JMFC also known as C, J v. DJH

FCMC 11755 / 2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11755 OF 2015

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J U D G M E N T
(Relocation, care and control/joint care and control/shared care/access)

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Introduction

1.  There are several applications currently before the court that now require adjudication. The first in time is the respondent father’s summons dated the 1 March 2016 for leave to permanently remove the two children of the family out of the jurisdiction of Hong Kong in order to relocate with them to Perth, Australia. The children, both girls, are now aged 13 and 10 years old respectively. Initially the father wished to relocate by no later than December 2016 and said this in support of his application:

(a)   The Respondent does not believe he can sustain himself in Hong Kong with reasonable health and wellbeing and intends to terminate his contract with AB and return to Perth as soon as possible, hopefully after this application is determined but in any case no later than 23 December 2016 or earlier if his own health and welfare needs dictate an earlier return;

(b)   the Petitioner has stated that she does not agree to relocation of herself and the children to Australia and indicated that she intends to remain in Hong Kong;

(c)   the Petitioner has no financial means to sustain the children in Hong Kong in the absence of the Respondent’s Hong Kong based salary;

(d)   the Respondent believes that an orderly and timely repatriation of the children is essential due to the deteriorating financial position of the family in Hong Kong, risk of interruption to the Respondent’s present income in Hong Kong and the probable reduction in the Respondent’s future income on his return to Australia;

(e)   the family does not own any assets or property in Hong Kong or have relatives living permanently in Hong Kong who are well known to the family and likely to provide the Petitioner with practical assistance;

(f)   the children are citizens of Australia and lived in Perth prior to leaving Australia in October 2012 for Japan (where the Respondent was then working) before coming to Hong Kong on 24 December 2012;

(g)   the children do not have independent rights of abode in Hong Kong and ought to live and be educated in their own country if possible, particularly in their later years of high school.

This essentially remained his position at trial. In addition, he also seeks an order for joint custody and joint care and control on a more or less 50:50 basis and he asks that similarly all school holidays be shared equally. He is hopeful that the mother will also move to Perth, if his application is successful, so that this proposal can become a realistic possibility.   

2.  The mother’s primary position is that she wishes to remain in Hong Kong with the children. Initially she suggested remaining in Hong Kong until the elder child finished High School. This later changed and she now proposes remaining in Hong Kong until the elder child A finishes year 10 – i.e. until the end of June 2019. In other words, she now wishes to remain in Hong Kong for another two academic years. In the alternative, and in the event that leave is given for the children to relocate to Australia sooner rather than later, she proposes relocating to Sydney as opposed to Perth (see the mother’s summons dated the 23 January 2017 in that respect). In addition, she asks for an order for joint custody, with care and control to herself and defined access to the father. Consequently, on the face of the papers, the parties are in agreement that there shall be an order for joint custody. They are not in agreement on anything else.

3.  In this case the father wishes to relocate, notwithstanding the fact that he is not at present the primary caretaking parent, because simply put, he says that the parties cannot afford to remain in Hong Kong longer term. He says that historically he was very involved in the children’s upbringing and that he was “a” caretaking parent, if not “the” caretaking parent. In any event he now wishes to relocate to Perth, Australia, which is where he was from originally, and where the parties lived immediately prior to relocating to Hong Kong (save for a short period in Japan). Although he is currently working for a well-known airline in Hong Kong, he says that he is lonely and depressed and that his health is suffering. He is also concerned, because on his case it is not possible for the parties to make ends meet financially in Hong Kong even if he renewed his current contract of employment. At the time of trial that was not his intention. His contract of employment was due to come to an end in August 2017. (N.B On the 8 September 2017 the court received a letter from the mother’s solicitors confirming, that despite the evidence given by the father during the trial, that he had renewed his contract of employment. This will be discussed in more detail below.) 

What then are the main issues to be considered?

4.  The main issues can be summarized as follows:

a)   Should permission be given for the children to leave Hong Kong in order to relocate to Australia?

b)   If so when should that relocation take place?

c)   Should the children relocate to Perth or Sydney?

d)   How should the children’s time be allocated between their parents once the relocation issue has been determined?

e)   What orders should be made for care and control/joint care and control/shared care/access?

Background to the marriage

5.  By all accounts the parties had a fairly difficult marriage which was marred by the mother’s health problems and the father’s frequent change of jobs, which in turn led to the family moving, sometimes internationally, on a fairly regular basis.

6.  In summary, the mother is Australian Chinese. She was born in Hong Kong but emigrated to Australia with her family when she was three years old. She is an Australian citizen, but she also holds Hong Kong permanent residence. The father for his part is also an Australian citizen. He does not have permanent residency and his dependant’s visa is due to expire on the 31 January 2018. The parties met in 1997 in Sydney when they were both working for an Australian airline, the husband as a pilot and the mother as a flight attendant. The parties cohabited from about 1998 and married on the XX March 2000 in Sydney; the eldest child A was born on the XX January 2004, followed by the second child, I on the XX May 2007. Initially the parties lived in Sydney, which is where the mother’s family was based. They moved to Perth in February 2007, which is where the father was from originally. The father’s maiden family lived in Perth at that time. The majority of the mother’s immediate family continue to live in Sydney and likewise the father’s immediate family continue to live in Perth.  

7.  It does not seem to be disputed that the mother has had some significant health problems during the course of the marriage, including at least two major depressive episodes and other mental health issues. In addition, she also had some physical complaints including chronic fatigue and fibromyalgia.

8.  There is a dispute between the parties concerning the role of each of them during the course of the marriage. It is the father’s case that because of the mother’s health problems that she was unable to function fully and that in reality he was responsible for much of the child care and domestic chores, notwithstanding the fact that he was also working full time. He says that he was assisted in this by the paternal grandmother. This is disputed by the mother who maintains that historically she was the primary caretaking parent and a housewife. Until the mother recently found a job, it does not appear to be disputed that she did not work during the course of the marriage save for a short period of time from November 2011 to April 2012 when the father was in between jobs. It is the wife’s case that the parties historically divided their responsibilities along traditional lines. This is not agreed by the father who insists that in reality he was the person who was responsible for all of the cooking, much of the grocery shopping and a great deal of the child care including things like assistance with homework etc. He says that he was also responsible for managing issues to do with the children’s health. 

9.  The other difficulty relates to the father’s work history, which led to the parties moving frequently and on occasion internationally. There is much dispute surrounding the reasons for each move, but in essence it is the father’s case that each move was made with the best interests of the children and the family in mind. The mother disputes this. What is not in dispute however is that the family have infact had a number of significant moves. In 2007 they moved from Sydney to Perth in order for the husband to take up a new post with a corporate jet company. A would have been about three years old at the time; I was born in Perth a few months after the family relocated there. In 2008 he started to fly freight for the original airline that both he and the wife had worked for. The mother says that this was not a particularly happy time for her and it seems that she had a significant depressive episode in or about September 2009 during which she was admitted to a mental health care facility for approximately 27 days. In May 2012 the father joined another airline in Tokyo, Japan where he secured a further position as a pilot. In October 2012 the mother packed up their home in Perth and moved with the children to Tokyo to be with the father. A would have been 8 and I, 5 years old at the time. Unfortunately, this job did not turn out to be what the father had expected both in terms of its location and the frequency and duration of the flights and it was then agreed that the mother and children should relocate to Hong Kong, whilst he remain in Japan in the short term, the idea being that this would be an easier commute than from Japan to Perth. The father says that the mother was simply not ready to return to Perth at that time. The parties arrived in Hong Kong on the 24 December 2012. Unfortunately, they were unable to initially find school places at such short notice for the children; in September 2013 the children were eventually enrolled in an international school in Hong Kong. In the intervening period they attended classes at a tutorial centre. It is the mother’s case that the father was frequently absent during this period and that he would often only visit her and the children once a month. Again this is disputed by the father who maintains that this job allowed him generous time off and that this generally meant that he could be home for 12 consecutive days at a time. In any event on the 13 August 2014 the father began working as a Flight Simulator Instructor for a well-known airline in Hong Kong. He has been based in Hong Kong since then.

10.  Unfortunately, however it seems that the marriage remained under a great deal of strain. On the 22 May 2015 the parties separated and the father moved out of the matrimonial home. On the 9 September 2015 the mother filed for divorce. This was a shock to the father who had been under the impression that this was a cooling off period only and that the parties were going to try to settle their differences through counselling. This however was not to be and on the 19 February 2016 the decree nisi was pronounced.   

11.  Unfortunately, the parties have been in and out of court on a fairly regular basis with respect to the children ever since the petition was issued. There have also been several incidents which have placed the children in an untenable position, but which were entirely avoidable had the parties approached the situation differently. In particular, there was an incident during the Easter holidays in 2016 which resulted in the eldest child A being kept in hospital for approximately 7 days whilst the Social Welfare Department investigated a complaint made by the father against the mother of child neglect. In essence the father’s complaint centred on the fact that the mother had not obtained antibiotics for A. He was firmly of the view that the child needed antibiotics and that her health was being compromised by the mother. He also refused to return A to the mother at the end of the access period. At the end of the day however the father’s complaint was not substantiated; there was no finding at the Multi-Disciplinary Case Conference that the mother had been neglectful of the children in this regard or generally. I do not have any doubt at all though that this episode was both traumatic and stressful for both children, but particularly for A. On the 14 April 2016 I subsequently made an order that interim care and control of the children should vest in the mother. I further ordered, inter alia, that the father should have defined access to the children each fortnight from Friday after school until Monday morning. This was at his request at the time as he was concerned that seeing the girls for shorter periods of time was proving difficult for them and indeed for him.

12.  Generally speaking, it seems that the children’s health and the appropriate way to deal with their health issues has been a constant source of friction between the parties. In general, it is the father’s case that the mother does not take these issues seriously enough and that she has not followed up with medical appointments either in a timely manner or at all. The mother disagrees and maintains that the father over reacts. She is of the view that there is nothing seriously wrong with the children and she prefers to deal with their issues with homeopathic remedies in any event.

13.  It is not though disputed that the children do infact have a number of different health issues. It is accepted that A in particular has some health problems that require monitoring. Reference is made in the papers to hypermobile joint syndrome, which both children have, plus daytime enuresis, allergies including hay fever and dust mite allergy and eyesight problems. Historically A was also diagnosed with a central auditory processing disorder and an eye processing disorder. In addition, both girls previously had some food intolerances including gluten and lactose. These issues are not new. The question though is whether or not each parent’s responses to them is appropriate in the circumstances and further whether or not it is likely that an order for joint custody can work where there is no basis for agreement on the monitoring of these health issues going forward.

14.  Special reference should also be made to A’s specific educational needs, apart from any possible health issues. A has been assessed as having a high IQ in the gifted range (intellectually gifted), but at the same time she has some learning difficulties which need to be managed appropriately. 

15.  There have also been significant issues with respect to access during the course of the litigation. It is the father’s case that the mother does not encourage access as she should and that she may be attempting to alienate the children from him. The mother for her part maintains that there are occasions when the children do not wish to see their father and she maintains that they should not be forced. She seems to be concerned that the father may be intent on taking the children away from her. There have also been issues concerning telephone calls by the mother to the children during the limited time that the father has had time with the children. There have been a number of different orders, the last one being the order of 29 August 2016. This states that the father shall have access on Mondays and Wednesdays before school and on every Wednesday evening after school until 8:30 pm. Alternate weekend access was also varied so that the children returned to their mother on Sunday evenings. Unfortunately, however, the level of conflict between the parties remains very high. The father complained in particular of the mother arranging extracurricular activities during his access time, without his prior agreement. Attempts to involve parental coordinators to assist has not been very fruitful. Further, A in particular has started to “vote with her feet” and has refused on occasion to attend access with the father, which in turn has only served to inflame the situation further.  

The law   

16.  Counsel for the father very helpfully referred the court to the Court of Appeal decision in England and Wales, Re: F (Relocation) [2013] 1 FLR 645 (CA), which dealt, inter alia with the appropriate way to approach an application to relocate by a non-caretaking parent. In that case it was held inter alia that:

(2)   … The judge, in his reasoning, had asked himself if this had been a case to which Payne v Payne applied.  He then proceeded to take into account the guidelines from that case.  Having considered the discipline outlined by Thorpe LJ, he then turned to an investigation and evaluation of the child’s best interests having regard to the welfare checklist and came to his overall conclusion (see para [48]).

(3)   Although this was not a case where the application was being made by the primary carer, the judge was entitled to have regard to Thorpe LJ’s ‘discipline’ as set out at para [40] of Payne v Payne which is not confined to cases in which the applicant is the primary carer.  He correctly appreciated that the case had to be decided by reference to the child’s best interests and that is what he did (see paras [45], [49]).

(4)   The judge carefully took into account the child’s current circumstances in this country, the quality of his father’s care of him and the father’s own plans, wishes and feelings.  There was nothing which began to suggest that he started off with any presumption in favour of the mother’s claim.  He acknowledged that the father was the primary carer and recognised the importance the father was attaching to the argument based upon the status quo.  He gave appropriate weight to both points, whilst correctly appreciating that neither could be decisive.  There was no sustainable basis for any complaint that the judge either took into account irrelevant factors or failed to take into account any relevant factors.  Nor was there any sustainable basis for a complaint that he erred either in the weight he chose to attach to the various factors he had to take into account or in his evaluative decision as to where the ultimate balance fell.  That being so there was no proper basis upon which the Court of Appeal could intervene (see para [52]).

(5)   The present case was a good example of what could happen if appropriate heed was not paid to the warning given by Black LJ in K v K (Relocation: Shared Care Arrangement) that cases should not become bogged down with arguments about whether this was ‘a Payne case’ or ‘a Re Y case’.  In the event the judge did not fall into the error of getting bogged down with arguments about whether the time spent with each parent made it a particular type of case.  However, the prominence given in his judgment to ‘the Payne guidelines’, no doubt reflecting the prominence they had been given in the course of argument, led to the father being given the permission to appeal which otherwise, it may be, would have been refused (see para [59]).

17.  This is very helpful. I agree that, as in Re: F, it must be appropriate to take into account the guidance provided by Thorpe LJ in the Payne guidelines, when evaluating what is in the best interests of the children, even when as here the application to relocate is arguably made by a non- caretaking parent. For the avoidance of doubt the Payne protocol states 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:

i.   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.

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

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

iv.   The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.

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.”

18.  As indicated to the parties in the Children’s Dispute Resolution, when faced with a similar situation in the past I have approached the matter as follows: (see X also known as XX v Y (FCMC 15416/2010 unreported, 25 January 2013): 

The protocol identified by Lord Justice Thorpe in Payne and confirmed as the appropriate approach in Hong Kong in SMM v TWM (Child Relocation) [2010] HKLRD 37, will continue to be adopted with some modifications. The same questions will be raised but will be asked of both parents. Each parent’s stance will then be compared when considering overall what is in the best interests of each individual child.

I intend to adopt the same approach here.

The questions posed then are as follows:

a) Is the father’s application to relocate to Perth, Australia genuine in the sense that it is not motivated by some selfish desire to exclude the mother from the children’s life? Is the father’s application realistic i.e. are his proposals practical and both well researched and investigated?

I will then ask the same questions of the mother with respect to her desire to remain in Hong Kong or in the alternative relocate to Sydney, Australia. It may be that either sides application will fail at that point. If not, I will then ask the following questions:

b) Is the mother’s opposition to the father’s application motivated by genuine concern for the future of the children’s welfare or it is driven by some ulterior motive? What would be the extent of the detriment to the mother and her future relationship with the children were the application granted?  To what extent would that be offset by extension of the children’s relationships with the paternal family?

Again I will ask the same question of the father. Lastly I will ask:

c)  What would be the impact on either the father or the mother if their realistic proposals are refused?

d) And what would be in the best interests of the children overall.

19.  In considering the best interests of the children overall the court will also take into account the Social Welfare Reports, the Clinical Psychologists Report and the reports filed on the parties own mental health. After a decision has been made with respect to the relocation, consideration will then be given to the practicalities that arise out of that decision and how the children’s time shall be divided between their parents going forward. An order will then be made that most closely reflects the practical arrangements identified.

The father’s case

20.  As indicated above it is the father’s case that he has always been a “hands on parent”, in the main because the mother often could not cope with the reality of running a household given her health issues. He says that he was a homemaker and the chief cook in the house, that the mother did not generally cook and that he was also responsible for monitoring the children’s medical and educational issues. He says that he only took jobs that allowed him significant time off so that he was able to contribute fully to the parties’ domestic life. When he was not able to assist personally he relied on his mother, the paternal grandmother and to a lesser extent his sister and other family members to help.

21.  The father wishes to relocate back to Perth which is where the parties lived prior to coming to Hong Kong and where he is from originally. Thus he proposes “going home”. He says that the children are very familiar with Perth and that they have friends and good support there. In particular, he will have the assistance of his family going forward. The father is confident that he will be able to get a job in Perth preferably as a pilot and that his health will improve once he has relocated. The father currently has some health issues of his own including sleep apnoea, asthma and breathing problems plus a bad back. He has also been hospitalised at least once for a severe bout of pneumonia. He says that he has been very stressed and that the present situation is not sustainable longer term. In particular, he says that the parties cannot afford to remain in Hong Kong and that their outgoings already excess their income, notwithstanding the fact that the mother has returned to work and she has also moved into a cheaper apartment with the girls. He is very concerned about the parties’ financial stability longer term.

The father’s proposals

22.  The father’s Statement of proposals at trial are as follows:

Custody

1.   The Parties do have joint custody of the Children of the family namely AH, a girl born on XX^th January 2004 (“A”) and IH, a girl born on XX^th May 2007 (“I”) (collectively called the “Children”) as recommended by both the Clinical Psychologist and the Social Welfare Officer in their reports dated 22^nd May 2017 and 26^th May 2017 respectively.

Care and control

2.   The Petitioner and the Respondent do have joint care and control of the Children.

Relocation

3.   Leave be granted to the Respondent to remove the Children out of the jurisdiction of HKSAR permanently to Perth, Australia by end of September this year.

Access

4.   There will be access to the parents with the following arrangement:-

(a)   During school term time, the Father will have the Children from after school on every Monday until the following Wednesday, and the Mother will have the Children from after school on every Wednesday until the following Friday.  The Mother and the Father will have the Children on an alternating basis from after school on Friday until the following Monday.  The parent with access shall be responsible for all the arrangements for the Children from after school on the first day of access until after school on the last day of access i.e. the handover to the other parent occurs at the end of the school day; and

(b)   During long school holidays except for the December holiday, they will split each of the long school holidays into two equal halves and be shared by the parents equally on a rotational basis.  One parent will take the first half of each of the school holidays this year and the other parent is to take the second half.  The following year the parent who has the first half the previous year will take the second half and vice versa, so on and so forth.

(c)   During the December long school holiday, they will split the holiday into two equal halves and be shared by the parents equally on a rotational basis.  One parent will take the half of the school holiday which includes Christmas Day this year and the other parent is to take the other half.  The following year the parent who had Christmas day the previous year will take the half without Christmas day and vice versa, so on and so forth.  In the event that the equal split of the holiday falls on Christmas Day, the changeover shall be on Boxing Day and the parent due to have Christmas Day shall have the first half of the December holiday.

(d)   During Tuesdays, Thursdays and Sundays, the parent who is not with the Children shall have access to them via FaceTime / Skype / Telephone once each for 5 minutes each child during the period from 7:15 pm to 8:00 pm Perth Time.

5.   The parents are not to arrange any extracurricular activities during each other’s School Holidays access period as well as normal access dates without the other parent’s consent, otherwise make-up access will have to be arranged for the other parent with date of the make-up access to be agreed by the parents.

Communication

6.   The Parties are to be made contact persons of the children’s school(s) so that they are informed of all school activities, events and functions, the school timetable and calendar as well as school reports of the Children by email or text messages directly from the school(s).  If notices are handed out to the children directly, the care and control parent shall scan and email the said notices to the other parent within the same day.

7.   The parents should jointly appoint parenting coordinator to assist them on their communication and in access as soon as possible.  Cost of sessions with parenting coordinator to be shared by the Parties equally.

8.   Both Children are to have a mobile telephone so they can contact or text message either parent at any time on their own initiation except for the indirect access in paragraph 4(h)(i) above and both parents shall always notify each other of the Children’s telephone number.  At other times messages to the Children should be passed through the other parent.

Therapy

9.   Both parents should arrange for the Children to resume therapy sessions with a child psychologist as soon as possible.  The parents should also attend therapy themselves as recommended by the clinical psychologist [C / p.129 / §74].

The mother’s case

23.  It is the mother’s case that she has always been a full time care taking parent and that this should continue. She does not accept the father’s case and maintains that the children should be given an opportunity to remain in Hong Kong for as long as possible. She says that they have experienced some stability in Hong Kong and that they have made good friends at their current school and that they are doing well academically here. She said in the witness box that if the father really cared about the children that he would renew his contract. If not she says that any shortfall in funds can be made up from the net proceeds of sale from the property that the parties own in Sydney and which they had agreed to sell at the trial. She does not accept that the situation is as dire as the father says it is in any event. If the court is not with her on this she asks in the alternative that she be able to relocate to Sydney with the children, which is where she is from originally and where her family reside and that the relocation only take place once all of the proceedings have been concluded.  

The mother’s proposals

24.  In the event of the Children and the Mother remaining in Hong Kong

1.   The Mother and Father to have joint custody with the Mother to have care and control of the two children of the family, namely, AH, born on XX^th January 2004 (“A”) and IH, born on XX^th May 2007 (“I”) (collectively referred to as “the Children”), as per the status quo since May 2015.

2.   A is currently in Year 8 and I is currently in Year 5.  The Mother and the Children do continue living in Hong Kong until A finishes her Year 10, i.e. end of June 2019 (i.e. 2 years from now).  This will allow A to complete her junior years of high school education and start at the beginning of Year 11 for senior years of high school in Sydney, Australia.  The Children will be eligible to apply for their permanent resident status in Hong Kong before they relocate.

3.   The Children be allowed to remain in their current school, ABC International School until further Order from the Court.

   Access

4.   If the Father remains in Hong Kong, the current defined access arrangements during term time do continue staying access every fortnight from Friday after school to Sunday evening at 6:00 p.m.

5.   The Mother wishes for the dinner access to be moved from Wednesday nights to Tuesday nights, as the Children do not have any after-school activities on Tuesday.

6.   If the Father leaves Hong Kong, he can have the following term time access :

a.   daily telephone or skype access with the Children;

b.   access in Hong Kong with the Children should he come to Hong Kong to visit the Children, with not less than 14 days’ advance written notice to the Petitioner, as long as due consideration is given by the Father as to the Children’s school timetable, pre-existing school activities, and pre-organized social activities already in place, and such access to be not more than two weekends per month and 1 dinner access per week.

c.   Father can have staying access with the Children during weekends from Friday after school to Sunday 6 p.m. provided that the Father undertakes to assist the Children with their homework.

d.   the Father can have dinner access with the Children on Tuesdays after school until 8:30 p.m.

7.   If the Father remains in Hong Kong, the Children’s school holiday and other special days to be shared as follows:

a.   School Holidays – The Parties shall share the school holidays equally on an alternate basis, such that the parent who has the first half of the school holiday will get the second half of the next school holiday and so forth.  The changeover access starts from 10:00 a.m. on the first day of the school holiday and ends at 2:00 p.m. of the last day of the school holiday.  The Parent who has the first half of the school holidays will have access from 10:00 a.m. to 2:00 p.m. on the day of changeover.  The Parent who has the second half of the school holidays will have access from 2:00 p.m. on the day of changeover. to 2:00 p.m. of the last day school holiday.

b.   Special Holidays and Days

(i)   Chinese New Year’s Eve, Day 1, 2 and 3 of Chinese New Year shall be spent with the Mother

(ii)   Easter weekend:  Good Friday to Easter Monday shall be spent with the Father

(iii)   Christmas and Boxing Days shall be alternated each year:-

i.   In all odd years, the Mother shall have the Children on Christmas Day and the Father shall have the Children on Boxing Day.

ii.   In all even years, the Father shall have the Children on Christmas Day and the Mother shall have the Children on Boxing Day.

(iv)   Following each holiday access, the parent who had the second half of the school holiday will have the Children on the second weekend after the school holiday.  For example, if the Mother had the Children over the second half of the school holidays, then the Father will get the first weekend following the school holiday and the Mother will get the next weekend.

(v)   Mother’s Day (celebrated in May) – if the Father has access with the Children that weekend, he will return the Children to the Mother at 10 a.m. on the Sunday.

(vi)   Australian Father’s Day (celebrated in September) – if the Children are with the Mother that weekend, the Father can spend the whole day with Children from 10 a.m. and he is to return the Children to the Mother at 6 p.m.

(vii)   If the Mother’s birthday falls on a day when the Father has access with the Children, the Mother shall have the Children from 10 a.m. and she is to return the Children to the Father at 8 pm.

(viii)   If the Father’s birthday falls on a school day, the Father shall have dinner access with the Children until 8 p.m.  If the Father’s birthday falls on a Saturday when the Mother has access with the Children, the Father shall have the Children from 10 a.m., and he is to return the Children to the Mother at 8 p.m.  If the Father’s birthday falls on a Sunday when the Mother has access with the Children, the Father shall have the Children from 10 am and he is to return the Children to the Mother at 6 p.m.

(ix)   Children’s Birthdays – The parent who has access with the child on her birthday will celebrate that child’s birthday.

(x)   Single Public Holidays – The Mother and the Father do continue the current arrangements.  If it is a single public holiday, the Children stays with the Mother.  If the public holiday is more than one day, then the Parties equally share the holiday.

8.   If the Respondent leaves Hong Kong, the Children’s school holiday and other special days to be shared as follows:

a.   For summer holidays

i.   In all even years, the Mother shall have the first half of the summer holidays and the Father shall have the second half of the summer holidays.

ii.   In all odd years, the Father shall have the first half of the summer holidays and the Mother shall have the second half of the summer holidays.

b.   For Easter and Christmas Holidays

i.   In all odd years, the Mother shall have the Children for the whole of Christmas holidays and the Father shall have the Children for the whole of the Easter holidays.

ii.   In all even years, the Father shall have the Children for the whole of Easter holidays and the Mother shall have the Children for the whole of the Christmas holidays.

9.   The Children can have daily telephone, Whatsapp, Facetime, or Skype access with the other parent during school holidays.

Alternatively, if the Children and the Mother are to relocate to Australia

14.   The parties do have joint custody, with the Mother to continue to have care and control of the Children.

15.   The Children be allowed to remain in Hong Kong until the issues of ancillary relief and divorce are resolved between the parties, and in any event, the Children be allowed to remain in Hong Kong and to continue studying at ABC School.

16.   The Mother do obtain in Perth or Sydney, as the case may be, a mirror order of the Hong Kong Order setting out the arrangements for custody, care and control and access within 28 days of the Children relocating to Australia.

17.   If the Children are to relocate to Perth, the Father to have access to the Children as per paragraphs 4 and 7 above.

18.   If the Children are to relocate to Sydney and the Father also relocates to Sydney, his access to the Children are to be as per paragraphs 4 and 7 above.

19.   If the Children are to relocate to Sydney but the Father does not relocate to Sydney, his access to the Children are to be as per paragraphs 6 and 8 above.

Children’s Psychotherapy

20.   The Mother agrees for the Children to have psychotherapy.

Discussion

25.  I must now turn to consider the issues, the law and the parties evidence as set out in their affidavits and as given orally by them during the hearing.  As indicated above I also heard evidence from two Social Welfare Officers, the psychologist for the mother and the paternal grandmother. Unfortunately, the court was not able to hear directly from the Clinical Psychologist who was on extended sick leave and unable to attend court.   

Should permission be given for the children to leave Hong Kong in order to relocate to Australia?

If so when should that relocation take place?

Should the children relocate to Perth or Sydney?

Is the father’s application to relocate to Perth, Australia, genuine in the sense that it is not motivated by some selfish desire to exclude the mother from the children’s life? Is the father’s application realistic i.e. are his proposals practical and both well researched and investigated?

26.  I should say at the outset that I accept that the father’s application to relocate to Perth is genuine and that in no sense does he wish to exclude the mother from the children’s lives going forward. Indeed, his application is premised on the mother also living in Perth and sharing the care of the children with him. In the event that the mother decides not to relocate he says that he is confident that he will be able to care for the children appropriately going forward with the care of his mother and other family members. As will been seen I also accept that his proposals are both well researched and investigated. In particular, he proposes as follows:

Accommodation

27.  Prior to moving to Japan and then Hong Kong, the parties lived in a trust property owned by the husband’s family in Perth. Since they left Perth the property has been let out on a short term basis and is available for the father on his return. This was confirmed by the paternal grandmother, both in her affidavit evidence and in the witness box. According to the paternal grandmother this is a modest family home by Perth standards, but it is fully furnished and it is also a property that is known to the children. It is also only 2.7 kilometres from her own home and is within easy reach of other family members.

28.  The father said that the mother should be able to rent a comparable property in Perth and that arrangements would need to be made to ensure that that happened – in the event that the mother agreed to also relocate to Perth. I accept that the cost of appropriate accommodation in Perth is likely to be cheaper than a comparable property in Sydney.

29.  I also accept that this is an entirely feasible proposal and that it is eminently sensible given the circumstances.

Education

30.  Originally the father had hoped that the children would be able to return to the school that they had previously attended. This is a private all girl’s school of very good standing. Unfortunately, he is now of the view that the financial reality is such that it is now unlikely that he will be able to afford to send them there. He proposes instead that A attend a good government school called S College instead. There was a great deal of debate about this school during the trial and in particular reference was made to the fact that there is chronic overcrowding in many of the schools in both Perth and indeed Sydney, but particularly in S College. I accept though that S College is a school of good standing and reference can be made to a newspaper article which confirmed that it is ranked X in a Western Australian list of top academic schools for 2016. I also accept that this particular school has a large Gifted and Talented program, which may be of some assistance to A. The mother is at best lukewarm about this school and complains that it is too large. She does not necessarily accept that A may benefit from the Gifted and Talented program. Overall though I agree with the father that this may be a very good fit for A and that in the event that the relocation is approved that this would be a good option for her. It is in the catchment area for the father’s accommodation.

31.  In so far as I am concerned it is suggested that she attend a good local primary school called H primary school. Again this appeared to be a very good school and one that would be appropriate for I.

Job opportunities  

32.  As indicated above, at the time of trial the father was very clear that he would not renew his contract of employment in Hong Kong and that come what may he would relocate with or without the girls once his contract of employment had come to an end. It was then with some surprise that the court received the letter from the mother’s solicitors dated the 7 September 2017 confirming that the father had entered into a new contract of employment. This is dated the 4 August 2017 – only four days after both sides had filed their written Replies. No mention of this is made in those replies. It states that the contract will begin on the 13 August and is for a one-year period, but is also subject a termination clause. The termination clause states that either party may terminate the employment contract on inter alia giving three month’s notice to the other side. The husband is only rostered to work 110 days during this period – or for just over 9 days per month, although this may be subject to change. His salary is HK$72,734 per month inclusive of a monthly simulator allowance. In addition, he will receive an Approved Person Qualification. It does not state how much this is. This appears to be significantly less than the father’s previous remuneration package. According to the father’s Form E dated the 18 December 2015 he was at that stage receiving in total a salary of between HK$154,200 – HK$163,800 per month. It is not clear how such a reduced salary will assist the parties in the medium to short term. During the trial the father said that he would not earn enough to support the children in Hong Kong if he was living and working in Perth. Unfortunately, it now seems that the father will not earn enough even by staying in Hong Kong. This is a matter of some considerable concern.   

33.  The father also maintains that he is in a good position to obtain new employment in Perth as a pilot. In his affidavit of the 1 March 2016 he states as follows:

My future employment

83.   My work prospects are better in Perth than other Australian cities due to substantial general aviation and airline training school activities in Perth. I also have more industry contacts in Perth to help me find employment than other Australian locations.

84.   Potential employers for me in Perth that I am aware of include:

(a)   AA – 100 seat passenger Jet aircraft operator;

(b)   CA – 100 seat passenger Jet & Challenger 604 search and rescue aircraft operator;

(c)   M Airlines – Air ambulance and Government business jet operator;

(d)   S Airlines Flying College;

(e)   CS Airlines Flying College;

(f)   Civil Aviation Safety Authority.

85.   To the best of my knowledge about general aviation salaries in Australia I can expect to earn somewhere in the order of AU$110,000 to AU$150,000 per annum (i.e. approx. HK$51,000 to HK$83,000 per month).  I may be able to supplement this income slightly with consultancy work based on my extensive aviation experience.  My salary estimate is based on recent discussions I have had with aviation colleagues who are currently based in Australia.

86.   Until I know the circumstances and timing surrounding my return to Australia it is impractical for me to arrange potential employment in advance of the outcome of this relocation application.

87.   I do not intend to start working after my return to Australia until the children are settled and my health has recovered.

This was largely reiterated during the hearing although the father said that he could earn perhaps as much as AU$160,000 per annum in Perth. His anticipated salary in Sydney was lower given that there are less would be employers in Sydney. He maintained that the larger airlines only promote on the basis of seniority within their own airline and that it was unlikely that he would be employed at a very senior entry level. He also said that the smaller airlines do not pay as well and that it was more likely that he would take a middle management position if the parties relocated to Sydney. I accept what he says in that respect.

34.  Regardless of where the parties live going forward the mother will need to work. She has said that her preference is to work during school hours only – but the reality is that she may need to work on a full time basis. The mother presently works from 9 am – 3 pm each day. It is not clear what options may be available for the mother in Perth – but she has worked in the city before and was highly regarded by her employer at the time.

Finances

35.  The father’s main concern relates to finances. He said that the parties were not able to make ends meet, even when they were living together and he was earning a very good salary. He says that they will definitely not be able to make ends meet going forward. He initially referred to a deficit of HK$9,767 per month. The mother for her part simply says that she is not very savvy about money. Although I have some sympathy with the mother in that the father’s many different calculations were quite confusing, at the end of the day it became very clear that from a financial perspective remaining in Hong Kong was simply not a feasible alternative.

36.  Initially the mother said in her affidavit evidence that she would have outgoings of HK$125,800 per month, but that she could get by on HK$87,300. She is currently earning in the region of approximately HK$19,000 per month. This then, even on her own case, leaves a monthly deficit of approximately HK$68,000 per month. Her counsel has said she would actually need HK$93,000 per month. When questions were put to her in the witness box she seemed somewhat confused and unable to comprehend fully what the implications of the questions might be. In the final analysis she proposed relying on the net equity of the parties only asset – i.e. the property in Sydney. The difficulty with that however, is that this proposal seemed to be based on the assumption that she would get most if not all of the net equity, presumably on the basis of “need”. It seems to me that that would be a very unlikely scenario, given the circumstances.

37.  The parties have limited income (especially given the father’s new contract of employment), few assets and some debt. It is accepted that in the event that they relocate to either Perth or Sydney that they will both need funds to ship their furniture and possessions, there will also be set up costs for their new homes including rental deposit and furniture etc. either for the mother only or alternatively for both of them. It may also take some time before they each find a new job and they will each need to be able to support themselves and the children during that period. There is no doubt in my mind that the net proceeds of sale will be needed partly for this purpose.

38.  Counsel for the father put it thus in his closing submission:

The family finances

30.   The Court heard the following about the Parties available capital and outstanding liabilities:

(i)   It was not in dispute that the Parties only significant asset is their joint property (the “Sydney Property”), and that this property must be sold as soon as possible under any plan.

(ii)   The Parties signed mutual undertakings to sell the Sydney Property on 19 June 2017.

(iii)   The Father estimated that in the ‘best case scenario’ the net equity available in the Sydney Property would be about HK$4,234,000.

(iv)   The Father gave his personal liabilities at around HK$1,434,818.

(v)   The Mother estimated her own debts at around HK$1,000,000.

(vi)   On the above figures, around HK$1,799,182 is available (after the Parties’ debts are paid) to meet any future expenses of the family, including the cost of eventual return to Australia.

31.   The Mother’s financial needs if the Children remain in Hong Kong for 2.5 years were disputed:

(i)   On the Father’s case, the Mother’s expenses for the next 2.5 years would amount to HK$3,201,180 (including inflation, insurance, ECAs, school administration fees, and compulsory camps, but excluding debenture).  This comes to HK$106,706 per month for 30 months.

(ii)   The Mother said that she currently earns around HK$19,120 per month pre-tax, and would have expenses of HK$93,100 if she remains in Hong Kong.

(iii)   On that basis, over the next 2.5 years, the Mother’s pre-tax income would be HK$573,600, and her expenses HK$2,793,000.

32.   The Court is invited to adopt the Father’s estimate of the expenses for the Mother and Children to remain in Hong Kong for 2.5 years, as:

(i)   The Mother agreed her budget did not include inflation, or the costs of needed therapy and glasses for the Children, needed braces for A, flights for the Children to visit the Father in Perth, school administration fees, compulsory camps. I entering senior school in 2018, and sufficient provision for ECAs.

(ii)   The Mother admitted she has been spending above the HK$96,623 per month provided by the Father for her and the Children.  She said she has also been spending her own salary towards the Children’s expenses and her legal fees (HK$19,120 per month).

(iii)   The Mother has historically not taken a realistic approach to the family finances.  Since the Parties separated in May 2015, the Mother has ignored the Father’s warnings of the family’s financial difficulties.  She did not negotiate to end the R lease early.  She did not take up any significant employment or move to a cheaper house until March 2017.  She agreed she could have terminated the R lease from at least November 2016, but said that she was “too stressed”.  Although she has a domestic helper and was offered full time work with Net-a-Porter in around November/ December 2016, she refused the job as she “did not want to work… when I did start to want to work I only wanted to work within school hours so that I can stay with my children”.

(iv)   The Mother’s refusal to help the Father manage the Family’s cash flow (by finding work or moving to cheaper accommodation) has made the financial situation more precarious, and caused rent and school fees to be paid late.

(v)   The Mother said that she is not financially savvy, and she could not estimate her after tax income or how her salary was divided between the Children’s expenses and legal fees.

(vi)   The Mother’s still refuses to accept the Father’s warnings about the finances, and insists in her evidence that “he is using money to control us”.  (There is no evidence in this case of any hidden assets or unexplained transactions by the Father, who has provided comprehensive financial disclosure).

Although I accept that these precise figures may fluctuate, in broad terms I also accept that much of the party’s available capital would be significantly depleted if the mother and the children were to remain in Hong Kong on a longer term basis. This is especially given the fact that the father has said that he will eventually return to live in Perth, with or without the children. Further it does not appear that the mother will be able to secure a better paid job in Hong Kong sufficient to be able to support herself and the children, without relying heavily on the father and the net equity of the property in Sydney. I accept that this is simply not feasible.   

Child care

39.  The father maintains that he should be able to structure his work so that he is largely available for the children should he be granted a more or less 50:50 shared care regime. It follows that he should also be able to make himself available in the event that he had the children for less than 50% of the time. I accept that his mother and other family members will be on hand to assist.

Is the mother’s application to relocate to Sydney, Australia genuine in the sense that it is not motivated by some selfish desire to exclude the father from the children’s life? Is the mother’s application realistic i.e. are her proposals practical and both well researched and investigated? In the alternative is the mother’s proposal to remain in Hong Kong genuine and is it realistic?

Hong Kong

40.  I accept that the mother genuinely wishes to remain in Hong Kong with the girls and that in an ideal world she would prefer it if the father also remained and that he continued to work in a well-paid job. I don’t think her proposal is motivated by any desire to exclude the father from the girl’s life – although I do have some concerns about her approach to access.

41.  The mother’s proposal that she remain in Hong Kong with the girls is well planned to the extent that the girls are both in good schools and she has now found a suitable job and cheaper accommodation for them all to live. To that extent her plan has already been activated. Unfortunately, her proposal falls down when it comes to the issue of the finances. As indicated above I do not accept that the mother can rely on the net equity of the property in Sydney to fund the shortfall in the living expenses of herself and the children or that it would be reasonable suppose that after the payment of the party’s debts that she should be entitled to all of the net equity. I am also concerned, in the alternative, that even if the wife were successful in obtaining all of the net equity from the Sydney property that it may not be sufficient. The suggestion that the children could change to an ESF school does not really change the fundamental issue namely that the parties cannot afford for the mother and children to remain in Hong Kong.

Sydney  

42.  I accept that the mother would genuinely prefer to relocate to Sydney in the sense that she says that she has some unhappy memories of Perth and that it holds negative connotations for her. By the same token she accepted during cross examination that she still has some good friends in Perth. She also enjoyed working in Perth.

Accommodation

43.  The mother said at first that she could perhaps live in the Sydney property. However, that is clearly not an option. There is no doubt that regardless of the outcome of this application that from a financial perspective the Sydney property will need to be sold and an undertaking has been filed by both of the parties to that effect. I understand that there have been some difficulties with this post trial, which I do not intend to go into here. However, for the avoidance of doubt, it should be noted that I will expect both parties to have complied with their undertaking by the time that this matter comes back before the court for a First Appointment hearing.

44.  In the event then that the mother relocates to Sydney it is likely that eventually both parties will need to rent other alternative accommodation. The mother adds this with respect to her own family in her 2^nd affirmation dated the 15 May 2017:

Assistance from my Family

125.   If the Children and I are going to have to relocate to Sydney, my family is willing and prepared to assist us as they are all based in Sydney.

126.   My parents have offered that if the Children and I relocate to Sydney, we could live with them if the Respondent refuses to support his children.  My parents have also indicated that they are willing to contribute to our needs in food, medical, transport and utilities.  My sister, J, also wrote a letter on her support to the Children and I.  J also offers that if the Children and I do not wish to live with my parents, the Children and I can stay with her.

127.   This is a very generous offer from my parents and the Court should be aware of this option.  However, it’s not viable for us to live with my parents because of location based schooling.  If we lived with my parents there is no good high school which I would want to send A to.  The high school in my parents’ district is C Girl High and it is a very poor school with not very good students.  The high school that I attended is not in my catchment area anymore and while it was a good school when I was still a student, the standards have dropped since then.  The flip side is that my parents live in the catchment for Earlwood primary school which would suit I for the one year of primary school that she has until she needs to attend high school.

There is now produced and shown to me marked exhibit “JMFC-27”, a copy of the letters from my parents and my sister stating the support they have for me.

Thus it seems that she could rely on her family for help in the last resort. I am then proceeding on the premise that both parties will need to rent alternative accommodation if the mother relocated to Sydney with the girls. The information provided by the mother in that respect is very generic – understandably perhaps. She did not have any definite plan with respect to where she might live. She has referred to the following areas as possible options – Miranda, Epping, Beecroft and Cheltenham. It seems that the cost of renting a property in Sydney would be higher than the equivalent cost in Perth. In addition, the parties would only need to rent one property privately in the event that they relocated to Perth. It seems likely that they would need to rent two if they moved to Sydney.   

Education

45.  Again the mother’s evidence is very general – based on information of family and friends and on the areas that she has identified as being suitable. The father had some concerns about schools around Miranda – a concern which I believe was shared by the mother.  

Job opportunities

46.  The mother said that she was confident that she could obtain a job more easily in Sydney than in Perth in office management/ administration. She did not really explain why that should be the case save that she said that Perth is in a recession. It did not appear that she had given any detailed thought to obtaining a job in either place.

47.  From the father’s perspective he seemingly had given some thought to this. He believes that he is more likely to get a middle management job in Sydney that would pay less than a pilot’s job in Perth or possibly a job with a regulatory agency, which may pay slightly more (see paragraph 33 above).

Finances

48.  I accept that the cost of living is higher in Sydney than in Perth and that it is probably more on a par with Hong Kong. This is also a factor to be taken into account.  

Child care  

49.  It is not clear from the affidavit evidence filed by the mother the extent to which she would be able to rely on her family for child care assistance in the event that she relocated to Sydney. It is of note that save for the references in paragraph 44 above, very little is said about this. None of the mother’s family have filed any affidavit evidence in this respect, although in the third social welfare report, the social welfare officer says that she interviewed the maternal grandparents who indicated their willingness to help the mother with child care and generally. They visited Hong Kong in September 2016 and from December 2016 – February 2017 and assisted the mother during both periods of time.   

Is the mother’s opposition to the father’s application motivated by genuine concern for the future of the children’s welfare or it is driven by some ulterior motive? What would be the extent of the detriment to the mother and her future relationship with the children were the application granted?  To what extent would that be offset by extension of the children’s relationships with the paternal family?

50.  It is not clear to me whether the mother’s opposition to the father’s application is motivated by a genuine concern for the children’s welfare. The mother talks about the father being controlling and abusive. She says that he can use money to exert control. She says that he can also be manipulative. Needless to say the father takes great exception to these allegations. The mother also maintains that they were once deeply in love. Although I accept that the mother does genuinely believe that it would be better for the children if they remained in Hong Kong, I am concerned about her inability to face the financial reality of the party’s current situation. Given that the mother has said that she will go wherever the children go I do not believe that there would any real detriment to the mother and her future relationship with the girls in the event that the father’s application is granted. Although I understand that the relationship between the paternal grandmother and A has become strained of late, I also accept that historically the paternal grandmother has been very involved in helping to care for the children. It is also of note that A recently travelled on her own to Perth to spend a holiday with her paternal grandparents. I am sure that A and I would benefit greatly, once these proceedings have been concluded, from having their paternal grandparents and other family members close at hand.   

Is the father’s opposition to the mother’s application motivated by genuine concern for the future of the children’s welfare or it is driven by some ulterior motive? What would be the extent of the detriment to the father and his future relationship with the children were the application granted?  To what extent would that be offset by extension of the children’s relationships with the maternal family?

51.  As with the mother, the father says that he will relocate to Sydney in the event that leave is given for the mother to relocate there with the children. However, during the trial, he said that could not remain in Hong Kong. He said that it was damaging for his health and that it was not tenable from a financial perspective in any event. The father was though very concerned that his relationship might become further strained in the event that he left before the children. He was convinced that the mother was trying to alienate the children from him, and that she did not fully support his relationship with the children. Although I appreciate that this is a very high conflict situation and that there are issues between the parties particular with respect to the children’s health, I nevertheless share the father’s concerns with respect to his relationship with the girls in the event that they either remain in Hong Kong or relocate to Sydney. I accept that his relationship with the girls might be severely undermined in the event that either scenario was to take place. As for the girl’s relationship with their maternal family, I have very little information on this, save that reference is made to the girls visiting Sydney in the third Social Welfare Report. Historically the girls appear to have spent more time in Perth than in Sydney.   

What would be the impact on the mother if the application to relocate to Perth was approved?

52.  I accept that the mother would be very upset if the father’s relocation were granted. But by the same token Perth is somewhere that she has lived and worked before and where she has a network of friends. It is also somewhere where she can access therapeutic support readily in the event that it is required.

What would be the impact on the father if the application were rejected or if in the alternative the application to relocate to Sydney was approved?

53.  I accept that either alternative would be devastating to the father, although relocating to Sydney is likely to be slightly more palatable than remaining in Hong Kong.

What would be in the best interests of the children overall

The Social Investigation Reports

54.   Recommendations made to the court in social welfare reports, although not binding are very persuasive.  If the court decides not to follow the recommendations made, then reasons must be given.

55.   In this case there were more reports than normal because of the child neglect incident and the delay in getting this matter on for trial (the case was originally set down for trial in February 2017). The Social Welfare Department has filed four reports in total. Both social welfare officers have consistently recommended that the parties have joint custody of the children, with care and control to the mother and reasonable access to the father. In the first report the 1^st Social Welfare Officer, Ms T defined access, but other than that she simply recommended reasonable access to the father (see the 1^st report dated the 19 January 2016, the 3^rd report dated the 24 January 2017). Similarly, the second social welfare officer made the same recommendation in the 4^th report dated the 26 May 2017.

56.   In the third report dated the 24 January 2017 Ms T also stated clearly the views of both A and I:

Views of the Children-in-question towards the care arrangement and the issue of relocation

A

25.   A, now aged 13, was a kind-hearted and pleasant girl.  She could clearly express her views towards the care arrangement and the issue of relocation.  In the school visit on 10.1.2017, A told the investigating officer about her wish to live in Hong Kong together with the mother and younger sister continuously for some years.  She shared that they came to Hong Kong for 4 years and had lots of friends here. She loved her teachers, classmates at the K School and wanted to study there for longer time.  A liked the teaching methods which are creative and interesting, the excursion widening her horizon and all ECAs.  A gained her confidence in learning as her hard work was always being recognized in the present school.  For example, her article regarding the excursion to Thailand in Year 7 was selected among her class to be published on the school year book.  A stated that she was close to the mother as the mother had been taking good care of her all along and loved her very much.  Hence, she wanted to go wherever the mother goes.  In the long run, she hoped to move to Sydney together with the mother as they had family members and good friends there.  She shared that she did not want to live with her father in Perth but would keep regular visit to the father during long school holidays.  A shared that she was ready to meet the Judge and also gave a copy of her writings to the investigating officer.

I

26.   I, now aged 9, was a polite and lovely girl.  She could clearly express her views towards the care arrangement and the issue of relocation.  In the school visit with the investigating officer on 10.1.2017, I appeared to be shy initially.  After some warm up, I expressed her wish to live in Hong Kong together with the mother and elder sister continuously for some years.  She loved Hong Kong as she made a lot of friends there.  She loved her teachers, classmates and wanted to study at the present school together with A as A could always assist her in doing homework and revision.  She liked the ECAs especially Tournament of Minds and learnt together with her friends at school.  She stated that she wanted to live with the mother and would like to sleep with the mother.  She needed her company especially when she felt sick.  Hence, she wanted to go wherever the mother goes.  She wished to live with her mother and elder sister and was ready to move to Sydney after a few years.  She shared that she did not want to live with the father in Perth but would keep regular visits to the father during long school holidays together with A.  I said that she had asked A write down her views which could be shared with the Judge.

She concluded that she could see no reason for changing the existing status quo – in other words she did not recommend a relocation to either Perth or Sydney. A second social welfare officer made the same recommendation in the last report dated the 26 May 2017 namely that:

“… it would be in the best interests of the two children to stay in Hong Kong for a few years”.

57.   The difficulty though is that neither social welfare officer had considered the financial implications of their recommendations. Both said in the witness box that they had been under the impression that the parties could afford to remain in Hong Kong.  

The Clinical Psychologists Report

58.   The Clinical Psychologist did not attend court to be cross examined as he was on extended sick leave. It was suggested during the hearing that in those circumstances I should attach no weight to his report. However, the report filed is very detailed and it contains a number of useful insights into the present condition of the children and their relationship with each of the parents. For example, Mr C made the following observations with respect to A and her relationship with her father:

Children’s relationship with parents

A

41.   A shared that she used to have similarly good and close relationship with both parents.  But after parental divorce, she reckoned that her relationship with the mother had become closer and she would stand on her mother’s side more (cf her past stance of standing in the middle between the parents).  She experienced that she felt more comfortable staying with the mother and talking with her, as they both shared similar interests and she experienced that the mother was loving and caring.  The only thing she disliked about the mother was about the mother’s occasional raising of her voice in admonishing her.  The spontaneous, close and intimate interaction between A and the mother was indeed also observed during this evaluation.

42.   Noted-worthily, the theme of A’s discontent and anger toward the father as well as her distress in relating with him had repeatedly occurred in my exploration and discussion with her.  For instance, when she was asked to list 3 wishes she would like to have, her answers were: (i) Dad stops all the lying; (ii) she could have the power to stop Dad from doing damage, and to make Dad and Mum like equal; and (iii) becoming an actress.  And on her responses to the YSF, though without any Syndrome Scales reaching the clinical or borderline clinical level, she did write down something like: her concern was getting along with Dad most of the time, sometimes not being able to concentrate at school because of Dad, she was sometimes afraid of her Dad’s house, she can’t get her mind off the thoughts on what her Dad has done; not really having trouble sleeping, but at Dad’s house she did sometimes because she felt stressed about him.

43.   Upon exploration, A spontaneously shared various past incidents which apparently had negatively impacted on her relationship and trust toward the father.  A few examples of the upsetting incidents included:

•   The father’s accusing the mother of child abuse, and leading to her hospitalization for about a week; but A’s experience of the mother was a caring and loving mum who had given adequate care to her.  (Such condition of A’s being angry at the father for causing her hospitalization and being defensive of the mother was indeed also documented in Dr. B’s Initial Intake Report.)  She had some anxiety and fear that the father would take her (and also I) away from the mother.

•   The father’s had once approached the school talking to the vice principal suggesting to cut A’s involvement in acting class/ECA, A said she then cried hysterically, wondering how Dad could do that, especially because he should know that she loved acting so much.

•   There was a time that she felt sick and did not want to go to meet the father for staying access; but the father insisted that she must go.  He gave her two options: either to go with him instantly, or he would call the ambulance to take her for medical examination and treatment.  She had also cried hysterically on this occasion.

•   Once during staying access, after hearing A told I that she loved the mother more than the father, the father told A that she should not love the mother more than him; at least the two should be equal.  A felt hurt hearing such demand.  She said I asked her if she was crying, she did not reply.  She was then crying in her heart.

•   A overheard once that the paternal grandmother talking to the father about writing to the court asserting that the mother did not take care of the children and it was the grandmother who always needed to help taking the children to and from school. A held that it was not true and perceived that they were lying in order to discredit the mother.  A admitted that she used to have good relationship with the paternal grandmother as well, but this had changed after the parental divorce.  She found that the paternal grandmother turned rather mean to her, having called her stupid or idiot for quite a number of times.

44.   Despite of A’s expressed negative view and feelings against the father, her father-daughter interaction observed during this evaluation, though having some tension, was not completely disengagement, dismissal, defiance or antagonism.  On the contrary, A was noted to have maintained some physical closeness with the father; and she had also demanded of his attention and care.  As she reckoned, the negative feelings and resistance to see her father was usually stronger during the transition where she had to leave the mother’s house and go to the father’s house.  She would automatically worry about having bad things happened while she was to stay in the father’s house.  It might take some time for her to adjust to staying with the father.  After that, she might feel a bit more comfortable playing and talking with the father.  In relation to this troubled relationship with the father, A expressed that she was willing to see professionals for helping her with this problem.  However, she did not want to see too many as these would overwhelm her.  Specifically, she wished that she could be helped not to have too much stress about seeing the father.

45.   For the father, he did report his experience of facing more resistance and defiance from A to have her complied with the access arrangement.  Even when she did come to join him, it took longer time for her to get settled and fit in the routine and activities in his house.  The father was rather frustrated and exhausted to deal with the problem.

59.   Mr C also set out the children’s views as follows:

Children’s view regarding issues of access and relocation

A

59.   A told that she liked to stay in Hong Kong and continue to study in the present school.  She told that she was thriving in the present school and she enjoyed very much her relationship with peers and teachers.  She liked many branded shops in Hong Kong which were absent in Australia.  Some 3 years later, she would like to move to Sydney for University study.  She said she did not want to go live in Perth, as that was just the father’s home city but not mum’s.  Regarding the connection with the father if he were to move back living in Perth, she said she would fly to Perth during long school holidays.  Upon enquiry, A admitted that what she concerned most was staying with the mother; wherever the mother decided to go, she would like to go with her.

I

60.   I said she was happy with the school life and would like to study there till Grade 8 or 9.  She would then go with the sister and the mother back to Sydney. Regarding how she felt about the present arrangement of having two homes, Dad’s home and Mum’s home, she gave a single word answer, “tired.”  She then drew on the white board the station map of Mass Transit Railway route and counted the stations in between her house in Tseung Kwan O and Dad’s house in Tai Wai.  She also drew a spot on the white board she marked as Perth and another as Hong Kong.  She said that the distance between these two homes was much longer. With an innocent smile, she said that Dad would stay in Hong Kong as he would not have the money to travel every two weeks from Perth back to see her in Hong Kong.

60.   Finally, in his recommendations he stated inter alia as follows:

69.   Most importantly, I consider that the primary and major factor in deliberating of the custody and relocation arrangement in this case is the current strong connection and bonding between the mother and the two children, which if disrupted, would cause enormous distress for the children to cope and adjust to.  The two children’s voice regarding the relocation is essentially this: “I’ll go wherever the mother goes.”  However, A seems to be psychologically more prepared with the scenario that her father moving to Perth and the access and father-daughter contacts might be reduced as compared with the current arrangement.  For I, she seems not having anticipated or prepared for such possible change, as she believes that the father must have stayed in Hong Kong.  So, if the father’s moving to Perth and the great reduction of access and contact time with the father did happen, it might likely cause distress and difficulty in her adjustment.

70.   The mother’s plan is to continue to stay in Hong Kong for a few years before relocating to Sydney, her hometown.  She would like the children to have the stability and continuity to enjoy and thrive in their study in the current school and their social life in Hong Kong at this present stage, especially because they had already been repeatedly moved around previously due mainly to the father’s career changes.  Allowing more stability and less disruption in the children’s life is really serving the interest of the children.  This strong stance to stay in Hong Kong, instead of moving elsewhere again, seemed to be also related to the mother’s resistance to follow and comply with the father’s decision and arrangement as what she used to do during her marriage.

71.   For the father, his plan to relocate to Perth is primarily due to socio-economic reason, which undeniably has important bearing to the interest and benefit of the children’s well-being.  However, his coming employment after the expiry of his work contract with ABC Airways Limited could not yet be finalized.  As such, the father’s future living and working conditions are uncertain. Moreover, his financial assets and arrangement are possibly another major issue of contention in the divorce proceedings which should be addressed separately.

75.   In view of my analysis that the current paramount psychological need for the children is to keep a stable connection with the mother and having her as their primary carer, and the disruption of which is likely effecting enormous and overwhelming distress and impact on their well-being, I deem that it would be in the best interest of the children for them to stay for a few years in Hong Kong and to keep the status quo regarding the custody, care and control and access arrangement, which are:

(i)   The Petitioner and the Respondent be granted joint custody of the Children-in-question, A and I;

(ii)   Care and control of the Children-in-question be granted to the Petitioner; and

(iii)   The Respondent be granted reasonable access to the Children-in-question.

Again the difficulty with this recommendation is the perception that infact the parties can afford to remain in Hong Kong in the immediate to short term. As indicated above I do not accept that to be the case.

The views of the children

61.   The children have consistently told all of the responsible adults involved in this case that they wish to live with their Mum – that wherever Mum goes they will go. There does not appear to be any sense that it might be possible to live with both of their parents. It is clear that they are closely bonded with their mother, and as has been identified by Dr B, that they have effectively taken her side. A in particular appears to be angry with her father about the child neglect incident and seems fearful that her father will “take her away” from her mother. By the same token there is no doubt that the children were also closely bonded with their father prior to the separation and that they love both of their parents very much. It is also of note that A seems open to the possibility of therapy or counselling to assist her with her relationship with her father. It may therefore be necessary for the father and the children to have some sort of therapeutic support in due course in order to ensure that their relationship gets “back on track”.

The character of the parties

62.   In all cases concerning children it is important for the judge to see the parties in the witness box. This is so that the judge is able to form some view of them for him or herself.

The psychiatric report of the father

63.   The report from Dr H dated the 20 July 2016 confirmed that the father did not have any psychiatric or psychological problems and that he has no diagnosable psychiatric illness.

Impressions of the father

64.   It is clear that the father was not expecting the mother to issue divorce proceedings and that this came as a considerable shock to him. I am sure that he has yet to process many of the ramifications arising out of this. Overall he presented as being a bright and very detailed orientated person who was deeply concerned about the future of the children. I accept that he may at times have over reacted and not behaved in a way that was necessarily in their best interest (e.g. the child neglect incident and the charity walk incident), but by the same token I also accept that he may not have known how best to deal with the situation that he found himself in. In particular, he was very concerned when his access to the children was interrupted.  Generally speaking, I accepted much of what he said both in his affidavit evidence and in the witness box and I found him to be a credible witness. In particular, I accept that he was “a” caretaking parent and that he had considerable input into the day to day running of the household whilst the parties were still married. I have no doubt at all that he is a good and loving father to both A and I. I also accept that it is important to try to get their relationship back on a more even keel.

The psychiatric report of the mother

65.   Dr W prepared a report on the mother and she also attended court for cross examination purposes. Although it was acknowledged that the mother had suffered from anxiety and depressive episodes in the past with a history of self-harm etc., she confirmed that she was currently symptom free and had been so for the last 5 or 6 years. Thus the mother is currently in remission. Dr W confirmed that she was mentally stable and that she was able to take care of the children.

The mother

66.   The mother presented as being very young. It was clear that she seems to have formed the view that she was the subject to various forms of emotional abuse during the marriage. I am not sure to what extent that is true – if at all. I have no doubt that she has a close bond with both girls and that she is also struggling to come to terms with the divorce and all that that entails. It is though important that she supports the father’s relationship with both girls and that she ensures that they spend time with him. I am not sure that that is happening at present.

67.   The mother was quite vague about many aspects of the case and readily admitted, for example, that she was not very good at math. Although she was clearly of the view that the parties should be able to remain in Hong Kong, it was not clear the extent to which she had taken on board the reality of the parties’ financial situation.  

The mother and the father

68.   In the papers two psychological summaries were filed by the mother’s previous treating psychologist in Perth namely A (T) K. The first is dated the 21 September 2015 and the second is dated the 31 July 2016. In the first Ms K says this of the parties’ relationship:

From my first observations of their relationship, the dynamics within the relationship could be compared to a father / child relationship, which J protested against.  I suggested that D modify his own behaviour in the relationship such as discussing issues with J adult-to-adult and that both parties foster better communication skills involving empathic listening and responding.  I believed these skills to be an important foundation to changing the dynamics in their relationship.  I can't comment on whether these skills were employed, as this was not observable in session.

From my observation of the parties in the witness box it seems to me that that dynamic may still be present. 

Conclusion on relocation

69.   Relocation cases are always very difficult and this one is no exception. In this case, although it seems clear that from a financial perspective it is not really feasible for the parties to remain in Hong Kong even for the next two academic years, whether the children should move to Perth or Sydney is an issue that is more finely balanced. At the end of the day though I have decided to come down on the side of Perth. I do so because it seems to me that the father’s plan is more concrete and well thought out. It will also be important for the parties to conserve as much of their asset base as possible and it seems to me that that may be possible given that they will only need to rent one further property in Perth rather than two if they relocated to Sydney. I also accept that the cost of living is generally cheaper in Perth. Further I agree that the educational choices in Perth will serve both girls well, although I also accept that they have been very happy at their current school and that they have done well there. Although the mother will no doubt be bitterly disappointed by this, Perth is where she was living prior to moving to Japan and then Hong Kong. She still has good friends in Perth and she is as likely to get a job there as in Sydney. I am hopeful that she will accept this decision with good grace and support the move to Perth.

70.   Leave is given for both parties to relocate to Perth, Australia with the children with effect from the end of the current school term in Hong Kong i.e. from the middle of December 2017. The mother has said that she will go with the children in the event that an order is made in the terms sought by the father. Consequently, the order will be expressed in these terms. The intention is that the children shall begin the next academic year in Perth, Australia in January/February 2018.  

How should the children’s time be allocated between their parents once the relocation issue has been determined?

What orders should be made for care and control/joint care and control/shared care/access? 

71.   Notwithstanding the fact that it is quite common in Australia for children to divide their time between two households on a more or less equal basis, it seems to me that great care should be taken before imposing that here. I am very concerned that this situation should be approached sensitively and that the father should consider having some family therapy with the girls with a view to ensuring that the arrangements that I intend to put in place have a reasonable prospect of success.

72.   The parties have agreed joint custody. In line with all of the reports filed I will also make an order that the mother have care and control with defined access to the father as follows:

Term time

During term time the access shall be on a two weekly cycle.

Week 1

The father shall have overnight staying access with the girls from after school on Thursday until Monday morning when he shall drop them off at school.

Week 2

The father shall have overnight staying access with the girls from after school on Thursday until Friday morning when he shall drop them off at school.

73.   It is further directed that the mother will be responsible for arranging extra-curricular activities, tuition etc. on Monday – Wednesday after school and the father will be responsible for arranging extra-curricular activities, tuition etc. on Thursdays and Fridays.

Telephone/remote access

74..   This has been a matter of much dispute between the parties. It is directed that in the short term there be no telephone or indirect access with the parent with whom the girls are not staying unless initiated by the children on their own hand sets. This has been anticipated by the father to an extent, although he did suggest daily contact of not more than 5 mins for each child. However, I have decided to forgo this 5 mins also. The mother suggested daily contact but this has proved very difficult to administer. In such circumstances there shall be no order with respect to daily contact between the children and the parent with whom they are not staying.  

School holidays

75.   Once the parties have relocated both parties agree to split the holidays equally on an alternate basis. For the avoidance of doubt however, it is further ordered as set out below

Summer holiday in Australia to include Christmas

a)   In all odd years, commencing this year in 2017, the father shall have the first half of the summer holidays and the Mother shall have the second half of the summer holidays.

b)   In all even years, commencing in 2018 the Mother shall have the first half of the summer holidays and the Father shall have the second half of the summer holidays.

The remaining school holidays

c)   As far as the court is aware there are three other school holidays in Australia, although this has not been fully identified in the list of proposals put forward by either side. Consequently, it is further ordered that the remaining holidays shall be split on a 50:50 basis. In the absence of any further agreement between the parties given that the father had the first half of the summer holiday, the mother shall have the first half of the second holiday and the father shall have the second half and so on and so forth. I accept as suggested by the mother that the changeover for access shall start from 10 am on the first day of the school holiday and ends at 2 pm of the last day of the school holiday.  The Parent who has the first half of the school holidays will have access from 10 am to 2 pm on the day of changeover.  The Parent who has the second half of the school holidays will have access from 2 pm on the day of changeover to 2 pm of the last day school holiday. Further following each holiday access, the parent who had the second half of the school holiday will have the children on the second weekend after the school holiday.  For example, if the Mother had the children over the second half of the school holidays, then the Father will get the first weekend (i.e. week 1 of the access schedule) following the school holiday and the Mother will get the next weekend.

d)   I further accept the mother’s proposals with respect to Mother’s day, Australian father’s day, the parent’s birthdays, the children’s birthdays and single public holidays as set out in paragraph 24 (7) (v) – (x).

e)   In addition it is directed that each party shall be responsible for making arrangements for the children whilst they are in their care, including making any arrangements for camps or other extracurricular activities.

Miscellaneous items

76.   The present access arrangements shall continue until the relocation takes place save that midweek access shall take place on Tuesday evenings from after school until 9:00 pm. The Autumn half term shall be divided equally between the parties with the mother taking the first half of the holiday and the father taking the second half.

77.   It is further directed that the children have therapy for themselves and consideration is to be given for joint therapy with the father with a view to strengthening the relationship between the father and the children. In addition, a parental Co ordinator shall be appointed or some other equivalent professional in Australia to assist the parties going forward.

78.   The father shall also apply for a mirror order within the next 28 days, the cost of such to come from the net proceeds of sale of the Sydney property. There shall also be a further First Appointment on the 21 September 2017 at 9:30 am and a Financial Dispute Resolution hearing on the 1 December 2017. Both parties do personally attend both hearings.

Costs

79.   Finally, on the issue of costs, given that this is a child related matter I will make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days. There shall be certificate for counsel and I thank them for their assistance in this matter.