C v. S
Read the full judgment text of HCMP 929/2017 on BabelCite. This High Court CFI judgment was delivered on 6 February 2018.
1. The plaintiff and the defendant are respectively the Father and the Mother of a girl N who is now 9 years old.
Cites 4 cases
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HCMP 929/2017 [2018] HKCFI 294 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 929 OF 2017 _______________________
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_____________________________________________ REASONS FOR DECISION _____________________________________________ Introduction 1.The plaintiff and the defendant are respectively the Father and the Mother of a girl N who is now 9 years old. 2.By an originating summons issued on 20 April 2017 (“Originating Summons”), the Father has made N a ward of this Court. In the Originating Summons the Father sought the following orders:
3.Upon the issue of the Originating Summons, N has become a ward of this Court. So far as (ii) was concerned, namely for N to be separately represented, the Father had withdrawn that application on 10 August 2017. In relation to (iii), this Court made an order on 12 October 2017 granting the Father all the rights and authority that the law would allow him under s 3(1)(d) of the Guardianship of Minors Ordinance. So far as the Originating Summons is concerned, only the Father’s Custody Application and the Access Application are outstanding. The Father had issued a summons for the entire proceedings in the Family Court to be transferred up to be dealt with by this Court and as part of the wardship proceedings, and the Mother had issued a summons for N to be dewarded, and for all outstanding applications before this Court to be transferred down to be dealt with by the Family Court. 4.The Father’s Custody Application, Access Application and the Mother’s dewarding application have been fixed for a directions hearing on 20 March 2018. 5.The parties’ respective applications for transfer up/down were heard before this Court on 7 February 2018. This Court dismissed both applications on that day, with reasons to be handed down. The reasons are set out hereinafter. 6.The Father was represented by Counsel Ms Athena Wong and the Mother by Counsel Mr Kevin Li. Background 7.There has been protracted litigation between the parties over N in the Family Court, under FCMP 67/2010 (“Family Proceedings”), since early 2010 when N was only one year old, resulting in no less than 16 published judgments/decisions from the Family Court, 3 published judgments for leave to appeal and 1 judgment from the Court of Appeal, and further the judgement given by this Court on 12 October 2017, giving the Father the parental rights as mentioned earlier. 8.Custody care and control of N was granted to the Mother on 5 October 2012 (“Custody Order”). Deputy Judge Own, as he then was (“Family Judge”), further ordered that the Father to have general access to N, details to be determined at a hearing to be fixed, and pending determination of the details of the general access, the Family Judge ordered the then interim access arrangement was to continued. 9.However notwithstanding various leave to appeal applications and/or appeals, the Father’s attempt to apply for a variation of the Custody Order and issues over the Father’s access and allegations of child abuse by the Mother, no final hearing had ever been fixed for the determination of general access as directed by the Family Judge under the Custody Order. 10.To cut the long story shorter, on 31 March 2016, there was an interim order for the Father to have access to N every Saturday from 10 am to 9 pm (“31.03.16 Order”). There were then applications taken out respectively by the Mother and the Father, culminating in an order made by the Family Judge on 30 September 2016, as set out below. 11.On 30 September 2016, the Family Judge made an “Unless Order”, namely that unless the Father was to proceed to apply for determination of general access arrangement pursuant to the provisions of the Custody Order, the Father was to have reasonable access to N (“30.09.16 Order”). The Father applied for leave to appeal and eventually obtained leave from the Court of Appeal on 13 October 2017. 12.It was the Father’s case that he continued to encounter difficulties in access and in particular since 21 January 2017, he had had no access and it was under those circumstances that the Father issued the Originating Summons to make N a ward of this Court. 13.The Mother had alleged that the Father had scolded and frightened N on 21 January 2017 and the Father said this was the 4th time that the Mother had “falsely” accused the Father of abusing N since the year of 2013. Anyway, the Father had no access after 21 January 2017. 14.When the Originating Summons came up before this Court for the 1st hearing on 19 May 2017, this Court ordered, amongst other things, the Father to have interim defined access order along the same undertakings and terms of the 31.03.16 Order and the continuation of the wardship, with no opposition from the Mother (“19.05.17 Order”). To be fair to the Mother, she was unrepresented at that hearing, since her legal aid had not been extended in time for her lawyers to represent her at that hearing. 15.Notwithstanding the 19.05.17 Order, the Father continued to experience difficulties over access to N. It was the Father’s complaint that there was parental alienation on the part of the Mother, whereas the Mother alleged it was N who was unwilling to see the Father. 16.This Court then called for a social investigation report which was submitted on 8 September 2017 (“08.09.17 SWR”). It can be seen therein that the social worker Ms Wong of the Hong Kong Family Welfare Society reported, amongst other things, that when N was interviewed on 29 August 2017 she was emotionally settled and addressed the Father as “daddy” spontaneously, but that N had expressed her resistance towards the Father due to his poor temper and tense relationship with the Mother and Ms Wong opined that the social worker at Wong Tai Sin Community Centre (“Contact Centre”) could be a facilitator to the access arrangement. This Court then made a further order on 21 September 2017 for access to take place at the Contact Centre. This was initially not successful, and the Father then issued an application for contempt proceedings against the Mother. 17.Eventually, access took place on 7 October 2017, after a gap of some 9 months. Mr Li had set out in his submissions what happened on those days of access after 7 October 2017. The Father denied the allegations therein. 18.However, what is clear is that each session lasted for only about two to four hours at the Contact Centre on those Saturdays even though the 19.05.17 Order allowed the Father to have access from 10 am to 9 pm every Saturday pursuant to the 31.03.16 Order. The present applications 19.Ms Wong submitted that all matters relating to N should go before this Court so that the decision serving N’s best interest could be made by a single docket judge who has a complete picture of all aspects of N’s wellbeing, such as health, educational and financial, which are often intertwined, and that a wardship judge shall have complete and absolute control over the ward and no important or major steps in the life of a ward may be taken without the leave of the Court. 20.I could understand this had the wardship proceedings been taken out on day one or earlier. However, these proceedings were only taken out less than a year ago. On the other hand, the Family Judge has been the docket judge of the Family Proceedings for over 7 years and had written some 16 published decisions/judgments. If there should be one single docket judge, then in my view, it should be the Family Judge. 21.In fact, this was exactly Mr Li’s argument, that N should be dewarded and all matters be transferred back down to the Family Court. Since the Father opposed the dewarding of N, at the moment, the dewarding application has been fixed for hearing together the Custody Application and the Access Application. 22.At present, so far as the Family Proceedings are concerned, the last Order was the 30.09.16 Order for reasonable access order which is still pending the Father’s appeal. As seen in the Court of Appeal’s Reasons for Decision[1], the reason for granting leave was because it was reasonably arguable that the ‘reasonable access’ order would not work. Since then, as set out above, access had resumed pursuant to the 19.05.17 Order in these proceedings. I understand that the Father is still intending to proceed with his appeal. I am not sure why as the appeal would appear to be academic, in light of these wardship proceedings and the 19.05.17 Order and that the Father had resumed access to N. 23.Subject to what the Court of Appeal may say, there are no further outstanding applications in the Family Proceedings concerning custody, care, and control, and/or access. 24.On the financial side, the Family Judge had made an interim maintenance order on 7 November 2013. Eventually, on 5 June 2015, the Family Judge handed down a judgment in respect of the Mother’s application for financial provision. By this order, the Family Judge ordered, amongst other things, that the Father’s property, referred to as the One Silver Sea Property, be settled on trust for the use of N and the Mother until N reaches age of 18 years old or ceases full time education, whichever is later, and in addition thereto, the Father to pay various reimbursements pursuant to Father’s undertakings, and also periodical payments for the benefit of N (“Financial Provision Order”). The Father had sought leave to appeal. His leave application was eventually dismissed by the Court of Appeal on 7 December 2015[2]. 25.Numerous affirmations and/or Form Es had been filed in connection with the Mother’s application for financial provision as can been seen in the Family Judge’s Judgement of 5 June 2015. The trial took almost 7 days. 26.The Mother is now complaining that the Father has not complied in full the terms of the Financial Provision Order, and has applied for enforcement, and this is pending before the Family Judge. 27.Apart from enforcement, there has also been a further application by the Mother for renovation costs etc concerning the One Silver Sea Property (“Renovation Summons”). This Court was informed that the amount claimed by the Mother was less than HK$1m, and that the summons had been recently adjourned sine die by the Family Judge with liberty to restore, pending mediation between the parties. The Mother has all along been receiving legal aid, and whereas I note, the Father has on occasion instructed both Senior and Junior Counsel. 28.At the moment, the only outstanding matter in the Family Proceedings is the Mother’s enforcement application. There are therefore no parallel applications in the Family Court and this Court. 29.Having considered the history of the financial applications, I had indicated at an earlier direction hearing in December last year, that I saw no reason why the financial matters, in particular the enforcement application should be transferred up. 30.Since there was no outstanding application in the Family Court in relation to access or N’s arrangements, and I saw no reason why the financial matters should be transferred up, I came to the view that no transfer up was necessary at this stage. 31.As for the Mother’s application to transfer down, I agreed that this was linked with the dewarding application. It was premature. Conclusion 32.Having considered the circumstances and the history of this case, and for the above reasons, I came to the conclusion that both transfer applications should be dismissed and the above were my reasons. 33.The Father had also issued a summons to stay the Family Proceedings pending this Court’s decision on the transfer applications. Leave was granted to the Father to withdraw that summons at the hearing. 34.The order I made at the hearing was :-
35.I ordered no order as to costs of all summonses, save for the Mother’s own costs to be taxed under the legal aid regulations.
Ms Athena Wong, instructed by Chan & Chan, for the plaintiff Mr Kevin Li, instructed by Stevenson Wong & Co, for the defendant | ||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCMP 929/2017