VE (nee KE) v. VRJ

FCMC 7676 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7676 OF 2011

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

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The Application

1.  This is the trial on the respondent father’s application dated 3 December 2013 for leave to permanently remove the two children of the family from the jurisdiction of Hong Kong to his home in Colorado, USA.  He also asks for paragraph 2 of the consent order of 24 October 2012 (“the Consent Order”), by which he has sole custody but joint care and control, to be varied so that he has care and control, with access to the petitioner mother.

2.  The petitioner mother is in opposition to the father’s application.  On 28 February 2014, she responded by filing an application for variation of the Consent Order, seeking an Order for joint custody, with care and control to her and access to the father.

3.  The children in question are “J”, a girl born on 12 August 2002 (now 12 years and 10 months old) and “A”, a boy born on 21 June 2004 (now nearly 11 years old). 

4.  For convenience, in this judgment, I refer to the petitioner mother as “P” and the respondent father as “R”.

5.  This is a high conflict case.  Even with the assistance of their legal representatives, at least for the last 2 to 3 years or so, the parties essentially have had no ability to come to any resolution of their disputes.  From time to time there were applications before the court dealing with different matters.  On the more substantial ones, there was a hearing before Deputy Judge Own in August 2012 resulting in the children changing from a Japanese School to an international school, there was an injunction hearing on R’s retirement funds and the last substantial hearing was on the parties’ respective applications in respect of the proceeds of sale of the former matrimonial home.  It is quite certain that this judgment will not be the concluding note since the trial on the ancillary relief will be coming up soon.  

The Background

6.  P was born in 1978 and is Japanese.  R, a Caucasian American, was born in 1960.  They are now aged 36 and 53 respectively.

7.  R is a US qualified accountant.  In 2000, he was transferred by his employer to work in Japan where he met P in the same year and they married in Nevada in February 2002.  The children were born in Japan and they hold dual American – Japanese citizenship.

8.  In July 2005, R’s employer posted him to Hong Kong so the whole family moved to this territory. 

9.  There had been heated disputes between the parties throughout the marriage.  On several occasions, police were involved. In or around September 2009, a referral was made by the police to the Social Welfare Department, and counselling services were arranged for P.

10.  Beginning 2011, P attended sessions with a psychologist after being referred by her solicitor which she engaged in January 2011.  She also had sessions with one Dr Wong, a medical practitioner, to treat her depressions and stress.  She was prescribed anti-depressants at the time.

11.  It is the R’s case that he has been expressing concerns for many years about P’s emotional instability, and the way she loses her temper with the children, resorting not only to shouting, but to violence against them. She causes damage to property when angry.  It is fair to say that generally speaking though she does not deny these she has her own explanations; the main one being she was provoked by R.

12.  Around February 2011, R discovered that P had an affair.  P admitted she had a boyfriend since November 2010.  The relationship however was short-lived; it is now a matter in the past.

13.  P commenced divorce proceedings on 10 June 2011, on the ground of R’s unreasonable behaviour.  On 12 August 2011, an Amended Petition was filed, with a watered-down version of the particulars.  On 8 September 2011, the decree nisi was pronounced.

14.  On 15 November 2011, as a result of a dispute between the parties, P made an application to the court for a restraining order against R and for an interim custody order.  On 22 November 2011, an Order was made that R be restrained from molesting P and entering the matrimonial home, and that P was given interim custody, care and control of the children.

15.  On 29 November 2011, upon R’s submission of his undertaking not to molest P, the restraining order was set aside and defined access was provided to the parties.  R then returned to the former matrimonial home.

16.  On the same day, ie 29 November 2011, an Order was made to appoint Dr Levy as the psychologist of the children to address the issues related to their emotional and psychological well-being. The children and the parties attended sessions with Dr Levy for the period between December 2011 and March 2012, and a report was filed by Dr Levy on 9 April 2012.  A Social Investigation Report was also called for, to make recommendations on the custody arrangements of the children.

17.  In or around June 2012, P moved out of the former matrimonial home and set up her new home in the same neighbourhood.  It is R’s case that even before this time she had been spending considerable periods of time away from home, leaving the children in the primary care of the father.

18.  In or around August 2012, upon Dr Levy’s recommendation, it was arranged for the children to see another psychologist Dr Pon and to attend play therapy sessions to deal with the trauma that they experienced arising from the acrimony of the parties.  They have been seeing Dr Pon weekly ever since.

19.  Pursuant to an Order dated 31 August 2012, the parties appointed Dr Mistler, a clinical psychologist, to conduct a psychological assessment on themselves in the context of the contested application for custody care and control.  A report was filed by Dr Mistler on 12 October 2012.  I will come to this report in due course.

20.  Sometime later on 24 October 2012, by the Consent Order, R was given the sole custody of the children, with an order for joint care and control which essentially provides for an equal spilt of time over a 14-day cycle.  However, that was never implemented for the reason that the parties subsequently agreed that R is to have 9 nights and P is to have 5 nights in each cycle as follows:-

Week 1 and Week 3

The father would have the children from Sunday after 7:30 pm to Thursday morning; and

The mother would have the children from Thursday afternoon to Sunday at 7:30 pm

Week 2 and Week 4

The father would have the children from Sunday to Thursday morning and from Saturday after 7:30 pm to Sunday; and

The mother would have the children from Thursday afternoon to Saturday at 7:30 pm

21.  There is some dispute over how this arrangement came by.  R says it was recommended by Dr Pon but P says she unwillingly agreed to it because she did not want to go to court again.  I will deal with this dispute in due course.

22.  On 15 January 2013, R was informed by his employer - the very employer that sent the family to Hong Kong - that his employment would be terminated with effect from 15 April 2013.  He left his employment on or about 15 April 2013.

23.  Meanwhile, R has since 2012 commenced a new relationship and will marry his partner (referred to as “IY”) once these proceedings are over.  IY, a young Indonesian lady, moved to live with R and the children in the former matrimonial home in about July 2013 and she also gave birth to their daughter on 24 January 2014.  The baby is now nearly 1 ½ years old.

24.  Since his dismissal from his employment in April 2013, despite his attempts of securing a job in Hong Kong and in US, R has failed to obtain any permanent position.  He has been doing some part-time or temporary jobs earning much less than what he earned before.

25.  The 5-day trial on the ancillary relief was originally fixed to be heard on 6 December, 2013.  It was however derailed by R’s present application for permanent removal.  The trial has now been fixed to be heard commencing in June 2015 following the determination of the children’s matters. 

26.  Not surprisingly given the acrimony between the parties, on the children’s matters alone, both have filed at least 8 affirmations in support of their contentions.

27.  There are 4 Social Investigation Reports (“SIR”), the first two are on the custody issue while the latter two are specifically for the removal issue:

1.	SIR dated 21 December 2011;
2.	Up-dated SIR dated 12 October 2012;
3.	SIR dated 23 April 2014, following the R’s application for the permanent removal of the children and P’s application for variation of custody; and
4.	Updated SIR of 7th August 2014

28.  There is also an International Social Service Report (“ISSR”) providing an assessment on the home environment in Colorado. 

29.  The following expert reports have also been filed:

1.	Psychological Report by Dr Levy dated 9 April 2012;
2.	Psychological Report by Dr Mistler dated 12 October 2012;
3.	A Psychological Report by Ms Lim of the Social Welfare Department dated 23 April 2014; and
4.	An up-dated Psychological Report prepared by Dr Levy dated 30 September 2014

The Present Care and Control Arrangement

30.  The present arrangement is that R takes care of the children for 9 days out of a fortnight and the remaining 5 days go to P.  As said, this is not what was ordered pursuant to the Consent Order.  

31.  While staying with R, the children are being taken care of by R and his partner IY.  Before the sale of the former matrimonial home, the children stayed with their father and his new family there.  After the sale of the former matrimonial home on 30 December 2014, they have since moved to a rented accommodation in the same development. 

32.  As for P, she is living alone in a rented apartment in the same neighbourhood.  She is working part-time as a waitress in a Japanese restaurant in Causeway Bay during the days when she does not need to take care of the children.

33.  Thankfully, the care arrangement appears to have been running smoothly.

34.  The children are now attending an international school in the same neighbourhood. 

The Father’s Case

35.  R wishes to remove the children to return to his home in US.  Hong Kong was never his “home” and now the marriage is over and he no longer has a job here, he wishes to return home where he can establish a settled life for himself and the children.  He has a property there (“the Colorado Home”), bought pre-marriage in anticipation of returning to live there.  He also has his extended family there.

36.  R’s main reason is one of finance.  The reality is that he simply cannot afford to remain here where the costs of living are much higher than his home town back in Colorado. Although he had actively sought employment from April 2013 to March 2014, he was unable to secure a job in Hong Kong.  He has been undertaking accountancy work on a short term contract, with an income of HK$90,000 per month before Hong Kong and US tax.  This was way below what he got previously.  He has been unable to find an employment commensurate with his former work.  In light of his qualification as a US accountant, with no Chinese language ability and no experience working with either Hong Kong or Chinese regulatory or tax environments, he believes he will have a better chance to secure employment in US and be able to sustain the expenses of his family, including his new family.

37.  He is the primary carer of the children and is the parent who can give the children a settled home life and upbringing. Indeed, he says that he has been the primary carer of the children since about 2010 when P ceased spending the weekends with the children, left the matrimonial home on Saturdays and only returned on Monday mornings.  Further, around January 2011, P ceased living in the matrimonial home and moved her day to day important personal belongings elsewhere.  P would come to the matrimonial home in the morning to prepare the children’s lunch boxes whilst R would wake the children, bath them, prepare them for school and take them on the ferry to catch the school bus in Central. 

38.  He is extremely concerned about P’s ability to cope with the children on her own should he leave and the children remain here, given her emotional instability.  This has become one of the main issues in the trial of this application.

39.  R says he has a clear and settled plan for the children: 

1.	He would have the sole custody and care and control of the children, with free access to their mother;
2.	He and the children, together with his new family would live in the Colorado Home with his father, step-mother and step-sister who would assist him in providing care and support to the children;
3.	J would attend MR Middle School and A would attend SV Elementary School of the relevant school district, which are not fee paying.
4.	He would arrange for the children to attend universities in US upon their respective graduation from high school, with local rather than overseas fees.
5.	He would be responsible for the financial support of the children.

40.  R considers that his proposal provides the children with certainty and stability, extended family (grandfather, uncle, and cousins), clear plan for their educational future; and given the uncertainty of the P’s proposals, there will also be absence of the changes that they might be required to face in Hong Kong.  Further, if he is not permitted to remove the children, they will be without their father in their daily lives, as he has been as the primary carer over the years. 

The Mother’s Case

41.  P opposes R’s relocation plan.  She seemed to be putting forward a case that R is just using the employment or the financial reason as an excuse.  She does not believe that R could not find a job in Hong Kong.

42.  The children see Hong Kong as their home. They are simply not prepared to go.  They have been here since 2005 and have never lived in Colorado or anywhere in US except for holidays.  In fact, R left US for a long time, he has been working in Asia for over 15 years, first in Japan and then in Hong Kong.

43.  If R decides to return to US with his fiancée IY and the baby daughter, she is more than able to take care of the children in Hong Kong.  Of course, she would need financial support of the father but she is prepared to take up a full-time job to meet the family expenses.  She would hire a domestic helper to assist in caring the children, if necessary.

44.  In the event that R decides to stay in Hong Kong, she still wants to have joint custody with the father but with care and control to her for the reason that it is clear that the children dislike IY. She is also not happy with the care rendered to the children by R and IY.  They were sometimes left unattended to at home, even without dinner at the usual dinner time.  This is a serious change of circumstances which would warrant a variation of the Consent Order in the interests of the children.  She realizes that the children love their father equally so she would allow reasonable and generous access. 

45.  On R’s allegation of her emotional instability, she admits she was unhappy during the marriage.  She felt stress and indignation from the domineering and controlling attitude and behaviour of R.  She was depressed.  Her condition became worse shortly prior to her petition for divorce.  Since she has divorced, she is more relaxed and more confident now.

Evidence and Witnesses

46.  Apart from the parties, Ms Lim, the government clinical psychologist, Ms Cheng, the social welfare officer, IY and Dr Levy have given evidence in court.  Mr V, the grandfather, who was in Colorado, gave his evidence via video in the Technology Court.

47.  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.  Needless to say, some issues and evidence will be given more weight than the others 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.

What are the main issues to be considered?

48.  The following main issues fall to be considered:

1. Should permission be given for the two children to leave Hong Kong in order to relocate with their father to Colorado, US?

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

49.  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;

50.  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. 

51.  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.

52.  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. 

53.  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.

54.  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. ”

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

56.  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 Colorado, the United States with their father?

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

57.  P says R’s relocation plan is aimed at hurting and punishing her.   The financial reason is just an excuse.

58.  She did not agree that the normal retirement age is 55 in established CPA firms in Hong Kong, that R has the impediments in not being qualified to practice in Hong Kong as a professional accountant and in not having Hong Kong or Chinese regulatory or tax environment, that the absence of Chinese language skill on the part of R is an disadvantage and that R has been out of formal employment for nearly 2 years which makes him less attractive to potential employer.

59.  She said R had taken some Chinese language courses.  She also gave evidence that she had read a lot of recruitment advertisements on the web and on newspapers and from what she heard from friends, she believed R could have found a job but she admitted that she did not send any of these advertisements to R or exhibit any of them in her affirmations and she further admitted that she had no knowledge of the contents of R’s previous job.  To me, this does not make any sense.  There is simply no basis for her to say that R could have found a job comparable to his previous one if she does not even know what R was doing. 

60.  R said he has to make the most of his earning capacity in the coming years to ensure that he can meet his obligations to his children and provide for his own future.  With his international experience he would have competitive advantage in US.  Again, P did not agree.

61.  It seems clear to me that P stands to oppose whatever R proposes. 

62.  R said he has no further ties with Hong Kong with his job, his home and marriage gone.  This must be correct. The fact that he has been doing a contract job earning $90,000 pre Hong Kong and US tax per month, which is much less than what he earned, is self-evident of his disadvantage.

63.  The parties are ‘true expats’ in Hong Kong. They came to Hong Kong in 2005 for R’s employment only.  I accept that now R’s employment has gone, he genuinely wishes to go home, that he is hindered by age as well as language ability and that his US CPA license does not permit him to work in private practice.  I have heard R and his father Mr V.  Both gave evidence that big corporations are moving from the Bay Area of San Francisco to Colorado.  His chances of finding an employment that is commensurate with his qualifications and experience are far higher in US where there is no language barrier and his international experience will be valued. I accept that he wants to go home where he has a house and his extended family members, schooling is free and the children can settle into a permanent home.

64.  I do not think R’s relocation application is intended to remove the children from P or to minimise her contact with the children.  That is not what Ms Cheng, Ms Lim and Dr Levy found.  Quite to the contrary, I accept that R is willing to facilitate the continual growth of the relationship between P and the children by proposing that P can have all the children’s time during their school holidays. 

65.  For the above reasons, I fail to see how this could be the case that R’s relocation is to punish and hurt P.  I am satisfied that his application for relocation is genuine. 

(2) Is the father’s application realistically founded on practical proposals both well researched and investigated?

66.  R’s plan is that he, IY, the children and the baby daughter will be living in the Colorado Home.  It is still subject to a mortgage and is presently being occupied by his father Mr V, his partner and his partner’s daughter who is 56 years old.

67.  The Colorado Home is 2,400 sq ft large with two stories, a finished basement and a two car garage; and each child will have a private bedroom.  It also has a front-yard and a back-yard.  The home is located in a suburban community with educational, medical, recreational and cultural amenities.  The Colorado Home is assessed by ISSR to be a safe, clean and spacious environment for the children to live with their family. 

68.  The grandfather Mr V said in his oral evidence that he might move out to live with somewhere else.  Either way, in my view, it is a suitable accommodation.  The children and also P prior to the marital breakdown had visited the place and stayed in the Colorado Home.  I accept that the children are familiar with the area and have extended family there.  The evidence shows that there were family gatherings in which the children also participated.  R has also identified the schools that J and A will be attending. 

69.  IY would provide the day to day care of the children; this is what she has been doing here in Hong Kong. 

70.  I accept that R’s relocation plan is realistic.

(3) What would be the impact on the father of a refusal of his realistic proposal?

71.  R has made it clear that regardless of the outcome of his application, he will return to Colorado with IY and their baby daughter anyway.  It is understandable as his primary case is one of finance. 

72.  After having lived with this case for nearly 1 ½ years and having heard and seen R’s evidence, I have no doubt that he is a good and loving father.  If his application is refused, though he may not be devastating, he will certainly be very unhappy and miserable. 

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

73.  I am sure that P genuinely does not want her children to leave.  She wishes to be able to ‘parent’ them, take care of them and see them as frequently as she does now.

74.  However, I am not so sure that P’s opposition is motivated by her genuine concern for the future of the children’s welfare.

75.  P did not agree that the Colorado home is a safe home or proper accommodation but she was not able to explain why.  Also, it must be the case that if the children are to attend the schools proposed by R, they would be on ‘through-train’ as local students to university.  It must be obvious to everyone that this is the case but surprisingly, she said she does not think so.  She even did not agree that schooling in primary and secondary school is free of charge because some schools are not free. Again, I fail to see her logic because it is not R’s proposal that the children are going to those schools.

76.  P came to Hong Kong because of R’s job. Seen in this light, she was brought to Hong Kong and in a way, she is now being trapped here.  It appears that Hong Kong does not have much to offer to her; she has only been able to work as a receptionist or a waitress in order to get some extra money.  Her extended family members, featured in the present applications are her mother and younger brother, are all in Japan.

77.  However, P said even if the children are to go to US, she would remain in Hong Kong on her own so that when the children decide to come back, she would give them a second home.  She is not considering moving to Japan with the children.  That said, in her affirmation, she listed out the education choices in Japan as an option.  In evidence, she explained that she just wants to show this is an option.  With respect, I fail to understand how this could be an option if she is not considering returning to Japan.  This reinforces my impression that P stands to oppose whatever R proposes.

78.  P did not agree with R’s financial analysis that he is not able to maintain the status quo by keeping 3 households.  Again, I fail to understand why she said so.

79.  Ms Irving submitted that P’s living expenses are $44,000 according to the Orders dated 15 May 2012 and 17 April 2013 plus school fees about $24,000 a month ($292,000 a year), so a total of $68,000 plus extra activities (eg Dr Pon’s sessions) now being paid by R.  Added to these is also an annual levy from the school, amounting to on average $6,700 per month.  It would mean $70,700 plus Dr Pon’s fees.  Further, if the children are to stay full time with the mother, the general expenses, such as food expense, would be more than what they are now.

80.  In response, P said if the children are with her and R is working in US, she would need roughly $60,000 which does not require the change of school and change to a cheaper accommodation.  Thus, according to P, with $60,000, less $24,000 school fees, $6,700 levy and $20,000 rentals, the monthly disposal sum would only be about $9,300 for 3 of them to cover all the other expenses.  I take what she means is she will be working to earn some extra cash because she mentioned that she could apply for tax allowance.  In Re-examination, she further accepted that if the children are to remain with her, their sessions with Dr Pon would have to continue.  According to P, Dr Pon would be willing to make some concessions on her charges.  At any rate, this would mean some extra money, probably a few thousand dollars. 

81.  P also gave evidence that if finance allows so that she does not have to work, she will take care of the children or works while they are away.  If she works, she may employ a helper but she has no ideas as to the sort of job she may be able to get.  She said she would like to have a job with flexible hours and with sufficient funding to hire a helper so that she may be able to take care of the children.  Later on, in re-examination, she said the type of job she has in mind is her current job, ie working in a restaurant.  She thought she could contribute $20,000. 

82.  She also mentioned that she prefers to have her mother to come over to look after the children but she accepted that her mother could only come as a visitor for 180 days.  It is an open question as to whether she is able to obtain any residency visa for the grandmother and there is also no evidence from the grandmother in support of that.

83.  She also assured that there are many choices in Hong Kong and there are a lot of different ways to solve the financial issue.  According to her calculation, she and the children can live in Hong Kong on their own.  She does not want a change in the life-style as it would bring emotional impact on the children but if needed she would do so, for instance, she would change to less expensive schools or to forego the existing club membership.  In any event, depending on what she is able to get, she would make the necessary adjustments. If R is not making any contribution, she thought she needs a minimum of $20,000.  She would change accommodation and schools.  She even raised home schooling as an option. 

84.  She also heard from friends that as a single mother, she could apply to the Government for single-parent allowance. When being asked by the court whether she meant CSSA, she said she had no idea.

85.  Despite P is adamant that she could make it, it seems to me clear that she has not given sufficient thought on the financial aspect.  What she said is completely unrealistic.  At the moment, R is earning a mere sum of $90,000 out of which he has to pay Hong Kong and US taxes.  It is clear that the family cannot be maintained on the current earnings. The objective fact is that the family’s liquid asset now being retained in court is being drained every month in maintaining the households and it will not be before long that the asset will be gone.

86.  She is now working part-time in a restaurant in Causeway Bay on every Monday, Tuesday and Wednesday and on alternate Sunday when the children are with their father.  She also works if the children are on holidays with R.  She works 8 hours a day for 14 to 15 days per month at an hourly rate of $66.  She previously worked full-time when her mother was in Hong Kong for about 2 months.  I reckon it would mean she is earning about $8,200 per month.  If she has to work full-time after R has left, she would need to employ a domestic helper.  It would mean further expenditure and larger living space to accommodate the helper.  It is also likely that they have to move to cheaper accommodation and to change to less expensive schools.

87.  I am convinced that her assessment is wholly unrealistic.  P does not have any idea as to the reality she is facing or as to what options are available to her.

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

88.  I am sure that P will be very unhappy if the children are to go the US because she would not be able to see them as frequent as it is now.  However, her relationship with the children could be maintained by generous contacts and in this regard, R has agreed that P could have the care and control of the children during their school holidays.  Given the long distance between Hong Kong and Colorado, this of course would essentially mean longer school holidays.

89.  Apart from face to face access, there are, among others, Skype and Face Time available for keeping the relationship.  The children are old enough to be able to fully utilize these media.

90.  In this regard, it is noteworthy that the grandfather has a very good opinion on P and is very positive in accommodating her visit for maintaining contacts with the children.

91.  Thus, though P may have some determent, she could still be able to maintain her 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?

92.  The grandfather is 81 years old and his partner is 77.  He gave evidence that he does not see them to be involved in another family in the upbringing of the children.  He is not going to babysit anybody.  Like anyone else, the grandfather has his own opinion.  He holds a traditional view that P should take care of the children and R should take care of the money side.  That said, he confirmed he continues to be an affectionate and loving grandfather and will help them.  

93.  What the grandfather said is sensible and reasonable.  Though from what I observed the grandfather looks healthy, given the advanced age of the grandparents and together with the fact that he was diagnosed with cancer 3 years ago, it is wholly unrealistic and in any event would be too much for him if he is to take up any responsibility regarding the care of the children.  It would be sufficient and would benefit the children if the grandparents are around and close by and to give their love as grandparents. 

94.  I agree with Ms Irving that there is an extended family in Colorado.  The children have grandparents and cousins there.  They would have the opportunity to become part of a settled community there.  It is beyond doubt that the grandparents and cousins are no substitute for the mother but the detriment to some extent is offset by the extension of the children’s relationships with the paternal family and homeland.

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

95.  The above appraisals must now be brought into an overriding review of the children’s best interests as the first and paramount consideration.  There are a couple of factors that I need to consider.

The Role of R as the Children’s Carer

96.  There is some dispute regarding the involvement of the parties in the care of the children during the marriage.  P said all along she was the primary carer until she moved out in June 2012 but R said from around 2008/2009 P started to lose interest in handling household chores and looking after the children.  He thus started to take up more share in child care.  In 2010, she even stopped spending weekends with the family and started to stay overnight at friends’ place on and off.  It would appear that to some extent P agreed that this happened.  In the 1^st SIR, it was reported that P revealed to Mr Ma, the then social welfare officer, that she had a relationship with her boy friend since November 2010, that she usually met her boy friend on Saturdays and Sundays and sometimes slept over at his home and further that between June and August 2011, she had gone to her friends and boy friend’s place for sleep-over.  

97.  Be that as it may, I do not think this dispute is material; they were matters in the past.  What is material is the prospective arrangement for the care of the children.  For this purpose, I would give more weight to what has been happening regarding the care of the children.  The undisputed fact is that R has been taking care of the children for 9 nights out of a 14-day cycle.

98.  As I said above, this is not the arrangement under the Consent Order pursuant to which the parties were essentially given an equal split of the time.  There is some dispute over the reason for this change.  P said it was due to R’s insistence and threat of going to court again that she made the concession.  As for R, he said it was after his discussion with Dr Pon and it was upon Dr Pon’s advice that the parties agreed to change.

99.  From her evidence in court, it seems clear to me that the change was implemented after having discussed with Dr Pon in person, exchanges of emails amongst them, and finally it was agreed upon the advice of Dr Pon.  P testified in court that Dr Pon explained to her that since the children were going to an English school and their father was a native English speaker, the children should benefit from R’s involvement in this regard in the long run, and so she agreed to have the children stay with R during the weekdays.  In evidence, she expressly said that she accepted Dr Pon’s advice and the arrangement was good for the children.  Therefore, it is certainly not the case where she had no choice but to accede to R’s request. It is illogical and does not make any sense for her to say that the change was due to R’s insistence and threat.

100.  I consider that apart from being the custodian parent, R should be regarded as the main carer of the children. In coming to this conclusion, I must emphasise that I am not belittling the role of P or saying that she is not a care giver of the children.

The Social Welfare Officer (SWO)’s Evidence

101.  Ms Cheng said R impressed her as a person who knows very well to get along with the children.  He is a person with clear target and would try his best to achieve.  However, he may not be sensitive to the inner most feeling of the children.  As for P, she is more compromising. She is a caring mother and loves the children very much.

102.  Though Ms Cheng accepted that Hong Kong was never intended to be the permanent home of the parties, she does not support R’s relocation plan.  She has no problem with R’s arrangement in Colorado.  The heart of the issue is the children’s readiness to go. 

103.  In her 1^st SIR, she assessed that the children were not ready.  However, she said that once the children are ready and prepared, the relocation plan can be executed subject to further assessment on the circumstance.  She took the same view in her up-dated SIR, saying that while the 2 children were still ambivalent about the consequence of the relocation, maintaining the present care and living environment would allow more space for the children to adjust to the parents’ divorce and give more time for them to prepare for separation with either parent in future.

104.  If the relocation is refused, she would recommend the current care and control arrangement to be continued because the children want the status quo. 

105.  Probably out of abundance of caution, Ms Cheng was reluctant to give direct answers even to some simple and straightforward questions, especially from those raised on behalf of the father.  For instance, she was reluctant to give an answer whether or not she accepted that according to the R’s proposal, the children’s education in US would not require any fees.  In the result, much time was spent on extracting an answer from her.  Another example is whether she accepted the parties do not have extended family’s support in Hong Kong.  The answer was obvious to everyone but there was no direct answer from her.  The SWO’s role is to assist the court.  Very often a direct answer is what is needed.  It is never a matter of who gets it right or who gets it wrong. The ultimate goal is to find out what arrangement is to the best interest of the children. It is not necessary to be overly defensive, to do so would only undermine one’s credibility.  

106.  It appears that Ms Cheng’s conclusion was arrived on the basis of a false premises, ie the father could stay.  It is not mentioned or reflected in the reports that R indicated to Ms Cheng that he might not go.  Under cross-examination, at one point she said she did not ask the father whether or not he would stay but she believed he would consider the interest of the children because he loved them.  Then at another point, she recalled that R had told her that if the children were to stay he would not go.  Ms Irving was right to point out that this was not mentioned in the report.  Be that as it may, it seems clear to me that Ms Cheng did not support relocation because it is to the best interest of the children that the present arrangement is to be kept intact but regrettably this is out of the question. With respect, her recommendation is on shaking ground.

107.  I am quite sure that, in assuming that the father could stay, she also failed to consider the consequences on the children if they are not seeing the father on a regular basis as it is now.

The Children’s Views

108.  According to Ms Cheng’s 1^st SIR, both children wanted the status quo.  They wanted to stay with their parents in Hong Kong under the present arrangement.

109.  J was reported to have expressed that she did not want to move to US as she did not want to separate with her mother. She also said she disliked IY and she would be very unhappy if she had to live with her in US.  A also expressed similar view that he did not want to leave.

110.  That said, the children were found to have an intimate relationship with the father.  Both were attached to him and felt relaxed to stay with him.

111.  Ms Cheng reported in the up-dated SIR that whilst both children continued to hope both parents could live in one city, there was apparently a change in their stance.  J expressed that she still had hesitation to live with IY in US but it would appear that she was not that opposed to the plan.  She told Ms Cheng that she was in the middle to have a decision and that she might or might not go.  As for A, he was more inclined to go though it was reported that he did not reach a solid view.  Ms Cheng concluded that the 2 children were still ambivalent about the consequence of the relocation. 

112.  Ms Tsui submitted that there were manipulations from R to account for the change in the children’s views.  It was reported by Ms Cheng that R talked about the relocation with the children almost every day.

113.  On the evidence before me, it is fair to say that both parties have been trying to guide the children to make a decision in their favour as has been reported in Dr Levy’s report.  While P complained that R made the children write letters to the court in support of R’s application for a trip with the children to US in the summer of 2014, she exhibited J’s diaries as evidence in her affirmation to prove that J disliked IY.  P denied Ms Irving’s suggestion that she made her friends and their daughters to prepare all these materials in order to exhibit them in her affirmation.  On the evidence, I am satisfied that she orchestrated the exercise.  In my view, when the children wrote the letters they knew that the letters would be read by the court but when J wrote her diaries, she was confiding her views and feelings with her playmates, she would not have realised that P would have breached the confidence and exhibited the diaries as evidence.  To me, if R has to be censured for his acts, it would be more so for P.

114.  It is clear that both children are caught in the middle and think that their views are decisive.  They find it stressful to have the need to choose since they love both parents. 

P’s Emotional Instability

115.  R’s theme is that P is emotional instable and has anger management problem.  She is violent and short-tempered.  He is also concerned about the on-going physical discipline of the children.   This type of unpredictable behaviour leaves the children scared and confused, so they should not be left to P in Hong Kong.

Dr Mistler’s Report of 15 October 2012

116.  Dr Mistler, a clinical psychologist in private practice, prepared a report on 15 October 2012 on the parties when they were contesting on the arrangement of the children.

117.  It was reported that P suffered situational depression in 2011.  When P felt stressed and overwhelmed she tended to feel she could not cope and either lashed out in anger or withdrew (such as leaving home on weekends).  She tended to blame R for her anger outbursts, pointing at what she termed as his ‘harassment’ and indicating that she had been driven to these times of anger outbursts.  She did not demonstrate a great deal of insight about this pattern.  Her Minnesota Multiphasic Personality Inventory – 2^nd Edition (“MMPI-2 Profile”) reflected some maladaptive personality features that were likely to persist.  She tended to deny problems rather than confront them.   She might feel that others do not understand her, and she might tend to blame them for her problems.   She might also have some trouble with emotional control and, under stress, might have emotional outbursts. 

118.  Dr Mistler opined that while P dearly loved her children, she at times risked hurting the children with her anger outbursts and focused on her own pursuits.  She blamed these outbursts on R’s provocation.  Dr Mistler suggested that she should pursue proper treatment by having weekly sessions with a doctoral level psychologist or a psychiatrist. It was also suspected that P might have suffered from post natal depression and then continued in other forms over the last 10 years.

119.  R was also not without problems.  His MMPI-2 Profile showed that he was probably rigid and inflexible in his approach to problems and may not be open to psychological self-evaluation.  Dr Mistler also opined that R should also address his tendency to lash out when frustrated.  He might benefit from some therapy focusing on anger management strategies.  That would help him communicating with P.

Dr Levy’s Report of 30 September 2014

120.  Dr Levy, also a clinical psychologist, saw the parties and the children and submitted her report on 9 April 2012.  It was upon her recommendations that the parties were assessed by Dr Mistler and that the children have since August 2012 been receiving weekly play therapy from Dr Pon.

121.  In trial, the spot-light was on her latest report of 30 September 2014.  It was prepared by Dr Levy after having conferred with Dr Pon.  In other words, the report was essentially Dr Pon’s opinions based on her observations on the children.  It was so arranged in order to preserve the integrity of the therapeutic relationship with the children. 

122.  It was observed by Dr Pon that when both parents are present in her clinic, they are subdued and quiet.  The children would give R secret waves or winks as they leave with the mother.  The children informed Dr Pon that P would not like them to engage with their father and would be angry with them if they communicate with him in her presence.  In contrast, when R is present with the children without P, the children are cheerful, joke around, and laugh together with their father.  Despite having used many strategies and role-play with the children to help them build their capacity to stand up to P in this regard, the children have chosen to comply in order to avoid confrontations with P.  They did not attempt to do it because they were afraid that their mother would be angry with them if they did.  Dr Pon’s discussions with P have also led to little change.  On the contrary, it was observed that there was no disapproval from the father. 

123.  Dr Pon also observed that P tends to be more authoritarian and directive, whereas R is more likely to engage the children in discussion about issues that surface.  As a result, the children can be somewhat fearful of disappointing their mother due to her reactions and history of unpredictability when upset with them.  The children would often censor their true feelings and thoughts when interacting with their mother.

124.  It was also reported that A was slapped by P when he spoke with his mother about her refusal to permit them to take a trip to US with their father during the summer of 2014.  The up-dated SIR also has record that A was hit by P during the summer holiday of 2014.  J told Ms Cheng that P lost temper easily recently.  When she was angry, she would scold A and close the door loudly.

125.  On this, Dr Levy gave her own opinion that with such physical discipline, A may either censor his view or act out which might account for the foul language when he has just had enough.  There is also an underlying issue that the discipline happened because A wanted to do something with his father.  This would have discouraged him from wanting to spend time with R.  Dr Levy also made the point that according to her findings when she prepared her first report in April 2012 and from what she gathered from Dr Pon, the situation has not changed:  the children are afraid of telling the mother their true feelings.

126.  Dr Pon’s concern is that due to P’s open hostility towards R, the father will be marginalized from the children’s lives if they remain in their mother’s care.  The slapping of A also raised some concerns about continued physical discipline, her ability to self-regulate emotionally, and the underlying message that A’s desire to spend time with his father will incur anger and should be punished. 

Discussion

127.  The children have been receiving weekly play therapy from Dr Pon for nearly 3 years.  There can be little doubt that Dr Pon should be far more familiar with the children than Ms Lim and Ms Cheng who just saw them a couple of times; and the children have built up sufficient trust and rapport with Dr Pon.  

128.  P said she was shocked by the report.  She even claimed that Dr Pon apologised to her for some of the remarks in the report.  Upon the court’s inquiry, Dr Levy confirmed that Dr Pon had read the report and approved of everything before it was submitted.  It is hard to believe that should there be any grave errors or misrepresentation of facts, Dr Pon or Dr Levy, as professionals, would have allowed a flawed report to be presented to court. 

129.  Despite Ms Tsui’s greatest efforts, I do not think she has been able to undermine Dr Levy’s testimonies.

130.  P tried to downplay the situation by saying that there were only a few occasions when both parents were present in Dr Pon’s clinic.  It may be the case, but in my view, she missed the point entirely. The point is her expressed disapproval of the children to contact their father.  It was commented that P can be quite transparent about her feelings and very vocal as well as open in terms of her disapproval of R, even in the presence of the children.  If this happened while they were at Dr Pon’s clinic, there is no reason why this would not have happened when the children were with P during other times.  It was mentioned by Dr Pon that the children did not call R during their time with P.  Dr Pon viewed this as a significant issue. She is concerned about the impact that R’s relocation will have on his relationship with the children if they are to stay.  She saw that R would be marginalized due to the animosity directed against him. 

131.  In examination in chief, she denied she is violent and short-tempered but she did admit that she sometimes broke things such as the doors, the sink and the bed light that R mentioned in his affirmations.  She agreed that she had anger management problem even before coming to Hong Kong but she emphasized that she will no longer do it again because she is not living with R anymore.  She has sought help from professionals and is emotionally more stable now.

132.  Ms Tsui also stressed that these were matters in the past when the parties were living under the same roof. 

133.  P was cross-examined on the alleged incidents of emotional outbursts.  It is not necessary for me to deal with all of them here.  I only need to refer to the more recent ones.

134.  In around September 2007 when R returned home, he found the bathroom sink damaged.  He learned from the children that P was angry that day and threw a cup at the sink.  P admitted that it did happen when R was on a business trip.  It is clear that the incident was not provoked by R. 

135.  In 2008 P went into a rage over a trivial matter.  It escalated to a point where R felt the children and him were threatened.  He took the children into the master bedroom and locked the door for safety.  P repeatedly pounded on the door by using the metal pipe of a vacuum cleaner.  The metal door handle broke off due to the blows.  She admitted having broken the door to get the children, who were then 6 and 4. She agreed it was scary for the children.  In the context of a domestic dispute, plainly it was very violent.  Yet she said her attitude did not create more tension because it was not the behaviour from her only.  She agreed she did not cite any example of R’s similar behaviour in any of her affirmations. Ms Irving was right to point out that there was none in her affirmations.  I am sure that if there were, P would have said these.  Her explanation that she just wanted to move on with a new life with the children and so she did not state R’s behaviour is simply unbelievable.  It was put to her that this is a classic example of denial.  She disagreed.

136.  Finally, P admitted she threw a wooden bowl towards the floor on 18 May 2011.  In her affirmation, she explained they were arguing and R once again succeeded in making her upset and angry.  Essentially, she said she only did this because she was cornered by R.  It seems to me what she meant was it had happened naturally.  That said, she agreed she did something bad in front of the children and the fighting might have hurt the feelings of the children. 

137.  Dr Mistler’s assessment has never been challenged.  As a matter of fact, P tried to say she has followed Dr Mistler’s advice.  However, it is clear that she has not been facing her problem.  She attributes her problems to living with R but clearly it is not what the reports said.  On her own evidence, P has just taken some random counselling.  Ms Lim also gave her view that P did not follow the advice of Dr Mistler to receive proper therapy and this causes her concern.  Surely, the problem would not simply go away together with the marriage.

138.  I consider there is no reason for me to ignore the concerns raised by the psychologists.  The concerns are certainly valid and pertinent to the relocation issue.  Ms Lim agreed that P attributes her responsibility to the father and she agreed it is an important concern that P has not been able to contain her temper.  Given that P now stays with the children 5 nights in 2 weeks, if she is to have the children all the time, Ms Lim agreed that R must be right to be concerned about P’s emotional stability.  Thus, I cannot agree with Ms Tsui that I can dismiss the concerns for the reason that they are matters in the past. 

139.  As I referred to above, there is evidence suggesting that she is still bad tempered and may outburst to the children under stress.  This is a real concern especially when she is to take care of the children singlehandedly without support from the extended family.  

The relationship between the children and IY

140.  IY is a prominent figure whom I should not ignore.  Not only that she is part of the father’s new family but she also plays a pivotal role in the taking care of the children. 

141.  P says she has a very close bonding with the children.  She can see that the children are not happy.  They have explicitly aired that they dislike IY.  Thus, going to US and being forced to live with IY is not in the interest of the children.  

142.  A step-mother is someone who was a stranger but has, very often suddenly, become a member of the family.  Commonsense tells me that it is always a difficult ‘job’ to be a step-mother, especially when she has to perform in many aspects the role of a mother.  It is particularly more difficult if the natural mother is around and is still heavily involved in their living.

143.  I believe the children’s relationship with the fiancée has genuinely improved since the 1^st SIR on relocation.   That has been so reported in paragraphs 18 and 24 of Ms Cheng’s 2^nd SIR.  Para 24 said as follows:

“…While the father was carrying the baby, (A) asked for carrying the baby (ie their half-sister) too. The Father let (A) to carry. (A) told that he liked playing with the baby while (J) also told that the baby was cute. While (A) was asked whether he had confidence to carry the baby firmly, he said that he had confidence to do so as he always carried the baby at home. The father’s fiancée smiled at the children during the whole process. In general (J) and (A) had interactive communication with the father and their relationship was harmonious too”.

144.  As conferred by Dr Pon, A has opened up and has been vocal about accepting the baby sister; and J has ultimately accepted IY and the baby sister and she was observed to have positive interactions overall with IY.  The children and IY are able to engage well with each other. Dr Pon made the point that R has also made an effort to integrate IY into therapy so that they could learn how to deal with the children and make them feel more secure.

145.  R has produced some photographs on the interactions between the children and IY.  The photographs show the children looked relaxed and comfortable with IY.  For instance there are photographs showing that the children were happy and at ease when they were ferrying to the downtown or playing on the beach.  P challenged this by saying that the children were told to be happy and to wear a smiling face otherwise R would get angry.  However, clearly there are pictures taken when R was not present.  P’s version is too simplistic to be true.  I do not accept that the children wore a smiling face simply because they were told to do so.

The Care of IY on the Children

146.  IY came to Hong Kong as a foreign domestic helper.  She has been able to stay with the family because R ‘hired’ her as his helper.

147.  IY’s evidence regarding her former marriage and her daughter who is now being taken care of by her former husband is not entirely satisfactory.  That said, I accept that if the children are to relocate to US, IY will be doing the same household chores that she is now doing: cooking meals and looking after the children.  By and large, these have been done satisfactory.  In saying so, I have not lost sight of the fact that P was fast to complain that there was at least on one occasion when the children were said to be left unattended to at home and J was being late for a school trip. Meanwhile, R also spared no time to point out that while A was under the care of the mother, he was knocked down by a golf-cart while he was on his way to school.

148.  In my view, IY and R should be able to provide sufficient care to the children if relocation is allowed.

The relationship between P and IY

149.  P described her relationship with IY as difficult.  Given her open disapproval of R, it is no wonder that she also disapproves IY.  There is no doubt that the relationship between P and IY was stressful and strained.  There used to be much hostility between the two ladies but the hostility appeared to have ceased since March 2014 due to R’s intervention.  It is hopeful that once the relocation issue is settled, their relationship should be less stressful.

Should the father be allowed to relocate to Colorado with the children?

150.  Much has been said criticising R for not consulting Dr Pon or P on how he should have broken the news of the baby sister to the children, for introducing too many changes to the children arising from his new relationship with IY, the new family and the new baby sister, for being insensitive to the feelings of the children, for being inflexible, unnecessarily insistent and arrogant and for always saying that P is sick and is with mental problems.  I agree that R has his own shortcomings; but the same for P.   Both have their strengths and weaknesses.  This is the reality that the children have to live with.

151.  I am satisfied that despite their different parenting styles, both are capable parent in giving adequate care and control to the children. As evident in the first 2 SIRs where it was recommended that the joint custody, care and control was to be given to both parties.  The then SWO, Mr Ma, was of the view that both had shown ability to take care of the children independently.  Though the reports were prepared not for the purpose of the present relocation application, in my view this would not alter the validity of the observations.  Ms Cheng also considered that both are equally capable parents.  I agree.  So far apparently there has not been any particular problem arising from the present care arrangement.  This situation would continue to hold true when both are in Hong Kong.  I must now consider who is in a better position to provide for the care of the children when R relocates to US.

Marginalization

152.  Clearly, Dr Pon’s greatest concern is the marginalization of R.

153.  If the children are to stay with their mother, given the open hostility and disapproval on the part of P, I doubt very much whether P would be willing to promote an ongoing relationship between the children and their father and R would be able to enjoy the same or similar contacts with the children.  In this regard, I note that J was reported to have told Ms Cheng that she had difficulty in contacting the father while under the care of her mother.  She also informed Ms Cheng that she wanted to live with R on a large proportion base and her brother A also expressed that he wanted to live with his father more.  Ms Lim also mentioned in her report and confirmed in evidence about P’s subtle disapproval of the children contacting R when they are with the mother and she agreed there is no such disapproval on the part of R.

154.  I agree with Dr Pon that the children will run the risks of losing most of their contacts with their father. Needless to say, this would have adverse impact on the children.  Conversely, there would not be such a risk if they are to stay with R.

155.  Dr Pon also made the point, and I think this is important, that the parties have very different parenting styles which happen to complement each other.  Given that R is more likely to be conducive to the maintenance and growth of the children’s relationship with the other parent, it is also more likely that the balance of different parenting style can be maintained if the children are to stay with R. 

Uncertainties

156.  Same for any relocation case, there are bound to be uncertainties in what lies before the parties.  Indeed, this happens not just to relocation cases.  It is the reality that, to a greater or lesser extent, one has to face.  Thus, the question is not one of uncertainty; the question is whether the relocation is well planned and considered so that the major adverse uncertainties are foreseen, avoided or eradicated as much as possible.  

157.  Ms Lim considered that if the children are to move to US, there will be a lot of instability.  They have to adjust to members of the extended family and new family rules, social network, friendship and culture.  I have no argument with Ms Lim on this but it seems clear to me that she made no reference to how the children could cope with the long distance relationship with their father.  At the end, she accepted that the children would miss their father very much.

158.  Moving to Colorado will be a change for the children, but they know the house, the environment and the family members. Once they have undergone the transition, they will have a settled, stable home in which they will remain until they grow up.  I agree with Ms Irving that there would be a period of adjustment leading to long term stability. 

159.  Even if the children are to remain in Hong Kong with P, there are bound to be changes that are no less significant than the changes they may face in Colorado.  The most significant change would be the loss of R in Hong Kong.  It is also likely that they would have to change their school, which represents a significant change for them both in terms of their schoolings and peer groups.  They may have to change to cheaper accommodation or even to another neighbourhood.  I incline to agree with Ms Irving that if the children remain in Hong Kong, there is uncertainty about almost every aspect of their lives.

160.  Extended family support is important especially in times of change and stress.  It is particularly so for P who can be emotionally unstable.  P does not have any extended family in Hong Kong.  It is true that sometimes friends can be supportive and can play the role and P did mention that she has some friends but little is known about her support network in Hong Kong.

161.  Although when Ms Lim prepared her report she did not have the benefit of Dr Levy’s report, she had already made the point, in para 10.6 of the report that, if P is to take care of the children singlehandedly, she has to be very sensitive about maintaining her own emotional stability.  In her evidence, Ms Lim also admitted that when she prepared her report she did not have the information that A was slapped by P when he forgot to do his homework and the children were scared. She agreed that P’s emotional stability is a concern for her.

162.  Thus, there is evidence that the children continue to report P’s angry outbursts.  If this happens when she has less than half of the time with the children, it would mean they would be subject to a higher risk if they are with her full-time and under stressful situation occasioned by the changes. 

163.  As for R, it has been commented by nearly all involved in the assessment of the parties that he is seen to be emotionally more stable.  To me, this is a trait that is of particular relevancy when the children will be facing uncertainties and ups and downs. 

164.  It is worthy to note that Dr Pon indicated that the children have demonstrated a great deal of improvement and growth in recent years.  They are likely to be adaptable and resilient, and will be able to cope with a new environment such as relocation would entail.  The children will likely be able to flourish in a supportive environment where they are able to experience stability and low levels of conflicts with an extended family network to support them.

Financial Reality

165.  The financial reality is that R simply cannot afford to remain here.  According to R, the cost of maintaining the 2 households in Hong Kong as well as his US obligations amount to over $164,000 a month.  Each month assets are depleted to make up the shortfall between what he currently earns and the family spending.  Schools fees alone are HK$17,320 according to the Form E filed on 26th February 2013 with total children expenses given as $45,120, not including their share of household/general expenses.  It is not difficult to understand why R says moving to US will ease the financial burden considerably, as well as provide the children with settled continuity of life.

166.  For P, as I have demonstrated, it is not clear how she envisages meeting the cost of living in Hong Kong.

The Intended Relocation to New York in end of October 2010

167.  There is also one small point but I have to be rather lengthy on this.

168.  I accept R’s evidence that, as a matter of fact, back in October 2010, R’s employer was minded to relocate him to New York.  There were emails from R in October 2010 to P providing information about schools in New York.  These emails clearly show that he raised the issue of relocation to New York at that time but P insisted that she considered these emails as providing information to her only.  In cross-examination, at one point she even said she had no recollection of these emails.  I must confess that I fail to understand her logic.  Anyway, she admitted that after she had made up her mind to divorce R, she wrote to him informing him that she did not know whether it was correct for the whole family to move to New York.

169.  In her affirmation in support of her ex parte application of 10 June 2011 to restrain R from removing the children out of Hong Kong, she said she first heard of R’s plan in December 2010 when R asked the children directly in front of her.  In her petition dated 10 June 2011, she also alleged that R “makes plans for the family to move without any consultation with her”.

170.  Ms Irving was right to point out that the petition was subsequently amended to delete that paragraph but P said she did not totally agree to the amendment.  She agreed because she wanted to move on.  I have no hesitation in finding that she did not make full disclosure about relocation to New York when she made her ex-parte application and she was not telling the truth when she insisted that R did not consult her.  She did not impress me as a frank and truthful witness.

171.  R also produced an email written by P to the grandfather Mr V on 23 January 2011 informing him that she was not going to stay with R anymore and would not go to New York.  That was after the family’s visit to the grandparents during the Christmas of 2010.  The relevant part of the email is as follows,

“I AM SO SORRY to tell you this, but I am not going to stay with (R) anymore. I will not go to NY, I think I have to go back to Japan…I wanna take kids with me but I cannot destroy nice relationships between (R), (J) and (A).

They love each other so much, and I am not there.

I know that is why which is I am not a good mom.

I know it is my fault and this is life so I have to deal with it,

But I am breaking down.

I drink everyday (sic), smoke, cry… I am gone.

I have to find myself again and be happy and make kids happy again.

Right now, even I am with (J) and (A), I am not there.

My mind and heart is not with them.

I think they can feel it and it is NOT good for them to see crazy mom like me.

Honestly, I think I can live without kids… I don’t know if I love them according what i do to them.

I have no right to say I love them because the way I do to them.”

172.  When being confronted with this email, notwithstanding that this email has been disclosed for 3 years since April, 2012 and its authenticity has never been challenged, P said she did not send it out and she could not find it in her account.  

173.  It is common ground that at that time P started a relationship with her boy-friend.  There is evidence that P was finding herself a job and a flat for her alone. There was a letter dated 18 March 2011 from her prospective employer seeking approval for P’s employment from the Immigration Department.  It was a full-time job requiring P extensive travelling.  P’s explanation is that since at that time she was staying in Hong Kong on the strength of R’s visa, her friends helped her out by issuing the letter so that she might apply for a visa on her own but in fact there was not such a job opened to her.  Essentially what she said is her friends concocted with her in submitting false information to the Immigration Department.  She later realized that it was illegal and she withdrew her application.  

174.  As regarding engaging a real estate agent looking for an appropriate flat in the neighbourhood for her, she also has her explanation.  She was doing research on what she could get with a budget of $10,000 to $15,000 if she were to move out with the children.  She wanted to know the kind of household she would be getting if she divorced.  In this respect, Ms Irving challenged that she also viewed some 1 bedroom flats.

175.  Against this background, putting all the pieces together, it is wholly understandable that back then she might have decided for one moment that she was not going to live with the children.  I accept that now the situation has changed, she has returned to be a caring and loving mother as before.

176.  In contrast, R impressed me as always being a loving and caring father.  Even when he had a new relationship and then a new family with IY and the baby daughter, he has never ceased to be a loving and caring father, has never given them up and has been fighting for relocating with them.  It is glaringly apparent that R is more dependable.

177.  After having taken all these factors and concerns into consideration, I have no doubt that the balance is favour of relocation and this is the order that I give.

Custody

178.  As far as custody, care and control is concerned, 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)

179.  It has been submitted on behalf of P that she always wants to be involved in the upbringing of the children, that in respect of the Consent Order she made greater concession by agreeing to ‘sole’ custody be given to R, that at that time she had no idea of R’s new relationship with IY and that she would not have consented to the Consent Order had she known of the relationship.  It may well be the case but as I see it what I should look at is the present circumstances and the prospective arrangement of the children.  Parental rights exist for the benefit of the children but not for the benefit of the parents.

180.  I believe what happened in the past speaks for itself.  It is crystal clear to anyone involved in this family that the parties have no intention and no ability to communicate and work anything out sensibly for the benefit of the children, at least for the time being.  I am fully aware that, as has been pointed out by Hon Hartmann JA (as he then was), there is a thin line between sole custody and joint custody only: PD v KWW (Joint Custody, Care and Control), at Para 41.  I have no doubt that P is a loving and caring mother and very much likes to be involved in the upbringing of the children but for reasons that I have set out, I am of the firm view that giving joint custody of the children to them would not be in the best interest of the children. 

181.  Thus, R should continue to have the sole custody of the children.

Care and Control

182.  R proposes that if his application for relocation is granted, the joint care and control remains to be shared between the parties.  The children will live in US with him during their school terms and they will live in Hong Kong with P during their school holidays.  It strikes me to be a sensible approach.  Of course, if the children are to fly back to Hong Kong they would only be able to do so in longer holidays such as during the summer, the Christmas or the Easter.   In any event, in my view, the contact will be substantial and meaningful.  The children would have probably at least 1 or 2 months’ time to live with their mother during the summer. Alternatively, or in addition, P may also visit the children in US.  It is not in dispute that Japanese passport holders do not require a visa for visiting US and are allowed to stay for 90 days.

183.  J is in puberty and will soon become an adolescent.  P, as her mother, should continue to play an active and indispensable role in her upbringing.  IY is not a complete substitute.  Of course, I have not lost sight of the need of A to maintain a close relationship with his mother too.  In allowing R to relocate, I have taken this into consideration.  Putting all the factors in the balance, I am still in favour of letting the children go.  There would be sufficient arrangement in place so that the mother and the children relationship could remain close and intact.

184.  There will also be free telephone access or through other electronic means such as Skype or Face Time with the parents who at the time is not with the children.

Orders and Conclusion

185.  For the reasons aforesaid, I conclude that R’s proposal is in the best interests of the children. I give the following orders:

1. Leave for the respondent to relocate permanently with the children of the family to Colorado, the United States of America;

2. The sole custody of the children remains with the respondent;

3. The care and control of the children remains shared between the petitioner and the respondent;

4. The Order dated 24 October 2012 be varied as follows:

(1) The children are to be under the care and control of the respondent during their school terms;

(2)The children are to be under the care and control of the petitioner during their school holidays.

5. Parties do have free telephone access or through other electronic means such as Skype or Face Time with the children when they are under the care of the other parent.

186.  As for costs, 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.

187.  Lastly, I gave some criticism on the way in which R handled the retirement fund in my judgment dated 22 November 2013 but they were on financial matters only.  R impressed me as a loving and caring father as can be seen from the perseverance that he has demonstrated in pursing the relocation application.  Now that the children’s matters have been concluded, it is hopeful that the parties may be able to sensibly consider their financial disputes so that the last bit of family asset may be saved for the benefit of their children.