FCKY v. WKK

FCMC 11728 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11728 OF 2014

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JUDGMENT
(Relocation)

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1. This is an application by the Petitioner Mother for the permanent relocation of her children, a girl C who is now 6 and a boy K who is nearly 4, to Canada where she said she has substantial family support.

2. The Mother initially asked for sole custody, care and control because given the 12 hours’ difference between Canada and Hong Kong, it might be difficult to get hold of the Father to obtain his consent for any matter concerning the children.

3. At the beginning of the trial, however, Mr Yim, representing the Mother, informed the Court that after conducting some researches it was found that in Canada most of the important matters concerning the children, including hospital admission, application for travel documents, require only one parent’s consent and/or signature.  The Mother is therefore prepared to have joint custody of the children with the Father.

4. As for the access arrangement, she is prepared to give the Father generous access if she succeeds in her relocation application. Otherwise, if she is to remain in Hong Kong, she is only prepared for the time being to give defined access to the Father in accordance with the recommendation made by the Social Welfare Officer. 

5. The Mother confirms that should her application be refused, she would still stay in Hong Kong to look after the children because she puts the children’s best interests ahead of hers even though she would be under tremendous stress and unhappy.

6. The Respondent Father on the other hand is happy to have joint custody with the Mother with her having care and control of the children no matter whether they stay in Hong Kong or Canada.  He opposes the Mother’s application for relocation because in his view, the children will be better brought up here and that he together with his extended family can maintain physical contact with the children.  Although he acknowledges that the Mother’s application is genuine, he said that she was motivated by her general desire to return to Canada. 

7. As regards the issue of access, the Father in his oral testimony said that he is willing to follow the recommendation to have 6 hours’ defined access every Saturday from 2:30 pm – 8:30 pm should the children stay in Hong Kong and that he was also prepared to adopt the proposals made by the Mother (set out in paragraph 28 below) should I allow her application.  However, when I requested both Counsel to submit a draft Order on the agreed access at the hearing of the closing submission, I was subsequently informed that the parties had come to disagreement on some of the terms.

Background

8. The Mother was born in Hong Kong and she ranks the third amongst four siblings in the family.  She and her whole family immigrated to Canada when she was 10 years of age.  After obtaining her Bachelor of Science degree in 1998, she went to the United Kingdom (UK) to study optometry and graduated in 2002.  The Mother spent the first six years of her working career in the UK before returning to Canada in 2008 to sit for a qualifying examination, and after that she worked as an optometrist there. 

9. The Father was also born in Hong Kong and is the eldest amongst three siblings in the family.  His mother died in 1994 due to cancer.  He was educated in Hong Kong up to Form 7 and he then went to UK to pursue further studies.  After he was qualified as an architect, the Father returned to Hong Kong at the end of 2005 and has been working as an architect since.

10. The Mother and the Father started courtship in 1999. They broke up in 2005 and reunited at the end of 2009 when the Mother came to Hong Kong.  The Mother soon started working here as an optometrist. 

11. The parties married in 2010 when the Mother got pregnant with the elder daughter.  They initially lived at a rented flat in Hung Hom and in July 2012, they moved to the matrimonial home in Shatin, which is registered under the joint names of the Father and the paternal grandfather (“Paternal Grandfather”), at around the time when the younger son K was born. In order to be a full time housewife to look after her two children, the Mother soon quitted her job. 

12. Since marriage, the parties mostly lived apart because the Father worked in Hong Kong, Macau and Mainland China and it was not until May/June 2014 that he needed not travel.  On average, the Father said that he stayed outside Hong Kong for 12 days per month before that.  In February 2015, he was again required to travel between Hong Kong and Macau every day. 

13. Although the parties were in disagreement as to when their relationship began to turn bad, they both agreed that they have divergent views on the children’s developmental needs and that their different parenting style brought down their relationship. 

14. Sadly, after the Father could stay at home more, the marital incompatibility triggered off a few incidents of domestic violence when the children were also at home so that C witnessed all of them.  The most serious one happened on 6 August 2014 (“the domestic violent incident”) and resulted in the Mother receiving more than 50 stitches suturing her wounds.  On 29 August 2014, the Father again lost his temper at dinner over a trivial matter, horrifying the Mother and the children.  After consultation with her family members, the Mother left home with the children the next day and the domestic violence incident was reported to the Police. 

15. In early September 2014, the Mother took out divorce proceedings on the ground of unreasonable behaviour and at the same time, she also took out an injunction application against the Father.  The Injunction Order was discharged on 12 September 2014 upon the Father’s undertaking (i) not to do further harm to the Mother and the children, and (ii) not to enter into the matrimonial home and the children’s school. 

16. As for the criminal repercussions, it is not in dispute that the Father initially pleaded not guilty to a criminal charge of ‘Wounding’ but after some plea bargaining, he pleaded guilty to an offence of ‘Assault Occasioning Actual Bodily Harm’ and was put on Community Service Order for 160 hours with effect from 19 January 2015. 

17. As a result of the above events, the Father had no access to the children for a few months, but later the parties agreed that the Father could see the children every Saturday from 3 to 7 pm, and the time was further extended to 2:30 pm until 8:30 pm after the parties’ discussion during the hearing on 4 March 2015.

The Mother’s application

18. Mr Yim submits that the Social Welfare Officer Ms Wan helpfully summarized the Mother’s case in paragraph 17 of her 2^nd Report[1];

“The Mother was eager to remove to Canada with C and K for good, and shared with Ms Wan her considerations as follows: (i) the education system of Canada was well-developed, of a high standard and comparatively less stressful and competitive than that of Hong Kong; (ii) the living conditions in Canada that she could secure for C and K would be much better than that in Hong Kong; (iii) the community services in Canada pertaining to healthcare and extra-curricular activities were highly accessible and affordable; (iv) social support from her family of origin would be strong in Canada and (v) she was financially stringent to sustain her preferred standard of living if she continued living in Hong Kong. The Mother furthered that she was a Canadian and according to prevailing Canadian policy, both C and K would be automatically recognized as Canadian citizens and they would be entitled to free education and comprehensive and affordable community services.”

19. According to the Mother, her family members are all bonded together closely and there are no other families that she knows of could be comparable to hers, and in this sense her family is unique.  She and her parents talk on the phone usually once a day although sometimes every other day.  As for her siblings, they communicate and chitchat through group WhatsApp every day.  If she needs any help, the whole family will come to her assistance.

20. The Mother said that her family has all along been very supportive.  As soon as she told them her marital problems, her elder sister, who is a dentist with two clinics of her own and a baby of 3 months old, immediately flown from Singapore the same afternoon and stayed for one week; then left and returned and stayed again for another week.  After the incident, her sister flied over whenever she had time and she had come to Hong Kong around 4-5 times already; the longest stay being one week. 

21. As for her own mother, she also arrived the next day and stayed for 2-3 weeks.  Since September 2014, her mother had come over 5 to 6 times already.  The Mother is very grateful because her mother is already 65 years of age.  Each and every journey to and from Hong Kong would not be easy and pleasant for her because it involved a long haul flight for 10 odd hours.  The Mother said that whilst her mother was staying in Hong Kong, her father looked after himself because he is enjoying good health despite being 85 years old already.  In any event, her two brothers, who are also in Canada, could render assistance in case anything went wrong.  The Mother said that without such support from her own family, she would not know how to sail through the most difficult time in her life.

22. The Mother cannot think of any other way than to bring the children back to Canada and raise them with the help of her family members.  In Canada, not only can she live in her parents’ home and get full support from them, she can also work again.  The Mother said that whilst she was working as a full time optometrist in Canada in 2008-2009, she had an annual income of CAD110,000 and although she expects that she will earn less because she intends to work part-time only, she can still provide a decent living for the children.   

23. In Hong Kong, on the other hand, the Mother said that the possibility of her finding a job is very remote because whilst K is still in the nursery, she can only work between 1-4 pm.  Even if she manages to find a job, it will be on hourly rate which currently stands at $100 and therefore will not assist her at all financially. The Mother said she has nothing here and she is also worried that the standard of living cannot be maintained because her savings have gradually been used up.

24. The Mother said that although she still lives in the matrimonial home with the two children and a domestic helper after the Father moved out in September 2014, she does not occupy the master bedroom for fear of the recollection of the unpleasant events.  The Mother found life tough here with no support and she has to look after the two small children alone.  The Mother said that she came to Hong Kong solely for the Father but he treated her badly. 

25. The Mother believes the children will be happier studying in Canada because it is important to develop their love for learning rather than giving them the impression that learning is a laborious task. There is too much competition in the local education system and the students have to grapple with numerous quizzes, tests and examinations, with the result that the students view learning as a task to be carried out by achieving good results rather than finding learning enjoyable.

26. The mother studied at DGJS before she left for Canada at the age of 10.  She compared the education system in Hong Kong with that in Canada, and her view is that school students in Canada are much more relaxed because there are no homework and no heavy school bags.  After school, the children can do whatever they want to do like cycling.  Furthermore, the schools in Canada offer extra classes within school hours.  As for Chinese, the School Board is able to provide the class free of charge after school hours.  There are also plenty of private tuitions available in Toronto. 

27. If the Mother is allowed to relocate the children to Canada, given the school hours in Canada is between 9 am and 3:30 pm and as all optometrists in Canada are self-employed, she can start work after taking the children to school and will finish work before 4 pm so that she can be back by the time the children are at home.  The Mother can opt to work at a clinic or at the mall next to an optical shop when the children are at school.  When she goes to work, her brother can take both his own daughter and K to Trillium Montessori School in the morning whilst she can take C and her cousin to Hillmount Public School (both schools are the schools she has in mind for the children to attend and both are near her parents’ home).  In the afternoon, the Mother’s parents can walk to the school to help picking up C and her cousin whilst the Mother’s brother can pick up his own daughter and K from the school and on their way, dropped off K.  The Mother’s father, who still works as a tutor, can look after the children’s homework when he does not need to take care of any students himself.  The Mother said that although the assistance of a domestic helper is not necessary, she is prepared to employ one if the Father thinks otherwise.

28. In order to help maintain the father-children bonding, Mr Yim submitted that the Mother promised to:

(i)     make arrangements for the Father to have free access to the children by way of telephone, FaceTime, WhatsApp or other social networking sites so as to maintain frequent communication between the Father and the children;

(ii)   subject to arrangements and details to be discussed and agreed by the parties, the Mother shall bring the children back to Hong Kong twice a year during Christmas holidays and summer holidays and the Father shall have liberal day access and reasonable staying access to the children during those holidays;

(iii)  the Mother welcomes the Father to visit the children whenever he has time each year.  Subject to arrangements and details to be discussed and agreed by the parties, the Father shall have liberal day access and reasonable staying access during the time when the Father visits Canada provided that the Father shall give the Mother not less than 1 month notice in advance of any intended trip(s) to Canada and the same is in line with the children’s regular school schedule;

(iv)  the Mother shall allow the children to immediately return to Hong Kong and facilitate their doing so in the event of any family emergencies in the Father’s family subject to arrangements and details to be discussed and agreed by the parties; 

(v)   the Mother undertakes to provide by email the Father with copies of school calendar and school reports issued by Hillmount Public School or any other school that the children may study in within 7 days upon the Mother receiving any such document(s) and keep the Father informed of the children’s academic performance regularly; and

(vi)  the Mother further undertakes to consult and confer with the Father in relation to all major decisions relating to the upbringing of the children.  The Mother is also prepared to arrange for a mirror order to be entered into in Canada before she relocates.

29. The Mother said that a phone line was set up a few years ago in Canada exclusively for making and receiving telephone calls to and from Hong Kong.  The children can call their father or any relatives in Hong Kong many times a day if they wish to.

30. Her proposal for regular access is that given that the time difference between Hong Kong and Canada in summer is 12 hours and winter is 13 hours, as her children wakes up early before 7 am, even after cleaning and having breakfast which should take no longer than an hour, the children can talk to the Father before they start school at 9 am because the school is just 8 minutes’ walk from her parents’ home.  Alternatively, the children can talk to the Father in the evening before K sleeps at around 8pm and C at around 9:30 pm.  She is not worried that the children may be too busy to talk as C is now making constant phone calls to her whenever she has something to say.

31. Should this application be successful, the Mother is also willing to let the Father have generous access this summer before she leaves at the end of August.  As the Father works full time and needs to travel to Macau, should the Father wish to take short leave from his work, say a week, the children can see him every day including staying access.  If the Father is not prepared to take leave, the Mother is willing to bring the children to see him during daytime over the weekend.  Regarding the children’s two visits to Hong Kong, the Mother proposes that since all Canadian schools have two weeks Christmas break up to and inclusive of 1 January and as the last term date for summer is on 30 June, she is prepared to bring the children back for the whole Christmas and one month during the summer holidays.  Should the Father wish to visit the children in Canada, she proposes that he does so during the March break, which is one week holidays for the children plus the weekend, making approximately 9 days in total.

The Father’s grounds of opposition

32. The Father said that parent-child relationship is very important for a child before the child reaches the age of 6.  He also said that the development of the children depends on whether the best parent and child relationship can be maintained.  The Father said that a child who has a happy childhood can face adversity in future life better.  He wants to see more of his children.  Although the Father said that there is no basis to suspect that the Mother would cut the tie between him and the children, he has no trust in the Mother’s proposal on access and her purported part-time employment.  The Father asked why the Mother would offer to give him regular access when the children are in Canada but not when they are in Hong Kong.  Having no contacts with the children for 4 months because of the injunction, the Father said that K could not recognize him in the beginning when he saw K again.  As he cannot have physical contact with the children when they are away in Canada, he is afraid of losing the children even though he did not mention his feeling in his affirmations.

33. In paragraphs 26 and 34 of his 3^rd Affirmation affirmed on 13 May 2015, the Father said that[2]:

“Indeed I consider that by removal of the children from Hong Kong to Canada is simply to deprive of my right of reasonable access to my children.”

“I believe the application for removal of the children is not for the best interest of the children but to satisfy the Petitioner’s desire to deprive of my right of access to the children. Also the Petitioner’s keen desire to return to Canada is only due to her dislike of the environmentof Hong Kong.”

34. The Father disagreed that the children’s returning to Hong Kong every Christmas and during the summer season effectively mean that he can see the children every half a year.  He said that he would have no staying access and regular physical contact if they are in Canada and he therefore disagreed that the proposed arrangement is better in terms of quality as alleged by the Mother because the Father believes that progressively he would have staying access one to two times a month if they stay in Hong Kong.  

35. The Father admitted he had been to Toronto sometime between 1994 and 1996 and he was also in Toronto for one year looking after his younger brother and sister in 1996 and therefore Canada is a familiar place to him.  However, he cannot possibly go to Canada every week because of the long haul flight.  Furthermore, it is impossible for him to settle there because the construction industry is not good and in any event, he is not a Canadian citizen. 

36. The Father said that he is a man who insists to have dinner with his family.  Before separation, even though he was not in Hong Kong most of the time, he had made every effort to come back to Hong Kong whenever he had time.  By spending an average of 12 days in Hong Kong, the Father said that he had spent more time in Hong Kong than other fathers who were doing the same kind of work because at most, those fathers could only have 8–9 days in total by adding all the weekends in a month together.

37. He disagreed that the Mother is feeling helpless here because his family members can provide all necessary support to the Mother. They have been buying the children toys and clothes and his younger sister also helped when necessary.  He said that there are occasions for example when the Mother could not attend the talk at St Margaret whilst he was doing community service, his sister had indeed helped.  He said whenever the Mother was busy at work; it was him who helped to look after the children.  The Father said that there are no difficulties that could not be overcome.

38. Although the Father agreed that Canada is the home of the Mother’s family, he said her social ties there are remote because she has left Canada for a long time and therefore she is out of touch with both the country and her previous social network.  On the other hand, he said that the Mother had already been in Hong Kong for 19 years, yet for 1 ½ years only in Canada. Although the Father also admitted that the Mother has maintained close contact with her family members, he said that there is no need for her to return because her family members always came to Hong Kong to visit her.  The Father said that when the Mother was in Canada, she was still not happy and rang him every day. 

39. The Father said that although one of the main reasons for the Mother’s insistence to leave Hong Kong is the inadequacy of the education system in Hong Kong, the Mother has definitely been doing very well at teaching the children under this system.  In any event, it is very difficult to change the Mother’s method of teaching by her always scolding the children, but since the Mother has been behaving like that, the children are already used to it. He basically has no objection to the children going abroad to study, say when they are in Form 3, but not right now.  He thought that they should learn more Chinese.  He said that the western education is totally different from the local one because they train children to be independent and to establish their own self esteem.  

40. He has no trust in the Mother’s proposal for daily electronic communication because even in Hong Kong, the Mother does not let him see the children more and he has no daily contact with the children.

41. The Father said that after the domestic violence incident, he lost his children and the children lost their father.  The Father admitted that he has a guilty feeling about the children’s misfortune that they have to grow up in an incomplete family.   

42. If the Mother is minded to stay, by way of open proposal, the Father at the trial offered:

(1) The Mother stays with the kids and promises that the children could travel to Canada with the Mother two times a year at the Father’s expense and the Father is willing to have only ¼ of his long holidays to accommodate that.  Father promises that he would not take the middle of the holidays.

(2) Father promises to pay for the rent of a property nearby C’s primary school at a price not less than the renting out of the Shatin property.

43. By way of an open letter dated 20 January 2016, the Father offered two options:

Proposal A: If C will be attending St Peter’s Primary School

(1) Monthly maintenance for the Mother and the 2 children in the sum of HK$30,000;

(2) The rent of a flat of similar size and quality to the matrimonial home and of reasonable standard to cater for the Mother and the 2 children close to the school, plus moving expenses and reasonable furnishing;

(3) The airfares for the Mother and the 2 children for school long holiday trips to Toronto for a maximum of 3 times a year, exclusive of any airfares or expenses for the domestic helper and/or other relatives;

(4) Staying access of the Children be increased to three quarters (3/4) of their long holidays (evenly split otherwise) in the event the Mother wishes to travel to Toronto with them;

(5) The airfares to Toronto for the Mother on urgent and necessary needs for short trips with prior notification and arrangement with the Father;

(6) Any urgent and reasonable expenses of the Mother and the 2 children upon prior notification and agreement with the Father.

Proposal B: If C will be attending DGJS

(1) Monthly maintenance for the Mother and the 2 children in the sum of HK$30,000;

(2) If the Mother decides to move from the matrimonial home with the 2 children, the Father will pay the rent of a flat of similar size and quality to the matrimonial home and of reasonable standard to cater for the Mother and the 2 children close to the school, plus moving expenses and reasonable furnishing;

(3), (4), (5) and (6) same as Proposal A.

Social Welfare Officer

44. Ms Wan admitted that when she prepared the 1^st report on 16 February 2015 before the Mother’s relocation application was taken out, the Mother had already mentioned to her that she wanted to return to Canada but she did not write it down.  She also confirmed that Toronto is safe and she has no worries about any matter related to the children.

45. Ms Wan said that the Mother wants to return to the maiden family because the children will face immense pressure if they study in Hong Kong.  Further, if the Mother is to find a job here, the working hours are long and she cannot look after the children, whereas the working hours in Canada are more flexible.

46. Ms Wan accepted that when the Mother left the matrimonial home, she was helpless and lonely but she believed that her decision to divorce was made after serious thoughts.  She agreed that the Mother misses her family and she said that this is a difficult decision to make. From the Mother’s perspective, the best interest of the children might be jeopardized because of her financial constraint.  If problems about money are resolved, the Mother will be more secured.  She, however, found that the Mother is capable of finding a way forward and of adapting herself to any changes if her relocation application is refused.

47. In paragraph 30 of her report dated 3 August 2015, she said:

“In considering the issue of permanent relocation, the best interests of the children should be the paramount concern. For young children, (i) child care stability, (ii) parenting capacity, (iii) attachment bond and (iv) the maintenance of a healthy relationship with both parents are important elements to address their developmental needs. In this case, the Mother was capable of taking good care of the children, nurturing and guiding the children and building a secure attachment bond with them. Whereas the father was capable of playing a complementary role in the development of the children by providing them with guidance and building emotional bond with them. It is important to form strong attachments with both parents during childhood so that any separation in the future will not impose adverse impact onto the parent-child relationship. In that regard, maintaining the existing pattern of access between the Father and the children will be most conducive to meet the children’s developmental needs. Moreover, it is widely accepted that the children who have healthy contact with both parents after separation or divorce will better adjust physically, psychologically and socially with peers and at school and that is the reason why access in divorce case is value.”

48. In the end, she recommended that joint custody be granted to both parents, with care and control to the Mother but that the children do remain in Hong Kong, and that access be defined of 4 hours from 3:00 pm – 7:00 pm and can be extended to 6 hours from 2:30 pm to 8:30 pm so as to promote father-children interaction and allow the children to spend time with the Father in a more relaxed manner.

49. Ms Wan said in her oral testimony that her recommendation was based on the fact that the children should be bonded to both parents.  She considered that if they are separated from the Father for a considerable period of time, it might not be beneficial to them.

The Children’s view

50. The children basically gave no view of their own.  Ms Wan said in paragraph 23 of her report that both children showed no response to the issue of relocation. 

“Alternatively, they were asked if they enjoyed meeting with the father. On 18.7.2015, at the father’s home, C told the SWO that she liked to meet the father and play with her cousins at his home. On 22.7.2015, at the mother’s home and on the way to attend her swimming lesson, C told the SWO that she was unhappy that the father objected her to learn piano and she also disliked her elder cousin. On 18.7.2015 at the father’s home, K told the SWO that he liked to play at the father’s home. On 22.7.2015, K added that he liked the father, the paternal aunt and the paternal grandfather recent five years.”

Issue

51. As both parties agree that there should be joint custody with care and control to the Mother whether the children stay in Hong Kong or leave for Canada and further, the Father will follow the recommendations as to defined access made by Ms Wan if they stay in Hong Kong, the only issue is therefore whether I should grant the Mother’s application for relocation and if so, what access order I shall make for the Father.

The Law

52. Both Mr Li, representing the Father, and Mr Yim agree that the principle in Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473 applies.

53. In Payne, the Right Hon Lord Justice Thorpe said as follows:

“40 …To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion:

(a) Pose the question: 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, by which I mean, founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.

(b) 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?

(c) 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?

(d) 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 insofar as appropriate.

41. In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor."

54. Mr Yim submits that this is in line with the principles summarized by Dame Butler-Sloss P at 500G in paragraph 85:

“In summary, I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

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

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

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

(d) Consequently 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 other parent to an end.

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

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

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

26 In summary a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:

(a) the welfare of the child is the paramount consideration; and

(b) 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.

55. In relocation cases, our Court of Appeal in SMM v TWM (Child:  Relocation) [2010] 4 HKLRD 37 has confirmed the applicability in Hong Kong of the guidance laid down by the English Court of Appeal in Payne v Payne. 

Discussion

56. Mr Li submitted that this is not a typical ‘go home’ case.  He submitted that the Mother is a local here and therefore this Court is not dealing with a typical international marriage the parties to which came from different countries and have their roots in different cultures and that the failure of such a marriage would naturally lead to one party’s return to his/her homeland.  Quite to the contrary, Mr Li said that this pair of parents were locally born and raised in Hong Kong and like many others of their generation, studied abroad and had gained work experience before returning to Hong Kong.  Mr Li further submitted that the Mother’s roots are in Hong Kong and certainly her relocation to Canada cannot be seen as ‘going home’.  At most, Mr Li said that it is a ‘family-reunion’ case.

57. Mr Li further submitted that in JHCI v MSYI FCMC 12528/2011 (unreported), dated 15 January 2011, HH Judge Melloy in paragraphs 24 and 25 referred to the case of F v H Children: relocation (2008) 2 FLR 1667 and held that: 

(24) The bar as to practicalities to be jumped by a relocation applicant was 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 in which the primary carer was returning to a completely familiar environment the bar was set considerably lower than in the case of an applicant who in pursuit of some dream or ambition was proposing to take the children to an unknown and untried environment.  The bar was set particularly low if the primary carer was returning, as in this case, to a completely familiar home after a brief absence.

(25) Although I accept that MP in California (the town where the mother wishes to live) is a completely familiar environment to the mother, given that her family are there and that she and the children go there frequently to visit, it seems to me that a distinction should be drawn between a carer like this, where both parties have lived in Hong Kong for a considerable period of time and someone who might be termed as “true expat” i.e. someone who is in Hong Kong on a recognizably short term basis.  Clearly this is not a case of primary carer returning to her home after a brief absence.  The bar will be set a little higher as a result.”

58. With respect, I disagree.  The facts of the above case are different.  The mother who made the application in that case had lived in Hong Kong since 1992 and the parties were only married in 1998.

59. In this case however, in the 4^th Affidavit of the Mother, which was not challenged, the Mother said by way of her background[3]:

“3. I…… immigrated to Toronto Canada with my family…..in October 1986 when I was 10 years old. I received a large part of my education up to getting a Bachelor of Science degree from the University of Toronto in 1998 in Canada.

4. I met the Respondent in the UK in 1999…..

5. After graduation, I spent the first six years of my working career in the UK, I returned to Canada to obtain further qualification and registration in 2008.  I then worked as an associate in an Optometry Clinic in Toronto until I moved to Hong Kong in late 2009 in order to be with the Respondent.”

60. The Mother repeated in her oral evidence, which was also not challenged:

“After she sat the qualifying examination in Canada in April 2008, she attended her younger brother’s wedding and worked until the end of 2009 when she realised that she missed the Father very much. She therefore told her parents that she wanted to go to Hong Kong to be with the Father.”

61. In paragraph 6 of his 3^rd Affirmation, the Father said that:

“I met the Petitioner in Hong Kong in 1999 when she was studying dentistry in the University of Hong Kong. The Petitioner dropped out of the course after claiming that she didn’t like her classmates and the competitive environment of Hong Kong….”

62. In paragraph 11 of the Father’s affirmation, he said:

“The relationship between the Petitioner and I were up and down during our dating period…..After I returned to Hong Kong in 2005, we continued to keep our relationship until 2007 when I broke up with her and entered into another relationship. The Petitioner soon felt very sad and persuaded me to change my mind and reconcile the relationship consistently throughout the following whole year. In 2009, she decided to come to HK to save the relationship. In view of our long period of special friendship, I offered assistance in paying & renting a service apartment for her in Hung Hom….. I also assisted & funded her in buying home furniture for her rented flat. Afterwards, she got a job….and suddenly, she was pregnant….”

63. Although I noticed that there are discrepancies as to whether it was in the UK or Hong Kong that the parties met in 1999, the point is even the Father acknowledged that the Mother never liked Hong Kong before she came here in 2009.

64. With that background in mind, I disagree with Mr Li that the Mother was purely studying abroad and after gaining work experience, returned to Hong Kong and settled here. 

65. I agree with Mr Yim that the Mother and the whole of her family were uprooted from Hong Kong and settled in Canada when the Mother was only 10.  Although she returned to study dentistry at the Hong Kong University for one year, it was not the Mother’s intention to settle here.

66. I disagree with the Father when he said that the Mother only stayed in Canada for 1 ½ years after her graduation but she was in Hong Kong for 5 years.  I accept that Hong Kong is not the home of the Mother and that but for the Father, she would not have come in 2009 and the Mother soon got pregnant and married and had stayed here for 5 years since because of her marriage.

67. Another point Mr Li raised is that Canada is not a completely familiar environment for the Mother. 

68. I must say if one arithmetically counts the number of years during which the Mother had lived before her marriage in Hong Kong, Canada and the UK respectively, one will discover that the lengths of time she had spent respectively in Hong Kong, Canada and the UK were equally substantial. The Mother was in Hong Kong until the age of 10 and there was one more year during which she studied at the Hong Kong University, thereby making a total of 11 years in Hong Kong.  As regards Canada, she was there from October 1986 until 1998 plus another 1 ½ years after her return from UK in 2008 up to the end of 2009, thereby making a total of 13 ½ years.  Taking into account these figures, I disagree with Mr Li that Canada is not a completely familiar environment for the Mother and yet, I also accept that Hong Kong is not an unfamiliar place for the Mother.  However, as Mr Yim submitted, what matters is not whether the Mother is familiar or not familiar with Hong Kong; what matters is that, to quote Mr Yim’s words, the Mother ‘has no one, nothing here’ (冇人冇物), meaning that she can find no support here whatsoever in Hong Kong.

69. Mr Li submitted that the Father is not challenging the genuineness of the Mother’s application but he said that it is nothing more than a general desire.  Is it true? 

Social support

70. When cross-examined by Mr Li, the Mother said that she has no relatives here and the only so-called relatives (“the ‘siblings’”) living in Homantin have no blood relationship with her.  The ‘siblings’, whom her own father has known for nearly 50-60 years, are her father’s younger cousin’s husband’s elder brother’s children or grandchildren.  She admitted that she had put their address down in the children’s school application form because at the time, the family was living in Hung Hom but anticipated to move soon. As C needed to apply for a place in pre-nursery, the Mother took the advice of her mother and put the ‘siblings’ address down as correspondence address because they had no intention to move elsewhere.  The Mother admitted that she would go to have tea or meals with them when she went to collect the mail but she would not have any in-depth conversation with them about her family problems.

71. I accept that the so-called relatives living in Homantin are not the people the Mother would turn to if she needs to find someone to alleviate her worries because as the Mother said in her evidence:

“the siblings have never been married nor do they have any kids, they would not understand.”

72. I also believe the Mother when she said that she has only made a few acquaintances from the ‘mothers’ group’ whom she met in either her children’s schools or tutorial classes.  The Mother’s evidence is that those mothers were also busy looking after their young children and therefore they only had lunches together occasionally.  In any event, the Mother would not talk about her family problems with them. 

73. I accept that those few acquaintances are no support to the Mother.  It is common knowledge that one will not talk about family problems with one’s children’s friends’ parents unless there are very close relations between one and those parents.  The contents of the conversations which the Mother had during the occasional lunches with those mothers would unlikely to go beyond their children’s education and their extra-curricular activities.

74. Although the Mother also said that she had a good friend with similar background to her ie, they both emigrated to Canada from Hong Kong, got their bachelor degree and returned to Hong Kong for their families, I accept her evidence that the close friend is also very busy looking after her family and therefore cannot render her any support.  

75. The Father said in his oral testimony that the Mother should have other friends that she had met when she was studying in the UK and he mentioned a few names such as Chi, Priscilla and Joyce.  However, he also admitted that they only communicated by telephone and WhatsApp and that she had no friends, apart from her family members, with whom she could have any in-depth conversation.  Even Ms Wan in her oral testimony said that she believes that the Mother’s maiden family has very close ties with the Mother and that the Mother might not have many friends save C’s friends’ mothers.

76. As the Mother is a very devoted mother busy looking after two small children, how could she make friends and obtain social support from those friends in her circumstances?  I therefore accept that the Mother has no social support here.

Financial support

77. Mr Li submitted that there is no real issue with respect to financial support because the Father, who is earning a monthly sum of around HK$70,000, is financially capable of supporting the Mother and the children daily even if the Mother remains full-time housewife.  

78. It is not in dispute that the Father has been paying the Mother maintenance, initially RMB20,000 (equivalent to HK$25,000) per month which was subsequently increased to HK$30,000 per month.  However, the Mother said that even with that amount, she still has to utilise her own savings for the extra-curricular activities of the children because she said in paragraph 11 of her 8^th Affidavit:

“…The children’s school fees alone is HK$13,905 per month (HK$7,139 per month C in K3 and HK$6,766 per month for K in K1). We need about HK$5,000 as the helper’s wages and monthly food allowance, HK$5,500 for food per month, approximately HK$3,150 per month for the family’s transportation cost, HK$2,500 for utilities and telephone bills, already totaling HK$30,055. This sum does not even include other basic provisions for the children including extra-curricular activities, clothing and books, medical expenses, buffer for emergency and entertainment….”

79. In the circumstances, the Mother said that her savings have been substantially reduced from HK$655,000 to HK$440,000 since separation.  As far as the Mother is concerned, she cannot save up any more because ever since the children were born, none of the money has been spent on her for her own benefit.  That means if she cuts down the monthly expenditure, it will be done at the expense of the children by gradually reducing the number of tutorials, extra-curricular activities and even entertainment which the children have been enjoying. 

80. Although the Father tried to present the case that the Mother spent extravagantly on the children given the family’s limited resources and I also agree that HK$2,500 per hour for a piano lesson is rather on the high side, I cannot understand why the Father is complaining because essentially, the money was spent for the interest of the children.  After all, as there is no dispute that the Mother has not been working for the past three years and further it is admitted by the Father that he has only been paying HK$30,000 as maintenance and nothing more, who is it then has been paying for the expensive classes and activities? 

81. When put by Mr Yim that the Mother does not have enough money, the Father gave a rather evasive reply.  The Father insisted that he did not know whether the Mother has any other income but that as the parties are both professionals, they should be able to sort it out by planning how much the expenditures should be before spending.  But the question is how to make this plan and how to carry it out? 

82. The Father complained that some of the extra-curricular activities are unnecessary.  Mr Li also submitted that how to prepare the budget would depend on how the Mother is going to spend.  I have no comment on these statements, but I will not overlook the fact that to the envy of a lot of parents in Hong Kong, C has been accepted by most of the top schools in Hong Kong including DGJS, VSA, St Stephens Girls School and further, she is on top of the waiting list of St Paul’s Co-educational Primary School.  At the age of 5, C has won 50 trophies and she would have taken the Grade V piano examination but for the domestic violence incident.  The Father, on the one hand, criticized the Mother for her parenting method and the unnecessary extravagant extra-curricular activities and insisted that he would not pay more, on the other hand however, the Father said that the Mother has been doing very well and C has an abundance of choices in Hong Kong and therefore they should not leave at this stage.

83. However, despite the fact that C succeeded in half of the 16 school applications that the Mother made, I disagree that there is an abundance of choices for the Mother. 

84. In paragraph 41 of the Father’s 3^rd Affirmation filed on 13 May 2015, the Father said:

“I am willing to opt for the schools that the Petitioner chooses for the kids in Hong Kong as she is mostly responsible for and much focused on their school results since she becomes housewife….”,

85. Does the Father really mean what he said?  The Mother has repeatedly said in her evidence that if her application for relocation is disallowed, she would prefer the children to study at VSA, an international school because at the induction session, she was informed that home work would not be particularly many, whereas at DGJS, her experience reminded her that if a student is not bright, the student would be disliked by the teachers.  She is given to understand that the situation is worse now.

86. The Father in his oral testimony, however, objected to C’s going to VSA because (i) he does not agree that VSA is a happy school; (ii) he cannot afford to do so and (iii) there is no guarantee for his son.  In any event, the Father said that since both St Peter’s Primary School and DGJS have already confirmed their offer, he definitely wants C to go to DGJS.

87. I have difficulty in understanding the Father’s choice, which I will discuss later; I will deal with the financial aspect first.  If C is to go to DGJS, I do not consider that the Mother’s financial situation will thereby improve.  When the Father was asked whether he would fund for the school fees of DGJS, his answer was that the school fee of HK$5,000 per month at DGJS was HK$2,000 cheaper than the current kindergarten fee.  He therefore sticks to his offer to pay periodical payment of HK$30,000, plus other things as set out in his open proposal. He said that he would, however, look at what the Mother is asking for, which should be dealt with at the ancillary relief (AR) proceedings.

88. I agree with Mr Yim that if the Father’s choice for C is DGJS, tutorials are inevitable.  I also agree with Mr Yim’s comment that the Father is totally out of touch with the current condition of the local education system.  This comment was made when the Father disagreed that Hong Kong local students are under a lot of pressure, and he disagreed solely because when he was studying in Hong Kong, he himself saw it as a challenge and he recalled that the Mother had told him that she had encountered no difficulties when she was studying at DGJS. 

89. I do not blame the Father.  It has always been the Father’s case that the children should have a balanced and happy childhood, with enough time to spend with their families and relatives and to engage in both outdoor and indoor activities.  This of course is the ideal world.

90. I believe that in reality, however, the pupils under the local education system have to take tutorials and in the top schools, they are also expected to learn to play at least one musical instrument.  The Mother said in Court that her written Chinese is poor, which was not challenged.  If that is the case, C will at least need external assistance for her Chinese, Putonghua and one musical instrument.  Although the school fee per month is reduced by HK$2,000, how is the Mother going to cope with the other expenses, given that the Mother has already spent most of her savings?

91. The Father mentioned in his oral evidence that if the Mother wants the best tutorial and best education, she can resume working and with her previous earning capacity of HK$40,000 per month, she should be able to employ 2 domestic helpers to assist her.  The Father is perhaps saying that if the Mother does not have enough, she has to help herself.

92. The Mother in her oral testimony disagreed that the Father’s proposals would relieve her financially and she claimed that she is nearly broke and might not be able to employ a domestic helper any longer.  As regards the Father’s promise to pay for her the rent of a property, she worried that she would have no privacy as the Father could show up anytime and claim that since he pays the rent he has the right to do so.  The Mother said in paragraph 70 of her 6^th Affidavit:

“…. In light of the Respondent’s past behavior towards me, I do not feel safe with the Respondent (even if the helper is present) up to this point. It is hard to change the Respondent’s behaviour and temper. He continued telling me off in WhatsApp messages whenever he disagrees with me, and I am worried that he would hurt me again.”[4]

93. The Mother also said that sometimes when the Father came to see the children, he stayed at the matrimonial home until mid-night and the Mother found it very uneasy when she had to face him alone after the children had all gone to bed.  She once briefly asked him why he stayed so late, the Father just arrogantly said that it was his home.  In order to avoid arguments, the Mother said she had no choice but to let him stay. 

94. Although I do not think that the Father would do further harm to the Mother after his criminal conviction, judging from what happened before, the Mother’s worries are understandable.

95. In relation to the accommodation arrangements, the Mother has been consistent throughout in her evidence that she does not want to stay in the matrimonial home because she does not want to be constantly reminded of all the unhappy events and the incidents of violence which happened at home.  In this regard, I noticed that although the Father offered to pay for the rent should the Mother decide to move, he has never offered to pay for the utilities.  At present, both parties agree that it is the Paternal Grandfather who is paying the rates for the matrimonial home.  Should the Mother move, no doubt she also has to bear this extra item of expenditure.

96. When the Father was questioned by Mr Yim how he could afford the extra rental that he offered to pay, I found the Father rather evasive.  In reply, the Father simply said that there might be more income for him after the present proceedings because he could work harder.  The Father also said that in any event, he still has the matrimonial home free of encumbrances and he could therefore re-mortgage it.  When being pressed for an answer, the Father kept on saying that money matters should be dealt with at the AR proceedings.

97. As for the matrimonial home, I thought the Father said he was just a trustee.  In paragraph 14 of the Father’s 2^nd Affirmation filed in opposition to the Mother’s s17 application under the Matrimonial Proceedings and Property Ordinance (“s17 application”) to set aside the Father’s disposition where the Paternal Grandfather was joined as the 1^st Intervener, he said:

“I would like to emphasis that the 1st Intervener arranged me as one of the joint tenants with my parents by way of deed of gift simply to satisfy my dying Mother. Bearing in mind that I was the only child who attained 18 years old and my siblings had not attained majority at that time. All along, I was acting as a trustee for the 1st Intervener holding the Matrimonial Home with the 1st Intervener just like my Mother did before. The 1st Intervener is and has been the beneficial owner of the Matrimonial Home at all times. I have no say at all in respect of how the Matrimonial Home is to be dealt with.”[5]

The Father seems to have changed his stance.

98. In Court, the Father acknowledged that the Mother does not have enough money but he said that the Mother never formally asked for money.  In any event, the Father claimed that when he noticed that the washing machine was damaged when he went to the matrimonial home in January 2016 for some household repairs, he immediately replaced it when the Mother claimed that she had no money to do so.  He also said that upon receiving a letter from the Mother’s solicitor, in which he was asked whether he would pay for the domestic helper’s tickets, consulate’s charge and insurance, he promised to pay as per the request of the Mother.

99. Mr Li submitted that being legally represented at all material times, the Mother should have made application for maintenance pending suit should she honestly feel that the present arrangement was not financially viable, but she has never made such application.  With respect, is the Father saying that with full knowledge that the Mother does not have enough money, he simply turned a blind eye to that and will not pay until he is ordered to do so?

100. In Court, did the Father not see that the Mother burst into tears and said, “I will be lost” if her application was not allowed?  She further said that:

“前一排，我同C同K講，佢哋話想食嘢，我話我冇錢。我啲錢越來越少… 我又辛苦… 唔知小朋友點?”

101. The Mother in her oral testimony said that even though she had met the Father during C’s parents’ interview after the present relocation application was issued, not even once did the Father mention or offer any further financial assistance to her.  In fact, she said that she was the one who paid for the mock interview.  I accept that because not only was it not challenged, it is obvious that the first time that the Father ever offered anything was when Mr Li made his oral opening submission in Court and the terms became clearer as stated in paragraph 42 of my judgment only at the time when the Mother was being cross-examined.  It was only subsequent to this Court’s suggestion that the open proposal should be made in the form of a letter so that proper instructions and advice could be given to the Mother by her legal team after her evidence was finished that the offer was made as set out in paragraph 43 above.

102. I therefore disagree with Mr Li’s submission that the Father, who is earning a monthly sum of around HK$70,000, is financially capable of supporting the Mother and the children daily even if the Mother remains full-time housewife.  In my view, there might be no dispute about the Father’s capability to do so, but he has insisted throughout that he will pay HK$30,000 per month only as periodical maintenance and no more.

103. Mr Li also submitted that the Mother would be the beneficiary of a substantial part of the matrimonial assets and therefore her present financial position, even if treated as stringent, is likely to be temporary only.  In my view, since the Father is fully aware that one of the reasons of the Mother’s relocation application is her financial restraint, why is it that the Father cannot offer something realistic to the Mother by way of global settlement instead of wasting time and costs to have another set of AR proceedings when he knew that the Mother, who is not working, will probably rely on her own savings again to fund the litigation?

104. Ms Wan, when asked by Mr Li, said that she did not agree that the Father could provide the Mother with emotional support.  She said he could provide tangible support only.  I disagree with that.  I do not understand why Ms Wan would come to that conclusion.

105. Even Ms Wan acknowledged in paragraph 31 of her report that “the Mother ……emerging financial stress and the associated emotional stress should not be overlooked.  To acknowledge her difficulties and review the financial needs of the family will be beneficial to the family as a whole.”  Ms Wan also confirmed in her oral evidence that the financial constraint is a real concern to the Mother.  She has, however, never asked the Father when she prepared the report how he could resolve the Mother’s concern.  She said that the Father never offered to assist.

106. With respect, I do not agree that the Father is able to provide the Mother with the necessary financial assistance.  The case JHCI v MSYI, FCMC12528/2011 cited by Mr Li does not need to be discussed as the facts are different.  In that case, it is clear from the judgment that the father was in a position to support the mother financially by paying her HK$120,000 per month plus meeting other expenses such as the school fees directly and that he had done so since the parties separated although the trial Judge said this might not be in a manner that the mother deemed acceptable.

107. In this case, I accept that the Mother had been ultilising her savings on her children and that she had been frugal to herself when she only purchased a few personal items in a year, which was not challenged.  I also accept that the Mother did so because she put the children’s interest and future at the top priority. 

108. I find that the Father’s open proposal cannot address the Mother’s concern.  I accept that the Mother will be financially strained if she has to continue to stay in Hong Kong with the two children. I am therefore satisfied that the Mother does not have the necessary financial support here.

Emotional and physical support

109. The Father said that the Mother could obtain support from his family members.  In paragraph 26 of the Father’s 3^rd Affirmation, he said that:

“… My family members (my father & my sister) used to visit them once a week before this divorce case….”

110. The Mother on the other hand said in paragraph 41 of her 6^th Affidavit that:

“I would say that the Respondent’s father only used to see the children approximately once every two weeks for dinner. The Respondent’s sister saw the children only whenever she was free, but definitely not as frequent as once a week, but only twice a month the most. Most of all, the Respondent’s siblings are not on good terms with their father. They already rarely gather together as a family, however whenever they do gather for a meal for example, the Respondent’s sister or brother almost all the time end up in arguments with their father and the gathering very often conclude in a bad atmosphere. Worst still, both C and K very often witnessed these arguments.”

111. Although the Mother’s version is not corroborated by any other evidence, the support which the Father said was available to the Mother was in the form of his family members having dinner with the Mother and the children once a week before the parties’ separation. In my view, such support, even if it existed, was not the kind of support required by the Mother. 

112. The Father did not call the Paternal Grandfather to give evidence.  However, in answering a question put by Mr Yim, the Father admitted that both the Paternal Grandfather and his brother are in Dongguan, although the Paternal Grandfather returned to Hong Kong once a week.  The Father also admitted that the Paternal Grandfather had taken a High Court action against him in February 2015.  The Father’s explanation about the High Court action was that when the Paternal Grandfather learnt about these divorce proceedings, the Paternal Grandfather only wanted to protect his own interests because the matrimonial home was specifically given to the Father as trustee.  Nevertheless, the Father said that the Paternal Grandfather is still providing financial assistance by letting the Mother and the children reside in the matrimonial home rent free.

113. When cross-examined by Mr Yim, the Father admitted that shortly after the divorce proceedings were issued, he resigned from 3 companies’ directorships in September 2014 and another one in October 2014 but he said that it was only when he filled in Form E that he realised that he was still holding the titles, but in relation to which he never had any interests.  In order to deal with his personal matters and to save unnecessary audit fees, he resigned.  The Father also admitted that on 11 October 2014, he transferred his interest in the matrimonial home to his sister.  He also admitted that on 15 October 2014, he transferred some 70,000 shares of CLI Limited to his younger brother, who subsequently transferred the said shares to his auntie on 2 January 2015, and some 40,000 shares of AHJ & D Limited to his younger brother and the Paternal Grandfather.  As for CLI, the Father said that he sold the shares to the Paternal Grandfather because he needed money to pay his legal fees.  For AJH & D, he said that he did not know he had ½ of the shares as he had never worked or participated in that company.  In any event, the Father said that because there were no trust deeds, after seeking legal advice and in order to save further legal costs, the s 17 application had been settled by way of consent and all parties concerned had agreed to restore the original position with costs to the Mother.  The Father therefore insisted that his family will render all necessary support to the Mother.

114. In my view, no matter what the true reason was behind the transfer and the resignation, I agree with Mr Yim’s submission that the Mother cannot trust the Father’s family that they will give her the necessary support if she is required to stay here, because all of the above dispositions were made shortly after she had taken out the divorce proceedings.

115. The Father called his younger sister to give evidence to show her support.  The younger sister, however, confirmed that she has no children and she has never stayed overnight with the children and she does not know (i) whether K is still on night diapers; (ii) whether K needs milk before he sleeps and (iii) whether the children need assistance when they bathe themselves.  However, the younger sister said that she and the Father could learn.

116. In the Affirmation of the younger sister filed in support of the Father’s opposition to the Mother’s relocation application, she said in paragraph 11 that:

“My relationship with the Petitioner has not been close, as she did not seem to show much attention and appreciation to members of my family. However, upon requests of the Respondent at times, I would help preparing Chinese soup for the Petitioner when the Respondent was out of town, and I acknowledge and appreciate that we all have our own personality, therefore I did not complain much.”

117. If this is the case, what is the emotional and physical support available to the Mother that the Father has in his mind? I am not satisfied that the Father’s family can provide the Mother with the necessary emotional and physical support.  

118. When asked by this Court if his first choice for C is DGJS and which primary school he would like K to go to, the Father told me that it would depend on the Mother’s decision.

119. The Father’s answer appeared to be saying that depending on the result of the efforts of the Mother, he would not interfere with the Mother’s decision; but the Mother had already indicated what her choice was.  In Court, she said she preferred C to go to VSA, which the Father adamantly objected, because not only could he not afford to do so, he also said that there is no guarantee for K.  He accused the Mother of listening to gossips which said that siblings would be guaranteed that they could study there together. He said there is nothing on the school’s website which suggests that.  The Father would go for DGJS because he insisted that it was the Mother’s choice.  He said the Mother always wanted DGJS and she had done a lot of preparation such as enrolled C in the CCKG and made her baptised.  Otherwise, he asked why they had to go to church and not having fun with the relatives or friends on Sundays? He said that when C was about 3, she had difficulty in the piano and Maths. When C was younger, he saw that C cried because of the Mother’s scolding.  He was unhappy but C got used to it and she is now handling pressure quite well.  Why should there be a big change again?   

120. As to why he seemed to be contradicting himself when he said he wanted the children to develop not just academically and yet he wanted the children to go to a local school, the Father acknowledged that the Mother’s method of teaching was too harsh but the result was good and was successful.  If that is the case, since the children had already adapted to the local education system, he would not change his mind and would not consider anywhere else. 

121. The Mother said in her oral testimony that although C, judging from her character and ability, is suitable and able to opt for DGJS, if she has to choose a local school, she would probably stick to St Peter’s Primary School because it is a co-educational school, so K would also benefit.

122. The Father, on one hand, is saying that he would let the Mother decide and yet on the other hand, he insisted on choosing DGJS for C because the school’s ranking is good.  He even said in Court that if one did not look at the ranking, what else one should look at.  However, if his first choice for C is DGJS, which is a girl’s school, where is the guarantee for K?

123. The Father in his evidence has been consistent throughout that he opts for a school which values natural talent and development instead of one which focuses on academic results.  In paragraph 22 of the 2^nd Social Investigation Report, Ms Wan said that:

“…the father considered a healthy child development should involve all-round development including positive social life and value-system while academic success was only a part of it. Hence, he did not agree on the packed learning schedules that the mother had arranged for the children.”

124. If the Father does not place emphasis on the academic side of the children and since he gave such answers, is he suggesting that the Mother should go through the entire ordeal again in order to prepare K for the primary school entrance interviews?  Since the Father is adamant that he is financially unable to afford a place in an international school and the places in good local schools are highly competitive, who is going to assist the Mother in this respect? 

125. In paragraph 24 of the Father’s 3^rd Affirmation, he said that:

“Due to the hard work of the Petitioner, my daughter did learn a great deal more comparing to average kids at the same age and performed well in school…”

126. There is, however, no evidence from the Father that he would assist the Mother in any way.

127. In Court, the Father disagreed that the children’s emotion could be affected if they face pressure from studying and insisted C could do it.  He said that there is no evidence to support that C could not handle.  Until then, he would not consider to help her.

128. The Father also disapproved the high-handed teaching method used by the Mother but if the Mother had achieved the result, he asked why not let C have a try?

129. In my view, whilst the Father is proud of how successful it has been for C, he does not appreciate the pressure faced by the Mother alone.  The Father insisted that it is feasible to arrange for the children to stay in Hong Kong.  The Mother in reply said that if the children go Canada, she is confident that they will be well-developed but if they stay in Hong Kong, she is not so sure because a lot will depend on whether the children can face the pressure of schooling, examination and their financial situation etc.  The Mother said that the Father’s open proposal at the trial will not make much change to her present condition because the children will still face the pressure generated by the Hong Kong education system and they will not be happy.  I accept that and I also agree that the Mother will face a lot of pressure too.

130. Ms Wan mentioned in Court that the Mother behaved in a conflicting way because on the one hand, she wants to lessen the pressure which the children faced by arranging for the children to join an international school but at the same time she made them participate in a lot of extra-curricular activities and she emphasized that the children are well capable of coping with them.  I disagree that the Mother behaved in a conflicting way.  I accept the Mother’s evidence that although she very much wanted the children to go to an international school; she needed to prepare C for joining a good local school as a contingency plan because it was a cheaper option.  She did so because in case this Court does not allow her relocation application, she will at least be sure that there is a primary school place available for C in Hong Kong.  I accept that entirely. I agree that is her contingency plan and is well-planned and that the Mother has given plenty of thoughts to cover different scenarios. 

131. Mr Li submitted that co-parenting has been proceeding well and that the Father can also offer tangible support to the Mother.  Mr Li reminded the Mother of two incidents, one in July 2015 when K was suspected to have swallowed a soft drink bottle cap.  When it was put to the Mother that the Father immediately rushed to the Hospital and paid the bill of $16,000, the Mother, although made no denial, said that when the Father came, what he said was a mixture of comforting words and criticism.  As to the payment of the bill, she said the Father told her that he could be reimbursed from his insurance policy.

132. Another incident that Mr Li put to the Mother was the occasion when C was confirmed to have contracted erythema multiforme.  Again, the Father immediately took leave and paid the medical fee.  Although the Mother agreed that the Father did take leave for 2 weeks, she said that after C’s recovery, K was confirmed to have hand, foot and mouth disease and later C was infected as well. How could the Father, who then had to travel extensively, give support in such situation?

133. In this respect, bearing in mind that the Father was mostly not in Hong Kong before their separation and that it is not disputed that the parties all along have divergent views on the children’s development, I accept that co-parenting has not been satisfactory.

134. Is there any improvement since the commencement of the divorce proceedings?  The Mother agreed that co-parenting has been working and admitted that the Father attended 9 school interviews including the mock ones.  She agreed that C was happy that both parents showed support by attending her primary school interviews.  She also agreed that the presence of both parties presented to the school the picture of a complete family, although she said the school does not put too much weight on that when considering which child is the right candidate.

135. Mr Li initially wanted to play a video about one of the school interviews in order to show me how the parents were co-parenting and he subsequently decided not to do so.  He, however, urged me to consider the comments made by Ms Wan that if co-parenting is good, it is beneficial to the children. He also reminded me that Ms Wan agreed that the Father has improved his co-parenting skill and that the parents have the ability to put co-parenting into effect.  With respect, I disagree.

136. I wonder whether all Mr Li is trying to say about the effects and workability of co-parenting is based on those school interviews.  I accept the Mother’s evidence that it is the basic obligation of the Father to attend them and the Father showed up only when the Mother requested him to do so.  Even Ms Wan said in her oral testimony that co-parenting in this case is not working in an ideal way.

137. For the reasons I set out above, I am not satisfied that the Mother will have the necessary emotional and physical support in Hong Kong. I accept that she is still dealing with the problems on her own and everything has to be done by her alone. 

Applying the Payne test: Is the Mother’s intention to go to Canada motivated by some selfish desire to exclude the father from the child's life?

138. As Mr Li has already submitted that the Mother’s intention is genuine, I need not go further.

Is the Mother’s application realistically founded on practical proposals both well researched and investigated?

139. Mr Li submitted that the Mother’s proposal to relocate the children and her contingency proposal for staying here are both well researched and investigated.  I agree.

What would be the impact on the Mother, as the single parent, of a refusal of her realistic proposal?

140. Mr Li submitted that the Father accepts that the Mother would suffer a certain degree of impact, but that it would be minimal and in any event bearable and more importantly, the Mother is fully capable of coping with and adapting to it in all the circumstances.

141. Ms Wan in her oral evidence said that there is no urgent need for the Mother to leave Hong Kong now because she is capable of adjusting herself for staying in Hong Kong.  In paragraph 31 of her report, Ms Wan said that:

“the Mother is a competent mother. It is envisaged that her competencies can help her overcome the life challenges in Hong Kong. Nonetheless, her absence of adequate social support in Hong Kong, her emerging financial stress and the associated emotional stress should not be overlooked. To acknowledge her difficulties and review the financial needs of the family will be beneficial to the family as a whole.”

142. This conclusion seems to show that Ms Wan placed reliance on the fact that the Mother is competent enough to overcome the life challenges in Hong Kong. 

143. In the Court of Appeal case SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37, Cheung JA said in para 32 (8) of the judgment:

“The mother is not weak by disposition and has bravely endured the refusal to allow the child to go back with her to the USA. But it will not require an expert to tell the sense of alienation that a woman in the mother’s situation will experience. The Judge acknowledged that her refusal would be disappointing to the mother but she had no doubt that ‘she will indeed make the best of it’. In my view, the consideration should not depend on the nature of the disposition of the mother and her reaction to the outcome of the application. Whether a mother is strong and will be able to bear the disappointment with fortitude or is of a weaker mind and will suffer great distress by the refusal is not a determinative factor. As Sachs LJ observed in Poel at 1473 this is the sort of sacrifice or endurance that ought not to be accepted by the Court because it may well in the long term endure to the detriment of the child. The very experienced family judge Ormrod LJ also stated in Chamberlain v de la Mare (1983) 4 FLR 434 at 443 that

“The reason why the court should not interfere with the reasonable decision of the custodial parent, assuming, as this case does, that the custodial parent is still going to be responsible for the children, is, as I have said, the almost inevitable bitterness which such an interference by the court is likely to produce. Consequently, in ordinary sensible human terms the court should not do something which is, prima facie, unreasonable unless there is some compelling reason to the contrary.  That I believe to be the correct approach.”

I entirely agree.

144. Mr Li submitted that even in the undesirable scenario where the Father could not afford the Mother’s objective standard of living and not just the Mother’s own acceptable standard of living, the Mother still has relevant working experience in Hong Kong which she gained before she quitted her employment to become a full-time mother after the birth of K.  

145. However, if the Mother has to work as a full time optometrist and at the same time has to be a single parent looking after two small children, bearing in mind that K needed to be drilled for the primary school entrance, I can see how stressful it will be for the Mother without any assistance in Hong Kong.  There is, however, no evidence that the Father would assist to relieve her burden either by giving her the necessary financial support or by helping her to train the children academically.

146. I accept that the Mother is a devoted mother.  Mr Li, however, submitted that the Mother is a ‘tiger mother’ and given the Mother’s strict and disciplinary approach towards the children, the presence of the Father in the children’s daily lives is important so as to strike a good balance in the course of their development.  

147. Mr Li tried to persuade me by inviting me to watch a video secretly recorded by the Father to show that the Mother is a tiger mother. After watching the full video, the only impression I had was that the Mother was clearly under stress.  I accept the explanation she gave in paragraph 26 of the Mother’s 4^th Affidavit[6]:

“….Whenever the Respondent returned to Hong Kong from China, he would usually like us to stay at home and be with him, which is understandable, however he would go to the extremes and not allow us to attend Sunday services at church or forbidden C to attend piano lessons. He would also complain that the children have too much work and would therefore not allow them to do much of it whenever he’s at home. And he would not like C to practice playing the piano….I insisted on C completing her work and playing the piano when he first complained, but his temper became so bad that I got yelled at very often if I spent too much time working with them, and he threatened to break the piano into pieces should C practice the piano again. I became so afraid of him that I ended up rushing C with finishing all her work and practicing the piano before my husband returned home for the weekend.”

148. I accept that the Mother was under stress because of the Father’s attitude and temper. I also accept that she was trying to speed up the piano practising so as not to provoke the Father.

149. In any event, since the video was recorded secretly, I could only conclude that C was confused when the Mother was harsh on her but she was not afraid.  It is obvious that at the end of the video C was happily greeting the Father when she turned around from the piano and saw him unexpectedly.  I do not agree that the Mother is a tiger mother and, even if she is, what is wrong with that?

150. I accept the Mother’s evidence in paragraph 23 of her 6^th Affidavit where she said:

“I believe that whether a schedule is harsh on a child is very dependent on the child’s ability and interests. C has been attending most classes for a long time and she enjoys having lessons very much. In fact, she insists on attending them even when she feels unwell. She gets on very well with all teachers and the teachers enjoy teaching her because she learns each new concept easily and effortlessly. In fact, C had been recommended repeatedly by many teachers to have an IQ test done as they suspect her to be a gifted child. C’s appointment for an assessment eventually came through a few weeks ago and it did confirm that C comes within the top 1% of her age group of children.”

151. Credit must be given to the Mother for the fact that the children are doing very well and no allegation has been made by the Father as to any emotional or behavioural problems suffered by any of the children, though in paragraph 24 of his 3^rd Affirmation, he said that:

“I believed it came with some side effects. I was worried about the damage in our daughter’s self-esteem and personality…”

152. However, he did not elaborate further what damage he was referring to.  In Court, the Father admitted that the Mother has been doing very well and so he said she should not leave Hong Kong at this stage.

153. If the Mother is not allowed to go, what will be the effect on the Mother?  This was discussed in Payne v Payne where Thorpe LJ said:

“… 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.” (para.31)

“…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.” (para.32)

He re-stated this point at para.40(c) of the judgment and added (at para.41) that “great weight must be given to this factor”.  If this mother is unhappy here, it will materially affect her ability to care for the children.

A more recent review of the jurisprudence and international perspective in this area was provided by Mostyn J in Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam) [2010] 2 FLR 1577.  He acknowledges the binary nature of these cases at para 4:

“If the decision is that the child goes, then the left-behind parent inevitably suffers a disruption to his relationship with the child, at the very least in terms of quantum and periodicity of contact. If the decision is that the child stays then the primary carer, if not invariably, then frequently will suffer distress and disappointment in having what will normally be well-reasoned and bona fide plans for the future frustrated. So the decision, whichever way, is bound to cause trauma.”

154. When the Mother gave evidence in Court, I could see that she was very distressed and was under tremendous pain and disappointment. This is understandable.  She abandoned everything including her supportive family in 2009 and came to Hong Kong alone, just to save the relationship with the Father.  I believe that she did love the Father wholeheartedly. 

155. After K was born, the Mother went so far as to give up her career as an optometrist when at the time she was earning HK$40,000 per month and became a full time housewife.  The father virtually gave no physical or emotional support to her throughout the marriage because he only returned once a month and stayed on average 12 days a month, yet she looked after the whole family very well.  Since there was only insufficient financial support from the Father, she even used her own savings to pay for the expensive tutoring and extra-curricular activities for the benefit of C, solely because she wanted C to be better equipped for the primary school interviews.  But what happened to her in return for her love and devotion? 

156. In the Mother’s 1^st Affidavit in support of the Injunction Order against the Father, she said:

“8. since the last 12 months, the Respondent seemed to have difficulty in controlling his temper and often scolded and shouted at me over trial matters which frightened us terribly. His scolding and shouting would last continuously for at least 20 and sometimes 30 minutes on one single event as a result of which was extremely disturbing and distressing to me, my elder daughter and the maid.

9. In recent months, the Respondent’s behaviour got increasingly unreasonable and intolerable. His outbreak of violence by way of verbal abuse has become more frequent and occurred on average once or twice a day. He shouted at me for no good reason and abused me verbally many times….He would also fiercely scold me if the maid did not serve him with food promptly….The most inappropriate thing for the Respondent to do was that he displayed his violent temper and had all the scolding and shouting done in front of the children. As I did feel very scared by the Respondent and knew that he would be even more crazy if I argue with him, I seldom argue with him. If I really could not tolerate the unjustified and demeaning comments from the Respondent, I would only sit by the side and weep…”[7]

157. In paragraphs 3 and 11 of her 9^th Affidavit[8], the Mother said:

“…. who would continue to be with a husband who hits and beats her? Who would like to be scolded at almost every night for up to an hour or so without being able to do anything about it? I think I am the only one who is stupid enough really to hope that my husband…would once and for all change for the better after the domestic violence. And I tolerated him scolding me and making C cry until a month after the incident.”

“In my opinion, the Respondent lost his marriage mainly due to his behavioural and anger problems more than anything else. The instant he pushed and kicked me to the home’s main door and the moment I profusely bled, he had lost his marriage. He should also realize that the marriage is permanently broken down when he started scolding me uncontrollably again ten days after my discharge from the hospital.”

158. I therefore disagree with Mr Li that the impact on the Mother would be minimal.

Is the father’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?

159. Mr Li submitted that the answer to the first part of this question must be yes. I disagree. 

160. One of the reasons that the Father opposes the Mother’s application is that he is worried that the Mother would be fully engaged in her employment in order to earn more money leaving the children to the old-aged grandparents.  If the Mother seeks employment in Canada, he said he sincerely feels concern over what level of ‘social support’ the Mother could receive. 

161. I find that the Father’s concern is rather difficult to understand.  He also suggested that the Mother could find a job in Hong Kong to ease her financial restraint.  In that case, what is the social support that the Mother could have in Hong Kong?  In my view, if the Father is indeed worried that the Mother would fully engage in her employment, which is unlikely, the Father can simply pay her sufficient maintenance.  In Court, the Father did not say clearly whether he would still pay the Mother HK$30,000 if I allow her application to leave. 

162. As for the Father’s concern that the Mother might be fully engaged in her employment and leave the children to the old-aged maternal grandparents, I noticed that when the Mother was in gainful employment in Hong Kong before K was born, she returned home right after work.  In paragraph 7 of her 6^th Affidavit, which was not challenged, the Mother said:

“When I was at work, our Indonesian helper was the one who took care of C most of the time during the day. Even I had to go to work, my working hours were not long and my supervisor was extremely nice to me. She organized mainly early shifts for me working from 10am to 7pm on most days and only from 12pm to 9pm once a week because I had to go home early and breastfeed C. We were living in Hung Hom then. If I got off work at 7pm, I would usually reach home at 7:30pm. If I got off work at 9pm, I would usually reach home at 9:30pm.”

163. With that background in mind, I do not believe that she is a mother who would put her career ahead of the children’s interest.

164. The Father said that he very much wants the children to stay even if it means pressure for the Mother.  Mr Yim put to him that if the children stay, there are tests, examinations and summer assignments in Hong Kong, making trips to Canada impossible despite the Father’s offer.  The Father, however, said that they could take their homework and assignments to Canada and the children should learn to work hard and make adjustments.  He said that if there is no pain, there will be no gain.  Such statements from the Father made me doubt whether he really has any genuine concern for the future of the children’s welfare.

165. I understand what the Father feels when he said he is afraid of losing the children.  However, I cannot find that the Father has a genuine concern for the children’s well-being.

What would be the extent of the detriment to him and his future relationship with the child were the application granted?

166. Mr Li submitted that the attachment bond would be lost and the relationship between the Father and the children would be jeopardized became it is ‘out of sight, out of mind’and, given the young ages of the children, any prospect of maintaining the relationship between the Father and the children in future would be unrealistic.  Ms Wan also said in Court that the children’s first memories only crystallized when they reach 10-12 years, otherwise it might be out of sight, out of mind and she considers that if they are separated from the father for a considerable period of time, it might not be beneficial to them.

167. With the greatest respect, Ms Wan contradicted herself.  The Father had no access to the children for 4 months due to the Injunction Order, however, paragraphs 20 and 21 of the SWR dated 16 February 2015 stated that:

“C was excited during the access on 30 December 2014, 24.1.2015 and 7.2.2015 respectively. She kissed him back and sat on his stomach to play with him. She expressed to have missed him a lot. She was delighted to receive gifts from him which included drawing pens, construction toys, clothes and snacks etc. Except the second access that she was sick on that day, C always took the initiative to play with the father. After the last access, C told the SWO that she liked to meet and play with the father. K was shy and reserved. He mostly played by himself at the beginning of the first access. The father slowly engaged him and he gradually became more interactive. During the third access, he played actively with the father and C together.”

168. If this is her observation, why did Ms Wan come to the conclusion that the father-children relationship would be ‘out of sight, out of mind’?

169. Ms Wan agreed that the Mother’s proposal as to the access arrangement is appropriate and feasible and there is no reason for her to suspect that the Mother would interfere with access.  Ms Wan said in her evidence that she is convinced that the Mother would not interfere with access but she might forget her promises because she would be leading a busy life.

170. The Mother agreed that keeping contact with the Father is important.  She agreed that the Father had made some contributions to the children’s development and the children are happy when they are with the Father.  The Mother, however, said that what matters is the quality, rather than the quantity, of the time that the children spend with the Father.  In Hong Kong, the children can only see him for a short while every week.  At other times they need to attend school and play.  

171. I agree that keeping regular contact with the Father by seeing him 6 hours per week in Hong Kong is important but other matters also need to be put on the balance.  I believe the Mother when she said that she would actively encourage the children to talk to the Father on a daily basis through telephone, Skype or FaceTime because I accept that she is a person who always puts the children’s interest ahead of hers.  In any event, even the Father in his oral testimony agreed that whilst he was working in China, C would talk to him on the phone and send messages and photos of hers and K’s by WhatsApp. 

172. In my view, the father-children relationship might even improve because the Father seldom saw the children anyway before his breakup with the Mother.

173. In any event, in paragraph 38 of the judgment of the Court of Appeal case SMM v TWM (Child:  Relocation) [2010] 4 HKLRD 37,  Cheung JA said:

“In my view the real issue in this case is really about the difficulties of the father maintaining contact with the child with the physical distance between them. I recognize the importance of contact. Hence the contact issue has been specified in Payne to be two of the relevant factors to be considered. However as a matter of principle, any relocation application will necessarily involve one parent not being able to have the same degree of contact with the child than if they are in the same physical locality. As Butler-Sloss LJ (as she then was) observed in Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638, the requirement for frequent rather than extended contact appears to be unnecessary for children for tender age. …”

174. Mr Yim submitted that in RK v YS, FCMC No 4931 of 2012, FCMP No 151 of 2008, 6 January 2015, unrep, § 117, DDJ Grace Chan said:

“117. Time and time again, the court emphasizes the importance of recognising 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:-

‘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.”

To what extent would that detriment be offset by extension of the child’s relationships with maternal family and homeland?

175. Mr Li submitted that the children’s homeland is Hong Kong and they are unfamiliar with Toronto.  He also submitted that the maternal family support is dubious and untested.  The children cannot be said to be enjoying an extension of family support in Canada due to the fact that they will lose the paternal family support in Hong Kong, in all circumstances therefore, the said detriment could not be offset at all.

176. Mr Li also submitted that although the Mother’s parents and relatives in Canada are all willing to support the Mother, they do not know C and K well.  There is more social tie in Hong Kong from the children’s perspective.

177. As I have already dealt with the issue concerning paternal family support in the earlier part of my judgment, I am not going to repeat myself. As for the condition and the situation of the Mother’s family members in Canada, I will set out the relevant parts in the International Investigation Report (“the ISS report”).

The ISS report dated 3 July 2015 compiled by Ms Omellas, the clinical investigator from the Office of the Children’s Lawyer of Ontario

178. Ms Omellas made the report after interviewing the maternal grandparents, the two younger brothers of the Mother (“Donald and Roger”) and she also met Roger’s wife and their two children.

179. In her report, Ms Omellas stated that the maternal grandparents are enjoying good health despite their age.  Both of them are retired and the maternal grandmother is receiving pension from her previous employment in the sum of approximately $19,000 per year, whereas the maternal grandfather is receiving old age security pension in the amount of approximately $18,000 per year.  In addition, the maternal grandfather also operates a tutoring business in cooperation with Donald.  Currently, he tutors on weekends as well as Mondays while the maternal grandmother is mainly responsible for household duties, as well as assisting with the care of Donald’s children.

180. Donald is currently living with his wife and two children in Markham, Ontario.  He said that he is a teacher whereas his wife is a kinesiologist.  His daughter is attending Hillmount Public School whereas his son is attending Trillium Montessori in Markham.

181. The maternal grandparents’ home is a four bedroom home in Markham, Ontario where they have been residing since 1986.  At present, two of the bedrooms are occupied by the maternal grandparents and Roger but there would be three bedrooms available by the end of 2015 because Roger would be getting married and would move out after his marriage. 

182. As observed by Ms Omellas:

“the home is clean, organized and free from any visible safety hazards. The home had adequate furniture and was decorated with various images and artwork from the family’s culture….The basement was also observed to be clean and organized as was the upper floor of the home. All bedrooms had adequate furniture and sleeping accommodation.”

183. As for the community, Ms Omellas said that:

“the family described their community as an “older neighborhood”.  In close proximity to the home, the family has access to financial institutions, a community center offering tennis courts, baseball diamond, skating rink etc and the local mall. There is also a library within walking distance of the home.  There is also a subway station that is easily accessible from the home via one local bus.”

184. Ms Omellas said that all parties are enjoying good health and are free from any medication.  They are also very supportive of the Mother’s relocation plan.  The maternal grandfather in particular said he was “overjoyed” and “happy”.  As stated by Ms Omellas:

“the family believed (the Mother’s) transition back to Canada would be successful as the home is already established for her and she is familiar with her surroundings as this is the home and neighborhood she grew up in. Donald advised that (the Mother) is familiar with the Canadian way of life and is also familiar with the educational system as she went through it herself. He also noted that she still maintains friendships with people in Canada. The grandfather advised that while in Hong Kong, (the Mother) is alone as she does not have family nor spiritual support. He felt that based on what she was going through, it would be a benefit for her and the children to return as she would have family support in Canada.”

185. As for the proposed educational opportunities, Ms Omellas understands that the children would be attending Hillmount Public School, so she has contacted the Office Administrator, Ms Protolese, who is responsible for all registrations at the school. In the ISS report, Ms Omellas stated that Ms Protolese confirmed that the children:

“would qualify to attend Hillmount provided they are Canadian citizens and reside in the catchment area. She explained that they would need proof of residence, such as citizenship card or passport as well as proof they are living in the school area. In her case, the maternal grandparents would need to write a letter on her behalf indicating she resides with them as well as proof they own the family home. Ms Protolese also indicated the school would require immunization records for the children. Based on the ages of the children, C would be eligible for Senior Kindergarten in 2016 and K would be eligible for Junior Kindergarten in the Fall of 2016. Ms Protolese advised there would be no wait time for the children to get into the school. Ms Protolese advised the curriculum provided at the school is the same for all schools across the province of Ontario and is provided by the Ministry of Education.”

186. Ms Omello has also done a research of Hillmount Public School from the website of the Fraser Institute, which is an independent non-partisan research and educational organization based in Canada and is involved in research regarding such topics as the quality of education, health care etc.  The organization uses objective data from scores found in provincial tests in order to rank and compare schools.  The tests used are completed by the Education Quality and Accountability Office which is an independent agency of the Ontario government.  According to Ms Omello, “the Fraser Institute has currently ranked Hillmount Public School 18^th out of 3037 schools in Ontario for the 2013-2014 year.  It is further noted that it was ranked 1^st out of 2348 schools in the most recent five years.”

187. Judging from the ISS report, the contents of which are not in dispute, I do not agree with Mr Li that the maternal family support is dubious and untested.

188. I also noticed that in paragraph 27 of the Mother’s 9^th Affidavit[9], she said:

“Regarding Canada, I do have other relatives in Canada and not just my parents and nuclear family. My two brothers and their respective families are in Canada, my maternal aunt and uncles are also in Toronto with their families, and I have a few second cousins there too. Although my father is elderly, both my mother and father are mostly at home and it is a matter of fact that they help take care of their grandchildren, i.e. my nephew A and niece J. Not only do they help look after them at home, they will take them to classes, help teach them school work, cook for them, and play with them, etc. If C or K live in Canada, they will also be well taken care of by my parents if I am busy, and they would be able to go to school, learn, study and play with their cousins A and J every day.”

189. I accept that the Mother has the necessary social, physical and economic support in Canada.

190. On the contrary, the Mother has no social, physical or economic support whatsoever in Hong Kong.  By keeping the Mother here, although she might pull through, she will not be happy and will face a lot of stress in the course of looking after the two children of tender age.

191. Again,I quote what the Right Hon Lord Justice Thorpe said in Payne v Payne:

31. 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…”

192. In light of my findings, I will not follow the recommendation made by the Social Welfare Officer.  In fact, Ms Wan repeatedly in her evidence agreed that if the Mother stays here but with no financial support, Canada is better for the best interest of the children.  In my view, her recommendation, which is based on her opinion about the Mother’s ability to cope and her emphasis on the factor of the children maintaining contact with the Father, is ill-founded. Although her view has to be respected, when she was cross-examined by Mr Yim, she admitted that this is her first case on relocation and this is only her second court appearance.  

193. Cheung JA said in paragraph 48 of the judgment of SMM v TWM [2010] 4 HKLRD 37:

“…The social worker’s view has to be respected but this is the first case on relocation for the social worker. Ultimately the decision whether it is in the welfare of the child to be relocated lies with the Court. It is a most difficult decision but I am firmly of the view the welfare of the child which is of the paramount consideration, lies in him being able to return to the USA with the mother. He is at a tender age and may easily overcome adjustment problems in a new environment.”

194. I agree entirely.  I am satisfied that the Mother will be happier in Canada where she will have family and social support.  I am also satisfied that she will be able to obtain financial support by picking up her career as an optometrist again. 

195. I sincerely hope that the Mother, by starting her new life in Canada, would forget about the past and move on with her life.  After all, this Court cannot do anything to heal the pain she has suffered so far.

196. As for the children, although I understand the concern of the Father, ie they are already used to the environment in Hong Kong; I obtain guidance from what Rogers VP said in paragraph 36 in the judgment of Aslam v Ali CACV 144/2003:

“…The appreciation that the children would not be able to settle in a new environment with relatives whom they scarcely know is, in my view, overrated. Young children are adaptable. …”

197. In this case, both children at least knew the maternal grandmother and the Mother’s younger sister because on each and every occasion when they visited the Mother in Hong Kong over the past year after the incident happened, it is not in dispute that they lived in the matrimonial home. Furthermore, C had already been to Canada twice and on each occasion, she was there for about 3 months.

Conclusion

198. For the reasons which I have given, I will grant the Mother permission to permanently remove the children out of the jurisdiction of Hong Kong to Canada in August this year. 

Access

199. Basically, the Father consents to most of the terms offered by the Mother and their legal teams have helpfully submitted their respective draft Orders on access.  I understand that there are two minor points over which the parties are still in disagreement.  First, the Father requests the Mother to contact him weekly by email on things relating to the children’s education, health and medical matters, academic and extra-curricular activities, etc, whereas the Mother proposes that she will do so bi-weekly.  In my view, since the children are of tender age, the Father should be constantly informed as to the children’s development.  I will therefore require the Mother to report to the Father on a weekly basis.

200. Secondly, the Father requests for continuous staying access during the Christmas and summer holidays, but the Mother takes the view that the more suitable arrangement should be “liberal day access and reasonable staying access with details to be agreed by the parties”.  The Mother is worried that the children might be left unattended when the Father goes to work.  Given the young age of the children, the Mother considers that continuous or consecutive staying access for 10 days for Christmas or one month for the summer is not suitable at this stage and she therefore suggests that the children should be returned to her when the Father is at work or unavailable.  I agree.

Order

201. A.  UPON both parties acknowledging and undertaking to this Honourable Court and each other that:

(1)   With both of them being custodial parents of the children of the family, namely, C, a girl, born on 24 August 2010 and K, a boy, born on 28 July 2012 (collectively “the Children”), they will discuss and consult with each other in relation to all major matters relating to the upbringing of the Children;

(2)   They will inform and update the other of all significant events concerning the Children’s welfare whilst the Children are in their respective care (ie the Petitioner in her daily care of the Children and the Respondent during his access, whether in Hong Kong, Canada or elsewhere) by way of email (the Respondent’s email address: [**] and the Petitioner’s email address: [##]) or, in case of urgency, by way of instant messaging and/or telephone calls; and

(3)   If any party intends to take the Children outside Canada or Hong Kong for holiday purposes during their respective care or access (whether in Canada or Hong Kong), they will give each other not less than 1-month notice in advance of any trip(s) planned, obtain the written consent of the other party, such consent not to be unreasonably withheld, and provide each other with copies of the Children’s return air-tickets for any such trips 14 days before the commencement of the trip.

B. AND UPON the Petitioner undertaking to this Honourable Court and the Respondent that she will:

(1)   Apply within 3 months from the date of this Order for a court order in identical terms to the terms of this Order in the Court in Ontario, Canada (“the Mirror Order”) and provide a copy of the Mirror Order to the Respondent;

(2)   Provide by email the Respondent with copies of school calendar and school reports issued by Hillmount Public School or any other school that the Children may study in within 7 days upon the Petitioner receiving any such document(s) and keep the Respondent informed of the Children’s academic performance regularly;

(3)   Contact the Respondent weekly and answer to queries relating to the Children’s education, health and medical matters, academic and extra-curricular activities, etc.

IT IS ORDERED THAT:

1. Custody of the Children be granted to the Petitioner and the Respondent jointly with care and control to the Petitioner;

2. The Petitioner be granted leave to permanently remove the Children from the jurisdiction of Hong Kong to relocate to Toronto, Canada upon completion of the Children’s current school year and in any event, not later than September 2016;

3. The Respondent be granted reasonable access to the Children in the manner as described as follows:

(1)   The Petitioner shall bring the Children back to Hong Kong twice a year during Christmas and Summer holidays (in accordance with the Children’s school calendar) for at least 10 days for Christmas and 1 month for Summer holidays, and the Respondent shall have liberal day access and reasonable staying access to the Children during those holidays, the arrangements and details of which to be agreed by the parties.  During the said access, the Children should be returned to the Petitioner when the Respondent attend whole-day work and/or is not available to spend time with the Children;

(2)   The Respondent shall have generous day access and reasonable staying access during the time when the Respondent visits Canada provided that the Respondent shall give the Petitioner not less than 1-month notice in advance of any intended trip(s) to Canada and the same is in line with the Children’s regular school schedules, the arrangements and details of such access to be agreed by the parties;

(3)   The Respondent shall have daily access with the Children by way of telephone, FaceTime, WhatsApp or other electronic social networking means at 7 am (Hong Kong time) with a minimum of 10 minutes and a maximum of 30 minutes for the Respondent to talk to the Children;

(4)   The Respondent shall have extra daily access with the Children at 7 pm (Hong Kong time) in the same manner under (3) hereinabove on the following days:

a. The Respondent’s birthday;

b. Father’s Day;

c. First day of Chinese New Year;

d. Respective birthdays of the Children.

(5)   On top of the access pursuant to paragraph 1(1) and (2) above, the Petitioner shall allow the Children to immediately return to Hong Kong in the event of any family emergencies in the Respondent’s family and facilitate their doing so, subject to arrangements and details to be discussed and agreed by the parties; and

4. Both parties have liberty to apply as to implementation and enforcement of the above terms.

Costs

202. As this is a child related matter, I will make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days.  There shall be certificates for Counsel.

203. Last but not the least, it remains for me to express my gratitude to both Mr Yim and Mr Li for their helpful assistance in this trial.