KSLT also known as TKSL v. LXZ also known as ZLX

FCMC 6021/2022

[2025] HKFC 66

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6021 OF 2022

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J U D G M E N T
( Relocation and Custody )

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The Application

1.  There is an application by the Respondent Mother (“M”) on 19 December 2022 to relocate the child of the family H to Guangzhou, China (“GZ”).

2.  The Petitioner Father (“F”) opposes her application.

Background of Parties

3.  F was born in Zhongshan, China (“ZS”), his family moved to Vancouver when he was 11. F was age 33 at the time of this hearing.

4.  M was also born in China and was raised in GZ.  She subsequently moved to Vancouver.  She was age 35 at the time of hearing.

5.  The parties met at university in Canada and commenced their relationship in August 2013.  F worked for a short time in Vancouver after he graduated.  They got married in Vancouver, Canada in January 2015; and moved to Hong Kong in June of the same year.  They started a trading and technology business here, and initially lived at a property owned by the M’s family at Sorrento.

6.  H was born on XX February 2018, he is now 7 years of age.

7.  In around December 2020, the parties moved to a property in Bel-Air owned by F’s parents.  By this time, the parties’ business was focused on high end appliances, sanitary ware and indoor furniture.

8.  It is the M’s case that since H’s birth, she spent a lot of time taking H to visit her family in GZ.

9.  H, aged 3 and in the midst of Covid, spent time in the summer of 2021 studying in a pre-school in GZ while M was in an extended visit there.  On their return to HK in October 2021, H attended W Pre-school (“W”), and also attended interest class at ESF, S School during weekends.  The family went to GZ again in December 2021 for the W’s brother’s wedding, and decided to extend their stay. H attended another pre-school in GZ.  In around March 2022, the parties applied for H to attend an international school in GZ (“G”), when H received an offer in April 2022, F contacted W to withdraw H’s placement.

10.  However, the parties’ relationship took a turn for the worse, M resigned from their businesses leaving F to run it on his own.  In May 2022, the parties separated.

11.  On 11 July 2022, F took H back to HK and stayed at Bel-Air.  The way in which F took H back was an issue raised by M, this will be further elaborated below (the “July 2022 Incident”).

12.  On 12 July 2022, F petitioned for divorce based on unreasonable behaviour.

Some relevant Procedural History

13.  M contested the divorce initially.  However, when F amended his Petition to grounds of mild behaviour in October 2022, M filed her Form 4 shortly after and the main suit was resolved.

14.  In July 2022, F sought an Order of Court to restrict the removal of H from HK, this was granted by HHJ KK Pang on 14 July 2022.

15.  A Consent Order was made on 6 December 2022 wherein F is to spent time with H during the following times:

a.  Week 1 and on alternate week basis, Tuesday day access from 12:30 pm to 8:30 pm, and weekend staying access from Friday 12:30 pm to Sunday 8:30 pm.

b.  Week 2 and on alternate week basis, weekend staying access from Thursday 5:00 pm to Sunday 10am.

M is to spend time with H the rest of the time

16.  M filed her Relocation Summons on 19 December 2022 seeking sole custody, care and control of H, permanent removal of H to GZ, and interim relocation in Summer of 2023.

17.  In March 2023 and June 2023, F filed a Summons to confirm a primary school place offered to H at K School, and sought leave for H to attend Year 1 primary school at K to commence in August 2023 respectively. 

18.  In June 2023, W filed a Summons for interim relocation.  This was not dealt with as F’s school summons was set down for hearing in July 2023.

19.  On 18 July 2023, I made an Order for H to start school at K.

20.  At the CDR hearing on 19 September 2023, the parties’ time with H was varied with H starting primary school. Orders were made for H to spend time with F as follows:

a.  Week 1 and on an alternate week basis, from Tuesday after school to Wednesday morning, and from Thursday after school to Friday morning.

b.  Week 2 and on an alternate week basis, from Thursday after school to Sunday at 7:30

The rest of the time H spends time with M.

The Evidence

	Petitioner F	Respondent M
14/07/2022	Affidavit (restriction of removal of H from HK)
29/09/2022	Form J
29/09/2022		Form J
19/12/2022		Affirmation (in support of Relocation Summons)
21/03/2023	Affidavit (confirm school place for H)
30/03/2023	ISIR
31/03/2023	Affidavit (Oppose Relocation)
18/04/2023	SIR (in Chinese with parties’ agreed English translation)
28/04/2023		Affirmation (Reply to Relocation)
05/06/2023	Affidavit (for H to start school at ESF in August)
19/06/2023		Affirmation (Interim relocation)
09/04/2024		Affirmation (Relocation)
09/04/2024	Affidavit (Oppose Relocation)
23/04/2024	USIR

M’s case

21.  M says GZ is her “hometown”, her family is there, and she has taken H to spend time with the maternal relatives for extended periods, and GZ is also H’s home.  Her application, according to her, is a return home application.

22.  M says neither party live in HK before 2015.  She has a Chinese residence permit for residing in the Mainland.  She also has a home in the same residential development where her parents and siblings live. H has cousins in his age group living in close proximity.

23.  M says if she has leave to take H to GZ, she will be staying at her residence and in close proximity to her family.  She has a strong support system from them for H’s care, with whom he already knows well.  H will be studying at an international school in GZ (“G”), previously applied for together with F.

24.  It is M’s case that after a trip to GZ for her brother’s wedding in late 2021, the parties together decide to stay longer in GZ in January 2022, and subsequently a decision was made to remain indefinitely in GZ, one of the reasons being F’s business was not performing well, and he needs to spend more time on his GZ business.  She says this was why H was enrolled into G and his place at W was cancelled.

25.  M states that, upon their separation in May 2022, both parties have agreed that H would reside with M in GZ during the school term and spend time with F during the summer and Christmas holidays.  F left GZ in May 2022 to stay with his family in ZS, and H would visit him on some weekends accompanied by domestic helpers.

26.  F took H to HK in July 2022, M’s opening and closing submission contain her complaint of F in this incident, she says that H has been wrongfully removed and that F’s evidence “must be viewed with a certain amount of scepticism”.

27.  M has repeated her allegation of F’s mental state, and that he has to take medication to treat his condition. M says that F has been diagnosed with depression, anxiety disorder, adult ADHD and OCD.  She says F’s  occasional temper outburst has led to family discord.  M also went to consult a psychologist in around mid-2021 and was diagnosed with mild depression and anxiety for which she was also prescribed medication.  She says it is difficult to seek agreement with F over H’s issues.

28.  M says she is H’s main carer; that F has shown little interest in H and took up no parenting responsibilities.  She says that there is little evidence to show that F has provided any substantive childcare; and that his case of being a hands-on father is far from the truth.  In her closing submission, M refers to her schedule in her evidence to show how frequent H had been visiting the maternal family GZ, and states how infrequent F has joined them.  M also says this demonstrates that H and her has a closer bond, with H hardly spending any time away from her; while F’s visit with H in GZ was comparatively much less.  M therefore says that F has “elected to be separated from H if and when he preferred to be doing something different”.

M’s Proposal: If leave is granted for H to permanent relocate to GZ

29.  M submits a revised Open Proposal on the first day of trial.

30.  M proposes that she has sole custody, care and control to H.

31.  H will be living at M’s home in GZ, and attends G or any other school in GZ to be agreed between the parties.

32.  F to have defined access based on a 4-week cycle and for school term as follows:

a.  Week 1: H to have staying access with F in HK, for Friday 7:30 pm to Sunday 4 pm.  Pick up and drop off to be at the lobby of the HK West Kowloon High Speed Rail Station.

b.  Week 3: H to have staying access with F in GZ, from Thursday after school (or 3 pm) to Sunday 7 pm. Pick up and drop off at M’s residence.

c.  F to have flexible electronic access to H including a daily goodnight call and any additional direct electronic communication between them.  H has his own mobile phone, and M will facilitate the call.

d.  Should F be in GZ, he can have dinner access with H with prior notice and mutual agreement. 

33.  Long school holidays including October Break, Winter Break, Chinese New Year, Spring Break and Summer Holidays to be equally split in two halves, on alternate year basis.

34.  For single public / school holidays: On the condition that the sharing of these single holidays would not cause the child any additional cross border travels, the parties are to split these holidays on an alternate holiday basis.

35.  H to spend additional time with the parents’ respective birthdays, and on Father’s Day or Mother’s Day in the event those days otherwise fall under the other parent’s time.  For H’s birthday, the non-residing parent would have dinner with him “say from 6 – 8 pm”.

36.  M also offers that should extended family members of F wishes to spend time with H in GZ or ZS in F’s absence, whether in substitution of the week 3 access or otherwise, such access can be arranged with prior notice and with mutual agreement.

M’s Proposal: If Relocation is not granted

37.  M asks for custody care and control.

38.  The proposal for this scenario is largely the same as above.  Except for:

a.  H’s access will be with F in HK.

b.  Week 1 access starts after school or 3 pm.

c.  Pick up and drop off at H’s school or M’s residence

d.  M asks for the liberty to take H to GZ on the weekends or special occasions when she has the child

e.  M proposes that the parties shall not unreasonably withhold their respective written consent for the other parent to temporarily remove the Child out of HK for overseas holiday trips provided that travelling details and itinerary are provided to the other parent at least 2 weeks in advance.

F’s Case

39.  F contests the relocation application and M’s ask for sole custody.

40.  F says that M has been obstructive and difficult in his relationship with H, she acts unilaterally with little regard for F as a parent and refuses to communicate directly with him.  He says she takes all sorts of tactical steps for this litigation which indicates her true intention of keeping H in GZ and reducing the time H spends with his father.  F says that M has more than once threaten to keep H in GZ and not to return H to HK, he further says that M has said that she would “fight F in court until he could no longer see H anymore”.

41.  The following are some of M’s conduct in her co-parenting with F from his perspective:

(i)  School Arrangement

42.  When F brought H to HK from GZ in July 2022, M refused to let H returned to W, F says that M went behind his back and unilaterally enrolled H to another school, P, providing false contact information of F on the application; and that he did not realize H was attending P until after he has commenced school there.  Looking at a letter from M’s solicitors on 8 August 2022 whereby it was said on M’s behalf to F : “For your client’s information, H has commence his new school term today at [P] … (my emphasis)”.  It is quite clear that F has not been consulted regarding P.

43.  Regarding the provision of false information, it was revealed in a letter from F’s solicitors dated 20 September 2022 that M has not only delayed informing F of H attending P until after school has commenced, M has also provided her own alternate email as the F’s email, and a phone number that she told the school belongs to F which is untrue.  Furthermore, when the school wrote to M saying that they could not refuse parent’s pick up of children from school unless documents showing relevant custody arrangements were given, M told the school that the divorce would be finalized in October and documents would be provided to the school, which was also untrue.

44.  M then banned F from picking up H from school or contacting the school; and even on one occasion on 21 September 2022, she picked up H from school early and kept H from attending school for a week just to prevent F from picking him up. 

45.  M’s obstructive attitude continued when she refused to allow F to accept a place for H to start primary school at K.  F says when an offer came through for H in March 2023, M had on the very next day wrote to the school saying that the parties were going through a divorce and hence “not in a position to consider or accept the school’s offer”.  M also instructed her solicitors to write to F, which adopts this tone: “To extinguish your client’s hope to create unnecessary disputes…” and went on to say the mere fact M has jointly applied for K does not translates into an automatic agreement to accept any offers.  This ends with F taking this issue to court to ask that H be able to attend K in August 2023, which was eventually resolved at a hearing in July 2023 as mentioned above.

(ii)  Complaint against F

46.  H’s counsel also says that M has raised a number of complaints about his care for H.  This includes saying that H’s loss of weight was attributable to F.  M’s solicitors continue in their strongly worded correspondences and accuses F of the “negative impact” on H during his staying access with his father.

(iii)  Unreasonable proposal of Access

47.  F also says that M has tried to reduce F’s access in view of H’s commencement of primary school in August 2023.  F says M’s proposal gave him less time (only 2 ½ day including 1 overnight over two weeks) than their previous mediated arrangements in October 2022 (which led to the the December 2022 Order), with no proposals for make up access initially; and when she agrees to a 50% make-up access, it was proposed to be spread out over an extremely protracted period of time.  When M reverted with her proposal in August 2023, her solicitors calls it “final and non-negotiable”; which F says is the usual “highhanded and dictatorial manner” M communicates through her lawyers. 

(iv)  Planning ECA during F’s access time and signing up to joint meeting at school without discussion

48.  F says that M has unilaterally in complete disregard of F, arranged for H’s ECA during F’s time without prior discussion; and signed up for school events and appointment meant to be attended by both parents without notifying or consulting F, including open days and parent teacher consultation.

(v)  No information on travel plans

49.  There have been occasions when M has taken H travelling without informing F, or with delayed information via the domestic helper.

50.  F says he is a very involved father in all aspects of H’s life and under the current arrangement spent 8 out of 14 days including 5 overnights.  Allowing relocation will disrupt H’s life.  F feels that the shared care arrangement now works well and give him a fair amount of time with H, and that it is important that he continues to nurture his relationship with H through physical engagement and not via video calls.

51.  F also says he has no home in GZ. While M has a home in GZ and in HK; and she travels frequently to GZ which is a mere 50 mins train journey with the train station 5 mins from her HK home at Sorrento.  M has a domestic helper and a driver at her disposal in HK.

52.  F says that while M claims to be encouraging H’s relationship with F, she is not.  F says she has asked M to attend co-parenting sessions with him as suggested by the SWO, but M has declined to participate.

F’s Proposal: If leave is granted for H to relocate to GZ

53.  Joint custody.

54.  F to have alternate weekend staying access from Friday after school to Sunday at 6:30 pm in HK.  Pick up and drop off arrangement shall be at F’s residence.

55.  Should F travels to GZ, M shall facilitate generous access to F including staying access provided that he gives M 3 days prior notice.

56.  Daily video call.

57.  F to have 2/3 of long school holidays, including Christmas (winter break), Chinese New Year, Easter and Summer. 

F’s Proposal: If leave is not granted for H to relocate to GZ and will be staying in HK

58.  F asks for an Order of joint care and control, on an alternate week arrangement as follows:

a.  Week 1: H is with F from Tuesday after school to Thursday morning. 

b. Week 2 H is with F from Thursday after school to Sunday at 7:30pm

This is similar to the current arrangement from the CDR except F has joined up the two accesses in the current Week 1 so there will be less transition for H.

The Social Investigation Report

Social Investigation Reports

59.  Two SIRs were filed on the following dates.

First Report dated 30 March 2023 (“1^st SIR”)

60.  The 1^st SIR recommends that leave be granted for H to relocate to GZ, with sole custody, care and control to M.

61.  The report highlights the differing opinions of the parties and the communication challenges they face. 

62.  The SWO’s conversation with H records this:

During the meeting, H introduced his family members and said that he knew where his paternal and maternal grandparents lived respectively.  When he said his maternal grandparents were living in Guangzhou, he said there was many yummy food in Guangzhou and said his cousins would play with him.  However, he immediately stated that [F] did not like Guangzhou. At that moment H’s mood sank and did not speak again.

63.  The SWO recommends staying access for F once a month from Friday after school until Sunday at 5 pm with M bringing him to HK.  And a 2/3 staying access during the summer holidays, and half of the other long holidays to F, also with M to bringing H to HK.

Second SIR dated 23 April 2024 (2^nd SIR)

64.  This is an updated report prepared by the SWO.

65.  This report states that M says H has been acting out with occasional aggressive behaviour, and has complained about access with F, and that H would call M to return to her as he says it was boring at F’s place.  F on the other hand says that there was no such behaviour when H was with him and that H has asked to stay more time with him.

66.  According to F, their communication has improved during the previous half year.  He also says that to cultivate H’s “value and social skills”, he brought H to church gatherings, but because he knew about M’s different religious belief, he would not arrange for H to receive baptism.  On the other hand, M says she still has “great difficulty” in co-operating with F, she says he was controlling and would be furious “while things were out of his way”.  The report went on with a lot of M’s complaints: including feeling “cheated” by F in the issue of school transfer, F not noticing H has eczema, her doubts on F’s care-taking capacity, and F disagreement for H to have probiotics.

67.  The report further records H’s wishes to stay more with M, how he felt alone while staying with F, that he appeared not to have told F how he felt, and that H wishes to study at G where his cousins are also studying.  It was recorded that H says he did not want to stay with the father, and that he was not happy with the current childcare plan, including a number of handovers:

View of the Family Child towards Custody and Access.

18.  The SWO interviewed the boy alone on 26 February 2024, when he was picked up by the father, and on 9 April 2024, when he was escorted by her mother.  During the interview on 26 February 2024, the boy disclosed that he disliked the current child care plan as he was uncertain when he would live with the mother or father.  Besides, he was annoyed by frequent shift of living locations and he disliked waiting for his parents to pick up him in a car.  Sometimes, he saw the mother was unhappy when she texted someone in a mobile phone.  He guessed the father let her down.  As clarified, he did not know the communication target of the texts as the boy did not read the texts and the mother said nothing to him about the texts.  The boy furthered expressed his hope that his parents would be in good relationship.  When further exploration on how the boy had such impression over the parents’ relationship, he appeared to be avoidant by shifting topic. 

19.  In the individual interviews with the boy, he expressed a consistent wish of staying more time with the mother as she and [M’s helper] would play with him and they also would talk and listen to him.  When he stayed at the side of his father, he had been alone frequently as the father was busy at work when [F’s helper] often stayed in kitchen.  Besides, he disliked the father shouting at him and urged him to walk faster when they were out.  Moreover, he had been itchy when he lived with the father.  As explored, the boy revealed that he did not tell the father what he disliked or felt as mentioned above.  While the boy was asked for the reason for not telling the father about his feelings, he kept silent and then shifted topic.

20.  During the end of interview on 9 April 2024, the boy actively expressed his wish of studying at G.  As clarified with the boy, G … was a school where his cousins were studying.  He further said that he would be happy if he studied with his cousins and lived in Guangzhou.  He liked dancing and playing toys with his cousins and he loved doing calculation game with the maternal grandfather. When talking about impact of moving to live in Guangzhou, he knew that he would spend less time with the father and he would separate with his schoolmates and friends met in church.  He further said that he did not want to stay with the father.  He disliked playing with friends met in church as they were not funny.

68.  The SWO continues to recommend relocation to GZ for H, and sole custody to M because:

“… in the light of the above mentioned considerations in addition to the parents’ persistent sorrow relationship and their great difficulty in compromising decisions on location of residence and education arrangement for the boy.”

The International Social Investigation Report (“ISIR”)

69.  The ISIR was dated 30 March 2023.  It reports that interviews were conducted with the maternal grandparents and two of M’s siblings, the international SWO visited the grandparents and sibling’s residences.

70.  The residence that M intends to reside is in an estate in which her father has purchased properties for all his four children.  They all live in close proximity to each other, with M’s apartment only 5 minutes away from her parents. It is an estate which has security guards, and the photos attached to the ISIR show spaciousness and a green environment with clubhouse, swimming pool and recreational facilities for children. 

71.  From the interview the international SWO conducted with the family members, it is reported that H is well loved by his maternal family, they pledge staunch support to M in her care for H; and from the grandfather, financial assistance should the M wants to start a business, or wants a role in the family business.

72.  It also appears that a place has been reserved at G for H, and it is in close proximity to M’s residence.

73.  The report was positive in terms of the living environment and care support for H should relocation be granted.

Legal Principles

74.  My starting point is found in s.3 of the Guardianship of Minors Ordinance (Cap. 13), which states that the best interest of the minor is the first and paramount consideration.

Legal Principles: Custody

75.  F’s counsel quoted the well principles as laid down by PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191 per Hartmann J (as he then was):

“Joint Custody: the proper approach

52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional. This is because it is accepted that, in principle, such orders are in the interests of children.

53. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt. In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents. The case before us is an example.

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody. Nor is the fact that the parent to be given care and control does not agree. Such orders look to the future. They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each concerning matters of importance in the upbringing of the child.

57.  At all times, of course, the welfare of the child remains the first and paramount consideration.  As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.”

76.  F’s counsel further quoted two cases regarding making of joint custody Orders.  It is said for him that it has long been recognised that lack of communication between parties is not a sufficient reason to disallow an order for joint custody.  The following are excerpts from the F’s opening submission:

In the case of “H v A [2005] HKFLR 304 … Geiser J found that it was unacceptable for one parent to stand in the way of the other and deny their fundamental rights in respect of the child by simply asserting that they cannot communicate with that party, particularly where they choose not to do so.”

“Orders for joint custody will also be made in circumstances where they are aspirational in the expectation that the parties will be able to work towards more effective co-parenting moving forward. Such an approach will also serve to prevent an unco-operative parent from benefitting from his or her own refusal to co-operate: see SEB v ZX (Custody) [2007] HKFLR 165.”

(my emphasis)

Legal Principles: Relocation

77.  The applicable principles governing relocation application were based on the English Court of Appeal case of Payne v Payne [2001] Fam 473 and adopted by our Court of Appeal in SMM v TWM [2010] HKFLR 308, [2010] HKLRD 37 CA where Cheung JA summarised them at §21 of his judgment as follows:

“1) …

2) …

3) The application should be approached as follows:

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

(2) 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?

(3) 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?

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

4) In short, the relevant factors are:

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

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

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

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

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

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

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

78.  In the case of BA v BL (Child Relocation) [2019] 4 HKLRD 23 the Court of Appeal per Cheung JA reiterated and further elaborated on the approach to be taken in relocation cases: 

“4.12   This led to the more recent decisions of the English Court of Appeal such as K v K where it is stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration … The three judges in K v K, Thorpe, Moore‑Bick and Black LJJ were of the same view on this point.

4.13   …

4.14 … Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case. The value of Payne is that it "identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case", per Black LJ at [144] in K v K. In my view Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically.

...”

79.  I also found the following from Lady Justice Black (as she then was) in the abovementioned case of K v K [2011] EWCA Civ 793 to be of assistance:

“141. The first point that is quite clear is that, as I have said already, the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.”

80.  HHJ I Wong has in his recent case of JTMW v NAV FCMC 8504/2017 [2020] HKFC 244 succinctly summarized important points of principles enunciated in the case of ZJ v XWN at paragraphs 53 - 55:

53. The Court of Appeal endorsed what Vos LJ said in Re C (A Child) (International Relocation) at [82] and [83],

82.  I add a few words in an attempt to summarise the position that has now been reached. As counsel before us agreed, in cases concerning either external or internal relocation the only test that the court applies is the paramount principle as to the welfare of the child. The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable. The exercise is not a linear one. It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child. It is no part of this exercise to regard a decision in favour or against any particular available option as exceptional.

83. ... 

54. The Court of Appeal also dealt with the use of the “welfare checklist” in the balancing exercise.  The “welfare checklist’ is only an aide-memoire.  A judge is not required to mechanically list every factor to demonstrate that he has considered the same. 

55. The Court of Appeal emphasized that the guidance in Payne or SMM v TWM or the welfare checklist are simply tools to assist a Family Judge in making the multifactorial assessment to reach a result which is in the best interest of the child after taking account of the potential impact on the parents: at [30].

81.  The consideration of guiding legal principles will be incomplete without citing what has been referred to as the welfare checklist factors, which have been listed in our Children’s Proceedings (Parental Responsibility) Bill, and has yet to be passed as law in Hong Kong (the “Welfare Checklist”).  These are factors that should be taken into account when determining issues relating to children and where their best interest is to be considered:

a.  the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding;

b.  the child’s physical, emotional and educational needs;

c.  the nature of the relationship of the child with each of the child’s parents and with other persons;

d.  The likely effect on the child of any change in the child’s circumstances;

e.  The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

f.  The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

g.  Any harm which the child has suffered or is at risk of suffering;

h.  Any family violence involving the child or a member of the child’s family;

i.  How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

j.  (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

k.  The range of powers available to the court under this Ordinance in the proceedings in question.

l.  Any other fact or circumstance that the court thinks is relevant.”

82.  With these principles in mind, I shall proceed to apply them to the case at hand.

The Analysis

Parties’ relationship

83.  It is obvious that the parties’ relationship is at a very low point. The tone adopted between the parties can be seen from the WhatsApp and WeChat messages which show the level of distrust between them.

84.  F says that M has launched personal attacks against him, the allegation of mental illness, and his ability as a father to H.  Her oral evidence shows she values little about F or his role in H’s life; in her cross examination, she admits that she does not like F’s family and has blocked H’s communication with his paternal grandparents.  She has also told H that she hates F. 

85.  M complains that F has been abusive and bad tempered, and she was the “battered spouse”.  Therefore, she says she could not co-parent with F.

86.  The antagonism between them is quite obvious and crippling to their co-parenting relationship, and it appears that they are oblivious to the fact that H is caught between them with accumulating negative impact. 

M's allegation of both parties’ plan to stay in GZ

87.  F says there was no agreement, and that M’s oral evidence shows that the parties have been talking about a divorce since early 2022, so it could not be that that there was a mutually agreed plan to stay in GZ.  F says that the G application was a fall-back plan as schools in HK has remained close due to Covid, but M has paid for G school fees for a full year behind F’s back and she has asked F’s mother for the money to do so. 

88.  M also says F has written to W for a refund, F says this was under pressure from M to do so.  And he subsequently called W to keep H’s place, but H did not return to W when M unilaterally enrolled H into P after the July 2022 Incident.

89.  The argument from F's perspective was that M intended to keep H in GZ and claims that H remained in GZ by mutual agreement.  This intent was disrupted when F brought H to HK during the July 2022 Incident, after which the complaint was redirected against F, suggesting that he was instead strategically establishing a status quo for H.

90.  Since then, the evolution of the proceedings has kept H in HK when I made the decision for him to attend K in August 2023.  He should be in his second year of primary school by now and shall probably be completing this academic year in HK.  He may well have settled into life in HK coming up to 3 years.  Be that as it may, agreement or otherwise, litigation tactics or not, the Court needs to be forward looking as to decide what is best for H.

July 2022 Incident

91.  According to M, H was to spend the weekend of 9 and 10 July with F, and back with M on 11 July.  She says F texted her on 11 July late afternoon that he would be taking H to HK to visit his mother for the summer holiday, M says she thought F was only talking about the summer arrangement.  She only found out from the domestic helper in HK that evening when the latter sent a picture of herself taken with H that M realised F has brought H to HK.

92.  F says that he was concerned about M’s family’s ties to triads, the threat of losing contact with H or being obstructed from bringing him back to HK.  With these concerns, he told M that he was bringing H to visit his mother in HK; and as he did not have H’s travel documents, he obtained a one-time PRC Exit and Entry Permit and brought H to HK on that day.

93.  When M returned to HK on 15 July 2022, F agreed for H to return to her at Sorrento for 5 days, but M refused to return H to F after.  F says that M has since become extremely restrictive and dictatorial about F’s contact with H. 

94.  M queried how F was able to bring H into HK when he did not have H’s travel documents.  She found out in June 2023 that H’s ID card has been reported lost, F says he has no knowledge of this.  M later found out from the HK Immigration Department which replied in writing in late 2023 that H’s ID card was reported lost by F on 11 July 2022.

95.  According to M, she has also been informed “orally” by the Mainland authority that F has claimed that H’s Return Home permit was lost, which is how the F could procure a one-time permit for H in July 2022.

96.  M therefore says that F has made false statement to the authorities in order to bring H back to HK, she then says that F has justified his action the night of 11 July 2022 by saying that GZ is not a good environment for H and she was too close to her family.  F then issued his petition for divorce the next day, followed by an ex-parte application to prevent H’s removal from HK.  M thus says this has all been a pre-planned scheme to deprive M from care of H, to disrupt the agreed arrangement between them and to create a new status quo to his advantage. 

97.  In M’s closing submission, reference was made to her statement that she hates F and would fight F in court until he could no longer see H, and thatit was said for her that she has spoken these words in heightened emotion over this incident.  Her counsel urges the Court not to place much weight on things the parties have said.

98.  Stepping back to look at this, it does appear that F has brought H back to HK in a fashion where it is evident that there was no clear discussion with M about this plan.  This is clearly an objectionable way of communication and has probably laid the ground for what is now the apparent lack of trust between the parties; and M has then in her own way went off subsequently to make decisions and took actions regarding H without informing F.

99.  Given M’s stance regarding the way in which H was brought back from GZ, on day 3 of the trial, I asked whether counsel for M intends to cross-examine F on this topic, I cautioned F and proposed time for F to take proper advice as to his rights regarding such questions. M says that the significance of this is that F has continuously denies any wrongdoing on his part, and submits that the Court needs to be wary of F’s inability to self-reflect or have any insight into his own behaviours, and how this self-centred personality makes it very difficult to engage in a meaningful conversation with him.

100.  I do not intend to make a finding regarding what exactly has transpired at the immigration checkpoints on 11 July 2022.  This in itself has no direct bearing on the decision I have to make in this application.  What I will take into consideration is F’s action in bringing H to HK without informing M; I am also of the view that the M’s utterance mentioned above is a lead into her various conduct after she returned to HK, and is not a comment that I can just ignore.  I remain conscious that this incident has caused a serious rift between the parties, and the domino effect it has on what followed.

Parties’ Communication

101.  M says she cannot communicate with F, F says this was deliberate litigation tactic on her part to position for sole custody.

102.  As mentioned above, there have been occasions when the parties were able to discuss and negotiate on matters regarding H.

103.  F’s counsel reminds me that there was a letter from M’s solicitors in July / August 2022 which states that:

“our respective clients are engaging in continuous communications on a daily basis in quite an amicable and respectful manner, including but not limited to H’s welfare.”

104.  Then suddenly in the following month, M’s solicitors wrote to F to say that M would no longer be responding to F’s direct text communication, but instead her solicitors will take over communication with F’s solicitors.

105.  Thereafter follows a litany of accusations from M’s solicitors on her behalf against F: “hostile and aggressive behaviour” “cause irreparable harm to H”, “continuing disrespectful / insulting conduct towards and verbal abuse on our client throughout the marriage and ... these proceedings.” “… explosive temper, arrogant attitude, insulting and threatening messages sent to our client … intolerable to engage in direct communication”.

106.  In a letter dated 31 May 2023, M’s solicitors also went on to say that M this:

“Suffice to say that your client should not force our client to resume direct communication with you against her wish and at the expense of her feeling, especially when the domestic helper and solicitors are available channel of communication.”

And that “direct communication, as well as co-parenting is unrealistic.”  

107.  These messages were often repeated, yet F’s counsel says M never provides evidence to substantiate any of her accusation.  On 23 August 2023, F’s solicitors wrote to M’s asking for proof of F’s “explosive temper, arrogant attitude, insulting and threatening messages”; I have not be brought to, nor am I  able to find any response from the M’s solicitors in the correspondences which closely follow this date. 

108.  There were several attempts on F’s part to ask M to resume direct communications which was ignored or denied.

109.  M also acts through her domestic helper, F says she used the domestic helper to inform him that H was in hospital but without saying which hospital; or that M was travelling with H to Thailand but the domestic helper did not tell F until H has departed.

110.  In January 2023, in breach of an Order granting leave for M to go to GZ, she took H to Qingyuan, and F was unable to reach H. 

111.  F has exhibited in his 5^th Affidavit dated 9 April 2024 80 pages of WeChat messages between the parties regarding H from October 2023 to the date of his affidavit, which shows that parties do have communication with each other.  F says that is only when M chose to do so, so obviously she could if she puts her mind to it.

112.  It is also worth noting that in both the SIRs, the following are reported:

While the parties reported that the arrangement after the December 2022 Order were “roughly smooth”, … 

“However, they could not directly communicate with one another. [M] said it is difficult to directly communicate with [F], since they usually end up arguing with one another. To avoid affecting her emotions, she would communicate with [F] regarding H’s pick up arrangement through the domestic helper, who would contact [F] via instant messages. [F] pointed out during the investigation that he tried to communicate with [M] but still could not establish effective form of communication. [F] stated that if mother is willing to do so, he is happy to communicate with her through any method.” 1^st SIR §9

“To avoid entangling into a conflict with the father, the mother maintained minimal communication with him by phone messages or she asked help from [domestic helper] to contact him.” 2^nd SIR §15

“In view of the mother’s expressed communication and cooperation problems with the father, co-parenting counselling was suggested but she refused as they had already received medication and counselling, but no positive change happened.”2^nd SIR §15

113.  Having repeatedly said that it is difficult to communicate with F, hence joint custody is impossible, M’s counsel took the following angle in her closing submission. This was in her counsel’s submission:

“What F has achieved at trial was to take M through individual incidents in wanting to demonstrate M being unreasonable in her decision-making e.g the Covid-19 vaccination example. That is different from suggesting M does not communicate with F.”

“It is boldly submitted that throughout these proceedings, communication had always been present and as listed above, multi channelled. If F is going after M’s ability to make sound decisions for H’s best interest, then it is not so linked to relocation. In other words, with other factors being satisfied, how possibly can mother be deprived of going home … when she continues to communicate with the left behind parent, but only that the parent keeps failing to reach consensus on child matters?”

114.  It is therefore said for her that M outright denies F’s allegation that there had been no communication. And that F has in fact been on the receiving end of direct communication, except that he was unhappy because “his decisions were not being adopted”.

115.  M’s counsel argues that M has continued to message the F, gives instructions to lawyers to handle correspondences, uses her domestic helper to conduct some topics regarding H.  Her counsel maintains that M is neither dictatorial nor uncooperative in communication and managing child-related matters; and that M can make adjustment.  It was further submitted on her behalf that on the conclusion of this case, parties can appoint a parenting coordinator to deal with conflicts.

116.  I find this change of angle interesting.  Contrary to the M’s solicitors’ correspondences and the SIR reports, her counsel now appears to be arguing that they do communicate but because of F’s personality issue, they are not able to agree on matters; and that communication is different from decision making for H, the latter being a custodial issue. 

117.  I take the view that co-parenting starts with communication, which then leads into discussion and decision making for a family child.  On a balance of probability, I accept F’s evidence in that it has been difficult to even get M to respond, M’s solicitors’ letters with its scathing tone do not assist, and the domestic helper as a go-between has shown to be unreliable, deliberately or otherwise.  I am inclined to find that these are all M’s litigation tactic for her ask for sole custody.  I do not believe that M cannot communicate or discuss H’s issues with F, she just chose not to or do as she please. 

118.  Having previously declined co-parenting counselling / assistance with F, now her counsel suggests the appointment of a parenting co-ordinator.  I will consider this at the end of this Judgment.

Joint or Sole Custody

119.  M asks for sole custody.  Her counsels submits that the F has been “uncooperative” in respect of every issue that has arisen between them, being place of residence, religion (saying that F takes H to church against M’s objections), education (alleging that F misrepresents parties’ intentions regarding W and G) and health (alleging F objected to H having covid vaccinations).  Then she repeats that F has removed H from M’s care without her knowledge and make false statement for the Immigration Department.

120.  I fail to understand this stance that M is taking.  The parties have actually reached agreement for interim access for H’s care and control arrangement which was made into an Order in December 2022.  The parties further reached agreement for school term time arrangement during the CDR.  While M can say on both occasion it was with the assistance of third parties, nonetheless agreements had been reached; and third parties can be further engaged to assist if need be.

121.  M relies on F’s position on covid vaccine to say she cannot discuss matters with him; F says that M has not put into evidence the complete picture of their conversation regarding the covid vaccine for H.  He says that M notified him the night before she scheduled the vaccine for H.  All F was asking was to check with a doctor whether it is appropriate for H at his young age to have covid vaccine, he was concerned about potential adverse effect or undesirable side effects, and he only asked that M go with H to get a proper assessment before getting his vaccination.  Looking at the complete conversation provided by F, it is clear that M has left out two messages from which clearly shows that F has stated the basis of his concern and that he is not objecting to vaccination.

122.  M’s act of selectively producing her conversation with F is reprehensible.  M calls this a “big example” of the difference between F and her regarding the priority of H in their respective lives.  I do not find that M has substantiated her contention that she is unable to have a conversation and that F.

123.  As said above, I am of the view that there is a lot of mistrust between the parties.  Considering all the issues that joint custodial parents have to deal with:

a.  Disagreement over residence is now before the Court, relocation is understandably a difficult one to negotiate.

b. The parents have different religious beliefs, F is aware of this, and in taking H to church it was more about values and social interactions, F has made it clear that in recognising M’s religious beliefs, he does not intend for H to be baptized.  From the evidence, it does appear that H has a very close circle with his cousins, I accept F’s act is to increase or improve H’s social skills beyond and recognise that this is for his growth.

c.  As for issues over schools, M has adopted a high-handed approach in enrolling H to P, and refusing to allow H to attend K being the only place which has offered H a primary school placement at that point of time.  H’s attendance at either G in GZ and K in HK will be determined with this decision.  H has settled into K if he stays in HK; and if in GZ, it does not appear that F has disagreed to the choice of G. 

d.  The topic of the Covid vaccination has been covered above.

124.  From messages exhibited in the bundles, M has used her helper to give information to F when she could have done it himself.  Eg. A trip to Chiang Mai in December 2023 was communicated by the domestic helper and only when M has already left.  The helper has taken upon herself the blame for the delay in informing the F and has said that the trip was “planned ahead and in advance”.  This is not an issue of inability to communicate but more of M’s unwillingness to do so.

125.  I do not see any basis where M alleges that she cannot communicate / make joint decisions with F to be borne out by any evidence before me.   

126.  M has chosen to take a position where she can make all the final decision for H if F disagrees, this seems to align with F’s allegation that M wants to exclude him from H’s life; at least in terms of important decision making.  M has through her solicitors chose to only announce what she wants, and called it “final and non-negotiable”, giving her sole custody will exacerbate the situation and make the parenting relationship worse, as F would continue to react to decisions she has made without telling him.  As H grows up, he may be increasingly caught in the parental conflict. 

127.  I maintain the position that H should have both parents in his life jointly making important decisions for him, their difference in view may serve as a check and balance for considerations to be weighed in any given issue if F and M can both act maturely for H’s best interest.  I take the view that the parties shall have joint custody of H. 

Is this a return home application?

128.  M says this is a return home application.

129.  F says M left GZ for Canada in 2006 when she was 17 and has not lived there as an adult.  They got married in Canada and then came to HK in 2015. 

130.  Furthermore, he says GZ is not H’s home, he was born in HK.  While H has a number of maternal relatives in GZ with whom he has a close relationship, and M brought him to GZ a number of times, and he has spent a protracted amount of time there especially during covid; F says he can continue to have a close relationship with them as they are merely a short distance away.

131.  F also says that M does not say she has to relocate to GZ for her work or career, that it was a mere lifestyle choice for herself, M has not presented any fixed plans to work in GZ, although she says that she intends to work for her family.  Since resigning from the parties’ business, she has been a full-time carer for H.  In arguing against M’s position that she felt trapped in HK with no family here, he says that she is only 1½ hours travel from her home in GZ where she could be with her maternal side of the family.

132.  All that considered, I agree with M that this is a return home application for her.  She was born and raised in GZ, she went overseas to study, got married and started her married life in HK; but GZ is her roots and where her family is.

133.  There is an argument that a return home application should have a lower bar; while I will consider this factor, it is just one of the several factors that I have to take into account. 

Does M support F’s relationship with H

134.  M has told H that she hates F, then when H had to leave P and attend K, F says that M told H that “Daddy won against Mommy”.  Although M denied using those exact words, her solicitors clarified in their letter that M only informed H it was “against her wish” and there was a “Court Order compelling change of school” initiated by F.

135.  M puts into evidence a few video clips to show how reluctant H was to go to access or have telephone access with F.  The overall impression from these clips shows H being aware of being taped and saying he does not want to go see his father.

136.  F submits that, ironically, the videos have the effect of demonstrating how lacking M is in her encouragement of H to see his father.

137.  Under cross examination, when asked who was taping these videos, M says it was her domestic helper, M was also evasive when asked whether she was present when these videos were being taken.  F’s counsel submits that as these videos were exhibited by M, whether it was taken by her or in her presence, she was complicit in such behaviours.

138.  I accept F’s contention in that M has not proven herself to be effectively supporting his relationship with H, and could do better.

Accusation of F’s Physical Abuse and Mental Illness

139.  In the context of M’s complaint about F’s temper and violent behaviour, F’s counsel says that M was only able to show one video clip from 2019 to demonstrate her allegations.  F acknowledges to losing his temper but not to violent actions.  The clip was shown at trial, it did show M locking herself in a room and F losing his temper, but there was no slapping of the M’s face, nor of F grabbing her phone and throwing it away, as she alleges.  F says the home has all along been monitored by CCTV, and M has failed to show the incidents she says took place, nor is there any further video clips to prove her allegations.

140.  I agree that this one historical video could hardly be used to substantiate M’s allegations that she was consistently suffering from physical abuse at home during the marriage.

141.  There has been a constant barrage of complaints of F’s mental state, yet M continues to propose weekend access to him.

142.  M says that when F was facing the inevitability of divorce in May 2022, it has caused him to be mentally unstable.  There is in evidence messages between the parties’ respective parents where F’s father says that F was in unstable mood due to the breakup of the marriage and failure of business.

143.  F provides a letter dated March 2024 from his treating psychiatrist which indicated that F has been following his medication regimen, is recovering, can function well in daily life, and is mentally fit to take care of H.  This letter was not challenged by M and as she has proposed access (including staying access) to F, I shall give little weight to this complaint.

Further comments on the SIRs

144.  The following are from the F’s submission, to which I agree.

145.  F’s counsel reminds me that this is the first relocation report that this SWO has done, and therefore she is inexperienced.  F complains that the SWO has not read the affidavit evidence, nor reviewed the video evidence supplied by M (which would have shown that M might not be supporting access).  In her oral evidence, the SWO says she could not remember if she reads all / some of the affidavits and that she admits to not looking at the video clips.  

146.  F also says that various issues have not been properly investigated, and her reports are unbalanced.

147.  The SIR states that H says he wants to live in GZ and study at G.  It was also said on behalf of F that H was only 6 years old then, and therefore far too young to have his views taken into account on a question as complicated as relocation.  Furthermore, the SWO should be conscious that H’s views were volunteered at the end of the interview.

148.  The SWO should have investigated when H expressed reluctance to stay with his father.  When asked if she was concerned, her response was, “I believe that we should not connect these things.” When it was noted that this contradicts her observations of F and H's good relationship, she says, “it's a bit complicated.” F states that this clearly warrants further investigation, which was not done.

149.  F also complains that the SWO has placed undue emphasis on H’s relationship with the maternal side of the family, and that the SWO has under assessed the importance of the relationship between H and father.  When asked if the father holds more importance than cousins, the SWO’s response was “I do not disagree”.

150.  One of the reasons that the SWO recommends sole custody was the M’s version of events in which she has been “cheated” by F over the school applications, and that F was unco-operative specially that he has refused to sign applications, F says that this matter was just accepted by the SWO and not investigated at all.  It is not clear which application M is talking about.  Considering all the schools that H has attended, both parents applied to W except that H joined the school later than intended.  Both parents also signed up for G.  M enrolled H into P – so this is not a case in which the F did not sign, he just did not know.  If it was K, it was the M who did not allow H to attend.  A deeper dive into this allegation by M would have revealed that her complaint was untrue and yet this was not done by the SWO.

151.  As for co-parenting counselling, F says this was recommended by the SWO initially, she than takes a different view in her updated report and accepts that it was understandable that M has refused.  The SWO says there was no significant improvement regarding communication between the parents, they had a difficult relationship and there were a lot of mutual accusations.  The SWO is probably unaware that she is describing the situation of practically most of antagonistic relationships going through divorce proceedings.  This by itself should not be the basis of recommending sole custody.  Nothing was said by the SWO of the F’s attempt at communication, and that the parties had previously managed to come to agreement of interim access arrangements.  Her one other reason of not recommending joint custody was because the parties could not agree on the relocation.  

152.  I agree with F that the analysis of the SWO is lacking.  In reviewing her oral evidence, she seems to show a more sympathetic stance towards M.  I do acknowledge the collection of information and the interviews that were conducted, but I do not accept her analysis and basis of sole custody recommendation.  

My findings

153.  The following deals with the application of the principles and guidelines from the caselaw to the facts in this case.

Are the applications genuine and not motivated by the parties’ desire to exclude the other parent from the J’s life

154.  Looking at the parties’ respective cases, understandably, both of them just want to have H by their side.  Despite the difficulties in the relationship between the parties, it is my view that M’s application is not taken out with a desire to keep F out of H’s life, although it does appear to me that she needs to be in GZ more for her own sanity.

Is the application realistic and found on proposals well researched and investigated

Accommodation

155.  M says that she has a residence in GZ.  The ISIR reports on this, the accommodation looks satisfactory, and F has not challenged this.

Schools

156.  H will attend G in GZ. The parties applied for this school together back in 2022, and a place is currently held for H.  F does not appear to dispute this in his case.

Financial

157.  Financial resources do not appear to be an issue in this case nor for this application.  The maternal grandfather makes it very clear that he is more than willing to support M and H if required.

Care Plan

158.  M says she has always been H’s main carer, and I accept this.  It is also apparent that if in GZ, M’s extended family will also be able to support her both emotionally and in her physical care of H, M also says she intends to apply for her current domestic helper (who is familiar with H) to work for her in GZ.  

159.  There is no challenge from F in terms of the overall care plan proposed by M.

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

160.  It appears that F’s opposition stems from his concern that he will lose his relationship with H; and not about H’s welfare in GZ. 

161.  From the F’s case and his oral evidence, I accept his concern; but there is no ulterior motive on the F’s part.

Will the granting of the Relocation Application be detrimental to F and his future relationship with H

162.  While I conclude that F is not the hand-on father he claims to be, H’s move to GZ will result in a decrease of access time with H.

163.  I have to consider the role that M will play in H’s ongoing relationship with F.  Several aspects of her past conduct has caused me concern:

a.  M’s behaviour after F brought H back to HK has been difficult, on a balance, I accept F’s version of events, and also that M has refused to return H to him.

b.  M enrolled H into P and presented F with a fair accompli.

c.  M did not allow H to go to K, insisting that H stayed one more year in P.  While at that point of time, K was the only school which has offered H a place in a primary school.

d.  I accept F’s interpretation of the videos M took.  These videos were meant to be used by M to demonstrate H’s unwillingness to attend access with his F; but actually, turns out to show more how M has not given active encouragement to H to attend access with H on these occasions.  In oral evidence, she says she was not the one taking these videos, so it was probably the domestic helper.  While she did not discourage or prevent him from going to see F, it is quite obvious the choice of words adopted could be better considered.  If she was really not present, F says she is complicit, and I agree.

e.  I find that M has deliberately chosen not to communicate with F and then says that they cannot co-parent.  These came through in her solicitors’ strongly worded letters, and that she also chose to rely on her domestic helper as the messenger.  As said above, I have made a finding that these are her litigation tactic. 

f.  M’s accusations of F’s abusive behaviour and inability to care for H have not been substantiated by evidence.

164.  M needs to come around in a big way in facilitating better relationship between H and F, and I am placing some hope that when this litigation is finalized, M can see better sense and can act appropriately in embracing F’s presence in H life.  I will further elaborate on this below.

To what extent would that detriment be offset by extension of the H’s relationship with his extended family in GZ

165.  H has his maternal grandparents, M’s three siblings and 5 cousins in his age group in GZ; and he sees them often and has a good relationship with them.

166.  From the F’s case, I recall that the travelling time required between HK and M’s family home in GZ is about 1 ½ hours.  Within the dynamics of this case, I take the view that H can maintained a good relationship on both ends due to the proximity between HK and GZ. 

What would be the impact on M on the refusal of her realistic proposal?

167.  M’s counsel was quick to stress how staying in HK would impact her.

168.  M says she feels trapped in HK, and that F has created a situation where she has to stay here due to the litigation.  She says she has only one friend in HK.

169.  For the past while, M has maintained a pattern where she manages H’s care arrangement and his access to F, with H studying in HK; while also travelling to see her family in GZ.   

170.  I do not accept that the impact on M is as serious as she makes it out to be.  She can continue to say she feels trapped but she is not.  This relocation application is different from other application in that the relocation destination is close to HK, her family is a short distance away; and her case that she has only one friend here is clearly a matter of personal choice.

171.  However, I do accept that the litigation has taken a toll on her, as would anyone in the circumstances.  This in turns affects her conduct, her attitude to F, and her co-parenting efforts; and consciously or unconsciously on her part, has a knock-on effect on H. 

Other factors to consider

172.  Reference must be made to the Welfare Checklist wherein stressed the need to consider the wishes of the children.  

Wishes of the Child

173.  At the time of the 1st SIR, H was 5; and at the time of the 2^nd SIR, H has only just turned 6.

174.  With regard to children’s views, the observation by the Court of Appeal in YSYM v LHB [2020] 586 at §71 citing Rix LJ from Re R (Residence Order) [2010] 1 FLR 509 §57 remains good guidance:

“[57] The importance of listening to a child once he or she has reached the age of 10 … has been stressed in the authorities. Thus in Re L (A Child) (Contact: Domestic Violence) [2001] Fam 260, [2001] 2 WLR 339, [2000] 2 FLR 334 at 271-271, 347 and 340 respectively, Dame Elizabeth Butler-Sloss P sitting in this court cited with approval Contact and Domestic Violence – The Experts’ Court Report [2000] Fam Law 615 at 624 on the subject of a child’s wishes:

‘…while this needs to be assessed within the whole context of such wishes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child's resistance appears to exist.’

…”

175.  I recall that H’s wish, as captured by the SIR at the end of one interview, was not a result of the SWO’s enquiry but was volunteered by him.  Reference is made to the above quoted paragraphs excerpted from the interview. 

176.  I am of the view that little weight be attached to H’s views.  Not only would he not comprehend the implication of relocation at his age, he was also of an age at which he would hold a view which may be “indistinguishable … from the wishes of the main carer”.  It is recognised that he has a close bond to his mother, and I am mindful that H volunteered his thoughts at the interview where he was brought by his mother to see the SWO.

Father’s Connection to HK

177.  When the parties moved to HK in 2015 and started their marital life and businesses, neither of them has ties here.  M’s residence at Sorrento was a property purchased by her family before they came to HK.  F says the Bel Air property was purchased by his family.  Nor is F’s case that his businesses are inextricably tied to Hong Kong, he has businesses in the mainland.

178.  F’s extended family is in ZS, his mother travels to HK on occasion, and his sister lives in Canada.

179.  There is no evidence before me that F is rooted in HK and cannot operate from elsewhere, e.g. from ZS, or other parts of Guandong in closer proximity to GZ.

Holistic assessment of what is in the best interest of the Children: the Balancing Exercise

180.  I have only one guiding principle in making the determination for this application, I have to decide what is in H’s best interest.  As with all relocation cases, fine balancing is warranted, the binary nature of such applications always makes these a challenging exercise to undertake.

181.  I have decided to allow H to relocate to GZ, but he must complete his current school year at K before leaving.

182.  I must start with putting on record how unimpressed I am of M’s conduct, her written and oral evidence, and how her case was put forward by her solicitors.  At one point, I have to consider whether all these conducts are her true nature and intentions, or if this is the pressure of the litigation.  I will not repeat my concerns, but I must say that M needs to understand her obligations as a joint custodial parent with F.  It is important that F must participate in important decisions concerning H; more particularly, it is important that F must be informed where H is physically and this translates into M properly informing F when she intends to take H travelling, either within the Mainland or overseas.

183.  I particularly remember an issue arose over discussion between parties when M intended to take H away during Spring break in 2023.  M has proposed to take H to some place in the Guangdong Province but has refused to say where.  F’s solicitors wrote this on 8 March 2023:

“Your client requests to take H to Guangdong Province which has 21 prefecture cities. As will be expected by the Court, your client needs to be more specific in terms of her travel plan, particularly where exactly she wants to take H inside the Guangdong Province.”

Whereupon, M’s solicitors wrote the following in reply:

“The description of Guangdong Province and Macau is specific enough for your client to know the whereabouts of H during the intended Spring Break trip. Further, your client’s concern (if any) has been adequately addressed by Recital D of our draft Consent Summons …”

184.  Recital D is M’s undertaking to return H to HK after travel, this could not replace an obligation to inform F of travel plans.  One just needs to take a look at a map and find Guangdong to figure out why F needs more specific details.  Such response from W’s solicitors is totally unacceptable, and non-conducive to encouraging a proper co-parenting relationship between the parties.  Therefore, there is a need to clearly define the parameters of these travel plans hereinbelow.

185.  Having considered all the evidence, I am of the view that H will be happier in GZ.  There he is surrounded by a large circle of loving relatives; he has a lot of space to roam around in his neighbourhood and playmates his age to spend time with.  He will be studying at the same international school as his cousins.  There are also a lot of attention at home, from those attending to his and the other children’s needs, loving grandparents and uncle and aunts.  This is clearly in H’s best interest.

186.  I will also add that M should refrain from involving H in these proceedings and be conscious of how her behaviour will affect H, and in his relationship with F.  One of the reasons I have decided to allow the application lies in part with the view that M will be in a better overall state if she can be in GZ with H; and when this matter is concluded, she can put this litigation and the history behind her and will constructively enable F to be engaged in H’s life.  The flip side of the coin in disallowing relocation maybe that she will grudgingly stay in HK, convince herself that she is trapped and friendless; continue her “fight” with F and find faults with him at every turn.  Eventually, the most unwarranted victim in this latter scenario, is H.

187.  The redeeming factor in this case is the proximity of GZ to HK.  My concern about the M’s previous conduct must be balanced with a very generous access regime to F, which will be elaborated below.  But the proximity makes frequent access possible, and it is important to allow F to spend time with H as much as possible. 

188.  It is also paramount that F takes proper legal advice as to how to enforce his parental and access rights in the Mainland. 

F’s Access after relocation

189.  There shall be alternate weekend staying access with F.  This is to be from for Friday 7:30 pm to Sunday 4 pm.  All weekend access, unless F agrees otherwise shall be facilitated by M bringing H to HK, and H shall be picked up and dropped off at F’s residence.  I do not accept that M mandates that the alternate weekend access under her proposal must take place in GZ.

190.  On the week where F has no weekend access, F shall have dinner with H on one weekday from 5:30 pm to 8:30 pm in GZ, the choice of weekday to be discussed and agreed with M.  On these weekday access, F will travel to GZ and pick up and drop off shall be agreed between the parties, but the default shall be at M’s residence in GZ.

191.  On an ad hoc bases, should F be in GZ, he can have dinner access (from 5:30 pm to 8:30 pm) and staying access with H, with no less than 3 days prior notice and mutual agreement. Pick up and drop off shall be agreed between the parties but the default shall be at M’s residence in GZ.  This shall be in addition to the access in the above two paragraphs.  

192.  F to have flexible electronic access to H including a daily goodnight call and any additional direct electronic communication between them.  H shall have his own mobile phone, and M shall facilitate the call.

193.  F shall have 60% of H’s Summer Holidays.

194.  Long school holidays other than Summer Holidays, including October Break, Winter Break, Chinese New Year and Spring Break shall be shared equally.  The parties shall take turns in alternate years taking the first and latter half of each holiday. 

195.  For single public / school holidays: On the condition that the sharing of these single holidays would not cause the child any additional cross border travels, the parties are to split these holidays on an alternate holiday basis.

196.  H to spend additional time with the parents’ respective birthdays, and on Father’s Day or Mother’s Day. 

197.  For H’s birthday: 

a.  If the day following H’s birthday is a school day, then dinner shall be in GZ from 5:30 pm to 8 pm.  Pick up and drop off at M’s residence unless otherwise agreed.

b.  If the day following H’s birthday is a school holiday, then F shall have dinner access with him, and to include staying access which can take place in HK or GZ.  M shall arrange for pick up and drop off at F’s residence if this takes place in HK. Subject to train schedule adjustment, H shall be in HK for dinner and be picked up by M before lunch the following day.

198.  F shall be at liberty to take H to ZS or spend time with his family on the weekends that he has access with H.

199.  Travel:

a.  Both parties must inform each other 7 days before if either one of them wishes to travel with H outside of GZ, and within the Mainland.

b.  Both parties must inform each other 21 days before if either one of them wishes to travel with H outside of HK and the Mainland for overseas trips.

On all occasions regarding travel plan under a or b above, the travelling party must provide to the other parent, information at the time designated above, on destination, name of accommodation, contact information, and flight schedules if applicable.

200.  Parties must generally take a reasonable approach in informing each other on any change of plans regarding access.  For the term time access, parties must inform each other by messages (WeChat or WhatsApp) or email at least 3 days beforehand.

Costs

201.  As these applications concern children, I shall make the usual no order on costs.

The Order

202.  The Orders to be made are as follows:

a.  The M’s application for leave to relocate H to GZ be granted, with effect from the day after H completes his current school year at  K.

b.  Joint custody be granted to F and M.

c.  Care and Control of H be granted to M.

d.  The access arrangement shall be in accordance with paragraphs 189 - 200 herein.

e.  M’s application for interim relocation dated 12 June 2023 is dismissed.

f.  A parenting co-ordinator be appointed within 35 days of this Order, whose name is to be filed with the Court via a joint letter. 

g.  I make no Order as to Costs, including all costs reserved.  This to be a Costs Order nisi to be made absolute within 14 days of this Order, with certificates for counsels.

Postscript

203.  It is my observation that in this case, the already difficult relationship between the parties may have been further strained, in particular, by M's solicitors’ aggressive correspondences. Unfortunately, this situation is not uncommon in the Family Court, where solicitors sometimes adopt a particularly aggressive stance on behalf of their clients.  This approach can exacerbate an already tense situation rather than help resolve matters in a more conciliatory manner, and very often remove all opportunities of mediation or negotiation.  Solicitors must be conscious that this would sometimes impact their client’s case, and in a negative way.