be given.”145 A registrar has a choice to make the order or refer the application to a judge.
2.79Rule 92(3) sets out the persons who may apply by summons: the guardian of any child of the family and any other person who has the custody or control of the child pursuant to an order or, where a child is under supervision, by an order under section 48. This is stated to be without prejudice to the right of any other person entitled to apply for an order as respects the child.
2.80Rule 92(4) provides that if there is a dispute concerning care and control of, or access to, a child the judge may refuse to admit any affidavit unless the author is available to give oral evidence. It is interesting that the language is confined to care and control or access and does not refer to custody. There is an unusual provision in rule 92(5) that if there are allegations of adultery “or of an improper association with a named person” then notice of that allegation is to be filed and served by the person making the allegation. This allows the person against whom the allegation is made to intervene in the proceedings. It is difficult to see what relevance such allegations have to the custody, care, and supervision of children unless it is alleged that such improper conduct is taking place in the presence of the children. There is a general power given to the court to give directions as to the filing and service of pleadings and as to the further conduct of such proceedings.146
Director of Social Welfare’s powers
2.81Rule 93 allows the Director of Social Welfare to apply for variation, discharge or direction by letter to the court where it is urgent “or where the application is unlikely to be opposed”. In either circumstance the Director need only notify any interested party if it is practicable. There is a similar provision in rule 61D of the District Court Civil Procedure (General) Rules (Cap 336) for cases under the Guardianship of Minors Ordinance (Cap 13). It is submitted that in accordance with the principles of natural justice, the relevant interested parties should be notified of a hearing, even if the Director retains an initial power to apply ex parte in an emergency.
Social Welfare Officer’s report
2.82Under rule 95, a judge or registrar may refer a case for investigation and a report on any matter arising in matrimonial proceedings which concerns the welfare of a child. Prior to a hearing, any person who comes within the category of approved applicants can request the Registrar to call for a report from the Director of Social Welfare. The Registrar may refer the matter to the Director if he is satisfied that the other parties consent and that sufficient information is available to enable the officer to proceed with the investigation. The rule allows the Director to inspect the court file. When the report is completed and filed in court the parties must be notified and may inspect and apply for a copy on payment of a fee. A similar provision exists for any proceedings in the court concerning the welfare of the child under rule 61F of the District Court Civil Procedure (General) Rules (Cap 336).
145 Yet section 48 makes no reference to access.
146 Rule 92(7).