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Dcb v Ab

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date16 May 2017
Year2017
Judgement NumberHCMP2173/2014
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP2173B/2014 DCB v. AB

HCMP 2173/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2173 OF 2014

_______________________

IN THE MATTER OF an application to make IMB-B also known as IMB, a girl born on 15th day of May 2013, a ward of court
and
IN THE MATTER OF Section 26 of the High Court Ordinance (Cap. 4)
and
IN THE MATTER OF Order 90 of the Rules of the High Court (Cap. 4A)
and
IN THE MATTER OF Guardianship of Minors Ordinance (Cap. 13)

______________________

BETWEEN
DCB Plaintiff
and
AB Defendant

______________________

Before: Hon B Chu J in Chambers (not open to public)

Date of Hearings: 14-16, 19 December 2016

Date of Lodging of Further Bundles of Emails and Correspondences: 27 January 2017

Date of Judgment: 16 May 2017

_________________

J U D G M E N T

_________________


Introduction

1. These wardship proceedings were issued by the plaintiff father (“Father”) in August 2014, about two months after the defendant mother (“Mother”) took their then one year old daughter (“L”) to Singapore without his consent.

2. In the originating summons, the Father sought orders including the following:

(i) That L be made a ward of this court during her minority or until further order;

(ii) That he be granted all parental rights and authority that the law would allow him as father if L were born within wedlock;

(iii) That he be granted custody, care and control of L, with access to the Mother subject to the directions of this court;

(iv) The Mother do return L to Hong Kong forthwith.

3. After the issue of these proceedings by the Father (“Hong Kong Proceedings”) and service on the Mother, there followed proceedings in Singapore (“Singapore Proceedings”) issued by her in circumstances described later, resulting in parallel proceedings in the two jurisdictions.

4. The Mother and L eventually returned to Hong Kong on 8 March 2016 after being ordered by the Singapore Court to do so.

5. Thereafter, Mother issued the following summonses on 16 March 2016:

(i) A summons for care and control of L to be granted to her, with defined staying access to the Father, for leave for the Mother to return with L to Singapore, and for L to be de-warded;

(ii) A 2nd summons for leave to permanently remove L to Singapore;

6. The parties have agreed to having joint custody of L. To summarise, there were 3 matters before this court at the trial, namely:

(i) L’s care and control;

(ii) Relocation of L;

(iii) De-warding of L.

7. In connection with the above matters, this court had called for 3 social welfare reports in Hong Kong as follows:

(i) The 1st report made on 12 May 2015 (“1st SWR”) by Miss Lee Siu-chu Elsa (“Miss Lee”)[1];

(ii) The 2nd report made on 15 April 2016 (“2nd SWR”) by Miss Tsang Fung-yee (“Miss Tsang”)[2];

(iii) The 3rd report made on 31 October 2016 (“3rd SWR”) by Miss Tsang[3].

8. On 19 March 2015, this court had also called for an international social welfare report, and with the consent of both parties, Miss Lee had sent a referral to the International Social Services in Hong Kong which in turn referred the matter to the Ministry of Social and Family Development (“MSF”) in Singapore.

9. MSF then set out their requirements in order for them to accept the case. The requirements were essentially: (a) MSF officers shall not be cross-examined in court under any circumstances nor shall they be obliged to answer any queries or give any clarifications; (b) if MSF requests the whole or part of their report not to be released to the parties or their lawyers, this request is to be honoured by the court of Hong Kong; MSF would require up to 12 weeks to complete and submit the report. The parties consented to MSF’s requirements. However, this court was of the view that the court should not be bound by those requirements. As a result, no report was submitted by the MSF.

10. On 5 May 2016, this court had again directed an international social welfare report, but again MSF would only agree to accept the case on a confidential basis and on the condition that the MSF officers would not be required to give oral evidence during the trial. This time the Father did not agree to those requirements.

11. The Father was initially legally represented but since 2 March 2015, he has acted in person in these proceedings. The Mother had also initially instructed solicitors in Hong Kong, but on 15 October 2014, she filed a notice to act in person, and it was not until 14 January 2016 that her present solicitors came on record to act for her. The Mother was subsequently granted legal aid. At the trial, Counsel Mr Robin Egerton appeared for the Mother.

12. The Father had complained to the Director of Legal Aid about the Mother’s application. The Mother’s legal aid certificate was later discharged on 13 January 2017 after the trial. Notwithstanding the discharge, her solicitors had continued to act for her. I note from the court file that the Mother’s legal aid certificate has been restored on 21 April 2017.

Brief Background

13. The Father is Australian and is now 38 years of age. According to the 1st SWR, he was brought up in Australia and received education until tertiary level there. After graduation, he had worked in England and the United States before coming to work in Hong Kong in about 2009 to work for an insurance company. Since February 2016, has been working for a Swiss insurance company and he is now the Country Manager of that company.

14. The Mother is Singaporean and is now 35 years of age. She was born and educated in Singapore. She came to Hong Kong in 2008 and had worked here as a psychologist and a consultant from about 2008 to 2014. After she went back to Singapore in June 2014, she started a private practice there in November 2014.

15. The parties met in March 2010 in Hong Kong. They soon started dating and later cohabited from about June 2012. The parties were engaged in about January 2013. L was born in May 2013 out of their cohabitation, and she has just turned 4 years old.

16. The parties had an argument on the date of their scheduled wedding on 21 June 2014 and the wedding ceremony had to be cancelled as a result thereof.

17. Two days later, on 23 June 2014, the Mother left Hong Kong taking L with her and went to Singapore where her family lives (“Removal”). The Father was at first informed by the Mother that she and L would return on about 6 July 2014, but they failed to do so. The Mother returned to Hong Kong in September 2014 with a view to seeking accommodation prior to bringing L back.

18. Without her knowledge, the Father had issued the present proceedings on 29 August 2014. Further, the Father had upon issue of these proceedings applied, ex parte, for interim access, and an order was made by Au Yeung J on 12 September 2014, for the Father to have interim access to L for 2 weeks every 4 weeks in Hong Kong until further order (“Interim Access Order”) and for L to remain a ward of this court[4]. Under the Interim Access Order, Father was to fund the expenses for collecting L from Singapore for access and sending her back to Singapore to Mother after access.

19. Notwithstanding the Father had applied for leave to serve these proceedings outside jurisdiction, there appeared to be no such service. In any event, after obtaining the Interim Access Order, no notice of the issue of these proceedings or any notice of the Interim Access Order was immediately given to the Mother, whether by email or otherwise, until 22 September 2014.

20. On that day, the originating summons herein and the Interim Access Order were served personally on the Mother in Hong Kong. She instructed solicitors immediately and applied for a stay of the execution on the Interim Access Order. On 25 September 2014, this court granted an interim stay until 6 October 2014. The Father sought “interim” interim access to L in Singapore between 26 and 28 September 2014[5], which was granted by this court.

21. The Mother issued the Singapore Proceedings on 26 September 2014, seeking, among other things, sole custody, care and control of L with supervised access to Father, as well as an order to prevent the Father from bringing L overseas without her consent. On 27 September 2014, the Mother obtained an order ex parte that L was not to be taken out of Singapore by either party without the written consent of the Mother (“27.09.14 Singapore Order”). The Father was physically in Singapore at the time exercising the “interim” interim access. He was not informed of Mother’s ex parte application and the 27.09.14 Singapore Order was not served on Father until after his access was over and L returned to Mother on 28 September 2014.

22. The Singapore Court was also not informed of the Hong Kong Proceedings, nor the Interim Access Order or any other orders made by this court at the time when the 27.09.14 Singapore Order was obtained by the Mother.

23. The Mother’s stay of execution application before this court was fixed on 6 October 2014 for directions and was later adjourned to 16 October 2014 for argument. On 6 October 2014, this court extended the interim stay of the Interim Access Order, and further ordered Father to have “interim” interim access to L in Singapore for 6 hours on each occasion outside of L’s maternal grandfather’s home between 13 and 15 October 2014[6]. The day before the adjourned hearing, the Mother filed a notice to act in person in the Hong Kong Proceedings.

24. The Mother failed to attend the hearing before this court on 16 October 2014. In her absence, the Father was granted all of the rights and authorities that the law would allow him as father if L were born legitimate. On the...

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