H v A

CourtFamily Court (Hong Kong)
Judgment Date24 Dec 2004
Judgement NumberFCMP186/2003
SubjectMiscellaneous Proceedings
FCMP000186/2003 H v. A

FCMP 186 / 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 186 OF 2003

____________________

BETWEEN

  H Applicant
  and  
  A Respondent

_______________________

Coram : H.H. Judge Geiser in Chambers

Date of Hearing : 25 – 27 October 2004

Date of Judgment : 24 December 2004

_______________________

R U L I N G

_______________________

1. In this case there are two summonses that fall for the determination of the court, both summonses having been taken out by the Applicant father.

2. In the first summons, the father seeks an order for custody of the child D to be granted to himself and the Respondent mother jointly with care and control to the mother and reasonable access including staying access to be granted to himself. By virtue of the same summons, the father seeks an order that the mother be restrained from taking the child, D out of the jurisdiction of Hong Kong.

3. The mother for her part opposes the application for joint custody and seeks an order for sole custody with reasonable access to the father. She also opposes the application for the restraining order and seeks herself an order that she be granted general leave to remove D out of Hong Kong from time to time for the purposes of holidays for periods not exceeding 21 days on each occasion.

4. A second summons was taken out by the Applicant father on the first day of the trial, i.e. 25th October 2004 seeking an order that the surname of the child as appearing in the Registry of Births in JAKARTA be changed from “P” to “H”. I propose to deal with this summons after dealing with the question of joint custody and access generally including staying access.

5. The relevant legislation concerning the above applications is contained in section 3 Guardianship of Minors Ordinance Cap 13 Laws of Hong Kong. Section 3 (1) (a) reads “in any proceedings before any court the court

(i) shall regard the welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to –
(A) the wishes 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”.

6. Section 3 (1) (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”.

7. As the child in question is illegitimate, section 3 (1) (c) takes on some significance and states, “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)”.

8. For the sake of completeness section 3 (1) (d) states “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”.

9. It is of course with these principles very much in mind that I have reached my conclusions with regard to the various applications before me.

10. Before dealing with each of the specific applications before me, it is necessary, I think, to dwell somewhat on the facts many of which are not in dispute but are unquestionably unusual.

11. The Applicant is a pilot employed by the Cathay Pacific and the mother a flight attendant working for the same company. They formed a relationship with each other in 1997 which lasted until sometime in 1999. In 1999 the mother met a Mr P who lived in Jakarta, this relationship continued and I am told is still continuing but in the middle of 2002 the mother started seeing the Applicant again and in October of that year she discovered that she was pregnant. The mother assumed that Mr Pn was the father of his then unborn child. She informed the Applicant of this and terminated her relationship with him. On 13th May 2003 the child was born and the mother registered his birth...

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