CCMJ v. SSM formerly known as SKL

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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BETWEEN

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 D E C I S I O N
 (Temporary Removal)

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1.  This is Respondent’s (Mother’s) application for removing the child N for summer vacation holidays to Canada from 31/7/2016 to 19/8/2016.  The Applicant (Father) in principle agreed to the trip provided that he could take N for a school interview scheduled for 10/8/2016.

2.   Throughout these years, there has been protracted litigation between the parties and this is the 11th Decision of this Court since 2012.  Besides, there are also 3 Decisions of the appellate court.  At present, there is a 2-day hearing scheduled for 28^th and 29^th July 2016 for the Father’s application to vary the interim defined access presently in place back to the access arrangement over 2 years ago as provided for under the Order dated 13/3/2014.   

3.   The Mother who has been legally aided throughout was not represented for this application.  She took out the Summons herself on 20/6/2016 together with her 19^th Affidavit in support.  She produced 2 exhibits covering an email sent by her to the Father back on 13/5/2016 (“19-SSM-1”) and 6 letters exchanged between her legal aided assigned lawyers and the Father’s lawyers between 26/5/2016 and 14/6/2016 (“19-SSM-2”).

4.   On 28/6/2016, the Father through his lawyers filed his 39^th Affirmation together with 2 exhibits.  On 29/6/2016, the Father filed another “39^th Affirmation” which his lawyers Miss Andrey Chan informed this Court that the one filed the day before was found to have left out some paragraphs and the second “39^th Affirmation” was then filed to replace the earlier one.  Miss Andrey Chan confirmed that only the second “39^th Affirmation” was served on the Mother.  The Mother confirmed she received the second “39^th Affirmation”.  Due to the lateness in service, the Mother had not been able to put in any Affidavit in reply and, upon enquiry by this Court, she confirmed that she would not be filing any affidavit in reply.

5.   Leave was granted by this Court for the Father to rename the second “39^th Affirmation” to read “40^th Affirmation”.  Apart from stating the reason that there was a school interview scheduled for 10/8/2016 at 3:00 p.m. at ESF Beacon Hill Primary School (“ESF School”), the Father also deposed that his right of access would be infringed in the event that he was successful at the forthcoming 2-day hearing on his variation of the interim defined access.  There was also reference to his elderly parents not having much chance to spend time with the child N since May 2015.  Moreover, the Father also made reference to the Mother enrolled N for English and Maths revision classes in July and August 2016 where those classes will clash with the access times in the event that he is successful in restoring the access under the earlier Order dated 14/3/2014 at the forthcoming hearing.  Miss Andrey Chan confirmed that those matters set forth in the Father’s 40^th Affirmation are the grounds for opposing the Mother’s Summons.

6.  The Mother agreed that the ESF School had once been chosen for the child N but that was a few years ago. Since N was not offered a place for Primary One, N was enrolled with True Light Primary School (“True Light”) to start with her Primary One.  It is common ground that N has repeated Primary One.  N will be taking her final examinations soon and she ranked 11^th amongst 40 in the First Term. The Mother confidently said N will be promoting to Primary Two in September 2016, that is to say, after the upcoming Summer Vacation.  For these few years, N has been accustomed to the school, the teachers, classmates and environment and has been doing well in her studies.  The Mother said she has not had the faintest idea that the Father was arranging the ESF School for N.

7.  The Mother confirmed that she has not yet booked any flight because she would need to know whether leave would be granted by this Court for the trip.  Noting that it is already end of June and each year July/August is peak season for parents to take children out for travel, I directed the Mother to first provide details as to availability of flights before considering her application.  In the meantime, I also directed the Father to check whether the interview date he himself arranged with the ESF School could be re-scheduled. 

8.  Today Miss Andrey Chan for the Father informed the Court that actually the ESF School started its summer vacation on 24 June 2016 and nobody there to respond to the Father’s email and telephone call made after the last hearing for re-scheduling.  At the last hearing, Miss Andrey Chan had once reported to the Court that the interview date with the ESF School could not be changed save and except the time could either be in the morning or in the afternoon.  Today, The Mother produced 2 reservations for departure on 31/7/2016 and returning on 19/8/2016 (“1^st travel period”) and for departure on 11//8/2016 and returning on 29/8/2016 (“2^nd travel period”).  It is noted that the flight departure time for both travel periods is 0030 hours which is after mid-night.

The applicable principles

9.   It is trite that on all matters affecting children, the first and paramount consideration for the Court is the best interests of the child, which requires an exercise of discretion after taking into account all relevant factors and surrounding circumstances. Needless to say, this is case sensitive and the Court has a wide discretion.

The Mother’s Views 

10.  The Mother raised her queries as to why the Father would want N to be interviewed by the ESF School. The Mother raised her main concern (which I agree is legitimate) that True Light is one of those private schools with traditional mode of teaching curriculum whereas ESF is an international school.  In case N is not suitable to the ESF School teaching curriculum after the switch over, there is no room for N to ‘revert back’ to the traditional type of schools.  Apart from the reason that N has now been doing quite well in True Light, the Mother said she understands the school fees for ESF School are HK$8,380 a month whereas True Light is HK$4,494 a month.  Besides, the ESF School also need HK$32,000 maintenance fee and a Debenture of HK$500,000.  The Father at the latter part of these protracted litigation on finances (see Judgment dated 5/6/2015) had repeatedly asserted in Court that he will be retiring soon which will affect his income and finances, how could the Father be capable to support such increased school fees and charges for the remaining years of N’s education in the ESF School ?  Amongst other things, the Mother said would such change to the ESF School be practicable, if not unrealistic so to speak.

The Father’s Reply

11.  Miss Andrey Chan on instructions informed the Court that the Father has already discussed with the ESF School and was informed that the HK$500,000 Debenture would not be required.  There was no reply from the Father as to the increased school fees for changing over to ESF School and those other views of the Mother.

The Court’s Views

12.  At the last hearing on 30/6/2016, I confirmed with Miss Andrey Chan that the Father’s 40^th Affirmation would be his grounds of opposition to the Mother’s Summons.  There is no application by the Father for change of school for N although any such application would have to be well justified since the Mother has all along been the sole custodian parent having full care and control of N.  The Father has withdrawn his Summons for variation of custody, care and control of N.

13.  I will start with some chronology by reference to the exhibits produced by the parties. 

14.  On 13/5/2016, the Mother sent to the Father an email (Exhibit “19-SSM-1”) as follows :-

  “xx :

 

  我和女兒打算於暑假 31/7-19/8去加拿大探親旅行, 19/8會

  回到香港, 我們會住在我舅母家, 位於加拿大温哥華. 至

  於6/8、13/8你的探視, 會安排補回給你, 你意見如何 ?

  謝謝 !

  xx”

15.  There was no reply from the Father to this email.  The Father did not deny in his 40^th Affirmation that he had received this email. 

16.  On 26/5/2016, the Mother through her legal aided assigned lawyers Messrs. Stevenson, Wong & Co. (“SW”) wrote to the Father’s lawyers Messrs. Chan & Chan (“CC”) to follow up with the Mother’s email of 13/5/2016.  Since then, there was a series of correspondence between respective lawyers until 14/6/2016 (“Exhibit “19-SSM-2”) with no consensus and therefore the Mother rightly took out the present Summons to seek the Court’s assistance.

17.  The Father in one of his exhibits produced the email he received from the ESF School on 23/6/2016 at 2:05 p.m. where it said, inter alia, the following :-

  “Dear Mr. C

  Re : EA1308Axxxxx – (name of child)

  Further to your application for a place for your child xxxxx in

  Year 4 at Beacon Hill School, we are very pleased to invite

  you to bring xxxx for an interview on Wednesday, 10 August

  2016 at 3:00 p.m.”

  …………….

  Best regards,

 

  Barbara Woo

  School Office Manager/Admissions”

18.  Attached to the same exhibit is the Father’s reply to the school on the same date at 14:23 (that is, 18 minutes later) :-

  “Dear Miss Woo,

   Thank you very much for your kind notice and we shall

  attend the interview on time on 10 August 2016.

   Best regards,

  xxxxx

  (Father of the applicant)”

19.  Attached to the same exhibit is the Father’s email the following day to the Mother in Chinese dated 24/6/2016 at 9:07 p.m. telling her the appointment with the ESF School on 10/8/2016.  He also asked that he himself only to accompany the child N to the interview.

20.  It is unclear as to the scheduled interview was in anticipation of which academic school year and I sought confirmation from Miss Andrey Chan for the Father.  Surprisingly, I was informed that the interview on 10/8/2016 was for the coming September 2016 school year and not next year 2017.

21.  I have a few observations as to the practicality of the Father to accept the interview on 10/8/2016 for the school year to start in September 2016.

22.  First, the Father being the non custodian parent should have obtained the consent of the Mother before accepting the interview.  To the very least, he should have notified the Mother and discussed with her first before making up his own decision within 18 minutes. In particular, at the time of the Father’s reply to the ESF School, he already has had in mind that the Mother has planned to take N for a trip (“the 1^st travel period”) which will clash with the interview date.  Even worse the Father then pushed for the Mother’s consent in his email the following day.  The Father having been legally represented throughout would have the benefit of full legal advice of his rights as a non custodian parent, given the fact that this is a change of school decision.  Surprisingly, I was informed by Miss Andrey Chan today that in fact there was a telephone conversation between the Father and the ESF School before (my emphasis) the email from the ESF School.  This was not stated anywhere in the Father’s 40^th Affirmation. 

23.  Secondly, in my view, it is completely not feasible at all for N to start in the ESF School in September 2016 even if the interview does go ahead and is successful in that N was offered a place in September 2016.  There is no prior discussion with the Mother at all as to change of school from True Light to the ESF School.  Since the Mother has now indicated her disagreement to the change to the ESF School, such matter would have to be fully argued in Court in the same way as what had happened in the summer of August 2013 when the parties heatedly disputed upon whether N should study K3 kindergarten or in Primary One.  On that occasion, this Court was asked by the Father to grant an injunction against the Mother (see Judgment dated 30/8/2013).  Even if the result of interview was to be known on the same day of 10/8/2016 immediately after the interview, how could the change of school issue be determined through substantive Court hearing within, say, 20 days between 11/8/2016 and 31/8/2016 ?

24.  The Father in his Affirmation and email to the Mother asserted that N was in the waiting list all along since Year 1 when it now came the chance for an interview.  Upon close scrutiny of ESF’s email, I have great reservation about what the Father said.  The letter started with “Further to your application for a place for your child  xxxx in Year 4……..”.  Had this been a chance because of N having been placed in the waiting list for Year 1 few years ago, I do not believe the ESF School would make reference to “an application for a place in Year 4.  This is in direct contradiction to the Father’s evidence as to how this 10/8/2016 interview appointment came about. 

25.  Moreover, the child N will be promoting to Primary Two in September 2016, how could she be capable of managing studies in Year 4 even if she is successful at the 10/8/2016 interview ?  As stated in the ESF School’s email, N’s latest school report is needed for the interview.  How possible would it be for the ESF School to consider an application for Year 4 by considering the latest school report of N which is Primary One ?

26.  Although Miss Andrey Chan orally informed the Court that the ESF School would consider N’s ability to take up which year or grade of studies, this is something which should come directly from the ESF School for the Court’s consideration.  Again, and further assuming this is the case, whether there will be vacancies in the ESF School for Year 2 or Year 3 intake in September 2016 is something unknown. 

27.  Since the Mother is now able to reserve 2 travel periods including the initially planned 1^st travel period of 31/7/2016 to 19/8/2016, I believe the focus falls upon whether it is in N’s best interests to attend the 10/8/2016 interview at 3:00 p.m. and then take the 2^nd travel period of 11/8/2016 to 29/8/2016.  As noted, the flight departs at 0030 hours on 11/8/2016 which means N would have to be in the airport 2 or 3 hours before flight departure, that is to say, at the night of 10/8/2016 a couple of hours after the interview that afternoon.  The 2^nd travel period ends on 29/8/2016.  The flight scheduled to arrive in Hong Kong around 1915 hours (that is, 7:15 p.m.).  New school term usually starts in early September each year.  Again, assuming N is accepted by the ESF Schools and given the Mother’s reasons for opposing change of school, it is not possible for the Court to resolve such issue of change of school by the non custodian Father after the 2^nd travel period (that is, after 29/8/2016) and before the new school term starts in early September 2016.

28.  Given careful consideration to all the above circumstances, I am not satisfied that it is in the best interests for N to attend the 10/8/2016 interview at the ESF School for Year 4 which the Father had unilaterally accepted without the knowledge of the Mother, and which the Father now seeks to put forward as his main reason to oppose the Mother’s application.  I also do not find any other reasons set forth in the Father’s 40^th Affirmation supportive of his opposition.  I must also say that it is not correct for the Father to postulate success of his application in his 40^th Affirmation which has yet to be heard on 28^th and 29^th July 2016 and then make grounds of opposition premised upon such postulations.

29.  I must also emphasize that this decision should not be taken as deprivation of the Father’s rights to participate in the education plan of the child even though he is not the custodian parent.  Also this decision should not be mistakenly construed as holiday travel ranks priority or precedence to education arrangement. 

30.  There are just too many contingencies which may render the 10/8/2016 interview with the ESF School even if successful not being capable of yielding fruitful results.  On balance, I prefer and find for the Mother on the 1^st travel period initially arranged.

Conclusion

31.  Considering the flight schedules provided by the Mother today, I now grant leave for the Mother to bring the child N out of Hong Kong for holidays to Canada for the 1^st travel period between 31/7/2016 and 19/8/2016 (both days inclusive) upon the Mother’s Undertaking to return the child to Hong Kong.

32.  As this is a child related matter, I decided that there should be no Order as to costs.