W, Y v. L, Kp
Read the full judgment text of FCMC 4636/2015 on BabelCite. This Family Court judgment was delivered on 5 July 2016 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Relocation – Care and Control – Shared Care – Best Interests – Payne v Payne – SMM v TWM – District Court – Shanghai – Hong Kong – Mother granted leave to relocate with child – Father's application for shared care dismissed – Detailed access arrangements ordered – No order as to costs
Legal issues: Relocation Permission · Shared Care Application · Access Arrangements · Best Interests of CT
Outcome: Relocation application granted; Father's summons for shared care dismissed; Access order made; No order as to costs.
Cited by 6 cases · Cites 1 case
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FCMC 4636 / 2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 4636 OF 2015 ----------------------------
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---------------------------- J U D G M E N T ---------------------------- Introduction 1.There are two applications before the court that now require adjudication. The first is a summons dated the 15 December 2015 issued by the Petitioner Mother inter alia for leave to remove the only child of the family out of the jurisdiction of Hong Kong, in order to permanently relocate with him to Shanghai. The child in question CT was born on the XX October 2011. He will therefore turn 5 years of age in October. The Father vehemently opposes the mother’s application. For his part he has filed a summons dated the 19 April 2016 seeking a variation of the original order dated the 7 October 2015 which granted the parties joint custody of CT with care and control to the Mother and reasonable access to him. The Father originally sought an order that care and control vest in him with reasonable access to the Mother. On the second day of trial he amended this summons and asked instead for an order for shared care. He now seeks equal time with CT on a two week on two week off basis. 2.In essence the Mother says that she is the primary care taking parent and that in line with established principles she should be given leave to relocate to Shanghai with CT. It is her case that she needs to relocate primarily for business purposes. She also wishes to be closer to her family who are now largely based in Shanghai. The Father for his part seeks to undermine the basis for the Mother’s case generally. He also argues that this was originally a case of genuine shared care and that as a result slightly different principles should apply. Both parties maintain that the other has taken certain positions for strategic legal reasons. The Mother denies that there was ever an arrangement whereby the Father took care of CT for 50% of the time. The main issues 3.Given the above it seems that the main issues are as follows: Should permission be given for CT to leave Hong Kong in order to relocate to Shanghai with his Mother? How should the Father’s application for shared care be viewed? In the event that permission is given what arrangements should be put in place for access? What is in the best interests of CT overall? Background 4.Given the need to hand down this judgment quickly I have taken the liberty of reproducing the Mother’s background in her Opening Submission with some slight amendments as follows:
5.The Mother was clear in the witness box that if her application was refused that she would remain in Hong Kong with CT and her new husband and as yet unborn daughter. She would oppose any application for shared care. 6.As indicated above by virtue of a court order dated the 7 October 2015 the parties presently have joint custody of CT, with care and control to the Mother and reasonable access to the Father. The Father is though very aggrieved that the Mother obtained this order and then applied to permanently relocate on the 15 December 2015 – just two months or so after the original order was granted. He accuses the Mother of bad faith in this respect. The open proposals and each party’s case 7.The Father submitted his open proposals at the beginning of the trial and then resubmitted them again with his closing submission as follows:
8.I queried during the hearing whether or not it would be possible for the Mother to obtain a mirror order from the courts in Shanghai. It is my understanding (and I stand to be corrected on this), that it would be very difficult if not impossible to obtain such an order. I have not received any further clarification from the Father’s legal team on this point. 9.The Mother for her part set out her initial proposals in her solicitor’s letter dated the 8 April 2016 which she then repeats from paragraph 55 onwards in her second affirmation dated the 15 April 2016 as follows:.
10.It was reconfirmed during the trial that the Mother was not proposing that CT go to Hong Kong each month to have access with the Father as she had originally suggested. The Father’s case 11.It was the Father’s case at trial that following the separation that he and the Mother had enjoyed more or less equal time with CT. He confirmed that when the marriage broke down that he had moved out of the matrimonial home and left CT in the care of the Mother. He also said, and this was not really contested by the Mother, that he would return to the former matrimonial home to see CT on a regular basis. CT was only 2 years old when the parties separated. 12.The Father said that although the parties agreed that there should be joint custody of CT with care and control to the Mother and reasonable access to him that:
13.The Father said that it was against this background that the Mother suddenly and unexpectedly announced her desire to relocate to Shanghai only shortly after the original agreement had been reached and only 15 days after the pronouncement of the decree absolute. His belief is that she did not tell him at the time of the divorce that she wished to relocate to Shanghai because she intended to obtain a litigation advantage over him. 14.In support of his case that the parties had infact been sharing CT’s care on a more or less 50:50 basis the Father produced a calendar from April 2015 which he said was evidence of the time that he had spent with CT. He admitted that this was not a contemporaneous document and that he had compiled it after the event from memory and by looking at photographs etc. It includes holidays and does not indicate the time in the day that CT was picked up and dropped off. 15.In or about September 2015, when CT was nearly 4 years old it is acknowledged by both parties that CT began to throw tantrums and have other emotional outbursts. As a result of this the Mother decided that there should be a more defined access arrangement. The Father is very aggrieved about this and maintains that this was unilaterally imposed on him for strategic reasons. Since then CT has spent every alternate weekend with the Father and on the weeks when he is not seeing his Father at the weekends he sees him on Thursday evenings. He also spends time with him during the holidays which the parties do share more or less equally and he has also historically had regular contact by WeChat etc. 16.The Father is concerned that if CT is allowed to relocate with his Mother that he will lose touch with his paternal family. He is insistent that in the event that the relocation is allowed that CT should travel to Hong Kong at least once a month to counteract this possibility and that in addition he should have the lion share of the school holidays. 17.However his primary case is that CT should split his time between two households on a two week on two week off basis and that the Mother should remain in Hong Kong in order to facilitate this arrangement. No expert evidence was produced by the Father to support his contention that this would be in the best interests of CT – or indeed that CT would be able to cope with such an arrangement. Although the Father confirmed when asked by the Court that he had sought some parenting advice and that he and C had attended some parenting classes it does not appear that they have taken any advice on the advisability or otherwise of imposing this arrangement on CT, who is still very young and who, I accept, has been used up until this point of living with his Mother. The Mother’s case 18.It is the Mother’s case that notwithstanding the fact that she is a successful business woman that she has always been CT’s primary care taking parent. She breast fed him from birth, initially took time off work to nurse him, initially went back to work part time and more recently ensured that CT travelled with her as far as possible when she was required to be out of Hong Kong to tend to her businesses in Shanghai. She accepts that she also relies on other people to help particularly her mother and more recently her new husband E. She also has a dedicated domestic helper to assist her with CT’s care. In addition she acknowledged during the trial the importance of the Father’s role in CT’s life. However it is clear that CT has always lived with her. It is her case that the parties agreed joint custody with care and control of CT to her and reasonable access to the Father, because this was reflective of the reality at the time. 19.The Mother did not accept the Father’s assertion that they had shared CT’s care on a more or less 50:50 basis up until about November 2015. She confirmed that they had a flexible arrangement, but on her case CT had spent between 5 – 6 days per month on average with the father from separation in about September/October 2013 to April 2015. She agreed that this may have increased when CT was on holiday. She also agreed that access may have been increased generally to about 8 days per month after the divorce petition was issued or possibly more. However she says that there was never any agreement in principle that CT’s care should be split on a more or less 50:50 basis. 20.In any event the Mother said that this arrangement was changed because it became clear that CT was not coping well with it. He was throwing tantrums, screaming hysterically at school and it seems that both his teachers and the parties themselves became concerned by this turn of events. Indeed it was acknowledged by the Father that he had taken CT to see a psychologist friend who had suggested that CT might benefit from having more structured access schedule. It is of concern that notwithstanding the fact that all parties seem to acknowledge that CT’s behaviour improved once the new access schedule was introduced, that nevertheless the Father has insisted that this was a strategic move by the Mother to reduce his access. For the avoidance of doubt I do not accept this to be the case. It seems to me that sensibly the practical arrangements for CT’s care were changed to suit his emotional development at that time. Discussion 21.I must now turn to consider the issues, the law and the parties evidence as set out in their affidavits and as given orally by them during the hearing. In addition to the parties themselves I also heard evidence from the Mother’s husband, E and the maternal Grandmother. Mr Coleman SC for the Mother indicated that he did not wish to cross examine the Father’s witnesses namely the Father’s fiancée C and paternal Grandmother. The Father did not elect to call either of them in any event and therefore I have not had the opportunity to see them in the witness box. I have also heard from the Social Welfare Officer Miss L and I also had the benefit of reading an International Social Services Report. The Law 22.Both sides produced very detailed Openings and Closings where the present state of the law in the United Kingdom was discussed at length. This was of some interest to myself and I thank each side’s legal teams for their efforts in this regard. However as things stand at present in Hong Kong this court is bound by the Court of Appeal decision in SMM v TWM (Child: Relocation) [2010] 4 HKLRD. It is of note that in the recent Relocation case determined by my brother Judge, HH Judge Bruno Chan (IDC v SSA (FCMP 158/2011, 17 July 2015) reference was made to this decision in the following terms:
23.I should add that I accept that, as in the United Kingdom, this approach should be regarded as a guide to the court as opposed to a legal principle which brooks no opposition. Much of the initial criticism of Payne in K v K [2011] EWCA Civ 793 was based on this concern. To that end I think it is worth repeating the following observations made by Lord Justice Moore-Bick in K v K:
24.This sentiment was accepted by Lady Justice Black in what has become an often quoted passage from the same case:
With respect I could not agree more. 25.Other cases have followed in the United Kingdom where they have grappled again with terminology and the correct approach to be taken in these very difficult cases. I do not intend to go through these in any detail save that it should be noted that I do not accept the proposition made by counsel for the Father that I should approach the law in the following manner:
26.I should also add that although Judges have on occasions, myself included, used a Welfare Checklist to assist them in coming to a decision on children’s matters, that this is not something that has been imposed as yet by statute in Hong Kong. The Welfare Checklist in the United Kingdom is also different from that proposed in our own yet to be passed Children’s bill. 27.Consequently although the ongoing debate in the United Kingdom is interesting it seems to me that in a case such as this, I am obliged to continue to follow the guidance provided by SMM v TWM, which in turn relies on Payne, pending further clarification by either our own Court of Appeal and/or Court of Final Appeal. However I accept that underpinning all of this there is one, and only one, fundamental legal principle namely that in coming to a decision on relocation and CT’s practical care, his best interests must be the court’s paramount concern. I will though largely rely on the guidance provided by SMM v TWMin coming to that decision. Should permission be given for CT to leave Hong Kong in order to relocate to Shanghai with his Mother? Is the application genuine in the sense that it is not motivated by some selfish desire to exclude CT from the Father’s life? 28.The Mother wishes to relocate to Shanghai with her new husband E. She was clear and consistent throughout the trial that her reasons for doing so were that she wished to be closer to her family and that she needed to be in Shanghai in order to run her business properly. The Father sought to undermine both of these propositions. For example it was suggested to the Mother that she should delegate her corporate responsibilities and remain in Hong Kong, the inference being that only by so doing could she be a fully hands on parent and that someone else could easily take on her role at work. As an aside I very much doubt that the same questions would be put to a Father who was the Chairman and Chief Executive Officer of a corporate that has been successfully listed on the Hong Kong Stock Exchange. For the avoidance of doubt I do not accept the Father’s arguments in this respect. Further I do not accept that it is reasonable to expect the Mother to stop running her business in the way that she would prefer. She has tried to do what she can from Hong Kong and she has managed to juggle her role as a mother and her role at work to date by travelling up to China with CT on a monthly basis. It will not be possible to do this once CT starts primary school in August. The fact that this is a family funded business is neither here nor there. It does not follow that the Mother is a titular head only. Indeed it is clear that she is not. Infact this is something that was recognized by the Father when he accepted that the Mother was more driven and more successful than he. 29.In so far as the Mother’s family are concerned again the suggestion is that she has lied, her father is not really ill, her family don’t really come from Shanghai and that this is not really her home. Again the Mother was consistent throughout in her evidence. Like a lot of people from her generation she has lived in a number of different places and cities. She does not originally come from Shanghai and indeed she never claimed that to be the case. But Shanghai is now the place that her family has chosen to base itself. I found nothing improper in what the Mother was saying nor was there any suggestion at all that even if what the Father was saying was true (which I do not accept) that this was somehow motivated by the Mother’s desire to exclude CT from his Father’s life. There is nothing to suggest that at all. Consequently I accept that the Mother’s application is a genuine one. She does not wish to go to Shanghai in order to drive a wedge between Father and son. She wishes to go there so that she can run her business more effectively, develop a new business and in order to be physically closer to her family. Is the Mother’s plan realistic, i.e. founded on practical proposals both well researched and investigated? 30.The Mother’s plan was wholly realistic. It was both well researched and investigated. She had identified three very good schools, all of whom had offered CT places. She also had the choice of two homes. Is the Father’s opposition motivated by genuine concern for the future of CT’s welfare or is it driven by some ulterior motive? 31.I accept that the Father’s opposition is genuine in the sense that he has “genuine” concerns about CT relocating to Shanghai as set out above and as further elaborated upon in his affirmations. I do not believe that he has any ulterior motive save that he wants to be more intimately involved in CT’s day to day life going forward. What would be the extent of the detriment to the Father and his future relationship with CT were the application granted? 32.As will be seen I do not accept that CT’s relationship with his Father need be compromised at all given that Shanghai and Hong Kong are in such close proximity to each other. At present the Father sees CT every other weekend and on Thursday’s after school when he is not having staying access. He is also able to have contact with him daily. If handled appropriately it is hard to see how the Father would really be affected detrimentally by the Mother’s proposed relocation. I appreciate that the Father is concerned that CT may lose touch with his paternal family. Again I do not think that this need necessarily be a concern. To what extent would any possible detriment be offset by extension of the children’s relationships with the maternal family and homeland? 33.Given my comments in paragraph 32 above I do not necessarily need to consider this aspect of the guidance. However for the avoidance of doubt I would expect that CT should continue to see both his extended maternal and paternal family on a regular basis both during the holidays and over some weekends. I acknowledge that CT has a particularly close relationship with his maternal grandmother who I have no doubt he will continue to see on a regular basis whether he is based in Hong Kong or Shanghai. What would be the impact on the Mother of a refusal of her realistic proposal? 34.I accept that the Mother would be very upset if her application was refused. She is about to give birth to her second child. She wishes to base herself in Shanghai which will make life more feasible from a work perspective. She will also have the support of her immediate and wider family if allowed to relocate. The Mother has made it clear that she will not leave without CT. She says, and I accept this to be the case, that it would be devastating for CT to be removed from her for extended periods of time especially as she is about to give birth to a daughter. Social Welfare Reports 35.Recommendations made to the court in social welfare reports, although not binding are very persuasive. If the court decides not to follow the recommendations made then reasons must be given. 36.In this case the Social Welfare officer recommended as follows:
37.I should add that Ms L was an impressive and unflappable witness and was of great assistance to the court. I do not accept the criticisms made of her by the father’s lawyers in their closing submissions. I accept the recommendations that she has made. 38.In her updated note to the court dated the 18 May 2016 she added that:
Again I accept what she says in this respect and the recommendations made. The International Social Investigation Report 39.The International Social Investigation report dated the 21 April 2016 usefully provided independent collaboration of the Mother’s child care plan in Shanghai. It concluded that the plan looked reasonable and suitable and that the living and education arrangements were feasible. I accept that to be the case. The character of the parties The Mother 40.It was an unfortunate aspect of this case that the Father had taken it upon himself to vehemently attack the Mother’s character in what appears to have been a misjudged attempt to undermine her role as a mother. This was very unfortunate. From my perspective the Mother came across as being an extremely bright and articulate woman who has chosen to have a family and to juggle that with her chosen career in a way that is to be applauded and not denigrated. I accept that she has been CT’s primary carer and that she is concerned that CT should continue to have a loving and close relationship with his Father. I very much hope that the parties will now be able to put some of the more negative aspects of this case behind them and move forward in a more positive and constructive way that can only be of benefit to CT as he grows up. The Father 41.Likewise the Father presented as being a concerned, although perhaps somewhat misguided litigant. I accept that he is a good Father to CT and that he has a close and loving relationship with him which must be fully maintained. He also appeared to be a bright and capable person. Conclusion on relocation Overriding review of all of the competing factors 42.The best interests of a child are always the courts paramount concern. In this case I accept that CT should relocate to Shanghai with his Mother and new family and that this will be in his overall best interest. I accept that the status quo is more or less as has been described by the Mother. However even if that were not the case it seems to me that it does not follow that a 50:50 shared care regime should be imposed unless it is very clear that the child in question would be able to cope well with such a proposed arrangement and indeed that this would be optimal from his perspective. I do not believe that to be the case. I should add that an independent joint expert’s report may have been of some assistance to the court in this respect. 43.In the Mother’s second affirmations she said as follows:
I would tend to agree with that analysis of the situation. How should the Father’s application for shared care be viewed? 44.Given the fact that I am allowing the Mother’s application to relocate it follows that the Father’s application for shared care must fall away for all of the reasons that I have set out above. In the event that permission is given what arrangements should be put in place for access? 45.As indicated above it is very important that CT should have regular contact with his Father and wider paternal family. Originally the Mother suggested that CT travel to Hong Kong once a month and that the Father should come to Shanghai once a month to visit him. However she withdrew that offer after further consideration and given concerns expressed by the social welfare officer in that respect. I certainly accept that it would not be optimal for CT to travel to Hong Kong unless he was able to enjoy a three or four day weekend. However if one looks at the school calendars put forward by the Mother for consideration it seems likely that with a little bit of imagination it will be possible for CT to visit Hong Kong most months whether that is for a long weekend or for part of a school holiday. It should also be possible for the Father to visit Shanghai at least once or twice a month during term time in order to spend time with him there. The Mother has also said that the Father is also welcome to see CT during the week subject to his normal school and related commitments and this is to be encouraged. 46.Although I do not accept that the Father should automatically be entitled to 2/3 of all the school holidays I am concerned that he should see CT at regular intervals and consequently I do intend to give him slightly more holiday than the Mother. CT is young and it is important that he sees his Father regularly. I also accept that this arrangement may be changed in 2 or 3 years when CT is a bit older. 47.What follows is a proposed order for access based on the Shanghai American School calendar. I accept that CT may not attend this school in which event the school holidays and other important dates may vary slightly. I am approaching this on the premise that for the next two or three years it will be important for CT to see his Father on a regular basis. Therefore the intent is that CT should see his Father at least twice a month. I also accept therefore that in the short term this will meant that the Father will have more of the shorter school summer holidays. As indicated above longer term I accept that this arrangement may be altered and a different access routine may be put in place along the lines proposed by the Mother above. There should be a review of these proposals in two or three years depending on CT’s development. I will also give liberty to apply generally in that respect. Access arrangements for the school year 2016/17 August 2016 48.CT will start school on either the 10 or 11 August. The access arrangements for August 2016 shall be as follows:
September 2016 49.There is one public holiday on Thursday the 3 September and a professional development day on the 14 September. The Mid Autumn Festival break also begins at the end of the month. There has been no discussion about who will accompany CT on the flights to and fro from Hong Kong. The Father’s proposals assume that the Mother will accompany him; the Mother’s proposals are silent on this point. I anticipate that either the domestic helper will accompany him or one of the other significant adults in his life. The access arrangements for September shall be as follows:
October 2016 50.Given that CT will most likely have travelled to Hong Kong for the Mid Autumn Festival, the Father may travel to Shanghai for one further weekend during the month of October for access. In the absence of any agreement to the contrary that weekend shall be the weekend of the 23 – 26 October from 5:00 pm on Friday the 23 October to Monday the 26 October at 5:00 pm. November 2016 51.Note should be taken of the fact that there are parent teacher conferences this month which presumably the Father will wish to attend and a public holiday on the 27 November. Thus the Father shall travel to Shanghai for access to include the parent teacher conferences and given that CT will be in Hong Kong over Christmas he may also travel to Hong Kong for the weekend over the public holiday.
December 2016 52.The Christmas school holiday is from the 17 December to the 4 January – i.e. a period of 18 days or two and a half weeks. The Christmas school holiday shall be divided equally between the parties with one party taking the first half to include Winter Solstice and Christmas day and the other party taking the second half to include the Western New Year.
January 2017 53.The Father shall go to Shanghai for access for two weekends during January on dates to be determined by the parties. In the absence of any agreement to the contrary that shall be the weekend of the 15 – 17 January from 5:00 pm on Friday the 15 January to Sunday the 17 January at 5:00 pm and the weekend of the 29 – 31 January from 5:00 pm on Friday the 29 January to Sunday the 31 January at 5:00 pm. February 2017 54.Given that Chinese New Year is a very important Chinese festival Chinese New Year shall be alternated between the parties. In 2017 the Father shall have access to CT over Chinese New Year and in all odd years going forward pending a further review. The Mother shall have the care of CT over Chinese New Year in 2018 and in all even years going forward pending a further review.
55.The Father may also have access to CT in Shanghai for one further weekend in February. In the absence of any agreement between the parties that shall be the weekend of the 26 – 28 February. March 2017 56.The Easter holiday is at the end of March/beginning of April. It is for one week only.
57.The Father may also have access to CT in Shanghai for one further weekend in March. In the absence of any agreement between the parties that shall be the weekend of the 11 – 13 March. April 2017 58.There are no additional holidays in April.
May 2017 59.There is one public holiday on Monday the 2 May.
June 2017 60.The school year ends on the 8 June. From the calendar it appears that the children have approximately 9 weeks holiday over the summer. The summer holiday shall be split 50:50 and consideration should be given to how that time should be split – i.e. one week one/one week off, two weeks on/two weeks off etc etc. No further directions will be given on this at this stage. Miscellaneous items 61.The Mother is due to give birth imminently. At paragraph 9 55.1 – 55.4 above she sets out her proposals for CT’s care before the commencement of the school term in August. In the absence of any further agreement between the parties I accept that these proposals are sensible and should be included in the order. 62.The parties are in agreement that the Mother will provide the Father with copies of CT’s school reports and other related information. This agreement should be included as an undertaking in the order. 63.The Mother has also indicated that she is open to the Father having access to CT during the week if he is able to spend a longer period of time in Shanghai. This agreement should also be included in the order. In addition CT should have daily contact with whichever parent he is not with between 8:30 – 9:00 pm by either telephone or whatever other electronic means is available. This agreement should likewise be recorded in the order. 64.It almost goes without saying that the parties should confer on all major decisions relating to CT. The Father should indicate within the next 7 days which of the three schools proposed by the Mother he would like CT to attend. In the absence of any such indication the Mother is free to enrol CT in any one of the three schools proposed. They all seem to be excellent schools. 65.The Father has asked that the court order arising out of this judgment be mirrored in Shanghai. It is directed that the parties provide the court with a short written submission on this point within the next 28 days on whether or not this can be sensibly achieved as requested. 66.The Mother has said that she will not change CT’s surname without the father’s consent and that she has no intention of relocating out of Shanghai but in the event that that becomes an issue she will undertake to let the Father know 3 months in advance. I will hold the Mother to both of these undertakings which should be included in the Court order. 67.Both parties will wish to travel with CT for holidays and other purposes. Consequently there shall be mutual undertakings included in the order that each party will give the other 1 months notice of any planned trips and that they should seek the consent of the other party to the same such consent not to be unreasonably withheld. What is in the best interests of CT overall? 68.For the avoidance of doubt it seems to me that it is in CT’s overall best interest to relocate to Shanghai with his Mother and to have regular contact with his Father both in Shanghai and Hong Kong. I also accept that it is important that he should be able to visit Hong Kong regularly and to see his wider paternal family on a regular basis. 69.For the avoidance of doubt the Father’s summons dated the 19 April 2016 shall be dismissed. Costs 70.As this is a children’s matter I will make an order nisi, to be made absolute at the expiration of 14 days that there shall be no order as to costs. There shall be certificate for all counsel involved. There shall also be liberty to apply in relation to the proposed access arrangements and generally. Ms L recommended that the parties consider appointing a Parental Co ordinator to assist them going forward. I suggest that they give serious thought to this possibility.
Mr Russell Coleman SC and Ms Mairead Rattigan instructed by Withers for the Petitioner Mr Robert Pang SC and Mr Eugene Yim instructed by Lam and Lai for the Respondent | ||||||||||||||||||
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