Lr v. Lj

FCMC13480/2008

[2020]HKFC266

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 13480 OF 2008

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Ruling
( re. : Schooling )

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1.This is an application by the Petitioner Wife for leave for child of the family S, now age 14 to attend a boarding high school in Massachusetts USA (“PAA”) from January to June 2021.  The Summons was taken out on 14 August 2020.

2.For the purpose of this Ruling, I shall refer the Petitioner and the Respondent as Wife and Husband, and the child as S.

3.The Wife is legally represented, the Husband is absent from this Hearing. 

4.I have considered the service process on the Husband, this had been done via courier to his last known address in Beijing and via email.  The Beijing address was one at which the parties’ children had visited in the past and where it is believed that he now resides with his current wife and child.  The email address was in use in communication with the Wife and their children in 2020.  There was also service on the Husband’s solicitors on record on 4 November 2020, who had subsequent ceased to act on 23 November 2020.

5.On hearing submissions from the Wife’s counsel, I am satisfied that the Husband is fully aware of these proceedings and the fact that the Hearing of the Wife’s application is on 4 December 2020.  Husband is a lawyer and clearly aware of his rights, and he has chosen not to respond at all.  I am therefore of the view that he has not been prejudiced by this Hearing proceeding in his absence.

6.At the Hearing, I granted leave to the Wife and gave ex tempore oral reasons for my decision.

Background

7.The parties married in Hong Kong in May 1999, there are three children of the family.  S is the youngest, she is now age 14.

8.The parties’ relationship broke down in 2008, Wife petitioned for divorce in November 2008. By consent, the children’s issues, inter alia, were made an Order of Court on 7 July 2009 by HHJ B Chan.  The parties have joint custody of the children, Wife has care and control, and Husband was given reasonable access.  Husband had also undertaken to pay for 50% of the children’s direct education costs and expenses; and which contribution were to extend to airfare, room and board, if the children study overseas. 

9.Both of S’s elder siblings attended schools in the UK and in the US.

10.According to the Wife’s affirmation, Husband has not been paying for the two elder children’s tuition, airfare, and room and board expenses in the last while. 

This Summons

11.According to Wife, Husband had always been supportive of the children attending top schools so as to enter top universities.

12.Husband was involved in S’s school application process, as the education adviser whom the Wife engaged, had kept him apprised.

13.When S was accepted by PAA on 10 March 2020, Wife stated that Husband was pleased with the result, and S was congratulated by her paternal grandfather.

14.Husband had then suddenly on 17 April 2020 by email notified Wife of his change of mind and objected to S leaving based on various reasons.

15.However, Husband had never seen fit to file any response to the Wife’s application to explain his concerns and basis of objections.  

About the School Application

16.S had previously attended an International School in Hong Kong (the “IS”), but in recent years had felt that there was a decline in the academic quality of the IS.

17.S has a close relationship with her two elder siblings, who were educated overseas; they were able to give S sound advice as to the US education system which is more akin to S’s learning style.  S also felt that she would receive a more wholesome education experience in the US.

18.She had conducted research herself on schools, started preparing for SSAT in 2019, visited schools in the US in October 2019, and worked on various applications up to February 2020.  PAA was her first choice.

19.S had withdrawn from the IS and started attending on-line classes at PAA since September 2020.  This was actually with consent from the Husband who on 30 July 2020 had confirmed with the IS that S would not be attending the school in the following school year but instead attend online courses with PAA on a “try out” basis.

Best Interest of the Child

20.S is 14 years old.  At this age, the Court is able to take heed of her point of views; in this regard, I am well supported by case law (YSYM v LHB [2020] HKCA 586).

21.PAA is a sought after and reputable school; to be accepted is an achievement in itself and speaks to S’s effort in pursuing her personal choices.  

22.I make particular reference to an email dated 24 May 2020 in which S appealed to the Husband for her choice of PAA over the IS, she exhibited maturity in her thoughts and cited that she had built a community of peers in PAA to which she can turn for support.

23.I believe her choice to attend a US boarding school, and in particular, PAA, had been well guided by her siblings; and well considered by S.  She has chosen PAA because it offers a teaching style, courses and environment which she aspires to, and at which she can develop and grow. 

24.I do not believe that to direct her to stay in HK in a school with which she is clearly disillusioned and disconnected from in the last while, is in her best interest.

25.It was submitted that S is doing well in her online classes, and achieving top marks in various subjects.  She clearly needs to be physically present in PAA to enable her to engage fully with her fellow students, the teachers and the community at large.

26.I have enquired about the students’ safety at PAA for COVID-19 protection at the school, and was informed that boarding students are tested twice a week, and updates on the school’s COVID-19 condition is reported online weekly to the parents.

27.I therefore find that continuing her education at PAA is in S’s best interest.

28.Counsel representing the Wife also indicated that while the Summons asked for leave for study from January to June 2021, it had been made clear in the Wife’s Affirmation and in counsel’s previous submission (served on the Husband) and submission at this hearing, that leave is sought for S to attend PAA for her on-going high school education.  I am of the view that it is in S’s best interest that she has a peace of mind and certainty of her ongoing stay to finish her schooling at PAA instead of needing to worry what happens after June 2021.

Order

29.I therefore make an Order that the Petitioner be granted leave to send S to attend PAA for her high school education.

Costs

30.The Petitioner asks for costs.  However, I will make the usual costs order for children’s matters and make no order as to costs.  This will be a costs order nisi to be made absolute if no application to vary the same is made within 14 days of this Ruling.

Petitioner Wife represented by Ms Frances Irving, Counsel instructed by Withers

Respondent being absent