SMM v. TWM

CACV 209/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2009

(ON APPEAL FROM FCMC 11230 OF 2008)

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REASONS FOR DECISION

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Hon Cheung JA (giving decision of the Court) :

Access

1. The parties were unable to agree on the access arrangements.  The Court made the following orders on access which were not opposed by the parties based on the alternatives of the father remaining in Hong Kong and the father moving back to the USA :

A.  While the Father remains resident outside the U.S.A.

(1)    The child’s school holidays will be divided equally between the parties, so that the father has staying access for half of each school holiday.  For the avoidance of doubt, the father may take access in Hong Kong or elsewhere.  During the mother’s periods of access in school holidays, the father shall have reasonable visiting access unless it is impractical due to the mother being away on holiday with the child.

(2)    Both father and mother shall have access to the child each Christmas Day.  During even years, the father shall have access from 2:00 p.m. on Christmas Day until 2:00 p.m. on Boxing Day and on odd years, the mother shall have access for the same periods.  Otherwise each Christmas holiday shall be shared as at (1) above (save that it should alternate in such a way as to permit the mother and father in alternate years to spend Christmas Eve with the child).

(3)    The paternal grandmother shall have reasonable visiting access to the child on such dates as the paternal grandmother and the mother shall agree.  Similarly, the paternal grandmother shall have staying access to the child at times and periods to be agreed between her and the mother but, in any event, shall have overnight access at least once a month.

(4)    The father shall have daily telephone access to the child.

(5)   During any period, other than school holidays, when the father is visiting the U.S.A., he shall have reasonable access to the child upon giving the mother 72 hours notice and the mother agrees that no reasonable request for access shall be refused.

B.    If the father is resident in U.S.A. and living proximate to the child’s school the father shall have access as follows :-

(1)    from the end of school on Wednesday afternoon until the following Thursday morning;

(2)    every alternate weekend from the end of school on Friday until Monday morning;

(3)    every alternate Monday evening from the end of school until 8:00 p.m. following the weekends that the child has been with the mother;

(4)    the father shall also have reasonable telephone access;

(5)    the school holidays shall be split equally between the parties; and

(6)    other access to be by agreement between the parties.

Leave to appeal to the Court of Final Appeal

2. The father asked for leave to appeal to the Court of Final Appeal against our judgment.  He relied on the ‘great general/public importance’ and the ‘or otherwise’ limb.

3. The following questions of law were advanced :

‘In cases concerning applications for the permanent removal of a child from the jurisdiction of Hong Kong, those questions are :

(1)   Whether the emphasis placed upon the impact of refusal to grant leave to remove on the parent with care and control is wrong, involving :

(a)    whether the best interests of children are properly being served by the current law on removal;

(b)   whether there is an over-emphasis on the happiness of the parent with care and control;

(c)   whether more emphasis should be placed upon the psychological impact of removal upon the child, in particular pertaining to loss of regular contact with the non care and control parent;

(d)   whether more emphasis should be placed upon a parent’s obligation to facilitate full access to the other parent over and above a wish to relocate;

(e)    whether there should be an equal, or at least greater, emphasis than is now afforded upon the impact on the parent without care and control whose relationship with the child will be at best at least seriously disrupted by the enormous reduction in the practical ability to have access to the child;

(f)    whether there should be equal consideration of the impact on both parents where they have joint custody.

(2)   Whether the Courts of Hong Kong should simply be following a line of authority of the English Courts, in particular by reference to the case of Payne v. Payne, as opposed to developing its own approach to removal cases more in line with that taken in other common-law jurisdictions such as New Zealand, Canada and Australia.

(3)   Whether the bar to an applicant who is not originally from Hong Kong seeking to relocate to a country of origin should be as low as the Court of Appeal has by its judgment now set it.

(4)   Whether the financial aspects of the intended relocation, and its impact on family finances and the consequent effect on the parent-child relationship, should be taken into account.

(5)   Whether the judgment of the Court of Appeal in effect dictates to first instance judges the result of removal applications in cases where the application is made by a parent with care and control.

(6)   To what extent in such cases should the Court of Appeal overrule the decision at first instance by interfering with the discretion of the trial judge who has heard the evidence and had the opportunity to form an assessment of the parties.

In cases concerning orders for care and control including for joint or shared care and control, those questions are :

(7)  Whether the Court in its approach to making orders should be encouraging civility, dialogue, and compromise between parties who are co-parents of a child.

(8)   Whether there should be presumptions of sexual equality in parenting, and of shared responsibility in parents to each other and their children.

(9)   Whether, where there is a child who is at least reasonably well cared for, adjusted and happy, there should be no reason to upset the status quo of a previously balanced relationship between a child and his parents.

(10) Whether it is discriminatory or otherwise inapt to place great weight on, often an assumption, that the mother should have care and control of a child even where both parents are working and intend to continue working fulltime.’

Relocation

4. On relocation, the issue before this Court was the principles to be applied when a family who came to Hong Kong from abroad encountered marital problems and the mother wished to return home and asked for permission from the Courts to bring the child of the family with her.  This Court applied the Payne v. Payne line of cases.  The father said that there is recent debate in England on whether the current principles ought to be changed.  When this Court applied Payne, we did so on the basis of the parties’ agreement that the principles to be applied are those set out in Payne.  At the same time we had also examined the criticism directed towards it.  We are of the view that we have applied the correct principles as agreed by the parties.  More importantly the decision was based on the facts of the case.  It is important not to lose sight of the fact that the child was only seven years old when the application was before the Family Court in July/August 2009.

5. The call for change in England will not necessarily result in change.  Even if it does, this cannot be a basis for granting leave.

6. As to the ‘or otherwise’ limb, this Court interfered with the discretion of the Judge on the basis that the exercise of her discretion was manifestly wrong.  We failed to see how this can be the basis for granting leave to appeal.

Care and Control

7. The decision was simply based on the facts of the case.  No arguments were advanced at the hearing as to why leave should be granted on this topic.

Stay of execution of judgment

8. Since we had refused leave, we made no order on the stay application.  The mother has undertaken to inform the father the exact date of her departure 10 days in advance so as to enable the father to make the appropriate application to the Court of Final Appeal. 

Conclusion

9. Accordingly the father’s application for leave was refused with costs to the mother.