T v. A [2023] HKCFI 2827, HCMP 1948/2019

In this case, the court ordered the Defendant-Mother (“D”) to pay the Plaintiff-Father’s (“P’s”) costs arising from his leave summons for leave to issue writ of sequestration (the “Leave Summons”) following D’s failure to return their daughter (“AAR”) to Hong Kong after she brought her to Crimea on their annual summer holiday in 2018.

Background

P is British and was born in the UK, at the time of the decision he was about 54 years old. He moved to Hong Kong in 1993 and worked mainly in the field of digital consulting and marketing in Hong Kong. D is Russian and was born in Komsomolsk-on-Amur in Russia, later relocating to Sudak, Crimea. D came to Hong Kong in 2004 to work as a performer and the parties met in 2004; they later married on 2 July 2005. AAR was born in October 2007 and was 16 at the time of the decision.

The parties’ marital relationship declined from about 2011 onwards. In February 2017, P’s employer decided not to renew P’s employment contract and P became unemployed. Having also separated for a year with D, P issued a divorce petition on 18 May 2017 and the parties agreed to a consent order (the “Consent Order” dated 12 October 2017); the Decree Absolute was granted on 14 December 2017. The Consent Order contained the usual restriction that AAR was not to be removed from Hong Kong unless with written consent of the other parent, by either parent having given a general undertaking to return AAR to Hong Kong when called upon to do so.

The Leave Summons

After D took AAR to Crimea in July 2018 with P’s consent, D refused to return her to Hong Kong. P then filed return proceedings under the Hague Convention on 3 July 2018. Such proceedings were heard by a Russian court, which, upon being satisfied that AAR had been wrongfully removed and/or retained in Russia, made an order for enforcement; this failed as D issued proceedings against the bailiff (although those proceedings were subsequently dismissed by a Russian court).

In late 2021, P received notice that D intended to sell the property in Hong Kong, which was registered in her name, which P had bought under the parties’ separation/divorce settlement for D and AAR to reside in (the “Property”). By that time, D had made it very clear that she had no intention of returning to, or allowing AAR to be raised in Hong Kong. Against this backdrop, P issued the Leave Summons.

At the substantive hearing of the Leave Summons, which D attended through video conferencing facilities (“VCF”), the Court explained to D the nature of the Leave Summons and the writ of sequestration. D then sought an adjournment to renew AAR’s UK passport and to allow time for AAR to finish her school examinations in June 2023; the Court allowed this.

As AAR had then been returned to Hong Kong, the Leave Summons became academic; the Court further directed that the costs of the Leave Summons be dealt with on paper.

P’s grounds for seeking costs were essential that the Leave Summons was brought about due to D’s failure to return AAR to Hong Kong whereas D’s grounds were that: P’s legal costs were incurred and wasted by his own conduct; she never intended to abduct or retain AAR in Russia and that their prolonged stay was only temporary until P had complied with the Consent Order (as P had not paid the full outstanding value pursuant to the financial terms therein); and AAR objected to returning to Hong Kong.

The Court’s Observations

D’s ground that P’s costs were incurred and wasted by his own conduct was rejected, the Court found that P had no alternative but to pursue his application for AAR to return and that P’s legal costs stemmed from D’s unilateral decision to keep AAR out of Hong Kong for about 5 years.

Through examining various messages and emails, the Court also concluded that D must have planned to retain AAR in Crimea when D and AAR first departed. Furthermore, the Court agreed with Shaphan  (representing P) in that “child abduction is an entirely unacceptable means of resolving family disputes;” D’s contention that the return of AAR to Hong Kong ought to be contingent on P’s compliance with the financial terms of the Consent Order was rejected. In any event, it appeared as though D had sufficient means to support herself financially and there was no evidence of her not having any earning capacity.

Finally, there was no evidence to show that AAR ever objected to returning to Hong Kong.

Conclusion

D was ordered to pay P’s costs, which were summarily assessed to be HK$660,000, a downward adjustment from P’s submitted Statement of Costs for HK$874,880, from the net sale proceeds of the Property.

The full judgment can be found here.

To learn more about Shaphan, please visit his profile here.

This case summary was written by Tung Chan.