HKMB v. LKL

FCMC 8664 / 2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8664 OF 2004

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JUDGEMENT

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Background Facts

1. The Petitioner (whom I will refer to as the Mother) came from a Hong Kong Chinese family of three children. The Respondent (whom I will refer to as the Father) is a Malaysian Chinese of a family of 10 children.  They met when studying in Australia as overseas students.  The Mother obtained a diploma in business studies and the Father an accountant qualification and eventually became a certified public accountant.  After completing their studies, they returned to their respective homes.  However, the Father only worked in Malaysia as a junior accountant in 1988 for one year and in 1989 came to Hong Kong and started cohabiting with the Mother before they were married in September 1992.  The Mother is now 39 and the Father 42.

2. A son called “J” was born in December 1996.  Marriage difficulties started at the end of October 2003 when the Father left the matrimonial home for several months and the relationship did not improve after the Father returned home in January 2004.  While the Father alleged the Mother of having an affair with a married police officer, the Mother also accused the Father of having extra-marital relationships with prostitutes and mistresses.  At the end of May 2004 when the Mother went to Bangkok with her friends, the Father suspected the Mother of having gone on a holiday with her lover.  Upon her return, there was a big row.  After apparently a very upsetting confrontation, the Mother left the matrimonial home on 8^th June 2004 and moved to live in a hotel.  The Father since changed the lock of the matrimonial home.

3. The incident leading to the Mother filing for a Petition for divorce is probably the incident of 8^th August 2004 on which day the Mother traced the Father to a hotel in Causeway Bay after she found a contact number left by the Father when she went back to the matrimonial home to see J.  The Mother discovered a woman inside the hotel room rented under the Father’s name.  The Mother believed that the woman was a prostitute hired by the Father.  After this incident, The Mother instructed a lawyer to petition for divorce on 11^th August 2004 on the ground of the Father’s unreasonable behaviour.  In the Petition, the Mother prayed for custody of J and various orders of ancillary relief.  The Father in the “Acknowledgement of Service” (Form 4) dated 20^th August 2004 stated that he intended to defend the Petition and wished to make applications in respect of custody and access of J as well as orders of ancillary relief.

4. By a consent summons dated 18^th October 2004 (“the Settlement Agreement”), the Father agreed not to defend the Petition and reached a global settlement with the Mother in respect of custody and ancillary relief matters.  It was agreed that custody of J be granted to the Father and defined visiting and staying access to the Mother.  The ancillary matters were also settled by way of a clean break by the Father agreeing to pay the Mother a lump sum of HK$6 million.  In return, the Mother agreed to transfer to the Father all her interests and entitlements in respect of two properties in Australia registered in the joint names of the parties.  By a separate consent summons of 18^th October 2004, the parties also agreed that interim custody be granted to the Father and defined visiting and staying access to the Mother.

5. On 11^th April 2005, the court granted a Decree Nisi of divorce and made an order (“the Consent Order”) in the same terms as the Settlement Agreement.  On 11^th August 2005, a Decree Absolute of divorce was also granted.

6. After the Decree Absolute of divorce was granted, the Father did not pay the Mother the balance of the lump sum in the amount of HK$5.5 million.  The Mother took out a judgment summons on 21^st October 2005(“the Judgment Summons”) to enforce the payment.  By a consent order dated 7^th April 2006 (“the April Order”), the Father was ordered to settle the remaining balance of the lump sum by two instalments – HK$3.5 million within 14 days and HK$2 million within 6 months of the April Order.

7. After the April Order, the Father sent a text message to the Mother on 10^th April 2006 and wrote a letter to the Mother’s present solicitors on 13^th April 2006 to seek the Mother’s consent to relocate J to Malaysia permanently.  When no consent was given, the Father issued the present application on 19^th May 2006 (“the Application”) for relocation.

8. The Mother opposed the Application and further issued a cross application on 12^th September 2006, seeking an order to vary the term of the custody order under the Consent Order and a consequential financial provision order for J.

9. At this juncture, it is perhaps convenient to mention that at the hearing of the Application, I was informed that the Father had just settled the entire balance of the lump sum.

The care arrangement of J before and after the parties’ separation

10. Before I set out the applicable principles below, it is perhaps convenient to briefly set out the care arrangement of J.  J was born in Hong Kong.  After J was born, the Mother was in full time employment most of the time and she was assisted by a full time domestic amah.  J’s maternal grandmother had also rendered assistance to the care of J especially after he was born.  The Mother was responsible for taking J to seek medical treatment for his severe nosebleed and mild asthma.  She also arranged most of J’s extra curricula activities.  It is not disputed that although the Father spent a lot of time in his work, he had also taken a fair amount of responsibility in relation to the care of J whenever he could.  Since 2000, the parties’ matrimonial home was a rented apartment in North Point.

11. After the Mother left the matrimonial home in June 2004, J continued to reside with the Father at the matrimonial home.  He has been looked after by the Father who was assisted by a full time live-in amah.  J has been attending an international school based on the Australian curriculum.  The Mother has been exercising defined access during the week and staying access over the weekend as well as holiday staying access.  The Mother also has telephone access with J on a daily basis.  The Father has moved to another rented apartment in the same residential development since the divorce.  J was 6 and 1/2 years old when the parents separated and will be 10 in December this year, 2006.

The Principles and the Law

12. The statutory principle of the “first and paramount consideration” set out in section 3 of the Guardianship of Minors Ordinance (“the Ordinance”) is well entrenched and it requires no repetition.  Suffice it to say that in considering the Application, I am required to have regard to the general principles stated in the provision.

13. So far as the principles governing children-relocation applications are concerned, both counsel have no quarrel that this court should be guided by the considerations set out in the often-cited English Court of Appeal decision of Payne v Payne [2001] 1 FLR1052.  The relevant guiding considerations summarized by one of the learned judges, Dame Butler-Sloss, at 1079 (ibid) are :

(a)      The welfare of the child is always paramount;

(b)     Great weight is to be attached to the reasonable proposal of the custodian parent wishing to live abroad;

(c)     The proposals have to be scrutinized 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 non-custodial parent to an end;

(d)     The effect upon the applicant of a refusal of leave is very important;

(e)      The effect upon the child of the denial of contact with the non-custodial parent and in some cases his / her family is very important;

(f)      The opportunity for continuing contact between the child and the parent left behind may be very significant.

14. That stated, however, I am conscious of the fact that each case turns on its own facts and all the circumstances and the relevant factors must be carefully considered and appraised.

The issues

15. Upon the Father deposing in his 4^th Affirmation dated 20^th September 2006 that should this court dismiss the Application, he would choose to remain in Hong Kong with J instead of carrying on with the removal plan without his son, the Mother at the hearing abandoned her cross-application for variation of custody.  With the cross-application fallen away, I am only required to determine if the interest of J could best be served by maintaining the status quo or allowing the Father to bring J to live in Malaysia.

16. In the circumstances, as the only issue the court is required to deal with is the Father’s proposed relocation plan, I should - apart from giving effect to the statutory principles set out in the Ordinance - also be guided by the relevant considerations set out in Payne (ibid) above.

17. A proper weighing up exercise is not possible without considering firstly the factual matrix of this case by examining the parties’ evidence for and against the Application.

The Father’s case

(1)     The Reasons for the Removal

18. In support of the Application, the Father filed two affirmations and gave evidence.  He called no witnesses.  During the marriage, although both parties worked, the Father was the main breadwinner.  He was trained as an accountant and became quite successful in his career by working as a salaried accountant until 2004 when he was appointed as an executive director of a Mainland based company and a number of its subsidiary companies.  In or around March 2005, the Mainland company ceased its business in Hong Kong, the Father also resigned and remained as a non-salaried independent consultant of that company.  The Father did not seek employment after he had resigned as he wanted to spend more time with J in helping him get over the effect of the parents’ divorce.

19. However, towards the middle of 2005, the Father started approaching headhunters and using informal contacts to look for a suitable job.  He said that there were in fact job opportunities that he could have taken up in Mainland China.  However most of such job opportunities required him to either relocate to Mainland China or spend extended periods of time away from Hong Kong, both of which he regarded as unsuitable for serving J’s best interest.

20. Hence, the Father, apart from doing some free-lance consultancy work in the past 18 months or so, had not engaged in any gainful employment.  Shortly after the April Order, however, he was offered the position of a Finance Director by a private company in Malaysia (“the Malaysian Company”).  His brother-in-law, Mr. Ng, is the majority shareholder and executive director of the Malaysian Company.  The Father said that as the Malaysian Company was planning for public listing in Malaysia, he was recruited to help with the listing of the Malaysian Company.  According to the letter of appointment by the Malaysian Company dated 18^th April 2006, the Father would be paid a monthly salary of RMB25,000 (which is equivalent to HK$52,500) and the date of the commencement of employment was to be at 1^st October 2006.

21. The Father said that although he is currently comfortable financially without any immediate need to find gainful employment, he wishes to work as he is only at the relatively young age of 42.  He said when he came to Hong Kong in 1989, there were his relationship with the Mother and job opportunities.  After the April Order, the reasons for his being in Hong Kong no longer exist – his marriage has collapsed and job ended.  The Father therefore feels it is the best time to leave Hong Kong and go back to Malaysia with J so that J will have the benefit of being closer to the Father’s huge extended family comprising of the Father’s mother, aunts and uncles, brothers and sisters and their children.

(2)     The proposed living arrangement in Malaysia

22. The Father’s proposed plan in respect of the living arrangement should the Application succeed is that they will reside in a house located in Kuala Lumpur belonging to his elder sister (“Mrs. Ng”) and brother-in-law, Mr. Ng.  As shown from the photographs of the house exhibited to the Father’s Affirmation in support of the Application (“the Father’s Supporting Affirmation”), the house looks huge and beautiful.  According to the Father’s Supporting Affirmation, the condition of the house and the proposed living arrangement are as follows:

“11.     This is a 11,000 square feet gated property which consists of a fishpond, tropical garden, full club facilities including an Olympic size swimming pool, jogging track, gym and dinning facilities.  The vicinity is guarded by 24 hours security guards with CCTV installed at the perimeter of the neighborhood.

12.       The house has 7 bedrooms plus a servant’s quarter.  J will have a room and bathroom of his own.

13.       There are 4 members in my sister’s family, namely my sister, her husband and two teenaged children who love and adore J.  They are delighted about the idea of me and J residing with them as a family.  In the past three years, J and I have lived in the house for many times whenever we are in Kuala Lumpur for our vacations.  Further, they are more than happy to assist me to look after J when I am at work.  In any event, I will hire an additional helper to assist in looking after J.”

23. According to a joint letter signed by Mr. and Mrs. Ng dated 26^th September 2006 exhibited to the Father’s 4^th Affirmation, their two children are now aged 22 and 18, attending local college.  In the letter, Mr. and Mrs. Ng express their delight of and welcome to having the Father and J living with them.

(3)     The proposed schooling arrangement

24. The Father has arranged J to study in an Australian international school (“the Proposed School”) in Kuala Lumpur.  The Proposed School is about 25 minutes by car from the house of Mr. and Mrs. Ng.  He proposes to engage a driver to take J to go to school.  According to a letter dated 28^th September 2006 from the Proposed School exhibited to the Father’s 4^th Affirmation, it is confirmed that, subject to the approval from the Malaysian Ministry of Education and a formal interview with the Principal, J can be admitted to year 5 in Term 1 of year 2007.  The admission date will be on 26^th January 2007.

25. According to the Father, an approval from the Malaysian Ministry of Education requires clearance from the department to show that one of the parents is a foreign national.  As the Mother is a foreign national, J will be allowed to study in an international school without any problem after the completion of the formal application, which takes about 2 weeks.

26. The formal interview with the Principal of the Proposed School, according to the Father’s understanding, is only a matter of formality and it is not expected to be problematic.

(4)     The proposed access to the Mother

27. The Father has expressed his willingness to facilitate access to the Mother if J were to be relocated to Malaysia.  He is prepared to let the Mother have access to J for half of 3 out of the 4 of J’s school holidays either in Hong Kong or elsewhere.  Through his counsel, Mr. Pilbrow, the Father has also offered to offer a number of undertakings to facilitate the Mother’s access.  I will set out below the Father’s proposed access and his undertakings in relation thereto stated in Mr. Pilbrow’s closing submissions :

“(1)     To return the child within this jurisdiction if required by the court to do;

(2)        To pay for J to fly to Hong Kong and return to Malaysia for 3 trips each year by economy class to facilitate access to the Mother;

(3)        Upon reasonable notice, to allow the Mother access to J in Malaysia at such times as she may come to Malaysia and that do not conflict with J’s school attendance;

(4)        To keep the Mother informed of any change of J’s residence or school and whenever J requires hospitalization or suffers major illness;

(5)        To keep the Mother informed of the extra-curricular activities attended by J;

(6)        To purchase for J a mobile telephone to assist with the Mother’s telephone access;

(7)        To purchase a web-cam to enable the Mother to speak to J through this means of communication”.

28. The Father however is not prepared to meet or partly finance the access expenses of the Mother in making access trips to Malaysia.

The Mother’s objections

29. The Mother likewise had filed affirmations in opposition to the Application and gave evidence on her own behalf without calling any witnesses.  The Mother is currently living alone in a two-bedroom apartment in Taikooshing and works as a senior consultant in a Swiss-based company dealing with pearls and jewellery.

30. The crux of the Mother’s objection is that the decision by the Father to relocate was made out of spite to punish her for refusing to agree to the Father’s request for a reduction of the lump sum payment after the Consent Order.  The Mother also cited a number of past behavioural pattern of the Father’s actual and attempted act in denying or reducing her access to J, which behaviour leads her to fear that once J were allowed to go to Malaysia, her contact with J will be substantially reduced.  This, in turn, according to the Mother, will not be in J’s interest.

(1) The questionable motive of the Father’s relocation plan

(i) Tendency to ignore court order: negotiation for a deduction of the lump sum payment after the Consent Order

31. The Mother believes that the Application was motivated by spite with an intention to punish her after the Father’s bargain for a reduction of the lump sum payment failed.  According to the original terms of the Consent Order, the Father was required to pay the Mother a lump sum of $6 million by 2 instalments: the 1^st instalment in the sum of $500,000 to be paid upon the making of the Decree Absolute and the balance in the sum of $5.5 million was to be paid upon the pronouncement of Decree Nisi or the transfer of the Mother’s interests of the two joint-named Australian properties to the Father.  The 1^st instalment payment of $500,000 was already paid in October 2004 when the parties signed the Settlement Agreement.

32. According to the Consent Order, the transfer of the Australian properties was required to be executed within 14 days from the date of the grant of Decree Absolute of divorce.  As the date of the Decree was granted on 11^th August 2005, according to the Consent Order, the transfer should have been executed by 25^th August 2005.  The Father however failed to comply with the Consent Order by arranging documents to effect the transfer of the Australian properties.  Hence, the Mother had to instruct her former solicitors to write to the Father’s solicitors on 25^th August 2005 and demanded for prompt arrangement of the documents to effect the property transfer so that the Mother could be paid the balance of the lump sum payment.

33. The letter of demand was ignored and the balance of the lump sum payment was still unsatisfied.  The Mother said what was even more appalling was that when the Mother asked her friends as well as her father to urge the Father to comply with the Consent Order, the Father not only refused to pay, but tried to bargain for a discount of the agreed lump sum payment of $6 million to $5 million.  When the Mother personally telephoned the Father in September 2005 to demand for payment of the balance of the lump sum, the Father further asked the Mother to accept a reduced lump sum of $4.5 million.

34. In view of the Father’s attitude, the Mother felt there were no other alternatives but to issue the Judgment Summons to enforce the Consent Order.  The Mother said that before the return hearing date of the Judgment Summons on 16^th December 2005, the Father was using every possible means to get her to agree to a reduced amount of $4.5 million.  At the hearing of the Application, the Mother produced records of the email exchanges (Exhibit p.3) between them - which according to the Mother - clearly show that the Father has a tendency of ignoring court orders and of using J as a weapon to pressurize her to succumb to his unreasonable demands.  The relevant extracts of the email exchanges are reproduced below:-

35. The Mother wrote at 10:14 a.m. on 7^th December 2005 :

“ …… I appreciated your attitude of starting a talk between us, but based on our past experience, it will only end with argument, fight or deeper hatred which I do not want to experience anymore.  Frankly, I’m afraid and scared”.

The Father wrote to the Mother at 12:36 dated 7^th December 2005:

“ I am trying to resolve our case out of court if possible, giving it a last chance.  You are aware, going to court is costly for you and me, and frankly, I do not want to benefit lawyers and solicitors ……

I cannot put my suggestion in writing as this may prejudice my position should we go to court, which I am very well prepared and confidence as well.

I am talking NOT because I am afraid to go to court, I am not at all.  I am said give this a last chance and also for J ”.

The Mother wrote at 1:34 p.m. on 7^th December 2005 :

                             “I will consider.”

The Father’s email dated 13^th December 2005 :

“ So look like you are not interested in my proposal after all …… well, that is fine.  I am happy and is well prepared to see you in court on Friday.  For ur (your) information, there are 6 cases on 10 a.m. on this Friday, our case is the last one of the 6 cases, so there is good chance our case will not be heard at all due to lack of time and therefore postponed to a new hearing date.  Probably after Chinese New Year.  I am sure your lawyer didn’t tell you this.

Well, if you come to your senses and put your emotions aside, you will know this the (b)est deal for you ?  Remember this, even if I lost the case, (d)o you know you are still required to transfer two properties to me FIRST before I pay you (a)fter.  Can you do that ?  If you don’t sign the transfer form, U R (your are) in breach, not me ?  Did you lawyer tell you this ?

(M)y proposal to put $4.5 m. (a)t your lawyer account which will guarantee you receive the $ (money) in full.  (Y)ou will definitely regret it one day for not agreeing to my proposal ?”

(Letters in bracket added)

36. According to a letter (Exhibit P.2) written by the Father on 31^st March 2006 to the Mother’s present solicitors, the Father, before the directions hearing of the Judgment Summons on 7^th April 2006, was still negotiating for a reduction of the lump sum from $6 million to $5.5 million.  The Mother said that the words in the said letter showed that the Father had again used J as a bargaining tool.  In the said letter, the Father wrote :

“ …… Because of the disagreement therefore we went to court.  However, now that I am willing to meet her asking amount which is $5.5 million in total (including the $0.5 million), she now wants more which is $6 million in total and on top of that legal fees as well.  I would like to remind your client of what Judge Woo said in the 16^th Dec’s hearing that the custody of J is with me, it is definitely not in her best interest to push me into a corner.  I have been reasonable with her so far but my patience are definitely dissipating.  You can interpret any which way you like on that.”

37.  The said exchanges – submitted by the Mother -  show that the Mother was scared of the Father’s devious and controlling character.  They also tend to show that the Father is not a man of honor as the Father had been making a number of attempts to reduce the agreed lump sum payment when the Father had more than sufficient financial means to pay her in full.  The Mother believes that the Father is aware of the Mother’s vulnerability when it comes to J and the Father manipulates this weakness by using J as a bargaining tool to get his way.

(ii)      Retaliation after the Consent Order : actual and threatened denial of access

(a)      On 8^th April 2006 (the next day of the April Order), the Mother was denied access to J

(a)(i) The Mother said that since she left the matrimonial home in June 2004, the Father had in the past on many occasions told her that he would take J back to Malaysia.  It was out of this fear that the Mother had to take out a number of restraining applications against the Father from removing J when she filed the Petition.  The Mother was adamant that after the April Order, the Father was angry with her for refusing to yield to his demand for a reduction of the lump sum payment.  When the Father was ordered to pay the full amount of the lump sum payment, the Father was upset with his unsuccessful attempts to bargain down the lump sum payment.  The Mother said that the Father vented his anger against the Mother immediately after the April Order.  The day immediately after the April Order, it was a Saturday, a day when Mother was entitled to have weekend staying access.  Without any prior notice, at about 11 o’clock in the morning, the Mother received from the Father a text message  that J would be sleeping over with his cousin that night and she could only see him for lunch the next day.

(a)(ii) Upon receiving the text message, the Mother telephoned J at the Father’s home.  J told her over the phone that, “Daddy say no, Daddy say I cannot see you tonight”.  When the Mother asked J for the reason, J replied that “Daddy did not say why.  Daddy says I have to sleep with my cousins tonight”.  Later in the night, when the Mother tried to contact the Father to clarify the matter, she received another text message from him saying that his decision was final and that J was only able to meet the Mother for lunch the next day.

(a)(iii) The Father denied that it was an attempt to deprive the Mother of the access that day.  He explained that J wanted to attend his cousin’s birthday party and it was J who wanted to sleep over at the cousins’ place.  The Mother however does not accept his explanation and firmly believes that the said conduct is consistent with the Father’s habit of using J to punish her.

(b)     On 10^th April 2006 (3 days after the April Order), the Father informed the Mother of his relocation plan

38. The Mother firmly believes that the Father’s relocation plan is not genuine.  The Mother was even more convinced of the Father’s ill motive after she received a text message from the Father on 10^th April 2006, in which the Father said that the Mother won some but also lost some.  The Mother understood it to mean that the Mother had won by obtaining the April Order in compelling the Father to pay up whilst she would also lose J.  The text message was quoted verbatim in the Mother’s 6^th Affidavit : -

“ …… I intend to leave Hong Kong in a few months time with J, probably around year end, we will return to KL (Kuala Lumpur) for good.  If you r (are) reasonable about it, things are easier for everybody.  If you hv (have) objection, then I will file application with court shortly for the order.  That’s life really, you win some you lose some …… you r(are ) welcome to visit him in KL when he has school holidays, I will put him at int’l school there …… ” (words in bracket and emphasis are added).

39. The Mother said when she received this text message, she was shocked as the relocation to Malaysia was not in accordance with her understanding of J’s living arrangement when she agreed to let the Father have custody of J.  She initially thought the Father only intended to verbally threaten her in order to vent his anger against her.  She then realized that the Father was indeed serious with the threat when her solicitors received a letter from the Father dated 13^th April 2006 to seek her consent to remove of J.

(2)     Relocation not in the best interest of J

40. The Mother not only doubts the genuineness of the Father’s motive, she further fears that the Father will not adhere to any promise or court order in relation to her access to J once the court were to accede to the Application.  The Mother takes the view that the keeping of the status quo is in the best interest of J because of J’s relative young age.  Further, the Mother further opines that J is now settled and happy with the existing living arrangement of being able to spend a considerable amount of time with the Mother.  The Mother believes that any reduction of access will affect her present close relationship with J, which is not in J’s best interest.

41. Notwithstanding the Father’s promise to be generous with the access, the Mother is not confident that the Father will facilitate her access as he has now vowed he would as a result of his previous conduct of readily using J as a tool to threaten her.

          (i) Reduced access will harm J’s interest

42. The Mother further supports her case by producing at the hearing several text messages to show that the Father has a tendency of threatening curtailment of access whenever things do not turn out the way he has wanted.  I set out below these text messages (Exhibits P4 and P5) in chronological order :

Text message on 5^th March 2006 at 14:30 p.m. :

“If u (you) continue to miss classes for J on Sunday, u (you) should not have him sleepover at ur (your) place on Saturday any more”  (explanatory words in bracket added).

Text message on Friday, 10^th March 2006 7:11 a.m. :

“If u (you) continue to use foul language in front of J, I will definitely inform the judge of this, also you miss seeing J one time every time u (you) use Foul language  …… so next Thursday J will not meet u(you) for dinner …… choice is yours really !” (explanatory words in brackets added)

The text message on Saturday 27^th May 2006 at 12:38 p.m. :

“Unless u (you) stop telling J lies abt (about) m’sia (Malaysia).  U(You) will not see J even 2 day (today).  Choice is yours.  Let me hv (have) ur (your) answer b (by) 4 3 pm” (explanatory words in brackets added)

43. The Mother denied the allegations in the text messages and said these messages provide compelling evidence of the Father’s consistent pattern of threats.  The Mother fears that should J be allowed to live in Malaysia with the Father, her access to J would be significantly reduced due to the geographical distance of the two places. In the event of the Father’s non-compliance with the court order, the Mother’s fear of losing her access right is further escalated by the jurisdictional and procedural differences between Hong Kong and Malaysia.

          (ii)      Status quo will serve J’s best interest

44. J was only 6 and ½ years old when the parents separated.  The Mother believes that for a child of such a tender age, stability is very important to his development.  J has just gone through the parents’ divorce and is now happy and accustomed to the living arrangements with the time divided between the parents.  The Mother emphasized that as much as she has wanted to have custody of J, she decided - out of her wish to preserve the status quo - to withdraw her cross application for variation of custody when the Father confirmed unequivocally that he would choose to remain in Hong Kong should the Application fail.  As a result, the Mother will be contented with maintaining the status quo by abandoning her cross-application.

45. The relocation, according to the Mother, has the effect of uprooting J from a familiar environment, leaving behind the Mother and his circle of friends both of whom are very important to J.  The Mother said she would not be objecting to J leaving Hong Kong has J been older.  However, for a boy of about 9 and 10 like J, it is essential that J should be able to continue to keep a close contact with his mother.  Whilst the Mother accepts that Malaysia is not a strange environment to J due to his past holiday visits, the Mother also believes that the proposed living arrangement is far from satisfactory as the Father and J live as guests in somebody’s home which is certainly not the same as residing in their own home.

Reports from the Social Welfare Department

46. According to section 3 of the Ordinance, the court is also required to have regard to the information contained in the reports from the Social Welfare Department.  In this regard, two reports are available from the Social Welfare Department - the Social Investigation Report dated 1^st September 2006 (“the SI Report”) and the Psychological Report.

(1)     The SI Report

47. According to the SI Report, The Social Welfare Officer (“the SW Officer”) had interviewed both the parents, J and J’s class teacher.  From her investigation, the SW Officer finds that both parents show genuine love and concern for J who also loves them in equal measures.  The SW Officer interviewed J three times and she reported J’ views towards the Father’s proposed relocation plan as follows :

“In the 1^st session, the child had no preference on whether to stay in Hong Kong with his mother or going to Malaysia with his father.  He was not very clear about his father’s plan but had worry over teasing by new school mates in Malaysia when talking about the removal.  He realized that both parents loved him very much and did not want to disappoint anyone of them on making choices.  He wanted to leave the decision to the Judge on the removal issue.

In the 2^nd session, the child had mentioned that his paternal grandmother might be more in need of his presence in view of her present old age of over 70.  He showed no worry of moving to Malaysia where he had been there for many times.  He was prepared to make new friends and had some understanding on his new school.  His father promised him that he could visit his friends and mother during holidays.

In the 3^rd session, the child had some inclination to leave for Malaysia as he did not want to separate with his father.  At the same time, he was concerned about the reaction of his mother if she knew his preference”.  (Paragraphing added)

48. The SW Officer is in favour of maintaining the status quo on the ground that the existing care arrangement of J has been satisfactory and the Father has confirmed his willingness to stay in Hong Kong should the Application fail.

49. The Court had directed the SW Officer to attend the hearing to enable the parties to examine her.  Unfortunately the SW Officer was on maternity during the trial period and was unable to attend the hearing.  The parties were duly informed of the matter and they, after consideration, decided to proceed with the hearing without an adjournment.  Hence, the hearing proceeded without any oral evidence from the SW Officer.

(2)     The Psychological Report

50. In the Psychological Report, the Clinical Psychologist reports on J’s emotional adjustment, his relationship with both parents well as his reactions to the Father’s relocation plan.  Based on the interviews with both parents and tests conducted on J, the Psychologist found that J exhibited loyalty dilemma in relation to the Father’s proposed plan and that he was found to have an inclination to withhold his choice for fear of upsetting the parents.  J is found to be able to accept living in either of the places and not holding any negative image of Malaysia. He has however expressed a wish of keeping the status quo.

51. The Psychologist has found J to have a high parent-related self-esteem but low self-esteem.  Whilst the Psychologist has found that J’s concept of a family remains largely unaffected by the parental divorce, J has demonstrated a sense of insecurity and fear of abandonment.  He is also found to have manifested a mild degree of anxiety over his fear of separation from his parents.

52. The Psychologist was examined by both counsel. In her  evidence, the Psychologist said that J was not mature enough to know his long-term plan and it did not really matter to J whether he should stay in Hong Kong or not.  J also told her that he did not have any problem living in Malaysia as he had been there many times. He told her that however he wished to stay in Hong Kong.  When she was asked the effect of the reduced contact with the Mother should J be allowed to relocate to Malaysia, the Psychologist said that the mother-son relationship would become less intimate and J would feel a sense of loss because of the reduced contact.  The Psychologist also find that both parents have a very close relationship with J.

Consideration of the evidence and application of the principles

53. The above is in the main the evidence of the Application.  I will now weigh up all the relevant countervailing factors against the factual matrix of this case.

(1)     The emotional and psychological impact on J

54. One of the most important tasks of a court in an application of this type, in my view, is to carefully evaluate the emotional and psychological effect on a child resulting from the intended new mode of life chosen by the custodial parent to relocate.  The impact of relocation on J will be a very significant factor to be weighed in the balance.  The assessment of this important issue is assisted in this case by the SI Report and the Psychological Report and the evidence of the Psychologist  – to which I am statutorily required to have regard under section 3 of the Ordinance. 

55. Mr. Pilbrow has very helpfully referred to me two Hong Kong Court of Appeal decisions concerning the proper approach to be taken in respect of the reports from the Social Welfare Department.  These two decisions are Naziya Aslam v Rafaqat Ali [2004] HKEC 358 and WSM v FSY [2005] 3 HKC 319.  The principles that can be distilled from these Court of Appeal decisions are that the social welfare officers are the eyes and ears of the judge outside the courtroom and often the observations contained in their reports are of much value (Naziya Aslam (ibid) at para.47).  In WSM (ibid.), the Court of Appeal has spelt out the approach a court should adopt in respect of the materials contained in a social welfare report, which approach I respectfully defer to:

“We will further add that a social report is not a special category of material information, nor should the recommendation assume a status somewhat akin to a legal presumption which needs to be rebutted.  Ultimately the decision making lies with the judge based on the available evidence and guided by the relevant principles”.  (WSM (ibid. at 325)

56. With these principles in mind, I wish to state very clearly that I am alive to the danger of being allowed to be influenced by any untested observations and recommendation made by the social welfare professionals in their reports.  In this case, the Reports contain very detailed observations and comments and the SW Officer has further made a recommendation in favour of keeping the status quo.  The fact that the SW Officer had not attended the hearing to be examined makes it inappropriate for me to rely on the recommendation by the SW Officer.  I would need to independently evaluate the observations and comments in the Reports – particularly those in the SI Report - with circumspection.

57. That said however, the SI Report as well as the Psychological Report are – apart from some of the observations which the Father takes issue with – are by and large non-controversial.  I find the Reports contain valuable materials as the observations in the Reports are based on the  in-depth and objective investigation by both the SW Officer and the Psychologist into the background of the Application.  Whilst I have had the benefit of evaluating the views and attitudes of the parents by directly observing them in court, I find the Reports have provided useful materials to assist me in understanding the broad feelings of J towards his parents as well as his attitude on the present living arrangement and reactions to the Father’s proposed plan.

58. It is not satisfactory that the SW Officer was unable to attend the hearing to be examined by the parties. I however had the benefit of the oral testimony from the Psychologist who had been independently asked to comment on the observations stated in the SI Report.  Thus, the information contained in the SI Report cannot be said to be entirely untested – it has been independently corroborated by the evidence of the Psychologist.  In the circumstances, in spite of the inability of the SW Officer to attend the hearing to be examined, I am satisfied that I should have regard to the observations in the SI Report.  After having carefully scrutinized the reports and considered the evidence of the Psychologist, I find that J, as the Psychologist has pointed out, is presently not mature to understand any long-term consequence of the Father’s proposed plan.  I accept the view of both the SW Officer and the Psychologist - whose view, to a certain extent, are also shared by the parents - that it does not really matter to J as to whether he lives in Hong Kong or Kuala Lumpur.  Presently the most important persons in J’s life are his parents.  In one of the evaluation tests conducted by the Psychologist by way of a family drawing test, the Psychologist found that J had a close relationship with both parents.  It was observed that J drew the Father first and the Mother was drawn next by the side of the Father.  The Psychologist stated that this showed that J yearned for a complete family unit.  She said in her experience, some children of the divorced parents only drew one parent and it was significant that J drew both.  Thus the Psychologist concluded, “J is psychologically bonded to both parents, but comparatively speaking, he is more attached to his father”.

59. The analysis of this exercise shows that J is both emotionally and psychologically dependent on both parents, particularly on the Father for the obvious reason of the Father being presently his primary carer.  J’s welfare will be best served by being able to continue to live with the Father and at the same time keep regular and meaningful contacts with the Mother.  This is important to J’s emotional and psychological stability.  Any reduced contact with the Mother – as pointed out by the Psychologist – will adversely affect the mother-son relationship and cause a sense of loss to J.

60. It is further observed by both the SW Officer and the Psychologist that J has not, by and large, been adversely affected by the parents’ divorce.  In this regard, credit must be given to the parents’ effort in minimizing the effect of the parents’ separation on J - the Father by staying at home and the Mother spending quality access time with J.  The living arrangement by the parents shows that it has worked for J and it should not therefore be slightly disturbed unless it exists an equally satisfactory, if not a better, alternative living arrangement.  From the different responses given by J during the three interviews with the SW Officer, it is without doubt that J was caught in a bind between the conflicting choices of living.  It is risky therefore to take J’s stated view or expressed wish at face value.  The interviews however do provide useful clues to J’s inner thoughts and feelings.  For example, in the second interview with the SW Officer, he told the SW Officer that the Father had promised him that he could visit his friends and the Mother during the holidays if he were to go to Malaysia with the Father.  This response, in my view, shows that the Mother and his friends in Hong Kong mean to lot to J.  It is most natural that he wants some form of assurance from the Father in order to allay his anxiety.  It is also significant that J – apart from remarking that his paternal grandmother would prefer J to be closer to her because of the grandmother’s age - has not mentioned either his maternal grandparents or the Father’s side of family during any of the interviews with the SW Officer and the Psychologist.  More importantly, J has not expressed any attachment to his aunt, Mrs. Ng, the prospective significant supervising adult.  These interviews do, in my view, throw some light on the degree of importance J attaches to the other members of his family – and the attachment, in my assessment, is rather little.

61. There is no dispute that Malaysia is not a strange country to J as a result of his numerous holiday visits to the Father’s family.  J however has never lived in the house of Mr. and Mrs. Ng in any other capacity other than as a holiday guest.  Hence, I tend to find that J’s understanding of the proposed living arrangement is drawn largely form the past holiday and family visits to Malaysia.  As holiday experience is mostly pleasurable experience, it is therefore quite natural that J has not been found of holding “a negative image of people in Malaysia” or anticipating “any adjustment difficulties in the event of relocation”  (para. 17 of the Psychologist Report).  An understanding based on such a limited experience can hardly be used as a useful guide to measure J’s real knowledge of the place and of the consequential changes brought about by the relocation.  In the circumstances, I am inclined to hold the view that - due to his lack of sufficient maturity  -  J has no real understanding of the proposed living arrangement.  How J is going to adjust to a new life living with Mr. and Mrs. Ng in Malaysia remains largely unknown.  In the SI Report, J seems to have exhibited some degree of fear and anxiety in respect of the proposed living arrangement.  He told the SW Officer in the first interview that he was not very clear about the Father’s plan and worried that he might be teased by new schoolmates in Malaysia when talking about the removal (See para. 26 of the SW Officer).  School life and school friends no doubt play a very important part in J’s life for a child of his age.  J, without being shown the Proposed School but was only told that he would be attending a new school in the event of removal, will likely instill some level of anxiety and fear in a child’s mind.

62. J’s loyalty conflict is noted by both the SW Officer and the Psychologist.  Before being interviewed by the SW Officer and the Psychologist, J must have received from the parents diametrically opposite views of Malaysia and the proposed life there in general. Confronted with such an impossible choice, J, not surprisingly, has left the decision on relocation to the court.  The paradox of J’s exhibition of a loyalty conflict is that it clearly shows that J loves both his parents dearly and wishes to be able to be with them.  He wishes to continue living with the Father as he has been accustomed to the present mode of life.  It is natural therefore that he chooses to follow the Father if he decides to leave.  The dilemma he unfortunately has to deal with is by choosing to leave with the Father and follows him to Malaysia, he is worried that he will see less of the Mother whom he equally loves.  He would also no doubt miss his friends.  J’s equal love for both his parents is manifested in his very sensitive perception of their feelings – he does not wish to upset any of the parents.  If he chooses to stay, he knows the Father will be unhappy.  However, if he opts to go, the Mother will be bitterly upset.

63. After having considered the evidence and the reports, I am inclined to come to a view that the relocation will more likely than not cause emotional and psychological instability to J as a result of the reduced contact with the Mother and not having his own home.  Any change of his present satisfactory way of life will carry a grave risk of making him feel more insecure, which according to the Psychologist will adversely affect his self-esteem.

64. The emotional and psychological impact on J is only one of the factors weighing in the balance.  There are other relevant matters which I should also have regard to.  These include consideration of whether the Father’s proposal is reasonable.  The Father’s wishes should also be given due regard if they are reasonable and his motive is genuine.  The viability of the Mother being able to maintain close and interrupted contact with J is extremely important in view of the importance of maintaining a close mother-child relationship for fostering J’s emotional and psychological stability.  The Mother’s objection should also be carefully scrutinized in order to see if her objection is genuine.  The assessment of all these important matters will then be brought into an overriding review of J’s welfare as the paramount consideration.

(2)     Is the Father’s proposal reasonable : is it well thought out and researched ?

65. The Father’s proposed relocation plan was already set out above.  The Father has denied the allegation by the Mother that his relocation plan is designed to revenge on her for refusing to accept a reduction of the agreed lump sum payment and for bringing him to court by the Judgment Summons.

66. During the hearing, both parties had made allegations against each other’s extra marital affairs during the marriage.  The Mother had also given evidence of how the Father had previously resorted to violence and force on her during their marital disputes.  Report to police in connection with the Father’s violent behaviour had also been made in one of those disputes.  The Father on the other hand also painted a picture of the Mother being a cold and uncaring mother by citing examples of the Mother not knowing the kind of milk powder J was fed to and not taking J to bath.  He also repeatedly accused the Mother of having traded J for getting the lump sum payment of $6 million from the Father.

67. For the purpose of the Application, I do not find it necessary or appropriate to make any finding as to whether the Mother or Father is a more suitable parent.  Now that the parents have lived apart and any open conflicts should have been abated.  As a matter of fact, I can see that the parents, despite their divorce, have made a great effort in helping J overcome the emotional trauma resulting from the parents’ divorce.  It is a fact that regardless how this court decides, the Father will remain as a custodian parent whether he is to remain in Hong Kong or be allowed to go to Malaysia with J.  I should therefore for the purpose of the Application only focus on the consideration of whether the proposed relocation is motivated by spite as alleged by the Mother.  This allegation requires careful scrutiny as the true motive of the Father will have a bearing on the consideration of whether the Mother’s access to J can be realistically guaranteed should J be allowed to go to Malaysia.

68. According to the Father, he made the decision to move back to Malaysia for a simple reason that Malaysia is his home.  He came to Hong Kong in 1989 because of his relationship with the Mother and job opportunities.  He had managed to find both.  He married the Mother and his career had been rather successful by starting out as a junior accountant and rising to the position of the executive director of a very big Mainland company. However, he has now lost both – his marriage has ended and he has been out of work.  After the April Order, he felt all the financial matters were finalized.  This, coupled with an offer of a job by his brother-in-law, makes it logical for the Father to make this relocation decision.

69. A cursory look at the Father’s proposed relocation shows it looks reasonable.  However, a proper scrutiny of the Father’s plan is not possible without going beyond the Father’s stated motives and wishes by looking at the underlying factual matrix of the case.

70. An examination of the Father’s real intention should really begin with the personal background of the Father.  The Father was brought up in Malaysia and he indeed has a large family even though his Father died when he was quite young.  At the age of 18, he left Malaysia for Australia to continue with his overseas education until the completion of his tertiary and professional education.  After finishing his studies in Australia, he went back to Malaysia and worked there very briefly for about a year before he came to Hong Kong in 1989 as a young man of 25 years of age.  Apart from having one sister in Singapore, one brother in Australia and another married brother with two children similar to J’s age living in Hong Kong, all the Father’s family members including his widowed mother are living in Malaysia.  The Father’s mother lives in a small city which is 2 and 1/2 hours drive from Kuala Lumpur.  The Mother also comes to Hong Kong to visit the Father and J about twice a year.

71. He has been living in Hong Kong for 17 years.  During this 17 years’ period of living in Hong Kong, the Father initially worked as a salaried accountant in the business of private equity.  From 2004 until March 2005, the Father was an executive director of a Mainland company already mentioned above.  He has established himself as a seasoned investment-related accountant and expanded his business contacts in Hong Kong.  Whilst Malaysia is his hometown, the Father has however spent almost equal amount of time so far living in both countries. More    importantly, however, his business contacts and work opportunities must have been in Hong Kong rather than in Malaysia.  I have no reason to believe that the Father is unable to find any suitable job or business opportunities if he wishes.  He has mentioned of having spent the past 18 months in approaching head-hunters and looking for informal business and social contacts to get himself a suitable job but without much success.  However, I find no evidence to back up the Father’s claim for his job-searching.  In the circumstances, I find that career consideration is not his primary motive for the relocation.

72. In view of the Father’s years of experience working in Hong Kong, he should be quite well placed to return to the job market or do business if he wants.  It is therefore not surprising that the Mother is highly skeptical of the Father’s sudden job offer – particularly more so when it was offered by a relative - shortly after the April Order.

73. In the eyes of the Mother, the job offer seems to be too much of a coincidence as if it were something just plucked out of the air to fit into the perfect timing of the Father’s relocation plan.  According to the letter by the Father on 13^th April 2006 to the Mother’s present solicitors to seek the Mother’s consent to his removal of J, the reason the Father gave for the relocation was to seek “employment / business opportunity in Malaysia”.  In view of the date of the letter of appointment by the Malaysia Company ( i.e. 18 April 2006), the Father would have been in a position to make a specific reference to a job rather than a general and vague mention of “employment / business opportunity”. Hence, the Mother’s suspicion is not without basis.

74. The Mother’s suspicion is further heightened by the nature of job offer of a financial director to the Father by the letter of employment dated 18^th April 2006 by the Malaysian Company at only 5 days after the letter on 13^th April 2006.  The evidence as to when the Father started to seek an employment in Malaysia and approach his brother-in-law for a job is rather murky.  In the absence of any corroborative evidence, I am inclined to also share the Mother’s misgivings about the job offer, which does appear to be rather contrived.

75. The Mother’s suspicion of the Father’s motive is further fuelled by the date of the application to the Proposed School.  The Mother suggests that the written date appearing on the application form of the Proposed School appears to have been altered from 28^th April to 18^th April 2006.  I do not think it really matters whether the actual date of the application is 28^th April or 18^th April.  The overall impression that I have is that the Father’s search for the Proposed School appears to be rather hasty.  The Father has deposed in paragraph 45 of his 4^th Affirmation that he started hatching the removal plan in 2005 by preparing J for the move by bringing him back to Malaysia to stay with his sister and to visit the Proposed School.  I am quite puzzled however the Father only put in the application for the Proposed School shortly after the April Order.  His assertion in paragraph 45 that he has brought J to the Proposed School also turns out to be untrue.  He confirmed during his oral evidence that J has not in fact visited the Proposed School during his various visits to Malaysia before the Application.  The Father’s explanation for that was that he did not wish to give J a false expectation.  School is a very important aspect of J’s life.  By not showing J the Proposed School to which the Father would be sending him should J be permitted to leave Hong Kong seems to lend support to the comment by the SW Officer that the Father’s relocation plan was far from being well thought out.

76. According to the Father’s evidence, the job offer is not a primary motivation of the Father’s decision to relocate.  The Father summarized his reasons for the relocation decision in paragraph 51 of the Father’s 4^th Affirmation as follows:

“(a)      Malaysia is not an unfamiliar country for J, with a comfortable environment and living conditions and suitable educational offering awaiting him;

(b)        J will be residing at a place he has stayed at before, he surrounded and supported but he has known since his very early years and would be attending a school from the same origin implementing the same curriculum and promoting the same culture;

(c)        He stands to benefit from the cleaner environment and a chance of improving his mild asthmatic condition;

(d)        J will also undoubtedly benefit from our better financial situation while continuing to have myself as his primary carer;

(e)        J stands to benefit the love and affection and support extended from and provided by my huge family members in Malaysia”.

77. Given the reasons stated by the Father’s decision - when examined in the context of all the circumstances of this case - could it be said that the proposed relocation plan is reasonable?  I should therefore examine those reasons to see if they should be given weight in this balancing exercise.

78. Concerning reasons (a) and (b) of J being provided with a comfortable living environment in Kuala Lumpur, it is beyond dispute that J is no stranger to Mr. and Mrs. Ng’s house as well as to Malaysia.  The house no matter how beautiful it may be, is not the Father’s home.  It is quite different, in my view, to a situation whereas a custodian parent relocates for the purpose of joining a new family of that parent.  The Father and J will be living with the relatives as guests.  Once the Father moves in with J, it is rather likely that the Father needs to adapt to a new job and a new life there.  It follows therefore there is a high likelihood that the Father would be away from home much more often than he presently would be in Hong Kong.  J’s daily carer and adult supervision will be primarily left to the sister, Mrs. Ng.  Mr. Ng and Mrs. Ng have jointly written a letter to support the living arrangement as proposed by the Father.  However, without the benefit of seeing the sister to enable me to assess her suitability as a carer, I am not inclined to agree that the sister’s home is better than J’ s home in Hong Kong.

79. Of the reason concerning the advantage of J’s familiarity with the environment and the Proposed School, I agree that familiarity could be a positive factor.  It is unsatisfactory that the Father has not  arranged J to see the Proposed School for himself.  This is very important as J, apart from having one or two cousins of his age in Malaysia, has virtually no friends at all in Malaysia.  He should be psychologically, at the very least, be prepared by being shown the Proposed School to minimize his anxiety, no matter how low the level of anxiety may be.  It is also not suggested that the Proposed School is a better school than J’s present school in Hong Kong.  The fact that the Proposed School adopts a similar teaching curriculum will certainly make it easier for J to adjust to the studies, however, it cannot be equated as a “familiar” schooling environment.

80. Regarding the benefit of having a cleaner environment in Malaysia, I would agree that this is certainly a favourable factor.  There are no comparable statistics of the air quality of the two places.  However, I am able to – having had the first hand experience of living in Hong Kong myself – agree that Hong Kong’s rapidly deterioration of the environment has become a real concern to the local residents.  Has J’s health been adversely affected by the pollution problem in Hong Kong, I would be more inclined to give this factor a much more weight.  However, it is a common ground that J’s allergic and asthmatic condition he had when he was small has been contained – much to the relief of the parents - as he grows older.  Hence, the environment factor would be attached less weight than it could have otherwise been has J’s heath been at risk.

81. Regarding the fourth reason on improved financial condition resulting from the relocation, the Father has stated in his evidence that financial consideration is not the motivating force for the relocation.  As a matter of fact, the Father admits that he is financially comfortable without the need for holding a stable job in the near future.  According to the Father, notwithstanding being out of a full time job since March 2005, he has managed to earn a total sum of $300,000 in the past months as a freelance financial adviser.  He said that his total financial worth including savings and investment is estimated to be in the sum of about HK$10 million to HK$12 million.  As this is not an application relating to ancillary relief, the Father is not obliged to disclose his financial means.  The Father has in fact chosen not to support his evidence on his financial means with any documents.  According to the evidence divulged in the proceedings, the Father in 2004 exercised a share option allotted to him when he worked as the executive director of the Mainland company mentioned above.  The Father reaped a windfall gain of about HK$17.6 million.  He said that the money was partly used to pay taxes and partly used to pay off a mortgage loan for the two Australian properties stated in the Consent Order.  Apart from the subject Australian properties of the Consent Order, the Father also used to own another Australian property registered in his sole name.  The Father said that his childhood friend had half of the beneficial interest of that property.  In November 2005, the Father sold this property for A$1.4 million and remitted the net proceeds of sale of about $A700,000 to the company owned by that friend.  Further, after the Mother transferred to the Father her interests in the two Australian properties named in the Consent Order, the Father sold one of the properties this year and retained the other property for letting purpose.  The Father also mentioned of owing an apartment under construction in Kuala Lumpur for investment purpose.  Apart from the copy of sale contract and deposit slip of the transaction regarding the said property allegedly co-owned with his friend and the remittance slip to his friend’s company, the Father has not produced a single shred of evidence to support his evidence regarding theses transactions and the whereabouts of those funds.  In view of the almost complete lack of supporting documents regarding the Father’s assets, I am inclined, on the evidence, to infer that the Father’s assets are likely to be substantially more than he has disclosed.  On the Father’s admitted worth – which I believe to be much more – and his calculation of the annual living expenses in respect of himself and J in the total sum of about HK$735,000, the Father should be able to live comfortably with J for at least 10 years without any additional income.  This projection has not taken into account the Father’s rental income he may receive from his Australian property and earnings from his free-lance consultancy work.  Thus the 10 years’ estimation is only an extremely conservative guess.  In the circumstances, I am not unable to place much weight on the financial benefit factor in this balancing exercise.

82. In relation to the last reason concerning the love and support from the extended family in Malaysia, it could also be a positive factor.  However, the investigations and assessments respectively carried out by the SW Officer and the Psychologist have shown that extended families do not play a significant role in J’s concept of a complete family structure.  Hence, the advantage of being closer to the extended family must be subsumed under the importance of maintaining the integrity of what J perceives to be a complete family unit – living with the Father and keeping close contact with the Mother.

83. Mr. Pilbrow has very helpfully referred to me an article by Simon Webster entitled “Analysis of Leave to Remove Authorities” (February [2000] Fam Law 128) which charts the English court decisions of removal application starting from the Court of Appeal decision of Poel v Poel [ 1970] 1 WLR 1460 to Re M ( Leave to Remove Child from Jurisdiction [1999] 2 FLR 334, which cases show that the court would be more inclined to allow a parent - mostly the mother - with the residence order of the child to remove the child as a result of remarriage to join her new family.  The major difference of the facts in this case is that – unlike those cases in which the applicant parent relocates to join her new family - the Father in this case is not setting a new family in Malaysia.  Instead, the Father is moving into a relative’s home as guest.  Thus the consideration in this case is different to most of the children-relocation cases.

(3)     Is the Father’s proposed relocation motivated by vengeance?

84. The Mother alleges that the Application is fuelled by malice arising out of enforcement of the Mother by way of the Judgment Summons of the lump sum payment.  Mrs. Irving, counsel for the Mother submitted that such malice can be inferred from a series of text messages and email exchanges before and after the April Order, which exchanges I have already set out above.  After having carefully considered the contents of these emails against the factual matrix of this case, I am inclined to find that the Mother’s fear and suspicion are not unfounded.  I find the contents of those text messages and emails from the Father do show that the Father has a tendency to assert his authority or show his contempt for the Mother by threatening to withdraw or reduce the Mother’s access to J.  The email exchanges in the month of December 2005 (exhibit P.3) during his negotiation with the Mother for a reduced lump sum that “you will definitely regret it one day for not agreeing to my proposal” does seem to echo with the Mother’s fear of Father’s threat of punishing her for making him pay the agreed lump sum of $6 million.  The text messages dated 5^th March 2006 (exhibit P.5) and 10^th March 2006 (exhibit P.4)- when read in their proper context-  tend to show such a propensity as alleged by the Mother.

85. Further, on the evidence, I am not inclined to find it a coincidence that immediately the next day after the April Order on 8^th April 2006, the Mother was unable to have J stay with her over the weekend.  The Father’s explanation that it was purely a coincidence that J attended his cousin’s birthday party that night and that it was J who wanted to sleep over in the cousin’s place is not borne out by the content of conservation between J and the Mother and the context of the text messages.  If the birthday party was the real reason, the Father would have informed the Mother prior to the day of access so that an alternative arrangement could be made.  The tenor of the message that “my decision is final” carries the tone of an authoritative man.  He was angry with the Mother of making him pay for the full amount of the lump sum and therefore wanted her to face the nasty consequence of having her access right to J denied.

86. Further more, the statement appears in the Father’s text message dated 10^th April 2006  “you win some you lose some” - when properly understood in the context of the prevailing circumstances - does seem to reinforce the Mother’s fear that the Father is removing J with the predominate purpose of reducing her contact with J.  The Father’s explanation that when he sent that statement, he meant that should the Application be granted, the Father would win but the Mother would lose as a result of the reduction of contact with J is rather strained. The innocent explanation is not supported by the circumstances surrounding the background of this message.

87. Having carefully considered the message in its entire context, I am more inclined to accept Mrs. Irving’ submission that this message can only mean that the Mother “won the money but lose her child”.

88. In assessing the parties’ credibility, I have the benefit of observing the parties’ demenour in court.  The Father’s evidence – most probably due to his acumen of being a seasoned businessman – appears well rehearsed.  On the other hand, the Mother – from my observation - is an extremely emotional person.  In fact, during the proceedings, I was required to adjourn the proceedings many times to let the Mother recompose herself during her numerous tearful breakdowns in court.  The Mother had occasionally shouted loudly to the Father as well as to the counsel whenever she felt very strongly that the Father had been hiding the truth.  Emotion management does not seem to be the Mother’s strongest point.  After having carefully observed the parties during the hearing - with due allowance being given for the emotional strain both parties must have been facing - I am inclined to prefer the evidence of the Mother to that of the Father’s in respect of any discrepancy of evidence between them.  I therefore do not accept the Father’s suggestion that the Mother had traded J for money by agreeing to let the Father have custody of J.  After having had the opportunity of seeing the parties in court, I have observed the very different personalities of the parties– the Father has a much tougher and stronger character than the Mother’s. On balance I further accept the Mother’s evidence in respect of the reason for agreeing to let the Father have custody of J- her acceptance of the Father being a good father as well as her anxiety of bringing the acrimony to an early end shortly after the filing of the Petition. The Mother’s love for J, notwithstanding her agreement to forsake J’s custody, is undoubtedly genuine, and so are her reasons of opposition to the Application.

89. In the circumstances, I am inclined to find that the Father’s relocation plan is unlikely to be genuine.  It is this finding of the Father’s motive – based on his past pattern of behaviour towards the Mother – that I am concerned that should J be allowed to live in Malaysia, the inevitable consequence will be that the Mother’s access will not just be reduced (as rightly conceded by the Father) but be threatened in the event of any future conflict or disagreement between the parties.  The existing access in terms of quality and quantity will likely be adversely affected.

(4)     The effect upon J as a result of contact with the Mother being reduced or denied

90. Should J be allowed to move to Malaysia, the undeniable reality is that  – assuming that the Father would fully facilitate the Mother’s access  – the contact between the Mother and J will still be significantly lessened.  The harmful effect of this reduced contact has already been highlighted in both Reports.  In order to properly understand the extent of how the existing access will be affected in the event of the Father being allowed to relocate, it is convenient to set out below the Consent Order regarding the Mother’s defined access right to J :

(i)      Visiting access twice a week on Mondays and Thursdays from after school to 8:30 p.m.;

(ii)      Weekly weekend staying access from 4:30 p.m. on Saturdays to 9:30 a.m. on Sundays;

(iii)     J’s school holidays including Christmas, Easter and Summer Holidays shall be divided between the parties and subject to the following terms, the Mother shall be granted staying access during one-half of the said school holidays :

(a)      In the event that the Mother does not take J out of Hong Kong for holiday during her share of the said long school holidays, her entitlement to staying access during such period shall be exercised at intervals of not more than 7 days each;

(b)     During the period when the Mother is exercising such staying access to J in Hong Kong, the Father will be granted visiting access 2 times per week for not more than 6 hours each;

(c)     Provided that the Father is away from Hong Kong for 3 nights or above, the Mother shall be granted staying access during the Father’s absence.

91. In the past two years, the Mother has been exercising visiting access every Thursday by having dinner with J from about 6 p.m. to 8:00 p.m..  As for weekend access, the parties have been flexible with the hours.  The Mother usually collects J from his extra-curricula activities on Saturday afternoon and returns J to the Father after lunch with him on Sunday.  In her present job, the Mother is only entitled to 13 days’ annual leave. She had exercised a holiday access by taking J to Australia for holiday during her last annual leave.  The Mother however has not exercised her Monday access as provided in the Consent Order.  At the hearing the Mother said she was not aware of that access right until Mr. Pilbrow criticized her of not exercising her access right in full.  She explained that her lawyer did not inform her of the Monday access and she had also inadvertently overlooked the terms of the Consent Order on access.

92. I do not find the criticism of the Mother fair.  In view of the Mother’s concern for J, there is little doubt that she would naturally wish to spend as much time as possible with J. I therefore accept the Mother’s explanation for not exercising the Monday access in the past.  This omission on the part of the Mother’s solicitor as well as the Mother herself is quite unfortunate.  I note that the Father – apparently being aware of this Monday access – has chosen also not to remind the Mother of her right.  It is not really justifiable that he now turns around and criticizes the Mother for that.

93. The present access arrangement  – as agreed by both parties - has all in all provided a considerable amount of time for the Mother to keep in touch with J.  Should J be allowed to move to live in Malaysia, the proposed access by the Father – even implemented in full – would still result in the Mother losing all the regularly weekly access she is currently enjoying.  It is submitted on behalf of the Father that Hong Kong and Malaysia is only three hours by plane.  Thus with the convenience and ease of modern travel, it would not be difficult for the Mother to fly down over the weekend to see J.  I believe that the Mother would – if circumstances permit – arrange visits to see J as frequently as she possibly can in the event that J were to live in Malaysia.  However, I am particularly concerned that regardless of the relative convenience of modern travel, the net effect of the relocation of J will have the inevitable consequence of having the Mother’s access substantially reduced, which is likely to have a detrimental effect on J.

94. At the hearing, I asked the Father if he was willing to finance the Mother’s weekend visits, he had agreed to partially finance them.  However, after the conclusion of the evidence, he has apparently have a change of mind by stating through his counsel that he would be averse to any requirement to meet the expense of the Mother’s access to Malaysia.  I do not criticize the Father by his decision of not willing to finance the Mother’s access in Malaysia.  However, this change of mind coupled with the Father’s past pattern of behaviour already discussed above leads me to conclude that the Mother’s fear of access being made difficult or impeded should J be allowed to go is not just fanciful.  On the evidence placed before me, I find there is a high likelihood that the Mother, as submitted by Ms. Irving, may become a “holiday parent” rather than a parent whom J can have frequent and meaningful interaction should the Application succeed.

Weighing up the two options

95. Both options have their benefits and drawbacks.  Neither of the two choices is perfect.  However, my task is to weigh up all the positive and negative factors to see which of the options serves J’s best interest.  In order to further test the two competing options, I will further broadly set out the pros and cons of these two options by way of a checklist to ensure that none of the relevant factors will be omitted in my consideration.

96. Should J be allowed to continue to stay in Hong Kong, the upshot will be that J would be able to continue enjoying the present arrangement of having his parents close by : his perception of his family unit can be preserved by having the Father as the custodian parent and being able to keep a close contact with the Mother.  He is surrounded by school friends as well as friends from the neighbourhood.  He goes to the same school which he has been attending for several years.  He can continue seeing J’s two closest cousins, the two children of the Father’s brother in Hong Kong.  His ties and relationship with the Father’s extended family can be continued by the frequent holiday visits arranged by the Father.  The paternal grandmother can still come to see him and J will no doubt be spending a lot of his holiday times in Malaysia to see his extended family.

97. The downside of keeping the status quo is that the Father will be disappointed by being forced to stay in Hong Kong to which he does not feel attached.  The Father has repeatedly told me, for his love for J, he has chosen to stay in Hong Kong should I refuse the Application. I applaud the Father for putting J’s interests above his own personal wishes. I duly acknowledge the Father’s unhappiness, which is one of the important factors I am required to have regard as the unhappiness or distress of a custodian caused by a refusal of the court to relocate may in turn adversely impact upon a child (See Re F (a ward) (leave to remove ward out of the jurisdiction [1988] 2 FLR 116 at 120).  The extent as to how the Father’s unhappiness will adversely affect J will, according to the Psychologist, depend on how the Father handles his emotions.  In most of the removal cases referred to me by both counsel, most of the applications are concerned with the decision by the applicants to join their new family.  In such cases, a refusal by the court would be extremely catastrophic to the applicant parents.  The case under consideration is quite different in that the Father is not joining a new family.  Neither is there any financial concern this court needs to take into consideration should it refuse the Application – as required to be considered by the court in some of the children-relocation cases.  With the strong personality as I have found of the Father, I am confident that the Father will be able to cope with his disappointment and quickly set about reorganizing his life in Hong Kong.

98. At the end of the scale is a decision to allow J to relocate with the Father to Malaysia.  J will live with the Father and the family of the Father’s sister in a beautiful house.  I have no reason to doubt that J will be allowed to indulge in his favourite things such as being allowed to keep a dog as promised by the Father.  He should also be physically well taken care of.  He will start a new school with a similar curriculum as his present school.  He has no doubt a better living environment in terms of having a bigger living space and cleaner air.  The downside is that he is not able to see the Mother on a weekly basis.  He has no friends at all in Malaysia. His perceived family unit will likely be distorted or disintegrated by the absence of the Mother.  An aunt is not a substitute for a mother especially he has never lived with this aunt and cared for by this aunt on any long-term basis.  He has to start making new friends all over again.  A young child whose parents have not divorced would be finding it hard to adapt to a new environment, let alone a child like J who has to adjust to a new environment with the assistance of only one parent.  This is quite a daunting move.

99. As far as the Father is concerned, he would be happy.  He is not just happy that his wish is granted but will certainly feel that he can start a new life – a milestone as he put it.  The Father will start a new job, if not the job offered by the brother-in-law.  In spite of the fact that Malaysia is his hometown, the Father has been living away from Malaysia during the prime of his career development.  He would definitely also require time to adjust to a new mode of life.  This added uncertainly may affect the quality of care to J.  The unknown quality of childcare of Mrs. Ng, the Father’s sister, has further created an additional unknown factor to this balancing exercise.

100. The Father himself is in fact not totally oblivious to these inherent risks.  He has informed this court of his fall back plan of bringing J back to Hong Kong if it is found that the relocation plan does not work out.  People nowadays may have become highly mobile as a result of globalization.  However, when it comes to a matter affecting a child’s interest, I must take extreme care in ensuring that no harm should be allowed to cause to a young child like J. This relocation plan unfortunately is not such a case which I can safely say to myself that no harm will be caused to J.

The paramount welfare of the child

101. After having carefully considered all the evidence, the submissions of both counsel and the case law and literature submitted by them, I am driven to conclude that on balance the paramount interest of J will be best served by keeping him in Hong Kong to enable J to continue living with the Father and maintaining the existing close and frequent contacts with the Mother.  I come to this conclusion with full cognizance of the body of the case law which establishes the general principle that the court is usually slow to interfere with the mode of life chosen by the parent who has the principal care of the child (See Rayden and Jackson on Divorce and Family Matters (18 ed.) Text 1 (1) Para. 43.57).  I also have regard to one of the general principles laid down in section 3 of the Ordinance that there is no presumption in favour of the reasonable application of the custodian parents that both parents should be treated equally in an application of this nature.  However, after having carefully weighed up all the relevant factors in the balancing exercise, I am inclined to agree with the observations by the Mother and the social welfare professionals that J is currently very happy with his present arrangement.  If J has to be brought back to Hong Kong in the event that the relocation does not work out, J will, as described by the Mother be kicked around like a football.

102. The Father has also alluded to his future educational plan for J by suggesting the possibility of shifting him to another educational curriculum such as the British or American curriculum with a view to, in the long term, enable J to study in the United States or Australia when J is older.  The Father’s plan for J is clearly not static. Likewise, neither is a decision of this court should the circumstances change.  When J is older and more mature, it may then be in J’s interest to relocate.  While I am fully aware of - and do empathize with - the Father’s unhappiness, it is my considered view that the need to maintain J’s emotional and psychological stability must be allowed to override the distressed moods of the Father resulting from the refusal of the Application.  For the present moment however, I am of the considered view that J’s overriding welfare is to maintain the status quo so that the mother-child relationship can be realistically fostered and any harmful effect resulting from the parents’ divorce will be minimized by sustaining the integrity of the family unit with the presence of both parents.

Conclusion and order

103. In view of the matters above, I am not inclined to accede to the Father’s relocation request and therefore refuse the Application.  I must say that it is one of the most agonizing decisions I have to make and the case is indeed finely balanced.  I do understand and empathize with the Father that he will be bitterly upset by my decision.  I sincerely hope that the parents will accept this decision and stop making any negative comments about each other in front of J - as I have observed them having done so in the past.

104. I am aware of the anxiety of the parties of wishing this court to be able to deliver its decision within a matter of days.  However in view of the importance of my decision to both parents and particularly to J, I feel it is important that I should allow myself plenty of time to review all the evidence before coming to a considered decision.  Should the Father wish to take this matter any further, I hope it will give him sufficient time to finalize the dispute before the commencement of J’s new school term in January 2007 – be it in Hong Kong or in Malaysia.

105. In the circumstances, the Application is dismissed.  In view of the Mother’s decision to abandon her cross application for variation of custody, I will also dismiss the Mother’s cross application.

106. I further grant a costs order nisi that there shall be no order to costs, including any costs previously reserved (if any) in respect of both applications.

107. Lastly, I wish to thank both counsel for their assistance in this case.