Sg v. Gdv

FCMC 10217/2020

[2024] HKFC 93

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 10217 OF 2020

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BETWEEN

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D E C I S I O N

(Ex-parte Applications for Temporary and Permanent Removal)

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1.This hearing concerns with the Respondent Father (“the father”)’s application for:

(1) Temporary removal of both children of family (aged 13 and 11 respectively) to USA from 31 July 2024 to 28 July 2025 for education; and

(2) Permanent removal of both children to USA.

2.The father filed his both applications on 29 April 2024, but he said his applications were so urgent (he called them “emergency applications”) that he required to see the Duty Judge for an ex-parte hearing, which was fixed to be heard this morning at 9:30am. As this is an ex-parte hearing, the Petitioner mother (“the mother”) was not served and hence did not appear.

3.According to my understanding, the mother petitioned for divorce in 2020. A decree nisi of divorce was granted on 4 September 2023. By an order dated 23 February 2021, interim care and control of the children were shared by the parties. The trial on custody, care, control and access was heard by HH Judge Thelma Kwan in November 2023 and the parties are waiting for a judgment from the court. There are also disputes on ancillary relief including a s.17 application, the trial of which have been fixed on 2-4, 9 and 11 July 2024 for 5 days before Judge Kwan.

4.The father has filed 2 lengthy affirmations, containing over 200 pages of narrative and exhibits each. As far as I could understand from the father’s case, he was basically saying that he was due to be relocated to USA in or around July 2024 to start a new employment opportunity. The children may run the risk of being homeless if they remain in Hong Kong without him. He said his main application was for permanent relocation, but if for whatever reason that application could not be processed in time, he would ask for temporary relocation.

5.First of all, this court has to address a fundamental point and that is whether this court should entertain the father’s ex-parte application. It is well established that ex-parte applications should be regarded as exceptional and the court should not entertain the same unless there are cogent justifications usually in terms of extreme urgency or secrecy: Slik Hong Kong Co Ltd v Gerald Merlyn Rhoslyn E & Ns and Others [2005] HKEC 2368, per Lam J (as Lam PJ then was) at §2.

6.The issue here is whether the requirement of extreme urgency is satisfied. I stress here that the requirement is not simply urgency, but extreme urgency such that the applications could not be made inter-partes or at least some kind of notice be given to the other party. I fully appreciate that from the perspective of the father, anything that may affect the welfare of his children would somehow be urgent, but I am afraid that the test is much higher than that.

7.As far as the present case is concerned, there is undoubtedly no justification whatsoever for the application for removal, whether temporary or permanent to be sought by way of an ex-parte application. The mother who is having interim shared care of the children should be given a proper opportunity to state her views. I understand that one of the reasons for the father to come before the Duty Judge to make an ex-parte application because Judge Kwan, being the trial judge who is writing a judgment on custody, is only available next Monday when Her Honour resumes duty. But in my view, this could hardly be regarded as a good justification for the father to make the present ex-parte applications.

8.Lastly, I must point out that the father is not asking for an ex-parte prohibitory order just to maintain a status quo. Instead, he is asking for a mandatory order for temporary and permanent relocation. According to court’s record, the father had made a similar application for permanent relocation but was dismissed on 9 June 2023. He also made another application for temporary removal but was dismissed by the court on 31 January 2024. The father’s present applications by way of ex-parte applications for both temporary and permanent relocation again is simply an abuse of court process.

9.Based on the above discussion, the father’s both ex-parte applications are dismissed.

10.There shall be no order as to costs.

Representation:

The Petitioner was not being served and was not present

The Respondent acting in person