Fkyp v. Khyf

FCMC 7952 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7952 OF 2012

----------------------------

----------------------------

---------------------------------------------------------------------

J U D G M E N T
(Application for Leave to Appeal and Stay of Execution)
(Care and Control)

---------------------------------------------------------------------

1.I shall refer to the petitioner father and the respondent mother as the father and the mother respectively.

2.This application for leave to appeal and stay of execution concerns the care and control of the twin daughters of the parties, born on 28 February 2007.  At the conclusion of the hearing of this application, the application was refused with reason to be given in writing.

3.After a 12-day trial, by my Judgment handed down on 28 August 2013, it was ordered that:

(a)  Joint custody of the children of the family be granted to the parties;

(b)   The care and control of the two children be granted to the mother with reasonable access to the father; and

(c)  Permission is granted to the mother to bring the children back from Shanghai to Hong Kong.

4.By this application, the father applied for leave to have the Court of Appeal moved for an order that the said order dated 28 August 2013 be set aside to the effect that the care and control of the children of the family be granted to the father and the children shall continue to reside with the father in Shanghai with reasonable access to the mother.

5.It is not in dispute that in order for leave to appeal to be granted, it is necessary for the father to persuade the court that the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.  Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”. without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at para 17.

6.A draft Notice of Appeal in support of the application for leave to appeal has been filed on behalf of the father.  It is argued on behalf of the father that the draft Notice of Appeal raises important points of fact and law, including the appropriate guidelines to be applied in a relocation case.  The father refers to the draft Notice of Appeal and says that the appeal does have a reasonable prospect of success.  It is contended that this was a case where the father did have a significant care of the children and therefore the threshold for relocation would be set very high.  There having not been a Hong Kong Court of Appeal decision re-considering the position of relocations in the light of K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793, it is further argued on his behalf that the development of Hong Kong’s jurisprudence and future guidance for the Family Court Judges in this difficult area of children law is good reason why in the interests of justice that the appeal should be heard.

7.The draft Notice of Appeal contains ten proposed grounds of appeal, i.e.:-

(1)  The learned Judge erred in accepting the Mother’s assertion that she would not be returning to the work force after the conclusion of the proceedings and wrongly concluded that it was therefore in the children’s best interests for care and control to be granted to the Mother…

(2)  In considering which of the parents to whom care and control should be vested, the learned Judge failed adequately or at all to consider inter alia:

(a)  the children’s wish as expressed to the Social Welfare officer not to be so removed;

(b)  the answer given by MK to the police clinical psychologist that she liked being in Shanghai because she wanted to be with the Father; and

(c)  the impact on the children of removing them from the day to day care of the Father with whom they had lived since January 2012;

(3)  Further or in the alternative, when considering which of the parents was the more appropriate parent to whom care and control should be vested, the learned Judge failed to consider which parent was more likely to encourage and/or facilitate access, and/or to weigh against that consideration the Mother’s multiple breaches of court orders relating to access and/or her undertakings to the court, including her breach of her undertaking not to feed the children dinner before returning them to the Father each weekday evening & Saturday evening, which breach had continued until the date of the hearing in May 2013.

(4)  If, which is not accepted, it was in the children’s best interests for care and control to be granted to the Mother, having found that it was a family arrangement for the children to be relocated to live and attend school in Shanghai “without an end date” the learned Judge failed adequately or at all to consider that it was in the children’s best interests for the said care and control to be exercised by the Mother in Shanghai.

(5)  Having found inter alia that

(a)  the children had been relocated from Hong Kong to Shanghai with the consent of both parties and that such move was envisaged to be “without an end date”;

(b)  it was a family arrangement that the children would live with their father in Shanghai while the mother would remain in Hong Kong;

(c)  the Father had participated significantly in the care of the children; and

(d)  this was not a standard application on behalf of the mother for removal of the children from Shanghai to Hong Kong as envisaged in Payne v Payne.

(e)  The learned Judge erred in ordering the removal of the children from Shanghai to Hong Kong in that:

(i)  he failed to consider the evidence of the Mother’s antagonism towards the Father and her outrageous accusations against him, including her groundless allegations of “moral harm”, as being part of her design to exclude the Father from the children’s lives and/or distance the children from the Father;

(ii)  he had accorded undue weight to the Mother’s assertion that she had been the children’s “primary carer”;

(iii)   the learned Judge failed to accord any or any sufficient weight to the evidence that historically the Father had played a significant role in the children’s care, evidenced inter alia by the fact that in August 2009 when the children were 2½ years old, (and subsequently 1 year later) the Father was able to take care of both children in Tokyo single-handedly, consistent with the Father having been closely involved with the daily care of the children over a considerable period of time and the Mother being confident in his ability to so care for the children;

(iv)   in the circumstance the learned Judge had wrongly found that the Father was not living in the former matrimonial home for the period from August 2007 to July 2008;

(v)  the learned Judge wrongly accorded weight to the Mother’s wish to return to Hong Kong and/or the alleged impact of a refusal of the Mother’s application to remove the children from Shanghai when the same amounted in the circumstances of this case to a presumption in favour of the Mother.

(6)  In the circumstance, the learned Judge had failed to consider and give due weight to the fact that, the parties having agreed to relocate the children to Shanghai, thereafter the children’s habitual residence was Shanghai and that in the absence of clear evidence that it was in the children’s best interests to return to live and attend school in Hong Kong, the children should not have been removed.

(7)  The learned Judge had failed to give sufficient weight to the fact that the children had settled well in Shanghai, were attending an excellent school there, chosen by both parents and that if they were to return to Hong Kong they would be uprooted from such an environment and would in all probability have to repeat Primary One in that he had failed to take into account the psychological, emotional, cultural, educational and linguistic implications of such move and the effect that this would have on the stability and security of the children.

(8)  Further or in the alternative, there being no evidence that living in Hong Kong was superior to living in Shanghai, there was no or no sufficient basis for the learned Judge’s conclusion that Hong Kong is the children’s home and that it was in their best interests to live and grow up in the social and cultural background of Hong Kong.

(9)  Paragraph 1 hereinabove is repeated and in the circumstances, the learned Judge failed adequately or at all to consider and accord sufficient weight to the recommendation of the Social Welfare officer that in the event that the Mother would return to work, the status quo should be maintained.

(10)   Further or in the alternative, the learned Judge failed adequately or at all to consider the importance of maintaining the status quo and/or the impact on the children of altering the same.

8.In my Judgment,

(a)  the mother is devoted to the interests of the children and “indeed spent a considerable amount of time with the children on a day-to-day basis.  The mother gave up 3 years of her prime time from Sept 2006 to Aug 2009 to stay at home to take of the children full time until they were 2½ years old.  After the resumed working in August 2009, she tried her best to squeeze time to take care of the children … The mother has stopped working since early July 2012.  She is still fully involved in the care of the children.”(para 39)

(b)   Despite the father’s allegation of the mother being career-minded and was in the search of job openings before the service of the Petition on her, I have rejected the father’s contention that the mother’s decision to stay out of work is tactical.  On the contrary, it is my finding that “the Mother’s present position that she wants to be a stay-at-home mother in the near future is made out of her genuine love and care for the interests of the children and is not a tactical decision.  It is given that divorce introduces a massive change into the life of young children.  I regard that it is understandable that, in face of the father’s petition for divorce, the mother now wants to take care of the children on full time basis and commit to the making of a new family arrangement work.”(para 71)

(c)  I have considered the father’s allegations of being a hands-on father but have preferred the evidence of the mother and the maternal grandmother in regard of how much time and effort the father and the paternal grandparents spent on the care of the children. (para 54)

(d)   I have found that the move to Shanghai was a family decision jointly taken by the parties in consideration of the children’s best interest in their schooling and I have rejected the father’s contention that the move was arising from the mother’s own selfish motive of pursuing her career advancement. (para 63)

(e)  I have found that the mother was genuine concerned about whether her children were exposed to indecent adult sexual acts. (para 68)

(f)  After hearing the evidence, I do not agree that the mother is a violent or abusive mother. (para. 56)

(g)  As to the children’s wishes, I have considered the report by Mr. Lam and have concluded that this is not a matter of significant concern in the present case. (para 72)

(h)   I have considered the father’s argument on status quo of the children but have come to the conclusion that “in cases where both parents have maintained very close contact with the child and the child is thoroughly familiar with the surroundings offered by both parents, the disruption caused as a result of a change in custody will be much less … After they went to Shanghai, they returned to Hong Kong 7 times.  Hong Kong is not a strange place but a completely familiar place for them.  When they returned to Hong Kong, they are coming to their home.  They are going to live in Mei Foo and taken care of by the mother and the maternal grandmother, who have been fully involved in the care of them since they were born.  In the circumstances, I do not see that the children will have any significant adjustment problem if they are to be removed back to live in Hong Kong.” (para. 79)

(i)  I have also considered the mother’s conduct when she disobeyed court orders for returning the children to the Father and held the view that the mother is not an unreasonable person. “The way I see it, last year has been an incredibly difficult time for the mother.  No doubt she has been struggling to deal with the present situation.  She has come a long way and I regard that although she was devastated by the breaking down of her marriage she is now ready to move on.  In my view, the present difficulty over access to a great extent is the result of lack of trust and a high tension between the parties which is largely a by-product these proceedings.” (para. 95)

9.It appears to me that despite it has been argued otherwise on behalf of the father, the grounds of appeal simply raise complaints about the weight given by my to particular evidence in the exercise of discretion.  In reaching my decision, I have done a balancing exercise. I have borne in mind the “checklist” of factors and have had the best interests of the children of the family firmly in mind when considering the issues of the case.  All in all, I am satisfied that the intended appeal does not have a reasonable prospect of success.

10.Also I agree with the submission forwarded on behalf of the mother that it is difficult to see how the father can argue his case on other reasons in the interest of justice.  The father cannot deny that his stay in Shanghai is primarily linked to his employment and for no other reasons.

11.Accordingly, it is ordered that the application for leave to appeal and the consequent application for stay of execution be dismissed.  Unless I receive submissions to the contrary within 21 days hereof, I shall make no order as to costs, save that the respondent mother’s own costs be taxed in accordance with Legal Aid Regulations.

12.At the conclusion of this hearing, it was noted on behalf of the father that he might consider the option of taking this matter further and thus an interim stay of execution of the order for the return of the children of the family to Hong Kong should be granted.  Both parties accepted that in matters concerning children, delay is undesirable.  At the same time, the risk of a change of residence and a change back again, if the intended appeal is allowed, should be avoided.  In the circumstance, upon the father’s personal undertaking to this court that he shall take out an application for leave to appeal before the Court of Appeal, if he desires so to do, within 7 days of the hand-down of the reasons of this decision in writing, it is ordered that the date for the return of the children to Hong Kong be postponed to 4 November 2013.

Ms. Corinne Remedios instructed by Messrs Howse Williams Bowers for the petitioner

Ms. Jennifer Tsui instructed by Messrs Kevin Ng & Co. for the respondent