CYP v. LC

FCMC 3744 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 3744 OF 2014

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JUDGMENT
(Relocation, Custody, Care and Control and Access)

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The Application

1.  This is a trial on the arrangement of the 2 children of the family upon the parties’ divorce.

2.  The parties, both Chinese Singaporeans, were married in November 2005 in Hong Kong.

3.  The petitioner mother “M” is aged 36 and the respondent father “F” is aged 43, both occupy senior positions in the banking industry.

4.  They have 2 children; both were born in Hong Kong.  The elder one S, a boy, is now 6 years old and the younger child R, a girl, is now 5 years old.  

The Divorce Proceedings

5.  M petitioned for divorce on the ground of F’s unreasonable behaviour in March 2013.  It is her second petition.  Earlier on, she petitioned for divorce on 16 September 2011 (“the 1^st divorce petition”) with a decree nisi pronounced on 23 November 2011 but the parties were able to reconcile and agreed to withdraw the proceedings by way of a consent order on 7 May 2012.

6.  Initially F contested the present proceedings by filing an Answer.  An agreement was finally reached between the parties that M would file a fresh petition based on one year’s separation. That was done and decree nisi was pronounced on 19 August 2014.

7.  M filed her application on 21 May 2013 for the custody, care and control of the 2 children and for leave to relocate the children to Singapore.  I need to mention that in the 1^st divorce petition, she already asked for relocation to Singapore.

8.  F also made his application for joint custody and joint care and control on 13 September 2013. 

Education Issues

9.  At this juncture, I need to mention that there were previously at least 4 applications including an injunction application from each side before the court regarding the education of the children.

10.  To put this in general terms, on the side of F, he tried to have the children enrolled in an international school other than the Singapore International School (“SIS”).  Thus, applications were made to the German Swiss International School, the French International School (“FIS”), the Canadian International School, the English Schools Foundation, the Hong Kong International School, the Kellett International School and the Chinese International School.  As for the mother, she wanted to keep the status quo before a decision is made regarding her application for relocation; and, if a new school was to be chosen for R, this should be SIS where S was already attending. 

11.  At the end, S did not get any offer and R was successful with FIS only.  Hence, when it came to the full argument of the dispute, the court had to decide whether R should attend (1) her then current kindergarten (“SWK”), (2) SIS or (3) FIS.

12.  At the end of a full day’s hearing, upon the indication from the court at the request of the parties, they finally agreed that R was to continue to attend SWK for the year 2014/2015.

13.  Then apparently things made some progress, if I may put it this way, shortly before the present trial, F agreed to M’s proposal that both children are to attend SIS until completion of their primary education and thereafter a review to explore the appropriateness of the children attending boarding school in UK or US.

14.  On the 3^rd day of trial, ie 28 August 2014, the parties further agreed that in the event that M’s application for relocation is refused and she does not appeal, S and R shall attend SIS or until written agreement to the contrary or until further order whichever shall be earlier.  F also agreed that in the event that M’s application for relocation is granted, the children shall attend the schools chosen by M.  

Background to the marriage

15.  As mentioned, both parties are Singaporean; and both are highly educated.  M received university education in the United States and worked there for 2 years before returning to Singapore in 2003.

16.  F attended university in the United Kingdom and worked in the financial industry there for a year and was then relocated to Hong Kong in 1995.  He had his first marriage in Hong Kong but it was dissolved in 2001.  No child was born in this first marriage.  In 2002 he was laid off. He returned to Singapore and did a master degree there.  It was during this time when he met M in Singapore.  In January 2005 he returned to Hong Kong for taking up a new job.  A couple of months later, M also came to Hong Kong and the couple got married on 12 November 2005 in Hong Kong.

17.  Both parties continued to work after the marriage until M quitted her job in February 2010 for giving birth to R who was born in April 2010.  Since then M was the primary carer of the children with the assistance of 2 domestic helpers.  This situation lasted until March 2012 when M rejoined the workforce.  As of now, both parties are in gainful employment.  

18.  M’s parents and her 3 younger sisters are living in Singapore.  In the past, from time to time her parents came to visit the family and stayed at the former matrimonial home.  F’s elder sister Ms N, who has 2 older children, is living in Hong Kong but it appears that she travels frequently.  F says his parents are now staying in Hong Kong much longer than before.  When they are in Hong Kong they stay at Ms N’s place.

19.  Unfortunately, the marriage did not work out and they separated on 25 March 2013.  As mentioned above, this was not the first marital breakdown.  The couple had previously separated in September 2011 when M took out the 1^st divorce petition. 

Present Arrangement of the Children

20.  Despite the petition for divorce, the parties continue to reside together with the 2 children at their home rented in the name of F (“the former matrimonial home”).  It has been the children’s home since January 2010 and is a spacious apartment with 3,560 ft² on the Peak.  The family is now being assisted by two domestic maids and a driver.   

21.  Despite the fact that the 2 children have their own bedroom, M has been sleeping with R in the master bed room while F shares the guest room with S. 

22.  The children are now staying with F on Saturdays and with M on Sundays.  Apparently, this arrangement has been worked out rather smoothly.

23.  S is now attending SIS and R has been attending SWK since September 2013.  In due course, she will join her elder brother in SIS.

The Mother’s Case

24.  M’s case is one of typical ‘primary carer returns home’ case.  She came to Hong Kong for the marriage only.  M denies it has been her intention to remain in Hong Kong permanently.  When her marriage has come to an end her association with Hong Kong has also ended, it is the time that she returns home.

25.  She has been consistently the primary caregiver of the children since their birth.  She was a full time mother from February 2010 to March 2012.  Before the birth of S, she was also a full time mother for 6 months. 

26.  M sees that returning to the home country where there is support from her extensive family provides the children with a settled and structured home life.  In addition, Singapore is also where F was born and brought up.  He only left Singapore for university education. Singapore is the home for the entire maternal and paternal extended family.  F, his parents and sister Ms N all own 3 separate homes in Singapore, with F’s purchase intended to act as the parties’ family home (“the Singapore Property”) when they relocate back home. 

27.  Her job is essentially a Singapore-based job out of Hong Kong.  The need and hence the frequency of business trips would be much less than before once she is relocated to Singapore.

The Father’s Case

28.  F’s case is in great contrast to that of M:  there has no primary carer throughout the children’s short lives and that both parents ‘parented’ the children.  He emphasizes that prior to the petition, he and M worked together as a family and he has taken an equal part in caring the children. 

29.  He applied for joint custody and joint care and control but in his open proposal he agrees to joint custody and sole care and control to M if she is to remain in Hong Kong.  He wants to resolve as many issues as possible.  As long as it does not affect the interest of the children, he will learn to live with it.  In future, he would like to work with her and co-parent together. 

30.  He emphasises that young children need their parents to be physical, not virtual.  He asks for generous access during the school term because children at that age require frequent contacts with their parents.   It is about being there.  S and R are unable to save this moment to talk to their daddy later.

31.  His parents are spending most of the time in Hong Kong.  After divorce, he will be living with his parents and will be assisted by Ms B, his domestic helper.  His sister Ms N will be close by.

The Evidence and the Witnesses

32.  The parties have filed at least 12 affidavits.  Social Welfare Reports from Hong Kong and Singapore were called for and both parties have filed their Form Js.  Apart from the oral testimonies from M and F, Ms Lam, the Hong Kong Social Welfare Officer (“SWO”), M’s father Mr C and her mother Madam T, F’s elder sister Ms N and his domestic helper Ms B have given evidence in court.  The parties’ former domestic helper J had also made affidavits for both parties but she was not called to give evidence because of her departure for Canada for taking up a new employment.

33.  A couple of factual disputes have been brought up in trial.  They are relevant to the parties’ credibility in general and to whether the parties are able to communicate and to ‘co-parent’ in particular.

34.  To start with, there were considerable debates over F’s conducts.  There are two major aspects.  The first is his abusive and violent behaviour towards M before the 1^st divorce petition and the second is his financial conducts subsequent to the reconciliation in May 2012.  Thus, there was extensive examination regarding F’s behaviours; in particular, much time was spent on what was referred to as “the Singapore Incident” which I will refer to in due course.

35.  Apart from the above, the parties also have dispute over the care arrangement of the children prior to the divorce petition in March 2013.

36.  The evidence filed in this case is voluminous.  It is not possible nor is it necessary for me to deal with each and every of them.  Obviously, some issues and evidence will be given more weight but I wish to make it clear that for those issues or evidence that I have not specifically dealt with in this judgment, it does not mean that I have not given any regard to them.

F’s Abusive and Violent Behaviour

37.  M said that before the 1^st divorce petition there were a number of incidents in which she was subject to abusive and violent behaviour of F.

38.  By way of examples, she was slapped because of the delayed journey to Bali in May 2006.  

39.  On 18 January 2007, F kicked her on her back and caused some serious bruising because she returned home late.  After this incident and due to various arguments, M moved out of home to stay at Ms N’s apartment.  She moved back after the parties had seen a counsellor.  In cross-examination, while F did not dispute that M moved out of home, he said the reason was he refused to apologise but he could not recall what the argument was.  In my view, this was an unusual event.  It could not be possible that he has no recollection at all.

40.  On 15 September 2007, while the couple was in Phuket, Thailand, F kicked and scratched her, causing her to fall backwards and hurt her neck.  F only accepted that they had a big argument. 

41.  F accepted that M moved out from home for 4 months from November 2007 to March 2008 but surprisingly he did not recall what caused this rift.  He however said that during this period they continued to have sex and S was conceived.  There is some dispute here because M said it was only one occasion of sexual encounter when she returned home for her belongings.  She said at that time she felt she had no choice but to do what F wanted in order to avoid an incident.  Upon discovering that she was pregnant, she returned home.

42.  On 30 October 2010, the Halloween night, F forced M to stay outside after an argument for about 5 hours and it was only after she agreed to write an essay about her “attitude” that she was allowed to return home.  When being confronted with the essay and the SMSs, F admitted this and said it was wrong.  I will come to this essay in due course.

43.  In January 2011, F became angry because the remote control for the blinds of one of their investment properties could not be found, as M was managing the properties,  she was forced to write an “essay” on what had gone wrong.   

44.  In May 2011, she was asked to run from Magazine Gap Road to Citibank Plaza for being late for less than 5 minutes. 

45.  On 5 June 2011, F was angry about M going to church.  He made her stay outside the church on Sunday for about 6 hours and at that time S was with her.  F admitted having done this.  That said, he did not agree this was an abuse.  He only described it as obnoxious.

46.  Then about 6 weeks later, on about 27 August 2011 there came the Singapore Incident.  It happened when the family went to Singapore for M’s younger sister’s wedding.  According to M, F was very angry because he considered the renovations of the Singapore Property to be unsatisfactory.  F shoved and hit her repeatedly on the back of her head.  In the afternoon, he swept the children’s lunch of fried rice onto the floor.  F admitted he swept the food but he said he refused to clean up because he was not the helper.  M went to her parents’ place with the children in the morning secretly, when F was not aware.  He then went to M’s parents’ place with the police, alleging that his children had been kidnapped.  He described it as an unhappy incident.  As a result of this incident, F did not attend the wedding and returned to Hong Kong on his own.  Ms Irving suggested that the whole situation could have been better dealt with if F went up to parents’ house and apologized. 

47.  It was subsequent to this incident that M took out the 1^st divorce petition.

48.  M said in the past when they had arguments, F would routinely drive her out of the matrimonial home, make it intolerable for her to remain there or bully her into performing demeaning or belittling actions in order to appease him when he became angry.  She did all those things such as writing essays, standing outside the house and running to the Central because she wanted the marriage to work out for the sake of the children.  Her priority was to ensure that things would not go out of hands and children were not hurt.  Indeed, what she listed out is not the exhausted list; there were quite some minor ones, such as trenching cold water onto her and throwing her things out of the window onto the playground below.  There was an incident when she was very tried from feeding R, F still made her type out a mortgage document for the Singapore Property late at night.  When she was nearly finished, F came up from his bed and deleted the whole of the document.

49.  F denied all allegations of physical abuse.  He maintained that all the allegations of his unreasonable behaviour are untrue.  As for verbal abuse, both had said unkind things to each other. There was also an incident on October 2012 in which he was assaulted by M when the family was hiking in Aberdeen Country Park but he denied having set M up on this incident. 

50.  As for the essays, in his affirmations he said he never asked or forced M to write but under cross-examination he changed to say what he meant was he had never used physical force.  Regarding the essay on the ‘lost’ remote control, his explanation was that when M was not working in 2010 to 2012, he hired her in managing their properties.  He treated her as an employee and the essay was an error report.  He admitted it was an error. To me, his story does not hold water. 

51.  Anyway, by and large, F said all these were pre-1^st divorce petition and they had reconciled; in particular he had been to counselling and had bought M gifts including a property on Seymour Road.

52.  It appears to me it was rather typical for F to force M to write him an essay to ‘reflect on her attitude’ and to apologize when they had an argument.  I have read the essays.  To me, it is simply beyond my imagination that a wife would have written all these essays if it had not been out of love for her husband, though these essays were by no means love letters.  One of such essays was written after the Halloween night of 2010.  I only need to quote a paragraph,

I am very sorry that I took yesterday’s frustration, because of the children’s crying, out on you …

…

…

We have 2 wonderful children.  I am hopeful that we can build a happy and loving home for them.  I really do not want our children growing up seeing their parents fight or their father shouting at their mother or their mother having to stand outside the house begging.  I sent you an email previously about talking / discussing things properly, what you do not like about me etc.  You have not responded and I am not sure how you want to take us forward.  I am always willing to leave the unhappy past behind and look to the future.  Please work with me on that. You have everything you could ever have wanted, please try to think about that all the time so we do not get angry or upset about things …

53.  In her email that accompanied the essay, M asked for permission to return home.  The response was however not one of appreciation or kind words.  Quite to the contrary, F was apparently not too satisfactory, and in his email, he said, “You have only had 1 statement with regards to admitting fault in the first sentence.  Fine.  Back in.”

54.  In my view, these essays and the emails really demonstrate that F was dictatorial and indifferent to M’s feelings, without having regard to her emotional and physical condition or how vulnerable she might be, both physical and emotional. 

The Financial Conduct

55.  M said F implored for reconciliation and she gave him a chance, resulting in the rescission of the decree nisi of the 1^st divorce petition.  Now with the benefit of hindsight, the reconciliation was a complete shame.  It was contrived so as to give time for F to divert his assets out of the family.  Just within 2 weeks after the rescission of the decree nisi of the 1^st divorce petition on 7 May 2012, F withdrew $2,700,000 from his account to an interactive brokers account in the United States on 23 May 2012 which eventually ended up in a BVI account.  There was a further withdrawal of $8,000,000 on 17 December 2012. Further, he opened a joint account with his sister Ms N in December 2012 and diverted his monthly salary to this account and he further allegedly loaned $5,164,000 to her sister on 8 January 2013 (about USD 663,000).

56.  Hence, the picture is that between the rescission of the decree nisi and early 2013, a total of $15,800,000 were diverted from the family assets.  All these were done behind the back of M.

57.  In light of F’s assertion that the marriage was fine and functioning up to the point of the present divorce petition and so the petition was a complete surprise to him, he was cross-examined on these transactions.  Since the financial matters are not in issue here, and in any event I understand that F has agreed to account for the monies, I do not think I need to deal with F’s explanations here.  However, $15,800,000 by any definition is an enormous sum but what strikes me is that despite his oral evidence and in his Answer to the Petition that he communicated well with M, he did not involve her in or at least inform her of all these transactions.  I am sure that he was not telling the truth when he said the marriage was fine. 

58.  With these findings that I have made, F did not impress me as a frank and forthcoming witness.  Of course, it does not mean that I reject his evidence in its entirety but only that his evidence would be treated with caution.

The Care Arrangement before the Petition (ie March 2013)

F’s Case

59.  F emphasised that all along he took an equal part in caring the children.  He described his relationship with the children as very close and over the years, he was an equal partner in taking care of the children.  He specifically mentioned he had helped S, who used to be very shy and reserved, to overcome the challenge by not only enrolling him in a Jujitsu class but also participating with him.  There has been progress; S has so far participated in 8 matches and he is popular in class.

60.  He detailed the daily routines of the children to show his high level of involvement; he plays piano on daily basis, he loves music and shares the moment with the children; and he also wants to cultivate them their interest or a passion in music.  

M’s Case

61.  M’s case is that right from the birth of both children she was the primary carer.

62.  Prior to the present divorce petition, it was she who arranged all the activities for the children.  It was after the commencement of the present proceedings in March 2013 that F started to have the enthusiasm to get involved.  The reality is there is a big divide between pre-petition and post-petition.  The status quo now depicted by F, especially his intensive involvement in daily care is not reflective of the situation before the petition.  All these are litigation dressings in order to build up a false image that he has all times been sharing the care of the children equally with her.

63.  In order to show he is an equal partner, F has imposed his decision upon M and the children in a way that has more to do with his objectives than to do with the children’s best interests.  He has done this in relation to education, sleeping arrangements, the children’s daily pattern, their meal times, their transport to school, their extracurricular activities and their medical care.  For instance, M said that before the petition, the children slept in their own rooms.  It was very occasionally that they would sleep in their bed.  She reckoned that 99% of the time S slept in his room.  However, F started to sleep on an air-bed in S’s room.  It was disruptive to S’s sleep because S would not sleep until F went into the room which was normally much later.  Before this, S was a fast sleeper; and his routine was very standard.  She does not know S’s sleeping pattern right now. However, there was complaint from the teacher that S could not focus in class because he did not have enough sleep.  She also cited an example that because of F’s disruptive involvement R had to undergo the same medical test more than once.

64.  She also gave the following examples:

(1) It is quite recent that F dresses S up, has breakfast with him and ensures that he has the correct uniform.  Before the petition, F never dressed up S and only occasionally had breakfast with the children.

(2) F started sending S to school since about February 2014.  However, this has caused S having to return to school much earlier than he needed.

(3) F never did the pick-up run before the petition. Only in recent months that occasionally he picks up the children to his office before returning them home for lunch.  Though it is good for the children to see the father, it is actually in a way disruptive to the children.  The driver has to do an extra leg to send the father back to office and thus further delays the children’s lunch.  It is worse for the children. She said F does this simply because she picks up the children twice a week and has lunch with them at home.

(4) S just started to do Jujitsu after the petition.

(5) Before the petition, it was her or J, the helper, who bathed the children.  For the last couple of months, if she reached home later than F, by that time F would have already bathed the children.

(6) Before the petition, F never did homework with S. 

(7) In the past, normally it was she and the other helper who put the children to bed.

65.  In the past during the marriage, she had tried to get F more involved in extracurricular activities but he was not interested.  Her concern is the children have other interest and activities but F is only interested in what he could do or what he could involve as opposed to the general well-being of the children. 

66.  She accepted that though F might not meant to be disruptive in getting involved, he ended up in being disruptive and continued to do the way he wanted to.  F’s previous behaviour does not show he genuinely like to do that.  The piano activities, reading books or jigsaw puzzles F said have been taking place were certainly not a daily affair.  She is concerned that F will not keep up the intensity and effort and will revert to the previous situation after the petition is over. 

Discussion

67.  There was a period from February 2010 to March 2012 that M was not working and was a full-time mother.  She said it was sabbatical leave but F said she was made redundant.  I do not think the reason is material.  What is material is that she was a full-time mother during that period of time.

68.  M’s account of the children’s daily routines and their interaction with their parents is in great contrast to that of F.  I note there was no challenge from Mr Egerton on M’s evidence in respect of the routines, including those said to be unilaterally imposed by F.  There was also no challenge during the cross-examination about M’s evidence that F was not enthusiastic in getting involved in taking care of the children prior to March 2013.

69.  Clearly, there is at least one disruption: before March 2013, the children slept in their own rooms but since then F changed to sleep with S.

70.  It is not surprising that there is little documentary evidence within the family on the daily routines and the activities of the children.  In normal circumstances, husband and wife would rarely communicate in a more formal manner on these issues.  There is however a few contemporaneous documentary evidence casting light on the parties’ involvement in the children’s activities before the petition in March 2013.  One of these is the chain of emails exchanged between the parties in April 2013 which shows that F did not realize that S had already been engaged in tennis lessons since October 2012 before arranging activities for the children.  Another one is an email that F wrote to SWK on 8 April 2013.  It appears that before then F he had no contact with the school since he had to introduce himself and the email was written to a receptionist of the school but not directly to the teachers.  Ms N also confirmed that F only started to arrange activities at the American Club for the children since April 2013.

71.  I have referred to the essays that M was asked to write and the SMSs exchanged between them.  It is remarkable to note that all of them arose from their conflicts qua husband and wife and none of them arose from their conflicts as a parent.  Perhaps the one that is marginally relating to this capacity is F’s objection to M going to church on Sunday and at that time S was with his mother.  This is telling.  If both were involved in the care of the children, I wonder why there were no ‘essays’ or SMSs arising from these conflicts.  Clearly, as husband and wife they were not equal partners.  F was clearly the dominant one.  It is hard to believe that in such circumstances both could have been an equal care giver.

72.  On the evidence before me, on the balance of probabilities, I accept that F did not previously involve in these matters; and that prior to March 2013 M was the primary carer of the children.  The present status quo has been imposed on M against her will.  In this regard, I need to digress to the renewal of the lease of the former matrimonial home where the parties and the children are still staying.  After having seen and heard F’s explanation on renewing the lease to its full term rather than having it extended for another shorter period of time, I am satisfied that F deliberately kept M out of the negotiation process and he intended and succeeded in imposing a fait accompli on her.  

73.  In coming to this conclusion, I have taken the overall credibility of the parties as witnesses into consideration.  I have not taken J’s affidavits into consideration for the reason that she was not available for cross-exanimation and also for the fact that she had sworn affidavits for both M and F. 

74.  I should not be taken to have formed the view that F’s effort is not valued.  I accept that the children do benefit from his intensified involvement in their care, the most notable one being F’s active involvement with S in Jujutsu but regrettably some involvements are in some ways disruptive to the children’s routines.

What are the main issues to be considered?

75.  The following main issues fall to be considered:

(1) Should permission be given for the children to leave Hong Kong in order to relocate with M to Singapore?

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

(3) What orders should be made for custody, care and control, access and/or shared care?

The Legal Principles

76.  To start with, section 3(1) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”) provides :

“(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to-

(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b) …, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other;

77.  In relocation cases, our Court of Appeal in SMM v TWM (Child:  Relocation) [2010] 4 HKLRD 37 has confirmed the applicability in Hong Kong of the guidance laid down by the English Court of Appeal in Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473. 

78.  There have been some debates in UK whether the guidance set out by Thorpe LJ in para 40 of Payne v Payne applies only to cases where the applicant is the primary carer.

79.  In Re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330, Hedley J held that Payne v Payne is not to be applied in cases where the applicant shares the care of the children more or less equally with the respondent.  There was also the Court of Appeal judgment in K v K (Relocation:  Shared Care Arrangement) [2011] EWCA Civ 793, [2012] 2 FLR 880 (formerly cited as MK v CK) where Thorpe LJ approved of Hedley J’s analysis but Black LJ and Moore-Bick LJ took a different view.  Black LJ took the view that the decision in Re Y (Leave to Remove from Jurisdiction) was not representative of a different line of authority from Payne v Payne, applicable where the child’s care is shared between the parents as opposed to undertaken by one primary carer, but was a decision within the framework of which Payne v Payne was part, and exemplified how the weight attached to the relevant factors altered depending upon the facts of the case.  Cases should not become bogged down with arguments as to the label to be attached to the way in which the particulars parents had provided for the care of their children, which were, and should be, infinitely varied : Paras 144 – 145. 

80.  In Re F (Relocation) [2012] EWCA Civ 1364, [2013] 1 FLR 645, Sir Munby LJ, after a careful analysis of K v K (Relocation:  Shared Cared Arrangement) also agreed with the majority view in that case that the guidance which Thorpe LJ gave in Payne v Payne is not confined to cases where the applicant is the primary carer.  It is guidance that may be utilised in other kinds of relocation case if the judge thinks it helpful and appropriate to do so:  Para 45.

81.  More recently, in Re TC and JC (Children:  Relocation) [2013] EWHC 292 (Fam), [2013] 2 FLR 484, Mostyn J set out the governing principles derived from the authorities for a relocation application:

“10. The foundation of the jurisprudence in this field is the well-known case of Poel v Poel [1970] 1 WLR 1469. Although there were many other subsequent decisions of the Court of Appeal the next major milestone was the case of Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473, [2001] 1 FLR 1052, where Thorpe LJ set out his memorable "discipline" in para 40. That decision was controversial, at least in some quarters, for arguably perpetuating a covert presumption in favour of location, at least where the application was made by the child's primary carer. It was reconsidered in 2011 in the case of K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134, and the entire jurisprudence was recently summarised, and the modern principles enunciated, in a characteristically lucid judgment of Munby LJ (as he then was) in Re F (A Child) [2012] EWCA Civ 1364.

11. I have considered these four cases most carefully and, doing the best I can, I set out shortly what seem to me to be the presently governing principles derived from them for a relocation application:

i) The only authentic principle to be applied when determining an application to relocate a child permanently overseas is that the welfare of the child is paramount and overbears all other considerations, however powerful and reasonable they might be.

ii) The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable. Such guidance helps the judge to identify which factors are likely to be the most important and the weight which should generally be attached to them, and, incidentally, promotes consistency in decision-making.

iii) The guidance is not confined to classic primary carer applications and may be utilized in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.

iv) The guidance suggests that the following questions be asked and answered (assuming that the applicant is the mother):

a) 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?

b) Is the mother's application realistically founded on practical proposals both well researched and investigated?

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

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

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

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

v) Since the circumstances in which such decisions have to be made vary infinitely and the judge in each case has to be free to decide whatever is in the best interests of the child, such guidance should not be applied rigidly as if it contains principles from which no departure is permitted.

vi) There is no legal principle, let alone some legal or evidential presumption, in favour of an application to relocate by a primary carer. The old statements which seem to favour applications to relocate made by primary carers are no more that a reflection of the reality of the human condition and the parent-child relationship.

vii) The hearing must not get mired in taxonomical arguments or preliminary skirmishes as to what label should be applied to the case by virtue of either the time spent with each of the parents or other aspects of the care arrangements. ”

82.  In my view, the questions posed by Mostyn J are in substance the same as those identified in SMM v TWM (Child Relocation). 

83.  Thus, I have to reach a decision on what is in the children’s best interests by weighing all the factors, identifying which factors are likely to be most important and attaching appropriate weight to them.

Should permission be given for the children to leave Hong Kong in order to relocate to Singapore with their mother?

(1) Is the mother’s application for relocation to Singapore genuine in the sense that it is not motivated by some selfish desire to exclude the father from the children’s life?

84.  F accepted that M wishes to return to Singapore and her extended family. 

85.  It was put by Mr Egerton that the 3 elements of stability that M raised, namely a consistent routine, a consistent parenting and a place called home could also be satisfied in Hong Kong.  M agreed but disagreed with Mr Egerton’s suggestion that Singapore has no advantage over Hong Kong.  She said there is the advantage of parenting from her extended family but Mr Egerton pointed out that parenting refers to M and F and this is to exclude F’s role as a parent.  Mr Egerton therefore submitted that M’s purported ‘genuine’ wish to return to Singapore has been ‘tainted’ by her desire to remove the children from F’s influence as an active parent so that she can achieve ‘consistent parenting’ for the children with the help of her extended family.

86.  I agree with Ms Irving that M has said one feature of relocation would be consistent parenting when the children are in the supporting care of her parents, but not so when they are with F and his family, as their parenting styles differ.  M has offered generous access and more than 50% of the holidays.  She has also offered access to F’s family in Singapore.  There is no suggestion that M has sought to exclude the children from contact with their father, or that she has done anything to damage that relationship. I accept that this opinion of her does not make M’s wish to relocate less genuine. 

87.  I do not accept F’s version that M came to Hong Kong only in part because of the marriage, but that she also came because of her job.  I accept that she came to Hong Kong to marry F only. 

88.  Mr Egerton also pointed out that initially in her present petition she did not ask for relocation and asked for sole custody only.  That was different from the 1^st divorce petition where she sought for permanent removal.  Her Statement as to Arrangement for Children also did not state her intention to relocate.  Her solicitors’ letter dated 27 March 2013 detailing her position also did not mention her intention to relocate.  That was because she was in gainful employment.  So unlike what she said, it was not her intention in March 2013 when she petitioned for divorce to relocate.  Even when she applied for amendment of petition to add particulars of unreasonable behaviour on 19 April 2013, there was no adding of relocation.  It was only in light of F asking for joint custody and shared care and control that on 21 May 2013 she took out her application for removal.  She is seeking to get away from F. 

89.  It seems that Mr Egerton was correct in terms of the chronology of events.  M did not state her intention to relocate in March 2013.  Apparently, there was a change in her intention but it does not necessarily means that she wants to exclude F.  Nor does it mean that her intention to relocate is not genuine.  On the evidence before me, I am not convinced that she wants to exclude F as the father of the children.

90.  I find that M’s application for relocation is genuine.

(2) Is the mother’s application realistic, ie founded on practical proposals both well researched and investigated?

91.  M’s proposal is that she and the children will first live with her parents until she is in a position to rent and then buy a house there.  In the past, they stayed at M’s parents’ home when visiting Singapore on holidays.  The future accommodation is planned to be in the same area as the maternal grandparents’ home and within 10 minutes’ drive of the children’s schools, the choice of the schools has now been agreed.  She will have a helper and a driver to assist her.

92.  M’s father Mr C testified that his relationship with the children is good. While the children were in Singapore, they stayed in his house, which is a big one with a garden.  The children did gardening and played in the garden.  He accompanied them watching cartoon and drove them around.  There were family gatherings at least 2 to 3 times a week and they always went out on weekends and Sundays.  Sometimes, the children went for swimming.  All in all, the children have been mingling well with the extended family.

93.  Similarly, M’s mother Ms T also testified that her relationship with the children is good; and that M and her sisters’ relationship is very close.  There are 3 guest rooms in the house and 2 are designated for the children. The extended family previously went on trips in Malaysia.  She is amenable in changing or rescheduling her routines in order to take care of the children.  She is also assisted by a maid.

94.  It seems to me clear that F does not have any serious challenge on M’s proposal.  Further, there was no challenge from Mr Egerton on the grandparents in particular Ms T’s availability and ability to take care of the children. 

95.  Though F was not involved in the preparation of the International Social Investigation Report (“ISIR”), there is really nothing controversial as far as the prospective living environment and care arrangement are concerned if the children are to be relocated to Singapore.  In para 9.1, it stated that M had a concrete and sound care arrangement plan.  With the financial resources possessed by M and the maternal family, it is assessed that they would be able to maintain a comfortable standard of living for the children in Singapore.  The maternal grandparents were also assessed to have the capacity to act as the children’s caregivers.  They were observed to be in relatively good health, committed to the children, and also had the time and energy to support M in the children’s care.

96.  Ms Lam, SWO, also testified that from what she knows during the investigation, she has no reason to doubt the assessment of ISIR. 

97.  There is little doubt that the children are familiar with Singapore.  I consider that M’s proposal realistic. 

(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?

98.  During trial, M was working for a securities company.  She agreed in cross-examination that she could decide whether to transfer to Singapore but the job there is better.  If she is not allowed to relocate to Singapore, she would not immediately lose her job but her role would be marginalized.  The better opportunity that she has in Singapore would be given away. Her employment could continue but her potential would not be as good as that in Singapore.  In Hong Kong, her office served mainly Hong Kong and Mainland clients and her employer intended to hire someone for the Chinese market; so her role would be marginalized if she is to remain in Hong Kong.  She was effectively doing a Singapore based job out of Hong Kong.

99.  She gave evidence that she was supposed to relocate to Singapore in January 2015 but because of the delay in the relocation proceedings, her position had become untenable.  She was at the risk of redundancy and/or a decrease in her bonus payment.  Having regard to these difficulties, she decided to change employment but the terms are the same, with the expectation that she will move to Singapore.  She believed this opportunity allows her to ‘buy time’ whilst the court reaches a decision on relocation.  She will be working in a smaller team and in terms of the ranking of the bank and the products she considers that the move is a bit of stepping down.  If her relocation is unsuccessful, she would be facing similar predicament as in the case of her previous employer; and she would need to spend a lot of time in Singapore.

100.  In oral evidence, M said she would be ‘crushed’ if her application is rejected and she said she would be quite ‘miserable’ if F is deliberately holding her in Hong Kong.

101.  On the evidence before me, whilst it is wholly understandable that she would feel ‘crushed’ and ‘miserable’,I agree this is not a case where it can be said that if the application is refused it would be devastating to her.  That said, I accept that without her extended family’s support in Hong Kong, M would feel being confined to continue to live in Hong Kong which is not of her choice and this would affect her emotion to perform her role as the mother of the children. 

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

102.  Ms Lam, who prepared the SIRs, was of the opinion that F’s concern for the children is genuine. Also, it has not been suggested by Ms Irving that F has an ulterior motive.

103.  M agreed that F enjoys playing with the children but only in his time and he loses patience easily.  Anyway, she accepted that F does not want his children to leave since he wishes to be able to see them as frequently as he does now.  When being shown F’s email in October 2011 in which he asked for a chance of reconciliation, she accepted that F loved the children but he put his interest over and above the children, for instance, seeking to change R’s schooling despite her application relocation would be heard soon. 

104.  I was the judge who heard F’s application. My view was that the application was made without regard to the suitability of the schools to the children.  His applications for different schools appeared to me to be an attempt on his part to distant the children away from Singapore and were done out of his own motive without much consideration for the children.

(5) What would be the extent of the detriment to him and his future relationship with the children were the application granted?

105.  F mentioned that M’s family is very female-centric since all her siblings are sisters.  His children need their father, whether it is in marriage or divorce and whether it is one household or two households.

106.  If M’s application is granted, clearly the reality is that F would not be seeing the children as frequent as the case if they are in Hong Kong.  It is understandable that he would also feel very disappointed and miserable if the children are to relocate with M.  However, after having heard F’s evidence in court, I do not think if the application is granted it would be devastating to him. 

107.  F is doing proprietary trading for his bank.  The first markets (Korea and Japan) start at 8 am (Hong Kong time) and the last market Singapore ends at 5 pm.  His working hours are very structured but he is free after 5 pm.  His work does not require him to travel overseas and he does not need to entertain in the evening.

108.  F said that if he goes to Singapore in the evening after the last market has closed, he would have to take the 8 pm flight, reaching Singapore at 11:15 pm, assuming there is no delay.  Thus, he can only see the children on Saturday mornings.  For return to Hong Kong, he would have to leave Singapore at about 5 pm on Sunday so as to get back to Hong Kong at about 10 pm.

109.  F also emphasized that young children like S and R need their parents to be physical, not virtual.  They cannot identify a 2-dimensional father.  

110.  I accept what F said.  It is rather fortunate that Singapore is not too far away from Hong Kong and certainly F has the financial means to fly on a frequent basis.  Even on F’s own evidence, it would mean that he could still see the children on a rather regular basis with meaningful duration of time, especially if F makes use of his annual leave and the long weekends which are available from time to time when a public holiday falls on a Friday or a Monday.

111.  Further, nowadays there is no lack of means of communication.  Very often, what is lacking is the will and intention to communicate.  Apart from face to face access, there are, among others, Skype and Face time available for keeping the relationship.  I accept that these media portrait a 2-dimensional father only and may not be as effective as face to face contacts for young children but these are not the only means. 

112.  Thus, though F may have some determent, this can somewhat be remedied by generous access.  I consider that F could still be able to maintain his relationship with the children.

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

113.  Ms Lam commented on the responsive relationship between the children and the maternal grandparents whereas she observed little interaction between the paternal grandparents and the children.  I do not think it is in dispute and as a matter of fact, after having seen and heard their evidence in court, I can come to a conclusion that the maternal grandparents would continue to be loving and supportive parents and grandparents.  Apart from the maternal grandparents, there are also M’s younger sisters and their children with whom the children are familiar.

114.  I accept that grandparents and cousins are no substitute for the father but the detriment to some extent is offset by the extension of the children’s relationships with the maternal family and homeland.

115.  Another aspect of looking at that situation is that F is also Singaporean, so the children are returning to his home country.  F’s parents and his sister all have their homes in Singapore. Inclusive of the Singapore Property, F owns 9 properties, 7 in Hong Kong, one in Tokyo with M and the Singapore Property. The Singapore Property is a large house, with 5 bed-rooms and in the same development where F’s sister Ms N has also purchased a similar one.  This property is different from the city apartments that the parties have invested in Hong Kong.  The emails exchanged between the parties at the time of the purchase also show that the house was intended to be their future home.  I accept M’s evidence that at that time it was a couple of months after R’s birth and Ms N had already purchased a similar town house nearby.  F agreed to Ms N’s suggestion that now they had a complete family of a boy and a girl, he should consider buying a home to give M some security of the future.  I am sure that F was not telling the truth when he said the Singapore Property is for investment and that it was purchased to diversify his investment portfolio.  He was also not telling the truth when he said at one point that another apartment in Hong Kong, ie the Waterfront, was intended to be their retirement home.  

116.  From what Ms Lam gathered during the interview with the paternal grandparents, before the petition they used to spend roughly 30% of their time in each place, namely, Singapore, Hong Kong and Indonesia, the country of their origin.  It is only after the petition that they have been spending more time in Hong Kong to support F’s application.  I am sure that the children’s relationship with the paternal grandparents can be maintained.  As a matter of fact, F is also seeking the arrangement that if he is not available for access, his parents should be able to take over his place and that has been agreed to by M.

Overall what would be in the best interests of the children?

117.  The above appraisals must now be brought into an overriding review of the child’s best interests as the first and paramount consideration.

SWO’s Evidence

118.  Ms Lam has prepared 2 Social Investigation Reports, the first one on 4 February 2014 (“SIR”) and the second one on 21 July 2014 which is an up-dated report (“the up-dated SIR”).  She first saw the family in October 2013, hence a total of 9 months up to the time of the preparation of the report in June 2014.

119.  Ms Lam does not support M’s removal plan. She said in her SIR that it does not appear to be for the best interest of the children.  Her reasons are set out in para 33 of the SIR:

“33. The child care plan presented by each parent was considered to be similar. Apart from showing their strong commitment to devote their time and knowledge on rearing and supervising the children after work, both (M) and (F) were required to enlist the assistance from their extended families, domestic helpers and driver to facilitate in daily care. Though (M) promised to facilitate regular access to maintain the father-child relationship upon removal, the father’s worry on his active role in the children’s life should be addressed due to the close father-child relationship. Together with the children’s young age, their social life and friends in Hong Kong, the parents’ stable work arrangement in Hong Kong and strong support from both extended families, it seemed to be more reasonable for the parents to live in Hong Kong and perform their parental responsibilities. Hence, the removal plan of the mother did not appear to be for the best interest of the children.”

120.  She concluded in SIR that there was no reason to speculate that joint custody would not work on this case.  She therefore recommended joint custody.

121.  She also wrote that she has weighted the attachment with the parent, a stable environment with structured life routine and consistent parenting.  She considered that M, having been a full-time housewife for 2 years, seemed to take up a more active role in providing personal care and daily routine for the children.  She seemed to be more appropriate in handling their needs as she had showed her ability in engaging the children’s interaction and handling their conflicts during the observation.  Hence, she recommended care and control be given to M with a more generous access arrangement be given to F.

122.  Ms Lam maintained her view in the up-dated SIR regarding relocation and recommended joint custody.  She took the view that it would be in the best interest of the children if the parents are to live in Hong Kong to perform their parental responsibility jointly and the children have been leading a stable and healthy living in Hong Kong and maintaining close parent-children relationship and long for having both parents in one city after divorce.

123.  She also maintained her recommendation that care and control be given to M with reasonable access to F.

124.  In a nutshell, Ms Lam considered that it is in the best interest of the children for them to be able to see their parents in the same place.

Views of the Children

125.  S was found to be sensitive towards Ms Lam’s questions and did not give his view but he expressed both in SIR and the up-dated SIR that he enjoyed being with the parents. 

126.  As for R, she said she loved M very much and always wanted to be with her.  She had no idea towards custody and access due to her young age. 

127.  As a matter of general observation, perhaps out of abundance of caution, Ms Lam was reluctant to give a direct answer even to a simple and straightforward question. It is also striking that before she made her recommendations she had not read the ISIR. This somewhat undermines her credibility.

128.  Ms Lam accepted that M’s family and her support network is in Singapore.

129.  Ms Lam was not aware of F’s diagnosis of ADHD and General Anxiety Disorder though it appeared that M had raised this concern with her.  She said she did ask F generally about his health condition during the process but he never mentioned these illnesses to her.  It was only in trial that she first learned of the illness.  Obviously she was also not aware that F had seen Dr Wong, a medical practitioner.  For this reason, the court posed a hypothetical question:  if she was to prepare a supplemental SIR now whether or not she would see it fit to make further enquiry or obtain more information on F’s illnesses.  She agreed that further information need to be obtained.  Even though M subsequently confirmed she is not relying on any diagnosis of ADHD in her case, this does not relieve Ms Lam of the obligation to make a comprehensive investigation at the time of her reports.

130.  When being asked by Mr Egerton, Ms Lam said that regardless of what happened prior to March 2013, it is to both children’s welfare that they have the father involves in their life since parental love is necessary for the children.

131.  She gave evidence that she considers 2 factors are important:  (1) a stable work arrangement and (2) a strong support from both parties’ extended family.

132.  On a stable work arrangement, she saw that both have a stable work arrangement here in Hong Kong.  To me, it is correct though M’s prospect may be better in Singapore.

133.  As regards the second factor, it is clear that she considered support from the extended families, in particular the grandparents, is important to this family. 

134.  She agreed that on the evidence before her, M’s support from her extended family is available in Singapore and not in Hong Kong.  She also agreed that since the paternal grandparents used to spend 30% of their time in Singapore, their support would also be available in Singapore.  In my view, it must be right; and therefore with this concession, her original recommendation is on shaky ground.

135.  Further, she also conceded that the Singapore option as proposed by M is a more preferable option.  I quote Ms Irving’s question and her answer:

Q: So I want to look at the alternatives.  One is the children are in Hong Kong, they are looked after by a helper, see the grandparents, paternal grandparents some of the time but a lot less than the father has represented took place in the past.  They see the maternal grandparents when they come on holiday.  The father’s sister lives here.  She travels a lot, she has a child in boarding school in America and she has a teenager at school in Hong Kong and (M) says she believes that child is going to boarding school in the not too distant future also.  So that’s the Hong Kong option.  The Singapore option: the mother lives there, the children have their primary home there with her.  She has said that she plans to purchase a property in Singapore or a house in Singapore, she’s given a description of His Honour of what she would expect to buy.  There has been no proposal of purchasing property to live in Hong Kong.  Her mother and father are there permanently.  The paternal grandparents told you that they previously were spending 30 per cent of their time in Singapore so they will also be available for that amount of time to see the children and as a passing note, (M) believes they spent a lot more time than 30 per cent in Singapore. The mother has two married sisters who each have a child, those children are little, one is a little bit younger than (R) and one is about 16 months old.

There is frequent contact, daily almost contact between the family members because they all live in Singapore all the time, they are not in and out like the paternal grandparents are here.  The mother will have a helper and a driver so the children will be brought up, not brought up, when the mother is working they will be in the care of a family member with the assistance of a helper, their cousins will be around, their aunts will be around, their uncles, and that will be not just a month here and then, that will be the ongoing situation.  So, Miss Lam, when you’re just weighing up the care arrangements for the children while the parents are working, the Singapore option surely is a far preferable option.  It provides more consistency, more family, more family interaction than the Hong Kong option, do you agree?

A: Well this arrangement was mentioned by the mother and there is more support here, yes, I agree.

136.  She also agreed that given the rather close proximity between Hong Kong and Singapore and M’s proposal regarding access, F should be able to maintain contact with the children.

137.  It appears that from what she said in court, the reasons why she did not recommend relocation are based on at least one erroneous assumption.  Her view that the Singapore option is a more preferable option also appears to contradict what she said in her reports.

138.  Mr Egerton submitted that the undisputed fact is that for 2 years since March 2013, the status quo has been that F has become much more involved with the children.  And this is a significant period in terms of the young age of the children.  Once the parties have moved to separate households, many of the conflicts would be gone.  He submitted that the following comparison can be made.

139.  If the children are to remain in Hong Kong, they would have the benefit of seeing both parents on a regular and frequent basis, both parents will be providing both children with a home within reasonable travelling time (I believe this is on the basis of F’s access proposal which effectively gives him half of the time of the children) and the continuation of both parents in the children’s lives which is an arrangement they have known throughout their lives.

140.  In contrast, if the children are to relocate to Singapore, they will be staying with one parent with the other parent visiting them.  The children will have a single home in Singapore with F visiting them and there will be a change in the arrangements, so that both children will no longer be ‘parented’ by F on a regular and frequent basis. 

141.  F has produced to court hundreds of photographs showing how he took care of the children, had activities and enjoyed the time with them.  M agreed that the photographs are records of a journey of parenthood, and agreed that with the photographs showing F playing piano with S when he was 2 months old, F was demonstrating and sharing something important and interesting to the father with the son. The photographs reflect a contemporaneous record of a parent being loving, interested in and committed to the children.  She agreed that as the children grow up, it is even more important that they have quality time with the father on regular basis, but she maintained that the access in Singapore allows him to maintain regular contacts with the children.

142.  It has also been submitted by Mr Egerton that given the young age of the children, it would not be easy for them to maintain their relationship with F in a different country.  The children will be physical and comforting if they can see their father every week.  To this, M considered it all depends on the time, in particular the quality of the time.  The time F is going to spend with the children in Singapore is not much different from that in Hong Kong if he is going to spend the full weekend in Singapore according to her proposal.  She is committed to arrange communications eg Skype or telephone.  It is a balancing exercise.  She can also explain to the children that the father has a good job here and is providing well for the family.

143.  Mr Egerton’s another argument is that M does not need to go because it was her evidence that but for the divorce she would have remained in Hong Kong.

Discussion

144.  To start with, in my judgment, the real status quo before the petition was that M was the primary carer.

145.  I accept it is not a case that M cannot be employed in Hong Kong.  She may have a better job opportunity there and if she is to stay in Hong Kong, she would have to spend more time travelling to Singapore for work.  At the end of the day, it is the welfare of the children that the court has to consider. 

146.  Mr Egerton suggested that for the past 24 months both managed to live in the same household and the children are able to see their parents every day, this would be a significant difference to children if F is not in their life on a daily basis.  I agree with M that this situation is artificial and forcing upon her.  I am sure that F loves the children, he may wish to be able to see the children as frequent as he likes and of course for this reason the best possible arrangement for him will be for the children to remain in Hong Kong but given the conclusion that I have reached regarding the artificiality in the care of the children since March 2013, there is a real concern that F would not keep up his enthusiasm and revert to the pre-March 2013 situation. 

147.  In spite of the apparent reliance on the support from F’s parents, they have not given evidence in court.  In my view, it is doubtful as to whether they are able to provide as much support as F would like to put it.  Ms N and Ms B’s evidences on the care of the children are also unreliable. 

148.  Ms N’s explanation as to why F had to see Dr Wong, which is unrelated to F’s diagnosis of ADHD, is so inherently improbable that it lacks credibility.  She only sees the children when they go over to her house with F as part of the extended family.  She has a child in boarding school in the United States and another is also going to boarding school this summer and she travels a lot.  The helper Ms B’s evidence is clearly partisan and has her own interest to look after: she concealed the fact that her husband had been hired as the driver for F’s father.  Not only that, she admitted she was instructed by F’s mother to conceal the fact.  Her concealment about the employment has significantly tarnished her evidence.   

149.  M wants to establish a settled home for the children where they can put down their roots and develop.  When it comes to education, I agree that returning to Singapore the children will have a stable education because the community there is not the expatriate’s community that they have here.  The children will be able to form a more stable relationship with friends especially there were ups and downs in the family.  

150.  Clearly, M’s support is in Singapore.  I agree with Ms Lam that the arrangement in Singapore proposed by M is a preferable option.  The children are familiar with the place and have stayed at their grandparents’ place many times.  They will live in a permanent community where they will have a settled and stable upbringing. 

151.  I have not lost sight of the children’s need for their father.  Clearly, this is Mr Egerton’s strongest point.  As I said above, it is rather fortunate that Singapore is not too far away from Hong Kong and F has the time and the means to maintain close and regular contacts with them. 

152.  I have no doubt that Singapore is the home country for both M and F.  Although Ms Lam has not recommended removal, she has recommended care and control to M.  If the mother is to be the parent with care and control, her reasonable proposals should carry greater weight.

153.  In my view, it would be to the best interest of the children if they would continue to be in the care of their primary carer, with the support of her extended family which is not available here. They would still be able to maintain their relationship with F by frequent access and their relationship with their paternal grandparents in Singapore. 

Custody

154.  As far as custody, care and control is concerned, the parties are in agreement with the principles which have been set out in the Court of Appeal judgment in PD v KWW [2010] 4 HKLRD 191:

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 recognized (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.  (emphasis added)

155.  M is against joint custody.  Ms Irving referred to F’s previous abusive and violent behaviour and financial conduct to say that there had not been any ‘cooperation’ from the father.  She submitted that the violence and the dictatorial style of F as evident in the essays, SMSs and the emails indicate that there was no willingness on the part of F to communicate with M, and all can be seen was the imposition of his view on M in a rather bullying fashion.

156.  Ms Irving was also right to point out that from all these SMSs and emails, there was not a single one from F expressing an apology or engaging in constructive dialogue.  

157.  Be that as it may, I incline to agree with Mr Egerton and Ms Lam that by and large these were all matters in the past.  The parties have now divorced and will soon move to different places so the circumstances that gave rise to the previous conflicts and strained relationship especially those arising from daily routines would essentially become non-existent.  I have heard their evidence in court, both impressed me as sensible persons capable of engaging in constructive and reasonable dialogues and both are highly educated and intelligent.  I believe when the status or to be more accurate the obligation as husband and wife is gone and when they part their lives, much of the stresses and tensions will also be gone.  They should be able to improve their communications and should be able to continue to contribute to the well-being of their children.  Even if M is to have the sole custody, she will remain obliged to discuss matters such as the children’s education, religious upbringing and choice of extracurricular studies with F.  It should be acknowledged that so far there have not been any problems with the arrangement on holiday trips.  As Hon Hartmann JA (as he then was) observed, joint custody orders ‘look to the future’ and ‘will govern a limited area of exchange between the parents, albeit one of the greatest importance’: PD v KWW at Para 54. 

158.  I accept that F sincerely wants to plays an active role in the children’s upbringing and as a matter of fact, M also acknowledges that this is the case.  This is important. I have no doubt that the children, especially S, have benefited and will continue to benefit from F’s involvement.  Under cross-examination, whilst M considered it would not be possible to have joint care and control if the parties are living in two different jurisdictions, nevertheless, she agreed that joint custody is feasible.  She also accepted that F’s wish to co-parent with her is genuine.

159.  Further, I do not see why joint custody is not workable in the present case even if the parties will be living in different jurisdictions. 

160.  I would grant the custody of the children to M and F jointly.

Care and Control of the Children

161.  For the reason that I have allowed M’s relocation plan, obviously it is to be best interest of the children that their care and control be granted to M.  In any event, even if M’s is to remain in Hong Kong, I agree with Ms Lam’s recommendation that the care and control be given to her.

Access Arrangement

162.  So far accesses during holidays and overseas trips have been arranged smoothly, there is no reason for me to doubt that this will not be the case in the future.  

163.  M has to a large measure agreed to F’s proposal regarding his access in Singapore.

164.  I note the time constraint that F has said, but in light of M’s agreement that the paternal grandparents can also have access if F is not in Singapore, I see no reason why access cannot be extended to Friday evenings.  I have also in mind giving as much access as possible to F while at the same time, in order to strike a balance, allowing M to have her time with the children during holidays.  I give the following access:

1. Access to the children every alternate weekend from Friday evening at 8:00 pm to Sunday evening at 8:30 pm;

2. With regard to school holidays and public holidays;

(i) F will have the Chinese New Year holiday in 2016 and each even year thereafter and M has the Chinese New Year holiday in 2017 and each odd year thereafter;

(ii) Term 1 / Easter: F has first half of Term 1 holidays each year;

(iii) Term 2 / June / July: F has first half of Term 2 holidays and M has the second half of Term 2 holidays each year;

(iv) Term 3 / Autumn:  F has term 3 holidays each year;

(v) Term 4 / Christmas: F has 2/3 of the holidays each year and M has 1/3 of the term 4 holidays each year.  The parties shall take their turns to have the holidays on alternate basis.  F shall take his 2/3 of the holidays first in 2015 and then for M to take her 1/3 of the holidays first in 2016.

3. Parties do have the Skype/telephone access to take place half an hour before bedtime every second day for the parent who is not with the children;

4. F can elect to exercise any of the above holiday access in Hong Kong, Singapore or elsewhere of F’s choosing.

165.  I will also deal with the alternative situation if M is to remain in Hong Kong.

166.  Despite his agreement that the care and control be given to M, the access that F asks for is an arrangement in a 2-week cycle that allows him one of shared care and control (though not effectively 50/50 split).

167.  As reported in the up-dated SIR, “… (without) equal timeslot, (F) did not regard himself in the right position to provide quality care for the children in all trivial matters.”.  It has also been reported in the up-dated SIR that F “had great hesitation to accept the word “access” of which impressed him to be in a lower position”.  In my view, this is reflective of F’s mindset that is apparently simply a matter based on pure arithmetic calculation or allotment of time.  Parental rights exist for the benefit of the children but not for the benefit of the parents.

168.  No one would have expected that the current living arrangement for the children could continue for very long.  When the parties proceed with the proceedings in due course, ultimately there would be new living arrangements when M moves out from the former matrimonial home with the children to a new accommodation.  Apparently, it would only be a matter of months that this would happen.  In my view, the workability of F’s proposal remains to be uncertain.  Ms Lam is also not in favour of mid-week staying access as proposed by F, at least for the time being, for the reason that many things remain uncertain, such as how busy the parents and the children are, especially after the start of the school terms and how well the children are able to cope with the change after the separation into 2 households.  I also have great reservation as to whether F would be able to obtain the level of support of his parents that he has put it. 

169.  If the children are to stay in Hong Kong, I consider that M’s proposal is more appropriate.  Her proposal of alternate weekend access from Friday after school to Monday morning, Wednesday evenings, and half school holidays accord more with the children’s need for a stable environment with structured life routine and consistent parenting but also generous access, as recommended by Ms Lam.

Orders

170.  For the reasons aforesaid, I give the following orders:

1. Leave for the petitioner to remove the two children of the family out of the jurisdiction of Hong Kong for the purpose of relocation to Singapore;

2. The custody of the two children of the family be granted to the petitioner and the respondent jointly;

3. The care and control of the children be granted to the petitioner with access to the respondent as per Para 164 above.

171.  In her Opening Submissions, M undertakes to obtain a Mirror Order in Singapore.  I will hold her onto this undertaking which will form part of the order herein.  The Mirror Order is to be obtained within 6 months.

172.  Given that this is a child related matter, I 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.