M v. B

FCMC 6078/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 6078 OF 2008

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J U D G M E N T

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1.  This is the Petitioner Mother’s application for leave to remove her 2 sons, T aged 10 and X aged 8, from Hong Kong permanently to Australia in the coming summer upon the dissolution of her marriage with the Respondent Father, and if the application is allowed, for consequential financial provisions for her and the boys in Australia. The relocation application is opposed by the Father as premature, financially impractical and ultimately incompatible with the welfare of the children.

The Background

2.  The parties are both Australians born in Melbourne, similarly aged at 39 and are architects by profession, although the Mother has since the birth of the children been doing only part-time architectural tutoring and small projects. They first met as students in their final year of Architecture at Melbourne University in 1993, and later married on 11^th February 1995 in Melbourne where their children were subsequently born. 

3.  After the marriage both parties continued to work in Melbourne until March 1996 when they went to work in Canada. In November 1996 they moved to work in London until around October 1998 when the Mother ceased work due to her pregnancy with their first child, and the parties agreed to return to Melbourne where T was subsequently born on 13^th December 1998. The Father then commenced employment with H Architectural and Urban Design Firm in their Melbourne office, and the parties bought an apartment in St Kilda, Melbourne as their home shortly thereafter.

4.  After the birth of T, the Mother continued to stay home as his primary carer until March 1999 when she started to do some part-time architectural tutoring at Melbourne University for about 2 days a week during school term.

5.  On 1^st January 2001 the younger boy X was born, and with the assistance of the maternal grandmother in looking after the children while she worked, the Mother was able to carry on with her part-time job at Melbourne University. At around this time she also started her own architectural private practice known as M Architecture doing some small scale projects in Melbourne.

6.  This continued until October 2002 when the family moved to Hong Kong after the Father was seconded by his Melbourne office to the Hong Kong office for 6 months to look into the possibility of establishing an office in Shanghai for the firm, and the parties took the move as an opportunity for the Father to be exposed to international projects and to earn higher income. Before departing Melbourne, the Mother resigned from her employment with the university and ceased her private architectural practice, and the parties also let out their apartment to tenants until it was later sold in 2007.   

7.  The parties, perhaps understandably, did not bring all their possessions to Hong Kong, storing most of them in Melbourne and taking only their personal essentials to initially reside in a small apartment in Stanley Market, but during the SARS epidemic in early 2003 the Mother and the boys returned to Melbourne to mainly stay with her parents in Brighton until later in the same year when they returned to Hong Kong when the epidemic had subsided. The boys were then enrolled into Bradbury School in Stubbs Road where they are now in primary 6 and 3 respectively. 

8.  At around the same time the Father’s employer decided not to immediately open the Shanghai office and offered him instead continuing employment based in Hong Kong from where he would continue to run his employer’s projects in China, and the family soon moved to a bigger apartment in Stanley after deciding to settle in that neighbourhood due to its pleasant environment, the open space, the proximity to the beaches and the expatriate community.

9.  After the family had settled in Hong Kong, the Father commenced regular travel throughout Asia for his work, while the Mother at one time worked for 6 months on a museum design competition in Hong Kong. In about mid-2006 the Father changed to his present employment with F and Associates which would also require him travelling from time to time to Dubai and elsewhere over various major projects of the firm. At the same time his income has almost doubled to the current amount of HK$105,000 per month.

10.  Despite the improved finance and lifestyle brought by the move to Hong Kong, the parties grew apart from each other over the years to the extent of virtually no physical relationship between them by around 2006. Matters finally came to a head when the Father learnt about the Mother having committed adultery with another man on one occasion in March 2007, and 2 months later on 12^th May 2007 he moved out of the matrimonial home in Stanley into a serviced apartment in Happy Valley.

11.  Thereafter the parties attempted to resolve matters through mediation with limited success resulting in an interim agreement on 9^th November 2007 to have joint custody of the boys with care and control to the Mother, and the Father was to have access to them during certain weekdays after school as well as staying over at his place during weekends and school holidays.

12.  In the agreement there were also certain interim financial arrangements and provisions for the family’s support including the Father paying HK$12,000 per month (which has since been increased to HK$15,000) for the living expenses of the Mother and the children, and also paying the rent of her apartment, the salary of her domestic helper, the children’s school fees, as well as her utility bills and various other expenses. Perhaps of relevancy too in the agreement was the Mother’s undertaking to remain in Hong Kong for a period of at least 12 months as per the lease of her apartment (Paginated Bundle 2 : 387 – 390).

13.  There was however no further mediation leading to any final agreement between the parties as the Mother subsequently failed to return to the mediation table, and instead on 26^th May 2008 she issued her petition for divorce in these proceedings based on the Father’s behaviour, in which she also sought joint custody of the boys with their sole care and control, and general ancillary relief for herself and the boys.

14.  The petition was eventually amended to one based on the parties’ separation for one year since May 2007 with the Father’s consent, and the decree nisi of divorce was then granted on 13^th August 2008 with the questions of custody and ancillary relief adjourned pending a social investigation report.

15.  However before the report was available, the Mother through her solicitors informed the Father on 12^th September 2008 of her wish to return to Australia with the boys at the beginning of January 2009 to coincide with their new school year there (Correspondence Bundle : 37), and when it was rejected by the Father, she took out the application now before me 3 weeks later on 3^rd October 2008.

16.  Shortly before the hearing of the Mother’s application, the Father took out a summons for joint care and control of the boys in case that the Mother might leave Hong Kong without the boys in the event that leave is refused of her application, of which however there is no major issue given her subsequent confirmation that she would not leave without the boys.

17.  The basis of the Mother’s application is mainly three-fold. First, Hong Kong was always a temporary arrangement and that with the breakdown of the marriage, she has found living in Hong Kong very unhappy in terms of finances, employment and life, and wants to return with the children to her homeland in Melbourne where both parties have extended families and roots. 

18.  Secondly, she wants to commence her post-graduate architecture thesis at Melbourne University, and to re-establish her architectural practice and develop her own career in Melbourne.  

19.  Thirdly, she wants the children to go to school in Melbourne and believes that they would be happier growing up in their homeland and within the Australian culture.

20.  The Father opposes the application on the basis that, first, the move to Hong Kong was long term to advance his prospects and to earn higher income for the family, and to that effect he has now established in Hong Kong.

21.  Secondly, the Mother’s plan ignores the economic realities as it is not possible for him to finance it, nor would it be feasible for him to relocate back to Australia given the current job market in Australia and that any job that he could find there would be at a significantly reduced salary and the family would be worse off financially.

22.  Thirdly, the current living environment for the boys in Hong Kong is already good and provides for all their needs, and as they need their father’s influence and guidance in particularly at this stage of their life, relocation would not be in their best interest.

23.  The Father also suggests that if there were to be joint care and control the Mother would have more freedom to spend time in Australia with her family and to pursue her own interests including her studies and career while remaining based in Hong Kong, which explains his last- minute summons for joint care and control of the boys, and which would be perceived as being far less traumatic for the boys than the suggested immediate relocation and goes some way to meeting the Mother’s perceived needs.

24.  The Social Investigation Report indicated that while the boys are expected to eventually return to their home country in Australia, they need their father and that they did not wish to leave him behind in Hong Kong, it therefore suggested that the removal plan be delayed to allow time for working out an agreement which would be acceptable to all parties.

25.  To that end the Father proposes that a move in 2013 would better fit in for the children’s education, that they will be older and more able to cope with the separation from their father, and that the parties will have the chance to better prepared to meet their increased expenditure.       

The Law

26.  I have been referred to a number of authorities during this case, all English ones which are no longer binding on our courts but are no doubt still regarded with respects, with the most recent and authoritative decision of their Court of Appeal in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052, where the applicable principles for relocation cases were effectively summarised by Dame Elizabeth Butler-Sloss P as follows :

‘[85]  In summary, I would suggest that the following consideration should be in the forefront of the mind of the 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 made 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….in favour of the applicant parent.

(c)  Reasonable proposals of the parent with a residential order wishing to live abroad carry great weight.

(d)  Consequently, the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to have 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.   

27.  Thorpe LJ in the same judgement gave the following guidance as to how to approach the task of the court in such an application :

‘[40] … To guard against the risk of too perfunctory as 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 a 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 diminish 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.’

28.  It would, however, be in my view also of assistance to go into the rationale of how Thorpe LJ came to propound the particular discipline after having carefully examined the current state of the law and demonstrated that relocation cases have been consistently decided upon the application of two propositions described by him as follows :

‘[26] … (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.’

29.  These propositions seem to have begun from the decision of the Court of Appeal in Poel v Poel [1970] 1 WLR 1469 when Sachs LJ, in emphasizing the importance of recognising and supporting the function of the primary carer, said (at 1473) :

‘When a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as my Lord has pointed out, produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results.’

30.  In the later case of Nash v Nash [1973] 2 All ER 704 Davies LJ said (at 706G) :

‘But I emphasise once more that when one parent has been given custody it is a very strong thing for the court to make an order which will prevent the following of a chosen career by the parent who has custody.’

31.  This approach was also followed in A v A (Child : Removal from Jurisdiction) (1980) 1 FLR 380 when 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.’

32.  In the case of Chamberlain v de la Mare (1983) 4 FLR 434, Ormrod LJ explained that the court in Poel had not weighed the interests of the adults against the interests of the children but rather had weighed the effect on the children of imposing unreasonable restraints on the adults and said at 443 :

‘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.’

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

‘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.’   

34.  His Lordship then summarised the authorities at paragraphs 349 – 350 :

‘ … the authorities and the law which dictate the hard and difficult decision which must be made once it is established that the custodial parent genuinely desires to emigrate and, in circumstances in which there is nothing adverse to be found in the conditions to be expected, those authorities are quite clear in the course that the court must take, whatever the hardship and distress that may result.’

35.  The authorities were similarly summarised by Kerr LJ in Tyler v Tyler [1989] 2 FLR 158 as follows (at 160 – 161) :

‘I also accept that this line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children.’

36.  Thorpe LJ found that these decisions clearly demonstrate that relocation cases have been consistently decided by the English courts over the last 30 years in accordance with the propositions which he had summarised in Payne (at 26) :

‘(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 dependant children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.’

37.  His Lordship then went on to make the following observation about this particular aspect of the family law (at 27) :

‘Few guidelines for the determination of individual cases, the facts of which are never replicated, have stood so long in our family law. Where guidelines can be formulated there are obvious benefits. The opportunity for practitioners to give clear and confident advice as to outcome helps to limit the volume of contested litigation. Of the cases that do proceed to a hearing clear guidance from this court simplifies the task of the trial judge and helps to limit the volume of appeals. The opportunity for this court to give guidance capable of general application is plainly circumscribed by the obvious consideration that any exercise of discretion is fact dependent and no two cases are identical. But in relocation cases there are a number of factors that are sufficiently commonplace to enhance the utility of guidelines. I instance :

(a)  the applicant is invariably the mother and the primary carer;

(b)  generally the motivation for the move arises out of her remarriage or her urge to return home; and

(c)   the father’s opposition is commonly founded on a resultant reduction in contact and influence.’

38.  While making these observations, Thorpe LJ nevertheless took pain to emphasize that the court’s approach has always been to apply child welfare as the paramount consideration, and to guard against the risk of too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare, he therefore suggested the discipline as a prelude to conclusion which I earlier referred to in this judgment above.   

39.  Henceforth with the assistance of these principles and guidance, which are clearly relied on by both parties in this case, I shall now consider the evidence accordingly, starting first with the Mother’s case.

The Mother’s Case

40.  The Mother’s evidence were first set out in details in her substantive affidavit of 2^nd October 2008 and supplemented by several shorter ones filed thereafter, as well as her oral testimony at the trial, can be distilled in the following after removing what I found to be irrelevant information.

41.  While the parties did a lot of travel it was agreed between them that Melbourne was their home where they would return to live, to be close to their families and friends, and to raise their children within the Australian culture. If however the right opportunity came up, they would still work overseas whilst the children were young and flexible with the early years of their schooling, but that they would return home to settle in Melbourne when the children were still at a young age.

42.  Their stay in Hong Kong was therefore only temporary, and when their marriage started to have difficulties which eventually led to their separation in May 2007, she decided to remain in Hong Kong for the time being so that the children would not have to experience the effects of the separation and relocation back to Australia all at the same time, and that she could properly plan their return to Melbourne rather than moving in an emotional haste.

43.  With the dissolution of their marriage, and with the elder boy T finishing his primary school soon, she believes it would be appropriate for her to return with the children to Australia in the summer of 2009, as it will allow the boys to settle in before starting their new school term.

44.  She proposes to live with the boys in a property owned by her parents at Sorrento in the Southern tip of Melbourne and some 105 km to Melbourne Central Business District. It is a 2-storey house with 6 bedrooms and a garden with a lot of outdoor area and a short walk to the beach, for which she expects to pay some rent to her parents but the amount of which will be flexible. It is a place where the boys have visited many times and very much enjoyed.

45.  She has already reserved a place for the boys at Sorrento Primary School which is a government school charging nominal fees only, and when it is time for T to commence his secondary education in January 2011, she proposes to move the family to one of the suburbs in inner city Melbourne to be close to Melbourne Grammar School where both boys have already been enrolled following their birth in Melbourne, while her parents who live in Brighton are only about 15 minutes away, and X in the meantime can finish his primary education at Middle Park Primary School.

46.  She suggests that it is also possible for her to then rent her parents’ 3-bedroom investment apartment which is only 5 minute walk to Melbourne Grammar upon the expiry of its current tenancy. Alternatively she can also purchase her own property.

47.  Both she and the Father are very close to their families which have always been a very supportive network for them and the children, and since their move to Hong Kong, the boys have spent their holidays back home in Melbourne almost every year, and often more than once a year.

48.  She intends to commence her post graduate architectural thesis at Melbourne University as soon as possible upon her return, for which she has already submitted her written proposal to the university, so as to be finished around 2011 when the boys start school with Melbourne Grammar, and also to resume architectural tutoring at the university on part-time basis, which is what she used to do from 1999 until 2002 when she gave it up to move to Hong Kong for the development of the Father’s career. It is something she enjoys doing but will also allow more stable and long term teaching and employment options at a university level, and at the same time fits in well with the boys’ schooling.

49.  She also intends to restart her private architectural practice in Melbourne once the boys are older and do not require her constant care and attention. As the Sorrento area is a very busy area for new homes and renovations, she hopes to be able to take on some local private projects, and to also act as a consultant to an environmental consulting group in Melbourne of her brother who is an engineer.

50.  It has been very difficult for her in Hong Kong, as she has lived a lot of the time alone with the children due to the Father’s overseas travel for his employment, and she has felt trapped here with a significant loss of freedom.

51.  Her main reason for moving to Hong Kong was to support and assist in furthering the Father’s career and to provide for the family’s stability, she therefore sacrificed the growth of her own career and the comfort of their lives in Melbourne. Now at the age of 39 years and with her marriage at an end, she sees no reason to remain in Hong Kong where she has no roots, no job and no family, and is feeling very unhappy and unsatisfied that she has not been able to establish a proper, stable and long term home base for the children. She therefore wants to be able to return home and create routines and memories for the children that they will continue to identify with and build upon into their adult life.

52.  If the Father wishes to remain in Hong Kong, she proposes to give him a greater share of the children’s Australian school holiday time, either by travelling to Melbourne to visit them including utilizing his frequent flyer points, or for the boys to travel to Hong Kong to meet him for overseas holidays which they have done in the past in unaccompanied flights, in addition to unrestricted contacts by telephone, e-mails and letters.

53.  It would be cheaper living in Melbourne than in Hong Kong where the family budget is already very tight and she has had to incur credit cards debts to meet her monthly living expenses. She estimates that the children’s and her monthly expenses in Melbourne to be about AUD$12,900/HK$64,500 including her estimated rent payable to her parents for their Sorrento house, which is some HK$18,000 less than their current expenses in Hong Kong, and should therefore provide a healthy savings of more than HK$210,000 per annum for the family in future.

The Father’s Case

54.  The Father’s evidence is set out in his main affidavit of 9^th December 2008 and of course his oral testimony at the trial, which can be distilled as follows after similarly removing the irrelevant information.

55.  It is not true that the parties intended their time in Hong Kong to be temporary, or that it was his plan to move back to Melbourne, as their ‘home’ was wherever they and the children were as a family unit, and there was no plan for the children to grow up within the Australian culture. In fact the parties believed that it would be better for their children to have maximum exposure to other cultures, as they themselves have spent most of their adult life living overseas, their move to Hong Kong was simply a continuity of their international lifestyle.

56.  He is not able to move back to Australia because of the work he is engaged in to develop his career and support the children, as the salary he receives in Hong Kong is far more than he could earn in Australia which is the current sole source of the financial support for the whole family, and that he would not be able to earn enough money in Australia to support 2 households, let alone to save for the boys’ university fees or for a property, in particularly in the current difficult economic climate in Melbourne.

57.  Furthermore, his professional focus has been on the emerging markets in Asia and the Middle East where he has specialised in a large scale of development not undertaken in Australia, which has provided him with opportunities to design projects in a variety of different countries which in turn ensures his employment is not linked to the strength of a single national economy and is therefore less susceptible to any economic downturn. As a result the family has benefited financially from living in Hong Kong and the children are materially affluent and not wanting financially. It would simply not be possible for him to engage in such international work from Australia, or to allow the children to enjoy that kind of financial security in Australia. 

58.  The children have lived most of their lives in Hong Kong and have therefore well established their status quo here. They attend an excellent school, have many friends here, and have benefited from the good lifestyle and culture that Hong Kong provides, hence their well-being will be best served by their remaining in Hong Kong and having constant and equal access to both their parents.

59.  Hong Kong would also provide the Mother with the best opportunity to find work, with a strong labour market for architects who can service a variety of different economics, while she would be aided in finding work here as she is supported by a full-time domestic helper which would not be available to her in Australia.

60.  On the contrary, moving to Sorrento would be an enormous contrast in lifestyle and additional stresses for the boys to adapt to at a time when their parents are undergoing a divorce, as Sorrento is a semi-rural location some one and a half hour drive from central Melbourne and would just be a holiday place to the boys and not a suitable place for them to live on a permanent basis.

61.  Furthermore, Sorrento Primary School serves a very small semi-rural community with a predominantly while Anglo-Saxon faculty and student body, and would certainly be a backward step in the development of the boys who have grown up in an international context in one of the world’s major cities in Hong Kong where the boys will be better served for their secondary education, such as South Island School where they will ordinarily proceed to attend as it has an international faculty and student body and presents the boys with a tremendous opportunity to grow and develop within a global community.

62.  Worst of all, the Mother’s relocation plan would require moving home again after a year and a half from Sorrento to Melbourne, which means the boys will have to adjust again not only to another new home and environment but also another new school, which certainly cannot be said to be in their best interest, hence his proposal for them to remain in a stable and secured environment in Hong Kong until 2013 when the younger boy X is due to commence secondary school at which time it would be appropriate to re-consider their relocation plan.

63.  I shall next consider the evidence in my search for the answers to the questions posed by Thorpe LJ in his suggested discipline above.

Is the Mother’s Application Genuine?

64.  I have no difficulty finding that her application is genuine in that it is not motivated by some selfish desire to exclude the Father from the children’s lives, as has been rightly accepted by his counsel Mr. Poll in the trial. There have never been any difficulties as to the Father’s access or contact to the boys since the parties’ separation, and with the marriage coming to an end, it is in my judgment only normal and natural for the Mother to want to go home in Australia and to be near to her family, as she said in her supportive affidavit (PB 2 : 361) :

‘I am very close to my family and I miss them terribly and particularly now that my marriage has broken down, I am in desperate need of my family’s love and support and having them physically proximate to me. Since separation there has been a high level of hostility between (the Father) and me and I find it difficult to remain isolated from my family and lifelong friends, and so far away from their support.’ 

65.  Similarly and again rightly not seriously challenged by the Father, I agree it is reasonable and appropriate of the Mother to want to pursue her post graduate studies at Melbourne University and to re-start and develop her career in her hometown in Melbourne where her friends and connections are. She might of course be able to accomplish the same in Hong Kong as suggested by the Father, but given her past connections with Melbourne University, which is her alma mater after all and where she used to work as an architectural tutor, I am unable to see why she should not be allowed to make her own choice as to her career. 

Is Her Application Realistic?

66.  In relocation to home country, as is this case, it has been held that the bar as to practicalities which an applicant has to jump would be set relatively low, as Thorpe LJ said in Re F & H (Children : relocation) [2008] 2 FLR 1667 (at 9) :

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

67.     In her main 65 pages affidavit in support of her application, with even more lengthy supportive documents exhibited thereto, the Mother has set out in impressive details her relocation plan to her home in Australia including future accommodation for the family, schooling and activities for the boys, supports of their extended families as well as for her employment and career, which I have found very helpful indeed.  

68.  I do not think it is seriously challenged by the Father in terms of research or investigation in support of the Mother’s plan, given the amount of information as to accommodation, schooling and other matters relevant to the future arrangement and well-being of the children in Australia. His main objection is rather on the basis that the current family finances would not make it work, that it simply could not be afforded.

69.  He has prepared, meticulously one has to admit, a spreadsheet showing what he claims to be the financial impracticalities of the relocation by showing 7 different scenarios ranging from the present whereby the family just breaks even through to what it would be like if he stayed here and the family went to Australia with or without his visiting access flights, and finally if they all went to Australia (CB : 126, “R-1 & R-2”).

70.  The spreadsheet, which was based on the parties’ own figures of expenses listed in their respective Financial Statement (Form E) as well as the Mother’s projected future expenses in Australia (PB 3 : 513-516), indeed shows a serious monthly deficit for all the scenarios in Australia including the more immediate relevant Scenario 3 with the Father remains in Hong Kong and the Mother and the boys in Australia, from HK$47,391/AUD$8,858 for Scenario 3A where the Father has access flights to visit the boys who are to attend state schools in 2009, rising to HK$54,972/AUD$10,275 in 2011 with the elder boy attending private secondary school in Scenario 3B, further increasing to HK$62,552/AUD$11,692 in 2013 with both boys in private secondary school in Scenario 3C, and that even in the least expensive Scenario 3D with him cutting off all his access flights to the boys, there would still be a monthly deficit of HK$32,826/AUD$6,136, which he says is simply untenable for the family at his present monthly income of HK$105,000 which is already at the top range for his position in his firm.

71.  The Mother however argues that the family is currently already running at a monthly deficit, with her having to incur credit cards debts to meet her expenses, since the Father’s current maintenance for her and the boys was based on the figures put forward at the mediation back in November 2007 rather than her more current Form E, and that he had admittedly been using his previous bonus to meet the family budget.  

72.  Furthermore, Mr. Egerton has pointed out on her behalf that the Father’s calculations for Scenario 3, and Scenario 4 as well, were in fact on the basis of her and the boys living in the more expensive inner-Melbourne rather than Sorrento, as she has proposed for the first years until 2011 which would be lower, in particularly for the rent of her parents’ property in Sorrento with which they would be flexible.

73.  Similarly, it is argued that the figures used by the Father for the boys’ education expenses for Scenarios 3 and 4 were for the more expensive Melbourne Grammar School rather than Sorrento Primary School as well as the higher housing expenses in inner Melbourne rather than Sorrento, which is not intended to take place until 2011.

74.  Mr. Egerton submits that in any event the parties’ expenses in Hong Kong would also increase later this year when the elder boy T moves to year 7 at South Island School at increased school fees of HK$89,250 per annum, and with no prospect of any bonus from his employer for 2009, the financial picture of the family in Hong Kong is certainly not as optimistic as painted by the Father.

75.  Whether the Mother and the boys are to remain in Hong Kong or to move to Australia, there is no doubt in my mind that the family budget for them and for the Father in Hong Kong will be tight, but with the boys attending state school at minimum charges in Sorrento until 2011, and certainly with cheaper costs in Sorrento and flexible rental expenses for their accommodation, and with the generally lower costs of living in Melbourne than in Hong Kong as evidenced by the Mercer’s 2008 Costs of Living Survey (“P-1”), to which the Mother will likely be able to subsidize as a part-time tutor, I do not agree that her plan is financially unrealistic or impractical at all.

76.  While it may appear that the Mother’s request for AUD$12,901/HKS64,505 per month as maintenance for her and the boys in Australia is beyond the Father’s current means after taking into account of his own expenses in Hong Kong and his tax liability, and in particularly with the rising Australian dollar which has risen quite considerably since her application, it is also true that, as pointed out by Mr. Egerton, his expenses in fact mirrored hers notwithstanding they were calculated on the basis that the boys are living with her for the majority of the time as a household of 3, while the Father would in effect be in a household of essentially only himself except perhaps for the 2-3 weeks each year during the boys’ visit, in which case it would make good financial sense for him to move to a smaller apartment to save on his accommodation expenses.

77.  With her own rental expenses being flexible, something which the Mother has repeatedly stress that her parents would be keen to assist, I agree that she should do her part to trim on her own expenses, in particularly if she wants to make her plan work, and with income of her own as a part-time tutor, I believe she should be able to manage with a lowered figure of say AUD9,500/HK$58,900 (at the current exchange rate of A$1 : HK$6.2) per month, which would still leave sufficient balance for the Father’s own reasonable needs. As I have said, the budget for both households for the time being will be tight, but not impractical or unaffordable as suggested by the Father, and will no doubt improve once the Mother starts to work and re-establish her career, of which I am confident given her professional background, experience and ability.       

The Father’s Opposition

78.  I have equally no doubt that the Father’s opposition is motivated by his genuine concern for the future of the boys’ welfare, and if there is any ulterior motive, it cannot be anything other than his desire to be with them in Hong Kong for as long as possible.

79.  He believes that as they are at a key developmental stage when they need a male role model on which to build their future approaches to life where self-esteem, security and peer pressure are important factors, in particularly when they are old enough to have a view what is best for them and what they want in life, and which they have made clear to the social work officer that they do not want to leave their father.

80.  The officer Ms Chan in her evidence confirmed the children’s desire is for their family of 4 to be living in the same country, although the focus of her assessment in her report was on the parent-child relationship and care arrangement, of which she referred to the strengths of each parent and the complimentary nature of their relationship with the children, and that she has no doubt that both parents are well able to look after their children.

81.  While she did consider that the Mother should stay in Hong Kong to keep the family together, as she believed “most important is to have the children meeting both parents”, Ms Chan admitted that she did not know all the legal principles on relocation and looked mainly at the children’s welfare, and accepted that the Father and the children had a close bond and such bond would continue if they went to Australia, as she had confidence in the Mother and understood her wish to return to Australia, and that her contentment as the primary carer was important. She also agreed that the Mother’s proposals as to the Father’s access in Australia were constructive.  

82.  While there is no question of the Father’s close relationship with his sons, indeed a very close one from what I can observe from the photos of their many activities together at various stages of the boys’ lives, no doubt aided and abated by his own sunny temperament so apparent when he proudly described his involvements in his sons’ lives, and while it would be very important to consider the effect upon the child of the denial of contact with the other parent as reminded by Dame Elizabeth Butler-Sloss P in Payne, it is only natural and normal for children not wishing to leave either of their parents, which cannot by itself be the determining factor to refuse or oppose the application, otherwise there would be no or very few successful relocation applications.

83.  As agreed by both parties and the social work officer, both children are bright and well-adjusted notwithstanding the divorce of their parents, no doubt to the credits of the parties, and with the Mother’s proposed access and contact arrangements put in place including those with the paternal family also in Melbourne, I am convinced that they will be able to maintain their close relationship with their father without difficulty given their strong bonding with each other.

84.  The same can be said of the Father’s concern over the other disadvantages for the boys’ moving to Melbourne such as loss of their friends and familiar environment, all of which I am confident they will be able to properly adjust and cope with the assistance and support of their parents. 

Impact of Refusal on the Mother

85.  The Mother described her unhappiness in Hong Kong in her main affidavit (PB 2 : 360 - 361) as follows :

’89.  Being in Hong Kong has been very difficult for me. During the marriage, and even more so since the separation, as I have lived a lot of our time here in Hong Kong alone with the children, whilst (the Father) was travelling overseas for his employment. We have not made Hong Kong our home as we have always viewed our time here as limited, and intended to return home to Melbourne.

90.  There has been many times, within and out of the marriage, where I have felt trapped in Hong Kong and felt a significant loss of freedom. I have not had, and will not have, the same experience or freedoms in Hong Kong that (the Father) has had given his extensive travel and the fact he has lived outside of Hong Kong for a lot of the time since arriving here in October 2002. He also did not have the care of, full availability to and in-depth involvement in, the children’s lives, which would have otherwise hindered the development of his career.

91.  I am now 38 years old and my marriage is at an end. My main reason for moving to Hong Kong was to support and assist in furthering (the Father)’s career, and to provide for the family’s stability. I also wanted the children to have regular contact with (the Father) and for the family to remain intact and therefore sacrificed the growth of my career and the comfort of our lives in Melbourne to move to Hong Kong with the children to be with (the Father). Now that our marriage has come to an end, I have no reason to remain in Hong Kong. I have no roots, no job and no family here. I am feeling very unhappy and unsatisfied that I have not been able to establish a proper, stable and long term home base for the children. I want to be able to return home and create routines and memories for the children that they will continue to identity with and build upon into their adult life.’ 

86.  She then expressed her concern for her own well being and the children’s if she is unable to return to Australia in paragraph 93 :

’93. I am concerned for my own well being and consequently the children’s well being if I am not able to return home to Australia to be near to my family for love and support. I am concerned that if I am unsuccessful in this application, I will be forced to stay under duress in Hong Kong as I will not leave without them. If this happens, I fear it will cause unbearable and unsustainable stress for me to bear and I do not know if I will have the strength to shield the children from this. Since entering the Mediation Agreement on 9 November 2007, I have worked towards the goal of returning to Australia in or around November 2008. Despite my strong desire to return earlier, I have refrained and honoured the agreement. However, if my return date to Australia is now pushed out further, I am concerned that the effort required for me to manage my emotions and stress levels will ultimately damage my health and impact negatively on my ability to continue to care appropriately for the children in a city which no longer means anything to me, and to which I have little emotional or professional connection and no prospects. In contrast, my prospects in Melbourne, will readily enable me to offer T and X a much more stable environment in which we could all flourish.’  

87.  Any notion that the Mother might have exaggerated in her affidavit her unhappiness and the impact of refusal of her application would have been readily dispelled once she started her testimony at the hearing when all the emotions of her frustrations, anguish and distress were there for all to see, which on a few occasions had to be temporarily halted when she broke down in tears during cross-examination, particularly so when she described herself and the children as “drowning” in Hong Kong or when she appeared totally dejected after realising their only family savings have been spent on the Father’s legal costs in the litigation instead of the boys’ future education funds. I do not doubt the genuineness or severity of such emotions.   

88.  It is unfortunate that the Father did not appear to have properly or sufficiently addressed the Mother’s unhappiness in his proposal for the boys to remain in Hong Kong given her unwillingness to leave without them, and seemed to have played down the impact of refusal of her application. It would be helpful to consider the observation of Thorpe LJ in Payne on this issue :

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

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

89.  Here is a mother who has been the primary carer of 2 small boys throughout the marriage, now not only needs to return home to be with her family for support, but also wants to work and to develop her career which she has put on hold for the sake of the Father’s career and the family, and as she said, with her marriage now at an end and at 39 years old, she just wants to start a new life at home in Australia, and given how unhappy she has been in Hong Kong, if she is forced to remain here even for just a few more years, the likelihood is that the frustrations and bitterness which would no doubt in my mind result from the refusal of the application would be bound to overflow onto the children, a situation certainly this father would not find acceptable or bearable.

90.  While the Mother would no doubt do her best to control her emotions for the sake of her children, I am certain that her frustrations and unhappiness of the refusal of her application would eventually and inevitably impact on the boys negatively. As it was said in Re F & H, an unhappy mother often means an unhappy child, and I have to ask myself what is best for these 2 small boys bearing in mind that there are thousands of miles between the two homes, the cost of travel, the close relationship between father and sons, and the loss of the regular weekly contact that the boys are enjoying with their father. My view is clear, I am convinced that the Mother has made reasonable and proper plans to bring her sons to her home in Australia which she knows well and only left less than 7 years ago, and where her sons will be happy and flourish.

91.  It is submitted for the Father that it would seem grossly unfair for him to be forced to remain here working to support his family whilst the Mother is free to ‘go off’ and pursue her dreams. While I sympathize and understand his difficulty in reconciling the concept of such a separation being in the paramount interests of the children, I do not agree there is anything unfair of the Mother pursuing her dreams which she has put on hold to enable him to pursue his all these years, but the central and paramount issue is that her genuinely desired and well thought-out plan to relocate to Australia is in my considered judgment not incompatible with the long-term interests of the children.       

Conclusion

92.  For all these reasons, I would grant leave to the Mother to remove the children permanently out of the jurisdiction of Hong Kong to go to Australia upon the completion of their current school term, but not before they have first spent their summer vacation with their father. Thereafter he shall have the type of access as proposed by the Mother in her application. I will also hold the parties to their promise to explain the situation to their sons together so as to help them to understand and overcome the sadness and difficulty arising from the move, and hopefully in the process heal themselves too.

93.  Consequently the Father’s application for joint care and control of the children is refused as it would clearly not be appropriate or practical to do so with the children living in Australia.     

94.  On the question of costs, I propose not to make any order against any party given the nature of the application involving the welfare of 2 small children, save that the Mother’s own costs to be taxed in accordance with the Legal Aid Regulations. This is an order nisi to be made absolute at the expiration of 14 days.

95.  I shall next hear the parties on the question of final ancillary relief which involves not only the future periodical maintenance for the Mother and the children in Australia which I have briefly dealt with above, but also possible provisions for their removal costs or setup expenses. Pending the final resolution thereof, I propose that interim provision along the line which I have suggested above be made for the maintenance of the Mother and the children upon their relocation to Australia.   

96.  Last but not least, I would like to express my gratitude to counsel for both parties for conducting the trial with the utmost civility and sensitivity of what was no doubt a highly emotive and difficult case.