Dh v. Emg

FCMC 7076/2018

[2022] HKFC 57

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 7076 OF 2018

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Coram:  Deputy District Judge Elaine Liu in Chambers (Not Open to Public)

Date of Hearing :  5 - 6, 12 and 14 January 2022

Date of Written Closing Submissions:  25 February 2022

Date of Reply Submissions:  8 March 2022

Date of Judgment:  30 March 2022

_____________________________________

JUDGMENT

(Child Relocation)

(Variation of Custody, Care and Control)

_____________________________________

A.  Introduction

1.Before this Court are the following two applications:

(1)  The application of the Petitioner Father (“Father”) by Summons dated 12 April 2021 for leave to remove the only child of the family (“the Child”) permanently from the jurisdiction to relocate with Father to Germany (“Relocation Application”); and

(2)  The application of the Respondent Mother (“Mother”) by Summons dated 18 June 2021 for a variation of the order for the custody, care and control of the Child, essentially seeking an order that the custody, care and control of the Child be granted to her instead of to Father (“Variation Application”).

2.Three witnesses testified for Father’s case at the trial, viz, Father himself, his current wife (ASJ) and, through video links, Father’s mother (“Grandmother”) in Germany. Mother herself testified for her case.

3.A Social Welfare Report dated 6 September 2021 (“2021 SIR”) and an International Social Investigation Report dated 5 August 2021 (“ISIR”) were prepared in connection with the Relocation Application and the care and control of the Child. Ms Cheang who prepared the 2021 SIR gave oral evidence at Court.

4.The other reports in connection with the parties and the Child are (a) Social Investigation Report dated 8 November 2018 by Ms Luk (“2018 SIR”); (b) Social Investigation Report dated 13 June 2019 by Ms Lau (“2019 SIR”); (c) Social Investigation Report dated 25 November 2020 by Ms Wai (“2020 SIR”); and (d) Psychological Report dated 25 November 2020 (“2020 Psychological Report”).

B.  Background Facts

B1.  General background

5.Father, aged 59[1], is a German national living in Hong Kong since 2012 except for about one year in 2015/2016 when he moved to live in Germany together with Mother and the Child.

6.Mother, aged 40[2], is a national of the Philippines. She first moved to Hong Kong in November 1997. In 1998, she married to her first husband, C, who is a Hong Kong resident. She has 2 children out of this marriage, born in 1999 and 2000 respectively. These two children are studying in England. According to Mother, her marriage with C broke down in 2000. She subsequently moved back to the Philippines. She became a permanent resident of Hong Kong in 2004.

7.In 2012, while Mother was in the Philippines, she met Father on an online dating website and they started a relationship. According to Father, they married in the Philippines on 23 April 2012 at which time he did not know that the marriage between Mother and C had not been formally dissolved.

8.In November 2012, Father and Mother moved to Hong Kong. They have a first child in December 2012, who sadly passed away a few days after birth.

9.The parties married in Hong Kong on 24 October 2013, shortly after the marriage between Mother and C was dissolved on 10 October 2013.

10.On 27 April 2014, the Child was born. She is now 7 years old, studying primary 2 in a local school.

11.In January 2015, Father and the Child moved to Germany. Mother contended that Father left for Germany with the Child without notified her. Mother went to Germany shortly thereafter. The three of them stayed in Germany for about a year, relying on government assistance. They moved back to Hong Kong in February 2016.

12.In 2016, Mother went to the Philippines. Father contended that Mother lied to him about the purpose of returning to the Philippines and had taken away a substantial amount of money from him. Mother did not accept this allegation. There is no need for this Court to go into details on this matter. Suffice to note that the parties were not in good terms and they separated since late 2016/early 2017.

13.Mother met MG in March 2017. They started a relationship in May 2017. At the time of trial, the relationship between Mother and MG has ended.

14.After Mother went to the Philippines in 2016, Father employed a Filipino domestic helper, ASJ, in 2017 to take care of the Child. Father later developed a relationship with ASJ. They married in July 2021.

15.In June 2018, Father petitioned for a divorce on the ground of separation. The decree absolute was granted in December 2018.

16.As in most of the divorce cases, both parties raised many allegations against each other. The parties adduced many whatsapp messages and other materials. I have considered these allegations and materials adduced by both parties. It is not necessary nor helpful for me to recite all the details of these allegations in this judgment except the pertinent ones.

B2.  MG Incident

17.Father reported to the police that during a defined access with Mother in April 2019, MG (Mother’s then boyfriend) were on the same bed with the Child while Mother was not in the room. MG appeared naked in the presence of the Child.

18.By order dated 10 May 2019, the staying access with Mother was suspended. A multi-disciplinary professionals case conference was conducted in August 2019, it was considered at the conference that MG had improper act. Advices were given to the parties. In September 2019, the police decided not to lay charge against MG after investigation.

19.In June 2020, Father admitted to Mother that what he had done to her and MG was wrong. He said the Child told him that she had lied to him. Mother considered Father was inconsistent and hypocritical, he laid the accusation without foundation which resulted in the suspension of staying access that damaged the relationship between Mother and the Child.

20.Father contended that he has good reasons to suspect that MG had treated the Child inappropriately. He adduced a video showing how the Child told him about what MG had done which led to his report to the police. Father also said that the Child gave a video interview to the police, mentioned about, inter alia, playing on the bedroom floor in Mother’s home with MG who is naked. When he came to realise in about June 2020 that what he had learnt from the Child about MG’s conduct may not be true, he honestly admitted it to Mother.

B3.  Disputes on Access

21.Mother complained that Father obstructed her telephone access. She said that the mobile phone provided by her to the Child for telephone access was lost and Father did not get a new phone for the Child to facilitate the telephone access.

22.Mother also set out a list of dates on which, she said, telephone access was denied[3]. She said the Child told her that ASJ instructed her to deny the calls[4].

23.In response, Father exhibited[5] a record prepared by ASJ of the daily status of telephone call or the lack of it from Mother between 15 July 2019 to 11 July 2020. The records showed that Mother did not call everyday. Sometimes, Mother called when the Child was not at home or was busy with her guests at home or that she just did not want to answer the phone.

24.Father denied any obstruction to Mother’s telephone access with the Child, whether through landline or Father’s mobile phone. He said that Mother called at a time when the Child was at school or otherwise not at home. Sometimes, the Child did not want to answer the call. Father further said that Mother has never requested for video call. In any event, he has never refused one[6].

25.There were other complaints on the change of pick up point for access, and mutual complaints on punctuality.

B4.  July 2021 incident

26.This incident happened on the second day (a Saturday) of one of Mother’s summer access with the Child in 2021, which was after the taking out of the Relocation Application.

27.Mother’s evidence was that since she had to work Saturday afternoon, she arranged a helper to take care of the Child, and the Child was playing with her friends at their home in Cheung Chau. On that day, Father asked for the details of where the Child was and wanted to talk to the Child. Mother sent him photos and videos of the Child playing with her friends. Father was not satisfied and asked the exact location of the Child. Mother was at work and did not want to trouble her friends, so she did not provide Father with the address of her friends. Father continued to send whatsapp messages and voicemail messages to Mother, some of them contained abusive language. That evening, Father appeared at the Cheung Chau ferry pier, grabbed the Child forcibly when he saw the Child. Police was called. Mother considered Father constantly behaved in an atrocious manner over the Child’s time with Mother and suggested that Father’s hostility antipathy towards Mother over the years had never changed.

28.Father’s evidence was that he was genuinely worried about the safety of the Child especially when it appeared that Mother was not with the Child during the access, and the Child was placed in the hands of stranger. He said he did not know when the photos and videos sent by Mother were taken. He was worried that Mother was not with the Child, and did not tell him where the Child was and whom the Child was with. He considered that the photo showing the Child playing and swimming at the beach without sufficient safeguards or supervision were alarming. He said that he would not keep sending messages if Mother had allowed him to talk to the Child so that he could be sure of the Child’s safety. Mother’s refusal to allow him to have direct contact with the Child or to disclose the Child’s location intensified his worry. He went to Cheung Chau himself searching for the Child but of no avail. At about 8:30 pm, he saw Mother arrived at Cheung Chau without the Child. He then saw the Child was with two ladies whom he did not know. The Child walked towards Father but Mother stopped her, so he had to take the Child. Father said that it was because he was scared about where the Child was[7] and Mother’s reaction intensified his worries.

C.  The arrangements for the Child

29.By way of background, I set out below the previous orders on custody, care and control of the Child.

30.By a Consent Order dated 28 November 2018, the custody, care and control of the Child was granted to Father with the usual removal restriction. Defined staying access was granted to Mother from 1:30 pm of every alternate Saturday to 6:00 pm Sunday. The 2018 SIR was available to the Court when this order was made.

31.Upon Father’s application in May 2019 following the MG Incident, Mother’s access was varied.

(1)  By an order dated 10 May 2019, Mother’s defined staying access to the Child was suspended until further order.

(2)  By an order dated 27 May 2019, Mother was granted interim day time access of the Child on every alternate Sunday commencing on 9 June 2019. The access shall be conducted in the absence of third party save as to Mother’s close relatives.

(3)  By an order dated 3 July 2019 (“2019 July Order”), Mother was granted daily telephone access to the Child at 7 pm each evening, and such telephone access to be facilitated by Father. The 2019 SIR was available to the Court when this order was made.

32.In August 2019, Father applied for leave to take the Child out of the jurisdiction for vacation during a specified period in September 2019. The Court granted leave to Father for temporary removal upon his undertakings including, inter alia, (a) the provision of travel itinerary and accommodation information of the Child during the temporary removal; (b) the facilitation of telephone access between Mother and the Child every night; and (c) that the domestic helper (ASJ) was not to attend the holiday.

33.The order currently in force is the consent order made on 6 January 2021 (“2021 Consent Order”). The 2020 SIR and 2020 Psychological Report were before the Court. Under the 2021 Consent Order, the custody, care and control of the Child remain with Father. Mother has reasonable access including:

(1)  Staying access every alternate Saturday from 3:00 pm to Sunday 6:00 pm commencing from 12 December 2020 at a specified pick up point.

(2)  Telephone access on a daily basis for approximately 5-10 minutes on week days before the Child’s bedtime. Mother’s private daily conversations with the Child are to be conducted via telephone voice call or video call as Mother so chooses. The privacy of Mother’s daily conversations is to be respected by Father and should not be interrupted.

(3)  Staying access during long holiday on terms specified in the 2021 Consent Order.

D.  The law on relocation

34.It is well established that:

(1)  the best interest of the child shall be the paramount consideration in a relocation application;

(2)  there is no presumption in favour of or against primary carer or non-primary carer applicant;

(3)  the reasons why a parent applies for the relocation of the child is one of the factors to be considered in the overall assessment;

(4)  the Court shall give due consideration to the wishes of the minor, having regard to the age and understanding to the minor and to the circumstances of the case;

(5)  the Court shall also give due regards to materials including the report of the Director of Social Welfare available at the hearing;

(6)  the protocols, including those commonly referred to as “Payne principle/guidance[8]” and “welfare checklist[9]” are tools designed to assist in coming into a decision. They are to be regarded as guidelines that provide a structural framework in the holistic assessment of what is in the best interest of the child, but they do not dictate the outcome of a case.

(See: Section 3(1) of Guardianship of Minor Ordinance, Cap. 13; ZJ v XWN [2018] 2 HKLRD 644 [17] – [23], [30]; BA v BL [2019] 4 HKLRD 23 [4.14]; H v W [2021] HKCA 733 [31]; R v A [2022] HKCA 89 [14])

35.The Court of Appeal in H v W supra has summarised the “Payne guidance” at [32] as follows:

(1)  Is the applicant’s proposal genuine and realistic in the sense that it is not motivated by some selfish desire to exclude the respondent from the child’s life?

(2)  Is the respondent’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?

(3)  What would be the impact on the applicant, either as the single parent or as a new spouse of a refusal of his/her realistic proposal?

(4)  The outcome of the appraisals in (2) and (3) must be considered in the overriding review of the child’s welfare [or in terminology used in Hong Kong, the child’s best interests] as the paramount consideration.

36.Although the “welfare checklist” remains in the Children Proceedings (Parental responsibility) Bill which is yet to be passed, it has been commonly used by the Court as guideline or aide-mémoire in considering matters relating to minor child. This is not an exhaustive list, nor a list to be mechanically went through to dictate the outcome. (H v N [2012] 5 HKLRD 498, endorsed by the Court of Appeal in ZJ v XWN, supra [25]).

37.The factors set out in the “welfare checklist[10]” are:

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

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

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

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

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

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

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

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

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

(10)  the range of powers available to the court under [this Ordinance] in the proceedings in question;

(11)  any other fact or circumstances that the court considers relevant.

E.  Father’s application

38.Father’s case was that due to the termination of his employment by the employer with effect from 10 December 2020, and the inability to find another job despite efforts, he was in financial difficulties in Hong Kong. He considered that the prospect of him getting a job in Hong Kong is bleak in view of his old age, his inability to speak Cantonese and his only qualification is to work as a plumber. He was also concerned about his status of staying in Hong Kong since he was holding an employment visa. He was not sure if this employment visa could be transferred even if another employment could be secured. Therefore, he wanted to go back to his hometown in Germany, specifically the South of Germany, near Ulm and between Munich and Stuttgart. He grew up there. His mother and siblings are living there and have agreed to support him including accommodation and care of the Child. As shown in 2020 SIR[11], he has this plan of moving back to Germany in 2020.

39.He believed that it is in the best interest of the Child to relocate to Germany and they will be better off there.

40.Firstly, there is better employment prospect for Father in Germany. Father said that he could obtain work as a plumber in Germany quite easily. Qualified plumbers are in demand in Germany, and he expected to receive a basic salary of Euros 2,000 per month. He had worked in Germany as a plumber until he left in 2012.

41.Secondly, the social security allowances available to them in Germany can maintain their livings before he secures a job. Both Father and the Child hold German passports. According to Father, if he and his family members go back to the Germany, they will be entitled to receive social security allowances at a total amount of about Euros 1,000 per month[12] before he can secure a job. Further, when he reaches the age of 65 (which is about 5 years later), he will be entitled to a state pension of about Euros 650 per month.

42.Thirdly, the Child will have support from Father’s family, especially on accommodation. Grandmother agreed to allow Father and his family members (viz. the Child and ASJ, being his wife) to live in her premises, which is now leased to a tenant. Grandmother would terminate the lease on the ground of self-use when Father goes back to Germany. Prior to the recovery of possession of this premises, Father’s brother agreed to allow Father and his family members to live in his premises.

43.Fourthly, the education and health care benefit available to the Child in Germany are more beneficial to her. The free medical and dental care available to the Child in Germany are more extensive than those in Hong Kong.

44.There is a compulsory and free education scheme in Germany. Father produced a letter from the Director of Education in Germany stating that the Child is required to attend school after she enters Germany. The name of a specific school to which the Child can enrol after her entry into the country was identified in the letter.

45.Fifthly, Father took the view that the Child will have difficulty in doing well in school in Hong Kong. Her Chinese is not well. Neither Father nor Mother can teach her the Chinese language. On the other hand, Father can support the Child in the study of German. He acknowledged that the Child is not conversant with German at this stage, but he believed that the Child will be able to pick up the language. He considered that it is better for the Child to go to Germany now when she is 7 years old instead of delaying this to her teens.

46.Sixthly, the Child’s daily care will be handled by Father and ASJ. Grandmother can provide support too.

47.Seventhly, Father acknowledged and accepted that it is important for the Child to maintain contact with Mother. He agreed that after the relocation, Mother and the Child can maintain contact regularly by way of telephone access. He said at Court that Mother can call the Child any time provided it does not affect the Child’s daily routine and the Child agrees to answer her call. He welcomed Mother to visit the Child in Germany and contended that the costs of short term accommodation in Germany is inexpensive. He said that when the Child reaches the age of 12 and can travel alone, the Child can also visit Mother in Hong Kong during holidays.

F.  Mother’s opposition

48.Mother opposed the Relocation Application. She contended that she has genuine concerns about how Father controlled the Child’s contact with her which hindered the mother-daughter relationship. She feared that her contact with the Child would be reduced or even lost if the Child is relocated to Germany. She concerned about the Child’s emotional well being and development and denied any ulterior motive.

49.The grounds put forward by Mother in opposition to the Relocation Application can be summarised below.

50.Firstly, Mother contended that Father and ASJ were diminishing her role as the Child’s mother and treating ASJ as the “substitute mother” of the Child. The Child was confused about who is her mother, and called ASJ as “Mama”. The school was confused between Mother and ASJ insofar as their relationship with the Child was concerned.

51.Mother referred to the difficulties of her obtaining the school information about the Child and suggested that Father was pushing her out of the Child’s school life.

52.Mother complained that in the Child’s school handbook, her name and contact details were not filled in under the column for mother. Instead, in addition to the information of Father, the name and telephone number of ASJ were written in the handbook under the column of Guardian, and ASJ was stated to be the Child’s “Auntie” and the person for emergency contact.

53.Father said at cross examination that he gave Mother the school handbook. There is no reason not to fill in Mother’s name there. He left it to Mother to fill in her own details there. He admitted that he had not asked Mother to do so.

54.Mother contended in her 7^th affirmation that in January 2021, Father changed the Child’s school from the one in Kam Tin to one in Causeway Bay without telling her. Mother said she learnt this from the Child and the Child said she was not supposed to tell Mother about the change[13]. Father denied that the Child has changed school and maintained that she remained at the same school in Kam Tin. Father has no idea as to why Mother alleged the change of school[14]. Subsequently, in Mother’s 8^th Affirmation, she stated her understanding that the Child still attended the primary school in Kam Tin[15].

55.Mother also complained that the Child’s school was not informed that she is the Child’s mother, rather the school only recognised ASJ. Father denied and said that the school knew it.

56.Mother referred to one of the school activities attended by ASJ and her in 2019. ASJ wanted to go out to the stage as representative of the Child’s parents/guardian and denied her from her role as the mother. She stopped ASJ and went on stage with the Child.

57.Mother further complained that the Child called ASJ as “Mama” and suggested that this shows the Child was confused as to who is her mother. Father said that the Child only addressed ASJ as “Mama” to please her when the Child wishes to have a favourite from ASJ.

58.Mother feared that if Father is given leave to take the Child to Germany, this situation will be worsen. Father will widen the gap in the mother-daughter relationship and destroy the bond they already had. The Child is an age where she needs mother’s love and care.

59.On the other hand, Father said that he had given Mother the school information of the Child, and the school knows about the Child’s situation.

60.Secondly, Mother referred to the problems with access to the Child and contended that Father was dictatorial and controlling of when Mother can see the Child. She said that Father would shorten the access time by being late or denying her any public holidays. Mother also referred to the MG Incident in 2019 and the 2021 July Incident. She feared that her contact with the Child will be reduced if the Relocation Application is allowed.

61.Thirdly, Mother referred to Father’s previous breach of undertakings to the Court especially those given in connection with the temporary removal in 2019 and contended that any undertakings offered by Father could not be relied on.

62.Mother contended that in breach of his undertaking, Father has provided her with incorrect travel itinerary and incorrect name of the hotel. Father explained that he found out upon arrival that the hotel they originally booked did not allow children below the age of 12 years. They had to change hotel at short notice. Mother argued that Father’s contention was false and contended that even if there was a change, he ought to provide the new hotel address to Mother after the change.

63.Mother contended that contrary to what he had undertook, Father failed to facilitate any telephone access between the Child and Mother throughout the vacation. Father’s explanation was that there was no wireless internet service at the hotel which they found at short notice. Father said that the facilities in that hotel was poor. Mother disputed the veracity of Father’s contention and said that even if it was true, Father ought to find other means to facilitate the telephone access.

64.Mother further contended that in breach of the undertaking, the domestic helper (ASJ) had travelled with them. Father explained at Court that Grandmother and some family members specifically came from Germany to Asia to see the Child. Grandmother was 80 years old and needed someone to take care of her. She insisted in ASJ joining the trip against Father’s wishes.

65.Other than the Thailand vacation incident, Mother also contended that Father had not been fully complied with the access requirements. The major disputes relating to access were set out above and are not to be repeated here.

66.Fourthly, Mother criticised Father’s plan in Germany as being uncertain. Grandmother’s premises is not yet available. It will take 6 months or longer to recover the possession and it may not be successful. There is no evidence from Father’s brother to confirm the alternative accommodation. Although it was acknowledged that the Child can only enrol in the school on site, there was no indication of how long the registration will take place. Mother also criticised the reliance of the social security assistance is unsafe and insufficient to maintain Father, the Child and ASJ.

67.Mother contended that Father’s suggestion of her travelling to Germany to see the Child is not realistic as she cannot afford the costs of travelling to Germany. Father however said that there are inexpensive accommodations available in or near his town. As Mother has gainful employment, she can afford the costs if she wants to.

68.Fifthly, Mother suggested that both parties envisaged that the Child would remain in Hong Kong until she is 14 or 16 years old. Father mentioned this in his Form E dated 27 August 2018[16]. As shown in the 2021 SIR, Mother told the Social Welfare Officer that it might be beneficial for the Child to learn German first and receive education at Germany when she reaches the age of 16[17]. Mother maintained that it would be better for the Child to remain in physical and emotional contact with her so that they can continue to build up their relationship after the suspension of access and lack of staying access for 21 months during May 2019 to February 2021.

69.Sixthly, Mother said that she is well able to take care of the Child in Hong Kong on a full time basis. She has a suitable home in Cheung Chau which she had signed a two year lease from July 2021. She is working as sales manager in an employment agency earning a basic salary of $15,000 per month, and can earn up to $28,000 per month with commission. She can employ a helper to take care of the Child when she is at work. Further, she has a good relationship with her boss who allows her to work from home and have flexible working hours. She also has a good network of friends and support in Hong Kong, who can offer her assistance when needed.

70.The Child speaks Cantonese and has friends in Hong Kong. The Child is entitled to free education and healthcare in Hong Kong. Mother believed that the Child will be better off in Hong Kong.

71.Mother contended that her previous consent to Father’s custody, care and control of the Child was based on Father’s superior financial situation compared to hers and the need to keep up with the status quo for the Child in terms of housing and routine. She contended that the tables have turned and now Mother has the financial security and stability.

72.In summary, Mother’s opposition relied heavily on the contention that due to the conduct of Father and ASJ, she would not be able to maintain contact with the Child if the Relocation Application is approved. She would be alienated from the Child. Father had acted in breach of undertakings given to the Court and his undertakings are unreliable. She did not consider it is in the best interest of the Child to lose the contact with her, as a mother. She is now able to take care of the Child in Hong Kong with some stability and security.

G.  The Child’s views and wishes

73.The Child’s views and wishes as stated in the 2021 SIR are as follows:

“29. [The Child] was interviewed in office. She shared that she did not have much impression about her living in Germany as she was still young. She knew that by reviewing the photos which were shared by both parents. She said that her paternal grandmother was loving to her.

30. [The Child] stated that her father had talked to her about the relocation to Germany many times. The father also showed photos and shared information about Germany with her. [The Child] was excited to move to Germany as she liked the living environment of Germany. She was longing for hiking, camping, swimming and cycling there. Besides, she hopes to study in Germany. She said that she did not worry much about learning a new language. She added that she found learning Chinese was even more difficult and she worried about her studies especially in Chinese subject if she continued to study in local school in Hong Kong. She told the Investigating Officer that she had told her teacher and a few friends about her relocation to Germany. She would miss her friends and teachers in Hong Kong. She believed that she could keep in touch with them through the mobile phone and Internet. She did not want to talk about the impact of relocation on her relationship with her mother. She was invited to draw a picture of her family. In her picture, she stood between [Father] and [ASJ] with [Mother] stood far from them. All of them appeared to be happy. [The Child] loved both of her parents and [ASJ].” (emphasis in bold added)

74.In summary, both Father and Mother had talked to the Child about the life in Germany and shared with her photographs taken there. The Child is “excited” to relocate to Germany. She has prepared for the relocation, and informed her friends and teachers about this plan. From the picture she drew, she is aware that she will not be able to be as close with Mother but Mother remains in her life and all of them are happy.

H.  Conclusion and Recommendation in the 2021 SIR

75.The findings and recommendations of Ms Cheang in the 2021 SIR are as follows:

“36. The present social investigation revealed that the parents were caring and loving to the child. They were also committed to the parental responsibility. [Father] responded appropriate and adequately to the developmental needs of [the Child]. He provided basic physical need and ensured the safety of [the Child] all the time. He was also concerned about [the Child]’s emotional needs and development of self by encouragement and nurture. His parenting capacity was observed to be satisfactory. [Mother], despite not living with [the Child], has tried her best to spend quality time with [the Child] during access. She listened to the thoughts and feelings of [the Child] and involved [the Child] in decision making on the daily issues. She concerned about the emotional development of [the Child] and worried the impact on [the Child] arising from the conflict between parents. The parents treasured their relationship with [the Child] and wanted the best of [the Child]. They tried their best to communicate with each other but the communication was not effective and ended up having disputes.

…..

38. The schooling of [the Child] was settled while the father’s family are ready to provide accommodation, food and daily necessity and any assistance in case of emergency in Germany. The father and step-mother will continue to take care of [the Child] if relocation was supported. In considering the stability and continuity of present custody and care arrangements, the changes would be less on the established patterns of care and emotional bonds which leads to a more stable living pattern if the relocation plan was supported. There was no evidence that the planned move will cause detriment to the Child. [Father]’s proposal is considered practical feasible and well-researched. He believed it was a suitable timing for the family to relocate to Germany this year as [the Child] was still young so she could easily adapt herself to the new environment. To maintain the mother-child relationship, [Father] would facilitate access arrangement for the child with the [father] (sic). The Investigating Officer opined that the father’s application for relocation was genuine in the sense that it was not motivated by some selfish desire to exclude the mother from the child’s life.

39. [Mother]’s opposition to the relocation was driven by her genuine fear of losing her child. It is understandable that she worried her involvement in [the Child] will be lessened after relocation. She also worried about the stability and adjustment of [the Child] if she relocated to Germany at current age. She viewed that the child had spent most of her entire life and has lots of friend in Hong Kong. She considered that [the Child] was well settled in Hong Kong with good development here. She believed relocation did not serve the best interests of [the Child] at the time being but studying at Germany at later stage would be beneficial to [the Child]. She requested more time to strengthen her bonding with [the Child]. The Investigating Officer opined that the mother’s grounds for objection of relocation from her perspective was also sensible and reasonable.

40. [The Child] had explicitly expressed her views on the permanent relocation. Though she did not have memory about her previous living there, she stated that she preferred to move with his father to Germany. She also loved living environment and life style there. With support from her paternal family, she would adapt to the new environment without too much adjustment problem once relocation.

41. Taking into consideration the above circumstance, the Investigating Officer is of the view that [Father]’s permanent relocation application is support-worthy, feasible and well-prepared. Apart from the readiness of [Father]’s family to give a helping hand to facilitate their adjustment in Germany, the living arrangement, schooling and financial issues have been carefully studied and planned. The only concern was on the child’s psychological readiness that she could not meet the mother regularly as they have already built up a close and attached relationship and bonding. To maintain high quality relationships with the children, the non-moving parent is recommended to have sufficiently extensive and regular interaction with the child. …” (emphasis in bold added)

I.  The International Social Investigation Report

76.The ISIR was prepared by Ms Siegl, a certified social pedagogue. She talked to Father’s brothers in Germany and found that they were supportive to Father’s plan. One of the brothers mentioned that he is the team leader of a gardening and landscaping company, Father can start to work in the company immediately when he is there. The flat of one of the brothers is large enough for Father and his family and is available before Father can move in the premises of Grandmother.

77.The report also stated that “Based on the almost identical statements and the well-conducted telephone conversations with the [brothers], it seems that there is good family cohesion and nothing stands in the way of the return of the father and his daughter to Germany.” The officer also acknowledged that the other matters including the schooling can be clarified on site. Father was asked to contact the social services when he arrives Germany.

J.  Decision

78.The Court is to assess all the evidence holistically with the assistance of tools including the Payne guidance and the welfare checklist. In gist, the questions are what is in the best interest of the Child, whether it is better for her to relocate to Germany with Father or to stay in Hong Kong with Mother.

79.Father indicated that his financial difficulties in Hong Kong remain unresolved, he has to relocate to Germany even if the Relocation Application is declined. Mother resides and works in Hong Kong. In the circumstances, the reality is that the Child will either be in Hong Kong with Mother or relocate to Germany with Father. The Child will not be able to be with both parents in the same territory.

J1.  Father’s relocation plan

80.Father produced the termination letter issued by his previous employer. His employment was terminated on notice, but not by way of a summary dismissal. Father gave evidence on how he looked for jobs unsuccessfully.

81.Given that Father is approaching the age of 60, he does not speak Cantonese, and his only qualification is to be a plumber, it is not an over-statement to say that the prospect of his getting a gainful employment in Hong Kong is bleak.

82.I did not accept Mother’s bare assertion that Father “put himself in a situation by giving up works”[18].

83.The social security allowances from the German government and the support that Father will have from his family members in Germany will put Father in a better position financially.

84.It is not in dispute that there is a compulsory education requirement in Germany. A specific school was identified for the Child. Ms Siegl confirmed in the ISIR that “The school matters would be clarified, although these could only be clarified on site. The director [name] and the school’s social worker [name] are known to the Social Services/[Ms Siegl].”

85.There is an interim accommodation arrangement made available by Father’s brother prior to the repossession of Grandmother’s premises.

86.I heard the evidence of Grandmother through video link. I accepted her evidence on the supports she would provide to Father’s relocation plan. The Child had told Ms Cheang that Grandmother “was loving to her”[19].

87.Mrs Casewell, acting for Mother, did not dispute Father, ASJ and the Child’s entitlement to social security allowances in Germany. She questioned in the written closing submission as to why there was no family support to Father in 2015/2016 when the social assistance were insufficient to them and they had to return to Hong Kong. Father’s evidence on the reason for their return in 2015/2016 was unrelated to the sufficiency of social security allowances. The suggestion of these rhetorical questions in closing submissions, without more, do not assist the Court in determining the genuineness and viability of Father’s plan.

88.Ms Cheang concluded in the 2021 SIR that Father’s relocation application is “support-worthy, feasible and well-prepared[20]".

89.Ms Siegl concluded in the ISIR that “there is a good family cohesion and nothing stands in the way of the return of [Father] and [the Child] to Germany”.

90.Having considered the evidence, I agree with the assessments stated in the 2021 SIR and ISIR, and find that Father’s relocation plan is genuine and realistic.

J2.  Mother’s opposition

91.Most of the incidents relied on by Mother in support of her opposition took place before the 2019 July Order or the 2021 Consent Order. The facts are hotly disputed. It is not helpful for the present purposes to go into details of each and every incident to find who is right and who is wrong.

92.The questions that the Court shall consider are whether Mother’s opposition to the Relocation Application was motivated by genuine concern for the Child’s future welfare, and in the context of all the evidence, what is in the best interest of the Child.

93.While there are more to be done by the parties in their communication and facilitation of the Child’s regular contact with both of them, I do not agree that Father (alone or with ASJ) was alienating Mother from the Child and her school or pushing the Child away from Mother.

94.There is evidence that Mother attended the Child’s school activities and has access to some information about the Child’s studies.

95.The Child knows that Mother is her mother. There is no evidence showing that the Child is confused as to who is her mother. Mother had said that the Child had once corrected the teacher and introduced her as her mother.

96.As shown from the video of the Child revealing the MG Incident to Father, the complaints raised by Father against MG are consistent with what the Child told him in the video. I do not agree with Mother that the MG Incident was raised without foundation and was deliberately targeted to harm the mother and child relationship.

97.Father said that he frankly admitted to Mother in 2020 that he was wrong in this matter because he was told by the Child that she lied about this incident. It is of note that on Mother’s evidence, the Child had told her about the change of school to Causeway Bay in 2021 and later found that there was in fact no change.

98.I shall state that there is no finding on whether MG had done the acts nor whether the Child had lied.

99.The 2021 July Incident in Cheung Chau is not satisfactory. I can see the reasons put forward by both parties. I do not think this incident was caused by one party only. The communication problem and the serious mistrust against each other heightened the conflict. I hope both parties can, for the Child’s benefit, improve their communication and alleviate their mistrust against each other at least insofar as the Child’s affairs are concerned.

100.If both parties continue to adopt the same attitude and refuse to sensibly cooperate just for the sake of the Child, similar disputes will continue irrespective of the result of the Relocation Application. This is not in the interest of the Child.

101.Both parties acknowledged that the Child should have her time respectively with Father and Mother without interruption. This is to be commended and is expected to be followed by Father and Mother.

102.For the sake of completeness, I shall also state that while Father indicated his plan in 2018 Form E that the Child would stay in Hong Kong and go to study in England or Germany after she reaches 14 of age, the situation in 2018 and now are different. The Court shall access the situation as it currently is.

J3.  Holistic assessment - What is in the Child’s best interest

103.The wishes of the Child to relocate is clear. Both parents have shared with her the photos taken in Germany[21]. She was excited about the relocation, and shared this with her teacher and friends. She was aware of the need to learn a new language. She was aware that she will leave her teachers and friends. She also knows Mother will be far from her. I do not agree with Mother’s suggestion that the Child was “prep”.

104.I have found that Father’s relocation plan is genuine and realistic. The 2021 SIR and the ISIR supported the relocation plan. I also note from the 2019 SIR, 2020 SIR and 2021 SIR that the Child was under the satisfactory care of Father (and ASJ) with healthy growth and development. Although the Child was under the custody, care and control of Father, the Child remain closely attached to both parents. This is the result of the efforts of both parents and I hope they can continue.

105.Although Mother has her job and leased the Cheung Chau flat for two years from July 2021, her accommodation arrangements remained to have instability. Mother stated in her 7^th Affirmation dated 2 July 2021[22] that her residence was in Yuen Long and she “intend[ed] to move to Kowloon for the sake of [the Child]’s education since the schools there are in general better.” It was then revealed in her 8^th Affirmation[23] that she signed a two year lease and moved to the present flat in Cheung Chau from 15 July 2021 (which is less than 2 weeks from her 7^th affirmation).

106.Both parties accepted that it is best for the Child to maintain close contact with both parents so that the Child can continue to receive the love, care and guidance from both of them despite the divorce. Modern technology on communication provides effective means for the Child to maintain contact with her parents albeit in different territories.

107.Father acknowledged that it is important for the Child to maintain regular and constant contact with Mother and repeated in his testimony that Mother can contact the Child any time provided it does not affect the Child’s daily routine and the Child agrees to talk to her. To achieve this, Father shall provide Mother with the Child’s school and medical information in Germany. Father shall take step to facilitate reasonable uninterrupted telephone or video access of the Child by Mother. The telephone or video access shall be conducted between Mother and the Child only, and shall not be intervened or listened to by Father or ASJ without consent of Mother. Father shall also take steps to facilitate reasonable access (including staying access) by Mother during the Child’s school holidays if Mother visits Germany at her own costs with prior notice to Father.

108.Mr Clement, acting for Father, stated in the closing submission that Father is willing to obtain by consent of both parties in Germany a mirror order reflecting the order of this court on access if the Relocation Application is allowed and the parties have assistance on costs from the legal aid. Both parties shall proceed to obtain this order in Germany by consent.

K.  Conclusion

109.Having carefully considered all the evidence, I came to the conclusion that it is in the best interest of the Child to relocate to Germany with Father. On the basis of the offer of undertakings by Father as set out above, Mother has reasonable access on the Child.

110.If Mother intends to seek an order for defined access, she shall lodge with the Court and serve on Father within 14 days the proposed terms of defined access and undertakings. Father shall respond within 14 days thereafter. The Court will consider the matter on paper.

111.In the event that there is no application for defined access within 14 days, Father shall draw up an order for the Court’s approval within 21 days from the date of this judgment.

L.  Costs

112.This is a matter concerning the welfare of a child. I make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days if there is no application to vary the order nisi. Both parties are legally aided, their own costs be taxed in accordance with the Legal Aid Regulations.

The Petitioner was represented by Mr Richard Clement of Messrs Massie & Clement, assigned by DLA.

The Respondent was represented by Mrs Usha Casewell of Messrs Boase Cohen & Collins, assigned by DLA.