Vk v. Safg

FCMC 16220 / 2012

[2018] HKFC 126

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16220 OF 2012

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 2 May 2018

Date of written closing submissions: 15 May 2018 (Filed by the Petitioner father on the 15 May 2018. Extension of time given to the Respondent mother to the 15 June 2018 – a document entitled Final Statement 2018 was filed by her on that day)

Date of Judgment: 2 August 2018

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J U D G M E N T
(Relocation, variation of care and control and access)

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Preliminary Note

1.It is unusual for the Family Court to deliver long substantive judgments orally. In part this is because of ongoing pressures on the courts diary. In this instance however I have decided that it is necessary. Consequently, although I intend to read out most (but not all) of the judgment verbatim, I have also asked my clerk to provide you with copies of the same later today. 

Introduction

2.By way of introduction, this is the Petitioner father’s application for leave to relocate to Switzerland with the only child of the family, a little girl FJ, who will be 7 years old in September. On that premise he also asks that care and control vest in him with reasonable access to the mother. There is already an order for joint custody in place and he does not ask to vary that order.

Summary

3.In summary I intend to make an order in the terms sought by the father. This is because:

a) I now have significant concerns about the mother’s mental health/behaviours;

b) The evidence currently before the court is that FJ (and most probably the mother also) does not have a valid visa to reside in Hong Kong;

c) It seems very unlikely that the mother is currently working or that she is able to financially support FJ adequately. (As will be seen below the mother has not produced a completed Financial Statement Form E for the court’s perusal. The only document filed was post trial and that was an incomplete document. There were only very limited financial documents attached to it);

d) I accept that the mother has embarked on a campaign designed to significantly undermine the relationship between father and daughter;

e) It is clear from the Clinical Psychologists report that although the father is not the caretaking parent, that FJ does have an attached relationship with him. In contrast there are concerns about the quality of her relationship with the mother;

f) The mother’s domestic helper, who was also a significant caretaking adult in FJ’s life, is said to have recently returned to the Philippines. If true it is not clear what impact this will have on FJ, given the current circumstances;

I will elaborate on these points in the body of the judgment.

4.This is an application by the father, who is a non caretaking parent, for leave to relocate to Switzerland and to that extent it is an unusual application. However, it is made against a disturbing background and where, on the father’s case, it is becoming increasingly untenable for the child (and indeed the mother) to remain in Hong Kong longer term.

The mother’s behaviour/mental health

5.The mother’s behaviour has also been strange, to the point that the court is now concerned about her mental health. She has consistently failed to comply with any court orders and consequently she has not filed any substantive affirmations. It is also of note that she has not filed a complete and updated Form E. Oddly she did file a partial Form E after the trial had concluded.  On occasions she attends court and on others she does not. She has told the court that it does not have any jurisdiction over her as she is a Swiss national and on another occasion that she has been advised not to co operate. A constant refrain has been what she considers to be a lack of maintenance.  However, she has chosen not to file any application for a variation, despite the court pointing out that she would need to do so, if she wished to pursue that line of argument. Leave has been given to the father to issue contempt proceedings and on the 11 May 2017 a summons to that effect was filed in court. The summons was adjourned until after the conclusion of this trial.  

FJ’s visa

6.The mother confirmed in the witness box that FJ does not currently have a valid visa to remain in Hong Kong. The mother may also be in the same predicament. This is a situation that has occurred in the past and there is a history of the mother failing to obtain a visa for both herself and FJ. There are also issues surrounding FJ’s schooling and in part this may be because it is not possible to enrol in a school in Hong Kong unless you have a valid visa. A visitor’s visa is generally not considered to be sufficient. FJ is currently attending the C School. It is of note that despite the order for joint custody that she was enrolled in this school, without the father’s consent. Previously she attended a private kindergarten and the father has been told that there are outstanding fees owed to that school. It seems that there were periods of time when she was not attending any kindergarten. The father is concerned that there may also be some fees owed to the C School. The parents are not Catholic and the father has said that he does not consent to FJ being baptized at the present time.

Financial support for FJ

7.As will be seen below the mother’s evidence in relation to her current work situation is confused. However, it seems likely that she is not working and that her financial situation is grave. She also broke her shoulder last year and that is also likely to have had an adverse impact on her ability to earn a living. It is not clear how she is able to support herself financially or how she is able to properly provide for FJ. The father currently pays child maintenance of HK$26,500 per month.

Access   

8.The father has also experienced extreme difficulty in exercising his right to access. He relocated back to Switzerland in August 2014 and has had to make 7 applications to the court in order to enforce any form of contact with his daughter. Despite the court’s intervention it has proved virtually impossible for him to have remote access by Skype or any other similar means.

FJ’s relationship with her parents

9.As will be seen in paragraphs 32 and 33 below, there are concerns about the quality of FJ’s relationship with her mother. In contrast and notwithstanding the fact that she currently lives with her mother and not her father, FJ appears to have a close and attached relationship with her father.

What then are the main issues to be considered?

10.It is then against this broad background that the court is asked to determine the following issues:

Should permission be given for FJ to relocate to Switzerland with her father?

In the event that permission is given what orders should the court make for care and control and access?

Should any other orders be made?

Overall what does the court consider to be in the best interests of FJ?   

Background to the marriage

11.The father sets out his own background and that of the marriage at paragraphs 38 – 45 of his 4^th affirmation dated the 26 October 2016. Reference should be made to those paragraphs as necessary. In summary he confirms that this was a short and turbulent marriage between himself, an Austrian national and the wife, a Swiss national, that produced one child, FJ, who was born in Hong Kong, which is where the parties were then residing. FJ has dual Austrian/Swiss nationality. The parties formally separated in July 2012 and in or around that time the father also initiated Wardship proceedings after the mother left him a message that FJ had “flown out of the country”. This proved to be untrue, but is perhaps indicative of the very high level of conflict that has pervaded these proceedings from the very beginning.

12.It is the husband’s case that notwithstanding the turbulent nature of the marriage that nonetheless he was able to play an active part in his daughter’s life, taking time off work when she was born and being able to see her most days when he was in Hong Kong.

13.Eventually the parties were able to come to terms on finances and the arrangements for FJ, with the assistance of a mediator, and on the 27 September 2013 they entered into two consent summonses. The orders are both dated the 2 October 2013.

14.Problems ensued however, including issues with respect to the mother and FJ’s visa status, which was eventually resolved when the father agreed to continue to sponsor both of them as his dependants.

15.However, in August 2014 the father relocated back to Switzerland after securing a job there, believing that it was very likely that the mother would also relocate back to Switzerland with FJ in due course. It is not clear from the papers when the dependant’s visas came to an end.

16.Problems continued with the mother seemingly obstructing all forms of access, necessitating frequent court intervention. The father says that a pattern eventually emerged as follows:

i.   The Respondent would refuse or fail to comply with an Order and/or a problem would emerge;

ii.   The Petitioner would try to resolve things amicably through direct communication with the respondent as well as inter-solicitors correspondence;

iii.   The respondent would refuse to communicate and/or cooperate;

iv.   The Petitioner would issue a Summons;

v.   The Respondent would send the Petitioner angry e-mails in the lead-up to the scheduled hearing and/or continue to evade the issues at hand;

vi.   At the eleventh hour, [the husband’s solicitors] my firm would receive a letter or phone call from the respondent’s solicitors indicating that the Respondent would agree to an Order in terms of the Petitioner’s summons after all;

vii.   A Consent Summons would be hurriedly drafted and an Order in terms made;

viii.   Repeat steps (i) to (vii) above.

The Law

Relocation

17.I have set out the law in the body of the judgment. I do not intend to read it out in full here, but reference should be made to paragraphs 18 – 21 of the judgment as appropriate. I should add that since the main body of this judgment was written, the Court of Appeal have handed down a leave to appeal judgment (ZJ v XWN, CAMP 67/2018, [2018 HKCA 436], in which reference is made to the case law on relocations. It cites with approval the recent developments in the UK which are set out in part below, namely that the protocol described in Payne should be regarded as guidance only.  

18.Reference should also be made to a recent case on relocation namely W,Y v L, KP (FCMP 4636/2015, 5 July 2016) where I set out what appears to me to be the current law on the subject as follows:

22. ... However as things stand at present in Hong Kong this court is bound by the Court of Appeal decision in SMM v TWM (Child: Relocation) [2010] 4 HKLRD. It is of note that in the recent Relocation case determined by my brother Judge, HH Judge Bruno Chan (IDC v SSA (FCMP 158/2011, 17 July 2015) reference was made to this decision in the following terms:

The Legal Principles

20. The applicable principles governing relocation application were based on the English Court of Appeal case of Payne v Payne [2001] Fam 473 and adopted by our Court of Appeal in SMM v TWM [2010] HKFLR 308, [2010] HKLRD 37 CA where Cheung JA very helpfully summarised them at §21 of his judgement as follows:

“1) The distinct features of a relocation application are first, the applicant is invariably the mother and the primary carer; second, generally the motivation for the move arises out of her remarriage or her urge to return home; and third, the father’s opposition is commonly founded on a resultant reduction in contact and influence. (per Thorpe LJ at paragraph 27)

2) The two proportions that have been consistently applied by the Courts are, first, the welfare of the child is the paramount consideration; and second, refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children. (per Thorpe LJ at paragraph 26)

3) The application should be approached as follows:

(1) 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? Then ask, is the mother’s application realistic, i.e. founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.

(2) If, however, the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of child’s relationships with the maternal family and homeland?

(3) 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?

(4) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate. (per Thorpe LJ at paragraph 40)

4) In short, the relevant factors are:

(1) The welfare of the child is always paramount.

(2) There is no presumption created by section 13(1)(b) of the English Children Act 1989 in favour of the applicant parent.

(3) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(4) Consequently the proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(5) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(6) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(7)  The opportunity for continuing contact between the child and the parent left behind may be very significant.  (per Butler-Sloss P at paragraph 85)”

21. It is under these principles and guidance that I shall now approach the Mother’s application, starting first to consider whether it is genuine in the sense that it is not motivated by some selfish desire to exclude the Father from Z’s life.

   23. I should add that I accept that, as in the United Kingdom, this approach should be regarded as a guide to the court as opposed to a legal principle which brooks no opposition. Much of the initial criticism of Payne in K v K [2011] EWCA Civ 793 was based on this concern. To that end I think it is worth repeating the following observations made by Lord Justice Moore-Bick in K v K:

85.   Finally, it is necessary to refer briefly to the decision of this court in Re W (Children) [2011] EWCA Civ 345, in which Sir Nicholas Wall P. re-emphasised that in relocation cases judges must apply the criteria and guidance set out in Payne v Payne.  Elias and Lloyd L.JJ. agreed, but it is interesting to see a note of caution appearing in the comment of Elias L.J. that “Payne is binding, to the extent at least that guiding principles can be said to bind a court.”

86.   I accept, of course, that the decision in Payne v Payne is binding on this court, as it is on all courts apart from the Supreme Court, but it is binding in the true sense only for its ratio decidendi.  Nonetheless, I would also accept that where this court gives guidance on the proper approach to take in resolving any particular kind of dispute, judges at all levels must pay heed to that guidance and depart from it only after careful deliberation and when it is clear that the particular circumstances of the case require them to do so in order to give effect to fundamental principles.  I am conscious that any views I express on this subject will be seen as coming from one who has little familiarity with family law and practice.  Nonetheless, having considered Payne v Payne itself and the authorities in which it has been discussed, I cannot help thinking that the controversy which now surrounds it is the result of a failure to distinguish clearly between legal principle and guidance.  In my view Wilson L.J. was, with respect, quite right to warn against endorsing a parody of the decision.  As I read it, the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance.  Such difficulty as has arisen is the result of treating that guidance as if it contained principles of law from which no departure is permitted.  Guidance of the kind provided in Payne v Payne is, of course, very valuable both in ensuring that judges identify what are likely to be the most important factors to be taken into account and the weight that should generally be attached to them.  It also plays a valuable role in promoting consistency in decision-making.  However, the circumstances in which these difficult decisions have to be made vary infinitely and the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child.  As Hedley J said in Re Y, the welfare of the child overbears all other considerations, however powerful and reasonable they may be.  I do not think that the court in Payne v Payne intended to suggest otherwise.

24. This sentiment was accepted by Lady Justice Black [as she then was] in what has become an often quoted passage from the same case:

140.    Looking back over what is now nearly 40 years of jurisprudence in this area of family law, I have come to a number of conclusions.  I am indebted to my Lord, Moore-Bick LJ for his judgment which, like that of Thorpe LJ, I have read in draft, and in particular for its analysis in paragraph 85 of the approach to be taken to Payne in the light of the conventional treatment of principle and guidance.

141.    The first point that is quite clear is that, as I have said already, the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration.  Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.

With respect I could not agree more.

...

27. Consequently although the ongoing debate in the United Kingdom is interesting it seems to me that in a case such as this, I am obliged to continue to follow the guidance provided by SMM v TWM, which in turn relies on Payne, pending further clarification by either our own Court of Appeal and/or Court of Final Appeal. However, I accept that underpinning all of this is one, and only one, fundamental legal principle namely that in coming to a decision on relocation and CT’s [here FJ’s] practical care, his [her] best interests must be the court’s paramount concern. I will though largely rely on the guidance provided by SMM v TWMin coming to that decision.

19.I shall approach this case in the same manner, namely I shall consider the guiding principles in Payne when considering what is in the best interests of FJ. In doing so consideration will need to be given to the fact that this is an application made by a non caretaking parent and therefore the guiding principles will need to be adapted accordingly in any event.

Custody, care and control and access

20.Consideration shall also be given to the law on children generally, which can be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. Section 19 of the MPPO states as follows:

(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(Amended 69 of 1997 s. 28)

(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

21.The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

(1)  In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court -

(i) 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 wishes 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;

Discussion

22.I shall now turn to consider the issues, the law and the parties evidence as set out in their affidavits and as given orally by them during the hearing.  I also heard evidence from the Social Welfare Officer Ms W, who produced two reports dated the 17 March 2017 and the 17 November 2017 and the Clinical Psychologist Ms L who produced a psychological report dated the 9 April 2018. The court has also been assisted by an International Social Services report dated the 17 March 2017.  

The mother’s case

23.The mother has not provided a Statement of Proposals, nor, as indicated above, has she filed any substantive affirmation in support of her position or in answer to the father’s case. However, in essence she seems to be saying that as FJ’s primary care taking parent, FJ cannot be taken away from her. In her incomplete Form E, dated the 22 June 2018 (filed post-trial) she says interestingly that she is seeking the following orders:

Custody to get our Visas.

Another Apartment near the C School in Sheung Wan.

A Helper my Daughter can get attached for a few years.

The father’s case

24.The father’s original Open Proposals are attached to this judgment at Appendix II. Given the mother’s stance it seems that we concerned with the second scenario i.e. if FJ relocates with the father and the mother remains in Hong Kong or relocates to a different part of Switzerland (or indeed relocates elsewhere) what arrangements should be put in place for FJ’s care. In that scenario the father originally proposed as follows:

FJ relocates, and the Mother stays in Hong Kong or moves to a different parts of Switzerland

Joint custody Care and control to the Father.

FJ Reside with the Father at Doeltschihalde XX, XXX, Zurich, Switzerland. The Mother shall have visiting and/or staying access to FJ during the Mother’s visits to Zurich, provided that the mothers provides the Father with her access proposals in writing no less than 2 weeks’ before her intended arrival date in Zurich.  The Mother’s proposals must include the intended dates and times at which the Mother would like to exercise access. The Father shall respond to the Mother’s proposals within 48 hours. If the Mother intends to exercise staying access during her visit to Zurich, she must provide the full address of the accommodation at which FJ would be residing. The Mother shall have frequent and flexible remote access to FJ via Skype and/or telephone in the Mother’s absence from Zurich. The Father will keep the Mother informed of all important matters concerning the child’s wellbeing, including but not limited to her education and health.

Upon FJ’s relocation to Zurich no maintenance be payable by the Father to the Mother in respect FJ. Mirror order to be registered in Switzerland. Upon FJ’s relocation to Zurich, the Father to arrange for FJ’s registration with his local authority and for FJ to enrol at a public school close to the Father’s home. Upon an Order being made for FJ’s permanent relocation to Zurich, the Mother shall hand over all of FJ’s passports and travel documents to the Father. The Father is prepared to pay for the Mother’s return flights / train tickets (economy class) for one visit to Zurich per calendar year.  The Father will arrange to book and pay for proposed flights / train ticket directly.

The evidence from the experts

The reports

Social Welfare Reports

25.Recommendations made to the court in social welfare reports, although not binding are considered persuasive. In the event that the recommendations are not followed then reasons should be given for that in the judgment. In this instance I do not accept the recommendations made by Ms W and reasons for that are set out below.

26.In the first Social Welfare Report dated the 17 March 2017 Ms W recommended as follows:

Remarks and Recommendations

30. FJ was the only child of her parents who have separated for five years.  Ms G took care of FJ with the assistance of a domestic helper in Hong Kong. Mr K, who returned to Switzerland in 2014 maintained connections with FJ through visiting access.  Her relationship with both parents was harmonious.  As reflected during present investigation, the parents showed consent to having joint custody over FJ.  In order for FJ to be benefited from both the parents’ view throughout her upbringing, the Investigating Officer thus recommend joint custody over the child. [It is of note that joint custody is not in dispute. The parties have joint custody by virtue of the order dated the 2 October 2013 and the father has not applied to vary that order]  

31. The mother has been the primary carer of FJ for five years since the parents’ separation.  From the available information, the track record of care condition seemed to have no specific problem. Subjectively speaking, FJ explicitly voiced out her preference to live in Hong Kong.  She expressed that she would first consider turning to her mother when she had difficulties.  Collateral information from the school and domestic helper also indicated her mother’s adequacy.  Considering the benefit of continuity of care, the track record of care condition and wish of the child, the Investigating Officer recommended the care and control to be granted to the mother.  Though the father’s relocation plan was well-reached and prepared and it was not driven by some selfish desire, it would not be beneficial for FJ uproot her stable living in Hong Kong at the present stage.  In this connection, the relocation plan was not supported.

27.It seems from the report that Ms W was under the impression that the mother had a stable income with a company called F Foundation which is said to have been established by her father i.e. the maternal Grandfather. Ms W believed that the mother was financially self sufficient, with the assistance of the Petitioner’s maintenance and that she had no loan or debts. This however, has not been substantiated by the evidence. The mother’s evidence in the witness box was quite confused, but as will be seen in paragraph 44 below, where I refer to the father’s counsel summary of the mother’s evidence, the mother did ultimately confirm that she does not currently have an income. Reference was also made to the mother’s domestic helper. It is of note that during the trial, the domestic helper was said to be leaving the mother’s employ in August. This has since been confirmed in a letter from the father’s solicitors dated the 12 July 2018. It can also be inferred from the statement made by the mother in her Form E as set out in paragraph 23 above. However, in a subsequent letter to the court dated the 19 July 2018 the mother says that it was not correct that the domestic helper has left Hong Kong.

28.In the updated Social Welfare Report dated the 17 November 2017, Ms W again did not support the relocation saying inter alia that:

33. When considering the above thing on the relocation plan, the Investigating Officer opined that more weights had to be given to the perspective of the extent of the adverse impact to the mother and her future relationship with the child if the application was granted.  FJ was still in her childhood who needed attachment to a carer with whom she felt safe.  Since her parents’ separation, her mother became her primary carer.  This present social investigation showed the close mother-child relationship was stable and attached.  FJ explicitly voiced out her preference to stay with the mother. Relocation would inevitably affect the mother-child relationship which could not be compensated by the paternal family relationship at the present stage. Though the father’s relocation plan was well-researched and it was not driven by some selfish desire, it would not be beneficial for FJ to uproot her stable living in Hong Kong at the present stage.  Hence, the Investigating Officer did not support the relocation plan at the present stage.

29.It is the father’s case that the mother must have exerted considerable pressure on FJ to state explicitly that she wished to remain with her mother in Hong Kong. Having seen the mother in the witness box I am inclined to accept what he says in this respect. It is also of note that FJ is still only 6 years old in any event and that her views cannot and should not be determinative in a situation like this. Ms W also places much weight on FJ’s attachment to her mother as the primary carer, whereas Ms L, the clinical psychologist questions the quality of that attachment and says that infact FJ seems closer to her father than her mother.

30.a)   In his closing submission counsel for the father also makes the following points with respect to Ms W’s evidence:

Father’s Closing

8. It is submitted that Ms W’s recommendations cannot be relied upon for the following reasons:

i)   Ms W accepted that she had not considered or observed the relationship between C (the Mother’s foreign-domestic worker).  It would appear from Ms L’s [the clinical psychologists] observations that Ms C played a crucial role in caring for FJ and that the “safety” and “stability” in her life was compensated by her relationship with Ms C.  She appears to have missed the signs noted by Ms L that here might be “unsatisfactory quality of the attachment” between the Mother and the Child:[SWR/73 §67].

I accept the criticisms made of Ms W in this respect. I also prefer the evidence of Ms L over Ms W.

b)   Although Ms W accepted that it was necessary “to maintain a regular relationship between the father and the child”, she appeared to have failed to consider the effect of almost complete obstruction of access between father and Child (although the Father appears to have mentioned this to her” [SWR/47 §11]).  She accepted that she did not discuss this with the Daughter.

I also agree that Ms W does not appear to have attached any weight to the problems experienced by the father in having any form of access to his daughter, notwithstanding the fact that evidence of this would have been found in the court file. I am of the view however that it may not have been appropriate to have discussed this directly with FJ in any event given her age.

c)   Ms W accepted that in some cases parents pressure children to give certain answers to social workers preparing SIRs.  She does not appear to have considered that possibility in preparing her report (she asserted that FJ’s answers were “frank”). In this regard, Ms W’s views were contradicted by those of Ms Lim [SWR/63 §29], and the statements of the Child to the Father (F 6^th at §§27, 37, 38, 43 [A/14/127 to 130].).  They also contradict the drawing that the Child drew, which showed her desire that the Mother take her to the Father [SWR/51 §24].

Again I prefer the evidence of Ms L over those of Ms W.

9.   the Mother asked no question of Ms W.

This is also noted.

Clinical Psychologists report

31.Ms L, the Clinical Psychologist made a number of very important and worrying observations including inter alia:

63. …She [the mother] remarked that FJ did not need the father – as the child had formed attachment to two of the mother’s male friends, whom she called “Daddy” and could serve as her fathers.  She also stated that FJ would not have any further contact with the father should she decide not to force the child.  As regards remote access, she expected to change the time to lunch hour when the child was at school, as present timeslot clashed with the time that the child would go for swimming.

32.In so far as the child’s relationship with each of the parents is concerned she added in her Conclusions and Recommendations:

66. Test results as well as FJ’s verbal and behavioural manifestation jointly reveals her very positive feeling towards the father. …  

67. FJ’s attitude towards the mother in the conjoint session oscillated between approach and avoidance.  Albeit they did talk, play and laugh together on-and-off, the child’s ongoing rejection of the mother’s words and physical contact was at the same time obvious.  She was unable to cite any concrete reason for her perceived positive incoming feelings from the mother in the Family Relations Test.  She might not regard the mother as a nurturant figure, as she indicates reservation in seeking assistance and support from the latter.  She also seems to felt overwhelmed by the mother’s detailed sharing of the negative parental dynamics.  All the signs suggest unsatisfactory quality of the attachment in the mother-child relationship. Moreover, they are incompatible with the mother’s self-perception as a very warm-hearted parent who always expresses her affection towards the child.  Such incompatibility could reflect the mother’s questionable emotional attunement to the child – which might arise from limited physical energy, insufficient quantity of positive parent-child interaction (including time or concrete behavioural indicators), inadequate psychological mindedness and / or interference by preoccupation with unresolved grievances related to parental dynamics.

68. FJ’s expressed attachment to the domestic helper and the Psychologist further reveals the complication of the mother-child relationship.  Test results and information from clinical interviews show that she perceives the helper as a very significant attachment figure, who plays the multiple roles of a major physical caretaker, company and nurturant figure.  She always refused to let the mother enter the playroom with her until in the company of the helper.  She also initiated to hold my hand (but not the mother’s) when we went to the playroom.  The above impresses me that she might regard the domestic helper and me (who is almost a stranger to her), instead of the mother, as someone who could render her sense of safety or company in a novel environment.

69. In view of the above, the quality of attachment in the father-child relationship is apparently better than that in the mother-child relationship, and FJ seems to perceive more emotional satisfaction in her interaction with him than that with the mother.

33.These are extremely important observations and I attach great weigh to what Ms L has said about FJ’s relationship with her parents and the mother’s domestic helper. I accept that FJ appears to have a close and loving relationship with her father notwithstanding the fact that he is not currently the caretaking parent. I also accept that her attachment to her mother is somewhat weak and that she has also historically had a close relationship with the domestic helper, who has possibly now left the mother’s employ. In summary I do not accept the recommendations made by Ms W, in part because they are undermined by the observations made by Ms L.    

International Social Services Report 

34.The ISS report dated the 17 March 2017 confirmed inter alia that

Living situation and arrangement for the move of F

Mr. K [the father] has a big, neat apartment with garden in a quiet neighbourhood.  The apartment has a big bedroom, a separate kitchen and a very big living – and dining room.  There are many families with children living in the housing estate and there’s a playground next to Mr. K. apartment.

Mr. K. has a lot of space to welcome his daughter. The apartment is furnished currently only for Mr. K modern and neat.  He planes to give his daughter a separate room.  Either they could move to a bigger apartment in the same house estate or he could build with the help of his architect brother a partition wall in the living room.  He talked about both possibilities with the landlord who agrees.

Schooling possibilities and childcare

Mr. K has informed himself that in his neighbourhood there are two schools that F could attend.  She could attend the first Kindergarten year.

Mr. K is a computer programmer and has flexible working hours (09:00 – 17:00).  He could do home office for two days a week. The other days he can bring her to a day-school/shelter and pick her up in the evening.  The aunt, sister-in-law and grandmother will help home during the holidays.

Long-term plans

Mr. K lives in Switzerland since he is 8 years old. He plans to stay in Switzerland and he likes his current job.  As Team manager, he has an interesting job with a good salary CHF10,600.00.

Work and financial situation

Mr. K is in a financial stable situation.  His salary is considered more than enough to ensure a comfortable life form him and his daughter.

Health

According to his own information Mr. K is healthy.

Should permission be given for FJ to relocate to Switzerland with her father?

35.As indicated above, this application is made by a father who is not currently the care taking parent. Consequently, one of the distinct features that under pin the Payne protocol namely that the applicant is the primary carer does not apply here. It is though true that the father wishes to “return home”, and indeed has done so, and that this is a feature in much the same way as in a classic relocation case. Counsel for the father has asked that I do not go through the Payne protocol in a mechanical way. Although I have some sympathy with that, nonetheless I do need to apply the law as far as I am able to given the circumstances. I accept though that in all of this my only real concern is in establishing what is in the best interests of FJ.

Is the father’s application genuine?

36.I accept that the father’s application is genuine, in the sense that he truly believes that it is in FJ’s best interest to relocate to Switzerland. I accept that, notwithstanding the almost chronic level of conflict that exists in this case, that his preference is not to exclude the mother from FJ’s life. Indeed, he has suggested that the mother also return to live in Switzerland where some of her extended family also live and where she could perhaps more easily find work. It is of note that the mother may be required to leave Hong Kong in any event, unless she is able to satisfactorily resolve her visa situation.

Is the father’s application realistic – i.e. founded on practical proposals both well researched and investigated?

37.I accept that the father’s plan is realistic. He has a nice flat where he and FJ can live, with appropriate schools in the area, which would be free of charge (or virtually free of charge), for a Swiss national. FJ would be able to attend such a school as she has dual Swiss and Austrian nationality. In addition, the father can work from home twice a week and he has looked into child care options including day care centres and Day-Mums for the periods of time when he is unable to directly care for FJ. His brother and sister also live nearby with their families and they would also be able to offer support as necessary. The father also has a good job and will be able to offer appropriate financial support for FJ.

Is the mother’s opposition motivated by genuine concern for FJ or is it driven by an ulterior motive?

38.In contrast the mother has not put forward any realistic long term plan for FJ. Without proper evidence to show otherwise I do not believe that the mother is able to properly provide for her daughter’s financial needs either in Hong Kong, or indeed elsewhere. I am also concerned that they both appear to be in Hong Kong without a visa. As indicated above I also have some concerns about the mother’s behaviours/mental health, given the extreme stance that she has taken with respect to these proceedings. I am not sure what is motivating the mother, but it does not appear to be genuine concern for her daughter.

39.I also accept that she has taken active measures to deliberately sabotage any contact between father and child by Skype or otherwise, in what appears to have been an active campaign of alienating type behaviour designed to destroy the relationship between father and child. She also appears to use access as a bargaining chip in return inter alia for additional financial support. It is of note that on the 3 March 2018 FJ managed to contact her father by herself by using Skype on a different device to her own. This showed remarkable initiative in a child so young. The father describes what happened next in his 7^th affirmation:

16.   We started to talk about Lego Toys again, but very quickly, the Respondent entered the room and attempted to wrestle the laptop away from FJ.  FJ ran away carrying the laptop to another room (which looked like a bathroom from what I could see) and closed the door behind her.  FJ and I then resumed talking, but it was not long before the Respondent entered the bathroom and again tried to wrestle the laptop out of FJ’s hands.

17.   Amidst the struggle, I heard the Respondent tell FJ that what she was doing is “really dangerous”.  FJ then started crying and should “No! Noooo! Mummy!” I told the Respondent (in German): “I don’t know what it is you think you’re doing here”, to which the Respondent replied (in German):”I will not allow her to talk to you again! Now you are going to pay your maintenance!” With no sign of FJ being able to return to the call anytime soon, there was little else I could but disconnect the call and hope that FJ would find another opportunity to call me again.

18.   Sadly, I have not been able to speak to FJ over Skype or the telephone since 3^rd March 2018.

What would be the extent of the detriment to the mother if the relocation were allowed?

40.If the mother does not have a visa to stay in Hong Kong then she may need to leave in any event. If she were living in Switzerland then she would be able to see FJ on a regular basis, or share in her day to day care in some way. In such circumstances it is hard to see that there would be any detriment to her and her relationship with FJ once the relocation is allowed. I accept that this may not be the case if she chooses to try to remain in Hong Kong or if she relocates elsewhere. Ultimately this is a matter for her. Given that she has chosen not to participate fully in this trial it is very difficult to ascertain her position or what her options might be.  

How would this be off-set by the extension of the child’s relationship with other family members?

41.It seems to me that FJ will benefit not only from being in close contact with her paternal Uncle and Aunt and her cousins, who will all live close by, but also by being in closer physical proximity with her extended maternal family, some of whom the father remains in contact with.

What would be the impact on either party in the event that the relocation is allowed or denied?

42.I accept that the mother will be devastated by this decision.  

The character of the parties

43.I should add that in all cases concerning children it is important for the judge hearing the case to see the parties in the witness box in order that she [or he] may form some view of them for her or himself. This case was no exception. 

The mother

44.In the closing submission of the father, counsel describes the mother’s behaviour in detail. I accept much of what he says namely that the mother was rude and openly contemptuous of the process. She admitted that she had repeatedly ignored court orders. She also appeared intent of frustrating the proceedings. In so far as her employment situation is concerned, Mr Marwah summarized part of the wife’s oral evidence as follows:   

viii) The Mother was also confronted about the inadequacies of the evidence she had filed:

(1) She accepted that the contract with M that she filed with her first affirmation [A/119] stated that she would begin working on 1 June 2017, but that she had not yet begun working by the date of filing (13 November 2017) [A/IIO]. The Mother then sought to blame this on her shoulder accident. When challenged by the Court that her letter of 30 November 2017 contradicted this, the Mother had no explanation.

(2) The Mother asserted that she is presently working for M.  However, she later appeared to equivocate: “I did the best for my company and the employment is still going.  I am super lucky to still have it. Even though I cannot work 100% for them.”  Later, she admitted that she was not in full time employment: “I cannot theoretically because of my shoulder.”  Finally, she admitted that she was not being paid by M (despite repeatedly asserting that her salary was presenting $20,000): “At the moment, nothing.”

(3) The Mother continued to assert that she was employed, although she admitted that there was a LinkedIn profile with her name, photograph and details (Exhibit P-I). The Mother admitted (or refused to deny) that the employment history in the profile reflected her own (e.g. the reference to G Limited; CS etc.). The Mother further admitted that this profile clearly states that she is currently “selbständig” (German for “self-employed” or “freelancer”). However, she denied that the profile belonged to her. This denial was plainly self-serving, and unbelievable given the available evidence about her employment status.

45.I accept this analysis of the mother’s evidence. Generally speaking, the mother’s presented as someone who may possibly have a mental health issue, given the extreme stance that she took with respect to nearly every aspect of the litigation process. It almost goes without saying that she was not at all credible.

The father

46.In contrast, although the mother accused the father of having a mental health problem, he appeared to be an intelligent and concerned parent who was doing everything within his power to ensure that his daughter was properly taken care of. I have no doubt that he has a loving and caring relationship with FJ, notwithstanding the extreme difficulties with contact. I am also of the view that he will be able to take on the role of being a full time care taking parent with no difficulty and that he will perform that task very well.

Conclusion on relocation

Overall what is in the best interests of FJ?

47.Overall it seems to me that it must be in the best interests of FJ to relocate to Switzerland with her father. In doing so I am comforted by the fact that she seems to have a very close and loving relationship with her father, with whom she is securely attached.   

What orders should the court make for custody, care and control and access?

48.It follows that the order vesting care and control to the mother and access to the father shall be varied, so that the father shall have care and control of FJ. Given that the mother’s plans are unclear I will simply grant reasonable access to the mother.

49.The father has not applied to vary the custody order, so the parties shall retain joint custody of FJ.     

Orders

50.Consequently, and for the avoidance of doubt I shall make the following orders:

i)   Leave is given for FJ to relocate to Switzerland with her father on Monday 6 August 2018. The child to be handed over to the Father on Monday morning at 10 a.m. at B Hotel. The documents referred to at viii) below plus any medical record to also be given to the Father;

ii)   Order 1 contained in the court order on custody dated the 2 October 2013 shall be varied to the extent that the Petitioner shall have care and control of FJ, a girl born on the XX September 2011, with reasonable access to the Respondent;

iii)   A month following the relocation, order 3 contained in the court order on ancillary relief dated the 2 October 2013 shall be discharged;

iv)   A mirror order shall be obtained in Switzerland by the Petitioner. The Petitioner shall apply for the same within the next 56 days;

v)   Liberty to apply on an urgent basis with respect to the implementation of this order;   

vi)   A penal notice shall also be endorsed;

vii)    The Petitioner’s application for contempt shall be adjourned to 17 August 2018 at 2:30 p.m. The Respondent do personally attend that hearing.

FURTHER IT IS DIRECTED THAT

viii)   The Respondent shall hand over FJ’s passport and other travel documents (if any) to the Petitioner forthwith;

xi)   In addition I shall accept the Petitioner’s undertakings as set out in paragraph 24 above, inter alia to provide an annual return flight/train ticket (economy class) to the Respondent for one visit to Zurich each calendar year. These undertakings should be included in the preamble of the court order.

Costs 

51.Although this is a child related matter, given the litigation conduct of the mother, I shall in the first instance adjourn the issue of costs to the same date as the call over for the committal proceedings i.e. on the 17 August 2018 at 2:30 p.m.  

Mr. Azan Marwah instructed by Withers appeared on behalf of the Petitioner

The Respondent appeared in person