H v A

Judgment Date24 December 2004
Judgement NumberFCMP186/2003
Subject MatterMiscellaneous Proceedings
CourtFamily Court (Hong Kong)
FCMP000186/2003 H v. A

FCMP 186 / 2003




NUMBER 186 OF 2003



  H Applicant
  A Respondent


Coram : H.H. Judge Geiser in Chambers

Date of Hearing : 25 – 27 October 2004

Date of Judgment : 24 December 2004




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 with the Civil Registry Office in Jakarta. On the birth certificate the child is named as D Parkin and Mr P is identified as the child’s father.

12. According to the Applicant, he believed that he was the natural father of the child so in July of 2003 he suggested to the mother that they undergo a DNA test, to which she eventually agreed. The result of that test establishes beyond doubt that the Applicant is the father of the child.

13. By all accounts, when the mother received news of the results of the DNA test, she was devasted. She had formed a relationship with Mr P and had always assumed and hoped that he was the father. Indeed, at the outset, it seems that the mother did not accept the results of the DNA testing and persuaded the Applicant to undergo another DNA test in September which only confirmed the result of the original test.

14. It does not appear to be in dispute that the parties have not spoken to each other face to face since July 2003. Mr Firman on behalf of the mother accepts that no blame whatsoever can be attributed to the Applicant for this. It is the mother’s case that she has been unable to deal with the knowledge that her son is the child of a person whom she does not want to be part of her life. In evidence the mother confirmed that prior to giving birth to D in May last year, she had never sought treatment for mental health. However, since discovering that the Applicant is the father of the child, she has consulted psychiatrists, psychologists and counsellors and is currently taking anti-depressant medication. With regard to the mother’s relationship with Mr P, she confirmed that she had not seen him since the middle of 2004 but she was in regular telephone contact with him. It was a conscious decision between herself and Mr P for her, the mother, to stand on her own two feet and face the situation herself. Whilst the mother conceded that she had never mentioned the question of marriage to Mr P either to the social welfare officer or in her affidavit, she did say under cross-examination that she had formed the intention to marry him sometime after D’s birth. In any event, she confirmed that she received both emotional and financial support from Mr P and I believe it is not in dispute that the mother and Mr P have bought a flat in Discovery Bay which is registered in their joint names.

15. I propose now to deal with the question of joint custody and access, including staying access.

16. In the normal way of things, an application by the father for joint custody of an 18 month old child is rather unusual. However the application is motivated, the Applicant says, out of a genuine...

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