JRMW v. NAV

FCMC 8504 / 2017

[2018] HKFC 90

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8504 OF 2017

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Judgment
(Temporary Removal)

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The Application

1.  Subsequent to my judgment dated 16 April 2018 (“the Relocation Judgment”) dismissing the petitioner father’s application for permanent relocation of the two children of the family, L and B, to Denmark, the petitioner now applies, by way of a summons on 30 April 2018, to vary the order that I gave on 18 July 2017 prohibiting the children from leaving Hong Kong (“the Stop Order”) and for having various costs orders granted in his favour to be summarily assessed.

2.  In addition, by a separate summons the petitioner also applies for leave to appeal against the Relocation Judgment.

3.  The application for variation of the Stop Order contains various limbs.  The one that requires immediate attention is the one for the petitioner to take the two children out of Hong Kong from 1 July 2018 to 31 August 2018 for the purpose of holidays and/or family visits.  The petitioner said he and the children are going to stay mainly in Denmark during the summer vacation. 

4.  The hearing is fixed for 15 minutes only.  Given the constraint in time, I indicated that I would only be able to deal with the petitioner’s application for leave to remove the children out of Hong Kong during the summer vacation. The other matters have to be adjourned to a further date, with the remaining limbs of his application for variation of the Stop Order to be dealt with after the determination of his application for leave to appeal against the Relocation Judgment. 

The petitioner’s grounds

5.  The petitioner’s grounds are simple and straight-forward – the status quo ought to be restored.  The relocation trial is now over and all the parties including the children should be allowed to resume their normal life.  The children are devastated that they are not allowed to return to Denmark.  It would help them if they could have a good holiday there in the summer.  It is not in the children’s best interest to continue to be denied overseas holidays and their ability to visit their paternal family and friends in Denmark.

The respondent’s opposition

6.  In her usual fashion, the respondent opposes everything being applied for. She referred to the event happened last year when the children, with the leave of the court, were out of Hong Kong enjoying their summer vacation in Denmark the petitioner applied for permanent relocation in the middle of the vacation and sought to keep the children to remain in Denmark until the conclusion of his application, hence trying to create a fait accompli.  She described it as the petitioner’s secret scheme to permanently remove the children from Hong Kong. The Stop Order is the result of the petitioner’s action last year.  His action alone has caused this situation. The relocation trial has proved that the petitioner is willing to lie in order to gain unfair advantage over her. The petitioner can no longer be taken for his word.

7.  The respondent relied on what the petitioner said in his grounds of appeal where he continuously stated that “Hong Kong is a prison’, ‘we are under house arrest’, and ‘we want to return home’.  It is the petitioner’s own words, stated repeatedly, that give cause to concern that given the opportunity to leave Hong Kong, there is a significant risk that the petitioner will permanently abscond with the children.  She drew my attention to the petitioner’s situation, as stated in his grounds of appeal, that he is on indefinite sick leave and will no longer receive any income after October 2018.  These create multiple factors for risk that the petitioner could attempt to abscond with the children.

8.  The respondent also stressed that, as can be seen in his grounds of appeal, the petitioner is emotional and irrational.  She doubted the stability of his mental state.

9.  If the children are to stay in Hong Kong for the summer, this serves an excellent opportunity for her to reconnect with them.  There will also be time to have a psychological evaluation on the petitioner.

The Official Solicitor’s Stance

10.  The Official Solicitor has no objection to the application.  In his Note dated 24 May 2018, the Official Solicitor agreed that the relocation trial is now over and all the parties including the children should resume their normal lives. It means that for the best interests of the children, they should be allowed to travel and take their holidays as they did in the past.

11.  Whilst the Official Solicitor acknowledged the petitioner was found to have fabricated his intimate relationship with his domestic helper, he took the view that there is no other evidence to suggest that the petitioner will ignore and/or breach any court order if permission for temporary removal is granted. 

12.  The Official Solicitor assessed that the risk for the petitioner to abscond with the children is remote.  His reasons are:

1.  There are outstanding legal proceedings yet to be determined.  They are:-

(i) the question of ancillary relief;

(ii) the petitioner’s application for leave to appeal; and

(iii) the petitioner’s claim for costs against the respondent.

2.  Though the petitioner is on indefinite sick leave now and will stop receiving any salary after October 2018, there is no indication that his employment will be terminated.

13.  The Official Solicitor concluded that with all these unfinished businesses, the chance for the petitioner to abscond is low.  The Official Solicitor therefore has no objection to the petitioner’s application.  

Discussion

14.  To begin with, contrary to what the petitioner says, the relocation trial is not over yet.  The petitioner has applied for leave to appeal and this is due to be dealt with.

15.  In addition to what I have mentioned in paragraph 7 above, the petitioner said the Relocation Judgment has had a devastating impact on him.  He will soon have no income.  He complained that in spite of the facts that he has the sole custody of the children, the children’s clear wishes and there is no physical access for the respondent, they are confined and are not even allowed to go home on holiday, unless with leave from the court.  The children’s wishes to relocate to Denmark have been totally ignored by the Official Solicitor, the judge and their own mother.  Their resentment towards their mother, the judge, their solicitor (ie the Official Solicitor) and Hong Kong itself is unavoidable.  He also mentioned that he does not expect that he can return to fly the cargo roster again as he has to prioritise L and B’s well-being.

16.  I agree with the respondent that what the petitioner said in his application for leave to appeal is quite alarming.  During argument, I asked the petitioner how he could persuade the court that he would return the children to Hong Kong after the summer vacation.  He referred to what he did last year.  Upon being so directed by the court, he swiftly arranged their return within the time frame.  He also expressed his understanding that Denmark is a state party of the 1980 Hague Convention.  Apart from the usual undertaking from him to return the children, he is willing to acknowledge that Hong Kong is the children’s habitual residence and to pay a security of $100,000 into court within 14 days.  He produced an admission letter from an international school in Hong Kong and proof of payment of deposit to show that L is due to commence his secondary school in Hong Kong in this coming September.

17.  Mr Chiu, acting on behalf of the Official Solicitor, confirmed that the Official Solicitor is aware of what the petitioner said in his grounds of appeal when the Note was prepared.  He agreed that, from what the petitioner said, there is a risk of flight but, for the reasons set out in the Note, the Official Solicitor’s stance remains unchanged.  I take what he means is that after having considered the grounds of appeal together with all the matters before him, the Official Solicitor still has come to a conclusion that the risk of flight is remote and he has no objection to the application.

18.  I must say whether or not to allow the children to have their summer vacation out of Hong Kong is not an easy decision to make.  Ultimately, the question is to be resolved in accordance with the principles set out in section 3 of the Guardianship of Minors Ordinance (Cap 13).  In short, the law enjoins the court shall regard the best interests of the child as the first and paramount consideration.  I believe the petitioner was very upset and emotional when he prepared his grounds of appeal.  In the present case, the risk of flight is certainly one of the factors, or even a significant one, that the court needs to consider in the balancing exercise.  In my view, on the one hand, the risk is certainly not so remote (as the Official Solicitor has put it) that the court may disregard it entirely but on the other, it is not as high as the respondent might have wish to put it.  In coming to this conclusion, I have taken into consideration the facts that there are still outstanding matters in the legal proceedings, that he complied with the order to return last year, that he has committed a school place for L, and that he is willing to pay a sum of $100,000 as security.

19.  The children should not be penalized for the faults of their father.  They were allowed to enjoy their time during the summer in Denmark in the past years.  It is simply too much a suffering for them if they are to stay in Hong Kong this year with not much to do during the summer.  Given the present state of the matter it is virtually unrealistic for the respondent to think of making use of the summer vacation to reconnect with the children.

20.  Considering all the factors in a round, on balance, I come to the view that it is to the best interest of L and B that they are allowed to leave Hong Kong for the summer. L’s new school has a Summer Bridging Course from 20 August to 31 August 2018 so he has to be back to Hong Kong before 20 August 2018.  I will give an order that L may leave Hong Kong from 1 July 2018 to 19 August 2018.  As for B, he may leave Hong Kong from 1 July 2018 to 31 August 2018.   

Orders

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

1.  The Order dated 18 May 2017 be varied to the extent that:

(i) Leave for the petitioner to remove the child of the family “L” out of the jurisdiction of Hong Kong from 1 July 2018 to 19 August 2018 for the purpose of holidays and/or family visits in Denmark;

(ii) The petitioner shall return the child of the family “L” to Hong Kong on or before 19 August 2018;

(iii) Leave for the petitioner to remove the child of the family “B” out of the jurisdiction of Hong Kong from 1 July 2018 to 31 August 2018 for the purpose of holidays and/or family visits in Denmark;

(iv) The petitioner shall return the child of the family “B” to Hong Kong on or before 31 August 2018;

2.  Penal notice be endorsed on the order. Personal service of the order on the parties be dispensed with.

3.  Costs are reserved.

22.  I would request the Official Solicitor to draw up, file and serve this order.

23.  The above orders are given –

(1)  upon the petitioner’s usual undertaking to return the children of the family and his undertaking that the children will stay mainly in the addresses of the petitioner’s parents as set out in paragraph 10 of his Affidavit dated 30 April 2018;

(2)  upon the petitioner’s acknowledgment that the children of the family L and B’s habitual residence is Hong Kong for the purpose of the Convention on the Civil Aspects of International Child Abduction at The Hague on 25 October 1980; and

(3)  upon the payment of $100,000 into court by the petitioner within 14 days of this order as security for the return of the children of the family in accordance with the order.

24.  The above paragraphs (1), (2) and (3) should form part of the order given under this Judgment.  In addition, the petitioner should file a separate undertaking to return within 14 days.