DCP v. EDP

FCMC 9931 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9931 OF 2010

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BETWEEN

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DECISION
(General Leave for Removal)

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Introduction

1.  By his summons dated 25 July 2012, the petitioner father applied for:

(1) leave to take the children of the family out of Hong Kong from 30 July 2012 to 3 August 2012 for holiday in Singapore; and

(2) general leave to temporarily remove the children of the family out of Hong Kong for holidays from time to time of not more than 21 days.

2.  Both parts of the father’s application were hotly contested by the mother.

3.  The children in question are a daughter (“Z”) born in 1994 by the mother out of a previous relationship, and a son (“A”) born in 2007 by the mother out of her cohabitation with the father. Z will turn 18 by October this year, while A is now nearly 6. There is an elder daughter called “L” born by the mother out of the same previous relationship. L has reached 18 by now and is of no concern in this application.

4.  What cannot be disputed is that that the father has all along treated the 2 step-daughters as the children of the family. As a matter of fact, pursuant to consent order dated 23 June 2011, joint custody of the 3 children was granted to both parties, with care and control to the father.

5.  On 26 July 2012, Deputy District Judge S Lo granted leave to the 1^st part of the father’s application. The trip to Singapore had taken place as scheduled and it was revealed in the social investigation reports that the children had enjoyed this trip very much.

6.  Remaining to be decided by me is the 2^nd part of the father’s application for general leave to remove Z and A temporarily out of Hong Kong for holidays from time to time.

7.  It is the father’s case that he wants to take the children out of Hong Kong for holidays from time to time and it is proven in the Singapore trip that the children just love it. But due to the un-cooperative and unreasonable attitude of the mother, he has been unable to engage into any meaningful dialogue with her or to obtain her consent, despite the fact he has offered to give the usual and reasonable undertakings. He says that he does not want to waste the money and time in coming back to the court each time before each single trip can be taken. He therefore wants to be granted general leave to remove Z and A out of Hong Kong for holidays of no more than 21 days subject to the following undertakings:

(1)That he will provide a written undertaking to the mother and to the court that he will return Z and/or A to Hong Kong after the trip or when called upon to do so by the court;

(2)that he will provide an itinerary, the address and contact telephone number of the trip to the mother 21 days before the trip;

(3)that if the trip clashes with the mother’s defined access time, he will give make-up access to the mother on the date(s) chosen by the mother;

(4)that he will arrange for telephone access between the mother and A each day during the trip.

8.  The mother opposes to the father’s application mainly on the ground that she does not trust the father and is afraid that the father will relocate the children back to his home country permanently if such general leave is granted.

9.  For the records, I have earlier in February 2013 granted leave to the father to remove A only out of Hong Kong for a 1 day’s trip to a Guangzhou zoo (together with A’s friends and their families) which has just taken place during the Easter holiday.

10.  Before I go straight into the analysis, it is perhaps helpful for me to first give a brief background of the parties.

Background

11.  The father is a UK national born and brought up in the UK. His parents (both retired) and his younger sister are living in the UK. The father has come to work in Hong Kong since September 2006 and will have been living in Hong Kong for 7 years by October 2013.

12.  The mother is a Filipino lady born out of wedlock of her parents and brought up by her maternal grandmother in the Philippines.  While studying at university, the mother acquainted with a student from the same university. Out of their cohabitation, L and Z were born in 1994 and 1995 respectively. The mother left the care of L and Z to the maternal relatives in the Philippines and came to work in Hong Kong in 1997. She is now a permanent resident of this jurisdiction.

13.  The couple met before 2006 when the father came to Hong Kong for work. Soon they entered into courtship. The father was relocated to work in Hong Kong in September 2006. Since then, the couple started co-habitation in Hong Kong. In April 2007, their son, A, was born.

14.  After the birth of A, the couple formally registered their marriage in July 2008 in Hong Kong. They made trips to the home countries of each other to visit their respective extended families.

15.  In March 2009, the mother applied for dependant visa for the 2 daughters to come to Hong Kong. Since then, the family of 5 were united and they resided in a 3-bedroom apartment in Tung Chung.

16.  Sadly, the relationship of the couple started to deteriorate after the 2 daughters joined the family. The daughters were reported to have kept a pleasant and harmonious relationship with their step father, but strangely, were very distant from their natural mother. They accused the mother of treating them badly. Quarrel over parenting and child discipline soon began frequent. The father also found himself unable to cope with the mother’s over-jealousy and hot temper, while the mother accused the father of being a liar and brain-washing her children by money.

17.  The triggering event leading to their separation took place in July 2010. The mother was jealous of her female friend who had a long conversation with the father during the mother’s birthday party. That led to yet another heated conflict between the couple. And in the presence of the 2 daughters, the mother was reported to have threatened to kill A in order to take a revenge on the father (“alleged intimidation”). The father thus left the matrimonial home with the 3 children on 22 July 2010.

18.  As a result of the alleged intimidation, the mother was charged with criminal intimidation and appeared in Tsuen Wan Magistracy in December 2010. She was bound over for 36 months without a conviction. The 36 months bind-over period would expire by the end of 2013.

19.  The father filed his divorce petition in August 2010. Decree Nisi was granted in December 2010. By consent order dated 23 June 2011, joint custody of the 3 children was granted to the father and the mother, with sole care and control to the father. Reasonable access to L and Z was granted to the mother. In relation to A, the mother was given supervised day access on every Saturday and Monday in the presence of the maid of the father.  By another consent order of 14 December 2011, the ancillary relief matters between the parties were settled. The mother received a lump sum payment of $235,000 from the father on/before 31 December 2011. Decree absolute was granted on 29 December 2011.

20.  However, it is regrettable to note that up to now, the mother-daughters relationship has not been mended. The daughters are reluctant to see their mother who, on her own part, has not taken any initiative or positive step to repair their relationship. It is frustrating to learn that the mother has not seen either daughter since June 2011.

21.  On the contrary, the mother has been seeing A regularly twice every week.

Relevant Law

22.  In application for general leave to remove children out of the jurisdiction, the governing law is set out in Rule 94 (2) of the Matrimonial Causes Rules, Cap 179, which I shall repeat as follows:

“A petitioner or respondent, or in case of a joint application, either of the joint applicants concerned may apply at any time for an order prohibiting the removal of any child of the family under 18 out of Hong Kong or out of the custody, care or control of any person named in the application without the leave of the court except on such terms as may be specified in the order. Unless otherwise directed, an application under this paragraph may be made ex parte.”

23.  Apart from that, the general principles governing applications concerning children set out in section 3 of the Guardianship of Minors Ordinance, Cap 13, also apply.  Section 3 states that:

“(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 wishes 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.”

24.  Generally speaking, a holiday overseas with a parent will be viewed by the court as being in the best interests of a child (See: Family Law and Practice in Hong Kong at para 12.050).

Wishes of the Children

25.  For obvious reasons, Z and A are not called to give evidence in this hearing. But their views have been set out in the 2 social investigation reports prepared by the investigation officer, Mr Wu.

26.  Z (who will be 18 by this October) has clearly indicated to the Mr Wu that her relationship with the father is close, but that with the mother is “very poor”. She never misses the mother despite that the mother has not made access to her in the past months. She enjoyed the trip to Singapore and supports the father’s application.

27.  While A is too young to appreciate what the father’s application really means, he has told Mr Wu that he likes spending holiday outside Hong Kong and would choose Singapore if he had the chance of going abroad for holiday.

28.  The mother does not dispute the aforesaid content of the social investigation reports. However, she says that the children are still young and are brain-washed by the father.

29.  I do not think I can accept the mother’s “brain-wash” argument.  Z is nearly 18 now and is by all account a young lady who is capable of giving her own view accurately and without reserve. And A, despite his young age, is observed to be willing and responsive to the questions of the investigating officer. Above all, it is inconceivable that children would not welcome the idea of going abroad for fun, especially with a parent or parents that they feel greatly attached to.

30.  I therefore accept that the social investigation reports have accurately reflected Z and A’s views on holidays outside Hong Kong. Due weight will be given when I consider the father’s application.

Social Investigation Reports

31.  For the purpose of determining the father’s application for general leave for removal, 2 social investigation reports were prepared. Mr Wu, the investigating officer, was invited to answer questions from both sides in the hearing.

32.  The 1^st social investigation report was dated 30 October 2012, in which Mr Wu recorded that the father and the 3 children have lived together in a stable and harmonious way. Their relationship was observed to be very close. However, he was unable to make any recommendation on the father’s application because he was unable to obtain the mother’s view. It was recorded that the mother simply hang up the phone after indicating to Mr Wu of her disagreement to the father’s application. She did not respond to Mr Wu’s emails, nor agree to attend an office interview with Mr Wu on this topic.

33.  Since the view of the mother could not be ascertained, the father’s application was adjourned for a 2^nd report. The mother was warned by this court to be cooperative with the investigating officer.

34.  A 2^nd social investigation report was prepared on 4 February 2013. The mother claimed that she was told by her friend that the father was planning to return to the United Kingdom for work. The mother was afraid that the father would not bring the children back to Hong Kong once when he takes the children away from Hong Kong. However, she refused to disclose the identity of her friend. She told Mr Wu that she was not going to agree to let the children leave Hong Kong for holidays on any single trip with the father. She would only allow A to leave Hong Kong when he reaches 15 years of age because by then he would be mature enough to take care of himself.

35.  Mr Wu made the following conclusion in the 2^nd report:

“...As [the mother] is also the custodian parent of [Z] and [A], her view cannot be ignored. Though her relationship with [Z] is unsatisfactory, she loves [A] very much and her relationship with [A] is close. Hence, her worry and concern should also be taken into consideration. In view of the foregoing, together with the fact that [the father] at present is still not a Hong Kong permanent resident, the Investigating Officer tends not to support his application for “General Leave for Removal” at the present stage. Yet, the Investigating Officer agrees that opportunity for the children to go abroad is beneficial for their development and therefore will support [the father] to bring the children outside Hong Kong for a family trip provided that he can produce relevant information and documents about the trip.”

36.  From the above conclusion, there is no doubt that Mr Wu supports the idea of the father taking the children out of Hong Kong for family holidays. It seems, though, that he does not recommend general leave be given at this stage due to the concern of the mother (that the father may relocate the children to the UK without coming back) and the fact that the father is not yet a permanent resident of this jurisdiction.

37.  Nevertheless, Mr Wu confirms in witness box that the mother has not offered any concrete evidence to him to support her alleged fear (of the father not taking the children back to Hong Kong). I have to point out that this is also my observation. I would further add that I have in fact reminded the mother in one of the call-over hearings that she should file an affidavit of this friend who told her that the father would be returning to the UK for work, but none has been filed. While the mother was in the witness box, I asked her again to provide particulars of this friend and the details of their conversation on this topic. The mother simply refused to give an answer on the excuse that she did not want to adversely affect the good relationship between this friend and the father. I cannot accept what the mother has told me. It falls to be her bare assertion only. I share the same conclusion as Mr Wu that the mother has failed to provide any concrete evidence to substantiate her alleged fear.  

38.  On the other hand, Mr Wu was asked by Mr Massie, solicitor for the father, as to why he was so concerned about the lack of permanent resident status on the part of the father at this stage. Mr Wu explained that although the father’s employment visa would endure until 2015, it was not sure if the father was able to obtain his permanent resident status, and if he could not, he would not stay in Hong Kong.

39.  With respect to Mr Wu, it does not seem to me that there is necessarily a direct nexus between holding a permanent resident status of Hong Kong and the likelihood of leaving (or staying) Hong Kong permanently. Moreover, even if (just assuming) the father is unable to obtain his permanent resident status in October 2013, he can still stay in Hong Kong anyway, if he so chooses, until the expiry of his employment visa. That said, I tend not to place too much weight on this “permanent resident” consideration.

40.  Rather, I take note of Mr Wu’s evidence that after interviewing all the people involved in this case (ie the father, the mother and the children) and from the information that he has collected, he believes that the father would not fail to comply with court order and the undertaking offered by him is reasonable. To the last question posed by Mr Massie for the father, Mr Wu says this:

“Q: You are not suggesting that [the father] is going to run away?

  A: With the information on hand at this point of time, I don’t believe the [father] would run away.”

41.  When it was the time for the mother to question Mr Wu, she asked only one question, ie why he believed that the father would not run away. To this, Mr Wu replied that the father got a job which gave him considerable income and he got 3 children studying in Hong Kong. The mother has not challenged this answer of Mr Wu.

42.  It is trite to say that this court is not bound by the observation expressed by Mr Wu in the aforesaid paras 40 and 41. But I am impressed that his comment is nothing but fair and logical. I will place good weight on his observation.

Risk assessment

43.  In my view, the ultimate issue for determination for this particular case is one of risk assessment, ie on the evidence before this court, whether there is a risk that the father would relocate Z and A to his home country permanently without notice if general leave for temporarily removal is granted by this court.

44.  In so far as the mother’s fear (of the father taking the children away from Hong Kong for good) is concerned, I will simply repeat what I have said in para 37 above.

45.  I would also give one further observation on the mother’s attitude to Z and/or the daughters generally. In the hearing, the mother did not challenge Mr Wu’s evidence that during the interview with Mr Wu,  she rarely mentioned Z, nor did she indicate that she would not agree to let Z be removed out of the jurisdiction for holidays. That being unchallenged evidence, I cannot help wondering why the mother’s attitude towards Z’s removal made a sudden turn in this hearing. Her alleged worries towards Z, in my view and with respect to the mother, do not sit well with her inactiveness to exercise access to Z since June 2011. Even more worrying to me is that her emails with the father do not show that she is concerned about Z very much. Quite on the contrary, and if I may say so, she used rather negative, if not abusive, phrases/sentences when L and Z, her own daughters, were mentioned.

46.  For example, in an email of 23 July 2012 from the mother in reply to the father’s request for consent to take the 3 children out of Hong Kong for holidays in Singapore, she wrote:

“I need to court hiring [hearing] if u want to bring out [A], bcos [because] I have only one son[.] [W]hat are you talking about 3 children? I’m confuse[d]!”

47.  In next email of the same day entitled “karma”, she wrote:

“The two budlat are happy at the moment[.] [T]he time will come their life is worst than mine! They will give birth to blind and disable[d] child!! I put my knee down and candle light. My wish [will] become true!!! ...karma is near all of you.”

48.  Following the email entitled “karma”, the mother sent another email headed with the subject “crash” in which she simply wrote,

“Airplane crash”.

49.  When read in proper context, these emails reveal the dislike or even hatred that the mother has felt towards the 2 daughters. The mother, in an attempt to explain away the content of such emails, says that these emails were written by her amidst of anger and should not be taken as her true meaning. I find it hard to accept this excuse and I am loathe in saying that I have serious reservation that the mother’s objection to this application, at least in so far as Z is concerned, is made in the contemplation of the best interest of Z in mind.

50.  I must now turn to consider the father’s side in order to assess the risk of him not taking the children back to Hong Kong.

51.  The father has lived in Hong Kong since September 2006. He is currently employed as a general manager by the same employer since April 2009 earning $84,000 per month. His employment contract is of permanent local terms, which does not expire unless terminated. At present, his employment visa is valid until 16 February 2015 and he has every intention to apply for the status of permanent resident in Hong Kong in October this year when he will have lived here for the full 7 years.  

52.  By whatever standard, the father is earning an attractive and stable remuneration package with the same employer for the past 4 years. There is no good reason or incentive that he should or would forgo this job in order to venture into an unforeseeable work situation in the UK.

53.  On the other hand, it is not disputed that the mother had visited the father’s parents in the UK for 2 weeks after A was born. On that occasion, they spent half of their holiday by staying at his parents’ house. The father has confirmed in court that his parents are still living at the same house up to today. This would mean that the mother will be able to know the whereabouts of the father and/or the children while they are in the UK.

54.  On future holiday plans with the children, the father told me that he has planned to make use of his business trip in the coming May to take A back to the UK to visit the grandparents from 10 to 20 May 2013. I have asked the father in court why he would be taking A only in the trip. He gave me 2 reasons right away: (1) he would be flying on business class to the UK, but could make arrangement to “split” the business class ticket into 2 economy class tickets, one for him and the other for A; and (2) if the daughters were to join this trip, they would have to take about 2 weeks off school, whereas A would only need to take 2 days off.

55.  The father added that he has planned to take another family trip with all 3 children to a southeast-asian country, probably Thailand on the daughters’ request, during the coming summer holiday.

56.  From his Form E filed for the purpose of the ancillary relief matters, I notice that the father once owned a flat in Hong Kong but had sold it. I also notice that he still owns a property in the UK. Question was thus posed to him as to why he chose to sell the Hong Kong property but keeping the UK one, if he has regarded Hong Kong as his home and has no intention to leave the jurisdiction. Again, the father was able to reply at once that he needed to raise fund for the legal fees in these divorce proceedings. But at the relevant times, the UK property was in negative equity whereas the Hong Kong property was in positive equity. He thus sold the property which would yield the most return.

57.  I have the benefit of observing the father’s demeanour while he was in the witness box. I find him an honest and truthful witness. He gave his replies spontaneously and without hesitation. His evidence is clear and his explanation logical and reasonable. I cannot see why I should not accept what he has said in court.

58.  Based on the available evidence before me, I come to the conclusion that the risk of the father taking Z and A away from Hong Kong permanently without coming back is minimal.

Costs

59.  I have invited both parties to address me on costs.

60.  Mr Massie for the father submits that if the father’s application is granted, the father will only ask for costs of those hearings that are wasted. By this, he means the adjournment triggered by the mother’s failing to comply with court order to file affidavit in opposition and/or failure to contact the social investigating officer. He confirms that the father makes this concession on costs in order to show good will to the mother, hoping that a level of cooperation and trust between them on their children’s matters is able to take flight and develop.

61.  The mother, on the other hand, asks for costs be to her if the father’s application is refused. But in case the father’s application is allowed, she has no objection in principle to pay for the father’s costs of adjournment subject to her objection on the quantum of costs.

Conclusion

62.  Due to the matters set out above, I will allow the 2^nd part of the father’s summons for general leave to temporarily take Z and A out of Hong Kong for holidays from time to time. I will award the father the costs of those adjournment caused by the mother.

63.  My order is set out below:

(1)     General leave is granted to the father to temporarily remove the children of the family, namely Z and A, out of the jurisdiction of Hong Kong from time to time for the purpose of holidays for not more than 21 days.

(2)     Such leave is made upon the following undertaking given by the father:

(i)     that he will provide a written undertaking to the mother and to the court that he will return Z and/or A to Hong Kong immediately after the trip or when called upon to do so by the court;

(ii)    that he will provide a full itinerary setting out the flight/transportation schedule, each address of accommodation and contact telephone number during the trip to the mother 21 days before the trip;

(iii)   that if the trip clashes with the mother’s defined access  time, he will give make-up access to the mother on the date(s) chosen by the mother provided always that such date(s) must fall within one month immediately before or immediately after the trip;

(iv)    that he will arrange for one telephone access of not more than 15 minutes each day between the mother and A during the trip at any time between 10 am to 10 pm (according to the destination’s local time). The time for such telephone access to be confirmed between the parties through SMS messages, emails or whatsapp beforehand.

(3)     The mother do pay the father’s costs of the adjourned hearings of 16 November 2012 and 19 February 2013 to be assessed by way of summary assessment.

64.  For the purpose of summary assessment of costs, I will give the following directions:

(1)     the father’s solicitors do file and serve a concise statement of costs within 14 days from today;

(2)     the mother do file and serve her written response to the statement of costs within 14 days thereafter.

65.  In view of her past non-compliance with court order, the mother is reminded to strictly adhere to the time table set out in para 64 above, failing which the court will proceed to summary assessment of costs by way of paper assessment without further delay.