Jrmw v. Nav
Read the full judgment text of FCMC 8504/2017 on BabelCite. This Family Court judgment was delivered on 16 April 2018 before His Honour Judge I Wong.
Family law – Relocation – Best interests of the child – Payne v Payne principles – Domestic helper – Costs – Reprehensible conduct – FCMC 8504/2017 – Father applied to relocate children to Denmark – Alleged relationship with domestic helper V fabricated for visa purposes – Childcare plan unrealistic – Relocation application dismissed – Costs ordered against petitioner due to unreasonable litigation conduct – Access arrangement remains supervised – Progress report required
Legal issues: Relocation application (Genuine and Realistic) · Best interests of the children · Costs
Outcome: Relocation application dismissed. Access arrangement unchanged.
Cited by 2 cases · Cites 4 cases
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FCMC 8504 / 2017 [2018] HKFC 51 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 8504 OF 2017 ----------------------------
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__________________ Judgment __________________ Introduction 1.This is the petitioner father’s application for relocation of the parties’ 2 children of the family (both boys) back to Denmark, his home country. The respondent mother, an Australian, opposes the application. 2.The present matrimonial proceedings, taken out on 4 July 2017, are in fact an incarnation of a previous case, ie FCMC 4191/2012 (“the Previous Proceedings”), in which the mother was the petitioner and the father the respondent. As I commented repeatedly in the Previous Proceedings, this is a high conflict case. I have been living with this case for 5 years and so far the parties have not made much progress in resolving their matrimonial disputes. 3.After a 5-day trial under the Previous Proceedings, by a judgment dated 23 February 2017 (“the Custody Judgment”) I granted the sole custody, care and control of the boys to the father with email access to the mother. The email access is limited to 2 emails per week from her and she may also send an electronic card during Christmas and on the occasions of the boys’ birthdays. The boys are not obliged to give any reply. In order to facilitate the access, the father is to provide the boys’ school hand-books, notices and reports, if any, on a monthly basis. 4.I also directed that the access is to be supervised by the Social Welfare Department for a period of 24 months with a progress report to be submitted to court upon the expiry of the first 9 months. 5.On temporary removal, mainly for the reason that it has been the practice for the boys to return to Denmark during their summer break, I continued to grant leave, which I first gave on 21 December 2015, for the boys to leave Hong Kong temporarily with their father for holiday purpose and/or family visit provided that each trip shall not be more than 14 days and there shall not be more than 4 trips per year. 6.In the Custody Judgment, I made a remark that that judgment would not be the last one and yet to come would be those on the determination of the parties’ financial matters: [2]. I was proven to be wrong because in less than a year (in fact in just about 5 months’ time), the court was again invited to deal with the arrangement for their boys. What happened after the Custody Judgment was that in view of the reluctance on the part of the mother as the petitioner in the Previous Proceedings to proceed to obtain a decree nisi, the father took out the present divorce proceedings on the ground of 2 years’ separation on 4 July 2017. 7.Meanwhile, with the aim to assist the parties to resolve their financial dispute as soon as possible, I fixed a First Appointment hearing to be heard on 18 July 2017. However, one day before it, ie 17 July 2017, the father took out the present application and obtained leave for his application to be heard the next day. By his application, he seeks leave that:
8.Similar to what happened previously, the financial matter was once again being hijacked by other applications. In the hearing of 18 July 2017, I was told by the father that the boys had left Hong Kong for the summer and were still in Denmark, that they were due to have their schooling to be commenced in August 2017 there, that the father had obtained a new employment with an airline (referred to as “Airline N” in this Judgment) in Europe and that he had resigned from his employment and had terminated the lease of his apartment here. He added that he had no income and duties in Hong Kong. 9.I believe anyone would have had the impression that the father was jumping the gun, trying to create a fait accompli. The leave that I gave for the boys to leave Hong Kong from 1 July 2017 to 31 August 2017 was not meant for the purpose of permanent removal. I therefore ordered the father to return the boys to Hong Kong by 1 August 2017 and that they are not to be removed from Hong Kong unless with the leave of the court. I also called for a Social Welfare Report and an International Social Investigation Report to be filed within 3 months. 10.The decree nisi was finally granted on 20 November 2017. 11.The parties appear as before, with the only change that the father and the mother are now sitting at the other end of the bar-table. Mr Lee, acting on behalf of the Official Solicitor, continues to appear for the boys. For convenience, in this judgment, I will refer the petitioner father as “F” and the respondent mother “M”. I will continue to refer the boys as “L” and “B”. L is now 11 years old and B is 8. 12.Plainly, the chequered history of the Previous Proceedings and how they have evolved to the present stage have to be borne in mind. Where necessary, I would need to refer to some of the matters dealt with in the Custody Judgment. Present Situation of the Parties since the Custody Judgment 13.F’s situation is essentially the same as before. F and the boys together with their foreign domestic helper, referred to as “V” in this Judgment, are still living in the same rented apartment in Lantau. F is still serving as a First Officer with his employer. As for the boys, they have since September 2017 been studying in another international school on the island. L is now in Primary 6 and B is in Primary 3. F’s initial intention was for the boys to start their schooling in Denmark in the summer of 2017. That was the reason why F’s initial application for relocation included an application for leave for the children to remain and continue in their school there until his application has been concluded. 14.M also lives in Lantau. She is still working as a face-painter and children entertainer. She has been in a relationship with a French gentleman (also a Hong Kong resident) since the last 18 months but she has no plan of getting married. She has become a Hong Kong permanent resident and affirmatively said she would continue to be in Hong Kong. The Father’s Case 15.F’s case is simple and straightforward. He has been in high conflict with M for over 6 years. It is impossible for him to be the best father he can be, a professional pilot and pretending to be a lawyer in these proceedings forever. He has to start a new life with the boys and therefore has determined to return to his home country. 16.There was a change in his working conditions with his employer in the past few years. Due to the retirement of the Boeing 747 passenger fleet, he was assigned to fly cargo planes, which was never his intention. It meant less remuneration, more work, more work disruptions and a lot less job satisfaction. His roster practice was unilaterally cancelled resulting in much lesser time for him to remain in Hong Kong for caring the boys. In some instances, he had to be away for as many as 9 days. The employer also unilaterally cancelled his housing allowance, compromising his accommodation situation. In his supporting affirmation dated 17 July 2017, F also said that his present employer has the risk of failing. That too is a reason for his leaving. 17.He has been offered a position as a Relief Captain by Airline N, a new airline in Europe serving that region. He regards it as a career advancement since he would be given the opportunity to fly the newest airplane Boeing 787. In this affirmation of 17 July 2017, he said he had accepted the offer to ensure his future employability and skillset and at the same time had resigned from his present employer. The new employment will offer him even more time off than he has in Hong Kong. He quotes his former colleague as an example. His former colleague, now a captain with Airline N, works 56 days in a period of 12 months only. F should be in more and less the same situation if he works for Airline N. In his affirmation, he said he no longer worked and lived in Hong Kong and V was already packing down his home. 18.At trial, it transpired that F had tendered his resignation on 17 July 2017, the day before his application was first heard, but probably because of the order to him to return the boys to Hong Kong, he rescinded his resignation the next day. As a result, he is still performing his duties as usual. 19.F stresses that returning to Denmark will improve their living conditions. He intends to settle in Sejs, a city centrally located in the country between his closest friends and family. F’s parents will be available to help with taking care of the boys. Whilst F could not afford to purchase a home in Hong Kong, back to Denmark he would be able to buy a very comfortable large house with a garden and a garage. The boys would be able to have their own separate rooms. In the interim, he has already rented a 1950 ft2 4-bedroom apartment in Silkeborg, a city adjacent to Sejs. In longer-term, he is going to buy a house that will suit his and the children’s needs. He adds that all the houses in Sejs offer proximity to school, extra-curricular activities, shopping and nature. Everything is connected with bicycle paths so the boys will be able to ride their bikes to school like all other children there. He also mentions that Denmark has one of the best free healthcare and dental care systems in the world. 20.As for the care of the boys, the arrangement will be the same as before. The boys will continue to be taken care of by V while he is flying. V has become his partner (not his maid anymore) and has agreed to emigrate to Denmark together with them as a family. He will apply for a family reunification visa for V. 21.He has also enrolled the boys with a municipal school in Sejs. This is free. As a matter of fact, all education in his home country is free, including university education. The boys would also be entitled to free government grants. The Mother’s Case 22.The parties continue to be at loggerheads in respect of almost all issues. M disagrees with F’s allegation that his prospect with his present employer is dim and that joining Airline N is a career advancement. She highlights the fact that F is approaching his scheduled upgrade to the rank of captain and there will soon be a significant increase in pay. In any event, F is presently continuing with his job. Certainly there is no risk of F being jobless nor is there any risk that his employer is failing. 23.F and V have never been in any authentic relationship as husband and wife. The truth is the master-and-servant relationship has never changed and F, in reality, intends this to continue to be so in Denmark. As such, there is simply no way for V to be eligible for visa/residency in Denmark, whether on employment ground or on the ground of ‘family reunification’. Without V, F would not have any consistent child care on which to rely when he is away for a few days at a time for his work. 24.Whilst M notes the boys have indicated their desire to be relocated, she views this as the result of them being indoctrinated to believing in falsehoods over a long period of time for which the culprit is F. The children have been instructed to think negatively about her. They are indoctrinated to think of Denmark as home and where their friends are, even though they have never lived there. F has not lived in Denmark since 1999. All the time when they were couple, they were living in Norway and Sweden before coming to Hong Kong in 2008. The boys do not have a strong family network back in Denmark. They would not have any ‘family growth’ opportunities there. The most important is there would not be any support on the care of the boys should F be away on duties or fall ill. 25.The place where F intends to relocate is a countryside village which is nowhere near any major city. The boys will be disadvantaged by moving to a countryside due to the loss of opportunities offered to them by a vibrant and international city like Hong Kong. Back here, they have settled well in their school and are doing well in a multicultural, multilingual and diverse environment. Parties’ Open Proposal The Father’s Open Proposal 26.F proposes that if the relocation application is allowed, he would agree to phone calls access to L. This is what L seemed to be willing to try. If the relocation application is refused, the custody, care and control and the current email access arrangement should remain unchanged. The Mother’s Open Proposal 27.M insists that even if the relocation is allowed, the boys’ departure must be delayed until such time face-to-face and electronic communication with the boys have been solidly re-established. After the boys have left for Denmark, there should be weekly report from F, I-pad, telephone and electronic access and face-to-face access in Denmark and in M’s place of residence, all at F’s costs. 28.If the relocation application is refused, she asks for substantial increase in access, both in form and in frequency. For B, she seeks face-to-face access twice per week for 2 hours each, FaceTime access twice per week for a minimum of 10 minutes and no set maximum. There should also be free telephone, text message and email access. As regards L, there should be face-to-face access to be commenced one month after B’s face-to-face access with the same FaceTime, telephone, text message and email access that apply to B. The Social Investigation Report 29.Ms Lo, the Social Welfare Officer, is familiar with this family. She has been helping this family since about the end of 2013. The present Social Investigation Report on relocation, dated 18 September 2017, is already her 6th report. 30.Ms Lo is supportive of F’s application for relocation. In brief, she said she has considered the following factors which are all resolved in favour of F:
31.She recommended that, after the relocation, M may continue to have email access to the boys. There may also be telephone access, with time and frequency to be mutually agreed. No International Social Investigation Report is Available 32.The court has not been assisted by any International Social Investigation Report due to the absence of confirmation from the relevant Danish authorities that such a report would be prepared. The Official Solicitor’s Views and His Change of Stance 33.The Official Solicitor has prepared 2 reports (being the 7th and the 8th reports) for the purpose of the present relocation application. 34.In his 7th report dated 7 September 2017, it was observed that the boys were forthcoming and spontaneous, especially L who looked and behaved more cheerful than he did in the previous interviews. The boys opened up to speak their minds freely and expressed their strong wish to move to Denmark with their father. Both children could clearly tell the reasons for their preference to live there, namely, their best friends being there, pollution-free, better living environment and the attractive school campus. Mr Lee found that the children have all along been well looked after by their father. His preliminary view was that the relocation plan seemed to be in the best interest of the children: §60. 35.The Official Solicitor’s 8th report of 4 January 2018 was prepared after having interviewed V and the boys again. Mr Lee said the boys’ views are clear and firm. They have strong wish to relocate to Denmark and are really looking forward to the implementation of the relocation plan. They have given sound and genuine reasons to justify their wishes. There is no evidence to suggest that the boys have been coached or indoctrinated to give their answers. 36.The Official Solicitor in principle agreed with Ms Lo that F’s application is genuine and his proposal is well researched and investigated. F has shown he has a new employment with Airline N. F has also put forward a concrete plan for proper childcare, suitable accommodation and education for the boys. The school has confirmed that school placements are available. The Official Solicitor thus maintained his stance that the relocation is in the best interest of the boys. 37.At this juncture, I need to mention that, significantly, even up to this stage, at no point were the boys told of the fact that V had become their father’s partner. As can be seen below, it was not after the conclusion of evidence in the trial that F broke the news to them. The Change of the Official Solicitor’s Stance after the Evidence 38.F’s relocation plan appeared to be impeccable, right from the start till the trial. He had the support from Ms Lo and Mr Lee, as is evident from their reports. According to his plan, V will be joining them in Denmark, the family will continue their lives as before but with the added benefits that they will live in a better accommodation, attend a better school, be closer to their extended family members, live in their own culture and enjoy cleaner air and nature. More importantly, F would have the most ideal job – he would fly the Boeing 787 Dreamliner and at the same time would work on far fewer working days so that he could be in a much better position to take care of the boys. 39.I need to mention at this early part of the judgment that the tide has been turned after all the evidence was heard. In his closing submissions, while acknowledging the strong view expressed by the boys to relocate to Denmark, Mr Lee has come to the conclusion that it is not in the best interest of the boys to proceed with the relocation plan right now. The reasons being that he is concerned that there are uncertainties in the caring arrangement of the boys in Denmark due to first, the uncertain reaction of the boys to the change of V’s role as their domestic helper to their step-mother; and secondly, the extent of involvement of the paternal father in taking care of the boys. Apart from these 2 points, Mr Lee also has great doubts over whether F’s alleged relationship with V is a genuine one. 40.The change of stance on the part of the Official Solicitor could not have been anything else but a bombshell on F. In response, F, in his closing submissions, informed the court that the boys have already been told about V’s new role as their step-mother. I gathered that must have occurred after he had a sight of Mr Lee’s closing submissions. He applied for an adjournment of the case so that the Official Solicitor could meet the boys to ascertain their views and prepared an updated report accordingly. At the same time, he applied to have his father’s written statement to be adduced to confirm his involvement of taking care of the boys. His application was duly rejected. I will explain why I rejected F’s application in paragraph 89 below. 41.The role of the Official Solicitor as a child’s separate representative is twofold: as an officer of the court the Official Solicitor investigates how the child’s interests are best served while simultaneously representing the child’s views as his solicitor in the proceedings: Practice Direction PDSL 6 – Guidance on Separate Representation for Children in Matrimonial and Family Proceedings, at §11. The Official Solicitor’s views should in the ordinary course carry significant weight and the court should not lightly disregard his recommendation. As can be seen below, after having heard the evidence, I am in entire agreement with the Official Solicitor. As a matter of fact, I would go so far as to say that the alleged husband and wife relationship between F and V is a sham. I will return to this issue in the latter part of this judgment. The Legal Principles 42.To start with, section 3(1) of the Guardianship of Minors Ordinance (Cap 13) (“GMO”) provides:
43.For relocation cases, the applicable legal principles are well settled since the Court of Appeal’s judgment in SMM v. TWM (Child: Relocation) [2010] 4 HKLRD 37. In that case, our Court of Appeal confirmed the applicability of the Payne v. Payne principles in Hong Kong. Cheung JA (as he then was) succinctly set out the principles:
44.Guided by the above legal principles, I now proceed to deal with F’s application. I will follow the approach set out in Payne v Payne. (1) Is the father’s application genuine in the sense that it is not motivated by some selfish desire to exclude the mother from the boys’ life? 45.F said he submitted the resignation letter on 17 July 2017 (ie the day before his application for relocation was first heard) with a view to report his duty in October 2017. At that point, his supervisor, the Flight Crew Relations Manager, who was well aware of his divorce litigation for the last 6 years, agreed to waive the 3 months’ notice for the termination of his employment. However, upon knowing that the relocation application could not have been resolved within a short period of time, he was allowed to rescind his resignation. This explains why he is still flying now. In this connection, Ms Lo’s evidence is that when she interviewed F in August 2017 for the purpose of this application, he did not inform her of the rescission of the resignation. I consider that F was less than forthcoming in providing material information to Ms Lo. 46.F said the contract that he signed with Airline N on 12 July 2017 was no longer valid because he was not able to report duty in October 2017. As of now, the offer is still opened to him but he has not confirmed with Airline N yet. There was no discussion about the deadline but he would like to get back to them as soon as possible. 47.F accepted that Airline N is a low costs carrier. He will be signing a 3-year contract, not directly with the airline, but with an agent. He will be getting a gross salary of about HK$68,000 only (or about HK$50,000 after tax). This is far less than what he is receiving. What is more, he is to forego his permanent position and seniority of about 10 years. He also accepted that the commuting time from home to airport could be as much as 5 to 6 hours while as of now, it is only a 20-minute drive to the Chek Lap Kok Airport. Despite all these, the move to Airline N would be a career advancement because he would be trained to fly B 787. This would enhance his employability in the aviation market. The reason being that he has been flying B 747 all these years but this is an old model and has been phased out for passenger flights. As a result, he is now being assigned to fly on cargo flights only. This means less pays and longer working hours and consequently this has affected his time and ability to take care of the boys. 48.F emphasized that taking up the new job would not only ensure that he would be flying the latest passenger jet but would also ensure him more time to take care of the boys, just as what he had been able to do in the past. He made good his point by referring to one of his former colleagues’ roster with Airline N as an illustration. Airline N is a Europe based airline with short-haul flights to different parts of the continent and long-haul flights mainly to North America. He said same as this colleague, he would be flying long-haul from Europe to North America. The departure flights would either be from 1 or 2 major airports in Western Europe such as Oslo or Gatwick, London and the arrival flights would invariably land on Gatwick. The crew would stay in the port of arrival in North America for 24 hours and then fly back. This pattern can be seen from the roster of his former colleague. According to the roster, out of a period of 12 months his former colleague was on duty away from home for 56 days only. This was also the same pattern that he had when he was flying passenger flights with his present employer. Hence, working for Airline N means he would be able to have more time at home for the boys. 49.M doubts whether this would be the case because, unlike F’s present employer, Airline N is a budget airline. Normally, budget airlines would push their pilots to their limits. Analysis 50.On the evidence before me, I accept that there is an offer open to be accepted by F. F said his job with this airline would allow him more days-off for taking care of the boys. Currently, inclusive of his annual leaves he has 134 days-off but if he is working for Airline N, he could have 138 days. In his closing submissions, he even claimed he would have 304 days off. 51.There is some dispute over normally how long would F be away from Hong Kong in his current position. F said it could be as long as 9 days at any one time. M disagreed and said according to the information she received from a pilot friend who is a colleague of F and is also flying B 747 plane, on average one would only be away from home 12 to 15 days a month. 52.F has produced his own rosters covering 3 months from October to December 2017 only and the rosters of his former colleague with Airline N. When the trial was into the 4th day (29 January 2018) and when F was in the course of examining M, he tried to adduce more of his rosters. He withdrew the application when he was told that if these documents were admitted, the court would have to allow M to cross-examine him on these new materials. 53.The Airline N rosters of his former colleague are at best for reference only because F has not joined the company yet. There is understandably a certain degree of uncertainty. In my view, this is acceptable. However, it should not be forgotten that whichever airline he is going to serve, as a pilot, he has to attend simulator course and other training courses. If F is with Airline N he would have to do these in Gatwick, London. These would necessitate him to be away from home. Further, with F’s own rosters covering 3 months only, I cannot say the figures are presenting a full picture of his present situation. The situation is not as clear as F may wish to have presented. 54.There is also some dispute over whether the Accommodation & Rental Assistance Policy Agreement and the Rostering Practices Policy Agreement which are applicable across the board to all pilots have been cancelled. F adduced some correspondences to support that his employer has already given notice to terminate these 2 agreements. M disagreed and relied on some newspapers reports to say that the Accommodation & Rental Assistance Policy Agreement has been extended for at least another year in light of the threatened industrial action. 55.In my view, whatever the situation is, the evidence clearly shows that there have been repeated attempts on the part of F’s employer in the last couple of years to cut the benefits available to pilots and these render F’s prospects uncertain. I accept F’s conditions of employment have gradually turned unfavourable. 56.There is virtually no challenge from M on F’s complaint that he is now flying an old model and that flying Boeing 787 would enhance his employability in the aviation market. I accept what F said in this respect. 57.Further, the unchallenged evidence is that F applied for and paid the debenture in the sum of $50,000 for the new school in Hong Kong in March 2017. That was the time well before he applied for the new job in June 2017. I believe that at the trial on the custody issue back in November 2016 F did not have any intention to have the boys relocated (as alleged by M); otherwise he would not have paid the debenture for securing a school place for the boys. 58.Finally, the history of this case revealed that it was M, who by her own conduct, excluded herself from the boys’ life; as a result of which she is now having indirect access to them. There is simply no need for F to exclude her from the boys’ life. 59.Thus analysed, I accept F’s application is genuine. (2) Is the father’s application realistic, i.e. founded on practical proposals both well researched and investigated? 60.F’s childcare plan is that the present care arrangement will be seamlessly transplanted to Denmark with V continues to take care of the boys when he is flying. He is able to do so because V has become his partner; as such he would be able to sponsor V’s application for immigration on the ground of family reunification. This is the backbone of his relocation application. 61.M does not believe that V is F’s partner and so she would not be able to apply for a family reunification visa without making false statements and information to the immigration authorities. V may be liable to prosecution and penalty and if the visa has been granted, it would be liable to be revoked and she would be deported back to Indonesia. V would also be blacklisted by the Danish immigration authorities in which event she could never gain entry to the country again. 62.Whilst M accepts that V has been involving in taking care of the boys in the last couple of years, especially when F is flying, yet she maintains that V is never a primary carer and is always viewed as F’s assistant. She does not believe that V has been doing the best job. She worries that V may not be able to perform her role when she is in an alien country and does not speak the language. She points out that V would not be able to make an emergency phone call. M also doubts whether V would be able to cope with the living in Denmark given the population in Sejs is dominantly Danish, her limited Danish language ability and the cold and wet weather. Is F’s alleged relationship with V genuine? 63.Both F and V claimed they have been in a relationship akin to husband and wife since early 2016 when the family was having a skiing vacation in Italy. F said the two of them have gone through a lot together in all these years and V has helped him a great deal. He admires V because she is the most kind, loving and caring person he has ever met. As for V, she admires F because he is a care and loving father and a gentleman. 64.However, under cross-examination, their evidence as regards this claimed intimate relationship differ in material respects. On how the relationship started F said it happened when they were in Italy. The boys were not in the house and all of a sudden they ended up kissing. Yet, it was a slow start and they did not have sex at that time. It was later on in about March, 2016 when they were back to Hong Kong that they first had sex at home. V, however, said they started sexual relationship back in Italy in February 2016. 65.F said the last time they had sex was the week before the hearing, ie the week of 15 January 2018, but V said it happened in December 2016. 66.When being asked about their plans in the future, F said he never has any plan to get married again. V, being a Muslim, would not be able to get married with him according to the rules in Indonesia because he is a Christian. It would not be possible to obtain permission from V’s father for the marriage. So far, V’s father has no knowledge of their relationship. In stark contrast, V said she and F have discussed before and both have come to a conclusion that if they are in Denmark where the Muslim regulations do not apply they would register a marriage. 67.F said he and V have had serious discussions on whether or not to have a child but currently there is no decision. V’s evidence in this regard is at the opposite pole in that they have not discussed regarding children and she has not thought of that. 68.I have not lost sight of the fact that their evidence collaborates with each other in some respects. Both said F gave V a round trip business class ticket to Indonesia this January as a birthday gift. F said he used condoms as a contraception measure and V said besides condoms, she also takes pills. Both said in evidence they have sex about once a week but clearly this piece of evidence is hard to reconcile with V’s evidence that the last time they had sex was in December 2017. 69.At the same time, I do not find the discrepancy that F claimed he gave V a pair of earrings and a necklace in the Christmas of 2017 but V said it happened in January 2018 material. 70.On the disparity as to when they began sexual relationship, in his closing submissions, F tried to allude vaguely to the difference between sexual intercourse and oral sex in trying to save the situation. I am sure that F was fully aware of this discrepancy at the time but, surprisingly, he chose not to re-examine V on this point. As a matter of fact, F had no re-examination at all on any of the discrepancies identified above. The question on when they had sexual relationship for the first time was a question from the court. It has to be recalled that when this question was put to V, the term “sexual intercourse” was specifically used in order to ensure that there was no misunderstanding. If the ‘misunderstanding’ truly arose from the difference that only he and V knew, what F should have done was to point this out to V for clarification. I am sure this purported ‘explanation’ is F’s last-ditch effort to salvage his case. It is an invention aftermath. 71.In my view, the disparity is material. If their relationship is genuine, there is absolutely no way that they could have given the answers in the way they did. 72.F and V admitted that apart from the professionals who involve in the present proceedings, there are only 4 persons in this world who know of their relationship; they are F’s father, his wife, F’s mother and her partner. When being asked what they do as a couple, their reply was their activities are all at home. They have not gone out as a couple. V continues to sleep in her own bedroom and the boys have never seen them behaving in any intimate way. 73.F’s supporting affirmation of 17 July 2017 did not mention this material change. He merely said that the caring arrangements will be practically the same in Hong Kong as V will live with them. 74.F admitted in evidence that he did not tell the boys of the relationship. He gave an explanation that they wanted normality. I must confess that I do not quite understand the reason. F’s evidence essentially is that V has, in reality, integrated into the family. F even said that the boys love V unconditionally. There is no reason why the boys should be deprived of learning the ‘truth’. Certainly, F is not suggesting that he is fearful of any adverse impact on the boys upon learning that V would become their step-mother. 75.The issue of whether the boys are receptive in having V as their step-mother was brought up by the court. I have no doubt that the boys have a congenial, loving and caring relationship with V, and that there is a very close bonding between them but that is in the context of a ‘master-and-servant’ relationship and against the setting in Hong Kong. A step-mother is someone who was a stranger but has, very often suddenly, become a member of the family. Common-sense tells me that it is always a difficult ‘job’ to be a step-mother, especially for V when she has to transform herself from one of a domestic helper to the role of a mother. I consider it is material to assess how receptive the boys would be to the change when they are back to Denmark, bearing in mind that V will play a pivotal role in taking care of the boys. I can even foresee that on many days to come V would have to take care of the boys single-handedly when F is on his duties. In this regard, Ms Lo admitted that she did not investigate into how the boys would react if they learn of the drastic change in V’s positon. She agreed that the boys may react positively or negatively but she does not know which direction it would be. She did not ask F why he chose not to disclose the relationship to the boys but at the same time she agreed that it was important to assess how the boys see the new relationship. 76.F did not inform Ms Lo of the relationship back in 2016 when she was preparing her 6th Social Investigation Report of 5 October 2016 on the custody, care and control matters. Ms Lo first learned of the relationship in August 2017 when she was considering F’s present application. Ms Lo’s evidence in court is that at the beginning, she did not believe in the genuineness of the relationship. In that case, I do not know why Ms Lo did not sound it out in her report. Instead, she appeared to have given her support to the application unreservedly. In evidence, Ms Lo agreed that if the alleged relationship is not genuine, she would have reservation in her recommendation and would need to reconsider this case again. 77.The heart of the matter is, for V to be able to apply for residency in Denmark on the ground of family reunification lawfully, her relationship with F must be a genuine one and not merely for convenience. Otherwise, I agree with M that there is a real risk that F and V may be liable for prosecution and penalty in the form of a fine and imprisonment up to 2 years in which event the boys’ interests would be seriously jeopardized. 78.Analysing all the evidence in a round, I am driven to the conclusion that the alleged husband-and-wife relationship between F and V is a fake one. It was fabricated for convenience so that V may be able to join the family in Denmark. Can Father Employ a Domestic Helper in Denmark? 79.At one stage during trial, F said he has not thought of any alternative. If for any reason he cannot work out with V and she decides to go or if V’s application for immigration fails (which can take as long as 2 years) he is always at liberty to do some other jobs such as administrative work, working in a flying school or even building houses in his father’s construction company but that means his income would be substantially reduced. He is willing to sacrifice his career if that is necessary. He even somewhat accepted that his application does not really depend upon whether the job offered by Airline N remained open or not. His primary goal is to give best possible care to the boys. 80.To this, M rightly pointed out that there is no airport near to the city where he intends to settle (to which F did not deny) and other jobs that he mentioned could entail long working hours (to which F also did not deny). F also contradicted himself in saying that the new job with Airline N is a career advancement and this is the basis of his application. I agree. 81.As the trial moved on, probably due to potential difficulty that F realised he may face if V for any reason drops out of the picture, the issue of whether he could employ a domestic helper in Denmark was brought up. F said he can. M doubts very much whether F could afford a domestic helper given that there is a minimum wage requirement there. F would have to pay as much as HK$24,800 per month. This is a high proportion of money considering F’s salary would merely be HK$68,000 gross (or HK$50,000 net) plus he has to buy a car and rent a house. The only exception where the minimum wage requirement would not apply is the employment of old-care workers but they could only work 25 hours per week. To this, F maintains that, same as in Hong Kong, the minimum wage requirement does not apply to domestic helper in Denmark. This enables him to employ one. 82.This issue was first brought up on the 3rd day of the trial (ie 23 January 2018) when F was being cross-examined by M. For this reason, there was no supporting evidence or information adduced by F in that regard. In order to buttress his case, when F was cross-examining M on 30 January 2018, he read out from some information that he downloaded from the Danish authorities the night before (ie 29 January 2018) to say that he would have to pay DKK4,100 (about HK$5,300) only for a live-in domestic helper. 83.As I see it, whatever the situation this would not help F. First, this is not F’s proposal at all. Even when he was in his closing submissions, F continued to maintain that he and V would be the primary carers for the boys. Second, if the issue of hiring a domestic helper in place of V was incidentally brought up in the middle of the trial and F had to adduce some evidence he downloaded from the web the night before, I fail to see how this could be a well-researched and investigated proposal. For these reasons, I decline to consider this option. The Paternal Grandfather and his Wife 84.Ms Lo, in evidence, informed the court that she met the paternal grandfather and his wife when they came to Hong Kong in January this year during one of her home visits. Ms Lo observed that the grandfather’s relationship with the boys was spontaneous and harmonious. The grandfather gave her positive assurance that he and his wife are willing to help in taking care of the children. The grandfather explained to Ms Lo that he is self-employed in a small company and so has flexible working hours. He could arrange himself in taking care of the boys. Nevertheless, Ms Lo agreed that the inquiry was undertaken and the assurance was given on the basis and understanding that V is F’s partner and is one of the 2 main care givers of the boys. She acknowledged that she did not explore the extent of their commitment in taking care of the boys, specifically how much time they are willing and able to contribute. In this respect, it has to be borne in mind that there is about an hour’s travelling distance between the grandfather’s home and the city where F intends to settle. If for whatever reason V is not joining the family and given that F has to work for a living, the question is, in that event, whether the grandfather and his wife would be willing and, more importantly, be able to take up the role in place of V. As a matter of fact, Ms Lo accepted that her report was prepared on the very foundation that V and F have become a couple and that they would go to Denmark with the boys as a family. This is on that very foundation that she gave her support to F’s relocation proposal. Free-time School Assistants 85.F mentioned that as part of the after-school support programme, there will be free-time school assistants to look after the boys. This has not been seriously contested. Yet, it is certainly not F’s suggestion that the service of the school assistants could be for 24 hours when F is away for a couple of days. Living Condition 86.F said the family could have a better living environment in Denmark because right now the 4 persons are being cramped in a 2 bed-room apartment. M’s response is that it is F’s own choice. F could have rented a more spacious accommodation in Hong Kong. Yet, he chooses to spend only half of his housing allowance in renting a 2-bedroom apartment and pocket the other half rather than renting a larger accommodation. M also mentioned that contrary to what F claimed about the natural environment, Denmark has pollution of its own. 87.I accept that from the evidence adduced by F the shopping areas and the school are only of walking or cycling distance and the initial rented accommodation in Silkeborg is only about 5 to 6 km away from the school. To that extent, the plan is practical. I also accept what F said about the education system, the health and dental care system and the natural environment in Denmark. School 88.The boys clearly have preference to the school in Sejs over the school they are now attending. I am also fully aware of the fact that B had for a while been subject to bullying in school. F also mentioned that there is no appropriate secondary school for the boys but he has not gone so far as to say that this is determinative of his decision to relocate. In this regard, I note he has not given any substantive response to M’s suggestion that there is an appropriate secondary school in the same district where the boys are living. 89.With the finding that I have come to regarding the alleged relationship between F and V, the very foundation of F’s childcare plan vanished. The only conclusion I could possibly come to is that the plan is unrealistic. It is so because it is a fake one. That is one of the reasons why the Official Solicitor has changed his stance. This is also the reason why I rejected F’s application for Mr Lee to meet the boys again in order to assess their views. If the application is allowed, same as F’s present application, the meeting would be founding on a false premise; and the boys would be given a false hope, hence hurting them further. It was also for the same reason that I rejected F’s application to adduce the grandfather’s written statement. In addition to this, given that F’s case has always been that he and V would be the main carers of the boys and that F had already been given ample time to adduce his father’s evidence and to arrange him to give evidence, I did not find further adjournment of the trial warranted. 90.In coming to this conclusion, I do bear in mind the observation made by Thorpe LJ in Re F & H (Children) (Relocation) [2008] 2 FLR 1669, para 9, that the bar as to the practicalities that must be jumped by the relocation application is set at a wide variety of heights depending on the facts and circumstances of the case: the bar is particularly low when the primary care is returning to the completely familiar home life after a brief absence.: See also SMM v TWM (Child: Relocation), supra, [32(c)]. I acknowledge this must be the correct approach. Nevertheless, however low the bar may be, it is not to be set at will by F or on an illusory foundation. 91.As said by Thorpe LJ in Payne v Payne, supra, and approved by our Court of Appeal in SMM v TWM (Child: Relocation), supra, if the application fails either of the tests of (1) whether the application is genuine or (2) whether the application is realistic, refusal will inevitably follow. At the same time, I do bear in mind that what is ultimately determinative of this application is the best interests of the boys. Their welfare is the paramount consideration. With this guidance, F’s application appears to have little hope. I believe this could never be to the boys’ interests if they are being left ‘home alone’ for a few days at a time when their father is on duty. (3) Is the mother’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? 92.M exerted full strength attacking F’s application on all fronts. I consider that some of her challenges such as those on the healthcare and dental system and the education system are unnecessary and unreasonable. That said, she has rightly challenged the genuineness of F’s relationship with V. As a matter of fact, she raised doubts as to whether V could legally obtain the necessary visa on the very first callover hearing of 17 July 2018. Most importantly, I believe her opposition is mainly motivated by her fear of losing any hope of re-establishing her ties with the boys if they are allowed to go. (4) What would be the extent of the detriment to the mother and her future relationship with the boys were the application granted? 93.The issue of re-building the boys’ relationship with their mother is especially close to my heart. It is common ground that M keeps on sending the boys 2 emails a week according to my order of 23 February 2017. I accept there was no filter and the boys received all the emails. 94.L admitted to Mr Lee that he had not read all the emails. He would share the emails with B only if the latter wanted to. 95.It is not disputed that B did not read M’s emails at all though he knew the contents of some of the emails from L. He mentioned to Mr Lee of Official Solicitor that he would keep those emails and might read them when he becomes a teenager. 96.At the time of trial, it transpired that L had written 9 emails and B had written one to M. According to M, B’s reply was only one stroke of sentence thanking her for the Christmas gift. I agree with Ms Lo from the fact that L had the motivation to share the emails with B and B was willing to listen to, it shows that at the very least, the boys were interested in some of M’s emails. Anyway, in evidence, M accepted that there were responses to her emails even though according to the access order the boys were not obliged to give their replies. 97.Despite M’s dissatisfaction over the low response from the boys, I have no doubt that there has been some progress in the mending of the mother-and-child relationship. This progress is by no means significant and the relationship remains to be very feeble. From the legal opinion adduced by F, ‘mirror orders’ are not available in the Danish court system and how a Hong Kong access order could be recognised and enforced in that jurisdiction is not entirely clear. Added to this is the absence of an International Social Investigation Report that may inform the court of the relevant services available for the boys. My worry is that in the absence of any monitoring mechanism what little progress has been gained would be lost forever. (5) To what extent would that detriment be offset by extension of the children’s relationships with the paternal family and homeland? 98.The boys have no extended family from either paternal or maternal side in Hong Kong. If they move to Denmark, their paternal grandparents would be around and close by to give them love. There is evidence from Ms Lo in this regard. I accept that the extension of the boys’ relationship with the paternal family and homeland can to some extent offset the detriment to the mother-children relationship. (6) What would be the impact on the father of a refusal of his realistic proposal? 99.Decided authorities have consistently attached importance to the emotional and psychological wellbeing of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor: Payne v Payne, supra, [41]. This guidance must be read in the light of there being a realistic proposal in respect of which I have already given my ruling. F emphasized that if his relocation application is refused, he would have to give up his employment in Hong Kong because he cannot fly the cargo roster and take care of the boys at the same time. Be that as it may, the objective fact is that he is still flying as usual. On any view, this situation has been for quite some time (probably for over a year) but F continued to have received commendable remarks from Ms Lo that he has been giving good care of the boys. If his application is refused, I believe he may not be devastating though he would certainly be unhappy and miserable. Overall what would be in the best interests of the boys? 100.By now the parties have been living in Hong Kong for 10 years. F came here initially for employment. He chose to come to Hong Kong to pursue a flying career (and M, as his wife, followed suit at that time). I accept there is no evidence that he has had any plan of making Hong Kong his permanent home. Now he wishes to return to his home country. He considers that career-wise, he should have a brighter future by joining Airline N. Though there is no suggestion that he previously lived in Sejs, Denmark is no doubt a place where he was brought up and is most familiar with. 101.I accept that the boys have expressed very positively about going to Denmark. However, given that L came to Hong Kong when he was 14 months old and B was born here, it is rather difficult to understand why the boys said they wanted to go to Denmark because their best friends are there when in actuality they were spending only a couple of weeks in Denmark each year. 102.I have no doubt that given F’s unrealistic proposal, even when the other factors are considered, his application for relocation ought to be dismissed. It is simply not in the boys’ interest for them to face the risk that they may have to take care of themselves when their father is on duty. Access 103.I now turn the issue of whether there should be any change in the access arrangement. 104.As said above, there has been some progress in mending the mother-and-child relationship since the access order of 23 February 2017. On the top of that, it appears that the boys have been maintaining a congenial relationship with M’s sisters. There were email communications between them. The maternal grandmother has also been sending emails to the boys though according to M, there was only one reply from the boys. The grandmother and M’s sisters visited the boys in 2017. 105.M tried to rely on some video footages and photographs to say that the boys were happy to be with her and that F did not facilitate face-to-face access. I agree with Mr Lee that these evidence are not relevant since they were all taken prior to the Custody Judgment. 106.As I said in paragraph 107 of the Custody Judgment,
107.I must say regrettably I have not seen the sign yet. M has not contacted the government clinical psychologist since the Custody Judgment. She maintains that she has sought help from a life-coach and have had some sessions with a counsellor. She also sought help from a psychologist friend who gave her insights as a friend but not in any professional capacity; and her current psychological state is good. She has developed as a person. She is happy to receive any further assessment as may be ordered by the court. These might have been true. Yet, I do take note that, in evidence, she still maintained that she did not abuse the children and she had not thought of giving an apology to them. Indeed, she commented that psychotherapy is not the only route that works for her. 108.On the evidence before me, it is quite clear that the boys are not ready to meet their mother face-to-face now. Nor do I consider FaceTime access is commendable in the meantime. 109.There is however one point that I agree with M. I was referred to some of the school updates in trial. I accept M’s complaint that F’s updates did not contain the bullying that B faced when he started his new school. I would like to see F providing more substance and materials. This in turn would help M opening up topics to chat with the boys. 110.I have no doubt that the progress has not matured to a point where physical access is possible. The supervision by the Social Welfare Officer is for 24 months. I gave this period for a purpose – email access is a slow burner. It takes time to see the progress. As I see it, it is still too early to review the access arrangement. I am not prepared to give any order varying the access. Costs 111.While costs are in the discretion of the court, the general principles as regards costs in children cases are that there should be no order as to costs save when one party has been unreasonable or reprehensible in the conduct of the litigation, as parents should not be deterred from putting cases concerning children before the courts: R v R (Costs and Child Case) [1997] 2 FLR 95, and Re G (Costs: Child Case) [1999] 2 FLR 250, H v H, CACV 42/2002 (date of judgment: 6 September 2002). 112.Behaviour beyond the band of what is reasonable may result in an order for costs against that party. In Keller v Keller and Legal Aid Board [1995] 1 FLR 259 Wilson J (as he then was) said at 265:
113.When assessing whether a party’s conduct has been unreasonable, what should be considered is unreasonableness in the attitude to the litigation. Hale J (as she then was) made the celebrated remark in R v R (Costs: Child Case) [1997] 2 FLR 95 at 98B that parents are expected to be unreasonable:
114.In Re T (Care Proceedings: Costs) [2012] UKSC 36, [2012] 1 WLR 2281, Lord Phillips PSC restated that “the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice”: [44]. 115.In Re S (A Child) [2015] UKSC 20, [2015] 1 WLR 1631, Lady Hale DPSC (as she then was) said in [26] that costs order should only be made in unusual circumstances:
116.In the present case, F’s childcare plan for the purpose of his relocation application is fabricated on the basis that he has had an intimate relationship with V. This is nothing but a reprehensible litigation conduct. The boys should not have been given a false hope and been put through the strains of being subject to interviews and litigation. All these could have been avoided if it had not been for F’s unreasonable behaviour. I have no doubt that F should be penalized with costs. Orders 117.For the above reasons, it is my definite view that the granting of relocation would be incompatible with the welfare of the boys. I give an order that the petitioner’s application dated 17 July 2017 for permanent relocation be dismissed. 118.I also give an order nisi that the petitioner is to pay the respondent costs of this application, including all costs reserved and the respondent’s costs between herself and the Official Solicitor; such costs to be assessed by way of summary assessment. I will give the necessary directions for summary assessment in the next First Appointment hearing. 119.Since the Official Solicitor has indicated that he is not seeking costs, I give an order that there be no order as to costs between the Official Solicitor and the parties. This is by way of an order nisi. Conclusion, Progress Report and First Appointment Hearing 120.Before the trial, F was in possession of almost every ingredient necessary for an outcome in his favour. He had the support, or perhaps even the sympathy, of the professionals involved but he lacked the most essential ingredient – the veracity of his plan. As soon as he wrote down his line, he had the judgment sealed against him. I have no doubt that the boys wish to move to Denmark. It may be because they genuinely want to settle there or it is out of their total support to their father. With the conclusion that I have come to the reason is of no consequence now. Yet, I have the re-establishment of the mother-and-child relationship very much to the forefront of my mind. The boys should understand that their father’s application is refused not because of the mother is standing in their way. I am conscious that letting the boys know of the reason is a delicate exercise such that on the one hand, the father’s image in their minds would not be tarnished but on the other, they would not make the mother a scapegoat. In this regard, the burden falls squarely on F. I would urge F to do his utmost most to save the situation exacerbated by him. Where necessary, he should seek assistance from the relevant professionals. 121.By the order dated 23 February 2017, the access is supervised for a period of 24 months. I direct that a progress report be submitted to court one month before the expiry of the period. 122.I have no doubt that the parties need to have a closure of their financial disputes as soon as possible. A hearing is fixed to be heard on 24 July 2018, at 9:30 am, at Court no. 9 (with 30 minutes reserved) for the purpose of First Appointment and for directions on the summary assessment of costs. The parties are to file and exchange their up-dated Form E on or before 26 June 2018. 123.The Official Solicitor do draw up, file and serve this Order. 124.Finally, I would like to thank Mr Lee of the Official Solicitor for his assistance.
Mr JTMW, the petitioner, appeared in person Ms NAV, the respondent, appeared in person Mr Lee Tak-lei, Ted, solicitor, appeared for the Official Solicitor |
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