Yjh v Lkhm

HCMP 631/2017

[2019] HKCFI 2030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 631 OF 2017

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D E C I S I O N

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A. INTRODUCTION

1. This is a hearing concerning a boy aged 2 years and 8 months, born in Hong Kong, but removed by the defendant Mother to Taiwan when he was 2 months old. Soon after his removal, the Father took out wardship proceedings in the Hong Kong court.

2. After strenuous efforts, with the assistance of the Hong Kong and Taiwan courts, the Child and his maternal grandmother were intercepted by government authorities at the Hong Kong International Airport just as they were about to leave Hong Kong. Since then, the Child has remained in Hong Kong pursuant to this court’s interim order.

3. This is the hearing of the Mother’s applications for:

(1) Stay of the present proceedings on the ground of forum non conveniens in favour of the Taoyuan District Court of Taiwan (“the Stay Summons”); and

(2) Variation of interim access (“the Variation Summons”).

4. It is the Mother’s case that there was breakdown of trust between her and the Father such that she brought the Child to settle in Taiwan. The proper forum to litigate questions of custody should be the Taoyuan District Court.

5. The Father disagrees. He says that the Mother falls short of discharging her burden that the Taiwan courts are clearly or distinctly the more appropriate forum to hear this case. If the action is heard in Taiwan, he will suffer personal and juridical disadvantages that outweigh any possible disadvantage that the Mother might suffer if the action were to proceed in Hong Kong.

B. BACKGROUND FACTS

6. The Mother and the Father were both Hong Kong born and raised. They are just above the age of 30.

7. The Father has been working as a consultant since 2015 although his Form E states that he is an executive assistant. He allegedly earns a monthly sum of HK$24,875 including performance based bonuses.

8. The Father comes from a wealthy family. The paternal grandfather and the paternal grandmother [are in their 60s]. The paternal grandfather is a while the paternal grandmother [is] now a part-time . The Father is living with the paternal grandmother in a spacious flat [on Hong Kong island] .

9. The Father admits that he has to travel extensively for work. He spent less than half of his time in Hong Kong:

Date	Days not in Hong Kong (both day of departure and arrival counted as not in Hong Kong)
Sep 2018	21
Oct 2018	19
Nov 2018	22
Dec 2018	22
Jan 2019	24
Feb 2019	12

10. The Mother previously worked as a in Taiwan, earning about HK$9,000 per month. She now claims to be on unpaid leave as she returned to Hong Kong. She has had no income since December 2018.

11. The Mother comes from a humble background. The maternal grandmother and grandfather are [aged 55-65]. The maternal grandmother is a housewife while the maternal grandfather is working as a part-time in Taiwan. Despite that, her father is supporting the Mother’s monthly expenses and, in particular, her legal fees, which obviously were beyond her capacity to pay.

12. The Mother met the Father in . Soon afterwards, they began dating and sexual relations. In 2016, the Mother discovered she was 2 months pregnant. The Father is the acknowledged father of the Child. .

13. The Father’s case is that in the course of the Mother’s pregnancy, the two of them had mutually discussed and decided that Hong Kong was the best place to raise the Child. To that end, the parties looked into accommodation as well as suitable schooling in Hong Kong.

14. The Mother’s case is that the parties’ relationship began to turn sour after she became pregnant. The Father had repeatedly requested her to have an abortion or put the Child up for adoption, which were singularly rejected by the Mother. Thereafter, the Father repeatedly asked the Mother to sign a consent summons to secure his rights as the father of the Child, even when the Mother was still at her postnatal confinement. The Mother refused.

15. The Child was born on 2016. The Father paid the hospital bills. The Father visited daily to take care of the Mother and the Child.

16. Following discharge on 2016, both the Mother and the Child had resided with the Mother’s parents in [TW] (“the [TW] Residence”).

17. Through a WhatsApp Group named , comprising the Father, the Mother, their parents and a few other persons, updates on the Child’s condition were shared and visits by the Father’s parents and family members facilitated.

18. From 2016 to 2017, the Father had stayed (including overnight) at the [TW] Residence to participate in the Child’s care. In the month next following, he kept contact with the Child through WhatsApp messages when he worked outside Hong Kong, visits at the [TW] Residence for 3-6 hours almost every day (though he was not allowed overnight access) and gatherings. The paternal grandmother and cousin were able to visit the Child at the [TW] Residence.

19. From 10 February to 21 March 2017, the Father was in [Mainland China] for work. He had received far fewer updates from the Mother about the Child. The paternal grandmother also encountered difficulties in communicating with the Mother and her family and arranging visits to the Child.

20. It transpired that on 2017 the Mother left Hong Kong with the Child for Taiwan. They lived with the maternal grandparents, who assisted in taking care of the Child. The Mother was able to return to employment a year later, in March 2018. The Child has developed a strong bonding with the maternal grandparents.

21. On 2017, the Mother and her father abruptly exited the WhatsApp group. The Mother and her family then became unreachable.

22. Fearing for the Child, Father commenced wardship proceedings in Hong Kong by originating summons on 20 March 2017 (“the OS”). However, attempts of personal service of the OS on the Mother failed. Documents served by ordinary post to the [TW] Residence were returned.

23. On 14 April 2017, Father discovered through the Hong Kong Police that the Mother and the Child had left Hong Kong on 2017 and were both in Taiwan.

24. Upon the Father’s application, this court on 26 April 2017, gave leave to serve the OS out of jurisdiction, made an order for the Child’s return to Hong Kong and restrained the Mother from removing the Child from Hong Kong. Interim custody of the Child was given to the Father.

25. Three months later, on 27 July 2017, the Hong Kong Police informed the Father that the Mother and the Child were residing at an address in Taoyuan, Taiwan (“Taoyuan Address”). Various attempts were then made by Father’s Taiwan lawyers to serve the court documents on the Mother at the Taoyuan Address, but in vain.

26. On 22 February 2018, upon learning that the Father’s friend (“R”) was going to meet the Mother at a bar in Taiwan, the Father’s side purportedly handed the Mother a bundle of the court documents in these proceedings. There is dispute as to whether there was valid service.

27. After the meeting between the Mother and R, the Father learned through R that the Mother and the Child had moved out of the Taoyuan Address but the new address was unknown.

28. The Father filed a Civil Complaint with the Taipei District Court on 22 March 2018 seeking judicial confirmation that he is the Child’s father. With the assistance of the Taipei District Court, and later upon transfer, the Taoyuan District Court:

(1) The Father came to know that the Mother had again changed the Child’s name (from LPY to LCY), having already changed his name once before (from YPY to LPY) when she applied for the Child’s HKID card.

(2) The Father obtained the travel records of the Mother and the Child. The travel records revealed that the Mother has been travelling extensively. For example, in the period between February and October 2018, the Mother travelled 8 times out of Taiwan, sometimes staying abroad for almost a whole month. During the same period, the Child (who had not reached 2 at the time) travelled 4 times out of Taiwan, two of which involved him being out of Taiwan for over 10 days.

29. Meanwhile, the Mother and the Child were maintaining close ties with Hong Kong. For the period between 2017 (when they moved to Taiwan) and October 2018 (when the travel records were issued):

(1) The Mother travelled to Hong Kong 3 times;

(2) The Child travelled to Hong Kong once; and

(3) The Mother and the Child travelled to...