of M summons, the father’s V of M summons and the summons related to jurisdiction.

9.  The father did not attend the trial of the mother’s summons also. The mother objected to the father’s adjournment for this trial also, and she adopted her submission in the hearing for the 3 summonses as her submission in this hearing.

10.  In my judgment dated 2^nd September 2016, I had given my reasons as towhy I was satisfied that the hearing of the 3 summonses should continue in the absence of the father, and those reasons were also the reasons as to why I was satisfied that this hearing be proceeded in the absence of the father.

Background of this case

11.  The background and history of this case had been illustrated in the judgment dated 23^rd July 2014 given by Deputy District Judge Yim, and I had also given a brief summary of the history of this case in my judgment dated 2^nd September 2016, and I am not going to repeat the same again.

Reasons leading to the mother’s V of M summons

12.  The mother stated that thereasons for the variation of the Consent Order was due to a change of circumstances and the father’s conduct after the Consent Order.

13.  In the mother’s summons, the mother asked that the undertaking provided by her under Recital D in the Consent Order be varied to the effect that in the event where the father did not respond promptly to her correspondence in relation to the minor’s (hereinafter called “C”) education arrangement within 3 days, the mother should enroll C in schools or other educational establishments/institutes without the father’s prior consent.

14.  The mother also asked that the undertaking provided by her under Recitals H and K of the Consent Order be released and discharged with immediate effect.

15.  Recitals D, H and K of the Consent Order, inter alia, required that the mother :

(i) Recital D : will not enroll C in nursery, school or other educational establishment without the prior consent of the Applicant.

(ii) Recital H : will not defend or otherwise obstruct the father from seeking and receiving a mirror order in the terms set out in the Consent Order in Brisbane, Australia.

(iii) Recital K : will return C to the jurisdiction of Hong Kong at any time after 1^st February 2014 if called upon by the Court to do so.

Recital D of the Consent Order

16.  The mother submitted that in engaging the father in the discussion over C’s education, she had encountered enormous difficulties. She claimed that the father ignored her correspondence for 18 months and the father did not make any substantive proposals to her in relation on C’s school arrangement, therefore she would like to set a time frame for the father to respond, failing which she would enroll C in schools or education establishment/institutes without the father’s prior consent.

Recital H of the Consent Order

17.  The mother submitted that C has now resided in Australia for 3 years and the father has failed to apply for a mirror order in the terms of the Consent Order in Brisbane, Australia so far.

18.  The mother stated that her undertaking was only restricted to not defending/obstructing the father from seeking a mirror order in Australia. She said that as the father was seeking parenting orders in Australia that were different to the Consent Order, her undertaking was no longer feasible or required.

19.  She claimed that if she could be discharged from her undertaking under Recital H, she could apply to the Australian Courts for parenting orders for C to protect his best interests going forward and to also defend the unwarranted and dishonest allegations the father had made against her.

Recital K of the Consent Order

20.  The mother also submitted that since C is now settled and residing in Australiawith her and his sister and attending primary school, any disputes in relation to access should be heard in Australia, and it was no longer feasible, practical or in the best interest of C and her family to return C to Hong Kong.

21.  The mother also submitted that the father had previously made application repeatedly for C to remain in Hong Kong or be returned to Hong Kong, and those application had caused her family difficulty and distress and unnecessary costs.

The oppositions made by the father

22.  In opposing the mother’s summons, the father had filed his 26^th Affidavit. In gist, the father stated that the mother has alienated C from the father by refusing a total of 8 normal standard access and all holidays access from 2014 up to 2016.

23.  The father also stated that the mother had secretly enrolled C in three schools without prior consent from him, and that the mother had frustrated to mirror the consent Order according to Australian law when presented to her and challenged the order in court in Australia.

24.  The father said that C had been barred from removal and is a resident of Australia, and there were interim orders in place which were the only recognisable and enforceable orders in Australia.

25.  The father also said that all matters pertaining to welfare and custody of the minor were being determined before the Australian courts. He submitted that the variation made by the mother was unenforceable in Australia, and the application made by the mother only served to try to rectify the committal proceedings against her in Hong Kong.

26.  The father submitted that their cases in Australian court should be heard and completed first before any Hong Kong court applications for welfare and custody should commence.

27.  The father submitted that for joint custody parents the education of the minor must be discussed with both parties.  He stated that the mother had duty to inform him.

28.  The father also submitted that in relation to the mirror order, the mother had refused to registerand sign the mirror order in Australia,thus making the joint custody granted under the Consent Order unenforceable in Australia.

29.  The father said that he would be seeking committal proceedings against the mother in Hong Kong as well as for the breach of Recital H. He submitted that the purpose of Recital H was to protect the court order and stop the custody and welfare process being abused and redone again in Australia.

30.  The father also submitted that there were proceedings in Australia which would consider the terms of the Consent Order, therefore Hong Kong family court could not finalize the variation as suggested by the mother until the proceedings in Australia has been completed.

31.  Regarding Recital K, the father submitted that this undertaking given to the mother is to safe guard C should the mother breach the court orders, and to protect C from being alienated from the father whom resided in Hong Kong.

32.  The father also submitted that the Hong Kong jurisdiction must be allowed to be able to accessC. Recital K should not be discharged as there is still proceedings in Hong Kongthat may require C to be returned to Hong Kong.

33.  The father further submitted that the mother’s summons should be dismissed, because the application of the mother was nothing more than an application to justify her breach of the Consent Order.

Discussion

Recital D of the Consent Order

34.  In the Consent Order, it was ordered by consent that the mother and the father be granted joint custody of C with sole care and control to the mother and reasonable access to the father, and the mother do have leave permanently to remove C from the jurisdiction of Hong Kong to Brisbane, Australia from 1^st February 2014.

35.  The undertaking stated in Recital K of the Consent Order was in line with the spirit of joint custody. The mother had explained and alleged that the conduct of the father had caused great difficulties to her when enrolling C in nursery or other school.

36.  She therefore asked that a time frame be set so that if she did not receive the father’s response within 3 days, she could enroll C in schools or educational establishment/institutes without the father’s prior consent.

37.  If C had not been relocated to Australia, any matter related to enrollment to schools or educational establishment/institutes could be brought to the court by the mother to seek for direction in Hong Kong, if the father failed to respond or no consent could be reached by the parties.

38.  At present, the father and the mother had made application to the Australian court to deal with the welfare of C including the matter related to the education, and there were disagreements between the father and the mother as to the choice of school for C. Since the parties had resorted to the Australian court to determine the welfare of C, the previous undertaking given by the mother should not be varied in the meantime.

39.  The time frame set out for the response should be realistic and practical, otherwise the best interest of C could not be safeguarded. The present undertaking given by the mother in the Consent Order did not set out any time frame,therefore, the court will have the flexibility to determine on each occasion the actual merit.

40.  The undertaking given by the mother before the relocation (i.e. to obtain consent from the father on education choices is required) was one of the important conditions agreed. As to how to work out the time for agreeing the enrollment, that could be resolved in Australia after taking into account of the actual circumstances.

41.  I am therefore of the view that the request made by the mother to vary Recital D should not be granted. I also agree with the father that since there were proceedings in Australia which would consider the terms of the Consent Order, therefore Hong Kong family court could not finalize the variation as suggested by the mother until the proceedings in Australia has been completed.

Recital H of the Consent Order

42.  In the mother’s written submission, she stated that the main reason for her to ask for a discharge of her undertaking under Recital H is that the father had failed to apply for a mirror order in the terms of the Consent Order in Brisbane, Australia, and that the father is now seeking parenting orders in Australia that are different to the Consent Order, therefore her undertaking is no longer feasible or required.

43.  If the mother’s assertion is correct that the father is seeking to vary the parenting orders in Australia, then I do not see there is any need to discharge the undertaking because the mother’s undertaking will not apply in any event.

44.  If the mother is saying that there is a change of circumstances and that the father had not applied any mirror order in Australia, and that the mother is now entitled to defend the father’s application in Australia, thenI am of the view that after the Australian court has determined the welfare of C, the mother may have justification to defend her case of committal proceedings in Hong Kong (if any).

45.  I agreed with the father that the purpose of Recital H of the Consent Order was put in to stop the custody and welfare process being redone again in Australia. I therefore do not see that the request by the mother to discharge Recital H of the Consent Order should be entertained now.

Recital K of the Consent Order

46.  The main reason for the mother to request for the discharge of the undertaking of Recital K of the Consent Order is that C has been well settled in Australia since his relocation with his sister and the mother, and is now attending primary school.

47.  She stated that any disputes in relation to access should be heard in Australia, and it will not be feasible, practical or in the best interest of C to return C to Hong Kong.

48.  The father had stated clearly that the access issue will be determined by the Australian Court.  This court had also previously refused the father’s application for C to be returned to Hong Kong.

49.  At present, the Australian Court had restricted the parties to remove C from leaving the jurisdiction of Australia until the welfare of C had been determined. My view is that if the father would like to request this Court to call upon the mother to return C to the jurisdiction of Hong Kong, the father has to first satisfy the Australian Court that it is in the best interest of C to be relocated to Hong Kong.

50.  Clearly, the father stated that the welfare of C should be determined by the Australian Court. I do not see it being feasible for the mother to comply with this undertaking due to the change of circumstances. In addition, it is definitely not in the best interest of C to be returned to Hong Kong without first considering the welfare of C in Australia.

51.  I am of the view that Recital K should be discharged with immediate effect.

Costs

52.  The mother did not entirely fail in her application. In addition, this application is related to the welfare of the child.  Therefore, I am of the view that it is fair to make no order as to costs.

Order

53.  It is ordered that :

(1)  Recital K should be discharged with immediate effect from the date of 8^th September 2016;

(2)  the rest of the application made by the mother in the inter-partes summons dated 9^th March 2016 be dismissed;

(3)  there be no order as to costs of this application including all the reserved costs.

Representation: