Case Document

100%Judiciary

FCMC 8332 / 2017

[2019] HKFC 12

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8332 OF 2017

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BETWEEN
	H	Petitioner
and
	W	Respondent

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not Open to Public)

Date of Hearing: 10 January 2019

Date of Judgment: 14 January 2019

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J U D G M E N T

(Removal)

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Introduction

1.This is an application by a Petitioner father for leave to remove the child of the family, a little girl B, born on the XX October 2015, out of the jurisdiction of Hong Kong in order to visit Marrakesh in Morocco so that she may attend a family wedding. The trip is scheduled to take place from the 6^th – 12^th March 2019. The application is resisted by the Respondent wife.

Background to the marriage

2.By way of a short background reference can be made to the Maintenance Pending judgment of the 24 October 2018, where I said inter alia as follows:

7. The parties married on the 15 February 2013 and separated in or about January 2016. This was then, by anyone’s standard a very short marriage. As I have said B was born shortly before the parties’ separation in October 2015. The husband issued a divorce petition on the 29 June 2017 and although he has applied for the decree nisi it has yet to be granted. Unfortunately, the parties were unable to reach full agreement with respect to B and there is a Pre Trial Review scheduled for the 6 November 2018 in that regard.

8. The husband was originally in paid employment and has worked in the finance sector prior to setting up his own investment business in 2016. The wife for her part ran her own small recruitment business until it finally closed down earlier this year. She now says that she is a full time mother

3.The hope originally was that there might be a truncated trial on the practical arrangements for B, as full agreement appeared to have been reached in relation to most of the major issues and Scott Schedules were filed in that respect (see in particular the Joint Scott Schedule filed on the 2 January 2019). Unfortunately, that no longer appears to be the case and the father has since issued a summons seeking care and control of B, with reasonable access to the mother (see the summons dated the 7 January 2019). Thus a fully litigated trial, possibly lasting many days, now seems inevitable.

The law in Hong Kong

4.It is not disputed that the general principles concerning children govern this application and in particular section 3 of the Guardianship of Minors Ordinance, Cap. 13, which states that the court must have regard to what is in the best interests of B. It is generally accepted that a child has the right to see and to have a relationship with both of her parents. I also accept that generally speaking a trip overseas with a parent will be viewed by the court as being in the best interests of a child.

The issue

5.There is then only one issue - should leave be given for the father to take B to Morocco in March 2019 in order that she might attend a family wedding?

Discussion

6.The mother opposes the application. She says that B is too young (only three years old) to be taken aware from her caretaking parent (which on the mother’s case is herself) to go on her first long haul flight or flights, post separation. She says that this will be too much for the child, that she is likely to suffer from jet lag, to miss school without cause and that this could aggravate her chronic constipation. In a nut shell she says that it is not in her best interests to attend the wedding.

7.Although I accept that some of these concerns are genuinely held by the mother it seems to me that it is important that B attend. She has been asked to be a flower girl and although the mother says that this is contrived, it seems to me that in any event it is important that B attend the wedding and that she have full exposure to the paternal side of her family. This is not a distant relative who is getting married, but the father’s first cousin. I have no doubt that had the parties still been together that they would have made this trip together. Although the wife is concerned about B making this trip without her, B has travelled with her father before and he will be accompanied on the trip by his sister for the first tranche of the trip and by his parents in addition for the second tranche. I accept that she will be properly cared for and that arrangements will be made for her to rest and sleep as necessary – even at inopportune times. I also tend to accept Ms Irving’s point that in such circumstances it is acceptable for B to miss a few days of school.

8.The mother complains that the father has been high handed in his approach and that he had booked the tickets for the trip and made hotel reservations, in addition to informing the school of the same before leave had been granted. I think there is little in this. The father seems to have taken a view and would have been required to have cancelled any reservation pertaining to B, in the event that the application was not granted. Conversely he may have had difficulties reserving flights and hotel rooms etc had he left it too late.

9.In such circumstances I shall make an order in terms of paragraph 1 of the summons dated the 31 October 2018. Given that this is a child related matter there shall be an order nisi to be made absolute in 14 days’ time that there be no order as to the costs of this summons to include all costs reserved.