Bgpb v. Ksw

HCMP 1922/2020

[2021] HKCFI 899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1922 OF 2020

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Before: Hon u-Yeung J in Chambers (Not Open to the Public)

Date of Hearing: 30 March 2021

Date of Judgment: 30 March 2021

Date of Reasons for Judgment: 1 April 2021

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R E A S O N S   F O R   J U D G M E N T

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A.    INTRODUCTION

1.The is the hearing of the Originating Summons taken out by the Plaintiff (“Father”) against the Defendant (“Mother”) for an order that:

(1)  The minor (“AB”) be made a ward of court during his minority;

(2)  The Plaintiff be granted an order that he has all the rights and authority that the law will allow him as a father as if AB were legitimate;

(3)  That the joint custody and shared care and control of AB be granted to the Father and the Mother;

(4)  That the Mother do forthwith return AB to Hong Kong;

(5)  That upon AB’s return to Hong Kong the Mother do surrender to the Court the passports which have been issued to AB; and

(6)  That until further order, the Mother be restrained from taking AB out of Hong Kong or causing or permitting him to leave Hong Kong.

2.The Mother has been served with the Originating Summons.  She has not filed any evidence in opposition despite the Court giving her the opportunity to do so.  She had been reminded to seek permission to use video conferencing facilities.  And yet it was only 2 working days before this hearing that she requested this Court to allow her to appear by video link.  It was granted.  Arrangements had been made by this Court for pre-hearing testing and actual hearing.  She claimed to be unable to rectify some technical issue and unable to attend the pre-hearing test.  She did not appear but has in the afternoon on the day before this hearing produced a set of written submission without authorities.

3.In her written submission, the Mother raised 2 issues:

(1)  She did not accept that the Hong Kong High Court (which I shall refer to as the “CFI”, Court of First Instance of the High Court, below) can exercise jurisdiction over AB; and

(2)  The present proceedings have no utility as the CFI’s order is not recognizable or enforceable under Australian domestic legislation.

4.Given that the Mother had chosen not to appear, this Court proceeded in her absence on the uncontested evidence of the Father, although the Court had also taken into account the written submission of the Mother.  At the end of the hearing, I granted the orders sought by the Father.  Here are my reasons.

B.    THE FACTS

5.AB was born on 17 October 2014 in Hong Kong out of the cohabitation of the Father and the Mother.  The Father is named as the father on AB’s Hong Kong birth certificate.  AB has a French passport by virtue of having obtained a French birth certificate as being the child of a French national (the Father).  He also has an Australian passport through his Mother.

6.The parties had had a romantic relationship from early 2009 to February 2014, having first met in Japan.  They relocated to Hong Kong in September 2009 when the Father had a better job opportunity. 

7.In 2014, when the parties became aware of the Mother’s pregnancy with AB, they agreed that their romantic relationship was over.  However, they decided to continue living together and co-parent the child in a nurturing and stable environment after his birth.  This did happen for 6 years since AB was born until he was taken to Australia.

8.Save for a short time, the Father has always been in full-time employment, whilst the Mother has remained unemployed.  The parties shared care of AB whilst living together in the same household.  The Father has always been responsible for all the living expenses even till now. 

9.The Father can be described as a “hands-on” father, who was involved in every aspect of the child, from preparation before birth, witnessing his birth, to daily care after work.  He caused AB to watch French cartoons and spoke to him in French.  AB is proficient in French and it spoke of the good relationship between father and son.

10.The Father has been very involved in AB’s education.  Only 4 months after AB’s birth, the Father enrolled AB into the bilingual stream of the     (“FIS”) hoping to connect AB with his roots.  The Father attended to all the paperwork for the enrolment. Pending admission to FIS, the parties put AB into a local kindergarten.  The Mother changed her mind after FIS’ presentation and wanted AB to join the international English stream instead.  It was the Father who amended the application with FIS, after yielding to the Mother’s view.  The Father still holds the debenture for a place at FIS.

11.The parties used to think that AB should continue attending at FIS until he completed secondary school, unless there was a major change of circumstances which may cause relocation elsewhere as a family.

12.AB has his group of friends in Hong Kong.  He is a sociable child, well-liked by his peers.  He had a lot of play dates which he thoroughly enjoyed.  He had tried various activities like swimming, football, karate, tennis and climbing.  The Father spent time on outdoor activities with him like cycling, scooting, swimming, hiking or looking for animals.  They had lots of games.

13.As evidenced by the pictures exhibited and messages he has had with AB, the Father has developed a very close bond with AB. 

14.The Mother has different parenting styles which complemented the Father’s. According to the Father, he and the Mother have developed a “cordial co-parenting relationship”.

15.Since AB’s birth, the parties had travelled several times a year to Europe and Australia to spend time with the respective family.  The Mother would bring AB to Australia around twice a year for 4-6 weeks for AB to spend time with his maternal family.

16.In early 2020, there was outbreak of covid-19.  Schools were suspended in Hong Kong since late January 2020.  The family moved to Japan for 6 weeks to stay in a property that the Father had access to.

17.With the spread of covid-19, the Father agreed with the Mother’s proposal for AB to stay with her family in Perth for her peace of mind.  The parties had agreed that they and AB would spend the whole of July and August 2020 in France for the wedding of the Father’s brother and for AB so spend time with his paternal family.  When that time came, the Mother refused to travel with AB to France and to Hong Kong.

18.The Father has maintained contact with AB by video calls, initially 2-3 times a week.  They were increased to around 45 minutes per day between 5-6 pm after the Mother decided to stay longer in Australia and refused to bring AB to France for summer as agreed.  The Father and son played the usual games they had in Hong Kong via video calls to increase AB’s concentration in the video conversations. 

19.The Father has asked the Mother about her return to Hong Kong with AB or relocating to another country together.  However, she has chosen not to respond and refused to promise when she would return.  She did not consider it a good time for decisions and refused to attempt mediation.

20.Meanwhile, the Mother had enrolled AB in a school in Perth without either the Father’s consent or reference to him.  The Father only discovered it at the end of August 2020 when he saw AB in uniform.  He told the Mother in no uncertain terms that he did not agree to AB living permanently in Australia but the Mother did not respond.

21.The Father’s doubt as to whether the Mother would return with AB after the pandemic was increased because the Mother was attempting to seek employment in Australia and even arranged for movers to remove some of her favourite belongings from Hong Kong.

22.The Father considered it prudent to formalize his parental rights in respect of AB.  On 24 October 2020, the Father proposed to the Mother that she should enter into a consent summons under s.3(1)(d) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”) to formalize his relationship as AB’s father.  She ignored his request.

23.The Father filed the present Originating Summons on 30 October 2020.  By virtue of section 26(2) of the High Court Ordinance, Cap 4, AB became a ward of court on such filing.

24.At the call-over hearing for the Originating Summons on 6 January 2021, having been satisfied as to service on the Mother, this Court made an interim order along the lines of sub-paragraphs 1(3)-(6) above (“Interim Order”), ie:

(1)  The interim joint custody, shared care and control of the child be given to the Father and the Mother;

(2)  The Mother do forthwith return AB to Hong Kong;

(3)  Upon AB’s return to Hong Kong, the Mother do surrender to the Court all passports which have been issued to AB forthwith;

(4)  Until further order, the Mother be restrained from taking AB out of Hong Kong or causing or permitting him to leave Hong Kong; and

(5)  The Mother and Father do file evidence for the substantive hearing on 22 February 2021.

C.    DEVELOPMENTS SINCE THE ORIGINATING SUMMONS WAS SERVED ON THE MOTHER

25.It transpired that the Mother has charted her course to delay the Hong Kong proceedings as far as possible.

26.Firstly, the day before the call-over hearing of the Originating Summons, the Mother wrote to the CFI stating that she intended to institute concurrent proceedings in the Family Court of Western Australia (“FCWA”). Due to the pandemic, she could not come to Hong Kong.  She asked that the hearing be adjourned so that she could obtain legal advice.  It was too late for the CFI to respond before the hearing.

27.Secondly, on 6 January 2021 at about 10 am, this Court made the Interim Order.  The Australian proceedings were filed at 8:01 pm (Australian time) on 6 January 2021.  The Mother had plainly taken legal advice before she wrote to the CFI.

28.The Father was not given notice of the Australian proceedings until 9 January 2021 when he was in Australia.  That was the first actual notification from the Mother that she intended to retain the child in Australia.  By then, the Interim Order had been served on the Mother.  The Mother indicated to the Father that she had received the papers for this case but had not made known her position to him.

29.Thirdly, the Mother applied for legal aid in Hong Kong on 4 February 2021, 2½ months since the Originating Summons was served on her.  It triggered the automatic stay of proceedings for 42 days under the Legal Aid Ordinance, Cap 91. The hearing on 22 February 2021 had to be stayed until 30 March 2021.

30.It transpired that there was a hearing before FCWA exactly on 22 February 2021.  The Mother never informed the CFI about it.

31.In view of paragraphs 25-30 above, the Mother had tried to delay proceedings as part of her litigation tactics.

32.On 19 February 2021, the Father issued a summons for an anti-suit injunction seeking to restrain the Mother from pursuing any proceedings in respect of AB in Australia. 

33.The Mother was refused legal aid on 16 March 2021.  By no less than 6 letters, Withers (the Father’s solicitor) and this Court informed the Mother that although legal aid had been refused, the Court had not received her evidence in opposition to the Originating summons.  She was reminded that the Court may decide the Originating Summons on the evidence placed before it at the hearing on 30 March 2021.

34.Insofar as access was concerned, the Father has not been given the access that could reasonably have been given to him.  The Father took unpaid leave from his new employer in order to spend time with AB from December 2020 to January 2021, with weeks of quarantine.  The Mother permitted him only 2 or 3 hours of access every 2 or more days and did not permit any overnight access.

35.Since his departure from Australia, the Father was no longer allowed daily phone calls with his son.  Instead he was able to talk to AB a few times a week only.  One of the excuses given by the Mother was that AB was not “happy”; “daily calls were too much” and that the Father’s efforts were “intrusive”.

D.   ISSUES

36.The issues in the present case were as follows:

(1)  Whether the CFI could exercise jurisdiction over AB;

(2)  Whether the CFI’s order is recognizable or enforceable in Australia;

(3)  Whether it was in the best interests of AB

(a)   to grant the Father parental rights;

(b)   to grant joint, care and control to the Father and the Mother; and

(c)   to have AB returned to Hong Kong.

E.    ISSUE 1 – WHETHER THE CFI COULD EXERCISE JURISDICTION OVER AB

37.It is common ground that at the time the Originating Summons was filed, AB was not in Hong Kong; and the Mother, then the only person having parental rights over AB, was not within Hong Kong.

38.When the Mother acknowledged service of the Originating Summons on her, she expressly stated that she intended to contest these proceedings “on the grounds of challenging jurisdiction and/or forum.  [Her] filing of this Acknowledgement of Service was without prejudice to [her] right to challenge the jurisdiction of the Hong Kong Court and/or apply for a stay on the grounds of forum non conveniens.  It was expressly stated that [she did] not submit to the jurisdiction of the Hong Kong Court.”.

39.The Mother raised an issue over AB’s habitual residence.  Her position was that, having been in Australia since March 2020 in her primary care, AB would, by 30 October 2020 (date when the Originating Summons was filed), have lost his habitual residence in Hong Kong.

40.I am unable to accept the Mother’s contentions for the following reasons.

41.Firstly, the Acknowledgement of Service was a copy, the filing of which had been rejected by the High Court Registry by letter dated 21 January 2021.

42.Secondly, although the Mother had indicated her intention to challenge the jurisdiction of the Hong Kong Courts, she had not done it in the proper manner.  She had not eg taken out any summons for stay of proceedings on the ground of forum non conveniens, supported by affidavit evidence.  The application for stay had to meet legal requirements such as: that Hong Kong was not the natural or appropriate forum, that there was another available forum which was clearly or distinctly more appropriate than Hong Kong.  If the Mother could establish these, the Father would have to show that he would be deprived of a legitimate personal or juridical advantage if the action was tried in a forum other than Hong Kong.  With such evidence, the Court would have to balance the advantages of the alternative forum with the disadvantages that the Father may suffer.  See Hong Kong Civil Procedure 2021, Vol 1, §12/8/1.All of these involved factual evidence and legal arguments.

43.The failure of the Mother to take out a summons to properly challenge jurisdiction was not a procedural slip which the Court could overlook because the Mother was a litigant in person.  It was unjust to the Father who was deprived of the chance to refute her position.  In fact, the Mother appeared to have consulted lawyers because her statement in the Acknowledgement of Service as set out in paragraph 38 above was not something that she could have done without legal advice.

44.Thirdly, there had been at least 6 occasions when Withers and this Court had reminded the Mother that the hearing of the Originating Summons would proceed. This was a hearing for substantive and not interlocutory matters.  By lodging her submission, the Mother has submitted to the jurisdiction of Hong Kong.

45.Fourthly, the Originating Summons concerned proceedings under section 3(1)(d) of GMO and wardship proceedings, not proceedings for the return of a child to Hong Kong under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“Abduction Convention”).  This Originating Summons involved local law and not international law.  How these laws were applied is explained further in section G below.  The question of habitual residence of AB was not relevant.

46.Fifthly, the Mother submitted that it is now generally regarded that habitual residence is a matter of fact and is reflected in the degree of integration by the child in a social and family environment: A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] 3 WLR 761, §§54 and 80, SC.  In the case of young children in the sole lawful custody of the mother, their situation with regard to habitual residence would necessarily be the same as hers: In re J (a Minor) (Abduction) [1990] 2 AC 562, at 579 A-B, HL.  The child in re J was aged 3 at the time of the abduction.

47.The principles in the preceding paragraph have been adopted in Hong Kong in the case of LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798, at §7.7.  However, in LCYP v JEK, at §7.7(5),Cheung JA also expressly held that there was no legal rule, akin to that in the law of domicile, that a child automatically took the habitual residence of his parents.  Although a child could lose his habitual residence without a parent’s consent, nevertheless, it was clear that parental intent did play a part in establishing or changing the habitual residence of a child, ie parental intention in relation to the reasons for a child’s leaving one country and going to stay in another.  That had to be factored in, along with the other relevant factors, in deciding whether a move from one country to another had a sufficient degree of stability to amount to a change of habitual residence.

48.Even on the Mother’s legal propositions, as a matter of fact, AB has had full degree of integration in a social and family environment in Hong Kong.

49.The parents have resided in Hong Kong for 10 years.  AB was born in Hong Kong, at a time when his Father (on full-time employment) and Mother (unemployed) were resident here.  AB was raised in Hong Kong for 6 years and had been attending school in Hong Kong up till the time he departed for Australia.  The school still has a seat waiting for him.

50.AB went to Australia temporarily due to the presence of covid‑19 in Hong Kong.  The departure of AB from Hong Kong was upon discussion of the Father and Mother and with consent of the Father.  As demonstrated in the messages between the Father and Mother, the Father has always wanted AB to return to Hong Kong but the Mother was reluctant.  The Father has never consented to the relocation of AB to Australia or to stay there longer than was necessary to reduce AB’s exposure to the risk of contracting covid-19 in Hong Kong.  The Mother only first made known her intention for AB to stay in Australia upon serving her proceedings in FCWA on 9 January 2021.

51.AB has his own social circle of friends in Hong Kong.  He expects to return to Hong Kong “when the virus is over”.  He asked his Father to hide 3 surprises “at home” for him to look for as a treasure hunt when he “returned home”.  He asked the Father about his friends. When the Father bumped into AB’s friends, the Father would have them record short videos for AB, to which AB recorded videos in response.  AB found it strange to go to school in Australia but mentioned that he had to do it because it was the law and he did not want his Mother to get into trouble with the police.

52.It was plain that AB himself regarded Hong Kong as his home.  Accordingly, even if AB’s habitual residence was relevant, there was no doubt that his habitual residence before departing for Australia and even till now is Hong Kong.  Hong Kong is the most natural forum to determine rights relating to him.

53.I rule against the Mother on issue 1.  The Hong Kong Court plainly could exercise jurisdiction over AB.

F.    ISSUE 2 – WHETHER THE PRESENT PROCEEDINGS HAVE UTILITY

54.It is not disputed that a Hong Kong Court’s order over custody, care and control of a child will not be automatically recognized or enforced in Australia.  The converse is also true.  Accordingly, notwithstanding obtaining an order from the CFI, the Father may have to take out proceedings for a “mirror” order in Australia (in this case, from FWCA) to be able to enforce it against the Mother.

55.However, the authority cited by the Mother in In the Marriage of: Thomas Henricus Marie Hooft Van Huysduynen husband and Monique Sabine Lucille Van Rijswijk Wife [1989] FamCA 84; (1990) FLC 92-120 (29 November 1989), at §49, was actually against her.  In that case, FCWA did take into account the foreign judgments in the court at first instance and the Court of Appeal in the Netherlands where the parties had a family home and the husband had frequent contact with the children after he separated from the wife.  FCWA made an order for custody in favour of the father and gave him leave to take the children out of Australia.

56.By the same token, a CFI order may not be regarded as a nullity by the FCWA.  As pointed out by the Mother, there was not much material difference in the approach of the FCWA and the CFI towards questions of custody.  It was the welfare/best interests of the child that formed the paramount consideration of the courts.

57.Further, the order that this Court made would give legal rights to the Father.  They are enforceable rights, at least in Hong Kong.  They give legal status to the Father as AB’s father.  Based on an order granting him custody, the Father may take out proceedings under the Abduction Convention, if so advised.  He may legitimately take part in all major decisions concerning AB.

58.I rule against the Mother on issue 2. 

G.   ISSUE 3: BEST INTERESTS OF AB

G1.  Applicable legal principles

59.Wardship proceedings are not adversarial in nature.  The Court acts in a parental, administrative and inquisitorial manner.  Its purpose is to protect the property and/or the person of the ward. Its duty is to act in a way that is best suited to serve the true interests of the ward where there is an imminent or immediate need to afford protection for a child when that protection may not be readily derived from any other source.  If it is necessary, the court will exercise this supervisory jurisdiction over an extended period of time.  See M v Y [2009] 5 HKLRD 597, §4, Hartmann JA (sitting as an additional judge); M v H [2006] 1 HKFLR 196, 225.

60.Under section 3 of GMO:

“(1) In relation to the custody or upbringing of a minor, …

“(a) in any proceedings before any court (whether or not a court as defined in section 2) the court—

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to—

(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other;

(c) where the minor is illegitimate—

(i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;

(ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);

(d) the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.

(2)  Subsection (1)(a) shall have effect as regards any application under subsection (1)(d).”

61.In approaching s.3(1), subject to the position under illegitimacy, the Court will always put the competing parents on an equal footing.  This equality principle reflects the universal recognition that the long-term best interests of a child are best protected if both parents are, despite the breakdown of their relationship, involved equally.  See H v N [2012] 5 HKLRD 498, Poon J (as he then was), at §18.

62.In the case of illegitimacy, it remains the case that the unmarried father has no legal parental rights over his illegitimate child but he will have such rights and authority, if any, as may be ordered by the court upon his application under s.3(1) GMO: H v N, §19.

63.The Court will consider, in particular,

(1)  The degree of commitment which the father has shown towards the child;

(2)  The degree of attachment which exists between the father and the child; and

(3)  The reasons of the father applying for the order.

See C v S, HCMP 929/2017, 12 October 2017, B Chu J, §12, 77-90.

64.The terms “best interests” is to be given its widest meaning.  It is well established that the courts will have regard to a “welfare checklist” which include a list of non-exhaustive factors like:

(a)  The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)  His physical, emotional and education needs;

(c)  The likely effect on him of any change in his circumstances;

(d)  His age, sex, background and any characteristics of his which the court considers relevant;

(e)  Any harm he has suffered or is at risk of suffering;

(f)  How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; and

(g)  The range of powers available to the court in the proceedings in question.

See H v N, at §§27-28.

65.The Court however, is not obliged to follow this list and set out the findings on each factor one by one.  The checklist is but an aide memoire and is not exhaustive: H v N, §§28-32.

G2.  Degree of commitment which the Father has shown towards AB

66.In view of the evidence in paragraphs 7-19 above, I had no doubt that the Father was fully committed to AB in every aspect of AB’s life, in terms of fatherly love, education, daily care, communication, nurturing and financial support, to name a few.

67.Even though AB has, by now, been out of Hong Kong for about a year, the Father has not ceased his attempts to fly to Australia to meet his son when tickets were available and using unpaid leave.  He kept contacting AB through video calls.  The Father has not ceased his financial support of the Mother and AB, notwithstanding that their stay in Australia was against his wish. 

G3.  Degree of attachment which existed between the Father and AB

68.Again, I have no doubt that there was full attachment which existed between the Father and AB.  As the evidence showed, the Father and son enjoyed each other’s presence.  There was no barrier in their communication even through video calls.  They remained closely bonded together.  In fact, AB longed to see the Father and has kept asking the Father when he could go to Australia.

G4.  Reasons of the Father for applying for the order

69.The Father deposed that with the alarming number of covid‑19 cases globally and the many uncertainties associated with it, he thought it prudent to formalize his parental rights as AB’s father in case something were to happen to the Mother.  That was a legitimate reason.

70.He has agreed for AB to travel to Australia with the Mother and stay there as a temporary place of sanctuary but has never agreed to AB locating there permanently.  The Mother had, nonetheless, enrolled AB in a school in Australia without the Father’s consent.

71.Although before filing proceedings in FCWA, the Mother had not expressed to the Father that she intended to stay permanently in Australia with AB, her actions had created considerable doubt in the Father’s mind that she might decide to do so sooner or later.  The Father therefore sought an order for return to AB before it was too late. 

72.The Father has tried to avoid litigation and sought the Mother’s consent to give him legal rights as a father under s.3(1)(d) of GMO.  The Mother ignored his request, hence this Originating Summons.

73.The Mother has not produced any evidence to refute the Father’s case.  I find the 3 tests in C v S to have been met by the Father.

G5.  Other considerations

74.Section 3(1) of GMO obliged the courts to consider 2 things: the views of a child and any material information in a social welfare report.

75.In this case, the Father acknowledged the difference in parenting method from the Mother which complemented each other. In fact, the Mother sought similar relief over the questions of custody, care and control in FCWA.  No social welfare report was called for.

76.I have taken into account the Father’s description of AB as “very vocal and assertive on what he likes or does not like to do, although he is only six years old”.  But for the fact that AB was out of the jurisdiction of Hong Kong, this Court would have preferred seeing AB in person to listen to his views.

77.Accordingly, post hearing, I have added a term to the draft order that within 3 days of return of the child to Hong Kong, the Court should be notified.  If the parents still have issues over the custody, care and control of AB, the Court may then have the opportunity to see AB and give the necessary directions.

78.Under the welfare checklist and the principles in H v N, I wish to make some observations.  The pandemic was harsh enough to physically separate loved ones.  It was harsher on the Father and AB to emotionally distance them from each other without full explanation to AB and without seeking his views.  The Mother disregarded the close attachment of Father and son to create what appeared to be fait accompli that AB had been relocated to Australia.  This could not be in the best interests of AB’s physical, emotional and educational needs.

79.Further, the fait accompli effectively uprooted AB from the social or family environment that he had been used to for 6 years.  It also violated the equality principle between parents. 

80.The Mother may have thought that she was in law the sole legal custodian of AB entitled to relocate the child to Australia.  However, she was aware that the Father did not consent to this.  Under Hong Kong law, it has been held that even in the case of an illegitimate child, the mother should have made a proper application to the Court for relocation instead of taking the matter into her own hands: LCH v JMC [2019] HKCFI 1894, §43, B Chu J (a case decided in the context of the Abduction Convention). 

81.Further, even if the Mother should have sole custody of the AB, she should still have given generous access to the loving Father.  Restricting access was entirely unreasonable on the part of the Mother when one considered the history of the child’s upbringing with the Father’s presence and that the Father had not seen his son for 8 months since AB was taken to Australia.  Her attitude deprived father and son of the precious opportunity of bonding and quality time.

82.The Mother’s conduct over access made it clear that the longer the child were to stay in Australia, the greater the restriction she would impose on the Father’s access to the child.  Her failure to support the father and son relationship might be under the mistaken belief that it would improve her litigation position in Australia.

G6.  Findings on best interests of AB

83.Taking into account all the matters in Section G, it was in the best interests of AB to legalize the rights of the Father over AB so that the Father can participate in matters concerning AB.  It was also best that AB be returned to Hong Kong, where his home is and where the best jurisdiction to decide questions concerning his interests is.

H.   APPROPRIATE ORDERS

84.AB should continue to be a ward of court for the time being as there are still issues concerning the anti-suit injunction to be dealt with.  The Court also wants to exercise supervision over the child at least in the short period after his return to Hong Kong.

85.Given that the Father has passed the tests in C v S, the Father should be given all the rights and authority that the law would allow him as a father as if AB were born in wedlock.  The long-term interests of AB will be best served by both parents being equally involved.

86.The parties have been observing the equality principle in co-parenting AB in a loving and stable environment, notwithstanding their cessation of romantic relationship, for about 6 years in Hong Kong.  Even the Mother is seeking an order for shared parental responsibility in FWCA, an acknowledgement of the Father’s role and his past contribution as a parent in the life of AB.  Ordering joint custody, care and control was to maintain the status quo and to meet the expectations of both parents.

87.Further, according to the Father, it came as no costs for the Mother to stay in Australia as she has had access to the joint account and the credit card that he gave her.  However, his access to AB was limited by available flights, the leave he could obtain from his employer and now the “permission” of the Mother.  It was not in the best interests of AB if his physical contact with the Father was so limited.

88.It appears that Australians are permitted to travel outside Australia for a compelling reason (such as to comply with this Order) for 3 months or longer.  There is no ban on people entering Hong Kong from Australia, although they will still be subject to quarantine on arrival.  There are now direct flights from Perth to Hong Kong available.  The Father is willing to pay for the air tickets of the Mother and AB.  He is also willing to provide separate accommodation for the Mother upon her return to Hong Kong.  He would use his best endeavours to have the Mother’s visa for entering Hong Kong renewed, since it had expired in around June 2020.

89.I could see no barrier that could hinder the child’s return to Hong Kong.  The Mother should be restrained from taking him out of Hong Kong until further directions of the Court.

I.     CONCLUSION

90.For the reasons given, I have therefore made the orders as sought in paragraph 1 above. 

91.On costs, the Father sought no order as to costs.  I hope the Mother would appreciate that this was a very generous gesture, given the Father’s previous attempt to try mediation and to get her to sign a consent summons so as to avoid legal proceedings.  She has not been cooperative, resulting in the present Originating Summons proceedings.  But for the Father’s generosity, the Mother would have to bear costs.

92.This Court also hopes that the parties could work things out instead of spending huge costs on litigation, which could have been saved for the son’s education and travels.

93.I thank counsel for her assistance.

J.     REMINDERS ON PRACTICE TO PRACTITIONERS

94.The practice of indiscriminately copying correspondence for a hearing (commonly found in matrimonial and family cases) must stop.  In the present case, the relevant correspondence has already been produced in Bundle B and yet Bundle C containing all correspondence was produced. In Ms Irving’s submission, only 4 pages (out of over 100) in Bundle C was referred to.  It was a waste of client’s money.

95.The Court has no duty to sift through all correspondence to pick out what is relevant.  That is the job of the legal representatives.  Only relevant documents should be included in hearing bundles.

96.Unless Withers shows cause by letter to me within 14 days of the handing down of this judgment as to why it should not personally bear the costs of producing Bundle C, Withers should bear such costs personally.  If such costs have been paid by the Father, those costs should be repaid to him.

Ms Francis Irving, instructed by Withers, for the Plaintiff

The Defendant was not represented and did not appear