Tac v. Vdc Nee Vdm
Read the full judgment text of FCMC 16497/2010 on BabelCite. This Family Court judgment was delivered on 20 June 2012 before Her Honour Judge Sharon D. Melloy.
Family law – Relocation – Child’s arrangements – Mental health – Joint custody – Shared care – Best interests of the child – District Court – Mother granted leave to permanently remove child from Hong Kong to B, USA with effect from 28 March 2013 – Court found mother not mentally ill but required ongoing support – Joint custody and shared care ordered while parties in Hong Kong – Relocation permitted to allow mother to return home and work – Father to have access and potential relocation – Costs adjourned
Legal issues: Mother's mental health status · Permission for relocation · Custody and care arrangements · Best interests of the child
Outcome: Mother granted leave to relocate to B, USA with C from 28 March 2013. Joint custody awarded. Shared care in HK until relocation.
Cited by 1 case · Cites 4 cases
|
FCMC 16497 / 2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 16497 OF 2010 ----------------------------
----------------------------
------------------------------------------------ J U D G M E N T ------------------------------------------------ Introduction 1.This is an application by a respondent mother for leave to permanently remove the only child of the family out of the jurisdiction of Hong Kong in order to relocate with her to B, USA. The father opposes the mother’s application. The father seeks an order for sole custody. He also asks that the child be in his care for four days out of every seven. He says that this order more closely reflects the recommendations made by the jointly appointed experts in this case. The mother seeks an order for relocation plus an order for joint custody with care and control to her and reasonable access to the father. 2.This case is primarily about the assessment of risk. The question I have to answer is this. Should I, in an otherwise classic relocation application, deny the mother’s request to permanently remove the child of the family out of Hong Kong in order to return to her home town in B in the United States, because of concerns about the mother’s mental health? 3.The trial, which was originally listed for 8 days, lasted 17 days and was conducted over a six month period in two tranches. I have heard from the court’s jointly appointed experts - psychologists, Dr M and Dr L twice. I have also heard from the mother’s own therapist Dr B, who gave evidence on the mother’s behalf. I also gave leave for each party to call three further witnesses. The mother called her own mother, i.e. the maternal grandmother, her sister and a personal friend from Hong Kong. The father called his sister, the family driver and a friend who works for the Church as a missionary. In addition I have also had the benefit of the Social Welfare Officer’s testimony. The primary focus of the trial has been on the mental health of the mother and the impact that this might have, if proven, on the care arrangements for the child of the family, a little girl C who is now aged 6. 4.At the end of the father’s evidence it also became clear that there was a “timing” issue, in that it is accepted by the father that at some point in time he will also relocate back to B. It is not so much a question of “if” as of “when”. 5.The father claims that the mother’s behaviour is such that she should no longer be the primary care giver of C. He also disputes that she has been the primary carer notwithstanding the fact that until recently the mother has been a full time non working parent. The father holds a senior position with an international corporate. As one might expect, he has historically been required to travel, sometimes frequently, as part of his job requirement. 6.An unusual feature of this case has been the agreement between the parties to install CCTV cameras in the former matrimonial home. This was initially suggested by the mother. She said that she had made the request because she believed that the father was setting in place the ground work for an application for an ouster injunction. She said that the CCTV footage provided indisputable evidence that there was no basis for such an application. She was correct in that. The father concurred with the mother’s request, save that he did not agree to install a camera in C’s room. Somewhat reluctantly I did eventually agree to observe some clips from the CCTV footage and this will be discussed in more detail below. The main issues to be discussed then are as follows:
Background to the marriage 7.The parties married in November 2004 and on the 14 December 2010 the father issued proceedings for divorce in Hong Kong. Prior to the marriage the parties had cohabited for a year or so. This was then a relationship of approximately seven year’s duration. The parties are both American and both had been married before. The father is now aged 47 and the mother 43. C is 6 years old having been born in May 2006. She is the only child of the marriage. Neither party have children by previous marriages. 8.On the face of it this should have been a successful union. Both parties are committed Christians. Both are well educated. The parties met in January 2002 at the instigation, in part, of the maternal grandmother. The father was separated at the time and going through his first divorce. The mother had been divorced previously. She was at Law School when they met. Upon graduation she embarked on a career as an attorney. Prior to Law School she had worked in a variety of other different capacities. As I have said the father holds a senior position in an international corporate. He has worked for the same company for 17 years and was based with them in B when he met the mother. He continues to work for the same company now. 9.Unfortunately it seems that almost from the start the parties’ relationship was beset by difficulties. As far as C is concerned, she was cared for by the mother on a more or less full time basis until she was 14 months old. The parties also had the advantage of a housekeeper and a baby sitter who assisted the parties with C’s care. In July 2007 the parties employed a live in au pair and the mother returned to work for a non profit on a part time basis. She continued to care for C when she was not working. The father also assisted in her care when he was at home. 10.In January 2008 the father was offered a position in Hong Kong as the CEO for the Asia Pacific region. The position was initially for a three year period with the option to extend to five years, commencing in March 2008. It seems that the mother had some misgivings about the move but agreed nevertheless to relocate to Hong Kong. Consequently the father came out first in February 2008 and in March 2008 the mother followed with C. Other family members accompanied the couple to assist with the logistics of an international move. 11.The parties’ new life did not get off to a good start when C contracted flu and was hospitalized. The parties’ relationship generally did not improve and infact seems to have deteriorated further from this time on. The central theme from the mother’s perspective seems to have been concerns about the lack of intimacy in the marriage followed by issues related to the father’s sexual orientation. The mother also maintains that the father has “control” issues. From the father’s perspective he complains about the mother’s “behaviours” and expresses concern about her emotional stability. 12.The mother reverted back to being C’s full time care giver in Hong Kong. She has not worked outside of the home since the parties relocated. The father made a point of being home for dinner and Saturday was “family day”. The parties attended church on Sundays. They were also members of a Club. The litigation in the United States 13.In December 2009 the parties returned to B for Christmas, with the mother going on ahead of the father with C and staying on after his return to Hong Kong. While she was there she sought legal advice with respect to the marriage and C. It seems that she was told inter alia of the possible ramifications arising under the Hague Convention if the father did not consent to C’s permanent relocation back to B. On the mother’s account the parties then entered into negotiations both in B and Hong Kong which eventually led to the parties’ Interim Custody Agreement. 14.This stated as follows:
15.The mother, in reliance on this agreement, then returned to Hong Kong with C. It has since been suggested during the trial that the mother wrongfully retained C in B and that the father had no choice but to enter into this agreement in order to ensure C’s return. With respect I do not agree. The mother returned to B for Christmas by agreement. She did not retain C in B for any length of time. She sought advice and quite properly acted upon it. The father said in the witness box that he has not abided by this agreement since because he had only entered into it under duress. He said that he did not accept that it was a valid agreement. When pressed he further elaborated and claimed that the mother had made a “run” on their accounts in B and had tried to “cash in” C’s college fund plus another mutual fund. He felt that the mother was holding C as a bargaining chip. Consequently he felt that he had no option but to acquiesce to her demands and to sign the agreement. I do not accept this at all. There is no doubt in my mind that had the mother retained C in B improperly and without the father’s agreement that he would have had no hesitation in instituting Hague Convention proceedings in order to ensure her prompt return to Hong Kong. He was clearly aware that this was an option and according to the mother made mention of this to her. I am sure that the father was fully aware of all of his available legal remedies. The mother for her part denies making a “run” on the accounts and says that she simply wanted to access funds that were jointly held in order to pay for her lawyer’s retainer. She specifically denies trying to cash in C’s college fund. 16.Although the mother’s actions may have been unexpected nevertheless the father quickly obtained advice from lawyers in both jurisdictions. There is evidence that the parties entered into quite extensive negotiations. The husband said that he “rejected the premise that these were valid negotiations”. I do not agree. I believe that the husband knew what he was signing and the ramifications arising out of the agreement. The wife says that it was never suggested to her that the husband did not consider himself bound by the agreement. I accept that to be the case. All in all I also accept that this was a valid agreement and that the mother returned to Hong Kong in reliance upon it. 17.In the agreement the parties agreed “joint legal custody of C”. It is assumed that unless the parties reconciled that the mother would return to B with C and that in that event the father would have liberal visitation to include visits to his country of residence. In our legal parlance I take that to mean that the parties would have joint custody, with care and control to the mother and reasonable access to the father to include staying access overseas. 18.Five months later, in May 2010 the father sold the parties matrimonial home in B. It was held in his sole name. The mother says that this was done without her agreement, something that the father denies. The mother also says that it had always been the parties’ intention to return to this house in due course and that it had also been agreed that they would not rent it out, but use it when they returned to B on vacations. After the sale, all of the parties’ belongings and furniture were placed in storage. During the trial e-mail correspondence was produced which showed that the mother had been copied in on e-mail correspondence with respect to a potential sale of the property. When challenged, the mother accepted that that was the case. She says that she had been very busy at the time and that in any event she had not wanted to “rock the boat”. I accept however the mother’s claim that in retrospect this was the first real indication that all was not well within the marriage. The father says that he was offered a very good price for the property and that he decided to sell and that this was with the mother’s agreement. Although I accept that the mother did know about the sale, I also accept that she did not positively agree to it. In any event the net result was that the mother no longer had a home to return to with C. The litigation in Hong Kong 19.A further seven months elapsed and on the 14 December 2010 the father issued divorce proceedings based on the mother’s unreasonable behaviour. There was no pre action letter and no attempt to issue proceedings on a more amicable basis. This was also in direct contravention to the Interim Custody Agreement (see paragraph 9 of the agreement set out at paragraph 14 above). The parties had been in counselling at the time, as had also been agreed (see paragraph 8). The father makes some very serious allegations against the mother in the petition. He also seeks an order for sole custody and care and control of C, with reasonable access to the mother. On the same date the father also filed an ex parte summons on notice asking that C remain in his custody, care and control and that C not be removed from Hong Kong without leave of the court. It was supported by a 25 page affidavit in which the father says that he does not consider that the mother is “fit to continue taking care of C”. He adds that he wishes to “protect C” and to look after her. He attaches statements from the parties’ domestic helper and others. He also lists examples of the mother’s “unreasonable behaviour”, including the “unpredictable loss of control and unnecessary screaming”, her “unreasonable accusations and demands” and a number of “incidences”. The father says that he hopes to obtain interim care and control. In a second affidavit dated the 15 December 2010 the father further expresses concern about the mother’s emotional state. He says that he does not believe that the mother can look after C on her own. He says that he believes that she intends to relocate to B and not return to Hong Kong. He also says that he may have no alternative but to move out of the parties’ home and to take C with him. I accept that the mother will have regarded both the petition and the ex parte summons on notice as being a very aggressive pre emptive strike in the litigation. I think she was right in this. I also accept that the documents would have taken some considerable time to prepare. 20.Given the fact that a) the mother had until this time been C’s primary carer, b) that there was an agreement in place regarding both her care and how the parties were going to proceed in the event that the marriage could not be saved and c) the father’s stated concerns about the mother’s emotional state, it is hard to imagine a more unfortunate start to litigation regarding the arrangements for a small child’s welfare. The tone of the affidavits is unnecessarily aggressive and litigious. Such an approach is to be discouraged whatever the prevailing circumstances. 21.The mother responded by saying inter alia as follows:
I agree. 22.On the 16 December 2010, erring on the side of caution, I made an order preventing C’s removal from the jurisdiction pending determination of the custody issues arising out of the proceedings. I did not allow the mother to go to B for Christmas. Neither however did I make any interim orders for custody and care and control as sought by the father. 23.The matter then progressed. The divorce suit was initially defended. The parties eventually agreed to proceed on the basis of watered down mild unreasonable behaviour particulars. The decree nisi was pronounced on the 13 May 2011. 24.On the 14 January 2011 the mother sought leave to permanently remove C out of the jurisdiction of Hong Kong. On the 17 January 2011 the father issued a summons seeking custody and care and control of C. He makes no proposals for access. The parties continued to live under the same roof. In her affidavit of the 16 January 2011 the mother says:
25.The parties agreed to do so without recourse to the court. Cameras were not installed in C’s room at the father’s insistence. On the 11 March 2011 the husband issued a summons in which he asked inter alia that the wife be restrained from interfering with his witnesses. He lists 28 people. On the 14 March 2011 the parties agreed to take Dr D’s 12 hour on line parenting course. This is specifically designed for situations like this – i.e. where the parties are in a high conflict environment. Dr M was also appointed as a joint expert to file and serve a psychological report on both parties. Dr L had been appointed previously by agreement to report to the court on C’s psychological well being. 26.Another issue arose when the mother entered the father’s study and tried to access his blackberry. Issues arising out of this were ultimately dealt with by way of undertakings. 27.It was also clear that it was not going to be possible to hear from all of the potential witnesses from each side. Therefore on the 22 July 2011 I gave directions that each party be given the opportunity to file affidavit evidence from three witnesses each. The father chose to call his sister Ms C C, his driver Mr M R and I gave leave for him to file “an affidavit from one further witness who can give further factual evidence in relation to the petitioner’s parenting”. The father subsequently filed an affidavit from Ms B, who is a missionary with his church. Part of her affidavit evidence was later redacted as it went outside the perimeters that had been clearly ordered. The mother chose to call her mother, Mrs V M, her sister, Ms K T and her close friend Ms N C. Both parties also filed affidavit evidence from their lawyers in the United States. 28.Following the first tranche of the hearing in August 2011 the parties entered into a consent summons whereby it was agreed inter alia as follows:
…
Week 2:
29.In other words C is presently picked up by her mother from school every school day. She sleeps over at her mother’s home on Mondays, Wednesdays and Fridays and the mother takes her to school on Tuesdays and Thursdays. She presently has activities on Monday’s after school (Daisy Scouts and a Disco Dancing class). In addition she has an appointment with Dr P on Fridays and her father presently takes her to a horse riding lesson on alternate Sundays. She sleeps over at her father’s home on Tuesday and Thursday’s and the father takes her to school on Wednesdays and Fridays. Weekends are presently split with C either spending Saturday or Sunday night with each parent. Whichever parent has her on Sunday night takes her to school on Monday morning. Thus she spends four nights per week with her mother and three nights per week with her father. Weekends are split between the parties on an alternate basis. As will be seen this arrangement does not appear to be working too well from C’s perspective. The mother’s case 30.The mother wishes to return “home”. As I have said her application is a classic one both in its definition and approach. She and the father are expatriates. She came to Hong Kong with the father and C because the father was posted here. The appointment was originally for three years with the option to extend for another two. Hong Kong was never meant to be a long term posting. The marriage has broken down in quite spectacular fashion. The mother now wishes to return home with C where she has family support and where she can return to work as an attorney. She cannot practice her chosen profession in Hong Kong and says that she feels trapped. She has suffered from a major depressive episode. She is clearly very unhappy here. She simply wishes to return “home”. It is accepted by all of the professionals involved that from the mother’s perspective only, that she is likely to do much better in B than in Hong Kong. She says that notwithstanding the nature of these proceedings that she will continue to support C’s relationship with the father. She says that she has done so to date. She is also willing to undertake to have therapy in B. She asks for joint custody with care and control of C to herself and reasonable access to the father. She is happy to discuss major decisions, such as C’s future education with him. She says that it is not C’s fault that her parents have split up and that the parties need to find a way to co parent her in the future. She denies many of the allegations made against her and says that they are either exaggerated or simply not true. She says that she had hoped for a more dignified and less aggressive approach to the demise of her marriage. In so far as the practical arrangements are concerned she is happy to split the school holidays and for the father to see C on giving reasonable notice to her, if he remains in Hong Kong and is unable to relocate back to B in the short term. She believes that the best solution is for the father to relocate back to B also. The father’s case 31.The father’s case has changed as these proceedings have progressed. Initially the father seemed, certainly on the papers, to want sole custody and care and control of C with very limited access to the mother. (See the first social welfare report dated the 7 March 2010). This approach seems to have been premised on his apparent concerns about the mother’s mental health. At the end of the first tranche of the trial he said that he would be guided by the experts in the case. It is on that basis that he now asks that C spend four days out of every seven with him. When asked how this would work in practice, given his work commitments, he said during the trial that either C could continue to spend the afternoons with her mother as she does now, or that his sister, Aunt C would take care of her when he was unable to do so. Since then he has changed his position and in his closing submission he suggests that Aunt C should take care of C when he was working. He continues to seek sole custody and he opposes the relocation. He says that he will most likely return to B in due course and that it is very unlikely that he will be posted elsewhere. However he also says that he may be required to stay beyond the original five years envisaged because the firm’s succession plan is not yet in place. Someone has apparently been identified to replace him – but he is not considered to be quite ready to take on the father’s role. He expresses concerns about being marginalized if the relocation is allowed, or even of being alienated. In the event that the relocation is permitted he would like slightly more of the holidays in order to offset any potential detriment to C brought about by him not being fully available to her on a daily basis as now. He remains concerned about the mother’s mental health. Discussion 32.I must 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 have also heard evidence from the jointly appointed court experts – i.e. psychologists – Dr L and Dr M. Dr L filed reports on the 7 March 2011, 27 June 2011 and the 6 December 2011. Dr M has filed two reports dated the 27 June 2011 and the 11 February 2012. In addition Dr B filed a report on behalf of the mother dated the 14 February 2012. She appeared as the mother’s witness. She is also the mother’s therapist. In addition I heard from a number of witnesses from both sides as referred to above. In addition the social welfare officer also gave evidence. She filed reports on the 7 March 2010 and the 19 August 2011. What is the current status of the mother’s mental health? The evidence from the experts 33.I should say at the outset that I have a great deal of respect for all of the experts that have appeared in this case. They all regularly appear in the Family Court and we – the Judges and the practitioners involved in family law, are greatly assisted by their expertise and input. It is always therefore of some concern when such respected psychologists are not of one accord with each other or when the court does not accept some of their conclusions. 34.Dr L was initially the parties’ marriage counsellor. The parties were in counselling when the husband issued proceedings. By virtue of a consent summons filed on the 27 January 2011 the parties agreed that Dr L would file an evaluation of C’s psychological well being. It seems to me, on reflection, that Dr L should not have been appointed in that capacity given that she was already engaged as the parties’ marriage counsellor and by virtue of that fact alone would have been privy to much that was confidential between the parties. It later came to light that the father took the liberty of sending Dr L copies of statements from potential witnesses relating to the mother’s behaviour without first informing the mother’s lawyers of the same. This is again a matter of some concern. I do not accept the father’s explanation that he did this because the mother’s affidavit was late – which meant that Dr L would not otherwise have had sight of these documents prior to the filing of her initial report. The mother did not know that these documents were going to be attached to the father’s affidavit. She had a right to know ahead of time and before Dr L filed her report. This would have enabled her to at least have had an opportunity to counter some of the allegations made or to ask the court for the appropriate directions. On the basis of some of these reports and her own observations Dr L reported as follows:
35.Dr L filed two further reports – both in relation to C’s psychological well being. 36.Dr M was appointed as a joint expert to file and serve a psychologist report on both parties. This was partly because of the concerns raised by Dr L above. Infact she filed two reports, the first dated the 27 June 2011 and the second dated the 11 February 2012, prior to the second tranche of the hearing. The parties initially agreed to the filing of the first report and this is recorded in the court order dated the 14 March 2011. By that stage a great deal of adverse evidence had been filed against the mother. In addition, as stated above, Dr L had filed her first report. I was of the view, at that time, that the court would be greatly assisted by an independent psychological assessment of the parties. I stated on several occasions that I would be guided primarily by that report as opposed to the other evidence that had been filed. Both Dr M and Dr L had sight of the court documents, correspondence and the CCTV footage. 37.Dr P is currently C’s play therapist. She did not appear in court. She has seen C for play therapy and she has provided feedback to Dr L on her observations of C. 38.Dr B is not a jointly appointed court expert. She is the mother’s therapist. She did not therefore see, nor perhaps would she have been expected to see either the husband or C. She has provided a report based on her own observations of the mother. She has also read all of the evidence and watched the CCTV video clips. She has conducted her own psychological tests. 39.It is true that when I asked Dr M to file a second report that I also directed that she should contact the mother’s treating therapist (i.e. Dr B) who should
40.Dr B quite rightly wrote to the court asking for further clarification as she was worried about client confidentiality given that she was the mother’s treating therapist. As things turned out Dr B did not provide Dr M with a report or liaise with her fully. Much has been said for the reasons for this – none of which I intend to go into in any detail here. 41.Generally speaking a great deal has been said in this trial and in the evidence that is before the court, together with the closing submissions and replies, about the mother’s mental health and what that might mean in terms of final orders. Given that I think it might be helpful if I were to summarize the situation as it now appears to me. 42.Notwithstanding Dr M’s diagnosis (as will be seen below) that the mother has features of a borderline personality disorder, neither she, nor Dr L have recommended at any stage that C should be taken away from her mother. This is despite some very damning evidence. Neither is there any suggestion that access should in any way be supervised or curtailed. Despite the fact that the father now says that he will be guided by the experts in this case, there is no doubt that his original stance was that he should have sole custody and care and control of C and that C should be effectively removed from the M’s care and that access should be premised on the mother having treatment for her “mental illness” (see paragraph 13 of the SIR dated the 7 March 2010). This has not at any stage been supported by the experts. When asked how the child’s time should be split, Dr L at the end of the trial only went as far as to say that the father should have C for four days per week and the mother three because the father was the “more emotionally available parent”. There was never any suggestion that the mother was such a danger to herself and C that a shared care arrangement such as this was not feasible. Dr M agreed, when asked by me at the end of the trial, that C needs (and presumably will continue to need) her mother. Neither Dr M nor Dr L support the mother’s plan to relocate it is true. Partly though this has to do with concerns that are normal in a case such as this (e.g. the mother may alienate the father from the child, she may not include him in decision making etc). Partly it is to do with concerns about the mother’s mental stability and the fact that the father’s presence in C’s life, balances the mother’s. In addition it is important to reiterate that the mother has not been diagnosed with a mental illness as such. 43.Turning next to C herself – there is nothing here that causes me any great concern. C is doing well – better than one might have expected given the nature of these proceedings. She is happy to spend time with both parents and she relates well to each of them. She is doing well at school. She is well adjusted. 44.In so far as the mother is concerned all of the experts agree that she would do better if she returned to B. 45.It is therefore against this broad assessment of the situation that I must consider the detail of the reports filed. The reports Dr M’s reports 46.Dr M filed her first report on the 27 June 2011. In the preamble to the report she confirms that she had read the pleadings up to date, which included the statements and affidavits filed by third parties in support of either the father or the mother. She said that
47.On reviewing the file, prior to appointing Dr M, I had become concerned at the ever growing number of potential witnesses and the fact that there was a great deal of “he said, she said evidence”. For every statement or affidavit filed by the father, who cited incidences of the mother’s so called inappropriate behaviour, there were other statements filed by the mother which countered this. For example, attached to the father’s 4th affidavit of the 29 March 2011 were statements from people that the mother had worked with prior to giving birth to C namely Ms N S, her daughter Ms U S and a former work colleague and acquaintance Ms L L. These statements are quite damning. In order to counter these the mother had filed statements from a number of other people that she has worked with over the years (see the letters from Mr K J P who is a partner in a law firm, the Director of a Clinic and a Director from one arm of Catholic Charities). In my view it was going to prove impossible to hear from all of these potential witnesses. Consequently in the interests of case management I directed that each party be given the opportunity to call 3 witnesses in support of their case and no more. None of the other potential witnesses were called. Therefore their evidence and that of the other potential witnesses has not been challenged. The difficulty however is that Dr M has relied on these statements in part when forming her own assessment of the situation. Ms Rattigan also argues that because Dr L received copies of statements from the father prior to the filing of her first report that she and Dr M have approached this on the basis that the mother has a “problem”. This is not accepted by Dr M who says that she has been completely open in coming to this case and indeed has nothing to benefit from favouring one party over the other. I accept what Dr M has said in this respect. 48.In her report she said as follows:
49.She concluded that as at the 27 June 2011
50.In her Conclusions and Recommendations she states as follows:
51.The mother said that she was shocked by this report, but that she took what Dr M said seriously. It was directed, after the first tranche of the trial, that the mother would have therapy with a psychologist from the States with appropriate back up from Dr B. She initially sought advice from a specialist in the United States, Dr G and flew out to see him. Dr G said at first that he would be able to assist but then said that he was unable to do so because of “personal reasons”. The mother then approached Dr K, who also said that she would be willing to help, if the mother was in B. Ethically she did not feel that it was appropriate to be the mother’s psychologist if the treatment was to be effected “long distance”. The mother also saw her GP and started taking anti depressants for what Dr M had described as a “major depressive episode”. The mother also saw Dr B for therapy. Dr B was shown a copy of Dr M’s report and began her treatment of the mother with that in mind. However, as will be seen below, she says that it quickly became clear to her that the mother did not have a borderline personality disorder – or features of the same. 52.There was much discussion during the trial of what was meant by the term “features of a borderline personality disorder.” Both sides have referred me to DSM-IV – the Diagnostic and Statistical Manual of Mental Disorders. This states as follows:
53.Thus in laymen’s terms, although Dr M accepted that the mother did not have five or more of the stated categories set out above, in order to be diagnosed as having a border line personality disorder, she was nevertheless of the view that the mother exhibited certain behaviours which were of concern, and were in line with some of the nine categories identified. 54.In her updated report dated the 11 February 2012 Dr M concluded that
Projection 55.The difficulty I have with Dr M’s assessment in part is that I also view the father’s actions as being provocative and I also regard him as being the main player in pursuing this litigation. I am very concerned that such an aggressive and litigious approach was taken and that no attempt was made to deal with the matter in a more co-operative and sensible way, especially given the father’s stated concerns about the mother’s mental health. I have been told for example that no attempts have been made at all to settle the case – either prior to the first tranche of the trial or since. It seems to me that it was the father who went on the offensive and not the mother. It was also the father who sourced a whole range of people to speak out against the mother, leaving her with no alternative but to find others who would rally in her support. This does not seem to me to be evidence of paranoid thinking on the part of the mother. Rather it appears to me to be an accurate portrayal of the reality that the mother faced. Given that how should Dr M’s assessment be approached? I accept that on the face of it that the mother seems to have some problems with inter personal relationships and that on occasion, especially when stressed, she finds it difficult to get along with others. I accept that this may have some impact on C. However – certainly in so far as the more recent past is concerned, it seems to me that some of the mother’s reactions are entirely understandable given the prevailing circumstances. Devaluing others 56.Again my main concern here is that it seems that Dr M has given more weight to the statements provided by the father than the mother. Dr M denied this when giving evidence and said that she had read everything and taken all data points into consideration when coming to her conclusions. She reiterated this in her report. As I have said, in the interests of trying to ensure that this litigation did not get completely out of hand, it has not been possible to hear from all of these potential witnesses nor for me to form an assessment of their evidence. Consequently it is not possible for me to attach any great weight to what they have said given that for every potential witness produced by the father there is another produced by the mother to counter what has been said against her. Even had I had the opportunity to hear from everyone – given the “he said, she said” nature of the evidence it is hard to see how this would have taken matters very much further. Thus although I would accept that there is some evidence of the mother having a tendency to devalue others when under stress – I would put it no higher than that. 57.In summary then Dr M accepted that the mother was not suffering from a mental illness – but she was concerned that there were certain personality traits and issues that ought to be addressed. When asked by myself, Dr M accepted that the United States tended to approach the treatment of such issues differently from the United Kingdom. She acknowledged that those suffering from borderline personality disorders or traits thereof, were generally regarded as being very hard to treat in the United Kingdom. She agreed that this case was ultimately about “risk assessment”. She also accepted that it was important that the mother continue to be fully involved in C’s life, given that C was only 6 years old and that she needed her mother. She said that she could not support the mother’s application to relocate. In conclusion she said in her final report that:
58.In so far as paragraph 3 is concerned, I do not accept that the mother’s “perceptual framework distorts situations” to the extent that that of itself is responsible for the continued conflict in this case. The father’s own approach to this matter has contributed very significantly to the very high levels of conflict in the way in which the litigation has been conducted. Nor do I accept that the father has necessarily been marginalized from C’s life or that there is necessarily any danger of that going forward. (See Dr L’s report). Dr L’s reports 59.As I have said Dr L has filed three reports. Her focus throughout has been on C’s psychological well being. Consequently she has also liaised with Dr P – who continues to see C for play therapy once a week. 60.After the first tranche of the hearing the parties, followed Dr L’s recommendations and a) effected a physical separation and moved into separate apartments; b) entered into an agreement which allowed for C to see each of her parents for part of most days. 61.Following this she filed an updated report dated the 6 December 2011 which in part also reported back on Dr P’s own observations. She said inter alia as follows:
62.In other words generally speaking, notwithstanding the separation of her parents and the stresses and strains of these proceedings, which are likely to be considerable, C seems to be doing well. This seems largely to be due to the efforts being made by both of the parents. 63.At the return hearing in March Dr L reported that the constant toing and froing between two households did not seem to be working out for C as well as had been hoped. She recommended that each parent have blocks of time with C, with the father having four days out of every seven as he was “the more emotionally stable parent”. Dr L did not explain how that might work given the father’s work commitments. She also said that she could not support the relocation application. For both Dr M and Dr L this seems to be based in part on the need for C to have regular contact with both of her parents. 64.This is revisited in the last report dated the 14 February 2012 when Dr L reconfirmed that C seemed to be doing well and that she was happy to spend time with each of her parents. She added that
65.Notwithstanding the fact that C seems to be doing well, Dr P expressed various concerns including the fact that she thought the father might be marginalized if the relocation was permitted because:
66.Dr L was asked by the mother’s counsel if this might be simply because C was missing her mother given that she is not now living with her on a full time basis? Dr L thought not – although it seems that this might be an equally valid explanation. Dr P also thought that the father was a more stable and nurturing parent than the mother and that the mother could be very “negative”. She confirmed that the present schedule was
67.In conclusion she said as follows:
68.Dr L then went on to express the same concerns as Dr M with respect to the mother’s psychological well being. She said that
69.Although I accept that the mother did misrepresent or distort some of these situations e.g. C did tell her that she had fallen off the horse, there seemed to be no consideration here of the father’s role in the nature of the proceedings themselves. She added
70.There was no discussion here of whether or not the father’s refusal to relocate back to B as originally planned also meant that he was putting his own needs infront of C’s nor was there any acknowledgment of the huge sacrifice staying in Hong Kong would mean for the mother. Dr L went on to say that
71.This list is of some concern – given that generally speaking it highlights rather minor things. For the avoidance of doubt it seems to me that the mother, as the caretaking parent has historically been the one to take the lead on things like a) which summer camp C should attend and b) her day to day care. The father acknowledges this when he gave evidence when he said that he had been told that he would need to step up a bit. I do not accept that the mother has unilaterally decided on which school C should attend in B. Proposals were made and perhaps understandably given the stage of the proceedings, the father chose not to participate fully in the discussion. Generally I do not accept that there is any significant evidence to support the notion that the mother has or that she will diminish the importance of the father in C’s life going forward. Dr B 72.Dr B filed a report dated the 14 February 2012 in which she advocated strongly on behalf of the mother. When asked during the examination why she had done so – she replied that
73.In short Dr B did not support Dr M’s diagnosis. She said
74.In order to make sure the mother also underwent the MMP1-II test (the Minnesota Multiphasic Personality Inventory II), which Dr B said supported her own conclusion – i.e. that the mother was not suffering from any psychological problems. When Dr M was asked about this test, she said that this was not a test that would be used in her circle for these types of issues. 75.In addition Dr B watched the CCTV coverage. She said
As will be seen I largely agree with Dr B’s assessment of the CCTV coverage. 76.In so far as the basis for diagnosis is concerned, Dr B went through the nine categories for borderline personality types identified by the DSM-IV – to which Dr M had referred. She said
77.In so far as the MMP1-II test was concerned she reported that
78.In conclusion Dr B added:
The CCTV coverage 79.I told the parties that I would watch the CCTV clip that they had concerns about. I have now done so. The difficulty generally with these clips is that each side has put their own slant on them. They have been further analyzed by the experts/witnesses – who have also interpreted them differently. If the mother’s primary object was to obtain evidence to counter any possible application by the husband for an ouster application – then, as I have said, she was successful in that. There is nothing in these clips that would support such an application. 80.I am also mindful of the fact that the clips I have witnessed are snap shots of the parties’ lives together with C. They cover a period from March – September 2011. The litigation had begun a few months earlier in the manner described above. The mother was suffering from a major depressive episode and was sleep deprived. Given all of that I was struck, as others have been, by the lack of anything of any real note. Dr B has described the clips as showing “these really benign situations”. I tend to agree. 81.What I do see is two parents trying their level best to parent their child in very difficult circumstances. To the untrained eye there is nothing to suggest that either parent is suffering from a mental illness of the magnitude that would prevent them from having a full role in their child’s life going forward. Occasionally one parent slips and says or does something that is unfortunate e.g. the mother denies C dessert because it is late. C has been playing with Dad. Perhaps this has annoyed the mother? In any event the mother suggests that C should have had dessert previously i.e. during the 25 minutes that she has been playing with Dad. The night before we see her giving C a bowl of something at around the same time in the evening – c 7:30 pm when the father is reading C a bed time story. The point of course is that this is inconsistent parenting. Likewise we see the father becoming overly emotional and involving C in a situation when he claims that the mother has locked her bedroom door with C inside. He escalates the situation and involves C in a way which is inappropriate. This is against a background where concerns had been expressed by the father about the mother locking C inside her room. 82.C is generally seen to be dealing with a complex situation involving adults that she loves, extremely well. She is clearly bright and you see her at times trying to diffuse a situation or to deal with undercurrents that she does not fully understand (and should not be expected to understand), in a rationale way. (E.g. “so that’s the Golden Rule”). 83.Generally though, both sides parent C, in the CCTV coverage, in a perfectly acceptable way. Neither parent is perfect – but each is a perfectly adequate parent. Perhaps most importantly C is clearly bonded to both. I was struck in particular by part of the clip of the 18 July 2011 – where the parties are having dinner together. The father is upset because C would not greet him when he came in (mainly it seems because she is engrossed in an activity with her mother. I do not accept the suggestion that there was any deliberate attempt to alienate the father from C in this clip). C serves the food to both parents. She smacks her father’s hand in a “low 5” – notwithstanding the fact that she is apparently still cross with him. Mother hands father a napkin. It is all completely normal. A family of three who were having dinner together. 84.Both sides have interpreted events depicted in these clips in ways which have at times suited their own purpose and which were later shown to be false. The father’s description to his lawyer of the events of the 19 March was clearly incorrect and exaggerated. Likewise the mother’s claim that she had not been told of the horse riding incident on the 14 August was also incorrect. I could go on. Conclusion 85.It is true that after the first tranche of the trial that I said that I accepted unequivocally the evidence of Dr L and Dr M and I gave directions accordingly. It is also of course true that this was said half way through the trial and before I had had the opportunity to hear from the parties themselves or indeed from Dr L and Dr M for a second time, nor had I had the opportunity to hear from Dr B. In addition I had not read the parties closing submissions or observed the CCTV clips for myself. My initial view – was just that – an initial view. Having now heard from all of the witnesses and having read all of the evidence I tend to agree with Dr B that it cannot be said that the mother is mentally ill – especially given the fact that she has not been diagnosed with having a mental illness as such, simply, putting it at its highest, as having features of the same. There is no sense at all that she is a physical danger to C. The suggestion is that she may however be a psychological threat to her daughter’s well being and to the father daughter relationship. Again this threat does not seem to me to be a very significant one. She may not be a perfect parent, if indeed such a thing exists, but she is certainly a good enough parent – as is the father. I accept that there have probably been occasions in the past when her behaviour has been a cause of some concern. Likewise the parties have both behaved badly at times during the course of this litigation. As I have already said the father’s litigation approach generally is not to be encouraged. It would also be helpful if the mother were to continue to have therapy with a suitable professional going forward. A Dr C has been identified as being such a person. The mother has said that she is willing to have therapy. I will hold her to that by way of an undertaking. She should continue to see Dr B while she is in Hong Kong. The social welfare reports 86.Recommendations made to the court in social welfare reports, although not binding are considered persuasive. In the event that the recommendations are not followed reasons should be given for that in the judgment. In this instance it should be noted that the first report was filed early on in the litigation – i.e. on the 7 March 2010. The second report followed on the 19 August 2011, just before the first tranche of the trial began. Ms Y, the social welfare officer, gave evidence in the first tranche of the trial. She recommended as follows:
As will be seen below - I largely agree with Ms Y’s recommendations. The character of the parties 87.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 he or she may form some view of them for him or herself. This case is no exception. The father 88.The father was softly spoken and has a gentle outward demeanour. At times this was displaced and I was struck by the fact that he seems quite steely. He is clearly a bright man and as one might expect from a CEO, he seems used to being in a position of authority. In so far as C is concerned I have no doubt that he has been as involved in C’s life as it has been possible to be, given that he has an exacting full time job which also requires regular overseas business travel. I am sure that he is a good “Dad” to C and that they love each other deeply. The mother 89.Much has been said about the mother’s personality in these proceedings. She certainly came across as being extremely forthright. She became visibly annoyed on several occasions during her cross examination. Like the father she also came across as being an extremely intelligent person. She is very articulate and I would expect her to become a very good attorney in due course. I would also accept that she probably does have a “vicious” tongue and to use the vernacular - that she calls “a spade a shovel”. She accepts that she would never win a “Miss Congeniality Contest”, but says that she is a good mother to C. I accept that to be the case. I am sure that she and C also love each other deeply. Should permission be given for C to leave Hong Kong in order to relocate to B, USA with her mother? The Law on Relocation 90.There has been much debate on the legal principles relating to relocation applications since the English Court of Appeal decision in MK v CK [2011] EWCA Civ 793. This challenged for the first time the principles first enunciated in Poel and later developed in Payne. There has also been discussion on what that might mean from a Hong Kong perspective. I have referred to this in some detail in two recent cases namely BWBP v T-KP nee DP (Relocation), FCMP 2128 of 2009 dated 1 February 2012 unreported and YY v CHOA (Relocation), FCMP7598 of 2010 dated 9 November 2011, unreported. In the former I commented on the different analysis of the law as identified by Thorpe LJ and Black LJ and said.
91.This point was picked up by Ms Irving in her closing submission for the husband when she said that
92.This is accepted. However, by the same token regard must also be had to our most recent Court of Appeal decision on this topic namely SMM v TWM (Child Relocation) [2010] HKLRD 37, which states that the principles in Payne are to be generally followed in Hong Kong. I accept that this must be the case where there is not a genuine shared care arrangement. 93.Although this was not seriously argued by the father, for the avoidance of doubt, it seems to me that given that C has been primarily cared for by the mother since moving to Hong Kong that it follows that this case falls squarely in the more traditional approach to relocation cases. The father is now more involved in C’s day to day care by virtue of the interim order following the first tranche of the trial in August 2011 as referred to above. This was a practical response to the situation that the parties found themselves in, namely a trial that was taking longer than anticipated and which had necessitated a six month adjournment. Consequently, and for the avoidance of doubt, I do not accept that this is a genuine shared care arrangement as identified in MK v CK. It was simply a short term arrangement that was put in place with the assistance of Dr L in order to provide C with a sensible parenting structure during the six month adjournment. 94.In Payne, Lord Justice Thorpe said as follows:
95.In reality, as case law has developed in England and Wales, the emphasis has been on the guidance provided by Lord Justice Thorpe as opposed to that provided by Dame Butler-Sloss. This tendency has been followed in Hong Kong. 96.I should add that given that this is an expatriate case that the other point worth highlighting can be found in F v H (Children: relocation) [2008] 2FLR 1667 where it was held that
97.In this case it is clear that the mother wishes to return “home”. She is therefore returning to a “completely familiar environment”. I accept therefore that prima facie the bar should be set at a low level. 98.Ms Rattigan has also referred me to a case decided by my brother Judge – HH Judge Bruno Chan in M v B (Removal of Children from the jurisdiction) [2009] HKFLR 349, where it was held that the mother should be able to relocate to Australia with the two children of the family. 99.In that case, as here, the Judge was charged with balancing the different options, one against the other, and deciding ultimately what was in the best interests of the children of the family at that particular point in time. I will engage in the same exercise in this judgment. Discussion Are the proposals genuine or are they made with the intent of bringing contact between father and C to an end? 100.The mother wishes to relocate back to B. She is an ex patriate. She came to Hong Kong at the behest of the father for a period of between 3 – 5 years. There was never any sense that this was to be a long term or permanent move. The marriage has disintegrated in quite spectacular fashion and the mother has had a major depressive episode from which she now appears to be thankfully recovering. I accept that her proposals are genuine in the sense that she wishes to return home and to settle in B. She wishes to re-establish her career as an attorney – something that is not possible in Hong Kong. She wishes C to be brought up as an American and to experience all that that might mean from a cultural perspective. She wishes to be in closer contact with her family. In an ideal world she would like the father to also relocate back to B so that they are able to “figure out” a way to continue to effectively co parent C in the future. I do not accept that in doing so that she wishes to distance C from the father with a view to excluding him from C’s life going forward – although the father clearly fears this. Rather as will be seen below, the sense one gets from the evidence is that the move back to B is simply about returning “home”. Is the mother’s application realistic – i.e. founded on practical proposals both well researched and investigated? 101.The mother has filed several detailed affidavits in which she sets out her practical proposals for the move back to B. She intends initially to live with her mother, who gave evidence on her behalf, and to settle C into school. The maternal grandmother lives in a property with a self contained apartment attached. The mother and C would live in that apartment. Eventually the mother would hope to purchase her own property. She has identified several schools in the area and has an offer of at least one school place. The father complains that he was not properly consulted. The mother says that he has refused to engage with her on this issue. In either event this is something that can be considered again at a later date if necessary. The mother intends to worship in a local church and to return to work once C is settled, probably for a non profit where it is possible to work regular hours. Her mother would assist with child care. The mother has made sensible proposals for access. What is the basis of the father’s opposition? Is it motivated by a genuine concern for the child’s welfare? Is there some ulterior motive? 102.The basis of the father’s opposition has been his stated concerns about the mother’s mental health. I remain sceptical however about the way in which the father has chosen to conduct these proceedings. I am concerned that the father’s overly litigious approach was partly because he wished to obtain sole custody and care and control of C, almost at any cost. What would be the extent of the detriment to him and his future relationship with C? 103.The father’s agreement with his company was initially for a three year period, with the possibility of a further extension of two years. Thus in the normal course of events the parties might have expected to return to B in March 2011 at the earliest and in March 2013 at the latest. The father now says that he may be required to stay in Hong Kong for longer period because of succession difficulties. Although that may be true there appears to be little doubt that the father will return to B in due course. If he were to do so sooner rather than later then there would be no or very little perceived detriment to him and his future relationship with C. In the event that he is unable to do so I accept that his absence from C’s day to day life would be a significant blow to her. To what extent would that be offset by the extension of the child’s relationship with the maternal family and homeland? 104.C appears to have a close relationship with her maternal Grandmother and Aunt, both of whom gave evidence on the mother’s behalf. C told her Aunt, Ms T that she was “the saftiest” of all the adults. I take it from that that she feels safe and secure with her Aunt. This is to be encouraged. As I have said C seems a very bright and empathetic little girl. What would be the impact on the mother if the relocation is refused? 105.I accept that the mother would be devastated if her application was refused longer term. What would be the impact on the father if the relocation is permitted? 106.Although the father says that he would also be devastated it seems to me that he should be in a position to ensure that his own relocation is possible within a reasonable time frame. Conclusion 107.Given all of the above I agree that it would, if possible be in C’s best interests if both parents were in the same geographical location as each other. Although I accept that the mother is not suffering from a mental illness, clearly there are some psychological issues that will need to be addressed on an ongoing basis and the mother will need some form of continual psychological support. She is getting that support at present from Dr B and as stated above I will expect her to continue to receive therapeutic support in B. C is close to both parents. They are both able to effectively parent C – although I accept that it is the mother who has until very recently been the full time caretaking parent. The father has taken on a bigger role since the first tranche of the trial in August with the assistance of his sister, Ms C and his domestic helper. Going forward both parties will need to rely on third parties to assist in child care. 108.Having weighed up all the pros and cons, I will allow the mother’s application – but this shall only take effect from the end of March 2013. As I understand it this should also coincide with the end of the spring term at school. The mother will therefore have permission to relocate back to B with C with effect from the 28 March 2013. I wish to give the father every opportunity to try to relocate back to B within the same time frame as the mother. It is at the end of the original term anticipated in the letter of offer – so it should not be outside the realms of possibility that this might infact be an option. In the event that the father is unable to return to B then the mother should be allowed to relocate with C in any event. She cannot be expected to wait for the father indefinitely. 109.It seems to me that had I refused the mother’s application outright that she would have been left in an untenable position. She would have been expected to remain in Hong Kong with no reasonable prospects of employment. She would be completely dependent on the father financially. The parties would be sharing the care of C, but other than that she would have no other reason to remain in the territory. Although she has friends here there is no doubt that she lives in an ex patriate world. I posed the question during the trial – what would happen if the father was posted to somewhere else overseas? Would the mother be expected once again to follow the father so that he could have frequent and regular contact with his daughter? If so how would that work? All kinds of issues flow from this. I was told that this was a highly unlikely scenario given that the father would almost definitely be returning to B. If so it seems to me that every effort should be made to ensure that this happens sooner rather than later. Thus I accept fully the recommendation made by the Social Welfare Officer. It is also the solution suggested by others including the mother’s family members. What orders should the court make for custody, care and control, access/shared care? The law Custody, Care and control, access and shared care 110.The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13.
111.The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that: GENERAL PRINCIPLES
112.Case law has developed over time and the most recent and authorative explanation of the terminology used in our courts can be found in the Court of Appeal decision in PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010. Given the international nature of this case it seems to me that it might be helpful if I quoted this explanation in full. In it the Hon Mr Justice Hartmann, JA, said as follows:
He concluded
113.Thus it is generally accepted that joint custody means that the parents should in an ideal world be able to make the major decisions concerning their child’s life together. Sometimes orders for joint custody are aspirational, as in the first instance decision in PD v KWW. The orders are made in the hope that the parties’ will be able to work towards co-operating with each other in the future. Joint custody orders are also sometimes made in part so that each party’s role in the child’s life going forward is clearly identified. 114.Shared care is also developing as a concept. In H v H CACV No 42 of 2002 the Court of Appeal first upheld an order for “shared care”, made by Hartmann J as he then was, commenting as it did that
115.The Judge then set out in detail how that care was to be shared. There was no order for access per. The parties were effectively splitting the child’s time in the way set out in the order. Judges have continued on occasion to make orders for shared care as opposed to orders for care and control and access. In the case of RWS v KCC, FCMC 9661 of 2010 unreported I made an order for shared care as it seemed to me that this more accurately reflected the reality of a parallel parenting regime. In doing so I commented as follows:
Detailed arrangements were then set out accordingly. Custody 116.Ms Irving for the father says that this is not a case where a joint custody order can be entertained. She says that an aspirational order would simply not work. With respect I do not agree. The mother’s problems have never been of such a magnitude that a sole custody order in her favour or a joint custody order could not be entertained. There has never been a suggestion that she is not fully capable of making perfectly sensible decisions about C’s future. The father fears that he would not be fully involved in the process. The only major outstanding issue at present is with respect to C’s schooling in B. A number of schools have been suggested. The longer time frame will enable the parties to investigate the various options fully and for C to attend school interviews as appropriate. In the event that the parties are unable to reach agreement on this issue then they may return to court for further directions as necessary. I very much hope however that this will not be the case. Consequently I intend to make an order for joint custody. In doing so I am also conscious of the fact that this may be more in keeping with the kind of order that one might expect from a court in America in any event. Care and control, access and shared care 117.Given the present situation it seems to me that this case lends itself to a shared care regime whilst the parties remain living in this jurisdiction. This is reflective of a parallel parenting approach as referred to in paragraph 115 above. 118.Each party has made various proposals in their closing submissions. The father’s proposals 119.The father suggested in his closing submission as follows:
The mother’s proposals 120.The mother put forward the following proposals:
Parenting regime in Hong Kong 121.C is used to spending a considerable amount of time with each of her parents. I can see no reason why this should not continue – on a more or less equal basis whilst both parents continue to reside in Hong Kong – i.e. until on or after the 28 March 2013. I have given considerable thought to whether or not this is appropriate given the high level of conflict between the parties. Although this is so – it seems that this is mainly contained to the proceedings themselves. Now that the parties are living apart I can see no reason why a shared parenting regime should not work – especially if third parties are available to help with pickups and drop offs. The parties have engaged a mediator to help them with day to day problems arising out of their care of C. Again I can see no reason why this should not continue in the short term. In the longer term, once hopefully the parties are living in B, they should be able to avail themselves of the assistance of either a mediator or a parenting coordinator. I am also conscious of the fact that the experts are of the view that the input of both parents is necessary going forward. 122.The father now proposes that C should spend time with his sister, her Aunt C after school on his “days”. This is in order to limit the prospect of any situational conflict arising and to counteract the effect of the constant to-ing and fro-ing between two households. My difficulty however is that the case law clearly states that if a parent is available then generally speaking, if there is a choice, a child should spend time with a parent over and above another family member. Although this principle does not normally extend to access – I can see no reason why the same logic should not apply. (See L v C CACV 333 of 2007, in Aslam v Ali CACV 144 of 2003 and P v P, CA 256 of 1996). Given that, it seems to me that the best solution would be for C to continue to be picked up by her mother from school on father’s days and to spend time with her in the afternoons before he is available at c 5:30 pm. I would suggest that if at all possible a third party now be engaged to help with that pick up – perhaps the father’s domestic helper or his sister. However on Fridays it seems to me that it would be best if the mother picked C up from school and took her to Dr P’s for her play therapy and for either the father or a third party to pick her up from Dr P’s office at the end of the session. 123.It seems clear that C would do better with blocks of time. The father’s proposal gives him four nights in every week. The mother’s proposal would mean that C is based with her for the majority of the time. The order that I intend to make will mean that C spends 7 nights with each parent in every two weekly cycle. The father has proposed that each party has a complete weekend – while the mother has proposed splitting the weekends. What follows will give the father more time over the weekends but will also ensure that both parties have alternate Sundays with C – which given their Church commitments seems sensible. During term time 124.Week 1 – The mother will have C for Monday, Tuesday and Wednesday and Sunday night. 125.The father will have C for Thursday, Friday and Saturday night. 126.Week 2 – The mother will have C for Monday, Tuesday and Wednesday night. 127.The father will have C for Thursday, Friday, Saturday and Sunday night. The father will drop C off at school on Monday morning. Thus the parties will have C for blocks of three or four days at a time. 128.The father has suggested in paragraph 119 (266) that the hours currently governing the existing order remain in place. I agree. Therefore in week 1 the mother will pick C up at 9:00 am on Sunday morning as this is her weekend access day. 129.The mother shall pick C up from school each school day. On Thursday’s C shall be picked up by either the father or a third party at P. As the father will have access Thursday evening – he is responsible for picking C up. On Friday’s the mother shall take C to her appointment at Dr P’s and either the father or a third party will pick C up from Dr P’s at the end of the session. In the event that C does not have play therapy the father or a third party shall pick C up from P at 5:30 pm. 130.Thus there shall be an order for shared care of C. As stated above this is also more in keeping with a parallel parenting regime. For the record I would reiterate that the parties should continue to seek the assistance of a mediator or parenting co-ordinator to help them with every day issues. 131.The parties shall continue to have access to C on alternate public holidays. Non public school holidays which do not fall within other scheduled school holidays i.e. parent teacher conferences shall be treated as a normal school day and C shall spend it with either the mother or father according to the schedule set out above. (See paragraph 119 (266) above). Holidays until 28 March 2013 132.The summer school vacation 2012 is to be split between the parties on a 50:50 basis. In the absence of any agreement the father shall have the first half of the holiday and the mother shall have the second half. The calculation of time shall be as suggested by the mother i.e.
Subject to the normal undertakings being filed by each party – both shall have leave to remove C from the jurisdiction of Hong Kong during that period. 133.The father shall have the October half term school holiday. The mother shall have the school Christmas holiday 2012. The father shall have the Spring break/Chinese New Year school holiday 2013. Given that Easter immediately follows the date given for the proposed relocation, the mother shall have the Easter school holiday 2013. Arrangements after 28 March 2013 134.In the event that the father is also able to relocate as is hoped then I would expect the current term time regime to continue until further order. In so far as holiday arrangements are concerned I would expect the holidays to be split on a more or less equal basis, with the parties alternating the major holidays as generally proposed above. I accept that access shall take place in either B, USA or Hong Kong or elsewhere by agreement during the longer school holidays i.e. Christmas, Spring break and the long summer vacation. Undertakings to inter alia return C to the jurisdiction of M, USA to be given by the parties as appropriate. 135.The summer school vacation 2013 shall be split between the parties equally in the manner prescribed in paragraph 132 above. The father shall have the first half of the holiday and the mother the second half. Going forward the parties shall alternate the first and second half of the holidays with the mother having the first half of the holiday in 2014 and so on and so forth. In the event that both parties are resident in B whoever has C for the second half of the holiday will be responsible for her preparation for the new school year. 136.Thus the father shall have the Christmas school holiday 2013 and thereafter he will have all of the odd years going forward, with the mother having C for her Christmas school holiday 2014 and for all even years going forward. 137.The mother shall have the school Spring break 2014 and for all even years going forward and the father shall have the school Spring break 2015 and all odd years going forward. 138.The shorter Easter and Thanksgiving school holidays shall also be split and alternated between the parties. I accept that these holidays shall be taken in the United States. In 2013 the Father shall have the Thanksgiving holiday and thereafter he shall have Thanksgiving in all odd years going forward. The mother shall have Thanksgiving in 2014 and in all even years going forward. In 2013 the mother will most probably have had the Easter school holiday. Going forward she shall have it in all odd years, whereas the father will have the Easter school holiday in 2014 and in all even years going forward. 139.In the event that the father is not able to relocate then I accept that he should be entitled to slightly more than 50% of the school holidays. He should also be entitled to access by skype, phone, text and e-mail. Consequently notwithstanding the indication that I gave during the trial, I will give the parties leave file a further written submission setting out their access proposals, in the event that they differ from the proposals already set out above, prior to any further orders being made with respect to defined access. 140.In either event I will hold the mother to her proposed agreements to be expressed as undertakings as set out in paragraph 120 (P), (Q), (T), (W), (X) and (Y). Likewise I would expect the father to provide an agreement also to be expressed as an undertaking in the terms of paragraph 120 (R), (T), and (U). Conclusion 141.Upon both parties undertakings as set out above I will give leave for the Mother to permanently remove C out of the jurisdiction of Hong Kong, not earlier than the 28 March 2013. The parties shall have joint custody and shared care as set out in paragraph 124 – 131 above during the period that they are both resident in Hong Kong. This order will remain in force in the event that both parties relocate to B within a reasonable period of time i.e. by the beginning of the academic year 2013. In the event that the father is not able to relocate then the order for shared care shall be varied, to the extent that care and control shall be vested in the mother with reasonable access to the father, such access to be further defined by agreement or court order as necessary. Are these orders ultimately in the best interest of C? 142.This has been an extremely emotional and difficult case. It seems to me that these orders are ultimately in the best interest of C and are the best that can be devised in the circumstances. Costs 143.The parties have spent an enormous amount of money on legal costs. Litigation conduct has been a matter of some considerable concern as stated above. Consequently notwithstanding the fact that this is a children’s case I have nevertheless decided to adjourn the issue of costs for argument. Both parties have leave in the first instance to file and exchange a written submission on costs within the next 28 days. Further each has leave to also file and serve a reply within 14 days thereafter. Further directions will be given after those written submissions have been received. The parties shall also restore this matter in the First Appointment list.
Ms F Irving instructed by Messrs Mayer Brown JSM for the Petitioner Ms M Rattigan instructed by Messrs Withers for the Respondent | |||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under FCMC 16497/2010