T, Rh v. K, Cs
Read the full judgment text of FCMC 8704/2023 on BabelCite. This Family Court judgment was delivered on 7 May 2024 before H.H. Judge C.K. Chan.
Matrimonial Causes – Temporary Removal of Children – Access – Costs – District Court – Application by Respondent Mother for leave to take children to USA and South Korea during summer vacation – Petitioner Father initially objected but agreed subject to conditions – Court granted leave subject to conditions on itinerary, accommodation, and facilitation of remote and in-person access – Costs application dismissed as Father's conduct not reprehensible despite initial objection – NI v TCHK [2023] HKFC 253 cited – Leave granted for USA trip 15 June to 28 July 2024 and South Korea trip 29 July to 8 August 2024 – No order as to costs.
Legal issues: Temporary removal of children · Costs in children proceedings
Outcome: Leave granted for temporary removal to USA and South Korea. No order as to costs.
Cites 2 cases
|
FCMC 8704/2023 [2024] HKFC 100 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 8704 OF 2023 ------------------------
------------------------
----------------------- D E C I S I O N ------------------------ Application 1.This is a hearing of the Respondent Mother (“M”)’s summons filed on 3 April 2024, in which she asked for temporary removal of the 2 children of family during the coming summer vacation as follows:
2.The Petitioner Father (“F”) initially did not agree to the proposed vacation plan but he eventually agreed to the proposed trips with conditions. The parties could not agree on those conditions and also on costs and so a determination by this court has become necessary. Discussion 3.Although the Petition for Divorce was only issued in August 2023, there have already been 10 hearings before the court, many of which touched upon very contentious issues mainly on access. After the unsuccessful MCDR hearing on 8 March 2024, the parties could not agree on the children’s summer arrangement. M wants to enrol the children for a swimming camp at Palo Alto, California from mid-June to end of July 2024, and then go to South Korea from 29 July 2024 to 8 August 2024 to visit their maternal grandmother. She issued the present summons on 3 April 2024 together with her 7th supporting Affidavit. 4.In response, F filed his 7th Affirmation raising initial objections to the US trip but not the South Korean trip. He said he had no objection for the children to have swimming training in the summer but that could be done in Hong Kong instead of in the US. He further said that M’s travel plan has basically monopolized the whole of the children’s summer vacation and he as a father would also like to spend some time with the children as well. Therefore, he proposed that the children are to remain in Hong Kong from 15 June 2024 to 28 July 2024 for therapy and activities. He could also take the children to a vacation of their choice for some time in between. He has no objection for M’s proposed trip to South Korea thereafter for the children to see their maternal grandmother. 5.M filed her 10th Affidavit in reply but it will serve no useful purpose by going into that Affidavit. 6.F was represented by Ms. Booth this morning who pointed out that the entire summer vacation of the children covers a period of 59 days from 15 June 2024 to 12 August 2024. In M’s vacation plan, M is to have the children for 54 days, and returning them to Hong Kong only 5 days before the children’s new school term. At no point has M suggested F to have any holiday or make up access to the children. This is most undesirable as according to F, he is having zero access to the children at the moment. That was why he puts up the alternative proposal for the children to have their swimming training in Hong Kong. After further consideration, F’s current proposals are as follow:
7.M was represented by Ms. Anita Yip SC. In her written submissions, Senior Counsel has referred to lawyers’ recent correspondence saying that F’s “extreme behaviours” has made the children being very scared of him. I do not intend to go into the details of those behaviours because I trust that they must be rigorously contested by F. But I think one thing is very clear. For one reason or another, F is having great difficulty in seeing the children. F said it was due to the uncooperative altitude of M whilst M suggested it was due to F’s “extreme behaviours” and his determination to force his way to access. M also suggested F’s reneging on his promise to allow the children to go to South Korea during Easter has also caused additional strain to the already very fragile father-and-children relationship. However, this is not an appropriate occasion for this court to make a determination on those disputes. 8.For F’s Special Requests, Ms. Yip submitted that the itinerary and accommodation details have already been provided. M agrees to provide updated information, if there are changes. For remote access, the children have their own mobile phones and laptops. Bearing the parties’ heavily disputed cases in mind, M is unwilling to provide an undertaking to “facilitate” access as she has strong reservations about F’s ulterior motive due to his repeated threats to commit her for contempt. For the same reason, M does not agree to give an undertaking to “facilitate” daily access during the South Korean trip. My views 9.I am glad to note that F has finally agreed to the proposed US and South Korean trips. What remains in dispute has become very narrow and they are F’s Special Requests. I have no problem with the requests on itinerary and accommodation information. Such information, including updates, should be provided if they have not already been given. 10.What is a little contentious is about the request for M’s facilitation to F’s remote access and 1-hour daily access during the South Korean trip. It is my view that despite all the contentious issues between the parties, M as the main carer has a clear duty to facilitate F’s access to the children, no matter how difficult that might be. Some may argue that by using general term like “facilitation” of access, it is only aspirational in nature as it may be difficult to say whether “facilitation” has been provided or not. Be it aspirational or not, I have no hesitation in requiring M to facilitate F’s access to the children. However, as to the 1-hour daily access in South Korea, a mandatory order for the access to take place at F’s hotel may be too rigid. It would be more reasonable for it to take place at F’s hotel or at a place to be agreed. Orders 11.Based on the above discussion, and subject to M’s written undertaking to return the children at the end of the 2 proposed trips, I am minded to make the following temporary removal orders:
Costs 12.M asks for costs. Ms. Yip submitted that F’s refusal to the temporary removal is so unreasonable making this a paradigm case calling for costs consequence. F was intentionally forcing M to spend legal costs, attempting to drain her and exerting pressure for her to “surrender”. F could have agreed to the trips much earlier but he chose to oppose the summons requiring M to file 2 affidavits and to engage her team of counsel. F only agreed to the trips but subject to his Special Requests at the very last minute, resulting in the necessity of the hearing. M should not be burdened with the legal costs which she quantified at HK$338,315. 13.Ms. Booth for F submitted that as a general rule, unless there are exceptional circumstances, there is usually no order as to costs in children proceedings, citing the case of NI v TCHK [2023] HKFC 253. The issue now is whether there are such exceptional circumstances in the present case. Ms. Booth submitted that there was not and F’s conduct could not be regarded as reprehensible or unreasonable as he was only trying to secure some form of sharing of the summer vacation. Therefore, F should not be penalised on costs. 14.In my view, F’s initial objection to M’s temporary removal application has of course made this hearing become necessary. However, this court cannot ignore the undeniable fact that he as a father, has not been able to see the 2 children at all. The reason for such failure is still subject to debate but as a loving father, his anguish in not being able to maintain contact with his children is understandable. By looking at M’s holiday proposals, the children will spend 54 out of their 59 days of summer vacation out of Hong Kong and if allowed unconditionally, F’s hope to have some form of contact with the children during summer will be dashed. Therefore, F’s efforts to negotiate for the children spending some of their summer time in Hong Kong or later some form of access to be arranged during the trip cannot be regarded as so outrageous that he must be penalised on costs. Therefore, there shall be no order as to costs in this application. At the hearing, I had a query on whether the instruction of 2 counsel in a temporary removal application was necessary but in view of my decision that there shall be no order as to costs, that issue is no longer relevant. 15.Lastly, I thank counsel for their assistance.
Representation: Ms. Madeleine Booth, Barrister-at-law, instructed by Messrs Hugill & Ip, solicitors for the Petitioner Ms. Anita Yip SC, leading Ms. Lily Yu, Barristers-at-law, instructed by Messrs. Withers, solicitors for the Respondent | ||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 8704/2023