Y v. M

HCMP695/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 695 OF 2010

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BETWEEN

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REASONS FOR DECISION

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A.      INTRODUCTION

1.  F and M are husband and wife.  Their marriage is sadly on the brink of an irretrievable breakdown.

2.  N is their son, who was born on 11 December 2006.  Both M and F claimed sole custody, care and control of N.  M additionally sought an order for relocating N to Taiwan.

3.  At the conclusion of the hearing on 20 May 2010, I ordered that joint custody of N be given to the couple and care and control to F with generous access to M, including stay access in Taiwan.  I further made no order as to costs.

4.  I had indicated that I would hand down the reasons for my decision, which I now do.

B.      BACKGROUND

5.  Earlier in HCMP489/2010, M sought the removal of N to Australia, his alleged place of habitual residence, under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).  On 13 April 2010, I refused the application on the ground that N’s habitual residence when F took him to Hong Kong on 11 December 2009 was Taiwan, a non-Convention territory.

6.  In the Reasons for Decision handed down on 16 April 2010, I chronologically dealt with the evidence on the issue of habitual residence.  Those matters set the backdrop for the present action, the sequel to the parties’ disputes concerning N.

7.  For convenience, I reproduce what I had said in the Reasons for Decision below :

“10. F was born in Hong Kong in 1982. He migrated with his family to Australia in 1997. He is an Australian national.

11. M was born in Taiwan in 1980. She went to Australia in 1999.

12. F and M met in 2001 while pursuing their tertiary education in Australia. They soon fell in love and began to live together in 2004. They were married in Hong Kong on 26 April 2006. F then found out that she was pregnant. Upon medical advice, she stayed in Hong Kong for the first few months of her pregnancy. Then in August 2006, M and F returned to Australia and stayed in the apartment provided by F’s father in Melbourne. N was born on 11 December 2006 in Australia. In June 2007, N obtained his Australian passport.

13. Since N’s birth, the family had been staying in Melbourne, Australia until July 2007. There can be no dispute that up to that point in time, the habitual residence of F and M was Australia. So was N’s.

14. Things then took a turn.

15. On 4 July 2007, the family came to Hong Kong after a short trip to Taiwan. They had since lived with F’s parents in the latter’s apartment on Conduit Road.

16. On 18 July 2007, F applied to the Immigration Department for an extension of stay for residence in Hong Kong. F acted as M’s sponsor.

17. On 24 August 2007, F began to work as a sale assistant with Zara Asia Limited. He continued to be so employed until February 2008 when he became an insurance agent.

18. Soon after her arrival, M opened a bank account and security account with the Bank of China. She said that the accounts were opened for her to remit money from Australia if necessary. I further note that she had in fact bought and held 2,000 shares of Petrochina through the security account.

19. On 1 September 2007, M took N to Taiwan to see her family. She stayed there for until 26 September. F joined them for only two days and returned to Hong Kong for work.

20. On 17 December 2007, M took N back to Australia. The trip served two major purposes. First, N took his “baby jabs” there. Second, M applied for her Australian permanent residence. They stayed there until May 2008. While they were away in Australia, F stayed in Hong Kong for work.

21. On 3 May 2008, M and N returned to Hong Kong. Up to April 2009, other than some short trips to either Macau or Taiwan, the family continued to stay here and lived with F’s parents under the same roof.

22. Significantly, in November 2008, F and M enrolled N for pre-education with St. Paul Church Kindergarten (‘the Kindergarten’) to be commenced on 1 September 2009.

23. In my view, the objective evidence summarized above showed that in July 2007, when the family came to Hong Kong, F and M intended to settle here. Hong Kong had since become the place of their and N’s habitual residence.

24. In April 2009, the family went to Australia and stayed there for 3 months. The parties disputed as to the reason for this trip. I do not think that really matters. Viewed objectively, they had not abandoned Hong Kong as their habitual residence.

25. In July 2009, the family came back to Hong Kong. Despite all the allegations by M, the inference is clear. They came back so that N could later start his schooling with the Kindergarten in September 2009. This strongly suggests that the couple still regarded Hong Kong as their place of habitual residence.

26. Unfortunately, things took a further twist.

27. In August 2009, several unhappy incidents happened between M and F’s parents. Things did not work out well with F’s parents, who had supported them financially. So they set for Taiwan on 5 August.

28. Since their arrival in Taiwan, they had been living with M’s parents and family.

29. To support the family, F worked part time in a café. In order to get employment, F applied for and obtained a Taiwan resident certificate on 31 August 2009. M also found her first job since marriage as a supervisor in a French restaurant.

30. As for N, they cancelled the enrollment with the Kindergarten. They then looked for schools for him in Taiwan but none was found to be suitable. In September 2009, they applied and obtained a Taiwan passport for N.

31. Nothing eventful happened for nearly 4 months until 11 December 2009. On that night F had a heated argument with M. He allegedly hit M and caused her physical injury. M’s father then asked F to leave immediately. F then took N with him and flew back to Hong Kong.

32. In my view, their conduct shows objectively that F and M wanted to have a new start in Taiwan in August 2009 when things did not work out in Hong Kong. Although it is not clear on the evidence as to how long they would stay in Taiwan, their intention was plainly to settle there. They had thereby abandoned Hong Kong as their habitual residence and took up Taiwan instead.

33.     So contrary to their respective contentions, I find that Taiwan was in fact their habitual residence up to 11 December 2009.  So was N’s.”

8.  To complete the background facts, I will add the following points.

9.  F is now working as a trainee in a coffee shop in Wanchai, with a monthly salary of HK$7,000.

10.  M now lives with her family in Kaohsiung, Taiwan.  Her ex-employer[1. has promised to re-employ her upon her return to Taiwan after the present action is concluded.  Her monthly salary will be equivalent to HK$5,000.

11.  N, almost 3 ½ years old now, is studying in True Light Kindergarten (Caine Road).  F has also enrolled him in various interest classes.  N is doing quite well at both the Kindergarten and the interest classes.  His parental grandparents help take care of his daily routines and needs.

12.  Since F is and M will be working full time, their families are willing to assist in rearing N.  They will provide housing, financial and childcare support.  Indeed, the family’s support forms an integral part of the plan they respectively proposed for N.

13.  I have called for a social welfare report.  According to social welfare officer, F and M both love N.  N also loves them but he has repeatedly and consistently indicated to her that he preferred to remain in Hong Kong and did not want to stay in Taiwan[2].

C.      JOINT CUSTODY

14.  The parties initially asked for sole custody.  However, they agreed at the end of the hearing that they should have joint custody irrespective of where N is to reside.  Despite their martial problems, they recognize that they, as parents, play a joint role in the upbringing of N, and neither is excluded.  And they need to co-operate in discharging their joint parental responsibilities.

15.  The parties’ agreement is plainly in N’s best interest.  I endorsed it by granting them joint custody.

D.               The primary issue — care and control

16.  What remains is to identify the parent who will be mainly responsible for the daily upbringing of N.  The primary issue thus becomes : who should have care and control of N?  This also necessarily decides where N is to reside.  For the chance of the couple ever living in the same place again, be it Hong Kong or Taiwan, is practically nil.

17.  In approaching the issue, the court is guided by section 3(1)(a) of the Guardianship of Minors Ordinance, Cap. 13, which requires the court to :

(a)	have regard to the welfare of the child as the first and paramount consideration;
(b)	give due consideration to, first, the wishes of the child having regard to his age and understanding and the circumstances and second, any material information including the contents of a social welfare report; and
(c)	treat the claims of both parents as being equal in nature.

See also WSM v FSY (A minor : custody appeal) [2005] 3 HKC 319, per Cheung JA at para. 13 at pp.322H-323A.

18.  With this general approach in mind, I now turn to examine the evidence.

E.      DISCUSSION

19.  I have carefully considered the evidence of F, the paternal grandparents, M and the maternal grandfather in their affirmations and oral testimony.  It is not necessary to deal with every single point raised by them.  I would, however, like to preface the discussion by two general observations.

20.  First, both F and M had with some sense of acrimony devoted a considerable part of their affirmations to the martial discord and the allegedly unreasonable behaviour of the other side (family members included) leading up to the breakdown of their relationship.  The majority of those past events are irrelevant to N’s welfare in the future.

21.  Second, some of the complaints that they made against each other (family members included) are so minor that they bother on nitpicking.  Those trivial matters can be safely ignored for present purposes.

22.  The more pertinent factors, arising from an objective assessment of the evidence, are as follows.

E.1.   F and M as parents

23.  Both F and M impressed me as affectionate, caring and responsible parents.  They love N dearly and are genuinely concerned with N’s well-being and welfare.

24.  On her part, M had been a full time mother since N’s birth until September 2009.  Despite some disagreements and criticisms from her mother-in-law, I find that overall she had taken care of N quite well.

25.  F also played his role in parenting N although he had to work full time to support the family.  Since N’s return to Hong Kong in December 2009, F has been doing the best as he can as a single, working parent to take care of N.  His life style is quite regular and stable, which helps him keep a close and intimate contact with N daily.  In March 2010, F has enrolled himself with a professional diploma course on child psychology with the Open University of Hong Kong.  He wants to get fully prepared to deal with N’s psychological needs in light of the coming divorce.

26.  I have no doubt whatsoever that both F and M will make their best efforts to discharge their parental duties if granted care and control.

E.2.   The family’s support

27.  Since F and M will have to work full time, they cannot be N’s primary carer.  They have to, as they did in the past, rely on their family’s support.

28.  In their oral testimony, both the paternal grandparents and maternal grandfather impressed me as loving parents and grandparents.

29.  Since their return in Hong Kong in December 2009, F and N are staying in the apartment on Conduit Road provided by the paternal grandfather.  Located in an upper-middle area, the property is about 92 square meters in size.  The living environment is satisfactory.  They will continue to live there.

30.  The paternal grandparents live in another apartment in North Point.  They are now taking care of N’s daily needs and routines.  The grandmother is a full time housewife.  Occasionally, she stays overnight at the Conduit Road apartment to take care of N.  If care and control is granted, F will hire a domestic helper to assist the grandparents in taking care of N.

31.  F’s father is a retired businessman.  He has the means and will continue to support F and N financially, as he did in the past.  He plans to revive his shoe business and engage F in it.  He hopes that with sufficient training, F can take over the business in due course.  That should give F a more generous income in the long run.

32.  The maternal grandparents own several landed properties in Taiwan, including their current address, a 3 storeyed building in Kaohsiung.  They are capable of and will support M and N financially.

33.  M and N will live in one of the bedrooms in the family’s residence.  The building is conveniently situated near the city centre.  Living environment is satisfactory by Taiwan standard.

34.  They maternal grandparents are retirees.  They will help M take care of N’s daily needs and routines.  To do so, they are prepared to adjust their daily activities to suit M’s and N’s schedule.

35.  Undoubtedly, the grandparents, both paternal and maternal, are all willing and able to offer their assistance whole-heartedly.

36.  I am sure that whether N is going to remain in Hong Kong or move to Taiwan, he will be well taken care of and will grow up in a loving and caring environment.

E.3.   N’s health issues

37.  N is allergic to cow milk, seafood and nuts.  The allergy had caused him skin problems in the past.

38.  The paternal grandmother cooks separately for N to make sure that he has the correct diet.  His allergy and skin problems have improved a lot.

39.  I think M and the maternal grandparents can also deal with his allergy and skin problems equally well if N is to live with them.

E.4.   Education

40.  N did not receive any education until his return to Hong Kong in December 2009.  As noted, he is now studying at the True Light Kindergarten.  The Kindergarten offers a bilingual curriculum.  He enjoys his school life and has already made acquaintance with several classmates.  N can also go directly to the primary school run by the same educational institution.

41.  M has secured a place for N at a kindergarten near her home.  That kindergarten also runs a bilingual curriculum.  Schooling will start in August 2010.  However, one simply cannot be sure if N will like or adapt to that kindergarten.  M is prepared to look for another kindergarten if that one does not work out for N.

42.  This lurking uncertainty, in my view, begins to tilt the otherwise evenly balanced case in favour of F.

E.5.   Settled environment in Hong Kong

43.  I now come to the most significant factor in the weighing scale.

44.  At his tender age, N needs a loving and caring environment to which he is accustomed, where he can grow and develop stably and healthily.  And Hong Kong is precisely the place where he has become happily settled since December 2009.  Plainly, the disruptions caused to his life by uprooting him from this stable environment and removing him to Taiwan, albeit not a totally foreign land to him, where he needs to begin all over again, cannot be underestimated.  Indeed, N has quite understandably expressed anxiety to the social welfare officer about the prospect of moving to Taiwan.  This point tilts the balance further in favour of F.

45.  Mr Egerton, for M, took two points.

46.  Mr Egerton first submitted that F had removed N to Hong Kong without M’s consent.  Holding that N has since been settled here is unfair to her.  I disagree.  It was M’s father who drove F and N to the airport on the night of departure.  M had raised no objection when F left with N for Hong Kong.  F said, and I accept, that he was expecting M to join them in Hong Kong and had in fact asked her to do so but she later refused.  In the circumstances, I find that N’s removal was at least with M’s acquiescence.  Further, I find that F did not take N back to Hong Kong for the purpose of litigation so as to gain a tactical advantage over M. 

47.  Mr Egerton next submitted that everything being equal, children of tender age should live with their mother.  He readily accepted that it is not a legal proposition as such.  But judges have consistently recognized that to be a point of view of commonsense and ordinary humanity.  In my view, as the authorities demonstrate, it is no more than a factor to be evaluated in the overall balancing exercise.  Its weight must necessarily vary from case to case.  Here, having considered all the circumstances in the round, I think the benefits that N may reap by living with M in Taiwan will be outweighed by the disruptions caused to his life if he were to be removed from Hong Kong.  However, he will not be totally deprived of M’s love, care and influence in his upbringing.  Generous access will enable M to perform her parental role to the best as she can in the permitted circumstances.

E.6.   N’s wish

48.  As already alluded to, N had repeatedly and consistently indicated to the social welfare officer that he preferred to stay in Hong Kong.

49.  Mr Egerton argued that F had coached N to say so to the social welfare officer.  I do not think this argument is borne out by the evidence.

50.  That said, I think N is too young to make a well-considered and meaningful choice for his future.  I need not resort to N’s wish to determine where and with whom he should stay.  What I have said above is sufficient already.

E.7.   The social welfare officer’s recommendation

51.  The social welfare officer took the view that moving N to Taiwan would definitely caused him anxiety.  She recommended that N should stay in Hong Kong.

52.  For the reasons given above, I respectfully agree with her.

F.       ACCESS

53.  I finally come to access.

54.  F has offered generous access to M.  They were able to agree on most of the terms except two.

55.  The first term concerned the stay access in Taiwan.  Ms Koo, for F, submitted that there is a real risk that M may not return N to Hong Kong and since Taiwan is not a contracting state under the Convention, it will be extremely difficult to secure his return.

56.  This action should not be viewed as a tug of war between F and M over N.  The primary consideration is always N’s welfare.  As I have said, N should have the benefit of M’s love, care and influence in his upbringing.  I think M can better perform her parental role in Taiwan than in Hong Kong.  Staying in Taiwan over long holidays will also expose N to the way of life and culture in Taiwan, which is beneficial to him.  F impressed me as a responsible mother.  I am sure she is fully aware of the stress and anxiety that N might suffer if he were to be caught in any dispute or litigation between his parents over his return to Hong Kong.  I do not think, at least on the evidence before me, she would breach her undertaking to the court by not returning N to Hong Kong after the stay in Taiwan.

57.  The second term concerned how N should spend his short holidays, like Easter.  F suggested that for each year, such holidays should be spilt into two equal parts to be shared with each parent.  M said that traveling between Hong Kong and Taiwan during short holidays might be too much a hassle for N.  He should spend such holidays with F and M in each alternate year.  I agree with M.

G.      Orders

58.  For the above reasons, I granted care and control to F with generous access to M.

59.  On costs, the usual practice is to make no order as to costs.  F asked for costs but I could not see any justification to depart from the usual practice.  I therefore made no order on costs.

[1]   The French restaurant referred to in para.29 of the Reasons for Decision.  She ceased working there as she had to come to Hong Kong to deal with the Convention proceedings and this action.

[2]   See paras.28 and 42 of the report dated 6 May 2010.