C, Oka v. R, Mtp
Read the full judgment text of FCMP 180/2017 on BabelCite. This FCMP judgment was delivered on 17 June 2019.
1. On the 3 December 2018 the court handed down its judgment on relocation, custody, care and control and access. In summary it granted the Respondent father leave to relocate to Japan with the minor child, A, a little girl who is now 8 years of age. I did not give leave for the father to leave immediately but ordered instead that he should leave with A, not before the 21 April 2019, which was after the first week of the Easter school holiday. The reason for this is that I wished to try to get a
Cited by 3 cases
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FCMP 180 / 2017 [2019] HKFC 155 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FAMILY COURT MISCELLANEOUS PROCEEDINGS NO. 180 of 2017 ----------------------------
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------------------------ Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public) Dates of Hearing: 15 April 2019 Date of Applicant’s written submission: 18 April 2019 Date of Respondent’s written submission: 28 May 2019 Date of Ruling: 17 June 2019 ------------------------- RULING ------------------------- Introduction 1.On the 3 December 2018 the court handed down its judgment on relocation, custody, care and control and access. In summary it granted the Respondent father leave to relocate to Japan with the minor child, A, a little girl who is now 8 years of age. I did not give leave for the father to leave immediately but ordered instead that he should leave with A, not before the 21 April 2019, which was after the first week of the Easter school holiday. The reason for this is that I wished to try to get access back on a more stable footing before the father left Hong Kong. In addition, I ordered that the parties have joint custody of A, with care and control to the father. I then set out detailed arrangements for access in the immediate to short term. In addition, I directed that the parties appoint a Parental Co ordinator to assist them inter alia with the practical arrangements for access going forward. It seems that that part of the order has not been complied with by either party. 2.In addition, I am told that it is not now the father’s intention to leave Hong Kong until after the end of the summer school term, as he wishes A to enjoy a full year of school. She is currently attending the X International School and prior to that she was home schooled. 3.One of the main issues to be determined during the trial was whether or not the mother drank to excess and in that event whether she posed a risk to A. This had been an ongoing concern since the litigation began and attempts had been made previously for access to be supervised either by a third party or at the Parent and Child Contact Centre. It would be fair to say that the mother had been largely resistant to all forms of supervision and that there had been ongoing difficulties in this regard and with access generally. Reference should be made to paragraphs 9 – 17 of the judgment where the background to this is discussed in more detail. Another point of contention is that the mother seemed unable or unwilling to abide by her undertakings not to drink alcohol when A was in her care. In essence the father was and remains concerned about the risks associated by the mother’s alleged alcoholism and the mother’s complete denial of the same. 4.When discussing the mother’s character, I said at paragraph 51 of the judgment as follows:
5.In so far as the mother’s alleged alcoholism was concerned I accepted that the mother certainly appeared to have had an alcohol problem previously and I agreed with the father that the mother’s hair and alcohol tests could not be relied upon. I added that
6.I then made a detailed order with respect to access. The intent was to introduce staying access gradually and that this, and the day access also, should be subject initially to regular breathalyser testing. It is of note that the mother had originally suggested that this was a good way to monitor the situation. The mother was ordered to produce a breathalyser test at the beginning and end of short periods of access; for whole day access she was ordered to produce a clear test prior to access commencing, once at 2 pm and again at the end of the access period. Similarly, during overnight staying access she was ordered to produce a clear test prior to access commencing and at 9 am after the overnight and at 2 pm and then at the end of the access period. The hope was that if this went well and trust between the parties was re-established, that it might then be possible to lessen the reliance on the breathalyser tests and to revert to a more normal form of access whereby reliance on the mother’s undertaking not to drink was sufficient. 7.Post relocation I had also ordered as follows:
The current situation 8.The mother filed an application for leave to appeal on the 17 December 2018. This was refused by this court on the 31 January 2019. On the 18 January 2019 the father filed a summons in which he claimed, inter alia that the mother was breaching the court order and drinking alcohol when she had access to the child. Further he said that the mother was not producing the breathalyser tests as ordered. The father further alleged that the mother was producing “fake” reports. On the 26 February 2019 I suspended all access pending receipt of further affidavit evidence from the parties. In the mother’s affidavit of the 27 February 209 she admitted that she had only partially complied with the court order and gave a number of reasons for that. She did not respond to the statement from the father that she had drunk alcohol infront of the daughter, or that some of the reports were “fake” in any event. 9.The father also made the following proposal in his affidavit dated the 10 April 2019:
10.In the mother’s submission dated the 18 April 2019 she said that there was no evidence of a positive test result and proposed as follows:
The law 11.For the avoidance of doubt, and as stated previously, the law in relation to matters concerning children is as set out in section 3 of the Guardianship of Minors Ordinance, Cap 13, which says as follows:
Decision 12.The father will relocate to Japan with A after the end of the summer school term. The child’s habitual residence will then become Japan. I accept that the mother has not complied with the court order with respect to the clear breathalyser test results and that it is likely that she has breached her undertaking and drunk alcohol whilst she has had access to A. In such circumstances, and in the absence of any agreement between the parties with respect to the breathalyser test, the order as set out in paragraph 7 sub paragraph 62, shall be varied as set out below.
13.I should add that it is not possible for the courts in Hong Kong to monitor breathalyser test results. Consequently, unless there can be agreement between the parties with respect to their use going forward, it seems that any further orders or directions in this respect are unlikely to assist. It is not known whether the court’s in Japan would be able to monitor access inter alia through a breathalyser device. 14.For the avoidance of doubt it is further ordered that copies of all judgments and orders may be shown to the authorities in Japan. 15.There shall be no order as to costs including all costs reserved.
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