Vdr, Ba v. Toy

FCMP 171 / 2020

[2022] HKFC 260

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 171 OF 2020

_______________________

__________

BETWEEN

_____________

________________

D E C I S I O N
(Holidays)

________________

Background

1.The parties are respectively husband and wife who married to each other in 2012. There are 2 children born out of their marriage who are at the age of 8 and 6 at the time of this Decision, whom I will refer to them collectively as “Children” in this Decision. I will refer to the Applicant as the “Father” and the Respondent as the “Mother”.

2.These proceedings were brought by the Father in November 2020 seeking sole custody, care and control of the Children. Without going into much details of the background, it was the Father’s case that the Mother was addicted to cocaine (and other addiction problems) which had caused him to bring these proceedings for formalising the care arrangements of the Children.

3.Suffice it is to say that the Father had once taken the Children to his home country in the Netherlands in January 2020 before these proceedings were commenced. It was the Father’s case that by that time that traces of cocaine were left all around the house. He had tried but was unable to convince the Mother to go to rehabilitation. In fear and concern over the Children’s safety, he decided to take the Children back to his home country in the Netherlands for his mother to take care of the Children. The Mother agreed to that trip arranged by the Father but did not expect that it was anything longer than a short vacation visiting the paternal family members.

4.The Father and the Children arrived in the Netherlands on 1/2/2020. He then arranged schooling for the Children and also managed to obtain a fast track visa for his domestic helper to fly out from Hong Kong to the Netherlands in March 2020 in order to help out his mother (who was aged 73) in taking care of the Children.

5.The Father flew back to Hong Kong himself in March 2020 to finalise some arrangement for his new job leaving the Children behind in the Netherlands to the care of his mother. The Mother’s cocaine issue persisted which had caused the Father to decide keeping the Children in the Netherlands until more permanent plans could be worked out with the Mother over her cocaine issue.

6.The Mother had once engaged lawyers and Counsel at the beginning of these proceedings. She is now acting in person unrepresented although her documents (including affidavits) are prepared somewhat in a “lawyer’s style” format.

7.On 27/11/2020, the Mother through her then lawyers filed an Ex Parte Summons (on notice). An urgent hearing was scheduled at 6 p.m. on that day. The Father instructed lawyers to appear. Having heard submissions from both parties, this Court ordered the Father to return the Children to Hong Kong within 7 days. It was further ordered that the Father and the Mother be restrained from removing the Children out of Hong Kong until further order.

8.In compliance with the said Order, the Father brought the Children back to Hong Kong.

The 1^st application for travel

9.On 1/6/2022, the Father filed his Summons seeking leave to take the Children temporarily out of Hong Kong for an overseas holiday. He filed his 5^th Affidavit in support of this travel application.

10.In the 5^th Affidavit, the Father deposed that he had not booked any flights without leave of the Court or the Mother’s consent first obtained. The initial plan was to take the Children to Dusseldort, Germany on 11/7/2022 and then drive from there to the Netherlands to meet his mother (that is, the paternal grandmother of the Children) and other family members. Besides, he planned a week-long side-trip within Europe, likely Spain, for a mini holiday with his brother’s family. The whole period of travel was expected to take about 3 weeks within the Children’s summer holidays.

11.He planned to fly back from Dusseldort, Germany on 1/8/2022 and would be arriving Hong Kong on 2/8/2022. Given the period of quarantine for travellers entering Hong Kong (which was 7 days by the time in July/August 2022), his travel plan would provide enough time for the quarantine before the new school term starts on 22/8/2022.

12.However, given the busy schedule of the Family Court, the Father’s Summons could only be scheduled for a call-over hearing on 8/8/2022 which was the earliest available date. At the hearing on 8/8/2022, Father’s Counsel Mr. Baker sought leave to withdraw the travel application because of the up-coming 5-day trial of the Father’s Originating Summons for custody, care and control of the Children would commence on 24/8/2022, that is, in about 3 weeks’ time. Leave was granted for withdrawal of the Summons.

The 5-day trial in August 2022 and the subsequent development

13.The 1^st day of trial started on 24/8/2022 (Day 1) as scheduled with the social welfare officer Miss Kwan testified in Court. In the morning of 25/8/2022 (Day 2), there was the typhoon no.8 which had suspended the morning session of the trial hearing. As typhoon no.8 was lowered before noon that day, all court hearings resumed in the afternoon at 2:30 p.m.

14.What had happened was that the Father’s lawyers received an email around 1:37 p.m. and from reading the contents of it, it was sent by the Mother’s domestic helper saying that the Mother was sick and could not attend Court. Given the situation, this Court adjourned the trial to 30/8/2022, which was the scheduled Day 3, with directions that the Mother should produce her medical certificate for her absence for the afternoon hearing on Day 2 (that is, 25/8/2022).

15.On 29/8/2022 at around 11:46 a.m., a letter was received from the Mother telling the Court that she was unable to attend the trial on Day 3 (that is, 30/8/2022) due to her sickness. Attached to this letter was 2 medical certificates dated 25/8/2022 and 29/8/2022, both of which were issued by one Dr. T, a practising Chinese herbalist, who is the father of the Mother. The certificate dated 25/8/2022 covered the sickness absence on that day; the certificate dated 29/8/2022 covered the sickness absence for 3 days starting from 29/8/2022 to 31/8/2022.

16.On 30/8/2022 and upon considering the said letter, this Court sitting in Chambers adjourned the trial on that day to Day 4 (that is, 6/9/2022) without holding a hearing. Parties were duly informed.

17.At about 10:20 a.m. on Day 4 (that is, 6/9/2022), there was a person who claimed to be the elder brother of the Mother attended Court and handed over to my clerk Miss Yip a medical certificate issued by the same Dr. T for 1 day sick leave on 6/9/2022. The trial on Day 4 was then also adjourned, but this time was adjourned sine die with liberty to restore, since it was not impossible to finish the trial within the next day (that is, Day 5). There was also no assurance that the Mother would be able to attend Court the following day. Apart from granting the adjournment, the Court granted interim sole care and control of the Children to the Father with specific directions on interim defined access to the Mother; to take into account the Mother’s health condition since she had been sick for a couple of days.

18.The unfinished trial has now been fixed for 4 days commencing 10/5/2023. At the next hearing in May 2023, the Mother would begin with her questioning on the social welfare officer Miss Kwan. Thereafter, the single joint expert Dr. Choi would give evidence. The parties would testify and be cross examined by the other party.

19.With that chain of evidence in mind, unless parties are able to come to some sort of compromise, a full blown trial seems inevitable which hopefully could be completed within the 4 days now re-scheduled. With such timeline and, provided that it runs smoothly, the Court’s decision (for a part heard 5-day trial) would most likely to be available around the middle or within the latter half of 2023. By that time, the Children would be stayed in Hong Kong for around 28 to 30 months.

The Father’s present application for travel

20.On 20/9/2022, the Father filed his Summons seeking leave to take the Children temporarily out of Hong Kong for an overseas holiday. This is the 2^nd application of such nature. In the terms of the Summons, the Father said he would return the Children to Hong Kong no later than 7/1/2023 or sooner if called upon by the Court. He filed his 7^th Affidavit in support of this application.

21.The Father in his 7^th Affidavit provided the reasons for the travel as follows :-

“Reasons for travel

16. The Children and I have not travelled outside Hong Kong since December 2020. During this time the children have been dearly missed by their family in the Netherlands whom they have not seen in 21 months, particularly their grandmother with whom they stayed and developed a close bond for a number of months in 2020.

17. This holiday will allow us to see my mother, my siblings, and my nieces and nephews (the Children’s grandmother, aunts and uncles, and cousins). During their time staying in the Netherlands in 2020, the Children became close with their cousins (my sister’s children). Since then, my brother welcomed his first child in March 2021, Ixxx, whom the Children very much wish to meet. The Children have also missed the friends they made in the Netherlands and would very much like to visit them as well.”

22.This application was listed for a call-over hearing on 7/11/2022. The Mother turned up unrepresented and opposed this application. Given the time constraint, both parties agreed for the application to be disposed of on paper without an oral hearing. Leave was granted for the Father to supplement his 7^th Affidavit on the following day as to his status of employment. Directions were granted for the Mother to file and serve her affidavit in opposition no later than 15/11/2022 (that is, within 7 days after the Father’s supplement his employment) with consequential leave for the Father to file his affidavit in reply (if any) no later than 22/11/2022 (that is, another 7 days thereafter). Parties may then exchange written submissions no later than 29/11/2022 (that is, a further 7 days after the filing and exchange of their affidavits).

23.This Court specifically directed both parties to limit the length of their affidavit(s) to not exceeding 5 pages, using 14 font size characters and 1.5-inch line spacing format (“specified format”).

The Mother’s objection

24.On 15/11/2022, the Mother filed her 5^th Affidavit consists of 8 pages attached with one exhibit consists of 27 pages. Apparently, such affidavit was not in accordance with the specified format.

25.This Affidavit contains 15 paragraphs under 2 headings, namely:-

- “The Applicant’s Employment in Hong Kong” (paragraphs 6 to 8); and

- “My Reasons and Concerns” (paragraphs 9 to 15).

26.The Mother said the Father had provided incorrect information as to his employment in his affidavit(s) filed and also when he told the social welfare officer Miss Kwan who was in charge of this case. The Mother exhibited some documents that she obtained from the Companies Registry and obtained by her online searches with the aim to negate what the Father had said about his employment. Without the need to expressly say so, the Mother challenged the Father’s creditworthiness and, by reference to his employment, also challenge the Father’s ties and link with Hong Kong.

27.The Mother in her other grounds of objection under the heading of “Reasons and Concerns” said the Father had once taken the Children away from Hong Kong back to the Netherlands in early 2020 for about 10 months. He only returned the Children to Hong Kong when ordered by this Court to do so. The rest of her grounds of objection referred to the Father having owed her father a sum of HK$300,000 which, with interest added, came to around HK$400,000 by now. The Father also owed her monthly allowance of HK$50,000 a month over the years. She worked out that it was in the region of HK$2,520,000 in total which need to be paid to her before she would agree to the Father’s holidays summons[1] (emphasis added).

28.According to the Mother, the two sums owed to her and her father comes to HK$2,920,000 which caused her to believe that the Father would just flee and not return to Hong Kong if he was allowed to leave with the Children[2]. She asked for a number of undertakings to be provided by the Father in order to guarantee his return to Hong Kong.

The Father’s Reply

29.The Father filed his 10^th Affidavit in reply on 22/11/2022. This was a 10-page document attached with 1 exhibit consists of 57 pages. Same as what the Mother did, the Father’s 10^th Affidavit was also not in accordance with the specified format.

30.In reply to the Mother’s challenge over his present employment, the Father said the documents exhibited by the Mother in her 5^th Affidavit were outdated and unreliable. They were only updated as at 16/11/2021 and also that they were not updated by him[3]. Further, he denied having used “LinkedIn” for over 10 years. The nature of his work does not require him to use LinkedIn[4].

31.The Father produced his latest Employment Agreement[5] and his MPF statements[6] which, together with the payroll slips (produced by the Mother in her Exhibits attached to her 5^th Affidavit[7]), supported what he said in his 7^th Affidavit as to his present employment.

32.The Father then made some proposals on the make up access for the Mother if he was successful in this application for travel with the Children for the Christmas holidays[8].

33.The Father denied that there was any parental alienation over the Children[9].

34.The Father denied that there was any agreement to pay the Mother maintenance at HK$50,000 a month. That said, there was no issue of owing the Mother any unpaid maintenance as the Mother alleged in the region of around HK$2,520,000.

35.The Father did not dispute a sum of HK$300,000 was advanced by the Mother’s father but that was before their separation and that it was arranged for the benefit of the whole family, that is, himself, the Mother and the Children. In any event, this was not the appropriate platform for arguing such issue. The Father said he had no intention to avoid the said sum nor had he ever had any intention to leave Hong Kong in order to avoid it.

The Court’s Views

36.On all applications concerning children in family proceedings, the first and paramount consideration of the Courts is to ensure that the best interests of the children are secured and well served by whatever decision(s) they made[10]. There is no difference between children born within wedlock or born during cohabitation.

37.Courts are expected to be stern and firm in arriving at their decisions, be it an interlocutory one or for case management purposes, after evaluation of all the evidence and materials that are available, and also to take into account of any pre-existing or existing factors and the overall circumstances of the case. There is no exhaustive list of factors or any hard and fast rule. Each case depends on its own facts. Any decision made must be fair and reasonable to the parents without sacrificing the best interests of the child.

38.The Father’s ties and link with Hong Kong is one of the many factors for considering the chance, probability and any propensity or likelihood of him leaving with the Children but not returning them to the jurisdiction. Such factor of “ties and link” plays a prominent part of the consideration if the party leaving the jurisdiction possesses citizenship or right of abode in other jurisdictions. It may be too “tempting” for him or her to just leave and not return. Whether the other country involved is a contracting state to The Hague Convention is also a major factor for consideration as it provides an avenue for seeking return of the child by way of further proceedings on child abduction.

39.In the present case, there was a long family history which the Father had set out in great detail in his 19-page 1^st Affidavit filed at the time when he commenced these proceedings in November 2020. In November 2020, the Father saw the need to regularize the Children arrangement with the Mother by bringing these proceedings in Hong Kong. This was done during the time when the marital relationship had been much affected by the Mother’s habit of taking cocaine. According to the Father, the cocaine issue was overwhelming worrying to him; in particular, over the Children since all of them are living in the same household.

40.It must not be forgotten that when the Father commenced these proceedings in November 2020, he had already taken the Children back to the Netherlands for about 10 months since January 2020. The Children had already been studying there and was being taken care of by the paternal grandmother. The Children could permanently stay in the Netherlands since they have citizenship there. Despite all these alarming factors, the Father took the time, expense and effort to start these child-related (and not marital related) proceedings in Hong Kong given that he could, if he had so wished, just left the Children in the Netherlands without any recourse to litigating with the Mother here in Hong Kong or he could simply assert his parental rights over the Children (if there was such a need) in the courts of law in the Netherlands. It turned out that neither of this had ever happened. In my view, this is commendable.

41.Having commenced these proceedings in Hong Kong and faced with the Mother’s complaint that the Children had been removed and not returned to the jurisdiction, and upon being ordered by this Court at the hearing on 27/11/2020, the Father brought the Children back to Hong Kong soon afterwards in December 2020. It must also be noted that as at 27/11/2020, these proceedings were only at their preliminary stage since the Father’s reasons for taking the Children away from the Mother or the jurisdiction and; on the other hand, the Mother’s complaint(s) of the removal, had yet to be fully argued. Given such situation, the outright return of the Children to this jurisdiction upon being ordered to do so is another commendable course of conduct of the Father although I must say that he was obligated to comply with court orders.

42.The Father’s Employment Agreement with his present employer was signed on 2/7/2021 to take effect from 14/5/2021 (subject to obtaining all necessary licences)[11]. This was an “open ended” employment which was only terminable upon notice being served or upon those conditions set out in the Agreement taking place. The annual remuneration was HK$1,950,000 (plus discretionary bonus and discretionary reimbursement of housing expenses). This works out a base monthly salary of HK$162,500 (plus the said discretionary payments) which matches completely with the payroll slips for August, September and October 2022 produced by the Mother in her Exhibits[12]. This shows that the Father was still employed by the same employer even in October 2022 under the Employment Agreement signed in July 2021. His employment status was thus proved.

43.The company documents filed with the Companies Registry produced by the Father[13] shows the date of 1/6/2022. The Father was neither a director nor a shareholder of his employer company. That said, I accept the Father’s case that he was a salaried employee.

44.The tenancy agreement produced by the Father for 12 months from 20/12/2022 to 19/12/2023 could not be accepted as evidence[14]. First, it was not stamped. Secondly, it was not dated. However, since the Mother never disputed that the Father was not living in Hong Kong, the absence of the tenancy agreement of his residence was neither here nor there.

45.The Mandatory Provident Fund (“MPF”) statement produced by the Father[15] shows the name of his employer same as the one in his Employment Agreement. Such statement covers the period of contribution from 1/4/2022 and 31/10/2022. The address on the MPF statement was the same address of his employer company shown in the Annual Return made up to 14/5/2022[16]. I accept that all such evidence was supportive of the Father’s case that he was employed and worked in Hong Kong. Taking all the Father’s evidence into account collectively, the factual background of this case which I have outlined above[17] and giving them careful consideration, I am satisfied that the Father has sufficient “ties and link” with Hong Kong which outweigh any “flight risks” that could have arisen by reason of his nationality of the Netherlands.

46.I noticed that at paragraph 2 of the Social Investigation Report prepared by Miss Kwan[18] where it was said that the Father quitted his previous job and started to run a company with a partner in April 2021. The company referred to in the report was the same company which the Father now said he was employed and that he had no business interest in it.

47.As at present, Miss Kwan has not finished her testimonies in Court. The Mother has yet to start with questioning Miss Kwan on her investigation and all the reports that she had compiled. This Court would then have to decide on Miss Kwan’s evidence including the weight to be attached to her reports. It is pre-mature to form any definitive views on Miss Kwan’s evidence including her reports at this stage by picking certain paragraphs in the reports at their face value.

48.The Father’s Employment Agreement with the company was signed on 2/7/2021 but to take effect from 14/5/2021[19]. The Father’s testimonies have yet to begin. It would only be fair and proper for the Father to explain in his oral testimonies about his position and relation (if any) between him and the company before the Employment Agreement took effect around May 2021. Such evidence was wanting at this stage.

49.The Mother was unable to rebut or discredit the Father’s evidence of his “ties and link” to the extent that he would be fleeing with the Children and not return them to the jurisdiction. The company documents produced by the Mother were not up-to-date as they were only updated to 7/5/2021. As said earlier, the Father entered into the Employment Agreement on 2/7/2021 and to take effect on 14/5/2021, which date was a week after the date of 7/5/2021 and the Father’s oral evidence on his work status during the week between 7/5/2021 and 14/5/2021 was wanting at this moment. The Mother’s other submission that the founder and sole shareholder “X” of the Father’s employer using the Father’s address could neither be supportive nor conclusive of her case that the Father was in business partnership with “X”. Such submission was insufficient to traverse the Father’s case of employment being untrue or incorrect. Without the Father’s evidence being tested by cross examination at this stage, in my view, the Mother’s submission or challenge that the Father having business interest in the company of “X” could only be her guess and speculation.

50.In my decision, none of those matters set out by the Mother under “The Applicant’s Employment in Hong Kong” was sufficient to show that the Father was not employed in Hong Kong. Such ground of objection could not succeed.

51.Turning to the Mother’s second ground of objection under “My Reasons and Concerns”, this is a complete non-starter. The so-called “reasons” are purely financial reasons (emphasis added) for herself and/or for her father. The so-called “concerns” are nothing but concerning whether she would get paid of the HK$2,520,000 so alleged and; if so, she would then agree to the Father’s holiday summons[20] (emphasis added). Since this issue was disputed by the Father, it requires to be further litigated.

52.The only submission under this ground of objection which might be of relevance was the Father’s taking the Children away from her and the jurisdiction back in January 2020. However, that one-off incident had been considered and discussed in the above paragraphs[21] of this Decision. The background leading to the incident must be considered in its full context. To avoid any misunderstanding on the part of the Mother, what was commendable for the Father was his commitment to these proceedings and compliance with court orders and legal procedures paying due respect to the parental rights of himself and the Mother, whose marriage still exists irrespective of whether it was harmonious.

53.I find none of the matters set out by the Mother under “My Reasons and Concerns” constitute sufficient grounds of objection to the Father’s application herein.

Best Interests for the Children ?

54.The Children had been caught within their parents’ dispute for over 2 years by now. There is no reason and indeed not fair for them to be deprived of their rights of seeing the paternal and maternal grandparents, and also cousins and friends.

55.In this case, the maternal grandparent(s) was required to be present during the Mother’s interim access time. The Children could readily meet them but not with the paternal grandparent for 2 years. Would this be fair ?

56.In my view, unless there are special and exceptional circumstances, children should not be deprived of their rights to meet their grandparents especially who are of old age, be it paternal side or maternal side, and that such rights was that of the Children and not the parties.

57.I am satisfied that the Father’s application for taking the Children to visit the paternal family members is in the best interests of the Children.

58.I will grant leave for the Father to take the Children out of jurisdiction to Germany and the Netherlands (both are contracting states to The Hague Convention) for the period from 17/12/2022 (Saturday) to 4/1/2023 (Wednesday) both days inclusive and Hong Kong time upon his undertaking to the Court to bring the Children back to Hong Kong after such travel or when called upon the Court to do so at any other time.

59.Upon confirmation of flight schedule, there be a hearing for one hour at 10:30 a.m. on 8/12/2022 for resolving access arrangement by the Mother during the period of travel. The Father shall provide to this Court and the Mother full details and itinerary of the travel no later than 4 p.m. on 6/12/2022.

60.In the event that no confirmation of travel and schedule was provided by the Father as directed, the leave granted herein will be set aside.

Costs

61.I noticed that the Father is seeking costs for this application should he succeed in obtaining leave from the Court.

62.Given the nature of this application and the Mother’s right of objection and her conduct of litigation could not be said to be unreasonable, I decided that the normal rule of not granting any costs order over children matter is fair and appropriate for this application.

63.I decided that there be no Order as to costs of this application.

64.This is a costs order nisi which would become absolute if no application is made to vary the same within 14 days from the date of this Decision.

Mr Josh Baker instructed by Messrs. Tanner De Witt, Solicitors for the Applicant

Respondent unrepresented, acting in person