PD v. LTY

HCMP 455/2017

[2018] HKCFI 1359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 455 OF 2017

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D E C I S I O N
(On Video Access)

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Introduction

1.  These are proceedings for the return of a child to Australia under the Child Abduction and Custody Ordinance Cap 512. This Court handed down a Judgement on 2 June 2017 (“Judgment”) and for the purpose of this decision, I shall adopt the same abbreviations in the Judgment.  Pursuant to paragraph 5 of the order made on the same day (“02.06.17 Order”), the Father was to have daily skype/face time/video access with the Child at 8:00 pm every day.  There was also liberty to apply.  On 31 October 2017, paragraph 5 of the 02.06.17 Order was varied to take place at 9 pm Hong Kong time to be conducted at a fixed and private location with adequate lighting (“31.10.17 Order”).

2.  The present summons issued by the Father on 15 March 2018 is for an order that the Mother to resume video access as set out in the 31.10.17 Order and to allow the Father to have additional video access pending the Child’s return to Australia (“Father’s Summons”).

3.  As seen in the Judgment, the Mother brought the Child to Hong Kong on about 19 January 2017.  The Child was born in October 2015 and at the time of his removal from Australia, he was about 15 months old.

4.  I found that the Child’s removal from Australia by the Mother was wrongful under Article 3 of the Convention.  Under Articles 12 and 13 of the Convention, it was obligatory for this court to order the return of the Child forthwith to Australia if at the date of the commencement of the proceedings, a period of less than one year has elapsed from the date of the wrongful removal, unless the Mother was able to establish a defence under Article 13.

5.  The Mother relied on Article 13(1)(b) of the Convention.  As set out in the Judgment, I found that the Mother was not able to discharge the burden on her to substantiate her allegation that there would be a grave risk that the Child’s return would expose the Child to physical or psychological harm.  However, it was also the Mother’s case that to order a return of the Child without her would place the Child in an intolerable situation. 

6.  It was the Mother’s evidence that in March 2017, the Child was still dependant on milk from her.  There were also obstacles preventing the Mother to return with the Child, the main one being she would not be able to obtain a valid visa.  I then gave an indication that in light of the then very young age of the Child, I would only be minded to order a return if the Mother were to return with the Child.

7.  An order for the Mother to return with the Child was subsequently arrived at, subject to various undertakings, terms and conditions therein.

8.  Unfortunately, up until now, the Mother has not been granted a valid visa.  This is a matter of complaint by the Father, namely that the Mother has not used her best efforts to obtain a visa to return to Australia.

9.  The Father’s Summons has to be considered in light of the above background.  The Father complained that the Mother unilaterally suspended video access from 27 January 2018.  On that day, the Mother’s solicitors sent an email to inform the Father’s solicitors that the Mother had been advised to stop accepting the Father’s video calls to the Child on the basis that he had used offensive language during his previous calls.  The Father on the other hand alleged that in the weeks leading up to this email, the Mother was the one who had been consistently verbally abusing him, calling him foul names in front of the Child and then hanging up on him after he responded in kind.

10.  In short, the Mother suspended video access after 27 January 2018. Despite repeated solicitors’ correspondence imploring the Mother to resume access, and proposing mutual undertakings, the video access had not been resumed.

11.  This led to the issue of the Father’s Summons on 15 March 2018, which was fixed for a direction hearing on 3 May 2018.  It was only at this hearing that the Mother agreed to immediately resume video access in the interim upon a signed undertaking by the Father.  The Father undertook, amongst other things, to treat the Mother with respect and not to use inappropriate or disparaging language, including making negative statements about the Mother either directly to or in the presence of the Child. 

12.  The Mother however did not agree to the additional video access sought by the Father on the ground that such additional access could not be practically arranged.

13.  This Court ordered an urgent social welfare report on the additional access sought by the Father, and also directed the parties to lodge written submissions for this matter to be dealt with on paper.

The Mother’s case

14.  The Mother’s case was that she suspended video access as the Father had used foul language to abuse the Mother during the access and that it was made clear to the Father and his solicitors that the Mother would resume the video access if the Father were to undertake not to use foul language towards the Mother during the access.

15.  The Mother said there was no constructive reply from the Father and that it was only at the hearing on 3 May 2018 that such an undertaking was given by the Father.

16.  The Mother’s case is that she has always been the primary carer of the Child and she is responsible for the Child’s daily care assisted by the paternal grandmother.  In addition, the Mother has to work to support herself and the Child as the Father has been refusing to provide any financial assistance to them while they are living in Hong Kong.  The Child is still of tender age and that he would not sit there to talk to the Father patiently and in a disciplined manner like an adult may do.

The social welfare report

17.  The social welfare worker Ms Leung Shui Toi interviewed the Father on the telephone.

18.  Ms Leung reported that the daily video access between the Father and the Child resumed on 8 May 2018 at 9 pm every day.  It was Ms Leung’s recommendation that due to the Mother’s daily schedule, and without direct and effective communication between the Father and the Child at this stage, any changes in video access would create more conflicts which were believed to be not beneficial for the Child.

My view

19.  With respect, I think Ms Leung has failed to consider that the Child was wrongfully removed from Australia in the first place and that the Mother did agree to return to Australia subject to certain undertakings/terms/conditions, and yet the return has not happened notwithstanding the Return Order was made a year ago.  As a result, the Father has been deprived of regular in person access and the only means of contact with the Child for the Father at the moment is video access.

20.  According to Ms Leung, the Child could express himself with simple phrases in Cantonese or simple single words in English.  Further, during her visit to the Mother on 11 May 2018, the Mother had talked to the Child in English but the Child usually responded in Cantonese.  It would appear that the Child’s Cantonese is much better than his English.  There is no sufficient evidence that the Mother or any of her family members or her boyfriend would regularly speak to the Child in English.  The Father’s concern that the Child would grow up speaking mainly Cantonese and would not be able to fully communicate with him is in my view understandable.   

21.  On the other hand, the Mother is only working part-time and her working hours are flexible although she would have to work overtime during the examination or upon special needs of the students.  The 9:00 pm access was agreed to by her, since as seen earlier, the original time was 8:00pm.  Further, it is clear from the Mother’s own affirmation that the on the days that she did not have to work the morning shifts, video access could take place at 9:30 am.

22.  I also understand the Mother does not work during weekends.  I do not really see any practical difficulty in the Mother arranging for video access for the Father on at least 3 mornings a week when she does not have to work the morning shifts, at 9:30 am in addition to the daily 9:00pm video access.  In fact, the Mother does not really say that it is not in the best interest of the Child to have additional video access with his father and it is only a matter of practicalities.

23.  Having been deprived of regular in person access due to the distance apart and the lack of funds, in my view, other forms of contact/access should be encouraged to maintain the relationship between the Child and his father and that such additional contact/access, even though such may not be lengthy at this stage, is in the best interest of the Child.  I therefore intend to depart from Ms Leung’s recommendations.

24.  Although the Father originally sought video access to be increased to twice daily at 9:30 am and 9:00 pm Hong Kong time, he is now prepared to forego the additional morning access (or to arrange earlier access) up to 3 mornings a week, in other words, I understand that he is seeking access on 4 mornings a week, which the Mother agrees but wants to cancel the night access.  Her reason is that access at 9 pm is too late and the Child would be tired by then.  However, the time was changed from 8 pm to 9 pm to accommodate the Mother’s work hours and the time for her to get home to arrange for the access.  The time was agreed to by her on 31 October 2017. There has been no summons taken out by her to vary such access.

Conclusion

25.  Having considered the circumstances of this case, I am of the view that the Father should be entitled to additional access, and I am prepared to vary the 31.10.17 Order and make an order for the Father to have in addition to his access at 9 pm every night, access on 3 mornings a week at 9:30 am, subject to those terms set out in the 31.10.17 Order.  In my view, such additional access is in the best interest of the Child.

26.  I make no order as to costs and that both parties’ costs be taxed under Legal Aid Regulations.

Ms Joanne Brown of Tanner De Witt, for the plaintiff

Mr Enzo WH Chow, instructed by Christine M Koo & Ip, Solicitors & Notaries LLP, for the defendant

Ms Osa Chan, GC of Secretary for Justice, observer