Trh v. Kcs
Read the full judgment text of FCMC 8704/2023 on BabelCite. This Family Court judgment was delivered on 28 September 2023 before H.H. Judge C.K. Chan.
Matrimonial Causes – Interim Access – Children’s Welfare – Ex-parte Application – Location of Access – Child Psychologist – Costs – Whether ex-parte application appropriate despite urgency doubts – Yes, due to children’s welfare – Where interim access should take place – Initially at former matrimonial home – Whether to appoint child psychologist – No, previous decision not varied – Outcome: Access order varied to take place at former matrimonial home initially; no order as to costs.
Legal issues: Ex-parte application urgency · Location of interim access · Appointment of child psychologist · Costs
Outcome: Interim access order varied; access to take place at former matrimonial home initially; no order as to costs
Cites 1 case
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FCMC 8704/2023 [2023] HKFC 202 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 8704 OF 2023 ____________________
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----------------------- D E C I S I O N (INTERIM ACCESS) ------------------------ 1.It is regrettable to note that the issue of interim access has to be re-visited today, just 3 weeks after its making on 7 September 2023, and with the next hearing coming up in another 3 weeks’ time on 20 October 2023. 2.On 7 September 2023, after hearing the father’s urgent application for interim access to the 2 children of family, I granted an interim access order on the following terms:
3.However, an ex-parte summons (on notice) was issued yesterday, with a return hearing at 3:30 pm today. In the mother’s 2nd Affidavit, she stated that “Unfortunately, there has been extreme difficulties with access because the children’s resistance, fear and anxiety towards seeing the father, which has worsened and increased with each access” (paragraph 4). I was informed that there was great reluctance on the part of the children in having access outside the former matrimonial home. So far, 3 access had taken place, but all were only made possible with the encouragement from the mother. There are even allegations that these 3 access times were “sabotaged” by the father’s unwitting acts, which are listed in paragraph 8 of Ms. Yip, SC’s skeleton submissions. For the other time slots, there were scenes of deadlock because the father simply refused to go inside the former matrimonial home, whilst the children insisting not to go out of the home. This has caused much distress and according to Ms. Yip, if nothing is done, there is a real risk that the children’s well-being will be harmed beyond repair. 4.In order to address the problem, the mother is now proposing for the Tuesday, Thursday and Sunday access to take place in the former matrimonial home, which is the only place that the children would feel safe, secure and comfortable. This is also the place where they will have their ECA on Sunday. In the draft order prepared by Ms. Yip, the mother also proposes certain mutual undertakings, hoping to avoid any escalation of the problem, and she also proposes the engagement of a child psychologist to provide therapy treatment to the children. 5.The father was represented by Mr. Li. From his written submissions, the father refuted the allegations of the mother. Mr Li criticised the mother in not complying with the interim access order and said the mother’s maid even refused to open the front door of the former matrimonial home. The suggestion of the father having access at the former matrimonial home is not accepted because the father did not want the form of access to be dictated in any way by the mother. Mr. Li also queried why the application has to be made on an ex-parte basis, because such application should only be made on an extremely urgent basis. 6.On the extreme urgency point, I agree with Mr. Li that ex-parte application should only be made either if the issue of confidentiality is involved, or there is extreme urgency. Due to the fact that a hearing is coming up in 3 weeks’ time, I accept that there is some doubt on whether the present application would fall into that extreme urgent category. However, we have to bear in mind that this is a children matter and their welfare is now in issue. I decide to consider the merits of the application despite the mother may not be able to satisfy the extreme urgency requirement. 7.In my view, it is totally unsatisfactory for proper access as ordered not being able to take place. However, I think this is not an appropriate time to investigate into whose fault it was. What is more important is for the father to resume access to the children. It is also important to facilitate the proper preparation of a Social Investigation Report on 20 October 2023. 8.In this regard, I am minded to order the access on Tuesday, Thursday and Sunday to take place initially at the former matrimonial home, but with a condition that the mother and maternal grandmother should leave the place 15 minutes before access. After the father starting access at the former matrimonial home, and if the children are willing to go with him, access could take place outside the former matrimonial home. I do not expect the father to put pressure on the children in mandating them to go outside and I trust that the father will exercise his good judgment in this regard. 9.As for Sunday, Ms. Yip urged that such access should also take place at the former matrimonial home because all or most of the ECAs would take place there. I can only say that from my perspective, the father’s access to the children is far more important than any of those ECAs. I will not order the re-building of the father and son relationship to be subject to any ECAs at all. Therefore, the Sunday’s access will also take place at the former matrimonial home initially, and the father is at liberty to take them out when they are ready to do so. 10.The mother’s second application is for the appointment of a child psychologist to provide therapy treatment to the children. I have already ruled on this point last time and I am not prepared to vary the said decision, unless there is an agreement between the parties. 11.Ms. Yip also asked this court to make orders in terms of the proposed undertakings in the draft order. Without the agreement of the father, I am not convinced that it is proper to make such orders on an ex-parte application. 12.The father also asked for extended access time during Fall Break. There is no formal application before me, but even if there is any, I would prefer to leave that after seeing the Social Investigation Report. After all, what’s important now is to make the current access order work, before we talk about any increase in access time. 13.In the circumstances, I hereby make the following further order:
(Re: Discussion on costs)
Representation:
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Cases cited in this judgment
Further hearings and rulings under FCMC 8704/2023