L,Hy v. M,Erg

FCMP 32/2018

[2019] HKFC 314

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 32 of 2018

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 7 November 2019

Date of Judgment: 6 December 2019

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J U D G M E N T

(Stay of proceedings)

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Introduction

1.This is an application by the respondent father dated the 3 June 2019 as follows:

1.   These proceedings shall be stayed in favour of proceedings in the Family Court of the State of New York within the City of New York (“the New York Family Court”) being the jurisdiction where the Applicant resides and where the said Minor resides and where he has been habitually resident for a period exceeding 6 months namely from on or about the 26th of August 2018 and since the New York Family Court is clearly and distinctively more appropriate than Hong Kong being where the Applicant and the said Minor reside and having regard to the costs of trial; the convenience of witnesses and the relative ease of execution of any Order;

The application is resisted by the mother who maintains that Hong Kong is clearly and distinctly the more appropriate forum to adjudicate on issues pertaining to the minor child, U. 

2.This matter was last before the court in August 2018. Reference may be made to the judgment dated the 12 October 2018 which arose out of that hearing. This judgment dealt inter alia with the issue of interim maintenance for U. In it I stated inter alia as follows:

4. The parties are now agreed that the mother and U may relocate to New York. The relationship between the couple has broken down and the father has recently remarried. He has also brought his new wife and three young children to Hong Kong to live. The mother decided to return to New York, which is where she was living and working when she met the father. She intends to rebuild her career as a lawyer after a break of ten years or so. However, in order to do this, she requires some financial support. She accepts that she cannot make a claim against the father in her own right, but she is concerned that the father makes proper financial provision for U and that he also provides appropriate financial security for him.  

5. The father has offered to pay for U’s schooling in New York plus a sum of US$7,500 per month (HK$58,500 per month) for his other expenses. In addition, he has agreed to pay HK$120,000 for the relocation costs plus US$5,000 per month (HK$39,000 per month) for a 6-month period as the mother’s carer’s allowance. In general terms his case is that he is prepared to pay whatever the court reasonably asks him to pay. He is though concerned about the lack of any proper evidence to support the mother’s claim and he asks that she keep a full record of her expenses in New York going forward (i.e. receipts and other evidence).

6. He also had some concerns with respect to U’s care and his ability to have meaningful contact with him after he had relocated to New York. In his counsel’s submission he asked for the following:

24. …

a)   Father and son can spend time together before she leaves;

b)   U’s residential address in New York is disclosed;

c)   Arrangements are in place for telephone / Skype access;

d)   Planned care arrangements for U are disclosed;

e)   Details of M’s income at CKR are disclosed and

f)   Details of M’s work routine at CKR are disclosed.

7. The mother said that she could agree with all of these requests save for b). I should add that it would be very unusual for a father not to know where his child was living and I will expect this issue to have been resolved by the time this case comes back to court in December. 

8. The mother says that the father’s financial offer is not sufficient. She is particularly concerned at this stage about the cost of renting a suitable apartment in New York for herself and U and how that might be achieved and the size of the carer’s allowance. …

3.The judgment then proceeded to deal with a number of issues including that of interim maintenance for U, who was by then living in New York. To that end I commented as follows:

20. As a general point it seems to me that it is very difficult for a court in Hong Kong to accurately assess the cost of living in an overseas jurisdiction – especially if, as here, the judge has had no or very little contact with the overseas jurisdiction in question. Thus I accept as a general proposition that if this case is to remain in Hong Kong, that the mother will need to keep an accurate record of her expenses with documentary evidence in support as appropriate.    

4.Doing the best that I could I then ordered that the father do pay interim maintenance for U of HK$120,000 per month and I also held him to his undertaking to pay for U’s school fees. I further directed inter alia that the mother keeps a full record of her expenses in New York going forward including receipts and other evidence as appropriate.

5.Since then I am told that there have been two sets of proceedings issued by the mother invoking the jurisdiction of New York, concerning emergency applications effectively with respect to access and other related matters. The father has similarly issued a “habeas corpus” application, also with respect to access. Putting this as neutrally as possible it seems that there are ongoing issues with respect to access, notwithstanding court orders made in this jurisdiction concerning this and other related issues.

6.On the 29 March 2018 an order was made inter alia that the mother shall have leave to remove U from HK in order to permanently relocate with him to New York. On the 3 December 2018 a paternity order was made, namely that the father do have all of the rights and authority that the law would allow him as the father of U. This was followed on the 4 December 2018 by an order that the mother do have care and control of U with interim defined access to the father. Specific orders were also made with respect to access over the school Christmas holidays in 2018 and the Easter school holidays in 2019. It is the husband’s case that the access ordered did not take place and that the mother imposed a number of conditions which he did not consider to be reasonable. It is also of note that as this was a permanent relocation there was no requirement on the mother to undertake to return U to the jurisdiction of Hong Kong either on a specified date, or more generally, if called upon to do so.

7.It seems that the New York Family Court are reluctant to make final orders with respect to access, or indeed any other matters, whilst Hong Kong retains any form of jurisdiction. Thus although the parties were directed to negotiate a reasonable access period for the school summer holidays in 2019, they did not intervene further when no agreement could be reached.      

Issues

8.Thus the issue presently before the court is as follows:

Should the Hong Kong proceedings be stayed?

Background to the relationship

9.I set out the background to the relationship in the judgment dated the 12 October 2018 as follows: 

11. The parties are not married. They met in New York and initially formed a relationship there. U was born in August 2010 and in or about 2013 the parties came to Hong Kong to live. The mother is now 50 years of age and she is of Chinese descent. She is a lawyer by profession and has a licence to practice in New York. The father is a French businessman and he is now 69 years of age.

12. Putting it as neutrally as possible it seems that the relationship was not a sexually exclusive one and the father has had other relationships and chose not to reside with the mother and U on a full time basis. In particular, it seems that the father was also living with another woman in France who has since become his wife. The father has had two further children with her and they are now aged 2 ½ and nearly 11 months old respectively. He has also adopted a further child who was his wife’s child by an earlier relationship. She will be 7 years old in January. He also has other grown up children and I am told that he has 7 children in total. I am not sure if that includes his adopted child.

Discussion

Should the Hong Kong proceedings be stayed?

The law

10.The most recent restatement of the law on the stay of proceedings and forum non conveniens, in matrimonial proceedings, can be found in the Court of Final Appeal’s decision in SPH v SA [2014] 3 HKLRD 497. This stated as follows:

VI Forum non conveniens: principles

50.  It is now well established in Hong Kong that the general principles of forum non conveniens apply to the stay of matrimonial proceedings: Johnston, Conflict of Laws in Hong Kong (2nd ed 2012), para 7.104.

51. We adopt the re-statement of the principles in matrimonial proceedings by the Court of Appeal (Cheung JA and Tang JA (as he then was)) in DGC v SLC (née C) [2005] 3 HKC 293, 297-298, applying Spiliada Maritime Corporation v. Cansulex Limited [1987] 1 AC 460, 477 and Louvet v. Louvet [1990] 1 HKLR 670, 674-675:

“1. The single question to be decided is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of an action i.e. in which the action may be tried more suitably for the interests of all the parties and the ends of justice?

2. In order to answer this question, the applicant for the stay has to establish that first, Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action) and second, there is another available forum which is clearly or distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal.

3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong.

4.  If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. Deprivation of one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court's satisfaction that substantial justice will be done in the available appropriate forum.”

52. The Court of Appeal in that case (as in the present case) emphasised that the husband was entitled to sue in Hong Kong as of right. Where jurisdiction is founded in the Hong Kong court as of right (as in divorce proceedings like the present case), the party seeking the stay has to establish that there is another available forum which is clearly or distinctly more appropriate than the Hong Kong forum.  This derives from what Lord Goff said in Spiliada (at 477), which has been regularly applied in Hong Kong: e.g. The Kapitan Shvetsov [1997] HKLRD 374 at 377; The Peng Yan [2009] 1 HKLRD 144, at [22].

11.In addition reference may be made to the Court of Final Appeal’s decision in QMS v GSS [2017] 20 HKCFA 303.

12.  In a nut shell then the court is concerned with the following questions:

i)  Which is the more appropriate forum? Hong Kong or New York?

ii)  Can the father show that Hong Kong is not a natural or appropriate forum? Or alternatively can he show that New York is clearly or distinctly a more appropriate jurisdiction than Hong Kong?

iii)  Will the mother be deprived of a legitimate personal or juridical advantage if the matter is tried in New York as opposed to Hong Kong? 

iv)  If so how should the balance be struck?

Which is the more appropriate forum? Hong Kong or New York?

Can the father show that Hong Kong is not a natural or appropriate forum? Or alternatively can he show that New York is clearly or distinctly a more appropriate jurisdiction than Hong Kong?

13.The mother maintains that the father has failed to establish that Hong Kong is not the natural or appropriate forum, citing inter alia that the father is a permanent Hong Kong resident with significant business ties in Hong Kong and that enforcement may be difficult if the proceedings are in New York. With respect however, this relates only to the enforcement of any financial orders. Infact, enforcement of the order on access is very hard to do from Hong Kong when the child is living in New York. The child’s habitual residence is now New York and it follows that any litigation in relation to access, or indeed any other matters pertaining to U’s care should take place in New York. In addition, as foreshadowed in paragraph 3 (20) above it makes more sense for any financial applications to also be dealt with in the New York Family Court, which is familiar with the cost of living and the related expenses concerning a child growing up in privileged circumstances in the city. It is very difficult indeed to do this remotely.

14.Further the Single Joint Expert’s report namely an affidavit dated the 6 November 2019 from Mr K, has confirmed that in his opinion:

9.   To recap, it is my opinion, to a reasonable degree of professional certainty, that if the Hong Kong Family Court chose to stay proceedings in deference to the New York Family Court, then the New York Family Court could and would exercise jurisdiction regarding U’s custody.

In such circumstances it seems to me that the father has been able to show that New York is the natural and appropriate forum to deal with this matter.

15.Further I also accept that the father is also able to show that New York is clearly or distinctly a more appropriate jurisdiction than Hong Kong to determine any issues relating to U for largely the same reasons that are set out above. This has very little to do with the father and everything to do with the mother. It was her choice to permanently relocate to New York with U. As a result, the child’s habitual residence has changed. It follows that any litigation concerning him should now more properly be dealt with in New York.

16.The matter should really end here. However, for the avoidance of doubt I should also like to add as follows:  

Will the mother be deprived of a legitimate personal or juridical advantage if the matter is tried in New York as opposed to Hong Kong? 

17.I accept that it is almost impossible for the mother, in these circumstances to argue that she will be deprived of a legitimate personal or juridical advantage if the matter is tried in New York. However, what is clear from the mother’s written and oral submissions is that she is concerned about enforcement of any financial order. She also says that she does not wish to re litigate those matters that have already been determined by the Hong Kong court. However, with respect the Hong Kong court has not made orders for access beyond Easter 2019, nor has it made a final order with respect to custody and access. The financial orders are also interim in nature. Thus it does not seem to me that the parties will be re litigating in New York, although the parties will need to issue the appropriate applications in New York. It also seems sensible for any long term financial orders to be made in New York.     

If so how should the balance be struck?

18.Thus although I accept that the mother’s concern about enforcement is genuine given that the fact that the husband has continued to largely comply with the interim financial order, it seems to me that the other matters including inter alia access in the longer term and any final financial orders for U, outweigh any concerns that she may have about possible longer term enforcement of any financial order.  

Conclusion    

19.In such circumstances an order shall be made in terms of paragraph 1 of the father’s summons dated the 3 June 2019. I can see no reason why costs should not follow the event in the normal way. Thus there shall be an order nisi to be made absolute in 14 day’s time that the Applicant mother shall pay the Respondent father’s costs of and arising out of the summons dated the 3 June 2019 on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

The Applicant appeared in person

Mr. Neal Clough, instructed by Yip, Tse & Tang appeared for the Respondent