Rk v. Ys

FCMC4931/2012
& FCMP 151/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4931 OF 2012

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BETWEEN

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AND   

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NO. 151 OF 2008

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(Consolidated pursuant to the Order of
Deputy District Judge S Lo Dated 18 July 2012)

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J U D G M E N T
(Relocation)

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Introduction

1.By her amended summons filed on 5 July 2013, the respondent (“mother”) applies for the permanent removal of the 2 children of the family, a daughter now aged 12 ("AK") and an autistic son now aged 10 ("KK") from Hong Kong to her home country, Japan.

2.In a nutshell, the basis of her application is 5-folds. First of all, Japan is her home country and both children were born in Japan. The family came to Hong Kong solely because the petitioner (“father”) came to work here. With the breakdown of the marriage and the fact that the father is now living/working in Taiwan, there is no reason to keep her and the children in Hong Kong any more. Second, she needs to return to her home country to enjoy the support, including provision of accommodation, offered by her retired parents, as well as the social allowances offered by the Japanese government to the children. Third, relocation to Japan would help alleviating the dire financial difficulty now faced by her and the children, caused by the father’s failure to pay any or sufficient interim maintenance for her and the children, so that they had to move temporarily into a shelter home in June 2013 and rely on food rationing supplied by the food bank. Fourth, relocation to Japan is also the wishes of AK, who will soon be promoted to high school, but there is no Japanese high school in Hong Kong. Fifth, there is no issue of child abduction any more, since Japan has adopted the Hague Convention in April 2014. And if relocation to Japan is allowed, she will take all reasonable steps to ensure that the father has reasonable access to the children.

3.Her application is hotly contested by the father. Broadly, he raises 5 major grounds of objection. First, he maintains that Hong Kong is the home of the children where they have spent the majority of their lives. Although he is at present staying in Taiwan, it is expected that he would be deployed to work in Hong Kong within next 2 years. Second, he is suspicious if the mother’s parents would offer any meaningful support to her in Japan. Third, he criticizes her relocation plan as lacking specifics and supporting evidence, and in any event, not in the best interest of the children, especially in terms of their education and/or medical needs. Fourth, there should not be any financial pressure on the mother in Hong Kong, as she is rich but refuses to give full and frank disclosure on her assets. Fifth, her relocation application is a tactical move of the mother to further alienate him from the children. Given her continuous breaching of court orders relating to joint custody and access, it is unlikely that she would help to promote any positive relationship between him and the children if she was to return to Japan with the children.

4.The parties hereto are no stranger to litigation. Since 2008, they have been engaging in various pieces of acrimonious litigation over the children’s matters, leading to 2 full-blown trials in the Family Court (lasted for 21 days and 11 days respectively) and 2 appeals in the Court of Appeal.

5.It is sad to point out that with the ancillary relief matters still having a long way to reach the stage of trial, the total litigation costs so far (but excluding this trial), it is said, have cost them over $15 million in total, which could have otherwise been meaningfully saved for the benefit of their children, in particularly to their autistic son who is unlikely to have any working/earning ability in the future. As at the date of this trial and if what both party is telling me is the truth, the family has no more assets but approaching $10 million of debts and liabilities.[1]

The couple and their litigation history

6.The background of both parties and other important basic facts are set out in details in the Decision handed down by H H Judge K W Wong on 8 June 2010 on the custody and access matters of the children (“1^st DC Judgment”) [2] and in the Judgment handed down by Deputy District Judge S Lo (as he then was) on 8 May 2012 also on the custody of the children (“2^nd DC Judgment”).[3] For easy discussion in this judgment, I would repeat some of the more relevant background in the following.

7.The father, now aged almost 42, is an American born Chinese. He is an experienced security trader with work experience mainly in Taiwan and Hong Kong.  Since 1 August 2013, he has been working in Taiwan for an international bank as an equity sales trader, earning a monthly gross salary of about HK$172,000.

8.The mother, now 46 years old, was born, brought up and educated in Japan. Though holding a double degree in economics and pharmacy, she has been a full-time housewife since the marriage.

9.The parties were married in the USA in 2001. After marriage, the father continued to stay and work in Taiwan, while the mother split her time between Taiwan and Japan.[4] Their daughter, AK, was born in 2002 and their son, KK, in 2004 respectively in Japan. KK was diagnosed to be suffering from autism and other health issues at the age of about 2. He is unable to take care of himself in daily routines.

10.It is indisputable that the mother has been the primary caregiver of the children since their birth. As Roger VP (as he then was) observed in his appeal judgment of the 1^st DC Judgment, the father was clearly not in a position to give full-time care to the children, due to his long working hours as a security trader including the time spent on entertaining clients.[5]

11.In or about August 2005, the whole family moved to Hong Kong, so that the father could take up a job here to ride the tide of the booming Chinese market. While in Hong Kong, the family enjoyed a very high living. They lived in a 2,400 sq feet apartment at the Parkview, served by 1 or 2 maids and a driver.[6] They also enjoyed club and membership facilities at the Japan Club and Parkview.[7]

12.Despite that, the relationship between the parties was traumatic from the beginning. Oral or physical disputes were not infrequent, resulting in police intervention. There was also mutual accusation of character defect and alcohol drinking problem.

13.Their litigation history began in September 2008, when the father took out an Originating Summons seeking for joint custody of the children, with care and control to him. After 21 days of trial, H H Judge K W Wong made an order of sole custody, care and control in favour of the father in the 1^st DC Judgment. His order was, however, set aside by the Court of Appeal (Rogers VP, Cheung JA & Bharwaney J) on 22 October 2010 in CACV 193/2010 (“1^st CA Judgment”). Roger VP (as he then was) in his judgment made an order of joint custody with care and control of the children to the mother.

14.As the father confessed during this trial, he was unable to accept the 1^st CA Judgment. Therefore, seven months later, he issued a summons to vary the joint custody order, seeking care and control of the children and sole custody of KK.  After an 11-day hearing, Deputy District Judge S Lo (as he then was) dismissed his application in the 2^nd DC Judgment.

15.Leave to appeal the 2^nd DC Judgment was refused by the deputy judge on 30 August 2012, after which the father took out 2 further applications in an attempt to change the care and control arrangement of the children. First, he sought leave to the Court of Appeal on 13 September 2012. Second, he issued yet another summons in the Family Court seeking temporary care and control of the children be given to him pending an investigation into an incident concerning AK on 13 September 2012.

16.His leave application was refused by the Court of Appeal on 1 November 2012 in HCMP 1969/2012 (Kwan & Fok JJA) (“2^nd CA Judgment”). He later in February 2013 withdrew his summons on temporary care and control of the children, as the updated social investigation report did not advise any change on the care and control of the children.

Circumstances leading to this application

17.By his solicitors’ letter of 3 December 2010, the father made an open offer for the interim maintenance of the mother and the children in the total sum of $110,995 per month (“MPS payment”). [8] This open offer was later made, by consent, into an order of the court of 14 January 2011, in additional to the father’s undertaking to bear the school fees and medical expenses, etc of the children (“Consent MPS Order”).

18.About 3 months later in/about April 2011, the father sold a matrimonial property in Shanghai (registered in his sole name) at RMB$10.6 million.  Upon paying off the outstanding mortgage (about RMB$1.85 million), he obtained a net sale proceeds of about RMB$8.75 million. However, he did not inform the mother of the sale and its details until late May 2011, by which time about half of the net sale proceeds were already disposed of by him. [9] 

19.By an order of the court of 4 July 2011, the balance of the net sale proceeds of the Shanghai property in the sum of $4 million were into court. A subsequent order was made for payment out of $150,000 per month to cover the mother’s costs provision from October 2010 to March 2012 (totalling $2.7 million).[10]

20.However, shortly after conclusion of the evidence before Deputy District Judge S Lo, the father unilaterally stopped the MPS payment in its entirety since January 2012. It must be noted that at that point of time, he was still working as a vice president in security trading with SB (HK) Ltd and earning an alleged net salary of $125,000 per month (until the end of December 2012).[11] He continued to live, all by himself, in a 1,200 sq feet apartment in Kennedy Road at a rent of $46,000 per month and employ Rosa, the Filipino maid who featured in the trial of the 1^st DC Judgment, at an alleged rate of $8,500 per month.[12]

21.As a result, an order was made for payment out of the sale proceeds of the Shanghai property to the mother to cover the MPS payment. The court records show that she received MPS payment from January to July 2012. The last payment out of court was made on 9 July 2012 in the sum of $16,004.20, by which time the sale proceeds of the Shanghai property that were paid into court were completely exhausted. In other words, since August 2012, she has not received any MPS payment, whether from the father or by way of payment out of court.

22.By a letter of 5 December 2012, the mother’s solicitors wrote to the solicitors for the father that she had insufficient funds to maintain herself and the children in Hong Kong and had exhausted other avenues to borrow further funds. She was being chased by the landlord for outstanding rent. [13] She informed the father that if evicted by the landlord, she had to seek assistance from the Social Welfare Department for emergency shelter. She demanded him to pay the MPS payment forthwith and warned him that a judgment summons would be issued.

23.A week later on/about 11 December 2012, the father suddenly informed the mother that he was “laid off” and his employment would be terminated with effect from 31 December 2012. At once, the mother demanded the father to disclose his severance payment.

24.The father replied on 27 December that the severance package would be around $280,000 or so.  However, the actual fact is that he received about $586,906 severance payment/compensation/bonus from his employer between 21 December 2012 and 29 January 2013.[14]  It is indisputable that not a single penny of his severance payment was applied to the MPS payment. He merely suggested that the children be sent to stay with him for the time being, whereas the mother should find alternate accommodation elsewhere for herself.  Needless to say, the mother rejected the proposal.

25.I came to have seizure of the case on 7 February 2013. During the hearing, I expressed my deep concern that the litigation costs have flared up so disproportionally that the family assets were draining, or in fact have been drained, away.  I invited both parties to try to agree on the directions and/or way going forward for the father’s summons to vary down MPS payment (taken out back in 2012) and the final ancillary relief trial.

26.Subsequent to this hearing, the father wrote to the mother proposing to drastically vary down the MPS payment from $110,995 to merely $5,000 per month for the children only.[15] It would mean that he proposed to totally discharge the mother’s interim maintenance under the Consent MPS Order.  This cannot be taken as a helpful proposal by any standard.

27.By her letter of 10 April 2013, the mother informed the father that she was sued by the landlord for vacant possession and unpaid rent in the Lands Tribunal. She requested him to move out from his current accommodation and let her/children move in.  Follow-up letters of 18 April, 23 April 2013 and 11 June were sent, but the father did not give any response until 14 June 2013, whereby he simply reiterated the unhelpful offer of letting the children move to live with him but the mother had to find her own accommodation.

28.This triggered the mother to take out 2 applications. First, she filed a judgment summons on 18 July 2013 for outstanding MPS payment from July 2012 onwards.  Second, she took out an urgent application on 21 June 2103 for temporarily removal of the children to Japan until such time when the father provided suitable accommodation and maintenance for them (“Summons for Temporary Removal”).

29.On/about 24 June 2013, the mother/children were evicted from their home.  With the assistance of the social welfare department, they moved to a shelter home in the New Territories on 27 June 2013. By the rules of the shelter home, its address was not allowed to be disclosed.

30.On 28 June 2013, both parties appeared before me in respect of the Summons for Temporarily Removal. The mother was represented by Mr Neal Clough of counsel instructed by Messrs Massie & Clement on a pro-bono basis. Clarification was sought and Mr Clough confirmed that the mother sought to amend her application to relocating the children permanently to Japan.  At the end of the hearing, I granted leave for the mother to so amend her summons.  It was agreed that the father was to move out of his rented flat in Sai Yung Pun for the mother/children to move in. He was to pay for the rent of the flat.

31.Co-incidentally, after the mother took out the Summons for Temporary Removal, the father obtained an employment to work in Taiwan since 1 August 2013.

32.Finally, the mother moved with the children into the Sai Yung Pun flat on 11 September 2013. The current ad hoc maintenance arrangement was agreed on 9 December 2013, under which the father is paying $34,000 per month for the benefit of the mother and the children from January 2014 until further order of the court.

Applicable legal principles

33.Both parties have no dispute that the legal principles set out by the Court of Appeal in SMM v TWM [2010] 4 HKLRD 37 should be followed in this case.  In SMM (supra), Cheung JA referred to the guidelines/approach laid down by Butler Sloss P and Thorpe LJ in the English authority of Payne v Payne [2001] 1 FRL 1053. His Lordship propounded that:

“20.  Payne is based on the earlier decision of Poel v. Poel [1970] 1 WLR 1469.  In Re G. (Leave to remove) [2008] 1 FLR 1587 the English Court of Appeal reaffirmed the principles in Payne.

21. The principles in Payne can be summarised as follows:

(a) The distinct features of a relocation application are first, the applicant is invariably the mother and the primary carer; second, generally the motivation for the move arises out of her remarriage or her urge to return home; and third, the father’s opposition is commonly founded on a resultant reduction in contact and influence. (per Thorpe LJ at paragraph 27)

(b) The two propositions that have been consistently applied by the Courts are, first, the welfare of the child is the paramount consideration; and second, refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children.  Therefore her application to relocate will be granted unless the Court concludes that it is incompatible with the welfare of the children. (per Thorpe LJ at paragraph 26)

(c) The application should be approached as follows:

(i)  Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?  Then ask, is the mother’s application realistic, i.e. founded on practical proposals both well researched and investigated?  If the application fails either of these tests, refusal will inevitably follow.

(ii)  If, however, the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?  What would be the extent of the detriment to him and his future relationship with the child were the application granted?  To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

(iii)  What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

(iv)  The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate.(per Thorpe LJ at paragraph 40)

(d) In short, the relevant factors are:

(i)  The welfare of the child is always paramount.

(ii)  There is no presumption created by section 13(1)(b) of the English Children Act 1989 in favour of the applicant parent.

(iii)  The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(iv)  Consequently the proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(v)The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(vi)  The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(vii)  The opportunity for continuing contact between the child and the parent left behind may be very significant. (per Butler-Sloss P at paragraph 85)” (my emphasis)

Discussion

50.Given the acrimonious relationship and prolonged litigation history of the parties, there are many factual disputes in the trial. I have considered them all, but would not elaborate on those which I find to be irrelevant or insignificant.

Social Investigation Reports

51.For the purposes of this relocation application, the parties have agreed that this court needs to focus only on the following 4 social investigation reports:

(1)  An urgent social investigation report dated 1 November 2012 (“1^st Local SIR”);

(2)  A social investigation report dated 18 October 2013 (“2^nd Local SIR”);

(3)  An international social investigation report dated 7 March 2014 (“ISIR”);

(4)  An updated social investigation report dated 15 April 2014 (“3^rd Local SIR”).

52.The 1^st Local SIR was called for as a result of the father’s urgent application for interim care and control of the children be granted to him. His application was said to be triggered by an incident of 13 September 2012, whereby AK walked from the mother’s place to the father’s on her own at night around 9.30 - 10 pm (“13/9/2012 Incident”). It was revealed that on the night in question, AK threw temper on the mother because the latter had collected a 2^nd hand school uniform for her from friend(s).  AK became frustrated towards this lower living standard and left home and walked to the father’s place when the mother was busy putting KK to bed. It was concluded that the 13/9/2012 Incident was a child discipline incident and that the mother did not have the wilful intention to expel AK from home.  I have considered the father’s evidence and submission relating to the 13/9/2012 Incident and the 1st Local SIR. I am of the view that the 1st Local SIR helps providing updated background information on the family and the children, but does not throw direct light on the present application.

53.The 2^nd Local SIR, the ISIR and the 3^rd Local SIR relate directly to the mother’s relocation application. The social investigating officers of the 2^nd Local SIR (Ms Lai) and the 3^rd Local SIR (Ms Yeung) attended the trial for giving evidence.

54.It should be of note that when Ms Lai wrote the 2^nd Local SIR, the ISIR was not yet ready, partly because of the father’s refusal to pay for ½ of its fees and partly because of the mother’s late reply to confirm that she would pay for the ISIR.  Therefore, she concluded at para 32 that it was premature and risky for the court to make a decision on the relocation application at this stage.

55.Although Ms Lai expressed concern on the mother’s non-responsive and non-compromising attitude towards the father’s access requests, she has not gone that far as to conclude that there has been active alienation by the mother towards the relationship of the father and the children, especially AK. She was clear and loud in her oral evidence that the mother has been very devoted in providing full time care of the children, in particularly KK. She refused to agree with the father that the mother did not want the children to see him. Although she agreed that that the mother should try to separate financial arrangement from access arrangement and be more accommodating and facilitating to the father’s access, she admitted that in many family cases, divorced couples could not achieve this.

56.Ms Yeung had the benefit of reading the ISIR when she prepared the 3^rd Local SIR. She noted that access has improved since this court put in place new interim access arrangement to cope with the father’s new job in Taiwan. She supported the relocation application and stated her conclusion as follows:

“33. …Both parents were loving and caring to the two children. The father was working in Taiwan and had tried his best to meet with the children when he visited Hong Kong. He worked hard to support the living of the family. Yet, he was very frustrated that the access was not facilitated by the mother and the access was very limited, He strongly objected the relocation application by the mother as he believed that he could not meet with the children anymore due to the unco-operative attitude of the mother. On the other hand, the mother was taking care of the children single-handedly. She faced a lot of stress in child care and financial aspects. She strongly requested to return to her home country, Japan, with the children so that she could provide better quality of care for them with her family support. [AK] had expressed her eagerness to reside in Japan while [KK] had autism and could not express his views.

34. The present investigation revealed that the mother continued being the main carer of the children and provided proper care for them….Nevertheless, the mother was very stressful all along when the payment of the maintenance was unstable and also had stress from the debts. She had taken care of both children for a long time and was tired to handle the children’s matters as well as the disputes with the father. She did not have any family support in Hong Kong.

35.  The mother’s removal plan was understandable as being a single mother with two dependent children, with one of them had special need, she would be in need of the support from others, in this case, her extended family in Japan…If the relocation could allow the mother to perform her role with good support, it would be greatly conducive to the upbringing of the children and desirable for the children’s normal growth. The mother also agreed to arrange access for the children so as to maintain the father-child relationship.”

57.The ISIR reveals that the mother’s maternal family lives in the city of Kashiwa, which is close to Tokyo, Japan. The maternal grandparents, now retired, are in their early 70s and remain physically healthy and independent. They renovated their house in 2013. The house is about 180 sq metres and is spacious enough to house the mother and the children. There are 5 rooms on the 2^nd floor for their use, each as a study room, playroom and bedrooms. Both maternal grandparents are financially sound, as they are receiving corporate and/or elderly pension regularly. They are physically and financially ready and prepared to support the mother and the children once when they return to Japan.  Further, the mother has a younger sister living nearby, whose daughter is like a big sister to AK and they still keep in touch.

58.Despite the father’s evidence and submission on the ISIR, I do not find any solid reason not to accept the ISIR. Equally, I have no reason to doubt (and thus would accept) the content and recommendation of the 2^nd and 3^rd Local SIRs, as well as the evidence of social investigating officers.

Is the mother’s application genuine?

59.The main basis of the mother’s relocation application is to return home to enjoy the support of her retired parents and to alleviate her financial distress. The father, however, says that the motivating factor driving her application is to alienate him from the children.

(i)  Desire to return home

60.Upon considering all evidence and observing the mother while she was giving evidence in the witness box, I do not have the slightest doubt that she genuinely wants to return to her home country so that she can have the physical and emotional support of her immediate family. I accept her evidence that as a single mother who needs to take care of a special need child, KK, she faces all the following sentiments described by her in re-examination,

“No matter what happens, I have to solve the problems round the clock alone. Each day I have a strong sense of fatigue. Whenever the children are sick, the situation becomes more serious. I live everyday life in a very difficult way…I always feel tired…I do not have rest time on Saturdays. ..Every day, I am helpless.”

61.In fact, her desire to return home emerged as early as 2008 when the marriage literally broke down.  The father is fully aware of her desire to return to Japan with the children as early as 2008/2009.[16]

(ii)  Financial distress

62.It is the mother’s case that if allowed to be relocated to Japan, she can enjoy the accommodation/food provided by her parents and various social security allowances, eg children allowances, special child dependents’ allowances. Money can thus be saved for private lessons or treatments for the children and/or for repayment of her debts.

63.The father does not agree that the mother is in dire financial straits, but believes that she self-massages the need for her/the children to stay in the shelter between late June and mid-September 2013 so as to gain sympathy from this court towards her relocation plan. He has the following major allegations on the mother:

(1)  That she has not made full and frank disclosure on her financial resources and assets, such as inheritance from her maternal grandmother; $1 million withdrawal from her HSBC account;

(2)  That she has not offered any explanation as to why she still has to incur debts of about $3.88 million when she has already received $3.7 million payment out of the court between 2011-2012;

(3)  That she chose to repay the car mortgage by loans from her parents, instead of spending the money on rent and food of the children;

(4)  That she chose not to move into the Sai Yung Pun flat but to remain in the shelter even after he has moved out of the flat for her/children’s benefit.

64.Upon considering all evidence, I do not accept the father’s contention and conclude that the mother is genuine in feeling the financial stress that she describes. My reasons are as follows.

65.First, it is indisputable that the mother and the children were financially dependent on the father at all material times, because he has been the breadwinner of the family. As I have pointed out earlier in my judgment, the ancillary relief matters have still a long way to reach the stage of trial. It is thus pre-mature at this stage to conclude that the mother has the alleged hidden financial resources and/or alleged debts. Yet, the father unilaterally stopped the MPS payment altogether since January 2012. Although the mother received payment out of court to cover the MPS payment, the same was exhausted by July 2012. Simply put, she did not receive the full amount of MPS payment for the month of July 2012. She received no MPS payment at all from August 2012 for about a year. It needs no further elaboration to understand the financial stress faced by her, being a single mother who needs to provide full time care to 2 dependent children in a non-native country but without the required financial support.

66.Second, the monthly maintenance now paid by the father ($34,000), plus the rental of $21,000 paid by him, replicates less than 50% of the MPS payment agreed by consent under the Consent MPS Order. It comes no way close to the high living standard enjoyed by the mother and the children during the marriage. It has also to be borne in mind that KK has to follow a strict diet with only organic or natural food, which is logically more expensive. Naturally, the gross disparity in living standard gives rise to the mother’s genuine feeling of financial distress. In fact, the father himself concedes during cross examination that living an expatriate lifestyle in Hong Kong is expensive and money has always been “a real problem” for the mother since he cut off the MPS payment. He volunteers to say in his evidence that $34,000 is not an ideal sum for the mother/children:

Q:	…Hong Kong is a very good place but it’s very difficult place if you’re short of money, would you agree?
A:	Agreed.
Q:	And if you’re trying to live outside the local Hong Kong community, as you have to if you are a foreigner, to some extent, it tends to be more expensive…Do you agree with that?
A:	Agree. ….
Q:	And we don’t have to go back through it.  Money has been a real problem for my client over the last, well, since you cut off the maintenance from December 2011?
A:	Correct.
Q:	And it remains a problem?
A:	Correct. May I also add that I do realize we are in a very deep financial situation and I do realize and accept that.  I do realize $34,000 a month may not be the ideal amount of money for the mother but I am working hard to remedy that situation…

67.Third, it is pertinent to point out that the father has previously before H H Judge K W Wong made the same allegation relating to the inheritance of the mother’s grandparents and the $1million withdrawal from her HSBC bank account. The learnt Judge has made his factual ruling, at least for the purpose of these interlocutory stages, which the father has not sought to appeal. In gist, the leant Judge accepted, at the interlocutory stage, the mother’s affidavit evidence that she has not received any legacies from her own grandparents and that the $1million withdrawal from HKSB account was to pay for her legal costs.[17]

68.Fourth, I do not think it is fair and correct for the father to say that the mother herself received $3.7 million out of the $4 million payment into court. The court accounts records show that a total sum of $2.7 million was paid out direct to the mother’s solicitors for her costs provision. In any event, it cannot be disputed that the mother has not received any MPS payment from the father or from the payment out of court since August 2012. Prima facie, the necessity for loans, soft loans or the otherwise will have to be decided during trial after hearing evidence, is there. The financial pressure on her, being a single mother with 2 dependent children, is not something which is moon-shining.

69.Fifth, I would repeat what I have set out at length on the events leading to the mother’s relocation application, which would throw light as to why the mother had to move to the shelter. I am of the view that the father’s then suggestion to let the children stay with him, with the mother finding her own accommodation, is unhelpful and unreasonable. It is an attempt to usurp the care and control order which has been put in place by Roger VP (as he then was) in the 1^st CA Judgment. The mother cannot be criticized for not accepting his offer. Equally, I accept her concern of not moving into the Sai Yung Pun flat immediately after the father moved out. As explained in her solicitors’ letters of 12 and 19 July 2013, she did not find it secured to leave the shelter, where free accommodation and food were provided, without the father providing them with sufficient and on-going maintenance for their daily expenses otherwise.  She has moved into the Sai Ying Pun flat shortly after the father provided lump sums of about $80,000 by early September 2013.

70.I note that at some point of time during the trial, the father suggested that he would take on the debts of the mother, but only to the extent of the outstanding MPS payment. Yet, he has not substantiated how and when he can take on such debts.

71.In view of the circumstances leading up to the mother’s relocation application and the observations set out above, I am satisfied that the mother is genuine in feeling the financial stress described in her evidence.

(iii)  Alienation/Obstruction to access

72.The father has set out in various affidavits the difficulties faced by him in co-parenting (because he is a joint custodian parent) and access. He attributes that is caused by the mother’s tendency to complain and to fight, as well as her “lacking in any self-awareness that she fails to see the problem may lie with her”. His major and relevant complaints include:

(1)  The mother unilaterally decides on the children’s important matters such as education and medical arrangements without consulting him. For example, she unilaterally decided to enroll AK with the EPIS, which is a Japanese cram school for Japanese high school examination; she tried to exclude him from AK’s primary graduation ceremony; she stopped KK’s IVIG treatment without his consent/knowledge;

(2)  The mother wrongly ties the maintenance matters with access. She denies him access to the children and/or constantly fails to respond to his emails on access. For example, he was denied access for about 2 weeks after she reported to the police of an alleged child abuse by him on AK on 26 December 2012;[18] she has never allowed and/or encouraged AK to have Skype communication with him since he has moved to Taiwan;

(3)  The mother has been constantly in breach of court orders of joint custody and access. Such conduct is indicative that she would continue to flout court orders if she was allowed to leave Hong Kong for Japan with the children, leading to the inevitable result that he would be cut out of the children’s lives forever.

73.There are many other allegations made by the father against the mother in child care and co-parenting, but many of such allegations were repetitions which were made in previous trials and rejected by the court, eg, the fire allegedly caused by the mother in her former flat. I am not going to address to these repeated allegations in this judgment.

74.I only need to point out that the subject of alienation has been the main and most hotly contested issue of dispute between the parties in their litigation over the last 6 years. However, save and except the 1^st DC Judgment (which was overruled by the Court of Appeal), none of the other previous judgments on the children’s matters have, either expressly or impliedly, found that there has been any alienation by the mother on the relationship between the father and the children, especially AK.  It is also pertinent to say that since the mother has always been the main care-giver of the children and that AK is a girl, it becomes inevitable that they are closer to the mother than to the father. In all circumstances, I do not find any substance in the father’s alienation argument.

75.As to the father’s complaint about the mother’s disrespect of his right as a joint custodian parent, I have this to say. It is eminent from the 1^st CA Judgment given by Roger VP (as he then was) that the parties have chosen that AK should be brought up in a Japanese school speaking Japanese. [19] It also seems to me that AK herself also wishes to go to the EPIS. Concerning the termination of KK’s IVIG treatment, the mother explained that she lacked funds to arrange this treatment and, in any event, the doctor has advised that regular treatment could be hauled for the time being. I see no reason why her explanation should not be accepted. Strictly speaking, these are not the unilateral decisions of the mother without respect to the father’s parental rights.

76.On the issue of obstruction of access, I have considered the emails/correspondences between the parties on access. It is noted that sometimes access had to be cancelled due to the father’s work schedule or AK’s schedule. For some other times, the father was late or he sent over his maid, Rosa (who is not on good terms with the mother and whom should have been dismissed by the father on the clear indication of Roger VP in the 1^st CA Judgment), to pick up the children, leading to cancellation or unsmooth hand-over in access. Therefore, it is an overstatement that the mother has caused obstructions to access. 

77.I have not lost sight that there were occasions when the mother did not reply to the father’s emails. But she has provided an explanation in the re-examination by her counsel (which I accept in the circumstances of the case):

“Frankly speaking, whether I like [the father] or not, I really have no time to read [his] emails in so much English. I always feel very tired.”

78.It is true that the father did not have access to the children between 26 December 2102 and mid-January 2013. But the mother has offered her explanation. It was because a multi-disciplinary conference on the alleged child abuse on AK had yet to be held. I accept that under the circumstances, it was prudent to withhold any access pending the outcome of the said conference. Access resumed in mid-January shortly after the said conference of 11 January 2013 concluding that it was not a child abuse case.

79.I accept the mother’s explanation that she was not able to get internet service (and thus received/responded to some of the father’s emails) because she was either in the shelter or lacking of funds to pay for such service.

80.I hope that the father would be more forbearing and understanding that it must be very exhausting of the mother, single-handedly without the assistance of any maid and/or driver whose service she used to enjoy, to take care of 2 dependent children, one of whom being rebellious because she is going through her adolescence, and the other one being handicapped and needs considerable attention, in a foreign place where she is unable to enjoy the physical or emotional support of her family.  Almost instant replies to his access proposal by the mother may not be possible at times. 

81.On the other hand, I urge the mother to fully appreciate that the father is a joint custodian parent of the children. She should have informed the father of AK’s graduation ceremony as this is an important event of her life. She should be more accommodating if access has to be re-scheduled due to the father’s work time table, provided sufficient prior notice is given by the father.

82.I do not intend to address to each and every other examples given by the father on the allegation of alienation and breaching of court orders. Suffice to say is that I have considered them all. I am not persuaded, and thus do not so find, that a case of active alienation and/or obstruction to access by the mother has been made out. It is my conclusion that the mother’s relocation plan is not motivated by her selfish desire to exclude the father from the lives of the children.

Is the mother’s application realistic?

83.I shall address to the various aspects of the relocation plan according to the objections raised by the father in this trial.

(i)  Support from the maternal grandparents

84.In the mother’s relocation plan, she/the children are going to live with the maternal grandparents in their house, where the 2^nd floor will be reserved for them. Details of the accommodation arrangement and support to be rendered by the maternal grandparents are set out in para 57 of this judgment.

85.Relying on the fact that maternal grandparents are already old and that they have never come to in Hong Kong to visit the mother/children, the father submits that there is a heavy doubt if they are willing to offer unconditional support to the mother/children if they go to live in Japan.

86.True as it may that the maternal grandparents have not come to visit the mother/children in Hong Kong, it is too far-fetched to escalate this to the level that they would be unwilling to support the mother/children in Japan. It is quite sufficient for me to point out that according to the mother’s evidence, the maternal grandparents have provided financial support to her/the children, especially after the father has unilaterally stopped paying the MPS payment.  The father has not seriously challenged this piece of evidence in the trial. In fact, he concedes in his affidavit evidence that the maternal grandparents have been providing such financial support in the past year or so.[20] The father’s contention is without substance.

87.I have already made my finding on the ISIR. The basic information revealed therein provides a good foundation for the mother’s relocation application and an answer to the father’s alleged worries which I find to be unsubstantiated.

(ii)  Education & medical arrangement

88.According to the mother’s case, AK would be enrolled in Nakahara Junior High School, a local public school in the city of Kashiwa which is within 10-minutes’ walking distance from the house of the maternal grandparents.  In fact, a place has already been offered to her. KK would be enrolled in the Kashiwa Special School for the handicapped children. The special school offers curriculum all the way from the elementary level to high school level, which means that KK can stay remained in the same school until he completes high school education. With the interim maintenance that could be saved since she does not have to pay rent in Japan, she will arrange for additional private lessons such as swimming for AK, and private treatment for KK.

89.The father does not think that the mother’s education plan is well-researched. She overlooks the danger that AK may be bullied at school because of her half-Chinese background. He comments that the mother has not even bothered to contact the Kashiwa Special School to find out that this is not a school dedicated to autistic children only; it is a school for all types of disabled children. In his opinion, it is not in the best interest of KK to change to a new learning and Japanese-speaking only environment amidst the good and stable progress now at his current English-speaking school for autistic children in Hong Kong.

90.To begin with, it is trite to say that in the case of relocation to one’s home country, like the mother here, the bar to practicalities that an applicant parent has to pass is set relatively low. In Re F & H (Children: relocation) [2008] 2 FLR 1667, Thorpe LJ explained that:

“ … the bar as to practicalities that must be jumped by the relocation applicant is set at a wide variety of heights depending on the facts and circumstances of the case. In this commonplace category of cross-border family creation, where the primary carer is returning to a completely familiar environment, the bar is obviously set considerably lower than in the case of an applicant who, in pursuit of some dream or ambition, is proposing to take the children to an unknown and untried environment. The bar is set particularly low where the primary carer is returning to the completely familiar home life after such a brief absence. In this instance the mother had only been in this country for 6 years in total.”

91.Upon considering all the evidence, I am on the whole unable to agree with the father that the mother’s education and medical plan is unrealistic. I do not think that he has made out a case that AK would be bullied in Japan. The letters from his friends on the education system in Japan do not advance his case, since what they describe is strictly personal experience limited to their unique family background and thus not universally applicable.

92.On the part of KK, although English is the medium of language in his present school in Hong Kong, the evidence of the mother shows that she and AK communicate to him in Japanese, English and sign language. It is also her evidence that before he started schooling, he understood Japanese only. He started English training at school and began to understand the language after 1 – 2 years. But, the English words that he can understand are words of physical objects. For words expressing one’s feeling, such as pain, sleepy, want or do not want, he can understand Japanese only. I have no reason to doubt such evidence of the mother and I fully accept the same. Further, I take note that Japan is not totally new to KK. He was born there. Between 2004 and 2008, he went to Japan each year, sometimes up to 3 occasions each year. Given time, he would be able to pick up in Japan. That the Kashiwa Special School is not a school solely for autistic children is a non-pointer. KK is a child with special needs. I am of the view that what is more vital to him is to be near to his primary care-giver, ie the mother.

93.Common knowledge tells that Japan is a modern country.  It would defy common sense that her medical system does not provide the necessary service and care to autistic children. The mother in her evidence reveals that KK can continue to receive IVIG treatment at Jikei Hospital, Japan, if sufficient funds are provided.  I have no doubt that she has provided devoted care to KK, as confirmed by both social investigating officers in this trial. There is no evidence to make me think the otherwise if she returns to Japan with KK. I am confident that she will make suitable medical arrangement for KK in Japan.

(iii)  Financial arrangement

94.If relocated to Japan, the mother says that the maternal grandparents can provide accommodation and food to her and the children.  In addition, the children will be entitled to social allowances:

(1)  Child allowances: JPY $10,000 per child per month;

(2)  Aid to dependent child: JPY$14,180 per month for KK only;

(3)  Special child dependent’s allowances: JPY$33,330 per month for KK only.

95.The mother further adds that since the maternal grandparents have been paying for her pension in Japan, she and the children will be entitled to national health insurance to the effect that 70% of medical expenses would be covered by the insurance, which means that she only needs to pay the remaining 30% of medical expenses.

96.On top of all the above, the mother expects the father to provide regular maintenance for her and the children.

97.The father expresses his suspicion as to the alleged support from the maternal grandparents, which I have already dealt with and rejected. He has not put forward other serious challenge to the proposed financial arrangement of the mother. I will thus conclude that the financial proposal of the mother is realistic and acceptable.  

(iv)  Nuclear danger

98.The father argues that Kashiwa, the city where the maternal grandparents live, is just 200km away from Fukushima nuclear station which was damaged 3 years ago during the mega tsunami. Relocation to the city will expose the children to nuclear danger.

99.The father merely relies on some internet reports/articles on the alleged nuclear danger. In my judgment, that is insufficient to support his allegation. His quoted article about the extreme high level of radiation found in a residential area of the Kashiwa city has nothing to do with the Fukushima nuclear station leakage. It quoted some experts’ speculation that “the contaminated soil came from elsewhere and might have been deliberately buried there”.

100.I reject this argument of the father.

Appraisal of the father’s opposition

101.Mr Neal Clough, counsel for the mother, submits that the father’s opposition to the mother’s application is not motivated by genuine concern for the future of the children’s welfare but is driven by ulterior motives. It is selfish and puts his convenience and thwarting the mother before the children’s interests and AK’s expressed wishes.

102.I think it is fair for me to say that in this trial, the father has not given any concrete plan for the children remaining in Hong Kong. For example, he recognises that there is no Japanese high school in Hong Kong and suggests that AK to enrol in an international school. He has not started any research into the schools, nor has he sufficiently addressed how to pay for the relatively high school fees of an international school. He acknowledges that a sum of $34,000 per month for the mother and the children is not ideal. He asks the mother to endure for a few years, after which he is hoping that the family financial situation will improve. In my view, the alleged arrangements are speculative and lack clarity.

103.Coupled with the above, it remains a fact that the father is now not living or working in Hong Kong. I have grave reservation as to whether he is really able to be deployed to work in Hong Kong in 2 years’ time.  After all, in terms of working time, it seems to me that his working experience connects more to Taiwan than Hong Kong. It is also very telling that he has recently made enquiries as to how to obtain permanent citizen status in Taiwan. There is nothing to suggest that Hong Kong is a permanent home for him, especially his family members are not here but in the USA. 

104.There is another minor point taken up by the father in that he would end up having lesser time with the children if they were to relocate to Japan. This is because more flying time and expensive travelling expenses would be incurred. I appreciate the father’s concern, but would say that the focus should be on quality rather than quantity of time. He can also make full and good use of the modern tele-conferencing technology such as Facetime and Skype.

105.Upon considering background and all evidence, I am not prepared to conclude that the father has ulterior motives in opposing this relocation application. Frankly, it is my view that his opposition is based on a mixture of genuine concern for the future of the children’s welfare and a strong feeling of mistrust towards the mother. Such feeling of mistrust, I would add, is also there in the mother towards the father. It is lamentable that neither party has worked sufficiently to address this concern.

Detriment to the father & his future relationship with the children

106.The major concern of the father under this topic is about his legal position as a father in Japan. In essence, he says that the Japanese courts do not favour a father’s right in access to his children. The fact that he is a non-Japanese parent poses an additional disadvantage on him. There is no means of enforcing a Hong Kong court order in Japan, apart from imposing a fine on the mother.

107.The father attempts to rely on some statements written by 2 left-behind fathers who have their children kidnapped from them and/or been denied access. I am not prepared to place any weight on these statements because (1) each case has to be decided on its own facts so that the personal experience of these writers is not necessarily applicable to our case; and (2) these writers were not called to give evidence. 

108.The father also seeks to rely on a Japanese legal opinion dated 6 December 2013 to show that even if he can apply to register an access order in Japan, there is no mechanism to ensure that the mother will enable his access and there is no recourse to compel her to allow him seeing the children. [21] This legal opinion was given before Japan adopted the Hague Convention. With Japan joining the Hague Convention since April 2014, the father’s right should be better protected.

109.The mother deposes that she would take all reasonable steps to ensure that the father has reasonable access to the children, because she has enough of the legal proceedings and thus would not subject herself to further proceedings by attempting to frustrate his rights in respect of the children.  I would add that since the ancillary relief trial has yet to be fixed, the mother, even if allowed to be relocated to Japan, would need to come back to Hong Kong for the trial. In my view, the chances of her wilful breach of court orders, which may lead to contempt proceedings being instituted against her, are likely to be slim.

110.The view of AK (to be further discussed below) is not to be overlooked. The 3^rd Local SIR mentions about her strong and firm view to go to Japan. It states that if she can stay in Japan in the long run, it can help building up her sense of security and identity, and her relationship with the father will hopefully improve.

Impact of refusal on the mother

111.Up to the time of this trial, the mother and the children have been staying in Hong Kong for about 9 years. But it is clear from her evidence that she has not treated Hong Kong as her permanent home.  She has been here, at first, because of the marriage and work of the father, and later, because the children are not allowed to leave Hong Kong due to the non-removal order that have been in place since about 2008.

112.In her oral evidence, the mother explains that even if putting aside the debt problem that she has been facing, she feels herself leading “a miserable life in Hong Kong” and being “forced to live in Hong Kong”.  She reiterates her Japanese nationality and expresses her deep disappointment “to be forced to leave [her] family and parents”, even when she has divorced with the father. As a single mother with poor financial support, she expresses that she is “in great pain” under such circumstances (See also para 60 above).

113.The father does not dispute that she is unhappy in Hong Kong.  Here is what he says in cross examination:

Q:	Do you accept that she’s unhappy in Hong Kong and that’s one reason she wants to go back to her family?
A:	I believe that she’s been unhappy for a long time… …
A:	I think she’s unhappy in Hong Kong but I don’t think a move to Japan will make her happy.

114.Upon considering all evidence, I believe the mother’s oral evidence about the impact on her if her relocation application is refused. I believe that after the breakdown of the marriage, she has been forced to remain in Hong Kong, solely for the sake of the children who are not allowed to leave the jurisdiction due to the non-removal order. I do not doubt the genuineness or severity of her feeling/emotion.

115.It does not seem to me that the father has provided any substantial reason(s) to support his proposition that moving back to Japan would not make the mother happy. It is unfortunate that he attempted to criticise the mother for lacking “the self-awareness to look at herself, see what action she needs to take to be happy”. In my view, such comment is not necessary or helpful. It should be avoided.  

116.Without downplaying the importance of the father in the children’s lives and having reminded myself that there is no presumption in favour of the applicant parent (ie the mother), I have to say that the evidence is overwhelmingly clear that the mother plays a very important, if not indispensible, role in the daily care of AK and KK, whose well-being in turn depends on her emotional and psychological stability. Thorp LJ in his enlightening judgment in Payne (supra) explained the interrelationship in this way,  

“30. …. In a broad sense the health and well-being of a child depends upon the emotional and psychological stability and security. Both security and stability come from the child's emotional and psychological dependency upon the primary carer. The extent of that dependency will depend upon many factors including its duration and the extent to which it is tempered by or shared with other dependencies. For instance is the absent parent an important figure in the child's life? What is the child's relationship with siblings and/or grandparents and/or a step-parent? In most relocation cases the judge will need to make some evaluation of these factors.

31. Logically and as a matter of experience the child cannot draw emotional and psychological security and stability from the dependency unless the primary carer herself is emotionally and psychologically stable and secure. The parent cannot give what she herself lacks. Although fathers as well as mothers provide primary care I have never myself encountered a relocation application brought by a father and for the purposes of this judgment I assume that relocation applications are only brought by maternal primary carers. The disintegration of a family unit is invariably emotionally and psychologically turbulent. The mother who emerges with the responsibility of making the home for the children may recover her sense of well-being simply by coping over a passage of time. But often the mother may be in need of external support, whether financial, emotional or social. Such support may be provided by a new partner who becomes stepfather to the child. The creation of a new family obviously draws the child into its quest for material and other fulfilment. Such cases have given rise to the strongest statements of the guidelines. Alternatively the disintegration of the family unit may leave the mother in a society to which she was carried by the impetus of family life before its failure. Commonly in that event she may feel isolated and driven to seek the support she lacks by returning to her homeland, her family and her friends. In the remarriage cases the motivation for relocation may well be to meet the stepfather's career needs or opportunities. In those cases refusal is likely to destabilise the new family emotionally as well as to penalise it financially. In the case of the isolated mother, to deny her the support of her family and a return to her roots may have an even greater psychological detriment and she may have no one who might share her distress or alleviate her depression….

32. Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability.” (my emphasis)

117.Time and again, the court emphasizes the importance of recognizing and supporting the function of the primary carer.  In A v A (Child : Removal from Jurisdiction) (1980) 1 FLR 380, Ormrod LJ said at 381 - 382 that:

‘It is always difficult in these cases when marriages break up where a wife who, as this one is, is very isolated in this country feels the need to return to her own family and her own country; and, although Mr. Swift has argued persuasively for the test which was suggested in the case of Poel v Poel [1970] 1 WLR 1469, the test which is often put on the basis of whether it is reasonable for the mother to return to her own country with the child, I myself doubt whether it provides a satisfactory answer to this question. The fundamental question is what is in the best interest of the child; and once it has been decided with so young a child as this that there really is no option so far as care and control are concerned, then one has to look realistically at the mother’s position and ask oneself the question : where is she going to have the best chance of bringing up this child reasonably well? To that question the only possible answer in this case is Hong Kong. It is true that it means cutting the child off to a large extent – almost wholly perhaps – from the father; but that is one of the risks which have to run in cases of this kind. If it is wholly unreasonable, as I think it is in this case, to require the mother to remain in England, assuming even the court ought to put her in the position of choosing between staying very unhappily and uncomfortably in England and going home to her own country, then I still think the answer is that where she can best bring up this child is the proper solution to this case.’

118.In Chamberlain v de la Mare (1983) 4 FLR 434, Ormrod LJ explained (at 443) that one should not weigh the interests of the adults against the interests of the children, but rather should weigh the effect on the children of imposing unreasonable restraints on the adults.

119.In the case of Belton v Belton [1987] 2 FLR 343, Purchas LJ agreed with the above approach when allowing a mother’s appeal against the refusal of her application to relocate her child to New Zealand and said at 349 this:

“I sympathize and understand, where a lay person such as a father is concerned, the difficulty of reconciliation with the concept of such a separation being in the paramount interests of the child in the long term, but the long-term interests of the child revolve around establishing, as Griffith LJ (as he then was) said in Chamberlain, a sound, secure family unit in which the child should go forward and develop. If that can be supported by contact with the father, that is an immense advantage, but, if it cannot, then that is no reason for diverting one’s concentration from the central and paramount issue in the case.’

120.Simply, the unhappiness and pain that the mother suffers if her application is not allowed would inevitably affect the children’s well being negatively. In the circumstances and in the best interest of the children, the mother should be allowed to return to Japan with them. 

Wishes of the Children

121.AK is now 12 years old and has now studying in the secondary section of the Hong Kong Japanese School. The 2^nd and 3^rd Local SIRs, couple with the evidence of social investigating officers, show that AK is eager and firm that she wishes to be relocated to Japan with her mother. She has not regarded Hong Kong as her home town.  As a matter of fact, the passport entries of the children show that before 2008, they went to Japan regularly, for 1 to 3 times per year on average.

122.KK continues his schooling at the Family Partners School. Being autistic, he is not capable to express his view. But given the very close and intimate sibling relationship, it is clear to me that KK should not be separated from AK. This is also latest view of both parents.

123.On the request of AK to meet me, I saw her on 9 June 2014 and listened to her views on the relocation. I remind myself that the purpose of meeting her is not to take evidence.

124.Throughout this trial, the father is insistent that AK was not expressing her own and true view on relocation; rather, she was actively influenced by the mother to say what the latter wanted to say. I do not accept this allegation for the following reasons:

(1)  Under cross examination by the father, Ms Lai, the writer of the 2^nd Local SIR, gave evidence to the effect that during her interview with AK, AK expressed her preference (of going to Japan) naturally and shared some of her own suffering. Ms Lai’s impression was that AK was very unhappy herself and it happened that both she and the mother shared the same feeling. Ms Lai refused to accept the father’s proposition that the mother totally influenced AK to make the latter say what she wanted to say;

(2)  My overall impression of AK is that she is a smart and articulated girl. This is reinforced by both social investigating officers who interviewed AK. For example, Ms Lai described AK as “confident and mature”; Ms Yeung revealed that AK “was already a teenager who had her own view”; and

(3)  As admitted by the father in her own re-examination, AK is “headstrong and independent-minded”, which means that the chances of being actively influenced by others are logically not great.

125.Given the above matters, I have no doubt that AK is eager to stay with her mother and be relocated to Japan.  In my view, due and heavy weight should be given to the wishes of AK when considering the mother’s application.

The best interest of the children

126.I have considered and weighed all the factors/matters set out above. I take into account that rightly pointed out by the father, KK is autistic and needs as much consistency in his caring as possible. My conclusion is that it is in the best interest of the children to be relocated to Japan with their mother, who is their primary caregiver.

The access proposal

127.The mother explains that school year in Japan starts in each mid-April and there are 3 semesters each school year. The school long holidays fall on the following period:

(1)  About 4 weeks in July/August (“Summer holiday”);

(2)  About 1 week at the end of December over Japanese new year into January (“New Year holiday”);

(3)  About 4 weeks in March/April (“April holiday”);

(4)  About a week in May (“Golden May holiday”)

128.She has put forward the following access proposal on relocation to Japan:

(1)  During school terms : dinner access in mid-week and weekend staying access in Japan;

(2)  During school long holidays: Staying access in Japan during New Year and Golden May holidays. Overseas staying access over summer and April holidays in the USA or Hong Kong, but not Taiwan, but the mother must accompany the children to the destination country to be funded by the father. 

(3)  The father must give sufficient prior notice to the mother for all access; more advanced prior notice required for overseas access;

(4)  For access in Japan, the mother is willing to drop off/collect the children at the father’s hotel. She agrees to buy food for KK and keep the cooking utensils for him, taking all to him when she drops off the children at his hotel. Yet she is not prepared to give an undertaking to the same effect.

129.The father accepts that during school terms, access should take place in Japan. In terms of frequency of access during school terms, the father suggests twice a month fixed on the 1^st and 3^rd weekend; the 1^st weekend is a static arrangement while the 3^rd weekend is to be confirmed by 1-month’s advance notice. This is agreed by the mother.

130.The father refers to a scenario with a school holiday on a friday or a monday and suggests that AK can fly to Taipei to spend a long weekend with him. He agrees that Taiwan is not a signatory to the Hague Convention, but insists that the chance of him not returning AK to the mother is slim, as this would make him an “international fugitive” which would in turn negatively impact on his employment. The mother does not agree to overseas access in Taiwan, for she is afraid that the father will not return AK to her.

131.I do not think the father’s explanation is sufficient to wipe away the mother’s reasonable worry. It must be noted that he indicated in the last pre-trial review (though he decides to withdraw this request in the trial) that his ideal plan was for AK to move to live with him in Taiwan, while the mother could focus on taking care of the autistic KK in Japan if her relocation application was granted. I also repeat what I have said in para [102] above. I am not inclined to allow overseas access in Taiwan at this stage.

Costs

132.In his final submission, Mr Clough simply wished to put on records that the mother, being legally aided, has asked for costs. Fairly, he did not make any allegation on adverse litigation conduct of the father. The father, on the other hand, submitted that there should be no order as to costs.

133.I take into account the above submission and the nature of the application involving the welfare of 2 children of the family. I shall exercise my discretion to make a costs order nisi that there be no order as to costs of the mother’s application, including all costs reserved.  This is an order nisi to be made absolute at the expiration of 14 days.

Conclusion

134.For all the matters aforesaid, I would grant leave to the mother to remove AK and KK permanently out of the jurisdiction of Hong Kong to go to live in Japan. Immediately upon the relocation, the father shall have the following access to the children:

During school terms

(1)  2 weekend staying access per month in Japan; the first being static and fixed on the 1^st weekend of each month; the next being the 3^rd weekend of each month to be confirmed by the father 1 month in advance and the mother to reply within 3 days thereafter.

(2)  The mother should not arrange for any private lessons/interest group activities for the children during the 1^st weekend of each month when the father shall have his static and fixed weekend staying access to the children.

(3)  If case when school-arranged activities and/or tests/examinations fall within the 1^st weekend of the month when the father shall have his static and fixed weekend access, he shall have a make-up weekend staying access to take place within 1 month. 

During school long holidays

(4)  Summer holiday – 2 weeks staying access to take place either in Japan, the USA or Hong Kong. For overseas access in the USA and Hong Kong, the mother is to accompany the children to/from the said overseas country at the father’s costs.

(5)  April holiday – 1 week of staying access (both weekend inclusive) to take place either in Japan, the USA or Hong Kong. For overseas access in the USA and Hong Kong, the mother is to accompany the children to the said overseas country at the father’s costs.

(6)  New Year and Golden May holidays – staying access in Japan of no fewer than 9 days in total.

(7)  For long holiday access, the father is to give 3 months’ prior notice to the mother, and the mother is to reply within 7 days thereafter.

Facetime/Skype access

(8)  The Father shall have Facetime/Skype access to the children each Wednesday and Sunday (when the father does not have staying access) for 30 minutes through the service of a mobile plan purchased by the father for AK.

Other access arrangements in Japan

(9)  The mother is to drop off/collect the children at the father’s hotel provided it is within the Kashiwa city.

(10)  If requested by the father, the mother is to buy food for KK (to be reimbursed by the father) and keep the cooking utensils for the father, taking them to him when she drops off the children for access at his hotel provided it is within the Kashiwa city.

135.The father agrees in this trial that he is willing to fly to Japan to receive counselling/service provided by a Japanese speaking co-parenting expert with the mother at his costs.  The mother confirms that she will attend such counselling/course within 4 months upon relocation to Japan.  In the circumstances, I invite the parties to put into practice the above arrangement within 4 months upon the mother’s relocation to Japan.

136.There will be no order as to costs of the mother’s application, including all costs reserved. This is an order nisi to be made absolute at the expiration of 14 days.

137.The pre-trial review of the ancillary relief matters should be restored. I direct that be fixed for 8 May 2015 (Friday) at 10.30 am before me (1 hour reserved) and that both parties shall file and serve their proposed directions 7 days before the pre-trial review.

The Petitioner (father) acting in person and present

Mr Neal Clough instructed by Messrs Massie & Clement (on the instruction of the Director of Legal Aid) for the Respondent (mother)

[1] In the father’s Form E of 19 September 2013, he says his total debts are over $5.9 million. In the mother’s Form E of 5 December 2013, she alleges that her total debts are over $3.88 million.

[2] See §§11-39 of the 1^st DC Judgment under FCMC 12102/2008, which was later dismissed upon decree nisi being granted in a fresh divorce case under FCMC 4931/2012

[3] See §§6-10 of the 2^nd DC Judgment

[4] See §4 of the father’s 27^th affidavit [B1/167]

[5] CACV 193/2010, date of judgment 22/9/2010, per Roger JA at §16 [1/10]

[6] §§17-18 of the 1^st DC Judgment

[7] Form E of the father dated 19 September 2013 [3/807]

[8] In the father’s open proposal, he apportioned the total monthly expenses of the mother and the children as follows: general expenses ($82,000); mother’s personal expenses ($20,555); children’s expenses ($8,400) with his undertaking to pay the school fees, extra tuition fees, medical/dental, play therapy and insurance premium

[9] §§11, 50-51 & 60-61of the Decision of H H Judge K W Wong of 4 July 2011 on the father’s application for discharge of an interim injunction dated 26 May 2011 restraining him from disposing his assets/money in bank accounts to the extent of $4million

[10] Written Decision of H H Judge K W Wong of 9 November 2011

[11] The 23^rd affidavit of the father [1/140/§26]

[12] The 27^th affidavit of the father [1/169]

[13] After moving out of Parkview, the mother and the children moved to New Town Mansions, Causeway Bay at rental of $36,000 per month. The outstanding rental then was from August – November 2012 in the total sum of $146,000

[14] Letter of 15 January 2013 issued by SB (HK) Ltd [2A/710-713] & letter of 20 May 2013 from the father’s solicitors, Messrs Hampton Winter & Glynn [2A/1208]

[15] The father alleged that his updated monthly expenses were general and personal expenses in the total sum of $70,451 - $72,451; children expenses (such as school fees, health insurance) in the sum of $27,150. He thus alleged that he could afford to pay $5,000 per month as interim maintenance for the children

[16] §3 of the father’s 29^th affidavit [2/211]

[17]§§45-55 of the Written Decision of H H Judge K W Wong of 9 November 2011

[18]A further complication took place on/about 25 December 2013, as there was an alleged assault by the father on AK. As a result, AK was sent to Ruttonjee Hospital until 2 January 2014. A multi- disciplinary conference was held on 11 January 2014 and concluded that it was not a child abuse incident and that the restraint used by the father on AK was consistent with his wish to ensure AK did not endanger herself. Access was withheld after this incident until about mid January 2014.

[19] §§11 & 45 of the 1^st CA Judgment

[20] §68 of the father’s 27^th affidavit [2/194]

[21] [2/484-498]