From specific discovery to permanent relocation of children – Isabel Tam and Ted Chan host seminar on family law

Hong Kong Family Law

On 14 July 2023, Isabel Tam and Ted Chan collaborated with Lex Omnibus to deliver an insightful three-hour talk entitled “Family Law: Practical Tips and Legal Updates.” Their talk tackled an array of essential family law topics, with a particular focus on the effects of recent legal developments in this area.

Key legal developments covered in this talk included the following cases:

• JQ v CLH [2022] 2 HKLRD 632 (on the Family Court’s jurisdiction)

• MCYP v CWYW [2022] 4 HKLRD 513 (on specific discovery against third-party companies)

• BC v MSH [2022] HKFC 216 (on the use of unless order after obtaining a discovery order)

• WYM v LYW and GFL [2022] HKFC 95 (on mortgagor’s intervention/ claim for beneficial interest)

• Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another [2023] UKSC 22 (on claiming for financial relief from the estate of deceased paying party)

• C & Anor v A & Ors [2022] 2 HKLRD 191 (on application for parental order in respect of children whose gametes are not those of husband and wife applicants)

• RV v AA (Child Relocation) [2022] 1 HKLRD 593 (on application for permanent removal of the child out of Hong Kong)

• MY v FT [2022] HKCFI 1407 (on application for location order in respect of abducted child)

The first part of their talk covered practical tips on financial remedies in ancillary relief, and the impact of recent legal cases on this subject. Topical cases reviewed by the two speakers included a look at mortgagor’s intervention in matrimonial homes in the case of WYM v LYW.

Isabel and Ted also discussed various new cases relating to disclosure and discovery. They covered drafting techniques for unless orders in ancillary relief proceedings as a means to compel disclosure (with reference to guidance from the recent case of BC v MSH. They also looked at specific discovery against third-party companies, and summarized the judicial guidance from relevant recent cases including MCYP v CWYW.

Rounding up the discussion on financial relief, they highlighted the recent UK Supreme Court case handed down last month on 28 June 2023, Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another, dealing with claims for financial provision under matrimonial legislation against the estate of a deceased paying party.

Nowadays, Hong Kong lawyers commonly find themselves navigating cross-border divorce arrangements, and the trend is likely to increase with the anticipated development of the Greater Bay Area. Legal complexities arise concerning the division of assets, jurisdictional considerations, and the enforcement of legal judgments. In this context, Isabel and Ted offered practical guidance on potential pitfalls encountered when seeking reciprocal enforcement of Hong Kong judgments in the PRC and vice versa, with a focus on likely interpretative issues in recent legislation. They also analyzed recent judgments that have impact on families with increasingly sophisticated cross-border presence, in particular the case of JQ v CLH.

In the realm of preventive remedies in family law, they delivered a succinct refresher regarding injunctions. Practical analysis in the talk included a comparative look between Mareva injunctions in the matrimonial context as contrasted against applications under the matrimonial legislation commonly known as “s.17 applications”. The speakers also delved into the various considerations involved in the use of Hadkinson orders when dealing with non-cooperative opponents.

Child-related applications formed the final plank of the talk. They examined the developing case-law in the area, including applications for a prenatal order concerning a surrogate child, guardianship orders concerning same-sex couples, and orders granting financial allowance for a non-spousal parental care-giver. Removal applications were another topic of discussion, looking at applications for the temporary and permanent removal of children out of Hong Kong, and remedies where a child is at risk of being unilaterally removed or the same has already occurred.

Isabel and Ted extend their gratitude to Lex Omnibus for extending the invitation to speak at this session. It was a welcome opportunity to discuss with fellow legal professionals.

 

Isabel Tam Isabel is a Bar Scholar who graduated with a first class LLB and with distinction in her LLM. She also has an MA in competition law with distinction in the examination component, and was seconded to the Competition Commission. Called to the Bar in 2013, Isabel practises in a wide range of areas, with an emphasis on public law, building management and property law, family law, commercial law and regulatory matters. Her experience in family law includes: children matters, ancillary relief, anti-suit injunction, and harassment-related proceedings. Recent highlights of Isabel’s experience include AA v BB [2021] HKCFI 1401, which has been hailed as a landmark victory for the LGBTQ community, granting parental rights to a separated same-sex couple who had co-parented children during their relationship. Isabel appeared for the Respondent, the non-biological mother within the same-sex relationship, and secured parental rights for her including guardianship and joint custody. Visit Isabel’s profile for more details.   Ted Chan Ted has a broad civil and criminal practice. He has appeared in the High Court, the District Court (including the Family Court) and the Magistrates’ Court (including the Juvenile Court). He is also a CEDR accredited mediator and has been involved in mediations of a wide variety of disputes, such as matrimonial, nuisance, building management, contract, etc. ​ ​In the field of family law, Ted regularly advises on and handles matrimonial and family cases, including ancillary relief, custody, relocation applications, parentage order, etc. The interactive workshop was organized by the Asian Academy of Family Therapy (AAFT), which is a chartable and non-profit organization with a vision to promote family therapy research, training and practice in Asia. Funded by the Hong Kong Jockey Club Charities Trust, the AAFT is conducting several specialized projects, including the development of a treatment approach in working with children from divorced or divorcing families. Find out more from Ted’s profile. This article was first published on 28 July 2023. Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.