Rm also known as Rh v. Srm
Read the full judgment text of FCMC 8500/2014 on BabelCite. This Family Court judgment was delivered on 7 September 2016 before Deputy District Judge Susan Wong.
Family law – Relocation – Care and control – Best interest of children – Payne v Payne principles – Mother's plan unrealistic – Financial support uncertain – Children's preference to stay in Hong Kong – Father capable of care – Relocation refused – Care and control to Father – No order as to costs
Legal issues: Relocation application · Care and control
Outcome: Relocation application refused; Care and control granted to Father; Joint custody; Reasonable access to Mother.
Cited by 3 cases · Cites 1 case
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FCMC 8500 / 2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 8500 OF 2014 _______________
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--------------------------- JUDGMENT --------------------------- 1.This is the Petitioner Mother’s application for the relocation of the two children of the family, G and L, both boys to Japan where she said she has extensive family support which the Respondent Father opposes this application. Background 2.The Mother is Japanese who was brought up in Chiba, Japan. She is now 41. Her parents are retired government officers still living in Chiba. The Mother has a brother in Japan who is married. The Mother, after graduation at the age of 22 in 1997, went to Germany and married her German boyfriend whom she met in a summer school in the United Kingdom (UK). During her time in Germany, the Mother worked for a Japanese company. The Mother’s first marriage only lasted until 2000 and there was no child by the marriage. 3.The Father is British and was born and brought up in Hemel Hempstead in the UK. He is now 36. He was the only son although there were two half-sisters from his mother’s previous marriage. The Father’s parents were separated when he was 11 and he remained in the care of his mother though he kept regular contact with his father. His mother later remarried in 1999 and the Father has kept close contact with his mother and step-father (“his parents”). 4.The parties met in 1999 during the Father’s business trip to Germany. At that time, they both worked for Sanyo, a Japanese company with the Mother working at the German office and the Father at the UK one. They soon started a courtship and visited each other during weekends and long holidays. 5.The parties married in UK, a week before the elder child, G was born on 19 March 2004. After that, the three of them lived at a rented unit near the home of the Father’s parents in UK. About 6 months after the birth of G, the Mother resumed working in various Japanese companies in UK. G had been placed under the care at nursery, of baby-sitters as well as his paternal grandmother. 6.In 2007, the Father was offered a job opportunity to work in Hong Kong and the whole family therefore moved to settle here. Initially the Mother stayed at home to look after G with the assistance of a domestic helper. She later resumed working at a Japanese company. The youngest child, L was born on 9 August 2012. According to the Mother, L was a planned child with a view to save the marriage but the relationship between the parties did not work out. 7.Although the parties gave different accounts of the marital breakdown, it is not in dispute that the Mother moved out from the matrimonial home with the two children in April 2014 when the Father was on a business trip to England and she started cohabiting with her Japanese boyfriend (“Mr Y”) at his rented abode in Cullinan. 8.In June 2014, the Mother took out divorce proceedings on the ground of unreasonable behaviour against the Father whereby the Father defended and cross-petitioned alleging the Mother’s adultery. The parties subsequently came to an agreement that the divorce main suit be started afresh and proceeded on the ground of two years’ separation. 9.In relation to the children’s matter, both parties agreed to have joint custody at some stage of the proceedings but they both ask for sole care and control. 10.Whilst the issue has not yet been resolved, the Mother took out the present application for the permanent removal of the children to Japan and the trial was initially set down for 6 days commencing on the last week of January and purportedly ending just before the Chinese New Year 2016. Unfortunately, the length of the trial had been grossly underestimated and in view of the family court’s diary, the trial had to be adjourned with some dates fixed in April and some in June 2016. 11.In the meantime, the Mother asked for leave that G be allowed to leave Hong Kong for two periods; the first one from the evening of 21 January to the morning of 24 January 2016 and the second one from the evening of 1 February to the afternoon of 7 February 2016 so as to enable G to respectively take a preparatory course and an entrance examination in GIS Japan where the Mother intended him to study. Although G would be missing school on 22 January, the Mother said it would be helpful for G to take the course so that he would be better prepared for the entrance examination. At the time of the application, she asked for leave to take L with her as well. 12.The Father on the other hand objected not because he minded G taking the course and examination but he did not like the idea of G missing his school which G managed to have 100% attendance rate. The Father also alleged that his parents would be visiting Hong Kong during those periods and they would love to see their grandchildren. Furthermore, the Father said that G does not want to be relocated to Japan. 13.For the purpose of this determination, I would not go into details of my previous rulings save that I had only allowed G to go and the Father would look after L during the Mother’s absence in Hong Kong. In relation to the second removal period, I had substituted other dates because I did not like the idea of the Mother leaving G to be looked after by the maternal family members when she herself ought to be present at these proceedings in Hong Kong. 14.As for the April part-heard hearing, shortly before it resumed, the Mother changed her entire legal team from Messrs Ip & Heathfield instructing Ms Yu to Messrs Stevenson Wong & Co instructing Ms Tsui. This last minute change inevitably resulted in the Mother asking for adjournment so that her new legal team would have the opportunity to peruse the transcripts. Although I allowed the Mother’s application, I ordered her to pay for the Father’s costs of and incidental to the adjournment. Needless to say, the case had to be adjourned once again. 15.It was against this background that G who was at the beginning of the trial studying Primary 6 at the JIS but because it runs a Japanese school system with its academic year starting in April, by the time this trial concluded, he has already entered into the secondary schooling at HKJS. As for L, he also started his kindergarten schooling in April 2016. The Mother’s case 16.As in all relocation applications, the Mother said that she is lonely and she wants to go back to Japan where she said she has family support. 17.In her 2nd Affirmation filed on 23 January 2015 in support of her relocation application, she said:
18.Her application to relocate was based on i) emotional support; ii) financial position and iii) her boyfriend. In Court however, the Mother said that she has no plan to re-marry in the foreseeable future. 19.As to the condition in her hometown, the ISS social workers (“the ISSSW”) made a report on 11 May 2015 consisting of 5 pages with some photographs of the maternal parents’ home attached. The followings are some of the extracts:-
The Father’s opposition 20.The Father simply does not believe the Mother’s plan. 21.As to the real reason why the Mother wants to go to Japan, the Father said in his 2nd Affirmation[1]:
22.As to the relationship between Mr Y and the Mother, the Father said in his 2nd Affirmation:
23.The Father has exhibited the email from the agent in his affirmation[2]:
What are the views of the children? 24.In the 1st Report, Ms Ching said that:
Social Welfare Reports 25.There were altogether three social welfare reports made by two different officers plus the ISS Report. The 1st local report was prepared by Ms Ngan before the Mother’s application for relocation and therefore both Ms Yu then representing the Mother and Mr Pickavant representing the Father have agreed not to call her but only Ms Ching who had prepared two subsequent reports respectively on 30 May 2015 and 13 January 2016 (“the 1st and Updated Reports”) addressing the issue of the Mother’s relocation application. In short, Ms Ching recommended split care and control because:-
Issue (i) Is it in the best interest of the children to go to Japan? (ii) If yes, should both children go or just L as recommended by the social welfare officer? If it is in the latter situation, as the Mother has already confirmed in her oral testimony that she would still go leaving G to the Father, the Mother and the Father will inevitably have the care and control of L and G respectively. (iii) If both children’s relocation application is refused, shall the Mother or the Father have the care and control? The Law 26.In relocation cases, our Court of Appeal in SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37has confirmed the applicability in Hong Kong of the guidance laid down by the English Court of Appeal in Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473. 27.In Payne, the Right Hon Lord Justice Thorpe said as follows:
28.This is in line with the principles summarized by Dame Butler-Sloss P at 500G in paragraph 85:
Discussion 29.Mr Pickavant tried to convince me that the test in Payne v Payne does not apply here because the parents have been having share care arrangement since their separation in April 2014 in the effect that the Father now spends more quality time with the children than the Mother. Mr Pickavant submitted that by virtue of the Father having staying access over the weekends from between 7 and 9 am every Saturday to 8 pm the next Sunday and a short dinner access one day per week, it means that the time spent by the Father with the children is far more than the Mother because she only returns home after work at 8 pm; therefore, as Mr Pickavant put it, the Mother has at most 3 hours per day x 5 days = 15 hours. In light of that, he said that the Father and Mother are having share care arrangements. With respect, I do not agree. 30.There is no dispute that the Mother has been in gainful employment shortly after she settled down in Hong Kong and throughout the subsequent time even after L was born. The Father also does not dispute that he had to travel frequently because of the nature of his employment, the most being 161 days in 2011. I have no hesitation in finding that the Mother has been involved in the children’s day to day care since their birth with the assistance of the domestic helper. In Court, the Mother could say in details as to the children’s daily schedule. I accept her evidence that for example she has been heavily involved in G’s school PTA Committee, School Bus Committee etc and that she is the one who is responsible for signing the handbook which enables her to tell G what to do and what to prepare every day. 31.By saying this however, I am not criticising the Father’s extensive travel pattern. I accept entirely that the Father, who has not pursued tertiary education, has been working very hard since he came to Hong Kong in 2007 and as a result, he is now in the director level. I accept that he travelled extensively for the benefits of the family. 32.Nevertheless, when determining who has been the main carer of the children, I have no difficulty in finding that the Mother must be the one. Although I accept that the Father, after the parties’ separation has spent some quality time with the children by playing with them and at the same time has made a lot of effort to arrange classes and activities for them during the weekends’ staying access, the Mother still remains the primary carer of the children. 33.Having reached this conclusion, the principles in Payne v Payne apply to this case. Is the Mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the Father from the child’s life? 34.Although the Father had been denied staying access to L for nearly half a year since the Mother moved out and there had also been ugly scenes in the presence of the children whereby the Father unilaterally refused to return L at the night on 25 October 2014 (Saturday) and only returned him at 9:00 am the next Sunday and there was also another heated argument between the parties about the staying access of L on 29 November 2014 when the Mother was denied entry to the former matrimonial home and the Police were almost called, I accept that the Mother has since been co-operative with the Father for the weekend staying access arrangements albeit reluctantly at the beginning. 35.The only two accesses that the Father missed in 2015 were in no ways the fault of the Mother but because of the Father’s urgent commitment. I therefore do not find that the Mother’s application for relocation of the children is to exclude the Father from the children’s life. Is the mother’s application realistic i.e., founded on practical proposals both well researched and investigated? Financial support 36.One of the concerns that the Mother raised is that she finds it hard to maintain the standard of living here. So what has been the Mother’s financial situation in Hong Kong? 37.In paragraph 18 of Ms Ngan’s Report dated 10 December 2014[3], it is noted that, “(The Mother) has been working...…since April 2010 and she is now a Senior Manager, Finance and Administration. Her current salary is $37,800.” In Form J filed on 2 March 2015, the Mother stated that her monthly income was HK$44,968 per month. 38.Looking at the two figures, the Mother had been doing very well because there was a substantial increase in her salary within a short period of three months. With that amount of salary together with the sum of HK$27,500 paid by the Father as maintenance coupled with the Father being solely responsible for the ESF school fee of HK$2,000 for L, HK$600 for G’s Kumon and all the extra expenses on football, tennis, golf and swimming classes (which the Father alleged being close to HK$35,000 per month), I would say that the Mother has been enjoying a middle class standard in Hong Kong. 39.On the contrary, if she were to go back to Japan, I agree with Ms Ching that the Mother’s financial situation would be somewhat uncertain. 40.The Mother at the initial stage of the proceedings said in paragraph 25 of her 2nd Affirmation filed on 23 January 2015[4] that sheintended to continue working once she returned to Japan. 41.The Mother in her oral testimony however said that she would not work for the first or two years so as to make sure that her children settle down in Japan and she would rely on her parents’ support. When the Mother was asked how she knew that her parents would help her financially, she said, “the ISS report and according to the report, my parents have over 6 million yen annual income” and she had talked to them and they are happy to support her and the children. The Mother called her mother (“the maternal grandmother”) to give evidence. 42.Although the maternal grandmother confirmed that she is willing to support her daughter and the grandchildren, when she gave evidence in Court, she had great reservation about her husband’s and her own financial condition. She asked for some time during cross-examination so as to enable her to write down a breakdown to show that there would still be surplus after taking up the three extra burdens. 43.When the Court resumed, she produced a chart on which she wrote down she and her husband usually spend 250,000 yen and her daughter and grandchildren would spend another 150,000 yen making a total of 400,000 yen leaving 100,000 yen per month for safekeeping. Nonetheless, the maternal grandmother lost her temper when Mr Pickavant cross-examined her in details as to the amount of their respective pensions. 44.In reply to Mr Pickavant about the pension, she said:
45.When pressed by Mr Pickavant for an answer, she said:
46.She refused to give the information and maintained that it was personal even after I told her that the Court needed to know. When Mr Pickavant asked her:
47.When Mr Pickavant again said:
48.The maternal grandmother insisted that the information was publicly available and asked us to check ourselves. She accused Mr Pickavant of being mean and insulting.
49.When Mr Pickavant asked her, “Do you have emotional problems? These outbursts, do you suffer from them?” She replied, “No, I do not. I am trying to speak normally and I’m trying to tell you what I really think when you’re asking questions.” “And if – and I’m not being angry and I’m not being instigated…” 50.When asked whether she could manage two small children herself, she said, “Why are you saying this? And I’ve already produced that chart, and yet you are still asking me like this, and as for making this longer than it should be, I’m just answering your questions.” 51.When this Court asked whether she is prepared to fund her daughter and the grandchildren, the maternal grandmother’s reply again was to ask us to see the chart she had provided. 52.Looking at the chart, there were altogether 7 items that the maternal grandmother put down; (i) electricity; (ii) food; (iii) insurance, tax and other government rates; (iv) communication, education and books etc; (v) transport petrol etc; (vi) mortgage; and (vii) leisure and other reserves. For item (iv), the maternal grandmother put down 10,000 yen for 1 person, 25,000 yen for 3 persons and 35,000 yen for 5 persons. Although I don’t understand what this item entails, obviously it is not the tuition fees that the maternal grandparents told the ISSWR that they were prepared to pay for their grandchildren. 53.As the ISS report only stated the respective maternal grandparents’ annual amount of pension but did not mention that their bank accounts had been verified, I am doubtful as to whether the maternal grandmother has extra money in reserve. 54.When she gave evidence in Court, it was rather obvious that the maternal grandmother flew into a temper whenever money issue was raised. She refused to answer anything about her pension but kept on asking us to see the chart. The maternal grandmother gave me the impression that she is rather money conscious. In her oral testimony, she confirmed that it was the Mother who paid for her air-ticket to come to Hong Kong to give evidence and she also said that the sum of 70,000 yen to see the ISSWR was paid by the Mother which in the maternal grandmother’s own words was “quite an expense”. 55.If the maternal grandmother is conservative about her spending and given her relationship with the Mother which I would discuss later, I doubt very much that she is prepared to bear the 3 extra burdens. 56.As for the maternal grandfather, I doubt whether he is financially capable to assist the Mother. The ISS report mentioned that:
57.If the statement is true, isn’t it the perfect time for the maternal grandparents to travel to Hong Kong together to show their support since their air tickets would be funded by the Mother and the maternal grandfather has already come to Hong Kong more than ten times? 58.The Father however said in his 2nd affirmation:
59.When cross-examined by Mr Pickavant as to why her husband needs to work, the maternal grandmother said that it is very common for pensioners to work to stay healthy and to enjoy life in line of their duty. I don’t believe that. One would not work 7 hours a day, six times a week at the age of 69. The Father’s version is therefore more credible. 60.If indeed the Mother does not have her parents’ support as she claimed and it is the Mother’s case that she would not be working and her boyfriend is not supporting her, how is she going to survive with the two children? 61.Even if I am wrong that the maternal grandparents would indeed support the Mother, looking closely at the ISS report, “They consider they can financially support the Mother, even paying premiums for her National Health Insurance and National Pension until she could find a job….” (my emphasis in bold). The maternal grandparents never made any promise that they would support the 3 extra dependants for one or two years. 62.In any event, the maternal grandmother in her oral testimony said that the 3 extra dependents need only 150,000 yen extra per month which is around HK$12,000 after conversion. In light of this, I agree with the Father when he pointed out that the Mother’s financial position is much better in Hong Kong. Relationship between the Mother and the maternal grandmother and her physical support in Japan 63.The Father said in his 2nd Affirmation:
64.I found some truth in this statement. When this Court asked the Mother what her plan would be if this case cannot conclude before the commencement of school term. She said in heroral testimony:
65.If this is the case, why did the maternal grandparents tell the ISSWR that they wanted the Mother and her children back to Japan as soon as possible, hopefully by August so that G could catch up school after the summer holidays? In my view, the maternal grandparents who were civil servants before their retirement were likely to have left their children’s care to their own parents when their children were young and had not been involved in their children’s care. 66.As to the relationship between the Mother and the maternal grandmother, the Father said that they have always been on bad terms. In his 2nd Affirmation, he said:
67.When cross-examined by Mr Pickavant as to why the maternal grandmother failed to see the Mother when she visited Hong Kong and England, the maternal grandmother in reply said that:
68.As to why the Mother did not take half day off to meet her, she said:
69.When questioned about the maternal grandmother’s UK guided tour that the Mother did not meet her for even 10 minutes, she said:
70.She denied that the Mother did not want to see her and further denied that she had a bad relationship with the Mother. 71.The Mother on the other hand also maintained that she had a good relationship with both of her parents. She explained that when the maternal grandmother went to England, she was on package tour and was well looked after. It was therefore not necessary for her to travel 40 minutes by way of coach to Heathrow to see her mother just for 10 minutes. I do not believe their evidence. 72.When the Maternal Grandmother was questioned why she was not present (i) at the Mother’s wedding and (ii) at the Mother’s pregnancy and on the day when G was born, the Maternal Grandmother said that she was being framed. When pushed again for an answer, she said:
73.The maternal grandmother’s evidence was however in direct contradiction with that of the Mother. The Mother in her oral testimony admitted that the maternal grandmother did not attend the wedding and was not around in the period shortly before or after G was born. If this is the case, why did the maternal grandmother lie in Court? In my view, the maternal grandmother simply could not explain why she was absent on these two important dates of her only daughter, presumably because the maternal grandmother was not invited as stated by the Father. 74.The maternal grandmother was also cross-examined by Mr Pickavant as to why she mentioned to the ISSWR that she had regretted not taking enough time to listen to the Mother before she got divorce. The maternal grandmother simply denied that she had mentioned the word ‘regret’ and she said it was wrongly interpreted by the Japanese person who interviewed her. 75.The maternal grandmother also said that although the telephone costs in Japan are expensive, she still calls her daughter at reasonable intervals. I doubt that very much. 76.When asked by this Court, the Mother said that the maternal grandmother knew about the breakdown of her marriage and Mr Y in January 2014 at the time when the Father moved out from the matrimonial home for 1 week so that the Mother could think the matter over. 77.From the first social welfare report however, I noticed that, “…the Mother …. started to know her boyfriend in October 2013…” If indeed the maternal grandmother and the Mother have all along been on good terms and that they have talked over the phone at reasonable intervals, why didn’t the Mother tell the maternal grandmother about her marital problem and the new relationship earlier? 78.Judging from the above, I do not believe the relationship between the maternal grandmother and the Mother is good. Again, even if I am wrong, what support can the Mother gain from the maternal grandparents in Japan? 79.As I have already said, the length of the hearing has been grossly underestimated. The Maternal Grandmother could not finish her evidence at the hearing in February. 80.At the resumed hearing in June 2016, the Maternal Grandmother did not attend Court to continue her oral evidence. Ms Tsui submitted that she was not well. Upon Mr Pickavant’s request, Ms Tsui provided a letter written by a doctor Eishi Miki, M.D. from Miki Clinic, Chiba, Japan dated 3 June 2016[5] which said:
81.The Mother maintained that her parents in particular her mother would render her physical support. 82.However, as the Mother has always been working (except for a few months) even after the two children were born, could she manage all the household work? Looking at the history, when the Mother was in the UK, she had the support from the paternal grandmother and the nursery in looking after G. In Hong Kong, she has the assistance from the domestic helper. If the maternal grandmother’s health condition is in issue and the paternal grandfather works full time, where is the physical support that the Mother claimed she would have in Japan? 83.On the other hand, if the Mother would work full time, who is going to look after L? 84.I am therefore not satisfied that the Mother’s physical support is better in Japan than in Hong Kong where she has the assistance of the domestic helper and the Father. Living environment 85.The Mother claimed that she could live in her parents’ house rent-free. 86.The Father however said that the maternal grandparents’ home is cluttered and messy. He said in his 2nd Affirmation:
87.From the photographs attached to the ISS Report, it is obvious that some of the furniture is covered. 88.Furthermore, I also query why the ISSWR could not see the first floor area even though the maternal grandmother was half way cleaning up. The ISS Report mentioned that the maternal grandmother likes to keep things. In my view, it is probably because the maternal grandmother could only manage to pack some of the accumulated stuff, keepsakes etc and had to store the rest in the area, that’s why the ISSWR was denied access. 89.The Father when cross-examined by Ms Tsui agreed that the mess (if any) could be cleared up if one was minded to do so. The Father however said that the maternal grandmother’s mental and physical conditions are not good and she is also unstable, senile and erratic and it is therefore unlikely that she is willing to do so. 90.Having heard and observed the maternal grandmother in giving her oral evidence, I believe the Father. 91.If the living condition in the maternal grandparents’ home is not satisfactory, I accept that the Mother’s living condition is better in Hong Kong given that her former matrimonial home was a 1000 square feet 3 bedroom flat and thereafter she was living at the Cullinan; one of the most expensive apartments in Elements. School planning for the children 92.The Mother said in her evidence in Court that the Chiba Kokusai International Junior and High School that she had in mind as a backup school for G had closed down because it went bankrupt. When she last visited Japan in January 2016, her parents suggested to her to consider Shigakukan High School where she and her brother had studied as G’s backup school instead. 93.As for L, she said there is a kindergarten nearby GIS school and he can be admitted at any time because he is Japanese. Furthermore, there are also private kindergartens available though the school fees are higher. 94.When this Court asked her what she would do if this case cannot conclude before the school term started in April. The Mother’s answer was rather confusing and appeared to me that she did not have any concrete idea as to what to do. She said:
95.Subsequently, this Court was however informed that to the disappointment of the Father, L could not secure a place in Oisca and therefore he has to attend another Japanese kindergarten in Taikoo Shing. 96.In this respect, I agree with the Father that the Mother’s school planning for the children was not well thought out. When cross-examined by Mr Pickavant, the Mother could not answer for example how many expatriate teachers there are at the GIS. In reply to Mr Pickavant’s question as to whether the children had met any teachers at the international section at GIS when they went to Japan, the Mother’s answer was no but she said G had viewed some real classes. 97.Nevertheless, I recalled that when the Mother applied to me in January for the two temporary removals, she stated that G would use the spare time during 22-23 January 2016 and 2-4 February 2016 to meet the teachers and visit the admission department so as to know more about the school and what junior high school life was like. I am puzzled as to why she failed to do so after all. 98.When questioned by Mr Pickavant as to the poor ranking of GIS and Shigakukan High School, the Mother said she had no knowledge but in her view, academic was not the most important thing. She also alleged the ESF Island School that the Father had in mind for G has a bad reputation because her friends said so. 99.From the evidence given by the Mother, I doubt that the children’s schooling in Japan has been well thought out because the Mother is uncertain what would be the situation for G if the school term in Japan has already started. For L, I agree with the Father that it is even worse because the Mother seems uncertain which kindergarten he would be enrolling in. 100.On the contrary, if the children stay in Hong Kong, G has already secured a place in HKJS and he is enjoying his new school so much that even the Father has abandoned the idea of enrolling him in the ESF. As for L, it is the Father’s case that he would keep on trying to get him enrolled in Oisca because it is a through-train to JIS and HKJS. In any event, even if it fails, L is already studying at a kindergarten now. I am therefore not satisfied that the children’s schooling would be better in Japan. 101.In the light of my findings, I am not satisfied that the Mother’s plan is realistic. Is the father’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the children if the application was granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland? 102.I find that the Father is also a caring and devoted parent. Since 6 months after the parties’ separation, the Father has been having staying access for both children with no difficulties. As a matter of fact, I would say that the Father has been coping very well in that he was the one who potty trained L and slept with him, that’s why L could sleep through the whole night. I accept that he has genuine concern for the children’s welfare. 103.I note the worries of the Father when he alleged that the Mother was inconsiderate of the children’s feelings, needs and wishes because on two occasions when the Mother and the children were supposed to stay with the maternal grandparents, when the Father tried to obtain more details about the trip, G cried and told him in fear that they had been staying in a small room with Mr Y in a hotel and G was specifically told by the Mother not to say a word of this to his father. I share the Father’s concern. In my view, children should not be taught to tell lies, in particular to their natural father simply to suit the Mother’s self-interest. 104.I do not accept the Mother’s evidence when she explained that she stayed in the hotel because it was a gift by the maternal grandparents as it was late at night when they landed. Under cross-examination by Mr Pickavant, the Mother said she could not remember how many days she had stayed in the hotel. I don’t accept her evidence. I find her lying when she said taking a taxi to the maternal grandparents’ home which was 45 minutes away from the airport was more expensive than staying in the hotel. 105.The Father also complained that the Mother had lied at Court when she applied for temporary removal in the beginning of the year because G did not only miss one school day. G subsequently told the Father that he was unhappy to have missed the Open day that Saturday which all students had to attend and parents were invited as well. When I asked the Mother, she simply said that she did not count Open day as a school day because there was no class. 106.I do not understand why the Mother placed such a great priority on her own interest. It was clear and obvious that she did not want to reveal the truth to me at the hearing of her temporary removal application. It is nonsense for her to say that the Father could have checked the missing information from the school website if he so wished even though she conceded that it was all written in Japanese. 107.The Father claimed that the Mother has a short temper and would shout at G to pressurise him. I agree with the Father that it is not in G’s interest if the Mother tries to manipulate and force him to adopt the views which are not his. I find the situation unacceptable. 108.I find it alarming that the Mother even tried to bribe G to suit her own agenda. When Mr Pickavant put to her that G told the Father that she had bought him a second-hand I-phone because he was co-operative with the social inquiry officer and the Mother made another offer to buy a new one if G would co-operate again, the Mother’s answer was very evasive. In reply, the Mother denied but said she had forgotten when she bought the mobile phone. She alleged that the Father could have made up those stories. I don’t believe the Mother. 109.In the Updated Report,
110.Ms Ching in her oral testimony confirmed that she had set up an independent meeting in the absence of the Mother so that G would be free from any influence. 111.For my part, I entirely accept that G is reluctant to go to Japan. It is obvious from both Social Welfare Reports that G does not want to go to Japan. Furthermore, from the text messages produced by the Father which were not challenged, I notice the following exchanges between G and the Father:-
112.In the Updated Report, Ms Ching said:
113.Ms Ching said in her evidence that G had refused to answer any more questions about the boyfriend, she felt that she was obliged to write the last sentence so that everybody could read that. 114.Ms Ching said in her oral testimony, “Because G has said that now he didn’t want to move and he wanted to stay in Hong Kong for a few more years. So if the mother is aware of this factor, would she defer her plan for a few years?” I share her view. If the Mother is loving and caring, she should put her children’s interest ahead of hers. 115.The Father was also worried about the relationship between Mr Y and G and the children’s situation in Japan. In his 2nd Affirmation, he said:
116.I agree. When Mr Y was called to give evidence in the resumed hearing in June, Mr Y explained why G might have been scared of him. Mr Y was of the view that adults should tell children what was right and what was wrong and this was his duty. He gave an example that on one occasion when they went to the bathroom at a gym , G splashed with water and the water got on to others, he at once taught G not to do so in public places. He meant to teach and educate but not to punish him. He said G now knows that he means to teach him. He considered that this would do G good in future and did not intend to scare him. He also has no intention to take over the Father’s role but opines that he has the responsibility to support G to become a gentleman. 117.Mr Y admitted that there had been tension between G and him but as they have known each other for nearly 2 years, the relationship has improved. In order to show how close they are, Mr Y said in his oral testimony that on more than one occasions, G, the Mother, he himself and sometimes L would share one bed. He said that G had also invited him to sleep at their serviced apartment the day before the hearing on which Mr Y was supposed to give evidence even though he had already booked a hotel. For my part, I do not consider this kind of arrangement proper and appropriate and even though G might have made the invitation, in my view, the Mother and Mr Y should explain to him and decline his offer. 118.Looking at Mr Y’s evidence, I can understand why G was scared. They have different cultures. G and L were brought up by (adopting the Father’s own words and with no disrespect) a mixed raced family, G might see nothing wrong e.g. in splashing water at the bathroom or might not understand why he had to immediately put down the phone when Mr Y was around even though G was only talking to the Father (which evidence was not challenged). Mr Y has apparently adopted a much stricter set of rules than what G has used to which confused him. 119.I also share the Father’s concern that since the present proceedings have commenced, the Mother has failed to inform the Father some of the material changes of the children’s situation. For example, the Father said that the Mother only informed him that they would go to Japan without seeking the Court’s approval for temporary removal and she further refused to tell the Father where the three of them would be staying. It was only through G that the Father subsequently learnt that on occasions when they went to Japan, they stayed in a hotel with Mr Y. Although the Mother claimed that she had informed the Father of it, she failed to produce any form of evidence in support. I believe the Father. 120.In addition, the Father also said that the Mother refused to disclose to the Father they have moved 4 times since the expiration of the tenancy with Cullinan. Although the Father was never invited there, G let him view the flat by Skype and video call. He only knew that they were serviced apartments with one bedroom which is not satisfactory especially since L would have to sleep with the domestic helper in the sitting room. I agree. 121.I therefore accept that the Father has some genuine concerns for the children’s future. 122.As to the contact between the maternal grandparents and the children, the Father said that G only likes to spend time with his maternal grandfather but not his maternal grandmother. In any event, the Father said that G viewed his trip to Japan as duty visit rather than enjoyment. I believe that. 123.In paragraph 13 of the Updated Social Welfare Report, Ms Ching also said:
124.In any event, as it is the Mother’s case that the maternal grandfather has already visited Hong Kong more than 10 times and the air tickets are now cheap (using the Mother’s own words), I believe that the maternal grandfather could come to visit them if he misses his grandchildren. 125.Having reached the above conclusion, I agree with the Father that the situation for the Mother in Hong Kong is clear, settled and certain whereas in Japan, it is unclear, unknown and not desirable. No matter whether the Mother would work, the maternal grandmother would be the one who would assist in looking after L. For G, he would be taken away against his wish without any friends or connection. 126.I therefore entirely agree with Ms Ching when she said in her Updated report:
127.For the above reasons, I refuse the Mother’s application for permanent removal. Would the Mother be unhappy in Hong Kong? 128.The Mother said that she is lonely here with no friends and therefore she needs to go back to Japan for her family support where she has a lot of friends. I do not accept this part of her evidence. In her oral testimony, she mentioned that she could live in her friends’ home when she travelled to Hong Kong to let the Father see the children. Furthermore, in denial of the Father’s allegation that she met Mr Y in Yahoo website, she said that she met Mr Y through the introduction of others at dinner. In any event, didn’t she say that ESF Island School had a bad reputation because her friends said so? I believe that she has friends here. On the contrary, the Mother having left Japan as soon as she was graduated at the age of 22 and had never expressed a desire to return to Japan even after her 1st failed marriage, who are the close friends she mentioned she misses in Japan? 129.Mr Pickavant submitted that the Mother has a HKID card and she has lived here for 8½ years, and has been working in the company for 5½ years which she enjoyed and got promoted. I agree. Apart from Mr Y, I see no reason why the Mother needs to go back to Japan. Care and control 130.Having reached the above conclusion and given that I have already found that the Mother is the primary carer, it ought to follow that she should have care and control of the two children. However, I have serious doubt as to whether the Mother would stay in Hong Kong. 131.Ms Ching in her oral testimony confirmed that she did ask the Mother what she would do if she cannot take either or both children to Japan, the Mother replied that she would continue to pursue it and Ms Ching was of the view that the Mother would fight the case resolutely. 132.When the Mother was recalled to give evidence in June to update her situation, I had also asked the Mother if her relocation application was refused, what she would do. In reply, she said it depended on my decision as to the care and control. If I granted it to her, she would stay. If not, she would leave. I then asked her what if I granted joint care and control or share care, she thought about it for a minute and replied that she might leave or stay. 133.At the resumed hearing in June, Ms Tsui informed this Court that the Mother has moved and she has also lost her job. From the 2 further affirmations in reply to my direction that she has to provide the reasons for all her changes, she said that she has lost her job because she resigned. She said in her 10th Affirmation dated 7 June 2016:
134.I do not understand why the Mother resigned from her permanent job as early as 14 January 2016 when this trial had not even commenced. Should her application for relocation be refused, what is she going to do? In paragraph 5 of another updated Affirmation of hers filed on 3 June 2016 (“the updated Affirmation”), the Mother said that she got a new job in May but she would only be paid an hourly rate at HK$85. She said:
135.In the same paragraph, the Mother also said that due to the low income and her poor financial situation; she can only afford a one-bedroom apartment because she claimed that the price of a two-bedroom apartment in Hong Kong Island would cost more than HK$40,000. I don’t believe that. 136.The Mother had already said in her oral evidence in January that she would move to Hong Kong Island because the children’s school and her office were in North Point and Quarry Bay respectively. However, she also mentioned that she would move to a serviced apartment because she “didn’t want to commit two years, or one year even.” 137.As for the domestic helper, the Mother informed me that she had written to the Immigration Department, the extract is as follows:-
138.Looking at the above, if the Mother were to stay in Hong Kong, it means she would have no permanent job and nowhere permanent to live because in the licence agreement exhibited by her in her updated Affirmation, the period of stay in the current serviced apartment was only 3 months and the check out date should be 26 July 2016. 139.The Mother said in paragraph 8 of her 10th Affirmation:
140.If this is the case, why has she resigned, moved to a one-bedroom serviced apartment and terminated the domestic helper’s contract in the first place? This simply does not have a ring of truth. 141.The Father in his oral testimony which was not challenged also said that G had told him that the furniture and the children’s stuff had already been shipped to Japan because their new apartment was ready. In view of all these, would the Mother really stay? 142.From the Mother’s evidence, I find that she is impulsive by nature. The fact that she wrote to the CEO at midnight demanding that the Father be excluded from the company’s drinking activities is one of the examples. At Court, she said that there was nothing wrong because she felt lonely and needed the support of the Father at the time. Furthermore, the Mother said that she knew the CEO personally and therefore the situation was different. I do not agree. The fact that she together with the Father had been invited by the CEO for lunch twice coupled with the fact that G and she had been treated to go on a business trip with the Father to Paris did not mean that she personally knew the CEO. Even if what she said was true, he is still the boss of her husband. Surely she should have thought of the embarrassment that might have caused to the Father before writing the email. 143.When cross-examined by Mr Pickavant as to why she had developed the relationship with Mr Y unbeknownst to the Father for about 7-8 months, the Mother said that she had warned the Father. When asked by Mr Pickavant:
144.In reply, the Mother said that:
145.I find that the Mother would do things her way without considering others’ feelings. One classic example is her sending the dogs to Japan without considering how much the children would miss them. 146.Mr Y informed this Court in his evidence that he at first lived with his parents when he moved back to Japan in July 2014 and he moved to another apartment in January 2016 solely because the Mother, after the termination of her tenancy at the Cullinan, moved to a serviced apartment where dogs were not allowed. The Mother therefore took the 2 dogs to Japan in January 2016. Mr Y explained that the reason he moved to the new place was to take care of the two dogs. 147.The Mother has attached her new licence agreement for her current serviced apartment in her updated Affirmation. From the Schedule at the back of the licence agreement, paragraph 2 in the House Rule stated that:
148.In that case, why didn’t the Mother seek consent from the landlord to keep the dogs in Hong Kong in view of G’s love for the small dog and he sometimes even slept with it? Even if the dogs must be sent away, why they are not sent to the Father’s home (the Father confirmed that he would be delighted to keep them) so that at least the children can visit them during the weekend staying access? In Court, the Mother appeared to be saying that because the dogs were bought by her, therefore they belonged to her. Presumably, she means that she has the final say. Be it as it may, in my view, the two dogs have been reared by the family for years. They are pets to the children which they have grown up with. I do not accept Mr Y’s evidence that G is mature enough to understand the situation and has agreed to move the dogs to Japan. On the contrary, I believe the paternal grandmother’s evidence when she said that the children miss the dogs very much. 149.Furthermore, isn’t it the Mother’s case that she would be staying at her parents’ home if her relocation application is granted? Why were the dogs sent to Mr Y instead of to the maternal grandparents’ home if she really intends to stay with them in Japan? I do not believe Mr Y’s evidence that the 3 dogs might have conflict with one another. 150.Although the Mother said she had no plan to get married again, her evidence was in direct contradiction with Mr Y who said that as soon as his divorce was concluded; he planned to marry the Mother. He initially said within ½ year and subsequently told us that there was a legal requirement in Japan that before a woman could re-marry, she had to wait for a 100 days’ period after her divorce was concluded (even though the proceedings took place in Hong Kong). 151.Although there is nothing wrong for the Mother to remarry Mr Y in the foreseeable future, for the above reasons, I am of the view that the Mother is bent on going to Japan regardless of what my decision is. 152.Ms Ngan when recommending care and control to be given to the Mother said in paragraph 56 of her report that:
153.However, if the Mother is bent on leaving, would it be in the interest of the children in particular L that she be granted care and control? 154.The Mother in paragraph 19 of her affirmation[6] said that:
155.I agree. However, the Father is still living in the former matrimonial home which was the primary residence of the children. The Mother on the other hand has moved several times after moving out from the matrimonial home. Is the Father capable of looking after the children? 156.I have no difficulty in finding for the Father in the case of G. As Ms Ching said in her report,
157.In her oral testimony, Ms Ching added that for a 11 year old child:
I agree. How about L who is still young? 158.Ms Tsui in her closing submission drew my attention to the case of WSM v FSY (CACV No 352 of 2004, 27 July 2005, unrep) when she submitted that the Hon Cheung JA had remarked at para 19 the:
159.Ms Ching also said in her report,
160.I accept that young children are better under the care of the Mother. However, as I seriously doubt whether the Mother would stay in Hong Kong and her plan in Japan is not realistic, my only concern is whether the Father is capable of looking after L emotionally and physically in view of his tender age. 161.In her report, Ms Ching noted that:
162.As I have already found that the Father had been coping very well during the weekly staying access over the past year, the only question is whether he can also handle the weekday’s arrangement for L? 163.The Father said that with the understanding of his boss, he now works 2-3 days at home. In order to support that, he produced a letter from his employer:-
164.Ms Tsui submitted that the working home arrangement is only a bare assertion of the Father and that he is senior enough in his company to orchestrate any arrangement to please the social welfare officer and the Court. I find no merit in this argument. As a matter of fact, the Mother has also written to the CEO and received a similar reply.
165.I accept this entirely. I don’t believe that the CEO needs to lie to the Mother. 166.As for travelling overseas, the Father in his oral testimony said that after his promotion, he has travelled less but at the same time has earned less commission. I believe that. The CEO also confirmed this in his email. 167.Ms Ching in her oral testimony said that the Father had mentioned that if it was necessary to take a long trip for more than 4 days, he would consider seeking the help of the Paternal Grandmother and his stepfather on top of the assistance of the domestic helper but the Father also said that none of his business trip was urgent as they were all planned. 168.Ms Ching has doubt on the support from the paternal grandparents but she said:
I accept that. 169.I understand that young children need physical and personal care. However, when L was under the care of the Mother, he was left with the domestic helper the whole day as the Mother’s evidence was she returned home from work before 8 but L went to bed at 8:30 pm. In this respect, I am not criticising the Mother at all. I agree with Ms Tsui’s submission that she is no different from other working mothers in the local community. However, I am of the view that if care and control is given to the Father, the situation will remain more or less the same as before. 170.The Mother in her oral testimony admitted that before their separation, it was the Father who found the playgroup for L and it was usually the domestic helper who took him there because the sessions were on weekdays. 171.It is also not disputed that L slept with the domestic helper when he was under the care of the Mother whereas he slept with the Father during staying access. 172.It is the Father’s case that his domestic helper cooked and baked all the food including bread and cakes and G described her as a super chef. Even Ms Tsui in her closing submission called her a super wonderful maid. I accept the Father’s evidence. 173.As there is no dispute that the siblings are attached to each other and enjoy doing activities together such as football, swimming, golf and cycling. Ms Ching in her updated report also said:
174.If L grows up separately from G, Ms Ching in paragraph 39 of her report said that;
175.Weighing the balance, I consider it is best for L to be with the Father so that he would have the company of G rather than to be with the Mother who would no doubt soon make an application to this Court for the relocation of L. 176.I do not believe that the Father has a habit of taking sleeping pills and I accept his evidence that he might from time to time take one tablet the first night after returning from trips when he suffered jetlag. I also do not believe that he took Marijuana, which was just a bare assertion of the Mother. 177.As for the issue of drinking, even Ms Tsui in her closing submission said that:
178.For my part, I do not believe that the Father would pursue his drinking habit (if any) at the expense of the children. I consider that he is a loving father who would put the children’s interest ahead of his. 179.As the Father has undoubtedly demonstrated his ability to look after L, I am therefore satisfied that the children could be properly looked after by the Father and the domestic helper. 180.I am of the view that the children should move back to the former matrimonial home with 3 bedrooms which the children are familiar with. G could have his own room just as before and L could sleep with the Father just like what he did during the staying access. 181.After taking into account of all the factors, I therefore grant care and control to the Father. 182.Before I conclude and to all fairness to Ms Ching, her recommendation for split care and control was made without the benefit of seeing either the maternal grandmother or Mr Y and knowing the subsequent development of the Mother’s situation. In my view, her recommendation and evidence have been given in the most professional manner. Access 183.Ms Tsui said in her submission that if care and control of the children were given to the Father, it means that the Mother would only see the children over weekends; she would therefore leave Hong Kong and just come back for access. The Father on the other hand said that he would never get in the way for the Mother to see the children and he would be honest and fair. For my part, I have no difficulty in trusting that the Father would give reasonable access to the Mother. Order
Costs 185.As this is a child related matter, I will make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days. There shall be certificates for Counsel. 186.Last but not least, it remains for me to express my gratitude to Ms Yu and Ms Tsui for the Mother and Mr Pickavant for the Father for their helpful assistance in this trial.
Ms Lily Yu instructed by Messrs Ip & Heathfield and Ms Jennifer Tsui instructed by Messrs Stevenson Wong & Co for the Petitioner Mr Pickavant of Messrs John Pickavant & Co for the Respondent |
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