Dcb v. Ab

HCMP 2173/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2173 OF 2014

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Before: Hon B Chu J in Chambers (not open to public)

Date of Hearings: 14-16, 19 December 2016

Date of Lodging of Further Bundles of Emails and Correspondences: 27 January 2017

Date of Judgment: 16 May 2017

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J U D G M E N T

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Introduction

1.These wardship proceedings were issued by the plaintiff father (“Father”) in August 2014, about two months after the defendant mother (“Mother”) took their then one year old daughter (“L”) to Singapore without his consent.

2.In the originating summons, the Father sought orders including the following:

(i) That L be made a ward of this court during her minority or until further order;

(ii) That he be granted all parental rights and authority that the law would allow him as father if L were born within wedlock;

(iii) That he be granted custody, care and control of L, with access to the Mother subject to the directions of this court;

(iv) The Mother do return L to Hong Kong forthwith.

3.After the issue of these proceedings by the Father (“Hong Kong Proceedings”) and service on the Mother, there followed proceedings in Singapore (“Singapore Proceedings”) issued by her in circumstances described later, resulting in parallel proceedings in the two jurisdictions.

4.The Mother and L eventually returned to Hong Kong on 8 March 2016 after being ordered by the Singapore Court to do so.

5.Thereafter, Mother issued the following summonses on 16 March 2016:

(i) A summons for care and control of L to be granted to her, with defined staying access to the Father, for leave for the Mother to return with L to Singapore, and for L to be de-warded;

(ii) A 2^nd summons for leave to permanently remove L to Singapore;

6.The parties have agreed to having joint custody of L.  To summarise, there were 3 matters before this court at the trial, namely:

(i) L’s care and control;

(ii) Relocation of L;

(iii) De-warding of L.

7.In connection with the above matters, this court had called for 3 social welfare reports in Hong Kong as follows:

(i) The 1^st report made on 12 May 2015 (“1^st SWR”) by Miss Lee Siu-chu Elsa (“Miss Lee”)[1];

(ii) The 2^nd report made on 15 April 2016 (“2^nd SWR”) by Miss Tsang Fung-yee (“Miss Tsang”)[2];

(iii) The 3^rd report made on 31 October 2016 (“3^rd SWR”) by Miss Tsang[3].

8.On 19 March 2015, this court had also called for an international social welfare report, and with the consent of both parties, Miss Lee had sent a referral to the International Social Services in Hong Kong which in turn referred the matter to the Ministry of Social and Family Development (“MSF”) in Singapore.

9.MSF then set out their requirements in order for them to accept the case.  The requirements were essentially: (a) MSF officers shall not be cross-examined in court under any circumstances nor shall they be obliged to answer any queries or give any clarifications; (b) if MSF requests the whole or part of their report not to be released to the parties or their lawyers, this request is to be honoured by the court of Hong Kong; MSF would require up to 12 weeks to complete and submit the report.  The parties consented to MSF’s requirements.  However, this court was of the view that the court should not be bound by those requirements.  As a result, no report was submitted by the MSF. 

10.On 5 May 2016, this court had again directed an international social welfare report, but again MSF would only agree to accept the case on a confidential basis and on the condition that the MSF officers would not be required to give oral evidence during the trial.  This time the Father did not agree to those requirements. 

11.The Father was initially legally represented but since 2 March 2015, he has acted in person in these proceedings.  The Mother had also initially instructed solicitors in Hong Kong, but on 15 October 2014, she filed a notice to act in person, and it was not until 14 January 2016 that her present solicitors came on record to act for her.  The Mother was subsequently granted legal aid.  At the trial, Counsel Mr Robin Egerton appeared for the Mother.

12.The Father had complained to the Director of Legal Aid about the Mother’s application.  The Mother’s legal aid certificate was later discharged on 13 January 2017 after the trial.  Notwithstanding the discharge, her solicitors had continued to act for her.  I note from the court file that the Mother’s legal aid certificate has been restored on 21 April 2017.

Brief Background

13.The Father is Australian and is now 38 years of age.  According to the 1^st SWR, he was brought up in Australia and received education until tertiary level there.  After graduation, he had worked in England and the United States before coming to work in Hong Kong in about 2009 to work for an insurance company.  Since February 2016, has been working for a Swiss insurance company and he is now the Country Manager of that company. 

14.The Mother is Singaporean and is now 35 years of age.  She was born and educated in Singapore.  She came to Hong Kong in 2008 and had worked here as a psychologist and a consultant from about 2008 to 2014. After she went back to Singapore in June 2014, she started a private practice there in November 2014.

15.The parties met in March 2010 in Hong Kong. They soon started dating and later cohabited from about June 2012.  The parties were engaged in about January 2013. L was born in May 2013 out of their cohabitation, and she has just turned 4 years old.

16.The parties had an argument on the date of their scheduled wedding on 21 June 2014 and the wedding ceremony had to be cancelled as a result thereof.

17.Two days later, on 23 June 2014, the Mother left Hong Kong taking L with her and went to Singapore where her family lives (“Removal”). The Father was at first informed by the Mother that she and L would return on about 6 July 2014, but they failed to do so.  The Mother returned to Hong Kong in September 2014 with a view to seeking accommodation prior to bringing L back.

18.Without her knowledge, the Father had issued the present proceedings on 29 August 2014.  Further, the Father had upon issue of these proceedings applied, ex parte, for interim access, and an order was made by Au Yeung J on 12 September 2014, for the Father to have interim access to L for 2 weeks every 4 weeks in Hong Kong until further order (“Interim Access Order”) and for L to remain a ward of this court[4].  Under the Interim Access Order, Father was to fund the expenses for collecting L from Singapore for access and sending her back to Singapore to Mother after access.

19.Notwithstanding the Father had applied for leave to serve these proceedings outside jurisdiction, there appeared to be no such service.  In any event, after obtaining the Interim Access Order, no notice of the issue of these proceedings or any notice of the Interim Access Order was immediately given to the Mother, whether by email or otherwise, until 22 September 2014.

20.On that day, the originating summons herein and the Interim Access Order were served personally on the Mother in Hong Kong. She instructed solicitors immediately and applied for a stay of the execution on the Interim Access Order.  On 25 September 2014, this court granted an interim stay until 6 October 2014.  The Father sought “interim” interim access to L in Singapore between 26 and 28 September 2014[5], which was granted by this court.

21.The Mother issued the Singapore Proceedings on 26 September 2014, seeking, among other things, sole custody, care and control of L with supervised access to Father, as well as an order to prevent the Father from bringing L overseas without her consent.  On 27 September 2014, the Mother obtained an order ex parte that L was not to be taken out of Singapore by either party without the written consent of the Mother (“27.09.14 Singapore Order”).  The Father was physically in Singapore at the time exercising the “interim” interim access.  He was not informed of Mother’s ex parte application and the 27.09.14 Singapore Order was not served on Father until after his access was over and L returned to Mother on 28 September 2014.

22.The Singapore Court was also not informed of the Hong Kong Proceedings, nor the Interim Access Order or any other orders made by this court at the time when the 27.09.14 Singapore Order was obtained by the Mother.

23.The Mother’s stay of execution application before this court was fixed on 6 October 2014 for directions and was later adjourned to 16 October 2014 for argument.  On 6 October 2014, this court extended the interim stay of the Interim Access Order, and further ordered Father to have “interim” interim access to L in Singapore for 6 hours on each occasion outside of L’s maternal grandfather’s home between 13 and 15 October 2014[6].  The day before the adjourned hearing, the Mother filed a notice to act in person in the Hong Kong Proceedings.

24.The Mother failed to attend the hearing before this court on 16 October 2014.  In her absence, the Father was granted all of the rights and authorities that the law would allow him as father if L were born legitimate.  On the same day, this court ordered that the Interim Access Order to continue and L to remain a ward of this court until further order.  This court handed down reasons for the decision on 17 October 2014[7].  From then on, the Mother did not participate in the Hong Kong Proceedings until after her return on 8 March 2016, apart from sending letters to this court.

25.The Father had applied in Singapore for a stay of the Singapore Proceedings, but this was dismissed on 4 December 2014.  On that day, the Singapore Judge also ordered the parties to have interim joint custody and set aside the 27.09.14 Singapore Order, with access to follow that of the Interim Access Order.  The Father was ordered to bear the ticket expenses of the Mother or a nominated helper to accompany L to travel to Hong Kong as well as paying for suitable accommodation and other living expenses during the Father’s two week access period and to obtain a mirror order from the Hong Kong court to this effect (“04.12.14 Singapore Order”).  In addition, Father was to have access to L in Singapore on weekdays from 9 am-1pm and for 5 hours each on Saturdays and Sundays, with immediate effect[8].

26.On 19 December 2014, upon application by Father, this court made a mirror order in relation to the payment of expenses provided for in the 04.12.14 Singapore Order for Father’s two week access in Hong Kong[9].  The 04.12.14 Singapore Order was later made final on 9 January 2015 (“09.01.15 Singapore Order”).

27.The Father lodged an appeal against the 04.12.14 Singapore Order and/or the 09.01.15 Singapore Order, for the dismissal of his stay application.

28.The Father’s appeal was subsequently allowed by Judicial Commissioner Debbie Ong on 18 February 2015 and an order for stay of the Singapore Proceedings was granted (“18.02.15 Singapore Stay Order”). The learned Judicial Commissioner set aside the 27.09.14 Singapore Order, the 04.12.14 Singapore Order, and the 09.01.15 Singapore Order[10].  A detailed judgment was later handed down by Ong JC on 30 June 2015[11].

29.In the meantime, after the 18.02.15 Singapore Stay Order, the Father issued a summons in the Hong Kong Proceedings on 2 March 2015 seeking interim custody, care and control of L.  On 19 March 2015, this court ordered that Father be granted interim custody, care and control of L until further order, and that Mother was ordered to return L to Hong Kong for the purpose of carrying out the terms of the Interim Access Order, to commence on 7 March 2015[12]. The Father’s originating summons was then set down for a substantive hearing on 19 May 2015.

30.After the 18.02.15 Singapore Stay Order, on 6 March 2015, the Singapore Court ordered the Mother to hand over L and L’s 3 passports to the Father on 7 March 2017 for the purpose of effecting the Interim Access Order. The Mother sought leave to appeal to the Court of Appeal against the 18.02.15 Singapore Stay Order.  The Mother further took out another new non- harassment action in Singapore and obtained an ex parte non-harassment order against the Father.  This action was later withdrawn by the Mother on14 July 2015[13] and the Mother was ordered to pay the Father costs.

31.Anyway, the Mother’s application for leave to appeal against the 18.02.15 Singapore Stay Order was subsequently dismissed on 30 September 2015.

32.However, the Mother continued to fail to comply with the Interim Access Order and failed to participate in the Hong Kong Proceedings.  As a result, in her absence, upon the Father’s application, this court made an order on 19 May 2015 for the parties to have joint custody of L, with care and control to Father, and that Mother was to have access to L for 2 weeks in every 4 weeks, and that Mother was to return L to Hong Kong (“19.05.15 Custody Order”).  The question of financial provision for L was further adjourned to a direction hearing on 8 July 2015, which was later adjourned sine die with liberty to restore. 

33.Separately, on 25 November 2015, the Father also issued an application for L to be returned to Hong Kong (“Hague Proceedings”), under article 8 of the International Abduction of Children Act of Singapore, which has incorporated the relevant provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“1980 Convention”)[14]. 

34.On 30 December 2015, District Judge Jen Koh of Singapore ordered that upon the parties’ respective undertakings as set out in the order and subject to such undertakings being carried out by both parties, L was ordered to be returned to her place of habitual residence of Hong Kong before 31 January 2016[15] (“30.12.15 Singapore Return Order”).  The Father undertook to apply for a mirror order in Hong Kong to incorporate all the parties’ undertakings prior to the Mother returning to Hong Kong with L.  On 6 January 2016, the Mother filed an appeal against the 30.12.15 Singapore Return Order.

35.In the meantime, on 8 January 2016, the Father issued a summons in the Hong Kong Proceedings and applied to this court for the undertakings given by him and Mother to the Singapore Court to be incorporated in a mirror order and  further sought, among other orders, maintenance from Mother in the sum of HK$4,000 upon L’s return to Hong Kong, and orders regarding a parenting plan for L[16]. He had attached a draft parental plan in his 6^th affirmation filed on 7 January 2016 (“07.01.16 Parenting Plan”)[17].

36.The parties’ respective undertakings were later incorporated in this court’s order of 14 January 2016, whereas the other orders sought in Father’s summons were adjourned to a further direction hearing on 3 March 2016, after L’s return[18].

37.Subsequent thereto, on 27 January 2016, Koh DJ ordered a stay of the 30.12.15 Singapore Return Order, subject to certain conditions pending Mother’s appeal.  Mother’s appeal was later heard on 2 March 2016 and was dismissed on 7 March 2016[19].

38.As mentioned earlier, the Mother and L finally returned to Hong Kong on 8 March 2016 (“Return”).

39.Later, on 22 July 2016, this court made an order that Father should pay Mother interim maintenance for L in the sum of HK$17,740 per month (“Interim Maintenance Order”) plus reimbursement of L’s medical expenses and other expenses.  In about September 2016, Mother rented a studio flat in Leyburn Villas on Lantau Island with a small terrace, for her and L to stay when L spends the alternate 2 weeks with her.

40.While all the proceedings were going on, in February 2015, Father married a lady from Costa Rica, who was at that time a fitness trainer (“Ms S”). Ms S gave birth to a boy M late last year/early this year.

41.The current arrangements for L are as follows:

(i) The parties have joint custody with care and control to the Father;

(ii) L spends alternate 2 weeks out of 4 weeks with each parent in Hong Kong;

(iii) When with the Father, L lives with the Father, Ms S and M in the same house on Peng Chau Island where the parties and L lived prior to the Removal;

(iv) L attends a kindergarten on Peng Chau during her 2 weeks with the Father.

(v) The Mother flies back to Singapore to work during the two weeks when L is with the Father;

(vi) When with the Mother, L stays in a studio flat in Leyburn Villas;

(vii) The Father has been paying HK$17,740 per month for L under the Interim Maintenance Order, plus her medical expenses and nursery fees.

Recommendation in the 1^st SWR

42.This report was prepared when the Mother and L were in Singapore, Miss Lee was not able to meet them in person, and only spoke to the Mother on the telephone to find out about L’s living condition.  In the 1^st SWR, Miss Lee recommended joint custody be granted to the Father and the Mother.

43.She further recommended the parties to have shared care and control of L and she had said “The idea of letting L have 2-week stay in Hong Kong with the Father and 2-week stay in Singapore with the Mother might imply a shared Care and Control over L.  Although the Mother had lot of reservations which hindered her to carry out the ordered plan, it is high time the Mother consider joint Care and Control at this stage, and let L develop contact and relationship with her biological father.  And the parents would need to work out a future plan which could give L a more stable environment with continuous schooling at either country[20].”

44.Notwithstanding Miss L’s recommendation; the Father himself had sought a sole care and control order on 19 May 2015.

Recommendation in the 2^nd SWR

45.The 2^nd SWR was an update of the 1^st SWR

46.By the time of the preparation of the 2^nd SWR, L had returned to Hong Kong. 

47.Miss Tsang reported that both parties agreed to joint custody but had different views on L’s care and control and access issues and each sought sole care and control.

48.Apart from the parties, Miss Tsang met and spoke to Ms S and also the Mother’s mother (“Maternal Grandmother”) who was visiting the Mother in Hong Kong at the time.  Miss Tsang also spoke to Maryrose, the Father’s new helper since December 2015.  Miss Tsang had also made enquiries from the principal and a teacher from L’s school.

49.Miss Tsang’s recommendation in the 2^nd SWR was that the Mother be granted sole care and control of L.

Recommendation in the 3^rd SWR

50.This report was prepared to provide the court with updated information on the parties, with recommendations on custody and access issues as well as on the Mother’s application for permanent removal of L to Singapore.

51.Miss Tsang reported that both parties maintained their agreement on joint custody although the Father remarked that joint custody could only work if care and control were to be with him.  The parties disagreed on the care and control, access and relocation issues.

52.In this report, Miss Tsang maintained her view that sole care and control would be in the best interest of L at her present age and given the present family circumstances, and her recommendation was that the Mother be granted sole care and control with defined access to Father.

53.Miss Tsang also expressed reservation on the Mother’s relocation plan.

General Legal Principles

54.Section 3(1) of the Guardianship of Minors Ordinance, Cap 13 has set out that in relation to custody or upbringing of a minor and that in any proceedings before any court, the court shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to— 

“(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing; and

shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration, or application is superior to that of the mother, or the claim of the mother is superior to that of the father.”

55.Mr Egerton had referred the court to the Court of Appeal’s decision in PD v KWW [2010] HKFLR 184 in relation to the general principles on custody, care and control.

56.The Law Reform Commission in Hong Kong had in its Report on Child Custody and Access (March 2005) recommended a draft checklist of factors based in part on the Children Act 1989 in England and s. 68F (2) of the Family Law Act 1975 in Australia for the court to have regard when considering what is in a child’s best interests (“Checklist”).  

57.Although the parties had not referred the court to it, the Checklist  had been relied on in a number of cases in the Family Court, such as ZZ v KYL, unreported, 5 March 2008 and CHFS v WPLM, unreported, 28 April 2008, and more recently has been incorporated in the draft Children (Parental Responsibility) Bill, as follows:

“In determining what is in the child’s best interests, the court must, have regard, in particular,to –

(a) the ascertainable views of the child concerned (considered in the light of the child’s age and understanding);

(b) the child’s physical, emotional and educational needs;

(c) the nature of the relationship of the child with each of the child’s parents and with other persons;

(d) the likely effect on the child of any change in the child’s circumstances;

(e) the child’s age, maturity, sex, social and cultural background and any other characteristics of the child that the court considers relevant;

(f) any harm that the child has suffered or is at risk of suffering;

(g) any family violence involving the child or a member of the child’s family;

(h) how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;

(i) the practical difficulty and expense of the child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(j) the range of powers available to the court under this Ordinance in the proceedings in question; and

(k) any other fact or circumstance that the court thinks is relevant.”

58.As for relocation, the general principles have been set out in the Court of Appeal’s decision SMM v TWM [2010] 4 HKLRD 37.

59.As pointed out by Mr Egerton, there has been debate in the English case of K v K [2012] 2 WLR 941 (formerly known as MK v CK [2011] EWCA Civ 793) as to whether Payne v Payne [2001] 1 FLR 1052 applies only to primary carer relocation cases as per the judgment of Thorpe LJ[21] or whether that Payne v Payne is still relevant even in non-primary carer cases in the judgment of Black LJ.

60.In Re F (Relocation) [2012] EWCA Civ 1364, [2013] 1 FLR 645, Sir Munby LJ, after a careful analysis of K v K, agreed with the majority view in that case that the guidance which Thorpe LJ gave in Payne v Payne is not confined to cases where the applicant is the primary carer.  It is guidance that may be utilised in other kinds of relocation case if the judge thinks it helpful and appropriate to do so[22].  

61.Thereafter in Re TC and JC (Children: Relocation) [2013] EWHC 292 (Fam), [2013] 2 FLR 484, Mostyn J set out the governing principles derived from the authorities for a relocation application:

“(i) The only authentic principle to be applied when determining an application to relocate a child permanently overseas is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.

(ii) The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable.  Such guidance helps the judge to identify which factors are likely to be the most important and the weight which should generally be attached to them, and, incidentally, promotes consistency in decision-making.

(iii) The guidance is not confined to classic primary carer applications and may be utilized in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.

(iv) The guidance suggests that the following questions be asked and answered (assuming that the applicant is the mother).

a) 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?

b) Is the mother’s application realistically founded on practical proposals both well researched and investigated?

c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

d) 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?

e) What would be the extent of the detriment to him and his future relationship with the child were the application granted?

f) To what extent would that detriment be offset by extension of the child’s relationships with the maternal family and homeland?

(v) Since the circumstances in which such decisions have to be made vary infinitely and the judge in each case has to be free to decide whatever is in the best interests of the child, such guidance should not be applied rigidly as if it contains principles from which no departure is permitted.

(vi) There is no legal principle, let alone some legal or evidential presumption, in favour of an application to relocate by a primary carer. The old statements which seem to favour applications to relocate made by primary carers are no more than a reflection of the reality of the human condition and the parent-child relationship.

(vii)   The hearing must not get mired in taxonomical arguments or preliminary skirmishes as to what label should be applied to the case by virtue of either the time spent with each of the parents or other aspects of the care arrangements.”

62.More recently in CYP v LC, FCMC 3744/2014, judgment (unreported) dated 20 May 2015, Judge Melloy followed the guidance of Re TC and JC andreached a decision in relocation by considering what is in the children’s best interests by weighing all the factors, identifying which factors are likely to be most important and attaching appropriate weight to them.

63.With the above general principles in mind I now turn to the present case. 

The Father’s criticisms of the Mother

64.The Father had accused the Mother of, among other things, contempt of court and claimed that she had a conviction for child abduction[23]. The Father had also threatened contempt proceedings against the Mother.

65.First of all, there had not been any criminal convictions of Mother for child abduction, whether in Singapore or in Hong Kong.

66.Secondly, the Father had repeated referred to the Removal as “abduction” and the Mother complained that his ongoing and repeated use of this terminology was “inflammatory and oppressive in addition to being factually incorrect”[24].

67.I accept that the Father’s repeated reference to “abduction” was inflammatory and unnecessary and certainly not conducive to the parties coming to any amicable settlement.  The Removal, albeit unilateral, was not “wrongful” under the 1980 Convention, as the Father had no “rights of custody” at that time.  It was not until 30 December 2015 that the Singapore Court held that the Father had acquired rights of custody of L under the 19.05.15 Custody Order, that at that time, L’s habitual residence was still Hong Kong, and the retention of L in Singapore thereafter was in breach of the Father’s rights of custody.  

68.The Father had made also numerous attacks on the Mother’s credibility.

69.By way of example, the Mother had at first said in her 2^nd affirmation that she came to Hong Kong in 2008 to work as a psychologist and consultant but she then said in the same paragraph that she moved to Hong Kong in 2009.  According to the Father, Mother actually moved to Hong Kong in August/September 2008.  The Father had referred to Mother’s reference to 2008 and 2009 in the same paragraph as the Mother’s “inability to tell the truth” and that her testimony could not be trusted.  The Mother had later apologized for the typing error. 

70.The Father said the Mother was making a “false” statement that she said that when this court made the 19.05.15 Custody Order, the Singapore Proceedings were ongoing, as on 18 February 2015, the Singapore Court had already stayed the Singapore Proceedings in favour of the Hong Kong Proceedings.

71.However, the Mother had applied for leave to appeal against the 18.02.15 Singapore Stay Order and her appeal was only dismissed on 30 September 2015, and the Singapore Proceedings clearly had not been concluded at the time when this court made the 19.05.15 Custody Order.

72.The Father had also accused what the Mother said about not having the financial means to take legal advice for the Hong Kong Proceedings was again “false” in that she had the financial means to pay for legal representation in Singapore and further in the Grounds of Decision for the 30.12.15 Singapore Return Order, DJ J Ko had said that the Mother’s bank statements indicated she was not impecunious and that it was the Mother’s choice to refuse participation in the Hong Kong Proceedings for her own reasons[25].

73.I agree that it was the Mother’s choice not to participate in the Hong Kong Proceedings and instead had launched the Singapore Proceedings.  However, the costs for any protracted litigation in Hong Kong, which is now in its 3^rd year, can be very high.  The Mother did obtain legal aid to continue the present proceedings, and although it was discharged, it was subsequently restored.   “False” in any event was a strong word.

74.The Father had also alleged that certain statements made by the Mother to be “nonfactual statements” and “erroneous statements”[26] and referred to the “level of deceit” that the Mother would go to[27].  In the Father’s affirmation in response to Mother’s 2^nd affirmation, he had accused the Mother of giving “perjured testimony”, “lying” and of “deceit”.

75.I agree with the Mother the Father’s choice of language in his affirmations was inflammatory and emotive, and in my view, quite unnecessary.  In any event, even if there were inaccuracies in what the Mother had said, I do not find there was any sufficient evidence to justify the Father’s very serious allegations and criticisms against the Mother, in particular when he did not even cross examine the Mother.

76.The Father had also referred to Mother’s “mental problems” and that she had mentioned committing suicide.  The Father had exhibited in his 9^th affirmation an affirmation made on 27 September 2016 by one Simon James Potter[28]. The affirmation was not properly filed in court.  Mr Potter did not attend the trial to be cross examined, and his affirmation was not admitted as evidence by this court.  In any event, what Mr Potter said was the Mother was found with a bottle of wine barely conscious and “looked like a suicide attempt”.  The Mother had provided her explanation on the incident in her 8^th affidavit and I find there was no sufficient evidence to contradict what she said.

77.I do not find there was sufficient evidence that the Mother had any mental problems as alleged by Father. 

The parties’ respective witnesses

78.The Mother filed her 2^nd, 3^rd, 4^th, 7^th and 8^th affidavits to support her case and the Father’s case was mainly was supported by his 3 affirmations filed respectively on 30 March, 6 July and 5 August 2016.

Ms S’s evidence

79.Ms S said she studied physical education at the University in Costa Rica and became a professional in “Fitness and Nutrition”.  She said she had worked as a volunteer counsellor for kids for a Canadian summer camp based in Costa Rica when she was 16 years until she was in her 20s when she started working full time.

80.She first met the Father when she was working for Pure Fitness in Hong Kong around mid 2011.  She later left Hong Kong and moved to Nicaragua and that in October 2014, she and the Father met for the second time.  She visited Father in Hong Kong in December 2014, and then they were married in February 2015.  As mentioned earlier, they now have a baby son M.

81.Ms S had criticized Teresa’s evidence as being contradictory and based on the hatred that Teresa felt because she and the Father fired her.  Ms S also said Teresa had said the Mother was bipolar and abusive.  These were never put to Teresa by the Father nor was Teresa cross examined on what Ms S said during the trial.

82.I accept that Ms S’s affirmation was made in August 2016, by which time L had been living with Father and Ms S every other two weeks, for almost 5 months.  However, not all Ms S’s evidence was from her own observation, and further she had not been provided with all the information by the Father.

83.One example was her evidence on the Father not being allowed access to L by the Mother.  Ms S said she had gone with the Father to Singapore 4 times during the 12 months from January 2015 until January 2016 when Father had tried to see L, but had no luck.  She said that Mother made it impossible for the Father to see L on L’s second birthday, not even for an hour or two during L’s birthday weekend.  She had also said during those 12 months, the Father never got an offer to skype L, he never got pictures or videos of L and clearly he was not involved in L’s daily care and activities.  Ms S had described that those 12 months without seeing L were “brutal” on the Father[29].

84.She was then shown by Mr Egerton during cross examination a copy of a without prejudice letter dated 6 October 2015 from the Mother’s Singapore lawyers making proposals for a settlement, and setting out Mother’s proposals for access[30]. There was no response to the letter, and Mother’s lawyers wrote again on 20 October 2015.  This finally brought about a reply from Father’s Singapore lawyers on 16 November 2015 indicating that the proposals were unacceptable, without making any counter-proposals.  Although, Ms S’s response to these letters was that she did not agree to L living in Singapore, it was clear that she was not unaware of those proposals or that there had been proposals made by the Mother’s lawyers for access.  

85.Ms S is married to the Father and her affirmation was filed in support of Father’s case.  She accepted under cross examination that her evidence could not be said to be neutral.  Her evidence had to be viewed in that light.

86.Some of Ms S’s evidence was also hearsay, such as what was said by the Father’s and Mother’s friends who knew them before L was born, or what was said by Father in relation to sleeping arrangements he had with L when L was born, referring to some photographs shown to her by the Father.  What she said was not from her personal knowledge.

87.Having said this, I accept Ms S’s evidence that she was helping to care for L during L’s two weeks with the Father, and Ms S had given a full account with details of the time L spent with them on Peng Chau.  It was Ms S’s evidence that L and she had bonded almost instantly, and that L had started to learn Spanish.  I accept what she said.  This was also reflected in the 2^nd SWR/3^rd SWR.

Teresa

88.The parties’ former domestic helper Teresa had filed an affirmation to support the Mother’s case and had attended trial to give evidence on behalf of the Mother.

89.Teresa started working for the parties in October 2012 when the Mother was pregnant with L, and had helped the parties in caring for L until the Removal.

90.Teresa said she and the Mother have become good friends, and her evidence had to be viewed in that light.  I will consider her evidence again when dealing with L’s care arrangements prior to the Removal.

The Mother’s parents’ evidence 

91.The Mother’s parents (collectively “Maternal Grandparents”) were married in 1980 and separated since about late 2001 or early 2002 but they have remained amicable.  Both of them came to Hong Kong to give evidence to support the Mother.

92.The Mother’s father (“Maternal Grandfather”) is a lawyer.  He had said in his affirmation that when the Mother and L first arrived in Singapore, they had stayed with the Maternal Grandmother in her apartment, together with the Mother’s sister Natasha.  Later, when Natasha’s fiancé arrived, the Mother and L had moved into the Maternal Grandfather’s apartment in early 2015 temporarily, after he moved to a new location.  Later, the Mother and L moved back to the Maternal Grandmother’s apartment after Natasha got married, and this was where the Mother and L were living until they returned to Hong Kong in March 2016.

93.The Father had put it to the Maternal Grandfather that Natasha’s wedding was in November 2015.  It would appear that although the wedding was in Phuket in November 2015, Natasha also had another wedding celebration earlier in Singapore, which could be in August 2015, as according to the 2^nd SWR, Mother and L moved back to the Maternal Grandmother’s apartment in about August 2015.

94.In any event, it was not disputed that the Mother and L had moved twice, from Maternal Grandmother’s apartment to the Maternal Grandfather’s apartment and back.

95.The Maternal Grandfather said since L was taken to Singapore, he had been highly involved in their lives, and had been able to maintain a close connection with L.  He said since June 2014, he had extended loans to the Mother to help her and L settle down.  He had paid for L’s school fees in September 2014 until February 2015, when Mother became able to pay for L’s school fees herself, but since March 2016, the court proceedings in Hong Kong had hindered Mother’s efforts to grow her business, and he had resumed paying L’s school fees.  It was the Maternal Grandfather’s evidence that he had also loaned money to the Mother to cover her lawyer’s fees in Singapore. During the trial, the Maternal Grandfather had said that the Mother had need of his financial support as the Father had not provided “a single cent” while L was in Singapore.

96.The Maternal Grandfather is now over 70 years of age.  It was not disputed that he had not travelled to Hong Kong for more than 10 years prior to the trial, and that he did not visit the Mother when she was living and working in Hong Kong, nor did he visit L in Hong Kong after L was born. 

97.The Father also criticized that the Maternal Grandfather did not made any effort to visit or see L during his visit to Hong Kong for the trial.

98.I find the Maternal Grandfather’s involvement was mainly in relation to providing a home for the Mother and L when required and financial support.  There was no sufficient evidence to contradict what he said about his involvement in these aspects.

99.The Maternal Grandmother also came to Hong Kong to give evidence on the Mother’s behalf.  The Maternal Grandmother had said in her affirmation that although she studied law at university, she never practised, and had been a home maker and part time tutor.  She confirmed that she had supported Mother and L in Singapore by providing them with a home and by lending money to Mother to cover some of her legal fees and other incidental expenses.

100.In the Maternal Grandmother’s affirmation, she had also given evidence as to the Mother’s care of L while living with her, and that she would continue to assist the Mother.  She had said that she, the Mother and L all had their own bedrooms, and that L’s room was large enough to include her bed, wardrobe, and an open play area.  The building where her condominium is also has three playgrounds, two swimming pools and also a large community of young, multicultural families.  She had also given evidence as to her role in taking care of L.

101.The Maternal Grandmother was not really cross examined on her evidence in her care of L.  It was however clear that the Maternal Grandmother was not really involved in the care of L until L was taken to Singapore.

102.Although the Maternal Grandparents are clearly on Mother’s side, I find them both credible witnesses, and that after L was taken to Singapore, both of them had provided a home for the Mother and L and had also rendered financial assistance and support to the Mother.  It is also clear that they will be prepared to continue to do so, if the Mother’s relocation application is granted. 

The Father’s criticisms of Miss Tsang

103.The social welfare reports were called for by this court, and it has been said that the social workers who prepared the reports are the court’s eyes and ears.  They are the court’s witnesses.

104.Miss Tsang gave extensive evidence over the trial, being crossed examined by both Mr Egerton, and the Father.  In particular, the Father had cross examined her on 3 days.

105.Miss Tsang obtained a Bachelor Degree in Science and a Master Degree in Social Work, and she joined the Social Welfare Department in 1989.  She had worked in various sections/units within the department, including adoption, probation, integrated family services centres etc.  In 2012, she was transferred to the present Family Child Protective Services unit, handling custody disputes, child abuse and domestic violence and had prepared approximately 50 reports in total, but only a few of these had been subject to court scrutiny as only a few of her cases had proceeded to trial.  She confirmed that this was the first case in which she had been asked to consider relocation and the first case she had been involved in child abduction or wrongful retention.

106.It was the Father’s case that there were flaws in the investigative process of Miss Tsang, her reports were prejudiced and her conclusions flawed. 

107.The Father had produced a copy of the procedural guidelines issued by the Family and Child Welfare Branch of the Social Welfare Department which were issued in July 2008 and updated in November 2015 (“SWD Guidelines”)[31]. The Father had applied for the same from the Director of Social Welfare. During the trial, the Father also produced an article titled “Avoiding Unconscious Bias at Work”[32].

108.The Father had alleged that Miss Tsang was biased and she had not considered all the factors in the SWD Guidelines or avoided unconscious bias. He had complained that Miss Tsang’s 2^nd SWR and 3^rd SWR did not follow the SWD Guidelines requiring “a multi-faceted, multi-sourced and broad approach, had no independent or peer review, no fact checking and no accountability”.

109.In particular Miss Tsang was referred to Section E of the SWD Guidelines on “Different Custody Arrangements” and was asked by Father on her considerations under “Part 1 Joint Custody” and that Father was querying whether Miss Tsang had considered that he was unable to exercise his joint custodian rights from the 19.05.15 Custody Order until 8 March 2016 because of Mother’s non compliance with the Hong Kong court order.

110.The Father put to Miss Tsang that he had explained to her when she came to Peng Chau for home visit, that he had no input on L’s schooling, vaccination or any decision regarding L during the period from the 15.05.15 Order until 8 March 2016, and that Miss Tsang had not addressed the issue at all.

111.In his above line of questioning, the Father seemed to be revisiting the issue of joint custody, which the parties had already agreed, and the issue before this court was which parent should have sole care and control, or whether there should be joint care and control.  In any event, Miss Tsang was clearly aware that during L’s stay in Singapore, the Father had little or no input in any decisions concerning L, and that he had little contact with L.

112.The Father put to Miss Tsang that there were two schools of thought in Hong Kong, namely, (i) one school which considers a child has shared residence with his/her parents; and (ii) the other school considers that a child needs a primary residence, and that Miss Tsang was of the 2^nd school while Miss Lee was of the 1^st.

113.Miss Tsang had explained that there were no specific schools of thought, and that she and Miss Lee had looked at the matter differently, and when Miss Lee wrote the 1^st SWR, Mother and L were not in Hong Kong.

114.The Father had put to Miss Tsang that after the home visit, when Ms S was walking with Miss Tsang down the hill to the ferry pier, Miss Tsang had said to Ms S that there were two “schools of thought”, and that Miss Tsang was of the 2^nd school.  Miss Tsang denied this and said she was only explaining to Ms S what was meant by “shared care and control” and “sole care and control” but she did not say which school of thought she belonged or supported.

115.Ms S had given evidence that she and Miss Tsang did have a conversation as put by the Father.  Miss Tsang was present in court when Ms S interposed to give her evidence.  Miss Tsang did not agree with what was said by Ms S.  Miss Tsang confirmed that she had gone through her records and that any reference to two schools of thought was during her 2^nd interview with the Father, and not when Ms S and she were walking down the hill.  Miss Tsang said when they were walking down hill after the home visit, Ms S had expressed her view that Miss Tsang was taking sides with the Mother in the 1^st SWR and she had queried why Miss Tsang had recommended sole care and control to Mother.  Miss Tsang said she then explained the 2 types of arrangements, either joint care or sole care, and that Ms S had expressed her view that the present arrangement of 2 weeks for each parent to be best, but Ms Tsang tried to explain to her that this would only work in cases of high co-operation between parents, and not high conflict.

116.Miss Tsang produced an email written to her by Ms S summarizing what was discussed between them on 14 October 2016[33], and maintained that she never mentioned that there were two schools of thought or that she was in particular in favour of a primary home. In the email, Ms S had referred to Miss Tsang asking her whether she was of the view that L should have a primary home or continue having the schedule of 2 weeks with each parent.

117.In the email, Miss Tsang was clearly seeking Ms S’s views on L’s arrangements.  There was nothing in this email to indicate that Miss Tsang had already made up her mind at the time, or that she was of any particular school of thought.

118.The Father had alleged that he had said a number of things to Miss Tsang to which she failed to mention in her reports.  The Father claimed that he had taken “excellent notes and voice recording”. The Father submitted that Miss Tsang’s recollection of the conversations she had with him was poor and that she missed a large number of important facts and details and that this was so she could more easily support her “pre-conceived conclusion of sole care and control” to the Mother.

119.The Father had spent considerable time on cross examining Miss Tsang on the two schools of thought and in his closing submissions he said he “offered to submit transcripts of conversation he had with Miss Tsang” and that his application was declined by the court “in order to save time as the point had now been made very clearly that Miss Tsang was being less than truthful”.

120.First of all, there was never any proper summons taken out by the Father prior to the commencement of the trial to produce any records or recordings or transcript alleged to have kept by him.  None of the alleged records or recordings or transcript had ever been disclosed by the Father to the Mother or to this court prior to the commencement of the trial. There was no consent from the Mother for the production of such alleged records or recordings or transcript.  As there was no summons issued by the Father, there was no proper hearing or argument on this application.  This court had not made any finding during the trial that Miss Tsang was “being less than truthful”.  The fact that a point made by the Father was noted by the court did not mean the court agreed with the point.

121.The Father submitted that Miss Tsang spent in total less than 5 hours with L in 2016.  This was in fact much more than Miss Lee who did not even see L.  Miss Tsang prepared 2 reports whereas Miss Lee only 1.  Both the 2^nd SWR and 3^rd SWR were detailed and the omission of any matters or inaccuracies in any matters did not mean Miss Tsang was biased or that she failed to follow the SWD Guidelines.  In any event, having considered Miss Tsang’s evidence, whether she was of any particular school of thought, I do not find there was sufficient evidence that there had been any bias on the part of Miss Tsang or that she had not followed the SWD Guidelines or that she had any pre-conceived conclusion of sole care and control, as alleged by the Father.

122.Further, the Father submitted there were conflicting recommendations by Miss Lee and Miss Tsang.  The Father did not call Miss Lee as a witness.  In any event, at the hearing on 19 May 2015, it was the Father’s own submissions that this court should deviate from Miss Lee’s recommendation and to grant him sole care and control of L instead, which the court did in light of the then circumstances.  

Disputed Issues

123.The main issues were in my view:

(i) Whether the parties should be granted joint care and control of L, or one of them should be granted sole care and control;

(ii) Whether the Mother should be allowed to relocate back to Singapore with L;

(iii) If the Mother’s relocation application is granted, what are the contact arrangements;

(iv) If the Mother’s relocation application is refused, what are the contact arrangements.

124.The parties had each claimed to be the primary carer of L prior to the Removal, and further it was the Father’s case that he was denied access when L was staying in Singapore.  I will consider these allegations in respect of the following periods:

(i) From L’s birth in May 2013 until the Removal;

(ii) From the Removal until the Return (“Singapore Period”);

(iii) Post Return.

From L’s birth in May 2013 until the Removal

125.The Father had claimed that he was the “primary bond and primary caregiver” of L from the time of L’s birth until the Removal[34].

126.He had said in his supporting affirmation in these proceedings that prior to the Removal, before he went to work at 8:10 am, he would wake L up to spend time with her, playing and having breakfast with her, and that her breakfast was typically a boiled egg or some toast/cereal, and that he would usually come home straight from work at about 6:30pm to 6:45 pm to look after L and to have dinner with her, and to play with her.  He had said he spent 6 weeks in March and April 2014 at home looking after L in between jobs.  The Father had also said he would spend time with L in the garden exploring plants and animals and going on the swing[35].

127.The Father had said that the Mother on the contrary worked until 8 pm every day and spent very little time with L, and that she loved going out with friends instead of staying at home with L[36].  The Father said he took L on holiday to Nicaragua by himself in November 2013, when the Mother went on her own to Miami.

128.The Mother said she first found a job at an academic consultancy which I shall simply refer to in this judgment as FCAC in July 2009 as a consultant, to provide children and parents with support across academic, transitional and emotional issues.  While she was working there, from 2009 to 2012, she also did a part time master’s degree at the University of Hong Kong in marriage and family therapy, and that as part of this master’s programme she had also worked at St John’s Counselling. 

129.The Mother said after L was born, she quit her full time job at FCAC to concentrate on caring for L.  She resumed working at FCAC when L was 4 months old, but on a part time basis, and she would work only 3 to 5 hours each week.  The parties and L were living in Lan Kwai Fong at that time, and Mother said she was able to go to her office on Stanley Street and return home within L’s nap time.

130.In about October 2013, when L was about 5 months old, the family moved to Peng Chau, and at that time, she was working around 5 to 6 hours a week, and on some days, she would have to meet a client in the morning and another in the afternoon.  On these occasions, she would ask their Teresa to bring L to Central so that they could have lunch together. 

131.It was the Mother’s case that since L’s birth and until they left for Singapore, the Father was working full time and that she was L’s primary carer. The Mother had set out in her 2^nd affirmation that the Father’s job required him to leave home for work early before L woke up and that he would often not return home until 7 to 8 pm by which time L would already have gone to bed.  Further, the Father often had to entertain clients and would not return home until late at night.

132.The Father denied what was said by the Mother. He had said he very rarely missed putting L to bed, unlike the Mother who would return home after L was asleep on Mondays, Wednesdays and Thursdays throughout the first year of L’s life.  The Father also referred to an email dated 20 June 2014, which was prior to the Removal, in which the Mother herself had referred to her working 5 days in a week[37].  He had accused the Mother of prioritizing her career and work over any interest in seeing L.

133.As mentioned earlier, it was Father’s case that there was little credibility in anything the Mother had said in her 2^nd affidavit “given the factual errors and misleading statements designed to conceal the truth from this court”.[38]

134.All the Father’s allegations were in turn denied by the Mother.  She admitted that she began to work more when L turned 1 year old, and there were a few evenings when she had scheduled a meeting with a client but the meeting would take place after L had already gone to bed.

135.Notwithstanding all the attacks launched by the Father against the Mother, he did not really deny that for the first four months after L was born, the Mother did not work.  The Mother had given further details on her care of L in her 4^th affidavit, including how breastfeeding was hard for her and L, and that she had taken L to all medical appointments, vaccinations and all dental appointments   and that the Father did not attend those appointments with them.  She had said that when she returned to work in September 2013, she had arranged her work schedule around L, and that in L’s first 5 months of life, it was rare that she was away from her for more than an hour at a time.

136.The Mother had also said the Father’s then job required him to travel a lot and would often be away for 2 weeks at a time.  The Mother had produced a printout of the Father’s LinkedIn profile and an itinerary of the Father to London from 31 May 2014 to 12 June 2014.

137.The Father on the other hand accused the Mother of going on trips on her own referring to her going to Miami and a couple of other trips.

138.The Mother explained that when the parties and L went to Nicaragua in November 2013, she flew to Miami by herself for 2 nights to visit a friend who was suffering from multiple medical issues, and that was the only time the Father was left to take care of L on his own.  The Mother had also admitted that she had nights away for a friend’s wedding.  These were the only occasions that the Mother said she was away from L overnight.

139.As mentioned earlier, the Mother had called Teresa to support her case.  Teresa recalled that after L was born, the Father had also taken leave but she seemed to think that he was back to work full time already by 1 June 2013.

140.Teresa had said when the family were living in Lan Kwai Fong in Central, there was only one bedroom, and it was difficult for the Mother to have time with L on her own when Teresa was there, and that the Mother would ask her to take a walk or to go grocery shopping so that the Mother could have some time alone with L.  It was also Teresa’s evidence, that at that time, the Father would leave home between 7:30am to 8 am in the morning and that she would finish work before Father returned home. 

141.Teresa said after the family moved to Peng Chau in October 2013, the Father would leave home every day between 8 am and 8:30 am and that before he left for work if L was already awake, he would give her a cuddle before he left or bring her to check the plants on the lawn.

142.However, according to Teresa, the Mother would always look after L in the mornings, unless she had yoga classes on Tuesday mornings.  The Mother would cook breakfast for L and they would eat breakfast together, and that every morning, Mother would bathe L and would play with L in the bathtub, and that this continued to be the case even after the Mother had resumed working, and that the Mother would only leave for work at around lunch time.  Teresa had also said the Mother and L would sing songs read books.  Further, Teresa confirmed the Mother’s evidence that after the family moved to Peng Chau, as the Mother could not come home during lunch break to see L, Teresa would bring L to Central so that L could spend some time with the Mother and according to Teresa this was on every day the Mother worked.

143.It was also Teresa’s evidence that after the family moved to Peng Chau, for the first few months, the Father came home at around 7 or 8 pm every day and played with L, and it was okay for a few months.  Then the parties started fighting a lot and the Father would come home late and would not do the midnight feed for L as agreed between him and the Mother.  Teresa said she could not remember the exact details but the Father did have to travel for work and that after he got a new job, he had to travel more often for business on his own.

144.In relation to the Father’s new job, the Father had asked Teresa about the length of time that he was in between jobs after the parties moved to Peng Chau, and Teresa had said she thought it was 2 weeks, but the Father said it was 5-6 weeks.

145.According to the Father’s own affirmation, it was in March 2014 that he changed jobs and that he had changed jobs so that he would travel less[39]. According to his LinkedIn profile, he moved to Hong Kong with a Swiss insurance company in January 2009.  During the trial, he said he resigned from that company on 25 February 2014 and took up a new job with another insurance company on 8 April 2014. He then changed to work for the present insurance company on 1 February 2016.

146.Even though the period between the Father changing jobs in 2014 was more like 5-6 weeks, but from his travel records, he was away either on his own or with the Mother and L for about half of that period.

147.The Father had criticized Teresa’s evidence, such as her failure to recall the exact day of the parties moving to Peng Chau or L’s age at that time, or the exact date when the Father ceased working after moving to Peng Chau, or which company he was working, or how long was the Father in between jobs, or when he started his new job, of at what age L began eating bread with avocado, or what was meant by the Father having to travel more. 

148.All those related to matters when L was born in May 2013 until the Removal in June 2014, which was some 3 years prior to the trial.  Teresa’s failure to recall those exact details would not in my view mean that her evidence was not credible.  I accept that Teresa is friendly with the Mother, and her evidence had to be viewed in that light.  However, the Father did not really challenge Teresa’s evidence on the respective roles of the Mother and the Father prior to the Removal, and I accept Teresa’s evidence in this respect.

149.Further, in anticipation of the Return, the Father had sent a long well thought through email to the Mother on 21 January 2016 and had said, among other things, that he could not wait to see L and knew that L could not wait to see him, and had referred to their times together, namely “the endless morning feeds, the first 4 months he and L slept side by side holding hands, the endless songs he sang L to help her sleep, the walks they took, the torch work in the garden every night, the constant trips up the stairs to practice her walking”[40].  In the same email, he had also referred to L’s first tooth, first birthday party, first Easter egg hunt, the frogs, first swing on the funny dolphin shaped swing seat, learning gardening etc.

150.Most of the above were play time for L, and no doubt L would have had fun and had enjoyed the children parties and the activities.

151.Due to the issues arising out of the parties’ respective travelling and when the Father would leave or return home after the parties moved to Peng Chau, on 30 August 2016, the parties had undertaken to provide to the court their respective travel records from the Hong Kong Immigration Department from when L was born to 30 August 2016.  The Mother was also ordered to provide the travel records of her and L in and out of Singapore after the Removal, whereas the Father was ordered to provide his Octopus travel record for the relevant period, which he did not seem to have done.

152.Anyway, from the Hong Kong Immigration travel records[41], the family’s trip to Nicaragua was from 22 November 2013 to 2 December 2013, and the parties and L were departing from Hong Kong and arriving back on the same dates.  Thus, as the Mother had explained, her trip to Miami was during this trip.  From the Mother’s travel records, there were only two other occasions when she was out of Hong Kong without L, each for about 3-4 days, once in January and the other in February 2014.

153.On the other hand, the Father’s travel records showed he had travelled a lot more than the Mother prior to the Removal.  In September of 2013, he seemed to be away for an aggregate of some 10 days.  In December 2013 he was away for 7 days.  For February 2014, he seemed to be away on his own for some 8 to 9 days, namely on 13-15, 17-20 February and from 23 February to 4 March 2014 although from 27 February to 3 March he was joined by the Mother and L.  In particular, in May 2014, he was away for some 2 weeks on his own, from end of May to 13 June 2014, as said by the Mother.  This was notwithstanding the Father’s evidence that after changing jobs, his travels had reduced.

154.As mentioned earlier, the Mother had provided explanations for her trip to Miami and her two other short trips.  I find the Father’s criticism of the Mother’s trips was unjustified compared to his own.

155.As I have said, the Mother herself was not cross examined at all on her evidence.  The Father had said he had no questions for the Mother “out of respect for the situation and understanding that it would do little to help L”.  Mr Egerton had submitted this was “nonsensical”. I agree that what Father said did not seem to make sense, in particular when the Father had made numerous serious allegations against Mother about her giving ‘false’ evidence or lying, which allegations he had not withdrawn.

156.Having considered the parties’ and Teresa’s evidence, I accept that for 4 months after L’s birth until the parties moved to Peng Chau, the Mother did not work, and she was the primary carer of L.  Even after the Mother resumed working, it was on part time basis, and even though she could be working 5 days a week, her time was more flexible and depended on the appointments scheduled with her clients.  She would often go to work late morning or around lunch or would have lunch with L.  In one of the emails, she had also mentioned having to cancel a client’s appointment to take L to the doctor.  I accept that there were occasions when the Mother could have worked or returned home late but the Father was working full time throughout except for a period in between jobs.  The Father had said he sometimes worked a 4 day week.  However, I accept the Mother’s and Teresa’s evidence that there were occasions the Father would return home late.  I also find he had travelled a lot more frequently than the Mother after L was born and prior to the Removal. 

157.Although I accept the Father had cared for and played with L when he was in Hong Kong, in my view, the Mother was the primary carer of L prior to the Removal.  

The Singapore Period

158.L lived in Singapore for some 1 year and 9 months, or about 21 months.

159.It was Father’s case that he was denied access by the Mother during the Singapore Period.  After the trial, this court directed the parties to submit a bundle of communications between them in relation to access during the Singapore Period.

160.The Father sent his bundle.  The Mother’s solicitors submitted 2 bundles, consisting of (i) a bundle of emails between the parties incorporating the Father’s bundle of emails (“Email Bundle”); and (ii) a bundle of correspondence parties and/or their respective solicitors in Hong Kong and/or Singapore and/or others (“Correspondence Bundle”). I understand there were other communications on a without prejudice basis which had not been included in the bundles.

161.It transpired from the Email Bundle that the day before the Mother left Hong Kong, on 22 June 2014, she had sent Father an email, the subject matter was “Moving forward”[42].  She said in her email that since it was clear that neither of them wanted to be together anymore and the first option of staying together would no longer apply, and that being practical, moving forward would be important, and from her end, given the financials, she had 2 options: (1) to stay in Hong Kong with support from the Father for L and the Mother; or (2) to move back to Singapore where she could get help for L and find a job and stay with the Maternal Grandparents.  She asked the Father to send her his proposed plan for how they should proceed if she were to stay in Hong Kong.

162.The above email was sent by the Mother the day after the cancellation of the wedding. Considering the then which must be upsetting circumstances for both of them, the Mother’s email was calm and practical, with a view to move forward since the parties did not intend to continue to live together.

163.There was then a series of What’s App messages sent by the Mother to the Father in the morning of 23 June 2014 until about 10 am, and then resumed at about 3:34pm[43].  The one sent by the Mother at 4:26pm on 23 June 2014 stated her parents had both suggested that she went to Singapore instead and that she had asked the Father to let Teresa to go with them as well to help out.  This was followed by a further message at 4:34pm to say “We’re leaving now” and suggested that Teresa could join in a couple of days.

164.She later sent a message at 4:48pm that she would appreciate if the Father could continue to transfer funds to support L and the Mother in the interim, and that they would be in Singapore till things calmed down.  The Father replied at 4:52pm that the next time she wished to take L out of the country she should give him the curtesy to ask, and then “Given the circumstances, it’s fine to take her for a few days or so”[44].

165.The messages were amicable initially and the parties then went on to discuss finances, and the Father had said he would be happy to support L.  The Mother asked him to continue sending the “standard 14,000+$3,000 for her savings plan”, and said that after that to live in Hong Kong, the parties would need to discuss housing support etc until she could start working more hours or get her full time contract back.

166.It would appear that the Father agreed to Teresa going to Singapore to help the Mother.  Then the Father asked the Mother when her return was booked and for her ticket details.  The Mother told him that there was no set return date and it would be until things calmed down.  The Father asked for confirmation and said it looked like “kidnap”.  The Mother said as L was under her custody, the only person who could “kidnap” was the Father.  The Father replied not as an Australian citizen.  The chain of messages produced by the Mother ended shortly thereafter.  It appeared that the Father had sent further emails/messages saying that he could not get hold of the Mother.

167.After the Removal, the Mother sent an email on 24 June 2014 to the Father.  In this email, the Mother informed the Father that she and L had gone off to Singapore the previous day and that they would be back once things had calmed down.  The Mother’s email was copied to the Maternal Grandfather who is a lawyer in Singapore and also copied to the parties’ counsellor.

168.The Father however sent only a one line email in response asking for the flight details of the Mother’s return.  The Mother replied that she was booked to return to Hong Kong on 6 July 2014 but said given everything that had transpired, she could not say for sure that she would be returning then, and again sought from him a fair plan for separation or to provide support for either L or Mother moving forward.  The Father responded by saying he was not comfortable with L being in Singapore that long and suggested going to Singapore in the next few days to bring L back to Hong Kong, but this was not agreed by the Mother.

169.In light of the above exchanges, although the Mother did inform the Father that she was taking L to Singapore, this was only shortly before their departure.  She indicated no set return date.  It was clear that although the Father had agreed to their going, this was only on the basis that it was for a few days.  However, the Mother did point out to the Father that the Removal was not a kidnap, or abduction, as L was under her custody.

170.I note that in the Father’s 1^st affirmation filed on 29 August 2014 in support of the originating summons herein and his ex parte application, the emails he produced commenced from 24 June 2014.  The email the Mother sent on 22 June 2014 and those What’s App exchanges on 23 June 2014 were not produced.

171.It was not until 30 June 2014 that Father sent a proposal for, among other things, shared custody and control equalling to 50% for each parent for L. The Father however seemed to have made no financial proposal for either L or the Mother.  In the Mother’s email of 1 July 2014[45], she reiterated that it would not be freasible for her and L to return unless they had financial support, and pointed out that the longer the process took for the Father to revert with provision of support, the less and less feasible it would be for them to come back.  She further referred to the 1980 Convention and stressed that as L was born out of wedlock, the Mother had L’s legal custody.

172.Anyway, 6 July 2014 came and went, and the Mother and L did not return.

173.It would appear that the Father had sent some documents to the Mother to consider, including a parental plan and some proposals for settlement. The Mother responded on 14 July 2014 indicating that she was vested with the permanent custody, care and control of L, and explained that where they would live would in part based on their financial means.  She indicated that she would like to return to Hong Kong with L but that she would require a 2 bedroom apartment on Hong Kong island and would need a helper, and she set out her estimated costs for L.  She sought contribution from the Father. 

174.So far as access was concerned, the Mother in her email of 18 July 2014 offered the Father access to L in Singapore as he would be there for business.  The Father responded by proposing that L stay with him from the Friday afternoon to Sunday of the week he was there, namely 25-27 July 2014.

175.The Mother agreed to the Father seeing L on the Saturday, but not overnight access.  The Father responded by a one line email saying the Mother’s proposal was unacceptable.  The Mother then asked him whether he would still like to see L.  The answer from the Father was:

“No. You cannot block me from seeing her anymore. I will pick her up on Friday. You will receive no money until I see L. Time for you to be grown up about the situation & stop being do petty[46].”

176.The Mother had agreed to L spending time with the Father for about 3 hours on in the afternoon of Saturday 26 July 2014 in the Mother’s presence and also 2 hours in the morning of the Sunday 27 July 2014

177.Then, the Mother discovered that her iPad was remotely locked and she alleged this was done by the Father, resulting her being blocked from all access to data, files, apps etc.

178.The Father denied the Mother’s allegation in his 1^st affirmation and had described the Mother’s behaviour as “bizarre”. However, there were no contemporaneous communications between the parties which I could see in which he had denied this to the Mother.  In any event, the access was cancelled.  

179.Again at the time of the ex parte application, the Father did not produce all the email exchanges in relation to the arrangement for this access, nor did he point out that it was the Mother who had proposed the access in the first place after learning that he would be in Singapore.

180.The Father had in his reply email of 18 July 2014 threatened that the Mother would receive no money until he could see L.  The Father then stopped sending the monthly sum of HK$17,000 for L’s maintenance.

181.The Mother became upset and she indicated to the Father all emails from the Father moving forward would not be entertained by her. There was a gap from 26 July 2014 until 14 August 2014 when there were no emails between the parties.  Anyway, none were produced or included in the Email Bundle.  

182.On Thursday 14 August 2014, the Father then suddenly sent a short email indicating that he would like to skype with L on Sunday 17 August 2014. There was no direct reply from the Mother.  Instead, the Maternal Grandfather sent an email indicating a time when the Father could skype with the Maternal Grandfather who would arrange L to be present.  This did not materialize in the end as it turned out as the Maternal Grandfather said his skype account had expired. 

183.The Father then emailed the Maternal Grandfather, asking to skype with L on 18 August 2014.  His tone in his email had upset the Maternal Grandfather who then decided not to be involved.  The Mother complained that the Father’s email to the Maternal Grandfather was rude and unacceptable and suggested that the Father should apologize to the Maternal Grandfather, before the Mother would review resuming communication with the Father.

184.Anyway, on 4 September 2014, the parties appeared to have resumed communication.  The Mother sent a long email of subject matter “Moving forward”[47].  After rounds of emails on that day, the Mother indicated that she was thinking of returning to Hong Kong, and that she would need HK$30,000 a month at the very least for the first year if L were to return with her and that once she got her career in a better place, she and L would not need as much help with the rent.  The Father responded “OK fine” and that he could agree to this if the Mother was to return with L and agree to 50/50 shared custody.  The Mother did not agree and proposed access on Sundays and alternating Saturday initially, and if it went well, then Mother would open to reviewing L spending nights and more time with Father.

185.By 4 September 2014, as seen earlier, the Father had already issued the Hong Kong Proceedings, but no notice was given to the Mother, whether before or after the commencement even though the parties were emailing each other.  Anyway, after 4 September 2014 there followed further emails communications and discussions which were not included in the Email Bundle. 

186.On 8 September 2014, Mother sent an email to say she was planning to return to Hong Kong the following week to find accommodation for her and L, and once she was settled, she would bring L back to Hong Kong. While L remained in Singapore, Mother said L would be under the care of the Maternal Grandfather.  She also said that one of them would have to sign a contract with Teresa and asked whether the Father would do this.  The Father responded by saying he would sort out Teresa’s contract.

187.In her email of 8 September 2014, the Mother again offered the Father access to L that weekend, and asked the Father to respond about whether he was going to help support the Mother and L or not. 

188.The Father responded by saying that he would not be discussing any support for the Mother until L was safely home in Hong Kong.

189.The Mother sent an email on 8 September to say that she would return to Hong Kong for 10 days sorting things out of herself and ultimate be able to bring L over, and suggested that if the Father wanted to be helpful, they could arrange a time to meet during the time she would be in Hong Kong and to discuss a plan moving forward.  From the Mother’s travel records, she arrived in Hong Kong in the afternoon of 15 September 2014 and she left on 26 September 2014.

190.However, as seen earlier, by 4 September 2014, without the Mother’s knowledge, the Father had issued the originating summons herein on 29 August 2014, and obtained the Interim Access Order on 12 September 2014 on ex parte basis.  After Mother was served, she then immediately instructed solicitors in Hong Kong to apply for an interim stay of the Hong Kong Proceedings.

191.The Father then suddenly sent the Mother an email on Wednesday 24 September 2014 indicating that he would be in Singapore and seeking access to L on Friday 26 September 2014.  As seen earlier, the Mother applied for stay of the Interim Access Order which led to a hearing on the 25 September 2014.  On that day, this court granted an interim stay but granted the Father access from 26-28 September 2014 in Singapore.  Both parties then flew to Singapore.

192.All this led to the Mother issuing the Singapore Proceedings.

193.Pausing here, in September 2014, the parties appeared to be heading towards the right direction of trying to work out a solution for the welfare of L.   It was regrettable that matters turned for the worse when each decided to launch a “surprise attack”, by issuing proceedings without prior notice to the other. 

194.Anyway, through her then solicitors in Hong Kong, the Mother had on 30 September 2014 sent a letter to Father’s then solicitors, indicating that the Mother would not accept the jurisdiction of Hong Kong and that she wanted to apply for a stay of the Interim Access order.  It was also pointed out that at the time, the Father, being an unmarried father, had not yet sought any declaration under section 3 (1)(d) of the Guardianship of Minors Ordinance, for any custody rights, and therefore, when the Mother took L to Singapore or retained L there after 6 July 2014, there was no wrongful removal or retention as defined under the 1980 Convention.  In this letter, Mother had made proposals of access in Singapore for the Father namely for 3 hours on Saturdays and additionally for 5 hours on Sundays.

195.What was said by Mother’s then solicitors about the Father had no rights of custody at the time of the Removal was correct. Moreover, the Father was fully aware of this as his lawyers were trying to obtain an order giving him parental rights under section 3(1)(d) of the Guardianship of Minors Ordinance, on an ex parte basis from Au Yeung J. He did not succeed as Au Yeung J took the view the application should not be ex parte.

196.The Father did not acquire any parental rights until 16 October 2014.  However, under the Interim Access Order, the Father was only granted access rights. Hence, at the time of the Removal, it was only the Mother who had rights of custody of L and thus the Removal was not wrongful, nor the retention of L in Singapore after 6 July 2014 under the 1980 Convention, notwithstanding immediately prior to the Removal or her retention, L’s habitual residence was Hong Kong.

197.After access in Singapore at end of September 2014, the Father sent an email on 8 October 2014 to say he would be making arrangements to see L the following week, and Mother responded on 12 October 2014 with proposed access days.  The Father complained that the Mother’s late response resulted in him not being able to book a flight.  The Mother reacted by saying that she did not believe that the Father could not book flights, as there were still flights available.  The proposed access did not take place.  The Mother then proposed skype access for the Father.

198.The Father decided to instruct lawyers in Singapore who served on the Mother on 20 October 2014 this court’s order made on 16 October 2014 together with the Reasons and invited Mother to withdraw the Singapore Proceedings.  The Mother’s solicitors replied on 21 October 2014, indicating that she would not withdraw.  In this letter, the Mother’s solicitors reiterated that the Mother offered the Father access in Singapore for 3 hours on Fridays, 5 hours on Saturdays and Sundays respectively. However, the Father’s solicitors’ response on 30 October 2014 was that he insisted on the two week staying access under the Interim Access Order[48].

199.There was no access in October 2014.  As for November 2014, the Mother had through her lawyers proposed access on Saturday 15 November 2014 from 2pm to 7 pm.  It appeared that the Father’s flight was delayed which resulted in him keep changing times.  The Mother insisted on the matter be confirmed through their respective lawyers.  It appeared that the access did not take place.

200.As mentioned earlier, under the 04.12.14 Singapore Order, the Father was granted immediate access in Singapore on weekdays from 9 am to 1 pm and for 5 hours on Saturdays and Sundays with immediate effect, and also 2 week access every 4 weeks in Hong Kong.

201.The Father through his solicitors sought access for 5 hours on the Saturday 6 December 2014 and 5 hours on Sunday 7 December 2014, both from 2 pm to 7 pm, and further proposed his 2 week access in Hong Kong to take place from 11 -24 December 2014.

202.It appeared that the Father did have access over 6 and 7 December 2014, and that the Father turned up at the Mother’s residence on 11 December 2014 again demanding access.  The Mother sent him an email on the 12 December indicating he could have access for 5 hours on Saturday 13 December at 2 pm to 7 pm, but in future all arrangements for access should be made between the parties’ respective lawyers.  The Mother also agreed to him having access on Sunday 14 December for 5 hours from 2 to 7 pm.  However, the Father asked to see L in the morning of the Saturday at 9 am, but the Mother told him that the morning was not possible as L had a birthday party to go to. There followed another several rounds of email, and eventually Father agreed to the access to take place in the afternoon.  He then insisted on access on the Sunday morning at 9 am as he had to catch a flight home in the afternoon.  The Mother did not agree, as she said it was not convenient for L.  The Father only had access on Saturday 13 December 2014. 

203.The Father demanded compliance with the Interim Access Order namely his 2 week access in Hong Kong, as ordered under the 04.12.14 Singapore Order.  The Mother reminded him that a number of things which would need to be sorted out under the 04.12.14 Singapore Order once a mirror order was obtained, such as payment for the flight, accommodation, and allowance for both the Mother and L.  The Mother complained that the Father did not pay the maintenance ordered under the 04.12.14 Singapore Order for L. 

204.The Father however responded by saying that was not his reading of the 04.12.14 Singapore Order.  The Mother responded by setting out in her email of 17 December 2014 the effect of the order[49].

205.The Father sent an email on Friday 16 January 2015 at about 8 pm demanding access for the weekend from 2pm-7pm daily.  The Mother requested for more notice in future, but agreed to access, and reminded him that he had still failed to make any maintenance payments.  This access over the 17/18 January 2015 did take place.  The Father had asked for arrangements for L to come to Hong Kong for her 2 weeks from Sunday 18 January 2015, but the Mother said the arrangements for Hong Kong access had to be discussed through lawyers.

206.The Father then demanded that the 2 week access in Hong Kong to start on 24 January 2015.  The Mother responded by saying he still had not paid any maintenance for L as ordered by the Singapore Court.

207.In the meantime, the Father had appealed against the 04.12.14 Singapore Order as his application for stay of the Singapore Proceedings was dismissed.  The Mother sent an email to the Father on 21 January 2015, complaining that the Father’s emails were uncivilized and harassing, and stating that all future access arrangements in Singapore would be discussed through lawyers, and asked the Father to give 3 days notice of access in Singapore and 5 days for access in Hong Kong. 

208.Thereafter, there seemed to be no further emails between the parties for a while.  The Father’s appeal was allowed on 18 February 2015, and the Singapore Court had ordered the Mother to hand over L to the Father on 7 March 2015. On 5 March 2015, Father sent an email to Mother indicating that he would be picking up L at 9am on Saturday 7 March 2015. There was no response.  He sent another email, but received a reply on 7 March 2015 that the user was no longer receiving email and that all correspondences on legal matters could be submitted to her lawyers’ email address.

209.It would appear that in April 2015 the Father then decided to approach L’s school directly and sought the daily attendance sheets of L.  The school principal wrote to the Mother complaining of the Father’s actions.  The Mother also alleged that the Father had posted online comments alleging her abduction of L and the Mother later applied for a non-harassment order against the Father.  On 20 April 2015, the Mother had sent the Father an email to inform him that she had obtained a non-harassment order against him from the Singapore Court.

210.To summarise, the Father last had access in Singapore on about 18 January 2015, and thereafter, there was no further access to L for about 12 months until January 2016 (“12 Month Period”). The Father’s case was that he had continued to send emails to either the Mother or her lawyer after 7 March 2015 and November 2015, requesting for access and sending through proposals for settlement including mediation proposals and a parental plan.  The Mother said she had no recollection of some of those emails allegedly sent by the Father, which bore no details of the “sender”.

211.It was the Father’s case that he had sent a parenting plan to the Mother to resolve the matter on 27 April 2015 (“27.04.15 Parenting Plan”) and had further suggested mediation by an email sent on 15 May 2015, but his emails had not been responded to.  These emails were among the ones which bore no details of the “sender”.

212.It was not clear why notwithstanding the Mother’s and her lawyer’s repeated requests that all communications be through the parties’ respective lawyers, and notwithstanding the Mother informing the Father that she had obtained a non-harassment order against him, the Father chose to send the 27.04.15 Parenting Plan and proposal for mediation directly to her email address.

213.The Father continued to send emails to the Mother and/or her lawyers directly without going through his lawyers, requesting compliance with the Interim Access Order and/or access.  No response was received by him.  He then said he sent a new Parenting Plan on 26 June 2015 (“26.06.15 Parenting Plan”).  Again, this email to the Mother had no details of the “sender”.  Anyway, there was no response.

214.The Father had also contacted the Singapore Central Authority with a view to issue the Hague Proceedings and it would appear that the Singapore Central Authority then contacted the Mother.  On 8 July 2015, the Father sent an email and among other things informed the Mother that he would be in Singapore for a while to see L, and requested access the following morning.  The Mother finally responded, but saying as there were ongoing legal proceedings in Singapore she had some concerns about facilitating the requested access and again suggested that his lawyer to contact her lawyer to work out a plan for interim access in Singapore.  The Father responded by seeking access at 9 am the following day.  The access did not materialize.

215.As mentioned earlier, during the cross examination of Ms S, Mr Egerton had referred to a without prejudice letter sent by the Mother’s Singapore lawyers on 6 October 2015 making proposals for a settlement[50]. The response from the Father’s lawyer to that letter was that the proposals were unacceptable and there were no counter-proposals made by the Father.

216.After the 30.12.15 Singapore Return Order, the Mother’s lawyer had sent to the Father’s lawyer on 13 January 2016 a proposal on interim access in Singapore, which access was to be supervised for the first two months pending the Mother’s appeal and her stay application. 

217.On 21 January 2016, the Father had sent Mother a long well thought through email mentioned earlier to which the Mother responded on 22 January 2016, stating that amongst other things, the most pressing matter was for the Father’s interim access to L, and that she invited him once again to take up her offer for him to have immediate access to L in Singapore that weekend.  However, the Father responded by saying that the Mother was asking him to breach a court order, and that he would expect to see L from 2 pm on the day he was arriving in Singapore from Hong Kong, and that he did not need the Mother or anyone to supervise access.  The Mother then responded by again asking Father to make all interim access arrangements through their respective Singapore lawyers.

218.On 27 January 2016, the Mother obtained a stay of the 30.12.15 Singapore Return Order, subject to conditions stated therein (“27.01.16 Singapore Order”)[51]. The conditions included interim access as follows:

(i) Day access to L for 2 days from 10 am to 7 pm and the Mother would be at liberty to be present but to leave the Father and L by 12 pm;

(ii) From the 3^rd day onwards the Father to have continuous overnight access for a period of 12 days, subject to the Father informing the Mother of his itinerary and accommodation details;

(iii) The Father be permitted to speak with L at lunch time before L’s bedtime, but she was at liberty to call at times other than the ordered time.

219.The parties agreed that the Father was to have access from 10 am to 7 pm on 29 January and on 30 January 2016 in the Mother’s presence, and then from 10 am on 31 January 2016 to 7 pm on 11 February 2016.  The Mother had also offered additional time on 13 February 2016.  However, it turned out that the Father had to return to Hong Kong on 31 January 2016 to start a new job on 1 February 2016.

220.As pointed out by the Mother’s lawyer, the Father had requested for access according to the terms set out in the 27.01.16 Singapore Order when he knew full well that he was unable to submit fully to the said access due to his work commitments.  He then requested for changes last minute.  Anyway, it appeared that the Father later returned to Singapore on 5 February 2016 for access until 11 February 2016, to which the Mother agreed.  There was another incident over L’s return when the Father did not return L as had been agreed at 8:30am on 11 February 2016 in order for L to attend school.  The incident was reported to the police and the Mother said she and L were severely traumatized.  The Father alleged in his affirmation that the Mother was in breach of the 27.01.16 Singapore Order and had indicated that this would be the subject of a contempt hearing in Singapore.

221.Subsequently during the trial, the Father confirmed that no contempt proceedings had been taken out by him in Singapore or in Hong Kong and he was prepared to give an undertaking not to issue any contempt proceedings whether in Singapore or in Hong Kong.

222.So far as the access on 13 February 2016 was concerned, the Mother had tried to change the venue as she said the Maternal Grandmother was not feeling well, but the Father was not amenable to the change. Eventually, the access failed to take place. 

223.The Mother was originally ordered to return with L on or before end of January 2016, subject to the conditions in the order, but, as stated earlier, the Mother filed an appeal in early January and she and L only returned in March 2016.

224.To summarise, from the emails, it would appear that after the Removal, the first proposal for the Father to have access in Singapore in fact came from the Mother on 18 July 2014 upon her learning that the Father would be in Singapore.  The parties’ relationship however took a turn for the worse after the issue of the Hong Kong Proceedings, the Interim Access Order and the issue of the Singapore Proceedings.  There was clearly a strong mutual distrust between the parties.  There was a lack of co-operation and lack of flexibility over access, as a result of which access did not take place smoothly, or it failed to take place at all for one reason or another.  Then during the 12 Month Period, the Father had no access at all.

225.However, it was clear that the Mother had indicated on a number of occasions that the access proposals should be communicated through their respective lawyers and that her lawyers had asked the Father to contact them through his lawyers.  The Father alleged that he had sent through the parenting plans to the Mother.  The copy produced to the court during the trial was a copy sent to the Mother on about 11 November 2016[52] (“11.00.16 Parenting Plan”) which was for the purpose of mediation.  In any event, the Father did not produce the 27.04.15 Parenting Plan or the 26.06.15 Parenting Plan sent during the 12 Month Period.  The parenting plans so far as the court was aware did not appear to be specifically directed to any proposals of immediate interim access in Singapore.

226.The Father had accused Mother of trying to interfere and limit L’s access to her father and of parental alienation. 

227.So far as interim access in Singapore was concerned, the emails showed that the Father had on occasions given the Mother less than 3 days’ notice for access, and the Mother had said that the proposed times were not convenient for L and offered other times.  The parties had their respective lawyers in Singapore, and as the Mother had repeatedly suggested, proposals could have been made properly through their respective lawyers.  The Father criticized the Mother for not offering any interim access until her lawyer’s letter of 13 January 2016.  However, there was no reason why the Father could not have through his own lawyer put forward a proper proposal for interim access in Singapore, without prejudice to his rights to seek a return of L to Hong Kong or to seek compliance with the Interim Access Order/19.05.15 Custody Order.  Notwithstanding the Father was told to contact the Mother’s lawyer through his own lawyer in relation to access, he often chose not to do so.

228.It was suggested to the Father by Mr Egerton what went wrong with access was that the Father had focused on the Interim Access Oder/19.05.15 Custody Order and did not engage in any proposals for access in Singapore in 2015 and that his attitude was one of all or nothing.  The Father responded by saying he had made his proposals in June 2015.  If he was referring to his email of 23 June 2015, this email had no details of sender and in any event was for one weekend access and was not sent through lawyers[53].  If he was referring to his emails of 27 April and 15 May 2015[54] again as mentioned earlier these had no details of sender either, nor were they sent through lawyers.  It was also not clear which parental plan he was referring to since there had been several versions, and there was no focus on any interim access in Singapore.

229.Having considered all the emails, I find that the Father’s own attitude had contributed towards his irregular access in 2014 and then no access at all during the 12 Month Period although the Mother was also not particularly accommodations on a number of occasions.  In any event, I do not find that the Mother was solely to be blamed for the Father’s irregular or lack of access.

230.According to Miss Tsang, the Father disputed that the Mother was the primary carer of L even during the time when she and L were in Singapore[55]. Miss Tsang reported that the Father alleged that the Mother was unable to provide a stable living place for L, and that the Mother had lived in 3 different places and that the Mother worked long hours, at least 3 nights per week until 9 pm.  Further, Father claimed that L had acquired a Singaporean accent which indicated that the Mother and the Maternal Grandmother were not always with her as both of them did not have any Singaporean accent.

231.None of the above was put to the Mother, nor was she cross examined on her care of L during the Singapore Period.  As mentioned earlier, the Father had also claimed that he had no input on L’s vaccination and schooling while L was in Singapore.  I saw no email sent by the Father to the Mother asking for such details. 

232.The Father had not paid any sums for L’s living expenses, whether voluntarily or pursuant to the 04.12.12 Singapore Order and it was only after the Interim Maintenance Order was made that he resumed paying regularly for L’s maintenance.

233.As for the Mother’s trips out of Singapore during the Singapore Period, as seen from her travel record from the Singapore Immigration and Checkpoints Authority, she made 2 short trips of 2 days each respectively in August and September 2014 and then the 10 day trip to Hong Kong, a 5 day trip in November 2015 and a 3 day trip in February 2016.  The 5 day trip in November 2015 was with L.  The Mother had also explained about the other short trips.  As for her trip to Hong Kong in September 2014 for 10 days, the circumstances of this trip have been referred to earlier. 

234.The Mother had given detailed evidence in her 2^nd affirmation over L’s routine in Singapore[56].  In the letter of 28 January 2016, the Mother’s lawyers had attached details of L’s routine, L’s dietary needs and the items which should be packed for L’s school bag[57].  There was no challenge on the Mother’s evidence.  Having considered all the evidence, I am satisfied that the Mother was L’s primary carer during the Singapore Period.  

235.The Father had said L called him by his first name when she first saw her father, and the Father had accused Mother of parental alienation.  As the social worker Miss Tsang had said, parental alienation is a word commonly used by psychologist and in her superficial knowledge, this would mean a parent has a psychological manipulation to cause resistance of a child to the other parent and if there had been parental alienation, the child would have resistance to his/her parent.  Miss Tsang had said she is not the best person to decide on parental alienation and in the present case, L has positive bonding with Father.  The Father had used this term parental alienation freely, but he had never sought leave to produce any expert psychological report or any expert evidence on this issue to support his case.  In any event, I find there was no sufficient evidence there had been any parental alienation on the part of the Mother.

236.In particular, notwithstanding all the Father’s allegations and complaints about the Mother denying him access, L was reported by the social worker Miss Tsang to have well bonded with her father on her return from Singapore. 

Post Return

237.Prior to the Return, as mentioned earlier, the Father had issued a summons on 8 January 2016, seeking among other things a mirror order in Hong Kong in terms of the 30.12.16 Singapore Return Order.  An order was made by this court on 14 January 2016 reflecting the undertakings and consequential orders contained in the 30.12.16 Singapore Return Order (“14.01.16 Order”)[58].  The Father’s summons seeking other orders was adjourned 3 March 2016.

238.Under the 14.01.16 Order, if the Mother were to agree to accompany L back to Hong Kong, L was to reside with the Mother at her rented accommodation in Hong Kong and the Father was to have contact with L from Wednesday 4 pm to Monday 9 am for a period of one month and thereafter L was to reside with the Father, and access to the Mother to be determined by the court.

239.The Father had further undertaken to provide at his expense the Mother and L with hotel accommodation or a serviced apartment at an affordable and reasonable rate to be ready for immediate occupation on arrival of the Mother and L and that the Father was to pay SGD 1000 or HKD equivalent per month for the expenses for the Mother and L in Hong Kong until the handover of L to the Father.

240.Prior to the Return, on 1 March 2016, the Mother issued a summons on 1 March 2016, seeking leave for L to be allowed to return to Singapore and a variation of the alternating two week arrangement.  This summons was later adjourned for substantive argument with directions for filing of affidavits.  The summons was eventually not pursued.

241.Upon the Return, the Mother’s solicitors wrote to the Father to seek a variation of the alternating two week arrangement. There were also various issues in relation to access and skype in the 1^st month when L was staying with the Mother.  Thereafter, the alternating two week arrangement took effect.

242.The current arrangements have been set out earlier.  The Mother’s studio flat at Leyburn Villas on Lantau Island consists of an open kitchen, a living room/bedroom area.  There is one double bed and L sleeps with the Mother.  The rent is HK$15,000 per month. 

243.The total area of the two storey house on Peng Chau is about 1400 square feet, and there is a living and dining room, a kitchen, and 3 bedrooms. The garden is said to be 2,500 square feet.  The rent is HK$26,000 per month.   L has been sleeping in her previous bedroom.

244.As the Mother’s main application is for relocation, I will consider this application first and the relevant factors in connection therewith.

Relocation

Is the Mother’s application for relocation to Singapore genuine in the sense that it is not motivated by some selfish desire to exclude the Father from the L’s life?

245.The Father submitted that there could be no doubt that the intent of the Mother in the Removal was to exclude him from L’s life.  He submitted that the Mother gave no oral evidence to show she had changed her ways.  However, it was the Father who did not accept what the Mother said and chose not to cross examine her.  The Mother did attend the trial and had confirmed her written evidence in her affirmations. Further, it was my finding earlier that she was not solely to be blamed for the Father’s irregular or lack of access during the Singapore Period.  

246.Miss Tsang had reported in the 3^rd SWR that after breaking up the relationship with the Father in June 2014 and without adequate financial support at the time, it was natural and understandable that the Mother returned to Singapore to gain emotional and financial support from her family members and friends. 

247.As seen earlier from the parties’ emails, the Mother had planned to return with L and she did return in September 2014 to look for accommodation and to have a discussion with the Father with a view to bringing L back. 

248.Having considered the Mother’s evidence and the emails between the parties, I do not find there was sufficient evidence that when she left Hong Kong with L in June 2014, it was with the intention or desire to exclude the Father from L’s life.  In fact, as I have also said earlier, she was the one who first suggested the Father to have access in July 2104 although that access did not materialize.

249.As submitted by Mr Egerton, it is natural that the Mother wishes to live with L in Singapore.  The Mother is not excluding the Father as she is not seeking sole custody, and she has proposed a continuation of the joint custody order.  She has also proposed access.  Further, the Father in his oral evidence accepted Miss Tsang’s comments that the Mother has acknowledged that the Father is a caring and loving father and considers that his involvement is beneficial for L.

250.Having considered the evidence, I am of the view that the Mother’s present application for relocation is genuine and it is not motivated by some selfish desire to exclude the Father from L’s life.  In particular, it is not a “frivolous” application as described by the Father.

Is the Mother’s application realistic, ie founded on practical proposals both well researched and investigated?

251.Mr Egerton submitted that the Father did not challenge the Mother’s and the Maternal Grandmother’s evidence and plans for L in Singapore.

252.The Father had however submitted that Mother’s proposal to live with the Maternal Grandmother was not realistic. 

253.The Father said the Maternal Grandparents being in their 70s are “old, ill and frail”.  The Father said that the Maternal Grandmother had health issues and was under treatment for cancer. Miss Tsang had spoken to the Maternal Grandmother at the time of preparing the 3^rd SWR and had asked her about her cancer.  The Maternal Grandmother considered herself fully recovered[59].  The Father did not cross examine the Maternal Grandmother over this.

254.The Father also alleged that after the trial, the Maternal Grandmother had a serious fall in that she broke her knee and teeth and that she had to be hospitalized.  There was no follow up information on this. 

255.Although the Maternal Grandparents appeared to be in reasonable good health for their age in the witness boxes, I accept that they are in their 70s and obviously no longer young.  The Maternal Grandfather is still very energetic and busy working full time and has no plans to retire.  However, in my view, his assistance to the Mother is likely to be more emotional and financial.  As for the Maternal Grandmother, in view of her age, I accept that she may not be a “hands on” carer of L, although she could help in supervision.

256.It was the Mother’s plan to continue working, if L were to return to Singapore. The Mother said she had hired a part time helper to help with household chores.  As the Mother has her own business, her working hours will be more flexible than a regular job, even though she may have to work late on occasions.  Her job also does not require travelling.  I am of the view that the Mother will be able to continue to provide care for L in the event of L returning to Singapore but the Mother may need some help when she is at work.

257.It was the Mother’s proposal for L to return to the school she was attending, and in this connection, L’s school fees had continued to be paid after the Return, at least for a period of time.  In her 4^th affidavit, the Mother had proposed to continue to live in the Maternal Grandmother’s 3 bedroom flat for the foreseeable future.  The flat is said to be in a green belt residential area, and family friendly.  There are facilities for children, such as swimming pool playgrounds.  The rent was SGD 3,500 per month.  The Mother’s brother and his family live nearby.

258.The Mother also mentioned in her 4^th affidavit, if she has the financial capability she would like to rent a 2 or 3 bedroom apartment in a condominium where her family friends live and which is within walking distance from L’s school.  She was informed that a 2-bedroom apartment there would cost approximately SGD 5,000 to 5,500 per month. 

259.There appeared to be some problems with the pipes in the Maternal Grandmother’s condominium and that she had moved into her other daughter’s apartment temporarily.  At the time of the trial in December 2016, the Maternal Grandmother was still living with her other daughter.  It was the evidence of the Maternal Grandmother that the living conditions she would provide the Mother would be the same as she had provided before.

260.However, it was reported by Miss Tsang in the 3^rd SWR that the Maternal Grandmother was considering moving to another 3-bedroom flat if the rent were to increase significantly after renovation.  The Maternal Grandmother was not cross examined on this, but there seemed to be a possibility that the Maternal Grandmother might not move back to her previous apartment.

261.At the trial, the Mother was not asked about this, but her updated position was that she would like to seek separate accommodation near to the Maternal Grandmother’s with financial assistance from the Father.

262.Thus, if relocation is allowed, L may be moving to a new apartment in Singapore. 

263.So far as the financial provision for L is concerned, the Maternal Grandparents are under no legal obligation to provide for L. Such legal obligation falls on L’s parents, whether L lives in Singapore or in Hong Kong, until L reaches majority or completes full time education.  The Interim Maintenance Order is only for an interim period.  I accept that if L remains in Hong Kong, the Mother will require a larger apartment of at least 2 bedrooms.  Throughout these proceedings, the Father did not seem to be inclined to address this issue.  As I have said, he only started to pay monthly maintenance after the making of the Interim Maintenance Order.  

264.Anyway, pending any determination by the court (whether Hong Kong or Singapore) on the issue of the financial provision for L, the Maternal Grandparents had indicated that they would willing to assist and there was no sufficient evidence to contradict them in this respect. 

265.In the 3^rd SWR Miss Tsang had reported that the Mother was developing a relationship in Singapore.  The Mother clarified that her relationship with her partner Mr O only became serious in June 2016.  The Mother denied she was living with Mr O although she admitted to have occasionally spent some time at his place.  She also denied that Mr O was a heavy drinker and smoker as alleged by the Father. 

266.At the trial, the Father had cross examined Miss Tsang as to whether or not she should have interviewed the Mother’s current partner Mr O.  Miss Tsang had explained that she would only interview persons who would be involved in the care of L or who had a direct relationship with L, such as Ms S.  As Mr O was not part of the Mother’s care plan of L, Miss Tsang decided not to interview him.

267.In my view, based on the information available to her at the time, Miss Tsang’s decision not to interview Mr O during the preparation of the 3^rd SWR was understandable.

268.However, Miss Tsang had also said that if the Mother and Mr O developed into a cohabitation or a stable relationship, she would need to investigate.  She reiterated that she did not receive information in this respect.

269.The Mother did not provide any update on her relationship with Mr O when she went into the witness box.  She did not appear to be forthcoming in this respect and I do think the Mother should have provided more information of her and/L’s relationship with Mr O.

What would be the impact on the Mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

270.The Father submitted that if relocation were to be refused, there would be no impact on the Mother should she decide to continue to live and work in Singapore, as she was running her own counselling services there, and if the Mother should decide to live in Hong Kong, the Mother would have little trouble re-establishing her career in Hong Kong or obtaining another job in a short space of time.

271.The Mother had said that it would be ‘emotionally and practically devastating’ for her to give up her career in Singapore and move to live and work in Hong Kong, but the Father pointed out that she had not displayed such emotions, notwithstanding that she had been commuting and spending 50% of her time here.

272.The Mother does not currently have a working visa in Hong Kong and she would need to apply for a new visa if she were to decide to move back.  She had however held a work visa previously and had lived and worked in Hong Kong for more than 6 years, and there was no sufficient evidence that if she were to move back she would be unable to obtain a work visa.  Indeed, she did contemplate returning to work here in September 2014. 

273.The Mother is of course free to choose where she lives.  However, I accept that if relocation were not allowed, and if the Mother were to choose to move back to Hong Kong to spend more time with L, she would probably not be able to maintain her clinic in Singapore, and to that extent, she would suffer a detriment.  However, there was no sufficient evidence that it would be “emotionally and practically devastating”.

Is the Father’s opposition motivated by genuine concern for the future of the L’s welfare or is it driven by some ulterior motive?

274.The Father submitted that his concerns on relocation were based on the knowledge and experience gained from knowing the Mother for more than 5 years and her proposal of 4 days access per month, and on the premise that the Mother will likely:

(i) Interfere and use the “tyranny of distance” to physically and emotionally separate L from the Father;

(ii) Use the tyranny of distance to prevent or restrict as much as possible L from building a strong and lasting relationship with the Father and M, her brother.

275.The Father’s concerns stemmed from his perception of what had happened in the past.  As pointed out by Mr Egerton, during the trial the Father eventually appeared to have accepted that the Mother would comply with any order of this court and that a mirror order from the Singapore Courts can also be obtained.  In any event, the Mother’s position is that the Father’s involvement is beneficial for L’s growth and development.

276.I do not find that there was sufficient evidence that the Father’s opposition to relocation was driven by some ulterior motive.  In light of the mistrust between the parties, I accept the Father’s opposition to the Mother’s relocation plan was motivated by genuine concern for the future of L’s welfare.

What would be the extent of the detriment to the Father and his future relationship with L were the application granted?

277.The detriment to the Father, as submitted by him, include the following:

(i) He will hardly see L, reduced from the current 182 quality days per year down to around 50 short and poor quality days, based on the Mother’s proposals on access;

(ii) Door to door trip from Hong Kong to Singapore takes more than 7 hours, if no flight delays, and a considerable time and effort for any one, especially a child, and therefore the best solution is the status quo;

(iii) The Mother currently does and has the financial means to fly to Hong Kong on a frequent basis and has done so without incident for the past year.  The Father would have to fly 3 people including L’s small baby brother on a 7 hour trip to see L twice a month, for 30 hours per visit;

(iv) The Mother’s alternative proposal that she will ‘on occasions’ fly L to Hong Kong are shallow and lacks details, and would only mean L would fly late on Friday night after school for 7 hours to Hong Kong, arriving at midnight in Peng Chau and then have Saturday with her father and family and then need to leave around lunch time on Sunday in order to be home in time to get a good night sleep before school on Monday;

(v) The Mother’s offers of holiday access are neither here nor there, and the same will apply whether relocation is granted or not;

(vi) The Father will be unable to visit Singapore frequently in 2017 and beyond due to his young baby son.

278.Miss Tsang was of the view that if the relocation plan were allowed, L’s contact with the Father’s family would likely to be lessened and there would be practical concerns that M might be too young to go to Singapore on frequent basis and Ms S being a new mother, would likely to be occupied by her new role and it would not be easy for her to go with the Father to Singapore to visit L.

279.I accept that if the Mother’s relocation application were to be allowed, then realistically, L will have less contact time with the Father, Ms S and M. 

To what extent would that detriment be offset by extension of L’s relationships with the maternal family and homeland?

280.The Father submitted that:

(i) L was born in Hong Kong and raised a Chinese citizen, and spent the majority of her life in Hong Kong with the Father who is a Hong Kong permanent resident and that to assert otherwise than that Hong Kong is her only homeland is “false”.  The Father also submitted that L already had experienced an “abduction” in a foreign country away from her father, and that she has the right to live and grow up in her country of birth and as a Chinese citizen.

(ii) The Maternal Grandparents had no contact in Hong Kong with the Mother while she was pregnant and did not visit her or L after L’s birth, and any proposal that put the Maternal Grandmother’s caring for L above that of the Father would not be in L’s best interests.

(iii) The Maternal Grandparents are “old, ill and frail”, and further they are entirely unsuitable to participate properly and support the Mother in her care of L in Singapore.  The Father had also alleged conflict between the Maternal Grandmother and the Mother.

281.First of all, L was born in Hong Kong of an expatriate family in that neither the Father or the Mother has his/her family roots in Hong Kong.  Even though the Father is a Hong Kong permanent resident, there is no evidence that he is planning to give up his Australian citizenship or his Australian passport.  Anyway, L is now only 4.  Hong Kong was L’s home since she was born in May 2013 until Removal, and Hong Kong has been her home since the Return.  She was in Singapore for 21 months.  In my view, so far, both places `had been her “homeland”.

282.I have dealt with his comments on the Maternal Grandparents earlier.  I find there was no sufficient evidence of any conflict between the Maternal Grandmother and the Mother, which was denied by the Mother, and there was no cross examination by the Father on this issue.

283.In the 3^rd SWR, Miss Tsang reported that L was seen separately and individually during the respective home visits to her father and her mother.  When L was seen at the Father’s home, she ignored Miss Tsang’s questions when they were about her family although she was talkative when Miss Tsang played with her.  When L was seen in the Mother’s home, she had told Miss Tsang about three times that she wanted to go back to Singapore.  When Miss Tsang asked her what was in Singapore, L mentioned about “Old ma”, referring to the Maternal Grandmother, but without further elaboration.

284.L is clearly too young to express any preference as to where she is to live.  Notwithstanding the Maternal Grandparents did not visit L in Hong Kong prior to the Removal, the evidence shows that L seems to have built up a close relationship at least with the Maternal Grandmother during the Singapore Period.

285.However, although Miss Tsang was of the view that the relocation could be counterbalanced by L having regular contact with the Maternal Grandmother and her extended family members in Singapore, she considered the love from both parents would be more important and primary and that Ms Tsang had expressed reservation on the relocation plan in this aspect, even though during the trial, Miss Tsang accepted that her reservation would be reduced if the Mother were to comply with court orders in future.   

Overall what would be in the best interests of the children?

286.At the moment, in my view there is still a high degree of mistrust and high conflict between the parties as set out further later in this judgment.  By now, L has settled down in Hong Kong for over a year.  There are uncertainties in relocation, such as where the Mother and L will be living, and also the Mother’s relationship with her current partner of which there has been no investigation and little information is available before the court.  I accept that even without relocation, the Mother will have to move to at least a 2 bedroom apartment but the Mother’s intention is to look for one in the same development Leyburn Villas, which is an environment which L is now familiar with.  Even though L has the Maternal Grandmother and the Mother’s extended family in Singapore, she has now reconnected with her father and has bonded with Ms S and M. 

287.Having considered all the circumstances of this case, and having weighed all the factors, I share Miss Tsang’s reservations, and I have come to the view that at this stage, it is in L’s best interest for her to remain in Hong Kong.  I am therefore not prepared to grant the Mother’s application for relocation at this stage.

L’s care and control

288.There is no dispute that the parties are to continue to have joint custody of L.

289.After the 18.02.15 Singapore Stay Order, on 2 March 2015, the Father issued a summons and his originating summons herein were both fixed for a hearing on 19 March 2015.  Apart from his 1^st affirmation filed in support of his originating summons, the Father had also filed his 5^th and 6^th affirmations.

290.The Father had sought sole custody, care and control on 2 March 2015, as set out in his originating summons.  This court was only prepared to give him an interim order and called for the social welfare reports.  On 19 May 2015, the 1^st SWR was before this court and Miss Lee’s recommendation was that the Father and the Mother be granted joint custody and shared care and control.

291.The Father had indicated at that hearing that that was his proposal all along but given the Mother’s continued actions in not allowing access to him, the Father submitted that if the Mother were granted joint custody, she could use her rights as joint custodian to come up with decisions contrary to this court’s order, and that it would restrict his ability to bring L home.  

292.The Father further submitted at that hearing that the Mother had remained in contempt of this court’s orders and that he had been unable to see L notwithstanding having made 3 trips to Singapore, the last one around L’s birthday.  At the time, the court was not provided with all the emails between the parties. 

293.As the 19.03.15 Order was only an interim order, this court indicated at the hearing on 19 May 2015 that a final order for joint custody would be made.  The Father then sought L’s sole care and control be given to him.  The Father submitted that it would be best that he be given care and control of L in Hong Kong with access to the Mother to take place in Singapore, and in practical terms, this would only mean a reverse situation of the Interim Access Order but this would enable him to bring L back to Hong Kong. It was thus the Father himself who submitted that the court should make a different order from the one recommended by Mss Lee and to grant him sole care and control of L.

294.The court accepted the Father’s submissions and it was under the above circumstances that the court deviate from the recommendation of Miss Lee in the 1^st SWR and made the 19.05.15 Custody Order.  It was made in the Mother’s absence, and in face of her unwillingness to bring L back for the Father to exercise his two week access under the Interim Access Order or any access in Hong Kong. 

295.The circumstances have however changed since the Return.  L is now back in Hong Kong and the Mother now seeks a variation of the 19.05.15 Custody Order and that she be granted sole care and control of L. 

296.The Mother has said if relocation were refused, she will take care of L full time by taking a break from work but this will come at great personal cost by her giving up her practice established in Singapore and being separated from her family in Singapore. 

297.As said earlier, the Mother intends to move to a 2 bedroom apartment at Leyburn Villas.  In terms of schooling, the Mother’s primary preference is Lantau International School but she is open to consider schools in Central if the Father has other preferences.

298.I accept what the Mother has said, that if she is to move back to Hong Kong with L, there may be an initial period of time while she has to apply for a work visa and find a job, and she and L will need to be completely financially dependent on the Father, who will have to financially support two households.  The Father’s position seems to be that with his current financial commitments, he is in no position to financially support two households by himself.  I am afraid, he may have no choice for awhile until the Mother is granted a work visa.  This is however a matter for the court to decide when dealing with the financial provision for L.  The Interim Maintenance Order as I have said is only interim.  The court will have to consider L’s reasonable needs after these applications have been determined. 

299.The Mother has pointed out that should the Father’s circumstances change, namely he may not able to retain his job with his current employer or may not continue to reside in Hong Kong, while the Mother and L are financially dependent on him, and this may present further disruption and instability.  However, whether the Mother lives in Singapore or Hong Kong, she will require financial contribution from the Father for financial provision for L and any change in the Father’s present circumstances will cause disruption and instability.

300.The Father’s position in his originating summons was that he was seeking sole care and control of L.  He was opposing the Mother’s application to vary the 19.05.16 Custody Order throughout, but during the trial, he seemed to be content with joint or shared care and control.

301.During mediation, he had put forward the 11.11.16 Parenting Plan.  In this version, the parents were only referred to Parent A and Parent B with no clear indication as to who was to be Parent A and who was to be Parent B.  Although the 11.11.16 Parenting Plan referred to equal permanent custody, care and control, it also referred to one parent having access.  The 11.11.16 Parenting Plan was clearly a mere pro forma draft.  Not all the terms are necessary or appropriate or applicable.  

302.The Mother’s position was that she should she be granted sole care and control to L, the Father is to have defined access along the same lines as if her relocation application is granted, which is as follows:

(i) L to stay with the Father every other weekend from Friday evening to Sunday evening;

(ii) In the event where the Father is not able to travel to Singapore for staying access the Mother undertakes to travel on occasions with L to Hong Kong for staying access on the basis that the Father is responsible for her and L’s flights and the Mother’s accommodation in Hong Kong;

(iii) In addition, the Father may have mid-week access staying access in the event that he travels to Singapore;

(iv) Skype access for the Father as set out;

(v) School holidays to be shared between the parties (the Father collects L from Singapore and the Mother collects L from Hong once per holiday access period);

(vi) Special days (L’s birthday on 15 May) to alternate;

(vii) Christmas day and Eater weekend to alternate;

(viii) Skype access for each party during L’s stay with the other, as set out

303.According to the 3^rd SWR, L has been enrolled L in a kindergarten in Peng Chau in August 2016 where she attends during her 2 weeks with the Father, and the school hours were from 9 am to 12 noon Mondays to Fridays.  When L was staying with the Father, she would get up at around 8 am and after breakfast, either the Father or Ms S would send L to school.  If the Father was the one to take L to school, then he would take the 9:15 am ferry to work.  Ms S would pick L up from school and sometimes the Father would do it if he works at home.  After lunch, L would relax for a while before she did homework.  She would usually take a nap at around 1:30 pm for 2 to 3 hours, and when she get up, she would play for a while before dining with the Father and Ms S around 6 to 7 pm.  After dinner, L would play with them, and then she would go to bed at around 9 pm.

304.The above arrangements were of course before the arrival of M.  Anyway, it would appear that while the Father is at work, Ms S is entrusted with L’s care. 

305.The kindergarten on Peng Chau was unilaterally selected by the Father without the Mother’s consent.  Due to the long travel distance from her current residence, the Mother did not find the kindergarten suitable and she did not send L to the kindergarten during L’s two weeks with her.  Instead, the Mother was doing home-schooling for L, and according to the Mother, L would get up around 7 am to 8 am, and after a bath and breakfast, the Mother would do some learning with L, such as reading, counting and learning alphabets.  At around 10:30 am to 11 am, she would usually arrange activities for L, and after lunch, L would take a nap from 12:30 pm to 2:30 or 3 pm.  Then the Mother would arrange some fun time for L, including cooking or meeting friends.  They would have dinner at around 6:30 pm sometimes with friends.  After dinner, L would watch some children’s videos, such as about nature as L loves whale or the Harry Porter series, and then the Mother would read stories to L who would usually sleep at around 8 pm.

306.Miss Tsang reported that the Mother would want to enroll L in a swimming class or play group and would consider sending her to an international kindergarten nearby. 

307.Although the Checklist was not referred to specifically by Miss Tsang, she had explained that she had taken into account the following 10 factors in coming to her recommendation that the Mother should be granted sole care and control:

(i) Care History;

(ii) Age of the child;

(iii) Capacity of parental care;

(iv) Relationship of L with her parents;

(v) Care plan;

(vi) Any other persons offering care help;

(vii) Opinion of the parents;

(viii) Communication between parents;

(ix) Living environment;

(x) Relationship with significant others.

308.In the 2^nd SWR, having taken account the above factors, Miss Tsang recommended that the Mother be granted sole care and control of L, and she had said that having considered the existing tense relationship between the parents, defined access to the Father might be desirable, especially during the early stage to avoid further conflict.

309.Miss Tsang’s recommendation for access was that in Week 1, L should stay with the Father from Friday after school to Monday before school.  In Week 2, L should stay with the Father for one overnight access during the weekend.  Flexible day access, with at least one dinner access should be given during the weekday.  There should be daily telephone or skype access, with time and duration as mutually agreed between the parties is suggested.  The parties are to share L’s school holidays.

310.In the 3^rd SWR, Miss Tsang maintained her recommendation.  She accepted the Father and the Mother dearly love L and they are both good parents showing great concern to L’s well being and place high regards on her welfare.  Her recommendation for the Mother to have sole care and control was based on mainly :

(i) The parties are in very high conflict state and both have little ground for compromise;

(ii) For making parenting plan for small children, continued predictability, routine and structure is important, and that in her research and assessment, shared care arrangement is more suitable for relatively older and more independent children and where parents are child-focused, flexible with good communication, collaboration and similar parenting style.  She has also said for shared care, both parents need to communicate frequently about the child and the child’s habit, health, schooling and routine which require the basis of co-parenting with mutual respect, transparency and collaboration, and in her view, parental cooperation and collaboration is not smooth in this case, at least at the present stage;

(iii) As for the child care plan, the Father and Ms S will be rendering the care, whereas the Mother has indicated she plans to spend more time with L to address to L’s adjustment and stability;

(iv) Although the Father has got the strengths in his good financial condition, stability in his living environment, child care support, a complete family and giving a fun and sportive life routine to L, the Mother has the strengths of her ample knowledge in child psychology and development, her track record of taking care of L, and her comparatively flexibility in child caring.

311.At the trial, Miss Tsang did not vary from her recommendation and maintained that the Mother be granted sole care and control of L with defined access with the Father.

312.Although the Father had at the trial said he did not think there was much conflict between him and the Mother and thought he communicated quite well with the Mother, his constant criticisms of the Mother and his various allegations against her, his threat of committal proceedings etc in my view failed to indicate respect for or collaboration with the Mother. During the trial, the Father had described his criticisms of the Mother were only “highlighting the negative aspects” of the Mother’s behaviour. Whatever he may describe it, by comparison there were very little highlight from him of any positive aspects of the Mother’s behaviour.

313.His negative attitude towards the Mother had in fact continued after the trial.  In particular, the Father had written a letter on 16 January 2017 informing the court of the revocation of the Mother’s legal aid and that it was his understanding that “a revocation means she will be treated as never having been legally aided, the fraud was committed at the beginning of the Legal Aid application process” and that the Mother’s “fraudulent application” was supported by her solicitors, and that the punishment for the Mother’s fraudulent application would be up to 6 months’ imprisonment.  The Father further said this was a reflection of the Mother’s character and ability to parenting in L’s best interest.  He then accused the Mother of misrepresenting the facts and abusing the legal system for her own benefit.

314.The Father was the one who had made a complaint to the Director of Legal Aid about the Mother’s application and in any event, the Mother’s grant of legal aid has now been restored.  The Father’s allegations of fraud did not appear to be justified.

315.Suffice to say, the Father’s attitude towards the Mother has not changed and I accept that as a result of his attitude, there remains high conflict and little collaboration between the parties.

316.I have also considered the relevant factors in the Checklist.  L is too young for her views to be ascertained.  In light of my finding that the Mother was her primary carer throughout until the Return, and with her knowledge in child psychology and development as a psychologist, I am of the view that the Mother will be more capable of meeting L’s emotional and educational needs, although I accept that the Father may be able to meet L’s physical needs by providing a fun and sportive time for L.  The Father has complained that the Mother is a smoker but she denied smoking in front of L, as alleged by the Father, and there was no sufficient evidence to contradict what she said.

317.As reported by Miss Tsang, L is close to the Mother and L is also close to the Maternal Grandmother.  On the other hand, L has reconnected with the Father and has bonded well with Ms S.  There was no information on L’s relationship with M although she was aware of the coming of her brother, and looking forward to it.

318.The present alternate 2 week arrangement was initially intended to be an interim arrangement, and this court had in fact granted the Mother an interim stay of the Interim Access Order.  It was not meant to be a long term arrangement, and in my view, the alternate 2 week arrangement has continued only due to the Mother’s non participation of the Hong Kong Proceedings.  The Mother does not intend to live on Peng Chau Island. As said earlier, she has proposed the Lantau International School for L or a school in Central.  There is little information about the schools on Peng Chau.  Realistically speaking, in my view, the present arrangement cannot be practical or in L’s best interest once L settles down to formal schooling. 

319.In any event, I do not find there is sufficient evidence that there is going to be a detrimental effect or harm on L if there is a deviation from the present arrangement.  The Father, Ms S and M are all in Hong Kong and there will be no “tyranny of distance”.  There will be no practical difficulty of L having contact with the Father.

320.I agree with Miss Tsang for shared care, both parents need to be able to communicate frequently.  The main obstacle to a shared or joint care and control order at this stage is the complete lack of trust and respect, the high conflict and lack of collaboration and compromise between the parties.  The fact remains the litigation between the parties is now in its 3^rd year, mediation has failed, the parties had to go through a 5 day trial and litigation is ongoing with financial matters not resolved. All this speaks for itself.

321.Having considered are the circumstances of this case and after weighing up the factors in favour of each party, in my view the balance tilts in favour of the Mother.  Miss Tsang has considered her 10 factors carefully.  I see no reason to depart from her recommendation.  In my view, at the present stage, it is in the best interest of L for the Mother to be granted L’s sole care and control.  I am thus prepared to vary the 19.05.15 Custody Order to grant the Mother sole care and control of L. 

322.As for access to the Father, I accept that it is in L’s best interest that such should be defined along the lines recommended by Miss Tsang, subject to certain variations.  I am of the view that:

(i) For Week 1, L should stay with the Father from Friday after school to Monday before school;

(ii) For Week 2, L should stay with the Father for one overnight access during the weekend;

(iii) The Father may have flexible day access subject to L’s school, with at least one dinner access during a weekday;

(iv) There should be daily telephone or skype access, for the Father of not more than once in the morning and once before L’s sleep time, at a time and of such duration to be mutually, failing which the parties are to provide the court with their respective suggestion for the court to decide; 

(v) The parties are to share L’s school holidays equally;

(vi) As for L’s birthday, the parents are to take turns to be with L on L’s birthday.  The Mother will be entitled to spend Mother’s Day and the Mother’s birthday with L and the Father will be entitled to spend Father’s Day and the Father’s birthday with L.

(vii) Christmas day and Easter weekend to alternate;

(viii) Any other access to be agreed between the parties.

323.The Mother may need time to arrange for her move back to Hong Kong.  The present alternate two week arrangement should continue until the Mother moves back.

Wardship

324.As I have not allowed the Mother’s relocation application at this stage, L shall remain a ward of this court until further order.

Other directions 

325.The matter of L’s financial provision should be brought back to this court as soon as practicable.  I will make the following directions:

(i) The parties shall exchange their updated Form Es within 28 days of this order;

(ii) A direction hearing be fixed for the parties’ respective outstanding applications on L’s financial provision, at 9:30 am on 19 June 2017 (30 minutes).

Costs

326.I will direct the parties to make further written submissions on costs.  The Mother shall file her written submissions within 21 days from the date hereof.  The Father shall file his written submissions within 21 days upon receipt of the Mother’s submissions.  Any reply shall be made by the Mother within 14 days after receipt of the Father’s submissions.  The matter will be dealt with on paper unless otherwise directed.

The plaintiff appeared in person

Mr Robin Egerton, instructed by Tanner De Witt, for the defendant, on instructions of Director of Legal Aid