XCHRX BRUNO PAUL YVES GHISLAIN SEGHIN v. MARIE CLAIRE VALENTINE ROBERTINE SEGHIN

IN THE SUPREME COURT OF HONG KONG

High Court

(Miscellaneous Proceedings No. 3953 of 1995)

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D E C I S I O N

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Ching, J.A. :

The marriage of the husband and wife, as I shall continue to call them, has been the subject of a decree nisi of divorce. By consent, the wife was given custody, care and control of the children of the family who are two boys, Raphael and Yannick aged about 10 and 8 years respectively, and an adopted daughter, Yuki, who is about 71/2 years old. The wife applied for leave to take the children permanently out of the jurisdiction to live with her in Australia while the husband applied for a variation of the consent order. Both applications were heard together. Judge Gill acceded to the wife's application and the husband's application was dismissed. The husband was granted a temporary stay of the order permitting the children to be removed pending his application for leave to appeal. That application was dismissed and the stay was removed. The husband now asks me for leave to appeal and for an order staying the permission to remove one or more of the children.

2. The grounds of appeal presently proposed will undoubtedly need to be perfected. Mr. Clough, who appeared both in the Court below and before me, levelled some justified criticisms at them. He reminded me that the Judge below was exercising a discretion with all the consequences that that entails upon appeal. As I read the proposed grounds, however, they amount to a compendious complaint that no Court, properly directing itself, could have come to the decision to which the Judge below came. I am conscious that this matter was heard by a most careful and perceptive Judge who had the advantage of seeing the witnesses and hearing their evidence over 3 days. I have not read that evidence. I am conscious also that an appellant who appeals against a particular exercise of discretion generally has a very difficult task, perhaps the more so in the circumstances of the present case. I cannot, however, say that the appeal is unarguable and I bear in mind that we are dealing with the long term future of very young children. In the circumstances I give leave to appeal but on condition that a Notice of Motion will be filed by Saturday, 30th December, 1995, and upon the husband's undertaking to take all reasonable steps to expedite the hearing of the appeal. Counsel have estimated that the appeal will take no more than one day. No doubt those in charge of fixing dates will act with due recognition of the notes set out on page 1010 of Volume 1 of the White Book. I understand that enquiries have been made and that if a Notice of Appeal is filed by Saturday, 30th December, 1995, a date for the appeal can be fixed for the end of January, 1996.

3. The next question I have to decide is whether or not there should be a stay, wholly or in part, of the order permitting the wife to remove the children permanently from the jurisdiction. I have found this most difficult. Mr. Clough has emphasised to me that for a very considerable time now the parties have acted upon the basis that the wife should not be able to stay in Hong Kong and that when she left she would take the children with her. She has chosen Australia with the husband's full knowledge and approval, to the extent, for instance, that he has visited Perth with the children, enrolled them in a good school there and has approved the house which the wife has now bought. There is no dispute about any of this. I bear this in mind, but I bear in mind also that the Court can only take these factors as showing what the husband considered to be in the best interests of the children at that time. It will be for the Court to decide what should happen to the children in due course and it is for me now to decide what should be done with them until the appeal is heard.

4. The husband's summons as to custody, care and control was restricted to the older son, Raphael. However, in his affidavit in support he also seeks the same relief in relation to the younger son, Yannick. The suggestion is that the wife should proceed to Australia with Yuki, leaving the sons with the father until the appeal is decided. I decline that suggestion for the following reasons. First, at the moment the wife has custody, care and control of all three children. Secondly, so far as I can see at this stage it would be wrong to separate Yuki from her brothers. Thirdly, it would be wrong to uproot Yuki by taking her to Australia possibly to find that at some future time she must be returned to Hong Kong.

5. In the same way, I think it would be wrong to take the sons to Australia only to find that perhaps they would have to be returned to Hong Kong. The period before the appeal can be heard is relatively short and in the circumstances I think that it is right that they, all three, should remain in Hong Kong until that appeal has been determined. There are two difficulties that can easily be surmounted. First, I am told that there are visa problems for the wife or children. I cannot think that in the circumstances the Immigration Department will not give the necessary extension. In case it should be of any assistance, I have no hesitation in stating that in my view such an extension should be given. Secondly, I am told that the school term in Australia commences at the beginning of February, 1996. Again, however, I cannot think that the school will raise difficulties if the position is explained to them or to those in charge. If the children eventually attend that school they will not be delayed for more than a few days.

6. The difficulty that needs a practical resolution from me at this stage is that the wife and the children have been staying with friends. It would be wrong to impose a further month's stay upon their generosity. If the children stay then clearly the wife will have to stay as well and they must all be properly accommodated. The wife has been given lump sums for herself and the children and periodical payments ceased in June of this year. The husband has offered $50,000 for accommodation but she will have difficulty, quite apart from the expense, in obtaining proper furnished accommodation for herself and the children for the short period involved and at very short notice. While I do not wish to say anything which may prejudice the appeal I must say that I am surprised that the husband has refused to remove from his home to allow the wife and the children to stay there for the duration. To my mind that is not only the most obvious solution but it is the best one in the interests of the children and it is what I intend to make a condition of granting a stay. I have been told that since all arrangements have been made for the wife and children to go to Australia to-day there will be other expenses resulting from a stay, such as the storage of furniture which is presently en route to Australia. The wife's parents have come to Hong Kong, I assume from Belgium, to assist her and it is intended that the mother will go to Australia with the wife and the children to help them to settle down there. I have no details of what the additional expenses may be and I think that it may exacerbate matters if I were to accede to Mr. Clough's request for a general order that the husband should reimburse the wife for all such reasonably incurred. I accept that there may well be additional expenses. Certainly the cost of living for a further month in Hong Kong will be far greater than that of living in Perth even having regard to free accommodation. I therefore intend to make it a further condition of a stay that the husband should pay to the wife the sum of $20,000 to cover those additional expenses.

7. Upon hearing Counsel for the Applicant and Counsel for the Respondent, it is ordered that :-

1. There be leave to appeal the judgment and order of H.H. Judge Gill, made in DCDJ 3105 of 1994 on 21st December, 1995, upon the Applicant's undertaking:

(a) to file a Notice of Appeal with perfected grounds of appeal by Saturday, 30th December, 1995, and

(b) to take all reasonable steps to expedite the hearing of the appeal.

2. There be a stay of the order of H.H. Judge Gill dated 21st December, 1995, by which he granted leave to the Respondent Petitioner to remove the children of the family permanently from the jurisdiction, the stay to remain until 31st January 1996 or until final determination of the appeal whichever is the earlier and to be conditional upon :

(a) the Applicant vacating the premises at 41F, Shouson Hill Road, Shouson Hill, Hong Kong by 2nd January, 1996, and to permit the Respondent Petitioner to reside there with the children of the family (and with her parents, if she so decides) until final determination of the appeal free from all utility charges.

(b) the Applicant paying to the Respondent Petitioner the sum of HK$20,000 on or before 2nd January, 1996, by direct payment into her savings account with the Hong Kong Bank account no. 182-9030913;

(c) the Applicant undertaking to take all such steps as are necessary to arrange for the extension of the Respondent Petitioner's and the children's visas to remain in Hong Kong during the period of the stay;

and in the event that there is failure to comply with any of the conditions the stay be automatically rescinded.

3. The stay is granted upon the Respondent Petitioner's undertaking not to damage or remove anything from the said premises and not to open or interfere with any mail not addressed to her.

4. The costs of this application be reserved to the hearing of the appeal.

(Charles Ching)

Justice of Appeal