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K v K

Judgment Cited authorities 19 Cited in Precedent Map Related
Vincent
Judgment Date19 January 2007
Subject MatterMatrimonial Causes
Judgement NumberFCMC1409/2003
CourtFamily Court (Hong Kong)
FCMC001409/2003 K v. K

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 1409 OF 2003

_________________

BETWEEN

K Petitioner
and
K Respondent

_________________

Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing : 4 January 2007

Date of Judgment : 19 January 2007

______________________

J U D G M E N T

______________________

1. This is the Petitioner Father application for an order for the Respondent Mother to forthwith return to him the child of the family, M, a boy now 10 years old, whose custody had been granted to him in the parties’ divorce several years ago, but has since about August 2006 been retained by the Mother in Sydney, Australia after spending the summer with her there.

2. First, some relevant background. The parties were married in 1996 in Hong Kong where they were then residents. The Father was in fact born, raised and educated in Hong Kong, while the Mother was born in China and later came to Hong Kong. Their only child, M was born on 13th October 1996 in Melbourne while the Mother was visiting Australia. They returned to Hong Kong about a month after the Child’s birth. During the marriage the Father worked as a sales manager, while the Mother was a sales executive until the birth of the child when she resigned from her job.

3. In January 2001 the Father’s then employer relocated his position to Beijing, China and so the family moved there to reside in accommodation arranged by the employer, although the parties were then already leading separate life albeit under the same roof, while the child was enrolled into an international school in Beijing.

4. In July 2002 the Mother and the child returned to Hong Kong for the summer vacation but remained there until December 2002 during which the child was enrolled into a local school, but was said to have difficulty adjusting to the local school system which was different from the international school which he used to attend in Beijing. As a result he was returned to his father’s care in Beijing and back to the same international school, while the Mother remained in Hong Kong.

5. On 4th January 2003 the parties formally entered into a Deed of Arrangement in contemplation for divorce, in which it was agreed inter alia that the Father was to pay the Mother $12,500 per month for her maintenance, that the Mother was to transfer her interest in 2 properties in Hong Kong to the Father, and that custody of the child was to be granted to the Father with reasonable access to the Mother.

6. Also of relevancy is Clause 5 of the said Deed which I find appropriate to set out hereinbelow in its entirety : -

“5. Upon the request of the child and for the benefit of the child but not otherwise, the Wife consents that the child be removed out of jurisdiction of Hong Kong to The People’s Republic of China by the Husband on or before 19th January 2003 for the purpose of studying subject to the written undertaking by the Husband that he shall bring the child back to Hong Kong every summer vacations for the period from 15th July to 15th August or such period to be agreed upon by the parties hereto and that the child shall stay with the Wife during that period of time until further order of the court. The air fares for the child for the trips shall be borne by the Husband”.

7. Two other relevant clauses at the end of the Deed are : -

“9. This Deed shall be construed in accordance with the laws of Hong Kong and each party hereby submits to the jurisdiction of the Hong Kong courts.

11. In the event that a divorce is granted, the terms of this Deed will survive the event and continue in force”.

8. Shortly thereafter and pursuant to the said Deed, the Father instituted these divorce proceedings, and upon the granting of the decree nisi of divorce on 30th July 2003, the terms of the Deed aforesaid were also made an order of the court. It was further directed in the order that the child be not removed from Hong Kong without leave until he attains the age of 18 years but provided that if either parent to give a general written undertaking to the court to return the said child to Hong Kong when called upon to do so, and unless otherwise directed with the written consent of the other parent, that parent may remove the said child from Hong Kong for a period specified in such written consent. The decree nisi was then made absolute on 22nd September 2003.

9. After the divorce the Father continued to work and live in Beijing with his then girlfriend I, whom he has subsequently married, and the child who continued to attend the same international school. Sometime in 2003 the Mother left Hong Kong to emigrate to Sydney where she has since settled and now works as a nurse.

10. As agreed between the parties and pursuant to the said Deed of Arrangements and the resultant order, the Mother was able to exercise access to the child on every summer from 2003 to 2005 when the child would return to Hong Kong in June where he would share times with his grandparents from both sides, before he was accompanied by his maternal grandmother to Sydney to be with his mother until August when he would return to his father in Beijing in time for school.

11. In 2006 similar arrangements were made for the child to visit his mother in Sydney, although on this occasion the Mother collected him in Hong Kong in about mid-June 2006 before they were to fly to Sydney later at the end of the month. M was due to return to Hong Kong from Australia on 10th August 2006 and then to Shanghai instead of Beijing as the Father has moved to a new job in Shanghai, but on 20th July 2006 the Mother advised the Father on the telephone that the child wished to stay in Australia and was not going to return to him. During the next 2 weeks the Father continued to press for the return of the child but to no avail.

12. The Father then flew to Sydney on 7th August 2006 with Irene and asked to see the child but was unable to do so. On 11th August he requested that the Australian Central Authority apply for the return of the child under the Child Abduction Convention. The Australian Central Authority directed the Father to first obtain an Article 15 Declaration of the Convention to confirm that the child was habitually resident in Hong Kong.

13. That application was heard in Hong Kong on 22nd September 2006 before Hartmann J in the High Court under HCMP No. 1815 of 2006 when he found that child’s place of habitual residence was in fact with his father in China, which is not a contracting party to the Convention, instead of Hong Kong, which is, and therefore declined to grant the Article 15 declaration.

14. In the meantime, on 18th August 2006 the Mother filed an application in the Family Court of Australia at Sydney for parenting orders including that the child do live with her in Australia. On the same day the Father filed a notice of motion in Hong Kong in these proceedings for an order that the Mother be committed for contempt of court in failing to return the child to him.

15. On 11th October 2006 the Father filed the summons which is now before me for the return of the child. On 12th October 2006 he filed a further summons for variation of the maintenance for the Mother, which was later by agreement adjourned together with his notice of motion pending the outcome of his application for the return of the child.

16. The Father also entered a conditional appearance in the Mother’s Australian proceedings to apply for a declaration that the Australian court has no jurisdiction to hear the Mother’s application for the child, relying on the 2 clauses over the exclusive choice of law and choice of forum contained in the said Deed of Arrangement executed by the parties back in 2003 which nominates the laws and courts of Hong Kong, and that the Mother is in contempt of the Hong Kong court in failing to return the child to him under the original custody order and hence she should not be heard in respect of her application for the child. He also sought, as an alternative, a stay of the Australian proceedings on the grounds that Australia is an inappropriate forum.

17. His application was however refused by the Australian court on 7th December 2006 as Le Poer Trench J found that the best interests of the child as the paramount consideration require that there should be inquiry into the merits of the Mother’s application for the child to live with her in Australia or whether it is in the best interests of the child to make a summary order for his return to Hong Kong for the parenting dispute to be dealt with there.

18. As regard the Father’s argument of the Mother’s “contempt”, the learned Judge said this in his reasons for decision (Hearing Bundle p. 139) : -

“50. Given the facts of the case before me I would not exercise my discretion at this time to prevent the wife from proceeding with the hearing of her interim and final applications. I should caution however, that as the evidence emerges in the case a Judge hearing the case may at any time conclude that the wife should not be allowed to proceed further with the case in this court”.

19. He then went on to order that the Mother’s application for interim children’s orders be listed before a Judicial Registrar on the 28th February 2007, that a Family Report be prepared for an assessment of the child’s relationships with his parents and the ascertaining of any wishes that he may wish to state relevant to residence and the time he should spend with each parent, and that an Independent Children’s Lawyer be appointed for the child.

20. Meanwhile the Mother has never made any application for variation of custody of the child in this jurisdiction, and despite a direction from this court given on 6th November 2006 requiring her to file her...

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