X v. Y
Read the full judgment text of FCMC 15416/2010 on BabelCite. This Family Court judgment was delivered on 25 January 2013 before Her Honour Judge Sharon D. Melloy.
Family law – Relocation – Custody – Best interests of the child – Adoption – Financial necessity – Non-care taking parent – Whether relocation to Australia is in children's best interests – Whether joint custody appropriate – Relocation application dismissed; Joint custody granted; Care and control to mother
Legal issues: Relocation Application · Custody and Care and Control
Outcome: Relocation application dismissed; joint custody granted; care and control to mother
Cited by 3 cases · Cites 4 cases
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FCMC 15416/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 15416 OF 2010 ----------------------------
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-------------------------- J U D G M E N T -------------------------- Introduction 1.This is an application by a respondent father for leave to permanently remove the three children of the family out of the jurisdiction of Hong Kong in order to relocate with them to Australia. The children, A and B both girls are aged 13 and C, a boy is aged 8. All three children are adopted. The mother opposes the father’s application. She wishes the children to remain in Hong Kong with her. 2.This case has several unique features. The first is that the application to relocate is made by the father, even though he is not presently the care taking parent. He claims that he was responsible for caring for the children for the much of the time, prior to the parties’ physical separation in September 2011. However the fact remains that parties have not shared the care of the children since that time. This is therefore, in effect, an application by a non care taking parent to relocate. The father makes this application because he says that it is impossible for the family to remain in Hong Kong now that he is retired. In other words he makes the application through, what he considers to be, financial necessity. This makes it very different from the normal run of the mill relocation cases, which generally fall into two distinct categories: a) applications made by care giving parents to return “home” following the breakdown of their marriage and b) applications made by care giving parents to relocate to a third destination generally either because of a new relationship or job opportunity. There is a third category of case, the so called “shared care” category that began with Re:Y, although it would be fair to say that Lady Justice Black in MK v CK [2011] EWCA Civ 793 prefers to regard all of these cases as being part of a continuum. However, notwithstanding that, given these unusual features, it seems that this case falls outside the normal ambit for determining relocation cases. 3.The second point to note is the factual matrix, which is also unusual. All three children are adopted. The parents are both Australian, but have lived outside Australia for most of their adult lives. They are also older parents. The father is now aged 60; he retired during the course of these proceedings. The mother is aged 59. The elder two children, both girls, were adopted out of an orphanage in Thailand. C, a boy is of Vietnamese descent and was adopted in Hong Kong. There were significant difficulties in the adoption procedure for A and she only joined the family on a full time basis in January 2010. Each child has their own particular needs. They are presently being educated in three different schools. Both of the girls have some health issues. A has had a thyroid problem and B has Thalassemia. It has also recently been discovered that C has only one kidney. 4.From the father’s perspective this is really a very straightforward case. Put simply he says that the parties cannot afford to live in Hong Kong post his retirement. He believes that he will only be able to provide for the children adequately if he is given permission to relocate with them back to his home town in M, a small town in New South Wales, Australia where the cost of living is lower and where he has the support of his wider family. Although the mother has worked during the course of the marriage, it would be fair to say that she has never been the main bread winner. Historically it is the father has always taken up this role. 5.In terms of formal applications before the court – the father seeks to relocate to Australia with the children. He also asks for an order for sole custody and care and control. The mother for her part opposes the relocation and seeks an order for joint custody, with care and control of the children to her and reasonable access to the father. What are the main issues to be considered? 1) How should the court approach this case given its unique features? 2) Should permission be given for one or more of the children to leave Hong Kong in order to relocate to M, New South Wales, Australia with their father? 3) How should the children’s time be allocated between their parents once the relocation issue has been determined? 4) What orders should be made for custody, care and control, access and/or shared care? Background to the marriage 6.The parties originally met in July 1996 and subsequently married in February 1998 in Hong Kong. This was the father’s third marriage and the mother’s first. The father has four grown up children from his first marriage, who live in Australia, Canada and Hong Kong respectively. 7.The father has lived and worked in Hong Kong since 1980 when he joined a well known airline in the territory. Until recently he was employed as a specialist, which involved training both pilots and engineers. The mother for her part was primarily involved in the fitness industry. She has lived in Asia since 1987 – initially in Singapore and Malaysia and latterly in Thailand. She was based in Thailand when the parties first met and at first she would split her time between Hong Kong and Thailand. She has recently obtained a real estate sales agents licence in Hong Kong and she intends to work in this field going forward. 8.The parties decided to adopt and initially identified both girls when they were visiting an orphanage in Pattaya, Thailand in June/July 2000. Unfortunately, as noted above, there were some difficulties with A’s adoption process, namely that her birth mother could not be located, which resulted in her not being formally adopted by the parties until January 2011. She began to live with the family full time in Hong Kong in January 2010. She would have been 10 years and 4 months old at the time having been born in September 1999. Prior to January 2010 the parties visited her on a regular basis at the orphanage and on occasion she stayed with the family in Thailand for weekends or during the holidays. The father says that the parties invested in real estate in Thailand in order to support their application to initially foster A and ultimately to adopt her. He says that they needed to demonstrate an intention to live in Thailand for at least part of the time. 9.B was adopted in February 2003 when she was 3 years and 3 months old. She was born in November 1999. She resided with the mother in Thailand prior to her adoption from 8 May 2002 – 25 February 2003. The mother was the primary care taking parent during that time – although the father also travelled to Thailand frequently in order to assist with her care. 10.C’s adoption in Hong Kong was completed in June 2005. He was placed with the family when he was 5 months old. C was born in Hong Kong – although he is of Vietnamese descent. 11.Consequently B and C have been brought up together from an early age whereas A was only fully integrated into the family at the beginning of 2010 – three years ago. All three children now have Australian citizenship. A and B also continue to hold Thai citizenship. They will need to decide which citizenship to keep once they reach the age of 18. B also has a Hong Kong ID card and is a permanent resident. C will be able to apply for permanent residency when he is 11 years old. A is in Hong Kong on a dependant’s visa. The breakdown of the marriage 12.The parties separated in September 2010 but continued to live under the same roof, although it would be safe to say that relations were very strained. There were a number of violent altercations between the parties including an incident on the 8 October 2010 which resulted in the mother suffering a cracked coccyx and extensive bruising. Each party gives a different account of this incident and the situation within the home generally at that time. The children witnessed much of what went on. Both parties were consequently bound over as a result of this particular incident. On the 22 November 2010 the mother issued divorce proceedings on the grounds of the father’s unreasonable behaviour. Although the parties continued to live in the same property, the father slept in a self contained unit on the ground floor which the mother had previously used as an office. The mother and the children lived upstairs in a larger space in what had been the main part of the matrimonial home. 13.On the 7 September 2011 there was a further serious incident, which was witnessed by B. The police became involved and B was asked to make a statement to the Police, notwithstanding her young age. The father was released on bail. However one of the bail conditions was that he should not have any form of contact with B, who was by that time a court witness. The father left home following this incident. Shortly thereafter on the 11 October 2011 the mother issued an ex parte summons on notice seeking injunctive relief namely a non molestation order and an ouster order against the father. The injunction was settled on the basis of cross non molestation undertakings, together with an undertaking by the father not to return to the former matrimonial home. Since then both parties have moved into new accommodation. The children have continued to reside with their mother. 14.On the 11 October 2011 the father filed an Answer and Cross petition. The suit subsequently became defended. 15.It is fair to say that each party has made serious allegations against the other. The mother accuses the father of being physically intimidating and of verbally and physically assaulting her. The father claims that the mother is emotionally unstable and that she has an alcohol problem. He questions her parenting ability and maintains that he is the better parent. 16.Notwithstanding these very serious allegations the parties were eventually able to come to terms and sensibly agreed that the divorce suit would be resolved on the basis of cross decrees on “mild behaviours”. The present arrangements for the children 17.Access arrangements have been problematic since the separation. The father was particularly concerned about his ability to see B, immediately following the incident on the 7 September 2011, given the bail conditions. He did not wish to see the other two children in B’s absence. From the transcripts it is clear that he began to see them, at least from the 18 October 2011. On the 4 November 2011 the father issued a summons seeking custody of all three children and permission to relocate with them to Australia. 18.On the 28 November 2011 an order was made for access in the following terms:
This arrangement has remained in place until now. The ongoing litigation 19.The parties have been in and out of court on a regular basis since this order was made with respect to other issues including interim financial support for the mother and the three children and litigation funding. There have also been other issues in relation to overseas holidays, with the father refusing to consent to the mother taking the children to Thailand, notwithstanding the family’s obvious links to that country. There have also been other difficulties with respect, for example, to the division of household articles and other personal items from the matrimonial home. How should the court approach this case given its unique features? 20.It is true, as Thorpe JA has said that in most cases that come before the courts, whether in Hong Kong or England and Wales, there is normally one clearly defined primary carer of the children. The children are normally based with one parent who has de facto care and control. That parent will probably have the children with them for more of the time and that parent will generally be responsible for most of the day to day decision making. In this case however, the father challenges the assumption that the mother has historically been the care taking parent. Notwithstanding that it is clear that she is presently the primary care taking parent. But she is not seeking to relocate. The father is. In such circumstances how should the court approach the matter given what has become established precedent? 21.Mr Poll in his closing submission suggests the following as the appropriate discipline to be adopted. He asks the questions:
Although I appreciate that there is some sense to this approach – as will be seen below I have decided to take a slightly different route. What does the law actually say? 22.In my most recent analysis of the law on relocation in Re: JHCI v MSYI (formerly known as MSY), FCMC 12528/2011 unreported dated the 15 January 2013, I said as follows:
What approach should the court adopt here? 23.Consequently it seems to me that it is incumbent on me to consider this relocation application on the premise that the welfare of all three children is paramount and that I must consider what is in the best interests of each individual child. In doing so I am bound by Hong Kong’s Court of Appeal decision in SMM v TWM (Child Relocation) [2010] HKLRD 37. This does not, however, consider the situation where the application to relocate is made by the non care taking parent. Given all of this it seems to me that the most appropriate approach for the court to take is this:
24.I have considered the approach suggested by Mr Poll as set out in paragraph 21 above. The difficulty I have with it, however, is that in line with the father’s case it seeks to highlight the parties’ financial circumstances. Although this is one of the factors that I need to take into account, and it is a very important factor, it is not the only or even the most dominant aspect of this case. I do not wish by the very nature of the questions raised to give undue weight to this particular point. By relying on the Payne protocol it seems to me that this should be avoided. 25.Thus I will ask the following questions: a) Is the father’s application to relocate to M in New South Wales, Australia, genuine in the sense that it is not motivated by some selfish desire to exclude the mother from the children’s life? Is the father’s application realistic i.e. are his proposals practical and both well researched and investigated? (This will include an assessment of the father’s case on the family’s financial situation). I will ask similar questions of the mother: b) Is the mother’s opposition to the father’s plan genuine? Does she wish to exclude the father from the children’s lives? Are the mother’s proposals if the children stay in Hong Kong realistic? i.e. are her proposals practical and both well researched and investigated? (Likewise this will include an assessment of the mother’s case on the family’s financial circumstances). It may be that either side’s case will fail at this point. However it is more likely that the court will then go on to consider whether or not c) the mother’s opposition to the father’s application is motivated by genuine concern for the future of the children’s welfare or it is driven by some ulterior motive? d) Likewise whether the father’s desire to leave is also motivated by a genuine concern for the children’s welfare or some ulterior motive? I will then ask e) What would be the extent of the detriment to the mother and her future relationship with the children were the application granted? To what extent would that be offset by extension of the children’s relationships with the paternal family? f) What would be the extent of the detriment to the father and his future relationship with the children if the application is not granted? g) What would be the impact on the mother if the application were approved? h) What would be the impact on the father if the application were rejected?
26.In doing so consideration will be given to the Social Welfare Reports, The Official Solicitor’s report, the Kinship Placement Assessment and the children’s own views as expressed through those reports and as told to me by them directly. Consideration will also be given to the nature of the relationship between each parent and the individual child. 27.After a decision has been made with respect to the relocation, consideration will then be given to the practicalities that arise out of that decision and how the children’s time should be divided between their parents going forward. An order will then be made that most closely reflects the practical arrangements identified. Discussion 28.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. As indicated above I also heard evidence from the social welfare officer who filed two reports dated the 25 October 2011 and the 3 July 2012 respectively. The Official Solicitor also filed a report dated the 7 May 2012 and I have been referred to a report received from Australia dated the 31 January 2012 called A Kinship Placement Assessment. The Official Solicitor was appointed to separately represent the children. The father’s sister also filed an affidavit dated the 14 October 2011 and helpfully gave evidence on his behalf by way of video link notwithstanding the recent death of the paternal grandfather. 29.In all cases concerning children it is also important for the judge hearing the case to see the parties in the witness box in order that the judge may form some view of them for him or herself. I have had that opportunity in this case. 30.I was also referred very late in the day to a number of oral recordings made by the father of his conversations with the children. These only came to light towards the end of the evidence and were not produced for the court’s perusal until after the trial. There has been no opportunity for the mother to hear them or indeed to cross examine the father on them. Apparently the children did not know they were being taped. Having considered the tapes I do not think that they take the case very much further. In the circumstances I do not intend to attach very much weight to them. Should permission be given for one or more of the children to leave Hong Kong in order to relocate to M, NSW, Australia with their father? a) Is the father’s application to relocate to M in New South Wales, Australia, genuine in the sense that it is not motivated by some selfish desire to exclude the mother from the children’s life? Is the father’s application realistic i.e. are his proposals practical and both well researched and investigated? (This will include an assessment of the father’s case on the family’s financial situation). b) Is the mother’s opposition to the father’s plan genuine? Does she wish to exclude the father from the children’s lives? Are the mother’s proposals if the children stay realistic? i.e. are her proposals practical and both well researched and investigated? (Likewise this will include an assessment of the mother’s case on the family’s financial circumstances). Introduction 31.The case on relocation has been highly emotive and bitterly fought. The children have been caught in the cross fire and have inevitably been effected by the war waged between their parents. I have a great deal of sympathy for them and the predicament that they have found themselves in. 32.Notwithstanding that I would accept that both parents are genuine in the stance that they have taken. The father is of the firm belief that the only option open to him is to relocate to Australia, with the children. Indeed his approach brooks no opposition to this. He cannot see that there might be another way. I accept that he does not wish to exclude the children from their mother’s life, although I did initially have some concerns with respect to his access proposals. However it should be noted that conversely the father is convinced that he is likely to be excluded from the children’s lives if they are allowed to remain in Hong Kong. Further he has stated that the mother’s position is motivated by her desire to “get her hands on my Provident Fund”. 33.I do not accept this. Further I do not believe that the mother’s opposition to the father’s plan is because she wants to exclude him from the children’s lives going forward. Indeed she has been very forthcoming about access proposals all the way through these proceedings, despite what have at times been very difficult prevailing circumstances. The same cannot always be said of the father. I also accept that she genuinely believes that it would be better for the children if they stayed in Hong Kong, although she acknowledges that there might be an argument for A relocating. Consequently I do not accept the father’s fear that he will be excluded from the children’s lives if some or all of the children were to remain in Hong Kong. 34.The father has put forward an extremely detailed relocation plan in support of his case. I have read this. I will not however be going through this plan point by point in this judgment. The family finances 35.As I said earlier the father has presented his case on the basis of financial necessity. Put simply he says that the parties cannot afford to continue to live in Hong Kong post his retirement. The father produced a document at the beginning of the trial entitled “Financial Breakdown upon Retirement”. He puts forward three scenario’s – the first is if all of the funds (which on his calculation came to HK$12.7 million) were invested in Australian Government bonds at 4.8% and the second if AUD500,000 was first deducted for the purchase of a home and a car. In the first scenario he says that this would produce an income of HK$43,147 per month and in the second he says that this would produce an income of HK$28,579 per month. Thirdly he says that if the entire sum was invested in an HSBC annuity this would produce a guaranteed income of only HK$55,500 per month for 20 years. 36.The father also produced a “Budget Outline”. On his estimate, if the three children all relocated to Australia he would need approximately HK$34,882 per month in order to maintain them appropriately. He did not explain how he would meet the shortfall in the event that the second scenario was adopted. 37.My difficulty with the husband’s case, even initially, was that he assumed that he would not be able to work – or at least he would not be able to work in any paid capacity. His intention, it seems, was to be a full time non working parent. 38.As I said at trial I have some difficulty with this. The parties chose to adopt three children late in life. When they adopted those children they must have been fully aware that they would have an ongoing financial commitment towards them certainly until they reached the age of 18 years and in all likelihood for a lot longer than that. It is therefore inconceivable to me that either parent would have been under the misapprehension that they would be able to retire from the workforce at aged 60 – even had they remained married. 39.Both parties have an earning capacity of sorts. I accept, from the father’s perspective, that this will be less than he enjoyed previously. It seems to me however that both have an obligation to ensure that their earning capacity is maximized to the full going forward. Consequently I do not accept the father’s basic premise that the only funds at his disposal are his Provident Fund. It should also be noted that the father did not refer to the parties other assets in this computation including properties in Thailand and a property in Australia. Nor did he accept that the mother might have a claim against his Provident Fund. 40.The first tranche of the trial took place in August and the second in November. In the intervening period the father purchased a significant property in M, Australia, without informing either the mother or the court of his intention. The father has repeatedly said that he did not do so because he had been unable to discuss this aspect of the case with his lawyer. (The father had started giving evidence in August and was therefore under oath at this time and unable to speak to his lawyer as he would have done otherwise). This is despite the fact that the mother’s lawyers wrote to the father’s solicitors on the 8 October 2012 and said inter alia as follows:
41.The parties were also in court on the 9 October 2012 and the father did not make this fact known to the court or to the other side. It should also be noted that the father did have limited communication with his lawyers at this time, although it would be fair to say that his lawyer was very careful about this and had clear concerns about appropriate boundaries for that communication. I can understand her concerns in that respect. 42.It later transpired that the father had identified the property and put down a holding deposit on the 29 September 2012. The property is a farm with approximately 100 acres and includes a significant 4 bedroom house and other out buildings. It was purchased for AU$560,000 (HK$4,592,000). The father purchased this property with cash from his Provident Fund. Thus it seems that the father, by these actions, assumed that the only option available to the court was the second scenario identified in paragraph 35 whereby he purchased a property in which he and the children could live and the remainder of the funds are invested in order to provide him with an income. 43.The father’s last day of work was the 18 October 2012 and he received his Provident Fund on the 26 October 2012. The husband received HK$9,526,968 and a further HK$5 million was paid to his solicitors as had been previously agreed. It seems that he purchased the property in cash. 44.When this eventually came to light I said that I thought the husband was being disingenuous. That remains my view. The husband could and should have sought permission from the other side and the court before he took this step. It also changes his case somewhat – half way through the trial. Although the husband needed somewhere to live, it did not have to be in a property of this magnitude, given both parties’ concerns about supporting the children longer term. 45.The husband’s stance now is that he intends to live on the farm with the children and to “work the farm”. This is despite the fact that the father, by his own admission, has very little experience of working on the land. He says that he believes that he can make the farm income producing within three years. It was not clear how he intended to support the children in the intervening period – especially given the fact that the mother does have a claim against those funds, just as he has claims against the other assets and that the needs of the family in either respect may very well take precedence. 46.All in all I consider the husband actions to have been very suspect. He now says that the property was a good investment. Time will tell if that is indeed the case. 47.Thus at the end of the day it is not entirely clear what the father’s plan is from a financial perspective. His present proposal in relation to the farm, although well researched up to a point seems a little unrealistic. He talks, for example, of the children all having horses and riding to school on them; he paints an idealized image of what life would be like in M. When I asked the father how he intended to support the children before the farm becomes income producing, he said that in the event that the mother received some of the Provident Fund that he would ask her to contribute towards the children’s maintenance. 48.It now seems that there may be also be some short term or contract work available for the father. He says that he is exploring all possibilities. 49.Just as I have some concerns about the father’s proposals, it is also fair to say that I have some considerable concerns about the mother’s financial proposals. 50.The mother says that she can earn up to HK$54,000 per month. However this seems to be based on her income as a real estate agent, which is likely to be variable at best and income from the properties in Thailand, which has on the father’s case been negligible in the past. I accept however that going forward the parties should receive a reasonable income from the L property in Thailand in the sum of approximately HK$30,000 per month. In the mother’s second affidavit of the 5 March 2012 she said that she needed in the region of HK$85,000 per month to maintain herself and the children in Hong Kong. I am not sure the extent to which this can be reduced going forward. The mother has made no proposals in relation to this shortfall. It is not clear how the children will be fully maintained if they all stay in Hong Kong. At present the father is paying the mother HK$61,000 per month from capital. This is not sustainable longer term. 51.On the positive side this is not a case where there is no money to be had. In other relocation cases that have been before me there has been a real issue with respect to financial support (see Re: MJP v JWP, FCMC 9154/2008 dated the 30 October 2009, unreported and Re: YY v CHOA, FCMC 7598/2010 dated the 9 November 2011 unreported). In these cases this issue was afforded a great deal of weight when considering what was in the best interests of the children overall. It seems to me that this case is in a very different category. Both parties have an earning capacity of sorts and there are assets in the sum of at least HK$20 million. Thus different options can be explored with respect to providing for the children going forward. Education 52.The issue of the children’s education is also of central importance. In broad terms the father proposes that the children all attend M Central School. The mother proposes that the children remain at their present schools in Hong Kong. At present the children are at three different schools, which each have a different educational ethos. In general terms the father thought it would be a positive thing if the children were all at the same school. Initially the girls would be in the same year pending a full assessment of their academic capabilities. They have all been offered places at M Central School. A 53.When A first came to Hong Kong three years ago her mother tongue was Thai. She spoke little English or Chinese. Because she was not formally adopted until January 2011 she was not immediately accepted into a mainstream school in Hong Kong and initially only had observer status. Understandably given this start A is behind in her schooling. Although she has just turned 13 years of age she is in the last year of primary school. She presently attends a local Chinese school where the teaching medium is in Cantonese. 54.Notwithstanding this it is clear from A’s reports that she works hard and that she has made significant improvements in her academics. She has obtained 5 A’s and 1 B for her general performance and A’s and B’s for her academic attitude. But it is true to say that she is significantly behind her own age group. Her most recent report shows that despite her best efforts she is still failing in Chinese language, Maths and General Studies. She achieved a B- in English language, Visual Arts and PE and an A- in music. 55.If she stays in Hong Kong A has indicated that she does not wish to go to the same school as her sister. 56.From A’s perspective only I accept the argument that it makes no sense for her to be educated in a Chinese medium. She is an adopted Thai child who is being raised by Caucasian parents whose mother tongue is English. The mother points out the advantages of maintaining Cantonese, Mandarin and English, presumably with Thai as well as working languages. Whilst I would accept that, it must be incredibly difficult for example for A to be taught other subjects in Chinese. 57.The mother seems to have accepted this and says that in the event that A stays in Hong Kong, that she will apply for her to attend H School, which is a local school with an English stream. This means that A would continue to be taught Chinese, but as a second language and that other subjects would be taught in English. This seems to be an acceptable option. The mother said that she would excel in that environment and that it would be a shame to deny her this opportunity. 58.Likewise I accept that M Central School would also be an acceptable option for A. B 59.B presently attends an English medium local school. She is in the appropriate year for her age group (year 2). Unfortunately B is also struggling academically and according to her latest report is failing Maths (E), History (E), French (D) and Hong Kong and Chinese Studies (D). Her best subject is PE (A). She is achieving C’s in all other subjects. 60.By all accounts and as will be seen below, there may be other reasons for B’s poor academic results at present. In her mother’s words she is in “a terrible emotional condition right now”. 61.The father believes that B would do well in M and that it would be best for her to “start afresh”. I have some significant concerns about this and very much fear that B will “vote with her feet” if forced to go to Australia. 62.Notwithstanding that I accept that both schools are an acceptable option for B. In either event it seems likely that B will need considerable support if she is to do better academically in either environment. C 63.C is the least problematic child. He is attending the local international primary school on Lantau Island. He is in P4 and is studying an International US curriculum. By all accounts he is flourishing. 64.I am sure that C would continue to do well whether in Hong Kong or Australia. Both schools are a valid option for him. 65.The father is also concerned for the future. He points out that if the children relocate now that they would be regarded as local students when applying for tertiary education in Australia in due course. This would have a significant cost effect. While I accept that to be the case it seems to me that it is too early to determine now if the children are likely to go on to university or college in 7 – 10 years time. Although this is a consideration it is not one on which I intend to place too much weight. At the end of the day it may be that the children will need to take out loans and work in order to fund their college/University education if the parents are unable to assist as they would like. 66.Issues have also been raised with respect to racism and bullying. I accept that the M Central School has a comprehensive policy on each. The father has also reached out to other families with adopted children in the neighbourhood and seems confident that the children will assimilate without difficulty. 67.The mother remains concerned however and I can appreciate those concerns. In Hong Kong the children mould into their living environment. The children are all Asian. They do not stand out from the crowd. It is not uncommon for Asian children to be adopted by Caucasians in Hong Kong. The same cannot be said of M, New South Wales. In the Kinship Placement Assessment the following observations were made:
68.Since then the father has contacted other families in M with adopted children and says that he will take all necessary steps to ensure that the children are fully integrated into M whilst retaining a sense of their one identity. Notwithstanding that it seems to me that the children may experience some difficulties in this respect, especially if they are forced to relocate against their will – as in B’s case. Accommodation 69.This family has been based on Lantau Island in Hong Kong. The original matrimonial home was on Lantau and both parents now reside in new accommodation on the island. 70.The father is proposing that the children move to M, New South Wales, Australia, which is where he is from originally. His family are fourth and fifth generation residents in M. However the father has not lived there for over 30 years. By all accounts it is a small country town with only 1600 inhabitants. 71.It seems that the father is now proposing that he and the children live at the farm, whereas initially in the Relocation Plan the father had proposed that he and the children reside with his parents in the immediate to short term. Circumstances have of course now changed with the unfortunate death of the paternal grandfather. 72.The mother for her part proposes that the children continue to reside with her, in her new home. 73.The mother’s proposals are certainly practical save for my stated concerns with respect to the finances. There are now a number of uncertainties with respect to the father’s plans. It is not for example presently clear whether or not he will be able to keep the farm or how much time it will take for him to turn the farm into a home. There is also a time component to this. It is not clear how much time it would take him to do this – even if he is to keep the farm. In the meantime how feasible is it for the father to live with his recently bereaved mother with the children? Health issues 74.The father has significant concerns about the children’s health and related issues. This also dovetails into his case with respect to parenting. In a nutshell the father believes that he is a better parent and certainly the one who is more in tune with the children’s respective health problems and issues arising out of them. As will be seen I do not necessarily accept this to be the case. 75.Generally speaking there is no doubt that suitable hospitable support exists in both M and Hong Kong for each of the children. A 76.A had a cyst which necessitated a small operation at the beginning of the proceedings. There were related thyroid issues which now seem to be under control. There are no significant concerns about A’s health. The mother says that she is doing very well and that she is very active. B 77.The father has said much in his affidavits and orally about B’s Thalassemia. In particular he says that this causes exhaustion and that B is doing too much. He does not support her playing rugby. He refers to the necessity of regular blood tests. He maintains that the mother minimizes the seriousness of the condition. It was interesting to note that when the Social Welfare Officer was asked directly by the father’s counsel whether she had noticed B’s exhaustion on a home visit that she replied that she had not. 78.Generally speaking the mother disputes the father’s assessment of the situation. She accepts that B’s condition needs monitoring but that generally speaking she is doing well. In particular she disputes that B’s condition has deteriorated to Thalassemia Intermedia as suggested by the father. The mother says that B was born with Thalassemia Intermedia and that the diagnosis was confirmed in April 2007. She says that there has been no escalation of her condition. This was confirmed when she took her for recent blood tests. I accept what the mother says in this respect. Having seen the father in the witness box I also accept that he has a tendency to over dramatize situations and that this may have been one of them. C 79.This tendency was seen again in court when the father produced an upper body suit for C that he wished him to wear when competing in a “Team Fear” competition, which involved inter alia a BMX bike race. The father had apparently hand stitched the body suit himself, which was originally designed for horse riding and had wanted him to wear it because of his concerns about C’s kidney. The mother confirmed that no other child was wearing a similar item. Although it is fair to say that the other children probably did not have one kidney, nevertheless I found the father’s approach to be rather excessive in the circumstances. 80.Generally speaking C is also fit and healthy. Conclusion 81.All in all then, in so far as the first part of the protocol is concerned, I accept that generally speaking the position of each parent is genuine – i.e. the father’s application to relocate and the mother’s resistance to the same is motivated by a genuine concern for the children and the predicament that the family finds itself in. 82.In so far as the proposals put forward by each side, it seems to me that each has some flaws and that neither is ideal nor completely fool proof. c) Is the mother’s opposition to the father’s application motivated by genuine concern for the future of the children’s welfare or it is driven by some ulterior motive? d) Likewise whether the father’s desire to leave is also motivated by a genuine concern for the children’s welfare or some ulterior motive? 83.This has largely been dealt with by the assessment above. For the avoidance of doubt I do not believe that either party truly has an ulterior motive here – although both have some very real concerns about what will happen longer term. What would be the extent of the detriment to the mother and her future relationship with the children were the application granted? To what extent would that be offset by extension of the children’s relationships with the paternal family? 84.The mother has said that if leave is given for all or some of the children to relocate that she will remain in Hong Kong. Although she is Australian she has no desire to relocate back to Australia. She says that she would retain a home base for the children in Hong Kong. Mr Poll, for the father, suggested during the trial that one option would be for the children to be schooled in Australia with the father and that they could then spend their school holidays in Hong Kong with the mother. It seems unlikely however that in the final analysis that the father would be prepared to have virtually no holiday time with the children. Conversely in such a situation the mother would be somewhat limited in the time that she was able to spend with them. Given that she is presently the care taking parent there is little doubt that this would severely undermine her present relationship with them. 85.The father has good family support in Australia. His sister gave evidence by video link in very difficult circumstances. It was clear however that the father’s sister although not a lot older than the parents actually presents as being a lot older. She came across as being a rather grandmotherly figure. She said that she would not seek to replace the mother in any way and it was clear that she would not infact be able to do that. Her role would be to support the father. I think it is very unlikely that the support of the father’s sister and other family would offset the absence of the children’s mother in their day to day lives. I think the children would miss their mother terribly. f) What would be the extent of the detriment to the father and his future relationship with the children if the application is not granted? 86.To a large extent this depends on the father’s plans. He has said that if all three children remain that he will also try to remain in Hong Kong. If one or more relocate with him then he said that he saw himself and the child/ren spending a lot of time travelling between the two locations. In either event the detriment to the father is likely to be fairly minimal. g) What would be the impact on the mother if the application were approved? h) What would be the impact on the father if the application were rejected? 87.I accept that both sides will be completely devastated if they lose this case. Overall what would be in the best interests of each of these three children? Social Welfare Reports 88.Recommendations made to the court in social welfare reports, although not binding are considered to be very persuasive. The father however has been very critical of the social welfare reports. In particular he is critical of the first report that was dated the 25 October 2011, which was written in the period following the parties’ separation and when he was not having access to the children because of the bail conditions imposed at that time. I accept that this might affect the tenure of the report and the weight that might be attached to it as a result. However I am not of the view that the report can be simply disregarded as a result. In particular it is important to note what the children said at that time: A 89.A is reported to have told the social welfare officer that:
B 90.Whereas B
C 91.C added that
92.The social welfare officer recommended joint custody with care and control to the mother and reasonable access to the father. 93.The second report was filed on the 3 July 2012. The access arrangements had been in place by that stage for about 7 months. In that report the social welfare officer reiterated her recommendation as set out above, she did not support the father’s application to relocate because
A 94.In so far as the views of the children are concerned A was reported as saying that
At this stage A does not appear to have given any thought to the possibility that she might go to Australia with her father and that B and C might remain in Hong Kong with their mother. B 95.B maintained her position – although it was clear from what she said that tensions were beginning to mount:
C 96.C reiterated that
A Kinship Placement Assessment Report 97.I have also had the benefit of reading the Kinship Placement Assessment. As stated above the Assessment provides some very useful background information. It supports the relocation plan with some qualifications as set out above. The assessor had not had the opportunity of meeting the mother or the children. The Official Solicitor’s report 98.The Official Solicitor was appointed to act for the children. In his report dated the 7 May 2012 he said inter alia that A was reluctant to accept the reality of the divorce, but that notwithstanding that she still chose the mother as the major carer. She confirmed that she did not wish to leave Hong Kong. He reports that B appears to be “harbouring certain grudges against the father” and that C “just liked her [his mother’s] company and care”. He commented that whereas
99.In conclusion the Official Solicitor supported the recommendation made by the Social Welfare officer. He thought that any change in the present care and control regime would be an “uphill exercise”. He added that
100.In conclusion he did not support the father’s relocation application. He recommended an order for joint custody with care and control to the mother and reasonable access to the father. The views of the children 101.A indicated through the father’s solicitors that she would like to see me directly in order to express her views. I then asked the social welfare officer to make enquiries from all of the three children. They each confirmed that they would like an opportunity to speak to me. I saw all three of them together and then individually. A’s opinion had altered from her reported views in the social welfare reports. She said that she now wished to go to Australia with her Dad. She said that it didn’t matter if she was separated from her siblings, although she wouldn’t be happy about that. She said that she would like to live with Dad and come to Hong Kong for holidays to spend time with Mummy. When pushed she said that she wanted to go with Dad so that he wouldn’t be “lonely”. She was worried about both Mum and Dad. 102.B meanwhile confirmed what she had told to the social welfare officer i.e. that she still wished to stay in Hong Kong and to live with Mum. She said that she loved school and that she felt as though she “belonged” in Hong Kong. She was worried about being a bit different in M. She confirmed that she and C were really close and that she and A sometimes fought. She confirmed however that notwithstanding the fighting that she would be sort of upset if she and A had to live apart. 103.C also confirmed what he had said to the social welfare officer. He seems particularly close to B and that B had been the one “who wanted to get me”. The children’s relationship with each of the parents A 104.A lot has been said in the affidavits about the difficulties that the family experienced when A first joined the family on a full time basis. To a large extent it seems to me that this might have been expected, even without the added pressure of the marriage breaking down in such a spectacular fashion. It is clear both from the affidavits filed and from the father’s oral testimony that he believes that he has a particularly close relationship with A. He described her as “a lovely girl” in the witness box. This might help explain the perceived change of heart by A, who appears to have shifted her position slightly as the case has progressed. I was concerned however that the reason she gave for this was that she does not want her father to be “lonely”. At the end of the day this should be about what is best for her and not what is best for the father. 105.I would also accept that she is reasonably close to the mother. The mother says that she is in a dilemma because she is enjoying life in Hong Kong. However she also confirmed that A has said that she wants to go to Australia. A now has her own room which she seems to like. B 106.B is probably the most challenging child. She is also the one who appears to have caught the brunt of the fallout from the proceedings. The father has been very critical of the mother and her handling of B. He accuses B of lying – what he calls her “lying habit” and has suggested that she is having an inappropriate relationship with her boyfriend D. However when challenged it was not clear how the father would have dealt with these things differently. It seems clear that the mother has encouraged open communication with B and as far as possible has tried to ensure that appropriate boundaries have been put in place with respect to D. It seems to me that B is crying out for help. The mother said that she had started to self harm. This is extremely worrying. B has been very very clear that she does not wish to go to Australia with the father. She seems to have a strained relationship with him, which will hopefully improve over time. The father seems to think that a fresh start will do her good. I beg to differ. I think the proposed move to Australia could be disastrous for B. Recently B feigned injury on the rugby field seemingly in an attempt to ensure that she didn’t have to go to Australia even for a short period. The father says that this is further evidence of her lying. I do not agree with this assessment of the situation. Rather it seems to me that this is evidence of a teenager’s rather desperate attempt to be properly heard by the adults that surround her. C 107.C appears to have a solid relationship with both parents. He is also very close to B. It would not in my view be feasible to split the two. Should there be a split order with some child/ren relocating to Australia and others not? 108.I have given very serious consideration to this possibility.Would it be better in the circumstances for the present views of all three children to be respected and for A to relocate to Australia with her father and for B and C to stay here with their mother? The mother has also given this some serious thought. She said in the witness box that she accepted that this could work; that A was a country girl at heart and that she might enjoy life in M. On that basis the mother has suggested a further alternative in her closing, namely that the father be given leave to temporarily remove A out of the jurisdiction of Hong Kong, so that she might experience life there with an option to return to Hong Kong if she would prefer. Although I can see the sense in this, the difficulty is that sensible proposals like this have not worked in this case previously. It may also simply prolong the agony and put A in the unenviable position of really having to choose for herself whether she should live with her Dad or with her Mum. I would wish to relieve her of that burden. The character of the parties The father 109.The father comes across as being quite forceful. He has been single minded in his pursuit of this litigation, some might say dogged in his approach. He is very detailed orientated and I would suggest at times that he has trouble seeing the wood for the trees. Although I am sure that he loves the children dearly and that he is a good father, his approach as I have said above seems to brook no opposition. He is very concerned to have structures and systems in place that operate well within the home and is absolutely convinced that he is the better parent. The mother 110.In contrast I would accept that the mother is more of a free spirit. Notwithstanding that I think she has done a very good job of making the transition to being a single working mother of three. She recognizes that all three children have very different needs. I accept that she manages each appropriately and that she is perfectly capable of running her household effectively. 111.It seems to me that together these parents would have complemented each other very well and would have made a very good team – with each balancing the other’s strengths and weaknesses. Conclusion on relocation 112.In conclusion I have decided that it would be in the best interests of all three children if they remained in Hong Kong. It is simply inconceivable that B should leave for all of the reasons set out above, and I think it important that she and C continue to have the support of each other. 113.I have given serious thought to the possibility of A relocating. At the end of the day I have decided against it. A was only fully integrated into the family three years ago. It has been a very bumpy ride. But she is now living within a family unit with her mother and a brother and sister. She also has frequent access to her father, whom she clearly adores. To take her from this unit and to replace it with her father only does not seem to me to be in her best interests. She deserves to experience all that being in a family entails complete with its ups and downs. She is settled where she is; she is working hard at school and I am sure that she will continue to strive to do of her best. It would place an enormous amount of pressure on her to ask her to move again and to a place which is predominantly Anglo Saxon. In addition I too share the mother’s concerns about A living on her own with the father on a fairly remote farm, without her other siblings and without other full time female support in place. Although the father’s sister presents as a very nice woman, she will not in any way be able to replace the love and support of the mother. Further although A has expressed a wish to go to Australia it is clear that she is also happy in Hong Kong. It will do her no harm at all to stay. I was also very concerned that juggling an Australian school time table with two Hong Kong school timetables might be extremely difficult and the net result could have been less than satisfactory for all concerned. How should the children’s time be allocated between their parents once the relocation issue has been determined? 114.Given my ruling I will give both sides the opportunity to consider how the children’s time should now be allocated. To an extent this will depend on whether the father decides to spend significant periods of time in Hong Kong as suggested during the trial. In the meantime the arrangements as set out in paragraph 18 above shall remain in place. In the event that either parent wishes to alter these arrangements then I will give leave for each to file and serve a further submission on the issue, such submissions to be filed 7 days prior to the adjourned First Appointment hearing. I am conscious that the finances are pressing and that they need to be resolved as quickly as possible and I will ask that the First Appointment hearing be given priority. What orders should the court make for custody, care and control, access and/or shared care? 115.I do not intend to repeat the law on custody/joint custody. Reference can be made to PD v KWW [2010] HKFLR 184 in that respect if necessary. In this instance, given that the children will remain in Hong Kong and the mother has asked for joint custody I will accede to her request. The father’s application for sole custody only ever made sense in the context of all three children relocating with him to Australia. Notwithstanding the obvious tension between the parents it is important that their respective roles in the lives of their children be clearly recognised. It is hoped that an order for joint custody will go some way towards achieving that. I will also make an order that care and control of the children vest in the mother with reasonable access to the father. 116.In so far as holiday access is concerned I will also await further submissions on this – if agreement cannot be reached between the parties in the meantime. In broad terms however I will expect the parents to split the children’s school holidays on a more or less equal basis, with them each alternating the major holidays and splitting the school summer holidays. For the avoidance of doubt and subject to any contrary agreement between the parties, the children shall remain in Hong Kong over Chinese New Year. 117.I would also like to add that it does not seem to me to be appropriate to prevent the children from going to Thailand because of the father’s stated concerns about the sex industry. Subject to each party’s undertaking to take all reasonable steps to ensure that the children are not exposed to the excesses of the sex industry in Thailand I will allow the mother, and indeed the father, to holiday there with the children. Costs 118.Given that this is a child related matter I will make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days. There shall be certificate for counsel. I would also like to thank all the lawyers involved for their assistance in what has been an extremely difficult case.
Mr Robin Egerton instructed by Withers for the Petitioner Mr Michael Poll instructed by Ip & Heathfield for the Respondent Mr Jason Chan of the Official Solicitor’s office for the children | ||||||||||||||||||||||||
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