I, M aka K, M v. I, SM

FCMC 10984/2020

[2023] HKFC 66

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL AXMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 10984 OF 2020

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J U D G M E N T
( Relocation )

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This Application

1.  On 30 June 2021, Petitioner Wife (“W”) applied to permanently remove two children of the family to Japan (“Relocation Application”). She originally sought to do so for the Summer of 2022; by the time of her closing submission, she asks for leave to bring the children to Japan in the summer of 2023.

Parties background

2.  Parties were married on 26 August 2008 in Hong Kong. There are two daughters, both born in Hong Kong, namely E born in May 2010 (“E”), and M born in April 2012 (“M”), (together the “daughters”); they are approaching 13 and 11 respectively.

3.  W is age 53 and JXXXXXX, she has been employed by an airline company for almost 30 years. Due to covid and a recent injury which resulted in surgery in July 2022, her income has been reduced from an approximate amount of $44,000 to an average of $5,575 from January to August 2022. Because of this injury, she has been certified “unfit to fly”; in any event she is due to retire at age 55, which is in February 2024.

4.  Respondent Husband (“H”) is aged 49 and CXXXXX. He is a banker with the title of vice president with an international bank in Hong Kong, and based on his Form E in September 2022, his monthly gross salary is $119,800.

5.  Since November 2011, the family has been living in DXXX BXXX (“DB”), and where the daughters go to school.

6.  W filed her petition on 24 November 2020, H moved out of the matrimonial home on 29 November 2020, while remain living in DB. Because of the H’s affair (more details below), W moved to TXXXX XXXXX with the daughters in early July 2021.

7.  Decree Nisi was pronounced on 26 July 2022.

The H’s affair

8.  The trigger point for this divorce proceeding is probably the H’s affair with a married woman (“XM”) which commenced in around July 2020, XM also lives at DB. While W has suspected something was happening, it was actually E who found this out by reading intimate messages between H and XM on H’s phone.

9.  E kept this secret to herself for a good four months before she spoke up to W in November 2020. During these times, E was reported to be increasingly temperamental and angry; and she would be constantly throwing temper tantrums at W, her sister M and the domestic helper.

10.  When the affair was known within the family, the tension at home increased. E continued to be upset with H, while W said that H has been constantly bad-mouthing and belittling her in front of the daughters.

11.  DB being the small community it is, it appears that the affair was known within members of the community. In particular when sometime in February 2021, XM’s husband publicly assaulted H in front of the daughters.

12.  In around March 2021, H told the daughters he would not stand in the way of them relocating to Japan but reneged two days later. He proposed that they could move to TXXXX XXXXX as an option, said he would move with them, and then reneged again on that proposal.

13.  W moved to TXXXX XXXX with the daughters in early July 2021.

14.  Matters took a turn for the worse when in July 2021, E went out to the balcony at the TXXXX XXXX residence and said she wanted to kill herself; this incident ended up with E’s admission to hospital, whereafter she asked for help to manage her emotions. Treating psychologist concluded that the likely cause of E’s stress was the fact the E had kept her father’s affair to herself for a number of months. Social worker was brought in after this incident.

The H’s “sleepwalking” incidents

15.  The evidence is that sometime in March 2020, while W was away and the daughters sleeping with H, he has pulled down M’s underwear and touched her chest. H maintained that he was not conscious and apologised, W said this was due to his drinking. Eventually this was put down to H’s alleged “sleepwalking” history.

16.  Subsequently on 8 January 2021, E also told W that in around August to October 2020, H had awoken E in the middle of the night and kissed her head “passionately”. Again, this was put down to H’s alleged “sleepwalking” history.

17.  The social worker found out about these incidents in August 2021 after E’s attempted suicide and reported it to the Social Welfare Department. Child Protection Services and School counsellor were involved. It was made clear to W that she should not force the daughters to meet with H. H reacted very strongly to this, and blamed W for this development.

18.  Against advice, W decided not to take the matter further with the police, she had maintained that H would not harm the daughters consciously, accepted that this could be H’s sleepwalking, and only insisted that there be no overnight access with H until he has a residence with two rooms. H moved to a two-bedroom apartment in DB in April 2021 and has lived there since.

H’s access to daughters and 8 September 2021 Order

19.  Access has been through various challenges. After separation, W was facilitating staying access with H until she learnt about the H’s sleepwalking incidents. This was suspended until H moved to his two-bedroom apartment. Access resumed and then came across another hurdle in around April 2021 when H lied and denied M entry to his home, M later found out that this was because XM was with him, and was very upset.

20.  After the abovementioned incidents with the social worker’s involvement, and under an Order by HHJ Melloy dated 8 September 2021, H was granted access with the daughters on Wednesday (5 - 7:30pm) and Sunday (Noon – 5:30pm), to be supervised by Rent-a-Mum, in a public place and not to be in DB. H also gave his undertaking that XM would not be present during his access to the daughters.

21.  Daughters started therapy with Dr Amanda Oswalt Visher from 30 September 2021. E now maintains regular sessions with Dr Visher, while M has ceased her sessions since September 2022 when her condition improved.

22.  The SWO reports that both daughters felt more comfortable and safer when access was supervised. Supervised access continued until, on intervention of Dr Visher, it was uplifted in July 2022.

23.  The daughters had happily gone to spend time with H at DB when they learnt that XM left Hong Kong on vacation, but declined to go to DB on her return.

24.  It is quite clear that the feeling the daughters have towards H is overshadowed by his affair; and according to W, they associate bad memories with DB, to the extent that E no longer wants to attend school at DB.

25.  To facilitate H’s access to the children, W has been accommodating regarding access, and has vacated her TXXXX XXXXX residence for H to have access with the daughters on at least three occasions since March 2022.

W’s Case

26.  W intends to take the daughters to T CXXX in Japan. While this is not where she came from, it is the country of which she is a national; so this is a return to the W’s country of orgin, to a place of familiar culture and environment.

27.  She was thinking of buying a property but with funds quickly dwindling, she is now probably only able to rent in T CXXX. Her Mother and siblings will be able to assist, although they live 2-3 hours train ride away, her Mother will be available to come and stay with her for short periods each time to help out.

28.  While the daughters say that they are not fluent in JXXXXX, they have basic understanding of the language, and have communicated with their JXXXX cousin. They should not have difficulty picking up the language at their young age with the family’s assistance.

29.  W contends that there is insufficient financial means to maintain her and the daughters’ living in Hong Kong with the expenses of both parties and the daughters in two homes. Her income has been cut down due to covid and she will soon be retiring, her position is that H’s income alone is just not adequate.

H’s case

30.  H objects to W’s relocation application. He says the Mother’s motivation is selfish and intends to exclude him from playing an active role in the daughters’ life.

31.  He maintains that he has sufficient financial resources to maintain her and the daughters in Hong Kong as his income will be steadily increasing.

32.  He says that W’s is not familiar with T CXXX, the daughters don’t speak the language, W’s family support is 2-3 hours away, and therefore her plan is not realistic nor well researched.

33.  He said the children should maintain status quo by staying in HK.

34.  He says his 22 days leave is insufficient to spend time with the daughters, and that he can only travel to Japan 1 weekend per month.

35.  H also blames the W for the supervised access, and that this has affected his relationship with the daughters.

Reports

36.  Following the 8 September 2021 Order, the following reports were called.

Single Joint Expert reports

37.  From the single joint experts, a Report from Dr Jadis Blurton’s team dated 10 December 2021 and an Updated SJE Report prepared by Dr K Craigen and team dated 17 October 2022. Dr Craigen gave evidence in Court and her recommendations are considered below.

Social Welfare Reports

38.  From Social Welfare Officer (“Mr Lau”), who produced two detailed Social Investigation Report (“SIR”) dated 4 February 2022 and 3 November 2022.

39.  Mr Lau gave evidence in Court, and also accompanied the daughters to meet with me. In both reports, Mr Lau confirms that the Mother’s relocation intention is genuine, and that her relocation plan is concrete and well researched. What is important is that within the 9 months’ time span between the two reports, Mr Lau says that access has improved, with the helpful intervention of Dr Visher and the co-operation of the W.

40.  Regarding the daughters, he reports that E appears to be moving forward from the situation that leads to the divorce, and she has also found the sessions with Dr Visher valuable to help her communicate with H. Her mental condition is stable and no longer has any self-harm idea or behaviour and she threw less temper tantrums than before. As for M, she has settled well into Grade 6, making good progress academically. She is happy to see H, and she has asked to reduce her counselling session which is a sign of the progress she is making.

41.  Mr Lau also reports that both E and M feel that their relationship with H have improved. They both maintain their wishes to go to Japan. With regard to XM, neither of them wants to see her, with E’s reaction understandably more intense than M. They do not wish for staying access at H’s home, and E further does not want to go to DB at all. All this could be understood in the light of what happened with H’s relationship with XM, and their feelings towards her and the fear of running into her.

42.  That said, in his updated report, Mr Lau’s observes that the father -daughters’ interactions are positive:

“[H] had much relaxed, happy, physical and verbal interactions with the two children during access. He asked them where they would like to go on the coming Sunday access or told them where he would bring them to…”

“The two children were excited when seeing [H] for the picking up. They played happily and relaxingly and had much verbal and physical interactions with him … Same as before, E showed much physical attachment and care and concern towards him, while M often joked with him and E and made them laugh.”

“Soon, the two children came out from the back staircase. E at once hugged [H] happily, followed by M … As observed, there were much joyful, physical and verbal interactions between the two children and [H].”

43.  W has supported additional access sessions while H continued to accuse her that that she had not been facilitating access; but Mr Lau has noted a number of additional access dates that H had, which took place on some Tuesdays and Fridays (while according to the Court Order, his access are on Wednesdays and Sundays). Mr Lau says:

“Despite [H] saying that [W] has not facilitated the access, the IO tends to see that [W] has been paying effort in this regard notably arrangement of additional access sessions.”

44.  Both reports support the relocation, but he says at the end of his updated report that:

“… the IO will support [W]’s permanent relocation application in 2024 if and when there has been further improvement of the father -daughter relationship and [H] access has resumed to a normal state under the therapy of Dr V.”

International Social Investigation Report

45.  An International SIR dated 14 January 2022 supports the relocation and opines that the strongest factor to the W’s relocation application is her maternal family support if she is permitted to move.

Legal Principles

46.  My starting point is found in s.3 of the Guardianship of Minors Ordinance (Cap. 13). It states that the best interest of the minor is the first and paramount consideration.

47.  The applicable principles governing relocation application were based on the English Court of Appeal case of Payne v Payne [2001] Fam 473 and adopted by our Court of Appeal in SMM v TWM [2010] HKFLR 308, [2010] HKLRD 37 CA where Cheung JA summarised them at §21 of his judgment as follows:

“1) …

2) …

3) The application should be approached as follows:

(1) 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? Then ask, is the mother’s application realistic, i.e. founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.

(2) If, however, the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

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

(4) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate. (per Thorpe LJ at paragraph 40)

4) In short, the relevant factors are:

(1)  The welfare of the child is always paramount.

(2)  There is no presumption created by section 13(1)(b) of theEnglish Children Act 1989 in favour of the applicant parent.

(3)  The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(4)  Consequently the proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(5)  The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(6)  The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(7)  The opportunity for continuing contact between the child and the parent left behind may be very significant. (per Butler-Sloss P at paragraph 85)”

48.  In the recent case of BA v BL (Child Relocation) [2019] 4 HKLRD 23 the Court of Appeal per Cheung JA reiterated and further elaborated on the approach to be taken in relocation cases:

“4.12 This led to the more recent decisions of the English Court of Appeal such as K v K where it is stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration … The three judges in K v K, Thorpe, Moore‑Bick and Black LJJ were of the same view on this point.

4.13 …

4.14 … Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case. The value of Payne is that it "identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case", per Black LJ at [144] in K v K. In my view Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically.

4.15...”

49.  I also found the following from Lady Justice Black (as she then was) in the abovementioned case of K v K [2011] EWCA Civ 793 to be of assistance:

141. The first point that is quite clear is that, as I have said already, the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.

50.  HHJ I Wong has in his recent case of JTMW v NAV FCMC 8504/2017 [2020] HKFC 244 succinctly summarized important points of principles enunciated in the case of ZJ v XWN at paragraphs 53 - 55:

53. The Court of Appeal endorsed what Vos LJ said in Re C (A Child) (Internal Relocation) at [82] and [83],

82. I add a few words in an attempt to summarise the position that has now been reached. As counsel before us agreed, in cases concerning either external or internal relocation the only test that the court applies is the paramount principle as to the welfare of the child. The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable. The exercise is not a linear one. It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child. It is no part of this exercise to regard a decision in favour or against any particular available option as exceptional.

83. ...

54. The Court of Appeal also dealt with the use of the “welfare checklist” in the balancing exercise. The “welfare checklist’ is only an aide-memoire. A judge is not required to mechanically list every factor to demonstrate that he has considered the same.

55. The Court of Appeal emphasized that the guidance in Payne or SMM v TWM or the welfare checklist are simply tools to assist a Family Judge in making the multifactorial assessment to reach a result which is in the best interest of the child after taking account of the potential impact on the parents: at [30].

51.  The consideration of guiding legal principles will be incomplete without citing what has been referred to as the welfare checklist factors, which have been listed in our “Children’s Proceedings (Parental Responsibility) Bill, and has yet to be passed as law in Hong Kong (the “Welfare Checklist”). These are factors that should be taken into account when determining issues relating to children and where their best interest is to be considered:

a.  the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding;

b.  the child’s physical, emotional and educational needs;

c.  the nature of the relationship of the child with each of the child’s parents and with other persons;

d.  The likely effect on the child of any change in the child’s circumstances;

e.  The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

f.  The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

g.  Any harm which the child has suffered or is at risk of suffering;

h.  Any family violence involving the child or a member of the child’s family;

i.  How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

j.  (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

k.  The range of powers available to the court under this Ordinance in the proceedings in question.

l.  Any other fact or circumstance that the court thinks is relevant.”

52.  With these principles in mind, I shall proceed to apply them to the case at hand.

Discussion

53.  It is clear to me that, taking into regard the recommendations of the SJE and the SWO, this is a case where relocation will take place; it is only a matter of when.

My impression of the parties

The Wife

54.  From the impression I have seeing W in the witness box, I find her credible and I accept her evidence. It is apparent to me that she has been put under immense pressure from the breakdown of the relationship which is probably the cause of her “depression”, for which she is attacked. This condition is understandable, and I also accept that she is moving past the H’s betrayal. She appears to me as level-headed, a victim of the circumstances, and genuinely focused on doing what she considers best for the daughters.

The Husband

55.  In observing H giving oral evidence in court, other than finding him evasive; I also find H to be extremely unenlightened in terms of the impact of his conduct and how this has brought about W’s stressed condition and the mental state of the daughters. I also find that he is irresponsible, self-centred, only focused on blaming everyone else but himself; and is suspicious of everything that W does is to attack him. The little remorse that he seems to demonstrate at his cross examination is disappointingly unconvincing.

56.  The following are some of H’s behaviours which I am mindful of:

(1)  Allowing his intimate messages with XM to be discovered by E. This must have a serious impact on E as on Dr Visher’s advice, he has been asked to delete all messages with XM before meeting the daughters.

(2)  Introducing daughters to XM as his friend at a beach party in DB in September 2020 after their relationship has started.

(3)  Allowing matters to develop with XM in such a way as to result in H being assaulted by XM’s husband in a public place in DB and in front of his daughters.

(4)  After H’s sleep walking incidents, and SWO found out from the daughters, H blames W for the resultant supervised access ordered by the Court. H failed to appreciate that it was W who prevented the SWO from reporting this to the police. And further, not appreciating that W has graciously not pursue this matter nor use these incidents strategically in her application.

(5)  He lied to W in telling her in March 2021that her relationship with XM was over.

(6)  Sometime in April 2021, when M wanted to visit H ad hoc, he lied to her that he is not at home, when it was found out by M later that he was actually there with XM. M was devastated and H blamed W for this.

(7)  H unilaterally announced the divorce to the daughters without discussion with W, and says that he did this because he thought W has already told the children, but she hadn’t.

(8)  Agreeing to the relocation and reneging (broken promise to the daughters).

(9)  Saying he would move with the family from DB to TXXX XXXX and then reneging (broken promise to the daughters again). He now says he is not moving because the daughters are still at school in DB, and that access cannot take place in DB anyways.

(10)  General blaming attitude on the W, and complete inability to give W any credit on the way she has handled this whole incident, which has been commended on by both Dr Craigen and Mr Lau.

(11)  He attributes E’s emotional issue to her previously difficult relationship with W, and ignored his own role in causing E mental stress. It was found by Dr Craigen that by retaining H’s “secret” to herself for 4 months, the impact on E’s emotional and psychological wellbeing would be “absolutely crushing”.

(12)  H tried to contact W’s solicitors to lift supervised access in March 2022 without consulting with Dr Visher when he knew full well that the supervision has to be under the guidance of Dr Visher. It is quite apparent to me that he is more focus on what he wants for himself than what is best for the daughters.

57.  With these observations in mind, I will proceed to consider the issues for this Relocation Application.

Is the application genuine and not motivated by W’s desire to exclude H from the Children’s life

58.  W said the idea of relocation came from E, E told me the same thing when I met her.

59.  Mr Lau concluded that the W’s application is genuine and not motivated by a desire to exclude H. I agree with him. I see no evidence that she is excluding the children from him. On the contrary, there are evidence that she is facilitating, encouraging and supporting access, despite H’s on-going criticism of her.

60.  There have been references from the SIRs and from Dr Craigen’s report as to the way in which W has taken recommendations aboard, and how she is working to move past the H’s betrayal. In this effort, she has learnt to speak with neutrality when making references to H and XM, and even Mr Lau says it is impressive.

61.  Considering this Relocation Application, I can see why a fresh start makes sense for them. Leaving Hong Kong means that the daughters will be removed from the place which has been the location of all the unhappy incidents arising from the H’s infidelity and the bad memories that they associate with it. Both daughters have been traumatised with E more impacted than M, they have resistance against going to DB (except when they know for sure XM is not there), and E is unwilling to attend her school at DB which is understandable. Furthermore, W is apparently feeling constrained by the financial reality against the difficulty in maintaining the daughters in their previous standard of living.

62.  I am of the view that these are genuine reasons for moving to Japan and it is not the W’s intention to do this in order to exclude H from the daughters’ life.

Is the application realistic and found on proposals well researched and investigated

63.  Mr Lau also found that this is in the positive. I also agree.

64.  This is an application where a parent is seeking to return to her country of origin. While she is not going to the city of Nagoya where she grew up, she is returning to a familiar cultural, and socio-economic environment.

65.  T CXX appears to be a rather international place. W has conducted research on where she wants to live and what are the suitable international schools for the daughters to attend. These local international schools with IB curriculum would enable the daughters to apply for colleges and universities in Japan or to attend university in CXXXX. She also said that T CXX is “home to many world class science institutions and is officially designated as an international strategic special zone in Japan. T CXX therefore has a lot more expatriates and has an international atmosphere which the children will be able to adjust to easily.” A quick search on the internet bears out W’s evidence in this regard.

66.  According to the ISIR, T CXX is about 60 minutes train ride from Tokyo. The ISIR states that the key strength of the proposed relocation is the W’s maternal family support. The maternal grandmother, who gave evidence via VCF, came across as healthy and in good form. She lives around a 2-hour train ride away. She plans to assist W initially with settling down in T CXX, and will be able to visit them 2-3 times a month to stay a few days each time; I accept her evidence. Both she and the maternal aunt (W’s sister) have child-care experience and stand ready to support W both physically and psychologically. The daughters have similar age cousins, with whom they have spent time.

67.  E has said to Mr Lau and to me that she is close to the maternal grandmother, there are photos in evidence to support this. I am of the view that grandmother is a good source of anchor and support to the daughters settling down in Japan.

68.  I therefore do not agree with the H’s challenge on this point.

Is the H’s opposition motivated by genuine concern for the future of the daughter’s welfare or is it driven by some ulterior motive

69.  I do not believe that his opposition is motivated by any concern about the future of the daughters’ welfare in Japan. He raised no concern about Japan as a country of destination for W’s relocation plan. As a matter of fact, in his closing submissions, H only said that relocation should not be now, but he is happy to re-consider his position later.

70.  However, as said prior, I find that H is more focused on his own needs than that of his daughters.

Will the relocation Application be detrimental to him and his future relationship with the Children

71.  It is obvious that H’s relationship with the daughters need to be improved after his infidelity and the distress that has caused to his family. This is especially true with regard to E who is more attached to him. It is clear that E has been particularly hurt, and this feeling has probably been exacerbated by her learning of it and holding onto the incident to herself for several months.

72.  H’s closing submission starts with:

“The Father’s position is that the Children should remain in HK until they are mature enough to make their own informed decision, understand the consequences of their decision to relocate and access has normalised and with the consequential repair of the father’s daughter relationship.”

73.  H asks for more time to heal the relationship with the daughters. The above position echoes the Dr Craigen’s views, it is relevant to turn to her report at this point.

The SJE Views

74.  Dr Craigen’s conclusion starts with this positive note:

“The … family appears to have made steady and significant progress towards becoming two separate functional yet slightly more unified family system, both E and M’s relationship with their father has improved greatly and the current access arrangement appear to be working well with no evidence of restrictive parental gatekeeping enacted by [W]”

“… However, [H]’s somewhat understandable frustration regarding overnight access is possibly an indicator that he underestimates the psychological damage the events surround the breakdown of the marriage had on both girls….” (my emphasis)

75.  Dr Craigen opines that the relocation is not recommended “at this time”. She felt that to leave in 2023 is rushed, and a little bit more time is needed, hence 2024 would be a better time for this to happen. But her oral evidence is that it is not a “No” to relocation.

76.  In the updated SJE Report, she recommends that relocation should be granted in 2024 when:

(1)  The Children are old enough to understand the consequence of their actions on their relationship with the father

(2)  Their relationship with the father has further improved and remote access is likely to better facilitated

(3)  The Father is in agreement with the Mother that relocation is in the children’s long term interest.

77.  Dr Craigen states that presence of father in the daughters’ life is important to strengthen their relationship:

“However once the relationship is fully repaired and the girls are only just a few years older, he is encouraged to give their relocation his full support”.

And that the indicator that things are back to normal is “when they will happily go to him as much as they want to go with their mother”.

78.  It is W’s position in her closing submission that H lacks insight. This is echoed by Dr Craigen, and I agree. In this context, Dr Craigen said this of H in oral evidence:

“… It’s easier to put the blame on someone else … but as you get therapy and see the cause and effect …. He’s getting there.”

79.  My question is, “When?”

80.  I have the following issues with the Dr Craigen’s recommendations:

(1)  Re 1: “consequences of their actions” … Other than this being an interesting way to refer to the W’s Relocation Application, Dr Craigen thinks that E is immature and is not able to understand the implication of the relocation. In my aXMittedly brief meeting with the daughters, I have made it a point to check their understanding in this regard. From the conversation, I am of the view that both children are keenly aware that relocation means a physical separation from H, with fewer physical contact going forward. Below are excerpts of my conversation with the daughters.

With E

“Ct: But do you understand that if you go away then you can’t see your father as frequently as you see him now?

E: Yes

Ct: And how do you feel about that?

E: I mean I’m going to miss him, but like we can always FaceTime, just not the same thing. But it will be okay because like my mum has the – she’s a flight attendant and she has like this flight pass thing that can make it very easy for my dad to travel.

…

E: So I may even be able to see him like every month, but – I can see him like – I don’t know if its okay.

Ct: You feel it’s all right, yes?

…

E: Yes.”

With M

“Ct: So how do you feel about moving to Japan for good?

M: I am okay with that because um – like we will go back to Hong Kong for the holidays and maybe go back for like the weekends because my dad used to take these weekend trips to golf with his friends like once a month or something.

…

M: And I can FaceTime my dad every day.

Ct: Do you do that now?

M: No, because I see him a lot, but we text a lot.

Ct: Okay. And so – but going to Japan, all the way there, is quite different because you won’t see him that much.

M: M’mm

Ct: You understand that?

M: Mm. Yes

…

Ct: Right. I am most concerned that you must realise how – what this means to not see dad as much as you normally do now and how you would feel about that.

M: I think at the beginning I might like – I’ll be like a little homesick, like I’d become --- I’ll be a little homesick, but then I’ll start getting used to it.

Ct: You think you can?

M: Yes.

Ct: Why?

M: Because I’m going to FaceTime him every day and then text, and then for school holidays we’re going to go back to Hong Kong to see him, yes.

M: And then also maybe like since quarantine is also finished, he can also fly out sometimes or we can go over, fly out sometimes, like I don’t know how many times a month, but like a lot.”

(2)  Re 2: “Further improved”: how is this measured and by whom, it is clear that there are a lot of self-interests in issue; and as to “access likely to be better facilitated”: I do not know what this means. Even Dr Craigen herself has said that there is “no evidence of restrictive parental gatekeeping” enacted by W. In cross examination, she agreed with W’s counsel that W has been facilitating access and following her advice. And if Dr Craigen means physical / logistic arrangement, Japan is relatively close geographically; and W’s occupation as a flight attendant will enable flights to be more economical for the family even when she is retired, and she has offered this to H in her proposal. Furthermore, Mr Lau also attests to the fact that W has been facilitating access, and she has enabled additional time to H on top of those ordered by the Court.

(3)  Re 3: H is “in agreement that relocation is in the best interest of the children”; and when the relationship is “fully repaired” he is “encouraged” to give relocation his full support.” This suggests that the relocation is incumbent on H’s agreement, and I absolutely disagree with this approach. My question is therefore: what if he never agrees? Dr Craigen only suggests to “encourage” him to support relocation. H is not in agreement today, why should he change his mind in future? Or, what if he says that he is not ready, and maintains that relationship with the daughters is still not “fully repaired” from his perspective.

81.  Even H’s submission says that “it is difficult to forecast the speed or trajectory of the children’s relationship with their Father or pinpoint when the repair will reach a point where it will be strong enough to withstand the challenge of relocation.”

82.  While Dr Craigen has been helpful in assessing the overall situation and the family dynamics from a psychological point of view to assist with my decision, my paramount consideration is what is in the daughters’ best interest. Given the impression I have of H, I am not inclined to put the daughters’ life on hold waiting for him to gain insight or to agree to the relocation, as this uncertainty could not possibly be in their best interests.

83.  H’s closing also relies on Mr Lau’s first SIR to say that the children are “aligning” with W to “avoid being trapped in the middle of their parents’ break up” and submitted that “it may not be the children’s strong wish (as described by the Mother) to relocate but rather a manifestation of their alignment with the Mother”. But even Dr Craigen only said that E may be aligning with Mother and manifested in her preference to spend time in her mother’s company, but she has not extended this alignment to the daughters’ wish to relocate. (my emphasis) I therefore do not agree to the H’s submission on this.

84.  Dr Craigen has expressed some concern that W would suffer from increase anxiety from the stress of the physical relocation. I do not share this concern as it is clear from the ISIR that the maternal family is ready to give her support physically and psychologically. From the updated SIR, W has also said that Dr Visher did not indicate that she is in need of any professional help for her emotion.

The SWO’s views

85.  Turning to the Mr Lau’s views, having cited the fact that W will have sole care and control of the children (which is uncontested H), and that her application is considered “passing the assessment criteria”, his recommendation is that :

“…the IO will support [W]’s permanent relocation application in 2024 if and when there has been further improvement of the father-daughter relationship and [H]’s access has resumed to a normal state under the therapy of Dr Visher”. (my emphasis)

86.  Mr Lau says that there has to be “further improvement” of the father-daughters’ relationship, I will not repeat my assessment above. Nor has he defined what he means by “normal state”, and by whose standard? W has clearly stated that she is ready to give H unsupervised and staying access. There has been suggestion that the H can go off on a staycation with the daughters, and W has indicated that she will support this. She has offered her residence for H to spend time with the daughters as far back as March 2022. Mr Lau himself reports that the children are happy to see H, even H said so himself. There is no evidence that the daughters are resisting seeing him at all. Their objection is towards XM, and not to go to DB if there is a chance that they may run into her. If I were to look at Dr Craigen’s indicator of “normal” being daughters “will happily go to him”, while I cannot determine whether they are “as much as they want to go with the mother”; but looking at the SIRs, it appears that the daughters are certainly happy to see him.

Proposals re access to the daughters

87.  I find H’s position that due to his work commitments; he can only go to Japan one weekend a month a strange one. If this is about seeing the daughters, one cannot help but wonder why he cannot make more time.

88.  T CXX is 1-2 hours from the Tokyo airports, it is in the same time zone. Physical and remote access should not be affected by this location. H can maintain his regular remote access with the daughters which he now arranges directly with them. He can also organise his visits to Japan based on his leave, and around public holidays in Hong Kong. I find that W has been very accommodating in allowing access, including vacating her own home so that H can spend time with the daughters at her current residence; I have every reason to believe that H’s plans on access will be facilitated by W.

89.  W in her statement of proposal has also offered to take the daughters to Hong Kong for access with the H during half term holidays subject to their school schedule and activities. She is also willing to discuss with H for him to have a slightly more share of the long holidays.

90.  H relies on the SIRs and the SJE report for saying there is detriment to his relationship with the daughters if relocation is allowed as their relationship needs to be further repaired, I do not agree with this position. I am not of the view that allowing relocation would have detrimental effect to their relationship.

To what extent would that detriment be offset by extension of the child’s relationship with the maternal family

91.  I have already found that there is no detriment to the father-daughters’ relationship. Furthermore, referring to the ISIR and E’s conversation with me, the daughters will be able to develop an even closer relationship with the maternal side of the family, which will be in their best interest as well.

What would be the impact on the W on the refusal of her realistic proposal?

92.  This is always an important issue to consider as the well-being of the carer is of great importance to her ability to take good care of the children. H is not contesting for care and control of the daughters; if anything happens to W, the daughters will suffer.

93.  I have no doubt that the W would be impacted both mentally and financially were she to remain in Hong Kong. Until H learns to recalibrate his perception of the situation around him, she will probably be continuously bearing the brunt of his accusations, which is clearly unfounded and causing her stress.

94.  I will consider the financial situation below.

Other factors to consider

Family Finances

95.  The family’s finance is another factor to consider in this Relocation Application, and needs to be set out in detail.

Income

96.  Prior to the divorce, W’s monthly income stood at $43,943 but has been on a decline since March 2021. This was due to impact of covid on the airline industry. By January 2022, her income has been reduced to $22,400. Furthermore, she was on sick leave and then unpaid sick leave since then, and from then her monthly income has been reduced to an average of $5,575 per month. W’s pension was frozen from October 2020 and will no longer be increasing with time, her housing allowance was discontinued on 31 December 2021. She also owes the airline company money for medical payment, which is the shortfall between amounts she incurred in excess of that covered by her employer.

97.  W’s current employment will come to an end when she retires in February 2024 at age 55. She says that she is unlikely to resume crew duties before her retirement and that she is retaining her employment for the purpose of potentially offering lifetime benefit to H.

98.  Mr Lau also describes her injury and her surgery in July 2022 in the updated SIR. After the surgery, while her range of motion of her right shoulder has improved, there is a need to resume physiotherapy and continue to take medication. On her retirement, and realistically considered, given that she has worked in the airline industry for almost 30 years, she has no other training. H argues that she will receive a pension from her employer, and she can seek employment in Hong Kong after her retirement. But no evidence has been put forward as to what is expected of her in terms of occupation after her retirement, except for H to say that other flight attendants managed to find work after leaving the company. The W also contends in oral evidence that it will be easier for her to find work in Japan than Hong Kong; and that the same amount of money gives her and the daughters a more comfortable lifestyle in Japan compared to here. I accept her evidence that she will have difficulties finding a job in Hong Kong without much training, and in any event, she won’t be able to do so until after her retirement date in February 2024, which is another eleven months from now.

99.  H’s gross income from his Form E is $119,800. He says that his income will increase year on year. I ask questions regarding his employment income, and he confirms that his salary is commission dependent and therefore will fluctuate depending on the amount of trading he does for clients; his discretionary bonus is performance dependent; and his total income is therefore dependant on his abilities and even more, on market conditions. I do not accept H’s mere say so that his income will increase; the nature of his work means his income will fluctuate, in the absence of evidence, I cannot see how he can say with certainty that it will increase with time.

Assets

100.  The parties have two jointly owned properties, CG and BX Villa. CG was sold in October 2021, the sale proceeds were divided equally. The BX Villa was sold in July 2022, the net proceeds of $1.5M are being held in escrow by solicitors.

Expenses

101.  Based on his Form E, H’s own expenses is $149,801. This includes legal cost of $51,477, making his net expenses $98,324.

102.  He says he is further paying the following for W and daughters:

Rent	29,500
Utilities	4,000
Domestic Helper	6,500
School Fees	23,825
TOTAL	63,825

Which brings his total monthly outlay to $213,626 ($149,801+$63,825).

103.  W says in her Form E dated September 2022 that her expenses in Hong Kong amounts to $124,720 for herself and the daughters, with the following breakdown:

General Expenses	$59,844
W’s personal Expenses	$13,156
Children’s expenses	$51,720

104.  This was slightly downward adjusted to $115,925 according to her 7^th Affidavit of 10 October 2022. With the H’s contribution aforementioned, there is still a shortfall of $52,100 (being $115,925 – $63,825). This same Form E was also informative as she has also laid out what she is likely to incur living in Japan, which is $74,015, which is only 60% of what she is spending in Hong Kong.

105.  In H’s 5^th Affidavit of 28 October 2022, he produced a revised budget of approximately $140,000, inclusive of his contribution to W and daughters, which remains at $63,825 (paragraph 102 herein refers). He reduces his expenses by eliminating the legal expense item (at $51,477 per month), and cutting down on his own personal expenses. Based on this revised budget, his own expense is now reduced to $76,175. However, there are a number of expense items that has not been covered in his proposal, including the general expenses other than utilities and domestic helper such as food and household expenses, W’s own expenses, the daughters’ expenses items other than school fees.

106.  In his oral evidence, he acknowledges that this revised budget does not cover some of the W’s and daughters’ expenses and that W is currently paying; and maintains that these were the W’s responsibility during the marriage. He must have forgotten that W is no longer making $44,000 per month. He continues to say this should be borne by W; and he proffers no proposal as to how she can bear these expenses with her current income status, or lack thereof; and with her still in recovery from her physical injury. W has also said that she needs to stay in employment until her retirement date to enjoy ongoing benefits beyond. On cross examination, H suggests that the shortfall can come from her savings.

107.  With this revised budget at $140,000 and the shortfall claimed by W at $52,100, the two households’ expenses are $192,100. This is still quite in excess of H’s monthly income of $119,800 and the limited amount earned by W.

108.  At the close of the trial, I have asked H’s legal team to provide me with a viable financial support plan to keep the two households afloat. According to the W’s legal team, no feasible plan was put forward.

109.  W’s share of capital from the CG net proceeds of $4,016,761 have depleted substantively from supplementing family expenses which H has refused to pay and for her legal costs, at the time of her closing submission, she has only around $400,000 left. It is evident that that this amount will not last long.

110.  At the time of writing this judgment, W has applied for MPS for $52,100 and for interim interim maintenance pending argument at $30,000. Her supporting affidavit states she has to cancel insurance coverage for herself and the daughters, cut down on her physiotherapy treatments and reduces her own food consumption to save money. As the parties subsequently agreed that W will receive $30,000 more per month, I have no sight of the H’s current financials. Her bank balance at the time of March 2023 is down to $16,500.

111.  The other capital asset of the family was the BX Villa sale which resulted in around $1.5M, now held in escrow. Even half share of this amount does not give W a huge buffer; but she has been unwilling to agree to the release of these funds as she needs some liquidity at the end of these proceedings. Her present financial predicament no longer gives her a chance to buy a property in Japan.

112.  H states in his Form E that he has spent his share of capital from CG, the approximate $4M has been spent on access supervision, children therapy, legal fees, and interim support. At the time of his Form E, this amount stood at $952,478. Even he had to say this in Part 5.1 therein:

“There is currently a monthly short fall of over 100,000 in my income to cover my, the Petitioner and the children’s monthly expenses. As a result, part of the marital assets have been used to pay for the expense which is not sustainable. (my emphasis)

113.  H’s Form E shows he had $3.6M liquid assets inclusive of half share of BX Villa. W’s submission revealed when asked how much is left of this $3.6M, H has stated that he has around $2M left after payment of legal fees.

114.  What must be borne in mind is that that if H is now spending $76,175 (his own reduced expenses) + $63,825 (previous W’s maintenance) + $30,000 (recent maintenance addition by consent) totalling $170,000; this is $50,000 more than the H’s monthly income, he must therefore be dipping into his own capital for these expenses.

115.  The two more valuable assets in the matrimonial pot, being the two real properties they owned during the marriage had been sold. On one hand, given W has run out of her own capital, with still a shortfall of $22,100 expenses per month based on her calculation which she needs to find from somewhere, while her pension does not even start to run until her retirement; it is obvious that between she and the daughters, the previous standard of living must have been compromised. On the other hand, H is overspending on a monthly basis, and it is not clear how much longer before the capital in his hands will also be depleted.

116.  In my mind, the whole financial position is completely untenable and unsustainable.

117.  If W is allowed to relocate sooner, she has said that she intends to ask for $74,000 per month for maintenance, this is less than what H is now paying at $93,825. This amount, with the H’s reduced expenses would still exceed H’s income, but the funds taken from the family capital would be much less. When W starts to receive her pension in early 2024, then these numbers should be able to be adjusted further depending on the amount of her pension.

H’s Objections

118.  H maintains that the finances would work and said he has too little leave days for access; as analysed above, I do not accept either of these positions.

119.  H also says that if the daughters change schools, he will move closer to where they live and study. I have difficulty in believing this having in mind how he reneged on his promises to the daughters with regard to agreeing to their relocation and moving out to TXXXX XXXXX together. Access is not allowed to take place in DB, yet he maintains that he stays in DB because the daughters’ school is there. I do not find him credible in this regard as he has not shown that he has placed proximity to the daughters as a priority.

120.  He also argues that the daughters’ status quo should be maintained. What I see is that their lives as they knew it have already been upended. Following the development in the last two years, their parents have separated, they spent their lives in two households, they met H in the presence of supervision, and moved from DB where they grew up. At this point, going to DB continues to be a stress as they do not want to come across XM, the H’s affair has cast a huge shadow over their previous lives; E in particularly does not even want to study in the same school anymore. Their friends have left Hong Kong.

121.  H says he would not co-habit with XM and would not introduce XM to the daughters unless they want to; but Mr Lau has stated that it is the on-going relationship between H and XM that will continue to impact E, and I agree.

122.  In the H’s closing submission, he contends that what Dr Craigen and Mr Lau are in effect saying is that if there is a change in circumstances, namely improvement in the Father/daughters’ relationship and normalization of access then they would support a relocation. Hence, as it is not possible to determine what, when and if there will be a change of circumstances, the Court cannot make a future speculative Order. To this argument, I say this: this contention has ignored that both the SJE and Mr Lau have said 2024, neither of them says the relocation is not to happen. The H’s position relies on recommendation of the SJE and SWO, but as mentioned above, I do not find these ambiguous recommendations helpful, nor do I accept that the children’s best interests are served with the imposition of these conditions.

Wishes of the daughters

123.  I met the daughters shortly after the hearing on 15 November 2022, transcript of the meeting was provided to both parties.

124.  E came over as shy and needed some time to warm up which she did. M was chatty and delightful. Both came across as bright, responsive, and unencumbered in expressing their feelings.

125.  Both of them expressed their wish to relocate to Japan in the summer of 2023. I am of the view that these wishes are genuinely held.

126.  E especially said that all her friends are leaving Hong Kong, and her best friend is going to go back to Japan. She does not want to go to DB, and she does not feel that Hong Kong is her permanent home. She also added that she is very close to her maternal grandmother. As to expressing her wish to H:

“E: And I’ve told my dad that I wanted to move to Japan many times, so he knows that I want to move. And he also knows that I don’t like DB and I don’t want to stay in HK.

Ct: And you’ve said that to him many times

E: Yes I did.

Ct: And what was his reaction?

E: One time he got mad at me and then he said that my mum was telling me to say that, but it’s not …”

127.  M also said that her school friends are leaving Hong Kong and she wants to go to Japan because her relatives are there. She especially asked that they leave in the upcoming summer of 2023 when she completes grade 6; and that they be allowed to leave after she attends her graduation party.

128.  Dr Craigen said that they are unaware of the implication of relocation, this is not my impression at all. They are both keenly aware that it means not seeing H regularly but both feel that they can maintain contact with their father with ease. Excerpts of this part of the conversation I had with them have been provided above.

Holistic assessment of what is in the best interest of the Children: the Balancing Exercise

129.  I am looking at a genuinely motivated relocation application from W, with a well-researched and concrete plan. Based on the above analysis, I am of the view that granting this Relocation Application is in the daughters’ best interests.

130.  It was recommended by the Dr Craigen and Mr Lau to give time for H to “repair” his relationship with the daughters and for access to resume to a “normal” state, both of which yardsticks are difficult to assess and seems on Dr Craigen’s recommendation to be also incumbent on H’s agreement to the daughters’ relocation. This almost seems to suggest that this is more about serving H’s interest to improve relationship with his daughters. I find these recommendations create uncertainty which I am of the view is clearly not in their best interests.

131.  I have said above that I am not ready to put the daughters’ lives on hold. Furthermore, to take a look at how long H has so far, and to give him some leeway, I take the starting point as of September 2021 when under HHJ Melloy’s Order, Dr Visher and Dr Jadis Blurton became involved and assisted the family with recovery; up till now he has had a year and a half and he would have two years by the summer of 2023. Despite this, in his October 2022 Affidavit, he still complained W of alienation, blamed her for involving police over the sleepwalking incidents leading to supervised access; and in Mr Lau’s updated SIR, H said W has not facilitated access despite Mr Lau citing a list of additional access dates. These sentiments also came through in his oral evidence. It is impossible to imagine how H can hold these views, and even more difficult to fathom when he can be “in agreement with the mother that relocation is in the children’s long term interest” as proposed by Dr Craigen to be a criteria to proceed with relocation.

132.  I want to make it clear that I am not oblivious to the need for the father-daughters’ relationship to be further improved. I am cognizant that this will be an on-going process. With the help of Dr Visher, everyone has made improvement, and everyone must continue to contribute to this effort. I see no reason why this cannot continue to improve in the upcoming months until such time as herein decided to be the time for the daughters to relocate; and thereafter with the assistance of Dr Visher via remote sessions as required.

133.  The other factor which I have mentioned is one of finances. I have found that the overall financial position of the family currently and going forward is untenable and has created a situation where the parties’ capital is continuously depleted; the W’s standard of living is impaired, and in due course if not already so, the daughters’ standard of living negatively impacted.

134.  This court is painfully aware of the financial hardship a party can suffer when one is at the mercy of the other who is the sole bread winner. The impact this can have on the applicant party, and on the children both mentally and emotionally and maybe even physically can be enormous with long consequential effect. In this case, asking W to stay longer in Hong Kong would continue to subject her to the stress arising from this financial difficulty and possibly the continuous badgering by H, inter alia, in his expectation that she is supposed to find work to cover the shortfall. Evidently, it was only after she recently incurred legal cost to take out a summons for additional maintenance before H agrees to pay; when all along he must be aware of the insufficiency which was first mentioned in her lawyers letter as far back as October 2021, and then again clearly highlighted at the relocation hearing.

135.  I am conscious that I overriding the recommendations of the SJE and the SWO in terms of the timing they put forward. However, I am of the view that they have not contemplated the whole of the circumstances as I have, nor consider the extent of the financial hardship W would be in if she has to stay till 2024.

136.  Referring to the updated SIR, Mr Lau said that H has argued that he is financially able to afford their living expenses in Hong Kong and then he also said:

“Providing that H is financially able to afford their living expenses in HK, the IO maintains the view that the impact to [W] and the two children, if her permanent relocation application is not approved, should not be worrisome.

It is not clear whether Mr Lau has been given information on the H’s finances, but the proviso he puts here must be noted. On cross examination, he was asked the following:

“W’s counsel: If [W] is required to use her savings to remain in HK to make up shortfall, not in the children’s long term interest?

Mr Lau: If [H] is unable to support family’ standard of living in HK and [W] has to use her own savings to make up the difference, it is not desirable.”

137.  As for the Dr Craigen, her comment when she was cross examined by W’s counsel regarding financial pressure on W depletion of her limited capital, was that W would be clearly stressed and for her long-term future as well. But when asked about the financial pressure resulting in a decline in the daughters’ usual standard of living, she said:

“I think having your father trumps all that”.

138.  I do not see a situation here where the daughters do not have their father, nor a situation where his access to them is obstructed, this is not the evidence at all. I am of the view that Dr Craigen has not been given a chance to look at the financials enough to fully appreciate the situation where W is suffering under the financial stress; and which no doubt will impact on the daughters.

139.  I am convinced that W will continue to support and facilitate access, as said, there is no evidence at all that she has been obstructing H’s access to the daughters. It is of course up to H as to how he can best manage his leave so that he can see the daughters on a meaningful basis, W has also committed to bring the daughters back to Hong Kong during their school break. The daughters now contact H remotely on their own accord. I am therefore of the view that H’s contact with the daughters will continue.

140.  I have taken the wishes of the daughters, who are approaching age 13 and 11 in the upcoming two months, into consideration. This is first point in the Welfare Checklist. On this, I rely on and make reference to the Court of Appeal decision of YSYM v LHB [2020] HKCA 586, which adopted and quoted the case of Re R (Residence Order) [2010] 1 FLR 509 per Rix LJ at §57:

“[57] The importance of listening to a child once he or she has reached the age of 10 … has been stressed in the authorities. Thus in Re L (A Child) (Contact: Domestic Violence) [2001] Fam 260, [2001] 2 WLR 339, [2000] 2 FLR 334 at 271-271, 347 and 340 respectively, Dame Elizabeth Butler-Sloss P sitting in this court cited with approval Contact and Domestic Violence – The Experts’ Court Report [2000] Fam Law 615 at 624 on the subject of a child’s wishes:

‘…while this needs to be assessed within the whole context of such wishes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child's resistance appears to exist.’

See also Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 FLR 961 per Baroness Hale at para [57]:

‘But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else who will have to live with what the court decides.’

Conclusion

141.  On balancing all the factors before me, my decision is that W’s Relocation Application is to be allowed. The daughters shall have leave to relocate to Japan before the end of the Summer holiday in 2023 and in time to start their 2023-2024 school year in Japan. I would encourage such timing to take into account M’s wishes to attend her graduation party.

Costs

142.  I see no reason why costs should not follow the event, I will make an order in favour of the Petitioner Wife.

Orders

143.  Leave is granted for the Petitioner to remove the daughters to Japan, the departure date for which shall not be earlier than 15 August 2023.

144.  I make an Order Nisi that the costs arising from and occasioned by this Relocation Application, including all costs reserved, be to the Petitioner; to be taxed if not agreed, with certificate for counsel. This is a cost order nisi to be made absolute from 14 days hereof.